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.

J. Alex Ward

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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

Lawyers for the U.S. government and challengers to the federal contractor vaccine mandate both faced tough questions from an Eleventh Circuit panel in Atlanta, Georgia on Friday, April 8, 2022.  The appeal from the Southern District of Georgia’s decision preliminarily enjoining Executive Order 14042 late last year primarily <a href="https://govcon.mofo.com/coronavirus/a-second-look-parties-spar-over-vaccine-mandate-in-eleventh-circuit-appeal-from-eo-14042-injunction/" target="_blank">raises questions</a> about the President’s authority under the Federal Property and Administrative Services Act (often referred to as the Procurement Act), whether plaintiffs had established the requirements for preliminary injunctive relief, and whether the <a href="https://www.mofo.com/resources/insights/220124-nationwide-preliminary-injunction.html">nationwide preliminary injunction</a> issued by the district court was overbroad.  Argument lasted nearly an hour, with Judges Britt C. Grant, J.L. Edmondson, and R. Lanier Anderson III giving each side 25 minutes to both present their case and answer the appellate court’s questions.Early on, Judge Edmonson pressed the government on the standard of review.  Noting that he thought it was a “hard” case, Judge Edmonson said he “wouldn’t be surprised at the end of the day if” either side ultimately prevailed.  But it was that uncertainty, he said, that made it difficult for him to conclude that the district court had abused its discretion.  “It’s not plain to me that your side is right,” Judge Edmonson told the government, “and I think that that’s enough to say that there’s been no abuse of discretion.”  The government pushed back that any error of law is an abuse of discretion, however, and argued that there should be no special deference in reviewing the purely legal question of the President’s authority under the Procurement Act.Judge Anderson, meanwhile, expressed some skepticism about the challengers’ likelihood of success on the merits.  “It makes common sense and is consistent with common experience, that if you’re not vaccinated there’s a much greater chance that you’re going to get sick and delay the work,” Judge Anderson said.  And he expressed the view that Executive Order 14042 is consistent with previous executive orders that courts had deemed lawful exercises of authority under the Procurement Act.  “I see no expansion of regulatory authority here,” Judge Anderson said.On the other hand, one potential sticking point for the court was the health component of Executive Order 14042, which the court pressed the parties to address.  The government argued that the executive order is a directive to agencies, akin to a quality control standard, and does not require modification of existing contracts.  The government further noted that fears of a mass exodus of employees over the vaccine mandate have proven largely unfounded.  Meanwhile, the challengers focused on their position that Executive Order 14042 is not related to the economy and efficiency of federal contracting, as the Procurement Act requires.  And they pointed to the absence of evidentiary data from the government to support the notion that the absence of a vaccination requirement would harm federal procurements.The panel also pushed counsel for the challengers about the scope of the preliminary injunction.  Judge Grant observed that the justification for nationwide relief provided in the district court was “rather thin.”  And Judge Edmonson expressed his concern that the injunction applied even to those federal contractors who “affirmatively don’t want the relief.”  Counsel for the challenger States pointed out that it would be “really complicated and difficult to understand how this was supposed to work if it didn’t apply to everyone.”  And counsel for challenger Associated Builders and Contractors, Inc., told the panel that nationwide relief was appropriate because it has members in every State.The Eleventh Circuit is the first court of appeals to receive full briefing and to hear oral argument in a <a href="https://govcon.mofo.com/coronavirus/patchwork-preliminary-injunctions-interpreting-contractor-compliance-obligations-under-eo-14042/">series of cases across the country</a> challenging the Biden administration’s efforts to impose vaccine requirements on federal contractors.  Appeals remain pending in several other circuits, including the Ninth, where the government filed a notice of appeal on April 8, 2022, from a preliminary injunction issued by an Arizona district court earlier this year.  As always, we will continue to monitor and provide updates on these cases as they develop.

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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

IAP Worldwide Servs., Inc.

Flight Support, Inc.

DynCorp Int’l LLC

Raytheon Co.

DynCorp International, LLC v. United States

URS Federal Servs., Inc.

DynCorp International, LLC

Planned Sys. Int’l, Inc.

Threat Mgmt. Group, LLC

Vencore Servs. & Solutions, Inc.

Jacobs Tech., Inc.

Cubic, Inc.

American Institutes for Research v. State of New Mexico

CACI-WGI, Inc.

Fluor Intercontinental, Inc. v. IAP Worldwide Servs., Inc.

IAP World Servs., Inc.

Size Appeal of IAP World Servs., Inc.

Al-Ghanim v. IAP Worldwide Servs., Inc.

O’Gara Training & Servs., LLC

IAP Worldwide Servs., Inc. v. Johnson Controls, Inc.

AAR Mobility Sys.

Matt Martin Real Estate Mgm’t, LLC v. United States

Pyramid Real Estate Servs., LLC v. United States

Harrington, Moran, Barksdale, Inc.

Homesource Real Estate Asset Servs., Inc. v. United States

Ocean Ships, Inc.

Keystone Sealift Servs., Inc.

ITT Corp., Sys. Div.

IAP Worldwide Servs., Inc. v. Fluor Intercontinental, Inc.

FedSys, Inc.

Academy Facilities Mgm’t v. United States

Academy Facilities Management -- Advisory Opinion

Evans Security Solutions, Inc.

Contingency Mgm’t Group, LLC and IAP Worldwide Servs., Inc.

Kellogg Brown & Root Services, Inc.

Liberty Power Corp.

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

J. Ward

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Eleventh Circuit Hears Oral Argument in EO 14042 Preliminary Injunction Appeal

Five Peculiarities of Protests of Federal Supply Schedule Orders

Lawyers for the U.S. government and challengers to the federal contractor vaccine mandate both faced tough questions from an Eleventh Circuit panel in Atlanta, 

Eleventh Circuit Hears Oral Argument in EO 14042 Preliminary Injunction Appeal

Regulatory action around sustainable procurement and climate change continues to heat up. A recent Federal Acquisition Regulation (FAR) case on Sustainable Procurement takes another step towards implementing the Biden administration’s ambitious vision of leveraging federal procurement to confront the climate crisis. FAR case 2022-006 will implement portions of Executive Order (E.O.) 14057, on Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, and OMB Memorandum (“OMB Memo”) M-22-06 on procuring of sustainable products and services. The FAR case will reorganize FAR Part 23 on Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace for consistency and clarity. The FAR case will also update the definition of a “biobased product” in agency affirmative procurement programs. A report on the draft proposed rule is due on May 18, 2022. Additional guidance from the Council on Environmental Quality (CEQ) is expected shortly and may set off a further round of FAR cases.Here is the essential context:<ul><li>Two FAR Cases Opened Last Year: The latest climate-related FAR case joins two open FAR cases from last year, which propose to implement different sections of E.O. 14030 on Climate-Related Financial Risk. FAR case 2021-015 anticipates implementing section 5(b)(i) of the E.O., directing the FAR Council to consider amending the FAR to require major federal suppliers to publicly disclose greenhouse gas emissions and climate-related financial risk while setting science-based reduction targets. A draft proposed rule is slated for internal FAR Council discussion on April 13, 2022. FAR case 2021-016 anticipates implementing section 5(b)(ii) of the E.O., and directs the FAR Council to consider amending the FAR to ensure that major agency procurements minimize the risk of climate change. An internal report on a draft proposed rule is due to the Defense Acquisition Regulations Council (DARC) on April 13, 2022.</li></ul><ul><li>E.O. 14057 Establishes Seven Sustainability Goals: To put the nation on a path to net-zero emissions by 2050, E.O. 14057 establishes seven government-wide goals. The goals are: (1) 100 percent carbon pollution-free electricity by 2030; (2) 100 percent zero-emission vehicle acquisitions by 2035; (3) a net-zero emissions building portfolio by 2045; (4) a 65 percent reduction in scope 1 and 2 greenhouse gas emissions; (5) net-zero emissions from federal procurement; (6) climate-resilient infrastructure and operations; and (7) a climate- and sustainability-focused federal workforce.</li></ul><ul><li>Lifecycle Costing & Emission Tracking: E.O. 14057 directs agencies to prioritize reused, refurbished, or recycled products; maximize cost-savings through full lifecycle cost methodologies; purchase products that contain recycled content, are biobased, or are energy- and water-efficient; and purchase EPA-identified or -recommended sustainable products and services to the maximum extent practical. The E.O. also directs agencies to pursue procurement strategies to reduce contractor emissions and embodied emissions in products acquired or used in federal projects, and tasked the General Service Administration with tracking greenhouse gas emissions by major federal suppliers.</li></ul><ul><li>OMB Guidance on Agency Targets and Third-Party Standards: OMB Memo M-22-06, which accompanies E.O. 14057, directs agencies on immediate actions and further requirements needed to comply with the E.O. In addition to guidance on establishing agency targets, the OMB Memo instructs the FAR Council to leverage existing third-party standards and systems in developing regulatory amendments. The OMB memo echoes the E.O. in stating that further “implementing instructions” and “recommended actions” will be issued by CEQ within 120 days of the E.O.’s issuance. That deadline is now at hand.</li></ul>We will continue to monitor sustainable procurement developments affecting the government contractor as they unfold.

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Associate

Markus Speidel is an associate in Morrison & Foerster’s Government Contracts & Public Procurement group, in Washington, D.C. Markus assists clients across a wide range of contract matters, including contract claims and disputes, bid protests, compliance counseling, and investigations.

Markus Gerhard Speidel

Markus Speidel

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Sustainable Procurement FAR Case to Clarify FAR Part 23

New DCMA Defective Pricing Pilot Team Will Possess Audit Resolution Authority

Regulatory action around sustainable procurement and climate change continues to heat up. A recent Federal Acquisition Regulation (FAR) case on Sustainable Proc

Sustainable Procurement FAR Case to Clarify FAR Part 23

This month’s Bid Protest Roundup covers two recent Government Accountability Office (GAO) decisions and a decision from the Court of Federal Claims. All involve defense procurements, but each offers a unique lesson for offerors and government procurement professionals. This Roundup features a protester that fell victim to a timeliness trap by postponing debriefing, an unsuccessful challenge to an agency’s organizational conflict of interest (OCI) determinations, and an agency’s defeat due to an inadequately documented past performance evaluation.<h3>Battelle Memorial Institute</h3>In Battelle Memorial Institute,<a href="#_ftn1" name="_ftnref1" id="_ftnref1">[1]</a> the GAO dismissed as untimely a challenge to a Navy assessment of the protester’s qualifications in its response to an architectural and engineering (A/E) procurement conducted under Federal Acquisition Regulation (FAR) subpart 36.6.In an A/E procurement, the FAR directs agencies to issue a “synopsis” to which interested firms respond by submitting their qualifications using Standard Form 330 (“SF 330”). An agency evaluation board reviews offerors’ SF 330s and prepares a report recommending at least three firms that the board considers the most highly qualified. A source selection authority then reviews the board’s report and creates a ranked list of firms, called a “final selection.” The final selection both authorizes the contractor to begin negotiations and specifies, in order, the firms with which the contracting officer may negotiate a contract. The contracting officer begins negotiations with the most qualified firm and, if negotiations fail, proceeds down the list until an agreement is reached.The Navy issued a synopsis for a five-year, $100 million indefinite delivery/indefinite quantity (IDIQ) contract. Five firms, including Battelle, responded. The review board evaluated the firms and selected Geosyntec Jacobs as the most qualified. The Navy informed the other offerors of the results, and gave unsuccessful offerors the choice of either a pre-award briefing or post-award debriefing. Initially, Battelle requested a pre-award briefing, but two days later changed its request to a post-award debriefing. More than six months later, on November 30, 2021, the Navy awarded the contract to Geosyntec Jacobs; Battelle learned of the award the following day. Battelle received its post-award debriefing on December 9, 2021, then filed a protest with the GAO on December 10, arguing that the Navy’s evaluation of its SF 330 was unreasonable and that Battelle should have been selected as the most highly qualified firm.The Navy requested dismissal of the protest as untimely because Battelle did not request a pre-award debriefing. The Navy argued that, by selecting a post-award debriefing, Battelle failed to diligently pursue its protest grounds, which would have been discovered in the pre-award debriefing. In the Navy’s estimation, Battelle’s arguments were based on information it would have received if it elected to receive a pre-award debriefing. The GAO agreed.The GAO emphasized that its timeliness requirements sprang from “the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process.”<a href="#_ftn2" name="_ftnref2" id="_ftnref2">[2]</a> The GAO related this timeliness requirement to those for challenging improprieties in solicitations, which must be asserted before receipt of proposals, or within 10 days after the basis for a protest is known or should have been known. The resulting timeliness trap is similar to the timeliness trap that may accompany a competitive range determination.<a href="#_ftn3" name="_ftnref3" id="_ftnref3">[3]</a> If excluded from the competitive range, an offeror may request a debriefing, which the agency is obliged to provide; the offeror may, however, choose either a pre-award or post-award debriefing. The GAO has held that an offeror’s choice of a post-award debriefing waives future challenges of an agency’s competitive range determination.<a href="#_ftn4" name="_ftnref4" id="_ftnref4">[4]</a>TakeawaysDisappointed offerors must pay close attention to each instance in which a debriefing is required or offered as a matter of right. In choosing to delay a debriefing, an offeror may waive certain protest grounds. This is true not only in A/E procurements, but also with respect to exclusions from a competitive range under FAR part 15 negotiated procurements.<h3>Trident Technologies</h3>Organizational conflicts of interest (OCIs) are a perennial concern for offerors. A protest may be sustained if a protester can demonstrate the existence of an OCI through “hard facts” or by proving that an agency failed to consider relevant factors and reach a rational decision in response to an OCI allegation.In Trident Technologies,<a href="#_ftn5" name="_ftnref5" id="_ftnref5">[5]</a> Trident Technologies (“Trident”) filed a bid protest at the Court of Federal Claims (COFC) challenging the Missile Defense Agency’s (MDA) award of a contract for infrastructure, operations and maintenance, and cybersecurity engineering support to DTechLogic, LLC. Trident argued, among other grounds, that the award should be set aside because the MDA failed to investigate or mitigate alleged OCIs.<a href="#_ftn6" name="_ftnref6" id="_ftnref6">[6]</a> Trident alleged six OCIs, three for impaired objectivity and three for unequal access to information.The solicitation contained numerous provisions regarding OCIs. These included extensive disclosure requirements and disclosure forms, such as requirements that offerors identify their MDA-funded contracts and subcontracts as well as non-MDA-related business relationships with firms that independently do business with MDA. The solicitation also directed offerors to update their OCI assessments in the event of any changes. Finally, the solicitation incorporated the MDA’s OCI policy memorandum, which provides that “contractors which provide advisory and assistance services to the Agency, particularly in the engineering, acquisition support, and quality functional areas, cannot develop or support the development of the Agency’s research and development (R&D) efforts.”Initial proposals were received in October 2018. During the evaluation process, the agency reviewed DTechLogic’s OCI statements and documented its findings. The MDA was unable to determine whether an OCI arose from some of DTechLogic’s prior work for the Army; MDA contacted the Army for more information. The Army responded that there were potential OCI concerns because of the nature and scope of DTechLogic’s work. The MDA program manager received a copy of the scope of work from the Army, but concluded that, although the efforts were similar, the alleged conflicts did not give an unfair advantage to DTechLogic. Ultimately, the MDA selected DTechLogic for the award.Following the award, Trident and another disappointed offeror filed a protest at the GAO alleging (among other grounds) that the MDA failed to recognize OCIs apparent in DTechLogic’s proposal. The agency announced it would take corrective action, and the GAO dismissed the protest as academic.The corrective action included a review of the potential OCIs raised at the GAO. The MDA requested and received information from DTechLogic about one of its subcontractors and a joint venture member. The agency found a potential impaired objectivity OCI for the subcontractor, and, following discussions, DTechLogic removed the subcontractor from its proposed team. The agency investigated the joint venture member and another subcontractor, and verified the information DTechLogic provided. The MDA also convened internal OCI review panels and documented the findings of each investigation.After the agency again awarded the contract to DTechLogic, Trident filed a protest at the COFC, alleging six OCIs of two different types: impaired objectivity and unequal access to information. Trident alleged the MDA failed to properly investigate these circumstances to determine whether such an OCI existed.The agency countered that it had considered each impaired objectivity OCI that Trident alleged, and had created a reasonable mitigation plan that considered all relevant factors necessary to support its determination. The MDA also countered that it, not the contractor, would conduct and direct the relevant tests, and the contractor would have no role in designing or running the tests, thus eliminating any impaired objectivity concerns. Finally, the agency contended that Trident’s unequal access to information allegations were speculative, and lacked facts necessary to prove Trident’s claims or identify what competitively advantageous information DTechLogic supposedly derived from its prior contracts.The court found the contracting officer had addressed each OCI plaintiff alleged in its investigation, and created a reasonable mitigation plan fitting the circumstances. Trident’s allegations amounted to mere disagreement with the contracting officer’s conclusions. The court maintained that it would not find an OCI based upon inferences or suspicions, and found that Trident did not advance sufficient “hard facts” to show there was an OCI or explain how the approved mitigation plan was unreasonable or inadequate.TakeawaysA court will provide substantial deference to a contracting officer’s OCI determination. To mount an effective challenge, a protester needs to bring “hard facts” showing that the agency failed to consider an important factor, or that its mitigation plan is fundamentally flawed. Absent “hard facts” demonstrating an OCI, a court will likely find that the allegation is speculative or a mere disagreement with the agency’s determination. Firms that have potential or actual OCIs should work closely with the contracting officer to ensure the circumstances and mitigation plan are well-documented, and support a reasonable determination entitled to the deference that the MDA received in Trident.<h3>Starlight Corporation</h3>The GAO has little patience for agencies that fail to document evaluations. If a protester discovers that key evaluation determinations lack adequate documentation, this can be fertile ground for a supplemental protest. In Starlight Corporation,<a href="#_ftn7" name="_ftnref7" id="_ftnref7">[7]</a>the GAO sustained a challenge to a past performance evaluation, finding that the Air Force failed to adequately document its findings.Starlight protested the award of a contract for the servicing of Air Force transport aircraft at Dover Air Force Base on the grounds that the agency conducted an unreasonable past performance evaluation. The solicitation called for the award of a single contract as a small business set-aside pursuant to FAR Part 15. The evaluation procedures set forth in the solicitation indicated that technically acceptable offers would be evaluated for past performance and price, and that a tradeoff would be made between past performance and price, with past performance being significantly more important than price. The past performance evaluation examined the recency, relevance, and quality of past performance in the offerors’ proposals and past performance information that the agency obtained through other sources.Starlight and four other offerors submitted proposals. The Air Force determined that only one offeror, Empire Aircraft Services (Empire), had submitted a technically acceptable proposal and awarded the contract to it after determining its price was fair and reasonable. Starlight protested at the GAO, prompting the Air Force to take corrective action that resulted in dismissal of the protest. The Air Force then determined that all four offerors were in the competitive range, opened discussions, and requested and received final proposal revisions (FPRs).The agency assigned Starlight a past performance rating of “Satisfactory Confidence,” while Empire received a rating of “Substantial Confidence.” Although Starlight proposed a lower price, the Air Force concluded that Empire’s superior past performance was worth the price premium and again awarded the contract to Empire.Starlight filed another protest at the GAO, arguing that the agency failed to properly consider both its and Empire’s past performance and that it had conducted a flawed best-value determination. Although the Air Force found Empire’s past performance relevant, Starlight pointed to the lack of documentation regarding this relevancy determination. Without these records, Starlight contended, the Air Force could not show that it considered the scope, complexity, dollar value, or extent of subcontracting or teaming of Empire’s past performance as required by the solicitation. Starlight asserted that this made the relevancy determination unreasonable, rendering the past performance rating unreasonable as well. Starlight also alleged that the Air Force unfairly assigned low scores to its past performance questionnaires (PPQs), assigning “Satisfactory” scores despite the references’ overall exceptional ratings.The GAO observed that, although evaluation of past performance is generally within an agency’s discretion, it will question that evaluation if it is unreasonable or undocumented. In such circumstances, the agency bears the risk that the GAO may be unable to conclude there was a reasonable basis for the results of the agency’s evaluation.The GAO determined that there was not enough documentation to conclude that the Air Force’s evaluation of Empire’s past performance was reasonable. The only record indicating that the Air Force evaluated the relevancy of past performance at all was a table in the Source Selection Evaluation Board (SSEB) report providing a past performance relevancy score for each offeror. There was no documentation of the relevance of the previously performed contracts to the solicitation requirements or rationale for the relevancy ratings that the Air Force assigned.<a href="#_ftn8" name="_ftnref8" id="_ftnref8">[8]</a>The Air Force contended that nothing prohibits an agency from assessing relevancy with a “binary assessment.” The GAO was not persuaded, however, and pointed out that while there was no prohibition on assigning a binary assessment, evaluations must be sufficiently documented to permit review of the agency’s conclusions. A lack of supporting information prevents the GAO from finding a reasonable basis for the agency’s evaluation.The GAO also found that Starlight was prejudiced by the Air Force’s review of its PPQs. The solicitation required offerors to submit PPQs for their past performance references. The PPQ form requested a narrative explanation for marginal or unsatisfactory ratings, in the event cure or show cause notices were received, or where the reference indicated that the evaluator would not make another award to the company. The SSEB report showed that evaluators relied on these narratives to support confidence ratings.In one PPQ, Starlight received a rating of “Exceptional” and “Good,” and the reference attached no comments. The SSEB, citing the lack of additional comments, downgraded that rating to “Satisfactory.” In another PPQ, Starlight received an “Exceptional” rating but the SSEB determined the comments only showed Starlight met requirements, and it downgraded the score to “Satisfactory” as well. The GAO did not object to the second downgrade even though the RFP did not inform offerors that the agency would rely on narratives. The GAO ruled that it was not unreasonable for the Air Force to place greater emphasis on the comments than on the adjectival rating. In the first PPQ, however, there was no inconsistency between the ratings and the narrative—in fact, there was no narrative at all—yet the Air Force still downgraded the PPQ’s “Exceptional” rating to “Satisfactory.” The PPQ form did not require remarks for ratings of “Exceptional” or “Good,” thus the GAO found that the Air Force had improperly downgraded that rating.TakeawaysThe GAO will sustain a protest where a lack of documentation renders it unable to find a reasonable basis for the agency’s decision. The cursory documentation of the results in the SSEB report were not enough to demonstrate that the evaluators considered the past performance relevance factors provided in the solicitation.Additionally, agencies must ensure consistency in their forms and solicitations, which may be drafted independently of each other. The evaluators treated the remarks sections of PPQs in a very different way than was described on the form itself, and offerors received no notice that the agency would weigh narrative comments more heavily than adjectival ratings. Procuring agencies should carefully consider whether there may be conflicting instructions between the solicitations they write and the standardized forms they use.<a href="#_ftnref1" name="_ftn1" id="_ftn1">[1]</a> B-420403, Mar. 10, 2022, 2022 CPD ¶ _____; 2022 WL 808145.<a href="#_ftnref2" name="_ftn2" id="_ftn2">[2]</a> Citing United Int’l Investigative Servs., Inc., B‑286327, Oct. 25, 2000, 2000 CPD ¶ 173 at 4.<a href="#_ftnref3" name="_ftn3" id="_ftn3">[3]</a> VMD Systems Integrators, Inc., B-412729, Mar. 14, 2016, 2016 CPD ¶ 88.<a href="#_ftnref4" name="_ftn4" id="_ftn4">[4]</a> Id.<a href="#_ftnref5" name="_ftn5" id="_ftn5">[5]</a> Trident Techs., LLC v. United States, No. 21-2035C, 2022 WL 600261 (Fed. Cl. Mar. 1, 2022).<a href="#_ftnref6" name="_ftn6" id="_ftn6">[6]</a> OCIs can take different forms. Relevant here are the impaired objectivity OCI and unequal access to information OCI. Impaired objectivity OCIs occur when a contractor is applying its judgment or providing advice, but its interests could be affected by the judgment or advice it provides to the government. This can occur if a company is placed in a position where it will examine the performance of itself, an affiliate, or a competitor. The issue is not whether biased advice is provided, but whether a reasonable person would find the company could have been impaired. Unequal access to information occurs when a contractor (or one of its subcontractors or a member of its performance team) has access to non-public information that could provide a competitive advantage relative to other contractors. An OCI may be found if the contractor has access to the information, and actual use of the information does not have to be shown.<a href="#_ftnref7" name="_ftn7" id="_ftn7">[7]</a> B-420267.3, Mar. 14, 2022, 2022 CPD ¶ _____; 2022 WL 912078<a href="#_ftnref8" name="_ftn8" id="_ftn8">[8]</a> The GAO also noted that the Air Force failed to document its tradeoff analysis. Although the Air Force stated that it conducted a tradeoff between price and past performance, the GAO found no supporting analysis in the record.

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March 2022 Bid Protest Roundup: Delayed Debriefings, Conflicts of Interest, and Insufficient Documentation

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March 2022 Bid Protest Roundup: Delayed Debriefings, Conflicts of Interest, and Insufficient Documentation