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Michelle Litteken is a Litigation & Dispute Resolution associate in Mayer Brown’s Washington DC office. Michelle’s practice focuses on government contracts matters. She represents clients regarding federal procurement practices and activities, such as litigating large contract disputes and bid protests before the United States Court of Federal Claims and the Government Accountability Office. She also provides advice for transactions that implicate government contracts, such as acquisitions of domestic companies that hold government contracts by foreign corporations. Michelle has experience with other areas of litigation, including class actions, federal antitrust claims, federal securities claims, and commercial contract claims.

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In a recent decision frFraud_17860840Mediumom the Armed Services Board of Contract Appeals (ASBCA), the Board held that an agency justifiably withheld payment after four of the contractor’s officers and employees were indicted for conspiring to defraud the Government by providing, soliciting, and accepting kickbacks in return for awarding subcontracts–and two of the four (the

iStock_000035162090LargeThis week, the Supreme Court denied the qui tam plaintiff’s petition for certiorari in United States ex. Rel. Rostholder v. Omnicare, Inc., a False Claims Act (FCA) case from the Fourth Circuit. In Omnicare, the relator alleged that the defendants violated the FCA because certain of its practices violated Food and Drug Administration (FDA) safety regulations and Medicare and Medicaid beneficiaries subsequently presented claims for reimbursement for its products. The district court dismissed the relator’s complaint for failure to state a claim upon which relief can be granted, and the Fourth Circuit affirmed. The Supreme Court’s denial of a writ of certiorari sends a signal that there are limits on FCA claims rooted in regulatory violations. Namely, an FCA claim cannot be based on a violation of a regulation that is wholly unrelated to any condition or requirement for payment.
Continue Reading Supreme Court Denies Cert in Highly Watched FCA Case—Regulatory Violation Must Be Related to Claim for Payment

Supreme Court_839277LargeToday the Supreme Court began a new term. The Court does not often hear cases involving government contracts, but this may be a notable year for contractors at the Court. In the context of the False Claims Act, the Court will hear Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, which involves  two issues—the Wartime Suspension of Limitations Act (WSLA) and the first-to-file bar. Because the Fourth Circuit held that the WSLA extended the statute of limitations for FCA cases, affirming the Fourth Circuit’s decision could result in longer and more expensive litigation as contractors litigate FCA claims that would have otherwise been summarily dismissed as untimely or barred by a prior action. Although DOJ did not intervene in Carter, it filed an amicus brief on the petition for certiorari that states the the Government is unambiguously in favor of the WSLA and of permitting follow-on qui tam actions once the first case has been dismissed.
Continue Reading SCOTUS Will Take up First-to-File Bar and WSLA this Term

iStock_000023483293LargeRecently, GAO denied a protest in which the contractor asserted that the solicitation contained an overly restrictive data rights clause and should have used an alternate clause. Gallup, Inc. provides a useful reminder that contracts may give the Government extensive rights over a contractor’s data and software–and, in many cases, contractors must either accept the data rights provision or opt out of the procurement. Contractors should be familiar with the relevant FAR provisions and the possible allocations of rights—or risk losing valuable rights in intellectual property.  
Continue Reading Contractors Are Left with Little Recourse when it Comes to Data Rights

Editor’s note: This is the fourth post in a series of posts focused on protest allegations related to discussions with offerors. The first post addressed differences between clarifications and discussions. The second post focused on the requirements for discussions to be meaningful. The third post dealt with misleading discussions. The final post in the series will provide a round-up of recent protests involving discussions.

The principles of fair and equal competition drive many aspects of procurement law and policy. These principles are evident in the FAR’s requirement that when an agency engages in discussions with offerors, the agency cannot “engage in conduct that [f]avors one offeror over another.” Discussions often occur as part of the procurement process, and can be beneficial to the agency and offerors. However, discussions have their drawbacks. If an unsuccessful offeror believes that other offerors were given better direction or provided with more information, discussions can provide the basis for a protest based on purportedly unequal discussions.
Continue Reading “That Wasn’t Fair!”—Protests Based on Unequal Discussions

Task orders have become ubiquitous in the federal procurement system. Although the Federal Acquisition Streamlining Act (FASA) gives GAO exclusive jurisdiction over protests of task orders, contractors occasionally seek to challenge task order awards at the CFC. Earlier this year, SRA International survived a motion to dismiss in its challenge to an organizational conflict of interest (OCI) waiver issued with respect to a Federal Deposit Insurance Corporation award of a task order to another contractor/offeror. The trial court held that it had jurisdiction because the waiver was not issued “in connection with” the task order and then proceeded to dismiss the case on other grounds. Earlier this week, the Federal Circuit disagreed—and made clear that FASA’s “in connection with” language does not provide a backdoor into the CFC.
Continue Reading Federal Circuit Makes Clear that FASA Imposes a Broad Ban on Bid Protests of Task Orders at the CFC

Challenges to an agency’s best value tradeoff decision can be difficult to win, as GAO doesn’t reevaluate the offerors’ proposals, gives deference to evaluators’ judgments, and performs a limited review of whether the evaluation and source selection decision were reasonable (and consistent with the solicitation criteria and applicable procurement laws/regulations). However, every once in a while, GAO finds that an agency exceeded the substantial discretion it has and sustains a protest challenging an agency’s best value tradeoff decision. GAO recently did just that in PricewaterhouseCoopers LLP, and the decision provides guidance to contractors challenging an agency’s best value tradeoff decision.
Continue Reading GAO Holds NASA Exceeded Its Discretion in Protest of FSS Task Order

Mislead Inform Switch Shows Misleading Or Informative Advice

Editor’s note: This is the third post in a series of posts focused on protest allegations related to discussions with offerors. The first post addressed differences between clarifications and discussions. The second post focused on the requirements for discussions to be meaningful. Planned future posts will cover what constitutes unequal discussions and a round up of recent protests involving discussions.

Agencies often engage in discussions with offerors as part of the procurement process. Discussions can be useful to contractors because the questions asked and issues raised can direct an offeror to areas of its proposal needing improvement. In some situations, discussions can help a contractor turn an unacceptable proposal into a successful offer. However, information provided by an agency during discussions can also lead an offeror in the wrong direction. If the agency selects another proposal, the disappointed offeror may file a protest and argue that the discussions were misleading. But what qualifies as misleading discussions? How specific does an agency need to be when it engages in discussions? These are issues that contractors should be mindful of as they engage in discussions—and that they must understand to frame potential protest issues when they are not the prevailing offeror.
Continue Reading Don’t Be Misled: What Contractors Should Know About Misleading Discussions

Editor’s note: This is the second post in a series of posts focused on protest allegations related to discussions with offerors. The first post addressed differences between clarifications and discussions. Planned future posts will cover what qualifies as misleading discussions, what constitutes unequal discussions, and a round up of recent protests involving discussions.

A common bid protest allegation made by disappointed offerors is that the agency failed to engage in meaningful discussions. It’s basic procurement law that, when an agency engages in discussions with offerors under FAR Part 15, the discussions must be meaningful. But what is required for discussions to be does “meaningful”? Because protesters frequently raise the meaningful discussions protest ground, contractors and their counsel should be familiar with agencies’ discussions-related obligations and how GAO and the CFC approach protests challenges to the adequacy of discussions.
Continue Reading What is Required for Discussions to Be Meaningful?

Waiting your callsRarely does a pro se plaintiff defeat a motion to dismiss at the CFC. However, the CFC recently denied the Government’s motion to dismiss a pro se plaintiff’s breach of contract claim based on the Federal Trade Commission’s (FTC) alleged failure to comply with the rules it established in a contest seeking a solution to the problem of robocalls. The court’s opinion in Frankel v. United States provides a good refresher on basic tenets of contract law: offer and acceptance.
Continue Reading Does Entering an Agency’s Contest Make You a Government Contractor?