A blog by Joseph Petrillo
Counting the Government as a customer is a huge win for your business, and can provide both profit and prestige. But in Government contracts, what you don't know can hurt you. Patterns of Procurement helps contractors and their in-house counsel maneuver the tricky terrain. In the blog, Joseph Petrillo of Washington D.C.'s Petrillo &Powell, P.L.L.C, shares the latest and most significant industry cases, augmented by his unique perspective gleaned over 40+ years practicing Government Contract Law.
Some Things to Watch Out For When Technology & Innovation Outweigh Price in Procurement
In the 2019 National Defense Authorization Act (NDAA), Congress placed serious limitations on the Government's use of Lowest Price, Technically Acceptable (LPTA) procurements. As a result, we should be seeing the Government issue more RFPs in which technology and innovation outweigh price. In these instances, contractors can seek a higher price but are expected to show substantial technological advantages. Two recent protests cases out of GAO illustrate the principles of technical proposal evalu
Recent Protest of Army Acquisition Has Big Implications for Future Corrective Actions
Often regarded as one of the simplest acquisition methods, Lowest Price Technically Acceptable (LPTA) procurements award the contract to the offeror that both meets an agency's technical requirements and offers the lowest price. Yet when the Army set out to acquire a replacement for an existing Indefinite Delivery/Indefinite Quantity (IDIQ) contract through an LPTA procurement, things got complicated. In fact, a whopping 21 companies ended up protesting at GAO. When the army tried to correct the
What Happens When Your Contract with the Government is Unenforceable?
Agency professionals who write contracts sometimes fail to include the basic and necessary elements of a contract. Whether an agency omits necessary elements of the contract deliberately or (more likely) by accident, it's often the contractor who suffers. This was the case in a recent procurement by FEMA (Federal Emergency Management Agency), which neglected to include several critical parts in an IDIQ contract with Pros Cleaners. When Pros Cleaners never received a task order for any work under
A Federal Appellate Court Ruling Has Big Implications for Contractors with Commercial Technologies Hoping to Compete for Government Contracts
The Federal Acquisition Streamlining Act (FASA) requires that Federal agencies seriously consider whether existing commercial items will meet their acquisition requirements before seeking to develop new technologies. In a recent case, Palantir Technologies protested when the Army failed to consider commercial technologies for its second-generation Distributed Common Grounds System (DCGS-A) intelligence system. Read the full article to learn why the COFC's ruling may set a precedent for more prot
Can a Commercial Software License Be Valid and Enforceable When It's Not Included in Your Government Contract?
Software manufacturer CiyaSoft recently appealed to the Armed Services Board of Contract Appeals (ABSCA) when the Army violated the terms of their commercial software license. The Army countered that the licensing agreement, which had been shipped with the CD-ROMs containing the software, was not included in the contract. Ultimately, the Board drew upon provisions in the FAR to inform their ruling in favor of the contractor. Software manufacturers who use shrink-wrap or click-on licensing agreem
Pay Attention to these 7 Changes from the 2019 National Defense Authorization Act (NDAA)
Last month, the President signed Congress' FY 2019 National Defense Authorization Act, calling for a host of adjustments to the rules of Federal procurement. Each year the NDAA updates programs and policy initiatives, often in response to complaints from either the Executive Branch or industry. Most updates will make their way into the FAR or the DoD FAR supplement. What follows is an overview of the most important changes you'll want to know about. Read the full article at Petrillo & P
Can Agencies Rely on CBP Rulings in Enforcing the Trade Agreements Act?
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.
DoD Continues to Tackle Acquisition Regulations from the 2017 NDAA
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.
The Legal Precedent for Contract by Conduct in the Public/Private Realm Doesn't Support a Contract Here
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 eventual
What Happens When An Agency Doesn't Disclose Solicitation Criteria?
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 su
A Debrief on the Latest DoD Regulatory Developments
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 particul
5 New Rules for GAO Protests You Should Know
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.
What Happens When the Government Perceives a Cybersecurity Risk in Your Supply Chain
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 o
How NDAA's New Rules on Enhanced Debriefings May Bolster Defense Contractors
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 debrie
Contractors Beware: New GSA Contracting Clause Overwrites Standard License Terms
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 & Po
Skeptical of a Competitor's Technical Evaluation? How One Company Succeeded at GAO
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 &
When An Agency's Solicitation Excludes You From Competing: How One Company's Protest Fared at GAO
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 themselv
Section 809 Panel Urges DoD and Congress to East Compliance Burden on Commercial Item Contractors
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
Why Timing is Everything in Small Business Recertification
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,
What a New Study on DoD Protests Reveals, and Implications for Contractors
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 Def
Is Your Contract Vulnerable to Termination for Convenience?
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 Patt
When Offering a Low Cost Is Detrimental, and a Different Way to Show Technical Acceptability
It sounds simple. In Lowest Price Technically Acceptable (LPTA) procurements, the agency determines the best value proposal by identifying those that are technically acceptable and then selecting the one with the lowest price. But there's a wrinkle when this technique is used for a cost-reimbursement contract. Smartronix's recent protest at GAO illustrates that proposing the lowest cost doesn't always win you the contract, even when you're technically acceptable. Specifically, contractors if the
CONTRACTING OFFICERS: HERE'S HOW TO EVALUATE PAST PERFORMANCE WHEN IT'S THE CRITICAL FACTOR
In a best value procurement, being roughly as good as the competition and offering a slightly lower price doesn't necessarily mean you'll win the contract. Such was the case for DynCorp, which offered a lower price and a comparable CPARS score to the incumbent, L-3 Communications. When DynCorp lost the re-competition for Air Force logistics support, they protested at GAO. But savviness on the part of the agency saved the award. To read the full article, visit Petrillo & Powell's
Concerned About A Perceived Conflict of Interest? Know This Before You Protest.
Federal contractors often hire former agency employees. But rules exist that can place limitations on the business activities of past officials who seek to work with the agency by which they were previously employed. So what happens when a bidder thinks that a competitor has an unfair advantage because it has hired such a former official? A recent protest decision sheds some light on how agencies and GAO proceed when facing such a perceived conflict of interest. Read the full article at Pe
A Refresher on the Major DoD Counterfeit Parts Clauses
For the last several years, the DoD has bulked up regulations aimed at detecting and preventing electronic counterfeit parts within Government contracts. Two major clauses apply these regulations to defense contractors: "Contractor Counterfeit Electronic Part Detection and Avoidance System," and "Sources of Electronic Parts." Here's a summary of the main points of each clause. Read the full article at Petrillo & Powell's Patterns of Procurement.