COFC | The Contracting Education Academy

March 17, 2020 By cs

Pentagon to take corrective action on JEDI

The Pentagon has asked a federal judge for a 120-day remand to “reconsider its evaluation” and take corrective action on the lucrative JEDI cloud contract it awarded to Microsoft in October, which could be worth as much as $10 billion over the next decade.

In a legal filing Thursday evening, the Pentagon asked Judge Patricia Campbell-Smith for an adjournment to address “various aspects” of its JEDI evaluation highlighted by Amazon, which protested the JEDI award in November.

The Pentagon plans to tweak the JEDI solicitation and accept “limited proposal revisions,” according to the filing, allowing the companies to rebid the contract.

“A remand here is in the interests of justice because it will provide the agency with an opportunity to reconsider the award decision at issue in light of AWS’s allegations, this court’s opinion, and any new information gathered during the proposed remand,” the filing states.

Keep reading this article at: https://www.nextgov.com/cio-briefing/2020/03/exclusive-pentagon-take-corrective-action-jedi/163750/

January 16, 2020 By cs

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/

October 16, 2019 By cs

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

October 29, 2018 By AMK

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/

October 9, 2018 By AMK

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

The Pentagon has asked a federal judge for a 120-day remand to “reconsider its evaluation” and take corrective action on the lucrative JEDI cloud contract it awarded to Microsoft in October, which could be worth as much as $10 billion over the next decade.

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.

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

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.

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.

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