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.

J. Alex Ward

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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.

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

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James A. Tucker

Less Oversight and Undefined Penalties: The NDAA’s Proposed Protest Reforms

The Tortured Regulations Department: SBA’s New Rule and Its Effect on Investments

Bid Protest Spotlight: Standing, Relationships, Responsibility

House’s Passage of the SAMOSA Act Signals Policy Shift Towards Government-Wide Enterprise Software Licensing

New DFARS Regulation on Small Business Affiliate Past Performance

On January 29, 2024, the Biden administration issued a <a href="https://www.federalregister.gov/documents/2024/01/30/2024-01343/office-of-federal-procurement-policy-federal-acquisition-regulation-pay-equity-and-transparency-in" target="_blank">Proposed Rule</a> that would prohibit federal contractors from seeking and considering compensation history when making employment decisions and require contractors to disclose compensation being offered in job postings. If implemented, the requirements will apply broadly to all federal contracts and subcontracts that are principally performed in the United States and cover all jobs that work on or in connection with a covered contract. Covered applicants and employees can submit complaints of alleged violations to the applicable contracting agency to “take action as appropriate,” and those agencies must forward to the Office of Federal Contract Compliance Programs (OFCCP) any such complaints that also allege discrimination.Read the full <a href="https://www.mofo.com/resources/insights/240131-proposed-rule-seeks-to-mandate-pay-transparency" target="_blank">client alert</a>.

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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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Keniece Gray is an associate in the Litigation Department of Morrison Foerster’s Washington, D.C. office.

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On January 29, 2024, the Biden administration issued a Proposed Rule that would prohibit federal contractors from seeking and considering compensation history when making employment decisions and require contractors to disclose compensation being offered in job postings.

Proposed Rule Seeks to Mandate Pay Transparency and Ban Using Salary History for Federal Contractors

This month’s Bid Protest Roundup include decisions regarding supplementation of the record and whether an agency may convert a sealed bid opportunity into a negotiated procurement due to lack of funds, as well as a case in which the Court of Federal Claims found a GAO precedent failed to provide a rational basis to reject a bid.Global K9 Protection Group, LLC v. United States, Court of Federal Claims, December 27, 2023In Global K9 Protection Group, LLC v. United States, the Court of Federal Claims (COFC or the “Court”) found that materials containing information related to an awardee’s past performance, as well as documentation of the Contracting Officer’s review of that information, were relevant materials admissible to supplement the administrative record at the Court.The subject solicitation, originally issued in September 2020, was for air cargo canine screening services for the United States Postal Service (USPS or the “Agency”), a service previously handled by the Transportation Security Administration (TSA) on USPS’ behalf. Award of the contract was most recently made to K2 Solutions, Inc. (“K2 Solutions”). Following two administrative disputes, a consolidated bid protest at Court (including two remands), re-solicitation, and another consolidated bid protest at the Court in 2022, the Agency awarded a shorter-term contract to K2 Solutions.This case consolidated the protests of Global K9 Protection Group, LLC (“GK9”) and Michael Stapleton Associates, LTD (MSA). After MJAR briefing had concluded, the Government brought to the Court’s attention issues with awardee K2 Solutions’ performance, which the Agency had indicated could lead to a change in operations whereby K2 Solutions would no longer be performing services for the Agency. The Court authorized supplemental briefing on the matter of K2 Solutions’ deficient performance. As is relevant here, at this stage, GK9 claimed that K2 Solutions had made material misrepresentations about its past performance, which led to the Government’s unreasonable award of the contract to K2 Solutions. GK9 sought to supplement the administrative record with a declaration from GK9 Chief Operating Officer Ronald Beason (the “Beason Declaration”) and accompanying materials, collectively addressing K2 Solutions’ performance shortcomings while K2 Solutions was engaged by GK9 as a subcontractor.In analyzing whether it could supplement the administrative record, the Court explained that in conducting review of an agency’s procurement decision, the primary focus should be those materials that were reviewed by the agency in making its award decision. As the Court reiterated, under the standard established in Axiom Resource Management v. United States,[i] the administrative record may only be supplemented in cases where “the omission of extra-record evidence precludes effective judicial review.”[ii] The Court determined that the Beason Declaration was not part of the administrative record and was not before the agency in its award decision; however, the Court admitted it nonetheless because the declaration was necessary to rule on K2 Solutions’ alleged material misrepresentation. Following similar reasoning, the Court also admitted to the record the declaration of USPS Contracting Officer Moore, which was necessary to fully review the material misrepresentation allegations and determine whether the Agency had acted in an arbitrary and capricious manner.The Court ultimately issued a permanent injunction disqualifying K2 Solutions from the solicitation, finding that GK9 had succeeded on the merits of its material misrepresentation claim, that GK9 was at risk of irreparable harm and was favored by the balance of harms, and that the public interest in fair competition and national security weighed in favor of an injunction. The Court noted that, although K2 Solutions was not a party to the case because it chose not to intervene, this did not prevent the issuance of an injunction since K2 Solutions opted not to participate in the proceedings and the Government represented K2 Solutions’ interests in defending the award. Separately, the Court denied MSA’s motion to supplement the administrative record with a statement from one of its employees on the basis that MSA did not have a substantial chance of receiving the award and therefore lacked standing.  The Court’s decision to allow supplementation of the administrative record demonstrates one of many potential consequences of prolonged litigation over awards, during which additional problems may continuously come to light and lead to further issues for parties to the matter.TakeawaysSupplementation of the record is a rare event at the Court of Federal Claims. The Federal Circuit set a high standard in Axiom that supplementation is permitted only when “necessary in order not ‘to frustrate effective judicial review.’” 564 F.3d at 1381. Supplementation is generally reserved for existing evidence that “was or should have been considered by the agency.”[iii]  Here, however, the court deemed it important to review additional evidence to determine whether allegations of material misrepresentation were true. The court has permitted litigants to supplement the record to show evidence of bad faith,[iv] and evidence generally known in an industry but inappropriately ignored by an agency.[v] This case shows that if important information is missing from the record, the bar to supplementation is high, but not insurmountable. Another takeaway is to think carefully before choosing not to intervene in protest challenging your award. Great Lakes Dredge & Dock Co., B-421676.4, December 19, 2023In Great Lakes Dredge & Dock Co, the GAO sustained a protest against the U.S. Army Corps of Engineers’ (USACE or the “Agency”) decision to convert a FAR Part 14 sealed bid procurement into a FAR Part 15 negotiated procurement on the basis that the price of the bids received exceeded available funds.In January 2023, the USACE issued an invitation for bids (IFB) under FAR Part 14 to replenish sand and repair the dune and berm system along a portion of the New Jersey coastline. Great Lakes Dredge & Dock Company (“Great Lakes”) was one of two bidders who responded. Bids were opened in March, and Great Lakes’ bid—the lowest bid received—was $67,609,987. This price exceeded both the Corps’ independent government cost estimate (“IGCE”) of $46,564,970, as well as the total amount of funds available for the project, $60,400,000.  The Corps considered other options, including use of additional funding, but Great Lakes’ bid still exceeded available funds. In May, the Corps canceled the IFB, citing unreasonable pricing in the bids it received and stating that cancellation was in the public interest, although it did not articulate precisely why the latter was true. A few days later, the Corps changed the method of procurement from a FAR Part 14 to a FAR Part 15 negotiated procurement and converted the IFB into a Request for Proposals.Great Lakes protested at the GAO, and the USACE elected to take corrective action to reassess its estimate and the decision to convert to a negotiated procurement methodology. The GAO subsequently dismissed the protest as academic. During corrective action, the Corps increased its IGCE by $6,329,106, but the lowest-priced bid, from Great Lakes, still exceeded the estimate. The Corps again chose to cancel the IFB and convert to a negotiated procurement. The contracting officer cited three reasons for the cancellation: (1) the prices of the bids received were unreasonably high; (2) those prices exceeded the IGCE by over 25%; and (3) the bids received exceeded available funding. The contracting officer determined separately that converting to a negotiated procurement was “in the best interests of the government . . . in accordance with FAR subsections 14.404-1(e) and (f).” Interestingly, the contracting officer acknowledged that agencies may not convert an IFB into a negotiated procurement if the IFB were canceled pursuant to FAR 14.404-1(c)(10). This provision permits cancellation when, “for other reasons, cancellation is clearly in the public’s interest.” The USACE notified Great Lakes of the decision to convert to a negotiated procurement, and Great Lakes again protested at the GAO.The GAO found that agencies may cancel solicitations when adequate funds are unavailable, regardless of any dispute over the validity of its estimates. Because management of funds depends on agency judgment regarding which projects to pursue, the GAO will not question an agency’s determination that funds are not available. Here, however, the GAO determined that the USACE’s decision to convert the IFB into a negotiated procurement violated procurement policy. The GAO explained that the FAR permits such a conversion when all bids received contained unreasonable prices, the procuring agency cannot determine price reasonableness, bids received were collusive or submitted in bad faith, or no responsible bidder submitted a bid. The FAR does not, however, permit such a conversion due to lack of available funds. In its protest filings, the USACE did not defend its IGCE, but instead defended its decision based on a determination that it lacked adequate funding. By not defending the IGCE, the USACE rendered the GAO unable to determine whether the USACE’s determination that the Agency was unable to award the contract was reasonable. The USACE’s failure to explain why the IGCE was reasonable also caused the GAO to find unreasonable the USACE’s decision to convert the procurement from a FAR Part 14 to a FAR Part 15 procurement. See FAR 14.404-1(e), 14.404-1(f). Because the only basis upon which the agency defended its decision was for lack of funding, FAR 14.404-1(c)(10), cancellation in the public interest was the only reasonable justification. That FAR provision, however, permits an agency only to cancel a procurement, not to convert an IFB into a negotiated procurement.TakeawaysAgencies have broad discretion to manage their budgets and to cancel procurements, subject to certain constraints. Agencies may, of course, cancel FAR Part 14 procurements if they do not have sufficient funds to pay the lowest-priced bidder for a project, but they may not convert an FAR Part 14 procurement into a negotiated procurement for that reason. A sealed bid procurement may be converted to a negotiated procurement only if all bids received were unreasonable, collusion or bad faith tainted the competition, no responsible offeror submitted a bid, or price reasonableness could not be determined. Had the USACE defended its estimate or demonstrated that one of those situations existed, it may have prevailed. Sharp-eyed counsel should scrutinize regulatory or statutory fetters on agency discretion to determine whether, as here, failing to defend an aspect of its procurement decision removes the very basis for its actions.Togiak Management Services, LLC v. United States, Court of Federal Claims, December 18, 2023In Togiak Management Services, LLC v. United States, another FAR Part 14 case involving the USACE, the COFC found the Agency lacked a rational basis for rejecting the protester’s bids.At issue were two solicitations seeking construction of bulkhead recesses for a dam in Minnesota. The solicitations required that bidders include bid bonds and further specified that “facsimiles of bids or modifications thereto” would not be accepted. After issuing these solicitations, the Department of Defense (DoD), the parent agency for the USACE, issued Class Deviation 1020-00016. The deviation, issued in response to the COVID-19 pandemic, permitted electronic signatures for documents pertaining to losses under contracts in accordance with FAR Part 28, which prescribes requirements for financial protections, including bonds.Togiak submitted a bid, and its surety applied a wet signature to the bonds and scanned them. Appended to each bond was a signed, sealed, notarized power of attorney. A Togiak representative printed the bonds and signed them with a wet signature, then scanned the bonds and sent them via email to a Togiak division manager, who scanned the bonds and added them to the submission packages (one for each solicitation). Each package contained a Standard Form 1442 (Solicitation, Offer and Award) with a wet signature from Togiak and a copy of the signed bid bond.The USACE notified Togiak the following month that its bid was rejected because the bid bond was a copy and did not have an original, wet signature. The Agency considered the bid guarantee “nonresponsive” to solicitation requirements and insufficient for contract award. Togiak protested to the COFC on two bases. First, Togiak challenged the decision based on the class deviation, which permitted copies of bonds without wet signatures; second, Togiak alleged that the agency improperly considered the bond a matter of responsiveness rather than responsibility.The Court found that the FAR did not specifically require an agency to treat the authenticity or enforceability of a bid bond as matters of responsibility; however, the Agency lacked a rational basis for rejecting Togiak’s bid because the GAO opinion it relied upon also lacked a rational basis. The Court rejected Togiak’s argument that the class deviation permitted it to send copies or facsimiles of documents. It found that the class deviation applied only to electronic signatures, which were to be considered original, but did not extend to include photocopies or facsimiles. The Court noted that none of the signatures on the bid bonds were true electronic signatures, but were instead copies of electronically transmitted signatures, which did not constitute “electronic signatures.”The Court also found that although the FAR 28.103 provides that questions regarding authenticity or enforceability of powers of attorney are treated as matters of responsibility, an agency is not required to conduct a responsibility determination if issues arise concerning a bid bond. The Court reasoned that tying bid bonds to this requirement would improperly expand the scope of FAR 28.103. Notwithstanding that finding, the Court determined that the GAO precedent the USACE relied upon did not provide a basis for rejecting Togiak’s bid. The USACE relied upon TJ’s Marine Construction,[vi] for the proposition that a photocopied bid bond was inherently nonresponsive.Further, the Court noted that this principle arises from an earlier GAO decision, Imperial Maintenance.[vii] In Imperial Maintenance, concerns regarding a bid guarantee included the fact that it was a photocopy, but the guarantee had additional issues, including the fact that it was addressed to the bidder rather than the government third-party beneficiary. Even so, the GAO held in Imperial Maintenance that “[t]he mere fact [that the letter] was a photocopy, in our opinion, is sufficient to render the instrument defective, since there would be no way (other than by examination of the original) that the agency could be certain that there had not been alterations to which the bank had not consented.” [viii] Additional cases the GAO cited in Imperial Maintenance also did not support the proposition that the fact that a bid guarantee was photocopied, standing alone, renders it defective. In one case, the bid bond was rejected because it had been materially altered,[ix] while in another, the GAO ruled that the protester could not show that its surety consented to alterations in the bid bond.[x] The Court went on to note that, nonetheless, the GAO had established a general principle that any photocopied bid bond was nonresponsive. The GAO’s decision in TJ’s Marine Construction, however, and the precedents underpinning it, do not support this principle. The Court reasoned that this made the GAO’s decision irrational, therefore the Agency’s reliance upon it rendered its decision to reject Togiak’s bid irrational as well.TakeawaysThe GAO and the Court of Federal Claims are, to a substantial extent, “non-overlapping magesteria.” While we expect the GAO to take note of this case, particularly concerning whether copies of bid bonds are prima facie invalid, the GAO is not obligated to do so. Additionally, judges of the Court of Federal Claims are also not required to accept each others’ rulings as precedent. Unless and until the Federal Circuit weighs in on the matter, it is not “guaranteed” that the GAO or the COFC will follow this ruling. However, this case is notable for its deep dive into GAO precedent and uncovers an interesting example of “precedential drift” that sometimes occurs in procurement law. Most importantly, it offers a fulsome and powerful analysis of the questionable origin of the principle that photocopied bid bonds are innately defective.[i] 564 F.3d 1374, 1380 (Fed. Cir. 2009).[ii] Id. (quoting Murakami v. United States, 46 Fed. Cl. 731, 735 (2000)).[iii] East West Inc. v. United States, 100 Fed. Cl. 53, 57 (2011). [iv] See Palantir USG Inc. v. United States, 129 Fed. Cl. 218, 238 (2016).[v] See Mori Associations Inc. v. United States, 98 Fed. Cl. 572, 575 (2011).[vi] B-402227, 2010 CPD ¶ 19 (January 7, 2010).[vii] B-224257, 87-1 CPD ¶ 34 ((January 8, 1987).[viii] Id. at 2. [ix] Ameron, Inc., B- 218262, 85-1 CPD ¶ 485 at 2 (Comp. Gen. Apr. 29, 1985).[x] Baucom Janitorial Service, Inc., B-206353, 82-1 CPD ¶ 356 at 2 (Comp. Gen. Apr. 19, 1982).

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GAO Finds CIO-SP4 Solicitation Is Unduly Restrictive of Competition

This month’s Bid Protest Roundup include decisions regarding supplementation of the record and whether an agency may convert a sealed bid opportunity into a negotiated procurement due to lack of funds, as well as a case in which the Court of Federal Claims found a GAO precedent failed to provide a rational basis to reject a bid.

December 2023 Bid Protest Roundup: Supplementation, Conversion, Rejection

Small business regulations create one of the stickier wickets in bid protest litigation. Although the Small Business Administration (SBA) has exclusive authority to determine a company’s size and socioeconomic status, the Government Accountability Office (GAO) sometimes must wrestle with size and status questions to adjudicate bid protests. The GAO’s recent decision in <a href="https://www.gao.gov/assets/870/864489.pdf" target="_blank" dir="ltr">Washington Business Dynamics, B-421953, B-421953.2, Dec. 18, 2023</a>, includes a lengthy analysis of a particularly complicated question: the effect of a merger or acquisition on a pending quotation for an order or Blanket Purchase Agreement (BPA) under a Federal Supply Schedule (FSS) contract. In this decision, the GAO held that, although a company recertified its size under an FSS contract following a merger or acquisition, that recertification did not trigger a further recertification in connection with its pending quotation for a BPA under that FSS contract. That, at least, was the outcome under the regulations as they stood at the time and the facts of this particular case.Factual BackgroundThe protest involved an Office of Personnel Management (OPM) Request for Quotations (RFQ) for a BPA under Federal Acquisition Regulation (FAR) Subpart 8.4. OPM issued the RFQ to service-disabled veteran-owned small businesses (SDVOSB) holding FSS contracts for professional services. The RFQ did not request vendors to recertify their size or status in connection with the procurement.On February 1, 2023, the protester (which was the incumbent for these services) submitted its quotation in response to the RFQ. At that time, and as of the date of its initial offer for its underlying FSS contract, the protester was an SDVOSB. On June 28, 2023, which was 147 days after it submitted its quotation, the protester was acquired by a non-SDVOSB firm and lost its SDVOSB status as a result. In accordance with FAR 52.219-28(b)(2), the protester timely notified OPM under the protester’s incumbent BPA of the acquisition and that it was no longer an SDVOSB.OPM completed the procurement for the new BPA, documented that the protester was no longer an SDVOSB, and awarded the BPA to a vendor with a lower price and equal non-price ratings. The protest followed.AnalysisAs a threshold matter—and the question on which this article focuses—OPM requested that the GAO dismiss the protest because the protester’s change in size status allegedly meant it was no longer eligible for award of the BPA. According to OPM, because the protester ceased to be an SDVOSB within 180 days after the submission of its BPA quotation, the protester was ineligible for award pursuant to 13 C.F.R. § 121.404(g)(2)(iii). That regulation, in the form it existed at release of the RFQ, provided:If the merger, sale or acquisition occurs after offer but prior to award, the offeror must recertify its size to the contracting officer prior to award.  If the merger, sale or acquisition (including agreements in principal [sic]) occurs within 180 days of the date of an offer and the offeror is unable to recertify as small, it will not be eligible as a small business to receive the award of the contract.  If the merger, sale or acquisition (including agreements in principal [sic]) occurs more than 180 days after the date of an offer, award can be made, but it will not count as an award to small business.13 C.F.R. § 121.404(g)(2)(iii) (emphasis added). SBA subsequently amended this regulation to provide that it applies not only to offers for the award of a contract, but also to offers for the award of an order or agreement; it appears unlikely this change would have altered the outcome here, but that is an open question, as the GAO found the amendment had no effect on this procurement. The GAO sought input from SBA, which apparently agreed with OPM and the awardee that the acquisition required the protester to recertify in connection with the procurement and, because the transaction occurred within 180 days after submission of the protester’s quotation for the BPA, the protester’s change in status made it ineligible for award.The GAO disagreed and found that OPM’s and SBA’s interpretation of the governing SBA regulations was unreasonable. In the GAO’s view, these recertification and ineligibility provisions do not apply to quotations for orders and BPAs under an FSS contract.  In Odyssey Systems Consulting Group, Ltd., B-419731 et al., July 15, 2021, 2021 CPD ¶ 260, the GAO previously considered the 180-day rule in the context of a task order competition under a non-FSS multiple-award contract, where the contract was previously set aside for small business. In that context, where the contracting officer had not specifically required a recertification in connection with the order, the GAO held that an offeror remains eligible for award of the order, regardless of any transactions or size status changes inside or outside the 180-day window. As we have <a href="https://govcon.mofo.com/topics/220222-january-2022-bid-protest-roundup" target="_blank" dir="ltr">previously discussed</a>, SBA’s Office of Hearings and Appeals (OHA) has made the same determination. See Size Appeal of Odyssey Systems Consulting Group, Ltd., SBA No. SIZ-6135 (2021).Turning to the FSS BPA competition at issue here, the GAO began by quoting OHA’s recognition of the general rule that “a prime contractor that is small at the time of the contract award remains small for all orders issued under the contract, unless the [contracting officer], in his or her role discretion, chooses to request recertification on an individual order-by-order basis.” Size Appeal of EBA Ernest Bland Assocs. PC, SBA No. SIZ-6139 (2022), 2022 WL 529352 at *5.The GAO acknowledged that there are exceptions to this general rule. One of the exceptions applies to subsequent set-aside competitions under unrestricted multiple-award contracts. In such contexts, “a concern must recertify its size status and qualify as a small business at the time it submits its initial offer, which includes price, for the particular order or Blanket Purchase Agreement.” 13 C.F.R. § 121.404(a)(1)(i)(A) (for unrestricted multiple-award contracts assigned a single NAICS code); see also 13 C.F.R. § 121.404(a)(1)(ii)(A) (same for unrestricted multiple-award contracts assigned multiple NAICS codes). By the terms of the regulations themselves, however, this exception to the general rule does not apply to “orders and Blanket Purchase Agreements issued under any Federal Supply Schedule contract.” 13 C.F.R. § 121.404(a)(1)(i)(A); see also 13 C.F.R. § 121.404(a)(1)(ii)(A). Thus, there is no standalone requirement for vendors to recertify in connection with offers for orders or BPAs under an FSS contract. The GAO noted that SBA’s OHA has expressly held the same thing. Size Appeal of Oxford Gov. Consulting LLC, SBA No. SIZ-5732 (2016), 2016 WL 4990545 at *2 (“[R]ecertification is not required under a BPA issued against an FSS.”); see also Size Appeal of EBA Ernest Bland Assocs. PC, SBA SIZ No. 6139 (2022), 2022 WL 529352 at *6 (finding that, absent a specific order-level recertification requested by the contracting officer, there was no requirement to recertify at the FSS-order level).The GAO briefly noted that, for contracts already awarded, 13 C.F.R. § 121.404(g)(2)(i) (like FAR 52.219-28(b)) requires a contractor to recertify as small or notify the agency of a change in status under an awarded contract within 30 days after a merger, sale, or acquisition, where contract novation is not required. If the contractor is no longer small, the agency may continue to exercise options and issue new orders under the contract but can no longer count them towards its small business goals. This post-award recertification/notification requirement does not apply to pending offers.The GAO finally turned to 13 C.F.R. § 121.404(g)(2)(iii), which articulates the 180-day rule for pending offers. This rule is a creature of regulation and does not come from any specific statutory requirement. If a transaction occurs more than 180 days after the offer submission, and that causes a concern to exceed the size status, then, similar to 13 C.F.R. § 121.404(g)(2)(i), the concern remains eligible for the set-aside award, but the agency may not count the award towards its small business goals. If, however, the transaction occurs within 180 days after offer submission, then the concern will be ineligible to receive the award. The GAO agreed with the protester that 13 C.F.R. § 121.404(g)(2)(iii) is inapplicable to pending offerors for FSS orders or BPAs. The GAO observed that set-aside orders and BPAs issued against the FSS are expressly exempt from recertification requirements. 13 C.F.R. §§ 121.404(a)(1)(ii)(A), 121.404(a)(2). It also noted that SBA’s OHA has previously held that a transaction requiring an FSS contract-level recertification under 13 C.F.R. § 121.404(g)(2)(i) does not trigger a similar recertification obligation with respect to pending quotations for orders or BPAs under that FSS contract. Size Appeal of EBA Ernest Bland Assocs. PC, SBA SIZ No. 6139 (2022), 2022 WL 529352 at *4. Thus, consistent with this OHA holding, the GAO found the transaction had no effect on the protester’s eligibility for award of the BPA here.The GAO acknowledged, in a footnote, that the SBA raised policy reasons to support its position that the recertification regulations apply to all orders and agreements, including those under the FSS. But policy considerations cannot override the text of the regulations, which the GAO found expressly exempted FSS orders and agreements.The GAO, in another footnote, highlighted the “incongruous” results that would flow from OPM’s and SBA’s interpretation. Under the agencies’ interpretation, if the protester had been acquired before offer submission, then 13 C.F.R. § 121.404(a)(1)(ii)(A) would govern the subsequent BPA competition, under which the protester would not be required to recertify in connection with the offer and would be eligible for award. The GAO reasoned that, because there was no apparent reason for such an absurd result, the agencies’ preferred interpretation did not appear reasonable.The GAO noted its decision was “limited to the unique factual circumstances presented in this case,” but that was enough to find the protester was eligible for award and thus was an interested party with standing to protest. Unless the SBA amends its regulations, though, this decision will be instructive for FSS contractors in the not so “unique factual circumstances” of undergoing transactions while they have FSS order or BPA bids pending.Takeaways<ol><li dir="ltr">Small business regulations are complicated, as a general rule. And, as the GAO observed in Odyssey Systems, the regulations governing transactions in particular are “not a model of clarity.” Companies with small business contracts and proposals (and those interested in acquiring them) should seek legal counsel prior to any merger or acquisition.</li><li dir="ltr">Don’t assume the rules applicable to contracts are also applicable to orders and BPAs, or that the rules governing FSS orders and BPAs are the same as those governing non-FSS orders and agreements.</li><li dir="ltr">Careful parsing of the regulatory text is always necessary. What the small business regulations require and what the SBA intended them to require are not necessarily the same thing. Although the GAO will give due deference to SBA’s views, this and similar protest decisions show the GAO will not endorse an SBA interpretation that it finds is inconsistent with the text of a regulation.</li></ol>

GAO Finds Company's BPA BID Remains Eligible for Award Despite a Transaction, Recertification, and Change in Size Status in Connection with Its Underlying Federal Supply Schedule Contract

Anser Advisory

ARKA

Arlington Capital

Battle Investment Group

Behrman Capital

Cadmus

Chainalysis

CollabraLink

Definitive Logic

Emmes

Enlightenment Capital

Grant Thornton

Griffon Corporation

eTelligent

L3Harris

Jacobs

LinQuest Corporation

Micross

Sagewind

Sedgwick

Sigma Defense

teKnoluxion

The Building People

VariQ

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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

Damien Specht

Damien C. Specht

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 Finds Company's BPA BID Remains Eligible for Award Despite a Transaction, Recertification, and Change in Size Status in Connection with Its Underlying Federal Supply Schedule Contract

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

Small business regulations create one of the stickier wickets in bid protest litigation. 

On December 22, 2023, President Biden signed the <a href="https://www.congress.gov/bill/118th-congress/house-bill/2670" target="_blank" dir="ltr">National Defense Authorization Act for Fiscal Year 2024</a> into law after bipartisan congressional majorities approved the bill earlier in the month. The annual bill authorizes appropriations and sets policy for the Department of Defense (“DoD”) and generally reflects the priorities of the House and Senate Armed Services Committees. Below, we review select provisions likely to be of greatest interest to government contractors. Many of these provisions will only take effect after the government promulgates implementing regulations, following notice-and-comment procedures.Noteworthy ProvisionsContract Administration<ul><li>Expansion of Multiyear Contracts. A need for industrial base stability can now justify multiyear procurement contracts. Previously, multiyear contracts were only permissible if the DoD determined they would bring “significant savings” to the total price that the government would pay over the course of the contract. In expanding the availability of multiyear contracts, Congress determined that reliance on cost savings only was too restrictive and that promoting defense industrial base stability was sufficient justification for longer contracts. (Section 820)</li><li>Extension of Inflation Relief. The DoD will have more time to write inflation adjustments into fixed-price contracts as the NDAA extends an inflation relief program first enacted in the Fiscal Year 2023 NDAA by a year, until December 31, 2024. The program allows DoD contracting officers to make price adjustments to contracts as compensation for high inflation, even for fixed-price contracts that do not otherwise provide for economic price adjustment. (Section 824)</li><li>Waiver of Procurement Rules for Replenishment of Stockpiles. Emergency acquisition authorities can now be invoked to replace military supplies that have been provided to allies. This provision expands upon emergency acquisition authorities at 10 U.S.C. §  3601, which allow the military to waive certain procurement rules, including competition requirements, in emergency situations. The provision was designed to accelerate the pace at which the United States can refill its stockpiles of weapons and other equipment that have been sent to Ukraine. (Section 831)</li><li>Earned Value Management System Exemption. DoD contracts and subcontracts for purchase of software will be exempt from Earned Value Management System requirements. The DoD has 180 days from the NDAA’s enactment to update the Defense Federal Acquisition Regulation Supplement (DFARS) to implement this provision. (Section 827)</li></ul>Contracting Innovation<ul><li>Increasing Use of Commercial Products and Services. As part of its continued efforts to simplify the process for DoD acquisition of commercial goods and services, Congress has directed the Under Secretary of Defense for Acquisition and Sustainment to prepare a report about the feasibility of several measures that would reduce administrative barriers to procuring commercial goods and services. The first measure would “establish a default determination” that products and services the military buys are commercial. Another measure would direct more acquisitions under FAR Part 12, which contains specialized procedures for commercial purchases. (Section 875)</li><li>Supply Chain Scrutiny. The supply chains of five weapons platforms will receive greater scrutiny under a DoD pilot program. The pilot program should “identify critical suppliers” and “potential risks to and vulnerabilities of” those suppliers. The program could also be used to develop strategies to expand production of each platform’s components. New technologies, such as artificial intelligence and machine learning, could aid in the identification and analysis of supply chain vulnerabilities. (Section 856)</li><li>DoD to Obtain Enhanced Data Rights. Congress wants the DoD to experiment with innovative intellectual property strategies to acquire more data rights in information technology products. The suggested new strategies include holding intellectual property data in an escrow account or the innovative use of royalties and licenses. Each military department must select one acquisition program for the new strategies, and an additional program will come from one of the DoD agencies or field activities. DoD components have until May 1, 2024, to designate the data rights pilot programs. (Section 808)</li><li>New Technology Acquisition Model. The DoD will run a pilot program to buy “technology-supported” capabilities on an “anything-as-a-service” model. This acquisition model should “provide users on-demand access, quickly add newly released capabilities, and bill based on actual usage at fixed price units.” The pilot program should only include capabilities for which there is a measurable outcome that can be compared to results using more traditional acquisition methods. Contracts could be signed quickly under this pilot program: the provision directs the military to enter into a contract or agreement within 100 days of providing public notice for each capability that it seeks to buy. (Section 809)</li></ul>Small Businesses<ul><li>Affiliate Past Performance May Be Considered. Contracting officers may now consider the past performance of a small business’s affiliated companies as the past performance of the small business in proposal evaluation. The DFARS must be amended by July 1, 2024, to implement the provision. (Section 865)</li><li>New SDVOSB Certification Requirement. Contractors and subcontractors will no longer be able to self-certify their status as service-disabled veteran-owned small businesses (SDVOSB). This provision will take effect at the beginning of the first fiscal year after the Small Business Administration (SBA) promulgates regulations implementing an SBA certification process. Contractors that have previously self-certified as SDVOSBs will have one year after the NDAA’s enactment to file for certification with the SBA. If contractors file within that one-year period, their self-certification will remain valid until the SBA rules on their certification applications. (Section 864)</li><li>Change to Federal SDVOSB Goals. The goal for SDVOSB contracting has been increased to five percent across the whole federal government, up from three percent. The government-wide goal had stood at three percent of the total value of prime and subcontract awards for more than two decades. (Section 863)</li></ul>Antitrust<ul><li>Expanded Role for DoD in Antitrust Reviews. The DoD could take on a greater role in antitrust enforcement for the defense industry going forward. The NDAA requires companies to notify the DoD of certain defense-related transactions, specifically mergers and acquisitions that must be reported to the Department of Justice and Federal Trade Commission under section 7A of the Clayton Act. Notably, an earlier Senate draft also would have required notice to DoD of other types of investments and joint ventures involving major defense contractors, not just mergers and acquisitions, but this provision was not included in the final bill. (Section 857)</li></ul>Greenhouse Gas Reporting<ul dir="ltr"><li dir="ltr">Delay and Elimination of Reporting Requirements. The DoD may not require nontraditional defense contractors to report greenhouse gas emissions at all and may not compel other contractors to submit greenhouse gas reports for at least a year, starting with the enactment of the NDAA. The provision includes exceptions, so certain contractors might be forced to disclose emissions to verify other reports or disclosures. (Section 318)</li></ul>Sanctions and Other Foreign Country-Related Restrictions<ul><li>No Contracts to Russian Energy Partners. DoD cannot award contracts to companies that partner with Russian state-owned oil or gas companies or any other company that extracts oil or gas in Russia. The provision includes humanitarian aid exceptions. It will expire at the end of 2029 without congressional renewal. (Section 804)</li><li>No Consulting Advice to Russia or China. Consulting firms cannot work for the DoD if they also work with Chinese or Russian government clients or sanctioned companies in those countries, unless they receive a waiver and implement a mitigation plan. (Section 812)</li></ul>Noteworthy Omission<ul dir="ltr"><li dir="ltr">Bid Protest Fee Shifting Provision Fails Again. The NDAA did not include a provision, which had passed the House, that would have created a “loser pays pilot program” for bid protests at the Government Accountability Office. Under the draft provision, contractors with more than $250 million in annual revenues that lost a bid protest at the GAO would have been required to reimburse the DoD for the cost of fighting the protest. A nearly identical provision passed into law in the Fiscal Year 2018 NDAA but was repealed before taking effect.</li></ul>Ethan Sterenfeld, a Law Clerk, contributed to the writing of this post.

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

Tina Reynolds

On December 22, 2023, President Biden signed the National Defense Authorization Act for Fiscal Year 2024 into law after bipartisan congressional majorities approved the bill earlier in the month. The annual bill authorizes appropriations and sets policy for the Department of Defense (“DoD”) and generally reflects the priorities of the House and Senate Armed Services Committees.

Notable Provisions of the FY 2024 National Defense Authorization Act

An Overview of the Defense Department’s Long-Awaited Proposed Regulations for Its Cybersecurity Maturity Model Certification Program

An Overview of the Defense Department’s Long-Awaited Proposed Regulations for Its Cybersecurity Maturity Model Certification Program

The U.S. Department of Defense released a special holiday treat for government contractors and subcontractors last week in the form of long-promised proposed regulations for its Cybersecurity Maturity Model Certification (CMMC) program. 