Offerors understand that missing a submission deadline can sink even the best proposal because “late is late.” But what happens when an offeror timely emails its proposal only to have an agency server reject it without any notification to the offeror? GAO’s recent decision in Guidehouse, Inc., B-422115.2, Jan. 19, 2024, says that the proposal is still late and emphasizes the potentially draconian impact of the “late is late” rule.Continue Reading The Agency’s Email Server Ate My Proposal! – GAO Rejects Challenge to “Late is Late” Rule
Rob Sneckenberg is a government contracts litigator in Crowell & Moring’s Washington, D.C. office. He routinely first chairs bid protests before the U.S. Government Accountability Office (GAO) and U.S. Court of Federal Claims (COFC), and has successfully argued multiple appeals before the U.S. Court of Appeals for the Federal Circuit. He also represents contractors in contract claim and cost accounting disputes before the Armed Services Board of Contract Appeals (ASBCA), and counsels clients on a wide array of government contracts investigations. Rob is very active in Crowell & Moring’s pro bono program, where he focuses on civil and criminal appeals.
In JE Dunn Construction Company, ASBCA No. 63183, the Armed Services Board of Contract Appeals (“ASBCA”) issued its first published decision applying the Federal Circuit’s recent holding that the FAR sum-certain requirement for Contract Disputes Act claims is not jurisdictional. The Board held that, because the government did not raise the issue until after a hearing on the merits, the government forfeited its right to challenge the contractor’s satisfaction of the sum-certain requirement.Continue Reading Use It or Lose It: ASBCA Finds That the Government Forfeited its Sum-Certain Defense
The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2024, signed into law on December 22, 2023, 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 impose a new conflict of interest regime for government contractors with a connection to China, impose new restrictions and requirements, require government reporting to Congress on acquisition authorities and programs, and alter other processes and procedures to which government contractors are subject. The FY 2024 NDAA also includes the Federal Data Center Enhancement Act, the American Security Drone Act, and the Intelligence Authorization Act for FY 2024.Continue Reading The FY 2024 National Defense Authorization Act: Key Provisions Government Contractors Should Know
Year-End Trends and a Look Ahead to 2024
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, host Rob Sneckenberg highlights three protest trends in 2023—the Federal Circuit revisiting…
On October 26, 2023, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2023.
The total number of protests filed and the number of protests sustained by GAO increased significantly compared to Fiscal Year 2022—and GAO’s “Sustain Rate” jumped to 31%. GAO downplayed these increases to a degree, highlighting that it received “an unusually high number of protests challenging a single procurement”—the Department of Health and Human Services’ award of Chief Information Officer-Solutions and Partners 4 (CIO-SP4) government-wide acquisition contracts—which resulted in over 100 sustained protests. Nonetheless, even excluding the CIO-SP4 protests, it appears that GAO’s “Effectiveness Rate” (the percentage of cases in which the protester received relief, such as voluntary corrective action or a GAO sustain) was comparable to prior years—at or near 50%. Thus, bid protests remain an important oversight mechanism for the federal procurement system.Continue Reading GAO’s Bid Protest Sustain Rate Soars, but Is There a Catch?
On September 6, 2023, the Department of Energy (DOE) issued a Class Deviation removing the FAR 52.204-7 requirement that a contractor maintain its System for Award Management (SAM) registration for the entire time from proposal submission until contract award, without any lapse. As background, FAR 52.204-7 has since 2018 provided that “[a]n Offeror is required…
In ECC Int’l Constructors Inc. v. Army, No. 2021-2323 (Fed. Cir. Aug. 22, 2023), the Court of Appeals for the Federal Circuit overturned longstanding precedent by holding that the requirement to state a “sum certain” in a claim submitted under the Contract Disputes Act (CDA) is not a jurisdictional requirement. The Court based its decision on recent Supreme Court guidance to “treat a procedural requirement as jurisdictional only if Congress ‘clearly states’ that it is.” The Court parsed the CDA and found that Congress never used the words “sum certain,” evidencing that Congress did not intend the requirement to be jurisdictional. This is important because jurisdictional requirements can be raised at any time—even years after the claim was filed and a full hearing on the merits was held—and result in dismissal of the case. The Court explained that the “sum certain” is “nonetheless a mandatory rule that claimants must follow.” Continue Reading Sum-Thing Is Missing from the Contract Disputes Act: Federal Circuit Holds that “Sum Certain” Requirement is Non-Jurisdictional
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, hosts Christian Curran and Rob Sneckenberg discuss the latest Court of Federal Claims decision disagreeing with a Government Accountability Office…
Federal contractors must be registered on SAM.gov to be eligible for award of federal contracts. Failure to do so can have significant consequences, as the recent U.S. Court of Federal Claims (CFC) decision in Myriddian, LLC v. United States, No. 23-443 makes clear.
In Myriddian, the Centers for Medicare & Medicaid Services (CMS)…
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