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…
December 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…
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…
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,…
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…
November 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…
October 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…
October 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: …
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.…
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,…
April 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…
March 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…
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…
December 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…
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…
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,…
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…
November 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…
October 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…
October 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: …
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.…
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,…
April 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…
March 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…
