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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For many small business government contractors, the winter holidays came early on December 5, 2019, when the Small Business Administration (“SBA”) issued its <a href="https://www.govinfo.gov/content/pkg/FR-2019-12-05/pdf/2019-26041.pdf?utm_campaign=subscription+mailing+list&utm_source=federalregister.gov&utm_medium=email">final rule</a> adjusting its regulations on the calculation of average annual receipts in small business size determinations for revenue-based size standards. Since Congress passed the Small Business Runway Extension Act of 2018 (“Runway Extension Act” or “the Act”) last December, contractors, as well as their lawyers, have been patiently waiting for the SBA to implement the Act’s change to the review period for annual receipts from three years to five. While many were initially hopeful the Act would take immediate effect, SBA,<a href="#_ftn1" name="_ftnref1">[1]</a> and the Government Accountability Office (“GAO”),<a href="#_ftn2" name="_ftnref2">[2]</a> made it clear that before contractors could take advantage of the change, they would have to wait for the SBA to issue a final implementing rule. Now that SBA has issued the final rule, which will take effect on January 6, 2020, the wait is nearly over.Similar to the <a href="https://www.federalregister.gov/documents/2019/06/24/2019-12754/small-business-size-standards-calculation-of-annual-average-receipts">proposed rule</a> SBA issued on June 24, 2019, <a href="https://govcon.mofo.com/small-business/sba-proposed-rule-revised-timeframe-for-receipt-calculation-in-size-determinations/">which we discussed in an earlier blog</a>, the final rule changes the averaging period for all industries subject to SBA’s receipts-based size standards. However, the final rule also adopts “the same 5-year averaging period for both services and non-services industries when approving receipt-based size standards by other federal agencies” (emphasis added). In other words, both service and non‑service industries that have a corresponding receipts-based size standard for any federal agency will now have their size calculated based upon the average annual receipts for the preceding five years instead of three. That said, SBA clarified that the change does not apply to the Business Loan and Disaster Loan Programs.During the comment period, the SBA received overwhelming support for the change to a five-year averaging period. However, some commenters raised concerns that this change could also cause certain small businesses to lose their size status prematurely. For example, some entities had declining revenues over the previous five years and would exceed the size standard if the fourth and fifth years’ receipts were added the previous three. Moreover, once these entities lost their status, the longer averaging period would mean these entities would have a longer wait to requalify as small. Recognizing these concerns, the final rule also provides that until January 6, 2022, contractors may choose either a three- or five‑year averaging period.<a href="#_ftn3" name="_ftnref3">[3]</a> According to the SBA, this transition period will allow contractors to prepare for the change, while also avoiding confusion and inconsistency if contractors were given this choice for an indefinite period.The final rule also adopted clarifications regarding the treatment of receipts and/or number of employees after the sale or acquisition of a segregable division versus the sale of a separate legal entity. SBA’s rules currently provide that the receipts and employees of a former affiliate that is sold prior to the date to determine size are excluded from the size calculation. To eliminate any ambiguity as to what constitutes a former affiliate, SBA added the following language to the former affiliate rule(s): “if a concern has sold a segregable division to another business concern during the applicable period of measurement or before the date on which it self-certified as small, the annual receipts [or employees] used in determining size status will continue to include the receipts of the division that was sold.” Although SBA was met with some resistance over this change, SBA explained that this clarification is consistent with its view that the sale or acquisition of a division merely represents “an addition or subtraction to the concern itself,” which is distinct from the sale or acquisition of a separate legal entity.It is important to remember that although the wait for the final rule is over, the changes do not come into effect until January 6, 2020. In other words, the changes are not applicable to any date to determine size that comes before January 6. Therefore, contractors must wait just a little while longer before certifying as small based upon a calculation using a five-year averaging period for revenue-based size standards.<a href="#_ftnref1" name="_ftn1">[1]</a> See SBA Information Notice No. 6000-180022 dated December 21, 2018; see also Cypher Analytics, Inc. dba Crown Point Sys., SBA No. SIZ-6022 (2019).<a href="#_ftnref2" name="_ftn2">[2]</a> <a href="https://www.gao.gov/assets/710/700982.pdf">TechAnax, LLC; Rigil Corporation</a>, B-408685.22; B-408685.25.<a href="#_ftnref3" name="_ftn3">[3]</a> The final rule clarified that this option is not available for the Business Loan or Disaster Loan Programs.

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

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

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SBA’s Long-Awaited Implementation of the Runway Extension Act Is Finally Here

SBA’s Long-Awaited Implementation of the Runway Extension Act Is Finally Here

For many small business government contractors, the winter holidays came early on December 5, 2019, when the Small Business Administration (“SBA”) issued its fi

This installment of our monthly bid protest <a href="https://www.law360.com/articles/1224781">Law360 </a>spotlight examines four protest decisions released in November 2019.  In Inserso, GAO clarifies that a technical acceptability requirement is not equivalent to a lowest-price technically acceptable procedure.  In Chromalloy, the Court of Federal Claims decided that the technical requirement of an intellectual property license from a third party was acceptable and not an undue restriction on competition.  The protester in Becton failed to successfully challenge the use of Buy American and Trade Agreements Acts for small versus large businesses.  Finally, the GAO held in Blue Origin that a paired evaluation of proposals was ambiguous and violated the requirement for solicitations to provide sufficient information to allow offerors to fairly compete.<a href="https://www.gao.gov/assets/710/702564.pdf">Inserso Corp., B-417791, B-417791.3, Nov. 4, 2019</a>In Inserso Corp., a protestor argued that a solicitation for information technology (IT) services violated the 2017 National Defense Authorization Act (NDAA) restriction on lowest price, technically acceptable (LPTA) awards.  According to protester, the Agency utilized LPTA criteria in its solicitation by failing to provide a tradeoff between price and technical factors.  The GAO denied the protest.The 2017 NDAA restricts “to the maximum extent practicable” the use of LPTA procedures in the acquisition of IT services, personal protective equipment, or knowledge-based training.  The Air Force issued a request for quotations (RFQ) on July 9, 2019, to holders of a General Services Administration (GSA) 8(a) Streamlined Technology Acquisition Resources for Services (STARS) II contract, seeking to acquire information technology (IT) services and service-based solutions.  The RFQ sought quotations to provide personnel, services, and technical and management support to operate and maintain servers and computer systems at Air Force Installations.  Quotations were to be evaluated first on price, ranked from lowest to highest, and then screened for technical acceptability under the two subfactors: management approach and staffing and retention plan.  Finally, the Agency would evaluate past performance for recency, relevancy, and quality, and compare past performance to price.  The Agency contemplated awarding a one-year base firm fixed-price contract with three one-year option periods to the offeror whose quote was responsive, technically acceptable, and considered to be the best value based on a price/past performance tradeoff.  Quotations were due July 29, 2019 and protester filed its protest on July 25, 2019.The GAO found the use of price with a technical acceptability determination did not violate the 2017 NDAA’s restriction on LPTAs in this case because the Air Force did not contemplate award the order on that basis.  Rather, the agency intended to award on the basis of a best-value tradeoff between price and past performance.  In particular, the GAO reasoned that the statute did not specifically preclude past performance as a technical tradeoff factor.  Additionally, FAR 15.101-2 expressly states LPTAs may not use past performance as part of a comparative assessment.Takeaways:Although LPTAs remain unpopular for IT, personal protective equipment, or knowledge-based training, this does not preclude solicitations with go/no-go technical acceptability factors.  As long as there is a tradeoff between price and non-price factors, the solicitation will not be viewed as an LPTA.<a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019cv0974-79-0">Chromalloy San Diego v. United States, No. 19-974C (Fed. Cl., Nov. 8, 2019)</a>In Chromalloy, the protester alleged three counts of agency misconduct in violation of CICA and FASA.  Chief Judge Sweeney found that national security concerns would have prohibited injunctive relief even had the protester succeeded on the merits.After GE successfully persuaded the Government that the Government could not provide technical data to any offeror without the required license, the Navy revised its solicitation for overhaul services of the LM2500 gas turbine engine to require the offeror to possess a current GE Level IV license in order to be technically acceptable.  Chromalloy unsuccessfully challenged the revised solicitation at the Government Accountability Office.  Chromalloy then protested the solicitation at the Court of Federal Claims, claiming the solicitation was unduly restrictive because it required independent access to GE technical manuals, GE manufactured special tools, and GE-certified spare parts.  GE was the original equipment manufacturer (OEM) of the engine at issue.  Chromalloy had previously serviced the same engines for the Navy under another contract.  At the time of the solicitation, however, market research showed only three potential offerors—of which Chromalloy was not one—met the key requirement of being a GE Level IV licensed commercial depot.Chromalloy challenged access to the technical manuals on two grounds.  First, the requirement exceeded the government’s “minimum needs” in doing so because adequate research would have revealed the engines were developed with public funds, granting the Navy sufficient rights to allow disclosure of the manuals to its contractors. Second, requiring independent access was a non-competitive procedure that the government failed to properly justify.The Court found the Navy had conducted more than a de minimis investigation into its data rights, and therefore could reasonably require offerors to demonstrate either GE Level IV licensure or independent access to the technical manuals.  On the second point, the Court held that independent access was a technical requirement, not a noncompetitive procedure, relying on the Federal Circuit’s distinction in National Government Services, Inc, 923 F.3d 977 (Fed Cir. 2019).  In National Government Services, the procuring agency implemented workload caps, limiting the amount of contract responsibility any one contractor could win, as evaluation criteria.  The Court held that a solicitation requirement is not noncompetitive simply because it has the effect of excluding some offerors.  The workload caps were based on the agency’s attempt to divvy up contracts in a way to ensure business continuity and a competitive market and were unobjectionable.  Similarly, the Navy’s independent access requirement for GE technical data is a technical capability requirement such that CICA restrictions are inapplicable.Chromalloy also contended that the GE special tool requirement violated the Competition in Contracting Act (CICA) as being unduly restrictive of competition because the Federal Aviation Administration permitted the use of equivalent tools for maintaining aircraft engines, and the Navy had previously procured similar services without such a requirement.  The Court held this argument abandoned, because in its motion on the record, the protestor had switched to arguing that FAR provision 11.105 prohibited requiring brand-name products.  On that alternative argument, the Court found it fatal to the argument that FAR 11.105 applies only to the acquisition of end products, not the products used to perform services.When Chromalloy next argued that the requirement for special tools was inconsistent with standard commercial practices in violation of the Federal Acquisition Streamlining Act of 1994 (FASA), the Court held it dispositive that Chromalloy had failed to satisfy the protester’s burden of establishing the existence of such a customary commercial practice.  Because Chromalloy conceded that it did not own, or have access to certain required, GE-manufactured tools, the Court found Chromalloy’s failure to prove the special tool requirement violated CICA or FASA was independently fatal to Chromalloy’s cause.  Furthermore, because Chromalloy could not meet the requirements of the solicitation, its challenge of the GE-certified spare parts requirement was moot.Finally, the Court pointed out that even had Chromalloy succeeded on the merits of its arguments, the injunctive relief it sought was beyond the Court’s power to grant, because national security required timely maintenance to support critical missions such as Anti-Air Warfare, Undersea Warfare, Naval Surface Fire Support, and Surface Warfare, on account of the Navy’s “entire fleet” having installed the LM2500 engines.Takeaways:This case demonstrates the importance of knowing and protecting intellectual property rights, because it was on the basis of these technical data rights that the case ultimately pivoted.  GE came down swift and hard when it heard the solicitation considered awarding the maintenance contract to an unlicensed offeror, reminding the Navy of contractual commitments to protect GE’s trade secrets, the disclosure of which would “irreparably undermine” the “mutually advantageous relationship” existing between the Navy and GE.Additionally, protesters should ensure that they are following up on arguments from their claims to their motions on the administrative record.  Failure to do so will result in an argument being deemed abandoned.<a href="https://www.gao.gov/assets/710/702708.pdf">Becton, Dickinson and Company, B-417854, Nov. 15, 2019</a>Despite a creative argument, Becton, Dickinson and Company (BD) had its protest against the Department of Veterans Affairs (VA) dismissed by the GAO for failing to state a claim when it argued that the Trade Agreements Act (TAA) rather than the Buy American Act (BAA) should be applied to small businesses when a non-manufacturer rule (NMR) wavier is issued.The Department of Veterans Affairs (VA), seeking to supply patient exam room instruments and supplies, issued a request for quotations (RFQ) to establish a blanket purchase agreement (BPA).  Quotes were to be evaluated through a tiered method, considering first Service-Disabled Veteran-Owned Small Businesses (SDVOSB), then Veteran-Owned Small Businesses (VOSB), other small business concerns (SBC), and finally large businesses. Given the tiered evaluation method, not all clauses applied to every offeror.  The solicitation included clauses for both the BAA (which applied only to small businesses) and the TAA (which applied only to large businesses).  Furthermore, an NMR waiver had been granted, allowing small businesses to supply the products of any size business without regard to the place of manufacture.The protester argued that unequal treatment results if the BAA is applied to small businesses and the TAA to large businesses when an NMR waiver has been granted, because the BAA then allows SBCs to propose products from non-TAA countries such as China, whereas large businesses are restricted to domestic or TAA designated-country end products.  The GAO dismissed the complaint, finding the protester alleged facts that, even if contradicted, failed to show the VA violated applicable statutes or regulations because the VA was simply following the FAR, which explicitly states that the BAA applies to SBCs and the TAA does not.Takeaway:Given that the GAO’s jurisdiction is limited to ensuring that the statutory requirements for full and open competition are met, the GAO is probably the wrong tribunal before which to bring a policy challenge.  In hindsight, the protestors here may feel their challenge was doomed from the start.  It remains important at the outset of a legal challenge to consider the jurisdiction of the tribunal before which one seeks to bring one’s complaint.<a href="https://www.gao.gov/assets/710/702867.pdf">Blue Origin Florida, LLC, B-417839, November 18, 2019</a>The GAO sustained a pre-award protest challenging a methodology of comparing two independently developed proposals against each other to determine best value, rather than each proposal evaluated on its own merits against evaluation criteria.  The protester’s other grounds challenging the solicitation, for undue restriction of competition, ambiguous price evaluation methodology, and provisions contrary to commercial practice, were denied.The Department of the Air Force issued a request for proposals for the National Security Space Launch (NSSL) Phase 2 Launch Service Procurement, which sought to procure commercial item launch services.  The NSSL program involves a multi-phase strategy.  Phase 1 involved the sole source acquisition of rockets to fulfill launch requirements while NSSL develops, and other transaction agreements issued to awardees to develop and test rocket propulsion systems, launch systems, etc.  Phase II of the program contemplates awarding two firm fixed-price requirements contracts for launch services with annual ordering periods from 2020 to 2024.  The agency did not propose a typical source selection, where the agency would rank proposals and conduct individual tradeoff determinations for the first and second contract awards.  Instead, the solicitation stated that award would be made to the two offerors that, “when combined, represent the overall best value to the Government.”  In other words, the agency did not intend to conduct tradeoffs based on individual proposals, but based on paired proposals.  In the case of four proposals received from offerors A, B, C, and D, the Air Force would then pair each combination up and evaluate them: AB, AC, AD, BC, BD, and CD.  The contracting officer explained that this allows hypothetical leeway, to provide for instances where possibly the two highest individually ranked proposals might not be the best pair in combination.The protester challenged the “when combined” best-value methodology as ambiguous and divorced from the solicitation’s evaluation criteria.  A competitor cannot intelligently compete for award with no insight into the attributes of another independently submitted proposal and how those attributes may align with the competitor’s.  The Air Force argued that the solicitation was not ambiguous and adequately specifies evaluation factors and weighting.  The “when combined” approach is merely designed to highlight the agency’s discretion in determining which offerors are best value.  The GAO disagreed with the agency.A solicitation must contain sufficient information to allow offerors to compete intelligently and on equal terms.  The GAO held that the solicitation under this procurement failed to provide an intelligible and common basis for award.  The agency “expressly anticipates not making the source selection decisions based on the evaluation of individual proposals as evaluated against the RFP’s specified evaluation criteria, but rather anticipates evaluating pairings of proposals using the undefined criterion of whether two individually developed and submitted proposals are the most complementary of one another.”  The contracting officer’s example of the top two proposals not being the best value “when combined” demonstrates that the enumerated evaluation criteria or relative weights may not be the basis for the selection decision.Takeaway:Always read solicitations carefully to determine whether there are any ambiguities.  Ambiguities should first be raised in the question and answer (Q&A) portion of the procurement process.  If that fails, pre-award protests must be filed with GAO prior to the deadline for receipt of proposals.*Markus Speidel is a Law Clerk in our Washington, D.C. office and not admitted to the bar.

November 2019 Bid Protest Roundup (Law360 Spotlight)

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November 2019 Bid Protest Roundup (Law360 Spotlight)

GAO Finds CIO-SP4 Solicitation Is Unduly Restrictive of Competition

This installment of our monthly bid protest Law360 spotlight examines four protest decisions released in November 2019.  In Inserso, GAO clarifies that a techni

November 2019 Bid Protest Roundup (Law360 Spotlight)

On Thursday, December 12, 2019, Morrison & Foerster Government Contracts practice Co-Chair Kevin Mullen will once again be a featured speaker at PubKGroup’s Annual Review 2019 webinar. The program will feature over 20 speakers from government, industry, and private practice to speak on the latest legislative and regulatory developments in contracts law. Kevin will moderate the panel “Protests” from 9:00AM-9:50AM EST.The webinar is free to the public and PubKGroup will offer free CLE credit for PubK subscribers.Date: Thursday, December 12, 2019Time: 9:00AM-4:30PMLocation: Webinar

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Kevin is former Co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. 

Kevin Mullen

Kevin is former co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. He has broad experience in numerous facets of government contracts matters including agency procurements, subcontracting, teaming and joint venture relationships, contract performance issues, intellectual property, compliance matters, due diligence for mergers and acquisitions, and procurement fraud matters.

Kevin P. Mullen

MoFo’s Kevin Mullen to Speak at PubKGroup’s Annual Review 2019

On Thursday, December 12, 2019, Morrison & Foerster Government Contracts practice Co-Chair Kevin Mullen will once again be a featured speaker at PubKGroup’s Ann

MoFo’s Kevin Mullen to Speak at PubKGroup’s Annual Review 2019

The Government Accountability Office (GAO) has released its <a href="https://www.gao.gov/assets/710/702551.pdf">report on bid protest statistics for Fiscal Year 2019</a>. As in past years, the GAO’s figures count supplemental protests by the same protester and other parties’ protests of the same procurement as separate cases. This means a few heavily challenged procurements can result in numbers that may not mean exactly what one might expect them to mean. Here, at a glance, are the GAO’s findings:<table style="width: 100%;"><tbody><tr><td width="18%" style="width: undefined; height: auto;"></td><td width="16%" style="width: undefined; height: auto;">FY2019</td><td width="15%" style="width: undefined; height: auto;">FY2018</td><td width="13%" style="width: undefined; height: auto;">FY2017</td><td width="17%" style="width: undefined; height: auto;">FY2016</td><td width="17%" style="width: undefined; height: auto;">FY2015</td></tr><tr><td width="18%" style="width: undefined; height: auto;">Cases Filed</td><td width="16%" style="width: undefined; height: auto;">2198 (down 16%)</td><td width="15%" style="width: undefined; height: auto;">2607 (less than 1% increase)</td><td width="13%" style="width: undefined; height: auto;">2596 (down 7%)</td><td width="17%" style="width: undefined; height: auto;">2789 (up 6%)</td><td width="17%" style="width: undefined; height: auto;">2639 (up 3%)</td></tr><tr><td width="18%" style="width: undefined; height: auto;">Cases Closed</td><td width="16%" style="width: undefined; height: auto;">2200</td><td width="15%" style="width: undefined; height: auto;">2642</td><td width="13%" style="width: undefined; height: auto;">2672</td><td width="17%" style="width: undefined; height: auto;">2734</td><td width="17%" style="width: undefined; height: auto;">2647</td></tr><tr><td width="18%" style="width: undefined; height: auto;">Merit (Sustain + Deny) Decisions</td><td width="16%" style="width: undefined; height: auto;">587</td><td width="15%" style="width: undefined; height: auto;">622</td><td width="13%" style="width: undefined; height: auto;">581</td><td width="17%" style="width: undefined; height: auto;">616</td><td width="17%" style="width: undefined; height: auto;">587</td></tr><tr><td width="18%" style="width: undefined; height: auto;">Number of Sustains</td><td width="16%" style="width: undefined; height: auto;">77</td><td width="15%" style="width: undefined; height: auto;">92</td><td width="13%" style="width: undefined; height: auto;">99</td><td width="17%" style="width: undefined; height: auto;">139</td><td width="17%" style="width: undefined; height: auto;">68</td></tr><tr><td width="18%" style="width: undefined; height: auto;">Sustain Rate</td><td width="16%" style="width: undefined; height: auto;">13%</td><td width="15%" style="width: undefined; height: auto;">15%</td><td width="13%" style="width: undefined; height: auto;">17%</td><td width="17%" style="width: undefined; height: auto;">23%</td><td width="17%" style="width: undefined; height: auto;">12%</td></tr><tr><td width="18%" style="width: undefined; height: auto;">Effectiveness Rate</td><td width="16%" style="width: undefined; height: auto;">44%</td><td width="15%" style="width: undefined; height: auto;">44%</td><td width="13%" style="width: undefined; height: auto;">47%</td><td width="17%" style="width: undefined; height: auto;">46%</td><td width="17%" style="width: undefined; height: auto;">45%</td></tr><tr><td width="18%" style="width: undefined; height: auto;">ADR (cases used)</td><td width="16%" style="width: undefined; height: auto;">40</td><td width="15%" style="width: undefined; height: auto;">86</td><td width="13%" style="width: undefined; height: auto;">81</td><td width="17%" style="width: undefined; height: auto;">69</td><td width="17%" style="width: undefined; height: auto;">103</td></tr><tr><td width="18%" style="width: undefined; height: auto;">ADR Success Rate</td><td width="16%" style="width: undefined; height: auto;">90%</td><td width="15%" style="width: undefined; height: auto;">77%</td><td width="13%" style="width: undefined; height: auto;">90%</td><td width="17%" style="width: undefined; height: auto;">84%</td><td width="17%" style="width: undefined; height: auto;">70%</td></tr><tr><td width="18%" style="width: undefined; height: auto;">Hearings</td><td width="16%" style="width: undefined; height: auto;">2% (21 cases)</td><td width="15%" style="width: undefined; height: auto;">0.51% (5 cases)</td><td width="13%" style="width: undefined; height: auto;">1.70% (17 cases)</td><td width="17%" style="width: undefined; height: auto;">2.51% (27 cases)</td><td width="17%" style="width: undefined; height: auto;">3.10% (31 cases)</td></tr></tbody></table>With 2,198 protest actions filed in FY 2019 – a 16 percent drop since last year, and the lowest number in the last five years – the total number of bid protests filed continues to relate to a mere fraction of one percent of all U.S. Government procurements. When one considers that the 2,198 figure relates to significantly fewer than 2,198 individual procurements, the fraction is even smaller still. As these statistics show, there is not and never has been an “epidemic” of bid protests.As in prior years, the most interesting figure this year is the 44 percent “effectiveness rate.”  Unchanged since last year and remarkably stable over a number of years, this rate reflects the percentage of protest actions where the protester receives some form of relief – either in a published GAO decision sustaining the protest on the merits or in an agency voluntarily taking corrective action without the GAO publishing a decision. This means that, in nearly half of all protests, there are enough problems in the procurement to cause the agency to take corrective action – either voluntarily or as a result of a GAO decision. This does not necessarily mean the protester ends up winning the contract, but it does mean the protester has “won” the protest.The “sustain rate” – the percentage of published merits decisions that result in at least one protest ground being sustained – is a much less interesting number because barely a quarter of all protests filed will result in a published merits decision. The fact that 44 percent of all protest actions result in relief for the protester, but the GAO sustained a protest in only 13 percent of all published merits decisions this year, means a protester’s likelihood of success drops significantly if the agency (which should know exactly what is in the procurement file) decides to fight the protest to the end.None of this is surprising. What is surprising in this year’s statistics is that the number of hearings has quadrupled from five cases (0.51 percent of all fully-developed protests) last year to 21 cases (2 percent) this year. Seen in the context of the last five years, however, one sees that FY 2019 is well within the norm, which suggests that FY 2018 may have been an outlier rather than a harbinger of the disappearance of hearings altogether. In any event, even if the FY 2019 hearing numbers are again within the norm of the recent past, 21 hearings out of a total 2,198 cases filed means that hearings continue to be very rare occurrences, indeed.The last statistic worth mentioning is the dramatic reduction in Alternative Dispute Resolution (ADR), from 86 cases in FY 2018 to only 40 in FY 2019. Of those 40 ADR cases, though, a full 90 percent of them were “successful” in the sense of resolving the protest without a need for formal GAO decision. In a GAO protest, ADR generally takes the form of outcome prediction:  the assigned GAO attorney convenes a teleconference with the parties and presents a summary of his or her view of the merits of the protest. This gives the agency an opportunity to announce corrective action if a sustain is predicted and gives the protester the chance to withdraw the protest if a deny is predicted. The GAO typically will offer outcome prediction only if both the protester and the agency agree “seriously to consider” corrective action/withdrawal if the outcome prediction is unfavorable.

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 litiga

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GAO Bid Protest Statistics for FY 2019

The Government Accountability Office (GAO) has released its report on bid protest statistics for Fiscal Year 2019. As in past years, the GAO’s figures count sup

GAO Bid Protest Statistics for FY 2019