Is There No Balm in Gilead? The Federal Circuit’s Decision in Dell Federal Systems L.P. v. United States Reinforces Contractors’ Dwindling Options to Effectively Challenge Agency Corrective Action

Michael J. Slattery

Any company that has participated in a federal procurement, and has been involved in subsequent bid protest litigation, is likely familiar with the procuring agency’s ability to take “corrective action.” In a nutshell, “corrective action” refers to a procuring agency’s recognition that it may have committed an error during a procurement, and the agency’s determination that it will take steps to correct this error. Procuring agencies take corrective action in a number of different circumstances.

Perhaps most commonly, procuring agencies take corrective action after the U.S. Government Accountability Office (“GAO”) sustains a protest and recommends that the agency remedy the flaws that GAO has identified in the procurement. Agencies also take corrective action in the context of “outcome prediction” Alternative Dispute Resolution (“ADR”). Pursuant to 4 C.F.R. § 21.10(e), GAO, on its own initiative or upon a request filed by the parties, may use flexible alternative procedures to promptly and fairly resolve a protest, including ADR. Often, when GAO informs a procuring Agency during an ADR conference that GAO is likely to sustain a protest, the procuring Agency will announce that it will take corrective action in order to remedy the procurement errors identified by GAO. See, e.g., Deloitte Consulting, LLC, B-412125.6, Nov. 28, 2016, 2016 U.S. Comp. Gen. LEXIS 348 at *1, *5 (wherein agency took corrective action after GAO sustained a protest). Continue reading “Is There No Balm in Gilead? The Federal Circuit’s Decision in Dell Federal Systems L.P. v. United States Reinforces Contractors’ Dwindling Options to Effectively Challenge Agency Corrective Action”

GAO’s New Bid Protest Regulations in Effect Now

Scott Arnold

Many of you are aware of the Government Accountability Office’s (“GAO’s”) new bid protest regulations; this is a reminder that they went into effect today, May 1, and include several significant changes. You can see the April 2, 2018, Federal Register text of the revisions here, and in addition to the changes themselves, the background and discussion of comments received in response to GAO’s earlier proposed changes are worth reading to fully understand the new rules and where GAO is coming from.

A quick summary of the most important changes: Continue reading “GAO’s New Bid Protest Regulations in Effect Now”

New DOD Class Deviation Changes Debriefing Process

Scott Arnold

The United States Department of Defense (“DOD”) has amended the process for debriefings required under Federal Acquisition Regulation (“FAR”) 15.506 to allow for offeror questions related to the debriefing. Offerors are allowed up to two business days following a debriefing to submit written questions, and the agency has up to five business days after receipt of the questions to submit written responses. The agency must hold the debriefing open until it delivers its written responses to the disappointed offeror. The new process applies to all DOD debriefings required under FAR 15.506.

The purpose of this new rule implementing section 818 of the 2018 National Defense Authorization Act (“NDAA”) is to improve the quality of debriefings and reduce the number of situations where disappointed offerors feel compelled to protest because the information they receive in debriefings is insufficiently detailed to convince them that the selection decision was fair. More fulsome debriefings should allow offerors to make more informed decisions about whether to protest. Continue reading “New DOD Class Deviation Changes Debriefing Process”

Government Contractor Shutdown Advisory

Justin A. Chiarodo and Albert B. Krachman

With yet another government shutdown looming, contractors face a number of uncertainties and challenges that warrant close attention—regardless of whether a shutdown takes place or how long it lasts. Among other challenges, contractors may face a lack of incremental funding; the inability to enter into new contracts or contract modifications; closed government facilities; furloughed government employees; delayed payments; increased indirect costs; and unexercised and deferred contract options. Below we offer six suggestions to help address key areas impacted by a shutdown, including contract funding, internal and external communications, recordkeeping, and deadlines. Continue reading “Government Contractor Shutdown Advisory”

New Year’s Resolutions: Top 5 Consequential Changes in the 2018 NDAA

Adam Proujansky and Ioana Cristei

The National Defense Authorization Act (“NDAA”) for Fiscal Year 2018 was signed into law on December 12, 2017, and authorizes a topline national defense budget of $700 billion. While the 2018 NDAA makes a number of changes to Department of Defense (“DOD”) policy and programs, in this article we explain five major changes to acquisition policy and how they will impact the way companies do business with DOD. Continue reading “New Year’s Resolutions: Top 5 Consequential Changes in the 2018 NDAA”

Senate Proposes Major Overhaul to the GAO Bid Protest Process

David Yang

On September 18, 2017, the Senate passed its version of the 2018 National Defense Authorization Act (“NDAA”). The proposed bill, which heads into conference with the House to resolve the competing bills, will implement significant changes to the federal bid protest practice at the U.S. Government Accountability Office (“GAO”), should the bill emerge more or less intact from conference and if it is signed into law by the President. Continue reading “Senate Proposes Major Overhaul to the GAO Bid Protest Process”

OFPP Promotes Debriefings in Recent Guidance (Our Takeaway: Always Ask for One)

Brian S. Gocial

golcialbOn January 5, 2017, the Office of Federal Procurement Policy (“OFPP”) issued a “myth-busting” memorandum to Chief Acquisition Officers, Senior Procurement Executives, and Chief Information Officers in the federal government addressing common myths related to government debriefings. The memorandum, titled “Myth-busting 3: Further Improving Industry Communication with Effective Debriefings,” is a continuation of the OFPP initiative first launched in February 2011 to debunk misconceptions about communications with the industry during federal government acquisitions and to assist agencies with adopting best acquisition practices. Continue reading “OFPP Promotes Debriefings in Recent Guidance (Our Takeaway: Always Ask for One)”