Jacques

I can't speak intelligently on whether Congress should take away COFC's jurisdiction to hear bid protests. I do worry the system may be asking too much of COFC judges to be able to rule wisely on the wide range of issues that appear before that court.

I'm behind in the conversation, but back to your discussion on COFC reviewing an agency decision to override a CICA stay, I think Reilly's Wholesale Produce v. U.S., 73 Fed. Cl. 705, 711 (2006) lists the factors. (I think this remains the law but it has been awhile since I've had to deal with it.) Paraphrasing, the factors are: Overrides are infrequent. While I think overrides were used more, and used more effectively following this statistic, especially for GWOT-related efforts, COFC invalidated four of six agency overrides in the six years from 1999 to 2004, according to 82 Federal Contracts Reporter 578. (I think I have those years right.)

I think I'm misunderstanding your steps 7 & 8. Why did the COFC grant the preliminary injunction? Do you mean the protestor abandoned its protest at the GAO and is now pursuing the protest at COFC, or do you mean the protestor is seeking COFC to review the agency's override decision? COFC employs standards in granting the preliminary injunction or in reviewing the CICA override. Are you saying those standards favor the protestor disproportionately? Or do you believe, as a practical matter, whatever the rules may say, judges at COFC will find a way to enjoin?

I guess to summarize, at least from my perspective, a money settlement would be limited to proposal preparation costs, and, in very limited circumstances, the costs of pursuing the protest. Perhaps more importantly, to pay any settlement requires acknowledging the agency failed to follow a procurement regulation. The circumstances under which the Government can decline to take corrective action in the face of failing to follow a procurement regulation are limited. @bob7947, for what its worth, in 1990, Sen. Levin introduced S. 3123, which was similar to FASA sec. 1436, except instead of applying just to the GSBCA, it applied to the GAO as well. It died in committee.

Sorry if I changed the OP's original fact pattern. I thought the idea was to avoid a GAO protest by treating the negotiation of the settlement agreement as an agency-level protest.

I appreciate that there is more nuance to this than I would want to admit. After the Comptroller General published 71 Comp. Gen. 340, Congress passed FASA. Section 1016 of FASA added 10 USC 2305(f), which provides: (For civilian agencies, see FASA sec. 1066 and 41 USC 3708(b).) The language of the statute does not literally provide that the agency is limited to paying the costs of filing and pursuing the protest or the costs of bid and proposal preparation in exactly the same circumstances as the GAO. However, a prerequisite to paying under 10 USC 2305(f) is that the award "does not comply with the requirements of law or regulation." Corrective action is normally the first step when a protest has merit, be it an agency protest or otherwise. The GAO will recommend paying bid and proposal costs where appropriate corrective action may not be implemented. Consider Daniel S. Herzfeld and Evan D. Wesser, Turning Silver Into Gold: Recovering Protest Costs or Bid & Proposal Costs in Procurement Protests, 10 Briefing Papers 4 (March 2010), at 4 (citations omitted): I think it would be a mistake to ignore the circumstances where the GAO recommends paying costs, and I think it would be a mistake to ignore corrective action when talking about the Government's power to pay appropriate costs. FAC 90-32 implemented FASA section 1016 by amending FAR 33.102(b).

I appreciate that if one thinks of the Government as simply one of two parties to a private transaction, it makes sense that the "buyer" should be able to decide what is its economic self-interest and settle any case it wants at any stage in the process. The Government is NOT a typical party, and Government purchases are NOT private transactions. Judging from all the statutes governing federal contracting and FAR Parts 19 through 26, "cost avoidance" is simply one of many considerations. Other considerations include "integrity, fairness, and openness." FAR 1.102(b)(3). Given how deep the Government's pockets are, allowing it to just buy its way out of litigation any time it wants undermines a tool toward ensuring at least some accountability.

Sorry for ranting. My scars related to this topic apparently are still fresh.

This isn't the primary holding of the decision. The decision is short and worth the read. https://www.gao.gov/products/484261#mt=e-report It begins: After acknowledging Federal Data Corp., the appropriations law decision states, "We believe, however, that the authority of agencies to settle protests by paying money to protesters is not without limitation." Paying merely to "avoid operational delays" isn't a good enough reason. "We do not believe that in making appropriations available to an agency for the procurement of goods and services, Congress intended those funds to be available to allow the agency to obtain the withdrawal of a meritorious protest without taking appropriate corrective action." (By the way, this quote also appears in Chapter 3 of the Redbook immediately following the language quoted by KeithB18.) One research service summarizes the decision at 71 Comp. Gen. 340 as follows: So I'm back to my original question, which is, "What would the lump sum represent?"

"Immediately after award" suggests that this precedes the time the "agency determines that it likely will be held responsible for such costs and is unable to correct the procurement." Thank you for referencing the February 1995 edition of The Army Lawyer. One of that issue's references to Fedmail (1995 Army Law. 3, 51) includes the following: I appreciate Federal Data Corp. v. SMS Data Products Group, Inc., 819 F.2d 277 (Fed. Cir. 1999), doesn't support my hostility to "Fedmail." Maybe it is enough to say there are strong prudential reasons to try to avoid going down this road. Another reference in the same article (1995 Army Law. 3, at 7) points out that the 103rd Congress wasn't very excited about this particular "procurement flexibility," and passed Section 1436 of FASA, requiring publicity of settlement agreements of protests before the GSBCA (back when it heard bid protests).

Title 5, United States Code, section 575(a)(3) states:

While I'm not one of the smart ones here, I'll chime in anyway. This comes up from time to time in different contexts. Are you asking whether, in response to a protest to the GAO by Offeror A, the Government could successfully raise as a defense to that protest the existence of a "settlement agreement"? I couldn't find anything in the GAO's rules suggesting this represents a recognized defense to a bid protest, and the decisions certainly suggest it would scrutinize that settlement agreement very closely. There are a number of restrictions on the Government's ability to close off existing avenues of legal redress in advance of the controversy being ripe. For instance, there is a statute that prohibits the Government requiring as condition for award the use of mandatory arbitration. What would the lump sum payment represent?

I guess I missed the news. The latest list of open DFARS cases I could find (31 Jan 2020) still had Case 2018-D063 listed. Under status, it reads, "01/31/2020 Case manager forwarded draft proposed rule to DARS Regulatory Control Officer. DARS Regulatory Control Officer reviewing." What prompted the original post?

I don't read 13 CFR 121.1004(e) exactly this way, but it might be close enough. I think the reason for the rule is that the SBA doesn't want to have to decide size/status protests involving a business concern that isn't the apparent successful offeror. Subsec. (e) reads:

Bob, I doubt I adequately appreciate what, "ask for the information that you need to provide useful information." Do you mean, don't reply until you can answer the question posed? Sometimes folks who ask questions on WIFCON don't even know what facts are relevant to their question, and are perplexed when asked for facts where they don't see the nexus. Is it permitted to give the "lay of the land" when asking for more information, or do you anticipate just a list of questions? Sometimes just answering the question posed would be really misleading, so this is going to be a challenge for me. I think I'll make it a point to not be the first person to respond to a new thread. (I can hear all the regulars cheering. )

The mechanism wouldn’t be ignoring the marking, though. It would be striking the marking.

While the date of the notice of the challenge is obviously very relevant, the date of the first assertion isn't. It is the date of final payment or final delivery of any technical data under the contract that starts the clock, and the date of the challenge the stops it. See paragraph (i) of the clause at DFARS 252.227-7037.

I appreciate the Government's step of allowing for the correction of the deliverables is probably outside of the four corners of 252.227-7037, so I see the value of your question, even though I probably get there differently. I think Government contracting officers assume every day that clauses required to be flowed down have been.

Perhaps the parties are relying on paragraph (k) of the "Validation of Restrictive Markings on Technical Data" clause at DFARS 252.227-7037. It provides:

I'm curious about the phrase, "Notwithstanding any provision of this contract concerning inspection and acceptance" in paragraph (h)(1) or the "Rights in Technical Data--Noncommercial Items" clause at DFARS 252.227-7013. Does this function as an exception to the finality of acceptance? If the validation is resolved in a way that favors the Government, does that mean the Government can revisit its acceptance of those data deliverables as it relates to the unjustified marking? Does this language have the effect of reviving the direction to contracting officers at DFARS 227.7103-14(b)(3)? It provides: Am I wrong in reading DFARS 227.7103-14(b)(4) as only applying to nonconforming markings, and not applying to unjustified markings? Can the Government reject a deliverable for having an unjustified marking (after the validation process is complete)?

It seems doubtful to me that the Government would anticipate a request for equitable adjustment simply because the Government complied with DFARS 227.7103-12(b)(2)(ii). Whatever you decide to do, promptly inform the Government before incurring any costs that you believe are its responsibility to pay.

It seems unlikely that, for as many deliverables are you seem to be talking about here, the Government would be prepared to put in place what it needed to in order to systematically but properly "ignore" the markings on these specific affected deliverables. DFARS 227.7103-12(b), discussing unjustified markings, includes no discussion about how, exactly, the Government would go about "ignoring" the unjustified markings. Hopefully no one in the Government wants to set up a process where the risk of inadvertently releasing data in a way that exceeds the Government's license is high. Improper disclosure can violate 18 USC 1905, a criminal statute. I trust we are talking about paragraph (h)(1) of the "Rights in Technical Data--Noncommercial Items" clause at DFARS 252.227-7013. It provides: (emphasis added). I don't recall this language being the subject of recent changes, so it is likely the same language in all affected contracts.

So, Article 2 of the Uniform Commercial Code is often looked to as representing federal common law for contracts for supplies, so the concept of "cover" under UCC 2-712 would include excess reprocurement costs.

Disregard. I misread the post.

It is when reading posts like this when I wish the WIFCON had "Like" buttons.