Government Contracts Insights
Insights and analysis from practitioners.
June 2023 Bid Protest Roundup: Errors, Experience, Corrective Action
This month’s bid protest roundup focuses on two decisions from the U.S. Court of Federal Claims (“Court”) and one decision from the U.S. Government Accountability Office (“GAO”). These decisions involve (1) the Court’s determination that, based on the facts, inconsistencies in an
Morrison Foerster LLP · Jul 17, 2023
Hard Validations and Cutlines: What Happened on CIO-SP4?
If you’ve been following the saga of the National Institutes of Health Information Technology Acquisition and Assessment Center’s (NITAAC) Chief Information Officer-Solutions and Partners (CIO-SP4) procurement, you likely know the Government Accountability Office (GAO) recently i
Morrison Foerster LLP · Jul 14, 2023
Pratt’s Government Contracting Law Report: Key Considerations for Litigating Classified Bid Protests
Kevin Mullen, Sandeep Nandivada, James Tucker, and Caitlin Crujido authored an article for Pratt's Government Contracting Law Report sharing 10 factors to consider when contemplating a classified protest. View the full article
Morrison Foerster LLP · Jul 7, 2023
Clarifying Minor Errors: The Court Makes an Agency Seek a Clarification
Offerors whose proposals are disqualified for immaterial typographical and data input errors will want to read an interesting new protest decision from the Court of Federal Claims. In Aspire Therapy Services & Consultants, Inc. v. United States, the Court sustained a protest beca
Morrison Foerster LLP · Jul 5, 2023
When Does the So-Called TikTok Ban Really Apply to Contractors and Their Employees?
In the extensive chatter since the Federal Acquisition Regulatory Council (“FAR Council”) published an interim rule on the new Federal Acquisition Regulation (FAR) 52.204-27, “Prohibition on a ByteDance Covered Application,” commentators have almost universally advised that if a
Morrison Foerster LLP · Jun 22, 2023
May 2023 Bid Protest Roundup: Timeliness, Discovery, Registration Gap
This past month, bid protest decisions from both the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) provided important reminders of procedural rules that protesters and intervenors View the full article
Morrison Foerster LLP · Jun 14, 2023
United States Supreme Court: Look to Defendant’s Subjective Beliefs to Decide Whether It “Knowingly” Submitted False Claim
On June 1, 2023, the Supreme Court issued a decision in United States ex rel. Schutte v. SuperValu, Inc., clarifying when a defendant “knowingly” submits a false claim for payment under the False Claims Act (FCA). View the full article
Morrison Foerster LLP · Jun 6, 2023
NIST Releases Revised Cybersecurity Controls and Requirements for Protection of Controlled Unclassified Information Resident in Contractor Information Technology Systems
On May 10, 2023, the National Institute of Standards and Technology (“NIST”) released an Initial Public Draft of Revision 3 to NIST Special Publication (“SP”) 800-171, Protecting Controlled Unclassified Information in View the full article
Morrison Foerster LLP · May 15, 2023
President Biden Revokes Federal Contractor Vaccine Mandate
On May 9, 2023, President Biden issued a highly anticipated Executive Order formally revoking the federal contractor COVID-19 vaccine mandate (Executive Order 14042) and the federal employee COVID-19 vaccine View the full article
Morrison Foerster LLP · May 10, 2023
April 2023 Bid Protest Roundup: Nonofferor Protest, Irrational Analysis
This month’s Bid Protest Round-Up examines two recent decisions by the U.S. Court of Federal Claims (“COFC”). View the full article
Morrison Foerster LLP · May 8, 2023
The Debt Ceiling and Its Potential Implications for Government Contractors
Contractors face potential payment uncertainty as a result of the current congressional inability to agree to increase the federal government’s debt ceiling. The government reached the official debt limit months ago, on January 19, 2023. Yet by all appearances it continues to ope
Morrison Foerster LLP · May 8, 2023
Federal Government Provides Further Guidance and Draft Attestation Form for Software It Acquires
The Cybersecurity and Infrastructure Security Agency (CISA) of the Department of Homeland Security (DHS) recently published a draft version of a Secure Software Development Attestation Common Form. View the full article
Morrison Foerster LLP · May 2, 2023
Challenging Unilateral Definitizations of Undefinitized Contract Actions: What Is a Claim?
Forty-five years after enactment of the Contract Disputes Act of 1978 (CDA), contractors and agencies still often struggle to identify what is and isn’t a CDA claim—a term the CDA itself does not define. View the full article
Morrison Foerster LLP · Apr 27, 2023
Ninth Circuit Dissolves Preliminary Injunction of EO 14042 Contractor Vaccine Mandate
On April 19, 2023, the U.S. Court of Appeals for the Ninth Circuit deviated from its sister circuits and reversed the Arizona district court’s preliminary injunction of the contractor COVID-19 vaccine mandate issued pursuant to Executive Order 14042 (“Contractor Mandate”). View t
Morrison Foerster LLP · Apr 24, 2023
Supreme Court Weighs in on the Role of Subjective Intent Under the False Claims Act
On Tuesday, April 18, 2023, the Supreme Court heard argument in the consolidated cases of United States ex rel. Schutte v. SuperValu, Inc., and United States ex rel. Proctor v. Safeway, Inc., to consider whether subjective knowledge about the falsity of a claim can establish liab
Morrison Foerster LLP · Apr 19, 2023
March 2023 Bid Protest Roundup: Review, Self-Certification
This month's bid protest spotlight considers two recent protests. J.E. McAmis Inc. v. U.S. is an important decision by the U.S. Court of Federal Claims concerning the court's lack of authority to review the U.S. Small Business Administration's issuance of a certificate of compete
Morrison Foerster LLP · Apr 13, 2023
Back to the Drawing Board: Far Councils Withdraw Long-delayed Proposed Rule for Lower-tier Small Business Subcontracting Credit
Some of you may recall the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2014 from nearly a decade ago. It amended the Small Business Act (SBA) to allow a contractor, under certain circumstances, to receive credit towards its subcontracting plan goals for awards
Morrison Foerster LLP · Mar 31, 2023
February 2023 Bid Protest Roundup: Lessons For Joint Ventures
The common theme of this month’s Law360 Bid Protest Roundup is a seemingly hot topic these days: joint ventures. One recent Government Accountability Office (“GAO”) decision and one recent U.S. Court of Federal Claims (“COFC”) decision both touch upon past performance issues rela
Morrison Foerster LLP · Mar 8, 2023
UK Procurement Bill: Pursuing Simple and Accountable Procurement
The UK is pressing ahead with a reform to its government procurement laws that will diverge from the harmonized EU procurement regime that applied in the UK pre-Brexit. View the full article
Morrison Foerster LLP · Feb 27, 2023
SAM.gov Is Changing – Make Sure You’re Keeping Up
The System for Award Management website (SAM.gov) recently changed its registration and update process, and the feedback we’ve heard from clients is that it is slow – even for entities that are simply renewing an existing registration. As SAM delays can cause payment delays, the
Morrison Foerster LLP · Feb 27, 2023
Joint Venture Member Experience: “Considering Each Member” vs. “Considering Either Member”
The Government Accountability Office (GAO) has issued an important new decision in the protest View the full article
Morrison Foerster LLP · Feb 14, 2023
OMB Proposes New Domestic Preference Requirements for Federally Funded Infrastructure Projects
On February 9, 2023, the Office of Management and Budget (OMB) issued a proposed rule that would subject all federally funded infrastructure projects to domestic preference requirements that are materially similar to the View the full article
Morrison Foerster LLP · Feb 13, 2023
Is Your Joint Venture Agreement Compliant with Current SBA Regulations and Current Case Law?
The Small Business Administration’s (SBA) popular shields from affiliation for all-small and mentor-protégé joint ventures are powerful tools for helping small businesses succeed in the federal procurement marketplace. View the full article
Morrison Foerster LLP · Feb 8, 2023
January 2023 Bid Protest Roundup: Size Protests, Blue & Gold, Sole Source
Since the January Bid Protest Roundup marks the beginning of February, we begin with a takeaway that needs no supporting authority beyond common sense: if you have not already done so, get your Valentine’s Day gift now. And, like a box of chocolates desperately procured at the la
Morrison Foerster LLP · Feb 6, 2023
Sixth Circuit Follows Suit in Affirming Preliminary Injunction of Contractor Vaccine Mandate
On January 12, 2023, the U.S. Court of Appeals for the Sixth Circuit joined the Fifth and Eleventh Circuits in upholding a preliminary injunction against the enforcement of the Biden Administration’s effort to impose on federal contractors a variety of COVID-19 safety-related pro
Morrison Foerster LLP · Jan 18, 2023