The Legal Precedent for Contract by Conduct in the Public/Private Realm Doesn’t Support a Contract Here

Moda Health Plan, Inc. is one of dozens of insurers who sued when the Health and Human Services Department (HHS) failed to reimburse them for losses incurred as a result of participation in the healthcare marketplace set up by the Affordable Care Act (ACA). The Court of Federal Claims (COFC), and later the Federal Circuit, were tasked with determining whether there had been a contract by conduct set up between the Government and insurers. Despite success at the COFC, the Federal Circuit eventually denied Moda’s case. The case serves as a cautionary tale for companies considering entering into similar Government programs.  Continue reading “The Legal Precedent for Contract by Conduct in the Public/Private Realm Doesn’t Support a Contract Here”

What Happens When An Agency Doesn’t Disclose Solicitation Criteria?

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Recently, after losing a contract for full line food service with the Defense Logistics Agency, a company protested at GAO. At the heart of their protest was the fact that the agency had used a solicitation criterion to assess their proposal that hadn’t been shared with bidders during the solicitation. GAO was tasked with judging whether the procurement had been handled fairly, and ultimately, they sided with the losing bidder. GAO’s ruling has implications for contractors who find themselves surprised to lose out on contracts due to undisclosed evaluation criteria.  Continue reading “What Happens When An Agency Doesn’t Disclose Solicitation Criteria?”

A Debrief on the Latest DoD Regulatory Developments

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The National Defense Authorization Act (NDAA) is the name for a series of annual laws laying out the Department of Defense’s (DoD) budget for its various programs and activities. It also is a favorite vehicle for Congress to legislate how it wants DoD to operate (a companion bill, the Appropriations Act, actually funds the Department). As Congress debates the 2019 NDAA, the DoD continues to tackle tasks from previous bills. Three recent developments stemming from earlier NDAAs may be of particular interest to Defense contractors.  Continue reading “A Debrief on the Latest DoD Regulatory Developments”

5 New Rules for GAO Protests You Should Know

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On May 1, 2018 the Government Accountability Office (GAO), which hears and decides the majority of federal bid protests each year, made some important rule changes. Some of these changes can have significant implications for lawyers and the contractors they represent. Read on to learn more about the most important rule changes, and how they might affect you if you find yourself in a GAO protest.  Continue reading “5 New Rules for GAO Protests You Should Know”

What Happens When the Government Perceives a Cybersecurity Risk in Your Supply Chain

The Federal Government is amping up its efforts to mitigate threats to cybersecurity. You might think that the Department of Homeland Security would be the agency concerned with mitigating risk stemming from cyber threats. But a recent case at the Court of Federal Claims (COFC) shows that Government’s preoccupation with cybersecurity extends to all agencies. In this case, the Social Security Administration (SSA) needed new printers, but was determined to avoid supply chain risks that they felt one bidder’s offer posed. The COFC sided with the agency in this case, which raises the question whether the Federal Government should centralize such decisions.   Continue reading “What Happens When the Government Perceives a Cybersecurity Risk in Your Supply Chain”

How NDAA’s New Rules on Enhanced Debriefings May Bolster Defense Contractors

Companies who’ve lost out on a contract award can seek more information by requesting a debriefing, a post-award explanation of why they failed to secure a contract, with an opportunity to pose questions. But debriefings don’t always reveal enough information. Now, thanks to the 2018 National Defense Authorization Act (NDAA), DoD agencies must provide enhanced debriefings with the goal of helping bidders get more information sooner after learning they’ve lost a contract. How will enhanced debriefings affect the landscape of Defense acquisition, and does the new requirement pave the way for more meaningful debriefings for all FAR procurements?  

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Contractors Beware: New GSA Contracting Clause Overwrites Standard License Terms

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In February the General Service Administration (GSA) rolled out a new contracting clause addressing Commercial Supplier Agreements (CSA). It expands a 2013 clause that made some common commercial license terms unenforceable. Now, many other terms found in commercial licenses (especially for IT) no longer apply to GSA contracts. The clause invalidates these terms – even if they make it into the contract. Read on to learn about which parts of such agreements are targeted.

 

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Skeptical of a Competitor’s Technical Evaluation? How One Company Succeeded at GAO

A competitor protested when an Energy Department (DoE) contract awardee proposed an unusual plan for processing radioactive liquid waste. Given the apparent riskiness of the winner’s proposition, it’s not surprising that GAO sustained the protest. What is surprising (and remains a mystery) is how the agency assessed the winning proposal’s technical approach as sound. Read on to learn how one protestor succeeded because of an agency’s murky evaluation.

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When An Agency’s Solicitation Excludes You From Competing: How One Company Fared at GAO

A pair of large contracts for administrative services with the Centers for Medicare & Medicaid Services (CMS) are great but two pairs are better. In a recent case, National Government Services, a company holding multiple contracts with CMS, protested when agency rules prevented them from competing for several more. Ultimately, the agency was able to successfully defend the limitations written into their solicitation, and the case provides a template for other agencies that may find themselves in similar circumstances.

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Section 809 Panel Urges DoD And Congress to Ease Compliance Burden on Commercial Item Contractors

The Section 809 Panel, created in section 809 of the FY 2016 National Defense Authorization Act (NDAA), is charged with recommending improvements to the defense acquisition process. In January 2018 the panel released their first volume of three, which provides guidance for simplifying the DoD procurement process in ways that could benefit contractors. Their insights shed light on the obstacles contractors face, and pave the road for changes in law to help overcome them.  Continue reading “Section 809 Panel Urges DoD And Congress to Ease Compliance Burden on Commercial Item Contractors”