Government Contracts MonitorProcurement News and AnalysisRelease 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… GAO Bid Protests - FY18 Protest Statistics (Overall Effectiveness at 44%; Sustains at 14%), and a Look AheadDecember 2, 2018 The Government Accountability Office (GAO) last week issued its Annual Report to Congress on bid protests during Fiscal Year 2018 (FY18; 10/1/17-9/30/18). The total number of bid protests filed (including supplemental protests, cost claims & reconsideration requests) increased marginally by less than 1% (2,607 vs. 2,596 protests in FY17 – an increase of 11 protests). GAO closed 2,642 protests… The Challenge in Challenging A CICA Override - Know Your FactsNovember 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 RiseNovember 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 HarderNovember 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… FAR Change Clarifies that Offerors (Including Joint Ventures) Must Register in SAM Before Submitting OffersNovember 4, 2018 The Federal Acquisition Regulation (FAR) has been amended to make clear that offerors, including joint ventures, must be registered and active in the System for Award Management (SAM) prior to submitting bids or offers responding to Federal Government solicitations. Such registration includes completing the standard annual Representations and Certifications (Reps & Certs) required by most… Short Take - Minimum Wage Increases to $10.60, Effective January 1, 2019October 24, 2018 The Department of Labor (DOL) recently published a Notice [83 Fed. Reg. 44906 (9/4/18)] announcing that, effective January 1, 2019, the minimum hourly wage required to be paid to workers performing work on or in connection with covered federal contracts, per Executive Order 13658, will increase from the present $10.35 to $10.60. The minimum hourly tipped wage will increase from $7.25 to $7.40. By… The Cardinal Change - A Dramatic But Important RemedyOctober 17, 2018 All experienced government contractors know that it is often impossible to predict (and therefore to price), the wide range of risks involved in performing federal government contracts. When a dramatic change occurs, it can sometimes be compensable as a cardinal change - a change that occurs when a contractor is directed to perform additional work beyond the scope of the contract. Case in point: … Are there Cybersecurity Risks in Your Supply Chain?October 9, 2018 By now we all know that the Federal Government has dramatically increased its efforts to reduce threats to cybersecurity: witness a case in the Court of Federal Claims (COFC) where the Social Security Administration (SSA), in acquiring new printers, was determined to avoid supply chain risks it suspected were present in a bidder’s offer. The bidder protested, but the COFC agreed with the agency.… FY2019 NDAA Seeks to Change Definition of "Subcontract"May 10, 2018 On May 7th, the House Armed Services Committee (HASC) made public H.R. 5515, its version of the FY2019 National Defense Authorization Act (NDAA). One of the provisions that is already generating buzz is Section 832, which would create a “precise” definition of "subcontract" in title 41, United States Code, and incorporate the new definition in title 10, United States Code. As noted by the HASC,… GAO Mandates Bid Protest E-Filing and $350 Filing Fee Starting May 1, 2018April 12, 2018 The Government Accountability Office (GAO) is requiring that all new bid protests filed starting May 1, 2018, be filed electronically, using GAO’s new Electronic Protest Docketing System (EPDS). GAO also is requiring payment of a $350 filing fee at the time of filing as a condition to acceptance and processing of a new protest. These new requirements apply to all new bid protests, except protests… DoD Enhances Post-Award Debriefing RightsMarch 29, 2018 Last Monday, the Department of Defense (DoD) Director of Defense Pricing / Defense Procurement and Acquisition Policy issued a class deviation to implement paragraph (b) and (c) of Section 818 of the National Defense Authorization Act (NDAA) for Fiscal Year 2018. That Section of the NDAA amends 10 U.S.C. 2305(b)(5) and 31 U.S.C. 3553(d)(4) to provide enhanced post-award debriefing rights for… |
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