DOJ announces Civil Cyber-Fraud Initiative with significant implications for government contractors

Consistent with the Biden Administration’s keen focus on improving the nation’s cybersecurity, as articulated in Executive Order 14028 and discussed in greater detail here, the Department of Justice (DOJ) formally announced the launch of its new Civil Cyber-Fraud Initiative (Initiative) on October 6, 2021. The Initiative will “combine the department’s expertise in civil fraud enforcement, government procurement and cybersecurity to combat new and emerging cyber threats to the security of sensitive information and critical systems.” Importantly, this Initiative aims to employ the DOJ’s civil enforcement tools, to pursue “government contractors who receive federal funds, when they fail to follow required cyber security standards.” In announcing the Initiative, DOJ Deputy Attorney General Lisa O. Monaco admonished government contractors that “have chosen silence under the mistaken belief that it is less risky to hide a [cybersecurity] breach than to bring it forward and to report it.” Continue Reading

Protest sustained because agency evaluation lacked sufficient detail for its disparate conclusions

On September 14, 2021, the Government Accountability Office (GAO) issued a decision in the matter of Marquis Solutions, LLC B-419891, B-419891.2, sustaining a protest. The GAO determined that the Department of Veteran Affairs’ (VA) source selection decision was unreasonable, lacked a meaningful evaluation, and was inconsistent with the terms of its solicitation and applicable statutes and regulations. The GAO based its decision on the fact that the agency record lacked the requisite evidence to support its disparate conclusions. This decision serves as yet another reminder to companies that are seeking to do business with the federal government that they should raise issues with an agency’s source selection decision when they believe that the decision misevaluates the proposal, appears to treat competitors unfairly and unequally, or fails to sufficiently document evaluation conclusions.

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Protest sustained because tradeoff decision was not sufficiently documented

When it comes to adjectival ratings assigned to proposals during a source selection, a very recent protest decision serves as a reminder that contracting agencies must document with specificity why they are selecting one offeror over another when both have been assigned identical adjectival ratings. In other words, when offerors receive identical adjectival ratings and the contemporaneous agency record fails to identify or explain any of the superior capabilities or features of the awardee’s proposal, that agency’s tradeoff decision may be invalidated, if challenged in a timely protest. Published on August 10, 2021, Alpha Omega Integration, LLC B-419812, B-419812.2, is a decision worth a closer look because it sustains a protest where an agency source selection official just didn’t go far enough in documenting the tradeoff decision.

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Context counts when it comes to proposal evaluations

When it comes to proposal evaluation, a recent decision serves as a stark reminder that an agency must consider the plain language of an offeror’s quote in the context of the entire quote or risk having its evaluation decision deemed to be unreasonable. Mayvin, Inc. (Mayvin) filed a protest with the Government Accountability Office (GAO) challenging the award of a blanket purchase agreement (BPA) to Bennett Aerospace, Inc. (Bennett). See Matter of: Mayvin, Inc., B-419301.7 (June 29, 2021). In its protest, Mayvin alleged that the Department of Justice, United States Marshals Service (USMS) disparately evaluated its quotation, and conducted an unreasonable best-value tradeoff analysis. On June 29, 2020, GAO published a decision sustaining this protest, finding that USMS 1) failed to treat certain “retention plan” language in the quotations equally, and 2) failed to consider certain quotation language, which ultimately tainted its best-value tradeoff analysis. Continue Reading

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.