Random Procurement Musings in the Dog Days of January

A dreary day in late January–too late for a “Predictions for the Coming year” blog post, and a little too early for “Emerging Trends in Procurement So Far This year.” So, a few thoughts, (or maybe predictions, anyway):

• The Amazon JEDI protest is going to come to a head sooner than anyone thought. DOD awarded the JEDI Cloud contract to Microsoft, “because of/in spite of” the President’s…interest.  Amazon protested to the U.S. Court of Federal Claims (“COFC”).  The Court was not forced to to decide whether to issue a Temporary Restraining Order (“TRO”) stopping performance, because DOD agreed to not really do anything, or have Microsoft do anything, that couldn’t be easily undone if Amazon won the protest. (This is actually pretty common in COFC protests.)  That semi-standstill is over; DOD and Microsoft are moving forward, and Amazon formally requested the Judge to issue a TRO.  Here is why this is a big deal: the key legal standard for a TRO is that the plaintiff (Amazon) have a “substantial likelihood of success on the merits.”  That means the Judge’s decision on Amazon’s TRO motion will telegraph whether or not Amazon is likely to win the protest.  (Many protesters drop their protest if their TRO motion is denied; the government often settles cases where the protester’s TRO motion is granted.)

• The current trend away from LPTA procurements will generate more protests. Why?  For all its faults (don’t get me started), LPTA is, from a source selection standpoint, pretty…  Remember how relaxed it was taking a class Pass/Fail?  Sort of like that.  But, the more Best Value procurements you have, the more subjective judgement calls you have, and the greater FAR and GAO case law strictures you have on how those judgement calls get made.  Bottom line: the protest docket will tick up.

• The government will continue getting more aggressive in going after greater rights in contractor’s technical data. This is a little bit like Back to the Future; those of us old enough to have practiced in the 1980s remember how the government in general, and DOD in particular, used the ASBCA decision in Bell Helicopter Textron as a blueprint to claim unlimited rights in technical data when there was some government money involved.  (FAR part 27/DFARS part 227 write all of this down.)  After all these years, the government seems to be realizing that variations of government purpose license rights work just as well, particularly if the government defines “government” very broadly. GAO helped with a couple of recent protest decisions allowing solicitations with requirements for the contractors to provide the government broad rights in technical data. Momentum is building…

• And, finally, since we are heading into an election season, we will see the return of a perennial procurement word: “wastefraudandabuse.” In its procurement use as one big word, every candidate will discover that stopping this one word is the way to balance the budget and reinvent government.  (h/t Al Gore.)  (Bonus use of the word: health care costs.)