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Government Contracts Insights

A blog by Morrison Foerster LLP in General

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Entries in this blog

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

Pratt’s Government Contracting Law Report: Key Considerations for Litigating Classified Bid Protests

Kevin Mullen, Sandeep Nandivada, James Tucker, and Caitlin Crujido authored an article for Pratt's Government Contracting Law Report sharing 10 factors to consider when contemplating a classified protest.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

United States Supreme Court: Look to Defendant’s Subjective Beliefs to Decide Whether It “Knowingly” Submitted False Claim

On June 1, 2023, the Supreme Court issued a decision in United States ex rel. Schutte v. SuperValu, Inc., clarifying when a defendant “knowingly” submits a false claim for payment under the False Claims Act (FCA). View the full article

NIST Releases Revised Cybersecurity Controls and Requirements for Protection of Controlled Unclassified Information Resident in Contractor Information Technology Systems

On May 10, 2023, the National Institute of Standards and Technology (“NIST”) released an Initial Public Draft of Revision 3 to NIST Special Publication (“SP”) 800-171, Protecting Controlled Unclassified Information in View the full article

The Debt Ceiling and Its Potential Implications for Government Contractors

Contractors face potential payment uncertainty as a result of the current congressional inability to agree to increase the federal government’s debt ceiling. The government reached the official debt limit months ago, on January 19, 2023.  Yet by all appearances it continues to operate “as normal.” The appearance of normalcy is due to the government’s considerable cash reserves and its use of certain “extraordinary measures” (such as not paying into trust funds).View the full article

Ninth Circuit Dissolves Preliminary Injunction of EO 14042 Contractor Vaccine Mandate

On April 19, 2023, the U.S. Court of Appeals for the Ninth Circuit deviated from its sister circuits and reversed the Arizona district court’s preliminary injunction of the contractor COVID-19 vaccine mandate issued pursuant to Executive Order 14042 (“Contractor Mandate”). View the full article

Supreme Court Weighs in on the Role of Subjective Intent Under the False Claims Act

On Tuesday, April 18, 2023, the Supreme Court heard argument in the consolidated cases of United States ex rel. Schutte v. SuperValu, Inc., and United States ex rel. Proctor v. Safeway, Inc., to consider whether subjective knowledge about the falsity of a claim can establish liability under the False Claims Act (“FCA”). View the full article

March 2023 Bid Protest Roundup: Review, Self-Certification

This month's bid protest spotlight considers two recent protests. J.E. McAmis Inc. v. U.S. is an important decision by the U.S. Court of Federal Claims concerning the court's lack of authority to review the U.S. Small Business Administration's issuance of a certificate of competency. View the full article

Back to the Drawing Board: Far Councils Withdraw Long-delayed Proposed Rule for Lower-tier Small Business Subcontracting Credit

Some of you may recall the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2014 from nearly a decade ago. It amended the Small Business Act (SBA) to allow a contractor, under certain circumstances, to receive credit towards its subcontracting plan goals for awards made to small businesses at any tier under the contract. View the full article

February 2023 Bid Protest Roundup: Lessons For Joint Ventures

The common theme of this month’s Law360 Bid Protest Roundup is a seemingly hot topic these days: joint ventures.  One recent Government Accountability Office (“GAO”) decision and one recent U.S. Court of Federal Claims (“COFC”) decision both touch upon past performance issues related to joint ventures. The third decision, also a COFC decision, focuses on the requirement that joint ventures must be registered in SAM.gov at the time of proposal submission.View the full article

SAM.gov Is Changing – Make Sure You’re Keeping Up

The System for Award Management website (SAM.gov) recently changed its registration and update process, and the feedback we’ve heard from clients is that it is slow – even for entities that are simply renewing an existing registration. As SAM delays can cause payment delays, the best advice is not to leave renewing your SAM entry until the last moment. This is the case because SAM’s update process requires entities to verify their business against a database of organizations and addresses, leavi

OMB Proposes New Domestic Preference Requirements for Federally Funded Infrastructure Projects

On February 9, 2023, the Office of Management and Budget (OMB) issued a proposed rule that would subject all federally funded infrastructure projects to domestic preference requirements that are materially similar to the View the full article

Is Your Joint Venture Agreement Compliant with Current SBA Regulations and Current Case Law?

The Small Business Administration’s (SBA) popular shields from affiliation for all-small and mentor-protégé joint ventures are powerful tools for helping small businesses succeed in the federal procurement marketplace.View the full article

January 2023 Bid Protest Roundup: Size Protests, Blue & Gold, Sole Source

Since the January Bid Protest Roundup marks the beginning of February, we begin with a takeaway that needs no supporting authority beyond common sense: if you have not already done so, get your Valentine’s Day gift now. And, like a box of chocolates desperately procured at the last minute, this Roundup has a bit of everything: a case from the Federal Circuit on bid protest jurisdiction, a Court of Federal Claims case exploring the nuances of the Blue & Gold Fleet rule, and a capstone from th

Sixth Circuit Follows Suit in Affirming Preliminary Injunction of Contractor Vaccine Mandate

On January 12, 2023, the U.S. Court of Appeals for the Sixth Circuit joined the Fifth and Eleventh Circuits in upholding a preliminary injunction against the enforcement of the Biden Administration’s effort to impose on federal contractors a variety of COVID-19 safety-related protocols, including a vaccine mandateView the full article

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