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October 2023 Bid Protest Roundup: Instructions, Jurisdiction, Scrutiny

This month, we feature three bid protest decisions—two from the U.S. Government Accountability Office (“GAO”) and one from the U.S. Court of Federal Claims (“COFC”). Though each of these decisions focuses on a different fundamental point of procurement law, all share a common theme: they pertain to agency awards of indefinite-delivery, indefinite-quantity (“IDIQ”) contract vehicles or task orders thereunder. View the full article

National Security and Government Contractor Implications of Biden AI Executive Order

The Biden administration issued a widely anticipated executive order on artificial intelligence (“AI”) earlier this week. The Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (the “EO”) addresses a multitude of issues reflecting an emerging national policy on AI. This article focuses on those aspects of the EO most directly related to national security and federal procurement.View the full article

Merge, Acquire . . . Voluntarily Self-Disclose?

Earlier this month, Deputy Attorney General Lisa O. Monaco announced an important extension of DOJ’s voluntary self-disclosure policy aimed specifically at incentivizing companies engaged in mergers and acquisitions “to timely disclose misconduct uncovered during the M&A process.” View the full article

September 2023 Bid Protest Roundup: Limits to Agency Discretion in Challenge to NAICS Code Assignments, Confines of the Close-at-Hand Principle

This month’s Bid Protest Roundup focuses on a recent U.S. Court of Federal Claims decision involving the limitations of the government’s deference defense and a U.S. Government Accountability Office (GAO)  that involved the proper application and discretionary nature of the so-called close-at-hand principle.View the full article

Definitive Guidance on Facility Security Clearances for Small Business Joint Ventures

The Small Business Administration (SBA) and the Information Security Oversight Office (ISSO) have issued a Joint Notice to clarify how Facility Security Clearances (FCLs) (also called Entity Eligibility Determinations, or EEDs) work for joint ventures. As we have discussed before, the SBA regulations for a few years now have specified that procuring agencies may not require joint ventures to possess an FCL as a condition of the award of a small business set-aside contract.View the full article

Contracting In The Fog of War: Recovering Costs Related to COVID-19

Like the COVID-19 virus, COVID-related contract claims have not gone away.  In “Contracting in the Fog of War: Recovering Costs Caused by an Epidemic,” we reported on Pernix Serka Joint Venture v. Department of State, CBCA No. 5683, 20-1 BCA ¶ 37589 (April 22, 2020), in which the Civilian Board of Contract Appeals (CBCA) determined a contractor’s additional costs incurred due to the Ebola outbreak did not entitle the contractor to an equitable adjustment. View the full article

Missing SCA Clause Did Not Excuse Noncompliance or Allow for Full Equitable Adjustment

In Innovative Technologies, Inc., ASBCA No. 6186, 62185, the Armed Services Board of Contract Appeals (“ASBCA” or the “Board”) held that, despite the federal government’s failure to include or incorporate the McNamara-O’Hara Service Contract Act (“SCA”) FAR Clause 52.222-41 (the “SCA Clause”) in the contract, the contractor was required to comply with the SCA and not entitled to an equitable adjustment for all costs it incurred from a $1.5 million settlement with the U.S. Department of Labor (“D

July 2023 Bid Protest Roundup: Personnel Loss, Conflicts, Timeliness

This month’s bid protest roundup highlights two decisions from the U.S. Court of Federal Claims (“Court”), one addressing an offeror’s loss of key personnel and a second addressing organizational conflicts of interest (“OCIs”) arising out of an offeror’s reliance on former government employees in preparing its bid. A third decision from the U.S. Government Accountability Office (“GAO”) provides a helpful reminder on protest timeliness when no debriefing is required.View the full article

Biden Executive Order Has Potential to Discourage U.S. Company Participation in Federal Research

A new Biden administration Executive Order proposes to enforce more rigorously U.S. manufacturing requirements attendant to federally funded inventions. While the aim of the Executive Order is to support domestic manufacturing and jobs, the policy could have the unintended effect of discouraging U.S. company participation in federally funded research and development activities.View the full article

SBA Finalizes Rule to Modernize the SBIC Program

The U.S. Small Business Administration (SBA) finalized a rule to modernize the Small Business Investment Company (SBIC) Program on July 17, 2023. Part of President Biden’s Investing in America agenda, the new SBIC Investment Diversification and Growth (IDG) rule seeks to “unlock unrealized potential and strengthen, diversify, and expand our network of SBIC licensed private funds to address capital deficiencies in underserved small businesses, start-ups, and critical U.S. industries impacting our

DoD Issues Updated Other Transactions (OT) Guide

The Department of Defense updated its guidance on “other transaction” agreements, or “OTs,”[1] an increasingly popular contracting authority not subject to the FAR or most procurement laws that accounted for more than $37 billion in defense spending from 2019 through 2021.[2] Although the new Other Transactions Guide, Version 2.0 (“OT Guide”), effective July 8, 2023, reflects much of the same policy with little substantive change, it includes a few noteworthy updates and helpful reminders:View t

June 2023 Bid Protest Roundup: Errors, Experience, Corrective Action

This month’s bid protest roundup focuses on two decisions from the U.S. Court of Federal Claims (“Court”) and one decision from the U.S. Government Accountability Office (“GAO”). These decisions involve (1) the Court’s determination that, based on the facts, inconsistencies in an offeror’s proposed labor hours were clerical errors that should be resolved through clarifications, (2) the importance of reading a solicitation as a whole and not raising arguments previously conceded in a GAO protest,

Hard Validations and Cutlines: What Happened on CIO-SP4?

If you’ve been following the saga of the National Institutes of Health Information Technology Acquisition and Assessment Center’s (NITAAC) Chief Information Officer-Solutions and Partners (CIO-SP4) procurement, you likely know the Government Accountability Office (GAO) recently issued two decisions sustaining post-award protests by 91 unsuccessful CIO-SP4 offerors.View the full article

Clarifying Minor Errors: The Court Makes an Agency Seek a Clarification

Offerors whose proposals are disqualified for immaterial typographical and data input errors will want to read an interesting new protest decision from the Court of Federal Claims. In Aspire Therapy Services & Consultants, Inc. v. United States, the Court sustained a protest because the procuring agency did not seek clarification before rejecting a proposal for what the Court found to be an “obvious and typographical” error in the protester’s proposal.View the full article

When Does the So-Called TikTok Ban Really Apply to Contractors and Their Employees?

In the extensive chatter since the Federal Acquisition Regulatory Council (“FAR Council”) published an interim rule on the new Federal Acquisition Regulation (FAR) 52.204-27, “Prohibition on a ByteDance Covered Application,” commentators have almost universally advised that if a federal contractor’s employee uses a device in connection with a government contract in any way, TikTok is banned on that device.  These conclusions seem to rely on the common understanding of the term “information techn
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