Peraton, Inc. v. United States, No. 23-1539 Fed. Cl. (May 10, 2024)
- The Court of Federal Claims rejected the government's motion to dismiss a contractor's claims alleging breach of an end-user software license agreement (EULA).
- The government argued that Peraton's claims should be dismissed under Rule 12(b)(6) for failure to state a claim because it did not identify a specific government representative with actual authority to bind the United States.
- Judge Hadji disagreed, finding that the government essentially demanded an additional pleading requirement—"to allege the identity of a Government official with authority to bind the Government—which is not required."
- The court found Peraton adequately alleged the elements to establish its claims and denied the government's motion to dismiss.
Peraton is the latest in a growing line of contractor claims attempting to enforce software license terms against government agencies. Stay tuned.
Protest Updates
A Square Group, LLC, B-421792.2; B-421792.3 (June 13, 2024)
- GAO sustained a protest where the agency failed to reasonably consider the awardee's approach to mitigating an impaired objectivity organizational conflict of interest (OCI).
- The proposal submitted by Cogent People Inc. (Cogent) presented an impaired objectivity OCI because the company's proposed subcontractor supported the agency under another contract, and this effort would require reconciling and validating enrollment and payment data from the other contract.
- The contracting officer found Cogent's OCI mitigation plan to be adequate because it proposed to firewall personnel from reviewing "payments" data generated under the other contract, but GAO considered this "incomplete, at best" because the firewall did not extend to other types of data generated under the other contract, including enrollment data.
- GAO also found that the agency had not reasonably considered the impact of the OCI mitigation plan on Cogent's proposed technical approach, noting that personnel from the conflicted subcontractor were identified for supporting data validation tasks.
There was no dispute that the subcontractor presented a potential impaired objectivity OCI. The central question was the adequacy of the offeror's mitigation plan and its consistency with the proposed technical approach. Where, as here, the mitigation measures contradict a firm's proposed technical approach, an agency's evaluation must account for the mitigation.
Science Applications International Corporation, B-422331, B-422331.2 (May 10, 2024)
- GAO dismissed in part and denied in part a protest where Science Applications International Corporation (SAIC) challenged its exclusion from the competitive range and the evaluation of its and another offeror's proposals.
- After conducting initial evaluations in which the agency assigned scores to non-price proposal volumes, NASA selected two other offerors for inclusion in the competitive range.
- SAIC protested NASA's evaluation of its proposal, NASA's decision to exclude SAIC from the competitive range, and NASA's evaluation of another offeror's proposal (Offeror A) that was included in the competitive range.
- As a preliminary matter, GAO found that SAIC abandoned its arguments challenging the evaluation of its own proposal because its comments failed to meaningfully respond to the agency's counterarguments in the memorandum of law. Instead, SAIC's comments relied on a legal position that GAO need not resolve its initial arguments concerning the assignment of strengths and weaknesses.
- GAO also dismissed as speculative SAIC's challenges to NASA's evaluation of Offeror A's proposal. SAIC's protest ground relied on little more than a price difference and its knowledge of incumbent requirements to speculate about the adequacy of Offeror A's compensation plan and the realism of its proposed costs and labor rates. GAO noted that such speculation was insufficient to form the basis for a protest, particularly where total price was "not composed of contract line items for labor rates but rather contract line items to provide services in accordance with the PWS." Moreover, the solicitation required a realism assessment for only cost contract line items, which were a relatively small percentage of the total price as compared to the fixed-price portion of the contract.
In responding to an agency report, protesters are required to provide a substantive response to the agency's arguments. Where a protester merely references earlier arguments advanced in an initial protest without providing a substantive response to the agency's position, GAO will dismiss the allegations as abandoned.
Small Business Regulatory Updates
Small Business Association Announces Extension of Moratorium on 8(a) Eligibility Requirement for Small Disadvantaged Businesses (June 11, 2024)
- On June 11, 2024, the US Small Business Administration (SBA) announced that the moratorium on the 8(a) Business Development Program's Bona Fide Place of Business (BFPOB) requirement will be extended through September 30, 2025, for small disadvantaged businesses (SDBs). This is due to workforce shortages, cultural shifts in the workplace, and trends favoring remote work opportunities, making it increasingly difficult for small businesses to recruit and retain office-based employees.
- During the moratorium, any program participant seeking an 8(a) construction contract (either on a sole source or competitive basis) will not be required to have or establish a bona fide place of business in any specific geographic location.
1-Year Extension of Women Owned Small Business Federal Contract Program (May 30, 2024)
- On May 30, 2024, the SBA Administrator issued a program update to firms participating in the Women Owned Small Business Federal Contract Program (WOSB Program). According to the announcement, SBA certified Woman-Owned Small Businesses (WOSB) and Economically Disadvantaged Women-Owned Small Businesses (EDWOSB) have an additional year of eligibility to those firms whose three-year certification renewal date occurs between June 1, 2024 and May 31, 2025.
- This means WOSB Program participants whose renewal date is on or between June 1, 2024 and May 31, 2025 will not need to complete a three-year Renewal until June 1, 2025.
- For firms that have already submitted a renewal application and their three-year expiration date on or between June 1, 2024 and May 31, 2025, these recertification applications will be administratively removed by SBA.
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