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.

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Most corporate transactions go forward without protests.  Several prominent protest decisions over the last few years, however, have drawn attention to the complicated and sometimes unpredictable effect corporate transactions can have on pending procurements.  This uncertainty is exacerbated by the (often required) secrecy around pending transactions and the fact that potential corporate transactions may be contemplated but not materialize at all.  When you mix in the reality that Government procurement cycles are getting longer and longer, parties engaged in transactions need to consider the specific risks that a transaction may have on pending proposals.  These risks extend not only to post-award bid protests before the GAO (which are the subject of this series), but also to size protests before the Small Business Administration and other litigation that is outside the scope of this article.Transactions During the Pendency of a ProcurementThe fundamental concern around corporate changes while a proposal is pending is that an agency may make an award decision based upon a proposal that may no longer reflect the offeror’s capabilities or intended approach to performance.  FCi Federal, Inc., B-408558.7, B-408558.8, Aug. 5, 2015, 2015 CPD ¶ 245 is a good example of this.  There, offerors submitted proposals in April 2014, and the agency made award in July of that year.  A protest followed, which the GAO sustained in October, recommending that the agency conduct a new responsibility determination.  The agency then undertook the recommended corrective action, without reevaluating proposals.  In April 2015, the agency announced that it found the original awardee to be responsible and authorized performance to proceed.Unfortunately for the awardee, it was acquired by another company during the pendency of the corrective action.  A second protest followed.  The GAO found that the awardee’s proposal “relied, in material respects, on the resources and support of its former parent[s’] . . . management capability, corporate resources, corporate experience, past performance, and financial resources.”  But, as a result of the recent transaction, those corporate parents would no longer supply any of those resources or play the substantial role in performance previously anticipated.  The GAO sustained the protest on these grounds – even though none of these concerns would have been an issue at the time the proposal was submitted or the original award decision was made over a year earlier.Anticipated TransactionsThe well-known protest of Wyle Laboratories, Inc., B-408112.2, Dec. 27, 2013, 2014 CPD ¶ 16, presents another scenario.  In that case, the awardee’s proposal noted that a corporate transaction was anticipated, which would result in the offeror’s separation into two new entities sometime after award.  During discussions, the agency asked about the transaction, and the offeror answered the agency’s questions.  The awardee’s final proposal revision, however, based its proposed costs and technical approach on the existing company’s “organizational structure, its assets, and its resources,” without providing what the GAO characterized as “any meaningful information” on the potential impact to technical approach or cost.The agency expressly “set aside the matter [of the corporate restructuring] during the course of evaluation” and made award to the offeror based upon the proposal submitted, as if the transaction would not occur.  Although the transaction occurred after award, the GAO found the Agency’s approach to be unreasonable because “the awardee’s proposal, and the agency’s evaluation thereof, failed to reasonably reflect the manner in which the contract will be performed, the level of costs likely associated with performance, and the corporate entity that will perform the contract.”  As a result, the GAO found there was “inadequate support for the agency’s assessment of projected cost savings and, similarly, no reasonable basis for award.”It is it unlikely that Wyle Laboratories would have come out the same way if the transaction had anticipated the offeror being acquired by a larger organization.  That type of transaction necessarily poses less risk to an agency (and therefore makes competitive prejudice more difficult to show) than a divestiture, where the offeror may become something materially less advantageous than its proposal described.Anticipated transactions will not always cause procurement problems, however.  When the outcome of a potential transaction is sufficiently tenuous and uncertain, the GAO may find no basis for sustaining a protest.  See, e.g., VSE Corp.; University of Hawaii—Costs, B-407164.11; B407164.12, June 23, 2014, 2014 CPD ¶ 202 (press release announcing a company’s intention to plan to examine a possible future corporate restructuring was not sufficiently concrete to require the agency to consider it in the course of the procurement).  On the other hand, if a transaction’s impacts are uncertain but the likely transaction itself is not, an agency might well find that the level of cost and technical uncertainty is enough to throw the offeror out of the competition altogether.  See Lockheed Martin Integrated Sys., Inc., B-410189.5; B-410189.6, Sept. 27, 2016, 2016 CPD ¶ 273.Acquiring a Conflict of InterestOrganizational Conflicts of Interest (OCIs) are a third protest risk posed by potential transactions.  <a href="https://govcon.mofo.com/topics/organizational-conflicts-of-interest-post-award-protest-primer-13" dirty="true" target="_self">We previously dedicated a blog post to OCIs as a standalone protest ground</a>.  McCarthy/Hunt, JV, B-402229.2, Feb. 16, 2010, 2010 CPD ¶ 68 illustrates the danger of OCIs when a corporate acquisition is in the works – even if the acquisition involves a subcontractor rather than the offeror itself.  McCarthy/Hunt involved a competition for a design/build construction contract.  During the pendency of the procurement, the awardee’s proposed design subcontractor was in on-again-off-again merger/acquisition negotiations with a third party – a deal that closed not long after the contract was awarded.  It is not clear from the decision whether the prime contractor/awardee was even aware of the pending transaction prior to contract award.It turned out that the company that ultimately acquired the proposed subcontractor had a contract with the agency, under which it had provided the agency with advice concerning the design portion of the solicitation at the same time the company was pursuing acquisition of the proposed subcontractor.  In that position, the ultimate acquirer also was in a position to know “the agency’s priorities, preferences, and dislikes relating to this broadly defined project.”Once the subcontractor’s acquisition concluded and was made public, a bid protest followed, alleging that the awardee was affected by OCIs as a result of the planned and ultimately concluded acquisition of its subcontractor by the third party.  The GAO agreed, finding that the acquisition infected the awardee with biased ground rules and unequal access OCIs.  The GAO rejected arguments that the relationship between the subcontractor and its acquirer was too attenuated to create an OCI until the transaction was completed, that only a limited number of people knew about the intended transaction, that the transaction negotiations appeared unfruitful during much of the course of the competition, and that the acquirer was not in a position materially to advantage the awardee even if it had attempted to do so.The GAO recommended that the agency eliminate the awardee from the competition and make a new award determination.TakeawaysThe main takeaway is that, although transactions happen all the time, and awards are rarely lost or even protested because of a corporate transaction, actual or potential transactions can wreak havoc in a pending procurement.  If a transaction might result in contract performance or costs being materially different from what was proposed and evaluated, or might generate conflicts of interest that have not been neutralized, avoided, or mitigated, there may be a valid ground of protest.

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Damien is a partner in the firm’s Government Contracts & Public Procurement practice. He represents clients in all facets of government contracts transactions, as well as regulatory counseling, subcon

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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.
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Corporate Transactions as a Basis for Protest (Post-Award Protest Primer #18)

GAO Finds CIO-SP4 Solicitation Is Unduly Restrictive of Competition

Most corporate transactions go forward without protests.  Several prominent protest decisions over the last few years, however, have drawn attention to the comp

Corporate Transactions as a Basis for Protest (Post-Award Protest Primer #18)

Today’s installment of the post-award protest primer combines two frequent, related protest grounds:  (1) unreasonable evaluations and source selection decisions and (2) insufficient documentation.  In a future post, we’ll look more granularly at protest grounds best value tradeoffs in particular and the duties of source selection authorities.  Today, it’s all about reasonableness and documentation.Unreasonable Evaluations and Source Selection DecisionsIn best value procurements, agencies are supposed to evaluate offerors’ proposals in accordance with the solicitation’s evaluation criteria.  Then, based upon the underlying merits in each offeror’s price and non-price evaluation results, the agency undertakes a meaningful analysis to determine which proposal represents the best value to the Government.We’ve previously discussed <a rel="noopener" target="_self" href="https://govcon.mofo.com/topics/unstated-evaluation-criteria-and-waived-solicitation-requirements-bid-protest-primer-10" dirty="true">failures to evaluate proposals according to the stated evaluation criteria</a>.  But what if the agency follows the terms of the solicitation, but you disagree with the agency’s conclusions?It will come as no surprise that the U.S Government Accountability Office (GAO) considers the evaluation of proposals to be within an agency’s discretion.  As a result, the GAO does not step into an agency’s shoes and try to determine de novo what ratings a proposal should have received or how a best value tradeoff should have come out.  Instead, the GAO examines the record to determine whether it was reasonable and consistent with the terms of the solicitation and the requirements of law.  In other words, if different minds could disagree over whether the agency’s or the protester’s preferred conclusion was more appropriate, the agency gets the benefit of the doubt.  A protester’s mere disagreement with the agency’s evaluation and source selection decision is not, on its own, a valid basis for sustaining a protest.With respect to best value tradeoffs, the GAO generally does not second-guess an agency’s documented determination that one offeror’s superiority under non-price evaluation factors is (or is not) worth a particular price premium.  This means an agency might determine that slight technical superiority is worth paying a relatively large price premium, or that significant technical superiority is not worth a relatively modest price premium.  The GAO’s review of a best value decision does not focus on the size of the technical or price delta, and does not require agencies to quantify the dollar value of various technical merits.  In the end, the GAO cares only about whether the documented tradeoff analysis considers the underlying merits of the competing proposals and whether the articulated rationale is not completely absurd.A corollary to this “reasonableness standard” is that the GAO generally will not delve into the minutiae of technical complications where subject-matter experts may disagree.  When an evaluation rests on the “considered judgments of the agency’s technical experts,” the GAO will defer to the agency unless the protester can demonstrate that the experts’ conclusions are “arbitrary or otherwise unreasonable.”  Boeing Co., B-412441, Feb. 16, 2016, 2016 CPD ¶ 269 at 20.  This usually means that a protester can win a battle of “dueling experts” only if its own expert conclusively shows that the agency’s experts were objectively wrong.  Simply providing a differing “second opinion” by a different expert will not be enough.  And, if the protester’s “rebuttal” of the agency experts’ scientific or engineering judgment consists only of “statements furnished by legal counsel,” the protester probably should not make the argument at all.  See id. at 17.So, if agency evaluators assigned the protester a weakness because it unrealistically proposed to perform a task with only 10 employees, but the protester can show that it actually proposed 20 employees, the GAO is likely to find this aspect of the evaluation unreasonable.  Or, if the source selection authority awarded to a higher priced offeror because of five superior features of the offeror’s widget, but the protester can demonstrate that the awardee did not propose those five features for its offered widget, the GAO is likely to find the resulting source selection decision to be unreasonable.  On the other hand, protest grounds are almost certain to fail if they are nothing but subjective disagreements over matters of opinion.Insufficient DocumentationAs we’ve noted, a protester’s mere disagreement with the agency’s considered judgment generally is not a sufficient basis for sustaining a protest.  This presupposes, however, that the agency has documented a reasonable rationale supporting its determinations.  “Where an agency fails to document or retain evaluation materials, it bears the risk that there may not be adequate supporting rationale in the record for [the GAO] to conclude that the agency had a reasonable basis for its [evaluation or] source selection decision.”  Verdi Consulting, Inc., B-414103.2 et al., Apr. 26, 2017, 2017 CPD ¶ 136 at 10.As a practical matter, a protester’s initial protest may allege that certain assigned weaknesses were unreasonable based upon arguments tending toward “mere disagreement.”  That alone generally won’t be enough to prevail.  But if the underlying procurement record does not adequately explain why the weaknesses were assigned, the agency may be in trouble.  This occasionally allows a protester to transform a weak protest ground into a strong one.  (Disparate treatment, which we’ve mentioned before and will reprise soon, also can turn a fairly weak subjective argument into a stronger black-and-white one.)The extent of required documentation varies from issue to issue and procurement to procurement.  It needs to be enough, though, for the GAO to read it and decide that the agency’s stated conclusions were not pulled out of thin air.  The GAO also gives agencies the opportunity to “fill in gaps” in the record by submitting post hoc declarations to provide explanations that are consistent with, but not fully spelled out in, the contemporaneous record.  By contrast, the GAO gives “little weight” to post hoc assertions that are not supported by the contemporaneous procurement record.  Dismas Charities, Inc., B-292091, June 25, 2003, 2003 CPD ¶ 125 at 8-9; Boeing Sikorsky Aircraft Support, B-277263.2; B-277263.3, Sept. 29, 1997, 97-2 CPD ¶ 91.The ultimate effect of a lack of documentation on contract award is difficult to predict.  Sometimes the rationale behind an evaluation and source selection decision is clear to the agency, even though the rationale was not adequately reduced to writing.  If a protest is sustained in this situation, corrective action may simply consist of generating some additional paperwork with no ultimate change in awardee.  If, on the other hand, the lack of documentation reflects a lack of an adequate rationale in the first place, the additional thought and reflection (and oversight by agency counsel) may well result in fundamentally different evaluations with a different award decision.

Unreasonableness And Lack Of Documentation (Post-Award Protest Primer #17)

Today’s installment of the post-award protest primer combines two frequent, related protest grounds:  (1) unreasonable evaluations and source selection decision

Unreasonableness And Lack Of Documentation (Post-Award Protest Primer #17)

On this blog, we frequently discuss the various timeliness traps that can undermine bid protests at the Government Accountability Office (GAO).  A recent bid protest decision from the Court of Federal Claims addresses a timeliness trap that is rare and has never before been spotted in the wild, but that could ensnare a protester under the right circumstances.The Facts<a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2017cv1875-69-0" target="_blank" rel="noopener">Global Dynamics, LLC v. United States</a>, 2018 WL 1312051 (Fed. Cl. March 14, 2018) followed a series of Small Business Administration, GAO, and Court of Federal Claims protests of an Army procurement of nursing services.  As the heavily protested procurement was drawn out, the agency awarded sole-source bridge contracts to the incumbent contractor (itself an offeror as part of a joint venture) to continue essential services until a new contractor was chosen.For our purposes, the most relevant prior protest was the GAO protest that directly preceded the Court of Federal Claims protest.  Following earlier protests, the Army awarded the contract to Global Dynamics, and the incumbent’s joint venture protested to the GAO.  In November 2016, the GAO sustained the joint venture’s protest on numerous grounds and recommended the Agency conduct and document a new evaluation of the awardee’s existing proposal and prepare a new source selection decision.  The following month, the Agency began its corrective action.  Delays ensued, and the incumbent continued to perform under its bridge contract in the meantime.  In September 2017, the Agency announced its intent to award the incumbent a fifth sole-source bridge contract while corrective action continued to be delayed.  Then, in November 2017, the Agency announced it had decided to cancel the procurement altogether.Soon thereafter, Global Dynamics filed suit at the Court of Federal Claims, challenging:  (1) the cancellation of the procurement; (2) the fifth sole-source award to the incumbent; and (3) the rationality of the GAO’s recommendation to reevaluate Global Dynamics’ proposal and make a new award decision.During the pendency of the protest, the Agency rescinded its cancellation decision, thus mooting the first protest ground.  As to the second ground, the court determined that the procurement record failed to document why the sole-source contract was necessary when the facts seemed to indicate that the Agency had plenty of time to complete its corrective action in the many months since the GAO issued its recommendation.  As a result, the court remanded that question to the agency to update its Justification and Approval with contemporaneous facts that might have been omitted.  (In a later opinion, the court found the updated justification insufficient.)  That left only the protest ground challenging the GAO’s recommendation itself.Timeliness and the Equitable Doctrine of LachesThe Court of Federal Claims lacks most of the strict timeliness rules that complicate protest filings at the GAO.  At the court, there ordinarily are only two timeliness bars that come into play.First, in the pre-award context, the familiar waiver doctrine set forth in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) and its progeny provides that, when a party is aware of a solicitation impropriety, that party must raise the issue “prior to the close of the bidding process,” or else it waives its ability to protest the issue after award.  This is analogous to the GAO’s rule that challenges to apparent solicitation improprieties are untimely unless raised prior to the date set for submission of proposals.  See 4 C.F.R. § 21.2(a)(1).  The theory here is that, if you willingly choose to play a game despite thinking that the rules are bad, you forfeit the right to complain about the rules if you end up losing the game.  The court treats corrective action following a bid protest as a pre-award scenario.  See Sys. Applic. & Techs., Inc. v. United States, 691 F.3d 1374, 1382 (Fed. Cir. 2012); Square One Armoring Serv., Inc. v. United States, 123 Fed.Cl. 309, 327 (2015).  This logically results in the Blue & Gold waiver doctrine requiring any objections to the corrective action to be lodged before revised proposals are submitted or (where proposal revisions are not requested) before contract award.Second, in the post-award context, the court has no rules analogous to the GAO’s rule that protest grounds not involving solicitation improprieties must be raised within 10 days after the time the protester knew or should have known of the basis of protest.  See 4 C.F.R. § 21.2(a)(2).  Instead, to dispense with woefully late protests, the court occasionally employs the ancient equitable doctrine of laches: Vigilantibus non dormientibus aequitas subvenit — equity comes to the aid of the vigilant, not to those who slumber.  See Nat’l Telecommuting Inst., Inc. v. United States, 123 Fed. Cl. 595, 602 (2015) (holding that laches barred a protest filed six months after award where the delay was avoidable and caused the Government and the awardee economic prejudice).  The court may employ the doctrine of laches when the defendant shows both (1) an unreasonable and unexcused delay by the plaintiff and (2) a resulting economic or defense prejudice to the defendant.  Id. (citing JANA, Inc. v. United States, 936 F.2d 1265, 1269 (Fed. Cir. 1991); Hermes Consol., Inc. v. United States, 58 Fed.Cl. 3, 20 (2003)).Pre-Award LachesGlobal Dynamics is very unusual because the Government raised a laches defense in a pre-award protest — and even more unusual because the court upheld the defense.  The Government argued that the protester’s challenge to the rationality of the GAO findings and recommendation of corrective action was prejudicially delayed and therefore barred by laches.  The protester countered that, because the court treats corrective action generally as a pre-award issue, and revised proposals were not requested, this protest ground was timely under Blue & Gold because it was filed prior to the new award decision.The court acknowledged that it apparently had never upheld a defense of laches in a pre-award context before.  But the court rejected the protester’s suggestion that Blue & Gold established the only timeliness rule for pre-award protests.  Just because a pre-award protest ground avoids waiver, the court reasoned, does not mean it necessarily will survive a laches defense, and nothing in Blue & Gold suggests that waiver is the only time-based defense available in a pre-award context.Then, applying the customary laches analysis, the court found that the delay between the GAO decision (and beginning of corrective action the following month) and the filing of the protest a year later was an unreasonable and unexcused delay.  As to prejudice, the court found that, while the protester delayed, the Agency incurred the costs of reevaluating the plaintiff’s technical proposal and past performance as recommended by the GAO.  That combination of delay and some degree of economic prejudice was sufficient for the court to bar the plaintiff’s challenge to the GAO corrective-action recommendation under the doctrine of laches.TakeawaysThe court recognized that this protest presented “unique circumstances” justifying apparently the first-ever use of laches to bar a pre-award protest ground.  This holding is unlikely to inspire a wave of dismissals of otherwise timely protests, both because of the “unique circumstances” of the case and because far more protests are filed at the GAO, where Global Dynamics’ challenge to the recommended corrective action would have been untimely anyway under the GAO’s 10-day rule.For protests before the court, though, the relevant circumstances underlying the decision are not necessarily unique.  It is not unheard-of for post-protest corrective action to be long and drawn-out.  And, even outside the corrective action context, one can imagine other pre-award scenarios where a protester raises a challenge that passes muster under Blue & Gold, but might fall afoul of the laches doctrine articulated in Global Dynamics.  For example, sometimes a protest ground comes to light during discussions, where the Government makes clear that its interpretation of the solicitation’s evaluation scheme is different from the offeror’s.  If the protester delays its protest until after the agency has concluded lengthy discussions with multiple offerors, but before proposal revisions are due, could the Government invoke laches in an attempt to bar the protest by invoking the economic prejudice of all those discussions it conducted and potentially would have to re-do?  At the GAO, almost certainly not.  At the court now, who knows?At the end of the day, Global Dynamics does not significantly alter protest timeliness rules, but it does add a new timeliness trap for protesters to be aware of.

A New Bid Protest Timeliness Trap: Pre-Award Laches

On this blog, we frequently discuss the various timeliness traps that can undermine bid protests at the Government Accountability Office (GAO).  A recent bid pr

A New Bid Protest Timeliness Trap: Pre-Award Laches

We previously have referred in passing to Government bad faith as <a rel="noopener" target="_self" href="https://govcon.mofo.com/topics/substantively-non-protestable-issues-post-award-protest-primer-8" dirty="true">a protest ground that almost never is worth raising</a>.  Today, we’ll address this rarely successful protest ground and discuss why it’s almost always a loser, as well as the rare circumstances in which it may lead to a sustained protest.When an offeror loses a competition, it sometimes blames the loss on biased Government officials.  Maybe it thinks the contracting officer loves the incumbent and put his thumb on the scale to help the incumbent out.  Maybe it thinks the contracting officer hates the incumbent and skewed the evaluation in favor of new blood.  Maybe the source selection authority was hopelessly biased because his cousin’s sister-in-law is godmother to the awardee’s assistant program manager.  Once in a while, we’ve even seen evidence that suggested that a Government official probably did act in bad faith in a procurement.  Even then, though, our advice generally is not to raise suspected bias and bad faith as a protest ground.Here’s why.  Although the GAO (and the Court of Federal Claims) will consider allegations of bad faith, the protester’s burden of proof is almost impossibly high:  “[G]overnment officials are presumed to act in good faith, and a protester’s contention that procurement officials are motivated by bias or bad faith must be supported by convincing proof; our Office will not consider allegations based on mere inference, supposition or unsupported speculation.”  Hewlett Packard Enter. Co., B-413444.4; B-413444.5, Jan. 18, 2017, 2017 CPD ¶ 29 at 7 n.5 (emphasis added).  “To establish bad faith, a protester must present convincing evidence that agency officials had a specific and malicious intent to harm the firm.”  Trailboss Enters., Inc., B‑415812.2 et al., May 7, 2018, 2018 CPD ¶ __ at 12 (emphasis added).  Or, to use an older formulation of the same ridiculously high standard:  “[T]he record must show ‘well-nigh irrefragable proof’ that the agency had a malicious and specific intent to injure the party alleging bad faith.”  Delta Data Sys. Corp., B‑213396, Apr. 17, 1984, 84-1 CPD ¶ 430 (quoting Kalvar Corp. v. United States, 543 F.2d 1298, 1301 (Ct. Cl. 1976)) (emphasis added).The presumption of good faith means that, right out of the gate, the GAO has decided that the procurement officials were not biased and did not act in bad faith.  To rebut that presumption, the protest has to produce evidence that agency officials specifically set out to harm the protester – not merely that they took an action that, as collateral damage, happened to harm the protester.  And the protester’s evidence must be “convincing” and “well-nigh irrefragable proof.”  This is not a “more likely than not” standard.  It essentially requires the protester to present hard facts that basically admit of no other rational explanation but that the agency official was out to get the protester.What does it take to prove bad faith or bias?  A criminal conflict of interest might do it.  Lockheed Martin Corp., B-295402, Feb. 18, 2005, 2005 CPD ¶ 24 is one of the few protests sustained on the basis of bad faith and bias.  Following Darlene Druyun’s criminal conviction for violating conflict-of-interest provisions and steering Air Force awards toward Boeing, Lockheed Martin protested a contract awarded to Boeing years earlier.  The GAO found that Ms. Druyun’s demonstrated bias in favor of Boeing prejudiced Lockheed Martin (despite the Agency’s arguments that her involvement in the procurement was not “significant”) and recommended that Phase II of Boeing’s contract be competed.  Similar protests based upon Ms. Druyun’s involvement in the C-130 avionics modernization upgrade program also resulted in victory for the protesters, years after the contract was awarded to Boeing.  See Lockheed Martin Aeronautics Co. et al., B-295401 et al., Feb. 24, 2005, 2005 CPD ¶ 41.  These rare victories are very much outliers.Apart from a situation where a procurement official has been convicted of rigging procurements, and in the absence of unambiguous, black-and-white proof of prejudicial bad faith, it usually is not advisable to allege bad faith and bias.  The odds of losing that protest ground are astronomically high, even if the official really is biased.  The odds of gravely offending a customer or potential customer are also very high.  Agency counsel and intervenors – who know bad faith and bias are nearly impossible to prove in a protest – are probably the only ones who like allegations of bad faith:  they are sure to latch onto those allegations to make the protester look silly and call into question the credibility of its remaining protest grounds.Finally, as we’ve noted before, competitive prejudice is an essential element in every protest.  That is, even in the unlikely event a protester can convince the GAO that one or more agency officials acted in bad faith or were biased against the protester, the protester also must show that it had a substantial chance of being awarded the contract but for the bad faith.  If the biased official was not in a position substantially to alter the source selection decision, or if other issues unrelated to bias would have independently prevented you from winning the competition, proving bad faith won’t do you any good.

Bad Faith and Biased Procurement Officials (Post-Award Protest Primer #16)

We previously have referred in passing to Government bad faith as a protest ground that almost never is worth raising.  Today, we’ll address this rarely success

Bad Faith and Biased Procurement Officials (Post-Award Protest Primer #16)

Offerors should, and generally do, carefully guard the confidentiality of their bid and proposal information.  And agencies that receive that information generally are careful to prevent its improper release, much as they guard against release of other source selection sensitive information.  The Procurement Integrity Act (PIA) governs aspects of the protection of this information, and a PIA violation can form the basis of a bid protest.What Is and Isn’t Covered:  The PIA provides in pertinent part that a Federal government official “shall not knowingly disclose contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates.”  41 U.S.C. § 2102(a)(1); see also FAR 3.104-1, -4.  With respect to non-Government personnel, the PIA provides that “[e]xcept as provided by law, a person shall not knowingly obtain contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates.”  41 U.S.C. § 2102(b).  (The PIA also contains personal conflict of interest provisions that are outside the scope of this blog post.)At first blush, a PIA violation may look like an <a href="/topics/organizational-conflicts-of-interest-post-award-protest-primer-13" dirty="true" target="_self">unequal access to information Organizational Conflict of Interest (OCI)</a>.  To have an OCI, however, there is no requirement that a disclosure or receipt of information be knowing.  The information at issue in an OCI may be something other than bid or proposal information.  And a protester does not even have to show that the conflicted entity actually received or used the information at issue – so long as the entity had access to it.  The PIA thus covers a much narrower category of disclosure issues than the OCI regulations do.There are exceptions to the PIA’s restrictions on knowingly disclosing and obtaining bid or proposal information.  The most important exception is that the PIA does not “restrict a contractor from disclosing its own bid pro proposal information or the recipient from receiving that information.”  41 U.S.C. § 423(h)(2).  The GAO’s case law interprets this savings clause broadly:  if an offeror voluntarily provides covered information to another person, and that person misuses the information or fails to safeguard it properly, there is no PIA violation.  The offeror may have a private cause of action against the original recipient of the information (e.g., for breach of a nondisclosure agreement), but it does not have a PIA-based ground of protest.  See, e.g., GEO Grp., Inc., B-405012, July 26, 2011, 2011 CPD ¶ 153 at 4-5 (“Here, GEO voluntarily provided its confidential information to the CFS CEO in the course of his employment with GEO.  The CFS CEO’s alleged misuse of that information in transferring it to CFS, breach of his fiduciary duties to GEO, or breach of GEO’s corporate code of ethics, are matters of a private dispute not for resolution by our Office.”).Agency Obligations:  When an agency becomes aware that a PIA violation may have occurred, FAR 3.104-7 requires the contracting officer to “determine if the reported violation or possible violation has any impact on the pending award or selection of the contractor.”  If the contracting officer determines that a violation or possible violation may have (or has had) an impact on a contract award, the Head of the Contracting Activity then must take appropriate action, which is within the agency’s reasonable discretion.  Remedies may include disqualification of an offeror, cancelation of a procurement, voiding of an awarded contract, referral to the agency’s Suspension and Debarment Official, or other appropriate action.  FAR 3.104-7.If the contracting officer determines that a violation has not occurred, or that a violation will not have an impact on a pending award, the contracting officer forwards these findings to a designated agency official, who determines whether the procurement should proceed.  Id.PIA-Based Protest:  To turn a potential PIA violation into a protest ground, the protester must allege that the agency failed to resolve the violation in a reasonable matter.  This may be because the agency unreasonably failed to recognize it was a violation at all.  Or it may be that, having recognized the violation, the agency took corrective action that was not reasonably adequate.  Even when a PIA violation has occurred, an agency is not required to take any particular action if it reasonably determines that there will be no adverse effect on the procurement.  See, e.g., Health Net Fed. Servs., LLC, B-401652, Oct. 13, 2009, 2009 CPD ¶ 213 at 5 (“Where an agency decides that no remedial steps are necessary, we will sustain a protest based on the improper disclosure only where the protester demonstrates that it was in some way competitively prejudiced by the disclosure.”).  The GAO reviews the agency’s determinations to ensure they are properly documented and not unreasonable.Timeliness:  Special timeliness rules apply to PIA-based protests.  For a PIA violation to form the basis of a protest, a protester first must notify the agency of the suspected violation within 14 days of when it knew or should have known of the basis of the alleged violation.  4 C.F.R. § 21.5(d).  After the suspected violation is reported, the agency will conduct an investigation and determine whether action should be taken to address the alleged violation.  The violation cannot be protested until the pending investigation is completed.  Career Training Concepts, Inc.—Advisory Opinion, B-311429; B-311429.2, June 27, 2008, 2009 CPD ¶ 97 at 7 (protest ground asserting a PIA violation is premature where the agency has begun but not yet completed its investigation).  Once the investigation is complete, an interested party then has ten days to file a bid protest if it is not satisfied with the outcome of the investigation.Thus, there are three timeliness hurdles:  (1) Did the protester report the violation to the contracting officer within 14 days?  If not, the protest ground is untimely.  (2) Has the agency concluded its investigation of the reported PIA violation?  If not, the protest ground is premature.  (3) Was the protest filed within ten days of the agency’s announcement of the conclusion of the investigation?  If not, the protest is untimely.Conclusion:  When sensitive bid or proposal information is improperly released or obtained during a pending competition, offerors not only should consider that the PIA may have been violated, but also should be conscious of the unique timeliness rules that a protester must satisfy to raise the violation as a ground of protest.

Procurement Integrity Act Violations (Post-Award Protest Primer #15)

Offerors should, and generally do, carefully guard the confidentiality of their bid and proposal information.  And agencies that receive that information genera

Procurement Integrity Act Violations (Post-Award Protest Primer #15)

The bait-and-switch in the salesman’s world involves enticing a prospective customer with an unbelievably good deal, only to switch it at the last moment with a bargain that is considerably less attractive to the buyer, and far more profitable for the seller.A version of the bait-and-switch exists in the world of bid protests, too.  In its classic form, it goes like this.  An offeror proposes to use specific, wonderful personnel.  The agency is impressed, giving the offeror credit for this proposal—perhaps in the form of high technical ratings, which contribute to its winning the contract.  After the contract is awarded, the contractor informs the agency of something it knew all along:  that the named personnel sadly won’t be able to participate, and that bargain-brand personnel will take their place.  This unscrupulous practice—which, in our experience, is rare—is a kissing cousin of fraud and could give a successful offeror more than a protest to worry about.The GAO has outlined the elements of a bait-and-switch protest ground:In order to establish an impermissible “bait-and-switch,” a protester must show:  (1) that the awardee either knowingly or negligently represented that it would rely on specific personnel that it did not have a reasonable basis to expect to furnish during contract performance, (2) that the misrepresentation was relied on by the agency, and (3) that the agency’s reliance on the misrepresentation had a material effect on the evaluation results.Patricio Enterprises Inc., B-412738; B-412738.2, May 26, 2016, 2016 CPD ¶ 145 at 4.  That’s what a bait-and-switch protest ground is.Now for what it isn’t.  If the offeror intended or hoped to use particular personnel, but did not represent in its proposal that it would, that is not a bait-and-switch—because there is no “baiting.”  Computers Universal, Inc., B-292794, Nov. 18, 2003, 2003 CPD ¶ 201 at 3 (“Here, the RFQ did not require offerors to include the name or resume of the individual proposed, and [the awardee] did not provide that information.  Accordingly, there could be no improper ‘bait and switch.’”).  Nor are mere attempts to recruit incumbent personnel signs of a bait-and-switch, without evidence that the offeror additionally did not intend to provide the key personnel identified in its proposal.  See Apptis Inc., B-403249; B-403249.3, Sept. 30, 2010, 2010 CPD ¶ 237 at 8-9.Finally, it sometimes happens that, despite an offeror’s reasonable expectations, key personnel proposed for certain tasks become unavailable through no fault of the offeror.  This unexpected unavailability is not a misrepresentation, and consequently is not bait-and-switch—because what the offeror stated was not a knowing or negligent falsehood.  If the offeror learned of the unavailability only after contract award, the matter will be treated as contract administration, which the GAO will not review.  If, however, the offeror becomes aware of the unavailability of proposed key personnel before award, it is required to inform the agency of that fact, even if proposals already have been submitted.  See Greenleaf Constr. Co., Inc., B-293105.18, B‑293105.19, Jan. 17, 2006, 2006 CPD ¶ 19 at 10.  And, once the agency is aware that one of the offeror’s proposed key personnel is unavailable, the agency is required either to reject the offeror’s proposal as unacceptable or open discussions with all offerors (thereby allowing the offeror to propose a replacement for the unavailable key personnel).  Gen. Revenue Corp. et al., B-414220.2 et al., Mar. 27, 2017, 2017 CPD ¶ 106 at 22.  If the offeror doesn’t tell, or if the agency doesn’t open discussions or reject the proposal once it finds out about the pre-award unavailability, an award to that offeror is impermissible.  This protest ground is not about bait‑and-switch, but rather about an awardee’s proposal being unacceptable.Bait-and-switch protest grounds are not frequently sustained, probably because most offerors in the real world do not set out to deceive the Government.  Often, what initially looks like a bait‑and-switch to an outside observer turns out to be missing one of the essential elements when all the facts come to light.  Pre-award unavailability of key personnel occurs more frequently, which is why it is usually a good idea for offerors to require signed letters of commitment from people proposed to fill key positions.

Bait-And-Switch And Unavailable Key Personnel (Post-Award Protest Primer #14)

The bait-and-switch in the salesman’s world involves enticing a prospective customer with an unbelievably good deal, only to switch it at the last moment with a

Bait-And-Switch And Unavailable Key Personnel (Post-Award Protest Primer #14)

Last week, the Federal Circuit issued a rare opinion on a bid protest in <a href="https://cafc.uscourts.gov/sites/default/files/opinions-orders/17-1082.Opinion.1-19-2018.1.PDF" target="_blank" rel="noopener">Agustawestland North America, Inc. v. United States</a>.  Bid protest decisions by the Court of Federal Claims are seldom appealed by protesters because the ability to get a meaningful remedy quickly dissipates as contract performance commences.  In this case, however, the Government was motivated to appeal an adverse decision of the Court of Federal Claims because the lower court had enjoined the Army’s ability to purchase sixteen UH‑72A Lakota helicopters.Although the Federal Circuit’s decision is highly fact specific and does not break new ground on any disputed legal issue, it highlights the high degree of deference afforded to agencies by the Federal Circuit, even when the agencies are making sole‑source decisions.The underlying protest was precipitated by the Army’s decision in 2015 to issue a sole‑source contract to Airbus for sixteen UH-72A Lakotas.  A decade earlier, the Army had competitively awarded a contract to Airbus for up to 493 Lakotas.  Presidential strategic guidance in 2012 and a 2014 implementing order from the Army led the Army to conclude that it needed to procure sixteen additional helicopters beyond the capacity of the 2006 contract.  In a December 2015 Justification and Approval (J&A), the Army concluded that Airbus was the only responsible source to fulfill its requirement and thus decided to bypass the general requirement for “full and open” competition.  The legal rationale for the Army’s decision was FAR 6.302-1(a)(2)(ii), which provides an exception to full and open competition for a “follow-on contract for the continued development of production of a major system or highly specialized equipment” and “it is likely that award to any other source would result in (A) [s]ubstantial duplication of cost to the Government that is not expected to be recovered through competition or, (B) [u]nacceptable delays in fulfilling the agency’s requirements.”  The J&A first noted the Army did not have a license to the technical data rights needed to produce the Lakota UH-72A and that Airbus was unwilling to sell those rights.  It then asserted that procuring and sustaining an alternative helicopter to the Lakota would result in substantial duplication of costs and would take approximately three years.  The cost duplication claim, as well as a finding that the ultimate contract cost would be fair and reasonable, was supported by a cost analysis.In the initial protest at the Court of Federal Claims, Chief Judge Braden enjoined the sole‑source procurement for two major reasons.  First, she concluded that the Army’s 2014 order implementing the presidential strategic guidance was a procurement decision subject to the Court’s bid protest jurisdiction because that order established the Lakota as the Army’s training helicopter, thus effectively making the decision regarding the Army’s future helicopter purchases.  Chief Judge Braden reasoned that, because the implementing order was not supported by a J&A as required by the FAR, that order violated the FAR and CICA.  Second, Chief Judge Braden reviewed the December 2015 J&A supporting the sole‑source award and found it wanting.  In particular, she determined the sole‑source contract was not a “follow-on contract” because it was a “new contract” and also criticized the J&A’s cost analysis and its assertion that a competitive procurement would take three years.  In addition, she took issue with the fact that the Contracting Officer had signed the J&A prior to obtaining legal review and the concurrence of the special competition advocate.The Federal Circuit disagreed with the Court of Federal Claims on both counts.  According to the Federal Circuit, the Army’s 2014 order implementing the presidential strategic guidance was not a procurement decision because it did not contemplate purchasing any helicopters.  Rather, it envisioned using existing assets only.  Because it was not a procurement decision, the Court’s bid protest jurisdiction did not extend to that order.  While this finding may seem to intrude on the Court of Federal Claims’ fact‑finding, the Federal Circuit justified it on the basis that it reviews jurisdictional questions de novo.  The Federal Circuit also found the J&A to be “a coherent and reasonable explanation of its exercise of discretion” adequately supported by the record.  The Court stated the sole‑source contract was a follow-on contract because it was for continued production of the Lakota, which was a major system.  The Federal Circuit also brushed off Chief Judge Braden’s concerns over the cost analysis and assertions about scheduling, noting that the J&A concluded that the sole‑source procurement could be completed at a fair and reasonable price and finding, without much explanation, that the Army’s factual findings were adequately supported.  Finally, the Circuit rejected the objection that the J&A was defective because the Contracting Officer signed it before obtaining concurrence from her legal advisor and competition advocate.  According to the Federal Circuit, the only approvals needed were those of the Contracting Officer and senior procurement executive.  Accordingly, the Federal Circuit found the J&A to be unobjectionable.In a procedural point, the Circuit reversed the lower court’s decision to permit supplementation of the administrative record.  Under Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009), supplementation is appropriate only where “the omission of extra-record evidence precludes effective judicial review.”  The Federal Circuit criticized the lower court for providing only “conclusory statements that it could not conduct effective judicial review without the supplemented material,” but the Circuit Court notably did not provide any analysis of its own to support its opposite conclusion that the record was “sufficient to review the Army’s sole source procurement.”  Thus, while the Federal Circuit continues to look closely at the Court of Federal Claims’ decisions to supplement the administrative record, its continuing failure to provide concrete guidance about the meaning of “necessary in order not ‘to frustrate effective judicial review’” will leave litigants and lower courts guessing.  The takeaway is that it is incumbent on counsel to provide a detailed rationale for why supplementation is required so that the trial judge has fodder for her findings.Although each of these conclusions taken individually does not result in any new pronouncement of a new legal holding, taken together the conclusions once again highlight the high level of deference agencies will receive in carrying out their acquisitions.