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.
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.
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:…
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.
Please join us on September 17, 2019, at 1:00 p.m. EDT as we launch a series of complimentary briefings via webinar that will serve as an extension of this blog and feature timely and practical guidance on key topics of interest.
We will host the first GovCon & Trade briefing that will highlight recent bid…
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.
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.
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.
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.