Government Contracts Legal Round-Up | 2022 Issue 3 – Government, Public Sector

United States:

Government Contracts Legal Round-Up | 2022 Issue 3

Welcome to Jenner & Block’s Government Contracts Legal
Round‑Up, a biweekly replace on vital authorities contracts
developments. This replace affords transient summaries of key
developments for presidency contracts authorized, compliance,
contracting, and enterprise executives. Please contact any of the
professionals on the backside of the replace for additional data
on any of those matters.

Protest Cases

1. AttainX, Inc., B-420313 (January 31, 2022)
(Published February 1, 2022)

• GAO denied a protest the place a protester well timed submitted a
  citation that was not thought of by the company due to electronic mail
  supply points.
• In this procurement, the protester submitted its citation by
  electronic mail to the contract specialist shortly earlier than the deadline for
  citation submission however acquired an error supply message. The
  protester made a number of makes an attempt to contact the contract specialist,
  every time receiving an error message.
• After the company had awarded the duty order to a different vendor,
  a subsequently appointed contract specialist knowledgeable the protester
  that its proposal had been quarantined and was by no means considered. The
  protester alleged that the company improperly failed to think about its
  citation.
• GAO denied the protest. Although the protester well timed submitted
  its citation to the designated electronic mail handle, the e-mail was
  quarantined within the company’s electronic mail server in a fashion that
  made it inaccessible and thus the contracting personnel had been
  unaware of the citation.
• GAO analogized to an company misplacing a well timed submitted
  citation; in such instances, aid is on the market solely the place there’s
  proof of a deliberate intent to forestall collection of the agency or
  a systemic company failure to obtain and safeguard quotations.
  Here, the file lacked proof of different distributors experiencing
  related issues or broader systemic company points.
• Notably, the company had eliminated FAR 52.212-1(f) from the
  solicitation, which supplies for the “authorities management
  exception” to consideration of late proposals.

While GAO described the scenario as “unlucky”
and didn’t fault both get together, the outcome was disappointing for
the seller who had complied with the solicitation’s
directions. While an uncommon case, this determination serves as a
cautionary story for leaving ample time to submit proposals previous to
the introduced deadline, and the place applicable, confirming
receipt.

2. CGS-SPP Security Joint Venture v. United
States, No. 21-2049C (January 19, 2022) (Published
February 3, 2022)

• In this second-chew protest, the Court of Federal Claims (CoFC)
  disagreed with GAO’s prior holding and sustained a protest on
  the idea that the solicitation contained a latent defect concerning
  the e-mail handle to which proposals had been required to be
  submitted.
• Here, the solicitation required proposal submission by electronic mail
  and recognized a selected workplace throughout the Department of State for
  proposal submission, however it didn’t designate any particular
  contracting personnel to obtain proposals. The solicitation
  recognized two contracting officers, in addition to a contract
  specialist to answer questions and feedback and offered electronic mail
  addresses for a contracting officer and the contract
  specialist.
• The plaintiff emailed its proposal to the 2 contracting
  officers recognized within the solicitation, in addition to an extra
  company contracting officer. However, whereas the plaintiff addressed
  its proposal to the contract specialist, it didn’t embrace the
  contract specialist within the electronic mail submission. The contracting
  officers who acquired the proposal didn’t open the
  protester’s electronic mail or ahead it to the contract specialist.
  Consequently, plaintiff’s proposal was by no means thought of for
  award.
• After awarding the contract to the incumbent contractor,
  plaintiff initially filed a protest at GAO, which dismissed the
  protest as premature on the idea that the solicitation contained a
  patent ambiguity concerning the suitable addressee for submission
  of proposals.
• The CoFC disagreed, discovering that the solicitation was ambiguous
  and inclined to 2 affordable interpretations. Further, the
  courtroom held that the anomaly was latent, not obvious on the face
  of the proposal, and created by State not informing potential
  offerors that proposals would solely be thought of if despatched to at least one
  specific particular person—the contract specialist—regardless of
  any direct textual assist within the solicitation for this
  requirement. The courtroom additionally held that the plaintiff complied with
  essentially the most affordable interpretation of the solicitation by sending
  its proposal to the 2 contracting officers recognized within the
  RFP.

Contractors ought to stay vigilant about potential ambiguities
in solicitations, usually, and particularly with respect to
threshold issues like proposal submission directions. Here, the
CoFC reached a unique conclusion than GAO concerning a latent
ambiguity in what it described as a “shut name.” As a
common matter, nevertheless, in conditions the place a solicitation
ambiguity is clear on its face, will probably be thought of patent and
the potential offeror should search clarification previous to award or
danger waiving its objection.

Claims Cases

1. Aspen Consulting, LLC v. Secretary of the
Army, CAFC 2021-1381 (February 9, 2022)

• Contractor appealed last determination of the Armed Services Board
  of Contract Appeals (ASBCA) denying an enchantment primarily based on the
  authorities’s failure to deposit fee within the appropriate financial institution
  account.
• FAR 52.232-33 supplies that “[t]he Government shall make
  fee to the Contractor utilizing the [Electronic Funds Transfer] EFT
  data contained within the Central Contractor Registration (CCR)
  database. In the occasion that the EFT data adjustments, the
  Contractor shall be liable for offering the up to date
  data to the CCR database.”
• The ASBCA held that the federal government had not breached the
  contract as a result of the fault rested with the contractor for failing
  to correctly replace its data within the Central Contractor
  Registration (CCR) database; the United States Court of Appeals for
  the Federal Circuit (CAFC) disagreed.
• Specifically, CAFC “conclude[d] that the
  authorities’s breach was materials as a result of the FAR clause
  serves an vital function for each events: it protects the
  authorities and the contractors who do enterprise with it.”
• CAFC remanded the case for additional proceedings on the potential
  affirmative protection of fee, which can be accessible the place the
  funds really benefited the get together claiming breach.

This case serves as a reminder that the Boards and Courts will
maintain events to a authorities contract to strict adherence with the
phrases. When a dispute arises with the federal government, contractors
ought to look at carefully whether or not the federal government has happy its
necessities underneath the contract. Here, the contractor benefited
from utility of that idea.

False Claims Act

This was a busy interval for False Claims Act
updates:

• The Department of Justice introduced $5.6 billion in fraud and
  False Claims Act recoveries in 2021, with a notable enhance in
  recoveries from protection/authorities contracting fits to simply shy of
  $100 million. Press launch accessible right here: https://www.justice.gov/opa/pr/justice-department-s-false-claims-act-settlements-and-judgments-exceed-56-billion-fiscal-year
• The First Circuit introduced its normal for False Claims Act
  dismissals, a broadly deferential normal to the
  Government’s dismissal authority. Decision accessible
  right here: http://media.ca1.uscourts.gov/pdf.opinions/20-1066P-01A.pdf
  • To recap, the present circuit cut up on FCA dismissals is:
    • First and DC Circuits: authorities has broad dismissal
      authority
    • Third and Seventh Circuits: Voluntary dismissal authority in
      the Federal Rule of Civil Procedure 41(a)
    • Ninth and Tenth Circuits: Dismissal should serve a legitimate
      authorities function and there should be a rational relationship
      between dismissal and that function
• The Eleventh Circuit held that non-intervened qui
  tam instances could also be topic to the Excessive Fines Clause,
  whereas discovering the case earlier than the Eleventh Circuit didn’t violate
  the clause. Decision accessible right here: https://media.ca11.uscourts.gov/opinions/pub/files/202010276.pdf

The content material of this text is meant to supply a common
information to the subject material. Specialist recommendation needs to be sought
about your particular circumstances.

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