Commentary by Jay Carey and Sandy Hoe were featured in a Law360 article discussing the top government contracts-related cases from 2022.
Sandy analyzed a recent challenge to the limits of the Procurement Act, consisting of various courts upholding a COVID-19 vaccine mandate for federal contractors, ruling that that this mandate overstepped the authority granted under that law.
Collectively, these decisions and the district court rulings underlying them may prompt similar challenges that could significantly shake up the foundation of much of the procurement policy that federal contractors are subject to, Sandy said.
"For five decades, I would never have thought that this would be a hot-button issue," Sandy said. "It was just assumed that if you wanted to be a government contractor, this is what came with it. But in today's world with the increased distrust, if you will, of governmental institutions, I think people are willing to challenge even things we thought were acceptable — if the government said this is a policy that we should follow, most people fell in line. That's less so today."
Contractors or trade associations who are used to complying with long-standing policy may not wish to expend resources trying to overturn existing rules, but new procurement policies issued under the Procurement Act are likely to be "real targets for challenges," Sandy said.
Jay commented on a decision highlighting areas of divergence between the U.S. Court of Federal Claims and the U.S. Government Accountability Office on issues such as key personnel availability, with court judges in the second half of 2022 continuing to drive home differences between the venues that may weigh into protesters' decisions on where to file cases.
In one prominent decision, Judge Zachary N. Somers ordered the Defense Information Systems Agency to look again to ensure it had provided all relevant documents for a protest filed by Trace Systems Inc. over the cancelation of a solicitation, saying it didn't appear from the available documents that all relevant documents had been made available, despite DISA having claimed the administrative record was complete.
While the "administrative record" is in effect a fiction assembled after the fact to represent an agency's contemporaneous decision-making process, and is often fairly standardized, "where it becomes interesting is in cases like Trace where what's being challenged is a more unusual decision, and there's not a typical, standard record that gets created," said Jay.
"And then the question becomes much more acute — what is the record?" Jay said. "That's why, I think, you get the Trace court exploring whether the documents were documents that were considered by the government in the course of making its decision. That's going to be a key question any time this kind of fight arises."
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