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In American Mine Services, LLC, B-420138 (Dec. 3, 2021), the Government Accountability Office (“GAO”) denied a protest by American Mine Services (“AMS”), finding that the Army Corps of Engineers (“Corps”) reasonably rejected AMS’ bid because it included a provision stating that COVID-19, as well as other similar pandemics or endemics, would be considered “force majeure” events.

AMS submitted a timely bid in response to the Corps’ invitation for bids (“IFB”) to furnish and install new service gates at the Surry Mountain Dam in New Hampshire. Notably, AMS’ bid included the following “Clarification and Exceptions” provision:

For purposes of this bid, COVID-19 is considered a Force-Majeure Event along with any other similar disease, epidemic, or pandemic event. If any of the aforementioned events occur and affect the project, AMS reserves its rights for additional time.

The Corps subsequently rejected AMS’ bid as nonresponsive because the added provision materially modified the terms of FAR 52.249-10, Default (Fixed-Price Construction). While the FAR clause lists epidemics and quarantine restrictions as possible causes of excusable delay, GAO noted that the language of the provision inserted in the protester’s bid specifically listed “COVID‑19” and “any other similar disease, epidemic, or pandemic event.”

In its protest, AMS argued that the Corps’ decision was unreasonable because its “Clarification and Exception” provision only confirmed existing protections offered to bidders under FAR 52.249-10. GAO disagreed, finding that the added provision limited the government’s rights under the Default clause because FAR 52.249‑10 only terminates a contractor’s duty to proceed in cases of “unforeseeable causes beyond the control and without the fault or negligence of the Contractor, . . . [including] Epidemics.” GAO reasoned that AMS’ added provision would impose a lower standard than what FAR 52.249‑10 requires by rendering the occurrence of disease, pandemic or endemic per se unforeseeable causes of delay beyond the control and without the fault or negligence of the contractor. As a result, the added provision would remove the contracting officer’s discretion to determine whether COVID‑19 (or similar pandemics or epidemics) are force majeure events that qualify as excusable delays. Further, GAO rejected AMS’ argument that its changes were immaterial such that the contracting officer could waive them. Ultimately, GAO concluded that not all challenges arising from the COVID‑19 pandemic are “unforeseeable or beyond mitigation,” and supported the Corps’ position that contractors can consider these risks when determining the total price of their bid, but cannot except themselves from those risks.

This decision foreshadows possible protest issues to come. For example, while E.O. 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors is currently stayed, it is possible that contractors’ compliance with the vaccine mandate could serve as grounds for future protests if the executive order is reinstated.

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Photo of Daniel R. Forman Daniel R. Forman

Daniel R. Forman is a partner in Crowell & Moring’s Washington, D.C. office and is co-chair of the firm’s Government Contracts Group.

Dan’s practice focuses on a wide variety of government procurement law, including bid protests, False Claims Act and qui tam litigation…

Daniel R. Forman is a partner in Crowell & Moring’s Washington, D.C. office and is co-chair of the firm’s Government Contracts Group.

Dan’s practice focuses on a wide variety of government procurement law, including bid protests, False Claims Act and qui tam litigation, investigations of potential civil and criminal matters, ethics and compliance, contract claims and disputes, GSA schedule contracting, and small disadvantaged business contracting. Dan is also experienced in negotiating and drafting teaming agreements and subcontracts, as well as providing counseling on the interpretation of FAR clauses and solicitations. Dan’s practice also focuses on state and local procurement matters, including State False Claims Act issues, lobbying and contingency payment compliance. He has been involved in bid protest litigation in six states and the District of Columbia. Dan is ranked as a Band 1 ranked attorney by Chambers USA, listed as a two-time Law360 MVP (2015, 2020), was named to Legal 500’s “Hall of Fame” for Government Contracts in their 2020 Guide, is an Acritas Star, named as a Thomson Reuters Stand-Out Lawyer, and was previously named to BTI’s list of “Client Service All-Stars.

Photo of Cherie Owen Cherie Owen

Cherie Owen is a senior counsel in the Government Contracts group. Cherie counsels and represents clients in a wide array of government contracts issues, with a focus on bid protests at the United States Government Accountability Office (GAO) and the United States Court…

Cherie Owen is a senior counsel in the Government Contracts group. Cherie counsels and represents clients in a wide array of government contracts issues, with a focus on bid protests at the United States Government Accountability Office (GAO) and the United States Court of Federal Claims. As a former GAO bid protest hearing officer, she resolved some of the most challenging bid protests on procurements ranging from thousands to billions of dollars involving solicitation challenges, proposal evaluation challenges, organizational conflicts of interest, Procurement Integrity Act violations, affirmative responsibility determinations, the conduct of discussions, and competitive range determinations. In this role, Cherie held numerous bid protest hearings. At GAO she handled more than 600 protests and issued more than 500 decisions.

Photo of Alexandra Barbee-Garrett Alexandra Barbee-Garrett

Alexandra Barbee-Garrett is an associate in Crowell & Moring’s Washington, D.C. office, where she practices in the Government Contracts Group.

Alex represents government contractors in both litigation and counseling matters. Her practice includes bid protests before the Government Accountability Office (GAO), the U.S.

Alexandra Barbee-Garrett is an associate in Crowell & Moring’s Washington, D.C. office, where she practices in the Government Contracts Group.

Alex represents government contractors in both litigation and counseling matters. Her practice includes bid protests before the Government Accountability Office (GAO), the U.S. Court of Federal Claims, and the U.S. Court of Appeals for the Federal Circuit. Alex’s practice also focuses on federal regulatory compliance, mandatory disclosures to the government, contract disputes under the Contract Disputes Act (CDA), prime-sub disputes, and False Claims Act and internal investigations.

Prior to joining Crowell & Moring, Alex was a law clerk to Judge Richard A. Hertling of the U.S. Court of Federal Claims and a government contracts associate at another large law firm. Alex graduated honors from The George Washington University Law School, where she was an articles editor of The Public Contract Law Journal. Alex won the 2015 Government Contracts Moot Court Competition and served as chair for the 2016 competition. Prior to law school, Alex worked as a health care legislative assistant for Rep. Rick Larsen (WA) in the U.S. House of Representatives. She received her B.A. in international studies and anthropology from the University of Washington.

Photo of Rina Gashaw Rina Gashaw

Rina M. Gashaw is an associate in the firm’s Washington, D.C. office, where she is a member of the Government Contracts Group. Rina’s practice focuses on a range of government contracts issues, including government investigations, client counseling, and providing government contracts due diligence…

Rina M. Gashaw is an associate in the firm’s Washington, D.C. office, where she is a member of the Government Contracts Group. Rina’s practice focuses on a range of government contracts issues, including government investigations, client counseling, and providing government contracts due diligence in transactional matters. Her practice also includes bid protests before the Government Accountability Office and the U.S. Court of Federal Claims.

Photo of Amanda McDowell Amanda McDowell

Amanda H. McDowell is an associate in the Government Contracts and Health Care groups in Crowell & Moring’s Washington, D.C. office. Amanda represents contractors in litigation, regulatory, and counseling matters. Her practice focuses on False Claims Act litigation, government investigations, bid protests, and…

Amanda H. McDowell is an associate in the Government Contracts and Health Care groups in Crowell & Moring’s Washington, D.C. office. Amanda represents contractors in litigation, regulatory, and counseling matters. Her practice focuses on False Claims Act litigation, government investigations, bid protests, and state and federal regulatory compliance.