Who You Gonna Call? Your Contracting Officer

In our line of work, we regularly litigate protests, appeals, claims, etc., against the Government. But often, procuring and contracting issues can be resolved without the need for litigation–via a little-known method we like to call “talking things out with your CO.” There are also opportunities to communicate with your contracting officers for networking and marketing purposes that many contractors (often unnecessarily) shy away from. This article is the first of three articles that will provide you with some tips for when and how to communicate with your contracting officer at different steps of the procurement process. This article will focus on pre-solicitation and solicitation communications; the next will focus on proposal submission communications; and the third will focus on contract performance communications.

Continue reading

Loose Lips Sink Ships: Award Revoked for Relying on Inside Information from Former Navy Officials

We want to make something clear: simply having a former government official as an employee does not mean your company can’t bid on federal contracts or needs to let that person go. The government, while it puts certain restrictions in place, doesn’t forbid government contractors from hiring former government employees, and it can be very beneficial to have employees with such experience and still perfectly ethical. What it does forbid is when the company is or even just appears to be getting some sort of unfair advantage in acquiring contracts as a result of having former government workers as employees. For example, what if the contractor hires someone who was with the procuring agency and had access to information on competitors for an upcoming solicitation? This is the sort of thing that will result in awards being lost, as one company learned.

Continue reading

GAO: Multiple Contracts With Single Agency May Increase Conflict Risk

As federal contractors begin to become engaged in multiple programs for a particular agency, the potential for the firm to encounter a situation where it finds itself involved in an organizational conflict of interest (OCI) may increase. This is particularly true with respect to “impaired objectivity” OCI, which is when a firm’s ability to render impartial advice to the government is or might be undermined by the firm’s competing interests. These OCIs often arise in service contracts where the contractor is placed in a position of evaluating its own performance on other contracts.  

In a recent case, GAO found that an agency’s award of a contract created an impermissible impaired objectivity OCI for a contractor from two different perspectives for services that the contractor provided in the capacity as both a prime and subcontractor for an agency. The case is Steel Point Solutions, LLC B-419709,B-419709.2 (July 07, 2021).

Continue reading

Playing Games? GAO Requires NASA to Scratch $650 Million Contract Due to Foosball Snafu

While most of our get-togethers these days involve mask wearing, social distancing, and even virtual happy hours, spending time with friends is a great way to keep spirits light. Unfortunately for one group of friends, their weekly hangouts led GAO to conclude in its recent decision, Teledyne Brown Engineering, Inc., B-418835 (Sept. 25, 2020), that NASA had to cancel a more than $650 million deal and start the procurement process all over.

Continue reading

Ring Ring! GAO Sustains Protest of Awardee’s Conflict of Interest

Agencies have broad discretion when it comes to evaluating potential organizational conflicts of interest–but that discretion isn’t unlimited. In a recent decision involving a fight between two telecommunications giants, the GAO sustained the protest, holding that the the agency unreasonably concluded that there was no possibility of an “impaired objectivity” OCI arising from the award.

Continue reading

GAO: Exclusion Improper Because Former Official Didn’t Have Competitive Information

Hiring former government officials can sometimes be tricky business for contractors. As we discussed in a previous post, this is particularly true if the former official, based on work at an agency, could give the contractor a leg up in a specific procurement.

But hiring a former government official isn’t always a problem. And as a recent GAO decision illustrates, as long as the former official doesn’t have competitively useful, non-public information, an agency shouldn’t exclude an offeror from competition merely because it employs a former government official.

Continue reading

GAO: Agency Didn’t Reasonably Evaluate a Potential OCI

In all competitive procurements, agencies must identify and analyze, as soon as possible, whether a potential contractor has an actual or potential organizational conflict of interest. (OCIs come in three general varieties: unequal access to information, biased ground rules, and impaired objectivity.) If the agency finds one, it must avoid, neutralize, or mitigate the potential OCI to ensure fairness.

As one recent GAO decision illustrates, an agency’s failure to reasonably investigate a potential OCI can lead to a sustained protest.

Continue reading