Government employees who move to the private sector may have better luck bidding on contracts for the work they used to be involved with, thanks to a recent court decision by the U.S. Court of Federal Claims.
“It’s major. It’s a milestone in judicial review,” said Christopher R. Yukins, associate professor of government contracts law and co-director of the Government Procurement Law Program at George Washington University Law School.
Alexandria-based CNA, a nonprofit research organization, applied for a contract in 2007 with the National Institutes of Health to examine a wide range of environmental effects on the development of about 100,000 children from before birth to age 21.
CNA was bidding for the Montgomery County study center location, one of 105 sites across the country working on the National Children’s Study.
CNA’s proposal listed Dr. Sarah L. Friedman as the principal investigator. Friedman had worked for 15 years at the National Institute of Child Health and Human Development, a part of the NIH. She had been the team leader for a group working on recommendations for protocol and social environmental measures for one of the 21 areas the study will cover. She left in March 2006, joining CNA the following month.
Office of Government Ethics regulations, however, bar former government employees — those who had “personally and substantially” been involved in a matter — from working on that same matter as a contractor. Because of Friedman’s involvement, the Department of Health and Human Services threw out CNA’s bid. CNA filed a protest with the court at the end of 2007.
In January, the court vacated the original decision and required HHS to take a closer look at its reasoning.
HHS responded in March, standing by its decision and adding that the 2008 bid would most likely face the same outcome. CNA filed another protest, this time for the 2008 contract, and at the end of last month, the court ruled in CNA’s favor, forcing HHS to consider the bid.
The court noted that Friedman was only one of 200 scientists and 2,500 personnel involved in the planning stages for the study, and CNA would play a relatively small role in collecting data through standardized methods that wouldn’t require subjective influences.
“The government needs individuals with expertise that they’ve developed in government service,” said Alex D. Tomaszczuk, a partner in Pillsbury’s Government Contracts & Disputes practice who counseled CNA in its protest.
Yukins, of counsel with Arnold & Porter LLP, said the government is outsourcing more services because its work force is aging and shrinking, and the services required by the government have become more “technologically complex.”
