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.

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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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James A. Tucker

Telesto: Another Call For Clarity In Other Transactions Protest Jurisdiction

Strengthening the American Drone Industrial Base

Bid Protest Spotlight: Jurisdiction, Price Range, Late-Is-Late

Trump Issues Executive Order on Cybersecurity Rolling Back Some Prior Policies and Introducing New Ones

GAO Reaffirms Agencies’ Discretion to Award Sole-Source SBIR Phase III Contracts (Even to a Successor-in-Interest)

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The cybersecurity posture of government contractors was an area of intense focus and ongoing regulatory development for the federal government in 2021. The coming year will also include many anticipated cybersecurity-related changes and developments.To learn more, read our <a rel="noopener" target="_blank" href="https://www.mofo.com/resources/insights/220111-top-cybersecurity-considerations.html">client alert</a>.

Tina is a partner in Morrison & Foerster’s Government Contracts practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmace

Tina Reynolds

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Top Cybersecurity Considerations for Government Contractors in 2022

GAO Finds CIO-SP4 Solicitation Is Unduly Restrictive of Competition

The cybersecurity posture of government contractors was an area of intense focus and ongoing regulatory development for the federal government in 2021. The comi

Top Cybersecurity Considerations for Government Contractors in 2022

Protests & Litigation

This month’s <a href="https://www.law360.com/articles/1453859">Law360</a> Bid Protest Roundup focuses on two Government Accountability Office (GAO) decisions and one recent Federal Circuit decision. These decisions involve (1) the risks of using former government employees in the proposal process, (2) the requirements for an agency’s brand-name justification, and (3) whether there is a presumption of prejudice if a protester shows a procuring agency has acted irrationally.Serco Inc.<a href="#_ftn1" name="_ftnref1">[1]</a>Contractors can acquire valuable institutional knowledge by hiring former federal government officials. However, they should proceed cautiously when using these officials in obtaining contracts. The GAO has held that when a former government official assists an offeror in a competition for a government contract, the former official is presumed to use any useful, non‑public information to which she had access as a government employee.<a href="#_ftn2" name="_ftnref2">[2]</a> In Serco, the GAO affirmed this principle and sustained a protest for a $372 million Navy professional support services task order on the basis that the awardee obtained an unfair competitive advantage in its proposal by using non-public information provided by former Navy officials.The procurement at issue in Serco was a follow-on to a task order first issued in 2014 by the Navy. Under the original task order, the incumbent Serco provided support services to four Navy program offices and interfaced with the offices’ program managers by attending weekly meetings and submitting monthly progress reports. These reports included information on Serco’s labor rates, employees’ names and hours, significant achievements, and problem areas encountered and anticipated.During this time, Booz Allen Hamilton (BAH), which had competed for—and lost—the original 2014 task order, began preparing for the anticipated follow-on contract. In 2018, BAH recruited and hired two former Navy program managers through its subcontractor agreements. These program managers assisted BAH in its proposal preparation for the follow-on contract and revealed some of Serco’s performance issues on the 2014 task order, including that the company was “not providing consistent delivery” and “doesn’t do cyber well.”<a href="#_ftn3" name="_ftnref3">[3]</a>In July 2019, the Navy issued a solicitation for a follow-on to the 2014 task order. Serco and BAH were the only offerors. On February 5, 2021, the Navy awarded the task order to BAH because of its proposal’s strengths, including “manpower, personnel, and training” and “data analytics.”<a href="#_ftn4" name="_ftnref4">[4]</a>On February 23, 2021, Serco filed a protest, asserting that the Navy failed to consider BAH’s unfair competitive advantage through its access to non-public, competitively useful information from the Navy officials. The Navy stated it would take corrective action, and GAO dismissed the protest. However, the Navy ultimately “found no evidence that current or former government employees provided BAH with unequal access to non-public competitively useful information that would have provided it with an unfair competitive advantage.”<a href="#_ftn5" name="_ftnref5">[5]</a> Serco filed another protest, asserting that BAH gained an unfair advantage in the procurement by hiring the Navy officials who had unfettered access to non-public information regarding Serco’s staffing, costs, technical approach, and past performance. Serco listed several supporting factors including:<ul><li>Former Navy employees’ access to Serco’s proprietary information such as labor rates and employee names, positions, and hours as the Navy office program managers</li><li>Former Navy employees’ access to Serco’s past performance ratings as the Navy office program managers</li><li>Evidence that the Navy employees were expressly recruited before or immediately following retirement</li><li>Evidence that BAH did not impose any limitations on the Naval program managers’ input on the bid proposal for the task order</li></ul>The GAO sustained the protest and rejected the Navy’s assertion that there was no evidence of an unfair competitive advantage in BAH’s proposal. The GAO first reiterated its standard for evaluating whether a firm has an unfair competitive advantage from hiring a former government employee: if an offeror chooses to hire a former government official who had recent access to competitively useful information and uses that official to prepare a proposal, even the appearance of an unfair competitive advantage merits disqualification of the proposal. Further, the offeror is presumed to have benefitted and accessed any non-public, competitively useful information that the former government official presumably acquired. The GAO then found that BAH pursued Navy officials who had unbounded access to Serco’s proprietary information. The GAO also found that BAH recruited the officials prior to their retirement to assist with its proposal, and both officials were very involved in the proposal process. Finally, the GAO found that the Navy scored BAH higher based on this non-public information and did not properly consider all the evidence that BAH had obtained access to non-public, competitively useful information. Thus, the Navy’s conclusion that there was no unfair competitive advantage was unreasonable.TakeawaysGAO’s standard for evaluating whether a firm has an unfair competitive advantage from hiring a former government employee (FAR subpart 3.1) is “virtually indistinguishable” from the unfair competitive advantage arising from unequal access to information as result of an organizational conflict of interest (FAR subpart 9.5)—if a former government official has access to competitive information, a proposal is properly disqualified based on even the appearance of an unfair competitive advantage. However, contractors should not be afraid to employ former government employees; Serco was sustained because there was clear evidence that the awardee did not put any limitations in place to prevent the unfair advantage. An offeror generally can prevent disqualification by implementing and documenting a firewall between the proposal team and the former federal employees with potentially useful non-public information. To be effective, the offeror should establish the firewall before the proposal team has an opportunity to interact with the former government employees in question.Westwind Computer Products, Inc.<a href="#_ftn6" name="_ftnref6">[6]</a>Except in limited circumstances, agencies are required to procure goods and services through full and open competition. When an agency wants to limit competition to only brand-name items, its reasoning must be adequately justified. GAO recently affirmed this principle in Westwind, where it sustained a protest against the terms of a solicitation because the agency failed to adequately justify the solicitation’s restriction to one brand-name source for software.The United States Department of Agriculture (USDA) issued a request for quotations (RFQ) for a task order under a government-wide acquisition contract, seeking quotations to support the agency’s enterprise business requirements. The RFQ specifically required that any software must support the existing email system and IT infrastructure and that “USDA has standardized on Microsoft Office, email, and cloud and has been using these tools for over 20 years.”<a href="#_ftn7" name="_ftnref7">[7]</a>As required by FAR 16.505(a)(4), USDA also issued a brand-name justification. A brand-name justification must meet two conditions: it must show that the brand name is essential to the agency’s requirements and include market research that other companies’ similar products do not meet, or cannot be modified to meet, the agency’s needs. Thus, an agency must show both why the brand name is necessary and why no other product will suffice.The USDA justification listed several factors to support its contention that “Microsoft products are essential to the government’s need to provide software and security support necessary to meet operational, mission, Executive, and legislative requirements,”<a href="#_ftn8" name="_ftnref8">[8]</a> including that over 96% of the agency’s systems run Microsoft Windows operating systems and over 120,000 users in 7,500 field offices already use the software. Additionally, the current USDA Microsoft structure already supported nationwide public interest programs such as wildfire management and school lunch programs, and was needed to support the agency’s cybersecurity needs.Regarding market research, the justification stated that standard industry practices indicated that all other products would need at least a three-year timeline for transition and implementation and would take at least four years for complete data migration. Finally, the justification noted that due to the pandemic, a new product would delay USDA’s operations and cause significant operational difficulties and “at this time no other company’s product can meet the agency’s need to meet USDA’s performance and risk requirements.”<a href="#_ftn9" name="_ftnref9">[9]</a>Westwind filed a pre-award bid protest at the GAO, challenging the RFQ’s limitation to Microsoft software as unduly restrictive. GAO agreed and found that USDA failed to meet the second prong of the brand-name justification test—market research that indicates other companies’ similar products, or products lacking a necessary feature fall short or cannot be modified to meet the agency’s needs. Thus, while the justification did meet the first condition that the brand-name be essential to the agency’s requirements, the market research prong failed because the justification indicated only that a transition to a new software platform would be inconvenient to USDA. It failed to show that no other software could meet or be modified to meet the agency’s needs and did not address the FAR requirement that a justification specify the “particular feature” that distinguishes the brand name product from similar products. Thus, because USDA’s justification did not state that the product or services that USDA requires are offered only by Microsoft or that other companies’ software cannot be modified to meet the agency’s needs, the agency did not meet the brand-name restriction requirements.TakeawayThe brand-name justification requirement makes it clear that agencies are required to obtain competition to the maximum extent practicable; Westwind illustrates that an agency cannot justify its brand-name requirement by simply stating it would be inconvenient to switch products. Prospective offerors should closely scrutinize brand-name requirements in solicitations and not get discouraged if the requested product differs from their own product. If offerors believe their own preferred supply or service would meet the agency’s needs, they should consider filing a protest to challenge the restrictive terms before the date set for submissions of proposals.System Studies & Simulation, Inc.<a href="#_ftn10" name="_ftnref10">[10]</a> In its final opinion of 2021, System Studies & Simulation, Inc., the U.S. Court of Appeals for the Federal Circuit held that there is no presumption of prejudice in a bid protest, even where a protestor successfully shows that an agency action was “irrational.”In 2018, the Army issued a solicitation to provide the agency with advanced helicopter flight training services. S3 filed a bid protest action at the Court of Federal Claims, and the court found that the agency failed to perform a proper tradeoff analysis. The court set aside the award, and the Army reevaluated the bids. In May 2020, the agency awarded the contract to CAE. S3 filed another bid protest, arguing that the agency’s decision to award the contract to CAE was arbitrary and capricious. Although the court rejected the majority of S3’s arguments, it agreed that the agency’s assignment of a certain “strength” to CAE was arbitrary and capricious. Nonetheless, the court upheld the Army’s decision to award the contract to CAE because S3 had not been prejudiced by the error; even without the error, S3 did not have a substantial likelihood of award.S3 appealed to the Federal Circuit, arguing that when the COFC determines that an agency acted arbitrarily or irrationally, there is a presumption of prejudice to the protestor. In its argument, S3 relied on Impresa Construzioni Geom. Domenico Garufi v. United States, (Garufi), where the Federal Circuit held that a bid award may be set aside if either (1) the agency official’s decision lacked a rational basis or (2) the procurement procedure involved a violation of regulation. The Garufi court continued that, “[w]hen a challenge is brought on the second ground, the disappointed bidder must show ‘a clear and prejudicial violation of applicable statutes or regulations.’”<a href="#_ftn11" name="_ftnref11">[11]</a> S3 reasoned that the specific discussion of a prejudice showing for a regulatory violation implies there is an automatic presumption of prejudice for irrational decisions, such as the arbitrary and capricious assignment of a strength here. S3 noted that a handful of COFC judges have applied exactly such a presumption of prejudice in a few cases.The Federal Circuit rejected this argument. The court first noted that in accordance with its jurisdictional statute, 28 U.S.C. § 1491, the Administrative Procedure Act (APA) standard governs its review of bid protests. The APA mandates that when courts review agency action, “due account shall be taken of the rule of prejudicial error”; the prejudicial-error rule applies the harmless error principle in review of agency action.<a href="#_ftn12" name="_ftnref12">[12]</a> The court next stated Garufi only expressly acknowledges the prejudice-showing requirement where a “‘violation of a regulation or procedure’ is at issue while omitting reference to prejudice where the absence of ‘a rational basis’ is at issue.’” However, just because Garufi states a prejudice showing is necessary for regulatory violations, that does not imply that a prejudice showing is not also necessary for arbitrary and capricious or abuse of discretion actions.The court held that Garufi does not establish a presumption of prejudice, even when the agency acts irrationally. Rather, a protestor bears the burden of showing that an error (whatever its nature) was actually prejudicial. This is a two-step process where there must first be a showing that the agency’s actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and next that the error was prejudicial. Because harmless errors are not actionable, an award cannot be set aside unless both requirements are met. Thus, to demonstrate prejudice in a post-award protest, a protestor must show it would have had a substantial chance of award but for the error.TakeawayIn System Studies & Simulation, Inc., the Federal Circuit clears up any confusion on whether a presumption of prejudice exists for irrational agency actions—“[t]o the extent that there has been uncertainty on this point in [COFC], we now reject the interpretation on Garufi on which the uncertainty rests.”<a href="#_ftn13" name="_ftnref13">[13]</a> Ultimately, prejudice is the core factual question of whether an agency’s procurement errors actually harmed the protestor. Even if a protestor can prove there was an error in the procurement process, it must also show the error plausibly might have kept it from being awarded the contract if the protestor wants to win its protest.<a href="#_ftnref1" name="_ftn1">[1]</a> Serco Inc., B-4196172.2 et seq., Dec. 6, 2021.<a href="#_ftnref2" name="_ftn2">[2]</a> See, e.g., Health Net Fed. Servs., LLC, B-401652.3 et seq., Nov. 4, 2009.<a href="#_ftnref3" name="_ftn3">[3]</a> Serco at *4.<a href="#_ftnref4" name="_ftn4">[4]</a> Id. at *7.<a href="#_ftnref5" name="_ftn5">[5]</a> Id.<a href="#_ftnref6" name="_ftn6">[6]</a> Westwind Computer Products, Inc., B-420119, Dec. 8, 2021.<a href="#_ftnref7" name="_ftn7">[7]</a> Id. at *2.<a href="#_ftnref8" name="_ftn8">[8]</a> Id.<a href="#_ftnref9" name="_ftn9">[9]</a> Id. at *4.<a href="#_ftnref10" name="_ftn10">[10]</a> Sys. Stud. & Simulation, Inc. v. United States, No. 21-01469 (Fed. Cir. 2021).<a href="#_ftnref11" name="_ftn11">[11]</a> Id. at 5 (citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001)).<a href="#_ftnref12" name="_ftn12">[12]</a> See id. at 4.<a href="#_ftnref13" name="_ftn13">[13]</a> Id. at 7.

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Associate

Roke Iko is an associate in the Litigation Department in Morrison & Foerster’s Washington, D.C. office.
Roke assists clients in the full range of government contracts litigation and compliance matters

Roke Iko

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December 2021 Bid Protest Roundup

This month’s Law360 Bid Protest Roundup focuses on two Government Accountability Office (GAO) decisions and one recent Federal Circuit decision. These decisions

December 2021 Bid Protest Roundup

At our annual MoForward event in October 2021, Lisa Phelan offered practical advice about avoiding U.S. Department of Justice (DOJ) criminal antitrust enforcement of “no poach” agreements, predicting the defense industry would soon become a target. Regrettably, Lisa’s prediction has come true.To learn more, read our <a rel="noopener" target="_blank" href="https://www.mofo.com/resources/insights/211227-moforward-warning-comes-true.html">client alert</a>.

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Co-chair Global Antitrust Law Practice Group


Lisa M. Phelan, former Chief of the National Criminal Enforcement and Washington Criminal I Sections of the Antitrust Division of the U.S. Department of Justice (DOJ), is a partner and Co-Chair of Mo

Lisa M. Phelan

Lisa Phelan

A MoForward Warning Comes True: No Poach Enforcement Hits the Defense Industry

At our annual MoForward event in October 2021, Lisa Phelan offered practical advice about avoiding U.S. Department of Justice (DOJ) criminal antitrust enforceme

A MoForward Warning Comes True: No Poach Enforcement Hits the Defense Industry

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 litiga

Harmonia Holdings: Denied Pre-Award Protest Rises from the Dead Five Months Later as a Post-award Protest

The U.S. Court of Appeals for the Federal Circuit has issued its long-awaited decision in Harmonia Holdings Group, LLC v. United States, vacating a bid protest 

Harmonia Holdings: Denied Pre-Award Protest Rises from the Dead Five Months Later as a Post-award Protest

This month’s <a rel="noopener noreferrer" target="_blank" href="https://www.law360.com/articles/1447106">Law360</a> Bid Protest Roundup focuses on two recent decisions by the U.S. Government Accountability Office (GAO) and one decision from the U.S. Court of Federal Claims (COFC). These decisions involve (1) the consequences of key personnel unavailability that occurs during corrective action following a protest, (2) the government’s exposure to sanctions for failing to produce the complete administrative record in a protest before COFC, and (3) the broad discretion agencies enjoy in setting procurement-related deadlines.Ashlin Management Group[1]In Ashlin Management Group, the GAO addressed a situation in which one of the awardee’s quoted key personnel became unavailable during the post-award corrective action period. In sustaining the protest on that ground only, the GAO determined that the awardee, Booz Allen Hamilton, Inc. (BAH), was ineligible for award because it had actual knowledge of the unavailability of one of its key personnel, and that BAH improperly failed to notify the agency of this material change.The factual history of this protest is worth noting, as the occurrence of a two-touch protest is quite common and played a key role in the outcome of this decision. On September 9, 2020, the Employment and Training Administration of the Department of Labor issued the subject solicitation, seeking quotes for consulting services to support the agency’s Job Corps program. After the agency issued an award to BAH, in January of 2021, ASHLIN Management Group (ASHLIN), the incumbent, timely filed a protest at the GAO. The agency, in turn, filed a notice of corrective action, broadly stating that it would “reconsider some aspects of the evaluation of quotations.” After completing the corrective action, the agency again issued the award to BAH. ASHLIN subsequently filed the instant protest, challenging various aspects of the agency’s evaluation. During the second protest, it came to light that BAH proposed to fill a required key personnel position with an employee who worked for the company prior to the initial award, but who resigned during the agency’s corrective action period. BAH did not notify the agency that this employee resigned.When a solicitation requires offerors to name key personnel, the GAO treats the pre-award unavailability of a proposed key person to be a material proposal change affecting the proposal’s eligibility for award. Given that offerors must avoid material misrepresentations, the GAO expects offerors to notify agencies of material changes to their proposals, including key personnel unavailability, even after proposals or quotations have been submitted. Notification of the unavailability of key personnel, however, is required only when an offeror gains actual knowledge of a proposed employee’s unavailability prior to contract award. Upon receiving such notification, an agency has two choices, (1) reject the proposal because it no longer meets the solicitation’s key personnel requirements, or (2) (re)open discussions with all offerors to permit proposal revisions.BAH claimed that it did not have actual knowledge of the unavailability of that quoted key person and that, in any case, it notified the agency of its need to replace that employee shortly after again receiving the award. The GAO found these arguments wholly unpersuasive, concluding that BAH had actual notice of the individual’s unavailability given the resignation letter it received during corrective action. The GAO also determined that, even though the initial award remained in place throughout the corrective action period, the issue was not a matter of contract administration outside of the GAO’s purview, as the agency’s corrective action notice “unequivocally represented that the agency would make a new award decision that would ‘supersede’ the protested prior award decision.” Therefore, the GAO sustained this protest ground.In terms of outcomes, this decision contrasts with the GAO’s decision in NCI Information Systems.[2] In NCI, the protester similarly alleged that the awardee improperly failed to notify the agency that one of its key personnel became unavailable during the corrective action period, rendering the awardee’s proposal technically unacceptable. Protester based this allegation on publically available information; the individual at issue was not an employee of the awardee. The GAO, however, found that the awardee did not have actual knowledge of the unavailability of the key personnel. In reaching this determination, the GAO quoted a declaration excerpt from one of the awardee’s corporate officials, who attested that none of the company’s proposed key personnel rescinded their letters of intent or otherwise notified the company of their unavailability, and that the company had “no reason to believe any of its proposed key personnel have withdrawn their availability and intent to perform the contract effort.” That information, coupled with the resume of the individual at issue confirming that the person did not work at the company, seemed to resolve any remaining doubt. Interestingly, and unlike in Ashlin, the GAO did not address the agency’s argument that key personnel unavailability was not at issue because the corrective action did not include a reevaluation of key personnel.TakeawaysWhen a contractor receives notice that one of its proposed key personnel has resigned or is otherwise unavailable or unable to perform, be it pursuant to a letter of resignation or letter, email, or other communication from that individual, the contractor must notify the procuring agency of this change prior to award (or re-award). Moreover, offerors should note that it will likely be difficult to argue a lack of actual knowledge when the key personnel at issue was an employee at the time of proposal submission. Recognizing that this is a harsh rule, it is important that contractors pay particular attention to the availability of their key personnel, especially where this rule becomes invariably harsher when agencies string out procurements over extended periods of time or the agency reopens evaluations and the award decision as part of its corrective action. Finally, although the GAO left the door slightly cracked on the extent to which the text of the agency’s notice of corrective action can impact its ultimate decision, the decision in Ashlin serves as an important reminder that protesters should always carefully review the agency’s representation of what the corrective action will involve.Oak Grove Technologies[3]Oak Grove Technologies provides a comprehensive analysis on the legal parameters of sanctions ordered pursuant to the court’s inherent authority and Rule 11 of the Rules of the Court of Federal Claims (RCFC) as well as the degree of discretion afforded to agencies in determining what documents are relevant to the administrative record (AR) in a bid protest. The court emphasized that parties can face sanctions if they unduly delay the court’s resolution of a case or otherwise waste the court’s or another party’s time and resources, which occurred in this case when the government belatedly produced two key documents and deliberately obfuscated the role of a contested source selection official in the AR. The court also made clear that whether or not a party omits documents in good or bad faith is irrelevant to the RCFC 11 standard and that parties’ filings must respond to all directives in a prior court order.In the merits opinion that preceded this sanctions decision, the court found that the government’s withholding and delayed production of relevant documents in the AR wasted the court’s and plaintiff’s time and resources. [4] The court further determined that such actions “undermine[d] trust in both the procurement and disputes processes.” Although the court recognized that many of these issues were seemingly caused by the agency, and not by the Department of Justice (DOJ), the court ordered the government to show cause why sanctions should not be imposed pursuant to RCFC 11 and the court’s inherent authority and to address certain concerns “in detail.”In deciding that RCFC 11 sanctions were warranted, the court first discussed the routine certification submitted by the agency’s contracting officer attesting that the documents filed as the AR included all materials relevant to the plaintiff’s complaint. Given that this certification and the filing of the AR are both subject to RCFC 11, the court found the omission of key documents in the AR dually problematic. The court then chastised the government for failing to respond to the RCFC 11-specific request in its show cause order, finding that the government “cannot escape sanctions by ignoring the applicable Rule 11 standard and pointing only to the heightened standard for imposing sanctions pursuant to a court’s inherent powers.” The court also squarely rejected the notion that sanctions are inappropriate in the absence of bad faith, as RCFC 11 neither requires a finding of bad faith nor excuses a violation based on a showing that the party acted in subjective good faith.Before addressing the AR documents at issue in this case, the court deemed it necessary to reiterate that an agency is not entitled to subjectively determine what documents are relevant to a plaintiff’s claims for the purposes of compiling the AR. The court then explained its interpretation of “relevant,” as supported by a body of case law, which starkly contrasted with what the court characterized as the government’s “cramped view” of the meaning of that term in the context of a bid protest. In rejecting the government’s arguments, the court discussed, at some length, the fundamental tenet of bid protest procedure that the AR must contain all documents reasonably relevant to the decisions being challenged in the protest.As to the first excluded document, a DCMA report containing information determinative of another offeror’s eligibility for award, the court acknowledged that while tension and communication issues can sometimes exist between the agency and the DOJ, the government’s initial failure to produce this document was still unacceptable. First, this document was central to plaintiff’s standing argument. Second, the agency produced a heavily redacted version of the DCMA report in a prior GAO protest, demonstrating the agency’s concession of its relevance. The court therefore found that “[t]he most reasonable explanation, if not the only reasonable explanation, is that the Agency selectively omitted a document that was harmful to its position.” Regarding the second document at issue, a letter terminating the source selection official whose role was core to plaintiff’s protest, the court concluded that the government’s belated production of this document effectively served only to further highlight that the government’s failures were sanctionable. Despite the government’s claim that this letter actually supported its position, the court found the reality to be the opposite, especially considering testimony from government witnesses.Last, the court found that the manner in which the government produced the AR, including its selection of documents, improperly obscured the role of the source selection official who was central to plaintiff’s core argument. The government claimed that a signature block on the second page of the Source Selection Plan and an organization chart depicting the Source Selection Team Structure put both the plaintiff and the court on notice of that individual’s “true role,” and that the plaintiff “presumably could have sought additional documents earlier in the case.” Unsurprisingly, the court summarily rejected both of those arguments. The court then separately found that government undermined its position where its briefs and oral arguments revealed that neither the DOJ nor agency counsel had knowledge of that individual’s role.For each of these reasons, and pursuant to RCFC 11, the court ordered the government to pay the plaintiff’s legal costs and expenses incurred in relation to the issues identified in the Court’s show cause order.TakeawaysThis decision offers important lessons to bid protest practitioners. First, it underscores the importance that COFC places on fair, efficient, and by-the-book proceedings, and that the court may impose RCFC 11 sanctions to enforce proper procedure. It also serves as a reminder that all parties litigating bid protests—or any other matters—should be careful when certifying that they have complied with court orders, such as those requesting document delivery. Additionally, the decision highlights some of the inherent differences between the document production processes in protests filed at the GAO versus at COFC, where the latter arguably provides the government with less discretion. Last, it underscores the importance for parties to respond to all directives in a court order.Smiths Detection, Inc.[5]The GAO’s decision in Smiths Detection, Inc., concerns somewhat unusual pre-award protests challenging the terms of dual solicitations that include identical FAR 52.209-1 qualification requirements involving the agency’s qualified products list (QPL). Specifically, the protester claimed that the solicitations’ January 4, 2022 deadline for offerors to obtain QPL qualification for their checkpoint property screening computed tomography (CT) systems is unduly restrictive of competition. In denying that argument, the GAO found the agency’s undisputed need to address current critical matters of public safety to be reasonable, even where both solicitations expressly recognized the possibility that no offeror would obtain QPL qualification by the deadline.The Transportation Security Administration issued the sister solicitations on April 2, 2021, requesting proposals for improvements to its existing checkpoint screening systems using two different system configurations. To be eligible for award, offerors’ products must complete qualification testing and be added to the agency’s QPL in accordance with the solicitations’ qualification requirements.More than a year before publishing the solicitations, the agency issued the relevant QPL for both system configurations, allowing vendors to begin the lengthy six-step qualification process by submitting qualification data packages for their respective systems. Protester submitted qualification data packages for each system in August and September of 2020, which currently remain under review. Due to delays in the QPL process, the agency willingly approved protester’s initial request for a 10-week extension to the solicitations’ qualification deadline, postponing the deadline until January 4, 2022.Shortly before the proposal submission deadline, the protester again requested an extension due to similar delays, explaining that additional time would allow a greater number of offerors to complete the QPL process, which, in turn, would increase competition. When the agency did not extend the deadline, protester timely filed the instant pre-award protests.The protester primarily alleged that the solicitations’ qualification deadline was unreasonable because it prevented many offerors, including itself, from attaining the required qualification in time to be eligible for an award. As the GAO repeatedly noted, the protester did not claim that the agency lacked an immediate or reasonable need to upgrade its current systems or otherwise object to the requirement for QPL qualification. In essence, protester simply wanted to delay the proposal submission deadline.Interestingly, both solicitations acknowledged the possibility that “no proposed products or systems [would be] successfully on the associated QPL” by the deadline, in which case the agency could cancel the solicitations or request approval to continue the process in accordance with FAR 52.209-1, Qualification Requirements. Notwithstanding that provision and the protester’s concerns, the agency stood firm in its position that proceeding with the existing deadlines was necessary to promote the agency’s mission of ensuring safety and security, citing heightened health and safety risks that would only worsen if the agency’s efforts were delayed.Based on the agency’s explanation, the GAO determined that the requirements of the solicitations were both reasonable and consistent with the agency’s legitimate needs. In denying this protest ground, the GAO explained that the fact “a requirement may be burdensome or even impossible for a particular firm to meet does not make it objectionable if the requirement properly reflects the agency’s needs,” even where the requirements were ostensibly impossible to meet for many of the offerors. The GAO further noted that while a procuring agency’s solicitation must be designed to achieve full and open competition, an agency does not have to delay its own procurements in order to provide offerors with additional time to meet the agency’s requirements.The GAO dismissed as premature the protester’s remaining allegations, as both contentions were predicated on the state of future occurrences. The first alleged that the agency’s procurement actions may incidentally result in a de facto sole source procurement. The second claimed that the agency failed to discharge its obligations to promptly and fairly administer the QPL qualification process.TakeawaysThis decision affirms the considerable deference consistently afforded to agency decision-making, including to decide or postpone deadlines in a solicitation, particularly where matters of health, safety, and security are at risk. It also reveals the importance of keeping track of solicitation deadlines—if a contractor requests an extension in advance, it is possible the agency will oblige. Last, it shows that an offeror’s request for an agency to extend a deadline is not always futile, but that the decision will often turn on the purpose of the procurement and the agency’s broader mission and needs.[1] Ashlin Mgmt. Grp., B-419472, 2021 WL 5323743 (Nov. 4, 2021).[2] NCI Info. Sys., B-417805.5, 2020 CPD ¶ 104 (Mar. 12, 2020).[3] Oak Grove Techs., LLC v. United States, No. 21-775, 2021 WL 5114707 (Fed. Cl. 2021) (Oak Grove II).[4] Oak Grove Techs., LLC v. United States, 155 Fed. Cl. 84, 101-02 (2021) (Oak Grove I).[5] Smiths Detection, Inc., B-420110; B-420111, 2021 U.S. Comp. Gen. LEXIS 311 (Nov. 5, 2021).

November 2021 Bid Protest Roundup

This month’s Law360 Bid Protest Roundup focuses on two recent decisions by the U.S. Government Accountability Office (GAO) and one decision from the U.S. Court 

November 2021 Bid Protest Roundup

The Chief Information Officer-Solutions and Partners 4 (CIO-SP4) procurement of the National Institutes of Health’s Information Technology Acquisition and Assessment Center (NITAAC) has garnered a great deal of attention. With confusion over evaluation criteria, a string of last-minute solicitation amendments and reversals, short extensions of the rushed due dates for proposals, and a series of major changes in how offerors were permitted to form teams, some expected NITAAC to suspend the procurement altogether and send the solicitation back to the drawing board. Instead, after a final set of amendments and a last-minute extension of the proposal due date, NITAAC received proposals on August 27, 2021.Thanks to a new U.S. Government Accountability Office (GAO) decision finding the solicitation is unduly restrictive, the solicitation (at least with respect to offerors competing for small business awards) may be going back to the drawing board after all. The decision is <a rel="noopener" target="_blank" href="https://www.gao.gov/assets/b-419956.18.pdf">Computer World Services Corporation; CWS FMTI JV LLC, B-419956.18 et al., Nov. 23, 2021</a>.BackgroundCIO-SP4 will be a large multiple-award contract, against which agencies across the Government may place task orders. The solicitation provides for both unrestricted and small business set-aside awards. Similar to the General Services Administration’s (GSA) OASIS procurement, an important part of the CIO-SP4 evaluation involves numerical scores offerors give themselves for various capabilities, credentials, and experience their team members possess. This feature of the evaluation drives offerors to assemble teams that can rack up the maximum number of points, thus improving their chances of award.Between the initial draft solicitation released in 2020 and the final amended solicitation, NITAAC significantly changed the rules a number of times for scoring the contributions of various types of teammates. Late in the process, NITAAC prohibited small business offerors from relying on the capabilities, credentials, and experience of large business subcontractors. Although the solicitation permitted mentor-protégé joint ventures to rely on the experience of mentors approved by the Small Business Administration (SBA), the solicitation eventually limited the number of experience references a mentor-protégé joint venture offeror might submit for a large business mentor to two per task area. Because large businesses generally have more capability, credentials, and experience than small businesses, these restrictions limited the number of points a small business might accumulate for evaluation purposes.The ProtestPrior to the date set for receipt of proposals, various offerors filed protests with the GAO, challenging the terms of the solicitation. We’ll focus on the protest of CWS FMTI JV LLC (CWS FMTI), a mentor-protégé joint venture competing for one of the small business awards, whose protest the GAO sustained in part.The protester complained that the solicitation’s self-scoring criteria improperly limited the number of experience references that may be submitted for a large business mentor in a mentor-protégé joint venture. According to CWS FMTI, these limitations unduly restricted competition, violated SBA regulations, and improperly treated mentor-protégé joint ventures with large business mentors differently from mentor-protégé joint ventures with a small business mentor—a distinction the SBA regulations do not make.As relevant to the protest, the solicitation provided self-scoring criteria for various kinds of experience. The solicitation permitted offerors to submit experience examples from members of their teams, including from mentor-protégé joint venture members. For a mentor-protégé joint venture, however, a large business mentor was limited to two examples for each task area in corporate experience, and two of the three possible experience examples for leading edge technology experience and federal multiple award experience.  If an offeror wanted to submit additional experience examples, it had to come from other (small) team members. The solicitation did not similarly limit the experience contributions from a small business mentor.First, the protester argued the limitation on mentor experience violated 13 C.F.R. § 125.8(e). That regulation prohibits an agency from requiring “the protégé firm [in a mentor-protégé joint venture] to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.” The protest continued that, because this regulation requires agencies to permit mentor-protégé joint ventures to demonstrate experience “in the aggregate,” a restriction on a mentor’s experience contribution violates the regulation.The GAO invited the SBA to provide its view of this argument. The SBA cited its prefatory comments accompanying the promulgation of the most recent version of 13 C.F.R. § 125.8(e). There, the SBA stated that the regulation does not prohibit agencies from requiring a protégé to demonstrate some experience of its own; it simply requires agencies to consider the mentor’s experience, and prohibits agencies from holding a protégé joint venture member by itself to the same standard as other offerors. The GAO noted that the CIO-SP4 solicitation did not require protégé members to demonstrate any experience of their own and affirmatively permitted the consideration of large business mentor experience as part of a joint venture offeror’s aggregate experience. Thus, the GAO determined that the solicitation did not violate 13 C.F.R. § 125.8(e).Second, the protester argued this restriction was unduly restrictive of competition, even if it did not violate regulation. A challenge based upon undue restriction of competition is generally not a very difficult hurdle for an agency to clear, as an agency need only document some rational basis for the restriction. NITAAC, however, was unable to do that.NITAAC first argued that its restrictions were reasonable because they were the same as restrictions the GAO approved in <a rel="noopener" target="_blank" href="https://www.gao.gov/assets/b-408685.18.pdf">Ekagra Partners, LLC, B-408685.18, Feb. 15, 2019, 2019 CPD ¶ 83</a>. (See our prior discussion of the sustained protest ground in Ekagra <a rel="noopener" target="_blank" href="https://govcon.mofo.com/protests-litigation/february-2019-bid-protest-roundup/">here</a>.) There, in the context of the OASIS on-ramp solicitation, the GAO held that the GSA “reasonably explain[ed] that limiting the amount of experience that may be credited to a large business mentor ensures that the agency will be able to meaningfully consider the experience of the protégé member of the joint venture.” The GAO found it was unreasonable for NITAAC to rely upon this portion of the Ekagra decision because, unlike OASIS, CIO-SP4 did not require protégés to submit any experience examples at all. Thus, restricting the number of experience examples from a mentor was irrelevant to the consideration of the protégé’s experience and not a rational basis for the restriction.NITAAC next argued that the limitations on the experience that a large business mentor might submit were reasonable to avoid competitive disadvantage to small business firms that did not partner with large business mentors.  The GAO rejected this argument, pointing out that the mentor-protégé program is designed to allow small business protégés to benefit from the capabilities and experience of their mentor firms, be they large or small businesses. See 13 C.F.R. § 125.9(a), (b); 15 U.S.C. § 644(q)(1)(C). The GAO found no basis in 13 C.F.R. § 125.8(e), or any other SBA statute or regulation, to support NITAAC’s conclusion that a procuring agency had discretion to limit the submission of experience from a large business mentor for the purpose of favoring joint ventures with small business mentors over those with large business mentors.Thus, neither of NITAAC’s asserted bases for restricting competition was rational.Third, the GAO held that the limitation on mentor experience submissions was not only unduly restrictive of competition but also improperly treated similarly situated offerors unequally. Specifically, the solicitation’s challenged restrictions applied only to mentor-protégé joint ventures with large business mentors, but not to those with small business mentors. In light of the purpose of the mentor-protégé joint venture program, the GAO found that NITAAC failed to explain why it had the discretion to competitively disfavor a mentor-protégé joint venture with a large business mentor as compared to all other small business offerors, or to favor mentor-protégé joint ventures with small business mentors over mentor-protégé joint ventures with large business mentors. NITAAC, in effect, appointed itself to make a distinction that the governing small business statutes and regulations do not make, and ended up treating offerors unequally.The GAO denied the remainder of the protest grounds. At this point, it appears the GAO has resolved all of the multiple pre-award protests filed so far against this solicitation, and only CWS FMTI has raised an argument that GAO sustained.Where Does NITAAC Go from Here?In one sense, the GAO’s decision is fairly limited. It involves restrictions that applied only to offerors competing for one of the small business awards, and it applies only to mentor-protégé joint ventures with large mentors. The GAO leaves open the possibility that NITAAC might come up with a better rationale for the existing restrictions than it was able to think of during litigation:We recommend that the agency reconsider its requirements and the limitations the RFP imposes on the experience that may be submitted by large business mentors, and whether the agency believes there are justifications for the limitations that are consistent with our discussion herein. If the agency elects to retain the current version of the RFP, it should advise the protester of the new justification for the limitations.Assuming the failed rationales NITAAC articulated during the protest are the best NITAAC can do, it will have to follow the GAO’s alternative recommendation:In the alternative, we recommend that NIH amend the solicitation to either remove the limitations, or to revise the evaluation criteria in a manner that treats offerors in an equal manner and is consistent with the provisions of 13 C.F.R. § 125.8(e), as discussed above. If the agency amends the solicitation, it should provide offerors an opportunity to submit revised proposals.Although the GAO did not specify this, NITAAC also will have to consider the requirements of FAR 15.206(e):If, in the judgment of the contracting officer, based on market research or otherwise, an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.Here, small business offerors scrambled to rearrange their teams and sometimes changed the prime offeror itself as a result of NITAAC’s various restrictions on teaming arrangements. Are there mentor-protégé joint ventures that did not submit proposals as a result of the solicitation’s restrictions on mentor experience? Would they have submitted proposals if they had known that NITAAC would remove those restrictions after proposal submission? Or, if NITAAC tries to justify the restriction by adding a new requirement for protégé firms to submit some experience of their own, would some joint venture offerors have proposed instead as prime-subcontractor teams if they had known NITAAC would amend the solicitation in this way? Depending on how one answers these questions, NITAAC may end up having to cancel and resolicit at least the small business portion of CIO-SP4, or face another slate of protests if it does not.

Anser Advisory

ARKA

Arlington Capital

Battle Investment Group

Behrman Capital

Cadmus

Chainalysis

CollabraLink

Definitive Logic

Emmes

Enlightenment Capital

Grant Thornton

Griffon Corporation

eTelligent

L3Harris

Jacobs

LinQuest Corporation

Micross

Sagewind

Sedgwick

Sigma Defense

teKnoluxion

The Building People

VariQ

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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

Damien Specht

Damien C. Specht

GAO Finds CIO-SP4 Solicitation Is Unduly Restrictive of Competition

The Chief Information Officer-Solutions and Partners 4 (CIO-SP4) procurement of the National Institutes of Health’s Information Technology Acquisition and Asses

MoFo’s Jay DeVecchio and Locke Bell recently published an article in Thomson Reuters’ The Government Contractor. The article, titled, “Subcontractor Data Rights Challenges: A Need For Clarity,” offers practical advice about how subcontractors should handle a DoD technical data validation challenge in light of contradictory and confusing provisions in the data validation clauses. The <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltbcc4d53b8da788f5/627318bf5f7b601eaaebd076/211202-subcontractor-data-rights-challenges.pdf">article can be accessed here</a>.

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Locke Bell is a partner in the firm’s Government Contracts & Public Procurement practice.

Locke Bell

Subcontractor Data Rights Challenges: A Need For Clarity

MoFo’s Jay DeVecchio and Locke Bell recently published an article in Thomson Reuters’ The Government Contractor. The article, titled, “Subcontractor Data Rights

Subcontractor Data Rights Challenges: A Need For Clarity

OCTOBER 2021 BID PROTEST ROUNDUP

This month’s Law360 Bid Protest Roundup features three cases from the Court of Federal Claims (COFC). The court’s decisions provide important insights into bid 