Morrison Foerster’s Government Contracts Insights provides our in-depth analysis of developments and trends impacting government contracting. Through Insights, our attorneys offer a real-time assessment of the statutory, regulatory, legal, and business-related developments and trends that are shaping the industry. We also examine a full array of non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.Morrison Foerster’s nationally recognized Government Contracts and Public Procurement practice represents the world’s leading companies in the aerospace and defense, intelligence, cybersecurity, information technology, financial and professional services, education, healthcare, infrastructure, and logistics support sectors. We are enlisted to address our clients’ most complex and important legal issues. Our work includes contract and subcontract negotiation and other transactional matters, business and regulatory compliance counseling, internal investigations, bid protests, and a wide array of enforcement and litigation matters. Our clients range from Fortune 50 companies to small and medium-sized companies just entering the public sector. We advise both U.S. and non-U.S. companies involved in municipal, state, federal, and non-U.S. procurement matters.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Tina is Co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmaceutical companies, with a focus on general contract counseling and compliance, particularly concerning intellectual property, and cybersecurity matters and federal grant funding.Tina counsels contractors on compliance with federal, state and local acquisition and ethics regulations and with the evolving myriad of requirements pertaining to data security and cybersecurity. She has been involved with numerous internal investigations and compliance reviews, and with mandatory and voluntary disclosures to agencies, and litigation of False Claims Act matters.Tina routinely advises clients concerning:<ul><li>Prime-subcontractor relationships</li><li>Sources of supply and country of origin requirements</li><li>Price reductions and price reporting issues</li><li>Organizational conflicts of interest</li><li>Safeguarding of intellectual property and other proprietary interests</li><li>Licensing and data rights issues</li><li>Handling of classified materials and controlled unclassified information</li><li>Agency suspension and debarment proceedings</li></ul>She also assists clients with due diligence and other activities related to the acquisition of government contracting concerns, and with the drafting and negotiation of teaming agreements, subcontracts, licensing agreements, and cooperative research and development agreements. She also assists clients applying for federal grants (including SBIR and STTR agreements), and those who seek to obtain other transactional authority agreements, as well as those competing for state and local government work.Tina’s litigation experience includes government contracts claims litigation in federal courts and before boards of contract appeals, bid protests before the Government Accountability Office and the Court of Federal Claims, and complex disputes in federal courts, including civil fraud and False Claims Act litigation and reverse Freedom of Information Act litigation.Prior to joining Morrison Foerster, Tina worked at another large national firm and as a trial attorney in the Office of the General Counsel of the Navy, Navy Litigation Office.<h4>Representative Experience</h4><ul><li>Negotiation of largest CHIPS Act federal funding agreement between multinational semiconductor corporation and U.S. Department of Commerce.</li><li>Negotiated prime contract and major subcontracts related to the Department of Energy’s next generation supercomputer program, including extensive IP rights negotiations and negotiation of associated patent rights waivers.</li><li>Negotiated series of other transaction authority agreements with DARPA and associated subcontracts with more than a dozen research universities on behalf of a firm biotech client, including complex IP rights allocations and material transfer agreements.</li><li>Assist clients with FedRAMP authorization process and with development of license agreements for software products sold to federal, state and local government agencies.</li><li>Cyber incident response counseling to some of the largest companies and organizations impacted by security incidents.</li><li>Advises clients on Bayh-Dole reporting of inventions and IP strategies for contracts and grants.</li><li>Conducts due diligence for major government contract mergers and acquisitions.</li></ul>

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Tina is co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She counsels a wide variety of government contractors on compliance with federal acquisition and ethics regulations. She drafts and negotiates contracts on their behalf and has been involved with numerous internal investigations and compliance reviews, and with bid protest, contract claims, and False Claims Act litigation. She also advises on M&A transactions involving government contractors.

Tina D. Reynolds

Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office.Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters. He has represented both protesters and awardees in scores of protests before the Government Accountability Office, the Court of Federal Claims, and procuring agencies, in acquisitions ranging from small business procurements to multibillion-dollar contracts of global significance. His representative protest matters span the aerospace sector, the Intelligence Community, base operations and logistics, healthcare, nuclear and environmental work, and information technology and software acquisitions. His protests have included both classified and unclassified programs. In addition to prevailing in published decisions, Jim has also secured favorable corrective action on behalf of clients in a wide variety of protests that were resolved without a published decision.Jim’s work also focuses on disputes over cost allowability and compliance with the Cost Accounting Standards, and he has appeared before the Armed Services and Civilian Boards of Contract Appeals, in size and status protests before Small Business Administration (SBA) area offices, and appeals before the SBA Office of Hearings and Appeals. Jim regularly counsels clients on contract interpretation, organizational conflicts of interest, and small business compliance.Jim graduated with high honors from the George Washington University Law School, where he focused his studies on federal procurement law, was a member of the Law Review, and interned with the General Services Administration’s suspension and debarment office. Jim also holds a degree in theology magna cum laude from the Pontifical Gregorian University in Rome and a bachelor’s degree in classical languages and literature summa cum laude from the University of Kentucky, where he graduated Phi Beta Kappa.

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Jim maintains an active practice in bid protests before the Government Accountability Office and contracting agencies and counsels clients in contract disputes and compliance obligations.

Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office. Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters.

James Tucker

<div style="margin-bottom: 15px;" class="videoWrapper"><iframe class="sticky-video" title="Meet Alex Ward, Government Contracts Practice Co-Chair" src="https://www.youtube-nocookie.com/embed/TkliwdSlTaQ?rel=0" frameborder="0" allow="autoplay; encrypted-media" allowfullscreen="1" title="iframe"></iframe></div>J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. His practice covers a full range of government contracts matters, including investigations, bid protests, claims, general litigation, corporate transactions, and counseling. Alex strives in all matters is to provide his clients the highest level of efficient and effective representation.Alex represents contractors in internal and external investigations, disclosures to the government, and qui tam litigation, with great success in reducing or eliminating his clients’ exposure through active engagement with the government. His work in this area includes obtaining numerous declinations and dismissals of False Claims Act cases in their earliest stages, sparing his clients the cost, risk, and exposure of litigation.He has also served as lead counsel in dozens of bid protests involving military and civilian agency procurements of a wide range of products and services, including all manner of pre- and post-award protests in the GAO, the U.S. Court of Federal Claims, and state tribunals, as well as appeals to the U.S. Court of Appeals for the Federal Circuit and size protest appeals before the SBA’s Office of Hearings and Appeals.Alex handles all aspects of the claims process, from the initial assessment and drafting of requests for equitable adjustment through litigation in the Boards of Contract Appeals and the Court of Federal Claims. Alex’s practice also covers the full gamut of other controversies confronting government contractors, including prime-sub, teaming partner, employer-employee, competitor, and indemnification disputes. His litigation work also includes a wide variety of pro bono engagements, in which he has represented both individual and institutional clients in matters ranging from immigration and criminal defense to sustainable procurement and protection of the environment.Prior to joining the firm, Alex served in the U.S. Army as a commissioned officer and an Assistant to the General Counsel of the Army responsible for civil works and international matters, and as a clerk for judges on the U.S. Courts of Appeals for the Armed Forces and the D.C. Circuit. He is a member of the Boards of the Morrison & Foerster Foundation and the Chesapeake Bay Foundation and of Law360’s Government Contracts Editorial Board.

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Alex is co-chair of Morrison Foerster’s Government Contracts and Public Procurement practice. His practice covers a full range of government contracts matters, including bid protests, claims, investigations, corporate transactions, and counseling.

J. Alex Ward

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Morrison Foerster’s Government Contracts Insights blog provides an in-depth analysis of news, developments, and trends impacting government contracting and procurement. Through Insights, attorneys from our nationally recognized Government Contracts and Public Procurement practice will offer a real-time assessment of the statutory, regulatory, legal, and business-related developments that are shaping the industry. This blog will also examine a full array of U.S. and non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.Read about our <a href="http://govcon.mofo.com/editors/">Authors</a>.Never miss a post. Subscribe to get real-time updates.

Brad is a partner in Morrison Foerster’s Litigation Department, Managing Partner of the Austin office, and Chair of the firm’s Israel practice. He is the former Co-Chair of the firm’s Global Litigation Practice and the Government Contracts + Public Procurement Practice.

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This month’s Law360 Bid Protest Roundup examines three recent decisions from the U.S. Court of Federal Claims. The first two cases highlight splits between the 

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JULY 2021 BID PROTEST ROUNDUP (LAW360 SPOTLIGHT)

JULY 2021 BID PROTEST ROUNDUP (LAW360 SPOTLIGHT) | Government Contracts Insights

This month’s <a rel="noopener" target="_blank" href="https://www.law360.com/articles/1411656">Law360 Bid Protest Roundup</a> examines three recent decisions from the U.S. Court of Federal Claims. The first two cases highlight splits between the court and the Government Accountability Office related to contract interpretation, price realism analyses and post hoc extensions of proposal deadlines. The third case takes an in-depth look at the bounds of sole-source awards.CW Government Travel In CW Government Travel Inc. v. U.S., CW raised several challenges to the U.S. General Services Administration’s award of a contract for travel management services for the U.S. Army under the Federal Supply Schedules.[1]Among other things, CW argued that the GSA (1) unreasonably credited the awardee’s proposed key personnel for having U.S. government travel experience where they had worked only at defense contractors, and (2) failed to conduct price realism and unbalanced pricing evaluations as required by the request for quotations, or RFQ.Although the GAO summarily denied CW’s protest,[2] the court sided with CW and slammed the GSA for both its tortured interpretation of the RFQ and its unreasonable evaluation.With respect to key personnel, the RFQ required certain positions to have experience with U.S. government travel. Pursuant to this requirement, the GSA credited the awardee for several proposed employees that had experience in providing travel services for contractors in the aerospace and defense industries but not directly to government employees.CW argued the GSA’s evaluation was contrary to the RFQ, which it claimed clearly required experience providing travel services to government personnel, either as a government employee or a contractor.CW explained that commercial travel experience, including that provided to aerospace and defense contractors, is not the same as government travel, as contractors are not required to comply with government and U.S. Department of Defense travel regulations, which are key requirements of the RFQ. The GSA defended its evaluation by — incorrectly — claiming that aerospace and defense contractors traveling at the government’s expense are required to follow many of the same rules as government employees and, thus, experience at these contractors met its requirements. The GAO agreed with the GSA, finding that CW was conflating the terms “U.S. government travel” and “official travel,” which was also referenced in the RFQ.The court, however, disagreed and approached the issue as one of contract interpretation, finding that the requirement was, as CW argued, straightforward and plainly required experience providing travel services directly to government employees. The court noted that the GSA’s interpretation introduces ambiguity into the requirement because it is unclear what type of government contractor experience is acceptable, given that the agency repeatedly refers to only aerospace and defense contractors.The court also noted that the GSA’s reasoning was, as CW pointed out, factually incorrect because contractors are not subject to the same travel regulations as government employees. Finally, the court rejected the GSA’s argument that CW conflated the terms “U.S. government travel” and “official travel” because the RFQ uses the term “official travel” in several contexts with several meanings.With respect to price realism — i.e., whether an offeror’s proposed prices are so low that there is a risk that the offeror does not understand the technical requirements or may not be able to successfully perform — and unbalanced pricing, CW argued the GSA failed to conduct a reasonable price evaluation and failed to identify the awardee’s unbalanced pricing related to its proposal to perform some contract requirements for free.CW’s arguments stemmed from the GSA’s own evaluation in which it found that based on the awardee’s “low pricing strategy, the government may be accepting a significant risk regarding whether the company really understands the requirements to manage government travel.”The GSA raised this issue with the awardee in discussions, and the awardee responded that it understood it was providing services at no cost to the government and that it would not be entitled to any adjustments under the fixed-price arrangement. The awardee also provided a four-part rationale for its pricing. The GSA argued that these discussions, along with its technical evaluation, demonstrated the awardee understood the requirements and resolved its unbalanced pricing concerns.CW argued that the record failed to explain how these discussions resolved the GSA’s concerns, but the details of CW’s reasoning were not provided in the GAO’s decision. Despite these concerns, the GAO sided with the agency, finding that “the record shows the agency considered the realism of the awardee’s price,” and that the contracting officer’s additional explanations during the protest litigation were sufficient to fill any gaps in the contemporaneous record.The court disagreed, finding that despite its claims, the GSA had failed to conduct proper price realism and unbalanced pricing evaluations. With respect to price realism, the court noted that the GSA’s position had flip-flopped between the GAO and the court, with the GSA originally arguing no price realism evaluation was required and now arguing that it was only required for overall prices, which it claims to have evaluated.The court found that the RFP did, in fact, require a price realism evaluation of overall pricing and nothing in the record even suggested the GSA had actually performed such an evaluation.The only price realism evaluation in the record was in the GSA’s price evaluation, in which the evaluators flagged potential realism issues for specific line items, which the court found to have never been resolved. Central to the court’s reasoning was the fact that the GSA claimed its discussions with the awardee, including the four justifications it provided for its pricing, had assuaged any realism concerns.However, these so-called justifications were nothing more than quotations from the awardee’s proposal. The court concluded that:[It] would seem the very definition of arbitrary and capricious for an agency to conclude that the reasoning an offeror has already provided to an agency and is clearly within an agency’s possession before it sought clarifications can somehow suffice fora “meaningful” price realism analysis when that reasoning is repeated verbatim to the agency in a later communication.The court also disagreed with the GSA as to whether it conducted an unbalanced pricing evaluation on similar grounds. While the agency noted unbalanced pricing concerns in its original pricing evaluation, those concerns were not — and could not be — resolved through the awardee’s citations to its own proposal in discussions.Takeaways CW Government Travel demonstrates the potential benefits of bringing second-shot protests involving complex issues of contract interpretation to the court after a denial at the GAO. Here, while the GAO afforded the agency’s interpretation of the RFQ great deference, the court took a much more critical approach.SynconSyncon LLC v. U.S. involves a substantive split between the GAO and the court, this time involving the so-called late-is-late rule, which requires rejection of proposals submitted after the submission deadline except in very limited circumstances.[3]In Syncon, offerors were instructed to submit their proposals to the U.S. Navy using the DOD’s secure access file exchange, or SAFE, website. Offerors were required to request upload links prior to bid submission, and were instructed that successful submission would result in a “drop-off completed” notification.The protestors stated that they attempted to upload their proposals in the last few minutes before the submission deadline but seemed to encounter technical issues as they did not receive drop-off completed notifications.In response to the technical issues the protestors experienced, the Navy opted to amend the solicitation to extend the submission deadline post hoc and allow the protestors and all other offerors to submit updated proposals before the new deadline.The agency based its decision on a long-standing GAO rule, reflected in the GAO’s March 2007 decision in Geo-Seis Helicopters Inc., or Geo-Seis I, in which GAO held that post hoc time extensions are permitted “where the motivation for the extension is enhanced competition,” as long as all offerors are given the benefit of the time extension.[4]Another offeror — which met the original proposal deadline — then submitted an agency-level protest of the post-hoc extension, citing the court’s July 2007 decision in Geo-Seis Helicopters Inc. v. U.S., or Geo-Seis II, in which the court held that post hoc extensions violate the late-is-late rule in Federal Acquisition Regulation 52.215-1.[5]In response to that protest, the Navy opted for a post hoc rescission of its post hoc extension and notified the original protestors that their proposals were, once again, rejected as late.Syncon then brought the issue to the court, arguing that (1) the agency’s decision to rescind the post hoc extension was unreasonable as the extension was allowed under the precedent established by the GAO in Geo-Seis I, and (2) the agency’s decision was the result of a deficient agency-level protest where the protestor failed to demonstrate it was prejudiced by the extension. The protestors alternatively argued that their proposals should have been accepted under one of the limited exceptions to the late-is-late rule.The court denied the protests.With respect to the allowability of post hoc extensions, the court reaffirmed its ruling in Geo-Seis II, stating that issuing post hoc amendments would render the late-is-late rule in FAR 52.215-1 a nullity. The court noted that, although contracting officers have considerable discretion, “that discretion does not extend to violating the FAR.”Addressing the split with the GAO, the court stated that the GAO’s holding in Geo-Seis I and subsequent cases is a comptroller-general-created rule that is not reflected in the FAR, and thus would not be adopted by the court.The court also rejected the protestors’ complaints about the propriety of the agency-level protest that led to the rescission of the extension, finding that even if the protest was deficient, the agency had the discretion to take corrective action to remedy its own perceived errors so long as it had a rational basis for that corrective action.Finally, the court denied the protestors’ arguments that certain exceptions to the late-is-late rule should apply here. With respect to the unanticipated event exception, the court explained that the record contained no evidence of any unanticipated events that impacted the submission of proposals.Not only were all other offerors able to successfully submit their proposals through the DOD SAFE service, but DOD SAFE administrators also confirmed there were no outages or errors in the system during the relevant time period.With respect to the government control exception, the court found that the protestors’ claims that their proposals were timely uploaded were unsupported.While the protestors provided screenshots of web history demonstrating they visited the DOD SAFE website at the time of their claimed submissions along with supporting declarations from employees, this did not establish the proposals were within the government’s control before the deadline.Importantly, FAR 52.215-1(3)(iii)(A)(2) requires offerors have proof of receipt of the proposal by the government to trigger this exception, which the protestors could not prove by demonstrating their attempts to timely upload their proposals.Takeaways This case is yet another example of the need to leave ample time to address technical issues while submitting proposals. Last-minute submissions are a recipe for disaster, so proposal teams should plan accordingly.Sierra NevadaIn Sierra Nevada Corp. v. U.S., the U.S. Air Force issued a justification and approval, or J&A, for a $981 million, five-year, sole-source, indefinite delivery, indefinite quantity contracts award to Sikorsky Aircraft Corp. for capability upgrades to the combat rescue helicopter program.[6] The J&A was premised on the fact that the Air Force anticipated a delay in obtaining the technical data package required for other contractors to perform the work.Although Sikorsky was contractually required to deliver the technical data package in early 2021, a combination of program delays and a dispute between Sikorsky and the Air Force over data rights delayed delivery. Thus, as the original manufacturer, Sikorsky is the only contractor with the technical data package necessary to perform the work without several years of reverse engineering.Sierra Nevada protested the J&A, arguing it was based on incomplete market research and lack of advance planning. The court disagreed with Sierra Nevada on both grounds.With respect to market research, Sierra Nevada claimed the J&A was improper because the agency failed to consider its second submission in response to the sources-sought synopsis. The court rejected this argument as not only was Sierra Nevada’s second submission submitted seven months after the submission deadline, but it also failed to provide any new information that would undermine the J&A. Specifically, Sierra Nevada argued that its second submission demonstrated that it could perform much of the work without the technical data package and thus a sole source was unnecessary. In rejecting this reasoning, the court noted that Sierra Nevada’s original submission had already stated that Sierra Nevada could do a lot of the work without the package, but the Air Force reasonably determined that working without the package would create too significant of a risk.Sierra Nevada also argued the J&A was the product of a lack of advanced planning on the part of the Air Force and thus could not serve as the justification for the sole-source award under the Competition in Contracting Act. Specifically, Sierra Nevada argued that the Air Force had ample time to resolve its data rights dispute with Sikorsky in time to alleviate the need for a sole-source award.The court not only disagreed with Sierra Nevada, but instead noted that the J&A itself represented the Air Force’s attempts mitigate anticipated problems with the technical data package delivery. The court noted that the dispute with Sikorsky appeared to be a good faith dispute, and that while the technical data package was delayed, Sikorsky had not yet breached the contract, nor had the Air Force failed to take appropriate measures to enforce the contract.Despite denying both of Sierra Nevada’s grounds for protest, the court still found the length of the sole-source award to be inappropriate, and granted Sierra Nevada’s request for injunctive relief. The court noted that while the sole source was appropriate for the current technical data package issue, the long length of the award would improperly stifle competition well after the expected delivery of the technical data package:In that regard, the critical problem for the Agency is that the J&A simply does not explain how the current unavailability of a [technical data package] justifies a sole-source award for the entirety of the combat rescue helicopter upgrade contract, which contemplates a five-year order period and a seven-year delivery period.Further, while the J&A acknowledged this issue and established procedures for ensuring competition to the maximum extent practicable once the technical data package was delivered, these promises were neither enforceable nor protestable due to the task-order protest bar. The court concluded that “[a]n unenforceable promise to compete future delivery orders … is insufficient to comply with the [Competition in Contracting Act’s] requirements.”Takeaways This decision serves as a reminder to contractors to ensure market research responses are complete and accurately communicate capabilities. Learn from Sierra Nevada’s mistake, as you may not get a second bite at the apple. This decision also emphasizes the need to scrutinize all aspects of sole-source J&As. Even where an agency’s sole source justification otherwise appears sound, the resulting award may be overturned if not appropriately tailored to the circumstances giving rise to the justification.[1] CW Government Travel Inc. v. U.S., No. 21-1354C (Fed. Cl., June 28, 2021, reissued July 21, 2021).[2] CW Government Travel Inc., B-419193.4 et seq., April 15, 2021.[3] Syncon LLC v. U.S., No. 21-1035C (Fed. Cl., July 2, 2021, reissued July 15, 2021).[4] Geo-Seis Helicopters Inc., B-299175, B-299175.2, 2007 CPD ¶ 135 (Comp. Gen. Mar. 5, 2007).[5] Geo-Seis Helicopters Inc. v. U.S., 77 Fed. Cl. 633 (2007).[6] Sierra Nevada Corp. v. U.S., No. 21-1186C (Fed. Cl., July 1, 2021, reissued July 12, 2021).

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