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 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.

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Bid Protest Spotlight: Misplaced Information, Conclusory Tradeoffs, and Inexperienced Protégés | Government Contracts Insights

James A. Tucker

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

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