Crowell & Moring is pleased to announce its 2023 Bid Protest Sustain of the Month Series. All through 2023, 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 Partner Cherie Owen kicks off the series with a discussion of an interesting and controversial decision relating to the evaluation of small business joint venture experience.
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Contractors May Mark Unlimited Rights Technical Data So Long as the Government’s Rights Are Not Impermissibly Restricted: A Study in Contrasts
The Boeing Company (Boeing) and the U.S. Air Force have settled their long-standing data rights marking dispute two years after the U.S. Court of Appeals for the Federal Circuit held that contractors may include restrictive markings on unlimited rights technical data as long as those markings do not restrict the Government’s rights. A copy of the settlement agreement is attached to the Armed Services Board of Contract Appeals’ order of dismissal.
Under the settlement agreement, the Air Force agreed to accept noncommercial unlimited rights technical data with the following legend, which puts third parties on notice of Boeing’s “continuing ownership of such deliverables”:
Although the settlement is limited to this particular dispute, the Air Force’s acceptance of the legend to preserve the company’s rights vis-à-vis unauthorized third parties without compromising the Government’s unlimited rights suggests that a carefully drafted legend like the one included in the settlement agreement may be an acceptable marking for other contractors with similar concerns under their contracts with the Air Force (and even other agencies). The key is to ensure that the marking does not impermissibly restrict the Government’s rights in the data, as further illustrated by the ASBCA’s November 29, 2022 decision in FlightSafety International, ASBCA No. 62659.
Continue Reading Contractors May Mark Unlimited Rights Technical Data So Long as the Government’s Rights Are Not Impermissibly Restricted: A Study in ContrastsByte-Sized Q&A – What Should Contractors Know About the Cybersecurity Provisions Included In, and Left Out of, the National Defense Authorization Act
Crowell & Moring’s “Byte-Sized Q&A” podcast takes the complex world of government contracts cybersecurity and breaks it down into byte-sized pieces. In this episode, Evan Wolff and Chris Hebdon discuss the notable cybersecurity provisions and omissions in the National Defense Authorization Act (NDAA) for Fiscal Year 2022.
Listen: Crowell.com | PodBean | SoundCloud
GAO Releases Annual Bid Protest Report to Congress for FY 2021, Identifies New “Top Ground” for Sustains
On November 16, 2021, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2021. While GAO received slightly fewer protests in FY2021 than in the year prior, the overall protest “Effectiveness Rate”—meaning the percentage of cases in which the protester received relief, such as voluntary corrective action or a GAO sustain—remained relatively constant, at 48% (the rate has ranged from 44% to 51% in each of 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 FY2021, those grounds were as follows: (1) unreasonable technical evaluation; (2) flawed discussions; (3) unreasonable cost or price evaluation; and (4) unequal treatment. The inclusion of “flawed discussions” on the list is notable—it is the first time in recent history that discussions-based protest arguments have proven so successful. Though firm conclusions are difficult to draw based upon a single year’s data, this may indicate that GAO is taking a closer look—and holding agencies to a higher standard—at the propriety and fairness of discussions.
Continue Reading GAO Releases Annual Bid Protest Report to Congress for FY 2021, Identifies New “Top Ground” for Sustains
Byte-Sized Q&A – What About Micro-Purchases?
Crowell & Moring’s “Byte-Sized Q&A” podcast takes the complex world of government contracts cybersecurity and breaks it down into byte-sized pieces. In this episode, host Evan Wolff talks with Chris Hebdon about micro-purchases and the cybersecurity obligations that contractors may encounter in the performance of these small dollar contracts.
Listen: Crowell.com | PodBean |
Byte-Sized Q&A: What Do Contractors Need To Know About The New Cybersecurity Executive Order?
In this episode, host Evan Wolff discusses the Biden Administration’s recent Executive Order on Improving the Nation’s Cybersecurity. Crowell & Moring’s “Byte-Sized Q&A” podcast takes the complex world of government contracts cybersecurity and breaks it down into byte-sized pieces.
Click below to listen or access from one of these links:
Listen: Crowell.com | PodBean |
Crowell & Moring Achieves CMMC Registered Provider Organization Status to Help Defense Contractors Prepare for Upcoming DoD Cybersecurity Assessments
More than 300,000 companies within the Defense Department’s supply chain will need to meet new Cybersecurity Maturity Model Certification (CMMC) requirements and pass a third-party assessment to ensure they are adequately protecting sensitive information on their networks. Now, Crowell & Moring has become the first AmLaw 100 firm to achieve Registered Provider Organization (RPO) status
Independent Public Accountants
Partner Nicole Owren-Wiest discusses Independent Public Accountants on an episode of Baker Tilly’s Fed Talks podcast. The episode covers questions about how IPAs are utilized in the government contractor space, how contractors have reacted to the use of IPAs, and how IPAs are expected to be utilized going forward. Access the podcast below.
EPA Considers Updating Federal Procurement Guidelines for Recycled Content
On April 7, 2020, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register requesting comments on federal procurement guidelines that designate products that are or can be produced with “recovered materials” and set forth recommended practices for purchasing such items. Recovered materials are those waste materials that have been recovered or
Crowell & Moring Releases Regulatory Forecast 2020 — Learn How a Secure Supply Chain is a Competitive Advantage
Crowell & Moring has released its Regulatory Forecast 2020: What Corporate Counsel Need to Know for the Coming Year, a report that explores the impact of regulatory changes on the technology industry and other sectors, and provides insight into the trends that in-house counsel can expect to face in the coming year.
For 2020,