Government Contracts Monitor

Exemption 4: Protection of Confidential Information - The Ground May be Shifting

April 10, 2019

The Supreme Court recently granted a petition for writ of certiorari over (that is, agreed to review) an Eight Circuit decision involving Exemption 4 of the Freedom of Information Act (“FOIA”).  What is Exemption 4?  It is the exemption that protects from public disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Why is this…

Release of Proprietary Information - Tainted Procurement?

December 11, 2018

What happens when a competitor receives proprietary information during a procurement? Will an offeror whose information has been improperly disclosed succeed in a protest? The answer is . . . it depends.  Most recently, in DynCorp International, LLC,  the Court of Appeals for the Federal Circuit held that an agency had a reasonable basis for not disqualifying a competitor that had received…

The Challenge in Challenging A CICA Override - Know Your Facts

November 28, 2018

Under the Competition in Contracting Act’s (CICA’s) automatic stay, agencies, upon receiving notice that the award is being protested, must “direct the contractor to cease performance under the contract and to suspend any related activities that may result in additional obligations being incurred by the United States under that contract.” 31 U.S.C. § 3553(d)(3)(A)(ii)(2). Although CICA gives the…

See-Saw: The Number Of Appeals May Be Down, But Contractor Success Is On The Rise

November 14, 2018

The Armed Services Board of Contract Appeals (ASBCA) released its annual report last month, describing its case activity for FY 2018. Interestingly, of the 139 cases decided on the merits, the Board agreed with the contractor/appellant 69 percent of the time.  And that’s not all.  In most of the 420 cases dismissed by the Board the case was disposed of because the parties had reached a settlement,…

Federal Circuit Overrules COFC's "Narrowly Targeted" Review Standard; Corrective Action Challenges Just Became a Lot Harder

November 7, 2018

As we have discussed, a significant percentage of bid protests end up in an agency taking some form of corrective action, either entirely voluntarily based upon the agency’s internal assessment, or as the result of external pressures – formal or informal – from the Government Accountability Office (GAO), the Department of Justice or a Court.  A critical issue in such situations is the scope of the…

Happy Holidays!

December 21, 2017