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

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Government Contracts Legal Round-Up | 2022 Issue 3

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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
  • 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

2. CGS-SPP Security Joint Venture v. United
, 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
  • 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
  • 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
  • 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

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
, 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
  • 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

  • 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:
  • 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:

    • To recap, the present circuit cut up on FCA dismissals is:
      • First and DC Circuits: authorities has broad dismissal
      • 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
     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:

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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