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.
January 1 through June 30, 2008, the prompt payment rate and
rate will be 4.75 %. Actually, the way it is typeset in
the notice is "4-3/4 per centum per annum."
The SBA is
considering waiving the nonmanufacturer rule for "all
other miscellaneous electrical equipment and component
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
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.
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.
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.
The State Department has added a section
to the ITAR that lists countries embargoed
by the United Nations and prohibits arms sales to such
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.
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.
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
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).
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.
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.
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
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
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?
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.
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.
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
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
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
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.
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.
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. ;-)
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,
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.
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.
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.
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.
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
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.
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.
General Dynamics Information Technology won a bid
protest against an award to Raytheon because the GAO found the
evaluation of Raytheon's proposal irrational.
changes to FAR Part 31 would permit contractors to measure
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
(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
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).
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.
have a DoD
Appropriations Act for fiscal 2008.
Severin doctrine was front and center in the CBCA's decision
on a motion for summary judgment in the Acquest
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.
successful GAO protest
(Earl Industries)--that makes two for November already.
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
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."
2005-21 includes the following items. Item I: an interim
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
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
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 "
Commerce Department has revised the Commerce
Control List (CCL) of the Export Administration
Regulations (EAR) to harmonize it with the Wassenaar
Arrangement Plenary Agreement.
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
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).
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.
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."
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.
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
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.
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
The SBA is
considering waiving the nonmanufacturer rule for irradiation
apparatus manufacturing. The SBA also is considering
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.
various amendments to the FTR
(mostly technical or grammatical corrections).
FAR amendments would implement the government-wide Enterprise
Software Licensing Program (SmartBUY) for acquiring software
and software maintenance.
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.
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.
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
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
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
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. . . ."
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.
Engineering Co., the CBCA
examined whether a prime could submit a claim for the costs of
with its subcontractor.
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.
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.
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
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).
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.
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
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
States Power is entitled to recover more than $100,000,000
costs of mitigation after a partial contract breach by the
The GAO sustained
its first protest in a spell, this one involving correction of
a bid mistake.
issued its latest decision in the long-running battle royale
Swanson Group and the Government.
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
Federal Transit Administration (DOT) issued extensive
regulations to implement various Buy
America requirements of "The Safe, Flexible,
Efficient Transportation Equity Act."
412, 413, and 414 issues were addressed in a recent CoFC
decision involving General Motors Corp.
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
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.
The State Department has issued a final rule
issues for IT systems.
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
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
The FAR has been amended to require contractors to
awards to a public database as a pilot program in
accordance with the Federal Funding Accountability and
Transparency Act of 2006.
Raytheon lost a CAS
413 decision at the Board; two other ASBCA decisions were published.
gave Lockheed Martin and Sikorsky another victory after they
protested the corrective
action the agency took in response to their earlier
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.
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.
has issued an interim DFARS rule to establish an evaluation
criterion concerning experience for use in obtaining carriage
of cargo by vessel.
regarding standing to bring pre-award protest; see
August 15-16 entries below.
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.
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
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
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.
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.
In its first
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
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.
that never dies is the distinction between a deductive change
and a convenience termination.
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.
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.
The GSA has revised various CONUS lodging and meal
daily allowances in the Federal
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.
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.
The SBA has issued a
proposed rule changing the way it calculates the number of
employees for size purposes.
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
The State Department amended the ITAR Munitions
List Category XV--Spacecraft Systems and Associated
HUD issued a proposed rule re debarment
and suspension procedures applicable to rocurement
Some interesting CAS
issues were decided in a recent Lockheed Martin case.
Boeing Co., the CBCA discussed the allowability of defense costs in a
contract involving a violation of the False Claims Act.
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.
The GSA issued an interim
rule establishing the rules of procedure for the
The FAR has been amended to include additional
requirements for small businesses to re-certify
their size status at various times during long-term
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).
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.
The Federal Circuit recently decided
some interesting issues regarding the scope of a termination
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
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
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).
Valley Lumber is an interesting CBCA
issued an interesting decision
regarding monetary sanctions for discovery
The DOE's Office of Energy Efficiency and Renewable
Energy has published proposed
rules re the procurement of energy-efficient products by
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.
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
A final rule
has been adopted re CAS coverage for UK contractors.
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!
There's lots of black letter law regarding recovery
of protest costs at the GAO in the T
Square Logistics Services opinion.
Reading the "Relevant Facts and Procedural
History" section of the ATK
Thiokol decision reminds one how efficiently litigation
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.
The Energy Department issued revised
regulations re cooperative audit arrangements for
management and operating contracts.
revisions have been made to
various FAR provisions covering government property.
In the continuing saga of the A-12 default
termination, the CoFC upheld
the termination on remand.
(among others) semi-annual agendas were published.
Several amendments were published to the DFARS,
relating to DOL wage
determinations, small business programs,
charges on subcontract costs, Guam military
construction, and separation of government procurement
functions to ensure acquisition
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.
ITT-Night Vision Division has been debarred
for three years pursuant to the ITAR under the AECA.
More revised per
diem rates--this time, for non-foreign, overseas travel.
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
The OFPP issued guidance
to all agencies concerning the maximum allowable senior
executive benchmark compensation for federal contracts for FY
The GSA has revised
the FTR to change the per diem/lodging rates for quite a few
Several FAR amendments were published today,
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
rule would amend the FAR to require a searchable, public
database of certain subcontract awards on federal government
The Navy has
adopted a policy authorizing Contracting Officers to use
binding arbitration for resolving procurement contract
sustained a protest
by Tybrin Corp. because the successful offeror planned
subcontract efforts in excess of those permitted by the
Limitation on Subcontracting clause.
today, the DoD has suspended
(for one year) its 10% price evaluation preference for SDBs.
of Government Ethics issued revised
regulations exempting certain senior government positions
from the one-year post employment conflict-of-interest
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
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.
won a motion to vacate the ASBCA's prior decision in favor of
the Government in a CAS
A proposed FAR rule would establish uniform
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.
affirmed the ASBCA's rejection of a claim because the
settlement proposal was not filed on time.
Agency for International Development proposes to consolidate
all its regulations for personal
services direct contracts into one appendix.
amendments were made to the FAR.
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.
amendments to the DFARS were issued, involving: (i) aviation
into-plane reimbursement cards;
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
proposes to amend the DFARS to address DoD-unique requirements
associated with Online Representations and Certifications
denied a request to waive the nonmanufacturer
rule for Demountable Cargo Containers Manufacturing (Dry
Freight Containers/Connex Boxes).
Department made certain changes to the ITAR
relating to Libya and Venezuela
corrected some previously published per
diem rates for overseas, non-foreign travel.
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
from a major disaster, terrorism or nuclear, biological,
chemical, or radiological attack.
The State Department proposes to amend its
acquisition regulation to permit "non-US citizen locally
employed staff" to be designated as Contracting
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.
The GSA amended the FTR to change the mileage
reimbursement rate for use of private autos to $0.485 per
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.
States agency for International Development proposes to amend
its acquisition regulations to provide additional authority
for contracting officers to monitor compliance with subcontracting
proposes to amend the definition of "employee" for
purposes of its HUB
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.
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.
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
rules concerning information assurance requirements and
taxpayer identification numbers.
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)
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.
The SBA issued a notice of intent to waive
the nonmanufacturer rule for re-refining used petroleum