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Joseph Petrillo

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  1. 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. Read the full article at PetrilloPowell.com.
  2. 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. Read the full article here.
  3. 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. Read the full article here.
  4. 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. Read the full article at Petrillo & Powell.
  5. The National Defense Authorization Act (NDAA) is the name for a series of annual laws laying out the Department of Defense’s (DoD) budget for its various programs and activities. It also is a favorite vehicle for Congress to legislate how it wants DoD to operate (a companion bill, the Appropriations Act, actually funds the Department). As Congress debates the 2019 NDAA, the DoD continues to tackle tasks from previous bills. Three recent developments stemming from earlier NDAAs may be of particular interest to Defense contractors. Read the full article at Petrillo Powell's Patterns of Procurement.
  6. 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.
  7. 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 one bidder’s offer posed. The COFC sided with the agency in this case, which raises the question whether the Federal Government should centralize such decisions. Read the full article here.
  8. 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 debriefings affect the landscape of Defense acquisition, and does the new requirement pave the way for more meaningful debriefings for all FAR procurements? Read the full article at Petrillo & Powell's Patterns of Procurement.
  9. 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 & Powell's Patterns of Procurement.
  10. 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 & Powell's Patterns of Procurement.
  11. 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 themselves in similar circumstances. Read the full article at Petrillo & Powell's Patterns of Procurement.
  12. 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 article at Petrillo & Powell's Patterns of Procurement.
  13. 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, Unissant, Inc. protested the size status of a competitor who’d recently earned a task order award. Read on to learn what small businesses contractors need to know about small business status in light of this case. Read the full article at Petrillo & Powell's Patterns of Procurement.
  14. 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 Defense contractors. Read the full article at Petrillo & Powell's Patterns of Procurement.
  15. 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 Patterns of Procurement.
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