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.

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

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

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

James Tucker

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

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

J. Alex Ward

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

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

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This month’s Law360 Bid Protest Roundup focuses on one recent U.S. Court of Federal Claims decision, as well as two Government Accountability Office (GAO) decis

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September 2021 Bid Protest Roundup | Government Contracts Insights

Alissandra Young McCann

This month’s <a rel="noopener" target="_blank" href="https://www.law360.com/articles/1427860">Law360 Bid Protest Roundup</a> focuses on one recent U.S. Court of Federal Claims decision, as well as two Government Accountability Office (GAO) decisions. All three involve solicitations issued by the Department of Veterans Affairs (VA), but each serves as a different, important reminder for disappointed offerors seeking to have their own protests sustained.Land Shark Shredding<a rel="noopener" target="_blank" href="https://mofocrm.lightning.force.com/lightning/r/Case/5002M00001Iy9sJQAR/view">[1]</a>In Land Shark Shredding, an instructive case for government contractors regarding the impact transactions can have on pending protests, the Court of Federal Claims dismissed a protest for lack of standing because the party bringing the protest was not a valid successor-in-interest to the party that submitted the proposal at issue.Underlying the protest was the VA’s solicitation for a contract seeking commercial document shredding for its medical center in Boston, Massachusetts. Ultimately, the VA received only three proposals in response to the solicitation; of these, only the proposal of Land Shark Shredding, LLC (“Land Shark”) was timely. Upon a determination that Land Shark’s pricing proposal was not “fair and reasonable” and that its technical proposal was unacceptable, the VA cancelled the procurement. Land Shark then filed a protest at the Court of Federal Claims on May 14, 2019, arguing that the VA lacked a rational basis for the cancellation decision and was required to award Land Shark the contract under the “Rule of Two.” Both parties moved for judgment on the administrative record, and the government sought to dismiss the complaint. However, in December 2019, the court stayed the case to await the Federal Circuit’s decisions on two subsequent bid protest appeals that Land Shark had filed. After the Federal Circuit rejected both of those appeals in January 2021, the court ordered supplemental briefing in the instant case.When the court conducted oral arguments regarding the supplemental briefing in June 2021, Land Shark informed the court that it had recently undergone several transactions. Specifically, the organization known as Land Shark at the time it submitted its proposal sold its assets and business interests related to existing, uncontested government contracts to Dunlap Government Services, LLC in December 2020. Land Shark’s remaining assets related to its commercial shredding business, as well as its name, were then sold to Underground Vaults and Storage, Inc. later that same month. Contested government contract interests, like the one at issue here, were retained by the original organization, which changed its name from Land Shark Shredding, LLC to Disabled Veterans Security, LLC. This organization, like the original Land Shark organization, was a single-member limited liability corporation owned by the same individual.After oral argument, Land Shark moved to substitute Disabled Veterans Security as the protester, or change the caption of the protest to reflect Land Shark’s new name on the basis that there was no actual change in organizational structure since the complaint had been brought. However, the government argued that Disabled Veterans Security lacked standing to bring the protest because after the sale of Land Shark’s assets, “no entity remains in a position where it could fill the shoes of the former Land Shark Shredding, LLC with respect to the quotation it submitted in March 2019.”To have standing, a protester must demonstrate that it was an “interested party” by virtue of both being an actual or prospective bidder and having a direct economic interest in the procurement. The court noted that, “where a plaintiff is not an ‘actual bidder’ on the solicitation, a plaintiff may nonetheless possess standing as a ‘complete successor-in-interest’ that can ‘stand in the shoes’ of the actual bidder.”  The court noted the factors utilized to determine “successor-in-interest” status, including “whether the actual bidder and the entity asserting standing are the same legal entity or business unit…and whether the change in corporate structure or sale at issue affected the ‘operational’ or ‘financial’ resources that the entity asserting standing could devote to the subject contract.”<a rel="noopener" target="_blank" href="https://mofocrm.lightning.force.com/lightning/r/Case/5002M00001Iy9sJQAR/view">[2]</a>Land Shark, now reorganized as Disabled Veterans Security, admitted that it was not an actual bidder on the solicitation, nor a complete successor-in-interest, but argued that it could “step into the shoes” of Land Shark because its corporate structure remained the same. It also argued that although Land Shark sold all of its assets, Disabled Veterans Security could purchase the assets to perform as required by the solicitation. However, the court disagreed, finding that precisely because Land Shark no longer owned the assets or employed the individuals it had identified in its proposal, it could not prove it had the ability to perform. Specifically, the court stated that the same corporate structure and an ability to purchase equipment or subcontract certain services was not sufficient for the plaintiff to stand in the shoes of the original party that had responded to the solicitation. Therefore, the Court found Land Shark lacked standing and dismissed the protest.TakeawaysThis decision provides important guidance for contractors considering undergoing transactions while maintaining bid protests. Even if the same individual or group of individuals owns and operates an entity following reorganization, that organization is unlikely to be a complete successor-in-interest, and therefore will lack standing to protest, unless the entity maintained the same relevant assets and employees as it possessed and relied upon to demonstrate capability to perform at the time it submitted its proposal.Primary Care Solutions<a rel="noopener" target="_blank" href="https://mofocrm.lightning.force.com/lightning/r/Case/5002M00001Iy9sJQAR/view">[3]</a>After taking corrective action as a result of a protest filed by Primary Care Solutions, Inc. (PCS) in April 2021, the VA again issued a contract for a community-based outpatient clinic to Clinovators, LLC.  Unsatisfied with the results of the renewed award decision, PCS filed a new protest alleging that the VA’s evaluation during corrective action was flawed for multiple reasons. Of particular interest is PCS’s argument that the VA improperly failed to consider its alternate price proposal, which was only slightly higher than Clinovator’s price.To better understand why PCS submitted an alternate price proposal in the first place, it should be noted that the solicitation used combined procedures from FAR Part 12 and Part 15 for award.  Accordingly, the solicitation included FAR 52.212-1, which in pertinent part, states as follows:(e) Multiple offers. Offerors are encouraged to submit multiple offers presenting alternative terms and conditions, including alternative line items (provided that the alternative line items are consistent with subpart 4.10 of the Federal Acquisition Regulation), or alternative commercial items for satisfying the requirements of this solicitation. Each offer submitted will be evaluated separately.FAR 52.212-1(e). Therefore, consistent with this provision, PCS submitted an alternate price proposal, which appears to have included additional individual startup contract line items (CLINs) beyond those in the solicitation’s price schedule.<a rel="noopener" target="_blank" href="https://mofocrm.lightning.force.com/lightning/r/Case/5002M00001Iy9sJQAR/view">[4]</a> However, the solicitation required offerors to submit their prices using the price schedule in the solicitation. It also required the prices to “be listed as an all-inclusive per member per month rate for services under each [CLIN]. If needed calculate the [build-out] into [CLIN] 0001.”The VA found PCS’s alternate price proposal failed to conform to the solicitation’s requirements because it deviated from the price schedule, and included individual startup CLINs, rather than including startup costs in CLIN 0001. The GAO found the VA’s decision to be reasonable, and denied PCS’s protest.While the GAO recognized that FAR 52.212-1(e) encourages alternate proposals, it explained that there is no requirement that an agency consider offers that do not conform to a solicitation’s requirements. Furthermore, FAR 52.212-1 also requires that offers be submitted “as otherwise specified in the solicitation,” and specifically warns offerors that proposals that “fail to furnish required representations or information, or reject the terms and conditions of the solicitation may be excluded from consideration.” FAR 52.212-1(b). The GAO agreed with the VA that PCS’s alternate price proposal failed to conform to the solicitation’s requirements, and thus was properly excluded from the VA’s evaluation.TakeawaysPrimary Care Solutions serves as an important lesson for offerors to not get carried away with alternate proposals when FAR 52.212-1 is included in a solicitation. Although the provision allows alternate proposals, and even allows alternate line items to be proposed, an agency will not be required to consider those alternatives where they are not consistent with the requirements of the solicitation.  When in doubt, potential offerors should seek clarification from the agency before spending the bid and proposal costs to develop an alternate proposal that the agency will not even consider in its evaluation.Marquis Solutions<a rel="noopener" target="_blank" href="https://mofocrm.lightning.force.com/lightning/r/Case/5002M00001Iy9sJQAR/view">[5]</a>In Marquis Solutions, the GAO sustained the post-award protest of Marquis Solutions, LLC (“Marquis”) asserting that the VA improperly evaluated quotations and ultimately made an unreasonable source selection decision. The VA’s solicitation contemplated the award of a fixed-price indefinite-delivery, indefinite-quantity contract for medical courier services in the New York City metropolitan area. The acquisition was conducted under the simplified acquisition procedures of FAR Part 13 and resulted in an award to FG Management Group, LLC (“FG Management”).During evaluation of proposals, the VA assigned an “outstanding” rating to FG Management’s performance capability subfactor (one of two subfactors under the technical capability evaluation factor), and an “unacceptable” rating to Marquis’ proposal under the same. As a result of this “unacceptable” rating, the VA did not further consider Marquis’ proposal in its evaluation, resulting in only FG Management and another offeror being included in the VA’s best-value tradeoff analysis.Following award, the VA provided a very brief and vague explanation of its award decision to Marquis. Marquis subsequently filed the instant protest, alleging the VA failed to meaningfully consider its quotation, and failed to evaluate the offerors equally. The GAO agreed.Specifically, the GAO noted that the language directing offerors’ responses in the technical capability portion of the RFQ was vague – a single sentence asked offerors for “detailed” descriptions of their relevant capabilities. While arguments over vague solicitation criteria normally do post-award protesters little to no favors, here, because the remarks in the evaluation record were also vague, the GAO could not ascertain exactly what the evaluators’ complaints related to. Specifically, the explanations in the evaluation record focused on vague remarks regarding formatting and level of detail included in the Marquis quotation, such as “[d]ocument lacks the details to be properly evaluated,” and “Offeror’s proposal fails to follow the instructions as per posted evaluation criterions.” Yet, as the GAO pointed out, the technical evaluators made no mention of which required details had been omitted from the Marquis quotation, nor offered further rationale for their findings.The GAO found this lack of detail was especially problematic given that the VA failed to criticize other offerors for similar shortcomings noted in Marquis’ quotation. Specifically, the GAO pointed out that in certain instances, FG Management copied language from the solicitation’s statement of work verbatim, yet the evaluation made no mention of this. Additionally, the VA assigned strengths to FG Management for features that had also been included in Marquis’ quotation, but not mentioned at all by the VA in its review of Marquis’ offering.  Nor did the evaluation record contain any explanation for these disparate conclusions.In sustaining the protest, the GAO maintained that, even under the simplified acquisition procedures of FAR Part 13, an agency must document the rational bases for its conclusions and assess competing offerors fairly and equally. It emphasized that there must be sufficient detail in the record to allow review of protests on the merits. Where an agency fails to do so, it bears the risk of the GAO sustaining a protest.TakeawaysThis decision serves as a reminder that, even where a procurement uses simplified acquisition procedures, the GAO will nonetheless uphold the principle that the government must make logical, well-documented source selection decisions. Protesters that receive particularly vague or poorly reasoned explanations from agencies during debriefing should consider raising their concerns in a protest. In the event the record does not uncover more concrete agency analysis behind the vague assertions, or if the record suggests that the agency did not make the same broad conclusions regarding the awardee, the protest might be successful.<a rel="noopener" target="_blank" href="https://mofocrm.lightning.force.com/lightning/r/Case/5002M00001Iy9sJQAR/view">[1]</a> <a rel="noopener" target="_blank" href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019cv0711-54-0">Land Shark Shredding, LLC, No. 19-711C, 2021 WL 4099667 (Fed. Cl. Sept. 9, 2021</a>).<a rel="noopener" target="_blank" href="https://mofocrm.lightning.force.com/lightning/r/Case/5002M00001Iy9sJQAR/view">[2]</a> Id. at *6.<a rel="noopener" target="_blank" href="https://mofocrm.lightning.force.com/lightning/r/Case/5002M00001Iy9sJQAR/view">[3]</a> <a rel="noopener" target="_blank" href="https://www.gao.gov/assets/b-418799.3.pdf">Primary Care Sols., Inc., B-418799.3 et seq., Sept. 8, 2021</a>.<a rel="noopener" target="_blank" href="https://mofocrm.lightning.force.com/lightning/r/Case/5002M00001Iy9sJQAR/view">[4]</a> The exact nature of PCS’s alternate price proposal is redacted in the decision.<a rel="noopener" target="_blank" href="https://mofocrm.lightning.force.com/lightning/r/Case/5002M00001Iy9sJQAR/view">[5]</a> <a rel="noopener" target="_blank" href="https://www.gao.gov/assets/b-419891.pdf">Marquis Sols., LLC, B-419891 et seq., Sept. 14, 2021</a>.

September 2021 Bid Protest Roundup

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