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Adam Bartolanzo is an associate in the Government Contracts, Investigations and International Trade Practice Group in the firm’s Washington, D.C. office.

The implications of the Federal Circuit’s Blue & Gold waiver rule – pursuant to which a disappointed offeror waives any protest grounds it may have had to the terms of a solicitation that the offeror could have, but failed to, raise pre-award – continues to reverberate in unexpected ways when applied to real-life procurement situations.  In VS2, LLC v. United States, — Fed. Cl. — (Fed. Cl. 2021), the Court of Federal Claims (“COFC”) declined to further expand the Blue & Gold waiver rule to all challenges to a procurement action that could have been made pre-award, signaling that the edge of the Blue & Gold sword may be starting to dull and its reach limited.

Continue Reading “You Got To Know When To Protest” Part III: The Court Of Federal Claims Declines To Expand Blue & Gold Waiver Rule For Bid Protests “Any Further Than The Federal Circuit Already Has”

Many small businesses learn the hard way that a “bid protest” and a “size protest” differ in much more than name only. Whereas generally a “bid protest” challenges agency action taken in connection with a procurement and can be timely brought at the Government Accountability Office (“GAO”) or in the U.S. Court of Federal Claims (“COFC”) after award, a “size protest” challenges an offeror’s eligibility as “small” for a small business set-aside and must be filed with the U.S. Small Business Administration (“SBA”) within 5 days of contract award; otherwise, a disappointed offeror will forfeit its right to challenge the awardee’s size. While this consequential distinction may seem clear in a vacuum, a recent decision by the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) demonstrates that distinguishing between a “bid protest” and a “size protest” may not always be so easy. Instead, the Federal Circuit’s decision leaves open the possibility that even when a timely size protest was not filed with the SBA, a disappointed offeror still may be able to challenge the contracting officer’s failure to refer an awardee of a small business set-aside to the SBA for a size status determination by filing a bid protest at the COFC.


Continue Reading “What’s In A Name?”: Federal Circuit Holds Claims Court Blurred Distinction Between ‘Size Protests’ And ‘Bid Protests’ In Dismissal For Failure To Exhaust Administrative Remedies

In our previous blog article, we discussed the Federal Circuit’s decision in Inserso Corp. v. United States, 961 F.3d 1343 (Fed. Cir. 2020), in which a split panel held a protest cannot be brought in the U.S. Court of Federal Claims (“COFC”) if, before the time of proposal submission, “the law and facts” made it reasonably known to the contractor that a procurement error was likely to occur under the terms of the solicitation.  We analogized the Inserso decision’s application of this waiver rule – known in government contracts law parlance as the Blue & Gold rule – as creating a kind of gambling transaction for government contractors, forcing them to predict what “law” and what “facts” can reasonably be known before proposal submission, lest they risk forfeiting any opportunity for challenging an erroneous procurement decision based on that “law” and those “facts.”  In our prior posting, we suggested that Inserso seems to advise offerors to adopt a fairly expansive approach in assessing whether the available “law and facts” merit the filing of an early protest.  To wait is to risk the dismissal of your protest; to file may result in otherwise avoidable legal fees and a dismissal of your protest as premature, but – in that event – you will still be “in the game.”
Continue Reading “You Got To Know When To Protest” Part II: Federal Circuit Holds Blue & Gold Waiver Rule For Bid Protests Inapplicable When Pre-Award Objection Would Have Been “Futile”

You got to know when to hold ‘em,
Know when to fold ‘em,
Know when to walk way,
And know when to run.

Such is the advice of the unnamed gambler from the late Kenny Rogers’ 1978 hit single, “The Gambler.”  While the eponymous hero of that song may have believed his advice to be sound, there remains the undeniable fact that regardless of whatever skill you may have “out of readin’ people’s faces,” there always will be an element of chance to whether you will win at the table.  You can never know when to hold ‘em or when to fold ‘em a hundred percent of the time.  More often than not, for the casual card player, luck is the determinative factor.  Indeed, it is the risk of not really knowing whether “every hand’s a winner” or “every hand’s a loser” that makes the game exciting in the first place.
Continue Reading “You Got To Know When To Protest”: Federal Circuit’s Inserso Decision Stretches the Blue & Gold Waiver Rule For Bid Protests To New Lengths

To further assist the contractor community with the effects of the unprecedented Coronavirus Disease 2019 (COVID-19), the U.S. Department of Defense (DoD) issued on April 8, 2020 a Class Deviation authorizing contracting officers to use a new clause – DFARS 231.205-79, CARES Act Section 3610 Implementation – to address contractor reimbursement under Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act (Pub. L. 116-136).  Section 3610 allows agencies to reimburse paid leave, including sick leave, that a contractor provides to keep its employees or subcontractors in a ready state, including to protect the life and safety of Government and contractor personnel, during the COVID-19 pandemic.  Paid leave is reimbursable at the contractor’s minimum billing rates under its contracts, and may be allowed for up to an average of 40 hours per week.
Continue Reading DoD Issues Class Deviation to Address Contractor Reimbursement for Paid Leave Required to Maintain a Mission-Ready Workforce During the COVID-19 Outbreak Pursuant to Section 3610 of the CARES Act

On June 24, 2019, the Supreme Court ruled that Exemption 4 of the Freedom of Information Act (“FOIA”), which protects from public disclosure “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential,” does not require a showing of substantial competitive harm for information to qualify as “confidential.” The Court’s ruling represents a sea-change in how the Government must protect information under this important exemption.
Continue Reading OH SNAP! Supreme Court Rejects Substantial Competitive Harm Test For Key FOIA Exemption

In a case of first impression, the Civilian Board of Contract Appeals (“CBCA”) ruled that a contractor performing task orders issued against a government-wide acquisition contract (“GWAC”) properly submitted its claims to the Agency Ordering Contracting Officer (“OCO”) instead of the Procuring Contracting Officer (“PCO”). The case – Sotera Defense Solutions, Inc. v. Department of Agriculture, CBCA 6029, 6030, 2019 WL 1977388 (Apr. 25, 2019) – involved two task orders issued by the Department of Agriculture (“USDA”) to Sotera Defense Solutions, Inc. (“Sotera”) for the provision of information technology (“IT”) support services at agency locations throughout the country. The USDA issued the task orders against a GWAC awarded by the National Institutes of Health (“NIH”). A GWAC, as explained by the CBCA in its decision, is defined by the Federal Acquisition Regulation (“FAR”) as a “task-order or delivery order contract for [IT] established by one agency for Governmentwide use.”
Continue Reading CBCA Rules Contractor Under GWAC Task Orders Properly Submitted Claims to the Agency Ordering Contracting Officer Instead of the Procuring Contracting Officer

On January 11, 2019, the Supreme Court granted a petition for writ of certiorari over an Eighth Circuit decision involving Exemption 4 of the Freedom of Information Act (“FOIA”), which protects from public disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” This marks the first time the Supreme Court has agreed to hear a case involving this important exemption.
Continue Reading OH SNAP! Supreme Court to Take on Meaning of Key FOIA Exemption

On November 27, 2018, the U.S. Government Accountability Office (“GAO”) released its Bid Protest Annual Report to Congress for Fiscal Year 2018.

Under the Competition in Contracting Act of 1984 (“CICA”), GAO is required to report annually to Congress on each instance in which (1) a federal agency did not fully implement a recommendation made by GAO in connection with a bid protest decision, or (2) a final decision in a protest was not rendered within 100 days after the date the protest was submitted to the Comptroller General, during the prior fiscal year. GAO reported no such instances for Fiscal Year 2018.
Continue Reading GAO Annual Report On Bid Protests: 2018 Yields More Protests, More Merit Decisions, But Fewer Sustains and Fewer Hearings

On June 12, 2018, the Department of Defense (“DoD”), the General Services Administration, and NASA proposed a new rule that would limit the “adequate price competition” exception to certified cost or pricing data requirements on all DoD, NASA, and Coast Guard procurements. Currently, FAR 15.403-1 prohibits contracting officers from requiring contractors to submit certified cost or pricing data to support a contract action when the contracting officer determines that the prices agreed upon are based on “adequate price competition,” which the regulation defines in one of three ways:
Continue Reading Proposed Rule Would Create a Separate, More Restrictive Standard for “Adequate Price Competition” for the DoD, NASA, and the Coast Guard

The 2018 National Defense Authorization Act (“NDAA” or “Act”) includes changes that could make the Department of Defense (“DoD”) a more effective and knowledgeable purchaser of Intellectual Property (“IP”) and promote more flexible IP acquisition strategies. These same changes also could encourage Contracting Officers to insist on broader IP rights and delivery requirements. While it has always been important for contractors to protect their IP (click here for our list of “Top 10 Ways to Lose Rights in Your IP”), with the passage of the 2018 NDAA, avoiding the loss of valuable IP rights could require even more sophistication and vigilance.
Continue Reading Contractors Beware: The 2018 NDAA Ushers In New Changes Affecting IP Rights