Jay Carey

Jay Carey

A Chambers-rated government contracts practitioner, Jay Carey focuses his practice on bid protests, and regularly represents government contractors before the U.S. Government Accountability Office and the Court of Federal Claims. He has prosecuted and defended more than 80 protests, including some of the most high-profile protests in recent years, for clients in the aerospace and defense, biotechnology, healthcare, information technology, and telecommunications sectors. Mr. Carey also counsels clients on compliance matters and all aspects of federal, state, and local government procurement and grant law. He counsels clients extensively on organizational conflicts of interest (OCIs) and on strategies for protecting and preserving intellectual property rights (in patents, data, and software).

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New Cases Confirm that FOIA Exemption 4 Protects Line-Item Pricing Information

Although the Freedom of Information Act (FOIA) allows citizens to request agency records and thus keep a close eye on their government, proprietary information is exempt from disclosure under Exemption 4, which protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” A substantial body of case law … Continue Reading

Federal Circuit Charts New Terrain in Commercial Item Contracting

Last month, the Federal Circuit weighed in on a largely-overlooked provision in the Federal Acquisition Streamlining Act (“FASA”) that requires federal agencies, to the maximum extent practicable, to procure commercially available goods and services to meet their needs.  In the case — Palantir USG v. United States — the court affirmed the decision by the … Continue Reading

Senate Largely Leaves Bid Protests Alone in Passed Version of FY 2019 NDAA After Threatening Major Revisions

For the first time in several years, the version of the FY 2019 National Defense Authorization Act (NDAA) that just passed the Senate does not contain any major reforms to limit bid protests.  But the bill the Senate sent to the conference committee process does contain two provisions aimed at bid protests.  Although they are … Continue Reading

In Archimedes Bid Protest, Government Contractor Takes on Herculean Task of Challenging the Agency’s OCI Determination, and Wins

Earlier this month, the Government Accountability Office (“GAO”) sustained a bid protest challenging the agency’s decision to exclude the protester from consideration based on a potential organizational conflict of interest (“OCI”).  The GAO decision serves as a reminder that an offeror that is excluded from a competition on the basis of a perceived OCI can … Continue Reading

Any Questions? : Department of Defense Implements FY 2018 NDAA Requirement for Post-Debriefing Q&A Process

This past March marked the beginning of a more fulsome required debriefing process for defense contracts.  The Director of Defense Procurement and Acquisition Policy (“DPAP”) issued a class deviation memorandum, effective March 22, 2018, requiring contracting officers to: (1) provide unsuccessful offerors an opportunity to submit additional questions within two days after receiving a debriefing; … Continue Reading

New FAR Rule Implements Increased Minimum Dollar Threshold for GAO’s Protest Jurisdiction Over DoD, NASA, and Coast Guard Task Orders

In a new rule announced yesterday, the FAR Council implemented prior statutory changes to GAO’s bid protest jurisdiction.  For task orders issued by the Department of Defense, NASA, or the Coast Guard, the rule provides that GAO will have jurisdiction only over task orders “valued in excess of $25 million.”… Continue Reading

Draft DoD Guidance on SSPs and NIST SP 800-171 – Impact on Bid Protests and Ongoing Contract Performance

On April 24, 2018, the Department of Defense (DoD) issued a Notice and Request for Comment on draft guidance that DoD proposes for assessing contractors’ System Security Plans (SSPs) and their implementation of the security controls in NIST Special Publication (SP) 800-171. This includes assessments as part of source selection decisions and during contract performance. DFARS … Continue Reading

GAO Debuts New Protest Procedures Effective May 1, 2018

On April 2, 2018, GAO issued a final rule revising its existing regulations to implement a number of changes to its bid protest process.  The new rule becomes effective on May 1, 2018. Several of these changes implement requirements in Section 1501 of the Consolidated Appropriations Act for FY2014 (“Act”), which directed GAO to institute … Continue Reading

RAND Report Concludes That Protests of Department of Defense Procurements Are Rare, Effective

Last week, the RAND Corporation published a report entitled “Assessing Bid Protests of U.S. Department of Defense Procurements: Identifying Issues, Trends, And Drivers.”  In it, RAND analyzed the prevalence and impact of bid protests of U.S. Department of Defense (“DoD”) acquisitions, and concluded that DoD bid protests are both “exceedingly uncommon” and, on the whole, … Continue Reading

FAR Council Clarifies 8(a) Sole Source Justification Requirements for High Value Contracts

On October 15, the Federal Acquisition Regulatory Council (FAR Council), issued a proposed rule to clarify contracting officer and agency responsibilities when justifying sole source awards exceeding $22 million dollars made through the Small Business Administration’s 8(a) program.  The revisions directly address recommendations from a December 2012 Government Accountability Office (GAO) report titled, “Slow Start … Continue Reading

GAO’s Task Order Protest Jurisdiction Expires Today

GAO’s jurisdiction over protests of civilian agency task and delivery orders valued at more than $10 million will sunset today. 41 U.S.C. § 410(f)(3).  GAO will continue to have jurisdiction over Department of Defense task and delivery orders over $10 million — Congress made that jurisdiction permanent in 2011.  10 U.S.C. § 2304c(e). Pending protests … Continue Reading

Supreme Court Clarifies Broad Scope of the “Rule of Two” in VA Contracting

Veteran-owned small businesses scored a win at the Supreme Court with a unanimous ruling in Kingdomware Technologies, Inc. v. United States.  The case involved a law that requires the Department of Veterans Affairs (the “VA” or the “Department”) to restrict competition to service-disabled or veteran-owned small businesses when a contracting officer determines that “at least … Continue Reading

Hope for Offerors Who Win a Multiple-Award IDIQ Contract and Want to Protest an Improper Award to a Competitor

You just learned your company is one of several winners of a multiple-award IDIQ contract.  You also learned one of your competitors, which should have been ineligible, is also an awardee.  So, as things stand, you’ll have to split the contract — and compete for orders — with that competitor.  Can you file a protest … Continue Reading

GAO Protest Sustain Rate on the Rise

Through the first 5 months of FY 2016, GAO is sustaining protests at a 22% clip — a far higher rate than in recent years. GAO’s sustain rate considers only those protests that go to a decision on the merits, and reflects the percentage of those protests where GAO finds in favor of the protester. … Continue Reading

DoD To Reconsider How It Evaluates Proposed IR&D Projects In Awarding Government Contracts

The Department of Defense (DoD) is considering a proposed rule that would prevent defense contractors from promising future Independent Research & Development (IR&D) investments as a way to gain a competitive price advantage in DoD procurements.  Although DoD’s rulemaking is in its early stages, defense contractors with substantial IR&D programs should monitor these developments closely, … Continue Reading

GAO Sustains Organizational Conflict of Interest Protest Of Veterans Affairs Task Order

On February 11, 2016, the Government Accountability Office publicly released its recommendation sustaining the protest by ASM Research of a task order award by the Department of Veterans Affairs (VA) to Booz Allen Hamilton.  GAO determined that the VA failed to adequately consider a potential organizational conflict of interest (OCI) of the awardee based on … Continue Reading

The Pitfalls of Changing a Pending Proposal

As acquisition timelines become increasingly protracted, contractors face the thorny question of if, when and how to advise a procuring agency of changes affecting an already submitted proposal.  In a series of decisions, the Government Accountability Office has held that contractors must inform the procuring agency of any “material change” to a proposal that occurs … Continue Reading

New Obligations to Disclose Labor Law Violations Could Expose Contractors to Defamation Liability

Company communications with government authorities about potential criminal activity or wrongdoing by the company’s employees may expose that company to liability for defamation; that is, unless those communications are considered privileged.  In the majority of states, communications with police or prosecutors are afforded “qualified” or “conditional” privilege, and generally may be the basis of a … Continue Reading
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