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Government Contracts Monitor

Bid Protests

SBA Area Offices Are Precluded from Reviewing a Duly-Approved 8(a) Mentor/Protégé Joint Venture Agreement, and May, But Are Not Required to, Refer Any Concerns to SBA’s Office of Business Development

The Small Business Administration (SBA)’s Office of Hearings & Appeals (OHA) recently reaffirmed that SBA Area Offices are precluded from reviewing the substance of an 8(a) Mentor-Protégé’s Joint Venture Agreement (JVA), once such agreement has been approved by the servicing SBA District Office.  OHA further held that, while an Area Office has the discretion to refer any concerns the Area Office…

Exemption 4: Protection of Confidential Information - The Ground May be Shifting

The Supreme Court recently granted a petition for writ of certiorari over (that is, agreed to review) an Eight Circuit decision involving Exemption 4 of the Freedom of Information Act (“FOIA”).  What is Exemption 4?  It is the exemption that protects from public disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Why is this…

Will DoD Change How It Procures "Readily Available" Commercial Items?

The Section 809 Panel has recommended some drastic changes that would impact government contractors doing business with the Department of Defense (DoD).  What is the Section 809 Panel? It is a panel created in Section 809 of the FY 2016 National Defense Authorization Act (NDAA) with goals outlined in the NDAA such as: (i) reviewing DoD’s acquisition regulations with a view toward improving the…

GAO Sustains Limiting the Number of Projects Allocable to a Large Business Mentor's Experience, but Rejects Treating a Mentor-Protégé Joint Venture Differently than a Prime/Subcontractor Contractor Teaming Agreement

One of the principal advantages of an approved Mentor/Protégé Agreement (MPA) is that the Mentor and Protégé can enter into a joint venture (JV) that can compete as small for any contract for which the Protégé would be eligible (see, e.g., 13 C.F.R. § 125.109(d)(1)).  In turn, one of the principal advantages of a JV - now enshrined in statute and regulation - is that in evaluating experience and…

Agency Waiver of Solicitation Requirement - Fatal or Non-Prejudicial?

A recent protest demonstrates why it is not sufficient for a disappointed offeror to challenge an agency’s award as improper solely because the agency relaxed or waived a material solicitation requirement in evaluating the awardee’s proposal and thus the awardee’s proposal was deficient.  Such a challenge, in order to succeed, must include another key element: demonstrated prejudice to the …

Following SBA's Joint Venture Agreement Template Not a Free Pass, and Don't Ignore the Footnote Comments

The Small Business Administration (SBA)’s Office of Hearings & Appeals (OHA) recently reiterated that SBA Joint Venture Agreements (JVAs), including those entered into under SBA’s new All-Small Mentor-Protégé Program (ASMPP), must include adequate specific detail as to the respective responsibilities of the parties with regard to, inter alia, performance of the proposed contract, and how the…

A Preference for U.S. Goods and Services: Buy American Receives A Booster Shot

On January 31, 2019 President Trump signed yet another Executive Order addressing Buy American issues: Buy American, Hire American [here]. This Order requires that federal agencies purchase U.S. goods and services in any and all infrastructure projects including, interestingly, cybersecurity projects. Among other things, this recent Order underscores the Trump Administration’s policy of enforcing…

Changing Key Personnel After Proposal Submission? Not So Fast....

As the GAO recently determined, and the Court of Federal Claims affirmed, an offeror who finds itself in a position of having to modify key personnel specified in its proposal, after the deadline for proposal submission, may end up with an unacceptable proposal.  If an agency notified offerors that it might award without discussions, an offeror will not be able to "re-open" the proposal process to…

Diligence Pays in Timeliness of Protest

Sometimes diligence on the part of a disappointed offeror pays off.  An instance where diligence was rewarded was addressed recently by the General Accountability Office in the Miltope protest, decided January 8, 2019.

Miltope protested its exclusion from the competitive range under a request for proposals (RFP) issued by the Department of the Army for multipurpose automatic test equipment,…

Release of Proprietary Information - Tainted Procurement?

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 Ahead

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 Facts

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…

 

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