Provide a direct but complete response to each prompt below. Make sure you respond to each of the issues/questions raised. You are not asked to assume facts outside of the fact pattern below. Support should always be provided for your responses, this support should be from the FAR or from legal cases (GAO, COFC, CAFC, Contract Board of Appeals).

1. You are an attorney working for the Department of Defense.Your primary client is a cradle-to-grave contracting office that is responsible for the acquisition of non-commercial supplies and services related to the development, production, and sustainment of a variety of complicated communications systems.These systems are utilized during worldwide DoD operations and are necessary for the United States and its allies to reduce potential loss of life during combat. Suffice it to say, the failure or degradation in service of these systems will lead to loss of US and allied forces.

The requiring activity, Program Executive Office - Tactical Communications and Command (PEO TC2), has approached the head of the contracting office about a requirement for a new state of the art communication capability. A meeting was set up between the requiring activity and a senior contracting official to begin discussions about the acquisition/integration of this new capability.Given that this meeting is related to requirement development, legal counsel (you) was not invited to the meeting.From the requiring activity side, the Program Manager (PM), the lead engineer, the logistician, and a budget analyst attended the meeting. Also present at the meeting was the Contracting Officer (CO), the Contract Specialist (CS), a Small Business Representative (SB Rep), and the command Competition Advocate (Comp Ad). During this meeting, and several subsequent meetings over a period of months, a decision was made by PEO TC2 to proceed with the acquisition of this capability.

Following this decision, the CO has asked to meet with you to discuss the requirement. Present at this meeting was the PEO TC2 PM, the CO, the CS, the SB Rep, and the Comp Ad. The prospective acquisition is in the very early stages; thus, minimal market research has been completed and there are many unknowns. The PM opens the discussion by stating that the decision to purchase the capability has already been made and that he expects the contracting office to make it happen. The PM also states that a Congressional appropriation of $1.7 Billion over 10 years has been requested; early responses from the relevant Congressional offices and committees indicate that there is support for the effort. You are advised that the budget for the program has been developed through an analysis of previously procured and similar capabilities.You are aware that if/when Congress approves the budget, PEO TC2 will be expected to procure the capability or Congress will start asking questions/ramping up pressure.

The PM makes some statements during this meeting that you find troubling. First, the PM states that "I have spoken with Raytheon and they are clearly the only company that can deliver this capability." For this reason, the PM is seeking a sole source effort awarded directly to Raytheon without full and open competition. You explain to the PM that the CO must complete market research to support such a decision, to which he responds "Fine, I don't care what you do, just make sure the contract is awarded to Raytheon." The PM then, during discussions about the project budget, seems to suggest that the budget may have been developed based on estimates received from "a vendor" (which you assume is Raytheon, given the previous statement). You continue to push back on the PM due to a lack of support for his statements, despite a clear preference for Raytheon. The discussion gets heated with the PM eventually stating "this meeting is a waste of my time, you know where I stand, make it happen" after which he leaves.

After this meeting has concluded you run into your supervisor in the hallway, who asks how the meeting went. You express concerns about the requirement, the PM, and the budget process. Your supervisor asks you to prepare a memorandum outlining your concerns.

Prompt 1 - Prepare one-page, single spaced, internal Memorandum to your Supervisor outlining your concerns. This memorandum should include discussion of your legal and contracting concerns based on the facts provided. Include in your response discussion of: (1) the comments made by the PM regarding sole sourcing to Raytheon, including the risks associated with doing so; (2) the lack of market research and what that means at this stage of the acquisition; (3) potential conflict of interest concerns, if you have any; and (4) what steps you believe should be taken, in terms of the acquisition process, to reduce future acquisition and protest risk.

Essay 2

All facts provided above apply. After much discussion and the completion of market research, the PM finally backed down and agreed that the contract should be pursued using full and open competition. Market research shows that Raytheon does have an advantage because it has been working on the capability for several years, but that at least five other large businesses COULD provide this capability. The procedures in FAR Part 15 apply, the acquisition is a trade-off, and the acquisition was not set aside for small business (the SB Rep agreed to this path forward). The DoD Source Selection Procedures apply to this acquisition (see these procedures attached to this assignment in the course site).

The Request for Proposals (RFP) was released through the Government Point of Entry. The evaluation factors included in the RFP are, in order of importance: (1) Technical; (2) Cost/Price; (3) Past Performance; and (4) Small Business Participation. At the closing of the RFP, nine proposals were received, including two proposals from contractors that did not participate in the market research process.The preliminary evaluation results are detailed in the table below:

In addition to the information provided in the table above, the CO provides you with the following narratives about the proposals received.

• Raytheon - Proposed the best technical approach. No weaknesses were found in the proposal, which included 25 strengths.
• Big Defense - Proposed the fourth best technical approach.No weaknesses are present in the proposal, which included 9 strengths.
• Little Defense - Proposed the second-best technical approach.3 weaknesses were found in the proposal, which included 31 strengths.
• Bombs R Us - Proposed the third-best technical approach.16 weaknesses were found in the proposal, which included 54 strengths. This offeror provided the most innovative approach. The risks taken by this contractor has led to many strengths and weaknesses based on potential unknowns.
• Southwest Defense - Proposal included 12 strengths and 6 weaknesses. While the proposal met the requirements, nothing about the technical approach stands out.
• Florida Comms - Proposal included 3 strengths and 0 weaknesses. While the proposal met the requirements, nothing about the technical approach stands out.
• Walmart - Proposal included 0 strengths and 10 weaknesses.Many of the issues associated with this proposal are related to lack of discussion about specific aspects of the proposal. Proposal often simply repeated requirements back by stating the offeror would meet the requirement without additional discussion. Total proposed price is $1.55B. Evaluated price is unknown because technical approach is not clear and cannot always be assessed.
• We Sell Drugs - This proposal did not directly respond to the RFP requirements. Rather than including a proposal for the required capability, this offeror proposed to sell the Government elicit substances. Total proposed price is $550M.
• Blue Mushroom - This proposal was for an alternative capability that was previously developed by a foreign nation. The contractor has an exclusive agreement with the developer of the alternative capability and seeks to serve as a pass-through entity.Total proposed price is $1.61B.While it appears the capability may meet at least some of the requirements, further testing and analysis would be necessary to come to such a conclusion. This organization's ties to unknown foreign entities also causes concern which cannot be presently assessed. The CO noticed the proposal included the name of a recently retired 37 year PEO TC2 employee, who was identified in the proposal as a key Blue Mushroom employee that will be working on the program. This employee was heavily involved in the creation of this requirement.

The CO prepares a Competitive Range Determination based on the information provided above, and in accordance with DoD Source Selection Procedures. Raytheon, Big Defense, Little Defense, and Bombs R Us are the only companies included in the competitive range.

Prompt 2 - Prepare one-page, single spaced, legal analysis. There are two parts to this analysis, each of which should be about a half page (it is up to you how much of the one-page you use for each response, but do not exceed a single page).

Part 1 -Blue Mushroom requests a pre-award debrief, during which the CO explains the ratings included above and mentions the information identified in the proposal narrative above. At the conclusion of the debriefing, Blue Mushroom personnel suggest they will be filing a protest. The CO has asked you to provide analysis legal analysis of the issues associated with the former PEO TC2 employee now working for Blue Mushroom. Given that the proposal did not provide any details about the employee beyond the fact that they now worked for Blue Mushroom, include in your analysis any facts that would need to be learned on the subject.

Part 2 -Following its pre-award debriefing, Florida Comms files a pre-award protest with the GAO challenging its exclusion from the competitive range. A major focus of this protest is on the fact that Florida Comms provided the lowest price proposal and would "provide exceptional value to the Government if it had received an award." The company also argues that it should have received more strengths and higher ratings in each evaluation factor. The CO has asked you for preliminary analysis of the protest, which will be provided to the Government PM and to contracting leadership.In your analysis, please provide: (1) discussion of protest timeliness and GAO timelines; (2) actions the Government must take upon receipt of the protest (both short term and long term); and (3) some preliminary thoughts about the efficacy of the stated protest grounds (very board thoughts - no need to go overboard analyzing the grounds of protest).