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Welcome to Brown Rudnick’s blog page.  Below you will find our Emerging Technologies and Government Contracts blogs.  To read our Real Estate blog, Get Real! Keeping Real Estate Professionals Ahead, please visit www.getrealestatelawblog.com.

The views expressed herein are solely the views of the author(s) and do not represent the views of parties represented by the blogger(s) or the views of Brown Rudnick LLP or parties it represents.

Mobile App Privacy: Five Things Businesses Can Do To Stay Out Of Trouble

Posted on Friday, Dec 21, 2012

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The business case for offering a mobile app can be compelling: an app can give a business a constant presence on its customers’ mobile desktop, building brand awareness and allowing easy and direct interaction.  But businesses that roll out apps need to pay attention to privacy rules, too, as the recent enforcement action by California’s Attorney General reminds us.

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A New Wave Of GPL Enforcement? Samba and Linux kernel copyrightholders join the fight

Posted on Friday, Jun 29, 2012

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Talk about unintended consequences: Rob Landley, a lead developer of BusyBox, announced that he was rewriting that program solely to disarm GPL enforcers. In response, several other copyright holders came forward to hand the enforcers some bigger and more effective weapons.

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Proposing salary cuts for incumbent workers can be (un)realistic

Posted on Wednesday, Aug 31, 2016

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When a solicitation anticipates award of a fixed price contract, the Federal Acquisition Regulation typically doesn’t require the agency to conduct a price realism analysis. But, to assess the risk inherent in an offeror’s proposal for a fixed-price contract, the agency may, at its discretion, say in the solicitation that it will perform a price realism analysis. And, if the solicitation says that a price realism analysis will be performed, the agency had better perform it and document it. Where an agency fails to document its price realism evaluation, it bears the risk that there may not be an adequate supporting rationale in the record for the Government Accountability Office (GAO) to conclude that the agency had a reasonable basis for its source selection decision.

That was the case in a bid protest that GAO sustained earlier this summer. There, the awardee (Sterling) had bid the staff of the incumbent contractor (Valor), but at substantially lower rates than Valor was paying. When Sterling won the contract, Valor protested that the agency had failed to determine that Sterling’s price as realistic, as required by the solicitation.

It is not impossible that Sterling’s plan to incur lower labor costs than Valor for the same staff was realistic. But, GAO sustained Valor’s protest because there was no evidence that the agency had even asked itself or Sterling the question.

The takeaways? For agencies, if the solicitation calls for a price realism analysis, make sure you perform, and document, that analysis. For offerors, make sure your proposal includes the information the agency will need to find that your price is realistic, especially if our price includes significant savings off the incumbent’s price.

The case is Valor Healthcare, Inc., B-412960 (July 15, 2016), available at http://www.gao.gov/assets/680/678875.pdf.

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Bid Protest Mill Shut Down–Maybe

Posted on Monday, Aug 29, 2016

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Deciding whether and when to protest can be challenging. The questions potential protestors need to consider include:

  • Is the protest meritorious?
  • Is it timely?
  • Is the potential protestor an “interested party”?
  • Is it the right business decision?

Anyone who answers these questions in favor of protesting all the time — whether the protest is meritorious or not, and whether it is timely or not — may end up like a company called Latvian Connection LLC which has been suspended from filing any protests for the next year because of its “vexatious” filings.

According to the Government Accountability Office (GAO), Latvian Connection has filed 150 protests thus far this fiscal year. Of the 131 protests closed to date in this fiscal year, one was denied on the merits. The remaining protests were dismissed, the most common reason being that Latvian Connection was not an interested party. GAO found that Latvian Connection had no direct economic interest in any of the procurements it protested. Indeed, it’s not clear from these protests what Latvian Connection’s line of work is–although it does (or did) seem to be in the business of filing protests. A non-exhaustive list of Latvian Connection’s protests in 2016 includes acquisitions for engineering services, furniture, cell phone services, landscaping services, housekeeping and facilities operation services, printing and delivery services, antennas, laundry chemical services, portable generators, basic life support services, stevedoring and marine cargo handling services, industrial-size frequency converters and uninterruptable power supply batteries, passenger vehicles, refrigeration containers, industrial truck scales, the lease of barges, medical equipment and supplies, safety shoes and vests, anti-microbial medical privacy curtains, brake test machines, and the repair and alteration of an airfield in  Bahrain.

A number of Latvian Connection’s most recent protests, according to GAO, have been attempts to challenge acquisitions where the contract in question was awarded years ago. GAO also noted that Latvian Connection filed an additional 296 protests in prior fiscal years, mostly in the last five years. In addition, the firm has filed 9 requests that it be reimbursed its protest costs (all were dismissed as legally insufficient), and 40 requests for reconsideration (4 pending, 3 dismissed as untimely, and 33 dismissed as legally insufficient). In a single week in fiscal year 2015, Latvian Connection filed 59 separate protests challenging what the protester termed were Air Force solicitations. All 59 protests were dismissed when it became evident that the 59 solicitations that Latvian Connection was challenging did not actually exist.

On other hand, if a contractor’s protest is meritorious and timely and the protester is an “interested party,” then, GAO says, “Our forum remains available to protesters with legitimate concerns regarding the propriety of an agency’s procurement activities.”

The decision is Latvian Connection LLC, B-413442 (Aug 18, 2016), available at http://www.gao.gov/products/B-413442.

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