Category: Elizabeth N. Jochum

FAR on the Chopping Block: Potential Impacts on Protests

Elizabeth N. Jochum and Robyn N. Burrows ●

As those in the federal contracting community wait anxiously for rumored and hinted at changes to the Federal Acquisition Regulation (“FAR”), we are beginning to evaluate how certain of those changes might most impact our clients. In the first of a series engaging in some mild—or wild, depending on your outlook—speculation about these potential changes, we take a look at how the removal of certain FAR requirements might impact bid protests.

One of the cardinal rules of bid protests is that protests not alleging solicitation improprieties must be filed no later than 10 days after the basis of protest is known or should have been known. 4 C.F.R. § 21.2(b). There is a key exception, however—for procurements under which a debriefing is requested. If requested, a debriefing is required, and the initial protest cannot be filed before the debriefing date offered and must be filed no later than 10 days after the debriefing concludes. In other words, a protester’s timeliness clock does not start ticking until the debriefing concludes.

Continue reading “FAR on the Chopping Block: Potential Impacts on Protests”

A Roadmap for Terminations for Convenience in the DOGE-Era

Elizabeth N. Jochum, Robyn N. Burrows, and Sara N. Gerber ●


The Department of Government Efficiency’s (“DOGE”) scrutiny of federal contracts has resulted in a spike in notices of termination for convenience. Given DOGE’s broad mandate to reduce federal spending, we expect a sustained increase in the use of terminations for convenience to end contracts the administration considers “wasteful” or not aligned with its priorities.

But while termination notices make one thing clear—the contract is over—it can leave contractors with questions about their rights and obligations.

What Is a Termination for Convenience and Can I Challenge It?

The right to terminate for convenience is included expressly in almost all government contracts—and is generally considered to be a government right even when not expressly included.[1] Terminations for convenience allow the federal government to unilaterally end a contract (or a portion of a contract) immediately and without alleging contractor fault. The government typically invokes a termination for convenience after determining the contract is no longer in its best interests, and this can occur for a wide variety of reasons, such as budget cuts, or changes in government priorities or project requirements. Typically, the government does not explain why it is terminating a contract for convenience.

Continue reading “A Roadmap for Terminations for Convenience in the DOGE-Era”

60-Second Sustains: TISTA Science and Technology Corporation

Elizabeth N. Jochum and David L. Bodner ●

Protest of: TISTA Science and Technology Corporation
B-422891.2; .3; .4

  • TISTA challenged the issuance of a task order by the National Institutes of Health to Tantus Technologies, alleging the agency engaged in unequal treatment of the offerors.
  • The Agency assessed a strength to the awardee for proposing to maintain a “warm bench” of candidates to meet potential surge staffing needs. On the other hand, it assessed a weakness to TISTA for proposing to maintain bench strength with a pool of pre-vetted candidates.
  • The Agency argued there was a distinction in the proposals in that the awardee’s “warm bench” was made up exclusively of existing employees, while TISTA’s would need to hire surge candidates.
  • The Government Accountability Office (“GAO”) rejected the Agency’s argument, finding that both quotations provided for surge staffing with a mix of existing and yet-to-be-hired employees, and sustained the protester’s allegation of disparate treatment.
  • GAO similarly found unequal treatment in the Agency’s decision to assign a strength to the awardee for its use of a “master schedule,” when it did not assign a strength to the protester for proposing use of a “master tracker.”

60-Second Sustains: The Mission Essential Group

Elizabeth N. Jochum and David L. Bodner ●

The Mission Essential Group
B-422698.2

  • Mission Essential challenged a task order solicitation issued by the Air Force, alleging the lowest price, technically acceptable (“LPTA”) evaluation scheme violated DFARS 215.101-2-70.
  • The DFARS provision establishes eight criteria, each of which must be met in order for a solicitation to employ an LPTA methodology.
  • It also requires that agencies “avoid, to the maximum extent practicable,” the use of LPTA procedures for procurements of “knowledge-based professional services.”
  • Mission Essential alleged the Air Force failed to meet at least three of the eight criteria allowing for LPTA and that LPTA procedures must be avoided given the type of services sought.
  • GAO sustained the protest, recommending the Air Force revise the solicitation to comply with DFARS 215.101-2-70 and request revised proposals.

Blank Rome Attorneys Appointed to American Bar Association’s Public Contract Law Section Leadership for the 2024–2025 Term

Blank Rome LLP is pleased to announce that eight attorneys from the firm’s nationally recognized Government Contracts group have been appointed to leadership roles in the American Bar Association’s Public Contract Law Section for the 2024–2025 term.

Visit our website to learn more about their roles and the Section of Public Contract Law.

Upcoming Blank Rome-Hosted ABA Public Contract Law Committee Meetings

Blank Rome is pleased to host two upcoming American Bar Association (“ABA”) Public Contract Law (“PCL”) Committee meetings in September.

Tuesday, September 17, 2024
12:00–1:15 p.m. EDT

Blank Rome’s Washington, DC office will host the annual ABA PCL Bid Protest Committee “Back to School” panel, with a virtual option. This will be followed by a Vice-Chair Planning Session from 1:15 to 2:00 p.m. Committee co-chair and Blank Rome Government Contracts partner Elizabeth N. Jochum will serve as a panelist, along with Samantha Lee (Deputy Assistant General Counsel, Government Accountability Office), Kayleigh Scalzo (Partner, Covington & Burling LLP), Andy Smith (Chief of Bid Protests, U.S. Army), and Evan Williams (Counsel, Mayer Brown LLP). Panelists will discuss important bid protest decisions and developments that you may have missed over the summer. For more information, and to register, please visit: Bid Protest Committee: Annual “Back to School” Panel.

Thursday, September 26, 2024
12:00–1:00 p.m. EDT

Blank Rome’s Washington, DC office will host a meeting of the ABA PCL Intellectual Property Committee, with a virtual option. Committee co-chair and Blank Rome Government Contracts attorney David Bodner will serve as panel moderator, and the panel will include Ted Jung (PEO IWS Chief Architect, Naval Sea Systems Command Headquarters), Rizlane Riahi (Deputy Section Head OGC, Naval Sea Systems Command Headquarters), and Chinedum Okparaeke (Legal Counsel, Anduril Industries). The panel will discuss the topic, “Consider This When Purchasing or Selling Software,” including pre-award data rights considerations when purchasing software as required by the 2023 changes to DFARS Subpart 227.72. For more information, and to register, please visit: Consider This When Purchasing or Selling Software.

60-Second Sustains: Sparksoft Corporation

Elizabeth N. Jochum ●

Sparksoft Corporation
B-422440;.2

  • The awardee’s Systems Security Officer (“SSO”) was awarded a positive finding for holding a certified information systems security professional (“CISSP”) certification. The protester alleged that their SSO held the same certification, as demonstrated in the proposal, but was not awarded an equal positive finding.
  • The agency admitted the unequal treatment was an evaluation error but argued Sparksoft was not prejudiced by the “oversight.” 
  • GAO disagreed, noting that the contemporaneous record showed that when the source selection authority (“SSA”) compared the awardee’s proposal to Sparksoft, the SSA highlighted the awardee’s SSO CISSP certificate as a discriminator between the two proposals.
  • When performing the best-value tradeoff, the SSA acknowledged the price differential between the two proposals was “significant” but concluded that “distinguishing positive features” in the awardee’s proposal justified this premium.
  • GAO found that it was not clear the SSA would have come to the same conclusion if not for the unequal treatment of the offerors’ SSOs.
  • Accordingly, GAO sustained the protest and recommended the agency reevaluate both offerors under the key personnel factor and perform a new best value tradeoff.

60-Second Sustains: ITility, LLC

Elizabeth N. Jochum ●

ITility, LLC
B-421871.3

  • The protester argued that the Department of Homeland Security had unreasonably assessed the awardee a “positive” based on an incorrect understanding of what the awardee had proposed.
  • Specifically, the protester argued that, while the Agency assigned a positive for an element of the awardee’s proposal relating to enterprise risk management (“ERM”), the awardee’s proposal actually used ERM to refer to enterprise resource management.
  • According to the Government Accountability Office (“GAO”), the Agency did not substantively refute this allegation, so GAO sustained the protest.
  • GAO also agreed with the protester that the Agency unreasonably evaluated offers in two other respects:
    1. First, the Agency unreasonably found that both the protester and awardee met key personnel requirements, when the protester had offered personnel that met qualifications identified in the RFP as “preferred.”
    2. Second, the Agency found that the protester’s transition plan “met the requirements,” but failed to document any qualitative evaluation of the proposed plan, including the protester’s plan to have the contract fully staffed by Day 1 as the incumbent.
  • In both instances, GAO agreed that the Agency had ignored a potential discriminator in favor of the protester and sustained the protest grounds.

60-Second Sustains: Criterion Corporation

Elizabeth N. Jochum ●

Criterion Corporation
B-422309

  • In Air Force procurement for base operations support services, the Agency had eliminated the protester from consideration for award on the basis that its proposed price was significantly lower than the internal government estimate (“IGE”) and the average proposed price and, therefore, was found unrealistic.
  • The protester challenged its elimination, arguing that it proposed a unique technical approach that supported its low price and that the agency ignored the technical approach, instead conducting a mechanical comparison of the proposed price to the IGE and the average price of other offerors.
  • GAO noted that the purpose of a price realism analysis is to determine whether proposed prices are realistic for the work to be performed, reflect a clear understanding of the requirements, and are consistent with the offeror’s unique method of performance.
  • In this case, GAO found that the Air Force had not considered the entirety of the protester’s technical solution when concluding the proposed price was unrealistic.
  • While the Agency had compared the number of employees the protester proposed and its labor rates, it had not considered its labor mix or whether its technical solution was unique.

Justin A. Chiarodo and Elizabeth N. Jochum Named to Law360’s 2024 Editorial Advisory Boards

Elizabeth Jochum
Justin Chiarodo

Blank Rome LLP is pleased to announce that Government Contracts partners Justin A. Chiarodo and Elizabeth N. Jochum have been named to Law360’s 2024 Editorial Advisory Boards. As board members, the partners will provide feedback on Law360’s coverage and share insights on how to best shape future coverage.

Justin, who serves as chair of our firm’s Aerospace, Defense & Government Services industry team and Government Contracts practice group, has been named to Law360’s Aerospace & Defense Editorial Advisory Board for the second time.

Elizabeth has been named to Law360’s 2024 Government Contracts Editorial Advisory Board.

Learn more about other Blank Rome partners serving on Law360’s 2024 Editorial Advisory Boards on our website.