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Anne Perry is a partner and former Practice Leader of the Governmental Practice in the firm's Washington, D.C. office.

On November 1, 2022, the U.S. Government Accountability Office (“GAO”) published its Annual Report to Congress, which contains the statistics for bid protests filed at GAO in Fiscal Year 2022. We have highlighted below several items worth noting from our review of the GAO’s report.

Continue Reading GAO’s FY 2022 Bid Protest Statistics: GAO Protest Filings and Sustain Rates Continue to Decline, but Effectiveness Rates and Alternative Resolutions Continue to Climb

In the first two parts of this series, we have summarized what constitutes an Organizational Conflict of Interest (“OCI”) in government procurements, and discussed OCIs’ importance in the bid protest arena. But lest you think that, having passed the protest hurdle, you are now free from all harm caused by having an OCI, we now address potential post-award liability stemming from undisclosed and unmitigated OCIs. Contractors found to have undisclosed and unmitigated OCIs, that either existed before award or arose thereafter, can face a variety of bad outcomes—contract termination, suspension or debarment, and liability for fraud under the False Claims Act (“FCA”). Recall that OCIs come in three forms:

Continue Reading Organizational Conflicts of Interest – Part 3: The Next Target for FCA Enforcement

We all know that failure to submit your bid proposal on time typically results in rejection. And the list of exceptions to this “late is late” rule is very short, providing only four notable exceptions: (1) an offeror has acceptable evidence of government control of a proposal; (2) an offeror can establish a systemic failure of government procedures resulting in multiple instances of lost information; (3) if electronically submitted, a proposal was received by government infrastructure by 5:00 p.m. one working day prior to the proposal submission date; and (4) if there is only one offeror. But what if you submitted your proposal on time and the agency’s server rejects the submission without bothering to inform you? And what if the basis for rejection was an undisclosed limitation within a server on email size? Does such delay qualify as an exception to the “late is late” rule? The answer depends on which forum you ask.

Continue Reading The Gap Widens Between COFC and GAO on Late is Late Rule

Last month, we began our three-part series on organizational conflicts of interests (“OCIs”) with an article discussing the different types of OCIs and how they can be mitigated. Now, in Part 2 of our series, we analyze how OCIs arise in bid protests. First, we explain how the Government Accountability Office (“GAO”) and the Court of Federal Claims (“COFC”) review OCI protests. Then, we examine scenarios where OCI protests have been sustained, followed by a synopsis of OCI protest grounds that (almost) always will be denied. Finally, we conclude with a summary of key points to consider when faced with an OCI issue that arises during a bid protest.

Continue Reading Organizational Conflicts of Interests – Part 2: OCIs in Bid Protests

You might be wondering, “What’s so important about Organizational Conflicts of Interest (“OCIs”)?” The answer is fairly simple: understanding both what causes OCIs and how to mitigate them are critical because unmitigated OCIs can preclude a contractor from (1) competing for future contract work, (2) performing certain tasks under existing contracts, (3) transferring personnel between company organizations, (4) hiring personnel, (5) teaming with certain vendors, and/or (6) entering into certain corporate transactions. Moreover, undisclosed or unmitigated OCIs can create risk of liability under the False Claims Act. In this Part 1 of a three part series, we offer a summary of what creates OCIs and general mitigation strategies. In Part 2, we will detail how OCIs arise in protests, and in Part 3, we will address the risks of False Claims Act liability arising from undisclosed OCIs.

Continue Reading Organizational Conflicts of Interest – Part 1: A Refresher on OCIs

Federal contractors and subcontractors across the country were forced to rethink their COVID-safety efforts when, on December 7, the U.S. District Court for the Southern District of Georgia enjoined enforcement
Continue Reading Executive Order 14042 – Update 12.0: U.S. District Court Issues Nationwide Injunction

In news that will be of interest to every federal contractor, including large and small businesses, universities, banks, and the health care industry, Executive Order 14042 (along with the related
Continue Reading What We Know And Don’t About The Federal Court Order Enjoining EO 14042

It is that time of year again when the U.S. Government Accountability Office (“GAO”) submits its bid protest statistics to Congress as mandated under the Competition in Contracting Act of 1984, 31 U.S.C. §3554(e)(2).  On November 16, 2021, the GAO released its Bid Protest Annual Report to Congress for Fiscal Year 2020.  It has been a year of ups and downs, but, importantly, the chances of winning have stayed the same.

Continue Reading Everything Changes, Except That Which Stays the Same: GAO’s Bid Protest Annual Report to Congress

Accepting money from the Government, whether through a contract, grant, or other transaction, does not come for free. In the commercial world, companies typically engage in a cost/benefit analysis when they make major decisions, such as whether to enter a new line of business, extend their product line, open new facilities, or expand globally. To make these decisions, the company tries to understand not simply the available business opportunities, but also the obligations that are imposed and the risks that are inherent. This is equally, if not more, true when a commercial company decides to sell anything to the U.S. Government – whether as a prime contractor or subcontractor. The Federal Government is an extremely large consumer of goods and services, and so it is a marketplace that is hard to ignore. But, seller beware – because with the opportunities arising from this marketplace come obligations with which your company may not be able to comply. Moreover, while compliance may cost you more than you anticipate, noncompliance could destroy your business. So make sure that you look before you leap into the federal marketplace.
Continue Reading Look Before You Leap – Pitfalls and Trip Wires Inherent in Government Contracting

On November 13, 2013, GAO reaffirmed its view that normalization of costs is impermissible in acquisitions where offerors’ approaches are not required to be the same. In AXIS Management Group LLC, B-408575 (Nov. 13, 2013), the Department of the Interior’s (“the Agency”) decision to normalize offerors’ labor hours and labor mixes was found to be unreasonable because the Agency ignored the unique approach proposed by each of the offerors.  The acquisition sought laboratory operational support at the National Water Quality Laboratory (“NWQL”) using an indefinitely delivery, indefinite quantity contract.  Technical merit was identified as significantly more important that the total evaluated price.  Offerors’ price proposals were to consist of unit prices for two contract line items, one for front desk support and the other for information technology support, and to provide proposed “labor categories, number of hours and hourly rates for three CLINS: (1) laboratory support, (2) support services support, and (3) quality assurance labor categories,” and to ensure that they priced all of the task descriptions identified in the Solicitation.  Historical staffing levels, but not staffing estimated or annual labor hour requirements, were disclosed in the Solicitation.  The historical information identified staffing for only 12 of the 26 identified labor categories.
Continue Reading Equal Doesn’t Always Mean Fair