The end of the Fiscal Year is upon us, which typically coincides with a flurry of procurement activity and then a wave of bid protests. As most of you know, there are three primary fora for bid protests: procuring agencies, the Government Accountability Office (GAO), and the Court of Federal Claims (COFC). Although the COFC has relatively lenient timeliness rules, agencies and GAO have short, strict, and fairly draconian timeliness rules for filing protests. So as the protest season approaches, we thought it was a good time to refresh everyone on the rules so you are not disappointed to find that you are too late to file your protest.
Katie Calogero is an associate in the Governmental Practice in the firm's Washington, D.C. office.
Welcome back to the Cost Corner, where we provide practical insight into the complex cost and pricing regulations that apply to Government contractors. This is the second installment of a two-part article on the Truthful Cost or Pricing Data Statute, commonly known by its former name, the Truth in Negotiations Act (TINA). As a reminder, TINA is a procurement statute that requires contractors: (1) to disclose information – known as cost or pricing data – when negotiating certain types of contracts, subcontracts, and modifications; (2) to certify that those data were accurate, complete, and current as of the date of agreement on price or other date agreed to by the parties (the “relevant date”); and (3) to agree to a contract clause entitling the Government to a price reduction if the contractor furnishes cost or pricing data that are defective, i.e., inaccurate, incomplete, or not current.…
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.
GAO’s New Electronic Protest Docketing System
GAO finally has unveiled its long-awaited Electronic Protest Docketing System (“EPDS”). Effective May 1, 2018, all new protests (excluding those containing classified material) must be filed using GAO’s EPDS. EPDS is designed to provide a more seamless and efficient process for all participants. The system provides real-time notice to federal agencies of a new protest filing, which serves as the Agency’s notification to stay performance of the newly-awarded contract as required under the Competition in Contracting Act (“CICA”). Since most government contractors hire outside counsel to file protests, this change will not have a large impact on contractors. Contractors should be aware, however, that GAO also has implemented a new $350 filing fee for all new protests. All subsequent filings and supplemental protests do not require a filing fee. Funds from this filing fee will be used to pay for the operation and maintenance of the EPDS. …
Continue Reading New Rules for Filing Protests at GAO and New DFARS Debriefing Requirements
The Department of Defense intends to issue a proposed rule to ensure that substantial future independent research and development (“IR&D” or “IRAD”) expenses, which can be used as a means to reduce bid prices in competitive source selections, are evaluated in a uniform way during the competitive process. 81 Fed. Reg. 6488 (February 8, 2016). However, interested parties and industry leaders can help formulate this regulation before the DoD issues the proposed rule.
Continue Reading DoD Seeks Public Comments Before Issuing a Proposed Rule on IR&D Costs
On October 29, 2015, DOD renewed the DFARS deviation implemented in February, which prohibits contracting with entities that require employees or subcontractors to sign internal confidentiality agreements or statements that prohibit, or otherwise restrict, such employee or subcontractor from lawfully reporting waste, fraud, or abuse. Defense contractors should review their policies to ensure they meet the requirements of these new clauses.
Continue Reading Contractors Beware: An Overly Broad Confidentiality Agreement Could Cost You!
On August 26, 2015, the Department of Defense (“DOD”) issued a White Paper announcing that, beginning in FY 2017, all defense contractors will be required to notify DOD before undertaking any new Independent Research and Development (“IR&D”) projects if contractors would like their IR&D costs to be deemed allowable. Entitled “Enhancing the Effectiveness of Independent Research and Development,” the White Paper explains that both DOD and the Industrial Base need to work together to ensure the department has visibility into “government-reimbursed IR&D efforts.” Specifically, the White Paper states, “[t]o ensure that a two way dialogue occurs between the Department and IR&D performing organizations and to provide for some minimum oversight of IR&D, the department believes that proposed new IR&D efforts should be communicated to appropriate DOD personnel prior to the initiation of these investments and that results from these investments should also be shared with appropriate DOD personnel.” …
Continue Reading DOD Issues White Paper Aimed at IR&D Costs