GAO Sustains TRICARE Protest On Multiple Grounds
Client Alert | 1 min read | 11.18.09
In Health Net Fed Servs., Inc. (Nov. 4, 2009), GAO sustained the protest of Health Net (represented by C&M) against a $16 billion TRICARE award because (1) the agency's past performance evaluation unreasonably gave the awardee significant credit for contracts much smaller than the contract to be awarded and improperly attributed to the awardee the past performance of the awardee's parent and its affiliates; (2) the agency's price realism evaluation failed to consider whether the awardee's staffing reflected a lack of understanding of the technical requirements; (3) the agency overlooked the risk associated with the awardee's proposed plan to hire large percentages of the incumbent workforce; and (4) the agency did not consider, as part of the technical evaluation, the cost savings associated with the protester's proposed approach. In addition to the fatal evaluation errors, GAO also determined that the awardee's use of a former high-level government employee in preparing its proposal created an appearance of impropriety based on the unfair competitive advantage stemming from the individual's earlier access to non-public, proprietary, and source-selection-sensitive information.
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Client Alert | 3 min read | 06.12.26
DOJ Guidance Backs Away From Disparate Impact Liability
On June 9, 2026, the U.S. Department of Justice (DOJ) issued a formal opinion concluding that the Equal Opportunity Employment Commission’s (EEOC) existing interpretations of Title VII of the Civil Rights Act of 1964 (Title VII) disparate-impact liability, including the Uniform Guidelines on Employee Selection Procedures (UGESP), are unconstitutional. According to the opinion, EEOC’s prior interpretations contemplate liability based on disproportionately adverse effects alone, without regard to an employer’s likely intent, rather than treating disparate impact as an evidentiary mechanism to “smoke out” intentional discrimination. DOJ found that this approach functions as a “qualified racial-proportionality mandate” that places “a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes.” The opinion fulfills one mandate of Executive Order 14281, which rejected disparate-impact liability insofar as it “creates a near insurmountable presumption that unlawful discrimination exists wherever there are any differences in outcomes among different [demographic groups].”
Client Alert | 4 min read | 06.12.26
Auto Dealers: The FTC Is Back in the Driver’s Seat — Warning Letters Signal Renewed Federal Scrutiny
Client Alert | 13 min read | 06.12.26
Client Alert | 4 min read | 06.12.26
