For years bid protest filings at the Government Accountability Office (GAO) have been done by e-mail (or even fax, mail or hand delivery).  In January 2014, Congress directed GAO to establish a electronic filing and document dissemination system (not unlike the PACER system used by federal courts), and authorized GAO to charge a filing fee to those filing bid protests.  Since that time, GAO has been working on developing an electronic filing system, which GAO calls “EPDS.”  The process has taken longer than most expected, but in February 2018 GAO announced EPDS was almost ready and started handling some protests on EPDS as part of a pilot program.  Today, GAO issued the final rule for EPDS, and announced that rule would take effect on May 1, 2018.  This means that starting in May all bid protest at GAO must be filed through EPDS (protesters will no longer be able to file protests by email) and GAO will charge a $350 fee for filing a protest.

Given the short and strictly enforced time limits for filing protests at GAO, those who file bid protests should consider signing up for an account immediately at https://epds.gao.gov/, and familiarize themselves with the new rules well before they take effect May 1st.  GAO has provided handy instruction manuals and videos for EPDS at https://www.gao.gov/legal/bid-protests/file-a-bid-protest.

As we previously discussed, when Congress passed the FY 2018 NDAA it required the Department of Defense (“DoD”) to issue regulations providing for enhanced post-award debriefing rights on certain DoD procurements.  Specifically, Congress mandated enhanced content requirements, a follow-up question process, and corresponding changes to the time to file a bid protest at GAO with a suspension of performance of the protested contract (a “CICA stay“):

  • Enhanced Content Requirements:  While protecting the confidential and proprietary information of other offerors, the debriefing shall include, at a minimum, the agency’s written source selection award determination, redacted to protect the confidential and proprietary information of other offerors.  These enhanced content requirements apply to “required” debriefings if (1) the contract award exceeds $100M, or (2) the contract award exceeds $10M and the contractor requesting the debriefing is a small business or nontraditional contractor who request such disclosure.
  • Follow-up Question Process:  Disappointed offeror would be allowed the opportunity for follow-up questions within two business days of receiving a post-award debriefing to be answered in writing by the agency within five business days.
  • Time to file protest at GAO and obtain a CICA stay:  The debriefing would not be considered concluded, and the five day post-debriefing period pertaining to when a protest needs to be filed to invoke a CICA stay would not commence, until the day the agency delivers its written responses to the disappointed offeror’s follow-up questions.

The enhanced content requirements were to be implemented through DFARS regulatory changes, which DoD has until June 2018 to issue.  On the other hand, the follow-up question process, and corresponding changes to the time to file a bid protest at GAO with a CICA stay, are already reflected in statutory changes (10 U.S.C. 2305(a)(5) and 31 U.S.C. 3553(d)(4)).  Still, changes to the DFARS were expected to implement the follow-up question process.  But this week, in advance of changes to the DFARS, DoD issued Class Deviation 2018-O0011 – Enhanced Postaward Debriefing Rights, which provides for the immediate implementation of the follow-up question process (and corresponding changes to the time to file a protest at GAO and obtain a CICA stay): Continue Reading DoD Begins Implementation of Enhanced Post-Award Debriefing Rights

Cooperative Agreements” are legal instruments that facilitate the transfer of something of value from federal executive agencies to states, local governments, and private recipients for a public purpose or benefit.

Cooperative Agreements are distinct from traditional procurement contracts and thus are not subject to the Federal Acquisition Regulation (FAR). Like Other Transaction Authority, this approach provides agencies greater freedom to craft the terms of an agreement around new or innovative endeavors. For example, the FDA uses this freedom to advance food safety with states by funding implementation of food safety rules. As the Federal contracting landscape becomes increasingly complex, Cooperative Agreements represent an opportunity for some contractors to pivot to a more streamlined federal funding mechanism. Continue Reading An Overview of Cooperative Agreements in Federal Contracting

The Randolph-Sheppard Act (“RSA”) grants blind persons, operating through State Licensing Agencies, mandatory priority in the award of contracts for the operation of vending facilities on federal property so long as the SLA contractor satisfies criteria established by the RSA’s implementing regulations prescribed by the U.S. Secretary of Education.  In its recent decision in State of Texas v. United Statesthe Court of Federal Claims (“COFC”) made two key rulings in relation to the RSA:

  1. Prior Government Accountability Office (“GAO”) decisions related to the RSA are not persuasive on the COFC, as GAO lacked jurisdiction to hear these protests, and
  2. The RSA creates a two pronged test before granting a State Licensing Agency (“SLA”) priority in a solicitation for vending services — (i) the SLA must be within the procurement’s competitive range, and (ii) the the contracting agency must perform cost and food quality evaluations pursuant to the solicitation, which may be in addition to a determination of whether the proposal falls within the competitive range.

In State of Texas v. United States, the Air Force issued a solicitation for vending services at Joint Base San Antonio.  The State of Texas, acting by and through one its state agencies that qualified as a SLA under the RSA for the purposes of the procurement, submitted a proposal.  The Air Force originally found that the State of Texas’ proposal did not fall within the competitive range.  In response to being excluded from the competitive range, the State of Texas filed for arbitration with the U.S. Department of Education, as is required by the RSA.

Continue Reading Texas Gets Burned: Court of Federal Claims Finds State’s Randolph-Sheppard Act Protest Premature

Earlier this year, the U.S. Senate and House of Representatives passed different versions of the National Defense Authorization Act for Fiscal Year 2018 (“FY 2018 NDAA”).  The Senate version contained dramatic bid protest reforms that, with the exception of the reforms to debriefing, were largely unpopular in the government contracting community.  The House version did not contain these reforms.  After meeting in conference over the past month to iron out the differences between the two bills, on Nov. 8, 2017, the House and Senate Armed Services Committees announced an agreement had been reached.  Contractors can breathe a sigh of relief, as most (if not all) of the protest reforms that the contracting community viewed negatively were left out of the bill agreed to in conference. Continue Reading House and Senate Strike Deal on Bid Protest Reforms in FY 2018 NDAA

Under the National Defense Authorization Acts (NDAAs), Congress provides legislation on various aspects of how the Department of Defense (DOD) defines and purchases commercial items. In July, Government Accountability Office (GAO) released a study on detailing (1) trends in the DOD’s acquisition of commercial items; and (2) recent NDAA changes from fiscal years 2013-2017 related to procurement of commercial items and actions taken by DOD in response to this legislation.

The Federal Acquisition Streamlining Act of 1994, of course, established a preference within the federal government to procure commercial items rather than items developed exclusively for the government.  “Commercial items” are generally defined as products and services readily available in the commercial marketplace. Purchasing commercial items enables the DOD to participate in the commercial marketplace (when appropriate) and to take advantage of market innovations and reduce its acquisition costs. Despite this preference, the GAO study shows the DOD has been slow to embrace the preference to buy commercial items – but why?  Continue Reading GAO Reports Decrease in Department of Defense Commercial Item Acquisitions

With every new administration, there is both great uncertainty and opportunity in federal government contracting. To help you navigate the rough seas of doing business with the federal government in this new administration, we have assembled nationally recognized practitioners who will cover topics relevant to government contractors large and small, novice and seasoned. Session topics include:
– Ten Things Every Contractor Needs to Know When Doing Business with the Federal Government
James F. Nagle | Oles Morrison Rinker & Baker LLP | Seattle, WA
 
– Writing a Winning Technical Proposal – From the Contracting Officer’s Perspective
Mona Carlson, Mary Jo Juarez | PTAC Kitsap Economic Dvlpmnt. Alliance – Navy Contracting Officer (retired) | Kitsap, WA
 
– Keys to Winning Bid Protests and Defending Contract Awards
Adam K. Lasky | Oles Morrison Rinker & Baker LLP | Seattle, WA
 
– Navigating the Complex Rules Governing Data Rights
Jonathan M. Baker | Crowell & Moring LLP | Washington D.C.
 
– Overlooked Risks of Being a Lower-Tier Government Contractor
Alan C. Rither | Pacific Northwest National Laboratory | Richland, WA
 
– Mistakes to Avoid in the Claims and Litigation Process
Donald G. Featherstun | Seyfarth Shaw LLP | San Francisco, CA
 
– Adapting to Buy American and Domestic Preference Rules in the Trump Administration
Howard W. Roth | Oles Morrison Rinker & Baker LLP | Seattle, WA
 
– Understanding & Managing the Risk of Suspension & Debarment
Dominique L. Casimir | Arnold & Porter Kaye Scholler LLP | Washington D.C.

Thursday, November 16th 

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272546436_4edcb4b3e0_bPresident Trump has signed Executive Order 13767 that directs a wall to be built on the Mexico-United States border.  The Department of Homeland Security has sought proposals to design and build a prototype of the border wall, and many contractors have submitted offers.  At the same time, several state and local governments (such as New York City, San Francisco, Berkeley, Oakland, New York, Illinois, and California) are considering or proposing legislation to prohibit contractors working on the border wall from contracting with that state/local government. These contractor “sanctions” are a complex, untested issue, and contractors bidding, or considering working, on the border wall project need to know that the issue is now in play. Such legislation, if adopted by a state/local government, will raise constitutional issues.  Aside from due process and equal protection issues, there are at least two relevant U.S. Constitution clauses both of which may ultimately doom any proposed state/local legislation to sanction border wall contractors: the Supremacy Clause and the Dormant Commerce Clause. Continue Reading Possible Constitutional Issues with Proposed State/Local Sanctions Against Contractors Working on President Trump’s Border Wall

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In what appears to be the first litigation concerning “intergovernmental support agreements” (IGSA), the Government Accountability Office (GAO) in Red River Waste Solutions, Inc., B-414367 (March 21, 2017) declared that it has jurisdiction to review the award of IGSAs (in this particular case an IGSA for garbage collection services).

Section 331 of National Defense Authorization Act for FY 2013 (FY2013 NDAA) authorized a public-public partnership mechanism called “intergovernmental support agreements” (IGSA). Specifically, the Department of Defense (DoD) agencies “may enter into an [IGSA], on a sole source basis, with a State or local government to provide, receive, or share installation-support services if the Secretary determines that the agreement will serve the best interests of the department by enhancing mission effectiveness or creating efficiencies or economies of scale, including by reducing costs.” However, IGSA’s may only be used when the “State or local government … providing the installation-support services already provides such services for its own use.” Furthermore, the FY2013 NDAA also requires that any underlying contract used by the State or local government to provide the installation-support services must be awarded on a competitive basis.

In the Red River Waste Solutions case, Red River protested the Army’s award of an IGSA to Vernon Parish, Louisiana, to provide garbage collection services at Fort Polk, Louisiana. The Army awarded Vernon Parish an IGSA to perform garbage collection at the Fort Polk, and in turn Vernon Parish extended its existing contract for garbage collection in Vernon Parish (with Progressive Waste Solutions of Louisiana) to also cover garbage collection at Fort Polk.

Red River argued that the Army’s award of the IGSA to Vernon Parish was “contrary to the ‘enabling statute’ that authorizes the award of IGSAs” because (1) Vernon Parish did not already provide the services being procured, and (2) because Vernon Parish had not conducted a competition under which Red River could compete for the required services. While GAO ultimately dismissed the protest as untimely, GAO’s decision provided several important take-aways for future procurements involving IGSAs: Continue Reading GAO has Jurisdiction to Review Award of an Intergovernmental Support Agreement

4635056311_30c140df8f_oIn these early days of Donald Trump’s administration, domestic sourcing requirements are receiving heightened focus.  President Trump’s Jan. 24, 2017, “Presidential Memorandum Regarding Construction of American Pipelines” asks the Secretary of Commerce to “develop a plan under which all new pipelines . . . inside the borders of the United States . . . use materials and equipment produced in the United States, to the maximum extent possible and to the extent permitted by law.”  Yet, when a company is asked to certify to its customer that its products comply with domestic content law, the answer is rarely straightforward.  Contractors should therefore be proactive and review the Buy America and the Buy American Acts.  The penalties for non-compliance are serious and include civil or criminal False Claims Act violations, suspension or debarment, contract terminations and other claims against a contractor by the Government.

Buy America Act

The Buy America Act is the popular name for a group of domestic content restrictions that attach to specific funds administered by the Department of Transportation (DOT).  The Buy America provision of the Surface Transportation Assistance Act of 1982, 23 U.S.C. § 313, state that the Secretary of Transportation “shall not obligate any funds authorized to be appropriated to carry out the Surface Transportation Assistance Act . . . unless steel, iron, and manufactured products used in such project are produced in the United States.”  These funds are used to make grants to states and other non-federal government entities for various transportation purposes.  Continue Reading President Trump Puts Buy America and Buy American Acts in the Spotlight – What Contractors Need to Know