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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If you’ve been following the saga of the National Institutes of Health Information Technology Acquisition and Assessment Center’s (NITAAC) Chief Information Officer-Solutions and Partners (CIO-SP4) procurement, you likely know the Government Accountability Office (GAO) recently issued two decisions sustaining post-award protests by 91 unsuccessful CIO-SP4 offerors.

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Hard Validations and Cutlines: What Happened on CIO-SP4? | Government Contracts Insights

James A. Tucker

Damien C. Specht

If you’ve been following the saga of the National Institutes of Health Information Technology Acquisition and Assessment Center’s (NITAAC) Chief Information Officer-Solutions and Partners (CIO-SP4) procurement, you likely know the Government Accountability Office (GAO) recently issued two decisions sustaining post-award protests by 91 unsuccessful CIO-SP4 offerors. These decisions are <a href="https://www.gao.gov/assets/830/827256.pdf" target="_blank">here</a> and <a href="https://www.gao.gov/assets/830/827282.pdf" target="_blank">here</a>. In this article, we’ll walk through what the GAO found and discuss what it means for both successful and unsuccessful CIO-SP4 offerors. BackgroundCIO-SP4 will replace NITAAC’s existing CIO-SP3 contracts as a suite of government-wide acquisition vehicles under which federal agencies can issue task orders for various information technology solutions and services. The CIO-SP4 solicitation contemplated award of 305 to 510 separate indefinite delivery, indefinite quantity (IDIQ) contracts, spread across various socioeconomic categories. Each contract will have a maximum value of $50 billion and a ten-year maximum period of performance (inclusive of options). The agency received more than 1,000 proposals in response to the solicitation. Like several other large IDIQs of this nature, CIO-SP4’s primary evaluation methodology involves tallying “points” a proposal earns by citing various categories of experience, certifications, and other qualifications that the solicitation defines as worth specific numbers of points. For the first phase of the competition, each offeror was required to populate a self-scoring sheet with the particular point-generating items its team had assembled and submit documentation to allow the agency to validate the offeror’s claimed points. The solicitation stated the agency would “validate the offerors’ completed self-scoring” as part of a phase 1 evaluation, and “[o]nly the highest rated offerors will advance to phase 2 of the evaluation.” Whether a proposal advanced to phase 2 depended on whether the proposal’s validated points were above a cut-off line (called a “cutline”). The cutline would eliminate all but the most highly rated proposals, while attempting to approximate the solicitation’s estimated number of awards for each socioeconomic category. The solicitation did not state how exactly the agency would do that. Evaluations and First Rounds of ProtestsAfter much frustration from offerors and a rocky start in early 2022, including a sustained pre-award protest of the solicitation terms and any number of solicitation amendments, the CIO-SP4 competition proceeded. In September 2022, the agency notified offerors with scores below the undisclosed cutline for each socio-economic category that their proposals would not advance to phase 2. Approximately 120 excluded offerors filed bid protests. In November 2022, the Agency announced voluntary corrective action, in the form of reassessing the cutlines and making a new decision of which proposals would advance to phase 2, thus mooting the protests. The agency implemented its corrective action and, in February 2023, again provided notifications to offerors that did not make the cut. Another slew of protests followed. A month later, the agency again announced voluntary corrective action, in the form of reassessing the source-selection methodology and making new advancement determinations. The agency also stated it would “address inconsistencies that arose during implementation of the prior corrective action.” In mid-March, the GAO again dismissed the protests as moot.Third Corrective Action and ProtestsA few days after the GAO dismissed the second wave of exclusion protests, the agency completed its corrective action and again provided exclusion notices. In pre-award debriefings, the agency disclosed to each excluded offeror its self-score, its “validated” score, and the phase 1 cut-off (called “cutline”) scores for each socioeconomic category under which the offeror had submitted a proposal. By the end of March, another wave of protests hit the GAO, with 91 offerors eventually filing challenges to their exclusion. Around the same time, the agency posted a “preliminary” public notice of the “apparent successful offerors.” Unlike the first two rounds of protests, the agency fought this third round all the way to a written decision of the GAO. The GAO sustained the protests in two merits decisions—<a href="https://www.gao.gov/assets/830/827256.pdf" target="_blank">one decision</a> consolidating the protests of represented protesters, whose attorneys were admitted to a protective order and reviewed the internal agency record, and a <a href="https://www.gao.gov/assets/830/827282.pdf" target="_blank">separate decision</a> consolidating pro se protests by unrepresented offerors, which did not have access to the full record. The 91 protesters raised numerous challenges, timely and untimely, meritorious and not. Sifting the wheat from the chaff, the GAO sustained the protests for overarching errors in the way the agency validated (or did not validate) self-scored points and (as a result of that) the agency’s method for drawing the cutlines for the various socioeconomic categories. In addition to these broad, methodological problems (which are the focus of this article), the GAO also sustained one protester’s challenge to the particular “validated” score it received. Validating Self-Scores and Establishing CutlinesThe GAO decisions go into excruciating detail about documentation problems, confessed errors, internally inconsistent assertions by agency personnel in response to the protests, and the GAO’s own inability to figure out exactly what the agency had done, even though the agency had three shots at correcting and perfecting its record. The heart of the problem, though, was the agency’s apparent approach to validating the self-scores submitted by offerors. Although the solicitation did not define how agency validation would occur, it stated it would happen, and the offerors’ validated scores would determine which proposals to advance to phase 2. Although the agency claimed it validated all self-scores before establishing cutlines, the GAO found the agency’s multiple and inconsistent responses to supplemental protest arguments “show that the agency’s initial responses to the protesters and the descriptions of the validation process in the final cutline methodology memorandum were incomplete and ultimately misleading.” As best the GAO could determine, the agency conducted an “initial validation” that consisted of nothing but a check to see whether an offeror had submitted documentation to support its score, without any further analysis, review or score adjustment. Based on the self-scores (which in many instances appear to have been inflated), the agency established initial cutlines for each socioeconomic category and eliminated proposals with self-scores below the cutline. The agency appears to have conducted a second “hard validation” to determine whether the submitted documentation actually supported the points claimed, with corresponding adjustments to self-scores and further eliminations, if needed. The GAO provided one example where an offeror gave itself 10,000 points, which apparently figured into the initial setting of that socioeconomic group’s cutline and culling of the proposals. Only after the cutline was established, however, did the agency apparently perform a “hard validation” on this proposal, which showed the offeror had substantiated only 500 of the 10,000 points it claimed. The GAO also noted that the agency adjusted a third of the self-scores of proposals advanced to phase 2, while adjusting none of the self-scores that fell below the initial cutlines, which further undercut the claim that the agency validated all self-scores. The GAO expressed doubt as to whether the cutlines “were based on hard validated scores at all.” Based on these indications, the contradictory agency explanations, and a dearth of contemporaneous documentation, the GAO was unable to conclude the agency performed a full “hard validation” on all self-scores, as the solicitation contemplated, and found the agency relied on only partially-validated scores to establish cutlines. Because the agency apparently used unadjusted, unvalidated self-scores to establish cutlines (and to reject proposals that fell below that line), many of those self-scores were presumably overstated. As a result, it is possible the agency set the cutlines higher than it otherwise would have, and may have excluded some offerors that would have had scores higher than a reasonably-established cutline. The agency argued that any errors or lack of clarity had no effect on the outcome of the phase 1 decisions. The GAO conceded that a reasonable evaluation “might have yielded the same or substantially similar cutlines even if the agency performed a hard validation on all proposals,” but found the record was insufficiently documented to establish that. The GAO also observed that the agency’s responses to all but two of the protests were incomplete and inaccurate, thus depriving these 89 protesters of the opportunity to address an accurate version of the evaluation process. For these reasons, the GAO found a sufficient likelihood of prejudice to sustain the protest. Takeaways<ul><li>Assuming the agency really did “hard validate” the self-scores of all proposals that advanced to phase 2, it appears unlikely that corrective action will displace any of the current “apparent successful offerors.” The stay of award/performance, however, presumably will remain in place and prevent any task order competitions from proceeding under CIO-SP4 until the agency completes this latest round of corrective action.</li><li>Winning a protest is not the same as winning an award. It appears unlikely that most of the 91 protesters will receive awards as a result of full validation and new cutlines, and some may see their scores adjusted downward if they were not previously subjected to a “hard validation.” Given the agency’s track record in implementing corrective action, it is likely we will see yet another wave of protests once this latest round of corrective action is complete. </li><li>The agency’s recent extension of the legacy CIO-SP3 contracts through next April suggests it is accounting for another round of protests. And, even if the agency finally prevails in the next GAO protests, some disappointed offerors will likely contemplate second-bite protests at the Court of Federal Claims.  </li></ul>

Hard Validations and Cutlines: What Happened on CIO-SP4?

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