Often contractors will protest an award, then learn that the contract at issue was cancelled by the government due to corrective action. When that occurs, contractors of course feel as if their concerns were not resolved, or the protested other parties were let off the proverbial hook. The U.S. Court of Federal Claims recently explained that if that happens, there is no procurement left to protest, even if there are related research and development projects or actions continuing within the Government.
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Thank You, COFC Judicial Conference
I recently returned from the 35th Annual Judicial Conference for the Court of Federal Claims. I wanted to send a hearty thanks to all of the organizers of the conference, especially Judge Tapp! It was a great opportunity presenting on the topic of Private Conflicts: How the New Private Sector OCI Rules Could Impact Federal Procurement. I also thoroughly enjoyed the other presentations at the conference.
For those looking for more information on this topic, here are some resources for you:
- Original blog post: New OCI Law Focuses on Private Sector Contracts, More Examples, More Procedures
- Contracting While Impaired: Court Rejects Overbroad Finding of OCI Based on Impaired Objectivity
- Apparent Conflict: Appearance of Impropriety Enough to Exclude a Contractor from Federal Contract
- 2024 Blog Post: Predictions: Upcoming Rules on Conflicts of Interest
Federal Circuit Decision: Slightly Opens Protest Door to Non-Offerors
Lately, we’ve seen a boom in protests being brought to the United States Court of Federal Claims (COFC) in lieu of protests brought at the Government Accountability Office (GAO). And it appears that the recent decision in Percipient.AI, Inc. v. United States, 2023-1970 (June 7, 2024) may have just set the course for even more. But the case here didn’t start with an offeror under a solicitation. Instead, it was brought by a commercial software company, Percipient.AI, Inc. (Percipient), who challenged the government’s acquisition of custom software at the Court of Federal Claims and then landed right in the lap of United States Court of Appeals for the Federal Circuit (Federal Circuit).
Continue readingA Better Leg to Stand On: Federal Circuit Court Eases Way for Protesters to Show Prejudice at COFC
If you’re a contractor thinking about protesting an award decision to the Court of Federal Claims (COFC), you have to show that the agency’s mistake prejudiced you in some way (the same goes for GAO, as we have explored before). That is, you have to show that there was a substantial chance you would have received contract award if not for the agency’s mistake. In a recent decision by the Federal Circuit Court of Appeals, it appears that the COFC will have to give protesters a good bit of benefit of the doubt on this question going forward. We explore that here.
Continue readingApparent Conflict: Appearance of Impropriety Enough to Exclude a Contractor from Federal Contract
When a government employee moves from a federal agency to a private contractor, this sort of revolving door can lead to concerns that contractor hiring the ex-agency employee is getting special treatment. To avoid this concern, the ex-agency will sometimes bar the contractor from competing. In a recent case, the Navy did just that and a court had to review if the Navy made a reasonable decision.
Continue readingContracting While Impaired: Court Rejects Overbroad Finding of OCI Based on Impaired Objectivity
Contracting agencies, and contractors, must always be aware of potential organizational conflicts of interest (OCIs). An OCI can result in a contractor being kicked off a federal procurement. One type of OCI is an impaired objectivity OCI, typically resulting from a contractor evaluating its own offer or its own performance. In a recent decision, the United States Court of Federal Claims (COFC) said that an agency was overly cautious in rejecting an offeror based on a perceived OCI.
Continue readingExtraordinary Actions v. Day-to-Day Decisions for Joint Ventures: A Cautionary Tale
Back in 2020, we discussed an SBA Office of Hearings and Appeals (OHA) decision stating that the managing venturer must control every aspect of the joint venture. This position, which we questioned in that article, has changed since that time, and we explored the changes to the regulatory language in question not long thereafter. But this regulatory language was still vague. Since that time, there has been much case law development. The Court of Federal Claims (COFC) held in 2022, “[a] minority owner’s control over “extraordinary” actions, such as actions intended to protect the investment of minority shareholders, will not result in a finding of negative control” and applied this idea to a populated joint venture. Swift & Staley, Inc. v. United States, No. 21-1279, 2022 WL 1231428 (Fed. Cl. Mar. 31, 2022), aff’d, No. 2022-1601, 2022 WL 17576348 (Fed. Cir. Dec. 12, 2022). It now appears, fairly established at this point, that non-managing venturers can have a say in what can best be described as “extraordinary actions.” These are the sorts of decisions that can completely change the trajectory of the joint venture. But contractors must still be very careful in giving the non-managing venturer a say in the joint venture’s decisions. As one firm learned the hard way in a recent COFC case, a joint venture with too many actions controllable by the non-managing venturer may end up ineligible for set-asides. Here, we explore this decision.
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