The following is an installment in Crowell & Moring’s Bid Protest Sustain of the Month Series.  In this series, Crowell’s Government Contracts Practice will keep you up to date with a summary of the most notable bid protest sustain decision each month.  Below, Crowell Consultant Cherie Owen discusses DecisionPoint Corporation- fka Emesec Inc., in which GAO sustained a protest where the agency failed to consider the impact of a recent corporate transaction on an offeror’s pending proposal.

Continue Reading November 2024 Bid Protest Sustain of the Month: GAO Reminds Agencies that They Must Consider the Impact of a Corporate Transaction When Evaluating Proposals
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New Administration – Domestic Preferences and Supply Chain Security

This week’s special edition focuses on what contractors can expect from the incoming administration relating to domestic preferences, supply chain security and sourcing, and evolving requirements and enforcement, and is hosted by Yuan Zhou, Addie Cliffe, and Alex Barbee-Garrett. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without.

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On Monday, November 18, 2024, the Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”) announced that it had finalized the regulatory changes previewed in April that will enhance certain CFIUS procedures and sharpen its penalty and enforcement authorities.[1]  The changes go into effect on December 26, 2024 and as described in more detail below: (a) expand the types of information that CFIUS can require transaction parties and other persons (i.e., third-parties) submit when engaging with them on transactions that were not filed with CFIUS; (b) broaden the instances in which CFIUS may use its subpoena authority, including when seeking to obtain information from third persons not party to a transaction notified to CFIUS and in connection with assessing national security risk associated with non-notified transactions; and (c) substantially increase monetary penalties for violations of CFIUS regulations from a maximum of U.S. $250,000 to U.S. $5 million per violation, or the value of the transaction, whichever is greater.

Continue Reading CFIUS Finalizes Regulations to Increase Penalties, Expand Subpoena Authority, and Enhance Enforcement Authorities to Protect National Security
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Constitutionality of the Qui Tam Provisions

In this episode, Jason Crawford, Agustin Orozco, and Will Tucker discuss U.S. ex. rel. Zafirov v. Florida Medical Associates LLC, the recent decision in which a court found the qui tam provisions of the False Claims Act to be unconstitutional. The hosts analyze the court’s reasoning and consider its potential impact on FCA cases. “Let’s Talk FCA” is Crowell & Moring’s podcast covering the latest developments with the False Claims Act.

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Since its passage in 2022, the Inflation Reduction Act’s renewable energy tax credits have been in the crosshairs of Congressional Republicans. With many of the Tax Cuts and Jobs Act provisions expiring at the end of 2025, and a full plate of Trump and Congressional Republican Campaign promises for tax cuts in play, the Republicans have pointed to repeal of the IRA as a source of funding to pay for other tax breaks.

Continue Reading Clean Energy Tax Credits and After the Election – What to Expect?

The following is an installment in Crowell & Moring’s Bid Protest Sustain of the Month Series.  In this series, Crowell’s Government Contracts Practice will keep you up to date with a summary of the most notable bid protest sustain decision each month.  Below, Crowell Consultant Cherie Owen discusses Hometown Veterans Medical, LLC, B-422751; B-422751.2, Oct. 11, 2024, 2024 CPD ¶ 244, in which GAO sustained the protest of a company eliminated from a procurement on the basis of a non-substantive compliance check.

In Hometown, the Department of Veterans Affairs (VA) was conducting a procurement for home oxygen services.  Among other things, the solicitation instructed offerors to complete certain SAM.gov certifications.  It also stated that failure to provide all of the documentation required by the solicitation would result in proposal rejection.  After receiving proposals, the VA first conducted a “compliance check” to determine whether each offeror had complied with all of the solicitation’s instructions.  Based on its compliance check the VA eliminated four of the eight proposals—including Hometown’s—as unacceptable.  Hometown protested its elimination, arguing that the non-compliance in its proposal was not substantive and that the compliance check constituted an unstated evaluation criterion. 

In responding to the protest, the VA distinguished between what it characterized as an “initial compliance review” of proposals (which resulted in the rejection of Hometown’s proposal), and evaluation (which had not yet occurred).  However, GAO firmly rejected this distinction, stating, “[w]e decline to adopt that distinction for purposes of our consideration of Hometown’s protest,” and citing FAR 15.305, which describes the assessment of an offeror’s proposal as an evaluation.  More importantly, GAO stressed that, no matter how the agency characterized its review, the VA’s rejection of proposals was not consistent with the RFP’s stated evaluation criteria.  In this regard, GAO noted that there was no language in the solicitation indicating that the VA would perform an “initial compliance review” as part of the evaluation. To the contrary, the solicitation identified only two evaluation factors: experience and price.  The requirement to submit copies of SAM.gov certifications did not fall under either of these evaluation criteria.  As a result, GAO sustained the protest, instructing the VA to either amend the solicitation to state the additional criteria on which it intended to evaluate proposals (including any initial compliance review), solicit revised proposals, and conduct a new evaluation or reevaluate all proposals consistent with GAO’s decision and the existing evaluation criteria.

In sustaining the protest, GAO stressed that the requirement to submit copies of offerors’ SAM.gov certifications was not explicit in the solicitation.  Therefore, the situation in Hometown was different from GAO’s decision in Futron, Inc., B-420703, July 25, 2022, 2022 CPD ¶ 189, where GAO found an agency had properly rejected a proposal for failure to submit similar copies of certifications.  In Futron, the solicitation had explicitly warned that “[f]ailure to complete the representations will deem the proposal ineligible for award”—a provision that Futron did not challenge prior to the solicitation’s closing date.

The Hometown decision provides an important reminder that regardless of whether an agency characterizes its assessment as a “compliance review” or an “evaluation,” agencies are required to evaluate proposals consistent with the terms of the solicitation. 

We would like to thank Cherie J. Owen, Consultant, for her contribution to this blog post.

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New Administration & Tariffs

This week’s special edition focuses on what contractors can expect from the incoming administration in terms of tariffs, and is hosted by Peter Eyre and Alex Schaefer. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without.

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New Administration

Government Contracts Fastest 5 Minutes New Administration November 22, 2024 This week’s special edition focuses on what contractors can expect from the incoming administration relating to contract changes, terminations, possible tariffs, and other similar considerations , and is hosted by Peter Eyre and Steve McBrady. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without. ListenCrowell.com | PodBean | SoundCloud | Apple Podcasts   

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On November 14, 2024, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2024, containing the full statistics shown below:

Continue Reading 2024 GAO Bid Protest Report Shows Notable Decrease in Merit Decisions
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In Fortis Industries, Inc., CBCA 7967 (Sept. 18, 2024), the Civilian Board of Contract Appeals (CBCA) denied in part the government’s motion for partial summary judgment on the issue of whether the contractor released its claims by signing a modification terminating the contract for convenience. During contract performance, the General Services Administration (GSA) imposed monthly deductions to contract payments as a response to certain performance issues. GSA later proposed to terminate the contract for convenience and sent a contract modification stating that all obligations under the contract were concluded except payment for work performed in June 2022. The contractor signed the modification but stated in its transmittal email that it was owed payment for services in May 2022 as well. 

Continue Reading CBCA Denies the Government’s Motion for Summary Judgment Based on an Issue of Fact Regarding the Contractor’s Reservation of Rights via a Transmission Email