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.


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Bass, Berry & Sims attorney Richard Arnholt provided insight into delays to the procurement timeline in the Department of Defense’s (DoD) important $10 billion "JEDI" cloud procurement due to pending and potential protests.I recently provided insight into delays to the procurement timeline in the Department of Defense’s (DoD) important $10 billion “JEDI” cloud procurement due to pending and potential protests.

In a recent court filing, DoD said it would not award the contract until at least July 19, but the resolution of Oracle’s pending suit, as well as other potential related actions, may push the award and implementation dates out past this summer.


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On February 15, 2019, the Government Accountability Office (GAO) issued a consequential decision for those contractors who will compete for federal contracts as part of a mentor-protégé joint venture.  In Ekagra Partners, LLC, B-408685.18, Feb. 15, 2019, the GAO partially sustained the protest on the basis of an improper limitation on the submission of teaming agreement member past performance, and partially denied the protest finding that agencies can limit the number of past performance experience projects that can be submitted in a mentor-protégé joint venture’s proposal in reliance on a large business mentor firm.

In Ekagra, the protestor challenged the terms of the request for proposals (RFP) seeking to award additional Multiple Award Task Order Contracts (MATOCs) under the General Services Administration’s (GSA) One Acquisition Solution for Integrated Services (OASIS) Small Business (SB) Pool 1.  OASIS SB Pool 1 MATOC covers a wide variety of professional services including, but not limited to, consulting, logistics, engineering, scientific, management consulting, project management, and other professional services.


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Members of the Bass, Berry & Sims Government Contracts team successfully represented B&O JV in multiple actions brought by a competitor to challenge the awarding of a contract to our client. B&O JV is an 8(a) small business joint venture based in Dallas, TX.

In October 2017, the Federal Law Enforcement Training Center (FLETC) issued a request for proposal (RFP) for dorm maintenance services at its training facility in Glynco, Georgia, as a competitive 8(a) set-aside.  The important services support training of federal law enforcement officers and FLETC has repeatedly determined that the services cannot be interrupted.

The incumbent, SRM Group, Inc., was not eligible to compete for the contract, having graduated from the 8(a) program in 2013, but formed an 8(a) joint venture, Safeguard, which did compete for the work.  Bass, Berry & Sims’ client, B&O JV, was ultimately awarded that contract and has been performing the work since October 1, 2018.


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This year’s annual GAO Bid Protest Report to Congress, which was submitted on November 27, shows that the number of protests remained approximately the same as last fiscal year – up to 2,607 versus 2,596 for FY17. But, for attorneys who regularly practice before the GAO, there are some trends that may make filing an initial protest at the Court of Federal Claims (COFC) a more attractive option.

The overall sustain rate at GAO for FY18 was 15%, down slightly from FY17 (17%). But, when reviewing the sustain rate, it is important to keep in mind that GAO issued only 622 bid protest merit decisions in FY18, and that the “effectiveness rate,” which the GAO defines as the protester obtaining some form of relief from the agency, was 44%.

While the effectiveness rate continues to be over 40%, the FY18 report shows a precipitous decline in the number of bid protest hearings at GAO over the past five years. In FY14, hearings were held in 42 fully developed cases, or 4.7%.  In FY18, that dropped to only five cases, or .51%.


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On July 31, 2018, the Interagency Suspension and Debarment Committee delivered its annual report to Congress on the status of the suspension and debarment system.  The report shows a continued high level of activity relative to the last decade and serves as a reminder that exclusion from the federal marketplace continues to be a risk for contractors that do not “cut square corners” with the government.

Decline in Suspensions May Indicate an Increase of Proactive Communication Between Contractors and Officials

The FY2017 report shows a modest decrease in the number of suspensions, proposed debarments, and debarments from the last fiscal year, a trend that has continued since the high-water mark set in FY2014.  But it also notes that the number of exclusions in FY2017, over 3,000, are almost double those reported when the Committee first began formally tracking the data in FY2009, approximately 1,800.


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Bass, Berry & Sims attorney Richard Arnholt was quoted in an article regarding a little-known provision allowing the government to continue working with companies excluded from the government marketplace. Companies who have received such waivers include IBM, Boeing and BP along with 19 others to fulfill specific contracts that the government has deemed necessary. Officials distributing these waivers are required to notify the General Services Administration (GSA) which posts the information to the public. Since the law was passed in 1981, 30 waivers have been provided to the GSA. The waivers can be used for companies that otherwise are prohibited from bidding on future contracts or seeking extensions on existing contracts.


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Bass, Berry & Sims attorney Richard Arnholt provided comments on the questionable communications related to the bidding process for two separate contracts awarded by the St. Louis Economic Development Partnership. In both cases, email exchanges between individuals in the St. Louis county executive and economic partnership offices and a top donor to the county executive’s campaign revealed that the donor requested feedback on his proposal prior to formally submitting the bid. The Economic Development Partnership subsequently awarded the two government contracts to the donor’s company.

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In early April, the GAO issued a final rule revising the existing bid protest process—the major revisions being the introduction of an Electronic Protest Docketing System (EPDS) and a protest filing fee. When the rule takes effect on May 1, 2018, the new EPDS will launch as the GAO’s electronic filing and document dissemination system for bid protests.

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