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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This month’s bid protest roundup (featured on Law360) examines three recent decisions by the Government Accountability Office (GAO).  The first, Sumaria Systems

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September 2020 Bid Protest Roundup (Law360 Spotlight)

September 2020 Bid Protest Roundup (Law360 Spotlight) | Government Contracts Insights

Caitlin A. Crujido

This month’s bid protest roundup (<a rel="noopener noreferrer" target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt6bd4cbc4ba41fe28/627318d1b5ad5f2863c59690/201007-september-bid-protest-roundup.pdf">featured on Law360</a>) examines three recent decisions by the Government Accountability Office (GAO).  The first, Sumaria Systems, Inc., evaluates whether an agency’s use of the highest technically rated, reasonably priced offeror methodology violates the Federal Acquisition Regulations (FAR).  The second, AT & T Corporation, examines a conflict of interest wherein the awardee would effectively evaluate its own performance under a separate contract, and the third, CenturyLink QGS, addresses the scope of a corrective action that allegedly resulted in the disparate treatment of offerors.<a href="https://www.gao.gov/assets/710/709445.pdf">Sumaria Systems, Inc.</a>Given Congress’s recent crackdown on the use of lowest price technically acceptable (LPTA) procurements for certain acquisitions, agencies have turned to different source selection methodologies in an effort to identify reasonably priced, qualified offerors.In Sumaria, the U.S. Department of the Air Force (“Air Force” or “Agency”) issued a fair opportunity proposal request (FOPR) for support services for the F-15 aircraft under the OASIS program.  The FOPR provided that the Agency would issue a task order to the highest technically rated offeror (HTRO) with a realistic and reasonable price.  The FOPR established two evaluation factors: technical and price.  With respect to the technical evaluation, the FOPR provided a scoring system to measure the quality and extent of offerors’ past performance.  Price would be evaluated for reasonableness, realism, and balance.Offerors were required to self-score their proposals against the FOPR’s technical criteria and submit work samples to support their scores.  After proposal submission, the Air Force was to rank offerors based on the offeror-assessed scores, and then evaluate the technical proposals starting with the highest self-ranked offeror.  If the Air Force determined the offeror did not adequately support its score, the Air Force would evaluate the proposal with the next highest offeror-assessed score.  If the Air Force determined the self-assessed score was supported, it would evaluate the offeror’s price.  If the price was found to be unreasonable, unrealistic, or unbalanced, the Agency would reject the proposal.Sumaria Systems, Inc. filed a pre-award protest challenging the source selection methodology on the grounds that it did not contemplate a tradeoff between the technical ratings and price, effectively preventing Sumaria from offering a lower price in exchange for a lower technical rating.  Sumaria argued this violated FAR 16.505(b)(1)(ii)(E), which requires an agency, in awarding task orders under a multiple-award IDIQ contract, to consider price as a factor in the selection decision.The Agency argued that not only is the HTRO methodology acceptable under the FAR, but it is used to avoid running into the same problems that plagued the LPTA methodology.  In fact, the Agency noted that it previously used the LPTA method for its engineering, professional, and administrative support services, but found that it led to an unstable work force and negatively affected contract performance.The GAO agreed and explained that because FAR subpart 16.5 provides the contracting officer with broad discretion in establishing the methodology by which it selects offerors and does not prohibit use of the highest technically rated offeror methodology, the procurement procedure is presumed to be permissible. (See FAR 1.102(d) (“[I]f a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR nor prohibited by law (statue or case law), Executive order or other regulation . . . the strategy, practice, policy or procedure is a permissible exercise of authority.”).  Additionally, GAO has previously held that, although agencies are required to consider price in the source selection, they are not required to perform a tradeoff between price and non-price evaluation factors.  Thus, the GAO found the protester’s allegations related to the HTRO selection methodology without merit and denied the protest.Takeaway: As they move away from LPTA procurements, agencies are turning to alternative methodologies, such as the HTRO.  Agencies have broad discretion to establish their source selection methodology and, as long as it is not prohibited by law or addressed in the FAR, the methodology is presumed to be acceptable.<a href="https://www.gao.gov/assets/710/709120.pdf">AT & T Corporation</a>As a follow-up to <a rel="noopener noreferrer" target="_blank" href="https://govcon.mofo.com/protests-litigation/august-2020-bid-protest-roundup-law360-spotlight/">last month’s bid protest roundup</a> that discussed the Solers, Inc. protest, where the GAO denied a protest alleging an organizational conflict of interest (OCI), AT & T provides a similar story with a different outcome.  There are three kinds of OCIs contractors and contracting officials must avoid or mitigate: (1) unequal access to information, (2) biased ground rules, and (3) impaired objectivity.  Relevant here is the impaired objectivity OCI, which arises when a firm’s ability to render advice to the government is undermined by the firm’s competing interests.In AT & T, the Social Security Administration (SSA or “Agency”) issued the Next Generation Telephony Project (NGTP) solicitation to replace the Agency’s three legacy telephone systems.  The solicitation contemplated award of a single IDIQ contract under which the Agency may issue task orders to provide telephony, video, presence, instant messaging, web-based applications, and contract center services in an enterprise solution on the SSA Network (“SSANet”).  The SSANet carries all of the agency’s data, video, and voice traffic.  The Agency acquires all services related to SSANet through task orders issued under a different IDIQ contract.The Agency originally awarded the contract to Verizon; however, two disappointed offerors filed protests with the GAO.  The Agency elected to take corrective action on September 11, 2019.  On September 27, 2019, in the midst of corrective action, the Agency issued task orders to Verizon and CenturyLink under the General Services Administration (GSA) Enterprise Infrastructure Solutions (EIS) IDIQ contract to provide support for the SSANet.On October 4, 2019, AT & T sent a letter to the Agency arguing that Verizon’s SSANet task order created an impaired objectivity OCI.  AT&T argued that this OCI could not be mitigated and should prevent Verizon from competing for the NGTP contract.  The contracting officer reviewed the allegations and concluded there was no potential OCI for two reasons: (1) the Statement of Work (SOW) does not require the NGTP contractor to monitor or evaluate the performance of the SSANet contractor, and (2) the SOW does not require the NGTP contractor to be responsible for the performance of the SSANet.  On March 3, 2020, the Agency re-awarded the NGTP contract to Verizon.  Shortly thereafter, AT&T protested at the GAO, arguing in part that Verizon’s SSANet task order created a disqualifying OCI.AT & T argued that the solicitation required the contractor to inform the Agency of any problems with the SSANet that affect performance of the NGTP contract.  After finding that AT & T’s OCI challenge was timely, the GAO considered whether the NGTP solicitation required Verizon to perform tasks that would cause Verizon to have an impaired objectivity OCI given its role supporting the SSANet.  The GAO reviewed the contracting officer’s assessment of the potential OCI following AT&T’s October 4 letter to determine whether the contracting officer reasonably concluded an OCI did not exist.  Two things led the GAO to find the contracting officer’s assessment unreasonable.First, the GAO found specific provisions from the solicitation contradicted the contracting officer’s assessment that the SOW did not require the NGTP contractor to monitor or evaluate the performance of the SSANet contractors.  The SOW required the NGTP contractor to advise the agency of performance or quality of service issues, which would essentially require Verizon to provide the agency advice about its own performance of the SSANet task order.  Although the SOW did not specifically require the contractor to monitor or evaluate the entirety of the SSANet, it did require the contractor to assess the performance of the SSANet with respect to its effect on the NGTP contract.Second, although the GAO agreed that the SOW did not make the contractor responsible for performance of the SSANet task order requirements, the GAO found that Verizon would undoubtedly be required to evaluate the quality of services provided under SSANet task order.  As such, the GAO determined the contracting officer’s OCI determination was unreasonable and sustained the protest.Takeaway: Although agency OCI determinations receive considerable deference, this case demonstrates that a deficient OCI investigation is unlikely to result in a determination to which the GAO will give deference.  This case is also a helpful reminder to contractors to be aware of certain contract requirements that might disqualify your company from other competitions.  This is particularly true for contracts and task orders issued by the same government agency.  In a situation like this, where a contractor is evaluating its own products or services under a separate contract, there is a high likelihood the GAO will find an OCI.<a href="https://www.gao.gov/assets/710/709413.pdf">CenturyLink QGS</a>When an agency elects to take corrective action, the scope of the corrective action does not always adequately remedy the agency’s procurement error.  If a contractor determines that is the case, it has the option to protest the corrective action.  Deciding whether to protest a corrective action, however, can be tricky as notices of corrective actions often lack detail.  This next protest is an example of an unsuccessful challenge to an agency’s corrective action.In CenturyLink QGS, the Department of Veterans Affairs (VA or “Agency”) issued a request for task order proposals (“Solicitation”) under the EIS IDIQ contract vehicle for the delivery of voice (telephone), transport, and associated services including installation and maintenance across the United States and its territories.  The Solicitation required proposals to comply with the provisions of the offerors’ underlying EIS contracts.  The EIS contract included a provision that would allow an EIS contract-holder to compete for a task order even if the contractor did not have all of the required services included on its EIS contract, so long as the contractor, at the time of proposal submission, submits a modification adding the required services to its EIS contract.  The Solicitation further prohibited a contractor from accepting a task order for services not included on its EIS contract.The Agency awarded the task order to MetTel.  CenturyLink protested the award, arguing that MetTel was ineligible for award because it did not have the necessary modifications to its EIS contract, in violation of the Solicitation.  The Agency elected to take corrective action and advised offerors that it intended to confirm whether MetTel’s EIS contract contained the required services, and if the contract did, the Agency planned to re-issue the task order to MetTel.  If MetTel’s EIS contract did not contain the required services, the Agency would make a new award decision.  Shortly after the GAO dismissed CenturyLink’s protest as academic, CenturyLink filed a new protest challenging the scope of the award.CenturyLink argued that the Agency’s corrective action would result in disparate and unequal treatment of offerors.  The protester argued MetTel should have been eliminated from the competition for failure to submit the required modification to its EIS contract, and by continuing to consider MetTel for award, the agency has effectively allowed MetTel to revise its proposal without affording others the same opportunity.  CenturyLink requested the Agency reopen the competition to allow all offerors the chance to revise their price proposals.Although the Agency explained that the corrective action did not permit any offeror, including MetTel, to revise its submitted proposal, the record shows that MetTel did, in fact, submit its EIS contract modification after the proposal due date.  The GAO, however, determined this did not affect this competition, but rather was an issue of the administration of MetTel’s existing EIS contract.  The GAO reached this conclusion because the provision upon which CenturyLink based its protest pertained to the EIS contract, not the task order being competed.  The contract modification process (which allows the Agency to confirm whether the offeror has the required services) does not affect the evaluation of the task order proposals.  In addition, any change would affect MetTel’s EIS contract, not the task order proposal.  As a result, the Agency’s corrective action did not permit any offeror to revise or alter its proposal and did not otherwise provide any offeror with a competitive advantage.Takeaway: This case serves as a reminder of an agency’s broad discretion in determining the scope of corrective action.  The corrective action must simply be appropriate to remedy the concern that caused the agency to take corrective action in the first place.  Here, the disappointed offeror’s preferred course of action would have been far more extensive, requiring the agency to reopen the competition and allow offerors to resubmit proposals.  However, at the end of the day, confirmation that the awardee possessed the required services was sufficient to quell any concerns that it could or could not perform.

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