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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Offerors whose proposals are disqualified for immaterial typographical and data input errors will want to read an interesting new protest decision from the Court of Federal Claims. In Aspire Therapy Services & Consultants, Inc. v. United States, the Court sustained a protest because the procuring agency did not seek clarification before rejecting a proposal for what the Court found to be an “obvious and typographical” error in the protester’s proposal.

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Clarifying Minor Errors: The Court Makes an Agency Seek a Clarification | Government Contracts Insights

James A. Tucker

Offerors whose proposals are disqualified for immaterial typographical and data input errors will want to read an interesting new protest decision from the Court of Federal Claims. In <a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2023cv0253-34-0">Aspire Therapy Services & Consultants, Inc. v. United States</a>, the Court sustained a protest because the procuring agency did not seek clarification before rejecting a proposal for what the Court found to be an “obvious and typographical” error in the protester’s proposal. While recognizing agencies ordinarily are not required to seek clarifications, the Court found the agency abused its discretion by not requesting a clarification under these facts. Although the Government Accountability Office (GAO) has never adopted such a rule and is unlikely to do so, and Aspire will not bind other judges of the Court of Federal Claims, this case may offer hope to some offerors with otherwise hopeless cases. Background and AnalysisThe error at issue was a mismatch between the 2,366 proposed direct hours appearing in the labor summary of the protester’s proposal and the 2,336 proposed direct hours appearing in its pricing sheet. (If you read that sentence quickly, you may not have noticed the third digits differ in the two figures.) If the labor summary’s figure was correct, the true price would be 0.063 percent higher than shown in the pricing sheet. Review of the math in the pricing sheet showed “with virtual certainty” that the labor summary’s 2,366 was correct, and the pricing sheet’s 2,336 figure was a data entry error. The procuring agency eliminated the discrepant proposal from the competition with no further ado. Likely realizing a protest was almost certain to fail under the GAO’s unforgiving precedents, the disqualified offeror took its protest straight to the Court of Federal Claims. The Government argued the erroneous digit was a material error the offeror could correct only through discussions and a proposal revision, which the agency rationally chose not to permit. The Court discussed the well-established difference between “discussions” and “clarifications.” The chief difference is that discussions under FAR 15.306(d) permit material proposal revisions (and must be offered to all offerors in the competitive range), whereas clarifications under FAR 15.306(a) permit an offeror only to “clarify certain aspects of proposals” and “resolve minor or clerical errors,” and need not be offered to all offerors. The Court rejected the agency’s position that only discussions could resolve the protester’s data entry error. The Court held the Solicitation’s repeated admonition to make sure all figures are consistent did not make perfect consistency a material requirement of the Solicitation. Transposition of one digit—with a negligible effect on total price—was, in the Court’s view, clearly a minor error for purposes of the clarification regulation. The Court also cited Federal Circuit precedents for the principle that clarifications can allow some proposal revision, even regarding price, as well as providing new information that may be essential for evaluation. The Court noted this is particularly true when the error is apparent on the face of the proposal, and when the correct information is already found elsewhere in the proposal. Having found that a clarification could resolve the discrepancy, the Court considered whether it was rational for the agency not to have exercised its discretion under these facts. The Court acknowledged that, under FAR Part 15, clarifications are always within an agency’s discretion. But it noted that, on a few occasions, some judges of the Court have found agencies to have abused that discretion by refusing to seek a clarification. Although there are no bright-line rules, the Court identified four factors that weigh against denying an offeror the opportunity to clarify an error:<ol><li>The error “is especially minor and can be easily corrected.”</li><li>The error is obvious from the face of the proposal.</li><li>The proposal is otherwise very competitive, particularly with respect to price.</li><li>Information elsewhere in the proposal could clarify or correct the error. </li></ol>The Court found all four factors weighed in favor of an exercise of discretion to conduct clarifications with the protester in this case. And the Government provided no rational countervailing reason not to have conducted them. Therefore, the Court enjoined the protester’s exclusion from the competition and directed the agency to allow the protester to clarify its proposal, after which the agency must evaluate the corrected proposal. Takeaways<ul><li>The first takeaway is to strive to submit a proposal without any discrepancies or errors (major or minor) in the first place. </li><li>The Aspire holdings work only for “minor” errors requiring information or alterations that do not materially alter the proposal. The bigger the problem in the proposal, the more likely it is to be an issue that only discussions can remedy. There is a large body of case law at the Court and GAO on where the fuzzy line between the two categories of error lies. </li><li>If an agency rejects your proposal for an error that meets one or more of the four Aspire factors, consider citing Aspire and asking the agency to allow a clarification. This may be more practicable in the context of a pre-award exclusion. </li><li>When considering a bid protest following an exclusion or adverse evaluation due to an error that could have been clarified, there likely is a higher probability of success (on that particular issue) at the Court than at the GAO. The Court, though, does not have jurisdiction to hear task order protests, and an automatic stay is not guaranteed. </li><li>If an agency has a uniform practice of not seeking clarifications without opening discussions, or looking for minor nits to cull proposals without further thought, Aspire provides an incentive to rethink that. The Court’s decision provides a thoughtful regulatory rationale for favoring clarifications as part of good acquisition policy. Clarifications generally remain in the agency’s discretion, and there will be good reasons for opting not to clarify in many cases. Under Aspire, though, an agency should stop to ask whether it has a rational reason for not seeking a clarification, particularly if multiple Aspire factors are satisfied. </li><li>A final caveat: Aspire is not binding on the GAO or any other judge of the Court. And the Federal Circuit has not yet endorsed (or rejected) the proposition that an agency can abuse its discretion by not seeking a discretionary clarification. The Aspire holding is also unusual, as the Court of Federal Claims has only rarely told an agency that it erred by not seeking clarifications in a FAR Part 15 procurement. So, Aspire is not a get-out-of-jail-free card. Each offeror still bears the burden of submitting a well-written proposal. But the decision is at least one potential tool for offerors whose proposals are derailed by some minor error or lack of clarity. </li></ul>

Clarifying Minor Errors: The Court Makes an Agency Seek a Clarification

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