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About this blog

Counting the Government as a customer is a huge win for your business, and can provide both profit and prestige. But in Government contracts, what you don’t know can hurt you. Patterns of Procurement helps contractors and their in-house counsel maneuver the tricky terrain. In the blog, Joseph Petrillo of Washington D.C.’s Petrillo &Powell, P.L.L.C, shares the latest and most significant industry cases, augmented by his unique perspective gleaned over 40+ years practicing Government Contract Law.

Entries in this blog

 

Why Timing is Everything in Small Business Recertification

Congratulations: you’ve certified as small business for federal contracting purposes. In a typical contract setting, you keep your size status for the life of the contract. But in the instance of a merger or acquisition or if a contract lasts longer than 5 years, you must recertify to maintain your size status. For multiple-award contracts, the Contracting Officer is also given a good deal of latitude in terms of whether a small business must recertify for an individual order. In a recent case,

Joseph Petrillo

Joseph Petrillo

 

When Poor Performance Reviews Become a Matter of Public Record: What Contractors Need to Know

Statute and regulation prevent public access to contractor past performance information. That said, contractors who contest poor performance reviews in Court or at a board may unintentionally put themselves at risk to have the details of the matter released in a public decision. Such was the case for Torres Advanced Enterprise Solutions, whose recent protest at the COFC inadvertently lead to their performance issues becoming a matter of public record. The case serves as a cautionary tale for oth

Joseph Petrillo

Joseph Petrillo

 

When Offering a Low Cost Is Detrimental, and a Different Way to Show Technical Acceptability

It sounds simple. In Lowest Price Technically Acceptable (LPTA) procurements, the agency determines the best value proposal by identifying those that are technically acceptable and then selecting the one with the lowest price. But there’s a wrinkle when this technique is used for a cost-reimbursement contract. Smartronix’s recent protest at GAO illustrates that proposing the lowest cost doesn’t always win you the contract, even when you’re technically acceptable. Specifically, contractors if the

Joseph Petrillo

Joseph Petrillo

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

When An Agency’s Solicitation Excludes You From Competing: How One Company’s Protest 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 themselv

Joseph Petrillo

Joseph Petrillo

 

What To Do When You Lose A Contract Despite Offering The Better Price

Sometimes the Government seeks the best overall value, and at times simply lowest cost. But even when low price is determinative, the bidder must still meet minimum technical qualifications. In a recent case, Level 3 Communications lost a major contract with the Dept. of Defense to Verizon, whose bid exceeded theirs by nearly $40 million. Level 3 was disqualified for what it thought were trivial reasons. When Level 3 protested, it got no relief from GAO, but the Court of Federal Claims came to t

Joseph Petrillo

Joseph Petrillo

 

What Offerors Should Know About VATEP Procurements

VATEP is a new method of acquisition that the DoD announced in April 2016. VATEP, which stands for Value Adjusted Total Evaluated Price, is a variant on best value procurements, and seeks to quantify technical superiority in dollar terms when there is a cost/technical tradeoff. It should, in theory, make it easier for the contractor to understand how much it will be rewarded for offering a technically superior proposal. It should also make it easier for the Government to evaluate such proposals.

Joseph Petrillo

Joseph Petrillo

What Happens When Your Contract with the Government is Unenforceable?

What Happens When Your Contract with the Government is Unenforceable?

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

Joseph Petrillo

Joseph Petrillo

 

WHAT HAPPENS WHEN THERE ARE CHANGES TO AN OFFER AFTER THE SUBMISSION DEADLINE?

After the proposal due date, the rule is that late changes or revisions are not accepted, with certain narrow exceptions spelled out in regulation. However, GAO has carved out its own exception when key personnel become unavailable. Such was the case when the YWCA protested a recent Labor Department award. GAO held that after proposal submission, an agency cannot accept a replacement for a key person who becomes unavailable without opening discussions with all offerors in the competitive range.

Joseph Petrillo

Joseph Petrillo

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

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 o

Joseph Petrillo

Joseph Petrillo

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

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

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 su

Joseph Petrillo

Joseph Petrillo

 

What a New Study on DoD Protests Reveals, and Implications for Contractors

When the Department of Defense (DoD) sought restrictions on bid protests, Congress made them commission a study to validate their case. That study, authored by the RAND Corporation, looks at bid protests during the 9-year period from 2008-2016. The study indicates a significant increase in the number of bid protests over that time period. That trend alone bolsters the DoD’s case. But a further look at the extensive data from RAND’s study suggests otherwise, and provides critical insights for Def

Joseph Petrillo

Joseph Petrillo

 

Think You're A Small Business? Maybe Not. Watch Out for Hidden SBA Rules.

In the case of Veterans Technology, LLC and MDW Associates, LLC (MDW), small business size status was endangered by a high level of subcontracting with a small business. The SBA’s Office of Hearings and Appeals (“OHA”) applied a rule of thumb to disqualify an awardee as a small business. The Court of Federal Claims (COFC) intervened and reversed the determination. This case illustrates two important issues: (1) Size determinations are subject to SBA rules, and sometimes principles not in those r

Joseph Petrillo

Joseph Petrillo

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

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 eventual

Joseph Petrillo

Joseph Petrillo

Some Things to Watch Out For When Technology & Innovation Outweigh Price in Procurement

Some Things to Watch Out For When Technology & Innovation Outweigh Price in Procurement

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 evalu

Joseph Petrillo

Joseph Petrillo

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

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. Read the full article at Petrillo &

Joseph Petrillo

Joseph Petrillo

 

Section 809 Panel Urges DoD and Congress to East 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.   Read the full

Joseph Petrillo

Joseph Petrillo

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

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

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

Joseph Petrillo

Joseph Petrillo

 

Pay Attention to these 7 Changes from the 2019 National Defense Authorization Act (NDAA)

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. Read the full article at Petrillo & P

Joseph Petrillo

Joseph Petrillo

 

Is Your Contract Vulnerable to Termination for Convenience?

As 2018 gets underway, contractors may find that the current administration’s priorities spell out changes to existing contracts. If the program under which you hold a contract doesn’t fit in with new management, your contract may be at risk for termination for convenience. Read on to find out when a contract you hold may be in danger, and what you can do to mitigate costs relating to a contract the Government terminated for convenience. Read the full article at Petrillo & Powell's Patt

Joseph Petrillo

Joseph Petrillo

 

How to Respond to a Negative CPARS Evaluation

The Contractor Performance Assessment Reports System (CPARS) is a tool used by federal agencies to record their evaluations of contractors’ performance. A poor evaluation will jeopardize a contractor’s chance of winning new contract awards. Contractors can respond to poor evaluations by providing input when they feel they’ve been unfairly assessed. Yet in the recent case of CompuCraft, a successful appeal to the Civilian Board of Contract Appeals found that there were limits to how completely th

Joseph Petrillo

Joseph Petrillo

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

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 debrie

Joseph Petrillo

Joseph Petrillo

 

How GAO Responds When it Perceives a Threat to Procurement Integrity

When the Department of Homeland Security tried to migrate its IT support from a single contract to a series of task orders, they created quite the quagmire. From go, DHS' process for evaluating offerors' technical capabilities was unusual, and when contracts were awarded, disappointed contractors moved to protest. Yet when it came to light that the agency had altered evaluation documents once protests were underway, GAO swiftly intervened.  View the full article here. 

Joseph Petrillo

Joseph Petrillo

 

How Commercial Technologies Can Have An Advantage 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

Joseph Petrillo

Joseph Petrillo

 

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

Joseph Petrillo

Joseph Petrillo

 

GAO or The Court: Does Where You File Your Protest Make A Big Difference?

An offeror protested an award by the U.S. Forest Service when the agency’s solicitation appeared to favor a competitor, but the protest was denied at GAO. The Simplex Aerospace decision, in comparison to the recent case of PSI, raises the question of whether disappointed contractors are better served by filing protests with GAO or the Court of Federal Claims. Does the decision of where to file really mean the difference between a win and a loss in the world of Government contracts?  Read t

Joseph Petrillo

Joseph Petrillo

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