Legal overview of public procurement | 2021 number 23 | Jenner & Block

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.

1. Legal disputes continue over the mandate of the federal vaccine contractor (December 3, 2021)

• In an emergency motion, the US Department of Justice called for a suspension of the tri-state ban (KY, OH, and TN) on the federal contractor’s vaccine mandate in order to have time to appeal. this injunction.
• The government argues that blocking Biden’s vaccine mandate risks irreparable harm by disrupting the government’s selection of federal contractors who must work safely while carrying out national security missions and manufacturing equipment for national defense.
• The vaccine mandate underlying Biden’s September executive order has so far been implemented through clauses in new contracts and changes to existing contracts.
• The key question for the court is whether the president’s delegated authority to manage federal procurement allows for vaccines to be imposed on employees of federal contractors and subcontractors.
• We are closely monitoring legal challenges to the federal contractor mandate and are ready to advise you on the impact of these challenges nationally.

2. Changes to the guidelines on the agency’s application of the vaccine mandate by federal employees (November 29, 2021)

• The Federal Workforce Safety Task Force has updated its guidelines to clarify the agency’s application of the vaccine mandate by federal employees.
• For those not yet vaccinated, the guidelines now advise an “appropriate” period of education and counseling, rather than a “short” or “five day” period.
• After education and counseling, agencies can issue a letter of reprimand, followed by a short suspension, now described as 14 days or less. Continuing non-compliance during the suspension can be tracked by the agency proposing the deletion. However, depending on operational needs and individual circumstances, agencies may expedite or lengthen the enforcement process, for example by moving to a second suspension of 15 days or more before dismissal.
• Agencies are cautioned that “consistency within government in the application of this government-wide immunization policy is desired, and the executive decree does not allow exceptions to the immunization requirement unless the law requires it. “
• The guidelines for agency handling of unvaccinated employees provide a framework that federal contractors can use to develop their own policies. We continue to monitor changes to the vaccine workforce policy guidelines and stand ready to advise you on your implementation of the Federal Contractors vaccine mandate.

1. Enterprise Resource Planned Systems International, LLC, B-419763.2; B-419763.3 (November 15, 2021) (Posted on December 3, 2021)

• GAO has denied a protest alleging in part that the agency improperly performed an assessment of price realism.
• A price realism analysis examines whether a bidder’s low price reflects a lack of technical understanding or a risk. Agencies are only permitted to assess price realism if offerors are advised that such an assessment will be made.
• Here, the invitation to tender did not include price realism as an evaluation factor. ERPSI alleged that the agency nevertheless executed one, claiming that the evaluators had expressed concerns that the price offered by ERPSI was too low to meet the statements made in its technical proposal.
• The GAO denied the reason for the protest, arguing that the statements made by the evaluators did not demonstrate that the agency had evaluated the price of the realism of ERSI. Instead, the record reflected the agency’s concern that the protester’s proposal carried technical risk in multiple respects, which in turn involved the price risks. For example, ERISP’s proposal contained ambiguities as to what the company specifically proposed as a technical solution; GAO found reasonable the agency’s conclusion that it may have to incur additional costs to meet contract requirements because of these ambiguities.

Valuation references to price risk do not necessarily constitute price realism. The GAO maintains a distinction between cases where it was the protestor’s award that raised concerns about the risk or feasibility of its technical approach, and those where the agency had concerns about the technical approach of the GAO. company that increased the possibility of additional costs during contract execution to meet requirements.

2. Global Computer Services Company; CWS FMTI JV LLC, B-419956.18 et al. (November 23, 2021)

• GAO supported a protest challenging the terms of the National Institutes of Health (NIH) CIO-Solutions and Partners 4 (CIO-SP4) solicitation.
• Relevant here, the solicitation included an element of self-assessment in phase 1 of the competition whereby an offeror could claim points for multiple criteria based on various experiences (for example, according to the criterion of experience in a company, in the ten task areas of the RFP). The RFP allowed an Offeror to submit experience examples of members of a Mentor-Protected Joint Venture or members of a Team of Entrepreneurship Agreement (CTA).
• CWS and the CWS mentor-protected joint venture protested because, for a mentor-protected joint venture, the solicitation limited the examples of experience that a large company mentor could submit for credit. The protester argued that these limitations unreasonably limited a protege’s ability to benefit from the experience of his or her corporate mentor.
• GAO initially rejected CWS FMTI’s argument that the RFP violated 13 CFR § 125.8, which provides that “[a] the contracting activity may not require the protected firm to individually meet the same evaluation or liability criteria as those required of other offerors in general. The GAO concluded that the RFP did not violate any specific legislative or regulatory provision, because the RFP’s limitations on the experience that could be submitted by the large company mentor did not impose a different requirement on the protected than “Other offerors in general”, because the protégé was not required to submit an experience himself.
• Nonetheless, GAO supported the protest because the restriction unduly restricted competition.
• The NIH argued that limiting the amount of experience that can be attributed to a large company mentor would ensure that the agency would be able to significantly consider the experience of the protected member of the joint venture, but GAO stressed. that the PD CIO-SP4 did not in fact require the protégé to submit any experience, and therefore did not guarantee that the agency would be able to take into account in a meaningful way the experience of this member of the joint venture after all. (This also distinguished the situation here from a comparable restriction which the GAO found to be flawless in Ekagra Partners, LLC early 2019.)

The goal of the Small Business Administration’s Mentor-Protégé Joint Venture Program is to enable proteges in small businesses to benefit from the capabilities of mentoring companies, whether large or small. The GAO supported one of dozens of protests filed challenging the CIO-SP4’s solicitation because the NIH had no reasonable support for its decision to limit the submission of a large company mentor’s experience, which favored mostly joint ventures with small business mentors.

1. JKB Solutions and Services, LLC v. United States, Fed. Cir. 2021-1257 (November 17, 2021)

• JKB was awarded an IDIQ contract to provide training services to the US military. The military ordered 14 training sessions per year, but then did not use or pay JKB for that many sessions. JKB brought an action for breach of contact.
• After a series of motions, the government requested summary judgment based on the contract’s inclusion of FAR 52.212-4 and the doctrine of implied termination for convenience.
• The Federal Claims Court allowed the government’s summary judgment motion, ruling that FAR 52.212-4 incorporated a convenience termination clause and that nothing limited the applicability of this clause to commercial articles.
• The Federal Circuit Court of Appeal disagreed, holding that FAR 52.212-4 did not apply to a service contract and that, therefore, the termination for convenience clause it contained no was not applicable. The court sent back to the lower court to consider whether Christian doctrine would include a different convenience termination clause in the contract and whether government actions would then allow implied convenience termination.

The courts have gone to great lengths to avoid finding that the government has broken its contract and is liable for damages for breach. This decision recognizes the fundamental limitations of invoking termination for convenience and entering into implied termination for convenience. It also highlights the complexity and need for an experienced lawyer in any situation where the government refuses to live up to its end of the bargain and threatens to terminate the contract.

Yesterday the president announced the United States’ anti-corruption strategy. We’re linking to the White House fact sheet, which relates more to the strategy itself. Additional analysis to follow in future alerts.