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Articles by Daniel Chudd
News from the Chair
Summary Reflecting on the past year, the chair of the Public Contract Law Section highlights the dedication of volunteers and the importance of committees in fostering professional relationships and engagement within the Section. The chair expresses confidence in Sheila Armstrong, the incoming Section chair, praising her leadership qualities and commitment to the organization's continued success.
Morrison & Foerster LLP - Government Contracts Insights - JDSupra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
The Basics Of Undefinitized Contractual Actions (UCAS) | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
Guidance Issued For CARES Act Relief For Contractors | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
DOD Clarifies Progress Payments Deviation | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
COVID-19: Getting Compensated For Delays And Disruptions | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
Top Ten Things Government Contractors Should Know Regarding The Coronavirus (As Of April 2, 2020) | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
CORONAVIRUS (COVID-19) Update: Keep Calm, Wash Your Hands, And Know Your Rights | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
In Wyle, the GAO Gives Another Reminder of Risks Associated with Pending Procurements During a Transaction | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
2018 Protest Roundup | JD Supra
[co-author: Victoria Dalcourt Angle] In this post, we not only provide our regular recap of key protest decisions from December 2018, but also discuss some of the key decisions from 2018 as well as a few take-aways from the GAO’s Fiscal Year 2018 report on its bid protest decisions. GAO Report on Fiscal Year 2018 The GAO’s busy workload continued in Fiscal Year 2018.
Corporate Transactions as a Basis for Protest (Post-Award Protest Primer #18) | JD Supra
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A New Bid Protest Timeliness Trap: Pre-Award Laches | JD Supra
On this blog, we frequently discuss the various timeliness traps that can undermine bid protests at the Government Accountability Office (GAO). A recent bid protest decision from the Court of Federal Claims addresses a timeliness trap that is rare and has never before been spotted in the wild, but that could ensnare a protester under the right circumstances. Global Dynamics, LLC v. United States, 2018 WL 1312051 (Fed.
Procurement Integrity Act Violations (Post-Award Protest Primer #15) | JD Supra
Offerors should, and generally do, carefully guard the confidentiality of their bid and proposal information. And agencies that receive that information generally are careful to prevent its improper release, much as they guard against release of other source selection sensitive information. The Procurement Integrity Act (PIA) governs aspects of the protection of this information, and a PIA violation can form the basis of a bid protest.
Bait-And-Switch And Unavailable Key Personnel (Post-Award Protest Primer #14) | JD Supra
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Warning: Possible Delays Ahead New SAM Requirement for Notarized Letter | JD Supra
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FCA Materiality May Return to High Court | JD Supra
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GAO Presents a Study in Timeliness Traps | JD Supra
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New Debriefing Rules in Effect for DOD Contractors | JD Supra
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Pilot Testing of GAO’s New Filing System Currently Underway | JD Supra
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The Government Is Shut Down: What About My Protest?
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Contractors Should Prepare For Potential Shutdown
As Congress and the Administration appear to be careening toward a potential government shutdown – whether on Friday January 19 or once another short-term continuing resolution expires – it is a good time for government contractors to review their contracts and the potential effect a shutdown might have. The Antideficiency Act mandates a partial government shutdown when Congress fails to appropriate annual funds.
Snowmen In August: Strict Compliance And Government Waiver of Contract Requirements
The Government “can engage a contractor to make snowmen in August, if [it spells] it out clearly [in a contract].” Rixon Electronics, Inc. v. United States, 536 F.2d 1345, 1351 (Ct. Cl. 1976). And the contractor generally must make the snowman as the contract directs, even if the contractor can think of a better way to get the work done.
DOD Protest Reform: Initial Thoughts on the Congressionally-Mandated RAND Report
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Organizational Conflicts of Interest (Post-Award Protest Primer #13)
Today we’ll consider Organizational Conflicts of Interest (OCIs) as a ground of protest. The Federal Acquisition Regulation (FAR) defines an OCI as a situation where “because of other activities or relationships with other persons, a person is unable or potentially unable to render impartial assistance or advice to the Government, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.” FAR 2.101.
Discussions Vs. Clarifications Vs. Communications, And Agency Discretion (Post-Award Protest Primer #12)
In our last post, we looked at the most common protest grounds related to discussions: lack of meaningful discussions, misleading discussions, and unequal discussions. Today we’ll discuss how discussions differ from clarifications and pre-competitive range communications, as well as the Government’s discretion to conduct (or not conduct) such exchanges.
Non-Meaningful, Misleading, and Unequal Discussions
Today’s post is the first of two installments on protest grounds related to discussions. This post will focus on the requirement that discussions be meaningful and not misleading, and treat offerors equally. The next post will look at the difference between discussions and other types of exchanges between agencies and offerors, as well as agencies’ discretion to conduct discussions or not.
What Contractors Need to Know about the Proposed FY 2018 NDAA
On November 9, 2017, Congress released its conference report on the FY 2018 National Defense Authorization Act. The NDAA coming out of the conference committee contains numerous provisions that would affect government contractors. Below we address five of the most significant issues for government contractors in the proposed NDAA – Bid Protests, Debriefings, the Space Corps, Other Transaction Authority, and Software and Technical Data.
Unstated Evaluation Criteria And Waived Solicitation Requirements (Bid Protest Primer #10)
This week we’ll discuss two protest arguments that are, in some ways, two sides of the same coin: unstated evaluation criteria and waived or relaxed solicitation requirements. In each, the focus of the protest is on what was required (or not required) by the solicitation and whether the agency’s evaluation was consistent with the information provided to offerors in the solicitation.
FY 2018 Forecasts: Cloudy Skies for False Claims and Storms on the Protest Horizon?
This is the first in a short series of forecasts from our Government Contracts partners on things to watch for in government contracts in Fiscal Year 2018. For more in-depth discussions of current events and trends, please join us for our inaugural MoForward Event on October 26th at the Tysons Corner Ritz Carlton. Click here for more information and to register for the event.
Latent Ambiguities and Non-Apparent Solicitation Defects (Post-Award Protest Primer #9)
Having discussed protest grounds you cannot or should not raise (here and here), we turn now to the first in a series of grounds that could result in a sustained protest: Latent Ambiguities and Non-Apparent Solicitation Defects. We’ve previously noted the rule that, to challenge the terms of a solicitation, a protester generally must do so before the date set for receipt of proposals.
Substantively Non-Protestable Issues (Post-Award Protest Primer #8)
In our last post, we discussed a few procedural rules that can exclude an otherwise meritorious ground from protest. There are also a number of substantive issues that the GAO’s rules exclude from review. See 4 C.F.R. § 21.5. We address them below, plus a bonus ground that might as well be non-protestable.
Procedurally Non-Protestable Issues (Post-Award Protest Primer #7)
Before diving into the various protest grounds that may result in a sustained protest at the GAO, let’s look at some sure losers. These are issues that are not protestable and would likely result in a quick dismissal. This week, we’ll discuss procedurally defective protests. Our next post will look at substantive protest grounds that are expressly excluded from review.
Stays of Contract Award and Performance (Pre-Award Protest Primer #6)
Today we’ll discuss stays of award and performance during the pendency of a bid protest. There are two kinds of protest stays: pre-award stays and post-award stays. Although the former are outside the scope of this primer, we’ll briefly address them first for the sake of completeness. Pre-award protests, as a reminder, usually involve challenges to the terms of a solicitation or to exclusion of an offeror from the competitive range.
GAO Protective Orders (Post-Award Protest Primer #5)
Post-award protests generally involve arguments about confidential, source-selection sensitive information – proprietary bid and proposal material, past performance data, cost and pricing information, nonpublic agency estimates, and the judgments of agency evaluators and source selection personnel. Neither the government nor the competitors want that sort of information to be disclosed to anyone without rigorous protections. That’s where the protective order comes into play.
Bid Protest Remedies (Post-Award Protest Primer #4)
We’ve discussed debriefings and the timelines and timeliness rules that apply to post-award protests. Today we’ll discuss remedies. If you file a protest to challenge a contract award and you win the protest, that means you win the contract, right? Well, certainly not immediately. And, depending on the facts, maybe not at all. A protester wins a protest when the procuring agency voluntarily takes corrective action or the GAO issues a decision recommending that the agency take corrective action.
Post-Award Protest Primer: Part 3
Now that we’ve discussed the award letter and debriefings, we’ll move on to next steps: timeliness of initial protest filings and the protest timeline. In the context of all post-award debriefings, there are two timeliness considerations. First, meeting the GAO’s timeliness requirements and, second, whether the filing will result in an automatic stay.
Post-Award Protest Primer: Part 2
You just received an email: “We appreciate your interest in the XYZ procurement. The Agency determined that your proposal did not represent the best value to the Government. Award has been made to Acme Corp. at a price of $50,000,000.” After kicking your trashcan across the office, what do you do next?
GSA Seeks Input On Repeal, Replacement, and Modification of Policies and Regulations
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ASBCA Throws DCAA Another Brushback Pitch
In an April 2017 decision, the Armed Services Board of Contract Appeals (ASBCA) once again rejected the position of the Defense Contract Audit Agency (DCAA) that a cost or type of cost for which allowability depends on the circumstances or Contracting Officer discretion can nonetheless be “expressly unallowable” and subject to penalties under FAR 42.709-1(a).
GSA Seeks Input On Repeal, Replacement, and Modification of Policies and Regulations
On Tuesday, May 30, 2017, the GSA issued a request for comments seeking “input on acquisition regulations, policies, standards, business practices and guidance issued by GSA across all of its acquisition, disposal, and sales programs, that may be appropriate for repeal, replacement, or modification.” GSA issued this broad request in furtherance of Executive Order 13777, which established Regulatory Reform Task Forces in each federal agency and asked that such task forces “make recommendations...
Protecting Privilege In FCA Cases From Start To Finish
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