Procurement Playbook

What do you do when the Agency has made a mistake in the solicitation for a contract requirement or not selected your company for award of the contract?  Most contractors think of filing a protest to Government Accountability Office (GAO) or the Court of Federal Claims (COFC) and therefore do not avail themselves of the secret weapon in bid protests—an agency protest.

Smart contractors utilize agency protests which are, cheaper, quicker, not revealed to other offerors, and have little downside on pre-award issues.  While there are risks, an agency protest provides another protest weapon to gain an edge for a contractor in the fight for contracts.

After more than five years in the making, DoD, GSA, and NASA recently issued a final rule amending the Federal Acquisition Regulation (FAR) to require contractors and subcontractors to report to the Government-Industry Data Exchange Program (GIDEP) certain counterfeit or suspect counterfeit parts and “common items” with major or critical nonconformances.  Read More…

On Halloween Day of 2019, President Trump signed Executive Order 13897, titled “Improving Federal Contractor Operations by Revoking Executive Order 13495.” (84 Fed. Reg. 59709 (Oct. 31, 2019)). This Order revoked, effective immediately, Executive Order 13495 on “Nondisplacement of Qualified Workers Under Service Contracts,” which was issued by President Obama. Read More…

The Government Accountability Office (GAO) recently issued a decision holding that a bidder’s failure to “diligently pursue” its request for a debriefing rendered its protest untimely.
GAO’s bid protest regulations are strict about the time in which a contractor can file a protest. If the protest is alleging improprieties in a solicitation it must be filed prior to bid opening or the time established for receipt of proposals. Read More…

On October 1, 2019, the Department of Defense (DoD) issued a final rule (DFARS 215.101-2-70) that implemented limitations on its ability to use the Lowest Price Technically Acceptable (LPTA) method of procurement.
In a LPTA procurement, a contact is awarded to the offeror with the lowest price who submitted a technically acceptable proposal. Read More…

In Meridian Engineering Co. v. U.S., 2019 WL 4594233, Case No. 11-492C (September 23, 2019), the U.S. Court of Federal Claims (“COFC”) decided a contractor was entitled to damages for cumulative delays on a construction project with the Army Corps of Engineers (“Government” or “Army”) to include costs due to flooding.  Read More…

Despite acknowledging that an “objective inquiry” and not “subject beliefs” is appropriate to determine the validity of a default termination, the Court of Federal Claims ruled that the government’s default termination was invalid based in part on the Contracting Officer Representative’s (COR) “hostility” towards the contractor and “history of dishonesty” during the Project.  Read More…

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As anticipated, the Trump Administration has continued to build on its emphasis for domestic preference requirements on projects that are subject to the Buy American Act – both for projects that are directly funded by the federal government, or pursuant to the Administration’s January 31, 2019 Executive Order, “Strengthening Buy American Preferences for Infrastructure Projects,” potentially also to projects that are indirectly funded by the government.   The Administration’s latest efforts in this area have come in the form of a July 15, 2019 Executive Order, “Maximizing Use of American-Made, Goods, Products, and Materials.”  While this most recent Executive Order on this subject contains a number of proposed changes, which will need to be implemented through regulations, it proposes two changes that may have significant ramifications for the construction industry.  This alert summarizes the key considerations for construction contractors.

Cybersecurity compliance has become an increasingly trending and important area for government review, especially by the Department of Defense (DoD), placing an emphasis on defense contractors and the government alike in ensuring that sensitive government data residing on nongovernment systems are protected from third party intrusion and disclosure.  Indeed, recent cases in False Claims Act litigation have demonstrated just how serious a contractor’s noncompliance with cybersecurity requirements can be.  For example, in U.S. ex rel. Markus v. Aerojet Rocketdyne Holdings, Inc., the court, in denying the defendant’s motion to dismiss, allowed a non-intervened qui tam complaint to proceed, where the relator alleged that the defendant’s systemic noncompliance with contractual cybersecurity standards resulted in the submission of false claims that the relator claimed warranted the imposition of treble damages that could far exceed the value of the contracts themselves.  2019 WL 2024595 (E.D. Cal. May 8, 2019).  Notably, the court held that the relator had sufficiently pled violations of the False Claims Act even though, as the defendant argued, the regulations in question had recently been issued, frequently amended, and some agency guidance could reasonably be construed as relaxing any requirements.  Id.