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Jay Carey

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a co-chair of the firm’s Government Contracts practice group and a co-chair of the Aerospace, Defense, and National Security industry group.

Jay has won bid protests collectively worth more than $100 billion, for clients across a range of industries — including aerospace & defense, energy, healthcare, biotechnology, cybersecurity, IT, and telecommunications. He litigates protests before the U.S. Government Accountability Office (GAO); the Court of Federal Claims (COFC); and state tribunals across the country. A list of his recent wins can be found under the “Representative Matters” tab.

In addition, Jay advises clients on compliance matters, conducts internal investigations, and defends against investigations by federal and state agencies. He also counsels clients on matters related to the formation of government contracts, including organizational conflicts of interest and the protection of intellectual property rights when entering into procurement contracts, grants, cooperative agreements, and “Other Transaction Authority” agreements with the government.

Jay serves as co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee.

Contact:Read more about Jay CareyEmail

In his first few days in office, President Trump issued several executive orders (“EOs”) and memoranda, many of which may have implications for federal contractors and grant recipients, including the following:Continue Reading President Trump Issues Numerous Executive Orders with Potential Impacts on Federal Contractors and Grant Recipients

Yesterday, the FAR Council issued a proposed rule that would update the U.S. Government’s approach to organizational conflicts of interest (OCIs).  While the proposed rule is not finalized and may change in response to forthcoming comments from interested parties, the proposed rule contemplates major changes to the FAR’s existing framework in this area.  In this post, we summarize the background leading up to the proposed rule and highlight key areas of proposed change.

Background

Continue Reading The Proposed FAR Rule on OCIs: Big Changes May Be Coming

In what has become an annual tradition, this year’s National Defense Authorization Act (“NDAA”) — just passed by the Senate and sent to the President for signature — contains a provision addressing bid protests at the Government Accountability Office (“GAO”).

Likely of greatest interest to contractors is that Section 885 contains language increasing the dollar threshold for protests of task order awards under a Department of Defense indefinite-delivery, indefinite-quantity (“IDIQ”) contract, from $25,000,000 to $35,000,000.  The increased threshold would further limit the universe of task orders that can be protested under DoD IDIQ contracts. 

Section 885 also requires GAO to prepare a “Proposal for Payment of Costs for Certain Government Accountability Office Bid Protests.”  This provision is likely part of the Department of Defense’s years-long campaign to impose a “loser pays” penalty on protesters in an effort to curb what it says is a problem of frivolous protests — even though GAO’s annual bid protest statistics show that the majority of protests result in relief to the protester, as evidenced by an effectiveness rate of 52%.  DoD’s effort has dated back at least to the Fiscal Year 2018 NDAA, which included an analogous pilot program proposal. More recently, as discussed in our August 21, 2023, post entitled “Should Bid Protest Losers Pay?” Section 804 of the House-enacted NDAA for Fiscal Year 2024 included a pilot proposal for a “loser pays” program.Continue Reading NDAA Increases Threshold for Task Order Protests and Directs Another Study on Whether Losing Protesters Should Pay

On November 14, 2024, GAO released its Bid Protest Annual Report to Congress for Fiscal Year 2024, which provides bid protest statistics and other interesting information regarding GAO’s protest system.

  • The number of protest filings decreased by 11% from FY23.  After a 22% increase between FY22 and FY23
… Continue Reading GAO’s Annual Bid Protest Report: Fiscal Year 24 Protest Filings and Sustain Rate Fell after Unusually High Fiscal Year 23

As previously discussed on this blog, the Federal Circuit issued a major decision in June 2024 addressing bid protest jurisdiction and standing at the Court of Federal Claims (“COFC”): Percipient.ai, Inc. v. United States.

On September 5, 2024, the United States filed a petition for rehearing of that case — requesting that the Federal Circuit reconsider its decision, either through a rehearing by the same panel or by the full court in an en banc proceeding.  Subsequently, on September 26, 2024, the protester (Percipient) filed an opposition to the petition.  It will be worth watching whether the Federal Circuit grants the government’s petition and, if so, whether any rehearing will result in a change to Percipient.ai’s holdings.Continue Reading Percipient.ai, Inc. v. U.S.:  Government Requests Reconsideration of Federal Circuit’s Decision on Bid Protest Jurisdiction and Standing

GAO’s recent protest decision in HPI Federal, LLC, B-422583, Aug. 9, 2024, 2024 WL 3823852, highlights the importance of making clear and precise Trade Agreements Act (TAA) compliance certifications when offering products for sale to the U.S. Government.   

  • On the one hand, GAO found that it was unreasonable for an agency to accept an offeror’s certification that certain of its products were “assembled in” a TAA-compliant country as evidence of the product’s TAA compliance.  GAO reasoned that the referenced assembly — which was not described in the proposal — may not satisfy the TAA’s requirement for “substantial transformation” in that country. 
  • In contrast, GAO found that it was reasonable for the agency to accept the same offeror’s certification that other products had a TAA-compliant “country of origin”. 

As these contrasting examples show, offerors should take care to ensure that their certifications are adequate to establish TAA compliance.  A certification falling short of that standard could place an award at risk, and could even render an offeror ineligible for award. Continue Reading Trade Agreements Act Certifications Undergo New Scrutiny

On June 7, 2024, the Federal Circuit issued a major decision addressing bid protest jurisdiction and standing at the Court of Federal Claims (“COFC”).  In Percipient.ai, Inc. v. United States, the court found that COFC has jurisdiction to hear a protest challenging a matter of contract administration — even where the matter arose in connection with a task order — and articulated a new test for standing applicable to the facts presented in that case. Continue Reading Percipient.ai, Inc. v. U.S.:  Matters of Contract Administration Can Be Fair Game For COFC Protests, Even When They Involve a Task Order

In legislation passed last week, Congress directed the FAR Council to issue new rules for contractor organizational conflicts of interest.  The legislation itself did not create any new OCI standards, but provided factors for the council to consider, focusing on conflicts of interest for companies that act as consultants to the government.

It is unclear at this point what the precise nature and extent of the resulting changes to the OCI rules may be.  But the new law makes it likely that there will be some fairly significant revisions.  Congress set a deadline of Summer 2024 for the new regulations, so the contracting community should be on the lookout for a notice of proposed rulemaking in the coming months, and should not hesitate to submit comments for the government’s consideration.Continue Reading New Contractor Conflict of Interest Rules May Be Coming Soon, with a Special Focus on Consulting and Advisory Contracts