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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The Chief Information Officer-Solutions and Partners 4 (CIO-SP4) procurement of the National Institutes of Health’s Information Technology Acquisition and Asses

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GAO Finds CIO-SP4 Solicitation Is Unduly Restrictive of Competition

GAO Finds CIO-SP4 Solicitation Is Unduly Restrictive of Competition | Government Contracts Insights

Damien C. Specht

James A. Tucker

The Chief Information Officer-Solutions and Partners 4 (CIO-SP4) procurement of the National Institutes of Health’s Information Technology Acquisition and Assessment Center (NITAAC) has garnered a great deal of attention. With confusion over evaluation criteria, a string of last-minute solicitation amendments and reversals, short extensions of the rushed due dates for proposals, and a series of major changes in how offerors were permitted to form teams, some expected NITAAC to suspend the procurement altogether and send the solicitation back to the drawing board. Instead, after a final set of amendments and a last-minute extension of the proposal due date, NITAAC received proposals on August 27, 2021.Thanks to a new U.S. Government Accountability Office (GAO) decision finding the solicitation is unduly restrictive, the solicitation (at least with respect to offerors competing for small business awards) may be going back to the drawing board after all. The decision is <a rel="noopener" target="_blank" href="https://www.gao.gov/assets/b-419956.18.pdf">Computer World Services Corporation; CWS FMTI JV LLC, B-419956.18 et al., Nov. 23, 2021</a>.BackgroundCIO-SP4 will be a large multiple-award contract, against which agencies across the Government may place task orders. The solicitation provides for both unrestricted and small business set-aside awards. Similar to the General Services Administration’s (GSA) OASIS procurement, an important part of the CIO-SP4 evaluation involves numerical scores offerors give themselves for various capabilities, credentials, and experience their team members possess. This feature of the evaluation drives offerors to assemble teams that can rack up the maximum number of points, thus improving their chances of award.Between the initial draft solicitation released in 2020 and the final amended solicitation, NITAAC significantly changed the rules a number of times for scoring the contributions of various types of teammates. Late in the process, NITAAC prohibited small business offerors from relying on the capabilities, credentials, and experience of large business subcontractors. Although the solicitation permitted mentor-protégé joint ventures to rely on the experience of mentors approved by the Small Business Administration (SBA), the solicitation eventually limited the number of experience references a mentor-protégé joint venture offeror might submit for a large business mentor to two per task area. Because large businesses generally have more capability, credentials, and experience than small businesses, these restrictions limited the number of points a small business might accumulate for evaluation purposes.The ProtestPrior to the date set for receipt of proposals, various offerors filed protests with the GAO, challenging the terms of the solicitation. We’ll focus on the protest of CWS FMTI JV LLC (CWS FMTI), a mentor-protégé joint venture competing for one of the small business awards, whose protest the GAO sustained in part.The protester complained that the solicitation’s self-scoring criteria improperly limited the number of experience references that may be submitted for a large business mentor in a mentor-protégé joint venture. According to CWS FMTI, these limitations unduly restricted competition, violated SBA regulations, and improperly treated mentor-protégé joint ventures with large business mentors differently from mentor-protégé joint ventures with a small business mentor—a distinction the SBA regulations do not make.As relevant to the protest, the solicitation provided self-scoring criteria for various kinds of experience. The solicitation permitted offerors to submit experience examples from members of their teams, including from mentor-protégé joint venture members. For a mentor-protégé joint venture, however, a large business mentor was limited to two examples for each task area in corporate experience, and two of the three possible experience examples for leading edge technology experience and federal multiple award experience.  If an offeror wanted to submit additional experience examples, it had to come from other (small) team members. The solicitation did not similarly limit the experience contributions from a small business mentor.First, the protester argued the limitation on mentor experience violated 13 C.F.R. § 125.8(e). That regulation prohibits an agency from requiring “the protégé firm [in a mentor-protégé joint venture] to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.” The protest continued that, because this regulation requires agencies to permit mentor-protégé joint ventures to demonstrate experience “in the aggregate,” a restriction on a mentor’s experience contribution violates the regulation.The GAO invited the SBA to provide its view of this argument. The SBA cited its prefatory comments accompanying the promulgation of the most recent version of 13 C.F.R. § 125.8(e). There, the SBA stated that the regulation does not prohibit agencies from requiring a protégé to demonstrate some experience of its own; it simply requires agencies to consider the mentor’s experience, and prohibits agencies from holding a protégé joint venture member by itself to the same standard as other offerors. The GAO noted that the CIO-SP4 solicitation did not require protégé members to demonstrate any experience of their own and affirmatively permitted the consideration of large business mentor experience as part of a joint venture offeror’s aggregate experience. Thus, the GAO determined that the solicitation did not violate 13 C.F.R. § 125.8(e).Second, the protester argued this restriction was unduly restrictive of competition, even if it did not violate regulation. A challenge based upon undue restriction of competition is generally not a very difficult hurdle for an agency to clear, as an agency need only document some rational basis for the restriction. NITAAC, however, was unable to do that.NITAAC first argued that its restrictions were reasonable because they were the same as restrictions the GAO approved in <a rel="noopener" target="_blank" href="https://www.gao.gov/assets/b-408685.18.pdf">Ekagra Partners, LLC, B-408685.18, Feb. 15, 2019, 2019 CPD ¶ 83</a>. (See our prior discussion of the sustained protest ground in Ekagra <a rel="noopener" target="_blank" href="https://govcon.mofo.com/protests-litigation/february-2019-bid-protest-roundup/">here</a>.) There, in the context of the OASIS on-ramp solicitation, the GAO held that the GSA “reasonably explain[ed] that limiting the amount of experience that may be credited to a large business mentor ensures that the agency will be able to meaningfully consider the experience of the protégé member of the joint venture.” The GAO found it was unreasonable for NITAAC to rely upon this portion of the Ekagra decision because, unlike OASIS, CIO-SP4 did not require protégés to submit any experience examples at all. Thus, restricting the number of experience examples from a mentor was irrelevant to the consideration of the protégé’s experience and not a rational basis for the restriction.NITAAC next argued that the limitations on the experience that a large business mentor might submit were reasonable to avoid competitive disadvantage to small business firms that did not partner with large business mentors.  The GAO rejected this argument, pointing out that the mentor-protégé program is designed to allow small business protégés to benefit from the capabilities and experience of their mentor firms, be they large or small businesses. See 13 C.F.R. § 125.9(a), (b); 15 U.S.C. § 644(q)(1)(C). The GAO found no basis in 13 C.F.R. § 125.8(e), or any other SBA statute or regulation, to support NITAAC’s conclusion that a procuring agency had discretion to limit the submission of experience from a large business mentor for the purpose of favoring joint ventures with small business mentors over those with large business mentors.Thus, neither of NITAAC’s asserted bases for restricting competition was rational.Third, the GAO held that the limitation on mentor experience submissions was not only unduly restrictive of competition but also improperly treated similarly situated offerors unequally. Specifically, the solicitation’s challenged restrictions applied only to mentor-protégé joint ventures with large business mentors, but not to those with small business mentors. In light of the purpose of the mentor-protégé joint venture program, the GAO found that NITAAC failed to explain why it had the discretion to competitively disfavor a mentor-protégé joint venture with a large business mentor as compared to all other small business offerors, or to favor mentor-protégé joint ventures with small business mentors over mentor-protégé joint ventures with large business mentors. NITAAC, in effect, appointed itself to make a distinction that the governing small business statutes and regulations do not make, and ended up treating offerors unequally.The GAO denied the remainder of the protest grounds. At this point, it appears the GAO has resolved all of the multiple pre-award protests filed so far against this solicitation, and only CWS FMTI has raised an argument that GAO sustained.Where Does NITAAC Go from Here?In one sense, the GAO’s decision is fairly limited. It involves restrictions that applied only to offerors competing for one of the small business awards, and it applies only to mentor-protégé joint ventures with large mentors. The GAO leaves open the possibility that NITAAC might come up with a better rationale for the existing restrictions than it was able to think of during litigation:We recommend that the agency reconsider its requirements and the limitations the RFP imposes on the experience that may be submitted by large business mentors, and whether the agency believes there are justifications for the limitations that are consistent with our discussion herein. If the agency elects to retain the current version of the RFP, it should advise the protester of the new justification for the limitations.Assuming the failed rationales NITAAC articulated during the protest are the best NITAAC can do, it will have to follow the GAO’s alternative recommendation:In the alternative, we recommend that NIH amend the solicitation to either remove the limitations, or to revise the evaluation criteria in a manner that treats offerors in an equal manner and is consistent with the provisions of 13 C.F.R. § 125.8(e), as discussed above. If the agency amends the solicitation, it should provide offerors an opportunity to submit revised proposals.Although the GAO did not specify this, NITAAC also will have to consider the requirements of FAR 15.206(e):If, in the judgment of the contracting officer, based on market research or otherwise, an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.Here, small business offerors scrambled to rearrange their teams and sometimes changed the prime offeror itself as a result of NITAAC’s various restrictions on teaming arrangements. Are there mentor-protégé joint ventures that did not submit proposals as a result of the solicitation’s restrictions on mentor experience? Would they have submitted proposals if they had known that NITAAC would remove those restrictions after proposal submission? Or, if NITAAC tries to justify the restriction by adding a new requirement for protégé firms to submit some experience of their own, would some joint venture offerors have proposed instead as prime-subcontractor teams if they had known NITAAC would amend the solicitation in this way? Depending on how one answers these questions, NITAAC may end up having to cancel and resolicit at least the small business portion of CIO-SP4, or face another slate of protests if it does not.

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