Legal overview of public procurement | 2021 Number 24 – Government, Public sector

United States: Legal overview of public procurement | 2021 Number 24

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Welcome to Jenner & Block’s Government Contracts Legal Round-Up, a bi-weekly update on important developments in government contracts. This update provides brief summaries of key developments for government contracting, compliance, contracting, and business executives. Please contact one of the professionals at the bottom of the update for more information on any of these topics.

Vaccine update

1. Legal developments continue regarding the mandate of the federal vaccine contractor (December 21, 2021)

  • After a busy few weeks in court, there are now several suspensions issued against the federal contractor’s COVID-19 vaccine mandate, including a nationwide suspension issued by a federal district court in Georgia.
    • On December 17, 2021, the Eleventh Circuit denied the Biden administration’s request to stay this nationwide injunction pending appeal.
    • The Biden administration may appeal this denial to the Supreme Court or may determine that it is best to wait and allow other COVID-19 litigation to continue.
  • In view of this nationwide stay, litigation challenging the OSHA ETS has become more relevant to government contractors.
    • On December 17, 2021, a panel of three Judges from the Sixth Circuit disbanded the OSHA ETS Fifth Circuit stay.
    • The challengers immediately filed with the Supreme Court an application for an emergency stay and a pre-trial certificate (in accordance with rule 11 of the Ct Sup.).
    • The Supreme Court has given the government until December 30, 2021 to respond to the request.
  • OSHA has published a notice on its website extending the compliance dates under the ETS to January 10 and February 9, 2022.

We are closely monitoring legal challenges to the federal contractor mandate and OSHA ETS, and are ready to advise you on the impact of these challenges nationwide.

Protest case

1. Harmonia Holdings Group, LLC v. United States, Case 2020-1538 (December 7, 2021)

  • The Federal Circuit Court of Appeal confirmed that the Blue & Gold The disclaimer rule is still applicable law, but not as applied by the Federal Claims Court in Harmonia’s protest.
  • In January 2020, the Federal Claims Court (COFC) ruled that Harmonia had waived its right to protest – after award – changes to a Customs and Border Protection (CBP) solicitation for services in support of freight systems applications.
  • Harmonia had raised its objections to the solicitation before the applicable submission deadline, but only in an agency-level protest. Five months after CBP rejected the agency-level protest and only after CBP awarded the contract to another supplier, Harmonia filed its complaint with COFC. In rejecting the protest, the court explained that “although Harmonia apparently fulfills the requirements of Blue & GoldHarmonia nevertheless waived its right to bring these claims to this Court by failing to pursue its objections diligently and in a timely manner. . . . “
  • the Blue & Gold waiver rule – established in Federal Circuit 2007 Blue & Gold Fleet, LP v. United States decision — generally requires that an offeror seeking to challenge the terms of a solicitation with the Federal Claims Court file such a protest by the proposal submission deadline. In Blue & Gold Fleet, the Circuit ruled that “[r]recognition of a waiver rule, which requires a party to oppose the terms of the solicitation during the tendering process, ”continued Tucker’s law mandate that courts resolve protests expeditiously.
  • Here, the three-judge panel of the Federal Circuit disagreed with the COFC that Blue & Gold applied in this case.
  • The Federal Circuit explained that “the Blue & Gold The waiver rule is based not only on the notion of avoiding a delay which could benefit the delaying party, but also on the notion of preservation of disputes and of notification to the interested parties. . . Harmonia’s formal and uncontested challenge to the solicitation before the CBP removes this case from the scope of Blue & Gold and his descendants. That is, by filing an agency-level protest, Harmonia had preserved its right to re-raise its objections to the solicitation in a post-award protest.
  • This appeal drew attention because Judge Reyna, who sat on that panel, had previously questioned the viability of the Blue & Gold waiver rule in his dissent about which he spoke so much Inserso Corp. vs. United States.

For now, the federal circuit Blue & Gold the rule of renunciation remains the law. This means that an offeror who wishes to protest the terms of a solicitation must do so before the proposal submission deadline, in one of the protest forums. Here, the Circuit has established that if an agency-level protest is filed in a timely manner, the Offeror has retained its right to re-raise its objections in the Federal Claims Court – even after award – notwithstanding the Circuit decision Blue & Gold waiver rule.

2. International Society for Scientific Applications, B-42005 et al. (October 27, 2021)

  • The GAO backed a protest alleging the agency failed to provide adequate discussions and notify the protester that its prices were unreasonably high.
  • GAO also supported the protest because the agency solicited and then ignored information from bidders regarding the prices offered.
  • After receiving the initial proposals, the agency engaged in two rounds of discussions and obtained the final revisions of the proposals before awarding the contract to Noble Supply and Logistics. Although SAIC received higher overall non-price ratings, Noble’s bid price of around $ 1 billion was significantly lower than SAIC’s bid price of around $ 1.5 billion.
  • GAO agreed with the protester that the agency had provided inadequate talks. The record showed that throughout the acquisition, the agency found SAIC’s price unreasonably high, but the agency only informed SAIC that some of its prices were “high” without ever informing SAIC that one of its prices, individually or as a whole, was “unreasonably high.” “
  • GAO also found the agency’s decision to ignore inadequate supporting pricing information submitted by the successful bidder and requested by the agency to be unreasonable, given the large price disparity among bidders.

Although the solicitation to bid in this market considered a review of reasonableness (if the prices were too high) but not an assessment of realism (if the prices are too low), the GAO considered that the agency had committed an error because once it had asked the offerors for pricing data that could give confidence that the prices offered were fair and reasonable, the agency was not free to ignore the requested information (or the lack thereof ). Here, SAIC justified its price with a detailed quote as requested by the agency, while Noble did not provide adequate information.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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