Government Contracts Insights

Insights and analysis from practitioners.

• December 2023 Bid Protest Roundup: Supplementation, Conversion, Rejection

  This month’s Bid Protest Roundup include decisions regarding supplementation of the record and whether an agency may convert a sealed bid opportunity into a negotiated procurement due to lack of funds, as well as a case in which the Court of Federal Claims found a GAO precedent f

  Morrison Foerster LLP · Jan 25, 2024

• GAO Finds Company's BPA BID Remains Eligible for Award Despite a Transaction, Recertification, and Change in Size Status in Connection with Its Underlying Federal Supply Schedule Contract

  Small business regulations create one of the stickier wickets in bid protest litigation. View the full article

  Morrison Foerster LLP · Jan 8, 2024

• Notable Provisions of the FY 2024 National Defense Authorization Act

  On December 22, 2023, President Biden signed the National Defense Authorization Act for Fiscal Year 2024 into law after bipartisan congressional majorities approved the bill earlier in the month. The annual bill authorizes appropriations and sets policy for the Department of Defe

  Morrison Foerster LLP · Jan 3, 2024

• An Overview of the Defense Department’s Long-Awaited Proposed Regulations for Its Cybersecurity Maturity Model Certification Program

  The U.S. Department of Defense released a special holiday treat for government contractors and subcontractors last week in the form of long-promised proposed regulations for its Cybersecurity Maturity Model Certification (CMMC) program. View the full article

  Morrison Foerster LLP · Jan 2, 2024

• Biden Administration Proposes Novel Use of Price as Justification for Agency Exercise of March-In Rights for Government-Funded Inventions

  Presented as part of its effort to lower what it views as excessive prices for prescription drugs, the Biden administration on December 7, 2023, announced the release of a proposed framework to expand the use of government “march-in” authority under the Bayh-Dole Act. View the fu

  Morrison Foerster LLP · Dec 18, 2023

• November 2023 Bid Protest Roundup

  This month's protest spotlight highlights three decisions by the U.S. Government Accountability Office. View the full article

  Morrison Foerster LLP · Dec 6, 2023

• Venture Capital Investment in a Small Business? Know the SBA rules first.

  In recent months, there have been a number of articles about an increase in venture capital interest in entities that do business with the federal government. View the full article

  Morrison Foerster LLP · Nov 16, 2023

• October 2023 Bid Protest Roundup: Instructions, Jurisdiction, Scrutiny

  This month, we feature three bid protest decisions—two from the U.S. Government Accountability Office (“GAO”) and one from the U.S. Court of Federal Claims (“COFC”). Though each of these decisions focuses on a different fundamental point of procurement law, all share a common the

  Morrison Foerster LLP · Nov 14, 2023

• National Security and Government Contractor Implications of Biden AI Executive Order

  The Biden administration issued a widely anticipated executive order on artificial intelligence (“AI”) earlier this week. The Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (the “EO”) addresses a multitude of issues reflecting

  Morrison Foerster LLP · Nov 3, 2023

• Merge, Acquire . . . Voluntarily Self-Disclose?

  Earlier this month, Deputy Attorney General Lisa O. Monaco announced an important extension of DOJ’s voluntary self-disclosure policy aimed specifically at incentivizing companies engaged in mergers and acquisitions “to timely disclose misconduct uncovered during the M&A process.

  Morrison Foerster LLP · Oct 31, 2023

• September 2023 Bid Protest Roundup: Limits to Agency Discretion in Challenge to NAICS Code Assignments, Confines of the Close-at-Hand Principle

  This month’s Bid Protest Roundup focuses on a recent U.S. Court of Federal Claims decision involving the limitations of the government’s deference defense and a U.S. Government Accountability Office (GAO) that involved the proper application and discretionary nature of the so-cal

  Morrison Foerster LLP · Oct 20, 2023

• Timeliness Traps: Adverse Action Before Receipt of a Written Agency-Level Protest Decision

  In the right circumstances, an agency-level protest can be a quick and efficient way to address certain procurement errors, as we discussed a few years ago. View the full article

  Morrison Foerster LLP · Oct 19, 2023

• SBA Updates Its Regulations on Lower-Tier Small Business Subcontracting Credit

  The Small Business Administration (SBA) has issued a final rule amending its regulation on lower-tier small business subcontracting credit to account for statutory changes introduced in the National Defense Authorization Act for Fiscal Year 2020. View the full article

  Morrison Foerster LLP · Oct 13, 2023

• Definitive Guidance on Facility Security Clearances for Small Business Joint Ventures

  The Small Business Administration (SBA) and the Information Security Oversight Office (ISSO) have issued a Joint Notice to clarify how Facility Security Clearances (FCLs) (also called Entity Eligibility Determinations, or EEDs) work for joint ventures. As we have discussed before

  Morrison Foerster LLP · Oct 11, 2023

• The FAR Council’s Proposed Cybersecurity Overhaul: Lots of Questions, but Only Some Answers

  In what can best be described as a tsunami of cybersecurity regulation, the Federal Acquisition Regulation (FAR) Council—consisting of the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA)—issued two propo

  Morrison Foerster LLP · Oct 6, 2023

• August 2023 Bid Protest Roundup: Former Government Employees; Buy American Act Waivers

  August 2023 Bid Protest Roundup: Former Government Employees; Buy American Act Waivers View the full article

  Morrison Foerster LLP · Sep 19, 2023

• Contracting In The Fog of War: Recovering Costs Related to COVID-19

  Like the COVID-19 virus, COVID-related contract claims have not gone away. In “Contracting in the Fog of War: Recovering Costs Caused by an Epidemic,” we reported on Pernix Serka Joint Venture v. Department of State, CBCA No. 5683, 20-1 BCA ¶ 37589 (April 22, 2020), in which the

  Morrison Foerster LLP · Sep 12, 2023

• Subcontracting to a Mentor-Protégé Joint Venture: Changes to How Small Business Subcontracting Goals Are Calculated

  Recent changes to the U.S. Small Business Administration (SBA) regulations impact how large businesses can take small business credit for subcontracting to their own mentor-protégé joint ventures (MPJVs). View the full article

  Morrison Foerster LLP · Sep 6, 2023

• Missing SCA Clause Did Not Excuse Noncompliance or Allow for Full Equitable Adjustment

  In Innovative Technologies, Inc., ASBCA No. 6186, 62185, the Armed Services Board of Contract Appeals (“ASBCA” or the “Board”) held that, despite the federal government’s failure to include or incorporate the McNamara-O’Hara Service Contract Act (“SCA”) FAR Clause 52.222-41 (the

  Morrison Foerster LLP · Aug 28, 2023

• GSA Issues Multiple Award Schedule Solicitation Refresh 16: What It Means for Joint Ventures, Good and Bad

  On May 19, 2023, the General Services Administration (GSA) issued Multiple Award Schedule (MAS) solicitation refresh 16, which introduced a formal offer process for joint ventures. View the full article

  Morrison Foerster LLP · Aug 22, 2023

• Proposed Sustainable Procurement Rule Would Streamline Existing Environmental Regulations and Clarify FAR Part 23

  The Federal Acquisition Regulation (FAR) Council published on August 3, 2023, a proposed “Sustainable Procurement” rule that reorganizes FAR Part 23 for clarity, moves subparts unrelated to sustainability or material safety to FAR Part 26, and includes a proposed “Sustainable Pro

  Morrison Foerster LLP · Aug 10, 2023

• July 2023 Bid Protest Roundup: Personnel Loss, Conflicts, Timeliness

  This month’s bid protest roundup highlights two decisions from the U.S. Court of Federal Claims (“Court”), one addressing an offeror’s loss of key personnel and a second addressing organizational conflicts of interest (“OCIs”) arising out of an offeror’s reliance on former govern

  Morrison Foerster LLP · Aug 8, 2023

• Biden Executive Order Has Potential to Discourage U.S. Company Participation in Federal Research

  A new Biden administration Executive Order proposes to enforce more rigorously U.S. manufacturing requirements attendant to federally funded inventions. While the aim of the Executive Order is to support domestic manufacturing and jobs, the policy could have the unintended effect

  Morrison Foerster LLP · Aug 4, 2023

• SBA Finalizes Rule to Modernize the SBIC Program

  The U.S. Small Business Administration (SBA) finalized a rule to modernize the Small Business Investment Company (SBIC) Program on July 17, 2023. Part of President Biden’s Investing in America agenda, the new SBIC Investment Diversification and Growth (IDG) rule seeks to “unlock

  Morrison Foerster LLP · Aug 1, 2023

• DoD Issues Updated Other Transactions (OT) Guide

  The Department of Defense updated its guidance on “other transaction” agreements, or “OTs,”\[1\] an increasingly popular contracting authority not subject to the FAR or most procurement laws that accounted for more than $37 billion in defense spending from 2019 through 2021.\[2\]

  Morrison Foerster LLP · Jul 24, 2023