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

Telesto: Another Call For Clarity In Other Transactions Protest Jurisdiction

Strengthening the American Drone Industrial Base

Bid Protest Spotlight: Jurisdiction, Price Range, Late-Is-Late

Trump Issues Executive Order on Cybersecurity Rolling Back Some Prior Policies and Introducing New Ones

GAO Reaffirms Agencies’ Discretion to Award Sole-Source SBIR Phase III Contracts (Even to a Successor-in-Interest)

This month’s Bid Protest Roundup highlights two Court of Federal Claim decisions, addressing past performance and injunctive relief, and one by the U.S. Government Accountability Office (“GAO”), clarifying the applicability of new regulatory requirements to existing IDIQs.AcmeSolv, LLC v. United States<a href="#_ftn1" target="_self">[1]</a>AcmeSolv, Inc., a Small Business incumbent on a set-aside cybersecurity service contract challenged the United States Department of Agriculture’s award to Arlluk Technology Solutions, LLC. The protestor challenged the past performance evaluation and best value tradeoff analysis.Agencies must evaluate past performance in a manner both reasonable and consistent with the solicitation criteria and applicable law. A protestor, however, is not entitled to an exhaustive comparison of past performance. Here, the protestor argued the review was arbitrarily “superficial” because the agency considered only “top of the line” ratings in each questionnaire and contractor performance assessment evaluated. Consequently, the agency allegedly failed to consider the “depth and breadth” of the protestor’s past performance and ignored the context and trends of performance as required by the solicitation and the Federal Acquisition Regulation (“FAR”), engaging instead in a purely mathematical and quantitative approach.As evidence, the protestor pointed to two documents. First, the protestor cited to the Source Selection Decision Document, which noted the awardee received a High Confidence rating because “the majority of questionnaires” rated the awardee’s performance as “Exceptional” and only one as “Satisfactory.”  Second, one evaluator’s worksheet for the awardee stated that, “since there were three submissions, one was satisfactory and two were exceptional, this averages to high confidence.”  The protestor argued this fact proved the agency simply counted the number of “Exceptional” ratings when assigning its overall confidence rating.The court disagreed. Simply put, given that six evaluators submitted worksheets, if one conducted a “quantitative” past performance analysis, that did not upend the entire evaluation or prove that the work of the other five evaluators, the Source Selection Evaluation Board, and the Source Selection Authority, did not “collectively constitute a substantive review of past performance.”  Indeed, a worksheet from another evaluator showed more in-depth analysis, discussing the awardee’s experience and skills.The protest also foundered for want of prejudice. The court noted, that even had the protestor received a “High Confidence” rating for past performance, that would only put it on par with the awardee for non-price factors. The solicitation stated that price equaled all non-price factors in weight. The protestor’s proposal suffered from a $2.1 million premium. The record forestalled the protestor’s attempts to argue that its “Satisfactory” technical rating was superior to the awardee’s, and therefore—but for the erroneous past performance evaluation—it had a superior non-price proposal. The Source Selection Authority found the awardee’s technical rating superior to the protestor’s, citing two discriminators, and explained that even if the protestor’s non-price factors were increased, it would not warrant the substantial price premium because the awardee’s proposal was satisfactory, and the savings could be used elsewhere.Takeaways AcmeSolv is a timely reminder that success in a bid protest requires not only uncovering agency error, but also a showing that such error had a prejudicial effect on the source selection decision. Absent a demonstration of a material and prejudicial flaws in the evaluation of offers, a protest cannot succeed.Orion Government Services, LLC v. United States<a href="#_ftn2" target="_self">[2]</a>Orion illustrates the substantial challenges faced by a protestor in obtaining a preliminary injunction at the Court of Federal Claims. Orion Government Services, LLC challenged the U.S. Army Corps of Engineers award of a $181,551,864.00 firm-fixed-price contract to McCarthy Building Companies, Inc. for construction services in the Port of Houston. The protestor argued the agency erred by conducting a flawed price reasonableness analysis and failing to evaluate proposals for unbalanced pricing. The court disagreed. The court, moreover, noted that Orion failed to demonstrate irreparable harm, without which the protestor was not entitled to a preliminary injunction irrespective of any likelihood of success on the merits.A protestor at the Court of Federal Claims may obtain a preliminary injunction by showing (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest. Although no single factor is dispositive, the first two are the most important and must be established. This contrasts with the GAO, where protesters obtain an automatic stay of contract performance upon filing a protest within 10 days of award or five days of a required debrief.The protestor argued that the agency erred when it found the awardee’s price reasonable on the basis that it was “within 25% of the Independent Government Estimate,” because that sort of determination did not equate to a price reasonableness analysis, which looks at whether a price is too high. Before considering the facts, the court noted that such a method is not only permitted but described in the FAR as acceptable. The court then turned to the record, which showed that the agency compared proposed prices to the IGE and to the other offerors before making a considered tradeoff analysis. Because the record showed the agency made a deeper analysis that the rote calculation the protestor complained of, the court was unpersuaded that the agency’s price analysis was improper.The protestor’s other price-related argument, that the agency failed to consider whether the awardee’s pricing was unbalanced, also failed. The protestor argued that the awardee underbid line items that were less likely to be performed and overbid those that were more likely to be performed. If the agency had evaluated proposals for unbalanced pricing, the protestor maintained, the agency would have found the proposed prices of all other offerors to be unbalanced. The court was not convinced.The agency pointed out that the evaluation board report noted that the cost/price team “evaluated for the appearance of unbalanced pricing,” and reviewed prices “for variation from the IGE, errors, and/or omissions.”  Those few words sufficed. The court held that while the evaluation board’s report “may not detail USACE’s analysis,” the evidence showed the agency evaluated unbalanced pricing “on some [acceptable] level.”The court then considered the protestor’s allegation of irreparable harm and found it wanting. To show irreparable harm, a protestor must demonstrate a financial injury “both certain and great” with “an immediate and substantial impact.”  According to the court, a protestor must show with facts or evidence an economic loss that “threatens the survival” of the protestor’s business. The court found the protestor’s broad assertions problematic, especially when juxtaposed to the agency’s declaration that a performance pause posed significant safety concerns to commercial vessel traffic and an additional cost to the Federal taxpayer of $9.44 million to procure critical dredging through a separate contract.TakeawaysIllustrating the uphill challenges protestors face in obtaining a preliminary injunction at the Court of Federal Claims, Orion underscores the reason GAO is often the preferred forum of choice for bid protests. With an automatic stay of performance when a protest is filed within 10 days of award, or within five days of a required debriefing, the GAO alleviates the need to meet the exacting preliminary injunction four-part test. Other considerations, including more fulsome discovery and greater opportunities for oral arguments, may tip the scales back in favor of the court. Disappointed offerors do well to consider the unique advantages, and disadvantages, of both forums when deciding where to file their complaint.Walsh Construction Company II, LLC<a href="#_ftn1" target="_self">[3]</a>In Walsh Construction, the GAO clarified that project labor agreement (“PLA”) regulations do not apply to new task orders under existing IDIQs. Walsh Construction Company II, LLC, protested the amended terms of a U.S. Army Corps of Engineers solicitation for the repair and renewal of the Naval Hospital Bremerton, in Jackson Park, Washington after the agency removed the requirement that offerors submit a valid PLA.In connection with large-scale construction projects the FAR now requires that every contractor and subcontractor to enter a PLA with one or more labor organizations.<a href="#_ftn4" target="_self">[4]</a> The FAR Council, pursuant to Executive Order 14063, issued a final rule on PLAs as prescribed in FAR subpart 22.5., effective January 2024. The agency issued the task order solicitation to all seven holders of the USACE’s multiple award task order contracts (“MATOCs”) for integrated design-build initial outfitting construction services in support of the Defense Health Agency’s medical sustainment, restoration, and modernization mission. The agency had awarded the MATOCs in February 2023, well before the FAR Council’s final rule on PLAs, which consequently did not contain the relevant FAR clause, 52.222-34.When issuing the task order solicitation in July 2024, the agency initially included the FAR provision requiring a PLA and emphasized the necessity of a PLA in two subsequent amendments, but then removed the requirement in October 2024, following a protest and subsequent corrective action. The amended solicitation explained that because the MATOCs were issued before the effective date of the PLA rule, and the MATOCs had not been bilaterally modified to include the PLA clause, the PLA requirement was not applicable to the task order solicited.The Protestor argued the removal of the PLA requirement violated applicable regulations as the task order was issued after the effective date of the FAR PLA regulations, the project value exceeded the dollar threshold, and the agency had not issued an exception. Moreover, the protestor argued it was competitively prejudiced by the elimination of the PLA requirement because it had entered into, and so was bound by, a PLA when its competitors were under no such obligations following the solicitation amendment.The GAO sided with the agency. The E.O. required agencies to consider implementing exceptions when awarding contracts. The GAO reasoned the timing made it “readily apparent” that an agency’s authority to include PLA requirements in a task order depends on whether the the PLA clause is included in the underlying IDIQ contract. Moreover, neither the E.O. nor the FAR prescription contemplated retroactive application. Therefore, the agency lacked the authority to include PLA requirements in subsequent task order absent modifications to the MATOCs.TakeawaysWalsh Construction clarifies that absent modifications incorporating the required PLA clause into the underlying IDIQ, agencies may not add PLA requirements to task orders solicited under pre-2024 IDIQs. Contractors in the construction industry do well to check the terms of any existing IDIQs to ascertain whether they contain the PLA clause or not. The decision has broader implications as well. Although explicitly discussing only PLA requirements under MATOCs, by logical extension the GAO’s reasoning applies to any novel requirement prescribed by a final rule whose effective date follows issuance of the base IDIQ. Potential offerors should be prepared to file pre-award protests to claim foul where such a requirement harms their interests.<a href="#_ftnref1" target="_self">[1]</a> <a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2024cv1282-46-0" target="_blank">AcmeSolv, LLC v. United States</a>, No. 24-1282 C, 2025 (Fed. Cl. Feb. 6, 2025) (reissued Feb. 11, 2025)<a href="#_ftnref2" target="_self">[2]</a> <a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2025cv0071-33-0" target="_blank">Orion Government Services, LLC v. United States, No. 25-71</a> (Fed. Cl. Feb. 4, 2025) (reissued Feb. 13, 2025)<a href="#_ftnref3" target="_self">[3]</a> <a href="https://www.gao.gov/products/b-423075.2" target="_blank">Walsh Construction Company II, LLC, B-423075.2, Feb. 20, 2025</a>, 2025 CPD ¶ _.<a href="#_ftnref4" target="_self">[4]</a> In a January 21, 2025, decision, the U.S. Court of Federal Claims found PLA’s unlawful for violating the Competition in Contracting Act. See <a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2024cv1057-97-0" target="_blank">MVL USA, Inc. et al. v. United States</a>,  No. 24-1057, 24-1077, 24-1144, 24-1219, 24-1398, 24-1433, 24-1461. As a result, class deviations have begun to follow.

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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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Bid Protest Roundup: Past Performance, Preliminary Injunctions, and Novel Regulatory Requirements

Marking Commercial Technical Data After FlightSafety

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Locke Bell is a partner in the firm’s Government Contracts & Public Procurement practice.

Locke Bell

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Thomas Lee

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Marking Commercial Technical Data After FlightSafety

Supreme Court Removes “Substantial Competitive Harm” Requirement for Contractors Seeking to Protect Confidential Information from Release Under FOIA

To kick off the new year, this bid protest spotlight highlights two U.S. Government Accountability Office decisions involving System for Award Management (SAM) registration requirements when submitting an “offer” and an agency’s improper reliance on technology in making procurement decisions. This spotlight also covers a decision from the U.S. Court of Federal Claims addressing how and when small businesses can properly rely on the past performance experience of their subcontractors.UNICA-BPA JV, LLC<a href="#_ftn1" target="_self">[1]</a>This successful post-award protest is one of many GAO decisions addressing SAM registration requirements when submitting a proposal—or, in this case, when submitting a final proposal revision. Importantly, the outcome is not impacted or changed by the interim FAR rule that recently amended SAM registration requirements in FAR 52.204-7.On November 29, 2023, the Department of Homeland Security issued a solicitation to procure management support services through the award of an 8(a) set-aside contract. UNICA-BPA JV, LLC, an 8(a) small business joint venture, timely submitted its proposal by the January 2 deadline.After receiving notice that it was excluded from the competitive range, UNICA filed its first protest with the GAO. The agency subsequently took corrective action, and the GAO dismissed the protest.As part of its corrective action, the agency included UNICA in the competitive range and entered into discussions. On July 10, UNICA submitted its final proposal revision, and on August 6, the agency issued a pre-award notice identifying UNICA as the apparent successful offeror.Soon after, another offeror filed a protest with the GAO, claiming the award was improper because UNICA lacked an active SAM registration at the time UNICA submitted its initial proposal. In response, the agency rescinded the pre-award notice and issued UNICA a “notice of exclusion” from award consideration.UNICA then filed the instant protest challenging its retroactive exclusion from award consideration on the basis that it did have an active SAM registration at the time of offer submission—here, its final proposal revision. The GAO agreed with UNICA and sustained the protest. In reaching its decision, the GAO considered the language of FAR 52.204-7 included in the solicitation and in effect at the time the protest was filed, which states, in relevant part:An Offeror is required to be registered in SAM when submitting an offer or quotation, and shall continue to be registered until time of award, during performance, and through final payment of any contract, basic agreement, basic ordering agreement, or blanket purchasing agreement resulting from this solicitation.The GAO then looked to FAR 2.101, which defines an “offer,” in relevant part, as “a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract.” When read together, and with reference to FAR 15.307(b), the GAO concluded that “the submission of a final proposal revision demonstrates an offeror’s intent to modify or replace its initial offer, thus extinguishing an agency’s ability to accept the earlier offer.” As a result, the GAO found the agency could have excluded UNICA from award consideration on the date of its initial proposal submission, when UNICA lacked an active SAM registration, but not after entering into discussions, where it became “clear that UNICA’s initial proposal was superseded[,] . . . and only UNICA’s [final proposal revision] could be considered as the offer upon which an award could be made.” TakeawaysThis decision offers a few helpful reminders for joint ventures and protesters alike. First, given that a joint venture is legally independent from its members, joint ventures must proactively register themselves in SAM.gov—a process that can take months. When submitting proposals, all offerors should also ensure they have active SAM registrations through when a final award decision is made and any protests are resolved. Fortunately, per the recent changes to FAR 52.204-7, offerors can now correct any lapse in registration before an award is made.The Mission Essential Group, LLC<a href="#_ftn2" target="_self">[2]</a>This successful pre-award shows what can happen when an agency mistakenly relies on technology and fails to adequately substantiate its decision-making process when employing lowest price technically acceptable (LPTA) source selection procedures.On June 6, 2024, the Department of the Air Force issued a solicitation to holders of the agency’s Advisory and Assistance Services indefinite-delivery, indefinite-quantity (IDIQ) contract for follow-on task order services. The solicitation stated that an award would be made on an LPTA basis considering two technical sub-factors, including (1) past technical experience, and (2) a staffing plan.To receive an acceptable rating under the first sub-factor, an offeror had to demonstrate past technical experience performing work similar to the tasks spanning 46 pages of the performance work statement (PWS). An offeror’s staffing plan would be deemed acceptable under the second sub-factor if the offeror outlined a “unique planned approach” for performing those same tasks.On June 26, Mission Essential filed its first protest with the GAO, and the agency agreed to take corrective action. On September 18, the agency issued a limited solicitation amendment and completed a market research report and a two-page determination and findings (D&F) memorandum for using LPTA source selection procedures. Mission Essential timely filed the instant protest claiming, among other arguments, that the agency’s use of LPTA source selection procedures was improper and violated DFARS 215.101-2-70, and that the agency failed to avoid using LPTA procedures to the maximum extent practicable, as required under that same clause.In finding for the protester, the GAO first determined the agency failed to satisfy three of the criteria necessary for employing an LPTA source selection methodology under DFARS 215-101-2-70, which require the agency to establish that:(i) Minimum requirements can be described clearly and comprehensively and expressed in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers;(ii) No, or minimal, value will be realized from a proposal that exceeds the minimum technical or performance requirements; and(vii) The contract file contains a determination that the lowest price reflects full life-cycle costs [. . .] of the product(s) or service(s) being acquired.For the first criterion, the GAO found that neither the solicitation nor the D&F memorandum offered any explanation or guidance setting forth the clear, minimum requirements an offeror must demonstrate to receive an acceptable technical rating, particularly when considered against the 46 pages of PWS tasks.On the second, the GAO determined that the solicitation’s limited requirements and request for “unique” approaches to staffing plans suggested the agency could benefit from a proposal that exceeds minimum requirements. The agency’s bald recitation of the DFARS criterion in the D&F memorandum was also insufficient to support its position.The agency failed to satisfy the remaining criterion given that the requiring activity did not provide the requisite determination in the contract file. Moreover, the contemplated award had several cost-reimbursement CLINs with presently unknown costs, which the D&F memorandum and the agency’s post-protest statements both failed to explain or reconcile with the DFARS requirement.In addition, the GAO found the agency failed to avoid using LPTA procedures to the maximum extent practicable. To justify its position, the agency relied on its use of LPTA procedures for prior task order awards under the same procurement and the results of its “highly recommended” complexity analysis tool (CAT) “designed to ‘evaluate various [procurement] risk factors’” that supported the use of LPTA procedures here.In rejecting the first argument, the GAO found that neither the record nor the agency’s arguments explained why using procedures other than LPTA would be impractical. The GAO then took issue with the agency’s reliance on CAT, which generates a report based on the agency’s responses to 11 questions involving scope, cost, and resources, and requires responsive inputs consisting of numerical values between 0 and 5. In sum, the GAO determined that the agency’s CAT responses variously failed to account for the requirements of the initial IDIQ contracts and indicated that past performance was of low importance, yet the solicitation did not contemplate past performance. Moreover, it was “unreasonable for the agency simply to rely on the recommended approach generated by the CAT as its rationale and justification for using an LPTA approach,” particularly when the record fails to include any explanation of the tool’s findings.TakeawaysThis decision is a good example of agencies’ increasing reliance on technology in making procurement-related decisions, which opens the door to protesters to make similar challenges based on a lack of adequate documentation or independent decision making by the agency. The decision also suggests that if a procurement walks and talks like a best value trade-off procurement, chances are it is one (and thus LPTA procedures should not be used). DecisionPoint Corporation v. United States<a href="#_ftn3" target="_self">[3]</a>DecisionPoint reminds protesters of the checks and balances in place for determining when a small business awardee can lawfully rely on the past performance of a subcontractor in a set-aside procurement—including the terms of the solicitation, the limitations on subcontracting (FAR 52.219-14), and the ostensible subcontractor rule (13 C.F.R. § 121.103(h)).This post-award protest concerns the Department of the Army’s solicitation for maintenance and support services issued as a set-aside to Service-Disabled Veteran Owned Small Businesses (SDVOSBs). Offerors’ proposals were evaluated on a best value basis according to three factors, including (1) Key Personnel and Staffing, (2) Past Performance, and (3) Price. Proposals would receive an acceptable or unacceptable rating under the first factor, making the second and third factors—given “appropriately equal” weight—potential tiebreakers in the agency’s tradeoff decision.Importantly, the solicitation stated that, for purposes of past performance submissions, “the ‘offeror’ includes any joint ventures, subcontractors, and/or teaming partners proposed as part of the prime contractor’s team under this effort.” The only restriction was that offerors must comply with the limitations on subcontracting.For past performance, the agency assessed P&S Peterman & Sons Solutions (P&S) a “Satisfactory Confidence” rating and DecisionPoint the next-highest rating of “Substantial Confidence.” As relevant, P&S’s proposal included one submission for work it completed, and two submissions for work its subcontractor completed.Based on its best value award determination, the agency awarded the contract to P&S for a total price $1.7 million less than DecisionPoint’s proposal. DecisionPoint promptly filed suit.DecisionPoint claimed that P&S was ineligible for award because P&S and its subcontractor improperly formed a joint venture, and that P&S should have received a lower past performance rating. In support, DecisionPoint latched onto statements in P&S’s proposal that it would operate “as a single entity” with its subcontractor, and that “[a]s an integrated organization hereafter known as Team P&S, [they would] operate under unified plans, procedures, and controls[.]”In rejecting the plaintiff’s claims, the court found that the solicitation expressly allowed the agency to consider a subcontractor’s past performance, irrespective of a subcontractor’s size or status, and that the agency’s evaluation was reasonable. The court further determined that, regardless of the teaming language, the proposal demonstrated that P&S would “perform services for all management positions on the contract” and be responsible for more than 50% of the labor costs, demonstrating P&S’s compliance with the limitations on subcontracting and the ostensible subcontractor rule.TakeawaysAs the Small Business Administration explained in a <a href="https://www.federalregister.gov/documents/2023/04/27/2023-07855/ownership-and-control-and-contractual-assistance-requirements-for-the-8a-business-development" target="_blank">recent rulemaking</a>, nothing prohibits an agency from allowing small business offerors to rely on the past performance of their subcontractors. Offerors must, however, carefully craft their proposals to ensure their compliance with the limitations on subcontracting and the ostensible subcontractor rule.This decision also reaffirms that, to prevail on a past performance challenge, plaintiffs must point to clear, specific facts to demonstrate the unreasonableness of an awardee’s past performance rating. Greater success might also lie in challenges to a subcontractor’s past performance experience not clearly tying to the work the subcontractor will perform.<hr class="divider"><a href="#_ftnref1" target="_self">[1]</a> UNICA-BPA JV, LLC, B-422580.3, Jan. 8, 2025, 2025 CPD ¶ _.<a href="#_ftnref2" target="_self">[2]</a> The Mission Essential Grp., LLC, B-422698.2, Jan. 8, 2025, 2025 CPD ¶ _.<a href="#_ftnref3" target="_self">[3]</a> DecisionPoint Corp. v. United States, No. 24-782, 2024 U.S. Claims LEXIS 3489 (Fed. Cl. Dec. 9, 2024) (reissued Jan. 14, 2025).

Bid Protest Spotlight: Registration, Substantiation, Experience

Bid Protest Spotlight: Registration, Substantiation, Experience

Amidst the ongoing flurry of executive actions targeting Diversity, Equity, and Inclusion (“DEI”) programs and policies, causing confusion and disruption across the federal government and private sectors, companies are struggling to understand the impact of those actions on their organizations. To help companies understand and navigate these actions, we have provided answers to frequently asked questions and proactive steps to mitigate risks.Read the <a href="https://www.mofo.com/resources/insights/250219-unpacking-the-trump-administration-s-dei-orders" target="_self">full client alert</a>.

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Co-Chair, Global Employment and Labor Practice

Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies.

Andrew R. Turnbull

Andrew Turnbull represents companies on a broad range of labor and employment litigation and counseling matters. He has successfully defended clients in complex employment litigation before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, including advising on all aspects of OFCCP compliance, creating and implementing affirmative action plans, defending OFCCP audits and onsite investigations, conducting mock pay equity audits, drafting and developing business ethics policies and programs, and complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act.

Andrew Turnbull

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

Sandeep N. Nandivada

Sandeep Nandivada

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

Unpacking the Trump Administration’s DEI Orders and Actions – FAQs and Action Plans

The incoming Trump administration has sent many signals that it intends to ramp up the Department of Defense’s use of nontraditional acquisition pathways to bridge the “Valley of Death” and bring innovative technologies to the warfighter.<a href="#_ftn1">[1]</a> This is not a departure from any recent administration, but yet another acceleration of a common trend. Perhaps the most familiar and well‑demonstrated such pathway is DoD’s Other Transactions (OTs) for prototyping projects and follow‑on production efforts. In the last decade, DoD’s use of that authority has steadily grown from a few hundred OTs and less than $1 billion in obligations in FY15<a href="#_ftn2">[2]</a> to more than 5,000 OTs and $15.5 billion in FY23.<a href="#_ftn3">[3]</a> Early reports for FY24 indicate nearly $18 billion in OT obligations.<a href="#_ftn4">[4]</a>Defense contractors need to be armed with reliable legal resources as they navigate this relatively new and evolving legal landscape. That is why we are compiling here our DoD OTs Desk Reference, with an infographic answering common questions and links to our many writings on the rules and risks of contracting through OTs. Bear in mind, although these references often focus on DoD Prototype OTs, several non-DoD agencies—including NASA, NIH, BARDA, DHS, TSA, and others—have some form of other transaction authority of their own. These agencies issue a variety of other transaction agreements (OTAs) that are likewise exempt from procurement laws and regulations, but are not subject to the same eligibility or other legal requirements of DoD Prototype OTs. <div data-reactroot=""><img class="rich-text-embed-image" alt="Other transactions at a glance" src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt2bf1c4469e957df8/67b4ea3d495942e653d0e19c/250214-dod-other-transactions-ots-desk-reference.jpg?format=auto&amp;quality=60"/></div>References:<a href="/topics/other-transaction-ot-bid-protests-a-call-for-clarity-and-consistency" target="_self">Other Transaction (OT) Bid Protests: A Call for Clarity and Consistency</a><a href="/topics/dod-dusts-off-other-transactions-ot-regulations" target="_self">DoD Dusts Off Other Transactions (OT) Regulations</a><a href="/topics/court-of-federal-claims-potentially-expands-its-other-transaction-ot-bid-protest-jurisdiction" target="_self">Court of Federal Claims Potentially Expands Its Other Transaction (OT) Bid Protest Jurisdiction</a><a href="/topics/gao-opens-the-door-to-certain-other-transaction-bid-protests" target="_self">Has the GAO Opened the Door to Certain Other Transaction (OT) Bid Protests?</a><a href="/topics/dod-issues-updated-other-transactions-ot-guide" target="_self">DoD Issues Updated Other Transactions (OT) Guide</a><a href="/topics/another-piece-to-the-puzzle-court-of-federal-claims-has-jurisdiction-over-bid-protest-where-the-disputed-other-transaction-could-lead-to-a-follow-on-production-contract" target="_self">Another Piece to the Puzzle: Court of Federal Claims Has Jurisdiction Over Bid Protest Where the Disputed Other Transaction Could Lead to a Follow-On Production Contract</a><a href="https://www.mofo.com/resources/insights/211015-new-contractor-insights" target="_blank">New Contractor Insights on ‘Other Transaction’ Bid Protests</a><a href="/topics/where-can-you-protest-an-other-transaction-award-insights-from-kinemetrics" target="_self">Where Can You Protest an Other Transaction Award? Insights from Kinemetrics</a><a href="/topics/congress-dod-encourage-use-of-other-transaction-authority-in-response-to-covid-19" target="_self">Congress, DoD Encourage Use of Other Transaction Authority in Response to COVID-19</a><a href="/topics/dods-other-transactions-data-rights-intellectual-property-simplified" target="_self">DoD’s Other Transactions: Data Rights & Intellectual Property Simplified</a><a href="#_ftnref1">[1]</a> See, e.g., Pete Hegseth, Opening Statement, Secretary of Defense Nomination Hearing, Senate Armed Services Committee (Jan. 14, 2025), available at <a href="https://www.armed-services.senate.gov/imo/media/doc/hegseth_opening_statement.pdf">https://www.armed-services.senate.gov/imo/media/doc/hegseth_opening_statement.pdf</a>.<a href="#_ftnref2">[2]</a> See Rhys McCormick, Ctr. for Strategic & Int’l Studies, Department of Defense Other Transaction Authority Trends 2 (Dec. 2020)<a href="#_ftnref3">[3]</a>See <a href="https://oldcc.gov/sites/default/files/resources/OT%20General%20Presentation%20%28July%202024%29.pdf">https://oldcc.gov/sites/default/files/resources/OT%20General%20Presentation%20%28July%202024%29.pdf</a>.<a href="#_ftnref4">[4]</a> See <a href="https://www.acq.osd.mil/asda/dpc/cp/policy/docs/newsletters/2024/Policy_Pulse_Newsletter_(Nov_2024).pdf">https://www.acq.osd.mil/asda/dpc/cp/policy/docs/newsletters/2024/Policy_Pulse_Newsletter_(Nov_2024).pdf</a>.

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