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.

Tina D. Reynolds

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

On October 19, 2022, the U.S. Office of Management and Budget (OMB) published its first set of interim guidance for agencies regarding the Federal Government’s enforcement of Executive Order 14042 (“EO 14042”). In addition to reaffirming the Federal Government’s decision not to enforce any contract clauses implementing EO 14042, OMB’s guidance directs agencies not to include an implementing clause in any new contracts and solicitations.  The OMB’s guidance follows an October 14, 2022, update from the Safer Federal Workforce Task Force (“Task Force”), which indicated that the Task Force and OMB will issue at least three guidance documents following the U.S. Court of Appeals for the Eleventh Circuit’s issuance of its mandate <a href="https://www.mofo.com/resources/insights/220830-eleventh-circuit-preliminary-injunction-contractor-vax-mandate">significantly narrowing the scope of the nationwide preliminary injunction</a> of the EO 14042 vaccine mandate. Consistent with OMB’s guidance, the Task Force also published a complementary update on the same day.OMB’s first set of interim guidance directs agencies to take the following actions:<ul><li>For existing contracts that contain a clause implementing EO 14042: “Agencies should continue NOT to enforce any contract clauses implementing requirements of Executive Order 14042—regardless of party or location—until future OMB guidance discussed above indicates that contracting agencies should provide written notice to contractors reinstating enforcement of those clauses and then resume enforcement” (emphasis in original).</li><li>For existing contracts that do not include a clause implementing EO 14042:  Agencies “should NOT at this time modify the contract to insert” an implementing clause, even when renewing, extending the term of, placing a new order against, or exercising contract options (i.e., <a href="https://www.mofo.com/resources/insights/211112-untangling-the-vaccine-mandate">“new” contracts</a> as defined in the Task Force’s prior—and now largely defunct—guidance) (emphasis in original).</li></ul><ul><li>For new solicitations:  Agencies “should NOT at this time” include a clause implementing EO 14042, including solicitations for new orders under existing indefinite‑delivery indefinite‑quantity contracts that contain an implementing clause.</li></ul>What does this mean? Federal contractors and subcontractors need not worry about complying with the requirements of EO 14042 in either new or existing contracts “at this time,” except when accessing Federal buildings or Federally controlled facilities, per Federal agency workplace safety protocols, which have consistently remained in effect. However, Federal contractors and subcontractors should still get their houses in order in anticipation of the second and third sets of OMB guidance, as discussed in our <a href="https://www.mofo.com/resources/insights/220830-eleventh-circuit-preliminary-injunction-contractor-vax-mandate">prior alert</a>.Also following the Eleventh Circuit’s mandate, on October 20, 2022, the U.S. District Court for the Southern District of Texas denied the year-old motion for preliminary injunction filed by the State of Texas, which sought to block the enforcement and implementation of EO 14042.  After reviewing supplemental briefs, the district court found that Texas failed to demonstrate the imminent harm necessary for a preliminary injunction. In reaching this decision, the court relied on the OMB’s first set of interim guidance and the complementary Task Force guidance, both of which directed agencies not to enforce or incorporate a clause implementing EO 14042 into any new and existing contracts. This decision serves as a warning to new and existing litigants alike that any attempt to obtain a preliminary injunction of EO 14042 may be stopped dead in its tracks, at least “at this time.”  Thomas Lee, a Law Clerk in our Washington, D.C., office, contributed to the writing of this alert.

EO 14042: OMB Guidance Keeps Enforcement on Hold “At This Time”

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J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. 

J. Ward

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Roke Iko is an associate in the Litigation Department in Morrison & Foerster’s Washington, D.C. office.
Roke assists clients in the full range of government contracts litigation and compliance matters

Roke Iko

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Thomas Lee

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EO 14042: OMB Guidance Keeps Enforcement on Hold “At This Time”

Another Ticking Clock: Additional District Court Preliminarily Enjoins EO 14042 | Increasing Need for OMB Update on GA Court Clarification Order

On October 19, 2022, the U.S. Office of Management and Budget (OMB) published its first set of interim guidance for agencies regarding the Federal Government’s enforcement of Executive Order 14042 (“EO 14042”). 

On October 14, 2022, the Safer Federal Workforce Task Force (“Task Force”) published yet another update for Federal contractors regarding the Federal Government’s approach to enforcing Executive Order 14042 (“EO 14042”) in light of the “potential <a href="https://www.mofo.com/resources/insights/220830-eleventh-circuit-preliminary-injunction-contractor-vax-mandate" target="_self">narrowing of the existing nationwide injunction</a> on October 18, 2022,” resulting from the U.S. Court of Appeals for the Eleventh Circuit’s forthcoming mandate. The announcement indicates the Task Force and the Office of Management and Budget (OMB) will issue “at least three guidance documents . . . following any narrowing of the nationwide injunction,” which it breaks out as follows:<ul><li>Guidance Document #1: OMB will notify Federal agencies about “compliance with applicable injunctions and whether contract clauses implementing EO 14042 should be included in any new solicitations and contracts” (emphasis added).</li><li>Guidance Document #2: The Task Force will begin updating its guidance “regarding COVID-19 safety protocols for covered contractor and subcontractor workplace locations,” including “a timeline for implementation to ensure that covered contractors and subcontractors are able to come into compliance with any COVID-19 safety protocols specified by the Task Force that they are not presently following” (emphases added). The OMB Director will, in turn, review the updated guidance and make a determination regarding whether it promotes economy and efficiency in Federal contracting, which will be published in the Federal Register.</li><li>Guidance Document #3: “If the OMB Director makes such a determination, OMB will provide additional guidance to agencies on timing and considerations for provision of written notice from agencies to contractors regarding enforcement of contract clauses implementing Executive Order 14042, except as barred by any applicable injunctions” (emphases added).</li></ul>The announcement then emphasizes that “Until OMB issues the third guidance document described above, agencies should not: (1) take any steps to require covered contractors and subcontractors to come into compliance with previously issued Task Force guidance; or (2) enforce any contract clauses implementing Executive Order 14042.” The Federal Government’s decision to take a more measured approach is generally consistent with a <a href="https://govcon.mofo.com/topics/nationwide-preliminary-injunction-of-contractor-vaccine-mandate-remains-intact-for-now">recent Government filing</a> in at least one district court case, which is perhaps grounded in a new strategy of ensuring that the implementation of any new guidance follows the requirements of administrative law to a tee should that new guidance be challenged in court.What does this mean for Federal contractors and subcontractors? The mandate is expected to issue tomorrow, October 18, 2022. Once that occurs, Federal contractors and subcontractors should closely monitor the Task Force website and Federal Register for updates from both the Task Force and OMB Director. Although the exact measures and compliance obligations that the Federal Government will choose to implement and enforce remain uncertain, and will likely remain so over the coming weeks or months, what is clear is that the Federal Government will provide a timeline that allows Federal contractors and subcontractors to come into compliance.In the meantime, Federal contractors and subcontractors should take the following prudent actions over the coming months to best prepare for what may come:<ul><li>Carefully evaluate the language of new and forthcoming solicitations, including amendments thereto, to determine whether compliance with EO 14042 is or will be required, and consider submitting questions to agencies about whether the solicitation is covered by EO 14042;*</li><li>Review contract clauses in all newly awarded or soon-to-be awarded contracts and subcontracts for a clause implementing compliance obligations under EO 14042;*</li><li>Track and audit all written communications or other correspondence from Federal agencies and prime contractors regarding EO 14042, including about any implementing contract clauses and agency guidance or memoranda;</li><li>Identify all contracts and subcontracts that presently include a contract clause implementing EO 14042;</li><li>Determine whether those contracts and subcontracts are performed in States covered by a preliminary injunction, recognizing the <a href="https://govcon.mofo.com/topics/patchwork-preliminary-injunctions-interpreting-contractor-compliance-obligations-under-eo-14042.html">patchwork of preliminary injunctions</a> that will soon fully take effect;</li><li>Assess the scope of the preliminary injunction applicable in each such State; and</li><li>Identify what compliance measures your company has already taken or otherwise implemented, including whether an implementing clause has been flowed down to covered subcontracts.</li></ul>*OMB’s directives in Guidance Document #1 will indicate whether these measures are necessary.Out of an abundance of caution, and pending the specific directives in Guidance Document #1, Federal contractors and subcontractors can also assess whether and which <a href="https://www.mofo.com/resources/insights/210910-federal-contractors-businesses-covid-19-vaccines-mandate" target="_self">contracts and subcontracts are subject to Executive Order 14042</a> based on the language of the Executive Order itself (note <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/" target="_blank">Section 5</a> thereof and our previously issued <a href="https://www.mofo.com/resources/insights/211112-untangling-the-vaccine-mandate" target="_self">client alert</a> discussing how requirements can be incorporated into contracts). This extra precautionary measure can help to prepare for the possibility that Federal agencies will incorporate an implementing clause into additional, existing covered Federal contracts, which may subsequently flow down to subcontracts, if the Federal Government ultimately proceeds full steam ahead with enforcing EO 14042.

Executive Order 14042: Return of the Patchwork Preliminary Injunctions

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Joe Palmore co-chairs Morrison Foerster’s Appellate and Supreme Court practice. Chambers USA describes him as “an outstanding oral advocate,” who is “calm, focused, effective and doesn’t back down,” and has “complete command of the facts.” Joe “writes great briefs” (Chambers USA), with one client recounting that “the Court mirrored the language he thoughtfully chose in its ultimate order” (Legal 500).

Joseph R. Palmore

Joseph R. Palmore is co-chair of the firm's Appellate and Supreme Court Practice Group and Managing Partner for the Washington, D.C. office. Before joining Morrison Foerster, Joe was an Assistant to the Solicitor General at the United States Department of Justice and the Deputy General Counsel of the Federal Communications Commission (FCC).

Joseph Palmore

Executive Order 14042: Return of the Patchwork Preliminary Injunctions

On October 14, 2022, the Safer Federal Workforce Task Force (“Task Force”) published yet another update for Federal contractors regarding the Federal Government’s approach to enforcing Executive Order

This month’s Bid Protest Roundup covers three recent U.S. Government Accountability Office (GAO) decisions: a challenge to an agency’s decision to take corrective action, a protest that an agency unfairly ignored a proposal after an offeror disregarded revised instructions, and a successful protest of an agency’s best-value tradeoff determination. The common thread in these cases is the contours of agency discretion and a seasonally-appropriate reminder to heed directions, whether they take the form of solicitation terms or a warning not to venture into the old abandoned cabin in the woods.Citizen Contracting Group, LLC<a href="#_ftn1" target="_self" id="_ftnref1">[1]</a>In Citizen Contracting Group, LLC, the GAO denied an awardee-turned-protester’s attempt to thwart the Department of Veterans Affairs’ decision to take corrective action in response to a disappointed offeror’s agency-level protest. Citizen was one of two offerors who submitted quotations to install electronic locks at a Department of Veterans Affairs medical center. After the agency found the vendors’ quotations equally-rated in the solicitation’s technical capability and past performance evaluation factors, the Government selected Citizen for award as the lowest-priced bidder. The disappointed bidder lodged an agency-level protest, arguing that Citizen lacked the required number of years of experience, as well as the necessary certification to sell, install, and service the particular locks to be provided. The agency reviewed the protest and the procurement record, and determined there were indeed infirmities in the evaluation process. Among other discrepancies, the agency determined the awardee’s quotation had multiple defects, did not conform to solicitation requirements, and consequently should not have received award.  Additionally, a number of inconsistencies were found in the solicitation itself. The agency proceeded to take corrective action and cancelled both the award and the solicitation and decided to re-solicit the requirement following additional market research. Citizen subsequently filed a protest at the GAO, arguing that the agency’s reasons for re-soliciting the requirement was unfounded and that the agency exceeded its authority to terminate for convenience when it cancelled the contract. Citizen also brought allegations of contract steering, improper collusion, and a quid pro quo between the agency and the disappointed bidder. The GAO denied the protest, holding that protester’s failure to possess the required certification alone was a sufficient ground for the agency to cancel the award and take corrective action.  Moreover, neither the protester nor the agency disputed that Citizen lacked a required certification. The defects the agency found in the solicitation included confusing past performance criteria that may have led to receipt of quotations that did not “represent[] the best value to the government.”   GAO also held that the agency’s corrective action to remedy perceived defects were within its broad discretion and dismissed Citizen’s more sensational charges of collusion and quid pro quo as speculative and lacking support in the record. Takeaways: Agencies enjoy broad authority to take corrective action. The GAO will review corrective action by evaluating the award procedures to determine if the award was improper and, if so, whether the corrective action is proper. Here, the agency had enough grounds to take corrective action when determined “that award was not necessarily made on a basis most advantageous to the government.”Challenging an agency’s decision to take corrective action can be tricky. From the outside there may be no way to discover the procurement errors the agency found. There are also customer relations to consider; the challenge questions the agency’s reasoned judgment. One thing a protester can do is review the solicitation and its own proposal to identify any obvious flaws. The odds challenge to corrective action has little chance if the winning proposal was ineligible for award. Here it was possible for the litigant to know that its proposal lacked certifications required by the solicitation by checking the proposal against solicitation requirements. Framaco-Bozdemir JV, LLC<a href="#_ftn2" target="_self" id="_ftnref2">[2]</a>In this next case, failure to follow supplemental proposal instructions led to an agency disregarding a proposal altogether, and serves as another reminder that changes to solicitation instructions must be followed. In Framaco-Bozdemir (“FB”), the GAO denied a post-award protest asserting that the agency unreasonably failed to consider protester’s proposal after the protester failed to follow submission instructions provided by the agency following corrective action.FB was an offeror for a United States Agency for International Development contract to provide design and construction services for the U.S. embassy in Juba, South Sudan. The solicitation provided for a two-phase evaluation process under the design-build procedures in FAR subpart 36.3. Although Framaco-Bozdemir (“FB”) was among the offerors invited to submit a phase two proposal, it was ultimately not selected for award.  FB filed a protest with the GAO, and after the agency agreed to take corrective action, the protest was dismissed as academic. As part of its corrective action, the agency decided to re-evaluate phase two proposals. In a letter dated May 17, 2022, the agency asked FB to submit a revised phase two proposal according to the enclosed submission instructions, which included a new, different email address for proposal submissions.  On June 1, the agency updated its request for a revised phase two proposal. This letter explained that it “replaced” the May 17 letter, and provided amended phase two instructions, an amendment to the RFP, and instructions as to where final proposals should be submitted, which included the email address identified in the May 17 letter.  Two hours before the submission deadline, FB sent its proposal to the e-mail addresses listed in the pre-corrective action phase two instructions from the original solicitation, rather than the e-mail address in the May 17 or June 1 letter. An hour after the submission deadline, the contracting officer found FB’s e-mailed proposal, and forwarded it to the correct e-mail address. The agency later notified FB that it was eliminated from consideration because FB failed to deliver its proposal to the correct e-mail address, did not include a required schedule, and did not meet formatting requirements. FB lodged another protest at the GAO, alleging the agency’s decision to eliminate it from the competition was unreasonable. Specifically, FB argued that the June 1 instructions were not binding because they were not a formal amendment to the solicitation, and that it therefore complied with the submission requirements.  GAO denied this protest ground, finding that the solicitation “detailed that phase two submission instructions would be provided at a later date,” which in this case took the form of the cover letter’s directions.  Thus, the solicitation was clear that separate submission instructions would be provided for phase two, and the cover letters provided those instructions.  The GAO went further, pointing out that even if the submission instructions in the cover letter were not binding, FB submitted its phase two proposal using the procedures for phase one proposals. Therefore, FB could not claim it merely used an appropriate submission procedure provided by the solicitation. And even if FB contended that the solicitation was defective for failing to provide submission instructions, that would constitute an untimely challenge to a patent ambiguity.The GAO also distinguished two cases in which the GAO determined proposal submissions were not late. The first, AECOM Tech. Services, B-411862, Nov. 12, 2015, 2015 CPD ¶ 353, concerned a proposal that was uploaded to the wrong section of the government system dedicated to receive the proposals. The GAO pointed out its decision was based on specific factors, which included that the agency was contemporaneously aware of the proposal’s submission, and that the agency intended to make multiple awards, so no competitor could claim it was harmed by accepting the proposal. Here, however, the agency was unaware of the proposal until after the deadline.  In the second case, Abt Assocs. Inc., B-226063, May 14, 1987, 87-1 CPD ¶ 513, the GAO determined a proposal should not have been rejected because the solicitation required filing the proposal at two locations, but the offeror timely filed at just one. The GAO held that the agency timely received a complete proposal by the deadline, therefore submission to the other location was a minor informality. Here, FB did not provide a proposal by the deadline. Takeaways:Submit proposals on time and to the right place, and if proposal submission instructions are vague or ambiguous, they should be clarified or challenged promptly. Offerors should be clear where, when, and how to submit their proposals well before they are due. The GAO will not widen the aperture for late submissions when it is clear adequate procedures have been provided to offerors. The instances in which the GAO has ruled proposals were unfairly discarded involve instances in which the agencies received—and knew they had received—proposals before the submission deadline. Finally, directions are important, even if the “just” appear in a letter instead of a formal amendment.WHR Group, Inc.<a href="#_ftn3" target="_self" id="_ftnref3">[3]</a>WHR Group involves a successful protest of an agency’s decision to stray from solicitation criteria in its technical evaluation and best-value tradeoff determination. The agency failed to follow the ratings scheme in the RFQ, mechanically relied on those unreasonable ratings, and essentially converted a best-value procurement into a lowest-price technically acceptable procurement.WHR Group (“WHR”) was one of six vendors holding GSA multiple-award contracts that competed for a Department of Justice solicitation to provide relocation services to assist FBI employees.  The RFQ provided that the award would be made on a best-value tradeoff basis, considering three factors: technical approach, past performance, and price. Technical approach was more important than past performance, which was, in turn, more important than price. Relevant here, the RFQ provided that strengths could be assigned if an aspect of the offer exceeded specified performance or capabilities in a way advantageous to the Government. At the conclusion of the evaluation process, the source selection authority determined that, because there were “similarities between vendors for non-price factors,” award would be made to the three lowest-priced offers.  WHR filed a protest at the GAO, contending (among other issues) that the agency unfairly evaluated its technical proposal and conducted a flawed best-value tradeoff that converted the best-value tradeoff into a lowest-priced technically acceptable procurement. WHR contended that the agency unfairly evaluated its technical approach by irrationally assigning its quote an “acceptable” rating, rather than an “outstanding” rating, after assessing eight strengths and zero weaknesses to its quote.  WHR’s technical proposal received eight strengths with no offsetting weaknesses and evaluators determined it showed a “clear understanding” of requirements, included “several capabilities that exceed” requirements, and posed only a “low to moderate” risk of unsuccessful performance. The RFQ defined an “acceptable” as “meet[ing] requirements and indicat[ing] [an] adequate approach and understanding of the requirements. Strengths and weaknesses are offsetting or will have little or no impact on contract performance. The risk of unsuccessful performance is low to moderate.” An outstanding technical approach, by contrast, would “exceed[] requirements and indicate[ an] exceptional approach and understanding of the requirements.  Strengths far outweigh any weaknesses.  Risk of unsuccessful performance is very low.” The GAO agreed with the protester, finding that the assigned adjectival rating was unreasonable and inconsistent with the RFQ.   The GAO also found that WHR was prejudiced by the agency’s best-value trade-off determination, which deviated from the RFQ’s evaluation scheme.  By determining that all awards were essentially the same, the SSA improperly increased the relative importance of price and improperly decreased the importance of the technical approach and past performance factors.  The SSA also failed to explain why it considered the offers substantively similar, noting one offer received an “outstanding” rating for technical approach. The GAO concluded that the SSA approached the best-value determination based on the assigned adjectival ratings and failed to “explain why . . . the additional benefits associated with WHR’s quotation was not worth the higher cost.”  GAO found the agency’s best-value decision was “unreasonable, inconsistent, and prejudicial to WHR” because it conducted the best-value determination presuming there was little difference between the proposals. The agency also did not to articulate why the benefits in higher-rated proposals were not worth the higher cost. Takeaways:Although agencies are afforded considerable discretion in assigning evaluation ratings to offerors’ quotations, they are bound by the stated requirements and evaluation scheme provided in the RFQ. It is difficult to prevail on a claim the agency conferred an unfairly low rating; however, if there are clear, unexplained inconsistencies between solicitation criteria and the rating assigned, it can be grounds for the GAO to sustain a protest. The RFQ’s definition of an “acceptable” technical proposal provided that “[s]trengths and weaknesses are offsetting or will have little or no impact on contract performance[,]” while the “outstanding” rating was defined as a proposal in which “strengths far outweigh weaknesses.” Here, WHR received eight strengths and no offsetting weaknesses. Because this did not jibe with the RFQ criteria, and the agency provided no explanation for doing so, the GAO found the rating unreasonable. The larger error, however, was the agency’s overreliance on adjectival ratings. Instead of meaningfully evaluating the proposals, the agency simply looked at the ratings and determined they were all the same, without examining the merits of the competing proposals.The GAO will also sustain a protest when an agency converts a best-value tradeoff into a lowest price technically acceptable procurement. Here, the agency cast aside the weights the RFQ assigned to the technical and past performance factors. In doing so, the agency improperly altered the importance of the factors. <a href="#_ftnref1" target="_self" id="_ftn1">[1]</a> Citizen Contracting Grp., LLC, B-420810, 2022 WL 4181650 (Sept. 13, 2022).<a href="#_ftnref2" target="_self" id="_ftn2">[2]</a> Framaco-Bozdemir JV, LLC, B-420708.2, 2022 WL 4017289 (Aug. 29, 2022).<a href="#_ftnref3" target="_self" id="_ftn3">[3]</a> WHR Grp., Inc., B-420776, 2022 WL 4225383 (Aug. 30, 2022).

September 2022 Bid Protest Roundup: Challenges to Corrective Action; Discarded Proposals, and Best Value Determinations

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September 2022 Bid Protest Roundup: Challenges to Corrective Action; Discarded Proposals, and Best Value Determinations

GAO Finds CIO-SP4 Solicitation Is Unduly Restrictive of Competition

This month’s Bid Protest Roundup covers three recent U.S. Government Accountability Office (GAO) decisions: a challenge to an agency’s decision to take corrective action, a protest that an agency unfairly 