If a company has one or more Organizational Conflicts of Interest (“OCIs”), its ability to compete for (and perform) a government contract in a fair and equitable manner is inherently called into question. In the context of a bid protest, this may be one of the most overlooked but “sharpest” grounds that may be available to a protester. In short, an OCI is an instance where “because of other activities or relationships with other persons [or entities], a person [or entity] is unable or potentially unable to render impartial assistance or advice to the Government, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.” FAR 2.101. Understanding the three types of OCIs and the situations in which each typically arises is critical in order for disappointed offerors to execute this riposte in the face of a flawed contract award.
Continue Reading The GAO Sustains Protest Based on Awardee’s Organizational Conflicts of Interest—An Important Lesson for All Contractors
DoD Issues Proposed Rule on Enhanced Post-Award Debriefing Rights
As you may recall, Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (FY 2018 NDAA required the US Department of Defense (DoD) to draft regulations to establish comprehensive post-award debriefing rights for disappointed offerors involved in applicable DoD procurements. On March 22, 2018, the DoD responded by issuing a Class Deviation that implemented certain FY 2018 NDAA requirements—i.e., those requirements affording disappointed offerors the opportunity to submit additional written questions to the cognizant DoD agency within two business days of its agency debriefing conducted in accordance with FAR 15.506(d). In such circumstances, the cognizant DoD agency must provide written responses to the questions within five business days after receipt of the questions. Moreover, if a disappointed offeror chooses to submit timely post-debriefing questions, the debriefing does not conclude—and thus the disappointed offeror’s GAO protest “clock” does not begin to run—until the agency provides its written response. On May 20, 2021, the DoD published a Proposed Rule to amend the Defense Federal Acquisition Regulation Supplement to (1) codify the March 2018 Class Deviation and (2) implement the additional post-award debriefing requirements from the FY 2018 NDAA.
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Changes to DoD Regulations Banning Chinese Telecommunications Equipment and Services Offer Potential Opportunities for Contractors
The Department of Defense (DoD) has finalized regulations prohibiting the use of telecommunications equipment or services from Chinese entities or from entities that are owned or controlled by either the People’s Republic of China or the Russian Federation. The Final Rule, which went into effect on Friday, January 15, 2021, prohibits the DoD from buying or using banned telecommunications equipment and services that are a “substantial or essential component of any system” or that constitute a “critical technology.”
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Dear Magic 8-Ball—Should I Protest? Critical Protest Implications Following the Federal Circuit’s Expansion of Blue & Gold’s Waiver Rule in Inserso
Relying upon the cryptic answers provided by a Magic 8-Ball when deciding to file a protest at the United States Court of Federal Claims (COFC) may sound farcical, but a recent decision by a split panel of the United States Court of Appeals for the Federal Circuit may render this method commonplace. In Inserso Corporation v. United States, the Federal Circuit held that the Blue & Gold waiver rule regarding the timeliness of protests against patent solicitation errors barred Inserso’s opportunity to protest the Defense Information Systems Agency’s (DISA’s) allegedly improper disclosure of total evaluated pricing and previously unreleased evaluation methodology during debriefings with certain offerors. In what can only be described as requiring an offeror to possess preternatural foresight of all potential agency errors in a procurement, the Federal Circuit reasoned that Inserso should have known the type of information it challenged was likely to be disclosed in the debriefings. In effect, the majority’s decision unmoors the venerable Blue & Gold waiver rule from its narrow application by requiring – remarkably – that contractors protest non-patent, non-solicitation issues before the deadline for receipt of proposals. Yet the majority’s opinion isn’t the only feature of this decision that should raise contractors’ eyebrows. As noted below, the full-throated dissent questions, inter alia, the continuing validity of Blue & Gold.Continue Reading Dear Magic 8-Ball—Should I Protest? Critical Protest Implications Following the Federal Circuit’s Expansion of Blue & Gold’s Waiver Rule in Inserso
DoD Issues Draft Guidance for Contractor Reimbursement Under Section 3610 of the CARES Act
Recently, the Defense Pricing and Contracting (“DPC”) unit under the Secretary of Defense issued draft implementation guidance for Department of Defense (“DoD”) contracting officers tasked with assessing contractor requests for reimbursement in accordance with Section 3610 of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act and applying the recent cost principle implemented by DFARS Class Deviation 2020-O0013—topics covered in depth by this blog. This draft guidance was first alluded to in the May 1, 2020, memorandum from Kim Herrington, the DPC Acting Director, to address “the reimbursement process from requesting the contracting officer’s determination of an ‘affected contractor’ to providing a checklist to guide collection[ ] and evaluation of costs from the [contractor] seeking reimbursement [under Section 3610].” Composed of general reimbursement implementation guidance along with two attachments—a checklist for review of a contractor’s reimbursement request and instructions for using the checklist—the DPC’s draft is, to date, the most comprehensive guidance addressing contractor requests for reimbursement under Section 3610 since the DFARS Class Deviation 2020-O0013 issued on April 8. The final guidance is expected to be released shortly.
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Slow and Steady Doesn’t Always Win the (Acquisition) Race: The CODER Act Aims to Transform DoD Software Acquisition
As the frequency and sophistication of existential threats to national security over the past decade have drastically increased, the United States’ reliance on software to identify threats, rapidly share information, and manage its military resources has increased. Accordingly, the federal government’s ability to timely develop, procure, and deploy software to the field has been—and continues to be—a critical component of national security. Notwithstanding the growing importance of software to national security, the Department of Defense (DoD) software-acquisition process mirrors the lengthy, inflexible process typically reserved for the acquisition of major weapon systems. As a result, the DoD’s software development and acquisition cycles are significantly longer for their commercial counterparts, thus affecting the DoD’s ability to deliver timely solutions to users and rapidly respond to urgent threats.
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Task and Delivery Order Bid Protests Are Back in Business at the GAO
If you’ve recently considered filing a bid protest, you may have found yourself out of luck due to the expiration of the U.S. Government Accountability Office’s (“GAO”) statutory jurisdiction to hear certain protests involving task and delivery orders. Since 2008, the GAO has been the exclusive forum for prospective contractors to assert a protest challenging task order solicitations and awards with an anticipated value of $10 million or more, which have historically accounted for approximately 10% of protests filed at the GAO since that time. However, the GAO’s authority to hear protests involving civilian agency task orders – aside from those arguing that the order increases the scope, period, or maximum value of the underlying contract – expired on September 30, 2016, when Congress failed to pass legislation that would have extended the GAO’s task order protest jurisdiction.
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