In February 2024, the Government Accountability Office (“GAO”) published 26 decisions, five of which were sustained. There was also one denial of costs and one denied request for reconsideration. Below is a summary of February’s notable decisions and what potential protesters can learn from them. Sustained Protests In Kauffman and Associates, Inc.,[1] the GAO sustained multiple protest grounds to include a challenge regarding a latent ambiguity in the solicitation, a protest ground we do not see succeed all that often. This protest was the protester’s second challenge to the Department of ..read more

On March 11, 2024, the Cybersecurity and Infrastructure Security Agency (“CISA”) and the Office of Management and Budget (“OMB”) released the highly-anticipated Secure Software Development Attestation Form (also known as the “Common Form”) and on March 18, 2024 CISA’s repository for the forms went live. The Common Form will be used by federal agencies to obtain attestations from software developers regarding the security of their products, in accordance with Executive Order 14028 on Improving the Nation’s Cybersecurity and OMB Memoranda M-22-18 and M-23-16. In April 20 ..read more

GSA long has stated that the “MAS program is designed to mirror commercial buying practices.” (Don’t laugh – I’m serious! Slide 12 if you don’t believe me.) In the commercial marketplace, SaaS licenses are sold for set periods of time (typically annual terms) and paid for in advance. Historically, GSA refused to accept this commercial term, explicitly prohibiting customer agencies from paying in advance when acquiring SaaS through the MAS program. Software companies, rejoice, because GSA finally has seen the light! GSA’s longstanding opposition for advance payment for SaaS licenses was rooted ..read more

In January 2022, we warned software companies selling indirectly against attempting to enforce the terms of their End User License Agreement (“EULA”) directly against the Federal Government based on the decision of the Civilian Board of Contract Appeals (“CBCA”) in Avue Technologies Corp. Earlier this month, the Federal Circuit gave software companies some hope by vacating the CBCA’s decision. Read on, though, before filing your claim. First, the background. Avue Technologies Corporation (“Avue”) sold software licenses to the Federal Government through the GSA Federal Supply Schedule contract ..read more

In a previous article, we analyzed what made protests successful at the Government Accountability Office (“GAO”) in Fiscal Year 2023 (“FY23”). Now, we want to share some insights we gained while conducting the same analysis of bid protest decisions at the Court of Federal Claims (“COFC” or the “Court”). Notably, half of the successful protests before the COFC in FY23 were pre-award protests. These notable pre-award victories are broken down into three basic categories: (1) unreasonable bidder qualification requirements; (2) unreasonable elimination from competition; and (3) improper solicitati ..read more

Welcome back to the Cost Corner, where we provide practical insight into the complex cost and pricing requirements that apply to Government contractors. The current topic is Federal Acquisition Regulation (FAR) Cost Principles applicable to contracts with commercial organizations. The previous four Cost Corner articles addressed the Cost Principles pertaining to the general criteria for determining the allowability of costs, direct and indirect costs, accounting for unallowable costs, and penalties for unallowable costs. This article begins coverage of FAR 31.205, Selected Costs, which include ..read more

On January 26, 2024, the Federal Risk and Authorization Management Program (“FedRAMP”) published a draft Emerging Technology Prioritization Framework developed in response to President Biden’s Executive Order 14110 on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (previously analyzed by our colleague here and discussed in a flash briefing available here). The Executive Order charged FedRAMP with developing a framework to prioritize Emerging Technologies in the FedRAMP authorization process, starting with generative AI. The first three generative AI capabilities s ..read more

In January 2024, the Government Accountability Office (“GAO”) published 31 bid protest decisions, two of which resulted in decisions sustaining the protesters’ challenges. There were also two requests for costs, one of which was denied, and one request for consideration, which was, unsurprisingly, denied. Below is a summary of the notable decisions from January and what potential protesters can learn from them. Sustained Protests In American Material Handling, Inc., the GAO sustained a protest challenging the award of a task order by the International Boundary and Water Commission for a brand ..read more

In a landmark unanimous ruling late last week, Murray v. UBS Securities, LLC, et al. 601 U. S. ____ (2024), the U.S. Supreme Court held that whistleblowers do not need to prove their employer acted with “retaliatory intent” to be protected under the Sarbanes-Oxley Act. Instead, all whistleblower plaintiffs need to prove is that their protected activity was a “contributing factor” in the employer’s unfavorable personnel action.  Background The Sarbanes-Oxley Act is a federal law that was passed in 2002 with the goal of improving auditing and public disclosure in response to several ac ..read more

To kick off the New Year, Sheppard Mullin’s Governmental Practice Cybersecurity & Data Protection Team has prepared a cybersecurity-focused 2023 Recap (including links to all of the resources the team has put out over the past year) and 2024 Forecast (that previews what we expect to see in 2024). This Recap & Forecast covers the following five high-interest topic areas related to cybersecurity and data protection: DoD and CMMC, FAR Cybersecurity Updates, Software Security, Security & the Cloud – FedRAMP and AI Considerations, and Cybersecurity Fraud and Enforcement. Click here to ..read more