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.

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 installment of our monthly Law360 bid protest spotlight features a number of noteworthy decisions from the U.S. Government Accountability Office (GAO), Cou

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April Bid Protest Roundup (Law360 Spotlight)

April Bid Protest Roundup (Law360 Spotlight) | Government Contracts Insights

Caitlin A. Crujido

This installment of our monthly <a href="https://www.law360.com/articles/1270496" target="_blank" rel="noopener noreferrer">Law360 bid protest spotlight</a> features a number of noteworthy decisions from the U.S. Government Accountability Office (GAO), Court of Federal Claims (COFC) and Federal Circuit.  Eskridge & Associates addresses the hurdles associated with establishing prejudice.  Abacus Technology Corporation discusses an agency’s requirement (or lack thereof) to conduct a price realism analysis.  Sayres & Associates Corporation addresses an agency’s unreasonable substitution of escalation rates.  Finally, NIKA Technologies, Inc. provides a helpful discussion of the debriefing rules when an agency permits questions.Eskridge & Associates v. United States<a href="#_edn1" name="_ednref1">[i]</a>In Eskridge & Associates v. United States, the Federal Circuit affirmed the COFC’s decision to dismiss Eskridge’s protest for lack of standing.  The solicitation was issued in 2018 to provide nurse anesthetists for an Army hospital.  This was the U.S. Army’s second attempt to procure these services; the first solicitation, issued in 2016, was canceled in connection with a corrective action.  The 2018 solicitation provided that the bids would be evaluated on a lowest price technically acceptable (LPTA) basis, and that the Army would identify the five lowest priced proposals, and then examine them for technical acceptability.The Army identified the five lowest priced bids, determined that three were technically acceptable, and awarded the contract to Ansible Government Solutions (Ansible).  Eskridge protested the decision at the GAO, alleging that the award was unreasonable and contrary to law, and that the evaluation was not performed according to the terms of the solicitation.  The Army ultimately took corrective action to review and document the selection process and determine whether the awardee met solicitation requirements.  The Army reviewed the ten lowest priced bidders on technical and past performance.  Of the five technically acceptable bidders, Eskridge’s bid was the highest priced and the Army awarded the contract to Ansible.Eskridge filed a post-award bid protest with the GAO, alleging a number of protest grounds.  The GAO, however, determined that Eskridge was not an interested party and dismissed the protest.  Eskridge filed a complaint at the COFC requesting declaratory relief and that the court direct award to Eskridge.  Eskridge presented the same allegations brought before the GAO.   The court concluded that Eskridge did not have a substantial chance of winning the contract because of the five bidders that the Army considered, Eskridge’s bid was the highest price.  Eskridge therefore was not an interested party, and lacked standing.  Eskridge appealed to the Federal Circuit.The Federal Circuit affirmed the lower court ruling, finding that Eskridge lacked standing.  The court reasoned that even if Ansible had not received the contract, three other, lower priced bidders were in line to receive the award.  Further, Eskridge failed to demonstrate prejudice outside of its allegations that the Army failed to conduct a meaningful price realism analysis.  Eskridge’s remaining price realism argument was based upon terms in the 2016 solicitation that were not actually incorporated into the 2018 solicitation.  Eskridge could therefore not establish why rebidding would be required.Key Takeaway: Tenacity aside, prejudice is essential.  As evidenced in Eskridge, where the protester could not defend a theory that enabled it to move from fifth to first in line, a protester will not be able to establish standing unless it can show a substantial likelihood that it would have received the contract absent the agency’s errors.  This challenge is further amplified in an LPTA competition where technical acceptability is confirmed and the award hinges on price.Abacus Technology Corporation<a href="#_edn2" name="_ednref2">[ii]</a>The U.S. Department of the Air Force issued a fair opportunity proposal request (FOPR) for network and infrastructure support services.  The FOPR contemplated that proposals would be evaluated under two evaluation factors, technical and cost/price.  The technical evaluation factor considered three subfactors:  technical capability, management, and technical experience.  The cost/price factor provided that proposals would be evaluated for completeness, reasonableness, and unbalanced pricing.The FOPR also required the Air Force to make a responsibility determination.  To assist with this determination, offerors were asked to submit a compensation plan listing salaries and fringe benefit packages.  Offerors were also instructed to include a discussion of how their proposed compensation package reflected a sound management approach and understanding of the contract requirements and facilitated recruitment and retention.The Air Force awarded the task order to Micro Technologies, LLC (MicroTech) and Abacus Technology Corporation (Abacus) filed a protest with the GAO challenging the Agency’s best-value tradeoff decision.  Specifically, Abacus alleged that MicroTech’s proposal should have been rated technically unacceptable or assessed a higher risk level due to its unreasonably low price.  In response, the Air Force took voluntary corrective action.  During its corrective action, the Air Force determined each proposal was technically acceptable and each was assigned a risk rating of low.  The Air Force re-awarded the task order to MicroTech.  Abacus filed a second protest arguing that the Air Force failed to evaluate whether MicroTech could perform the task order requirements at the low price it proposed.The Air Force moved to dismiss Abacus’s protest on the ground that the FOPR did not require the Air Force to conduct a price realism evaluation.  Abacus argued that the language of the FOPR requiring a review of offerors’ compensation plans was substantially similar to the text of the FAR provision 52.222-46, Evaluation of Compensation for Profession Employees, which has been held to essentially contemplate a price realism evaluation.  The GAO, however, agreed with the Air Force and found that the cost/price evaluation criteria said nothing about evaluating an offeror’s compensation plan or price information for realism.  The FOPR only required that the Air Force evaluate prices for completeness, reasonableness and balance.Key Takeaway:  An agency is not required to determine whether a proposed price is unreasonably low or below the cost of performance absent an explicit price realism provision in the Solicitation.  This case stands for the importance of understanding the price evaluation criteria to determine what exactly is required of the agency.Sayres & Associates Corporation<a href="#_edn3" name="_ednref3">[iii]</a>Sayres & Associates Corporation (Sayres) successfully challenged the U.S. Navy’s cost realism evaluation on the grounds that the evaluation of the protester’s escalation rate was unreasonable.  Sayres and RP Technologies (RP) were the sole offerors in response to a Navy Request for Proposals (RFP) to holders of the Navy Seaport-e Indefinite Delivery, Indefinite Quantity (IDIQ) contract.  The RFP contemplated a best-value tradeoff, and the evaluation criteria weighed technical and management, past performance, and total evaluated cost (TEC).  The RFP warned that proposals required substantiating information for any elements affecting cost realism, and that failure to provide that information could result in a cost adjustment.  Offerors were encouraged to provide realistic escalation rates to project future wage increases, but if the proposal lacked substantiating historical rates, the government reserved the right to substitute using current market data.While evaluating proposals, the Navy noted that Sayres’ escalation rate was lower than the industry forecasts for similar services, so it substituted an industry benchmark escalation rate.  The Navy’s cost analysis added over five percent in total to Sayre’s proposed costs.  The source selection authority concluded that RP had a higher technical and past performance rating, and a lower TEC than Sayres’, and awarded the contract to RP.Sayres filed a bid protest at the GAO, challenging the Navy’s cost realism analysis on the grounds that it unreasonably rejected its proposed escalation rate.  Sayres also contested that the Navy’s assertion that it did not provide substantiating data for its escalation rate, arguing that it provided detailed historical data of salaries and their increases over a five-year period. The Navy countered that the historical data Sayres provided was “unverified.”The GAO concluded that Sayres did provide five years of data, which articulated a basis for its escalation rate.  The GAO determined that the record did not show that the Navy conducted a meaningful assessment of Sayres escalation rate.  Instead, the Navy determined the rates were below the IHS rate and stated in a conclusory fashion that Sayres did not provide substantiating data.The Navy argued that Sayres nevertheless was not prejudiced, because RP still had a superior technical score.  The GAO disagreed, and found that Sayres had been prejudiced by the Navy’s evaluation, because absent the Navy’s tinkering with the escalation rate, Sayres would have had a superior TEC, and that would have required the Navy to conduct a true tradeoff determination.Key Takeaway:  Source selection authorities cannot reject offerors’ substantiating information in a conclusory fashion.  If an offeror provides information to justify its pricing, an agency must conduct a meaningful and well-documented review of the data.  That said, to the extent that a solicitation requires substantiating information, we encourage clients to ensure the data submitted is verifiable and complete.NIKA Technologies, Inc. v. United States<a href="#_edn4" name="_ednref4">[iv]</a>NIKA Technologies, Inc. (“NIKA”) filed a complaint at the COFC following refusal by the U.S. Army Corps of Engineers (“Corps”) to authorize a Competition in Contracting (CICA) stay while NIKA’s post-award bid protest was pending at the GAO.  NIKA argued that its protest was timely and triggered an automatic stay pursuant to 31 U.S.C. § 3553(d).  The Corps, on the other hand, argued that NIKA’s protest was untimely and the Corps was thus not required to stay performance.The contract at issue is a multiple-award, IDIQ contract to provide services for the Corps’ Operation and Maintenance Engineering and Enhancement Program.  On February 27, 2020, the Corps informed NIKA that its corporate experience was unacceptable and it would not be selected for award.  The next day, NIKA requested a debriefing.  The Corps acknowledged the request, and NIKA responded with a list of questions on March 3, 2020.  The Corps sent NIKA a written debriefing letter on March 4, 2020, allowing NIKA to submit additional questions within two days of receipt of the debriefing.  The letter explained that the debriefing would be considered closed if questions were not received within two days, but if questions were received, the government would respond within five days, and the debriefing would close upon delivery of the written responses to the additional questions.  NIKA sent the Corps a letter on March 5 stating that it planned to follow up the next day, but on March 7, NIKA informed the Corps that it had no additional questions.NIKA filed a bid protest at the GAO on March 10 and sought an automatic CICA stay.  The Corps, however, argued NIKA’s protest was untimely and refused to implement the CICA stay.  NIKA filed a complaint at the COFC challenging the Corp’s refusal to stay performance pending a determination on its GAO protest.The court reasoned that NIKA would be entitled to an automatic stay if its protest was filed within the later of either ten days after the date of contract award, or five days after a requested debriefing date that when requested, is required.  The parties’ sole disagreement was which debriefing date is the “true” debriefing date.  NIKA argued that its decision not to submit additional questions by March 6 meant the debriefing closed on that date.  Therefore, its protest filed on March 10 fell within the five-day period.  The government argued the debriefing date was March 4, the date the Corps provided the debriefing letter to NIKA.The court looked to Section 181 of the 2018 National Defense Authorization Act (NDAA) (Pub. L. 115-91, 131 Stat. 1283 (2017)), which implements enhanced debriefings.  This legislation modified debriefings under CICA, providing a two-day period in which offerors could submit questions.  The court noted that 10 U.S.C. § 2305(b)(5)(B)(vii) provides that a debriefing shall include “an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing.”  The court concluded that if no questions were submitted within the two-day period, the debriefing closed at the end of that period.  Further, the court observed that the agency’s own letter indicated that the government would consider the debriefing closed if questions were not received within two business days.  Therefore, the end of the debriefing period would be March 6, the date by which the debriefing would close if questions were not submitted.  Accordingly, the court determined that NIKA’s protest was timely and thus entitled to an automatic stay under CICA.Key Takeaway:  It is well understood that the deadline for filing a protest is within ten days of award or five days after the close of a requested—and required—debriefing.  This opinion defines the boundaries of the enhanced debriefing requirements and addresses the gray areas that arise when questions are being submitted, and answered, by an agency.  There is, however, an adage in the military that (slightly paraphrased) states, “you can either choose to probably be right or certainly be right.”  In essence, this saying counsels a conservative approach to deadlines:  if a deadline is five days, you know you are safe if you get the job done in four days.  While this ruling helps define the boundaries of the filing deadlines, getting the job done early is probably the best approach.<a href="#_ednref1" name="_edn1">[i]</a> Eskridge & Associates v. United States, No. 2019-1862, 2020 WL 1870530, at *1 (Fed. Cir. Apr. 15, 2020)<a href="#_ednref2" name="_edn2">[ii]</a> Abacus Technology Corporation, GAO B-417749.2 B-417749.3, Mar. 9, 2020<a href="#_ednref3" name="_edn3">[iii]</a> Sayres & Associates Corporation, B-418374, Mar. 30, 2020, 2020 WL 1819896<a href="#_ednref4" name="_edn4">[iv]</a> NIKA Technologies, Inc. v. United States, No. 20-299C, 2020 WL 1922381, at *1 (Fed. Cl. Apr. 16, 2020)

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