ASBCA Confirms Contractors May Challenge Unfavorable CPARS Ratings

While you might not be able to fight City Hall, you can fight your CPARS rating. In a short opinion published last week, the ASBCA confirmed it has jurisdiction to annul an inaccurate and unfair government evaluation of a contractor’s performance. Cameron Bell Corporation d/b/a Government Solutions Group, ASBCA No. 61856 (May 1, 2019).  Though the ASBCA cannot require the government to issue a specific rating, it can remand the matter to the contracting officer with instructions to redo the evaluation ─ a perhaps imperfect, yet still potent form of relief available to contractors who believe the government has improperly rated their contract performance. Continue Reading

Flying in Friendly Skies: The Federal Aviation Administration’s Unique Bid Protest Forum

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 procurements.  ODRA protests are reviewed under the Administrative Procedure Act, adjudicated by one of the ODRA’s Administrative Judges, and subject to direct appeal to a federal circuit court.  While many of the fundamental principles of bid protest practice at GAO and the Court of Federal Claims apply equally at the ODRA, there are several unique features. Continue Reading

Federal Online Shopping Platform Coming Soon — GSA to Issue Prototype RFP Within the Year

In the latest step towards delivering on the long-promised “Procurement Through Commercial e-Commerce Portals” program, the General Services Administration has announced plans to build a proof-of-concept for federal online shopping, aiming to issue an RFP by the end of the year for web-based acquisition platforms.

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New DOJ Cooperation Credit Guidelines a Welcome Sign, but Key Questions Remain Unresolved

This week, the Department of Justice (“DOJ”) released formal guidelines (“the Guidelines”) for awarding credit to entities that cooperate in False Claims Act (“FCA”) investigations. Frequently hinted at by DOJ officials in recent speeches and public statements, the Guidelines have been eagerly anticipated by practitioners in the FCA space.

Despite the build-up, the Guidelines are hardly revolutionary in many respects, as they largely memorialize existing discretionary practices for awarding cooperation credit that are well familiar to practitioners in the area. Nonetheless, the codification of the Guidelines in the Justice Manual may prove to be a significant development, especially if this more formal policy statement results in greater transparency and consistency in settlement discussions with DOJ. Unfortunately, the Guidelines leave unresolved certain key questions, and whether DOJ ultimately achieves its objective of promoting increased disclosure and cooperation will depend substantially on the manner in which the Guidelines are implemented. Continue Reading

New York Executive Order and Legislation Signal Increased Debarment Activity

Two recent developments in Albany suggest that New York is poised to kick its debarment activity into a higher gear. First, Governor Andrew Cuomo issued an executive order pointedly reminding state entities of their authority to debar non-responsible contractors and directing all state entities to ensure that contractors remain “responsible” throughout the term of their contracts. Second, the New York legislature recently enacted a bill to reform the Metropolitan Transportation Authority (MTA), which included far-reaching provisions that allow MTA to debar any contractor that exceeds 10% of the contract cost or time for a construction project. Together, these developments indicate a move towards greater scrutiny of contractor performance, and they highlight the significant consequences of not meeting compliance and performance obligations.

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Rights in Government-Funded IP: Changes May be on the Horizon

Many entities engaged in federally funded R&D have closely monitored the efforts of the National Institute of Standards and Technology (“NIST”) over the last year as it has studied strategies for maximizing U.S. innovation through government-funded research.  Last week, NIST published its findings in NIST Special Publication 1234, Return on Investment Initiative for Unleashing American Innovation Green Paper (“Green Paper”).

Benefiting from information received from an initial Request for Information, public meetings, a summit, consultations with interagency working groups, stakeholder engagement sessions, and comments received on a draft version of the Green Paper, NIST’s findings are designed to inform future policy decisions throughout the Federal Government.  These future decisions could have tremendous impact:  the Federal Government invested approximately $150 billion in R&D in 2017 alone, representing about one-third of all U.S. R&D spending.

After discussing the Green Paper at a high level, we highlight below a few of NIST’s findings which may be of particular interest to many government contractors. Continue Reading

Inspector General Audit of the FMS Program Underway

Last month, the Department of Defense Inspector General announced that it was undertaking an audit of the Foreign Military Sales (FMS) Agreement Development Process.  The audit will assess how the Defense Security Cooperation Agency (DSCA), Military Departments, and other organizations coordinate foreign government requirements for defense articles and services and whether DoD maximizes the results of the FMS agreement development process.

The audit is in response to a congressional reporting requirement included in the House Report to the National Defense Authorization Act for Fiscal Year 2019.  The House Report noted Congressional concern that the FMS process is “slow, cumbersome, and overly complicated,” and that the acquisition decisions supporting the FMS process are “stovepiped,” leading to an FMS program that is “not coordinated holistically across [DoD] to prioritize resources and effort in support of U.S. national security objectives and the defense industrial base.”  Consequently, Congress directed DoD to conduct this audit of the FMS program and submit a final report to Congress.  The tone and language of the House Report indicates that Congress is seeking to streamline the process for all stakeholders, including the U.S. military, foreign partners, and industry.  The House Report specifically calls out precision guided munitions as a focal point for additional foreign military sales that may mitigate risk to the U.S. industrial base.

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Suspension & Debarment Update: Department of Labor Announces New Pilot Program

Keen observers of federal suspension and debarment practice have noticed a recent change at the Department of Labor (DOL):  After years of inactivity, DOL’s discretionary suspension and debarment program suddenly came to life in 2017 and has been issuing suspensions and debarments at a steady clip ever since. [1]  Now, according to a recent announcement, DOL is poised to turn up its suspension and debarment activity yet another notch.  Starting this month and continuing through April 2020, DOL will be instituting a pilot program aimed at promoting and expediting its suspension and debarment activity, with the stated goal of “reduc[ing] the processing time on discretionary suspension and debarment actions from months to days.”  Continue Reading

The Topsy-Turvy World of State and Local Bid Protests

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 completely inapplicable in another.

What does that mean for a contractor looking to grow its state and local business?  Be prepared:  Become familiar with the rules and practices for bid protests in the relevant jurisdiction prior to the award decision.  When the award decision is made, you’ll be in a better position to assess whether to protest and, if so, when and how to do it.

Here are a few issues that are often helpful to consider while preparing for a potential state or local protest:

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