Public Contract Law Journal

With Unquantifiable Risks Come Great Uncertainties: Mergers and Acquisitions Endanger Pending Proposals but Due Diligence and Congressional Action May Reduce Protests

by Nathan Tyler Estock

Nathan Tyler Estock (testock@law.gwu.edu) is a J.D. candidate at the George Washington University Law School and Senior Managing Editor of the Public Contract Law Journal. He would like to thank Mark Nackman for his support and feedback.

I. Introduction

Two friends walk through the local shopping mall and notice a store advertising a promotional lottery game with a $1 million grand prize. Feeling lucky, the pair decides to enter the raffle. They fill out a single lottery ticket with required personal information, writing “Zoe Jenkins and Sharon Berger” in the name section. A few weeks later, Zoe reads in the newspaper that she won the lottery and immediately attempts to call Sharon. Despite considerable effort, Zoe cannot reach her. Surprisingly, Zoe learns that Sharon recently fell in love while traveling abroad and never plans on returning home. Without any conceivable way of contacting Sharon, Zoe decides to accept the award for herself. Excited about her new wealth, Zoe visits the store to receive her $1 million prize. However, the store rescinds the award because the lottery ticket includes both Zoe’s and Sharon’s names — the store refuses to award the winnings to Zoe because she lost contact with Sharon.

Similar to how the separation of two friends in the above anecdote led to the cancelation of a winning lottery ticket, the uncertainties of mergers and acquisitions (M&A) jeopardize government contract awards.1 M&As hold a prominent role in the business world.2 In 2015, the value of all U.S. M&A transactions reached a new high at $2,417 billion, and in 2016, the number of U.S. M&A transactions totaled 13,445.3 With this flurry of corporate transactions and high-dollar deals, contractors must take reasonable due diligence precautions to avoid compromising pending and anticipated government contracts.4 A line of recent cases involving contractors undergoing corporate transactions aids contractors in identifying factors that can jeopardize contract awards.5 Unless contractors consider these factors, agencies may reject proposals due to uncertainties arising from corporate transactions.6

The Federal Acquisition Regulation (FAR) attempts to establish certainties and formulaic procedures in government procurements.7 For example, the FAR provides guidance for when a contract already exists and a corporate transaction requires an assignment of contracts.8 FAR subpart 42.12, “Novation9 and Change-of-Name Agreements,” provides procedures for the “[r]ecognition of a successor in interest to [a] [g]overnment contract[]” and the “[r]ecognition of a change in the contractor’s name.”10 The FAR specifically mentions that the government may recognize a third party as a successor in interest to a contract when a transfer of the contractor’s assets occurs “incident to a merger or corporate consolidation.”11 Also, the FAR provides a format for novation12 and change-of-name agreements.13 However, the FAR does not establish procedures for the assignment or validation of proposals when a contractor reorganizes or changes ownership.14 This gap in the FAR results in recurring bid and proposal protests.15

To eliminate these recurring protests, a procedure must be developed that allows contractors to predict the effect of a contemplated M&A on pending proposals.16 Both contractors and Congress must take action to reach a solution.17 In-house M&A deal teams should monitor a contractor’s procurement projects and identify significant procurements impacted by current M&A transactions.18 Then, the deal team should explain to the proposal team how the transaction impacts those proposals.19 After the proposal team understands how the transaction affects the proposal, it must communicate this information to the procuring agency.20

While contractors uphold due diligence requirements, Congress bears the responsibility of resolving the primary issue: how an agency evaluates a pending proposal impacted by a M&A transaction.21 Agencies tend to reject proposals impacted by a contractor’s ongoing M&A transaction due to “unquantifiable risks.”22 By rejecting otherwise qualified proposals, the government risks the possibility of lowering competition.23 Thus, Congress must implement a clause in procurement contracts that mitigates these frequent rejections.24 In the event that a future M&A impacts a pending proposal, the clause should provide contractors the option to commit to a cost cap25 and to guarantee access to the same assets and resources — or the indubitable equivalent of such assets and resources, as those expressed in the proposal.26 The availability of this option provides contractors the ability to secure the recognition of proposals they deem significant to their business operations.

This Note explores why M&As jeopardize pending proposals. First, a timeline of the case law develops how courts have addressed the issue. Second, an analysis identifies why the courts’ holdings have yet to resolve the problem. Third, the Note explains how contractors and Congress can develop a procedure to resolve the matter. Finally, the components of the Note will be summarized in a brief conclusion.

II. Continuous Protests Pressure the GAO to Consider How Corporate Transactions Affect Pending Proposals

How to manage pending proposals during a corporate transaction remains an “untamed frontier.”27 Case law struggles to provide cohesive guidance on how agencies should consider and evaluate the unquantifiable risks of corporate transactions on pending proposals.28 The Government Accountability Office (GAO) confronted the problem as early as 1994 in TRW.29 Most recently in 2016, the GAO again addressed the uncertainties caused by corporate transactions in Lockheed,30 and the “imminent and essentially certain” standard31 established in this case generated a wave of online articles.32 The development of the case law from TRW to Lockheed follows.

A. TRW Demonstrates That Agencies Must Consider a Contractor’s Corporate Restructuring When Evaluating a Proposal

TRW establishes that when a contractor undergoes a corporate transaction, an agency must consider the restructuring when evaluating the contractor’s proposal.33 Generally, the GAO grants an agency great deference when it evaluates proposals “unless the agency deviate[s] from the solicitation’s evaluation criteria or the evaluation [is] otherwise unreasonable.”34 The GAO finds an agency’s proposal evaluation unreasonable if the agency fails to consider a contractor’s M&A.35

In this case, TRW protested an award to Martin Marietta — challenging the agency’s technical and cost realism evaluations of Martin Marietta’s proposal.36 Immediately prior to submitting best and final offers (BAFOs), Martin Marietta merged with GE Aerospace.37 Martin Marietta mentioned the merger in its BAFO and lowered its cost proposal.38 However, it did not restructure its technical proposal.39 The agency’s cost evaluation team raised concerns about the inconsistencies in the BAFO cost and technical proposals.40 TRW argued that if the agency appropriately accounted for these inconsistencies, a cost realism analysis would have revealed that TRW’s performance costs were lower than Martin Marietta’s.41

Despite warnings about the inconsistencies between Martin Marietta’s BAFO cost and technical proposals, the Source Selection Official (SSO) determined Martin Marietta should receive the award.42 The Source Evaluation Board (SEB) informed the SSO that while TRW and Martin Marietta have equivalent technical proposals, “Martin Marietta’s BAFO technical proposal was not ‘substantiated’ by the BAFO cost proposal.”43 In SEB’s opinion, Martin Marietta’s BAFO raised questions as to what resources it would use and whether it would incur significant cost overruns.44 Nevertheless, SSO awarded Martin Marietta the contact because the offeror, supposedly, presented the “greatest overall value” to the agency.45

The GAO sustained the protest challenging the SSO’s decision because the SSO did not reasonably consider the issues raised by Martin Marietta’s merger.46 The record indicated that if the SSO appropriately accounted for the merger, Martin Marietta’s technical proposal may have ranked lower than TRW’s.47 Specifically, the GAO found that “[c]onsidering the significant inconsistencies in Martin Marietta’s BAFO, as well as the magnitude and nature of the discrepancies in the agency’s cost evaluation, the agency could not reasonably determine which proposal represented the greatest value to the government without first resolving these matters through further negotiations.”48 This holding demonstrates that agencies must consider the issues raised by a corporate restructuring when evaluating proposals.49

B. Wyle Laboratories Extends TRW, Holding That An Agency Must Consider a Contractor’s Pending Corporate Restructuring When Evaluating Its Proposal

If a contractor submits a proposal while it undergoes a corporate restructuring, Wyle Laboratories holds that the agency must consider the pending transaction in its proposal evaluation.50 This holding derives from a fundamental federal procurement principle:

[A]n agency’s evaluation of proposals must reflect a reasonable assessment of each offeror’s ability to successfully perform the contract requirements …. Where an offeror’s proposal represents that it will perform the contract in a manner materially different from the offeror’s actual intent, an award based on such proposal cannot stand, since both the offeror’s representations, and the agency’s reliance on such, have an adverse impact on the integrity of the procurement process.51

The GAO finds that unless an agency evaluates an offeror’s pending reorganization, the agency cannot reasonably determine if the offeror will successfully perform the contract in the manner expressed in the proposal.52

In this case, Wyle protested the National Aeronautics and Space Administration’s (NASA) award to Science Applications International Corporation (SAIC).53 SAIC submitted a proposal that reflected its “old” corporate structure.54 However, SAIC informed NASA during discussions about its plan to separate into two independent legal entities — “new” SAIC and Leidos.55 The “new” SAIC would perform the contract, yet it would retain only about one-third of the “old” SAIC’s corporate resources.56 Despite knowledge of the pending restructuring, NASA selected the “old” SAIC proposal as the best value to the government.57

GAO sustained the protest because SAIC’s proposal failed to describe the contractor’s performance strategy, the likely performance costs, and the likely entity to perform the contract.58 The record indicated that “ ‘old’ SAIC — the offeror and awardee — did not intend to perform as the prime contractor in this matter, but rather intended that a smaller entity with substantially fewer resources, that was completely separate from ‘old’ SAIC, would perform the contract as the prime contractor.”59 The GAO also explained “the substitution of a new prime contractor, in place of the original offeror, may well have a material effect on both the costs incurred and technical approach employed during contract performance.”60 Accordingly, the GAO held that the agency did not reasonably evaluate SAIC’s expected restructuring and had no basis for its award decision.61

C. FCi Federal Establishes That An Agency Must Evaluate a Corporate Restructuring Even When It Performs a Limited Corrective Action

In FCi Federal, the GAO held that an agency needs to evaluate a corporate restructuring when it engages in limited corrective actions.62 The GAO followed the principle that a contractor must perform a contract in the manner expressed in its proposal.63 Wyle Laboratories also used this principle, but the facts are significantly different in FCi Federal.64

FCi Federal protested the award of a contract to U.S. Investigative Services Professional Services Division Inc. (USIS PSD) — arguing that while taking corrective action in a prior proceeding, the agency acted unreasonably when it failed to consider the acquisition of USIS PSD by PAE (creating a new entity called PAE/ USIS PSD).65 The acquisition occurred after GAO issued its decision to the prior protest.66 In response to the decision, the agency reevaluated the responsibility of the awardee, USIS PSD.67 However, it did not assess how the corporate sale affected the technical proposal, which “relied, in material respects, on the resources and support of [USIS PSD’s] former parent, USIS LLC, and of Altegrity, USIS LLC’s parent.”68 The agency found the new PAE/ USIS PSD responsible and continued contract performance with the awardee.69 FCi Federal’s protest followed.70

The GAO sustained the protest, holding that the agency must reevaluate responsibility and determine if the original USID PSD proposal reflected the manner in which the new entity would perform the contract.71 In the proposal, USID PSD cited its old corporate parents as a strength, relying on them for “management capability, corporate resources, corporates experience, past performance, and financial resources.”72 Thus, the GAO found that the agency could not ignore the acquisition because it materially altered the way USID PSD intended to perform the contract.73

D. Lockheed Holds That When an Agency Evaluates a Proposal Submitted by a Contractor in the Midst of a Corporate Restructuring, It Must Consider the Restructuring If It Is “Imminent and Essentially Certain”

The Lockheed decision attempts to create a bright-line rule, declaring that an agency must analyze a corporate restructuring during proposal evaluations when the transaction is “imminent and essentially certain.”74 Contractors hope the rule will create predictability as to when corporate restructurings will affect an award opportunity.75 However, the factual background of Lockheed illustrates that the GAO decision failed to address the complexity of unquantifiable risks associated with M&A.76

In this case, the Department of the Army, U.S. Army Corps of Engineers solicited a task order for various information technology services.77 On January 20, 2015, the agency received second final proposal revisions.78 Six months later, Lockheed Martin issued a press release saying it entered an agreement to acquire Sikorsky Aircraft.79 Moreover, the release stated, “it would conduct a strategic review of alternatives for its government IT and technical services business.”80 After the agency made additional revisions to the solicitations, it received final proposals in November 2015.81

The agency learned about Lockheed Martin’s expected corporate transaction with Leidos from a January 2016 press release.82 Entitled “Lockheed Martin to Separate and Combine IT and Technical Services Businesses with Leidos,” the press release explained that the Lockheed Martin-Leidos transaction would close near the end of 2016.83 Moreover, a “Cautionary Statement Regarding Forward Looking Statements” followed the text of the press release, warning investors that “risks and uncertainties … may affect [Lockheed Martin’s] and [Leidos’] operations, markets, products, services, prices and other factors.”84 Lockheed Martin did not discuss the merger in its final proposal.85

The agency expressed concern about the pending merger because Information Systems & Global Solutions (IS&GS), the Lockheed Martin segment performing the contract, would transfer to Leidos and detach from its old corporate parent.86 The source selection evaluation board concluded that the restructuring “create[d] an environment of risk for cost” and impacted proposed rates in “unknown” ways.87 Too many uncertainties existed because Lockheed Martin’s proposal reflected its pre-merger corporate structure.88 Accordingly, the agency excluded Lockheed Martin from the competition and awarded SAIC the nearly $500 million task order contract.89

The GAO denied Lockheed Martin’s protest, which argued that the agency improperly excluded its proposal due to unquantifiable risks and other uncertainties connected with the pending corporate merger.90 This decision reaffirms that “[w]here an offeror’s proposal represents that it will perform the contract in a manner materially different from the offeror’s actual intent, an award based on such proposal cannot stand, because … the offeror’s representations … have an adverse impact on the integrity of the procurement process.”91 Therefore, when an agency finds a corporate restructuring “imminent and essentially certain,” it must consider the effect of the transaction on the offeror’s proposal because the transaction may alter the performance of the contract.92

III. The GAO’s Decisions on How Agencies Should Consider and Evaluate the Impact of Corporate Transactions on Pending Proposals Cause Uncertainties for Contractors

The GAO cases have led to questions about how agencies and contractors should mitigate the unquantifiable risks of pending corporate transactions.93 First, contractors have a duty to update proposals, but no mechanism authorizes contractors to do so.94 Second, agencies lack guidance on how to evaluate pending corporate restructurings.95 Unless these issues find a solution, contractors will lack the ability to predict the effect of a corporate transaction on a proposal.96

A. Contractors Have a Duty to Update Proposals, but No Mechanism Authorizes Them to Do So

The GAO often decides cases concerning corporate restructurings using a fundamental principle of government contracts that contractors currently cannot overcome without a method to update proposals.97 The fundamental principle states that a contractor cannot receive an award if it intends to complete a contract in a manner materially different than that expressed in its proposal.98 Because contractors lack the ability to update the method of performance in their proposals, the GAO and agencies often refuse to recognize the proposals as valid.99

As an initial matter, the dynamics of a pending deal and disclosure laws may not permit contractors to discuss corporate transactions prior to or after proposal submissions.100 Companies often choose to keep M&A information silent for legal or strategic reasons, only allowing deal teams to have knowledge about the transactions.101 Outsiders and other company employees remain unaware of the deals because companies need to comply with SEC regulations and prevent job security fears.102 Also, if companies release information about pending deals, disclosure laws may require the statements to remain general and without predictive insight.103

When contractors attempt to open discussions, agencies often refuse because they want to avoid reopening discussions with all the other offerors in the competitive range.104 The FAR and statutes do not specify when agencies should hold discussions.105 Rather, the FAR leaves agencies with great discretion as to whether or not to use discussions during the procurement process.106 The purpose of discussions “is to maximize the [g]overnment’s ability to obtain best value.”107 However, agencies often recognize that an award without discussions helps streamline the procurement process.108

Unless agencies open discussions with the contractors or solicit proposal revisions, contractors cannot provide information about pending transactions due to procurement regulations.109 GAO authority may allow contractors to communicate that the restructuring will not impact the proposal in any way.110 However, predictive statements about future events probably hold little weight in an agency’s award decision and could create SEC liability for public companies.111 Therefore, contractors lack the ability to update proposals with details about corporate transactions.112

B. Agencies Lack Guidance on How to Appropriately Evaluate Pending Corporate Restructurings

The GAO created the “imminent and essentially certain” standard to clarify when agencies must evaluate contractors’ corporate transactions, but the standard creates unpredictable procurement results for contractors.113 Contactors want a formulaic process with predictable outcomes.114 Because the “imminent and essentially certain” standard allows significant agency discretion and “is anything but straightforward,” evaluations of contractors’ corporate transactions continue to fuel protests.115

Contractors want to know when an agency will analyze a corporate transaction, but the “imminent and essentially certain” standard does not provide a clear answer to this question.116 First, corporate transactions are inherently unpredictable events.117 The instant a transaction switches from uncertain to “imminent and essentially certain” is difficult, or nearly impossible, to determine.118 Accordingly, agencies must use their discretion when deciding whether or not to analyze a corporate transaction.119 As seen in Lockheed Martin, supra Part II.D, agency discretion does not result in predictable outcomes for contractors.120

When an agency decides a corporate transaction is “imminent and essentially certain,” the agency has three methods to address the issue.121 First, it can ignore the transaction.122 However, Wyle Laboratories demonstrates that this action will likely result in a sustained protest.123 Second, the agency may open discussions with the contractor undergoing the corporate transaction.124 But then, the agency will have to open discussions with all of the offerors within the competitive range.125 Third, the agency can remove the contractor from award consideration because of the unquantifiable risks associated with the reorganization.126 Once again, these options illustrate that discretion influences whether an agency will recognize a proposal.127

Unfortunately, agencies will likely adopt the third option and reject proposals due to the unquantifiable risks linked to a contractor’s reorganization.128 GAO decisions indicate that this option leads to streamlined awards.129 Nevertheless, the decision to consider corporate transactions and to exclude proposals from awards rests on the whim of an agency’s discretion.130 Until contractors can predict the outcomes of these agency decisions and take appropriate corrective actions, agencies will continue to exclude otherwise qualified offerors from competitions.131

IV. Due Diligence and a New Clause in Procurement Contracts Can Reduce the Unquantifiable Risks Associated with Corporate Transactions

Due diligence and congressional action may provide a solution to the unquantifiable risks of corporate transactions.132 M&A activity and transaction sizes continually increase.133 With this upward trend, contractors should anticipate that agencies will scrutinize their corporate transactions more closely.134 Thus, contractors and the government must take steps to diminish the risks linked to reorganizations so that agencies do not lower procurement competition.135

A. M&A Teams Must Analyze How a Transaction Affects Significant Proposals and the Proposal Team Should Communicate this Information to the Government

M&A teams and proposal teams can no longer work independently.136 These groups, to a certain extent, need to exchange information about deals and procurements.137 An M&A team should familiarize itself with the proposals moving through the contractor’s pipeline.138 First, the deal team should conduct a due diligence inquiry to determine if any pending corporate transaction affects a proposal.139 Then, in certain situations, the deal team should inform the proposal team about impacted proposals and provide instructions on how to relay this information to the government agency.140

The principal question of a due diligence inquiry is whether the posttransaction primary contractor will perform the contract in a materially similar manner as the pre-transaction primary contractor.141 The M&A team should closely analyze the details of the proposal to discover the degree to which the contractor relies on existing parent or affiliate resources.142 “These resources can include corporate organizational resources, processes, and support functions; the management team; proposed contract personnel or key personnel; corporate experience; past performance references; and technical, financial, and other assets, such as facilities, licenses in intellectual property, or research and development capabilities.”143 The loss of a key resource may alter the contractor’s performance and raise concerns for the government customer.144

When a due diligence inquiry reveals that a corporate transaction affects a proposal in a material way, the M&A team must decide if it should disclose transaction information to the proposal team.145 Whether the deal team decides to disclose any information to the proposal team depends on the importance of the proposal to the company.146

If a transaction impacts a proposal that serves only a small benefit to the company, the M&A team should not disclose the transaction to the proposal team.147 Companies usually have strategic and legal reasons to keep merger information quiet until the merger seems certain.148 Thus, disclosing the deal could prove burdensome to the company.149 Instead, the company should forfeit the government work, delay the transaction until the contractor can complete the contract, or quantify the value of the proposal disqualification risk in the transaction documents.150

On the other hand, if the transaction impacts a proposal that the company deems significant to corporate strategy, the M&A team should start communicating with the proposal team about the transaction.151 Also, the proposal team should share the M&A details with the agency as quickly as possible.152 Keeping an agency well-informed about a pending M&A helps reduce the probability of a proposal rejection because it allows the agency to evaluate a proposal based on the most relevant and accurate information.153

B. Congress Should Insert a Clause in Procurement Contracts That Provides Contractors the Option to Commit to the Cost and Performance Measures Expressed in Their Proposals

Congress must take action and introduce a clause in procurement contracts that will reduce the unquantifiable risks associated with corporate restructurings.154 In the event that a future M&A impacts a pending proposal, the clause should provide contractors with the option to commit to a costcap155 and guarantee access to the same assets and resources — or the indubitable equivalent of such assets and resources — as those expressed in the proposal.156 Both the primary contractor and any parent or affiliate mentioned in the proposal would need to commit to the clause obligations.157 This option allows contractors and agencies to safeguard valuable proposals from potential M&A risks while maintaining the integrity of the procurement process.158

The clause addresses two issues frequently raised by agency source selection boards: cost realism and post-transaction performance.159 In Lockheed Martin, the agency excluded Lockheed Martin’s proposal from consideration because it could not calculate the contractor’s expected post- transaction costs or determine its performance approach.160 This case illustrates that “the key requirement for the recognition of a transferred … proposal is that the original offeror … [has] access to the same resources and [has] an intention to honor the performance commitments made in the proposal.”161 The cost-cap and resource demands in the recommended clause satisfy this proposal recognition requirement. Thus, if Lockheed Martin had the option of entering the recommended clause, the agency would likely have considered its proposal. The clause’s cost-caps and resource requirements provide assurance that the contractor will perform the contract as intended.

The clause holds merit because it resembles provisions in FAR 42.1204, “Applicability of Novation Agreements.”162 The FAR states that “[t]he government may … recognize a third party as the successor in interest to a [g]overnment contract when the third party’s interest in the contract arises out of the transfer of (1) [a]ll the contractor’s assets[] or (2) [t]he entire portion of the assets involved in performing the contract.”163 The recommended clause follows a similar rule for proposal transfers by requiring the prime contractor to maintain access to all resources expressed in the original proposal. Moreover, the rate-cap requirement in the clause gives agencies additional risk security.164 Therefore, the clause provides contractors and agencies with a reliable mechanism to protect valuable proposals from pending corporate restructurings.

V. Conclusion

The unquantifiable risks of M&A jeopardize government contract awards.165 These corporate transactions and high-dollar deals frequently compromise pending government contracts.166 The FAR does not establish procedures for the assignment or validation of proposals when a contractor reorganizes or changes ownership.167 Also, GAO cases fail to provide clear guidance on how agencies should evaluate the impact of transactions on proposals or how contractors should update their proposals.168 The lack of proper instructions in the FAR and GAO decisions creates recurring bid and proposal protests.169 Both contractors and Congress must take action to reach a solution.170 Contractors’ M&A teams must analyze how a transaction effects significant proposals and then the proposal teams should communicate this information to the government.171 In addition, Congress must implement a clause in procurement contracts that provides contractors the option to commit to a cost-cap172 and to guarantee access to the same assets and resources as those expressed in the proposal in the event that a future M&A impacts a pending proposal.173 Such actions by contractors and Congress will reduce recurring protests and allow contractors to predict the effect of a contemplated M&A on pending proposals.174

Entity:
Topic:
  1. See, e.g., Lockheed Martin Integrated Sys., Inc., B-410189.5 et al., 2016 CPD ¶ 276, at 1 (Comp. Gen. Sept. 27, 2016) (denying a protest “where the agency’s evaluation reasonably considered an upcoming corporate restructuring involving the protester, and excluded the protester’s proposal from eligibility for award when the agency concluded that it could not determine the realism of the protester’s costs and identified other risks associated with the anticipated transaction”); FCi Fed., Inc., B-408558.7 et al., 2015 CPD ¶ 245, at 1 (Comp. Gen. Aug. 5, 2015) (sustaining a protest because the agency failed to consider material information about the contractor’s sale and reorganization); Wyle Labs., Inc., B- 408112.2, 2014 CPD ¶ 16, at 9, 11 (Comp. Gen. Dec. 27, 2013) (explaining that there “can . . . be no dispute that the substitution of a new price contractor, in place of the original offeror, may well have a material effect on both the costs incurred and technical approach employed during contract performance”), recons. denied sub nom. NASA—Recons., B-408112.3, 2014 CPD ¶ 155, at 1 (Comp. Gen. May 14, 2014); TRW, Inc., B-254045.2, 94-1 CPD ¶ 18, at 1, 3 (Comp. Gen. Jan. 10, 1994) (rescinding a contract because the agency failed to consider issues raised by the contractor’s corporate restructuring).
  2. See United States–M&A Statistics, IMAA, https://imaa-institute.org/m-and-a-us-unitedstates [https://perma.cc/JCZ3-UEL6] (last visited Apr. 1, 2017) (noting that the compound reorannual growth rate of M&A transactions from 1985 to 2015 was 4.63% and the corresponding value of deals grew at 6.51%).
  3. Id. The aerospace and defense sectors reported forty-three M&A transactions with a combined value of $62 billion. Agnes P. Dover et al., Recent Developments Relevant to M&A Transactions Involving Government Contractors, BRIEFING PAPERS, Aug. 2016, at 10, 10.
  4. See Dover et al., supra note 3, at 10; Steven Diamond & Joan Ochs, How an Acquisition Can Jeopardize Pending Bids, LAW360 (Dec. 12, 2016, 12:06 PM), https://www.law360.com/articles/871125/how-an-acquisition-can-jeopardize-pending-bids [https://perma.cc/V2HJ-QNV3].
  5. See, e.g., Universal Prot. Serv., LP v. United States, 126 Fed. Cl. 173, 194 (2016) (explaining that if a contractor lists key corporate assets in a proposal and later losses the assets’ utility during a corporate transaction, the proposal may lose validity); FCi Fed., Inc., 2015 CPD ¶ 245, at 5, 12 (stating that an award cannot stand if an offeror intends to perform a contract in a manner materially different from what it expressed in its proposal); Wyle Labs., Inc., 2014 CPD ¶ 16, at 1, 11 (holding that because the new contractor has fewer resources than the original prereorganization contractor, the awardee’s proposal fails to reflect appropriate costs).
  6. Jeffery M. Chiow & Neil H. O’Donnell, Lockheed and Unquantifiable Risk in Gov’t Contracts M&A, LAW360 (Oct. 6, 2016, 4:33 PM), https://www.law360.com/articles/ 848943/lockheedand-unquantifiable-risk-in-gov-t-contracts-m-a [https://perma.cc/4327-XXXZ].
  7. See RALPH C. NASH, JR. ET AL., THE GOVERNMENT CONTRACTS REFERENCE BOOK: A COMPREHENSIVE GUIDE TO THE LANGUAGE OF PROCUREMENT 229 (4th ed. 2013).
  8. See FAR 42.1200; Dover et al., supra note 3, at 10.
  9. A novation agreement is:

    a legal instrument (1) executed by the (i) [c]ontractor (transferor); (ii) [s]uccessor in interest (transferee), and (iii) [g]overnment; and (2) [b]y which, among other things, the transferor guarantees performance of the contract, the transferee assumes all obligations under the contract, and the [g]overnment recognizes the transfer of the contract and related assets.

    FAR 2.101.
  10. See FAR 42.1200.
  11. FAR 42.1204(a)(2)(ii).
  12. FAR 42.1204(i).
  13. FAR 42.1205(b).
  14. See Scott Freling & Kayleigh Scalzo, GAO Creates Catch-22 For Contractors in M&A Transactions, LAW360 (Sept. 15, 2015, 9:44 AM), https://www.law360.com/articles/ 701940/gao-createscatch-22-for-contractors-in-m-a- transactions [https://perma.cc/BR8L-RCSM] (“If a contractor has a pending bid and is in themidst of merging with another company . . . what is the contractor supposed to tell the agency—and when and how should it do so? The FAR is silent on this question.”); Dover et al., supra note 3, at 10.
  15. See Freling & Scalzo, supra note 14.
  16. See Chiow & O’Donnell, supra note 6.
  17. See Interview by Bloomberg Government with Mark Nackman & Gregory Petkoff, partners, Jenner & Block LLP, in Washington, D.C. (Oct. 13, 2016); Chiow & O’Donnell, supra note 6.
  18. See Interview with Mark Nackman & Gregory Petkoff, supra note 17.
  19. See id. (“Contractors can no longer keep a team working a restructuring transaction and teams submitting contract proposals to the government in separate silos.”).
  20. See Diamond & Ochs, supra note 4 (“[K]eep[] the government, and particularly the contracting officer, well-informed about any planned acquisition—to the extent parties can do so consistent with securities laws . . . and the antitrust laws”); Freling & Scalzo, supra note 14 (explaining that GAO’s decisions in Wyle Laboratories and FCi Federal created a duty to update proposals).
  21. See Chiow & O’Donnell, supra note 6 (proposing that agency evaluations require predictability and consistency).
  22. See Lockheed Martin Integrated Sys., Inc., B-410189.5 et al., 2016 CPD ¶ 276, at 1 (Comp. Gen. Sept. 27, 2016).
  23. Daniel Wilson, Leidos Deal Losses Are Cautionary Tale for Contractor M&A, LAW360 (Oct. 14, 2016, 4:29 PM), https://www.law360.com/articles/851073?sidebar=true [https://perma.cc/JG8D-ZDD5].
  24. See Chiow & O’Donnell, supra note 6 (predicting agencies will continue to reject proposals affected by M&As until an acceptable mechanism develops that allows contractors to address unquantifiable risks).
  25. Cf. id.
  26. Cf. Freling & Scalzo, supra note 14 (“[The] award cannot be made to a contractor based on a proposal materially different than how the contractor actually intends to perform.”); Chiow & O’Donnell, supra note 6 (“[C]ontractors should advise COs of their imminent and essentially certain transactions. They should do so by confirming the validity of their offer . . . .”).
  27. See Freling & Scalzo, supra note 14.
  28. See Chiow & O’Donnell, supra note 6; Scott Freling & Kayleigh Scalzo, BNA INSIGHTS: Another Trap for Pending Proposals in Contractor M&A, BLOOMBERG BNA ( July 12, 2016), https://www.bna.com/bna-insights-trap-n73014444061/ [https://perma.cc/A42K-GP24] (explaining how the Court of Federal Claims and GAO continually add “wrinkles” to the question of how contractors should handle proposals in the face of a corporate transaction).
  29. TRW, Inc., B-254045.2, 94-1 CPD ¶ 18, at 1, 3 (Comp. Gen. Jan 10, 1994).
  30. Lockheed Martin Integrated Sys., Inc., B-410189.5 et al., 2016 CPD ¶ 276, at 1 (Comp. Gen. Sept. 27, 2016).
  31. Id. at 8.
  32. See, e.g., Chiow & O’Donnell, supra note 6; Michael Macagnone, GAO Denies Lockheed Protest of $500M Tech Contract, LAW360 (Oct. 6, 2016, 1:42 PM), https://www.law360.com/articles/848810/gao-denies-lockheed-protest-of-500m-tech-contract [https://perma.cc/DY6XZUDZ]; Wilson, supra note 23.
  33. See TRW, 94-1 CPD ¶ 18, at 1, 8-11; Gregory Petkoff et al., Bid Protests in the World of Mergers and Acquisitions 5 (Dec. 9, 2016) (unpublished manuscript) (on file with author).
  34. TRW, Inc., 94-1 CPD ¶ 18, at 8.
  35. See id. at 1, 8, 11; Petkoff et al., supra note 33, at 5.
  36. TRW, Inc., 94-1 CPD ¶ 18, at 1.
  37. Id. at 3.
  38. Id.
  39. Id.
  40. Id. at 4–5. The agency’s cost evaluation team stated:

    The validity of the overall cost comparison is questionable, based on serious concerns in regard to [Martin Marietta’s] overall change in approach from initial proposal to BAFO . . . . This complete change in approach is not reflected in the Technical Proposal, thereby creating a significant disconnect between [Martin Marietta’s] Technical and Cost Proposals, and raising significant questions in regard to cost realism.

    Id.
  41. Id. at 8.
  42. Id. at 6; Petkoff et al., supra note 33, at 4.
  43. TRW, Inc., 94-1 CPD ¶ 18, at 5; Petkoff et al., supra note 33, at 4.
  44. TRW, Inc. 94-1 CPD ¶ 18, at 6. The SEB informed the SSO that it “has serious reservations in regard to award of the . . . contract to [Martin Marietta].” Id.
  45. Id. at 6; Petkoff et al., supra note 33, at 4.
  46. See TRW, Inc., 94-1 CPD ¶ 18, at 2.
  47. Id. at 9.
  48. Id. at 11.
  49. Id. at 1, 11; Petkoff et al., supra note 33, at 5.
  50. See Wyle Labs., Inc., B-408112.2, 2014 CPD ¶ 16, at 11 (Comp. Gen. Dec. 27, 2013); Petkoff et al., supra note 33, at 6.
  51. Wyle Labs., Inc., 2014 CPD ¶ 16, at 8.
  52. See id. at 11; Freling & Scalzo, supra note 14.
  53. Wyle Labs., Inc., 2014 CPD ¶ 16, at 1.
  54. Id. at 4.
  55. Id. at 3; Petkoff et al., supra note 33, at 6. SAIC described “new” SAIC as the “technical services company” and Leidos as a “solutions-focused business.” Wyle Labs. Inc., 2014 CPD ¶ 16, at 3–4.
  56. Wyle Labs., Inc., 2014 CPD ¶ 16, at 3–4, 4 n.7 (explaining that “old” SAIC had about $11 billion in annual revenues; “new” SAIC’s annual revenues would approximately reach $4 billion; and Leidos would have an estimated annual revenue of $7 billion).
  57. See id. at 4, 6.
  58. Id. at 11.
  59. Id. at 9.
  60. Id.; Freling & Scalzo, supra note 14.
  61. See Wyle Labs., Inc., 2014 CPD ¶ 16, at 11; Diamond & Ochs, supra note 4. GAO notes that the Wyle Laboratories decision will not detrimentally impact full and open competition because “corporate . . . restructuring[s] are highly fact-specific, and turn largely on the individual circumstances of the proposed transactions and timing.” NASA—Recons., B-408112.3, 2014 CPD ¶ 155, at 5 (Comp. Gen. May 14, 2014).
  62. See FCi Fed., Inc., B-408558.7 et al., 2015 CPD ¶ 245, at 1 (Comp. Gen. Aug. 5, 2015); Freling & Scalzo, supra note 14.
  63. FCi Fed., Inc., 2015 CPD ¶ 245, at 7.
  64. Wyle Labs., Inc., B-408112.2, 2014 CPD ¶ 16, at 8 (Comp. Gen. Dec. 27, 2013); Freling & Scalzo, supra note 14.
  65. FCi Fed., Inc., 2015 CPD ¶ 245, at 4, 5; Diamond & Ochs, supra note 4.
  66. FCi Fed., Inc., 2015 CPD ¶ 245, at 4.
  67. Id. at 4–5.
  68. Id. at 7; Petkoff et al., supra note 33, at 9.
  69. FCi Fed., Inc., 2015 CPD ¶ 245, at 5.
  70. Id.
  71. Diamond & Ochs, supra note 4. GAO’s holding states:

    . . . we find that, in the circumstances here, the agency was required to reevaluate proposals before proceeding with the contract. In this regard, the record shows that the sale materially and significantly altered the approach to contract performance as set forth in the originally submitted USIS PSD proposal, but the agency nevertheless generally confined its review to the effect on PAE/USIS PSD’s responsibility, with only limited consideration of the effect on the awardee’s past performance rating. In these circumstances, we find the agency’s implementation of our recommendation to be unreasonable and sustain the protest on this basis.

    FCi Fed., Inc., 2015 CPD ¶ 245, at 5.
  72. Id. at 7.
  73. See id. at 12.
  74. See Lockheed Martin Integrated Sys., Inc., B-410189.5 et al., 2016 CPD ¶ 276, at 8 (Comp. Gen. Sept. 27, 2016); Chiow & O’Donnell, supra note 6. The GAO notes that whether a transaction is “imminent and essentially certain” may depend on “whether the timing and manner of the spin-off contemplated were within the control of the offeror, and whether the offeror had disclosed detailed plans to the SEC, including an anticipated time frame for closing the transaction.” Lockheed Martin, 2016 CPD ¶ 276, at 8.
  75. See Chiow & O’Donnell, supra note 6.
  76. See Lockheed Martin, 2016 CPD ¶ 276, at 2–3, 3 n.3, 6; Chiow & O’Donnell, supra note 6.
  77. Lockheed Martin, 2016 CPD ¶ 276, at 1.
  78. Id. at 2.
  79. Id. at 2–3.
  80. Id. at 3.
  81. Id.
  82. Chiow & O’Donnell, supra note 6.
  83. Press Release, Lockheed Martin, Lockheed Martin to Separate and Combine IT and Technical Services Businesses with Leidos ( Jan. 26, 2016), http://www.lockheedmartin.com/us/news/press-releases/2016/january/012516-lm-it-services-update.html [https://perma.cc/2YV6-CRL9].
  84. Id. In addition, the statement explains that “material differences in results as compared with those anticipated in the forward-looking statements could include . . . business disruption, operational problems, financial loss, legal liability to third parties and similar risks, any of which could have a material adverse effect on Lockheed Martin’s or Leidos’ consolidated financial condition, results of operations[,] or liquidity.” Id.
  85. Lockheed Martin, 2016 CPD ¶ 276, at 3.
  86. See Petkoff et al., supra note 33, at 12.
  87. Lockheed Martin, 2016 CPD ¶ 276, at 4.
  88. See Petkoff et al., supra note 34, at 12.
  89. Macagnone, supra note 32. The source selection advisory council released the following conclusion:

    . . . in regard to the [Lockheed Martin] proposal, these analyses show unquantifiable cost risks. It is unknown, and unknowable, what impacts the new [Lockheed Martin]-Leidos corporate structure will have on future performance, whether past performance is still a predictor of future performance of offerors, and how small business will be utilized. Therefore, there are potential risks associated with the delivery of the technical capabilities proposed. Based on the above, [Lockheed Martin’s] proposal should therefore not be considered for award.

    Lockheed Martin, 2016 CPD ¶ 276, at 6.
  90. See Lockheed Martin, 2016 CPD ¶ 276, at 1.
  91. Id. at 7.
  92. See id. at 8; Chiow & O’Donnell, supra note 6.
  93. See, e.g., Lockheed Martin, 2016 CPD ¶ 276, at 5, 8, 13 (leaving two questions unanswered: when is an M&A considered “imminent and essentially certain” and how should contractors update proposals if an agency refuses to open discussions); FCi Fed., Inc., B-408558.7 et al., 2015 CPD ¶ 245, at 1 (Comp. Gen. Aug. 5, 2015) (raising the following question: how does a contractor update a proposal when the agency already issued an award).
  94. See Freling & Scalzo, supra note 14 (“The problem is that contractors often lack the ability or appropriate mechanism to convey to the agency the type of information that the GAO envisions as necessary.”).
  95. See Chiow & O’Donnell, supra note 6 (“There is uncertainty in every corporate transaction so that identifying the moment when such a transaction becomes imminent and essentially certain is challenging.”).
  96. See Freling & Scalzo, supra note 14 (“The GAO’s decisions . . . are likely to accomplish little more than fueling protests of awards to contractors undergoing corporate transactions.”).
  97. See, e.g., Lockheed Martin, 2016 CPD ¶ 276, at 7 (focusing on whether a corporate transaction would materially alter the offeror’s approach to contract performance as set forth in its proposal); FCi Fed., Inc., 2015 CPD ¶ 245, at 7 (same); Wyle Labs., Inc., B-408112.2, 2014 CPD ¶ 16, at 1, 11 (Comp. Gen. Dec. 27, 2013) (same); TRW, Inc., B-254045.2, 94-1 CPD ¶ 18, at 3, 8–9 (Comp. Gen. Jan 10, 1994) (same).
  98. Lockheed Martin, 2016 CPD ¶ 276, at 7.
  99. See Chiow & O’Donnell, supra note 6; Freling & Scalzo, supra note 14.
  100. See Wilson, supra note 23; Freling & Scalzo, supra note 14.
  101. See Wilson, supra note 23 (“There are restrictions on when you can, and when you must, disclose information about mergers. [And] there are limitations on what you can say about what’s going to happen.”); Freling & Scalzo, supra note 14.
  102. See Wilson, supra note 23.
  103. Freling & Scalzo, supra note 14; Wilson, supra note 23 (“[M]aking these statements of uncertainties are a requirement for U.S. Securities and Exchange Commission disclosures, and not doing so could have opened the companies up to trouble with the SEC.”). Under an ideal scenario, GAO would have agencies evaluate two proposal submissions from a contractor undergoing a corporate transaction. See Freling & Scalzo, supra note 14. One proposal would reflect the contractor’s pre-reorganization state and the other the post-reorganization state. Id. Thus, the agency could clearly analyze the effects of the merger. See id. However, reality prevents the development of this option. See id. The “timing, confidentiality[,] [costs,] and uncertainty of corporate deals” eliminate the possibility of dual proposals. Id.
  104. See Chiow & O’Donnell, supra note 6.
  105. JOHN CIBINIC, JR. ET AL., FORMATION OF GOVERNMENT CONTRACTS 869 (4th ed. 2011). Statutes state only that:

    The head of an agency shall evaluate competitive proposals in accordance with paragraph (1) and may award a contract—
    (i) after discussions with the offerors, provided that written or oral discussions have been conducted with the responsible offerors who submit proposals within the competitive range; or
    (ii) based on the proposals received, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) provided that the solicitation included a statement that proposals are intended to be evaluated, and award made, without discussions, unless discussions are determined to be necessary.

    10 U.S.C. § 2305(b)(4)(A) (2012).
  106. CIBINIC, JR. ET AL., supra note 105, at 870 (“[T]he lack of statutory or regulatory direction [on discussions] leaves the agency with broad discretion in determining whether or not negotiations should be conducted . . . .”). The GAO recognizes in many protests that agencies have broad discretion when deciding whether to award without discussions. See, e.g., Synectic Sols., Inc., B-299086, 2007 CPD ¶ 36, at 11 (Comp. Gen. Feb. 7, 2007); Colmek Sys. Eng’g, B-291931.2, 2003 CPD ¶ 123, at 7 (Comp. Gen. July 9, 2003); J.A. Jones/IBC Joint Venture, B-285627 et al., 2000 CPD ¶ 161, at 5 (Comp. Gen. Sept. 18, 2000); Int’l Data Prods. Corp., B-274654 et al., 97-1 CPD ¶ 34, at 16 (Comp. Gen. Dec. 26, 1996).
  107. FAR 15.306(d)(2).
  108. CIBINIC, JR. ET AL., supra note 105, at 870. Agencies avoid discussions for the following reasons: “[s]ignificant reduction of acquisition lead-time;” “[p]ermitting award on technical superiority when discussions are not needed;” “[l]essening the chances of wrongful disclosure of source selection information;” and “[r]eduction of the government’s overall acquisition costs by reducing the amount a contractor is spending on bid and proposal costs.” Id.
  109. See Freling & Scalzo, supra note 14. Discussions must not “[f]avor[] one offeror over another.” FAR 15.306(e)(1). If the agency opens discussions with one offeror, then it must open discussions with all the other offerors in the competitive range. NASH, JR. ET AL., supra note 7, at 187.
  110. See Chiow & O’Donnell, supra note 6.
  111. See id. (“[N]o agency is obliged to accept the assurances” of future predictions.).
  112. See id.; Freling & Scalzo, supra note 14.
  113. See Chiow & O’Donnell, supra note 6.
  114. See id.; Freling & Scalzo, supra note 14.
  115. See Chiow & O’Donnell, supra note 6 (“The broad discretion means that it is impossible for contractors to predict how any individual contract opportunity will be affected by a pending corporate transaction.”).
  116. See id.
  117. See id.
  118. See id.
  119. See id.; Wilson, supra note 23.
  120. See Lockheed Martin Integrated Sys., Inc., B-410189.5 et al., 2016 CPD ¶ 276, at 7–9 (Comp. Gen. Sept. 27, 2016) (holding that an agency has discretion to consider an offeror’s SEC public press release when determining whether or not a merger is imminent and essentially certain).
  121. See Chiow & O’Donnell, supra note 6.
  122. Id.
  123. Wyle Labs., Inc., B-408112.2, 2014 CPD ¶ 16, at 4–5, 11 (Comp. Gen. Dec. 27, 2013).
  124. See Chiow & O’Donnell, supra note 6.
  125. FAR 15.306(e)(1); NASH, JR. ET AL., supra note 7, at 187.
  126. Lockheed Martin Integrated Sys., Inc., B-410189.5 et al., 2016 CPD ¶ 276, at 1 (Comp. Gen. Sept. 27, 2016); Chiow & O’Donnell, supra note 6.
  127. See Greg Petkoff et al., GAO Bid Protest Explains When Agencies Should Evaluate Pending Mergers When Making Award Decisions, BLOOMBERG BNA: FED. CONT. REP., Oct. 2016, at 1, 2; Chiow & O’Donnell, supra note 6.
  128. See Chiow & O’Donnell, supra note 6.
  129. See Lockheed Martin, 2016 CPD ¶ 276, at 1; CIBINIC, JR. ET AL., supra note 105, at 870.
  130. See Chiow & O’Donnell, supra note 6.
  131. See id.; Freling & Scalzo, supra note 14.
  132. See Diamond & Ochs, supra note 4; Chiow & O’Donnell, supra note 6.
  133. See United States–M&A Statistics, supra note 2.
  134. Petkoff et al., supra note 33, at 15.
  135. See Diamond & Ochs, supra note 4; Wilson, supra note 23; Chiow & O’Donnell, supra note 6.
  136. Interview with Mark Nackman & Gregory Petkoff, supra note 17.
  137. Id.
  138. See id.
  139. See Diamond & Ochs, supra note 4.
  140. Interview with Mark Nackman & Gregory Petkoff, supra note 17.
  141. See, e.g., Wyle Labs., Inc., B-408112.2, 2014 CPD ¶ 16, at 8–9, 11 (Comp. Gen. Dec. 27, 2013); Diamond & Ochs, supra note 4.
  142. Diamond & Ochs, supra note 4.
  143. Id.
  144. See, e.g., id. Universal Prot. Serv., LP v. United States, 126 Fed. Cl. 173, 194 (2016) (explaining that if a contractor lists key corporate assets in a proposal and later losses the assets’ utility during a corporate transaction, the proposal may lose validity); FCi Fed., Inc., B-408558.7 et al., 2015 CPD ¶ 245, at 12 (Comp. Gen. Aug. 5, 2015) (sustaining a protest because the contractor’s pre-transaction proposal relied in material respects on the resources and back office support of its former parent); Wyle Labs., Inc., 2014 CPD ¶ 16, at 1, 11 (holding that because the new contractor had fewer resources than the original pre-reorganization contractor, the awardee’s proposal failed to reflect appropriate costs).
  145. See Interview with Mark Nackman & Gregory Petkoff, supra note 17; Diamond & Ochs, supra note 4.
  146. See Wilson, supra note 23 (“[W]hen these transactions come in, there’s always this possibility that you may have to forfeit some government work . . . . In a way, it becomes part of the cost-benefit analysis of a transaction.”).
  147. See id.
  148. See id.
  149. See Diamond & Ochs, supra note 4.
  150. See Wilson, supra note 23.
  151. See Interview with Mark Nackman & Gregory Petkoff, supra note 17.
  152. See Diamond & Ochs, supra note 4.
  153. See id.; communications among the M&A team, the proposal team, and the agency requires the following:

    . . . an interdisciplinary legal approach to manage the various implications, including timing of material information disclosures, SEC filings and press releases, as well as potential pre-merger gun-jumping implications of coordinating too closely ahead of the transaction closing, along with including adequate information in the proposal for the procuring agency to consider.

    Petkoff et al., supra note 127.
  154. Cf. Chiow & O’Donnell, supra note 6.
  155. See id.; Wyle Labs., Inc., B-408112.2, 2014 CPD ¶ 16, at 4 (Comp. Gen. Dec. 27, 2013) (noting that the offeror undergoing the corporate transaction recommended a cost cap).
  156. See Diamond & Ochs, supra note 4.
  157. See id.
  158. See id.
  159. See id.; Lockheed Martin Integrated Sys., Inc., B-410189.5 et al., 2016 CPD ¶ 276, at 1, 13 (Comp. Gen. Sept. 27, 2016).
  160. Lockheed Martin, 2016 CPD ¶ 276, at 1, 13.
  161. Sheppard Mullin Richter & Hampton LLP, What You Need to Know About Mergers and Acquisitions Involving Government Contractors and Their Suppliers– Volume 3, LEXOLOGY (Mar. 17, 2016), http://www.lexology.com/library/detail.aspx?g=33a050a8-bcae-4a4b-a4d0-581c5a9fe19e [https://perma.cc/LT2Y-9XX4].
  162. FAR 42.1204.
  163. FAR 42.1204(a)(1)–(2).
  164. Chiow & O’Donnell, supra note 6.
  165. Id.
  166. See Diamond & Ochs, supra note 4.
  167. Dover et al., supra note 3, at 10.
  168. See Chiow & O’Donnell, supra note 6.
  169. Dover et al., supra note 3, at 10.
  170. See Interview with Mark Nackman & Gregory Petkoff, supra note 17; Chiow & O’Donnell, supra note 6.
  171. See Interview with Mark Nackman & Gregory Petkoff, supra note 17.
  172. Cf. Chiow & O’Donnell, supra note 6.
  173. See Freling & Scalzo, supra note 14 (“[The] award cannot be made to a contractor based on a proposal materially different than how the contractor actually intends to perform.”).
  174. See Chiow & O’Donnell, supra note 6.