Federal News Radio: Ten Myths of Government Contracting: Myth No. 1

Federal News Radio is republishing our Ten Myths of Government Contracting series, accompanied by an interview with the author, Tim Sullivan, Partner, Thompson Coburn, LLP. Below is the audio from the interview on Myth No. 1, “We Should Never Protest”. If you’d like to listen directly on the Federal News Radio website, visit here.

Myth No. 2: We Should Always Protest.

*This post is the second in the ten part series, “Ten Myths of Government Contracting” and will be released weekly. Each week will introduce  a new myth and run for ten weeks.  The decision to file a protest highlights one of the unique features of contracting with the U.S. Government, involving as it does a long list of questions that must be addressed and the pressure of having to decide whether to sue a customer within a very short time frame. In Myth No. 1, “We should never protest,” I explained why there might be certain situations where a company really should protest.  As in other walks of life, however, a company’s reputation is an important part of its success, and its reputation could be … Continue reading

Ten Myths of Government Contracting: Myth No. 1: We Should Never Protest

*This post is the first in the ten part series, “Ten Myths of Government Contracting” and will be released weekly. Each week will introduce  a new myth and run for ten weeks.    Myth No. 1:  We should never protest.   Bid protests are an intimidating aspect of Government contracting, not only because they usually mean hiring a lawyer, but also because most people don’t even like the thought of suing their customer.  Protests certainly are not part of the commercial business sector, but they are a daily occurrence in Government contracting, and anyone jumping into this business needs to understand how protests work and the role they play. Most protests relating to a U.S. Government procurement may be filed in three separate places—with the … Continue reading

FAR 52.217-3, 52.217-4 & FAR 52.217-5 Evaluation of Options

Applicability:  As stated at FAR 17.208(a) thru (c), the provisions at FAR 52.217-3, 52.217-4, and 52.217-5 are included in solicitations as follows: (a) Insert FAR 52.217-3 when the solicitation includes an option clause and does not include one of the provisions prescribed in paragraph (b) or (c) below. (b) Insert FAR 52.217-4 when the solicitation includes an option clause, the contracting officer has determined that there is a reasonable likelihood that the option will be exercised, and the option may be exercised at the time of contract award. (c) Insert FAR 52.217-5 when: (1) The solicitation contains an option clause; (2) An option is not to be exercised at the time of contract award; (3) A firm-fixed-price contract, a fixed-price contract with economic price adjustment, or other type of contract approved … Continue reading

When Corrective Action May Be as Good as a Contract Award

Dan Gordon, Associate Dean for Government Procurement Law Studies at the George Washington University Law School, former Administrator of the Office of Federal Procurement Policy and, before that, Acting General Counsel at the Government Accountability Office (“GAO”), is universally respected for the quality of his scholarship, which always includes exhaustive research. (Full disclosure: I was Dean Gordon’s “associate mentor” when he first started at Fried Frank in 1987). Thus, even though he concedes in a recently published article — “Bid Protests: The Costs are Real, but the Benefits Outweigh Them,” 42 PUB. CONT. L.J. 489 (2013) — that there is “no publicly available information on that large universe of protests where the GAO was told that the protester ‘obtain[ed] some form of relief,’” that there … Continue reading

Informational Requirements Associated with Organizational Conflicts of Interest in Healthcare Related Contracts

Guest Author: Rodney L. Benson, Attorney, Buchanan Ingersoll & Rooney PC In recent solicitations, the Centers for Medicare and Medicaid Services (CMS) has required offerors to provide an increased amount of information for CMS’s evaluation of potential organizational conflicts of interest (OCI). For many years, CMS has been extremely vigilant in identifying and resolving potential OCIs. The agency has a myriad of statutory contracting authorities. Pursuant to these authorities, CMS utilizes contractor services to perform virtually all major functions and activities, including paying Medicare claims, identifying and investigating fraud and abuse and auditing and recovering improper payments. Because contractors act in a fiduciary capacity for the United States, and otherwise perform functions that require that they be free of financial interests that might impair their … Continue reading

“Late is Late” Rule for Proposals has Limits

Two offerors, Insight Systems Corp. (“Insight”) and Centerscope Technologies, Inc. (“Centerscope”) electronically submitted quotations in response to a USAID solicitation. The USAID’s computer server malfunctioned and failed to forward on the quotations internally within USAID. Consequently, the contracting officer did not receive the quotations in her email inbox by the submission deadline and pronounced the quotations late. After USAID awarded the contract to a third company, Centerscope and Insight protested the award to the U.S. Court of Federal Claims (COFC). The Government’s position was that “late is late”, and it was therefore irrelevant that the submission delay occurred as a result of the Government’s computer malfunction. This “late filing” rule makes it an offeror’s responsibility to ensure that the proposal is timely delivered. The protesters … Continue reading

Bid Protests Get Bad Press

It is highly unusual for a scholarly paper on bid protests to generate excitement in the media, but Dan Gordon has triggered a virtual firestorm by finding, in a recent article, that “[i]t is rare for a protester to win a protest, and even rarer for a winning protester to go on to obtain the contract at issue in the protest.”  See Daniel I. Gordon, Bid Protests:  The Costs are Real, But the Benefits Outweigh Them, Geo. Wash. Law School Pub. L & Leg. Theory Paper No. 2013-41, at 20 (2013), 42 Pub. Contr. L.J. (forthcoming Spring 2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2228748.  Upon further reflection, however, the paper and its press coverage raise two points that are worthy of additional comment:  (1) the firestorm is the … Continue reading

CMS Is “Not Intercepted.”

“When you know what you’re doing, you’re not intercepted.” – Johnny Unitas Johnny U. famously uttered those words in 1958, after leading the Baltimore Colts to victory in “The Greatest Game Ever Played.” Fifty-five years later the Baltimore-based Center for Medicare and Medicaid Services (CMS), demonstrating that they “knew what they’re doing,” were “not intercepted” in an OCI bid protest. [Disclaimer: on several occasions during the past two years the author has conducted OCI training for CMS contracting officers and program managers.] In September 2012, CMS awarded a task order to CGI Federal to be a Medicare Secondary Payer (MSP) Recovery Audit Contractor (RAC). The function of an MSP-RAC is to identify and recover erroneous overpayments made by Medicare where an employer-sponsored Group Health Plan … Continue reading

Implied-In-Fact Contracts in Federal Government Subcontracts: A Theory worth Considering.

Government contractors find themselves wearing many hats. [1]  They may serve as a prime contractor on one government contract and as a subcontractor to a prime contractor on another contract.  When bidding as a prime contractor on a government contract, government contractors are keenly aware of their, well, rights.  They know that government agencies must follow procurement regulations, statutes, and court precedent.  They know that the Government Accountability Office (GAO) and the Court of Federal Claims are available forums that will entertain a government contractor’s protest of the award or failure to receive award of a government contract.    But what about when a government contractor bids as a subcontractor on a Request for Proposals (RFP) issued by a prime contractor on a government contract? … Continue reading