On Wednesday, May 11th, 2016 at 1 PM Eastern, join our Crowell & Moring attorneys for a webinar entitled: “Organizational and Personal Conflicts of Interest: New and Pending Rules.” During this 90-minute webinar, our experts will clarify key principles, including a review of 2014 proposed amendments to the 2011 FAR conflict of interest rules. From
James G. Peyster
James G. Peyster is a counsel in Crowell & Moring's Government Contracts Group.
James' practice focuses on a wide range of government procurement law, including bid protests before the Government Accountability Office (GAO) and the U.S. Court of Federal Claims, contract claims at the Board of Contract Appeals, prime/sub disputes, and counseling clients on a wide range of matters, including compliance programs, procurement integrity, and identification and resolution of organizational and personal conflicts of interest.
Hiring a Former Government Official? Obtain and Hold On to the Ethics Letter
The Department of Defense (DoD) Office of Inspector General (IG) recently released a July 6, 2015 Memorandum announcing that it will “immediately” begin the field work for its assessment of DoD compliance with Section 847 of the 2008 National Defense Authorization Act (NDAA), “Requirements for Senior Defense Officials Seeking Employment with Defense Contractors.” Section 847…
C&M Lawyers Conduct Live Webinar on OCIs and PCIs on Thursday, January 15
On Thursday, January 15 at 2 PM Eastern, join our Crowell & Moring attorneys for a webinar entitled: “Organizational and Personal Conflicts of Interest: New and Pending Rules.” During this 90-minute webinar, our experts will clarify key principles, including a review of 2014 proposed amendments to the 2011 FAR conflict of interest rules. From the…
C&M Lawyers Conduct Live Webinar on Procurement Integrity on Wednesday, September 11
At 1:00 pm (Eastern) on September 11, 2013, Crowell & Moring attorneys Peter Eyre and James Peyster will conduct a webinar on behalf of L2 Federal Resources entitled “Procurement Integrity Act: A High Risk Area for Government Contractors.” This 90-minute webinar will explore the Act, the regulations, key bid protest decisions, and recent suspension and…
C&M Lawyers Conduct Live Webinar on OCIs and PCIs on Thursday, March 7
At 1:00 pm (Eastern) on March 7, 2013, Crowell & Moring attorneys Peter Eyre and James Peyster will conduct a webinar on behalf of L2 Federal Resources entitled “Organizational Conflicts of Interest (OCIs) and Personal Conflicts of Interest (PCIs): New and Pending Rules.” This 90-minute webinar will provide an overview of key principles of conflicts …
Proposed Revisions to the Tucker Act Would Dramatically Change the Bid Protest Landscape
CORRECTION (5/15/12): A prior version of this blog post first posted on May 11, 2012, analyzed the proposed amendment to the Tucker Act discussed herein under the mistaken impression that it had been part of the committee mark version of the 2013 National Defense Authorization Act. We have since learned that the proposed amendment to the Tucker Act was not included in the bill that went to committee vote. The below analysis has been altered to examine the proposed legislation in the proper context. We apologize for the error.
On April 25, 2012, the Department of Defense submitted proposed legislation to the House Armed Services Committee for consideration in the 2013 National Defense Authorization Act (NDAA) that would dramatically amend the Tucker Act, 28 U.S.C. § 1491(b), by importing essentially all of the GAO’s rigid timeliness rules with regard to bid protest actions and applying them to protests filed before the U.S. Court of Federal Claims (COFC). Amongst the GAO timeliness rules currently contained in 4 C.F.R. § 21 that DoD proposed to be added to the Tucker Act and apply to the COFC include:
- The absolute rule that pre-award solicitation challenges must be filed before the submission date for proposals;
- The rule that any post-award protest must be filed within 10 days of when an offeror knows or should have known of the basis for protest, unless subject to a mandatory debriefing, in which case the protest must be filed within 10 days of that debriefing, and;
- In the event that an agency protest has been filed, the rule that a COFC protest must be filed within 10 days of when the offeror knew or should have known of the adverse decision in the agency protest.
Continue Reading Proposed Revisions to the Tucker Act Would Dramatically Change the Bid Protest Landscape
C&M Attorneys to Conduct Live Webinar on Organizational and Personal Conflicts of Interest, Regulatory Requirements, and Compliance Strategies
At 1pm EST on February 9, 2012, Crowell & Moring government contracts attorneys Peter Eyre and James Peyster will be conducting a webinar entitled “Conflicts of Interest in Government Contracting: Reducing Risk in an Age of Increased Visibility” on behalf of L2 Federal Resources. This webinar will provide an overview of the key principles of …
Webinar: Understanding and Implementing the New FAR Contractor Personal Conflict of Interest Provisions
We invite you to join us on November 16 at 3pm EST for a complimentary webinar, “Understanding and Implementing the New FAR Contractor Personal Conflict of Interest Provisions.”
On November 2, 2011, the FAR Councils issued a final rule amending the Federal Acquisition Regulation (“FAR”) to include new provisions governing personal conflicts of interest …
Chance to Change Pricing Generally Required After Corrective Action
This week, GAO released a decision in Power Connector, Inc., B-404916.2, Aug. 15, 2011, 2011 WL 5029615 that appears to introduce a significant change to the circumstances in which a procuring agency may limit the scope of proposal revisions during corrective action.
Prior GAO precedent indicated that there are certain instances where an agency could limit proposal revisions during corrective action and certain instances where such limitations were improper. On the one hand, in Honeywell Technology Solutions, Inc. (“Honeywell”), B-400771.6, Nov. 23, 2009, 2009 CPD ¶ 240, the procuring agency decided to accept updated past performance references as part of corrective action, but did not amend the RFP. When a protester challenged the agency’s decision to forbid pricing revisions, GAO denied the protest because agencies “have broad discretion” in the area of corrective action and “[GAO] will not question an agency’s decision to restrict proposal revisions when taking corrective action so long as it is reasonable in nature and remedies the established or suspected procurement impropriety.”
On the other hand, in Lockheed Martin Systems Integration-Owego et al. (“Lockheed”), B-299145.5 et al., Aug. 30, 2007, 2007 CPD ¶ 155, GAO sustained a protest where the procuring agency amended the way in which certain life cycle costs would be calculated during the cost reevaluation, yet forbade offerors from amending their technical proposals. GAO recognized that changes to the way costs will be tabulated can have a direct effect on the technical solution offered, and thus concluded that, when an agency amends its solicitation, it should allow offerors to amend proposals without restriction “unless  the agency offers evidence that the amendment could not reasonably have any effect on other aspects of proposals, or  that allowing such revisions would have a detrimental impact on the competitive process.” Id. at 5. Since the agency’s amendment had a clear connection to another aspect of Lockheed’s proposal, the limitation was deemed improper.
The intersection of these two legal principles is found in cases such as the recent decision in Intermarkets Global, B-400660.10, Feb. 2, 2011, 2011 CPD ¶ 30, where an agency revised two technical requirement in the RFP as part of corrective action and restricted proposal revisions to addressing the updated technical requirements. Specifically, the agency instructed: “Price revisions are prohibited unless you can provide documented evidence, including a narrative explanation, showing a direct link, with supporting cost-type information, between changes in your proposal resulting from these two clarifications and the proposed pricing.” Id. at 3. When this limitation to pricing revisions was challenged, GAO denied the protest and upheld the agency’s corrective action approach. Citing to both of the above decisions in Honeywell and Lockheed, GAO found that there was no abuse of discretion in the agency’s decision to limit proposal revisions because offerors could make any pricing revisions that reasonably related to the revised technical requirements. Id. GAO was unmoved by the protester’s desire to make wholesale pricing changes that had nothing to do with the revised solicitation.
However, just six months after the Intermarkets Global decision, GAO seems to have issued a conflicting opinion in the Power Connector that has called into question the viability of not only Intermarkets Global, but many of the cases upon which it relied.
Continue Reading Chance to Change Pricing Generally Required After Corrective Action
Draft Executive Order Requiring Broad Contractor Disclosure of Political Contributions Faces Strong Opposition from Industry and Congressional Republicans
On April 13, 2011, the Obama administration released a draft executive order called “Disclosure of Political Spending by Government Contractors.” This executive order, if implemented, would instruct the FAR Councils to amend the FAR to require significant disclosures about contractor political contributions to be made as part of any proposal submitted by a firm seeking …