COFC Strikes a Blow to VA-Verified VOSBs and SDVOSBs

A few months ago, GAO confirmed that where VA uses GPO as it buying agent, it still must to comply with the Rule of Two in 38 U.S.C. 8127(d) (see our blog post on the case ). After VA took corrective action, however, another bid protest was again filed, but this time in the Court of Federal Claims. Surprisingly, there, the Court concluded differently, finding that GPO was not required to set aside the procurement for SDVOSBs or VOSBs, despite acting on VA’s behalf. In so doing, it has weakened the Rule of Two.

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Contractor Did Not Release Claims for Flood-Caused Delay

Because I’m at least partially a North Carolina country boy, I like to promise I’ll finish a project by a certain date “god willing and the creek don’t rise.”

I never give much thought to what I’ll do if the unexpected happens. I assume most people don’t. They expect things to go according to plan. As Meridian Engineering Company found out at the U.S. Court of Federal Claims recently, sorting it out when things don’t go to plan can be a long and arduous process.

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Court Denies Protest of Procurement, Holds Dept. of Education Had Rational Basis

The Court of Federal Claims recently wrote that “[t]here is no such thing as a perfect procurement.” To anyone familiar with federal government contracts, this commentary states the obvious. But springing from the Court’s observation is another important reality: “a flawed procurement is not necessarily an illegal one.”

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One Protest Spoils the Bunch

GAO recently dismissed several bid protests to an $82 billion procurement because of the actions of a company that had already lost its protest.

In AECOM Management Services, four different companies protested the U.S. Army’s logistics civil augmentation program procurement for various “Setting the Theater” services for the Army’s Northern Command, Southern Command, African Command, European Command, Central Command, Pacific Command, and Afghanistan.

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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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SCOTUS to Hear Arguments on Agency Power

Oral arguments are to be held today (March 27, 2019) on a U.S. Supreme Court case that may dramatically reduce federal agency power.

The case, Kisor v. Wilkie, asks the Supreme Court to overturn longstanding precedent which established that an agency’s interpretation of its own regulation deserves deference so long as it is reasonable. If the Supreme Court overturns this precedent, it could change the balance of power—in favor of government contractors—in certain disputes with agencies.

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Section 809 Panel Recommends Eliminating COFC’s Ability to Consider Protests After GAO’s Resolution

Among its suggestions to streamline the acquisition process, the Section 809 Panel has proposed to eliminate the ability to file a protest at GAO and the Court of Federal Claims. Instead, the Panel would require protesters to choose between filing at GAO or the Court.

Let’s take a look.

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