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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

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

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

Conflicts of Interest & Breaches of Confidentiality as Threats to the Integrity of Procurement

As a recent big acquisition by the Department of Education (ED) for IT services shows, GAO takes the integrity of the procurement system very seriously. The case sheds light on how agencies and contractors should respond when they believe the integrity of the procurement process may be threatened. Specifically, contractors may need to self-report breaches of the integrity rules, affected competitors need to act promptly to preserve their rights, and agencies must investigate problems and take ap

Joseph Petrillo

Joseph Petrillo

CONTRACTING OFFICERS: HERE’S HOW TO EVALUATE PAST PERFORMANCE WHEN IT’S THE CRITICAL FACTOR

In a best value procurement, being roughly as good as the competition and offering a slightly lower price doesn’t necessarily mean you’ll win the contract. Such was the case for DynCorp, which offered a lower price and a comparable CPARS score to the incumbent, L-3 Communications. When DynCorp lost the re-competition for Air Force logistics support, they protested at GAO. But savviness on the part of the agency saved the award.    To read the full article, visit Petrillo & Powell's

Joseph Petrillo

Joseph Petrillo

A Refresher on the Major DoD Counterfeit Parts Clauses

For the last several years, the DoD has bulked up regulations aimed at detecting and preventing electronic counterfeit parts within Government contracts. Two major clauses apply these regulations to defense contractors: “Contractor Counterfeit Electronic Part Detection and Avoidance System,” and “Sources of Electronic Parts.” Here’s a summary of the main points of each clause.   Read the full article at Petrillo & Powell's Patterns of Procurement. 

Joseph Petrillo

Joseph Petrillo

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 Worldwi

Joseph Petrillo

Joseph Petrillo

Don’t Approve of Your Competitors in a Multiple Award IDIQ Contract? Know This Before You Protest.

Sometimes multiple contractors earn spots on Indefinite Delivery, Indefinite Quantity (IDIQ) contracts, which allow for an undetermined quantity of supplies or services during a fixed period of time, as outlined in FAR. But what happens when winning contractors have reservations about the competitors who earn contracts alongside them? DaeKee Global Co. found itself in such a situation, and reacted by protesting the terms of the solicitation. Read on to learn how GAO and the COFC responded to suc

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

Concerned About A Perceived Conflict of Interest? Know This Before You Protest.

Federal contractors often hire former agency employees. But rules exist that can place limitations on the business activities of past officials who seek to work with the agency by which they were previously employed. So what happens when a bidder thinks that a competitor has an unfair advantage because it has hired such a former official? A recent protest decision sheds some light on how agencies and GAO proceed when facing such a perceived conflict of interest.  Read the full article at Pe

Joseph Petrillo

Joseph Petrillo

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 agreem

Joseph Petrillo

Joseph Petrillo

Fair Treatment in the Bidding Process? Knowing What's Fair Isn't Always Easy

For losing contractors, the question of whether to protest is a tricky one. Contractors often move to protest when the requirements seem to favor one competitor over another, or when the rules of the procurement are unclear. But there’s an important difference between an agency displaying an abuse of discretion and simply utilizing the flexibility written into the Federal Acquisition Regulation (FAR). Two recent cases shed light on where that distinction may lie. Professional Service Indust

Joseph Petrillo

Joseph Petrillo

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

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

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

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.

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 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

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

5 New Rules for GAO Protests You Should Know

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. Read the full article here. 

Joseph Petrillo

Joseph Petrillo

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

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

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

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

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

Contractors Beware: New GSA Contracting Clause Overwrites Standard License Terms

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, at Petrillo & Po

Joseph Petrillo

Joseph Petrillo

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