Winter 2019

    Volume 54 Issue 2  

    Federal Government

    Assessing the Timeliness Requirements to Protest an Agency’s Corrective Action

    by Amy Conant Hoang & Erica L. Bakies

    An agency’s decision to take corrective action in response to a protest can set off a series of reactions for interested parties. The protester’s first reaction may be relief that an agency has recognized possible flaws in the procurement (while, for an intervenor, it likely would be frustration). The second reaction may be concern that the proposed corrective action may not remedy the flaws in the procurement (or, as an intervenor, concern that the corrective action may introduce new flaws). Finally, the protester’s third reaction may be confusion regarding what can be done to challenge the corrective action and, perhaps most importantly, when to raise that challenge. If a protester raises its concerns too early, it risks dismissal of the protest as premature. If a protester raises its grounds too late, it could lose the opportunity to ever have a protest forum address its concerns.

    In This Issue

    Real Estate

    What New Veteran-Owned Small Businesses Need to Know About the Rules

    by David S. Black, Mitchell A. Bashur & Amy L. Fuentes

    The U.S. Small Business Administration (SBA) and the U.S. Department of Veterans Affairs (VA) support veteran-owned small businesses (VOSBs) and service-disabled veteran-owned small businesses (SDVOSBs) through the agencies’ respective VOSB and SDVOSB programs. These programs allow SDVOSBs1 to receive set-aside and solesource awards. The SBA and VA programs have continued to develop since being created. Unfortunately, both programs have not evolved in unison, resulting in a divergence of rules that creates compliance difficulties for SDVOSBs.

    Federal Government

    Palantir USG, Inc. v. United States Adds Teeth to Government Preference for Buying Commercial

    by Johana (Jody) Reed

    The First Gulf War1 highlighted a major issue with government procurement of commercial products, especially with latest information technology items. Motorola had radios that met the needs of the government; however, it was unwilling to sell them to the federal government on the commercial terms being offered pursuant to the Federal Acquisition Regulation (FAR). Ultimately, the Japanese government purchased the radios and provided them as part of their contribution to the First Gulf War.2 As a result, Congress passed the Federal Acquisition Streamlining Act (FASA) in 1994.3 FASA required federal agencies to procure commercially available products to the maximum extent practicable.4 Another key requirement of FASA was for market research to determine whether commercial products could satisfy the agency’s needs, with or without minor modifications, and if a commercial item was not available, to determine if nondevelopmental items other than commercial items would meet the agency’s needs.5

    Federal Government

    A Response to Melissa Copeland’s Call to Action: Addressing Organizational Conflicts of Interest in an Update to the MPC

    by Christopher R. Yukins

    In the Summer 2018 edition of The Procurement Lawyer, Melissa (Missy) Copeland, a highly respected state procurement law practitioner, issued a “call for action” on organizational conflict of interest (OCI) law at the state and local levels. She pointed out that although OCI law is relatively mature at the federal level (see FAR Subpart 9.5), and a number of states have passed laws or issued regulations regarding OCIs, the law in this area is chaotic and immature in many state and local governments. She used a recent South Carolina case as an example of a particularly bad decision, and called for a model OCI law to make sense of the doctrine.

    Topics of Interest

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