Pre-award protest sustained after agency releases contractor’s proprietary information

On February 10, 2021 Inmarsat Government Inc. (Inmarsat) filed a protest, which the Government Accountability Office (GAO) sustained in part on May 21, 2021. See Inmarsat Government, Inc., B-419583; B-419583.2, May 21, 2021, 2021 CPD ¶ 215 at 1. Specifically, the GAO found that the Defense Information Systems Agency (DISA) failed to sufficiently mitigate the competitive harm resulting from DISA’s inadvertent release of Inmarsat’s non-commercial solution pricing. Inmarsat also protested DISA’s alleged failure to mitigate the harm it caused by releasing additional pricing information, as well as DISA’s decision to exclude past performance as an evaluation factor in the solicitation. The GAO denied these protest grounds, determining that DISA’s release of additional proprietary information did not result in competitive harm to Inmarsat and that DISA’s decision to exclude past performance was reasonable.

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The Monetary Authority of Singapore seeks greater investigative powers

The Monetary Authority of Singapore (MAS) recently issued a consultation paper which included a number of proposals for strengthening its powers. If adopted, the proposals will expand the MAS’ investigative powers significantly, key changes include:

  • allowing the MAS to reprimand persons for misconduct even after they leave a financial institution (FI) or the financial industry; and
  • enhancing the MAS’ ability to require FIs to manage risks arising from unregulated business.

These suggested amendments represent an important expansion of the MAS’ ability to investigate instances of misconduct and address risks arising from the activities of FIs. Read our alert to find out more about the suggested proposal and the potential impact.

Pre-award protest sustained due to regulatory violations and ambiguity

On April 26, 2021 the Government Accountability Office (GAO) issued a decision in the matter of Innovate Now, LLC. B-419546, Apr, 26, 2021 sustaining a pre-award protest challenging the solicitation terms of a cost-plus-fixed-fee type task order. Specifically, GAO sustained the protest on two grounds finding:

  1. the Air Force’s requirement that protégé members of a mentor-protégé joint venture have the same experience level as other offerors violates an express prohibition contained in the Small Business Administration (SBA) regulation; and
  2. the Air Force’s requirement that offerors demonstrate the staffing used on a prior contract at “a single point in time” is ambiguous when the solicitation fails to define the “single point in time” requirement.

The protester also argued that the Air Force’s requirement for each joint venture member to submit at least one work sample that has been performed on a cost-reimbursement basis was unduly restrictive. The GAO dismissed this argument as premature.

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Reiterating well-established principles, GAO dismisses Protester’s cost realism argument and denies Protester’s unequal discussions arguments

On April 2, 2021 the Government Accountability Office (GAO) issued a decision in the matter of Trademasters Service, Inc. dismissing in part and denying in part a protest that challenged the General Services Administration’s (GSA) establishment of a facilities maintenance and management Blanket Purchase Agreement (BPA). See Trademasters Service, Inc. B-418522.2 et al., April 2, 2021. Specifically, the protester argued that GSA should have conducted a price realism analysis. GAO dismissed this argument for failing to state a valid basis of protest because GSA’s solicitation neither provided for nor permitted a price realism evaluation. The protester also argued that GSA engaged in unequal discussions. The GAO denied this argument as well, maintaining that GSA properly established a competitive range, the protester was excluded from the competitive range, and GSA engaged in permissible discussions with vendors remaining in the competitive range.

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Proposal expirations can be costly in the procurement context

On March 26, 2021 the Government Accountability Office (GAO) issued a decision in the matter of Cydecor, Inc. B-418165.5, denying a protest that challenged the Department of the Navy’s (DoN) decision to exclude the protester’s expired proposal from the competition. The GAO based its decision on the fact that the agency record showed that the protester neglected to extend the validity of its proposal, despite having been requested to do so by the DoN and, importantly, that the DoN’s reevaluation of proposals pursuant to corrective action did not toll the expiration of the proposal’s validity.

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With China’s increasingly aggressive stance on anti-corruption enforcement, what are the key considerations for multinational companies operating in the country?

Amendment XI (the Amendments) to the Criminal Law of the People’s Republic of China is now in effect. Signaling a continued focus on anti-corruption, the latest amendments to China’s Criminal Law outline increased criminal sentences for private sector corruption and new sentencing standards for private sector bribery. In our recent client alert, we closely examine these key changes, and identify three important considerations for multinational companies with operations in China.

Virginia passes second state-level consumer data privacy law in the U.S.

On March 2, 2021, Virginia joined California as the second state to enact comprehensive data privacy protections for its residents. The Virginia Consumer Data Protection Act (CDPA), which will go into effect January 1, 2023, will mainly be interpreted and enforced by The Virginia Attorney General (AG). Our State Attorneys General and Virginia Government Relations teams describe the new law and what companies need to be aware of in our recent Technology Law Dispatch blog post.

UK Imposes Sanctions on Senior Belarusian Figures

As advised previously in our client alert, the UK has again departed from the EU sanctions regime by imposing sanctions against eight members of the Belarusian regime.

On 29 September 2020, the UK imposed sanctions under its Global Human Rights sanctions regime on eight members of the Belarusian regime, for human rights violations (including torture and forced deportations) and rigged elections. The eight members subject to the sanctions include Alexander Lukashenko (Belarusian president), his son and senior figures in the Belarusian government. Prior to the UK sanctions, the UK government triggered an independent investigation into the Belarus elections and human rights violations. The sanctions, which were imposed in conjunction with Canada, include a travel ban and asset freeze.

This is the second time the UK has departed from the EU sanctions regime and imposed sanctions under the Global Human Rights sanctions regime (the first being in July 2020). This marks a clear intention by the UK to collaborate with other countries and maintain a distinct sanctions regime.


Tracking federal agencies’ re-opening plans for government contractors

After months of federal agency closures, and a wide expansion of teleworking and other remote work policies crafted in response to the novel coronavirus, the federal government is planning for a phased re-opening.[1] This post was most recently updated on June 26, 2020, and it includes updates to the following agency plans: Department of Defense, IRS/Treasury, U.S. Census Bureau, NASA, Department of Energy, State Department, Department of Homeland Security, Office of Personnel Management, Department of Transportation, Department of Agriculture and the EPA. In June, a number of agencies entered Phase One of their reopening plans. We will continue to update as agencies continue to release and modify their reopening guidance.

On April 20, 2020, the Executive Office of the President, Office of Management and Budget (OMB) published Memorandum M-20-23 on “Aligning Federal Agency Operations with the National Guidelines for Opening Up America Again.”

In this Memorandum, OMB provides a framework to be used by federal agencies to develop policies and procedures for re-opening and a return to the federal workplace. Each federal agency must develop its own policies and procedures consistent with the Guidelines for Employers included in the Memorandum, as well as accounting for the agency’s own operational needs and the geographic area in which each agency operates. Like most states that have issued re-opening guidelines, the Memorandum contemplates a gating period in which the agency must see a downward trend in COVID-19 cases before proceeding to a phased re-opening. Agency policies and procedures for a phased re-opening must take into account the following criteria:

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Cryptocurrency and digital asset fraud in the Asia-Pacific – how can you mitigate the risk? 

The Asia-Pacific region has a flourishing cryptocurrency and digital-asset ecosystem, but despite comprehensive regulatory frameworks, fraudulent actors continue to exploit cybersecurity and control weaknesses making it vital that businesses have fraud mitigation measures in place. In our recent client alert, we take a detailed look at crypto and digital asset fraud in the region, provide an overview of the regulatory frameworks in specific jurisdictions, explore investigating instances of crypto fraud, and identify 5 practical measures that businesses can implement to mitigate fraud risks.