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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A common mistake in competitive procurements is a mechanical fixation on the adjectival ratings, color ratings, or numerical “scores” a procuring agency assigns a proposal under a particular evaluation factor. In best value tradeoff acquisitions, one often hears (from both contractors and government personnel) that, if two proposals have the same adjectival ratings, then the only rational choice is for the government to the award the contract to the lower-priced offeror. This common view is wrong and can lead to a sustained bid protest.

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A Bluer Shade of Blue:  All “outstandings” Are Not Created Equal | Government Contracts Insights

James A. Tucker

A common mistake in competitive procurements is a mechanical fixation on the adjectival ratings, color ratings, or numerical “scores” a procuring agency assigns a proposal under a particular evaluation factor. In best value tradeoff acquisitions, one often hears (from both contractors and government personnel) that, if two proposals have the same adjectival ratings, then the only rational choice is for the government to award the contract to the lower-priced offeror. This common view is wrong and can lead to a sustained bid protest.Guides to Intelligent Decision-Making—Not Substitutes for ItAs the GAO frequently repeats, ratings are merely guides to intelligent decision-making.See, e.g., Centerra Grp., LLC, B-414800, B-414800.2, Sept. 21, 2017, 2017 CPD ¶ 307 at 4 (“Evaluation ratings and the number of strengths and weaknesses assessed are merely a guide to, and not a substitute for, intelligent decision making in the procurement process.”). In a best value tradeoff analysis, an agency must do more than merely compare the adjectives, colors, or points a proposal is assigned. Rather, source selection authorities (SSAs) are supposed to compare the substance of the underlying merits of competing proposals in a qualitative manner to determine which (if any) proposal is superior under a given evaluation factor, and whether qualitatively superior proposals are worth any associated price premiums.Two principles flow from this fundamental rule.First, the mere fact that two proposals received the same adjectival, color, or numerical rating for a given factor does not necessarily mean they are equal under that factor. One can think of this as a “bluer shade of blue” rule. My “outstanding” rating may be more outstanding than your “outstanding” rating if my proposal had more underlying merit than yours, even if they both received the same adjectival label. Or, if our proposals were both rated “good,” perhaps mine barely made the cut and is tottering on the edge of merely “acceptable,” whereas your proposal may be just an inch away from “outstanding.” The same is true for strengths assigned to a proposal: some strengths are “stronger” than others. That is why merely tallying the total number of strengths and weaknesses assigned is usually not a meaningful exercise. A proper best value analysis considers the merits and flaws underlying the ratings assigned.This means, when the proposals of two offerors have identical adjectival ratings, agencies may (and sometimes should) award to the higher-priced offeror if the underlying merits of that offeror’s proposal are sufficiently superior to its lower-priced competitor with the same ratings.We can see this in the GAO’s decision in <a href="https://www.gao.gov/assets/730/723734.pdf">CharDonnay Dialysis, LLC, B-420910, B-420910.2, Oct. 27, 2022, 2022 CPD ¶ 273</a>. There, the protester and the awardee received identical technical and past performance ratings, but the awardee’s price was slightly lower than the protester’s. Unsurprisingly, the lower-priced, equally rated proposal won. The protester raised a number of objections to the evaluation, all of which failed. But the protester also argued that the two proposals, based upon the different underlying strengths assigned, were not technically equal, notwithstanding the identical adjectival ratings. The agency’s best value analysis simply assumed that, if two technical proposals receive identical adjectival ratings, that must mean they are equal. The GAO agreed with the protester that this assumption is flawed. The GAO found the agency failed to compare the underlying merits of the competing proposals and “meaningfully look[] behind the adjectival ratings . . . before finding the proposals to be technically equal.” On this basis, the GAO sustained the protest and recommended the agency re-do its best value analysis.Second, in the course of a protest, the GAO must determine whether a demonstrated procurement error is prejudicial. If a protester already has the highest possible adjectival rating under a particular evaluation factor, one might be tempted to say it is irrelevant whether that offeror should have received extra strengths under that factor, as it already has the maximum possible adjectival rating. But that is not necessarily so. If the awardee has only a slight competitive edge over the protester, it is possible one extra strength might shift the competitive balance—even under an evaluation factor where the protester is already blue or outstanding. That extra strength might make the protester a sufficiently “bluer shade of blue,” and alter the award outcome.This principle contributed to a sustained protest in <a href="https://www.gao.gov/assets/730/723333.pdf">Tech Marine Business, Inc., B-420872 et al., Oct. 14, 2022, 2022 CPD ¶ 260</a>. In that case, both the protester and the awardee received the highest possible adjectival rating of outstanding for the technical factor. The protester argued it deserved a number of additional strengths under the technical factor. The agency rebutted all these “missing strength” arguments, except one, which the GAO found it failed to address in any substantive fashion. Although both offerors already had the highest possible adjectival rating under the technical factor, the GAO sustained the protest because even the one additional strength under an already outstanding evaluation factor might have tipped the scales in what was otherwise a very close competition: “[A]ny change in Tech Marine’s technical evaluation could have widened the gap between the two proposals sufficiently that the SSA no longer considered them technically equivalent, potentially resulting in a different best-value decision.” This was the “bluer shade of blue” principle once again in action.Practical TakeawayThe main takeaway is for federal procurement officials, rather than offerors. When a solicitation provides for a best value tradeoff source selection methodology, the agency’s analysis should “look behind” the assigned ratings and compare the underlying merits of the competing proposals. It is easier simply to compare colors and the number of strengths, but the GAO’s decisional law demonstrates that usually is not a rational method of source selection. If the agency determines two proposals are technically equivalent for a particular evaluation factor, the agency should document why that is so for some reason other than “same ratings” or “equal number of strengths.”

A Bluer Shade of Blue:  All “outstandings” Are Not Created Equal

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