2020 NDAA: Contractors Supplying Technical Data to Receive Protection of Data Rights During Challenges, Again

The draft 2020 National Defense Authorization Act, if enacted, will revoke the government’s ability to exercise rights in technical data during a supplier’s challenge to the contracting officer’s decision as to the validity of the asserted “use or release restrictions” on that data. It would reinstate the previous safeguard afforded to data suppliers, allowing them to protect their valuable–and often irreplaceable–intellectual property rights unless and until the contracting officer’s decision to remove the restrictions is sustained.

Keep in mind, this is just a draft provision, as the Senate version of the 2020 NDAA doesn’t contain the provision discussed in this blog.

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GSA Announces Plans to Consolidate MAS Contracts and Asks for Industry Feedback

The General Services Administration is conducting market research for its planned consolidation of the Multiple Award Schedule (MAS) Program. Earlier this month, GSA publicly announced the new single solicitation format, including streamlined terms and conditions, and its intention to collect feedback from government contractors in the industry. According to GSA, the consolidation is part of its two-year modernization process for the program that began in November of 2018. The consolidated MAS solicitation is scheduled for release later this year. And if you have concerns or suggestions for GSA on this significant consolidation, there is still time for your input.

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SBA Denies 8(a) Status Based on Applicant’s Ability to Successfully Overcome Gender-Based Discrimination in Her Field

OHA recently affirmed the 8(a) status denial of a 100% woman-owned small business performing in the historically male-dominated renewable energy field. The applicant—who SBA called an “advocate” and “mentor” to women in the industry—detailed specific instances of gender-based-discrimination that plagued her education, employment, and career. But SBA was unmoved, instead focusing its analysis on the applicant’s triumph over these obstacles—apparently an indication that she was not socially disadvantaged in the first place. Unfortunately, this perplexing holding does fall in line with many past SBA denials of women-owned companies for 8(a) status.

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Option to “Postpone” Required Pre-Award Debriefing Until After Award—Gain Information, But Lose Right to Protest

GAO’s bid protest window for debriefings—which closes 10 days after the required debriefing—knows very few exceptions. But what if the agency offers you a more informative post-award debriefing in place of the pre-award debriefing normally required upon your elimination from the competitive range? This option will likely improve your ability to compete for future contracts with the agency. Shouldn’t you be able to accept it without giving up your right to protest? GAO says no.

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Landmark ASBCA Decision Means Government Can be Bound to Commercial Computer Software Licenses It Hasn’t Even Seen

The FAR generally favors the Government clients’ entitlement to data and software rights in federal procurements. This has commonly—and understandably—led to disgruntled contractors who didn’t realize what they were truly giving up when they opted to use their own software in performance of contracts without including regulation-compliant markings and protections.

But recently—thanks to a first-of-its-kind decision by the ASBCA—it seems the tide may have turned in favor of protecting these contractor-inventors from the standard Government windfall in its data rights acquisitions.  Let’s take a closer look.

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GAO Denies Protest to LPTA Solicitation Ridden with Cost Uncertainty and Local Zoning Code Conflicts

Federal agencies have long been afforded wide discretion in defining solicitation requirements to meet their contracting needs. But are a solicitation’s requirements acceptable even where they’re likely to conflict with local zoning codes? What about where the solicitation documents conflict with one another on whether certain requirements are considered “requirements” at all? And finally, is an LPTA procurement acceptable where such conflicts have undoubtedly led to price uncertainty among the bidders?

GAO says, “yes” to all of these, so long as the requirements meet the agency’s needs.

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GAO Clarifies Competition Standards for Simplified Acquisitions

A recent GAO decision has shed light on the question of what an agency must do to adequately promote competition during a simplified acquisition.

There is still no bright line for determining which agency actions meet this threshold.  However, the recent decision in Bluehorse Corp., B-415641 et al. (Feb. 6, 2018), established that merely inquiring about a solicitation, without taking further action as recommended by the procuring agency, is not enough to force an agency to include a company in a limited competition.

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