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 installment of our monthly Law360 bid protest bid protest spotlight examines three protest decisions addressing challenges to contractor performance assess

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January 2020 Bid Protest Roundup | Government Contracts Insights

Locke Bell

This installment of our monthly <a href="https://www.law360.com/governmentcontracts/articles/1241905/bid-protest-spotlight-jurisdiction-standing-selection-criteria" target="_blank" rel="noopener noreferrer">Law360</a> bid protest bid protest spotlight examines three protest decisions addressing challenges to contractor performance assessment reports (“CPARs”), procurements through the General Services Administration’s (“GSA”) Federal Supply Schedules (“FSS”), and standing to protest. In Colonna’s Shipyard, Inc., the Court of Federal Claims opened its door to a bid protest ostensibly challenging a CPAR evaluation, but only to the extent the protester alleged bad faith related to the CPAR, rather than mere errors in it. In Noble Supply & Logistics, Inc., the Government Accountability Office (“GAO”) held that, when procuring through the GSA schedules, agencies cannot use a “highest-technically rated reasonably-price” selection methodology. In W&G Machine Co., the Court of Federal Claims determined that an incumbent small business supplier lost standing to challenge the bundling of contracts by the Defense Logistics Agency when it sat idle through multiple notices on FedBizOpps.gov (“FBO”).Colonna’s Shipyard, Inc., v. United States In Colonna’s Shipyard, Inc.<a href="#_edn1" name="_ednref1">[i]</a>, the protestor, Colonna’s Shipyard, Inc. (“Colonna”), challenged the Navy’s reliance on a CPAR evaluation, which allegedly was neither “factual” nor “correct,” filing a four-count protest. The challenged award concerned a contract for dry-dock phased maintenance of the United States Naval Ship Prevail. The Government sought dismissal for lack of subject matter jurisdiction on the grounds that a CPAR challenge is only viable as a claim under the Contract Disputes Act, not under the court’s bid protest jurisdiction. The court dismissed three of the four counts, but determined that Colonna’s allegation that the Government had breached its covenant of good faith and fair dealing should survive.AnalysisAs noted, the court dismissed three of Colonna’s four counts. First, Colonna argued that the court had protest jurisdiction to correct the CPAR evaluation on the grounds that the erroneous evaluation caused Colonna to lose the Prevail contract, and would likely continue to cause Colonna to lose future contracts. The court disagreed. Following the Federal Circuit’s decision in Bannum, Inc., v United States,<a href="#_edn2" name="_ednref2">[ii]</a> the court confirmed that such performance evaluations are not subject to challenge as bid protests. Because Colonna failed to distinguish the facts of its case from those of Bannum, the court held the binding precedent applied and dismissed this portion of Colonna’s complaint.Second, Colonna alleged a breach of contract, arguing that the Government had a “duty to perform the CPAR evaluation . . . in accordance with the Federal Acquisition Regulation.” The court again disagreed, adopting the defendant’s argument that by raising issues of contract administration, the complaint fell outside the court’s bid protest jurisdiction, and therefore also dismissed this portion of Colonna’s complaint.Third, Colonna raised a de facto debarment and deprivation of constitutional rights argument, which the court again summarily dismissed. Because Colonna targeted the contents of its evaluation, the court determined its claim, in any form, should properly be brought under the Contract Disputes Act, not as a bid protest, even under the trappings of debarment and constitutional rights.However, the court refused to dismiss Colonna’s remaining claim alleging that Navy personnel acted in bad faith when they published “incorrect, misleading and inaccurate” statements in the CPAR evaluation to “preserve the reputation of Navy personnel” while “shift[ing] the blame for all contract problems onto the contractor.” Colonna also alleged sufficient details regarding a potential “conflict of interest” affecting the CPAR. Thus, the court held that so long as “the focus is on bad faith actions which allegedly compromise the award” of a contract, then such allegations fall properly within the Court’s protest jurisdiction.TakeawaysContractors often take issue with their performance reviews – and, in many cases, are justified for doing so. Yet they are left, more or less, without a remedy: bid protest challenges are, as Colonna shows, all but foreclosed, and the court’s ability to order any real relief under the Contract Disputes Act is unclear. The court’s opinion in Colonna offers at least some hope, albeit slim, that contractors may be able to seek relief through a bid protest where they can show evidence of the government’s bad faith – a tall task, for which the court historically requires “well-nigh irrefragable proof,” but a glimmer of hope nonetheless.Noble Supply & Logistics, Inc.In Noble Supply & Logistics, Inc.<a href="#_edn3" name="_ednref3">[iii]</a>, the protester successfully challenged the terms of a request for quotations issued by the GSA, seeking to establish four separate single-award blanket purchase agreements (“BPAs”). The protestor, a small business entity, alleged the solicitation for hardware store supplies and ancillary services, by seeking the “highest-technically rated reasonably-priced” proposal, violated the terms of the Competition in Contracting Act<a href="#_edn4" name="_ednref4">[iv]</a> (“CICA”) because it failed to “result in the lowest overall cost alternative” meeting the Government’s needs. The protestor also alleged that the terms of the solicitation did not match the requirements of the contract. The GAO sustained both arguments.AnalysisTo the first point, the GAO noted that when procuring through the GSA’s FSS schedule contracts, there is a statutory and regulatory imperative for agencies to consider the lowest-cost alternative. The use of the FSS, with its streamlined process for obtaining commonly used goods and services, in lieu of full and open competition, is premised on establishing the lowest overall cost to the government by following the procedures of FAR subpart 8.4. While agencies do not need to use a lowest-price, technically acceptable model in an FSS procurement, agencies do need to weigh “the value and benefits associated with a vendor’s approach against its associated cost” when establishing a BPA.The solicitation at issue failed to directly compare price with any of the technical features and benefits, and therefore it failed to determine the best value to the government. The solicitation established five technical evaluation factors, three of which were to be evaluated on a pass/fail or satisfactory/unsatisfactory basis. The other two technical factors, technical approach and corporate experience, were to be assessed qualitatively and rated adjectivally.Price, in contrast, was to be evaluated for fairness and reasonableness. The solicitation specified that neither a lowest-price, technically acceptable nor a best-value tradeoff methodology would be used. Instead, the agency would award the BPAs to the highest technically rated quotations with fair and reasonable prices. While the GAO had previously approved a similar evaluation methodology in Sevatec,<a href="#_edn5" name="_ednref5">[v]</a> the GAO distinguished the facts of the case at hand, because unlike in Sevatec, in which the agency shifted price competition to the task order level, the agency here intended to establish single-award BPAs, which entailed no further competition.To the second point, the GAO found that the solicitation diverged from the underlying contract in terms of pricing the ancillary services. In addition to allowing orders for hardware goods, the solicitation also required offerors to provide such “commercially available, ancillary services typically performed in, and in the spirit and concept of, a hardware store.” The solicitation, however, was silent on instructions for pricing the required services. When asked to clarify the matter during a Question and Answer session, the agency stated that service prices were to be included in the product prices. The GAO found this patently unacceptable. Because ancillary services would be paid for under separate special item numbers from those for goods, the GAO held that the two needed to be priced separately in the proposals as well, and therefore the solicitation as written conflicted with the demands of the underlying contract.TakeawaysThe takeaways from Noble Supply are relatively straightforward. Most notably, federal agencies are now on notice that the “highest-technically rated reasonably-priced” proposal evaluation methodology is not available when establishing BPAs through the GSA schedules. Secondarily, the decision is a good reminder to procuring agencies and bidders alike that awards made against the GSA schedules ultimately must fall within the scope of, and therefore be consistent with, the terms of the overarching schedule contract.W&G Machine Co. v. United States In W&G Machine Co.<a href="#_edn6" name="_ednref6">[vi]</a>, a small business incumbent parts supplier, W&G Machine Company, Inc. (“W&G”), challenged two decisions by the Defense Logistics Agency (“DLA”) to bundle requirements, both to no avail. Specifically, DLA decided to (1) bundle the requirements for spare parts for the Chinook and Apache helicopters into a sole source award and (2) bundle over 220,000 national stock numbers into a single solicitation. Rather than responding to DLA’s notices on FBO about the consolidation, or submitting its own proposal under the solicitation, W&G waited until the anticipated award date to file its protest. The Court of Federal Claims found W&G’s silence unacceptable and thus dismissed W&G’s protest for lack of standing.AnalysisOn the merits of its protest, W&G sought to establish that in bundling the helicopter parts, DLA unlawfully favored Original Equipment Manufacturers at the expense of small businesses, and that by bundling the national stock numbers, DLA marginalized W&G and “fundamentally alter[ed] and diminish[ed] the agency’s competitive procurement landscape.” However, before a court may consider the merits of a case, it must determine if jurisdiction exists. Here, the government and the intervenor moved to dismiss for lack of jurisdiction or, in the alternative, for failure to state a claim. Finding the plaintiff failed both prongs of the interested party test, the court dismissed the complaint for lack of subject matter jurisdiction.To challenge a contract award at the Court of Federal Claims, the protestor must be an interested party. To qualify as such, a protestor must show two things: (1) that they are an actual or prospective bidder; and (2) that they have a direct economic interest that the challenged contract award would affect. A prospective bidder is one who expects to submit an offer prior to the closing date of the solicitation. To prove a direct economic interest, a party must demonstrate it had a “substantial chance” of winning the contract.On the first prong, the court held that W&G lost its standing as an actual or prospective bidder after failing to respond the agency’s several notices posted on FedBizOpps. Beginning in 2017, DLA posted first a “Potential Sources Sought” notice, then a “Presolicitation Notice,” and finally a notice of “Intent to Bundle Requirements,” to all of which W&G failed to respond. Furthermore, DLA sent W&G a letter explaining its intent to transition away from long-term contracts and/or purchase orders. Despite such extensive notice and warning, W&G waited two years to protest the terms of the solicitation, a nap the court found inexcusable.Although failure on the first prong would have sufficed for dismissal, the court continued to consider the second prong and determined that W&G failed there as well. To show it had a direct economic interest in the award after sleeping through its opportunity to object to the bundling, W&G needed to show it could meet the new requirements. Although W&G had previously provided helicopter parts to DLA, the plaintiff acknowledged it lacked the capacity to perform either solicitation as bundled. The court, therefore, determined that W&G lacked a direct economic interest and, therefore, was not an interested party, and as a result it lacked the standing to sue.TakeawaysThe bid protest process is fraught with deadlines and rules that require vigilance to safeguard one’s rights to fight for one’s interests. The court’s decision in W&G Machine Co. is a good reminder to contractors to monitor procurement developments early in the acquisition cycle, take advantage of opportunities to respond to sources sought notices or requests for information, and take the steps necessary to secure one’s standing to protest if needed. The rule to keep in mind, for situations like that in W&G Machine Co., is this: If you disagree with an agency’s decision not to conduct a competitive procurement – for example, by bundling requirements in a way that prevents you from competing – you must advise the agency of that disagreement, either by responding to the public notices about the procurement or by submitting a proposal of your own.<a href="#_ednref1" name="_edn1">[i]</a> Colonna’s Shipyard, Inc., v. United States, No. 1901373C (Fed. Cl., Jan. 21, 2020)<a href="#_ednref2" name="_edn2">[ii]</a> See Bannum, Inc., v United States, 404 F.3d 1346, 1353 (Fed. Cir. 2005) (holding that “a bid protest is not the proper forum” to litigate performance assessments).<a href="#_ednref3" name="_edn3">[iii]</a> Noble Supply & Logistics, Inc., B-418141, Jan. 16, 2020<a href="#_ednref4" name="_edn4">[iv]</a> 41 U.S.C. § 152(3)(B) (stating that the federal supply schedule satisfies the requirement for full and open competition when participation in the program has been open to all responsible sources, and orders and contracts under the FSS procedure “result in the lowest overall cost alternative to meet the needs of the Federal Government.”).<a href="#_ednref5" name="_edn5">[v]</a> See Sevatec, Inc.; et al., B-413559.3 et al., Jan. 11, 2017, 2017 CPD ¶ 3.<a href="#_ednref6" name="_edn6">[vi]</a> W&G Machine Co. v. United States, No. 19-1696C (Fed. Cl., Jan. 10, 2020)*Markus Speidel is a Law Clerk in our Washington, D.C. office and not admitted to the bar.

January 2020 Bid Protest Roundup

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