Photo of Anuj Vohra

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.

On November 1, 2022, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2022.  While the number of protests GAO received dropped by 12% for the second year in a row, the overall protest “Effectiveness Rate”—meaning the percentage of cases in which the protester received some form of relief, such as voluntary corrective action by the agency or a GAO sustain—increased to 51%, tying Fiscal Year (FY) 2020 for the highest rate in the past five years.  

GAO’s Annual Report also provides a helpful summary of the most common grounds for sustained protests in the prior year.  In FY2022, those grounds were: (1) unreasonable technical evaluation; (2) flawed selection decision; and (3) flawed solicitation.  The inclusion of “flawed solicitation” on the list is notable—it has only made the list of “most successful grounds” one other time since GAO began tracking successful protest grounds.  This serves as a reminder that contractors should consider a pre-award protest as a potentially viable method of resolving solicitation flaws and ambiguities if other routes (such as the Q&A process) are unsuccessful or unavailable.    

The chart below shows the top sustain grounds by year.  As seen below, flawed technical evaluations continue to represent one of the most consistently successful grounds for sustains, meaning would-be protesters should consider whether they have a credible basis to make such arguments when weighing an award challenge. 

Continue Reading GAO’s 2022 Bid Protest Report to Congress for FY 2021 Shows Better than 50% Chance of Obtaining Relief

On Friday September 9, 2022, the Principal Director for DoD Defense Pricing and Contracting (DPC) issued a Memorandum titled “Managing the Effects of Inflation with Existing Contracts.”  The Memorandum provides guidance to Contracting Officers about the range of approaches available to address the effects of inflation on the Defense Industrial Base.  Of note, it highlights two paths contractors may pursue to recover for inflation under fixed-price contracts.

First, the Memorandum notes that the ability to recognize cost increases is largely dependent on contract type, asserting that “[c]ontractors performing under firm-fixed-price contracts that were priced and negotiated before the onset of the current economic conditions generally bear the risk of cost increases.”  This is similar to guidance DPC issued in May encouraging Contracting Officers to consider including economic price adjustment (EPA) clauses in new contracts but expressing skepticism about contractors’ ability to recover for inflation under existing fixed-price contracts.  However, the new Memorandum allows that “there may be circumstances where an accommodation [such as schedule relief or amended contract requirements] can be reached by mutual agreement of the contracting parties, perhaps to address acute impacts on small business and other suppliers.”

Continue Reading DoD Will Consider Contract Adjustments Addressing Inflation

Last month, in Seife v. U.S. Food and Drug Administration, the U.S. Court of Appeals for the Second Circuit became the first appellate court to address a significant question left unanswered by the Supreme Court’s 2019 decision in Food Marketing Institute v. Argus Leader Media: what impact, if any, did the 2016 FOIA Improvement Act (“FIA”) have on FOIA Exemption 4?  The answer: a submitter of information ostensibly subject to Exemption 4 must demonstrate competitive harm—though not “substantial” harm—resulting from disclosure in order to invoke the exemption.

Argus clarified the applicability of Exemption 4, which protects from disclosure “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.”  5 U.S.C. § 552(b)(4).  The Argus Court rejected the longstanding National Parks test, which applied Exemption 4 only where the submitter of such information could demonstrate “substantial competitive harm” resulting from its disclosure.  Instead, the Argus Court held Exemption 4 applied, at the very least, where the submitter of such information kept it confidential and submitted it to the government with an assurance of privacy.  Given the difficulties inherent in establishing “substantial competitive harm,” Argus was welcome news for contractors seeking Exemption 4 protection.  (We have previously written about Argus and the district court decisions that followed.) 

In 2016, Congress enacted the FIA in response to concerns that FOIA’s exemptions were being overused. The FIA amended FOIA to allow for an exemption’s invocation only if “the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or if disclosure is “prohibited by law.”  5 U.S.C. § 552(a)(8)(A).  Since Argus, multiple plaintiffs have argued the FIA effectively codified the National Parks test.  (Argus considered a FOIA dispute that commenced prior to the passage of the FIA; the Court there had no reason to address the question.)

Continue Reading Second Circuit Holds FOIA Exemption 4 Still Requires Showing of “Competitive Harm” Resulting from Disclosure, Though Not a “Substantial” One

Protesters looking to challenge U.S. Government awards of “Other Transaction Agreements” (“OTAs”) face forum challenges—the Government Accountability Office (“GAO”), Court of Federal Claims (“COFC”), and federal district courts have all dismissed OTA protests for lack of subject matter jurisdiction, with GAO and the COFC concluding that OTAs are not procurement contracts.  But last week, in Hydraulics International, Inc. v. United States, the COFC held it could exercise jurisdiction over a challenge to an OTA award made in connection with a potential future procurement.

In Hydraulics, the Court considered a challenge to the Army’s award of an OTA for Aviation Ground Power Unit (“AGPU”) protypes used to service military helicopters.  The Army invited offerors to respond to a Request for Enhanced Whitepapers (“RWP”), which contemplated awards to two companies for the “base effort” of one prototype AGPU.  The RWP instructed that the base-effort award “may result in the award of a follow-on production contract for over 150 AGPUs without the use of competitive procedures.”

Continue Reading Sometimes, the Court of Federal Claims Does Consider OTA Protests

Last week, the Court of Federal Claims issued a decision highlighting – and further widening – the gap between the limited agency record typically available to protesters at the Government Accountability Office (“GAO”) and the much more fulsome record available at the Court.  In Trace Systems Inc. v. U.S., the Court signaled its increasing willingness to scrutinize the adequacy of the record produced, rather than simply accept Government representations of completeness.

Trace Systems considered a challenge to the cancellation of a competitive procurement in favor of a sole-source award by the Defense Information Systems Agency (“DISA”).  After the Government filed an administrative record containing nearly 23,000 pages of documents purportedly detailing the cancellation decision, the protester objected and sought the production of additional documents, claiming only six of the originally produced documents were relevant.  The Court ordered DISA to complete the record, and the Government produced additional documents.  DISA explained, however, that it was withholding other records that were “internal, predecisional, and deliberative agency documents.”  The protester again objected and asked the Court to compel the Government to file all relevant documents.  In response, the Government represented that, beyond the pre-decisional documents it had withheld, the record was now complete.

Continue Reading COFC: Strictly Scrutinizing the Completeness of the Government’s Administrative Record

After a recent Court of Federal Claims (“COFC”) decision limited the circumstances under which a departure of key personnel may doom an offeror’s proposal, an even more recent GAO decision might have swung the pendulum right back. In Sehlke Consulting, LLC, GAO sustained a protest because the agency failed to penalize the awardee when a proposed key person employed under the incumbent contract provided notice that he planned to resign. Even though the key person was still employed on the date of award, GAO held that the agency’s failure to consider his “prospective unavailability” for the follow-on contract undermined the contract award.

The following dates were relevant:

  • Performance of the follow-on contract was scheduled to begin February 1, 2022.
  • On January 11, 2022, one of the awardee’s proposed key personnel (who was then an employee of a subcontractor on the incumbent contract) announced that he planned to resign effective January 28, 2022. The awardee timely notified the Contracting Officer’s Technical Representative (“COTR”) for the incumbent contract.
  • On January 25, 2022, the agency completed its evaluations and awarded the contract.
  • On January 28, 2022—after award but before performance was to begin—the key person’s resignation became effective.


Continue Reading GAO Finds Key Person “Unavailable” Despite Still Being Employed on Date of Award

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, Crowell attorneys discuss their recent “Feature Comment,” published in The Government Contractor, discussing the recent Court of Federal

Arguably the hottest bid protest topic of the past several years just reached its boiling point. On Friday, the Court of Federal Claims (COFC), in Golden IT, LLC v. United States, rejected the Government Accountability Office’s (GAO) rule that an offeror must notify an agency if its proposed key personnel become unavailable after proposal

The acquisition and consolidation of government contractors has become increasingly prevalent in recent years. GAO’s recently released decision in Vertex Aerospace, LLC, B‑420073, B-420073.2, Nov. 23, 2021, serves as an important reminder to contractors that failure to properly update a procuring agency about such transactional activity can have adverse impacts on a pending

Published Federal Circuit decisions in bid protests are rare and, as a result, often consequential. In its most recent such decision, System Studies & Simulation, Inc. v. U.S., the Federal Circuit reminded protesters that even where they successfully demonstrate an agency action was “irrational,” they must also make an affirmative showing of prejudice, which