Snowmen In August: Strict Compliance And Government Waiver of Contract Requirements
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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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- The Government “can engage a contractor to make snowmen in August, if [it spells] it out clearly [in a contract].” Rixon Electronics, Inc. v. United States , 536 F.2d 1345, 1351 (Ct. Cl. 1976). And the contractor generally must make the snowman as the... ›
DOD Protest Reform: Initial Thoughts on the Congressionally-Mandated RAND Report
By: James A. Tucker
The RAND Corporation’s much-awaited report assessing bid protests of Department of Defense (DOD) procurements is out. The report fulfills a Congressional mandate in the National Defense Authorization Act (NDAA) for FY 2017 to analyze a variety of issues relating to protests of DOD acquisitions. The... ›Organizational Conflicts of Interest (Post-Award Protest Primer #13)
By: James A. Tucker
Today 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... ›Court of Federal Claims Rejects SBA Decision That Future Conditional Restriction on Stock Ownership Destroys “unconditional Ownership”
By: Damien C. Specht and Locke Bell
Veteran-owned small businesses have long grappled with seemingly benign drafting inconsistencies between Small Business Administration (SBA) and Department of Veterans Affairs (VA) regulations that can leave a business qualified as a Service-Disabled Veteran-Owned Small Business (SDVOSB) by VA standards, but not at the SBA... ›Discussions Vs. Clarifications Vs. Communications, and Agency Discretion (Post-award Protest Primer #12)
By: James A. Tucker
In 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... ›Non-meaningful, Misleading, and Unequal Discussions (Post-award Protest Primer #11)
By: James A. Tucker
Today’s post is the first of two installments on protest grounds related to discussions. This post will focus on the requirement that discussions be meaningful and not misleading, and treat offerors equally. The next post will look at the difference between discussions and other types of... ›Unstated Evaluation Criteria And Waived Solicitation Requirements (Bid Protest Primer #10)
By: James A. Tucker
This week we’ll discuss two protest arguments that are, in some ways, two sides of the same coin: unstated evaluation criteria and waived or relaxed solicitation requirements. In each, the focus of the protest is on what was required (or not required) by the... ›Latent Ambiguities and Non-Apparent Solicitation Defects (Post-Award Protest Primer #9)
By: James A. Tucker
Having discussed protest grounds you cannot or should not raise ( here and here ), we turn now to the first in a series of grounds that could result in a sustained protest: Latent Ambiguities and Non-Apparent Solicitation Defects. We’ve previously noted the rule... ›Substantively Non-Protestable Issues (Post-Award Protest Primer #8)
By: James A. Tucker
In our last post, we discussed a few procedural rules that can exclude an otherwise meritorious ground from protest. There are also a number of substantive issues that the GAO’s rules exclude from review. See 4 C.F.R. § 21.5. We address them below, plus a... ›NAICS Code Appeals: One Size Does Not Fit All
By: Damien C. Specht and James A. Tucker
The federal government sets aside many contracts for small businesses, but not all small business set-asides are created equal. Instead, different size standards define small business status for different procurements. The size standards vary from industry to industry, so a given firm may be... ›