Kayleigh Scalzo advises clients on an array of contracting and procurement issues, and has litigated bid protests in both the U.S. Court of Federal Claims and the U.S. Government Accountability Office.
Federal contractors usually think of two bid protest forums: the Government Accountability Office and the Court of Federal Claims. But there is another protest forum that often flies under the radar: the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition — aka the ODRA. The ODRA has exclusive jurisdiction over bid protests of FAA … Continue Reading
Many contractors are familiar with the well-established processes of federal bid protests. Less known is the dizzying variety of procedures applicable to state and local bid protests. Each jurisdiction has its own rules — in terms of timing, protestable issues, standard of review, document production, and more. A fundamental tenet in one jurisdiction may be … Continue Reading
Many government contractors are part of corporate families consisting of multiple corporate entities. One entity may be named as the official contracting party, but use the resources of affiliates, parents, or subsidiaries during performance. The distinction between those members of the corporate family may not seem important in terms of day-to-day operations — in fact, … Continue Reading
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
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
On April 24, 2018, the Department of Defense (DoD) issued a Notice and Request for Comment on draft guidance that DoD proposes for assessing contractors’ System Security Plans (SSPs) and their implementation of the security controls in NIST Special Publication (SP)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
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
The Department of Homeland Security’s procurement for border wall prototypes is a complex, controversial procurement by any measure. But one protest of that procurement has recently been dismissed for a simple reason: the protester failed to timely submit comments on the agency report. Bid protests at the Government Accountability Office are notorious for their fast … Continue Reading
Last week, we reported that the Department of Homeland Security, Customs and Border Protection (CBP) had published a presolicitation notice announcing its intent to issue a solicitation “for the design and build of several prototype wall structures in the vicinity of the United States border with Mexico.” On Friday, March 3, CBP amended that notice “to … Continue Reading
On Friday, February 24, 2017, the Department of Homeland Security, Customs and Border Protection published a presolicitation notice announcing its intent to issue a solicitation “for the design and build of several prototype wall structures in the vicinity of the United States border with Mexico.” At least on the government procurement front, this notice marks … Continue Reading
In response to a request from the Senate Committee on Homeland Security and Governmental Affairs, the Government Accountability Office (“GAO”) recently reported on the “limited role” that public-private partnerships (“PPP”) play in disposing of and managing the federal government’s “excess or unneeded real property.” Despite recent “[h]igh profile projects” — such as the 60-year lease … Continue Reading
In Starry Associates, Inc. v. United States, No. 16-44C (Fed. Cl. July 27, 2016), the Court of Federal Claims (“COFC”) sharply criticized a Department of Health and Human Services (“HHS”) decision to cancel a solicitation following two bid protests at the Government Accountability Office (“GAO”). The history and outcome of the case are exceptional among … Continue Reading
Many a bid protest has been dismissed for lack of standing. But often that ostensible lack of standing has more to do with how the protest arguments are crafted than the facts underlying the procurement. The Court of Federal Claims’s recent decision in Precision Asset Management Corp. v. United States (No. 15-1495) is a good … Continue Reading
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
On June 26, 2015, the United States Agency for International Development (“USAID”) published a final rule extending its pilot Partner Vetting System (“PVS”) program to assistance awards and cooperative agreements. This final rule comes nearly two years after USAID issued a proposed rule applying PVS to USAID assistance and resembles USAID’s existing vetting program for … Continue Reading
On April 20, 2015, the Supreme Court declined to review a March 2014 Federal Circuit decision holding that the Department of Housing and Urban Development (“HUD”) cannot use cooperative agreements—and instead must use procurement contracts—to administer funds under Section 8 of the United States Housing Act of 1937. The case is CMS Contract Management Services … Continue Reading
In a decision earlier this month, the Court of Federal Claims (“COFC”) found that an agency’s continued evaluation of bids during the pendency of a stay under the Competition in Contracting Act (“CICA”) neither violates CICA nor constitutes “a de facto override” of the stay. The case is Caddell Construction Co. v. United States, Nos. … Continue Reading
Earlier this month the Solicitor General, on behalf of the Department of Housing and Urban Development (“HUD”), filed a petition asking the Supreme Court to review a March 2014 Federal Circuit decision holding that HUD cannot use cooperative agreements—and instead must use procurement contracts—to administer funds under Section 8 of the United States Housing Act … Continue Reading
This week, the U.S. Court of Appeals for the First Circuit declined to revive a False Claims Act qui tam suit against Baxter Healthcare Corporation, agreeing with the district court that the relators were not the “first to file.” The case is United States ex rel. Ven-A-Care of the Florida Keys, Inc. v. Baxter Healthcare … Continue Reading
On October 15, 2014, the Center for Strategic & International Studies (CSIS) released a report on U.S. Department of Defense (DOD) contract spending between 2000 and 2013. The report analyzes publicly available information from the Federal Procurement Data System (FPDS) and thus does not consider classified contracts, which CSIS estimates to account for up to … Continue Reading
Last month, the U.S. Court of Appeals for the First Circuit affirmed the award of a $50 million tax refund to Fresenius Medical Care Holdings, Inc. The court agreed with Fresenius that certain payments in settlement of alleged False Claims Act violations were tax-deductible. The case is Fresenius Medical Care Holdings, Inc. v. United States, … Continue Reading
On July 15, 2014, the U.S. Department of Defense (“DOD”) issued a proposed rule that imposes new requirements for third-party audits of three contractor business systems, as well as a requirement for contractors to self-report deficiencies uncovered in these audits or in internal reviews of these business systems. The three business systems at issue are … Continue Reading
