Morrison Foerster’s Government Contracts Insights provides our in-depth analysis of developments and trends impacting government contracting. Through Insights, our attorneys offer a real-time assessment of the statutory, regulatory, legal, and business-related developments and trends that are shaping the industry. We also examine a full array of non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.Morrison Foerster’s nationally recognized Government Contracts and Public Procurement practice represents the world’s leading companies in the aerospace and defense, intelligence, cybersecurity, information technology, financial and professional services, education, healthcare, infrastructure, and logistics support sectors. We are enlisted to address our clients’ most complex and important legal issues. Our work includes contract and subcontract negotiation and other transactional matters, business and regulatory compliance counseling, internal investigations, bid protests, and a wide array of enforcement and litigation matters. Our clients range from Fortune 50 companies to small and medium-sized companies just entering the public sector. We advise both U.S. and non-U.S. companies involved in municipal, state, federal, and non-U.S. procurement matters.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Tina is Co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmaceutical companies, with a focus on general contract counseling and compliance, particularly concerning intellectual property, and cybersecurity matters and federal grant funding.Tina counsels contractors on compliance with federal, state and local acquisition and ethics regulations and with the evolving myriad of requirements pertaining to data security and cybersecurity. She has been involved with numerous internal investigations and compliance reviews, and with mandatory and voluntary disclosures to agencies, and litigation of False Claims Act matters.Tina routinely advises clients concerning:<ul><li>Prime-subcontractor relationships</li><li>Sources of supply and country of origin requirements</li><li>Price reductions and price reporting issues</li><li>Organizational conflicts of interest</li><li>Safeguarding of intellectual property and other proprietary interests</li><li>Licensing and data rights issues</li><li>Handling of classified materials and controlled unclassified information</li><li>Agency suspension and debarment proceedings</li></ul>She also assists clients with due diligence and other activities related to the acquisition of government contracting concerns, and with the drafting and negotiation of teaming agreements, subcontracts, licensing agreements, and cooperative research and development agreements. She also assists clients applying for federal grants (including SBIR and STTR agreements), and those who seek to obtain other transactional authority agreements, as well as those competing for state and local government work.Tina’s litigation experience includes government contracts claims litigation in federal courts and before boards of contract appeals, bid protests before the Government Accountability Office and the Court of Federal Claims, and complex disputes in federal courts, including civil fraud and False Claims Act litigation and reverse Freedom of Information Act litigation.Prior to joining Morrison Foerster, Tina worked at another large national firm and as a trial attorney in the Office of the General Counsel of the Navy, Navy Litigation Office.<h4>Representative Experience</h4><ul><li>Negotiation of largest CHIPS Act federal funding agreement between multinational semiconductor corporation and U.S. Department of Commerce.</li><li>Negotiated prime contract and major subcontracts related to the Department of Energy’s next generation supercomputer program, including extensive IP rights negotiations and negotiation of associated patent rights waivers.</li><li>Negotiated series of other transaction authority agreements with DARPA and associated subcontracts with more than a dozen research universities on behalf of a firm biotech client, including complex IP rights allocations and material transfer agreements.</li><li>Assist clients with FedRAMP authorization process and with development of license agreements for software products sold to federal, state and local government agencies.</li><li>Cyber incident response counseling to some of the largest companies and organizations impacted by security incidents.</li><li>Advises clients on Bayh-Dole reporting of inventions and IP strategies for contracts and grants.</li><li>Conducts due diligence for major government contract mergers and acquisitions.</li></ul>

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Tina is co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She counsels a wide variety of government contractors on compliance with federal acquisition and ethics regulations. She drafts and negotiates contracts on their behalf and has been involved with numerous internal investigations and compliance reviews, and with bid protest, contract claims, and False Claims Act litigation. She also advises on M&A transactions involving government contractors.

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Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office.Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters. He has represented both protesters and awardees in scores of protests before the Government Accountability Office, the Court of Federal Claims, and procuring agencies, in acquisitions ranging from small business procurements to multibillion-dollar contracts of global significance. His representative protest matters span the aerospace sector, the Intelligence Community, base operations and logistics, healthcare, nuclear and environmental work, and information technology and software acquisitions. His protests have included both classified and unclassified programs. In addition to prevailing in published decisions, Jim has also secured favorable corrective action on behalf of clients in a wide variety of protests that were resolved without a published decision.Jim’s work also focuses on disputes over cost allowability and compliance with the Cost Accounting Standards, and he has appeared before the Armed Services and Civilian Boards of Contract Appeals, in size and status protests before Small Business Administration (SBA) area offices, and appeals before the SBA Office of Hearings and Appeals. Jim regularly counsels clients on contract interpretation, organizational conflicts of interest, and small business compliance.Jim graduated with high honors from the George Washington University Law School, where he focused his studies on federal procurement law, was a member of the Law Review, and interned with the General Services Administration’s suspension and debarment office. Jim also holds a degree in theology magna cum laude from the Pontifical Gregorian University in Rome and a bachelor’s degree in classical languages and literature summa cum laude from the University of Kentucky, where he graduated Phi Beta Kappa.

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Jim maintains an active practice in bid protests before the Government Accountability Office and contracting agencies and counsels clients in contract disputes and compliance obligations.

Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office. Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters.

James Tucker

<div style="margin-bottom: 15px;" class="videoWrapper"><iframe class="sticky-video" title="Meet Alex Ward, Government Contracts Practice Co-Chair" src="https://www.youtube-nocookie.com/embed/TkliwdSlTaQ?rel=0" frameborder="0" allow="autoplay; encrypted-media" allowfullscreen="1" title="iframe"></iframe></div>J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. His practice covers a full range of government contracts matters, including investigations, bid protests, claims, general litigation, corporate transactions, and counseling. Alex strives in all matters is to provide his clients the highest level of efficient and effective representation.Alex represents contractors in internal and external investigations, disclosures to the government, and qui tam litigation, with great success in reducing or eliminating his clients’ exposure through active engagement with the government. His work in this area includes obtaining numerous declinations and dismissals of False Claims Act cases in their earliest stages, sparing his clients the cost, risk, and exposure of litigation.He has also served as lead counsel in dozens of bid protests involving military and civilian agency procurements of a wide range of products and services, including all manner of pre- and post-award protests in the GAO, the U.S. Court of Federal Claims, and state tribunals, as well as appeals to the U.S. Court of Appeals for the Federal Circuit and size protest appeals before the SBA’s Office of Hearings and Appeals.Alex handles all aspects of the claims process, from the initial assessment and drafting of requests for equitable adjustment through litigation in the Boards of Contract Appeals and the Court of Federal Claims. Alex’s practice also covers the full gamut of other controversies confronting government contractors, including prime-sub, teaming partner, employer-employee, competitor, and indemnification disputes. His litigation work also includes a wide variety of pro bono engagements, in which he has represented both individual and institutional clients in matters ranging from immigration and criminal defense to sustainable procurement and protection of the environment.Prior to joining the firm, Alex served in the U.S. Army as a commissioned officer and an Assistant to the General Counsel of the Army responsible for civil works and international matters, and as a clerk for judges on the U.S. Courts of Appeals for the Armed Forces and the D.C. Circuit. He is a member of the Boards of the Morrison & Foerster Foundation and the Chesapeake Bay Foundation and of Law360’s Government Contracts Editorial Board.

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Alex is co-chair of Morrison Foerster’s Government Contracts and Public Procurement practice. His practice covers a full range of government contracts matters, including bid protests, claims, investigations, corporate transactions, and counseling.

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Morrison Foerster’s Government Contracts Insights blog provides an in-depth analysis of news, developments, and trends impacting government contracting and procurement. Through Insights, attorneys from our nationally recognized Government Contracts and Public Procurement practice will offer a real-time assessment of the statutory, regulatory, legal, and business-related developments that are shaping the industry. This blog will also examine a full array of U.S. and non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.Read about our <a href="http://govcon.mofo.com/editors/">Authors</a>.Never miss a post. Subscribe to get real-time updates.

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James A. Tucker

Kickstarting AI in the Federal Government: OMB’s Policy to Implement Executive Order 14179

Bid Protest Spotlight: Instructions, Price Evaluation, Standing

FAR Overhaul Underway

FedRAMP 20x: Reformulating the Authorization Process

Court of Federal Claims Confirms Jurisdiction over Other Transaction (OT) Bid Protests

The common theme of this month’s Law360 Bid Protest Roundup is a seemingly hot topic these days: joint ventures.  One recent Government Accountability Office (“GAO”) decision and one recent U.S. Court of Federal Claims (“COFC”) decision both touch upon past performance issues related to joint ventures. The third decision, also a COFC decision, focuses on the requirement that joint ventures must be registered in <a href="https://sam.gov/" target="_blank">SAM.gov</a> at the time of proposal submission.AttainX, Inc. <a href="#_ftn1" target="_self" id="_ftnref1">[1]</a>In AttainX, Inc., the GAO addresses how agencies must evaluate the prior experience and past performance of joint venture members when a joint venture competes for small business set-asides. AttainX, Inc. protested the award of a task order to MiamiTSPi, LLC under the General Services Administration (“GSA”)’s 8(a) STARS III government-wide acquisition contract. MiamiTSPi was an 8(a) small business joint venture, comprising an 8(a) small business (as the managing member and majority owner) and a non-8(a) small business. Among other grounds, AttainX protested the GSA’s evaluation of the awardee’s experience as unreasonable.The solicitation provided for the evaluation of vendors’ similar experience, requiring vendors to submit a minimum of two similar experience examples “that reflect and identify experience on [current or recent] projects.” For each project example submitted, “the contractor shall explain in a detailed narrative how the characteristics of the selected contract relate to the overall project for which they are being considered.”  MiamiTSPi submitted examples from the non-8(a) member and the non-8(a) member’s separate joint venture. AttainX argued that the GSA assigning MiamiTSPi an “acceptable” rating for similar experience was unreasonable because the awardee did not submit examples from its 8(a) member.Although nothing in the solicitation required each member of joint ventures to submit experience examples, the GAO found that the Small Business Administration (“SBA”)’s regulations require agencies to “consider work done and qualifications held individually by each partner to the joint venture as well as any work done by the joint venture itself previously.”  13 C.F.R. § 125.8(e). This language has traditionally been interpreted to mean that an agency cannot negatively evaluate a joint venture for past performance or past experience if the joint venture itself does not have relevant past performance, but instead must consider the experience of the members to the joint venture. However, the GAO stated this language “require(s) the agency to evaluate each joint venture member individually when the joint venture itself does not demonstrate it has the required experience.” (emphasis added).  Thus, because MiamiTSPi did not submit any experience for the joint venture itself or the managing member, and the underlying evaluation record did not demonstrate that the GSA had considered this lack of experience, the GAO sustained AttainX’s protest ground that the GSA’s evaluation of MiamiTSPi’s proposal was unreasonable.TakeawaysThis case will have major implications on small business joint ventures, especially mentor protégé joint ventures where the managing member (the protégé) oftentimes relies on the mentor’s past experience to qualify for contracts it otherwise would not qualify for on its own. In adopting the provision that agencies must consider the experience of the members if the joint venture does not have any experience, SBA’s intent was to ensure that small business joint ventures, and thus the small business members thereof, were not shut out from gaining experience it otherwise would not have been able to obtain.   That said, SBA has also explained that its rules require a small business protégé to have some experience in the type of work to be performed under the contract. It is important to remember, though, SBA’s regulations also provide a “procuring activity may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.” Moreover, GAO held that the agency was required to consider each joint venture member’s experience (or lack thereof) where the joint venture does not have experience itself. It did not go as far as holding that each member is required to have experience to be eligible for award. AccelGov, LLC v. United States <a href="#_ftn2" target="_self" id="_ftnref2">[2]</a>AccelGov, LLC v. United States is a recent COFC case involving two joint venture members competing against each other for follow-on work to a task order their joint venture had previously performed.AccelGov, LLC (“AccelGov”) protested the GSA’s decision to award an information technology contract to Technical and Management Resources, Inc. (“TMR”). AccelGov is a joint venture comprising 22nd Century Technologies, Inc. (“22nd Century”), Agovx, and other unnamed member(s). 22nd Century and TMR were members of the incumbent joint venture contractor, Advance Alliant Solutions Team (“AAST”). Although TMR was the managing partner of AAST, 22nd Century served as the lead for performance of the incumbent work, providing most of the personnel and managing most of the billable work. In fact, of the approximately $27 million earned on the incumbent contract, TMR only earned about $2 million.In its proposal for the present solicitation, TMR listed the incumbent contract as one of its three examples of its prime contractor past experience. TMR stated that it was the managing partner of AAST and managed the contract but did not disclose that 22nd Century served as the lead for the contract performing most of the work. AccelGov, which had also listed the incumbent contract as past experience in its quote, asserted TMR made material misrepresentations about its past experience. Related to this protest ground, AccelGov filed a motion seeking to supplement the Administrative Record through interrogatories to TMR to establish TMR’s alleged material misrepresentation. The Court, interestingly, granted this request.Unfortunately for AccelGov, though, the Court ultimately found on the merits that GSA had rationally assigned AccelGov several weaknesses, leaving AccelGov unable to establish prejudice even if TMR made a material misrepresentation.TakeawaysAlthough the Court did not decide on the merits of AccelGov’s misrepresentation protest ground, this case serves as a warning to joint venture members to pay close attention to how they describe their past performance stemming from their joint ventures. This is especially true when competing against the other member of that joint venture. The fact that the Court granted AccelGov’s request to supplement the record with interrogatories to establish the misrepresentation, which is not common, shows that these material misrepresentation protest grounds are not ones the Court will take lightly.Thalle/Nicholson Joint Venture v. United States <a href="#_ftn3" target="_self" id="_ftnref3">[3]</a> Thalle/Nicholson Joint Venture (“Thalle/Nicholson”) protested the United States Army Corps of Engineers (“USACE”)’s decision to award a contract to Shimmick Construction Company (“Shimmick”). Specifically, it challenged USACE’s determination that Thalle/Nicholson’s proposal was ineligible for award due to its failure to register in the System for Award Management (“SAM”). FAR 52.204-7, incorporated into the solicitation by reference, requires offerors “to be registered in SAM when submitting an offer or quotation, and shall continue to be registered until time of award.” The solicitation also required offerors to meet all solicitation requirements, “including terms and conditions, representations and certifications, and technical requirements.” It warned offerors that “failure to meet a requirement may result in an offer being ineligible for award.” Thalle/Nicholson, a joint venture between Thalle Construction Co., Inc. and Nicholson Construction Co., submitted its proposal on November 3, 2021.  Although the joint venture was not itself registered in SAM at that time, both of its members were. As such, the proposal included a statement that each member of the joint venture “completed representations and certifications in SAM,” and attached individual proof of each member’s SAM registration. During discussions, USACE issued Evaluation Notices (“ENs”) to all offerors, including Thalle/Nicholson. However, these ENs did not mention any deficiencies related to Thalle/Nicholson’s SAM registration (or lack thereof). Then, a week after the Source Selection Evaluation Board (“SSEB”) issued a revised SSEB Report, USACE called Thalle/Nicholson to inquire about the joint venture’s SAM registration status. Thalle/Nicholson confirmed the joint venture was not registered in SAM, but informed USACE it would register the joint venture if USACE confirmed an award to Thalle/Nicholson. The following week, USACE notified Thalle/Nicholson its proposal was ineligible for award, citing FAR 52.204-7. In its protest, Thalle/Nicholson argued that failure to be registered in SAM was not a reasonable basis for elimination from competition, and that USACE, in effect, made an impermissible responsibility determination. The Court disagreed, explaining that the unambiguous language of FAR 52.204-7 required Thalle/Nicholson to be registered in SAM when it submitted its offer. Moreover, the solicitation expressly informed offerors that failure to meet solicitation requirements could result in “an offer being ineligible for award.” The Court also rejected the joint venture’s argument that “SAM registration relates to responsibility, not responsiveness,” and indicated that even if it adopted Thalle/Nicholson’s position, “the only remedy for non-compliance with the SAM registration requirements . . . would be for the offeror to provide information that demonstrates it was registered in SAM when it submitted its offer.”  This, Thalle/Nicholson could not do.Similarly, the Court denied Thalle/Nicholson’s argument that USACE improperly failed to have informed the joint venture of the SAM registration issue during discussions. While it agreed with the protester that USACE should have raised the issue during discussions, the Court found Thalle/Nicholson could not establish prejudice by this failure because Thalle/Nicholson could not have remedied its non-compliance (i.e., not being registered at the time of proposal submission).TakeawaysThalle/Nicholson is a hard lesson learned in the strict requirement of FAR 52.204-7. Although members of a joint venture may individually be registered in SAM, this is insufficient if the joint venture itself is not also registered. This is an especially important lesson during times such as these, where many contractors are experiencing delays registering in SAM. Joint ventures should take care to register in SAM well in advance of submitting their proposals, as a failure to do so will lead to a rejection of their proposals. MoFo law clerk Thomas Lee contributed to this article.<a href="#_ftnref1" target="_self" id="_ftn1">[1]</a> <a href="http://www.gao.gov/assets/820/817444.pdf" target="_blank">AttainX, Inc.</a><a href="http://www.gao.gov/assets/820/817444.pdf" target="_blank">, B-421216, B-421216.2, Jan. 23, 2023, 2023 WL 1860802</a>.<a href="#_ftnref2" target="_self" id="_ftn2">[2]</a>  <a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2022cv1433-56-0" target="_blank">AccelGov, LLC v. United States</a><a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2022cv1433-56-0" target="_blank">, No. 22-1433, 2023 WL 2062939 (2023)</a>.<a href="#_ftnref3" target="_self" id="_ftn3">[3]</a> <a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2022cv0755-54-0" target="_blank">Thalle/Nicholson Joint Venture v. United States</a><a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2022cv0755-54-0">,</a><a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2022cv0755-54-0" target="_blank">No. 22-755, 2023 WL 2028825 (2023)</a>.<div></div>

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Associate

Ali Young is an associate in the Government Contracts practice in Morrison Foerster’s Washington, D.C. office.

Alissandra Young McCann

Ali Young is an associate in the Government Contracts practice in Morrison Foerster’s Washington, D.C. office.

Alissandra McCann

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February 2023 Bid Protest Roundup: Lessons For Joint Ventures

GAO Finds CIO-SP4 Solicitation Is Unduly Restrictive of Competition

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The common theme of this month’s Law360 Bid Protest Roundup is a seemingly hot topic these days: joint ventures.  One recent Government Accountability Office (“GAO”) decision and one recent U.S. Court of Federal Claims (“COFC”) decision both touch upon past performance issues related to joint ventures. The third decision, also a COFC decision, focuses on the requirement that joint ventures must be registered in SAM.gov at the time of proposal submission.

February 2023 Bid Protest Roundup: Lessons For Joint Ventures

The UK is pressing ahead with a reform to its government procurement laws that will diverge from the harmonized EU procurement regime that applied in the UK pre-Brexit. The proposals are intended to create a more transparent approach.Whether a different but simplified process is a casualty of Brexit or a benefit depends on your perspective.In 2020, the UK government consulted on a plan to reform public procurement after Brexit and the results of that consultation led to the <a href="https://bills.parliament.uk/bills/3159" target="_blank">Procurement Bill</a> (the “Bill”) that is currently progressing through the legislative process in the UK Parliament. The aim of the Bill is to simplify, streamline, and bring transparency to the UK procurement framework by replacing the current four main procurement regulations with a single Act.What’s new?While the new procurement law contains many familiar aspects from the current UK regime, there are also some significant differences. The key changes include:<ul><li>Replacing the existing five competitive tendering processes with two new processes. The first new option is a single stage tendering process without restrictions on who can submit tenders, and the second option will constitute any other competitive tendering procedures that the contracting authority considers appropriate. While option two lets authorities design more bespoke tendering processes, it also runs the risk of allowing tendering processes to become more complex and inconsistent, and therefore also more time-consuming and expensive. Under the current EU-derived procurement regime, authorities have less flexibility to design their own bid process, but bidders have more certainty as to the type of process that they will need to follow.</li><li>Giving authorities more power to exclude suppliers from procurement. For example, authorities will be able to exclude suppliers for prior poor performance (including failure to meet KPIs) and, in certain circumstances (such as where a supplier has breached the contract and their performance was unsatisfactory), authorities may need to publish a report about contract performance.</li><li>Allowing debarment. The UK government has long hankered after a way to debar certain bidders as a way of punishing government contractors for past prior performance on other projects – but that would have been incompatible with EU law. Freed by Brexit, the Bill provides for a new central list of debarred suppliers that will be compiled through contracting authorities giving notification to the relevant Minister, and Ministers may also have powers to launch investigations into whether a supplier should be excluded from bidding on UK government contracts.</li><li>Increasing transparency to allow for more scrutinization of procurement decisions. For example, authorities must publish notices and other information at various stages of the procurement process, including details about a supplier’s KPI performance, payments under public contracts, and evaluations of unsuccessful bidders. Furthermore, after a contract valued at over £2 million has been awarded, a copy of the contract must be published.</li><li>Creating new procurement objectives. Contracting authorities must bear in mind new objectives when awarding contracts, such as delivering value for money, maximizing public benefit, and acting with integrity.</li><li>Implementing new rules on direct awards and contract modification. For instance, before making a direct reward, contracting authorities must determine whether a supplier is an excluded supplier, and they can only make direct awards to excluded suppliers in narrow circumstances (e.g., where there is an overriding public interest to do so). Also, a contract can be modified where its purpose could otherwise be achieved through a direct award, and new notification obligations may be triggered upon modification.</li><li>Altering remedies for suppliers. Changes to the rules on automatic suspension include reducing the standstill period from ten to eight days (which will make bid protests harder) and introducing a new test for lifting automatic suspensions. The ineffectiveness remedy will be replaced with a new set aside remedy, which is similar to its predecessor but entails new set-aside conditions.</li></ul>What’s next?The Bill is currently under review in the House of Commons and is expected to become law during the course of 2023. However, contracting authorities and other affected organizations will likely have until early 2024 to comply with these changes, because the Bill will come into force at least six months after it becomes law. Any procurements started before the Bill comes into force will continue to be governed under the current procurement regime.Michelle Si-Ting Luo, a Trainee Solicitor in the London office, assisted in the preparation of this article.

UK Procurement Bill: Pursuing Simple and Accountable Procurement

Autodesk

HM Revenue and Customs

Home Office, Department for Communities and Local Government, Department of Health

Intel

ITworx

lastminute.com

NYSE-listed health tech company

One of UK's largest public EV charging networks

Phoenix Group

Telenor

UK Border Agency

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Senior Counsel

Alistair Maughan co-leads Morrison & Foerster's European Technology & Commercial Practice.

Alistair Maughan

Alistair advises on the deployment of new technology platforms involving, for example, the internet of things, AI and machine-learning, and blockchain and distributed ledger technology.

UK Procurement Bill: Pursuing Simple and Accountable Procurement

The UK is pressing ahead with a reform to its government procurement laws that will diverge from the harmonized EU procurement regime that applied in the UK pre-Brexit. 

The System for Award Management website (SAM.gov) recently changed its registration and update process, and the feedback we’ve heard from clients is that it is slow – even for entities that are simply renewing an existing registration. As SAM delays can cause payment delays, the best advice is not to leave renewing your SAM entry until the last moment. This is the case because SAM’s update process requires entities to verify their business against a database of organizations and addresses, leaving plenty of room for mismatches, human error and confusion. This process is required to register in SAM.gov or to get a Unique Entity ID.Lacking a registration in SAM can preclude you from receiving federal contracts, and failing to register promptly or maintain an up-to-date registration can be costly – just ask the protester in <a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2022cv0755-54-0">this recent decision by the U.S. Court of Federal Claims</a>,<a href="#_ftn1" target="_self" id="_ftnref1">[1]</a> whose proposal for a $76 million contract was rejected (rightfully, said the court) on that basis alone. The practical consequences for having mismatched information can also be dire and will certainly require the most valuable resource: time. Even if your previous interactions with SAM.gov have been swift and painless, much has changed, and companies should ensure all their paperwork is in order and allow plenty of time to complete the process. What is the Process? Entity validation is required when contractors register an entity, renew their entity registration each year, get a Unique Entity ID, and update or change their entity’s name or address. Regardless of whether an entity is new to SAM.gov or is already in SAM.gov, the process requires entering entity information and finding your company among the Entity Validation Service records.Happily, if an entity is in the results and all information is correct, then the process is relatively simple. Unhappily, even in this scenario, entities may be required to submit documentation. This is also the case for updating or correcting information on SAM.gov. In short, all roads lead to submitting documentation that may not have been submitted for many years.If a contractor must submit documentation, SAM.gov will generate an entity validation incident. We’ve heard that these incidents are stacking up, leading to delays and frustration. Contractors can keep track of this incident through an entity validation ticket that Federal Service Desk (“FSD”) will monitor. This ticket will be the one-stop shop for Entity Validation.  Contractors will upload validation documentation to this ticket through SAM.gov, and FSD will contact contractors for validation results using the ticket.Do not submit multiple validation tickets for the same issue. Doing so risks prolonging the entity validation process.Who Can Complete the Process?Each SAM registration requires an “Entity Administrator” role, generally assigned to the first user to complete the registration. The Entity Administrator can perform a number of actions, including viewing the entity’s entire entity organization, updating and renewing the Entity Management registration, deactivating the Entity Management registration, and approving or rejecting hierarchy registration requests. Contractors may have multiple Entity Administrators.Effective as of March 3, 2023, the Entity Administrator must be an employee, officer, or board member of the entity. If a user who currently manages a contractor’s registration is not an employee, officer, or board member, the user role will change from “Entity Administrator” to “Data Entry.” Under the Data Entry role, that individual can continue to create and manage registrations on behalf of entities, but cannot manage roles for the entity (e.g., assign new Entity Administrators or Data Entry roles).If for some reason access to the Entity Administrator role is lost – if, for example, the assigned Entity Administrator leaves the company before reassigning the role to someone else -- an executive, officer, partner, or other authorized signatory for the company must request reassignment of the role. This process requires sending FSD a signed letter, that will likely need to be notarized. Contractors should thus take care to review role assignments when renewing their registration. What Documents Suffice? Contractors must submit documents verifying the following:<ul><li>List A: Name and/or Address</li><li>List B: Start Year and State of Incorporation</li><li>List C: National Identifier (if an international entity)</li></ul>Common documents for List A include<ul><li>Articles of Incorporation/Organization/Formation (if stamped as filed with an authority)</li><li>Bank Statements (redacted for any information unnecessary for validation)</li><li>Certificate of Formation/Organization (if stamped as filed with authority)</li><li>Department of Treasury IRS letter assigning entity’s EIN</li><li>Utility Bill (water, gas, or electric only)</li></ul>For tax returns, filings, or bank statements, contractors should redact or limit information present on these documents. FSD only requires the relevant data needed to validate the company and the entity on SAM.gov.Common Documents for List B include<ul><li>Same documents as List A, as long as they include the state and month, day, and year of incorporation (U.S.-based entities)</li><li>Same documents as List A, as long as they include the country and month, day, and year of incorporation (non-U.S.-based entities)</li></ul>Common Documents for List C include<ul><li>Screenshot/PDF file of the entity’s business profile in entity’s country’s official online business registry (Screenshots of U.S. federal websites are not permitted)</li><li>Government-issued proof of tax identification number, employer identification number, or other identifier issued by the entity’s government</li><li>Government-issued tax receipt/return</li><li>Passport (for sole proprietors or individuals doing-business-as only; must be non-expired and have the entity’s exact name and address)</li></ul>What Should I Avoid?Contractors should be aware that some documents must be authenticated. Additionally, federal contract awards will not be accepted for validation.<ul><li>Other common pitfalls for validation rejection include Old Documentation. For example, a document generated on a monthly or annual basis (such as a bank or utility statement) must be from the last five years. </li><li>Incorrect Information. Contractors should not upload contradictory information. For example, if you request updating the legal name of your company to “ACME Company,” do not provide a business license showing its name as “ACME, Inc.”</li><li>Using a P.O. Box as an Address. These will always be rejected.</li><li>Attaching Non-English Originals Without a Certified English Translation.  Translations must be line-by-line and accompany the original content.</li><li>Unapproved Documentation. All documents must be official, and pending applications or screenshots will be rejected.</li><li>Poor-Quality Documents. Low-contrast documents or obscured information will be rejected.</li><li>Vague Request. The text box on the documents page is optional and does not need to be filled in. However, if you do add a request, use the text box to explain anything that could help FSD understand the connection between what is entered on the screen, the entity you selected, and the documents you provided.</li></ul>Additionally, validating information must match the data in SAM.gov exactly.FSD will review the documentation and send an email with the results of their review. Take care to monitor for this email.  If an entity does not respond to the request for information or additional documentation within 5 business days, it will have to restart this process.Be aware that manual review will take time. FSD claims that manual review takes an average of four days, but as contractors upload their documentation, manual review is likely to take longer.Once review is complete, an entity must go back to SAM.gov and finish registration or get a Unique Entity ID.Updating SAM.gov Information? The Process May Take Longer.If a contractor is updating its information, the process does not end here. Multiple agencies will validate the information.Once an entity submits its registration, the IRS will validate the name and taxpayer identification number. The Defense Logistics Agency will validate information as well.  This process can take up to 10 business days.If the validation fails at this point, an entity will receive an email with instructions to update the information and resubmit registration.When Should I Validate? Sooner Rather Than Later.Contractors should be aware that changes to SAM have increased the administrative burden of maintaining a registration, but doing so – and making sure that SAM registration remains up-to-date – is no less important than it always has been. With all contractors being submitted to this process, SAM/FSD resources have been heavily taxed, resulting in massive delays for entity validation.  If you must update your information on SAM.gov or your registration expiration is coming up, the wisest course of action is to get ahead of the registration process and get started on this right away.<a href="#_ftnref1" target="_self" id="_ftn1">[1]</a> Thalle/Nicholson Joint Venture v. United States, No. 22-755, slip op. (Fed. Cl. Jan. 27, 2023). *Thomas Lee contributed to this blog post. Thomas is a full-time law student at The George Washington University Law School and a Law Clerk with Morrison Foerster’s government contracts practice group.

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Damien is a partner in the firm’s Government Contracts & Public Procurement practice. He represents clients in all facets of government contracts transactions, as well as regulatory counseling, subcon

Damien Specht

Damien C. Specht

SAM.gov Is Changing – Make Sure You’re Keeping Up