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David Dowd is an experienced litigator whose practice has a strong emphasis in government contracting issues and controversies. He advises such clients as those involved in health care, information technology, large military systems, engineering services, and other industries regarding federal procurements and related issues. His counsel in this area includes commercial items, conflicts of interest, cost allowability issues, defective pricing, contract and subcontract negotiations, contract financing, assignments and novations, leasing, prime/sub disputes, preparation of claims, and procurement fraud.

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Cybersecurity services soon will be available under new common provisions of the Multiple Award Schedule (MAS) Program administered by the General Services Administration (GSA). The MAS Program is the primary means to sell commercial products and services to federal agencies.

GSA announced the new provisions this week. In mid-August 2016, GSA issued a draft solicitation and engaged in industry outreach to explain the changes to the current ordering system, in which companies sell such services under a variety of provisions. GSA is now rolling out the new process, which will be available for use in October 2016. These changes will facilitate agency ordering of critical cybersecurity services.
Continue Reading Cybersecurity Services on the Multiple Award Schedule: Change is Afoot

GSA FSS LogoThe Federal Circuit’s decision in CGI Federal Inc. v. United States addressed the relationship between FAR Part 12—which applies to acquisitions of commercial items—and FAR Subpart 8.4, which addresses the Federal Supply Schedule (FSS) program. The case involved an RFQ issued under the FSS program by the Centers for Medicare & Medicaid Services

Marcia Madsen, Cameron Hamrick, and Michelle Litteken recently addressed developments in an all-too-common scenario: what happens if an employee takes company documents to use in a possible False Claims Act case? Their article, from BNA’s Federal Contracts Report, sheds light on possible actions against employees for breach of confidentiality agreements and offers some suggestions

One of the ongoing issues lawyers face when litigating bid protests at GAO is the lack of precedent related to protective order (PO) admissions. The rules are relatively clear with respect to outside counsel and most in-house attorneys applying for admission under a PO. However, although GAO generally applies its rules consistently with respect to consultants, many consultant applications draw unnecessary objections that have been answered repeatedly by GAO case attorneys in other protests, though not in published opinions or guidance. Although GAO’s protective order process generally works well, it could be improved (and save time and cost) by more written guidance regarding admissibility of consultants. In this post, we’ll briefly summarize the rules applicable to attorneys then provide our take on some of the unwritten rules of consultant admissions. (To the extent readers disagree or want to point to consultant-related precedent, please feel free to continue the conversation in the comments section.)
Continue Reading Some of the Unwritten Rules of GAO Protective Order Admissions


The Federal Circuit recently issued a decision in Kingdomware Technologies, Inc. v. US, resolving the two-year dispute concerning whether the Veterans Administration (VA) is required to invoke the “Rule of Two” before awarding a contract using GSA’s Federal Supply Schedule (FSS). In 2012, GAO held that the VA was required to first invoke the Rule of Two and, if satisfied, award a contract. The VA announced that it would not follow GAO’s recommendation, and Kingdomware, a service-disabled veteran-owned small business (SDVOSB), protested at the CFC. The CFC sided with the VA and held that the VA could order from the FSS without invoking the Rule of Two. This week, the Federal Circuit sided with the VA (over a dissent) and held that the VA is not required to first use the Rule of Two.

Continue Reading Federal Circuit Resolves CFC-GAO Split on VA Protests

Pursuant to a legislative mandate, the US Department of Defense (DoD) has issued an expansive rule (the Rule) aimed at protecting DoD systems of all types from “counterfeit” and “suspect” electronic parts (all references to “parts” in the following discussion are to electronic parts). The Rule, issued in final form on May 6, 2014, applies

The U.S. Court of Federal Claims recently issued a decision that addresses the ever-perplexing question of how to manage risk in a contract with the Government. The DMS Imaging, Inc. v. United States case turned on the inclusion of a risk of loss provision in a lease form for medical equipment. After the equipment was damaged, the Government cited both a failure to agree to the lease terms as well as a purported lack of authority—and refused to pay. The case emphasizes the importance of ensuring express agreement with the Government on risk and loss-related clauses, which are a critical aspect of commercial contracts.
Continue Reading Managing Risk—By Contract

Recently, the Government Accountability Office (GAO) released a bid protest decisionGSA Logo2 that calls into
question the extent to which GSA’s Federal Supply Schedule (FSS) program is commercial. In HealthDataInsights, Inc., GAO rejected the argument that certain pricing terms in a request for quotations (RFQ) were inconsistent with customary commercial practice on the basis that FAR Part 12 does not apply to FSS procurements, which are conducted under FAR Subpart 8.4. The decision contributes to uncertainty regarding the types of clauses that may be used by agencies in FSS acquisitions.

Continue Reading Are the GSA Schedules Commercial?

Pentagon_000009496526LargeOn March 13, 2014, Defense Procurement and Acquisition Policy (DPAP) issued a Class Deviation to FAR 8.404(d) to change how DoD agencies use the Federal Supply Schedule (FSS).  By the Class Deviation, DPAP now requires that in placing FSS orders and awarding blanket purchase agreements (BPAs), DoD contracting officers (COs) may not rely on the presumption that order prices are fair and reasonable. Instead, COs must undertake a price analysis in accordance with FAR Part 15, which does not otherwise apply to FSS orders. This change may significantly impact both COs and contractors.
Continue Reading DoD’s Class Deviation – A New Approach