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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

Earlier today, the U.S. District Court for the Southern District of Georgia issued a preliminary nationwide injunction of the contractor vaccine mandate in Executive Order 14042.  This injunction will bar the Government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States

On November 4, 2021, the White House released a Fact Sheet announcing that federal covered contractors now have until January 4, 2022 for their covered employees to receive their final vaccination doses. Under the Executive Order 14042 and the Safer Federal Workforce Task Force guidance, covered contractors previously had until December 8, 2021 to have

In Aero Spray, Inc. d/b/a Dauntless Air v. U.S., the U.S. Court of Federal Claims dismissed a protest filed by Aero Spray, an awardee of an indefinite delivery indefinite quantity (“IDIQ”) contract for Department of the Interior plane-based firefighting services.  Aero Spray’s protest challenged the agency’s award of IDIQ contracts to two other companies, alleging that their planes did not comply with the solicitation’s required firefighting configuration.

Aero Spray argued that despite being an awardee itself, it had standing to protest the additional awards because they increased competition for awards of future task orders competed amongst the IDIQ holders, to Aero Spray’s detriment.  The Court disagreed, holding that Aero Spray’s protest related to the award of the IDIQ contracts—not future task orders—and that Aero Spray “already . . . won the only contract award to which it could possibly be entitled.”  In so holding, the Court expressly agreed with the Government Accountability Office, which has held that that “an awardee, by definition, is not an actual or prospective offeror,” and that “[d]ue to the nature of IDIQ contracts, . . . an awardee has no legally cognizable expectation of receiving future task orders” but only a “guaranteed a minimum quantity of orders . . . and a fair opportunity to compete for future task orders.”  Aegis Def. Servs., LLC, B-412755, Mar. 25, 2016, 2016 CPD ¶ 98.  The Court also rejected the reasoning in National Air Cargo Group, Inc. v. U.S., 126 Fed. Cl. 281 (2016), which allowed an awardee to protest additional IDIQ awards due to the potential impact on future task order competitions, and distinguished PAE-Parsons Global Logistics Services., LLC v. U.S., 145 Fed. Cl. 194 (2019), and Sirius Federal, LLC v. U.S., 153 Fed. Cl. 410 (2021), which noted that an awardee can have standing to challenge other awards under the same procurement where those other awards are distinct from (e.g., more valuable than) the awardee’s own.
Continue Reading Court of Federal Claims Refuses to Hear Protest from IDIQ Awardee

Following President Biden’s announcement of Executive Order 14042 (“EO”) on September 9, 2021, several agencies have issued guidance on the EO’s applicability to the contractor community, which we reported on here.  Further to GSA’s September 30, 2021 Class Deviation CD-2021-13, on October 6, 2021, GSA reiterated that a mass modification program for all

A panel of the U.S. Court of Appeals for the Fifth Circuit recently rejected an argument advanced by two subsidiaries of a nationwide health care “watchdog” that the government improperly moved to dismiss two False Claims Act (FCA) lawsuits in U.S. ex rel. Health Choice Alliance LLC et al. v. Eli Lilly & Co. Inc. et al., No. 19-40906 (5th Cir. Jul. 7, 2021).  The relators accused Bayer Corp. and Eli Lilly & Co. Inc. of participating in a kickback scheme by offering free patient-education services to providers in exchange for providers prescribing their products in violation of the Anti-Kickback Act and the FCA.  The government initially declined to intervene in the cases, then a year later, notified the relators that it intended to move to dismiss and detailed its concerns about the viability of the cases.  After two-and-a-half months of negotiations with the relators, the government moved to dismiss the cases pursuant to its authority under 31 U.S.C. § 3730(c)(2)(A), citing, among other things, its two-year investigation into the relators’ cases.  The District Court granted the motions and the relators appealed.

Before undertaking its substantive analysis under the FCA, the Fifth Circuit analyzed whether it had jurisdiction to hear the relators’ appeal.  Though the relators and government agreed that there was appellate jurisdiction, the Fifth Circuit identified a potential issue based on the timeline of two events: (1) relators’ voluntary dismissal without prejudice; and (2) the District Court’s order granting the government’s motion to dismiss.  Specifically, the Fifth Circuit analyzed whether the relators’ voluntary dismissal eight months prior to the government’s motion to dismiss deprived the District Court of the ability to issue a final appealable order.  The Fifth Circuit declined to create a Circuit split on the question, and concluded “that the prior without-prejudice dismissals did not deprive the district court’s subsequent decision of finality.”

Continue Reading Fifth Circuit Declines to Take a Side in the FCA Circuit Split on DOJ’s Dismissal Authority Pursuant to 31 U.S.C. § 3730(c)(2)(A)

In L3 Technologies, Inc., ASBCA Nos. 61811, et al. (Mar. 1, 2021), the Armed Services Board of Contract Appeals (Board) granted the Government’s motion to dismiss the appeal, over the contractor’s objection, following the Contracting Officer’s (CO) unequivocal withdrawal of its cost disallowance claims. The contractor argued that its case was not moot despite

In Globe Trailer Manufacturing, Inc., ASBCA No. 62594 (Jan. 28, 2021), the Armed Services Board of Contract Appeals (the Board) addressed whether a contractor’s certified supplement to a termination settlement proposal (TSP) constitutes a claim under the Contract Disputes Act. After termination, the contractor submitted a TSP that included costs of constructive changes. During

On January 6, 2021, the Administrative Conference of U.S. Courts authorized federal district courts to develop policies for accepting “highly sensitive court documents (HSDs),” which would normally be filed electronically under seal, via paper filing. The statement from the Administrative Conference also acknowledged that the recent cybersecurity attack on SolarWinds products compromised the confidentiality of

On August 18, 2020, the Acting Principal Director for Defense Pricing and Contracting (DPC) issued updated guidance regarding contractor and subcontractor reimbursement of paid leave costs under the CARES Act § 3610, including two key Class Deviations, both effective immediately. First, it issued Revision 1 to Class Deviation 2020-O0013, which revises and supersedes