Insight Technology challenged a solicitation requirement that offerors possess capability maturity model integration (“CMMI”) level 3 certification at the time of proposal submission.
GAO denied the argument that the certification requirement was unduly restrictive of competition overall but agreed with the protester that requiring the certification at time of proposal submission, rather than at time of award, was unreasonable.
GAO found nothing in the record to support a need for the certification prior to the start of performance, much less before award.
The agency argued earlier certification was necessary to allow it to evaluate offerors, but GAO found no reason the objective determination of whether the offeror possessed the certification would need to be completed until immediately before award, at the earliest.
GAO recommended the agency amend the solicitation to allow certification at time of award or performance.
Office Depot challenged GSA’s attempt to use a single blanket purchase agreement to purchase both hardware/industrial supplies and office supplies, arguing that the evaluation scheme was unreasonable because it was predicated on consideration of incomplete historical sales information for the office supplies.
The protester argued that the market basket to be used for evaluation was based on historical sales of hardware and industrial items, to the exclusion of data on office supplies, which resulted in a market basket which didn’t reasonably represent the likely purchases of office supplies.
GAO agreed that the Agency had unreasonably relied on limited historical data regarding office supply sales to predict its future buying needs and that it had no (or virtually no) basis for forecasting estimated quantities of office supplies.
GAO recommended GSA conduct additional market research and revise the solicitation with a reasonable representative sample of estimated hardware/industrial items and office supply purchases.
This year’s list spans 96 law firms and 36 practice areas, and recognizes attorneys under 40 whose legal accomplishments “belie their age” and honors their significant career accomplishments in their respective disciplines.
To learn more about Elizabeth and view the full list of 2022 Rising Stars, please visit our website.
GAO sustained the protester’s allegation that the Department of Health and Human Services had engaged in unequal discussions.
Once an agency chooses to conduct discussions, it must do so with all offerors in the competitive range under FAR 15.306(d)(1).
Here, the Agency did not dispute that it engaged in discussions with only the awardee, but claimed it had established “a de facto competitive range of one.”
GAO found that the record was devoid of any documentation or support for the Agency’s contention that a competitive range had been established before holding discussions with only one offeror, the awardee.
GAO stated, “[w]here, as here, there is no record or evidence that the agency established a competitive range, we will not infer the existence of a de facto competitive range, in order to validate an agency’s omission of an offeror during its conduct of discussions.”
GAO sustained the protester’s challenge where the Defense Department considered a factor that was not reasonably encompassed within the evaluation criteria.
The RFQ provided that the agency would evaluate technical approach to determine the extent to which the approach demonstrated understanding of the requirements, feasible methods to accomplish required tasks, and reliable methods for ensuring quality deliverables.
In comparing the protester and awardee’s quotations, though, the agency found that the protester’s approach was only “somewhat superior” because it relied on “experience and not necessarily innovation.”
GAO found this conclusion inconsistent with the RFQ’s evaluation criteria, which did not put offerors on notice that their approach would be devalued if rooted in experience rather than innovation.
GAO found no clear nexus between the identified evaluation criteria and the agency’s consideration of experience and innovation and sustained the protest accordingly.
In late 2021, we were thrilled to welcome Elizabeth N. Jochum in our Washington, D.C., office as a partner in the Government Contracts practice. A skilled litigator and counselor with a significant background in white collar defense and investigations matters, Elizabeth joined Blank Rome from Smith Pachter McWhorter PLC, where she was a partner.
Elizabeth advocates for government contractors in bid protests before the U.S. Government Accountability Office and the U.S. Court of Federal Claims as well as handles appeals before the Armed Services and Civilian Boards of Contract Appeals and the U.S. Court of Appeals for the Federal Circuit. She also represents contractors in size protests, determinations, and appeals before the Small Business Administration. Elizabeth advises prime contractors and subcontractors on a range of matters, including regulatory compliance, contract negotiation, due diligence for mergers and acquisitions, and change and claim preparation.
Now that she has settled in at Blank Rome, we took a few minutes to chat with Elizabeth to find out more about her background, interests, and approach to client service. Here are the highlights, so that you can get to know her!
Welcome (again) to Blank Rome! We are so excited to have you on our team! What brought you to Blank Rome?
Thank you! I am so thrilled to be here, the transition has been incredibly smooth thanks to how welcoming the firm and group have been to my clients and me. I was drawn to Blank Rome because of the government contracts group’s incredible reputation. I have also had the opportunity to work with several members of the group on various matters and speaking engagements so had no doubt they were exactly the kind of smart, business-minded, and collegial people I hoped to work with. I also wanted to offer my clients a broader range of support outside of government contracts—particularly on labor & employment and corporate issues. Blank Rome has incredible capabilities in those areas as well.
For years, the Government Accountability Office (“GAO”) has been moving towards an increasingly draconian position on offerors’ obligations to notify agencies when the availability of proposed personnel changes after proposal submission. A recent decision by the Court of Federal Claims (“COFC”) in Golden IT, LLC v. United States expressly addressing and departing from the GAO precedent may give hope to offerors struggling with GAO’s requirement.
Golden IT, LLC (“Golden”) protested the Department of Commerce’s award of a single blanket purchase agreement to Spatial Front, Inc. (“SFI”). Among its many protest grounds, Golden claimed that SFI’s quote contained a material misrepresentation regarding key personnel because it proposed an employee who had allegedly left SFI after it submitted its bid and before receiving award. Golden claimed that SFI was obligated to notify the agency of the individual’s unavailability after submitting its proposal.
The attention-grabbing headline from the Department of Justice’s (“DOJ”) annually released statistics on False Claims Act (“FCA”) settlements and judgments is that the government recovered more than $5.6 billion from FCA cases in fiscal year (“FY”) 2021. While this is the second largest annual recovery in FCA history and the largest since 2014, procurement fraud cases represented a substantially smaller percentage of the total recoveries than in years past. Healthcare resolutions dominated, accounting for more than five billion of the $5.6 billion in settlements and judgments. In previous years, healthcare matters have accounted for closer to two-thirds of the total recoveries, making last year’s outsized healthcare figure—driven by the blockbuster opioid settlements of late 2020—an outlier.
Beyond the top-line dollar figures, the report shows that FCA activity continues at a healthy, if not fully robust, pace. The COVID-19 pandemic continues to impact qui tam filings; the number of new whistleblower suits dropped to 598 in FY 2021, a ten-year low. The number of DOJ-initiated matters remains higher than the near-term average, particularly in healthcare, but also in Department of Defense (“DOD”)-related cases. Contractors, healthcare providers, and others—especially those who received federal funding through pandemic aid programs—can anticipate that FCA investigations and resolutions will play out over the next several years.
Insight Technology Solutions, Inc. B-420133.2, .3, .4
Protester alleged that the awardee misrepresented the experience of one of its proposed key personnel, claiming the individual had 9 years of relevant experience when in fact the individual did not meet even the minimum required 5 years of experience.
The protester pointed to the proposed key person’s LinkedIn profile in support of the argument that the individual had less than the required experience.
GAO agreed that the awardee materially misrepresented the individual’s relevant experience and found the agency relied on that misrepresentation in making its source selection decision.
GAO recommended, as a result, that the Agency exclude the awardee’s proposal from the competition.
GAO also found that the agency had engaged in disparate treatment by crediting the awardee for its approach to back-filling vacancies, but not crediting the protester’s proposal despite “nearly identical” language.
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Blank Rome LLP is pleased to announce that Elizabeth N. Jochum has joined the firm’s Washington, D.C., office as a partner in the Government Contracts practice group. A skilled litigator and counselor with a significant background in white collar defense and investigations matters, Elizabeth joins Blank Rome from Smith Pachter McWhorter PLC where she was a partner.
“We are pleased to welcome Elizabeth to our firm and leading Government Contracts practice,” said Grant S. Palmer, Blank Rome’s Managing Partner and CEO. “Government contractors face a complex landscape right now, and Elizabeth’s significant experience will greatly benefit our clients in both achieving their goals and successfully working with the public sector.”