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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May 2023 Bid Protest Roundup: Timeliness, Discovery, Registration Gap | Government Contracts Insights

This past month, bid protest decisions from both the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) provided important reminders of procedural rules that protesters and intervenors alike must keep in mind if they wish to succeed at either forum. Accordingly, we consider below recent decisions on timeliness, discovery reaching beyond the administrative record, and continuity of SAM.gov registrations.Infotrend, Inc., B-419956.301, May 11, 2023In Infotrend, the GAO dismissed a protest as untimely where the protester’s after-hours interaction with an email containing pre-award debriefing information started the clock for filing.The protester, Infotrend, sought award of a contract under the Department of Health and Human Services, National Institutes of Health (NIH or “the agency”) Chief Information Officer-Solutions and Partners (“CIO-SP4”) contract program.The CIO-SP4 request for proposals (RFP) here contemplated a three-phase proposal evaluation process. As is relevant to this protest, the first phase required offerors to submit self-scoring sheets documenting relevant experience and capabilities. Only those offerors who received high scores during this first phase would advance to the second phase of evaluation.Infotrend timely submitted a phase one response to the RFP but was informed by the NIH that it was not among the highest-rated proposals and therefore would not advance to the second phase of competition. On the same day that the agency provided this notice of unsuccessful offer, Infotrend requested a pre-award debriefing. The agency emailed a pre-award debriefing to Infotrend eight days later; the debriefing email was received by the protester’s designated representative on March 28, 2023, at 5:22 p.m., after the company’s regular business hours.On April 10, 2023, Infotrend filed a protest at the GAO arguing that the agency had failed to reasonably evaluate its proposal in accordance with solicitation terms. Infotrend argued in its protest brief that this filing was timely because, due to its business hours, the debriefing was deemed received on March 29; 10 days following March 29 was Saturday, April 8, and the next day on which the GAO was open was April 10, when Infotrend filed its protest. The GAO pointed out, however, that contrary to this argument, Infotrend had conceded in its initial protest filing that the debriefing was in fact received on March 28.The GAO sided with the agency, dismissing the protest as untimely, for two key reasons.First, the GAO found that the protester had failed to address timeliness adequately in its initial protest pleading, where it stated that the pre-award debriefing was received on March 28 and did not advance its argument regarding the receipt of the debriefing email after business hours. The GAO emphasized that it is the responsibility of the protester to provide all information necessary to establish the timeliness of its protest in its initial protest pleading pursuant to 4 C.F.R. § 21.1(c)(6).Second, the GAO found that, regardless of this insufficient pleading, the debriefing was received on March 28, not March 29, therefore making the April 10 protest filing de facto untimely. The GAO focused on the fact that, despite the debriefing arriving in Infotrend’s CEO’s inbox after business hours, Infotrend’s CEO forwarded the debriefing to other Infotrend employees on that date. While receipt of information outside of normal business hours is generally not considered constructive notice sufficient to start the clock for protest timeliness purposes, the GAO has found that a protester has actual notice of information where, upon receiving information outside of normal business hours, they interact with it in such a way so as to demonstrate receipt. Infotrend argued that its CEO had not actually read the emailed debriefing information, but instead had merely forwarded the email. The GAO found that this failure of the CEO to scroll further down in the email to read the debriefing itself did not counteract the fact that the CEO had notice of the email and the debriefing information contained therein by virtue of opening and forwarding it in the first instance.Takeaways:This decision serves as yet another reminder that protesters should always err on the side of caution when determining whether the GAO may consider a protest timely. Furthermore, if it is required to justify a protest’s timeliness, an argument containing pertinent facts should be presented up front in the initial protest filing.TekSynap Corp. v. United States, No. 23-36C, May 8, 2023In TekSynap Corp., the Court of Federal Claims took the unusual step of allowing limited discovery in a bid protest by granting the motion of the protester, TekSynap, to supplement the administrative record.TekSynap challenged the award of an enterprise management services contract, alleging initially only that the agency had conducted a flawed price realism analysis. TekSynap added, in its amended complaint, that the awardee had made material misrepresentations in its proposal.The material misrepresentation challenge concerned a letter of commitment submitted by the awardee wherein it indicated that a certain individual, Mr. Williams, would be available to perform “without reservation” the duties of a program manager position for the contract, without disclosing that Mr. Williams was both the president of the awardee company and another related company and therefore would be unable to fully dedicate his time to serving in the required key role under the contract. Additionally, during the initial protest of the contract award, Mr. Williams had reached out to a different individual, Mr. Roller, to ask him to instead fill in the key personnel role. TekSynap argued that these alleged misrepresentations were material because key personnel was the most important subfactor under the most important technical factor by which proposals were evaluated.TekSynap then filed a motion to supplement the administrative record and for limited discovery, first seeking to admit relevant declarations by Mr. Roller and another individual who had knowledge of the situation. In response, the awardee sought to admit competing declarations by Mr. Williams and another awardee employee. TekSynap responded with a second motion to supplement the administrative record, wherein it requested permission to depose all of the identified individuals.The court pointed out that supplementation of the administrative record is typically not permitted in bid protests, unless the court is unable to undertake effective judicial review of an agency’s decision without extra-record evidence. Pointing to the material misrepresentation claim and the requirement that TekSynap prove that Mr. Williams was in fact not committed to serving as key personnel, the court found that the protest could only be effectively considered with additional information. Accordingly, the court agreed to limited discovery by permitting TekSynap to depose the three most relevant individuals identified.Takeaways:While bid protests are almost always limited to the administrative record, where additional information is necessary to evaluate the underlying issues, parties may be permitted to conduct additional discovery. While an argument that such discovery is necessary would likely need to be strong to succeed, protesters and intervenors alike should remember that this is a tool available to them at the Court of Federal Claims.Myriddian, LLC v. United States, No. 23-443, May 23, 2023In Myriddian, the Court of Federal Claims granted a preliminary injunction in a post-award protest where it determined that the protest would likely succeed on the merits because company to whom the relevant contract was awarded was not continuously registered in the System for Award Management (“SAM.gov”) during the period required by the solicitation.The protester, Myriddian, sought award of an administrative contract with the Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMMS or “the Agency”). The solicitation indicated that offerors would only be eligible for award where they met all of its terms and conditions. The agency ultimately awarded the contract to Cloud Harbor Economics, LLC (“Cloud Harbor”).Myriddian’s protest sought to enjoin the agency from awarding the contract to Cloud Harbor because Cloud Harbor did not comply with FAR 52.204-7’s mandatory SAM.gov registration requirement, which was incorporated in the solicitation by reference. Myriddian showed Cloud Harbor’s SAM.gov registration had lapsed for a 17-day period between proposal submission and award, in violation of FAR 52.204-7’s requirement that an offeror continue to be registered in SAM.gov from the time it first submits an offer through the time of award.In determining whether Myriddian was likely to succeed on the merits of its protest, thereby justifying (in part) a preliminary injunction, the court considered first whether compliance with FAR 52.204-7 was mandatory. FAR 52.204-7(b)(1) requires that offerors “shall continue to be registered [in SAM.gov] until time of award” in order to be eligible. The court analyzed the plain language of this requirement to mean that an offeror must have been registered in SAM.gov without interruption from submission of offer through award, and found that, because the clause was incorporated into the solicitation, compliance with that requirement was necessary for an offeror to be eligible for award.The court determined that the awardee’s 17-day registration lapse constituted a failure to comply with a solicitation requirement, as set forth in FAR 52.204-7. In making this decision, the court pointed out that the agency did not adequately distinguish between the harm arising from a failure of an offeror to be continuously registered in SAM.gov and the harm that arises when an offeror is not registered in SAM.gov either at the time of proposal submission or at the time of award, both of which are fatal to an offeror’s chance of contract award. Finding that Myriddian was prejudiced by this failure of the agency to adhere to solicitation requirements, the court turned to the other requisite preliminary injunction factors and ultimately enjoined performance of the contract until the bid protest is fully resolved.Takeaways:While companies seeking to do business with the federal government are almost certainly aware that registration in SAM.gov is necessary both at the time that they submit proposals and when they may ultimately receive award, offerors should take care to ensure that their SAM.gov registration does not lapse between those two points in time. As evidenced by this decision, the Court of Federal Claims will interpret solicitation requirements strictly, in line with their clear language, in determining whether grounds for a protest may exist.GAO<a href="https://www.gao.gov/assets/830/820387.pdf" target="_blank">Infotrend </a>COFC<a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2023cv0036-70-0" target="_blank">TekSynap Corp. v. United States</a> <a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2023cv0443-34-0" target="_blank">Myriddian, LLC v. United States </a>

May 2023 Bid Protest Roundup: Timeliness, Discovery, Registration Gap

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