In the 2019 National Defense Authorization Act (NDAA), Congress placed serious limitations on the Government’s use of Lowest Price, Technically Acceptable (LPTA) procurements. As a result, we should be seeing the Government issue more RFPs in which technology and innovation outweigh price. In these instances, contractors can seek a higher price but are expected to show substantial technological advantages. Two recent protests cases out of GAO illustrate the principles of technical proposal evaluation when technical factors are more important than price, and demonstrate the potential cost/technical trade-offs under these circumstances.
Often regarded as one of the simplest acquisition methods, Lowest Price Technically Acceptable (LPTA) procurements award the contract to the offeror that both meets an agency’s technical requirements and offers the lowest price. Yet when the Army set out to acquire a replacement for an existing Indefinite Delivery/Indefinite Quantity (IDIQ) contract through an LPTA procurement, things got complicated. In fact, a whopping 21 companies ended up protesting at GAO. When the army tried to correct the problematic procurement with corrective action, the original awardees took the case to the COFC. But it didn’t end there, and the case eventually made its way to the Court of Appeals for the Federal Circuit (CAFC). The zigzagging case sets a precedent for whether an agency must narrowly tailor corrective action to fit a procurement’s perceived flaw or if the corrective action need only be rationally related to that flaw. Continue reading “Recent Protest of Army Acquisition Has Big Implications for Future Corrective Actions”
Agency professionals who write contracts sometimes fail to include the basic and necessary elements of a contract. Whether an agency omits necessary elements of the contract deliberately or (more likely) by accident, it’s often the contractor who suffers. This was the case in a recent procurement by FEMA (Federal Emergency Management Agency), which neglected to include several critical parts in an IDIQ contract with Pros Cleaners. When Pros Cleaners never received a task order for any work under the contract, they took the case to the CBCA (Civilian Board of Contract Appeals) claiming breach of contract. Read on to learn why the Court sided with the agency and what you can do to make sure your Government contracts are enforceable. Continue reading “What Happens When Your Contract with the Government is Unenforceable?”
The Federal Acquisition Streamlining Act (FASA) requires that Federal agencies seriously consider whether existing commercial items will meet their acquisition requirements before seeking to develop new technologies. In a recent case, Palantir Technologies protested when the Army failed to consider commercial technologies for its second-generation Distributed Common Grounds System (DCGS-A) intelligence system. Read on to learn why the COFC’s ruling may set a precedent for more protests from commercial vendors.
Software manufacturer CiyaSoft recently appealed to the Armed Services Board of Contract Appeals (ABSCA) when the Army violated the terms of their commercial software license. The Army countered that the licensing agreement, which had been shipped with the CD-ROMs containing the software, was not included in the contract. Ultimately, the Board drew upon provisions in the FAR to inform their ruling in favor of the contractor. Software manufacturers who use shrink-wrap or click-on licensing agreements and hold contracts with the Federal Government will want to read on to learn about the implications of this ruling. Continue reading “Can a Commercial Software License Be Valid and Enforceable When It’s Not Included in Your Government Contract?”
Last month, the President signed Congress’ FY 2019 National Defense Authorization Act, calling for a host of adjustments to the rules of Federal procurement. Each year the NDAA updates programs and policy initiatives, often in response to complaints from either the Executive Branch or industry. Most updates will make their way into the FAR or the DoD FAR supplement. What follows is an overview of the most important changes you’ll want to know about.
A new ruling says that Federal agencies can’t always rely on country-of-origin rulings by Customs and Border Protection (CBP) when applying the Trade Agreements Act to their contracts. The case dealt with an acquisition of Hepatitis B pill by the Department of Veterans Affairs (VA). The difficulty in parsing the regulations suggests that they need revision, if not a complete rewrite. Continue reading “Can Agencies Rely on CBP Rulings in Enforcing the Trade Agreements Act?”
As we await the NDAA for 2019, DoD focuses on 2017 mandates aiming to ease requirements for commercial item companies. Despite Congress’ 1994 acquisition streamlining bill, the administrative burden for Defense contractors supplying commercial items to the Federal Government has grown quite cumbersome. Here is an update on DoD’s progress, and how the proposed changes may affect some Defense contractors. Continue reading “DoD Continues to Tackle Acquisition Regulations from the 2017 NDAA”
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”
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?”