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New Debriefing Rules in Effect for DOD Contractors

As we discussed in an earlier post about the NDAA for FY 2018, one of the most significant changes with respect to procurement issues may be related to the DOD’s conduct of debriefings. Perhaps missed in the discussions of a...more

Pilot Testing of GAO’s New Filing System Currently Underway

Earlier this month, the GAO announced that its long-awaited electronic protest docketing system (EPDS) is now operational and undergoing limited pilot testing with certain designated protests filed since February 1. EPDS is...more

2/15/2018  /  Bid Protests , GAO

The Government Is Shut Down: What About My Protest?

With the 2018 Government shutdown entering the work week, any contractors with ongoing or potential protests may be wondering what the effect of the shutdown will be on the protest process....more

Contractors Should Prepare For Potential Shutdown

As Congress and the Administration appear to be careening toward a potential government shutdown – whether on Friday January 19 or once another short-term continuing resolution expires – it is a good time for government...more

Snowmen In August: Strict Compliance And Government Waiver of Contract Requirements

The Government “can engage a contractor to make snowmen in August, if [it spells] it out clearly [in a contract].” Rixon Electronics, Inc. v. United States, 536 F.2d 1345, 1351 (Ct. Cl. 1976). And the contractor generally...more

DOD Protest Reform: Initial Thoughts on the Congressionally-Mandated RAND Report

The RAND Corporation’s much-awaited report assessing bid protests of Department of Defense (DOD) procurements is out. The report fulfills a Congressional mandate in the National Defense Authorization Act (NDAA) for FY 2017...more

Organizational Conflicts of Interest (Post-Award Protest Primer #13)

Today we’ll consider Organizational Conflicts of Interest (OCIs) as a ground of protest. The Federal Acquisition Regulation (FAR) defines an OCI as a situation where “because of other activities or relationships with other...more

Discussions Vs. Clarifications Vs. Communications, And Agency Discretion (Post-Award Protest Primer #12)

In our last post, we looked at the most common protest grounds related to discussions: lack of meaningful discussions, misleading discussions, and unequal discussions. Today we’ll discuss how discussions differ from...more

What Contractors Need to Know about the Proposed FY 2018 NDAA

On November 9, 2017, Congress released its conference report on the FY 2018 National Defense Authorization Act. The NDAA coming out of the conference committee contains numerous provisions that would affect government...more

Non-Meaningful, Misleading, and Unequal Discussions

Today’s post is the first of two installments on protest grounds related to discussions. This post will focus on the requirement that discussions be meaningful and not misleading, and treat offerors equally. The next post...more

Unstated Evaluation Criteria And Waived Solicitation Requirements (Bid Protest Primer #10)

This week we’ll discuss two protest arguments that are, in some ways, two sides of the same coin: unstated evaluation criteria and waived or relaxed solicitation requirements. In each, the focus of the protest is on what...more

10/25/2017  /  Ambiguous , Bid Protests , GAO , Solicitation

FY 2018 Forecasts: Cloudy Skies for False Claims and Storms on the Protest Horizon?

This is the first in a short series of forecasts from our Government Contracts partners on things to watch for in government contracts in Fiscal Year 2018. For more in-depth discussions of current events and trends, please...more

Latent Ambiguities and Non-Apparent Solicitation Defects (Post-Award Protest Primer #9)

Having discussed protest grounds you cannot or should not raise, we turn now to the first in a series of grounds that could result in a sustained protest: Latent Ambiguities and Non-Apparent Solicitation Defects....more

9/28/2017  /  Ambiguous , Bid Protests , GAO , Solicitation

Substantively Non-Protestable Issues (Post-Award Protest Primer #8)

In our last post, we discussed a few procedural rules that can exclude an otherwise meritorious ground from protest. There are also a number of substantive issues that the GAO’s rules exclude from review. See 4 C.F.R. §...more

Procedurally Non-Protestable Issues (Post-Award Protest Primer #7)

Before diving into the various protest grounds that may result in a sustained protest at the GAO, let’s look at some sure losers. These are issues that are not protestable and would likely result in a quick dismissal. This...more

Stays of Contract Award and Performance (Pre-Award Protest Primer #6)

Today we’ll discuss stays of award and performance during the pendency of a bid protest. There are two kinds of protest stays: pre-award stays and post-award stays. Although the former are outside the scope of this primer,...more

8/17/2017  /  Bid Protests , CICA , COFC , GAO

GAO Protective Orders (Post-Award Protest Primer #5)

Post-award protests generally involve arguments about confidential, source-selection sensitive information – proprietary bid and proposal material, past performance data, cost and pricing information, nonpublic agency...more

8/7/2017  /  Bid Protests , GAO , Protective Orders

Bid Protest Remedies (Post-Award Protest Primer #4)

Part 4: Bid Protest Remedies - We’ve discussed debriefings and the timelines and timeliness rules that apply to post-award protests. Today we’ll discuss remedies. If you file a protest to challenge a contract award and...more

7/21/2017  /  Bid Protests , GAO , Solicitation

Post-Award Protest Primer: Part 3

Part 3: Timeliness and Timelines - Now that we’ve discussed the award letter and debriefings, we’ll move on to next steps: timeliness of initial protest filings and the protest timeline. In the context of all post-award...more

7/14/2017  /  Bid Protests , Debriefing , GAO

Post-Award Protest Primer: Part 2

Part 2: Debriefings - You just received an email: “We appreciate your interest in the XYZ procurement. The Agency determined that your proposal did not represent the best value to the Government. Award has been made to...more

Post-Award Protest Primer Series: Part 1

Part 1: An Introduction to Bid Protests - Welcome to the first in a new series of articles on post-award bid protests! A lot of misunderstandings and misinformation surround the bid protest, and traps abound for the wary...more

GSA Seeks Input On Repeal, Replacement, and Modification of Policies and Regulations

On Tuesday, May 30, 2017, the GSA issued a request for comments seeking “input on acquisition regulations, policies, standards, business practices and guidance issued by GSA across all of its acquisition, disposal, and sales...more

ASBCA Throws DCAA Another Brushback Pitch

In an April 2017 decision, the Armed Services Board of Contract Appeals (ASBCA) once again rejected the position of the Defense Contract Audit Agency (DCAA) that a cost or type of cost for which allowability depends on the...more

Protecting Privilege In FCA Cases From Start To Finish

The False Claims Act has been a hot area of litigation for years, and current statistics signal that this trend will not end any time soon. With lucrative rewards for whistleblowers and the possibility of treble damages and...more

Contracting (or Subcontracting) with DLA? Check for Counterfeit Parts Clauses

In the past several years, there has been an ongoing focus on avoiding and detecting counterfeit parts, culminating in the issuance of new DFARS sections and contract clauses in May 2014 concerning Contractors’ Counterfeit...more

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