Corporate Transactions as a Basis for Protest (Post-Award Protest Primer #18)
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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.
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- Most corporate transactions go forward without protests. Several prominent protest decisions over the last few years, however, have drawn attention to the complicated and sometimes unpredictable effect corporate transactions can have on pending procurements. This uncertainty is exacerbated by the (often required) secrecy around... ›
Soothsaying Oracle: What GAO’s Decision Concerning DoD Prototype OTAs Means for DoD and Beyond
By: Damien C. Specht, Tina D. Reynolds, Locke Bell and Victoria Dalcourt AngleOther Transaction Agreements (OTAs): The term is familiar among government contractors, yet commonly misunderstood. Recently, the Government Accountability Office (GAO), in Oracle America, Inc. , B-416061, May 31, 2018, 2018 CPD ¶ ___ , defined OTAs as “legally-binding instruments, other than contracts, grants, or... ›
Unreasonableness And Lack Of Documentation (Post-Award Protest Primer #17)
By: James A. TuckerToday’s installment of the post-award protest primer combines two frequent, related protest grounds: (1) unreasonable evaluations and source selection decisions and (2) insufficient documentation. In a future post, we’ll look more granularly at protest grounds best value tradeoffs in particular and the duties of... ›
Sikorsky: What the GAO Said and Did Not Say About Soliciting Data Rights
By: W. Jay DeVecchio and Locke BellThe GAO’s decision last week, denying in part and dismissing in part Sikorsky Aircraft Corporation’s much-watched protest of the Air Force’s solicitation to replace the UH-1N helicopter, deals an early (if light) blow to contractors in their fight against the Air Force’s recent data... ›
A New Bid Protest Timeliness Trap: Pre-Award Laches
By: James A. TuckerOn this blog, we frequently discuss the various timeliness traps that can undermine bid protests at the Government Accountability Office (GAO). A recent bid protest decision from the Court of Federal Claims addresses a timeliness trap that is rare and has never before been... ›
Bad Faith and Biased Procurement Officials (Post-Award Protest Primer #16)
By: James A. TuckerWe previously have referred in passing to Government bad faith as a protest ground that almost never is worth raising. Today, we’ll address this rarely successful protest ground and discuss why it’s almost always a loser, as well as the rare circumstances in which... ›
Procurement Integrity Act Violations (Post-Award Protest Primer #15)
By: James A. TuckerOfferors should, and generally do, carefully guard the confidentiality of their bid and proposal information. And agencies that receive that information generally are careful to prevent its improper release, much as they guard against release of other source selection sensitive information. The Procurement Integrity... ›
Bait-And-Switch And Unavailable Key Personnel (Post-Award Protest Primer #14)
By: James A. TuckerThe bait-and-switch in the salesman’s world involves enticing a prospective customer with an unbelievably good deal, only to switch it at the last moment with a bargain that is considerably less attractive to the buyer, and far more profitable for the seller. A version... ›
Organizational Conflicts of Interest (Post-Award Protest Primer #13)
By: James A. TuckerToday we’ll consider Organizational Conflicts of Interest (OCIs) as a ground of protest. The Federal Acquisition Regulation (FAR) defines an OCI as a situation where “because of other activities or relationships with other persons, a person is unable or potentially unable to render impartial assistance... ›
Discussions Vs. Clarifications Vs. Communications, and Agency Discretion (Post-award Protest Primer #12)
By: James A. TuckerIn our last post, we looked at the most common protest grounds related to discussions: lack of meaningful discussions, misleading discussions, and unequal discussions. Today we’ll discuss how discussions differ from clarifications and pre-competitive range communications, as well as the Government’s discretion to conduct... ›