This past November, we observed a change in the rules regarding SAM registration requirements for procurements. Prior to this rule change, both GAO and the Court of Federal Claims (COFC) had found that the FAR requires offerors to maintain SAM registration throughout the evaluation period for a procurement. With the rule change, FAR 52.204-7 (the regulation at issue) now only requires that an offeror be registered at the time of offer submission and at the time of contract award. A lapse in SAM registration in between those events, in other words, would not be fatal to an offeror’s proposal. Unfortunately for one company, this resulted in a COFC case that essentially reversed its victory at a prior COFC protest. Today, we’ll look at this second case and what happened.
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A Look at the Duty of Good Faith and Fair Dealing (Part II)
Recently, we looked at part of a Court of Federal Claims (COFC) decision regarding the duty of good faith and fair dealing. In that post, we observed how, unsurprisingly, the government’s insistence that a contractor carry out the express terms of a contract is not strong ground for a claim of breach of the duty of good faith and fair dealing. In this post, we’re going to continue our review of this case (with regards to the duty of good faith and fair dealing) and give more general thoughts on this duty. We’ll finish up with a third post that addresses the biggest issue in this case.
Continue readingWhy File: A COFC Protest
As a federal contractor, there are many factors to consider in filing a potential bid protest. In this post, we look at the potential considerations, both pros and cons, for filing a bid protest at the Court of Federal Claims (COFC). Below are some of the main items to think about in considering a bid protest at the COFC, as opposed to a bid protest at the Government Accountability Office (GAO) or an agency level protest. The decision of whether, and where, to file a bid protest is one that should only be taken with care and, preferably, with the advice of counsel.
Continue readingNo Protesting Canceled Contracts, Says COFC
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.
Continue readingThank 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
35th Annual Judicial Conference – U.S. Court of Federal Claims in Washington DC
I will be presenting at the 35th Annual Judicial Conference in Washington, D.C., on October 23. This prestigious event gathers legal professionals, judges, and scholars from across the country to discuss the latest developments in the judiciary and legal system.
It’s definitely an honor to be speaking at the 35th Annual Judicial Conference for the Court of Federal Claims. My topic is: Private Conflicts: How the New Private Sector OCI Rules Could Impact Federal Procurement.
Hope to see you there! You can read more about this event and the speakers giving presentations at this link.
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).
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