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Government Contracts Legal Round-Up | 2022 Issue 24

Government Contracts Legal Round-Up | 2022 Issue 23

Welcome to Jenner & Block’s Government Contracts Legal Round‑Up, a biweekly update on important government contracts developments. This update offers brief summaries of key developments for government contracts legal, compliance, contracting, and business executives. Please contact any of the professionals at the bottom of the update for further information on any of these topics.

Claims Cases

1. eSimplicity, Inc. v. United States, 162 Fed. Cl. 371 (October 13, 2022)

  • The Department of Justice (DOJ) filed a notice of appeal in response to the Court of Federal Claims’ recent decision finding that an agency improperly rejected a proposal under the “late-is-late” rule.
  • The appeal could provide a vehicle for the Federal Circuit to interpret the FAR provisions that govern late proposal submissions.

Nathan Castellano and Scott Whitman recently analyzed the significance of the eSimplicity decision in The Nash & Cibinic Report, highlighting the conflicting standards that are applied by the Government Accountability Office (GAO) and the Court of Federal Claims judges. Just because the DOJ files a notice of appeal does not mean DOJ will actually brief and argue the appeal; sometimes, DOJ files the notice of appeal to preserve its options and later seeks voluntary dismissal. However, if the appeal does proceed, it may finally give the Federal Circuit an opportunity to provide unifying precedent to what is now an unfortunately complex area of law, where the legal standard for late proposal submissions varies significantly, depending on the forum and judge.

Protest Cases

1. CACI, Inc.-Federal, B-420441.3 (November 5, 2022) (Published November 21, 2022)]

  • GAO denied a protest following a sustain decision earlier this year on related grounds and further evaluation by the agency.
  • The solicitation provided for award on a best-value tradeoff basis, considering four evaluation factors, the first of which was corporate experience and was to be rated as satisfactory or unsatisfactory. 
  • GAO sustained an initial post-award protest earlier this year on the basis that the agency evaluated the corporate experience factor solely on a pass/fail basis and did not afford the factor the requisite qualitative consideration.
  • The agency then reevaluated proposals under the corporate experience factor and assigned the initial protester’s proposal nearly twice as many weaknesses as strengths, finding that the references did not meet all criteria and sub-criterion.
  • The initial protester again protested, but this time GAO denied the protest, finding the agency’s qualitative evaluations unobjectionable including where the proposal lacked adequate detail explaining the relevancy of its experience.

As we covered in our recent client alert analyzing GAO’s bid protest statistics, more than half of all protesters obtain some form of relief from a GAO protest. Whether that relief ultimately causes the agency to choose a different course of action is less common and is at least sometimes influenced by the type of protest allegations leading to the relief.

2. MP Solutions, LLC, B-420953, B-420953.2 (November 21, 2022)

  • GAO denied a protest challenging an offeror’s exclusion from the competitive range in a Missile Defense Agency procurement.
  • As a preliminary matter, the agency had argued that the protest was premature because it was filed before the agency responded to the protester’s “enhanced debriefing” follow-up questions.
  • GAO rejected that the protest was premature because the debriefing at issue was a pre-award debriefing, not a post-award debriefing.
  • More specifically, GAO analyzed the law that established the enhanced debriefing framework for defense procurements and concluded that the enhanced debriefing process—and the stipulation that the debriefing does not close until the agency responds to an offeror’s follow-up questions—applies only to post-award debriefings.
  • GAO explained that “[i]n a non-enhanced debriefing environment, the fact that [the protester] took advantage of the opportunity to submit questions does not extend the debriefing, as our Office has found that only an agency’s action can extend a debriefing.”
  • Turning to the merits of the protest, GAO found unobjectionable the agency’s assignment of multiple deficiencies and weaknesses, which reasonably resulted in the protester’s exclusion from the competitive range.

The enhanced debriefing procedures, which apply to defense procurements, afford a debriefed offeror the opportunity to ask follow-up question after receipt of a debriefing, and the debriefing is not considered closed until the agency answers the offeror’s questions. But this GAO decision confirms that the enhanced debriefing process only applies to post-award debriefings—not pre-award debriefings that are often given following an offeror’s exclusion from a competitive range.