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Government Contracts Monitor

Identifying Unequal Access OCIs Is Harder Than It looks

Unequal access to competitively useful, non-public information can give contractors an unfair advantage in the procurement process. Accordingly, the Federal Acquisition Regulation (FAR) requires contracting officers to identify and evaluate potential “unequal access” organizational conflicts of interest (OCIs) and directs agencies to avoid or mitigate potential conflicts. Following this…

Error 101: Late Afternoon Technical Difficulty Leads to Untimely Protest

A new system often inspires new hope, at least some of which results from the expectation of a reasonable grace period that allows some trial and error while learning the ropes. As the recent Government Accounting Office (GAO) decision in CWIS, LLC (CWIS), B-416544 (July 12, 2018) revealed, such optimism is misguided in the context of the GAO’s new electronic protest docketing system (EPDS).

The…

Beware: Your Protest Can Lead to Corrective Actions That You Don't Like

Disappointed offerors sometimes adopt a protest “strategy” that goes something like this: (1) protest on the basis of a known or suspected problem with the procurement; (2) convince the agency to take corrective action to address the problem you identified; (3) reap the rewards as the agency’s corrective action improves your competitive position with respect to the problem you pointed out. Just…

4th of July Holiday

In observance of the July 4th holiday, the Government Contracts Monitor will not be publishing a blog this week. We will resume blogging the week of July 9th.

In the meantime, have a great 4th of July!

Executives Sentenced to Jail Time for Scheming to Violate the Berry Amendment and Trade Agreements Act

Executives of Wellco Enterprises were sentenced earlier this month for their role in a rather brazen scheme to defraud the Government by flouting the sourcing restrictions imposed by the Trade Agreements Act and the Berry Amendment. The executives were among the six defendants originally charged in an 11-count indictment including conspiracy to commit wire fraud, eight counts of wire fraud, major…

How Much Modification Is Too Much?

Savvy contractors who have lost out on a contract award often monitor contract performance and modifications in hopes of identifying business opportunities. If they can find performance problems or improper modifications, their thinking goes, they may be able to position themselves to take work from the original awardee. But such a strategy has some practical limitations. Landing new work as a…

Government Matchmaking Is Not "Government Involvement"

Disappointed bidders seeking to challenge an award decision naturally often look to precedent to guide their arguments. When available precedent is ambiguous, however, they may resort to crafting particularly creative arguments. While this strategy makes sense in most cases, the recent Government Accounting Office (GAO)  decision in Management Sciences for Health, B-416041; B-416041.2 (May 25,…

An Old-Fashioned Protest Ground--Unduly Restrictive Requirements--Still Alive and Well

Successfully protesting the terms of a solicitation as being unduly restrictive is still possible--this protest ground is alive and well. However, it requires more than just showing that you are not capable of meeting the objectionable requirements. You must establish that the solicitation includes requirements that both limit the field of competition and are not necessary to meet the agency’s…

Protest Timing and the Goldilocks Problem

Offerors seeking to protest an agency decision face a number of important decisions. One of the most fundamental--and potentially tricky--such issues is when to file the protest. File before an adverse decision by the agency and the protest will be dismissed as premature. But wait too long and it will be dismissed as untimely. While the general rules of protest timing may seem relatively…

Dun & Bradstreet Reports Have Limited Utility When Challenging Responsibility Determinations at the GAO

Disappointed bidders seeking to challenge a contracting officer’s affirmative responsibility determination will attempt to rely on any information that appears even arguably relevant. One common source of information to which such offerors turn is the Dun & Bradstreet (D&B) report on the awardee, under the theory that its contents can help demonstrate a lack of financial wherewithal. As the…

A Contractor with a Novated Contract Is Still a Contractor

When an awardee novates it contract to another contractor, can the new contractor assert any claim that the original awardee could have pursued? That was the question in the recent Armed Services Board of Contract Appeals (ASBCA) decision in Cooper/Ports America, LLC, ASBCA No. 61461. According to the ASBCA, the answer depends on the terms of the novation agreement. In this case, the answer was…

FY2019 NDAA Seeks to Change Definition of "Subcontract"

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,…

 

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