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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
On January 13, 2017, the Department of Defense (“DoD”), General Services Administration (“GSA”), and National Aeronautics and Space Administration (“NASA”) issued a 10 U.S.C. § 2324(k)(2). Under the rule, contractors may not...more
On January 5, 2017, the Office of Federal Procurement Policy (“OFPP”) released the third memorandum in its “Myth-busting” series. The third memo found that effective debriefings help to prevent protests and that there is...more
In the three months since the U.S. Supreme Court issued its decision in Universal Health Services v. United States ex rel. Escobar, lower court decisions suggest a trend of strict interpretation of the high court’s...more
9/22/2016
/ Burden of Proof ,
Corporate Counsel ,
False Claims Act (FCA) ,
False Implied Certification Theory ,
Federal Contractors ,
Federal Pleading Requirements ,
Implied Certification ,
Material Misrepresentation ,
Materiality ,
Motion to Dismiss ,
Standard of Review ,
Universal Health Services Inc v United States ex rel Escobar