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.

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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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Strengthening the American Drone Industrial Base

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

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

Ongoing FAR Overhaul: Market Research and the New FAR Part 10

This summer has seen two notable updates that parties to mentor-protégé joint ventures (MPJVs) should be aware of.First, buried in a <a href="https://www.federalregister.gov/documents/2024/07/22/2024-16011/tribal-consultation-for-hubzone-program-updates-and-clarifications-and-potential-reforms-under" target="_blank">Notice</a> that the U.S. Small Business Administration (SBA) issued on July 22, 2024, is a request for comments regarding updates that involve potential major implications for MPJVs. As most are aware, a joint venture between an SBA-approved mentor and protégé is exempt from standard affiliation rules and, as a result, can pursue work for which only the protégé would qualify. This structure was meant to be an incentive for larger firms to mentor and assist smaller ones. As of this writing, more than 1800 mentor-protégé pairs have found this incentive significant enough to participate in the SBA program. Now, SBA is considering muting this incentive by either eliminating the affiliation exception for MPJVs for (1) multiple award contracts or, alternatively, for (2) contracts or orders with a duration longer than five years. SBA is apparently concerned that MPJVs have been too successful and are winning an inordinate number of such contracts. If it seems odd to see an agency attempting to tamp down the success of its own program, that is because it is. If implemented, SBA’s proposed changes would significantly  limit the potential value of the mentor-protégé program for current and future MPJVs. This is because, as anyone watching the industry knows, more and more work is being awarded through GSA Schedules and government-wide multiple award vehicles that almost always have a duration that is longer than five years. Essentially, SBA would limit MPJVs to one-off awards in a way that no other small business program is limited. Without the exception from affiliation, MPJVs would no longer be eligible for award of multiple award contracts, or contracts or, alternatively, orders with a duration that is longer than five years. SBA’s concerns appear to be driven by (a) the success of MPJVs on long-term contracts (at the expense of other concerns) and (b) the life of the JV entities extending for significantly longer than the six-year mentor-protégé period. As to the first, SBA’s concern that MPJVs are winning too much work at the expense of standalone small businesses may be valid, but one would hope that it is outweighed by the benefits of the mentor’s work with the protégé. If the benefits of the relationship are falling short, SBA should focus there and not on the success of MPJVs themselves. As to the second possible concern, we are not aware of MPJVs existing in perpetuity. Instead, they exist as long as it takes to complete the work they have committed to completing and then to close out those contracts. That is the minimum the government should expect, rather than putting an artificial cap on their lifespan. SBA’s proposals here are also likely to have negative effects for standalone small businesses. Without MPJVs, agencies may find the small business rule of two difficult to satisfy and, as a result, larger contracts will simply be awarded on a full and open basis. A better solution would be to study what benefits protégé firms are receiving and how long-term protégé outcomes could be improved (if at all). Contracting Officers could also consider capping the number of MPJV awards for particular contracts or creating an MPJV pool if they share SBA’s concerns (which isn’t evident at the moment). Comments are due by September 17, 2024, but SBA did not indicate when it might issue a final rule.Second, the Eleventh Circuit issued a decision in <a href="https://media.ca11.uscourts.gov/opinions/pub/files/202213598.pdf" target="_blank">Yorktown Systems Group Inc. v. Threat Tec LLC</a> regarding a dispute between a mentor and its protégé.  Specifically, Yorktown, the mentor, was able to preliminarily enjoin the protégé, Threat Tec, from terminating a subcontract between the MPJV and the mentor for convenience. The lower court found, and the Eleventh Circuit agreed, that the protégé breached its fiduciary duty and could not hide behind the termination for convenience clause to “turn on the mentor” and act in its own interests to cut the mentor out of its share of work. The court went as far as saying the protégé’s actions were “the epitome of disloyalty.” Disputes among mentor and protégé pairs occur, but rarely do they spill over into court. This case serves as a reminder that just because a protégé is in control of an MPJV does not necessarily mean it has the unilateral right to unjustifiably terminate subcontracts between the MPJV and the mentor without repercussions. This case should also serve as a comfort to potential mentors who worry about protégés being given too much power over MPJVs due to SBA’s regulations requiring protégés to have control.It will be interesting to see how these issues play out in the future.

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

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

Summertime Sadness for Mentor Protégé Joint Ventures

The Federal Risk and Authorization Management Program (FedRAMP), the program for authorization of cloud services for sale to the federal government that has been around since 2011, is getting an upgrade. On July 25, 2024, the Office of Management and Budget (OMB) issued a memorandum titled “<a href="https://www.whitehouse.gov/wp-content/uploads/2024/07/M-24-15-Modernizing-the-Federal-Risk-and-Authorization-Management-Program.pdf" target="_blank">Modernizing the Federal Risk and Authorization Management Program</a>” (the “July OMB Memorandum”), which rescinds and replaces the December 8, 2011 OMB Memorandum, “<a href="https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/egov_docs/fedrampmemo.pdf" target="_blank">Security Authorization of Information Systems in Cloud Computing Environments</a>.” The July OMB Memorandum provides an updated “vision, scope, and governance structure for FedRAMP” in light of developments in the federal cybersecurity landscape and cloud marketplace, and it sets the stage for significant changes to FedRAMP over the coming months and years.­­­­One significant impact to cloud service providers (CSPs), including those with new artificial intelligence products and services, will be the changes to the FedRAMP authorization process. As the federal government pivots from government-specific cloud software services to commercial offerings, and as those offerings expand, it will be even more important to authorize additional technologies quickly and efficiently.  Governance StructureThe General Services Administration (GSA) has long held the lead agency role in administering and operating the FedRAMP Program Management Office (PMO), and that will continue to be case in the updated FedRAMP framework. As part of the FedRAMP update, however, the GSA will also be supported by the FedRAMP Board, which replaces the Joint Authorization Board (JAB) from the original FedRAMP. The FedRAMP Board is a governance body responsible for reviewing and approving FedRAMP policies, and for bringing together federal technology leaders to expand FedRAMP’s capacity for authorizing cloud services. The FedRAMP Board consists of at least one official from each of the GSA, the Department of Homeland Security (DHS), and the Department of Defense (DoD), as well as up to four additional officials from other agencies who are appointed by the OMB in consultation with the GSA. The GSA and the FedRAMP Board will also be supported by two advisory bodies:  the Federal Secure Cloud Advisory Committee (FSCAC) and the FedRAMP Technical Advisory Group (TAG). The FSCAC has both government and private-sector members and makes recommendations to the GSA regarding how to make FedRAMP more effective. By contrast, the TAG consists exclusively of federal technology experts who serve as subject matter experts and resources for continuous monitoring, performance risk assessments, and technical reviews of authorization packages.FedRAMP Authorization PathsFedRAMP has historically offered CSPs two paths to obtaining FedRAMP authorization to operate (ATO):  (1) authorization through the JAB (“JAB Authorization”) or (2) an individual agency ATO. The JAB Authorization process was intended to streamline the procedure for specific cloud offerings based on the JAB’s pre-vetting of the offering’s security and risk posture. It allowed an agency sponsor to issue an ATO based on its understanding that the JAB has already reviewed and approved the offering for use. In practice, very few CSPs were able to take advantage of this process. The “Agency Authorization” process required an individual agency sponsor to assess the security posture of an offering and then issue an ATO. Additional agencies that wanted to use the offering had to undertake their own reviews prior to issuing an ATO; although, in practice, many agencies relied on the prior agency ATO as a baseline for their review. This longstanding authorization framework will now undergo some significant changes:<ul><li>JAB Authorizations will be replaced by Program Authorizations. The JAB Authorization process will no longer exist because the JAB, itself, will no longer exist.  Instead, CSPs can seek “Program Authorizations” for their offerings.  Program Authorizations will be signed by the FedRAMP Director and are intended “to allow the FedRAMP program to enable agencies to use a cloud product or service for which an agency sponsor has not been identified, but for which use by a number of Federal agencies could be reasonably expected should the CSO be authorized.” In other words, Program Authorizations will allow CSPs to have their offerings authorized for use even if there is no particular agency lined up as a customer. This is a potentially significant change, as it could enhance a CSP’s ability to market its offerings government-wide. At the same time, there is a practical question of whether CSPs will invest time and resources in obtaining FedRAMP authorization without at least one agency customer lined up (temporary authorizations, discussed below, could address this concern). According to FedRAMP, in the short term, Program Authorizations will be limited to “CSPs who were either queued or prioritized to work with the Joint Authorization Board (JAB), with a future focus on building out criteria and an approach for opening this path market-wide.”  See The Next Phase of FedRAMP, <a href="https://www.fedramp.gov/2024-07-26-the-next-phase-of-fedramp/" target="_blank">https://www.fedramp.gov/2024-07-26-the-next-phase-of-fedramp/</a> (last accessed Aug. 5, 2024). </li><li>Agency Authorizations will accommodate multiple agencies.  Although the current Agency Authorization process will remain largely intact, one significant change will be that Agency Authorizations will not be limited to a single sponsoring agency. Rather, “[a]uthorizations can also be conducted jointly by multiple agencies, to enable a cohort of agencies with similar needs to pool resources and achieve consensus on an acceptable risk posture for use of the cloud product or service.” The FedRAMP Board will be responsible for identifying federal agency technology leaders to form such authorization groups. Thus, as with Program Authorizations, Agency Authorizations should allow for greater adoption and use of offerings across the federal government.</li><li>FedRAMP will consider additional authorization paths.  Although the July OMB Memorandum only identifies Program Authorizations and Agency Authorizations as pathways for FedRAMP authorization, OMB has also indicated that FedRAMP will consider additional authorization methods that promote the availability and adoption of commercial cloud offerings without sacrificing FedRAMP security standards. Whether such alternatives actually materialize is an open question, but the OMB’s openness to new pathways signals a renewed focus on flexibility to align with the rapidly evolving commercial cloud sector.</li></ul>Additional CSO DesignationsUnder the current FedRAMP regime, cloud offerings could receive a designation that the offering is “FedRAMP Ready,” “FedRAMP In-Process,” or “FedRAMP Authorized.” The FedRAMP Ready designation means a third-party assessor has attested to a particular cloud offering’s security capabilities, and that that a Readiness Assessment Report has been reviewed and deemed acceptable by the FedRAMP PMO. See <a href="https://www.fedramp.gov/about-marketplace/#:~:text=FedRAMP%20In%20Process%20indicates%20a,listed%20on%20the%20FedRAMP%20Marketplace." target="_blank">FedRAMP Marketplace Designations</a>. It typically means the offering has a high likelihood of achieving a FedRAMP authorization. Id. The FedRAMP In-Process designation indicates a CSP is actively working towards obtaining a FedRAMP authorization for its offering. Id. And, of course, the FedRAMP Authorized designation means the CSP has successfully completed the FedRAMP authorization process for the cloud offering and that the offering is now available for agency use. Id.One of the primary purposes of the FedRAMP Ready and FedRAMP In-Process designations is to increase agency awareness of cloud offerings that are in the pipeline for FedRAMP authorization, while also bolstering the FedRAMP marketplace with more offerings. In furtherance of this goal, the July OMB Memorandum indicates that the updated FedRAMP process may include the creation of additional designations for offerings that do not yet have full FedRAMP authorization. In particular, FedRAMP will develop procedures for issuing “a time-specific temporary authorization,” which would allow agencies to “pilot” the use of new cloud services before they are FedRAMP Authorized for no longer than 12 months. This temporary authorization would terminate at the end of the 12-month pilot period unless the offering has a FedRAMP In-Process designation.This temporary authorization process is a potential gamechanger.  First, it likely boosts the value of obtaining a FedRAMP Ready designation because that designation will put agencies on notice of a CSP’s offering and make it more likely that agencies would pursue a temporary authorization to use the offering before it obtains FedRAMP authorization. Second, it is likely to incentivize more CSPs to enter the public sector marketplace because the lead time to work with federal agencies will be reduced significantly. The FedRAMP PMO still needs to provide further guidance on how the pilot program will work, but this will likely be a key area of interest for CSPs.Automation and EfficiencyThe July OMB Memorandum identifies several initiatives aimed at increasing efficiency in the FedRAMP authorization and continuous monitoring processes. One focal point is an emphasis on automation. For example, the updated FedRAMP processes will require submission of all artifacts required for authorization and continuous monitoring in machine-readable format using application programming interfaces, to the extent possible.  Moreover, to promote interoperability, FedRAMP will work with stakeholders, including OMB, the National Institutes of Science and Technology, and the Cybersecurity and Infrastructure Security Agency, to support the submission of security assessment artifacts and continuous monitoring information using Open Secure Control Assessment Language (OSCAL), or any succeeding protocol, as defined by FedRAMP.  FedRAMP will also be exploring the use of artificial intelligence tools as part of the FedRAMP security assessment and continuous monitoring processes. Initial steps will include piloting emerging technologies to determine feasibility and utility.FedRAMP is also examining ways to drive efficiency in the authorization process through reliance on existing security frameworks. Recognizing that “[p]erforming an additional assessment of each offering every time a product that uses an existing certification goes through the FedRAMP process unnecessarily slows the adoption of such cloud computing products and services by the Federal Government,” the GSA and FedRAMP Board will establish criteria for accepting widely recognized external security frameworks and certifications (e.g., ISO, SOC II) applicable to cloud products and services. FedRAMP will initially target external security frameworks for offerings that are FIPS 199 impact level low, but it may expand to higher impact levels if feasible.Continuous MonitoringThe FedRAMP update also contemplates changes to the continuous monitoring process. Perhaps most significant is the directive that the FedRAMP PMO revise the continuous monitoring process to “empower CSPs to deploy changes and fixes at their own pace, without requiring advance approval from FedRAMP or an authorizing official for individual changes to existing FedRAMP authorized products and services.” This directive could signal the end of the current significant change process, which requires CSPs to complete the FedRAMP Significant Change Request Form and provide it to the authorizing official for analysis at least 30 days prior to implementing a significant change.Transition Away from Government-Specific Cloud InfrastructureAnother notable aspect of the FedRAMP update is the desire to “use the same infrastructure relied on by the rest of CSPs’ commercial customer base.” FedRAMP wants to leverage shared infrastructure between the federal government and the private sector because the “Federal Government benefits from the investment, security maintenance, and rapid feature development that commercial cloud providers give to their core products to succeed in the marketplace.” In other words, FedRAMP wants to take advantage of CSP innovations, which may be slower to migrate to federal government-specific versions of offerings. Depending on how this priority is implemented, it could mean many CSPs will no longer need to develop federal government-specific versions of their commercial offerings. This could both expand the universe of offerings available to the government and create financial benefits and efficiencies for CSPs.Implementation of the July OMB MemorandumOMB is requiring FedRAMP to submit annual plans in the second quarters of fiscal years 2025 and 2026 detailing planned program activities for implementing the updated FedRAMP framework, including staffing plans and budget information. In addition, OMB has established the following benchmarks:<ul><li>Within 180 days of issuance of the July OMB Memorandum, each agency must issue or update agency-wide policy that aligns with the memorandum’s requirements and promotes the use of cloud computing products and services that feed FedRAMP security requirements.</li><li>Within 180 days of issuance of the July OMB Memorandum, GSA will update FedRAMP’s continuous monitoring processes and associated documentation.</li><li>Within one year of the issuance of the July OMB Memorandum, GSA will produce a plan, approved by the FedRAMP Board and developed in consultation with industry, to structure FedRAMP to encourage the transition of federal agencies away from the use of government-specific cloud infrastructure. As part of the plan development process, GSA will explore the use of emerging technologies in various FedRAMP processes, as appropriate.</li><li>Within 18 months of the issuance of the July OMB Memorandum, GSA will build on existing efforts to receive FedRAMP authorization and continuous monitoring artifacts through automated, machine-readable means, to the extent possible.</li><li>Within 24 months of the issuance of the July OMB Memorandum, agencies shall ensure that agency governance, risk, and compliance and system-inventory tools can ingest and produce machine-readable authorization and continuous monitoring artifacts using OSCAL, or any succeeding protocol, as identified by FedRAMP.</li></ul>ConclusionThe proposed changes to the FedRAMP authorization process and subsequent implementation have the potential to expedite and simplify the authorization process, which would benefit government agencies and CSPs alike. The current timeline for authorization can average more than a year, discouraging some CSPs from participating. The potential recognition of other standards for federal government purposes would also increase the availability of offerings available for sale to the government. Finally, the federal government’s recognition of the value, and even superiority, of commercial offerings that are not customized specifically for government purposes will bring even more efficiencies to the authorization process.

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

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

Sandeep N. Nandivada

Sandeep Nandivada

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DOJ Cyber-Fraud Initiative Highlights Potential Civil Liability for Failing to Meet Federal Cybersecurity Requirements

FedRAMP to the Future

This month’s bid protest roundup summarizes three protest decisions released in July. The first discusses an agency’s ability to ignore information that an offeror does not place in the correct part of its proposal. The second addresses an agency’s duty to document why a proposal’s technical superiority is (or is not) worth a particular price premium. And the third decision explores the degree of adverse attention an agency may give to a small business protégé’s lack of experience in a mentor-protégé joint venture.Crittenton Consulting Group, Inc., B-422503, July 10, 2024In Crittenton Consulting Group, Inc., a disappointed offeror challenged weaknesses assigned to its quotation under corporate experience and technical expertise evaluation factors.Under the corporate experience factor, the Request for Quotations (RFQ) required offerors to submit a “Prior Similar Experience Information Sheet” with up to three recent contract references demonstrating experience performing work similar to the work being procured. The evaluators found, among other things, that the offeror’s information sheet failed to demonstrate experience in the disposition and conversion of outdated media—two tasks that would be required under the new task order. The offeror disputed the resulting weaknesses, contending that it “conspicuously and granularly” detailed its disposition and conversion processes on six pages of its quotation. The six pages of detail, however, did not appear in the information sheet or in the 15 pages of narrative permitted for the corporate experience factor, but rather in narrative within a separate part of the quotation addressing a different evaluation factor. The agency explained that it evaluated each factor using only the information appearing in the specific quotation pages dedicated to a particular factor.Similarly, the evaluators assigned deficiencies to the quotation under the technical expertise factor for a failure to address two performance work statement sections that the RFQ required offerors to address. The protester argued that it included the allegedly missing information in its corporate experience information sheet and narrative addressing the staffing and management evaluation factor. The protester pointed out that the information was not difficult to find, as the quotation’s table of contents should have led any reasonable reader directly to the information. The agency again countered that, for each evaluation factor, the evaluators did not consider any information except what appeared in the section of the quotation addressing that particular factor.The GAO agreed with the agency. The GAO noted its longstanding rule that “it is a vendor’s responsibility to submit a well-written quotation, with adequately detailed information, which clearly demonstrates compliance with the solicitation requirements and allows a meaningful review by the procuring agency.” In this regard, “[c]ontracting agencies evaluating one section of a quotation are not required to go in search of additional information that a vendor has omitted or failed to adequately present.” An offeror risks an adverse evaluation when it fails to provide necessary information within the proposal section dedicated to the relevant factor. That is especially true when a solicitation requires offerors to organize a proposal or quotation in a particular way, with factor-specific page limits.Takeaway: Although evaluators generally are permitted to consider any information known to them, they are almost never required to do so—even when they know the information because they read it in some other part of an offeror’s proposal. Offerors should be thoughtful in the organization of their proposals and take care to provide the requested information in the specific proposal sections where the solicitation provides it should appear.AccelGov, LLC v. United StatesAccelGov, LLC v. United States is the latest decision from the Court of Federal Claims in a bid protest saga that has gone on for more than a year. The court noted that its docket reflected more than 100 filings and orders, three rounds of motions for judgment on the administrative record, and “[t]wo parties have even swapped positions — from plaintiff to defendant-intervenor and vice-versa — since the inception of this case.” Our roundup focuses on a single aspect of the new decision: How much analysis is sufficient to justify an agency’s tradeoff between technical merit and price?The solicitation for construction management technical support services established a typical best-value tradeoff evaluation and source-selection methodology. The solicitation established three evaluation factors, with the technical and past performance factors of equal importance to each other and, when combined, “more important than” the price factor.The agency evaluated proposals and found that the eventual awardee had a superior technical rating and a list of strengths, which the agency found was worth paying a price premium. The public court decision redacts the specific amount of the premium. The court quoted the agency’s documented tradeoff rationale:ISI Markon’s proposal has an exceptional approach and understanding of the technical requirements and presents an exceptional approach to manage, staff, and ensure successful delivery of each task order to accomplish WHS’[s] mission, which is worth the price premium over AccelGov’s proposal . . . because ISI Markon’s proposal is technically superior, and I have substantial confidence in ISI-Markon’s ability to successfully perform the requirements.The agency continued that ISI-Markon offered a “higher advantage to the Government overall because [of] its offered strengths,” and concluded that “it is in the best interest of the Government” to pay the price premium to get the higher advantage.The court observed that “this says nothing more than that ISI-Markon’s price premium is worth it because of its technical superiority,” which is essentially meaningless because “an agency never pays a price premium for a technically inferior proposal.” The government pointed to the record’s list of the awardee’s strengths as evidence of a rational tradeoff decision. The court rejected that argument, noting that “merely reciting a proposal’s strengths or referencing its technical superiority is insufficient. In a best value procurement, the government can no more select without explanation a technically superior proposal at any cost (merely because it is better) than it can select a low-priced technically acceptable proposal (merely because it offers savings).” The court cited regulations and case precedents for the principle that tradeoff documentation must provide “an explanation of why the government has decided to pay more for technical superiority (or why the savings justifies a lower-rated proposal).”The court acknowledged that “an agency need not quantify each benefit of a contract” as part of its tradeoff analysis. An agency is, however, required to document how the benefits of a more expensive proposal merit paying a price premium—or why the benefits of the technically superior proposal are not worth an associated premium. Quoting another case, the court observed that, if “merely reciting that a higher-priced proposal was rated technically superior to a lower-priced proposal,” then the requirement to document a tradeoff would be “truly a waste of good paper.”Because the agency’s tradeoff analysis was inadequate, the court remanded the matter to the agency to consider these issues and come up with a better best-value determination. That new determination may or may not result in a different awardee.Takeaway: Subject to the terms of individual solicitations, agencies enjoy broad discretion in determining best value and trading off technical merit against price. That discretion is not unfettered, however, and an agency must document a rational basis for the choice it makes. A mere recitation of a list of strengths and adjectival ratings, with a conclusory assertion that the strengths justify (or do not justify) paying a price premium, does not pass muster. AccelGov, LLC v. United States is a useful reminder to agencies of that fact.Tygrove Technologies, RLLP, B-422448, June 24, 2024Companies that form joint ventures under the Small Business Administration’s (SBA) mentor-protégé program will be interested in the protest of Tygrove Technologies, RLLP. The procurement was a task order competition limited to holders of the General Services Administration’s 8(a) Streamlined Technology Acquisition Resources for Services (STARS) III multiple-award contracts. The protester—Tygrove—was a joint venture between a Section 8(a) small business protégé and its SBA-approved large business mentor.In this multi-phase competition, the first phase considered an offeror’s past performance, experience, and team structure. The procuring agency assigned Tygrove a marginal rating for this phase and determined that its proposal did not rate highly enough to progress to the second phase of the competition.Tygrove’s marginal rating stemmed in large part from the agency’s assessment of a significant risk that the offeror lacked the capability or experience to perform the work. The agency found that only the large business mentor “has demonstrated the capability to perform this work successfully,” whereas the protégé did not show it was capable of assuming the minimum 40% workshare that SBA regulations required of it. The evaluators also found insufficient evidence that the managing venturer was capable of managing the task order, particularly in light of the roles the proposal assigned to it. The agency found an additional risk in the “very low blending” of venturers within the task areas, with a “significant imbalance of work performance.” The agency determined that the protégé “brings very little to this proposal other than its 8(a) status.”The protester objected that the agency’s determinations violated the SBA regulations governing 8(a) and other small business joint ventures. Those regulations require, in relevant part: “When evaluating the capabilities, past performance, experience, business systems, and certifications of an entity submitting an offer for an 8(a) contract as a joint venture established pursuant to this section, a procuring activity must consider work done and qualifications held individually by each partner to the joint venture as well as any work done by the joint venture itself previously.” 13 C.F.R. § 124.513(f); see also 13 C.F.R. § 125.8(e). The protester also objected to the agency’s consideration of the fact that the regulations require the small business protégé in a mentor-protégé joint venture to perform at least 40% of the work performed by the joint venture itself.The GAO noted there was no dispute over the fact that SBA regulations require an agency to consider the experience of each joint venture member, as well as any experience of the joint venture itself. The GAO also observed that it previously has held that SBA regulations do not impose any particular degree of “consideration” that evaluators must give to each venturer, and that agencies may not ignore SBA regulations when conducting a procurement. As a result, the GAO found that the agency documented a rational and permissible concern with the managing venturer’s lack of relevant experience. This concern was reasonable in light of the protégé’s regulatory duty to manage overall contract performance and perform at least 40% of the work performed by the joint venture as a whole.The GAO sought SBA’s view, and SBA agreed that “[a]n agency may require a protégé firm to demonstrate some past performance and experience. Such a requirement is reasonable to ensure the protégé can meet its required 40 percent performance of work requirement.” SBA stated that its regulations permit an agency to “apply reasonable evaluation or responsibility criteria to the protégé managing venturer to ensure that it has the necessary experience and capacity to perform the work, as long as such criteria are not the same as those required of other offerors generally.” As SBA has previously argued before the GAO, its regulations require a protégé firm to “bring something to the table other than its size or socioeconomic status.” SBA opined that nothing in the record before it suggested that the procuring agency had violated the regulations governing mentor-protégé joint ventures.The GAO, therefore, denied this protest ground. Although SBA suggested the adverse evaluation might constitute a responsibility matter that should have been referred to SBA for a certificate of competency, the GAO disregarded that question because the protester had not made that argument.Takeaway: This is the latest in a growing body of decisions addressing agencies’ evaluations of the experience and capabilities of mentor-protégé joint ventures. Contrary to some popular misconceptions, the governing regulations do not envision that large business mentors will provide all the experience and capabilities, while the small business protégés simply supply the socioeconomic ticket to the competition. In light of Tygrove and similar decisions, a joint venture offeror should consider highlighting in its proposals the valuable experience, capabilities, and other contributions that its small business protégé venturer brings to the table.

Bid Protest Spotlight: Misplaced Information, Conclusory Tradeoffs, and Inexperienced Protégés

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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Bid Protest Spotlight: Misplaced Information, Conclusory Tradeoffs, and Inexperienced Protégés

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This month’s bid protest roundup summarizes three protest decisions released in July. The first discusses an agency’s ability to ignore information that an offeror does not place in the correct part of its proposal.

This month’s Bid Protest Roundup highlights three recent protests from the U.S. Government Accountability Office. The first protest concerns whether the protester is an interested party; the second involves the adequacy of an agency’s investigation into a potential Procurement Integrity Act violation; and the third addresses an impaired objectivity organizational conflict of interest.Cask Technologies, B-422437.2, June 20, 2024In this decision, the Government Accountability Office (GAO) dismissed the protest of Cask Technologies, LLC (“Cask”) after finding that Cask was not an interested party.The solicitation, issued by the U.S. Department of the Navy for enterprise network cyber defense services, evaluated offerors under three factors: key personnel, organizational experience, and cost. Under the key personnel factor, offerors were required to submit resumes for each key personnel labor category. After receipt of initial proposals, the evaluators identified two proposals that represented the most likely candidates for award. Cask’s proposal was not considered a most likely candidate for award, in part because its proposal received a lower key personnel rating than the awardee and a third offeror. After the agency’s initial review, Cask notified the contracting officer that one of its proposed key personnel had become unavailable. The agency elected not to enter into discussions with Cask and did not allow for a substitution of the key personnel because it had already determined that Cask’s proposal was not a candidate for award. The agency awarded RMC the task order. Cask protested challenging the agency’s key personnel evaluation.In response, the agency filed a request for dismissal on the grounds that Cask was not next in line for award and Cask’s proposal was technically unacceptable because its key personnel became unavailable. Cask did not dispute that its proposal became technically unacceptable upon learning that one of its key personnel was unavailable; however, Cask argued that if its protest was sustained, it would be a likely candidate for award and the agency would be required to conduct discussions with Cask to consider its substitute key personnel. Cask further suggested that once its protest was sustained it would be in the competitive range, even though the agency never established a competitive range.The GAO explained that when a solicitation requires resumes for key personnel, the resumes form a material requirement of the solicitation. And when the agency learns that a key personnel is no longer available, it can either reject the proposal as technically unacceptable for failing to meet a material requirement or it can open discussions to proposal revisions. Here, because the solicitation explicitly contemplated award on the basis of initial proposals and the agency made the award without establishing a competitive range, conducting discussions, or allowing proposal revisions, Cask’s contention that the agency would be required to open discussions if its protest was sustained was plainly incorrect.The GAO concluded that Cask would not be next in line for award because its proposal would remain technically unacceptable, the agency would not be required to open discussions to permit revision of Cask’s proposal, and the agency had a technically acceptable proposal from another offeror that would be next in line if the award was set aside. As a result, Cask was not an interested party.Takeaways: This protest serves as an important reminder when considering whether to protest an award. As a protester, you must be able to establish that if the agency sets aside the award, your firm has a reasonable likelihood of award under a corrected evaluation and source selection. If the protester’s proposal is technically unacceptable and properly ineligible for award, and there is no requirement for further discussions or proposal revisions, the protester is not an interested party with standing to protest alleged mistakes in the evaluation of the awardee’s proposal.Loyal Source Government Services, LLC, B-420959.14, June 7, 2024This protest involves a solicitation issued in 2022 by the Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP) for medical screening services. After several rounds of protests and various corrective actions, the agency issued an amendment to the Request For Quotations (RFQ). Loyal Source filed a pre-award protest challenging the terms of the amended RFQ and alleged the agency failed to mitigate procurement integrity violations that competitively prejudiced the protester. The agency took partial corrective action to further amend the RFQ and clarify its requirements, thus rendering that protest ground academic. Regarding the Procurement Integrity Act (PIA) violation protest ground, however, Loyal Source identified an article that included “non-public information about the evaluation under this Solicitation and disparaging and inaccurate information about Loyal Source’s past performance under the incumbent contract.” As a result, Loyal Source asserted that the agency must cancel the procurement entirely or mitigate the violation. Loyal Source first raised the potential PIA violations on November 28, 2023, in a letter to the contracting officer citing a Washington Post article, dated November 19, 2023, that confirmed CBP officials violated the PIA by identifying Loyal Source as a finalist for the procurement and disclosing that although the CBP advisory board did not initially recommend Loyal Source for the next round of consideration, that decision was later overruled.In response to the November 28 communication from Loyal Source, the Head of Contracting Activity (HCA) prepared a memorandum discussing the potential PIA violation, the investigation, and the steps taken to mitigate the violation. The HCA found that the November 19 article involved the unauthorized disclosure of source selection information in violation of the PIA. Accordingly, the HCA referred the matter to CBP’s Office of Professional Responsibility (OPR) for further investigation. The HCA also transferred the procurement from CBP to DHS headquarters, Office of the Chief Procurement Officer with the understanding that the DHS Office of Procurement Operations (OPO) would review and validate the current CBP procurement strategy. OPO appointed a new contracting officer who made changes to the evaluation team to further mitigate the impact of the PIA violation. As a result, no CBP personnel would serve as evaluators or as the designated selection official. The new contracting officer also indicated that any additional PIA violations or acts of misconduct may result in significant solicitation revisions or the cancellation of the solicitation entirely.Loyal Source challenged the agency’s PIA investigation and the PIA mitigation measures. The GAO, however, determined that the agency’s actions met the requirements set forth in the Federal Acquisition Regulation (FAR).Loyal Source argued that the agency’s PIA investigation was inadequate because its analysis only focused on the November 19 article and failed to mention the procurement integrity issues in two additional articles dated August 25, 2023, and November 30, 2023, and two congressional letters from the Government Accountability Project (GAP), dated November 30, 2023, and February 16, 2024. The GAO determined that Loyal Source did not provide the agency with sufficient notice of these potential PIA violations. With respect to the additional articles, Loyal Source only referenced the August 25 article once in a footnote of a letter sent to the agency noting that the article “may be improper” and did not establish when or how it raised the November 30 article to the contracting officer. As for the GAP letters, both were issued after the HCA’s memorandum and thus could not have been addressed. The GAO further determined the agency took the appropriate action after learning of the public disclosure of source selection information. In accordance with FAR 3.104-7(b)[1], the agency properly responded by launching an investigation, referring information to OPR, concluding a violation occurred, and implementing mitigation measures to allow the procurement to continue.Loyal Source next claimed the agency failed to meet its PIA mitigation obligations. First, Loyal Source argued that the agency’s investigation was insufficient because it had not identified and removed the CBP employees who made the improper disclosures. Second, because the agency’s investigation was insufficient, the only recourse available was to cancel the solicitation. The GAO disagreed. Not only did CBP transfer the procurement to DHS headquarters and replace the original contracting officer, technical evaluators, and source selection officials with individuals from outside CBP, but CBP launched an investigation to identify the employees involved. The GAO found these mitigation efforts sufficient. The GAO also determined that the cancellation of the procurement was not required because Loyal Source could not establish that it was competitively prejudiced as a result of the improper disclosure. Moreover, Loyal Source’s claim that certain disclosures related to its performance under its incumbent contract were negative and misleading is insufficient to establish competitive prejudice because that information is not the type prohibited from release under the PIA.[2] Accordingly, GAO denied the protest.Takeaways: First, if an offeror suspects a PIA violation has occurred, the offeror should notify the contracting officer immediately. The notice should be clear and contain any supporting documentation. It should not be assumed that the contracting officer will make any inferences or dig for additional information. Second, this protest is a reminder of the agency’s obligations when confronted with a potential PIA violation. An agency has a responsibility to conduct a thorough and complete investigation and take appropriate and reasonable mitigation measures consistent with the requirements of the FAR. A Square Group, LLC, B421792.2; B-421792.3, June 13, 2024The GAO sustained the protest of A Square Group on the ground that the Center for Medicare and Medicaid Services (CMS) failed to reasonably consider the awardee’s proposed organizational conflict of interest (OCI) mitigation plan.The procurement for the subject protest involved a Request for Quotation (RFQ) for operational analytics. After receiving seven quotations, the agency conducted a best-suited vendor determination and eliminated four vendors from consideration. The agency held discussions with the three remaining vendors including Cogent People, Inc. (“Cogent”) and A Square Group (ASG). In reviewing Cogent’s quotation, the technical evaluation panel (TEP) identified a potential OCI concerning one of Cogent’s proposed subcontractors. Cogent’s proposed subcontractor performed data validation under its Federally Facilitated Exchange (FFE) contract. Given the subcontractor’s FFE work, the TEP asked Cogent how it planned to ensure there would be no conflict of interest with the subcontractor supporting the task order. Cogent proposed to implement a firewall to restrict certain individuals from reviewing or validating payment data generated by personnel under the FFE contract and provide strict oversight of the data validation process. The agency determined that Cogent’s response adequately addressed its concerns.Following a round of corrective action, the agency issued questions to the three vendors and evaluated their revised quotations. Cogent and ASG received nearly identical ratings; however, ASG received a High Confidence rating for the technical factor while Cogent received a Some Confidence rating. Additionally, ASG’s proposed price was almost $7 million more than Cogent’s price. Despite ASG’s better ratings under the non-price factors, which, when combined, were significantly more important than price, the contracting officer determined the quotations were of equal merit and because ASG’s price was higher Cogent was the best-suited vendor. Following subsequent exchanges with Cogent, the agency determined it had overlooked some concerns under the quality assurance plan/quality surveillance plan factor in Cogent’s second revised quotation. As a result, the TEP assessed a weakness and changed Cogent’s rating from High Confidence to Some Confidence. The agency requested another revised quotation and recommended award of the task order to Cogent. ASG protested.ASG challenged multiple aspects of the procurement, including the adequacy of Cogent’s OCI mitigation strategy and whether the agency properly considered the impact of the OCI on Cogent’s technical approach. In response to ASG’s OCI challenge, the contracting officer prepared a memorandum discussing the nature of the OCI and Cogent’s proposed mitigation plan. The contracting officer indicated she reviewed Cogent’s quotation and confirmed the individual proposed for validating payment was a Cogent employee. The contracting officer, however, did not address the fact that the individual proposed for enrollment validation was an employee of the proposed subcontractor. In this protest, it was clear an impaired objectivity OCI[3] was present, so the question became whether the proposed mitigation plan was sufficient. ASG claimed the mitigation plan was inadequate because Cogent only proposed to firewall the subcontractor from validating payments data, but not from all data prepared by the subcontractor. The agency asserted that the terms “payments data” and “enrollment data” were used interchangeably, meaning the subcontractor would be firewalled from all subcontractor generated data. But GAO disagreed because the Statement of Work did not treat the terms as equivalent and Cogent’s mitigation approach specifically stated that its subcontractor would be firewalled from reviewing or validating payments data. In addition, Cogent’s proposal treated the data differently. For example, Cogent proposed two business analyst leads – one responsible for validating payment data and another responsible for enrollment data. The GAO found that Cogent’s mitigation approach failed to address the complete scope of work giving rise to the OCI, and thus the Cogent did not adequately mitigate the OCI. Accordingly, the GAO sustained this protest ground.The GAO also considered whether the agency accounted for the impact of Cogent’s mitigation measures on its technical approach. As the GAO has explained, agencies must consider whether the mitigation measures contradict the firm’s technical approach or undermine the agency’s original evaluation of the firm’s approach. Although Cogent proposed to firewall the subcontractor personnel from validating payments data, none of Cogent’s revised quotations reflected the firewall in connection with Cogent’s staffing approach. The contemporaneous record was similarly devoid of any consideration of the impact of the firewall on Cogent’s technical approach. As a result, the GAO sustained this protest ground as well.Takeaways: Firewalls alone are difficult solutions to impaired objectivity OCIs because they do not eliminate the relevant financial incentive. Here, the firewalled subcontractor approach may have been effective had it covered the complete scope of work at issue. That said, when evaluating and mitigating a potential OCI, it is incumbent upon the offeror to consider all areas of the procurement that the OCI could touch. Additionally, if a contractor intends to implement OCI mitigation efforts, it must ensure the entire proposal, including the technical approach, accounts for any such efforts.<hr class="divider">[1] FAR 3.104-7(b) requires the HCA take appropriate action such as “(1) advise the contracting officer to continue with the procurement; (2) begin an investigation; (3) refer the information disclosed to appropriate criminal investigative agencies; (4) conclude that a violation occurred; or (5) recommend that the agency head determine that the contractor, or someone acting for the contractor, has engaged in conduct constituting an offense punishable under 41 U.S.C. 2105, for the purpose of voiding or rescinding the contract.”[2] 41 U.S.C. § 2102(a)(1) restricts disclosure of “contractor bid or proposal information or source selection information before the award of a Federal Agency procurement contract to which the information relates.”[3] An impaired objectivity OCI arises where a contractor’s work under one government contract involves evaluating itself or an affiliate such that the contractor’s ability to render impartial advice could be compromised by the contractor’s relationship to the party being evaluated.

 June 2024 Bid Protest Roundup

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

Caitlin A. Crujido

Caitlin Crujido

June 2024 Bid Protest Roundup