GAO Denies Air Force "Leeway" to Conduct Tradeoff Using Paired Proposals
Client Alert | 1 min read | 12.09.19
In a recent decision, Blue Origin Florida, LLC, GAO sustained a pre-award protest challenging the stated basis for award in an Air Force solicitation for two competitive, fixed-price contracts for space launch services. While the solicitation included evaluation criteria and their relative importance, it did not contemplate a standard source selection whereby the agency would conduct one-to-one tradeoff analyses to determine the top two best value proposals. Instead, the solicitation required award to the two offerors that, “when combined,” represented the best value to the government.
The Air Force sought to justify this approach by arguing that the top two ranked proposals might not provide the best overall value to the government if, for example, they shared common strengths and weaknesses, whereas a lower ranked proposal might possess strengths and weaknesses that complement those of a higher-ranked proposal. GAO sustained the protest, reasoning that “short of colluding with other potential offerors to coordinate their respective proposals, it is not apparent how an offeror could intelligently compete” because the offeror would be evaluated according to its general compatibility with another’s proprietary bid and not the merits of its own proposal.
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Client Alert | 5 min read | 12.12.25
Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality
On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument.
Client Alert | 8 min read | 12.11.25
Director Squires Revamps the Workings of the U.S. Patent Office
Client Alert | 8 min read | 12.10.25
Creativity You Can Use: CJEU Clarifies Copyright for Applied Art
Client Alert | 4 min read | 12.10.25
Federal Court Strikes Down Interior Order Suspending Wind Energy Development
