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Procurement

Government Contracts Legal Round-Up | 2022 Issue 7 – Government Contracts, Procurement & PPP


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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.

Regulatory Updates

1. OFCCP Update

The Office of Federal Contract Compliance Programs has announced
a new Contractor Portal where contractors and subcontractors must
register and certify their compliance with Affirmative Action
Program requirements. June 30, 2022 is the deadline to submit
initial certifications. After that, annual certifications will be
required. Contractor Portal Link: https://contractorportal.dol.gov

2. GSA Contracting Price Increases Update

GSA published an Acquisition Letter, link AL MV-22-02: Temporary Moratorium on EPA Clauses
(gsa.gov)
, which announces a temporary moratorium on GSA
enforcement of certain limitations on contractors’ ability to
seek Economic Price Adjustment (EPA). GSA cited inflation and
supply chain concerns as the reasons for the moratorium. Noting
that contractors are removing items from the Federal Supply
Schedules to avoid selling them at a loss, GSA will permit more
frequent requests for price adjustment. GSA will also make it
easier for government acquisition professionals to approve such
requests.

3. Goodbye DUNS, Hello Unique Entity
Identifier

After years of study, the government has stopped using Dun &
Bradstreet’s Data Universal Numbering System (DUNS) to identify
government contractors. In its place, the government has
transitioned to Unique Entity Identifiers (UEIs). Link to
announcement: Unique Entity Identifier Update
| GSA Contractors with existing SAM registrations have been
assigned a UEI and will need to begin using the number. New
registrants will request a UEI through SAM rather than register for
a DUNS number as part of their SAM registration process.

Protest Cases

1. Spatial Front, Inc.,
B-420377 (March 7, 2022) (Published April 5, 2022)

  • GAO denied a protest challenging as unduly restrictive the
    terms of a solicitation issued by the Department of Commerce for
    enterprise-wide IT services. Specifically, the protester alleged
    that the requirement to possess a top-secret facility clearance
    (TS-FCL) was unduly restrictive and had an unreasonable impact on
    small businesses.

  • The protestor, a small business, argued that because only a
    “limited number of task orders” were likely to require
    the TS-FCL, the requirement was unnecessary and “unreasonably
    restricted competition.”

  • GAO found that the agency reasonably justified this restrictive
    provision. The agency documented the performance and cost issues
    caused by the current decentralized IT environment and the benefits
    that would flow from a single-award contract to implement a
    multi-domain environment. And the agency refuted the contention
    that only a subset of the work was classified, explaining that it
    expected classified requirements in each performance area.
    Moreover, the agency conducted ample market research demonstrating
    that a significant number of small businesses could meet the
    solicitation’s TS-FCL requirement.

  • GAO thus found that that the TS-FCL requirement was justified
    and within the agency’s discretion.

Agencies are generally afforded discretion to determine their
needs and the best means to accommodate them. Where a requirement
touches on matters of national security, such as in the present
solicitation, an agency “has the discretion to define
solicitation requirements to achieve not just reasonable results,
but the highest possible reliability and/or
effectiveness.”

2. Veterans Choice Medical Equipment,
LLC
, B-419991, B-419991.2 (October 20, 2021) (Published
April 1, 2022)

  • GAO denied a protest challenging the Department of Veterans
    Affairs’ award of a contract for in-home oxygen and ventilator
    services.

  • The protester alleged that the agency unreasonably evaluated
    the awardee’s corporate experience because the awardee’s
    proposal lacked a reference contract containing all the required
    explanatory information. Further, the Source Selection Authority
    and another evaluator relied on their personal knowledge of the
    awardee’s experience that was not included in the
    proposal.

  • GAO found no basis to sustain the protest. The
    Solicitation’s proposal submission instructions afforded the
    agency discretion to consider experiences that did not conform to
    the submission requirements, and GAO found nothing improper with
    the evaluators considering corporate experience not found in the
    awardee’s proposal of which they had personal knowledge.

In certain circumstances, GAO has held that an agency may
consider “close at hand” past performance or corporate
experience information known to the agency and not found in an
offeror’s proposal. But GAO has also made clear that the
“close at hand” doctrine is not intended to remedy a
failure to include required information in a proposal, and the
burden rests on the offeror to submit a well-written proposal with
adequately detailed information that allows for a meaningful review
by the procuring agency.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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