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Anuj Vohra litigates high-stakes disputes on behalf of government contractors in federal and state court, and maintains an active bid protest practice before the U.S. Government Accountability Office and the U.S. Court of Federal Claims. He also assists clients with an array of issues related to contract formation (including subcontracts and teaming agreements), regulatory compliance, internal and government-facing investigations, suspension and debarment, organizational conflicts of interest (“OCIs”), intellectual property and data rights, and the Freedom of Information Act (“FOIA”).

Prior to entering private practice, Anuj spent six years as a Trial Attorney in the U.S. Department of Justice’s Commercial Litigation Branch. At DOJ, he was a member of the Bid Protest Team—which handles the department’s largest and most complex protests—and served as lead counsel in dozens of matters representing the United States in commercial disputes before the U.S. Court of Appeals for the Federal Circuit, the Court of Federal Claims, and the U.S. Court of International Trade.

In Percipient.ai, Inc. v. United States, the Federal Circuit considered Percipient.ai Inc.’s (Percipient) protest arising out of the National Geospatial-Intelligence Agency’s (NGA) SAFFIRE procurement, for the improvement of the agency’s production, storage, and integration of geospatial intelligence data.  Percipient’s protest was unusual—filed in 2023, it related to a task order NGA awarded to CACI, Inc. (CACI) two years earlier, for which Percipient did not (and could not) bid.  But Percipient’s protest did not challenge the award to CACI.  Instead, Percipient challenged NGA’s (and CACI’s) alleged failure, during task order performance, to conduct sufficient market research as to the commercial availability of AI software—for which Percipient already had a commercial offering that purportedly met NGA’s needs—before CACI began developing its own software at significantly higher cost.  Percipient alleged this failure violated 10 U.S.C. § 3453, which establishes a preference for commercial items/services and instructs agencies to procure them “to the maximum extent practicable.”Continue Reading Federal Circuit Narrows FASA Task Order Bar; Expands “Interested Party” Standing

Now more than ever, federal contractors find themselves at the intersection of innovation and regulation, particularly in the realm of Artificial Intelligence (AI).  AI is now incorporated into a broad range of business systems, including those with the potential to inform contractor employment decisions.  For that reason, the Office of Federal Contract Compliance Programs (OFCCP) has issued new guidance entitled “Artificial Intelligence and Equal Employment Opportunity for Federal Contractors” (the “AI Guide”).  OFCCP issued the AI Guide in accordance with President Biden’s Executive Order 14110 (regarding the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence”), which we reported on here.  The AI Guide provides answers to commonly asked questions about the use of AI in the Equal Employment Opportunity (EEO) context.  The AI Guide also offers “Promising Practices,” which highlight a number of important considerations for federal contractors.  Focusing on federal contractors’ obligations and attendant risks when utilizing AI to assist in employment-related decisions, the AI Guide also provides recommendations for ensuring compliance with EEO requirements while harnessing the efficiencies of AI.Continue Reading Harmonizing AI with EEO Requirements: OFCCP’s Blueprint for Federal Contractors

Did the Federal Circuit Open Another Jurisdictional Door for Protests?

Crowell & Moring’s “All Things Protest” podcast keeps you up to date on major trends in bid protest litigation, key developments in high-profile cases, and best practices in state and federal procurement. In this episode, Rob Sneckenberg and Anuj Vohra discuss a recent Federal Circuit

Generally, a GAO protest challenging the terms of a solicitation is timely if filed within 10 days after the denial of an agency-level protest, “even if filed after bid opening or the closing time for receipt of proposals.”  4 C.F.R. § 21.2(a)(3).  Accordingly, the salient consideration for determining when that 10-day clock begins to run is when the agency denies the agency-level protest.  But in Marathon Medical Corp., B-422168.2, February 14, 2024, GAO held that if an agency has not ruled on a pre-award agency-level protest as of the closing date for receipt of proposals, then the protest is deemed denied as of that date—and the protester’s clock for filing a GAO protest begins to run—even if the agency later issues an actual decision denying the protest. Continue Reading Yet Another Timeliness Trap for the Unsuspecting Protester: A Pre-Award Agency-Level Protest Is Functionally Denied as of the Closing Date for Receipt of Proposals, Even if the Agency Actually Denies it Later

Subject to limited exceptions, GAO’s bid protest jurisdiction over Department of Defense (DoD) awards of task orders under multiple-award contracts is limited to those “valued in excess” of $25 million.  While that seems straightforward enough, GAO’s recent decision in ELS, Inc., B 421989, B 421989.2, Dec. 21, 2023, highlights the complexities that can arise in calculating a task order’s value.Continue Reading When Determining Task Order Value for GAO Protest Jurisdiction, Look to What the Task Order Says, Not What the Agency May Do 

Good news for potential protesters at the Court of Federal Claims (CFC).  On May 10, 2023, in CACI, Inc.-Federal v. United States, No. 2022-1488, the United States Court of Appeals for the Federal Circuit issued a sweeping decision holding questions of protester standing and prejudice are merits issues that do not implicate the CFC’s jurisdiction.  In so doing, the Federal Circuit declared decades of prior jurisprudence holding the opposite “no longer good law.” (For a more in-depth discussion of CACI, you can listen to Crowell’s latest All Things Protest podcast.) Continue Reading The Federal Circuit Reconsiders the Impact of Standing and Prejudice on the Court of Federal Claims’ Bid Protest Jurisdiction

Last week, on March 9, 2023, in Percipient.ai, Inc. v. United States, the Court of Federal Claims held that Percipient.ai, Inc. (“Percipient”) had standing to protest a National Geospatial-Intelligence Agency (“NGA”) procurement called “SAFFIRE” intended to improve the agency’s production, storage, and integration of geospatial intelligence data.  Percipient’s complaint, filed in January of this year, argued that SAFFIRE violates the statutory mandate at 10 U.S.C. § 3453 to procure commercial items “to the maximum extent practicable.”  The Court’s conclusion that Percipient had standing to protest is notable because (1) NGA issued the SAFFIRE solicitation in January 2020 (over three years ago); (2) NGA awarded the SAFFIRE contract to CACI, Inc. – Federal (“CACI”) in January 2021 (over two years ago); and (3) Percipient never submitted a proposal in response to the solicitation. 

The Government and CACI moved to dismiss Percipient’s complaint, arguing, among other things, that Percipient lacked standing to protest because it had not submitted a proposal and therefore was not an “interested party,” and because the protest—filed two years after contract award—was in fact a challenge to NGA’s administration of the SAFFIRE contract.  The Government and CACI also argued that the protest was untimely under the Federal Circuit’s decision in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007), which generally requires that protests challenging the terms of a solicitation be filed before the proposal due date. Continue Reading Court of Federal Claims Holds Non-Bidder Has Standing to Protest Two Years After Contract Award

On December 27, 2022, President Biden signed into law the Preventing Organizational Conflicts of Interest in Federal Acquisition Act (S.3905) to strengthen the current rules relating to identification and mitigation of organizational conflicts of interest (OCIs) in federal acquisition. The Act focuses on updating the current FAR provision, Subpart 9.5, to provide clear definitions, examples

The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2023, signed into law on December 23, 2022, makes numerous changes to acquisition policy. Crowell & Moring’s Government Contracts Group discusses the most consequential changes for government contractors here. These include changes that provide new opportunities for contractors to recover inflation-related costs, authorize new programs for small businesses, impose new clauses or reporting requirements on government contractors, require government reporting to Congress on acquisition authorities and programs, and alter other processes and procedures to which government contractors are subject. The FY 2023 NDAA also includes the Advancing American AI Act, the Intelligence Authorization Act for FY 2023, and the Water Resources Development Act of 2022, all of which include provisions relevant for government contractors. Continue Reading FY 2023 National Defense Authorization Act: Key Provisions Government Contractors Should Know