Recent Protest of Army Acquisition Has Big Implications for Future Corrective Actions

Army LPTA

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”

A Federal Appellate Court Ruling Has Big Implications for Contractors with Commercial Technologies Hoping to Compete for Government Contracts

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.

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Can a Commercial Software License Be Valid and Enforceable When It’s Not Included in Your Government Contract?

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?”

3 Things You Need to Know When Trying to Correct a Poor CPARS Rating

The Contractor Performance Assessment Reports System (CPARS) allows agencies to rate the contractors with which they do business. A poor CPARS rating is a fairly serious matter for contractors, and can impair them from getting future contracts. Fortunately, contractors who feel they’ve unfairly received a negative review can file a claim under the Contract Disputes Act. But the process for attempting to correct a negative rating can be arduous, and relief is limited. The case of Vanquish Worldwide, LLC v. United States of America provides a solid template of what to do – and what not to do – for contractors who find themselves in a similar situation.

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GAO or the Court: Does Where You File Your Protest Make A Big Difference? Part II

In two recent cases, disappointed contractors protested when agencies failed to request clarifications or open discussions. Both Defense Base Services and Level 3 argued that the issues with their proposals could have been remedied if given the chance. GAO denied both offerors’ protests. Yet when Level 3 persisted at the COFC, the judge concluded that an agency’s failure to request clarifications constituted an abuse of discretion. The cases illustrate the difference in the way GAO and the COFC view clarifications and discussions, and shed insight for offerors under similar circumstances.

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Does an Agency’s “Corrective Action” Have Any Limits?

In a recent case, the Army got dinged in the Court of Federal Claims (COFC) despite – indeed, because of – the agency’s efforts to correct a problematic procurement. 58 offerors bid for the Army’s recompete of its Army Desktop Mobile and Computing contract vehicle, but only 9 proposals were deemed technically acceptable. When 21 of the disqualified bidders protested, the Army took “corrective action.” It reopened the competition, allowing all offerors to submit revised proposals and new prices. But the COFC found that the proposed corrective measure was overbroad. The court’s ruling demonstrates that agencies need to tailor corrective action to procurement’s unique problems.

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How Commercial Technologies Can Have An Edge When Competing for Government Contracts

Contracts with the Federal Government represent big bucks for technology companies. According to ITDashboard.gov, government agencies spent a whopping $82.8 billion on information technology investments in FY2016, a number that’s poised to grow in the next two years. It’s no wonder, then, that technology companies take government contracts seriously. So when tech giant Palantir Technologies could not get the Army to consider its commercial IT system, they protested. And ultimately, the Court of Federal Claims decided in their favor.

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