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Amazon will ask judge to halt work on DoD’s JEDI contract

With less than a month to go before the Pentagon and Microsoft get to work on building the military’s new Joint Enterprise Defense Infrastructure (JEDI) cloud, Amazon Web Services said Monday that it would ask a court to temporarily block any meaningful work under the controversial contract.

AWS gave notice of its plans as part of a status update its attorneys and the Justice Department filed jointly with the Court of Federal Claims. As part of the company’s bid protest lawsuit, its lawyers have previously said they were considering asking the court for a preliminary injunction, but the latest filing is the first concrete indication of their plans.

DoD has already said it intends to issue Microsoft the first “substantive” task order to begin building the unclassified portions of JEDI by Feb. 11.  Because AWS wants to stop the work before then, and because DoD considers the project urgent to national security, lawyers for all three parties have already agreed on an expedited schedule for the court to consider either a preliminary injunction or temporary restraining order.

Judge Patricia E. Campbell-Smith would still need to agree to that schedule, but under the proposal, AWS plans to file its formal request to block work on JEDI by Jan. 24. DoD and Amazon would then have a little more than a week to respond with their filings asking the judge to deny it, and the court would issue a final ruling by Feb. 11, the day DoD plans to issue the first task order.

Keep reading this article at: https://federalnewsnetwork.com/defense-main/2020/01/amazon-will-ask-judge-to-halt-work-on-dods-jedi-contract/

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COFC finds no jurisdiction over SpaceX’s OTA protest

The Court of Federal Claims dismissed SpaceX’s OTA bid protest finding that the court lacks subject matter jurisdiction over this OTA protest.

In a recently released decision, the COFC held that the court did not have Tucker Act jurisdiction to resolve a bid protest challenging the award of Other Transaction Agreements (OTAs).

In this case of first impression, SpaceX challenged the Air Force’s award of three OTAs for launch services. SpaceX acknowledged that the Air Force’s prototype OTAs were not “procurement contracts” under the Tucker Act.  However, SpaceX noted that, following the government’s investment in the development of launch system prototypes under the OTA, the Air Force plans to procure launch services via a competitive procurement during Phase two of the program. As a result, SpaceX argued that the OTA was awarded “in connection with” the Phase two procurement, and therefore subject to Tucker Act jurisdiction.

The court rejected this argument, finding that the OTA award was not “in connection with a procurement or proposed procurement,” as contemplated by the Tucker Act. The court noted that the OTA and procurement competitions involved separate and distinct solicitations with different acquisition strategies, different start dates, and different goals. The court also noted that the Phase two Procurement will not be limited to the companies awarded the prototype OTAs.

Keep reading this article at: www.mondaq.com/article.asp?articleid=848220

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Federal Circuit charts new terrain in ‘commercial item’ contracting

Last month, the Federal Circuit weighed in on a largely-overlooked provision in the Federal Acquisition Streamlining Act (FASA) that requires federal agencies, to the maximum extent practicable, to procure commercially available goods and services to meet their needs. 

In the case — Palantir USG v. United States — the court affirmed the decision by the Court of Federal Claims (COFC) enjoining the Army from proceeding with its Distributed Common Ground System – Army Increment 2 (DCGS-A2) procurement until it complies with the FASA provision.

This bid protest decision has potentially significant implications for commercial item contractors.

DCGS-A2 is not your average solicitation for an IT system.  It is phase two of the Army’s flagship system for processing multi-sensor intelligence — a program that the Army has spent nearly two decades and billions of dollars trying to develop.  For several years prior to the release of the DCGS-A2 solicitation, Palantir — the protester — informed the Army that the company already had a commercial item that Palantir believed fit the Army’s requirements.  Despite Palantir’s communications regarding the capabilities of its product, the Army issued a single-source indefinite-delivery/indefinite-quantity solicitation focused on developing a new intelligence data management system — essentially from scratch.  Palantir protested the solicitation and argued that it violated FASA’s mandate regarding the use of commercial items.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/10/federal-circuit-charts-new-terrain-commercial-item-contracting/

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Increased security risks may constitute a cardinal change to a contract

Former Secretary of Defense Donald Rumsfeld once explained that there are the known unknowns and the unknown unknowns. Some greeted that gnomic pronouncement with bemused smiles.
Army Expeditionary Contracting Command

But contractors operating in a contingency environment know exactly what he was talking about.

No mere mortal can accurately predict, much less price, all of the risks involved in supporting and accompanying the military in various hot spots around the world. Planate Management Group, LLC v. United States, a case currently before the Court of Federal Claims (COFC), is a good example.

In Planate, a contractor providing support services in Afghanistan has asserted claims for the cost of arming its in-theater personnel when the security situation changed dramatically for the worse.

In light of deteriorating security conditions in Afghanistan, including a fatal insider attack, the military issued a new security directive. To comply with that directive, the contractor purchased weapons to arm its in-theater personnel. The contractor submitted a claim to recover the costs of arming its personnel. The government denied the contractor’s claim, and the contractor filed suit at the COFC, alleging (among other things) that the changed security conditions amounted to a cardinal change. The COFC denied the government’s motion to dismiss for lack of subject matter jurisdiction because the contractor had properly presented its claim for a cardinal change to the contracting officer (CO).

Claims for cardinal changes to the contract are rarely successful. Although the court considered only whether it had jurisdiction to hear Planate’s allegations and has not yet addressed the merits of Planate’s cardinal change theory, the case offers an interesting and potentially promising approach for contractors to recover when they experience major changes to the circumstances under which they are performing.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=740122

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Federal circuit court confirms agencies’ obligations to prioritize commercial solutions

Palantir USG v. United States may prove to be one of the most significant procurement precedents of the decade.

Affirming the Court of Federal Claims, the Federal Circuit breathed new life into the government’s obligations under the Federal Acquisition Streamlining Act (FASA) to prioritize, to the maximum extent practicable, the acquisition of commercial and nondevelopmental solutions.

Weaning agencies off their historic preference for developmental solutions is critical now more than ever, as it is readily apparent that maintaining the United States’ technological and battlefield superiority depends on its ability to harness technologies from the commercial sector and become a more commercial-friendly business partner.

The decision will have the practical impact of requiring agencies to more carefully document their market research. Palantir will also provide useful leverage for companies seeking to eliminate (whether by negotiation or protest) solicitation provisions that are not accommodating to commercial vendors.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=737610

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