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John E. McCarthy Jr.

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John E. McCarthy, Jr. is a partner in the Washington, D.C. office of Crowell & Moring and member of the firm's Government Contracts Group. John has spent more than thirty years litigating all forms of government contracts cases for both large and small government contractors, with a particular emphasis on bid protests. Because of John's strong engineering background, he has particular experience in technology related issues, including litigation regarding complex technology and data rights, patent and other intellectual property issues.

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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

In an effort to boost the domestic mining industry for critical minerals, on March 31, 2022, President Biden issued Presidential Determination 2022-11, the Memorandum on Presidential Determination Pursuant to Section 303 of the Defense Production Act of 1950, as amended (“Presidential Determination”).  The Presidential Determination states that sustainable and responsible domestic mining, beneficiation, and…

While there’s no harm in gathering as much information as possible before filing a protest, would-be protesters must pay careful attention to GAO’s timeliness regulations. In K&K Industries, Inc., B-420422; B-420422.2, March 7, 2022, GAO highlighted the risk of attempting to unilaterally extend a debriefing beyond the Department of Defense (DOD) enhanced debriefing window.…

On February 7, 2022, the Small Business Administration’s (SBA) changes to the “surviving spouse” provision in its regulations on Service Disabled Veteran Owned Small Business (SDVOSB) status became effective.  SBA had issued a direct final rule covering this change, 86 FR 61670, on November 8, 2021.

In brief, SBA’s now provides for a 3-year…

During December 2021, the House and Senate reached agreement on a compromise National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2022.  On December 23, 2021, Congress presented S. 1605 to President Biden, which he signed on December 27, 2021.

The FY2022 NDAA contains numerous provisions relating to acquisition policy—which provide new opportunities for government contractors, will result in the imposition of new clauses or reporting requirements on government contractors, require government reporting to Congress on acquisition authorities and programs, alter processes and/or procedures to which government contractors are subject, etc.  Crowell & Moring’s Government Contracts Group discusses the most consequential changes in the FY2022 NDAA for government contractors below.
Continue Reading National Defense Authorization Act for Fiscal Year 2022: Acquisition Policy Changes of Which Government Contractors Should Be Aware

In a string of recent cases following the Supreme Court’s 2019 decision in Food Marketing Institute v. Argus Leader Media, multiple courts have held that a party submitting information to the government need not demonstrate it obtained an assurance of confidentiality from the government in order for the agency to justify withholding that information…

On May 20, 2021, the FAR Council issued a proposed Defense Federal Acquisition Regulation Supplement (DFARS) rule on post-award debriefings that largely codifies—and in a number of ways bolsters—the existing enhanced post-award debriefing rules established by the Department of Defense’s (DoD) March 22, 2018 Class Deviation on Enhanced Postaward Debriefing Rights.  The proposed rule requires…

In Peraton Inc., GAO sustained a challenge to the scope of an agency’s corrective action. The State Department awarded a task order to ManTech. Peraton challenged that award on numerous grounds, including on the basis that the awardee’s letters of commitment for key personnel did not satisfy solicitation requirements. After an outcome prediction alternative…

On May 14, the President issued an Executive Order (EO) delegating funding and loan authority under Title III of the Defense Production Act (DPA) to the U.S. International Development Finance Corporation (DFC) to support domestic production of strategic resources to respond to the COVID-19 outbreak and strengthen domestic supply chains. The DFC’s loan authority…