By failing to object to solicitation terms before the close of bidding, a protester typically waives those objections in a post-award bid before the Court of Federal Claims (COFC). An exception exists, however, where a protester filed a timely pre-award agency-level protest challenging patent errors or ambiguities.

But, as powerfully illustrated by the COFC’s decision in Harmonia Holdings Group, LLC v. United States, this exception is limited. In that case, Harmonia, one of the offerors on the procurement, initially brought an agency-level protest to challenge the U.S. Customs and Border Protection’s (CBP) issuance of two amendments to the solicitation, arguing that the agency improperly denied offerors the opportunity to revise their proposals in response to these amendments. CBP denied the protest.


Continue Reading

The Department of Defense (DoD) has now finalized its new cybersecurity standards, which we discussed last year.  The new cybersecurity standards, which are intended to protect controlled unclassified information, will be implemented by the Cyber Maturity Model Certification program (CMMC), which was finalized last week after multiple draft iterations.  CMMC Version 1.0 is available here.

CMMC Will Require Third-Party Certification of Cybersecurity Maturity Level

Among other changes from the prior cybersecurity compliance regime, this new approach will require that to be eligible for DoD awards, contractors must be certified by a third-party commercial certification organization to have achieved one of five cybersecurity maturity levels, with higher levels representing more advanced cybersecurity. Later this year, DoD solicitations will contain the applicable CMMC requirement, and contractors failing to meet this standard will be unable to bid. The requirements will apply to all parties within the supply chain (although subcontractors may not have to meet as high a CMMC standard as the prime contractor, depending on their scope of work).


Continue Reading

The GovCon 2020 Small Business Summit will take place in less than two months in Tampa. Todd Overman will be a panelist with industry representatives discussing the importance of the Contractor Performance Assessment Reporting System (CPARS) for growing companies, and Richard Arnholt will moderate a panel with several mid-tier firm representatives on the use joint

I recently commented to Law360 on the findings of the ISDC’s report on suspension and debarment activity in FY2018.  The report, which is available here, shows an increased used of tools such as proactive engagement by contractors, pre-notice letters, and administrative agreements by suspending and debarring officials, all of which indicate an increased willingness

The government fiscal year runs from October 1 to September 30, and at the end of each fiscal year federal agencies rush to award contracts and commit funding before that funding expires. As a result, our Government Contracts Practice is typically very busy between September and November filing protests of awards or defending awards to our clients, often filing detailed challenges to awards on very short notice, typically 10 days or less.

This year has been no exception, and we have been grateful that our clients have relied on us to file or defend a number of protests at the Government Accountability Office (GAO) and the Court of Federal Claims related to awards or solicitations issued by the Army, the Navy, the CIA, and the State Department, among others agencies that together total well over $1 billion.

Three Key Issues for Government Contractors to Remember About Protests

While some protests are still pending, in the month of October alone the government agreed to take “corrective action” in five procurements as a result of the protests we filed, giving our clients another shot at important contracts in four post-award protests and agreeing to remedy defects in a solicitation after a pre-award protest. The fact that we continue to see a significant percentage of protests being resolved through corrective action highlights three issues all government contractors should keep in mind.


Continue Reading

Given the continued high volume of mergers and acquisitions (M&A) transactions in the federal marketplace, buyers and sellers need to be aware of the developing body of case law at Government Accountability Office (GAO) and Court of Federal Claims (COFC) regarding how acquisitions are impacting pending bids and the steps that parties can take to protect those bids in certain situations.

This post will highlight recent cases and provide practical guidance on diligence, deal timing and communications with government customers regarding transactions. Additionally, this post will outline bid protest decisions involving asset deals and corporate reorganizations, and their impact on pending bids.


Continue Reading

As we noted in a blog post in December 2016, “LPTA Out, Fixed Price Contracts In,” the Department of Defense (DoD) has been moving to restrict the Lowest Price Technically Acceptable (LPTA) evaluation methodology, which requires award to the lowest-price offeror that meets the minimum requirements regardless of whether more expensive solutions are optimal.  Further, in 2016 legislation went into effect requiring that limitations on the use of LPTA evaluations be codified in the Defense Federal Acquisition Regulation Supplement (DFARS).

New Restrictions on LPTA Evaluations

On September 26, 2019, DoD issued a final rule that amends the DFARS to implement that legislation.  The new rule, which was mandated by Section 813 of the National Defense Authorization Act (NDAA) for 2017, as amended by section 822 of the NDAA for 2018, establishes that the LPTA evaluation methodology shall only be used when the following conditions are met:
Continue Reading

I am excited to be presenting a training seminar titled, “Trends and Changes in Federal Contracting FY 20” for the Florida Procurement Technical Assistance Center (Florida PTAC).

The interactive seminar will provide insight into the world of federal government contracting for Fiscal Year 2020 and new initiatives that will impact federal businesses in the next 12 months.


Continue Reading

At the end of June, the U.S. Supreme Court issued an important Freedom of Information Act (FOIA) decision that decreases the burden on contractors seeking to protect confidential information.  As most contractors are aware, FOIA requires that, upon request, the government disclose information in its possession, unless an exemption applies.  This presents a significant risk for contractors as they regularly provide highly sensitive information to the government in the course of obtaining or performing federal contracts and grants.

Fortunately, that type of information falls within the scope of the exemption at 5 U.S.C. 552(b)(4) (Exemption 4), which shields from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”  After receiving notice that a party is seeking the public release of such information, in order to protect it, contractors previously had to demonstrate that the information was customarily kept private and that the government agreed, implicitly or expressly, to treat it as confidential.


Continue Reading