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Articles by John W. Chierichella
Triangles of Fate
Abby was 38 when she decided that God did not put her on this earth to be unhappy. She had not married Tim out of love. He was, for her, a refuge from the alcoholic family in which she had been raised. Now, 13 years later, that refuge has become a prison from which she is determined to escape. She departs while he is working late, leaving a terse note on his nightstand. Tim tries to reconcile, but the vitriol Abby spews during their final conversation all but emasculates him.
Government contracting: Protecting the recipe to your intellectual property
Amid the growth of AI and its follow-on applications, defense contractors are increasingly expected to innovate so that America can stay ahead of the technological curve. While innovation can certainly help to win contracts and deliver a huge payoff for years of investment, offerors regularly risk their IP in responding to a government solicitation.
Deploy a Government Contracting ‘Red Team’: John Chierichella
Navigating contracting’s twists, turns and bumps can be treacherous, and guides through the complicated landscape can, if engaged early, mean the difference between winning and losing. By harnessing the full potential of those guides—the red team—contractors can increase their chances of winning bids, fortify their projects against potential threats, and gauge their competitors’ strengths.
How to Choose a Venue for Contractor Protests: John Chierichella
Your chances of winning are 10% and 13%. These are typical sustain rates for contractors challenging procurement decisions before the Court of Federal Claims and Government Accountability Office. Despite these figures, a solid argument can stand a chance, particularly if the offeror chooses the right venue. But how to pick? There are a number of factors to consider when determining how and where to proceed. Costs and deadlines are certainly important, but they’re not the only ones.
Bid protests Part III: Flawed past performance evaluations
In its first and second parts, this series has explored two of the principal bases for bid protests: flawed technical evaluations and unreasonable cost evaluations. These protests are not without similarities: both involve issues in which the government has significant discretion and the results typically favor the agency. Protests based on evaluations of past performance, another recurring protest theme, share these similarities.
Leading reasons: Unreasonable cost evaluations
In February, the Court of Federal Claims released its most recent statistics for bid protests filed and sustained. Spoiler alert: the sustain rate is not high. At just under 10%, the Court’s sustain rate is a tad lower than GAO’s 13%, which means, no matter where a contractor files its protest, victory is a longshot. Some contractors will file a protest, even if it is perceived as weak, to extend their incumbencies by another 100...
When the customer is wrong: Identifying a basis for protest
There are many reasons why a contractor might protest a procurement award, but only a few good ones, none of which are disagreeing with the outcome. With three quarters of bid protests denied by the Government Accountability Office, those that are successful tend to share key common traits. One of the most common of these is a flawed technical evaluation, and it is a high bar for contractors to meet. Here are a few tips...
Mitigate Your Contract Conflicts of Interest: John Chierichella
Getty Images Jan. 19, 2023, 11:30 AM It’s not hard for federal contractors to run afoul of conflict-of-interest rules, particularly if they’re involved in long-term or complicated government work. John Chierichella explains some of the ways a conflict of interest can sneak up on a well-meaning contractor and offers some tips to avoid them. Contractor rules regarding organizational conflicts of interest, just like fashion, have been nothing if not fluid.
Beware the bogeyman: Preparing for protests
It was a dark and stormy night in June 2020 when the U.S. Transportation Command (TRANSCOM) rescinded its recently awarded $20 billion Global Household Goods contract. The awardee had fallen victim to a procurement bogeyman that is all too real: A protest. At the risk of being obvious, $20 billion is a lot to lose. This is a cautionary tale for any contractor who might consider an initial award a “happily-ever-after” ending. A disaffected competitor will...
“You Got To Know When To Protest” Part III: The Court Of Federal Claims Declines To Expand Blue & Gold Waiver Rule For Bid Protests “Any Further Than The Federal Circuit Already Has” | Sheppard Mullin Richter & Hampton LLP - JDSupra
The implications of the Federal Circuit’s Blue & Gold waiver rule – pursuant to which a disappointed offeror waives any protest grounds it may have had to the terms of a solicitation that the offeror could have, but failed to, raise pre-award – continues to reverberate in unexpected ways when applied to real-life procurement situations. In VS2, LLC v. United States, — Fed. Cl. — (Fed.
“You Got To Know When To Protest” Part III: The Court Of Federal Claims Declines To Expand Blue & Gold Waiver Rule For Bid Protests “Any Further Than The Federal Circuit Already Has”
The implications of the Federal Circuit’s Blue & Gold waiver rule – pursuant to which a disappointed offeror waives any protest grounds it may have had to the terms of a solicitation that the offeror could have, but failed to, raise pre-award – continues to reverberate in unexpected ways when applied to real-life procurement situations. In VS2, LLC v. United States, — Fed. Cl. — (Fed.
Contractors Face Tougher Ethical Standards
Contractors Face Tougher Ethical Standards 12/7/2020 By Adam Bartolanzo and John Chierichella Photo: iStock When private actors seek public funds, the need to protect government accounts from fraud, waste and abuse compels them to act with scrupulous regard to the requirements of the law. As Justice Oliver Wendell Holmes Jr. put it, “Men must turn square corners when they deal with the government.” But protection of the public treasury is not just the citizenry’s responsibility.
“You Got To Know When To Protest” Part II: Federal Circuit Holds Blue & Gold Waiver Rule For Bid Protests Inapplicable When Pre-Award Objection Would Have Been “Futile” | Sheppard Mullin Richter & Hampton LLP - JDSupra
In our previous blog article, we discussed the Federal Circuit’s decision in Inserso Corp. v. United States, 961 F.3d 1343 (Fed. Cir. 2020), in which a split panel held a protest cannot be brought in the U.S. Court of Federal Claims (“COFC”) if, before the time of proposal submission, “the law and facts” made it reasonably known to the contractor that a procurement error was likely to occur under the terms of the solicitation.
“You Got To Know When To Protest” Part II: Federal Circuit Holds Blue & Gold Waiver Rule For Bid Protests Inapplicable When Pre-Award Objection Would Have Been “Futile” | LexBlog
In our previous blog article, we discussed the Federal Circuit’s decision in Inserso Corp. v. United States, 961 F.3d 1343 (Fed. Cir. 2020), in which a split panel held a protest cannot be brought in the U.S. Court of Federal Claims (“COFC”) if, before the time of proposal submission, “the law and facts” made it reasonably known to the contractor that a procurement error was likely to occur under the terms of the solicitation.
“You Got To Know When To Protest”: Federal Circuit’s Inserso Decision Stretches the Blue & Gold Waiver Rule For Bid Protests To New Lengths | JD Supra
You got to know when to hold ‘em, Know when to fold ‘em, Know when to walk way, And know when to run. Such is the advice of the unnamed gambler from the late Kenny Rogers’ 1978 hit single, “The Gambler.” While the eponymous hero of that song may have believed his advice to be sound, there remains the undeniable fact that regardless of whatever skill you may have “out of readin’ people’s faces,” there always will be an element of chance to whether you will win at the table.
"You Got To Know When To Protest": Federal Circuit's Inserso Decision Stretches The Blue & Gold Waiver Rule For Bid Protests To New Lengths
To print this article, all you need is to be registered or login on Mondaq.com. Such is the advice of the unnamed gambler from the late Kenny Rogers' 1978 hit single, "The Gambler." While the eponymous hero of that song may have believed his advice to be sound, there remains the undeniable fact that regardless of whatever skill you may have "out of readin' people's faces," there always will be an element of chance to whether you will win at the table.
CBCA Rules Contractor Under GWAC Task Orders Properly Submitted Claims to the Agency Ordering Contracting Officer Instead of the Procuring Contracting Officer | Sheppard Mullin Richter & Hampton LLP - 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.
CBCA Rules Contractor Under GWAC Task Orders Properly Submitted Claims to the Agency Ordering Contracting Officer Instead of the Procuring Contracting Officer
Wednesday, May 29, 2019 In a case of first impression, the Civilian Board of Contract Appeals (“CBCA”) ruled that a contractor performing task orders issued against a government-wide acquisition contract (“GWAC”) properly submitted its claims to the Agency Ordering Contracting Officer (“OCO”) instead of the Procuring Contracting Officer (“PCO”). The case –Sotera Defense Solutions, Inc. v. Department of Agriculture, CBCA 6029, 6030, 2019 WL 1977388 (Apr.
The Government’s Playbook – Your Guide to Uncle Sam’s Negotiating Techniques | JD Supra
If you follow professional football, you are familiar with the message generally given to an aspiring player just before he is cut – “Coach wants to see you. Bring your playbook.” The playbook, that step-by-step guide to on-the-field success, is something that teams guard zealously. Not all teams, however, maintain the secrecy of their playbooks, and the U.S. Government is a case in point.
Resurrecting the Spare Parts Bogeyman – A Refresher on Why the Government Gets It Wrong | 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.
The Government’s Playbook – Your Guide to Uncle Sam’s Negotiating Techniques
Tuesday, April 30, 2019 If you follow professional football, you are familiar with the message generally given to an aspiring player just before he is cut – “Coach wants to see you. Bring your playbook.” The playbook, that step-by-step guide to on-the-field success, is something that teams guard zealously. Not all teams, however, maintain the secrecy of their playbooks, and the U.S. Government is a case in point.
Resurrecting the Spare Parts Bogeyman – A Refresher on Why the Government Gets It Wrong
Monday, April 29, 2019 The April issue of National Defense Magazine brought a well-written article by Susan Cassidy and her colleagues at Covington & Burling LLP on a recent DOD IG report analyzing (and criticizing) spare aviation parts pricing, even though the report concluded that the contractor in question had complied with the Truthful Cost or Pricing Data Act.
The Enemy Within: The Soft Underbelly of Cybersecurity
“Cybersecurity” is a term that occupies virtually everyone these days. The list of U.S. government agencies that have been hacked seemingly grows with each passing day and includes the White House, the Pentagon, the State Department, the Office of Personnel Management, the National Oceanographic and Atmospheric Administration, and even the U.S. Postal Service.
GAO Annual Report On Bid Protests: 2018 Yields More Protests, More Merit Decisions, But Fewer Sustains and Fewer Hearings | JD Supra
JD Supra Privacy Policy 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.
GAO Annual Report On Bid Protests: 2018 Yields More Protests, More Merit Decisions, But Fewer Sustains and Fewer Hearings
You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only.
OSD Issues Policy Guidance Rejecting “Sweeps” Data
By memorandum date June 7, 2018, Shay Assad, DoD’s Director Defense Pricing/Defense Procurement and Acquisition Policy, has reversed decades of procurement practice that has been embraced by industry and the government alike in attempting to manage the often unmanageable process of providing the government with cost or pricing data that is current, accurate and complete as of the date of agreement on price.
OSD Issues Policy Guidance Rejecting “Sweeps” Data | JD Supra
By memorandum dated June 7, 2018, Shay Assad, DoD’s Director, Defense Pricing/Defense Procurement and Acquisition Policy, has reversed decades of procurement practice that has been embraced by industry and the government alike in attempting to manage the often unmanageable process of providing the government with cost or pricing data that is current, accurate and complete as of the date of agreement on price.
Clearly Erroneous Audit Assertion - An Expensive Thorn in Contractors’ Sides
Auditing by the Defense Contract Audit Agency (“DCAA”) is a ubiquitous cost of doing business with the Department of Defense, and one which many defense contractors have come to dread. Unfortunately, far too often the DCAA’s audit reports rely upon faulty evidence and/or unreasonable interpretations that ignore the plain language of contracts, procurement regulations, and existing decisional law.
Industry Struggles Acquisition Rules
Recent studies show that the percentage of overall research and development spending sponsored by the government has dropped sharply over the last 50 years. Whereas government funding accounted for 67 percent of R&D in 1964, it accounted for 23 percent in 2015, a 44 percent reduction. For the government, this is not a salutary development.
Presidential Executive Order on Cybersecurity: No More Antiquated IT
On May 11, President Donald Trump issued his long-awaited Executive Order on cybersecurity, the ‘‘Presidential Executive Order on Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure.’’ It had been in the works since early in the administration, and its release had been announced (and drafts leaked) several times, only to be pulled back and reworked further.
Defense Contractors to Face New Cost Accounting Oversight with Creation of Defense Cost Accounting Standards Board
Section 820 of the National Defense Authorization Act for Fiscal Year 2017 (“NDAA”) establishes a new Defense Cost Accounting Standards Board (“D-CASB”) to oversee the application of the Cost Accounting Standards (“CAS”) to defense contracts. The amendments made by Section 820 shall take effect on October 1, 2018.
Defense Contractors to Face New Cost Accounting Oversight with Creation of Defense Cost Accounting Standards Board
Section 820 of the National Defense Authorization Act for Fiscal Year 2017 (“NDAA”) establishes a new Defense Cost Accounting Standards Board (“D-CASB”) to oversee the application of the Cost Accounting Standards (“CAS”) to defense contracts. The amendments made by Section 820 shall take effect on October 1, 2018.
The Enemy Within: The Soft Underbelly of Cybersecurity
“Cybersecurity” is a term that occupies virtually everyone these days. The list of U.S. government agencies that have been hacked seemingly grows with each passing day and includes the White House, the Pentagon, the State Department, the Office of Personnel Management, the National Oceanographic and Atmospheric Administration, and even the U.S. Postal Service.
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