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In June 2016, AmSurg Corp. and Envision Healthcare Holdings, Inc. (Envision) announced they have signed a definitive merger agreement pursuant to which the companies will combine in an all-stock transaction. Upon completion of the merger, which is expected to be tax-free to the shareholders of both organizations, the combined company will be named Envision Healthcare Corporation and co-headquartered in Nashville, Tennessee and Greenwood Village, Colorado. The company's common stock is expected to trade on the New York Stock Exchange under the ticker symbol: EVHC. Bass, Berry & Sims served as lead counsel on the transaction, led by Jim Jenkins. Read more.

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Inside the FCA blogInside the FCA blog features ongoing updates related to the False Claims Act (FCA), including insight on the latest legal decisions, regulatory developments and FCA settlements. The blog provides timely updates for corporate boards, directors, compliance managers, general counsel and other parties interested in the organizational impact and legal developments stemming from issues potentially giving rise to FCA liability.

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GovCon Blog: Learning from Bid Protests: Generally Okay to Utilize Subcontractor Experience


January 15, 2015

Putting together a strong team for the pursuit of a government contract is a key component of modern government contracting. A team with the right mix of skills and experience will bolster a prime contractor's chance of receiving an award, but building the team is only half the battle. Fully utilizing the breadth of experience provided by all key members of the team can mean the difference between success and disappointment. One way to utilize the strength of the team is to submit the relevant past performance of key subcontractors in a proposal.

The use of a subcontractor's past performance recently was challenged in a bid protest before GAO. In Al-Razaq Computing Services, a disappointed offeror challenged the agency's evaluation of the awardee's past performance. In Al-Razaq, the awardee was a joint venture. As part of its past performance submission, the awardee joint venture submitted one contract for one of the joint venture partners, and two contracts for its subcontractor, Booz Allen. The protester argued that the agency improperly credited the awardee joint venture with the past performance of Booz Allen. GAO rejected this argument and denied the protest.

GAO stated in its decision that unless there is language in the solicitation specifically prohibiting the evaluation of a subcontractor's past performance, an agency may properly consider it in an evaluation of the prime contractor. Further, GAO cited FAR § 15.305(a)(2)(iii), which encourages procuring agencies to take into account the past performance of "subcontractors that will perform major or critical aspects of the requirement." This does not necessarily mean the agency is required to consider the subcontractor's past performance, but the agency has discretion to do so.

This decision provides another example as to why it is important for government contractors to fully understand the instructions and evaluation criteria in a solicitation. It's nice to build a great team, but not taking full advantage of the team would be a waste of valuable resources. If the solicitation does not have explicit language prohibiting the evaluation of subcontractor's past performance, or better yet explicitly states that subcontractor experience will be considered, the prime contractor certainly should take note. One of the benefits of building a great team is the prime contractor's ability to include with its proposal any strong and relevant past performance of its major subcontractors.

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