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I sat down last week with Scott Flesch, probably the most experienced bid-protest lawyer ever. Scott was the Chief Trial Attorney for the Army, where he worked on over 2,000 bid protests. He is now a member at Miller & Chevalier, a D.C. law firm. Our conversation started with the most recent Executive Order mandating fixed price contracting, and moved into the risks that contractors face from the FAR’s new class deviations implementing the DEI Executive Order. Scott also discussed the importance of intervening in protests, the differences between GAO and the Court of Federal Claims, and how small-business issues have come up in some recent cases.
Links discussed
Scott Flesch bio (Miller & Chevalier)
Intervention Download: Why Offerors Must Prepare for Bid Protests
Executive Order: Promoting Efficiency, Accountability, and Performance in Federal Contracting
FAR Council Memo: Agency Implementation of Executive Order 14398, Addressing DEI Discrimination by Federal Contractors
Life Sciences Logistics LLC v. United States (Court of Appeals for the Federal Circuit)
Global Connections to Employment, Inc. v. United States (Court of Federal Claims)
Noblis MSD, LLC v. United States (Court of Federal Claims)
Revelations Counseling and Consulting LLC v. United States (Court of Federal Claims)
CSlope Solutions LLC (GAO)
Timestamps
Introduction and the Value of the ABA Public Contract Law Section 00:00:00
The Shift Toward Fixed-Price Contracts 00:03:20
Dealing with Ambiguous Requirements and Bid Protests 00:09:58
Navigating the DEI Executive Order and False Claims Act Risks 00:14:37
Understanding CICA Stays at the GAO 00:23:27
CICA Stay Overrides 00:29:33
Procedures at the Court of Federal Claims 00:38:28
The Role of Intervenor’s Counsel in Bid Protests 00:41:12
The Noblis Case and Pleading for Injunctive Relief 00:50:32
Choosing Between the GAO and the Court of Federal Claims 00:53:21
The Revelations Case and Limitations on Subcontracting 01:00:44
The Certificate of Competency (COC) Process 01:05:23
Conclusion and Contact Information 01:10:20
With 20 years of Federal legal experience, Sam Le counsels small businesses through government contracting matters, including bid protests, contract compliance, small business certifications, and procurement disputes. Sam obtained his law degree from the University of Virginia and formerly served as SBA’s director of procurement policy. His website is www.samlelaw.com.
This video is for informational purposes only and does not constitute legal advice.
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