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.

Social

Search

GAO Protest Timeline

govcon-gao-protest-timeline-thumb.jpg

Govcon GAO Post Award Protest Timeline Article

Contract Disputes Act Claim Timeline

govcon-contract-disputes-timeline-thumb.jpg

The Bayh-Dole Act

govcon-bayhdole-thumb.jpg

Anatomy of a Protest

govcon-federalclaimsprotest-thumb.jpg

Allowability of Legal Costs

govcon-allowabilityoflegalcosts-thumb.jpg

Procurement Integrity Act

240715-procurement-integrity-act-resized.jpg

Govcon-Resources

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>

reynolds_tina_blog_150x150.png

reynolds_tina_common_640x280.jpg

reynolds_tina_heroretina_2700x1160.jpg

reynolds_tina_mobileretina_750x1040.jpg

reynolds_tina_social_600x600.jpg

Partner

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.

tucker_james_blog_150x150.png

tucker_james_common_640x280.jpg

tucker_james_heroretina_2700x1160.jpg

tucker_james_mobileretina_750x1040.jpg

tucker_james_social_600x600.jpg

Of Counsel

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.

ward_alex_blog_150x150.png

ward_alex_common_640x280.jpg

ward_alex_heroretina_2700x1160.jpg

ward_alex_mobileretina_750x1040.jpg

ward_alex_social_600x600.jpg

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

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

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.

Brad is a partner in Morrison Foerster’s Litigation Department, Managing Partner of the Austin office, and Chair of the firm’s Israel practice. He is the former Co-Chair of the firm’s Global Litigation Practice and the Government Contracts + Public Procurement Practice.

Bradley Wine

gov-con-feature-image-thumb1.jpg

Welcome to the Government Contracts Insights Blog

Welcome to the Government Contracts Insights Blog

gov-con-feature-image_(1)1.jpg

The United States Capitol building

Morrison Foerster’s Government Contracts Insights blog provides an in-depth analysis of news, developments, and trends impacting government contracting and proc

Announcements & Press

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

Looks behind the headlines to explore the trends, identify the opportunities, analyze the issues, and provide guidance for science and technology-based companies.

MoFo Tech

Mofo Tech

News and thought leadership from lawyers who are adding value to the legal profession and the communities we call home.

  External-Link

MoFo + Blog

Mofo+

Stay on top of emerging issues and stay informed of developments related to the law and business of social media.

Socially Aware

Our Government Contracts Insights blog provides in-depth analysis of developments and trends impacting U.S. government contracting and non-U.S. public procureme

Government Contracts Insights

  Linkedin

MoFo LinkedIN

Blog - Govcon RSS

Stay Connected

Never miss a post from Government Contracts Insights. Enter your email below to stay up-to-date.

Subscribe

The latest updates and analysis from Morrison Foerster

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

Acquisition Regulations

Artificial Intelligence + Robotics

Compliance

Coronavirus

Cybersecurity & Data Privacy

Data Rights

Defense

Domestic Preferences

False Claims Act

Federal Procurement

Foreign Corrupt Practices Act

Grants

Health Care

Intellectual Property

International Public Procurement

Labor & Employment

Mergers & Acquisitions

National Security

Protests & Litigation

Resources

Schedule Contracting

Small Business

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

More

James A. Tucker

SHARE IT Act Requires Agencies to Share Custom-Developed Source Code Throughout the Government

FAR Council Withdraws “Pay Equity and Transparency” Proposed Rule

FY25 NDAA: Promoting Nontraditional Acquisition While Securing the Supply Chain, and More

Enforcing New Recertification Rules: Changes to SBA’s Size Protest Regulations

Shoot First, Ask Questions Later: Final Rule Keeps FAR’s Inconsistent Treatment of Proposed Debarments

In fiscal year 2019, federal agencies awarded $132.9 billion in contracts to small businesses. This is a reflection of policy goals, as Congress and federal agencies have long worked to provide business opportunities to small business concerns through federal contracts and subcontracts. The Federal Government does this through specialized small business contracting programs, some of which are further targeted to assist specific subgroups—women, veterans, the economically disadvantaged—that the Government wants to support through its procurement practices.The process of qualifying for these small business contract programs and of obtaining contracts reserved for small businesses can be somewhat complex. A maze of rules, including the Federal Acquisition Regulation (FAR), FAR contract clauses, and Small Business Administration (SBA) regulations and decisions, as well as SBA standard operating procedures and informal guidance are involved.Morrison & Foerster co-chair and partner Tina Reynolds, along with associate Victoria Dalcourt Angle and law clerk Roke Iko, has written a Briefing Paper, published by Thomson Reuters, that is designed to help the reader understand the small business contracting process and to become familiar with specific small business programs. In addition, the article will provide a brief overview of some of the regulatory issues small businesses must navigate and highlight the benefits (and potential downsides) of small business contracting.

Tina is a partner in Morrison & Foerster’s Government Contracts practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmace

Tina Reynolds

angle_victoria_blog_150x150.png

angle_victoria_common_640x280.jpg

angle_victoria_heroretina_2700x1160.jpg

angle_victoria_mobileretina_750x1040.jpg

angle_victoria_social_600x600.jpg

Associate

Tori Dalcourt Angle is an associate in the Government Contracts practice in Morrison Foerster’s Washington, D.C. office.
Tori advises clients on various government contract matters, including both pre

Victoria Dalcourt Angle

Victoria Angle

iko_roke_blog_150x150.png

iko_roke_common_640x280.jpg

iko_roke_heroretina_2700x1160.jpg

iko_roke_mobileretina_750x1040.jpg

iko_roke_social_600x600.jpg

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

shutterstock_1043656987_small.jpg

Small Business Participation In Government Contracts: Why It’s Important, How To Qualify, Benefits To Enjoy, And Traps To Avoid

SBA Issues Final Rule on Appeals Process for PPP Loan Review Decisions

In fiscal year 2019, federal agencies awarded $132.9 billion in contracts to small businesses. This is a reflection of policy goals, as Congress and federal age

Small Business Participation In Government Contracts: Why It’s Important, How To Qualify, Benefits To Enjoy, And Traps To Avoid

In the latest installment of our bid protest spotlight (<a rel="noopener noreferrer" target="_blank" href="https://www.law360.com/articles/1326773">featured on Law360</a>), we analyze three Government Accountability Office (GAO) decisions that provide important reminders for companies considering whether to protest a contract award. In Chronos Solutions, LLC, the GAO held it was unreasonable for an agency to construct its procurement without regard for the changed circumstances resulting from the ongoing COVID-19 pandemic. MicroTechnologies, LLC, on the other hand, highlights the significant deference the GAO affords an agency’s technical judgment. Finally, Silver Investments, LLC provides a cautionary tale about informal agency-level “protests” and timeliness for protests at an agency or the GAO.<a rel="noopener noreferrer" target="_blank" href="https://www.gao.gov/assets/720/710331.pdf">Chronos Solutions, LLC</a>Chronos Solutions concerned a Department of Housing and Urban Development (HUD) solicitation for asset management services. HUD intended the procurement to facilitate the management and sale of foreclosed single-family homes with mortgages insured by the Federal Housing Administration (FHA). The solicitation contemplated the award of 11 indefinite delivery, indefinite quantity (IDIQ) contracts on a best-value basis.Three asset management companies challenged the solicitation’s terms at the GAO, contending that HUD failed to consider major economic changes stemming from the ongoing COVID‑19 pandemic that would materially affect the procurement. In particular, the protesters noted that on March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which included a foreclosure moratorium for certain properties (including those FHA-insured properties covered by the solicitation). Moreover, on April 1, 2020, HUD announced mortgage payment relief options related to COVID-19. Yet, when HUD amended the solicitation on April 27, 2020, to make various unrelated changes, it did not acknowledge the COVID-19 pandemic, the forbearance mandated by the CARES Act, or the mortgage payment relief options HUD had just announced.The three asset management companies alleged HUD’s solicitation did not accurately reflect the agency’s needs in light of the ongoing COVID-19 pandemic. The protestors asserted HUD had failed to recognize that, because of the CARES Act, the volume of foreclosures would be drastically lower than anticipated during the mandatory forbearance period, and then significantly higher than anticipated after the mandatory forbearance period expired.The GAO sustained the protest, holding HUD had failed to reasonably consider the changed circumstances. The GAO noted there was sufficient evidence that HUD was aware of the potential impacts of COVID-19 on foreclosures, but nevertheless failed to update the solicitation accordingly. Although HUD argued an update to the solicitation reflecting more realistic foreclosure projections was not necessary because of the IDIQ structure of the contract, the GAO disagreed, concluding the solicitation’s minimum quantities must be “established in good faith and based upon the best available information.” Accordingly, the GAO recommended that HUD review relevant changes in the law, its policies, and market conditions, and determine an appropriate amendment to the solicitation.Takeaways: This decision is an important reminder that procurements do not take place in a vacuum. Agencies cannot plan for a procurement with their eyes shut to ongoing developments that may affect the continued validity of stated requirements. Prospective offerors should keep track of developments that affect not only their ability to compete for a contract, but also to perform the contract effectively.<a rel="noopener noreferrer" target="_blank" href="https://www.gao.gov/assets/720/710144.pdf">MicroTechnologies, LLC</a>MicroTechnologies, LLC involved a task order award to provide information technology support services to the United States Space Force. Disappointed offeror MicroTechnologies argued the Space Force improperly evaluated its proposal because the agency assessed a significant weakness for what the protester alleged were “minor inconsistencies” in its proposal. MicroTechnologies also alleged the agency based the significant weakness on unstated evaluation criteria and failed to assign warranted strengths. The GAO denied the protest.First, the GAO rejected MicroTechnologies’ assertion that its proposal contained only “minor inconsistencies” and not material issues worthy of a significant weakness. In particular, the GAO found that the agency was justified in taking MicroTechnologies’ proposal at face value. The solicitation required that proposals contain both a staffing matrix and a labor category description document. MicroTechnologies submitted the required documents, but the staffing matrix contained information about security clearances for various positions that did not meet the solicitation’s requirements, while the labor category description document contained information that conflicted with the information in the staffing matrix. Noting the well-established rule that an offeror bears the risk of submitting a well-written proposal, the GAO found the inconsistencies in MicroTechnologies’ proposal – which MicroTechnologies did not dispute – reasonably raised concerns about whether MicroTechnologies’ proposal complied with the solicitation’s requirements.Second, the GAO rejected MicroTechnologies’ argument that the Space Force had considered unstated evaluation criteria when assigning the significant weakness. Specifically, the GAO concluded there was no evidence that the agency considered information not contemplated by the solicitation to justify the significant weakness. Instead, the agency assigned the significant weakness because MicroTechnologies submitted a staffing matrix and a labor category description document that contained conflicting information that undermined the agency’s confidence in MicroTechnologies’ ability to comply with requirements.Finally, the GAO denied MicroTechnologies’ argument that it should have been awarded additional strengths, concluding MicroTechnologies had offered no basis for the claimed strengths beyond unsupported, self-promoting statements.Takeaways: The GAO’s decision in MicroTechnologies shows the high burden protesters face when challenging an agency’s technical judgments. Where an agency evaluates a proposal consistent with the solicitation’s requirements, the judgments that result generally will be difficult to upset without stark evidence of irrational decision-making. Often, the best way to demonstrate such irrational decision-making is to demonstrate disparate treatment. This is especially the case when asserting an agency failed to assign warranted strengths, as the GAO is loath to make such technical assessments on behalf of the agency.<a rel="noopener noreferrer" target="_blank" href="https://www.gao.gov/assets/720/710352.pdf">Silver Investments, Inc.</a>Silver Investments, Inc. involved a solicitation for leasing office space to the Department of Agriculture (USDA). When it did not receive the award, Silver Investments, LLC filed a protest at the GAO alleging the awardee’s proposed facilities did not meet the solicitation’s requirements. The GAO, however, dismissed the protest as untimely.Months prior to the award, the USDA informed Silver Investments that its proposed facilities did not meet the necessary requirements and therefore requested a revised proposal. The USDA warned Silver Investments that if it did not submit a revised proposal within the specified timeframe, the agency would assume Silver Investments was no longer pursuing the procurement. Silver Investments did not submit a revised proposal. Instead, it sent multiple emails to the agency asserting that its facilities, in fact, did meet requirements, contrary to the agency’s determination.When the USDA notified Silver Investments that it had awarded the lease to another offeror, Silver Investments responded by contacting the agency via email and voicemail to indicate its belief that the awardee’s facilities did not meet requirements and threaten legal action. The agency responded to the emails and voicemails by informing Silver Investments that its correspondence did not comply with applicable bid protest regulations and advising Silver Investments of the available avenues for a bid protest, including an agency-level protest, a protest at the GAO, or a protest at the Court of Federal Claims. The agency also referred Silver Investments to FAR 33.103’s bid protest requirements. Despite the agency’s response, Silver Investments did not file a protest with the GAO until over 20 days after award.In dismissing the protest as untimely, the GAO noted that the protester’s post-award emails and voicemails did not constitute an agency-level protest because neither the emails nor the voicemails clearly conveyed “a specific expression of dissatisfaction with the agency’s actions and a request for relief.” The GAO added that “a letter that merely expresses a suggestion, hope, or expectation,” or “highlights an aggrieved offeror’s intention to file a protest at some future date,” does not constitute an agency-level protest.Moreover, the GAO held that even if the informal correspondence constituted an agency‑level protest, Silver Investments still would have been required to file a protest with the GAO within 10 days of the agency’s response, a deadline that had long passed. Thus, Silver Investments missed the deadline to file a timely protest at the GAO.Takeaways: Time is of the essence when filing bid protests with an agency or at the GAO. Contractors therefore should know the process and rules for filing timely bid protests, especially when navigating the interplay between agency-level protests and subsequent protests at the GAO. Of course, even when a protest would be untimely at an agency or the GAO, the Court of Federal Claims – which does not have stringent timeliness requirements – remains a viable option, assuming it has jurisdiction.*Michaela Thornton contributed to this blog post. Michaela 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.

nandivada_sandeep_blog_150x150.png

nandivada_sandeep_common_640x280.jpg

nandivada_sandeep_heroretina_2700x1160.jpg

nandivada_sandeep_mobileretina_750x1040.jpg

nandivada_sandeep_social_600x600.jpg

Sandeep Nandivada is a partner in the Litigation Department of Morrison Foerster’s Washington, D.C. office.

Sandeep N. Nandivada

Sandeep Nandivada

protests-and-litigation-600-300x148.jpg

October 2020 Bid Protest Roundup (Law360 Spotlight)

GAO Finds CIO-SP4 Solicitation Is Unduly Restrictive of Competition

In the latest installment of our bid protest spotlight (featured on Law360), we analyze three Government Accountability Office (GAO) decisions that provide impo

October 2020 Bid Protest Roundup (Law360 Spotlight)

12_30_cybersecurity_07.jpg

Breaking DOD’s Code: How to Figure Out and Resist What DOD Really, Truly Wants to Do to Your Data Rights

DOJ Cyber-Fraud Initiative Highlights Potential Civil Liability for Failing to Meet Federal Cybersecurity Requirements

Your rights in technical data and software are at greater risk today than at any time during the last 25 years.  The Department of Defense (“DOD”) is proposing 

Breaking DOD’s Code:  How to Figure Out and Resist What DOD Really, Truly Wants to Do to Your Data Rights

As we recently discussed, the U.S. Small Business Administration (SBA) has published a long-awaited rule that made important changes to numerous small business contracting programs and the rules Federal agencies must follow when contracting with small businesses.  These changes will go into effect on November 16, 2020.  You can read <a href="https://govcon.mofo.com/small-business/sba-issues-wide-ranging-final-rule-addressing-government-contracting-programs/">our summary of the rule here</a> and read <a href="https://www.govinfo.gov/content/pkg/FR-2020-10-16/pdf/2020-19428.pdf">the rule itself here</a>.  In this post, we’ll take a closer look at changes in the way procuring agencies will have to consider the past performance, experience, security clearances, capabilities, and certifications of small businesses and small business joint ventures.The Existing RegimeTo understand why the new rule is important, it’s useful to consider the current state of affairs.  When businesses compete for Government contracts, they often create joint ventures or put together subcontractor teams with different companies complementing each other’s capabilities and experience.  In general, procuring agencies have had wide latitude in being able to specify on a procurement-by-procurement basis the extent to which the prime offeror itself must have certain capabilities and experience, and the extent to which the offeror may rely upon subcontractors or joint venture members to fill in any gaps.There currently is one principal exception to that wide latitude.  When an offeror is a small business joint venture, the procuring agency is required to consider the past performance and experience of the joint venture members (including of any large business mentor joint venture member) as the past performance and experience of the joint venture itself.  15 U.S.C. § 644(q)(1)(C); 13 C.F.R. § 125.8(e) (Dec. 27, 2016).That exception largely solves a problem commonly experienced by small business joint ventures that may lack any experience or past performance in their own names, despite being composed of companies that may have extensive experience and past performance.  The U.S. Government Accountability Office (GAO) has held that this exception does not require agencies to give full evaluation credit to a joint venture where only one of the members possesses relevant experience or past performance, but that is a slightly different problem.  See Ekagra Partners, LLC, B-408685.18, Feb. 15, 2019, 2019 CPD ¶ 83 at 6-7.  By its own terms, this automatic exception does not extend to capabilities, certifications, security clearances, and other qualities (apart from experience and past performance) an agency may seek from the offeror itself.  Nor does it apply to teaming arrangements (such as prime-subcontractor relationships) that are not small business joint ventures.As a result of the fairly narrow applicability of this fairly narrow exception, small business offerors currently have to scrutinize each solicitation to determine whether it requires offerors to possess clearances, capabilities, certifications, and so forth in their own names, or whether they may rely upon other entities to meet those requirements.  If the solicitation is unfavorable to them in that respect, they then have to advocate for a discretionary solicitation amendment or rethink their teaming structure – or possibly not submit a proposal at all.  This is a particularly weighty consideration in math-based evaluations, where each reference or qualification must be scrutinized.Further, the current regime made it challenging for joint ventures to access work that requires clearances.  Regulators were often confused by requests for clearances to be issued to unpopulated joint ventures, and requirements around the employment of facility security officers proved frustrating.The ChangesThe new rule changes the existing regime in ways that most small businesses will roundly welcome.First, with respect to the perennial question of facility security clearances, the new regulation provides:(4) Facility security clearances. A joint venture may be awarded a contract requiring a facility security clearance where either the joint venture itself or the individual partner(s) to the joint venture that will perform the necessary security work has (have) a facility security clearance.(i) Where a facility security clearance is required to perform primary and vital requirements of a contract, the lead small business partner to the joint venture must possess the required facility security clearance.(ii) Where the security portion of the contract requiring a facility security clearance is ancillary to the principal purpose of the procurement, the partner to the joint venture that will perform that work must possess the required facility security clearance.13 C.F.R. § 121.103(h)(4) (emphasis added).  Thus, if the security clearance is needed for “primary and vital requirements” of the contract, the lead partner must hold the clearance; otherwise, whichever partner will perform the work to which the clearance relates must hold it.  Gone are the days of trying to get a facility security clearance approved at the last minute for a joint venture that has no employees and no prior contracting history.Second, with respect to capabilities more broadly, the new rule significantly expands the areas for which an agency must credit the capabilities of the partners of small business joint ventures:(e) Capabilities, past performance and experience. When evaluating the capabilities, past performance, experience, business systems and certifications of an entity submitting an offer for a contract set aside or reserved for small business as a joint venture established pursuant to this section, a procuring activity must 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.  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. The partners to the joint venture in the aggregate must demonstrate the past performance, experience, business systems and certifications necessary to perform the contract.13 C.F.R. § 125.8(e) (emphasis added).  The references to capabilities, business systems, certifications, and qualifications are a significant expansion beyond the prior regulatory requirement that agencies consider joint venture partners’ “past performance and experience.”   This section also differs somewhat from the new section on facility security clearances.  Whereas the new 13 C.F.R. § 121.103(h)(4) specifies which joint venture partner must hold a facility security clearance, the new 13 C.F.R. § 125.8(e) places no such restrictions on other capabilities, business systems, certifications, and qualifications.The regulation as written does not require procuring agencies to consider which joint venture member possesses a required qualification other than facility security clearances.  One can, however, imagine solicitations that reasonably might require certain qualifications to be tied to the joint venture member that actually will be performing the related work, similar to the way the new facility security clearance rule works.Third, in addition to the new treatment of the qualifications of joint venture members, the rule creates a similar, though less expansive and more ambiguous, requirement to consider “the capabilities, past performance, and experience” of small businesses’ named first-tier subcontractors in certain circumstances:(g) Capabilities, past performance, and experience.  When an offer of a small business prime contractor includes a proposed team of small business subcontractors and specifically identifies the first-tier subcontractor(s) in the proposal, the head of the agency must consider the capabilities, past performance, and experience of each first tier subcontractor that is part of the team as the capabilities, past performance, and experience of the small business prime contractor if the capabilities, past performance, and experience of the small business prime does not independently demonstrate capabilities and past performance necessary for award.13 C.F.R. § 125.2(g) (emphasis added).On first blush, the new rule appears to require agencies to consider the capabilities, past performance, and experience of named first-tier subcontractors of small business offerors.  Many agencies already regularly consider the past performance or experience (and sometimes the capabilities) of first-tier subcontractors responsible for a material percentage of contract performance, regardless of the size status of the prime offeror.  This rule, however, contains a few important differences that may not be obvious at first glance:(1) It does not specify that the named subcontractor must be responsible for a certain percentage of the work, or even that the capabilities or experience it brings to the table relate to the work it will be performing on the contract. Time will tell whether this regulation will be interpreted to allow agencies to tie any credit for a subcontractor to the kind and amount of work the subcontractor itself will perform.(2) Although most of the regulation refers simply to “first-tier subcontractor,” one condition for applying the new regulation is that the small business proposal must identify a “team of small business subcontractors.” As written, the rule is ambiguous as to whether it applies to all of a small business’s named first-tier subcontractors, or to all of them if they are part of a team that includes some small business subcontractors, or only to those first-tier subcontractors that are themselves small businesses.(3) The new rule does not require an agency to consider named first-tier subcontractors’ capabilities, past performance, and experience if the small business prime offeror has the capabilities, past performance, and experience “necessary for award.” The new rule would prevent an agency from disqualifying a small business without capabilities necessary for award, if one of its first-tier subcontractors has the necessary capabilities.  As written, however, it does not necessarily require agencies to consider the subcontractors’ contribution as part of the overall qualitative evaluation of a proposal’s merit.  This distinction is important because a small business offeror with an acceptable level of capabilities on its own is not necessarily entitled, under this rule, to credit for outstanding capabilities that its subcontractor may possess.TakeawaysThe SBA’s new rule provides much-needed clarity, uniformity, and fairness – particularly for small business joint ventures.  The new rule for small businesses’ first-tier subcontractors is also a step in the right direction, although the rule’s ambiguities will require some time (and likely some litigation) for agencies and companies to understand how it will work in the real world.Offerors should note that these regulations do not begin to apply until November 16, 2020, although agencies are free to amend pending solicitations to include them, and are free to issue new solicitations incorporating them even before November 16.  After November 16, 2020, offerors should continue to pay attention to new solicitations to ensure they do not contain terms that diverge from the amended regulations.  Under standard bid protest rules, if a solicitation issued after November 16 fails to comply with the new regulations, an aggrieved potential offeror must challenge the terms prior to the solicitation’s proposal submission deadline or forever hold its peace.

Anser Advisory

ARKA

Arlington Capital

Battle Investment Group

Behrman Capital

Cadmus

Chainalysis

CollabraLink

Definitive Logic

Emmes

Enlightenment Capital

Grant Thornton

Griffon Corporation

eTelligent

L3Harris

Jacobs

LinQuest Corporation

Micross

Sagewind

Sedgwick

Sigma Defense

teKnoluxion

The Building People

VariQ

specht_damien_blog_150x150.png

specht_damien_common_640x280.jpg

specht_damien_heroretina_2700x1160.jpg

specht_damien_mobileretina_750x1040.jpg

specht_damien_social_600x600.jpg

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

New Small Business Rules:  Capabilities of Small Business Joint Venture Members and First-Tier Subcontractors