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Government Contracts Insights

A blog by Morrison Foerster LLP in General

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Entries in this blog

December 2023 Bid Protest Roundup: Supplementation, Conversion, Rejection

This month’s Bid Protest Roundup include decisions regarding supplementation of the record and whether an agency may convert a sealed bid opportunity into a negotiated procurement due to lack of funds, as well as a case in which the Court of Federal Claims found a GAO precedent failed to provide a rational basis to reject a bid.View the full article

GAO Finds Company's BPA BID Remains Eligible for Award Despite a Transaction, Recertification, and Change in Size Status in Connection with Its Underlying Federal Supply Schedule Contract

Small business regulations create one of the stickier wickets in bid protest litigation. View the full article

Notable Provisions of the FY 2024 National Defense Authorization Act

On December 22, 2023, President Biden signed the National Defense Authorization Act for Fiscal Year 2024 into law after bipartisan congressional majorities approved the bill earlier in the month. The annual bill authorizes appropriations and sets policy for the Department of Defense (“DoD”) and generally reflects the priorities of the House and Senate Armed Services Committees.View the full article

An Overview of the Defense Department’s Long-Awaited Proposed Regulations for Its Cybersecurity Maturity Model Certification Program

The U.S. Department of Defense released a special holiday treat for government contractors and subcontractors last week in the form of long-promised proposed regulations for its Cybersecurity Maturity Model Certification (CMMC) program. View the full article

Biden Administration Proposes Novel Use of Price as Justification for Agency Exercise of March-In Rights for Government-Funded Inventions

Presented as part of its effort to lower what it views as excessive prices for prescription drugs, the Biden administration on December 7, 2023, announced the release of a proposed framework to expand the use of government “march-in” authority under the Bayh-Dole Act. View the full article

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

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

SBA Updates Its Regulations on Lower-Tier Small Business Subcontracting Credit

The Small Business Administration (SBA) has issued a final rule amending its regulation on lower-tier small business subcontracting credit to account for statutory changes introduced in the National Defense Authorization Act for Fiscal Year 2020. 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

The FAR Council’s Proposed Cybersecurity Overhaul: Lots of Questions, but Only Some Answers

In what can best be described as a tsunami of cybersecurity regulation, the Federal Acquisition Regulation (FAR) Council—consisting of the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA)—issued two proposed rules on October 2, 2023.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

Subcontracting to a Mentor-Protégé Joint Venture: Changes to How Small Business Subcontracting Goals Are Calculated

Recent changes to the U.S. Small Business Administration (SBA) regulations impact how large businesses can take small business credit for subcontracting to their own mentor-protégé joint ventures (MPJVs). 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

Proposed Sustainable Procurement Rule Would Streamline Existing Environmental Regulations and Clarify FAR Part 23

The Federal Acquisition Regulation (FAR) Council published on August 3, 2023, a proposed “Sustainable Procurement” rule that reorganizes FAR Part 23 for clarity, moves subparts unrelated to sustainability or material safety to FAR Part 26, and includes a proposed “Sustainable Products and Services” contract clause. View the full article

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

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