Insights

Most organizational conflict of interest (OCI) sustains arise where the record shows that an agency failed to analyze the potential for a conflict.  But GAO’s decision in A Square Group, LLC, is a rarer type of OCI sustain: the agency considered the purported OCI and documented its conclusion that the OCI had been mitigated.  However, GAO found that the agency’s conclusions were unreasonable, and the OCI risk remained.

On March 23, 2022, a bipartisan group of senators introduced the Preventing Organizational Conflicts of Interest in Federal Acquisition Act. Designed to identify and address potential conflicts of interest in the federal acquisition system, current and prospective government contractors should closely monitor the Act’s progress.

In American Mine Services, LLC, B-420138 (Dec. 3, 2021), the Government Accountability Office (“GAO”) denied a protest by American Mine Services (“AMS”), finding that the Army Corps of Engineers (“Corps”) reasonably rejected AMS’ bid because it included a provision stating that COVID-19, as well as other similar pandemics or endemics, would be considered “force majeure” events.

Congress has not passed crucial funding bills for the start of FY 2022 and, on September 28, 2021, Treasury Secretary Yellen informed Congress that Treasury now estimates that the Federal government will reach the debt ceiling by October 18.  As a result, we again face the prospect of a government shutdown for lack of funding.  While Congress may yet take action, agencies across the government are likely to begin taking steps to prepare for a shutdown, and contractors should do so as well.

As part of our continuing commitment to help our clients address the effects of COVID-19, we are providing the initial, anonymized, and aggregated results from our benchmarking questionnaire.  We continue to gather information and update the responses, but given the rapidly changing environment, we wanted you to have this information sooner than later. 

We thank our clients for your input on our effort to help contractors benchmark what companies are doing as part of COVID-19 contingency planning. Please use the survey link below to access the brief benchmarking questionnaire. Assuming we have a sufficient number of responses, we will aggregate and share responses (on an anonymous basis).

Welcome to our Government Contracts Classroom. Through a variety of media, the Classroom will serve as a resource for government contractors. The Classroom is intended to provide insight and training on issues that government contractors, and their legal and business teams, often face. The Classroom will be updated regularly with new content, host on-demand materials, and have a schedule of upcoming presentations hosted by the Crowell & Moring Government Contracts Group.

On March 22, 2018, the Department of Defense (DoD) issued a Class Deviation to ensure that all DoD agencies comply with the enhanced post-award debriefings set forth in in Section 818 of the FY 2018 National Defense Authorization Act. Effective immediately, offerors may submit additional questions within two business days of their debriefing, to which the agency is required to respond within five business days. A protest filed within five calendar days of receipt of the Government’s responses to additional questions will trigger issuance of the automatic stay of performance provided for by the Competition in Contracting Act.

With yet another threat of a federal government shutdown, contractors must again prepare for the consequences. Although the issues that contractors will face under a shutdown may vary with the circumstances of individual contracts, there are a number of common considerations. Based on our experience under prior federal Government shutdowns, these include:

After a two-week reprieve, we again face the prospect of a government shutdown for lack of funding. Earlier this month, Congress provided short-term funding – through a continuing resolution – to buy more time for negotiation of FY 2018 appropriations bills. But the continuing resolution expires at midnight Friday night, and no deal has been reached. While Congress may yet take action, agencies across the government are taking steps to prepare for a shutdown, and contractors must too.

In a decision released publicly on March 31, 2017, the Court of Federal Claims denied a protest challenging a competitive range determination that left AT&T, represented by C&M, as the last remaining contender to win a 25-year contract to build and operate a nationwide public safety broadband network. The network will consolidate public safety use of the radio spectrum and prioritize first responders in times of crisis, while granting AT&T claim over large amounts of unused spectrum, as well as $6.5 billion for construction costs. The Court held, among other things, that the relatively extensive exchanges between the offerors and the agency before the competitive range determination was made were “communications,” not “discussions,” under the FAR because the agency neither intended to accept, nor permitted, proposal revisions. The Court also held that the government reasonably rejected the protester’s proposal where it coupled unacceptable financial risk with a questionable business model.

In XPO Logistics Worldwide Gov’t Servs., LLC (released Mar. 21, 2017), in which C&M co-represented XPO, GAO sustained a protest challenging the awardee’s past performance rating, setting aside USTRANSCOM’s award of a $3B freight services contract. GAO found that the value of the awardee’s past efforts are extremely small relative to the value of the requirement, that the contemporaneous record did not explain the basis for the agency’s determination that these tiny past efforts were somewhat relevant under the solicitation, and that the agency’s post hoc reevaluation during the protest was unreasonable. GAO recommended that the agency reevaluate the awardee’s past performance and then make a new award decision.

The Government Contracts Group of Crowell & Moring LLP is pleased to announce its Government Contractor Recovery Practice, focused on recovery opportunities for our clients in in the government contracting industry. Our team consists of experienced and highly skilled attorney and non-attorney government contract management professionals who stand ready to assist clients with identifying and pursuing claims based on a variety of contractual theories – including REAs and claims to recover (i) increased performance costs attributable to Government action or delay, (ii) costs resulting from Government-initiated contract termination, (iii) costs of remediating certain environmental pollution and toxic tort litigation covered by certain indemnification clauses, and (iv) other costs to which contractors are entitled by operation of contract or statute. Our Performance Review Offering (PRO) allows, at your request, our team of experienced Crowell & Moring attorneys to provide a “diagnostic” review of the relevant documentation on your contract or program and make a recommendation regarding whether or not to pursue a claim; we can also discuss alternative fee arrangements, including risk-sharing, full and partial contingency arrangements.

On the last full day of the Obama Administration, the Department of Homeland Security (DHS) published a proposed rule that would make several amendments to the Homeland Security Acquisition Regulation (HSAR) regarding Controlled Unclassified Information (CUI). Despite recent developments, the proposed rule is open for comment until March 20, 2017, and seeks to impose several obligations, including: (1) contractors handling CUI under a contract must be in compliance with a bevy of DHS policies and procedures at the time of contract award; (2) contractors operating federal information systems must meet numerous information security obligations prior to handling CUI on those systems; (3) contractors must report known or suspected incidents affecting CUI within one to eight hours, depending on the type of CUI at issue; and (4) contractors must adhere to specific breach notification and credit monitoring requirements in response to incidents affecting personally identifiable information (PII), a subset of CUI.

The Government Contracts Group of Crowell & Moring LLP is pleased to announce its offering of Government Contract Management Services, a cost effective solution without sacrificing expertise. Our team consists of experienced and highly skilled non-attorney government contract management professionals that work closely with our world-class government contracts attorneys to assist clients with all aspects of federal, state and local government contract administration and management throughout the entire contract lifecycle.

In Prof’l. Serv. Indus. Inc. v. United States, the Court of Federal Claims sustained a protest of a corrective action that the Federal Highway Administration took in the wake of a GAO decision that the awardee’s proposed program manager lacked the requisite experience. The court found that the agency’s decision to amend the solicitation was arbitrary and capricious because the agency changed the required qualifications for the program manager—in a manner that conformed to the original awardee’s proposal—rather than conducting a re-evaluation of the proposals under the un-amended solicitation’s criteria.

Pursuant to the sunset provision of 41 U.S.C. § 4106(f)(3), and resulting Congressional inaction, GAO protest jurisdiction over task order awards by Civilian Agencies will end today at 5:30 PM EST, except for “a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued.” However, pursuant to Technatomy Corp., B-405130, June 14, 2011, 2011 CPD ¶ 107, GAO will likely have jurisdiction to decide protests filed before the deadline.

In AT&T Gov’t Solutions, Inc. (released Sept. 12, 2016), in which C&M represented AT&T, GAO sustained the protest of the Air Force’s award for computer network operations and cyberspace warfare operations. GAO determined that the Air Force had failed to reasonably evaluate whether the awardee had adequately avoided or mitigated unequal access to competitively sensitive information to which the awardee had access through its subcontractor that had provided acquisition support for the program and that the Air Force award decision was also premised on flawed past performance evaluations.

In Coast Professional, Inc. v. U.S. (July 12, 2016), the Federal Circuit revived bid protests (including that of the lead appellant, represented by Crowell & Moring) challenging task order contract awards that had previously been dismissed for lack of jurisdiction by the CFC. The court held that, because the appellants were challenging the “proposed award or the award” of new task orders under GSA Federal Supply Schedule contracts, which challenges fall squarely within the CFC’s statutory bid protest jurisdiction, it was irrelevant whether the new task orders, which were in the form of award-term extensions, shared some functional similarities to options or originated out of existing contracts rather than being the subject of entirely separate procurements.