A recent opinion by the U.S. Court of Federal Claims (the “Court”)—Hyperion, Inc. v. United States, No. 14-870C, — Fed. Cl. — (Mar. 18, 2015)—is noteworthy for two reasons. First, it illustrates the “international agreement” exception to the Competition in Contracting Act (“CICA”). This exception permits the U.S. Government to award a contract to a U.S. contractor without full and open competition, even on a sole-source basis, when procuring items for a foreign government, in accordance with the “written direction[]” of the foreign government—as can occur through foreign military sales (“FMS”). In full, it states:

The head of an agency may use procedures other than competitive procedures [] when . . . . the terms of an international agreement or a treaty between the United States and a foreign government or international organization, or the written directions of a foreign government reimbursing the agency for the cost of the procurement of the property or services for such government, have the effect of requiring the use of such procedures other than competitive procedures.

10 U.S.C. § 2304(c)(4). Second, the opinion and its procedural history raise thorny questions about whether bid protest challenges to FMS solicitations and awards are consistent with the goals of the bid protest process and U.S. foreign policy.
Continue Reading Recent Application of “International Agreement” Exception Raises Questions Regarding Bid Protest Challenges to Foreign Military Sales

Despite other areas of disagreement involving the defense budget and U.S. military strategy in the Middle East, the Obama Administration and Senate Republicans might be uniting to fast-track the sale of U.S. defense articles and services to U.S. allies fighting against the Islamic State of Iraq and Syria (“ISIS”). Consider three recent developments involving Jordan.
Continue Reading Increasing U.S. Sales of Defense Articles and Services to Jordan