Stan Hinton

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Developments in Government Contracting--2007



December 31

A proposed FAR amendment would restrict the use of the commercial purchase card as a method of payment for contractors with debts subject to the Treasury Offset Program.

From January 1 through June 30, 2008, the prompt payment rate and the CDA rate will be 4.75 %. Actually, the way it is typeset in the notice is "4-3/4 per centum per annum."   

December 28

The SBA is considering waiving the nonmanufacturer rule for "all other miscellaneous electrical equipment and component manufacturing."

Congress sent the fiscal 2008 Defense Authorization bill to the President on December 19, but he is vetoing it, so it likely will be at least mid-January before we have a law.

December 27

The CoFC issued its final word in the ongoing Knowledge Connections protest, holding, among other things, that the agency's failure to follow its own Business Plan in one respect in conducting a procurement was not a material error that would entitle the protester to relief.

The SBA is proposing to amend its regulations governing small business contracting procedures as well as its procurement regulations to provide greater contracting opportunities for women-owned small businesses (WOSB). The proposed rules are lengthy and detailed. The most significant revisions are the additions of a new Part 127 (Women-Owned Small Business Federal Contract Assistance Procedures) to 13 C.F.R. and a new Subpart G to Part 134 of the same title to establish procedures for the appeal of WOSB status  and economically disadvantaged WOSB (EDWOSB) status to the SBA's Office of Hearings and Appeals (OHA). Comments are due by February 25, 2008.

December 26

FAC 2005-23 was issued today. It includes three items. The interim rule (originally published March 22) which permits religious institutions to consider the a person's religion in hiring decisions is made final without changes. The FAR (32.1000 through 32.1009) has been amended to increase the use of performance-based payments as the method of contract financing  and to improve the efficiency of such payments. Finally, an interim rule has been adopted (effective January 25, 2008) which revises FAR 23.7 and the associated solicitation/contract provisions to require use of the Electronic Products Environmental Assessment Tool (EPEAT) when acquiring personal computer products such as desktops, laptops, and monitors pursuant to the Energy Policy Act of 2005 and Executive Order 13423, "Strengthening Federal Environmental, Energy, and Transportation Management."

The SBA is waiving the nonmanufacturer rule for X-ray equipment and supplies.

December 20

A proposed FAR rule would list the situations in which airfare costs in excess of the lowest priced coach class fare available "to the contractor during normal business hours" would be allowable.

Effective January 4, 2008, the SBA is waiving the nonmanufacturer rule for various MRI and PET medical devices.

December 18

The State Department has added a section to the ITAR that lists  countries embargoed by the United Nations and prohibits arms sales to such countries.

I've neglected the GAO Contract Appeals Board, so let's catch up. In a 360+ page decision, the Board decided multiple claims of the Clark Construction Group originally submitted to the Architect of the Capitol ("AOC") and related to renovation work on the United States Botanic Garden Conservatory. The issues are too numerous for a blog such as this, but include delay, acceleration, and changes claims, critical path methodology, and home office overhead. (By the way, the Board spelled "Capitol" correctly in this decision, but incorrectly in the Hitt case (below), which also involved the AOC) In another Clark appeal involving the same project, the Board sustained Clark's objection to a $700,000 "deletive credit" unilaterally taken by the Government. In Hitt Contracting, the Board granted the Government's motion for summary judgment and denied the contractor's claim for excess costs because the solicitation and contract as reasonably interpreted did not support the contractor's claims that a change had occurred.  In Far West Graphics, the Board found the GPO reasonably terminated a contract after the contractor's refusal to provide items that conformed to the contract's specifications. Finally, in Horizon Graphics, the Board denied the claim of another GPO contractor basically because it failed to present any proof of excess costs. The Board's Rules of Procedure may be found here.

December 17

In Lockheed Martin, after a lengthy government delay in obtaining funding to pay a termination settlement proposal, the parties executed a bilateral mod when the funding became available. The mod specifically reserved Lockheed's right to pursue a claim for interest on the late payment. Lockheed filed an appeal for that payment with the Board. The Board dismissed the appeal because neither the termination proposal nor the final mod constituted a claim for interest submitted to the Contracting Officer--thus, there was no CDA jurisdiction.

In Alutiiq, LLC, the Contracting Officer wrote to the contractor extending the period within which she predicted she would issue her decision. The contractor thought the delay unreasonable and appealed well before that period ended. It had passed, however, by the time the Board issued its decision, and the Board relied on that fact to treat it as a deemed denial.

In KAMP Systems, the Board dismissed as untimely an appeal sent by Federal Express on the 90th day after the contractor received the Contracting Officer's decision. In a separate opinion, Judge Scott noted how goofy (my word) it was to count U.S. mail from the date it was postmarked but items sent by other commercial services from the date received. He also noted the rule was procedural, not statutory, and, thus, could be changed for the sake of sanity (my word again).

December 15

In Syracuse Int'l Technologies, the Government issued a purchase order, which the ASBCA found to be a unilateral contract offer, and the contractor accepted by beginning performance. However, once the deadline for delivery in the PO passed, it "lapsed," despite the Government's failure immediately to notify the contractor of this fact.

In Local Communications Network, the ASBCA found that a contract was a requirements contract despite the absence of the required clauses to this effect, so it incorporated them as a matter of law.

December 14

The State Department has issued Trade Agreements Act procurement thresholds to implement E.O. 12260.

The SBA is considering waiving the Nonmanufacturer Rule for "All Other Miscellaneous Electrical Equipment and Component Manufacturing."

The saga of the Tybrin protest continues. Centech was unsuccessful in convincing the CoFC that the agency's corrective action in response to Tybrin's successful GAO protest (see March 13 below) was unreasonable, but may have won a consolation prize in the form of bid and proposal costs.

Big Oops! Counsel violated a protective order by filing documents obtained under the order in one case on behalf of a different client in another case entirely.

December 12

The estimated costs of base closures have increased; and the estimated savings have decreased. This is the cardinal rule of governmental action, isn't it?

December 11

Sometimes, a decision might as well have "future law review article" stamped all over it. Such is the Renda Marine case.  In the 1993 Sharman case, the KO issued a decision on a government claim relating to a matter that already was well into active litigation at the Claims Court. More than a year later, the Government filed a counterclaim in the still-pending court action based on that decision. The Federal Circuit eventually threw out the counterclaim on the basis that the KO had no authority to issue the decision after the DOJ had taken over exclusive rights to litigate the case at the Claims Court and that, therefore, the KO's decision was a nullity. Clear? Not so fast, my young friends. . . . Renda Marine is well into litigation at the Claims Court when the KO issues a decision asserting government claims against Renda on the same matter pending before the Court. Renda seeks to amend its Claims Court complaint to challenge that decision. The Claims Court denies its request as untimely filed more than a year after the decision was issued. At the Federal Circuit, Renda argues that the KO had no authority to issue the original decision, which was, therefore, a nullity, citing Sharman. The Fed Cir holds Renda lost its ability to make that argument by failing to appeal the decision within the CDA time limits stated in the decision. But, if the Government had no authority to issue the decision, and if it was a nullity, then wouldn't the appeal language be a nullity, too?  The Fed Cir addresses this issue, thusly: "Only a court, after hearing argument from both a contractor and the government, may declare a contracting officer's final decision invalid. . . ." The Fed Cir, however, did hear arguments from both the contractor and the Government in this case, didn't it? Wait--those arguments must have been a nullity because they were raised too long after the null decision was issued. If only the contractor had timely appealed the null decision within the null time limits it purported to set forth, the arguments before the court would not have been null, and the court would have recognized the original KO's decision for the nullity it must have been. Quelle dommage.         

December 10

If you have the will to plow through all 263 pages (I don't), the Regulatory Information Service Center has published the semiannual Regulatory Plan and Unified Agenda for 29 federal agencies, which details significant regulations each agency plans to publish in the coming year.

December 7

DoD (DFARS Case 2001-D015) has added a clause to the DFARS that is essentially the same as the Patent Rights--Retention by the Contractor (Long Form) clause that was recently removed from the FAR because the DoD was the only agency using it (see entry at November 7 below). The new DoD clause (252.227-7038) is entitled  "Patent Rights--Ownership by the Contractor (Large Business)" and is to be used in contracts for experimental, developmental, or research work. At the same time, the DoD has removed the clause at 252.227-7034 (Patents-Subcontracts)  as no longer needed after the recent FAR changes referenced above.

DoD (DFARS Case 2007-D004) is proposing to amend DFARS to specify that the costs paid to lease government equipment for display or demonstration purposes are unallowable except in the case of FMS contracts. DoD (DFARS Case 2007-D009) also is proposing to combine its two clauses related to ground and flight risks into one clause that would be applicable to both cost-reimbursable and negotiated fixed-price contracts.

December 5

Masai Technologies (MTC) is nothing if not tenacious. It filed three GAO protests on the same procurement. The agency took corrective action in response to each of the first two. The GAO denied the the third on September 10, and MTC responded by filing a protest at the CoFC on October 4. There was no issue with timeliness in the CoFC's decision, but MTC lost on the merits of each of its three issues (the interpretation of the solicitation's requirements, the agency's refusal to accept a late modification to MTC's proposal, and  various quibbles with the price evaluation).

In the Gasa, Inc. decision, the CoFC found that, although a particular clause was "at best, awkwardly worded" and might support the contractor's position when read in isolation, the contract interpreted as a whole unambiguously supported the Government's position.

William Hooker d/b/a Georgia Bowhunters Supply (some case names are catchier than others) had a contract to trap wild hogs and beavers that were damaging the Savannah River Site. His claim arose from his fear that he was being contaminated by radioactive waste while performing his work. He put on a bare bones case-in-chief, apparently intending to establish his claim through cross-examining the Government's witnesses--a strategy that backfired when the court directed a verdict against him at the close of his case because there was "no recognizable theory of legal recovery." There's a cautionary tale here somewhere, but I'm primarily worried about how many beavers he might have shot with those bows.

In American Red Ball International, Inc., the court found it lacked CDA jurisdiction because an "Exception Agreement" was not a contract, because the contractor had not submitted a "claim" within the meaning of the CDA, and because there was no Contracting Officer's decision on a claim.

December 4

Three CBCA decisions (Pacific Legacy, Butte Timberlands, and Angel Menendez) were published. There's nothing earth-shattering in any of them, but I needed an entry to get December underway. ;-)

November 30

L-3 Communications Integrated Systems survived the Government's (and Lockheed Martin's) efforts at the CoFC to have L-3's case dismissed as untimely. Even though the actions L-3 complained of (Druyun's malfeasance) occurred more than eight years ago, the court found the plaintiff could not have known of the basis of its suit until late 2006 when the IG released its report on her shenanigans. Congratulations, Paul. 

Two other CoFC bid protest decisions were issued recently (Veracent and Emerald Coast Finest Produce). In the latter, the contractor lost its capacity to pursue its protest because it sold its assets.

November 29

GlassLock won a GAO protest against the evaluation of a task order quotation because the agency gave the awardee credit for past performance outside the five-year time limit specified in the solicitation and also gave it experience/past performance credit twice-- under the appropriate evaluation factor and again under another evaluation factor.

November 28

In the Rex Systems case, the Board dismissed  an appeal for lack of jurisdiction because the contractor's claim to the contracting officer asserted damages that were stated to be "at a minimum" a stated amount, which did not qualify as a "sum certain." The  Government first raised the issue in its post-hearing brief.  Two more recent ASBCA opinions have been published.

November 26

Arbitraje Casa de Cambio survived the Government's motion to dismiss for lack of jurisdiction when the CoFC found Tucker Act jurisdiction (despite the fact there was no CDA jurisdiction) over a breach claim involving an implied-in-fact contract and apparent authority to ratify the agreement by an agent for the USPS . The court also found that sovereign immunity did not bar the claim because the Government was not acting in its sovereign capacity. The plaintiff's attorney deserves kudos for overcoming all those hurdles. Now, let's see what happens on the merits.

November 23

FAC 2005-22 was published today. It includes two items. The first (FAR Case 2006-008) implements Section 104 of the Energy Policy Act of 2005, which provides that all acquisitions of energy consuming products and all contracts that involve the furnishing of energy-consuming products require acquisition of ENERGY STAR or Federal Energy Management Program (FEMP) designated products.The second (FAR Case 2006-007) amends FAR Parts 2, 3, and 52 to address the requirements for a contractor code of business ethics and conduct and the display of Federal agency Office of the Inspector General (OIG) Fraud Hotline Posters.

November 21

In the Pinnell Brown Construction case, the contractor received two, slightly differently worded decisions by the Contracting Officer about three weeks apart, each one on the same subject, and each notifying the contractor of its right to appeal right within 90 days. The contractor filed an appeal within 90 days of the second one; the agency (VA)  claimed the appeal was untimely because it was not within 90 days of the first one. The CBCA found the appeal timely because the agency's actions had created the confusion.

November 20

General Dynamics Information Technology won a bid protest against an award to Raytheon because the GAO found the agency's price evaluation of Raytheon's proposal  irrational.

November 15

Proposed changes to FAR Part 31 would permit contractors to measure accrued Post Retirement Benefit (PRB) costs using either the criteria in Internal Revenue Code 419 or the criteria in Financial Accounting Standard (FAS) 106. Currently, when contractors use the accrual method, the regs require them to use FAS 106 to account for PRB costs, which presents them with a dilemma: whether to fund the entire FAS 106 amount to obtain Government reimbursement of the costs, regardless of tax implications, or fund only the tax deductible amount and not be reimbursed for the entire FAS 106 amount under their government contracts. The introductory notes to the proposed rules acknowledge they may increase costs to the Government.

The SBA is considering waiving the Nonmanufacturer Rule for manufacturing of MRI (magnetic resonance imaging) electromedical and electrotherapeutic diagnostic  equipment; MRI medical diagnostic equipment; medical ultrasound equipment; patient monitoring equipment (e.g., intensive care coronary care unit); and PET (positron emission equipment tomography) scanners.  The SBA also is considering waivers for the  manufacturing of Irradiation Apparatus:, CT/CAT scanners; Fluoroscopes; Fluoroscopic X-ray apparatus and tubes; X-Ray Generators;  and X-ray irradiation equipment. If granted, the waivers would allow otherwise qualified regular dealers to supply the products of any domestic manufacturer on a Federal contract set aside for small businesses; SDVOSBs or SBA’s 8(a) Business Development Program.

November 14

Proposed rules would amend the FAR "at the request of the Department of Justice (DoJ) , in order to require contractors to have a code of ethics and business conduct, establish and maintain specific internal controls to detect and prevent improper conduct in connection with the award or performance of Government contracts or subcontracts, and to notify contracting officers without delay whenever they become aware of violations of Federal criminal law with regard to such contracts or subcontracts." This is the continuance of consideration of proposed rules in this area (see blog entry at February 16 below).

At one reader's suggestion, I have added an RSS feed link (above left). He has tested it and assures me it is working, but I don't know much about these things, so if anybody has trouble with it, please let me know. I'll try to keep it current, but I won't guarantee that it will be updated with every single development listed on this page.

November 13

We finally have a DoD Appropriations Act for fiscal 2008.

The Severin doctrine was front and center in the CBCA's decision on a motion for summary judgment in the Acquest Government Holdings appeal.

November 10

Audio recordings of oral arguments before the Federal Circuit are available online. I found especially interesting the audio of the Blue & Gold Fleet bid protest, which, inter alia, resulted in a holding extending to the Court of Federal Claims the GAO's longstanding rule that protests based on patent ambiguities in a solicitation must be filed in the court before the bidding process closes. It's Friday night, and I'm listening to audio files of federal court oral arguments. Get a life, Hinton. 

November 9

Another successful GAO protest (Earl Industries)--that makes two for November already.

November 8

In the Weeks Marine decision, the CoFC sustained a pre-award protest against the Corps of Engineers' decision to switch from its historical practice of sealed bidding to the use of a multi-year ID/IQ contract for dredging operations. Given the avalanche of multi-year ID/IQ contracts in government contracting in recent years, could this decision be the beginning of a paradigm shift in the way courts view this contracting method? 

In a final rule that generated numerous and lengthy comments and critiques, the DoD has added a paragraph 212.570 to the DFARS, which reads as follows: "Paragraph (a)(1) of 10 U.S.C. 2533b, Requirement to buy strategic materials critical to national security from American sources, is not applicable to contracts and subcontracts for the acquisition of commercially available off-the-shelf items." The new rule also adds the following new paragraph (q) to the list of exceptions under Part 225 ("Foreign Acquisition") of the DFARS: "(q) Acquisitions of commercially available off-the-shelf items containing specialty metals. This exception does not apply when the specialty metal (e.g., raw stock) is acquired directly by the Government or by a prime contractor for delivery to the Government as the end item." 

November 7

FAC  2005-21 includes the following items. Item I: an interim rule implementing the SAFETY Act, which provides incentives for the development and deployment of anti-terrorism technologies. Item II: a final rule establishing procurement preferences for the use of biobased products (the list of bio-preferred products can be found here). Item III: a final rule, effective December 7, rewriting FAR Part 27 ( Patents Data and Copyrights) allegedly using "plain language." Item IV: a final rule removing outdated FACENET references from the FAR. Item V is an interim rule exempting certain contracts involving commercial-type services from the Service Contract Act, to be consistent with a DOL rule at 66 Fed. Reg. 5327 (Jan. 18, 2001). Item VI: a second interim rule implementing Congressional amendments to the Stafford Act and and establishing requirements for transitioning work to local firms in the geographic area affected by the disaster or emergency and for justifying expenditures to entities outside the major disaster or emergency area. Item VII: a final rule, among other things, removing the term R.S. Means Cost Estimating System  from FAR 22.404-12(c)(2).    

The GAO sustained a protest partially on the basis that it believed the agency's stated reason for canceling a solicitation after a protest was filed was merely a " pretext." 

November 5

The Commerce Department has revised the Commerce Control List (CCL) of the Export Administration Regulations (EAR) to harmonize it with the Wassenaar Arrangement Plenary Agreement.

Don't you just hate it when all your great arguments go for naught? In Dick Pacific, the ASBCA wrote: "Because the contract is not ambiguous we do not reach the issues of patent ambiguity, reliance, duty of inquiry, the doctrine of contra proferentem, or the parties' other contentions." 

November 3

The  SBA OHA decisions page is now up to date. Two decisions are especially noteworthy because each explicitly overrules a longstanding precedent: (i) the ASRC Airfield and Range Services decision, overruling K-Mar Industries (a 1994 decision concerning the need to generate revenues to be considered to be in business); and (ii) the Ross Aviation decision, overruling Spectrum Landscape Services (a 1998 decision regarding mootness of an appeal after a contract is awarded).  

November 2

Speaking of catching up, I've added a new page listing and linking to current year decisions of the SBA's Office of Hearings and Appeals with the subject areas of each. I'm still adding more decisions, but they should all be there in a couple of days. 

The CoFC found actions by Morse Diesel International warranted  "maximum civil penalties and damages under the Anti-Kickback Act of 1986, 41 U.S.C. §§ 51-58 . . . and maximum civil penalties and treble damages under the False Claims Act, 31 U.S.C. § 3729(a)(1), (a)(2) . . . in the total amount of $7,292,213."

November 1

Cost or pricing data--A public meeting will be held on November 15, 2007, from 9:00 a.m. to 1:00 p.m. EST, in the General Services Administration Building Auditorium, 1800 F Street, NW, Washington, DC, 20405 to discuss FAR Case 2005-036 (originally published at 72 Fed Reg 20092 (Apr. 23, 2007). The proposed rule would revise the definition of "cost or pricing data"; change the phrase "information other than cost or pricing data" to "data other than certified cost or pricing data"; add a definition of "certified cost or pricing data" to make the terms and definitions consistent with 10 U.S.C. 2306(a) and 41 U.S.C. 254(b); and clarify the need to obtain data other than certified cost or pricing data when there is no other means to determine fair and reasonable pricing during price analysis.

I've neglected the PSBCA so far in 2007, so let's catch up. In Harrigill, the Board denied a government motion to dismiss a the contractor's appeal from a default termination even though the government breaches which the contractor alleged excused its default occurred years before it repudiated the contract and was terminated for default because the Board "looks upon motions to dismiss an appeal for failure to state a claim with disfavor and will rarely grant them." In Derrick van Greene, the Board upheld one default termination but overturned another because, inter alia, the Government had acknowledged part of the schedule was impossible to meet and had not replaced it with one that was doable. The termination in Richard Jackson was upheld because the contractor's delays were far in excess of delays that could be attributed to the Government's actions. Baer Real Estate's claim for excess construction costs was denied because it failed to establish the required elements for a claim based on the Government's superior knowledge of subsurface conditions. In Hakala Transport, the Board dismissed an appeal because a request to have the Board direct that the procedures for the delivery of Registered Mail to unattended post offices be modified was not a claim within the meaning of the CDA. In Valley Realty, the Board interpreted the meaning of the "Minor Repairs" clause in denying the claim of the Government's lessor. The appeals of Denise Baiamonte were dismissed for lack of jurisdiction (even though the Contracting Officer had issued decisions on them) because they were essentially protests, and she had no contracts with the Postal Service. Frank Baiamonte suffered a similar fate. In Nova Express, the Board upheld a default termination but rejected the Government's claim for excess reprocurement costs. 

October 31

The SBA is considering waiving the nonmanufacturer rule for irradiation apparatus manufacturing. The SBA also is considering changing size standard for the Heating Oil Dealers industry (North American Industry Classification System (NAICS) code 454311)) from $11.5 million in average annual receipts to 50 employees, and the size standard for the Liquefied Petroleum Gas (Bottled Gas) Dealers industry (NAICS code 454312) from $6.5 million in average annual receipts to 50 employees. Finally, the SBA is proposing to incorporate SBA’s risk-based lender oversight program into SBA regulations in order to provide oversight of financial institutions that originate and manage SBA guaranteed loans.

GSA issued various amendments to the FTR (mostly technical or grammatical corrections).

Proposed FAR amendments would implement the government-wide Enterprise Software Licensing Program (SmartBUY) for acquiring software and software maintenance.

The GAO sustained a protest by Executive Protective Security Service against issuance of a task order because the agency's determination that the awardee was doing business primarily in the area affected by a disaster (pursuant to the Stafford Act) was unreasonable.

October 30

Effective for one year beginning November 14, the DoD is waiving the limitations  of 10 U.S.C. 2534 to allow procurement of 8 listed items (e.g., enclosed lifeboats) from sources in the United Kingdom.  

October 29

HUD adopted a final rule (48 C.F.R. 2409.7001) applying its prior debarment and suspension requirements to its procurement contracts.

A recent CoFC decision contains an exhaustive discussion of the various issues involved in an EAJA application by an intervenor in a successful bid protest. The intervenor's application was successful, but the Government had fought it in almost every possible way.

We need periodic reminders that the doctrine of apparent authority doesn't usually work in government contracts. In the Corners and Edges case, assurances by the Government's Project Manager were unavailing because he was not a Contracting Officer.  

October 27

A special task force of Army investigators is investigating corruption in Iraq contracts, beginning with contracts issued by an Army office at Camp Arifjan in Kuwait that service officials have identified as a "hub of corruption." 

October 26

The contractor doubtless was frustrated with the ASBCA's reasoning in the Paranetics case, in which the contractor alleged delays on the basis that the only item mentioned on a spec drawing (which the contractor characterized as a sole source item) was unavailable. The ASBCA denied the claim because the drawing did not state it was a sole source drawing. However, in the same paragraph, the ASBCA also rejected the contractor's claim that the drawing was defective for not mentioning more than one item; the Board explained that mentioning only one source was appropriate because the only other possible source was not available until long after contract award. Catch-22?

The ASBCA also published three other decisions: (i) Lockheed Martin Corp., involving CAS 409.50 and FAR 31.205-16 treatment of losses from land sales; (ii) Conner Construction, concerning an allegation that a base closure was a breach of the Government's implied duty not to hinder performance under the "Changes" clause (it wasn't because it was a sovereign act); and (iii) Zulco, in which the Board upheld a default termination despite the contractor's argument, inter alia, that the award was late (the Board reasoned that the contractor had never attempted to disavow the award before the dispute arose).     

October 25

The old English teacher in me cannot resist pointing out this atrocious sentence from the CoFC's opinion in the McKing Consulting Corp. pre-award bid protest: "Indeed, one can reasonably infer, for instance, that the reason certain concerns or questions that Rivera had were no longer issues was because Rivera himself resolved his own problems or had his questions concerning the procurement answered by various dental consultants of which he had been in contact with." Where to begin? "of which he had been in contact with"!! "the reason . . . was because . . ." !!!  The latter is my favorite pet peeve. When you write (or say) "the reason is because," you are stating why the reason exists. You are not stating what the reason is. If you want to convey "what" the reason is, then you should write "the reason is that. . . ." 

October 18

Three ASBCA decisions have been published so far this month. In one, the Board agreed with the contractor that the Contracting Officer delayed unreasonably in issuing a decision on a claim; in another, the Board decided quantum for both a contractor's claim and the Government's (larger) counterclaim; in the third, the issue was the alleged delays in notice of cost overruns under the Limitation of Costs clause. 

In Charles Engineering Co., the CBCA examined whether a prime could submit a claim for the costs of litigation/arbitration with its subcontractor.

October 16

The Air Force's second highest ranking procurement official was found dead in what may be a suicide. Earlier this month the Washington Post published an article questioning some of his actions.

October 15

The CWT/Alexander Travel case includes a good discussion of the application of the cardinal change theory in bid protests.

The Postal Service made several revisions to its regulations regarding the purchase of property and services to comply with some GAO recommendations.

October 9

The CAFC sent the Bath Iron Works case back to the ASBCA because the Board incorrectly concluded that faulty flushing of some pipes constituted a defect in the vessel within the meaning of the insurance clause. 

October 3

The CoFC's decision in The Centech Group bid protest includes a good discussion of the difference between judicial review of an agency's procurement action (which the Court has jurisdiction to undertake) and appellate review of a GAO recommendation (which it does not). 

Another interesting bid protest decision is the Axiom Resource Management case, which involves issues of conflicts of interest and unfair competitive advantage and plenty of black letter discussion of each. The court has requested the FTC's Bureau of Competition to submit its views on the issues raised in the case.

October 2

One firm filed a protest about a year late, conceded it was ineligible for an award, and asked the CoFC for a remedy that would violate federal procurement law.

October 1

The Federal Circuit recently remanded a case to the CoFC to consider the plaintiff's claim that  the Government's program favoring minority suppliers violates the Equal Protection Clause of the Fifth Amendment.

September 27

Northern States Power is entitled to recover more than $100,000,000 costs of mitigation after a partial contract breach by the Government.

September 25

The GAO sustained its first protest in a spell, this one involving correction of a bid mistake.

September 24

The ASBCA issued its latest decision in the long-running battle royale between The Swanson Group and the Government.

September 23

I'm a little late mentioning it, but (in sustaining a post-award bid protest) Judge Lettow included a thorough and extremely well-reasoned discussion of the history and meaning of the FAR's "late is late" rule in the Geo-Seis Helicopters decision. 

September 20

The Federal Transit Administration (DOT) issued extensive regulations to implement various Buy America requirements of  "The Safe, Flexible, Efficient Transportation Equity Act."

September 19

Some interesting CAS 412, 413, and 414 issues were addressed in a recent CoFC decision involving General Motors Corp. 

September 14

In DLT Solutions, the Government argued (unsuccessfully, thank goodness) that the Board's rule extending the period for appealing a Contracting Officer's decision to the next business day when the 90th day falls on a weekend or a holiday impermissibly extends the statutory limit on such appeals. 

In Arko Executive Services, the CoFC held for the Government because: "This court need not paint the lily." I'm not sure what that metaphor had to do with the court's reasoning; nevertheless, I really like the sound of it and plan to use it at the first opportunity.

September 10

The State Department has issued a final rule regarding security issues for IT systems.

September 6

DoD has (i) adopted, without change, the interim rule specifying DoD-unique acquisition flexibilities that may be used to purchase supplies and services during emergency situations; (ii) adopted, again without change, the interim rule limiting situations in which major weapons systems may be purchased as commercial items; (iii) adopted without change the interim rule clarifying procedures for reimbursing labor costs on non-commercial time-and-materials and labor-hour contracts;  (iv) published an interim rule concerning assessing technical data needs when purchasing major weapons systems and subsystems; (v) issued a final rule prohibiting the DoD from entering service contracts for military flight simulators absent certain waiver criteria; (vi) extended until September 30, 2009, the period in which private contractor security guards may be used on military facilities to respond to terrorist situations; and (vii) issued a proposed rule regarding evaluating offers to utilize members of the Selected Reserve to perform contracts as individuals or as subcontractors.

The FAR has been amended to require contractors to report subcontract awards to a public database as a pilot program in accordance with the Federal Funding Accountability and Transparency Act of 2006.

September 5

Raytheon lost a CAS 413 decision at the Board; two other ASBCA decisions were published.

September 4

The GAO gave Lockheed Martin and Sikorsky another victory after they protested the corrective action the agency took in response to their earlier successful protest. 

August 31

The CoFC set aside and dissolved the Forest Service's override of an automatic stay related to a GAO protest and permitted the protest to continue at the GAO with the stay intact. 

August 29

The SBA has amended its small business size regulations by incorporating the Office of Management and Budget’s (OMB) 2007 modifications of the North American Industry Classification System (NAICS) in its table of small business size standards.

August 28

DoD  has issued an interim DFARS rule to establish an evaluation criterion concerning experience for use in obtaining carriage of cargo by vessel

August 23

Another CoFC decision regarding standing to bring pre-award protest; see August 15-16 entries below. 

August 22

A proposed FAR amendment has been published, which would amend the language in Contracting Officers' decisions to reflect the revised monetary ceiling on the availability of the small claims procedures for small businesses as required by John Warner National Defense Authorization Act.

August 18

The CAFC's decision in the Cath-dr/Balti case addresses, inter alia, whether the Contracting Officer's decision could ratify a change after contract completion, as well as issues involving express and implied authority.

August 17

Federal Acquisition Circular 2005-19, containing numerous amendments to the FAR, was published today, beginning on page 46324 of the Federal Register. Among the many subjects covered by the FAR amendments are: reporting of purchases from overseas sources, the Buy American Act, Free Trade Agreements, emergency acquisitions, online representations and certifications, small business credit for Alaska Native Corporations and Indian Tribes, lobbying restrictions, and the requirement to purchase approved products for personal identity authentication.  

August 16

The GAO sustained a protest because the successful offeror's proposed helicopter could not meet the solicitation's payload requirements without exceeding the manufacturer's payload limitations.

Avoid the temptation to read the Shirlington Limousine decisions (referenced immediately below) as precluding court "review" of a GAO decision. See the just-published CoFC decision in the Grunley Walsh case, in which the court essentially overturned the GAO's decision in the Caddell Construction bid protest, as contravening the plain meaning of a statute. 

August 15

In its first and second Shirlington Limousine decisions, the CoFC interpreted the CAFC's decision in the Rex Service Corp. case to mean that filing a pre-bid protest at the agency or GAO does not give a protester standing to appeal an adverse ruling on that protest to the CoFC if it does not meet the court's independent timeliness requirements.

The State Department issued various technical corrections to its acquisition regulations.

August 14

DoD proposes a DFARS amendment to require use of the Wide Area Work Flow-Receipt and Acceptance (WAWF-RA) electronic system for submitting and processing payment requests under DoD contracts. Comments on the proposed rule are due by October 15, 2007.

August 13

Another issue that never dies is the distinction between a deductive change and a convenience termination.

August 10

The Antideficiency Act is one of the significant distinctions between government and commercial contracting, and, in the JJA Consultants case, that subject, along with the Competition in Contracting Act, the bona fides needs rule, and the Recording Statute, among others, arose from the issue whether the Government promised to exercise options in return for consideration from the contractor.   

August 8

OFCCP has published new regulations concerning affirmative action and nondiscrimination regarding disabled veterans, recently separated veterans, other protected veterans, and armed forces service medal veterans, which become effective on September 7, 2007, for covered contracts and modifications entered into after December 1, 2003.

August 6

The GSA has revised various CONUS lodging and meal daily allowances in the Federal Travel Regulation.

August 3

One of the first cases they threw at me as a baby lawyer almost 30 years ago involved cross-contract setoff issues. The Federal Circuit just decided the J.G.B. Enterprises case involving similar issues. 

August 2

DFARS has been amended to implement certain Berry amendment requirements concerning restrictions on foreign sources of clothing and related items and publicizing requirements concerning such restrictions.

DFARS also has been amended to delineate requirements that must be met before a tiered evaluation may be used.

DoD is proposing to amend DFARS to provide for interim payments under cost reimbursable contracts  for services within 30 days instead of the current 14 days.

DoD also is proposing changes to its Item Identification and Valuation clause.

July 27

The SBA has issued a proposed rule changing the way it calculates the number of employees for size purposes.

July 24

More termination issues than you can shake a stick at: CDA, duty to proceed, cardinal change, repudiation, capacity to sue, breach issues on both sides, contract interpretation, both state and federal law issues, and on and on. See it all in the Keeter Trading case.

July 17

The State Department amended the ITAR Munitions List Category XV--Spacecraft Systems and Associated Equipment.

HUD issued a proposed rule re debarment and suspension procedures applicable to rocurement contracts.

July 16

Some interesting CAS issues were decided in a recent Lockheed Martin case.

In The Boeing Co., the CBCA discussed the allowability of defense costs in a contract involving a violation of the False Claims Act.

July 6

The EEOC has issued a final rule under the ADEA to comply with the Supreme Court's decision in General Dynamics Land Systems, Inc. v. Cline. The new regulations provide that only discrimination based on old age is prohibited and that employers are not prohibited from favoring relatively older individuals. 

July 5 

The GSA issued an interim rule establishing the rules of procedure for the CBCA. 

The FAR has been amended to include additional requirements for small businesses to re-certify their size status at various times during long-term contracts. 

July 4

The GAO announced two, successful bid protests: TVI Corp. (which was originally decided in April 2006; sometimes those redactions take awhile) and Caddell Construction (which involved construction of the Omnibus Diplomatic Security and Antiterrorism Act of 1986).

July 3

The OFPP has issued a final rule exempting T&M and Labor Hour contracts for commercial items from the application of Cost Accounting Standards. 

ACS (Affiliated Computer Services) has agreed to pay $2.6 million to settle allegations that it overcharged on some government contracts. 

July 2

The Federal Circuit recently decided some interesting issues regarding the scope of a termination for convenience. 

July 1

A recent decision from the Court of Federal Claims reminds one why it is important to stay on the right side of the law of government contracting.  

June 29

The Postal Service Board of Contract Appeals has issued revised rules regarding small (expedited) claims and accelerated proceedings; NASA has amended its FAR Supplement  to clarify factors for award fee evaluation and for documenting cost/benefit analyses on award fee contracts.

June 26

The Department of State added a new solicitation provision and contract clause to its procurement regulations to implement requirements regarding security issues for information technology systems, as required by the Federal Information Security Management Act of 2002 (FISMA).

June 21

Mountain Valley Lumber is an interesting CBCA issued an interesting decision regarding  monetary sanctions for discovery violations. 

June 19

The DOE's Office of Energy Efficiency and Renewable Energy has published proposed rules re the procurement of energy-efficient products by the Government.  

June 18

The GAO decided that asking questions regarding some offerors' subcontracting plans and permitting subsequent revisions constituted discussions, but all I can think about is how difficult it must have been obtaining an agreed-upon redacted version from this cast of thousands. Speaking of which, the GAO just issued the redacted version of a decision issued way back in August 2005.

June 14

The threshold for CAS applicability has been increased to $650,000 to match TINA. The CAS Board is also proposing adding a CAS clause for use in contracts awarded to foreign firms. 

June 13

A final rule has been adopted re CAS coverage for UK contractors.

June 12

I love a good test of wills: GAO sustains initial protest and recommends new price/technical trade-off; agency "complies" with same result; GAO sustains second protest. Take that!

June 7

There's lots of black letter law regarding recovery of protest costs at the GAO in the T Square Logistics Services  opinion.

May 31

Reading the "Relevant Facts and Procedural History" section of the ATK Thiokol decision reminds one how efficiently litigation resolves disputes. 

May 25

The Prompt Payment Act continues to be one of the Government's least favorite obligations: witness Judge Braden's lecture in Sarang Corp. v. United States.  

May 24

The Energy Department issued revised regulations re cooperative audit arrangements for management and operating contracts.

May 15

Significant revisions have been made to various FAR provisions covering government property. 

May 3

In the continuing saga of the A-12 default termination, the CoFC upheld the termination on remand.

April 30

The DoD and FAR (among others) semi-annual agendas were published.

April 26

Several amendments were published to the DFARS, relating to DOL wage determinations, small business programs, excessive pass-through charges on subcontract costs, Guam military construction, and separation of government procurement functions to ensure acquisition integrity.   

April 23

A proposed rule would add/change definitions related to cost or pricing data; the due date for comments on the proposed rule regarding a contractor code of ethics has been extended. 

April 11

ITT-Night Vision Division has been debarred for three years pursuant to the ITAR under the AECA.

April 1

More revised per diem rates--this time, for non-foreign, overseas travel.

March 29

The GSA awarded Networx contracts to AT&T, MCI dba Verizon, and Qwest. The GAO sustained a protest by L-3 Communications Titan Corp. against an Army evaluation. 

March 27

The OFPP issued guidance to all agencies concerning the maximum allowable senior executive benchmark compensation for federal contracts for FY 2007.

March 26

The GSA has revised the FTR to change the per diem/lodging rates for quite a few locations.

March 22

Several FAR amendments were published today, including the final rule implementing the DOL's Wage Determinations Online website and directing federal contracting agencies to obtain wage determinations from that site (or using the e98 process instead of paper forms 98, 98a, and 99, which are deleted from the FAR).

March 21

A proposed rule would amend the FAR to require a searchable, public database of certain subcontract awards on federal government contracts.

March 20

The Navy has adopted a policy authorizing Contracting Officers to use binding arbitration for resolving procurement contract disputes.

March 13

The GAO sustained a protest by Tybrin Corp. because the successful offeror planned subcontract efforts in excess of those permitted by the Limitation on Subcontracting clause.

March 10

Effective today, the DoD has suspended (for one year) its 10% price evaluation preference for SDBs.

March 8

The Office of Government Ethics issued revised regulations exempting certain senior government positions from the one-year post employment conflict-of-interest restrictions.

February 28

February has been a busy month for bid protest decisions at the Court of Federal Claims, including: (i) Information Sciences Corp. ; (ii) Emerald Coast Finest Produce; (iii) Hamilton Sunstrand Power Systems; (iv) Flyaway Farms and Kennels; (v) Dismas Charities; and (vi) Chant Engineering

February 26

After an unusually lengthy string of protest denials, the GAO sustained an important protest by Sikorsky Aircraft Company and Lockheed Martin Systems Integration-Owego against the Air Force's award to The Boeing Company of a contract for the Combat Search and Rescue Replacement Vehicle because the Air Force did not evaluate "operation and support" costs in the manner required by the solicitation. 

February 23

AM General won a motion to vacate the ASBCA's prior decision in favor of the Government in a CAS 418 case.

February 16

A proposed FAR rule would establish uniform policies contractor code of ethics and business conduct, responsibility to avoid improper business practices, and procedures for displaying an agency OIG Fraud Hotline poster to facilitate the reporting of wrongdoing in Federal contracting.

The CAFC affirmed the ASBCA's rejection of a claim because the contractor's  termination settlement proposal was not filed on time.

February 13

The US Agency for International Development proposes to consolidate all its regulations for personal services direct contracts into one appendix.

Miscellaneous technical amendments were made to the FAR.

In the North Star Steel Co. case, the CAFC reversed the CoFC because the latter had not properly applied the "failure to negotiate in good faith" standard as a test for breach of contract.  

February 12

Several amendments to the DFARS were issued, involving: (i) aviation into-plane reimbursement cards; (ii) free trade agreements involving Honduras, El Salvador, and Nicaragua; (iii) Berry amendment exceptions involving perishable food and seafood; (iv) procedures for protests, disputes, and appeals, (v) radio frequency identification tags; and (vi) security-guard services contracts.

DoD also proposes to amend the DFARS to address DoD-unique requirements associated with Online Representations and Certifications applications.

February 7

The SBA denied a request to waive the nonmanufacturer rule for Demountable Cargo Containers Manufacturing (Dry Freight Containers/Connex Boxes).

The State Department made certain changes to the ITAR relating to Libya and Venezuela

February 6

The DoD corrected some previously published per diem rates for overseas, non-foreign travel.

February 1

A proposed rule would eliminate references to FACENET in the FAR.

GSA is amending the GSAR  to implement Section 833 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109–364). Section 833 amends 40 U.S.C. 502 to authorize the Administrator of General Services to provide to state and local governments the use of Federal Supply Schedules of the GSA for purchase of products and services to be used to facilitate recovery from a major disaster, terrorism or nuclear, biological, chemical, or radiological attack.

January 31 

The State Department proposes to amend its acquisition regulation to permit "non-US citizen locally employed staff" to be designated as Contracting Officers.

The ASBCA issued three decisions in January concerning CDA jurisdictional issues: (i) Environmental Safety Consultants (timeliness of claim); (ii) Lockheed Martin Aircraft Center (sum certain); and (iii) Dick Pacific (timeliness of appeal).

A successful protester recovered its proposal preparation costs at the CoFC. 

January 30

The GSA amended the FTR to change the mileage reimbursement rate for use of private autos to $0.485 per mile.

January 29

Among other things, the CAFC held in the Bianchi case that the CoFC had Tucker Act jurisdiction to hear a claim for a breach of a settlement agreement.

January 26

The United States agency for International Development proposes to amend its acquisition regulations to provide additional authority for contracting officers to monitor compliance with subcontracting plans

The SBA proposes to amend the definition of "employee" for purposes of its HUB Zone program. 

Morse Diesel was found liable by the CoFC for various violations of Anti-Kickback Act, the False Claims Act, and the Forfeiture of Fraudulent Claims Act.

January 22

DoD published an interim DFARS rule to implement section 833(b) of the National Defense Authorization Act for Fiscal Year 2006, which expands the foreign source restrictions applicable to the acquisition of clothing in the so-called Berry Amendment to also include clothing materials and components.

DoD also issued a final rule to add policy and a required contract clause requiring contractors to provide prompt notice of potential safety issues under DoD contracts.

Finally, DoD issued an interim rule to provide a single reference to DoD-unique procedures that may be used to facilitate acquisition of supplies and services during emergency situations.

DoD also issued proposed rules concerning information assurance requirements and taxpayer identification numbers.

January 17

After a fight lasting many years (and six different judges), Boeing (as successor in interest to Rockwell International) won an award fee case at the CoFC, involving (among other issues) apparent authority.

January 6

Effective today, jurisdiction is transferred from the former BCAs for the GSA and the Departments of Agriculture, Energy, HUD, Interior, Labor, Transportation, and VA to the Civilian Board of Contract Appeals (CBCA), pursuant to the National Defense Authorization Act for FY 2006. The only other remaining boards are the ASBCA, the Postal Service Board, and the TVA's Board. See, e.g., the notice from the Department of Homeland Security. 

January 5

The SBA issued a notice of intent to waive the nonmanufacturer rule for re-refining used petroleum lubricating oils.   

 

This website links to resources on the web concerning government contracting. It is not intended to provide legal advice. Moreover, I do not vouch for the completeness, currency, or accuracy of the sites to which it links. If you have comments, suggestions, or corrections, please email me.