On January 8, the Government Accountability Office (GAO) sustained a pre-award bid protest filed by Bass, Berry & Sims PLC (Bass Berry), which challenged the Federal Law Enforcement Training Centers’ (FLETC or the Agency) determination to exclude the protester, UNICA-BPA JV, LLC (UNICA), from a competition when UNICA had an active SAM registration at the time of final proposal revision (FPR), but not at the time of its initial proposal submission. The decision clarifies that FAR 52.204-7, System for Award Management applies to the proposal that would bind the offeror to perform the resultant contract.Continue Reading Bid Protest Minute: GAO Decision Clarifies SAM Registration Rule
Federal Acquisition Regulations (FAR)
Bid Protest Minute: COFC Makes It Clear; SAM Registration Can Sink a Proposal
On September 10, the Court of Federal Claims (COFC) issued an opinion in Zolon PCS II, LLC v. United States, holding that the National Geospatial-Intelligence Agency (NGA or Agency) unreasonably issued a deviation from FAR 52.204-7, which requires offerors to be continuously registered in SAM.gov from the time of proposal submission through award. Continue Reading Bid Protest Minute: COFC Makes It Clear; SAM Registration Can Sink a Proposal
Welcome Clarity Regarding the Ability to Challenge Other Transaction Follow-On Production Awards
We have addressed on this blog questions relating to jurisdiction at the GAO, Court of Federal Claims (CFC), and district courts to hear suits relating to awards using the government’s Other Transaction (OT) authority. Multiple agencies now have this OT authority, which was first conceived by the principal architect of the 1958 NASA authorizing statute, Paul Dembling, who included in that legislation a catchall authorizing “other transactions as may be determined as necessary in the conduct of its work and on such terms as it may been appropriate.” Continue Reading Welcome Clarity Regarding the Ability to Challenge Other Transaction Follow-On Production Awards
FAR Council Announces Proposal to Ban Government Purchases and Use of Certain Semiconductors
On May 3, the Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) issued an Advanced Notice of Proposed Rulemaking (ANPRM) that would prohibit executive agencies from procuring electronic goods and services incorporating semiconductor products and services from certain named companies and others affiliated with the governments of U.S. adversaries. Continue Reading FAR Council Announces Proposal to Ban Government Purchases and Use of Certain Semiconductors
DHS Publishes Long-Awaited Final Rule on Controlled Unclassified Information
On June 21, the Department of Homeland Security (DHS) published a final rule to implement security measures that safeguard controlled unclassified information (CUI) from unauthorized access and disclosure and improve incident reporting. Continue Reading DHS Publishes Long-Awaited Final Rule on Controlled Unclassified Information
New Legislation Strengthens Disclosure Requirements for Potential Organizational Conflicts of Interest
On December 27, President Biden signed the Preventing Organizational Conflicts of Interest in Federal Acquisition Act into law. The legislation, ushered through Congress by a bipartisan group of backers, strengthens existing regulations around federal contractor conflict of interest mitigation and provides new requirements for agencies to follow to sniff out potential conflicts of interest. Continue Reading New Legislation Strengthens Disclosure Requirements for Potential Organizational Conflicts of Interest
Government Executive Article on Proposed Climate Reporting Rule
Following the Federal Acquisition Regulatory (FAR) Council’s proposed rule requiring federal contractors to disclose climate emissions, I was quoted in a Government Executive article offering perspective on the proposal from leaders in the contracting community.
Continue Reading Government Executive Article on Proposed Climate Reporting Rule
DOD Publishes Final Rule Redesignating Contracts Previously Awarded Under FAR Part 12 Guidelines as Commercial Item Determinations (CIDs)
The Department of Defense (DOD) recently issued a final rule implementing Section 828 of the NDAA for Fiscal Year (FY) 2018, requiring the treatment of the majority of contracts for items awarded using Federal Acquisition Regulation (FAR) part 12 acquisition procedures to serve as a prior commercial item determination (CID).
Continue Reading DOD Publishes Final Rule Redesignating Contracts Previously Awarded Under FAR Part 12 Guidelines as Commercial Item Determinations (CIDs)
Biden’s “Clean Energy” Directive’s Impact on Government Contractors
On December 8, 2021, President Biden issued Executive Order (EO) 14057 “Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability.” The EO is the administration’s most recent effort to achieve “a carbon pollution-free electricity sector by 2035 and net-zero emissions economy-wide by no later than 2050.”
Federal agencies, government suppliers, and American businesses are urged to embrace the administration’s sustainability objectives and attain cleaner and more sustainable operation standards.
Federal Sustainability Plan
The EO describes the Biden administration’s efforts to adopt green technology by focusing on five aspects.Continue Reading Biden’s “Clean Energy” Directive’s Impact on Government Contractors
The Black Hole of Protest Jurisdiction: Can I Challenge the Award of an “Other Transaction Agreement”?
While most federal procurements are conducted using the onerous regulations set forth in the Federal Acquisition Regulation (FAR) and agency supplements, agencies are increasingly relying on the more flexible, but lesser-known, Other Transaction Agreements (OTAs) to meet developmental requirements. Congress has authorized only a limited number of agencies to use this authority, which was first included in NASA’s enabling legislation to ensure NASA had the flexibility to meets its unique needs. The authority is further limited to use by “non-traditional” government contractors. It is generally restricted to prototype/development work, although agencies are authorized to enter into follow-on production contracts with OTA prototype participants.
Despite these limitations, the ability to customize intellectual property terms, among others, has led to a significant increase in the use of OTAs over the past decade. In FY20 alone, the federal government entered into OTAs worth over $16 billion, including approximately $9 billion on COVID-19-related purchases.
But before a company pursues an OTA opportunity, it is essential to understand that ability to challenge OTA awards is limited. In addition, jurisdictional questions have created considerable uncertainty for aggrieved contractors who wish to file a protest in connection with these agreements. Although pre-and post-award protests challenging FAR-based procurements can only be heard at the Government Accountability Office (GAO) or the Court of Federal Claims (COFC), recent decisions indicate that jurisdiction to hear OTA challenges at both is extremely limited. And in the past year, U.S. district courts have held that they too have limited jurisdiction that hinges on whether the issue involves a procurement contract—either current or future.Continue Reading The Black Hole of Protest Jurisdiction: Can I Challenge the Award of an “Other Transaction Agreement”?