With apologies to Paul Simon, this is another in a series of articles on the 50 ways contractors can lose awards on federal contracts. These cautionary tales should inform anyone in a contractor organization with responsibility for authorizing, preparing, or negotiating competitive federal contract proposals.
Like the inverse of Steven Covey’s Seven Habits of Highly Effective People bestseller, the mistakes that lead to lost awards are well known and include: carelessness, greed, lack of attention to detail, procrastination, and cursory (or omitted) red-team reviews. This article highlights another surefire path to disaster: failing to adequately correct proposal weaknesses after discussions.
Treasury’s solicitation required that offerors both describe their search solutions in technical proposals, and have a working computing solution, active for government testing. After initial proposal submissions and initial evaluations, the government advised offerors of weaknesses and deficiencies in their proposals and in their computing solutions. Treasury advised Lexis that its proposal suffered from a significant weakness due to Lexis’ computing solution’s return of erroneous search results. Discussions were opened and offerors were permitted to submit final proposal revisions. Offerors were also permitted to correct any deficiencies in their computing solutions before another round of government testing.
As 2021 shifts into high gear, Blank Rome’s Government Contracts practice is pleased to share our 2020 Year-in-Review, covering key government contracts issues, recent practice news and recognitions, and our look at the year ahead.
Thanks to the trust and support of our clients and colleagues and our dedication to our Client Service Principles, we helped guide clients through an unprecedented 2020, and look forward to partnering with them to forge ahead in 2021.
We are particularly proud of Blank Rome’s commitment to diversity, equity, and inclusion, including our practice’s facilitation of the ABA Public Contract Law’s 21-Day Racial Equity Habit-Building Challenge. We will continue to actively support these important issues in 2021 and beyond, and firmly believe our collective and sustained action will make a difference in our profession.
Finally, if you have not already, we invite you and your team to subscribe to this Government Contracts Navigator blog, where we cover issues of importance to our government contracting community. We know there are a lot of blogs out there, but we keep a strong focus on the practical, with day-to-day business considerations in mind. Interested in the greatest hits? We’ve included in this report a list of the top 10 read posts in 2020. You can also follow us on Twitter @GovConBR.
Thank you for reading. And please let us know how we can help you and your business. Wishing you and your families health and success in 2021.
This is the first in a series of blog posts concerning the audits and investigations related to the contracts and grants awarded, and relief funds provided, in response to the COVID-19 pandemic. As of February 2021, pursuant to the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which created the Paycheck Protection Program (“PPP”) and supplemental funding such as the Families First Coronavirus Response Act, the United States government has made available an estimated four trillion dollars in relief funds to businesses and individuals, and the Biden administration is proposing roughly two trillion dollars more.
In addition to the relief funds, the Government has easily awarded more than billions in pandemic-related contracts for everything from vaccines to PPE to hand sanitizers. These levels of funding and spending are unprecedented and have been made at breakneck speed (for the government). Based on these factors and lessons from the past, audits of relief recipients and contractors to confirm appropriate use of government funds are inevitable. And the government has said as much. Of course, if an audit reveals potential wrongdoing or malfeasance, relief recipients and contractors should expect follow-on investigations and enforcement activity.
This first post identifies the myriad of entities that are or will be reviewing—and potentially investigating—relief recipient and contractor representations made to obtain, and subsequent use of, government funds.
Contractors and contractor teams competing for set-aside contracts should internalize the Federal Acquisition Regulation (“FAR”) compliance lesson imparted by a recent Government Accountability Office (“GAO”) protest decision related to small business set-aside procurements. In Kira Training Services, LLC, B-419149.3 (January 4, 2021) GAO illustrated that in the set-aside area, an Agency can violate a mandatory FAR provision, but a contractor cannot complain unless it takes timely proactive steps to protect itself from the government error. In Kira, GAO found that on a set-aside contract, the Navy violated the FAR by not sending the required pre-award list of intended awardees to all offerors, but the small business protester was not competitively prejudiced by the Navy error because it failed to protect itself by filing a post-award size protest.
The purpose of the pre-award notice on small business set aside contracts is to allow competitors to timely file size protests against proposed awardees who may not be an eligible small business. The regulations make it more advantageous for a bidder to challenge a competitor’s size before award, as opposed to post award, when an adverse size or status ruling may not prevent the government from proceeding with the challenged procurement even if the size protest is sustained.
“Buy American” is one of few policy areas where the Biden and Trump administrations appear to generally agree. The Trump administration expressed support for strengthening regulatory implementation of the Buy American Act (“BAA”), and, in Executive Order 13881 (July 15, 2019), directed the Federal Acquisition Regulatory Council (“FAR Council”) to consider proposed regulations to increase and create new domestic content thresholds required for a product to qualify for domestic preference treatment. We wrote four months ago about the FAR Council’s proposed regulations to do just that, and to increase the price evaluation credit given to domestic products subject to the BAA. (SeeProposed Rule Portends Increased Contractor BAA Obligations.) On January 19, 2021, the FAR Council published its final rule, largely adopting the proposed version.
Protection of the workforce is a major focus of the Biden Administration. Rather than attempting to pass new legislation or amend existing statutes, the path of least resistance in the short term appears to be the use of executive orders to implement or, as here, rescind Trump Administration Executive Orders and put into effect many of the same policies as the Obama Administration. The starting point for the Biden Administration is to take the steps to implement rules with respect to the federal workforce and the workforce performing federal government contracts.
One of President Biden’s first actions in office was to direct federal government agencies to start the work to permit implementation of certain changes within the first 100 days of the administration through further executive action. These initiatives most likely will include an increased federal contractor minimum wage, requirements to offer employment to employees of an incumbent contractor, perhaps requiring contractors to disclose labor violations when seeking federal contracts, and increased Service Contract Act (“SCA”) enforcement.
President Biden’s Executive Order 14003 on Protecting the Federal Workforce issued on January 22, among other requirements, directed the Office of Management and Budget to make recommendations regarding establishing a $15 minimum wage for federal employees and federal contractors and subcontractors (the current federal contractor minimum wage is $10.95) and to provide employees with emergency paid leave.
President Biden’s Executive Order 13985 on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government issued on January 20 revoked President Trump’s controversial Executive Order prohibiting certain types of workplace diversity trainings for federal government contractors.
Last week, the Government Accountability Office (“GAO”) issued a report on Department of Energy (“DOE”) contracting, Improvements Needed to Ensure DOE Assesses Its Full Range of Contracting Fraud Risks. The thrust of the report is that DOE should do more to prevent and detect fraud, particularly in less-examined areas such as bid-rigging, misrepresentation of eligibility, kickbacks and gratuities, and conflicts of interest.
DOE relies on contractors to carry out its missions at laboratories and other facilities, spending approximately 80 percent of its $41 billion in total obligations on contracts. In March 2017, GAO reviewed DOE’s approach to managing its risk of fraud and found DOE did not use leading practices, resulting in missed opportunities to mitigate the likelihood and impact of fraud.
We are thrilled to share that Stephanie Harden—a long-time and integral member of our practice group—has been elected to the partnership. For those who haven’t had the chance to connect or work with Stephanie—which we highly recommend!—we wanted to share the highlights of our virtual chat with Stephanie (edited for the blog) to help everyone get to know her better.
First of all, congratulations on your promotion! This is obviously the culmination of many years practicing in the field—but how did you first get interested in government contracts law?
Thank you! I’m very excited about this milestone and helping our clients succeed in my new role.
I spent one of my law school summers at GAO’s Office of General Counsel, where I was first exposed to bid protest litigation. I loved the fast-paced nature of bid protests and was interested in learning more about the field. After law school, I clerked for Judge Victor Wolski on the U.S. Court of Federal Claims, where I learned about a host of government contracts issues and really solidified my interest in government contracts law. Being able to observe and learn from the Judge and the advocates practicing before the Court (both from the Justice Department and private bar) gave me a strong foundation for success.
The Government Accountability Office (“GAO”) has released its Annual Report to Congress summarizing bid protest activity for Fiscal Year 2020 (GAO-21-281SP). The report shows that, in a unique year where COVID-19 altered procurement practices and priorities, protest activity at GAO was remarkably stable. Of note, GAO’s “effectiveness rate” this year topped 50 percent, meaning most protests resulted in some form of relief. The number of task order protests continues to increase, despite a modest dip in overall protests. Unsurprisingly, again there were very few hearings.
The chart below summarizes the GAO protest statistics from FY 2015 to FY 2020.
Here are four key takeaways from the latest report.