Merle M. DeLancey Jr., Jay P. Lessler, and James R. Staiger
As a result of the Acetris decision, federal contractors seeking to comply with or maintain compliance with the TAA are facing many questions. Some of the more prominent questions are below. Continue reading “After Acetris Decision, Trade Agreements Act Compliance Questions Abound: Contractors Need Guidance”
Merle M. DeLancey Jr., Jay P. Lessler, and James R. Staiger
For years, generic drug manufacturers that manufacture drugs in the United States from API produced in India and China have been precluded from selling their drugs to the U.S. Government under the TAA. The Federal Circuit’s Acetris decision opens up the U.S. Government market for generic drugs manufactured in the U.S. from API produced in India and China.
Luke W. Meier and Albert B. Krachman
The chart below summarizes the GAO protest statistics from FY 2014 to FY 2019.
Here are four key takeaways from the latest report. Continue reading “Still Effective: Four Takeaways from the FY 2019 GAO Protest Statistics”
We discussed in a previous blog post how the current state of the law at the U.S Government Accountability Office (“GAO”) and within the Federal Circuit limits offerors’ ability to effectively challenge agency corrective action. See 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. Specifically, we demonstrated that GAO has adopted a highly deferential, “hands off” position with regard to agency corrective action, holding that “the details of a corrective action are within the sound discretion and judgment of the contracting agency.” Northrop Grumman Tech. Servs., Inc., B-404636.11, June 15, 2011, 2011 CPD ¶ 121 at 3. Under governing GAO case law, agencies have discretion to decide the scope of corrective action, including whether discussions will be held, the breadth of such discussions, which offerors shall be included in the corrective action, and the scope of permitted revisions to proposals. Deloitte Consulting, LLP, B-412125.6, Nov. 28, 2016, 2016 U.S. Comp. Gen. LEXIS 348 at *1, *11 (citing Computer Assocs. Int’l., B-292077.2, Sept. 4, 2003, 2003 CPD ¶ 157 at 5). Indeed, GAO will not disturb an agency’s proposed corrective action so long as the corrective action is deemed reasonable—that is, so long as the corrective action is “appropriate to remedy the flaw which the agency believes exists in its procurement process.” Onésimus Def., LLC, B-41123.3, B-41123.4, July 24, 2015, 2015 CPD ¶ 224 at 5. Continue reading “Evaluations That Prompt Corrective Action Must Be Documented”
Merle M. DeLancey Jr. and Michael Joseph Montalbano
Pros and Cons of Agency Protests Continue reading “Agency Protests: An Emerging Tool and Potential Threat for Contractors”
Luke W. Meier and Ioana Cristei
The GAO issued a decision on the merits for 622 protests in FY 2018. That represents only a fraction of the 2,607 total protests received, but is the most decisions GAO has issued in at least 10 years. As is typically the case, less than 20 percent of those protests resulted in “sustain” decisions finding in favor of the protester—just 92 protests, or 15 percent of those decided in FY 2018. Despite that seemingly grim rate of success in merits decisions, protesters’ overall rate of success, what GAO terms the “effectiveness” rate, continues to hover around 45 percent. As before, protesters are obtaining desired relief in nearly half of all protests filed—but their “win” typically comes well before a final merits decision with the agency taking voluntary corrective action, usually within the first 30 days of the protest, before the agency report has been filed. Continue reading “FY 2018 GAO Protest Statistics Show Continued Success through Corrective Action”
The Christian doctrine provides that a mandatory statute or regulation that expresses a significant or deeply ingrained strand of public procurement policy shall be read into a federal contract by operation of law, even if the clause is not in the contract. G. L. Christian & Associates v. United States, 312 F.2d 418 (Ct. Cl. 1963). The doctrine is an exception to the general rule that the government must put vendors on notice of contract requirements, whether expressly or through incorporation by reference. It also is an exception to standard commercial contracting practices and contract interpretation principles. The rationale for the doctrine is that procurement policies set by higher authority cannot be avoided or evaded (deliberately or negligently) by lower government officials. Continue reading “What Is the Christian Doctrine and Why Should You Care?”
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”
A quick summary of the most important changes: Continue reading “GAO’s New Bid Protest Regulations in Effect Now”
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”
