Stan Hinton

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Developments in Government Contracting--2008



December 31

In CHE Consulting, the Court of Appeals for the Federal Circuit wound up a relatively quiet year in its bid protest jurisdiction by affirming the Court of Federal Claims' decision that a procuring agency acted rationally in bundling hardware and software requirements into a  a single-provider solicitation. The protester had objected to the lower court's allowing the agency to supplement the record. The CAFC, however, reached its decision  without relying on the supplements. The CAFC did rely on the GAO's 1993 decision in National Customer Engineering (B-251135) to support its conclusions.

December 30

The Prompt Payment Act interest rate for the period January 1, 2009 through June 30, 2009 will be 5 5/8%.

The National Science Foundation is proposing regulations to implement the Program Fraud Civil Remedies Act of 1986. Comments are due by January 29, 2009.

In States Roofing, the ASBCA held that the "Permits and Responsibilities" clause did not impose strict liability on the prime for all actions of its subcontractors.

December 29 Three new SBA OHA size decisions have been published.
December 25 Merry Christmas!
December 23

In Spectrum Sciences and Software, the Court of Federal Claims delivered a stinging rebuke to the Government and held that the Air Force repeatedly had improperly used proprietary information concerning a company's munitions conveyor equipment (which the company had provided under the supposed restrictions of a Cooperative Research and Development Agreement) to issue a solicitation for such equipment, reveal proprietary details of the equipment to third parties,  and award a contract to one of the contractor's competitors for equipment based on the improper disclosure of that proprietary information. However, the aspect of the decision that interests me the most is the color, digital photograph it contains of the contractor's conveyor system. The internet and digital technology continue to amaze and delight at least one old man.    

December 20

In L-3 Communications Integrated Systems, the Court of Federal Claims denied the Government's motion to dismiss a post-award bid protest seeking bid and proposal costs. L-3 Communications is the successor-in-interest by operation of law to the entire business of the original offeror on the procurement (Raytheon Systems Corporation). Therefore, the court rejected the Government's contentions (i) that  L-3 Communications lacked standing because it was not the original offeror and (ii) that the suit was barred by the Anti-Assignment Act (31 U.S.C. 3727). Concerning the latter contention, the court wrote in part as follows: "By virtue of this acquisition [of Raytheon], only L-3 possesses the right to pursue this claim, and the evil the [Anti-Assignment] Act was designed to prevent--subjecting the Government to multiple lawsuits for the same claim--is not present here." The court also held that the Administrative Dispute Resolution Act of 1966 did not deprive the court of jurisdiction under 28 U.S.C. 1491(a)(1) over L-3's theory of recovery based on an alleged breach of an implied-in-fact contract.

Wackenhut Services won big in its protest before the same court, which ordered NASA to set aside a contract award, appoint new members to the Source Evaluation Board (SEB), and also to appoint a new Source Selection Authority (SSA) to re-evaluate proposals and correct multiple errors in the original evaluation, including possible undue influence by the SSA on the SEB, a complete lack of a documented tradeoff analysis in the final award decision by the SSA, and other unexplained adjustments by the SEB and SSA related to various of the evaluation factors. The court's disgust with the problems in the original evaluation is palpable. One interesting aspect of the case is that Wackenhut originally protested at the GAO, lost there, and then filed this suit seven days later. Persistence sometimes pays.

In Todd Construction Co. the Court of Federal Claims held that an allegation that a contractor's performance evaluation was issued without observing the proper procedures and is substantively erroneous constitutes a "claim" within the meaning of the CDA. See also the BLR Group decision at the December 3 entry below.

December 19

Effective January 18, 2009, the DOL has amended the regulations at 29 C.F.R. Parts 3 and 5 to provide additional protections to worker privacy under construction contracts covered by the Davis-Bacon and Copeland Anti-Kickback Acts. Contractors submitting weekly worker payroll information will need only to identify individual workers by a unique code (e.g., the last four digits of their social security numbers) rather than by their full social security numbers and home addresses.

December 18

The DoD (DFARS Case 2008-D024) has issued an interim rule which authorizes the DoD to acquire articles containing para-aramid fibers and yarns manufactured in foreign countries that have entered into a defense memorandum of understanding with the United States.

In Devi Plaza, the CBCA held that the Contracting Officer's willingness to discuss settlement with the contractor after issuing the Contracting officer's decision tolled the  90-day appeal period even though the Contracting Officer had twice written the contractor to remind him that the original decision had included a statement of his appeal rights.  Not sure I agree with this one.

December 17

In Alliance General Contractors, the ASBCA rejected a defective specification claim primarily because there was no basis to interpret the drawings as the contractor wished, i.e., by giving one of them precedence over the others. As a side note, the Board found the contractor had not established a causal link between the allegedly defective drawing and the alleged harm: "the testimonial evidence proffered to show that following the drawings led directly to excess 'great big piles of dirt' is vague, puzzling, and entirely unpersuasive."

In Freedom NY, the Board provided guidance to the parties concerning (i) the concept of substantial justification and (ii) the calculation and apportionment of Equal Access to Justice Costs on various claims for Contract Disputes Act interest and Prompt Payment Act interest when the contractor had originally prevailed on only some of its claims and had rejected substantial settlement offers from the Government.

December 15

The SBA's Office of Hearings and Appeals (OHA) has published a batch of new decisions, including two that are instructive concerning how it analyzes the "ostensible subcontractor" rule: TCE Inc. and Public Communications Services. In addition to the newly published size decisions, the OHA also has published several new NAICS code decisions, including one in which it found Genome-Communications lacked standing to challenge the NAICS code on an unrestricted procurement, reasoning in part as follows: "This Office has consistently held that a small business lacks standing to appeal the NAICS code classification of an unrestricted solicitation unless the firm can demonstrate that it has been adversely affected. NAICS Appeal of Integrated Laboratory Systems, Inc., SBA No. NAICS-4733, at 2 (2005). The size standard here does not affect Appellant's eligibility to participate in the contract process, nor does it appear to affect award." Finally, the OHA has issued several new "VET" decisions concerning whether firms are owned and controlled by service-disabled veterans. All the new decisions, plus other SBA OHA decisions from 2007-2008 are listed elsewhere on my SBA OHA webpage. You may also find discussions of some of the more important decisions in the SBA OHA portion of the 2008 Procurement Review.

December 13

In The Boeing Co, Successor-in-Interest to Rockwell International Corp., the CBCA held that the contractor could recover its defense costs associated with those counts on which it had prevailed in a suit filed against it under the False Claims Act, even though though the contractor was found liable on other counts in the same suit.

December 9

Effective January 8, 2009, the GSA is amending (rewriting) GSAR Part 533 (Protests, Disputes, and Appeals)--GSAR Case 2007-G501.

The latest Corners and Edges decision at the ASBCA is a reminder that contractors should only accept directions that change the contract from the Contracting Officer.

While we're on the subject of reminders, Parsons Transportation Group serves as a good reminder of the importance of paying attention to the release language when drafting contract changes or settlements.

December 7

In Lublin Corp., the Court of Federal Claims held that 31 U.S.C. 1501(a) is not a statute of frauds that precludes the existence of an oral contract involving the federal government. 

December 5

Effective December 22, the SBA is waiving the Nonmanufacturer Rule for Control Cable and Conductors, Trailers and Heavy Duty Truck Tractors, and Line Hardware (Insulator Strings) Manufacturing.

December 4

After three rounds of preliminary skirmishes, the ASBCA finally has issued its decision on the merits in SUFI Network Services, and the decision is a smorgasbord of claim issues, theories, and defenses, including, inter alia, breach of duty to cooperate and duty of good faith dealing, misrepresentation, contract interpretation, contemporaneous interpretation, course of dealing, ratification, burden of proof, lost revenues, lost profits, claim preparation expenses, and consulting fees.

December 3

In BLR Group of America, the Court of Federal Claims held that it had jurisdiction under the Contract Disputes Act (CDA) over a complaint filed by a contractor based on the Contracting Officer's failure to decide the contractor's nonmonetary claim that a Contractor Performance Assessment Report (CPAR) was inaccurate and should be corrected. The decision is interesting and important on several levels. First, it declines to follow a line of ASBCA decisions that indicate quarrels over CPARs are not CDA claims. Secondly, it finds the requirements for a claim met when the contractor simply requested the Government to change the CPAR, without labeling the request a claim. Third, it reasons that a claim may be based on an assertion of any legal right, not necessarily a right that is explicitly expressed in the contract at issue. Finally, the court notes that recognizing such challenges to CPARs as claims (rather than requiring the contractor to wait and file a protest when the challenged CPAR actually has adverse consequences on a subsequent procurement) serves the interests of contract administration because a bid protest significantly interferes with, even disrupts, the procurement process, whereas a contract dispute under the CDA does not. 

December 2

Effective for one year beginning December 17, the DoD  is waiving the limitation of 10 U.S.C. 2534 (which limits DoD procurement of certain items to sources in the national technology and industrial base) for certain defense items produced in the United Kingdom.

The GSA (GSAR Case 2008-G509) is proposing to rewrite GSAR Part 536 concerning Construction and Architect-Engineer Contracts. Comments are due by February 2, 2009.

In Oregon Woods, the CBCA held that a Contracting Officer did not abuse his discretion in terminating for convenience a faulty contract whose specifications would require an indeterminate amount of time to review and correct.

November 25

In its post-award protest at the Court of Federal Claims, Lumetra claimed, inter alia, that the Government had failed to provide it with the opportunity to respond to a negative in-progress performance evaluation. The court conceded that the Government neglected to comply with a FAR 42.1503(b) requirement that the contractor be permitted to submit comments, additional information, or rebuttals concerning the evaluation, but (in a somewhat tortured argument that left me lukewarm) held that the Government's failure was not prejudicial because Lumetra had other means to address the alleged performance issues. 

The GAO sustained a protest by Burchick Construction Co. because the VA failed to conduct meaningful discussions regarding weaknesses in several parts of Burchick's technical proposal, including its past performance, small business participation, and quality control plan.

November 24

The DoD (DFARS Case 2005-D015) has adopted as final, without change, the interim rule amending the DFARS to update requirements for reporting of government property in the possession of DoD contractors. The final rule replaces DD Form 1662 reporting requirements with requirements for DoD contractors to electronically submit, to the Item Unique Identification (IUID) Registry the IUID data applicable to the government property in the contractor's possession.

The DoD (DFARS Case 2007-D021) also has issued a final rule amending the DFARS to address review and documentation requirements pertaining to the use of time-and-materials contracts for the acquisition of noncommercial services. The rule provides for the same level of review for both commercial and non-commercial DoD time-and-materials contracts.

The DoD (DFARS Case 2008-D019) also has issued a final rule revising the list of "least developed" countries that are designated as eligible countries under the Trade Agreements Act (adding Liberia and removing Cape Verde) in accordance with direction from the United States Trade Representative.

November 21

In DCMS-ISA, the Court of Federal Claims upheld the Government's decision to cancel an SDVOSB set-aside because none of the offerors possessed sufficient past performance experience. The court rejected the offerors' contention that the matter should have been referred to the SBA for a responsibility determination.

November 20

In Palm Springs General Trading and Contracting Establishment, the ASBCA denied a motion to stay an appeal pending criminal proceedings because, inter alia, the Government failed to show that there were substantial similarities of facts, issues, and witnesses between the ongoing criminal investigation and the board appeals.

November 18

Comments are being sought (i) on proposed FAR revisions that would require contractors selling information technology (IT) products (including computer hardware and software) to represent that such products are authentic, (ii) concerning contractor liability if IT products sold to the Government by contractors are not authentic, (iii)  on whether contractors who are resellers or distributors of computer hardware and software should represent to the Government that they are authorized by the original equipment manufacturer to sell the information technology products to the Government, (iv) on whether the measures contemplated above should be extended to other items purchased by the Government; and (v) on whether the rule should apply when information technology is a component of a system or assembled product.

The Bureau of Industry and Security in the  Commerce Department has published a final rule revising the Export Administration Regulation (EAR) to clarify that a party cannot proceed with an export, reexport, or transfer (in-country) that is in transit at the time the party is informed by BIS that a license is required (in accordance with certain end-user/end-use controls in the EAR), unless that party first obtains a license from BIS authorizing the completion of the transaction. These changes are intended to enhance the ability of BIS to stop items subject to the EAR, including items not on the Commerce Control List, from being exported, re-exported or transferred (in-country) when there is an unacceptable risk that such items will be used in, or diverted to, any of the proliferation activities specified in certain sections of the EAR. The new rule also amends the EAR by revising the definition of the term "transfer"  and certain related terms, to provide greater clarity regarding these provisions.

November 14

Federal Acquisition Circular (FAC) 2005-29 has been published. It includes FAR Case 2007-013, Employment Eligibility Verification, which requires certain contractors and subcontractors to utilize the  E-Verify system administered by the Department of Homeland Security as a means of verifying that certain of their workers are eligible to work in the United States. The effective date is January 15, 2009.

In ASRC Research & Technology Solutions, the GAO sustained a protest against a NASA evaluation that was flawed in its analysis of (i) the technical risk associated with the costs of hiring incumbent personnel and (ii) the differences in size between the protested contract and the awardee's past performance references.

November 12

Effective today, Federal Acquisition Circular (FAC) 2005-28 (FAR Case 2007-006), Contractor Business Ethics Compliance Program and  Disclosure Requirement, amends the FAR and implements Public Law 110-252, Title VI, Chapter I (the "Close the Contractor Fraud Loophole" Act) to amplify the requirements for a contractor code of business ethics and conduct, an internal control system, and disclosure to the Government of certain violations of criminal law, violations of the civil False Claims Act, or significant overpayments.

I fell a bit behind on CBCA decisions because I allowed one of my bookmarks to fall out of date, but I've caught up now.

In Wheeler Logging (over a well-written dissent), the CBCA dismissed several revised claim elements in a contractor's appeal for lack of a certification because: (i) there was a significant change to the claim elements, amounts, and supporting data, (ii) the changes occurred prior to the onset of active litigation, and (iii) the changes were based on facts that were in the contractor's possession at the time it filed the original certified claim.

November 10

In Beyley Construction Group, the ASBCA denied claims for changed conditions based on a theory of quantum meruit because there was no evidence of an implied-in-fact contract and because the contractor's evidence for its cost estimates was "incomprehensible."

November 6

In Rothe Development Corp., the Federal Circuit held that 10 U.S.C. 2323 is unconstitutional because, in passing it, Congress did not have a "strong basis in evidence" to conclude that DOD was a passive participant in racial discrimination in relevant markets across the country and that race-conscious remedial measures were necessary. The Act (i) sets a "goal" that five percent of federal defense contracting dollars for each fiscal year be awarded to certain entities including small business concerns owned and controlled by "socially and economically disadvantaged individuals"; (ii) incorporates the Small Business Act's presumption that Black Americans, Asian Americans, Hispanic Americans, and Native Americans are socially disadvantaged individuals; and (iii) provides that the Department of Defense shall give specified forms of assistance to the listed entities and may, when practicable and necessary to achieve the five percent goal, make advance payments to those entities and award contracts to them at prices up to ten percent above fair market cost.

November 5

I still remember as a young boy (50 years ago) visiting my grandmother and watching her get up from her chair and turn off the television set each time she saw a Black person appear on the TV screen. We've come a long way since then. Congratulations to all of us on our new President. Well done, America.

October 31

In the size appeal of Novalar Pharmaceuticals, the SBA had occasion to utilize its single-largest and multiple-largest minority shareholder rules in finding affiliation between a number of companies.

October 27

The DoD is proposing to add a section 207.172 (and a contract clause) to the DFARS to address requirements for the protection of human subjects involved in research projects (DFARS Case 2007-D008). Comments are due by December 26.

October 24

The Department of Energy has issued a Revised Policy Statement on the use of alternative dispute resolution (ADR).

In Nortel Government Solutions, the Court of Federal Claims invalidated the DEA's override of an automatic stay pending a GAO protest. Do we have a trend developing here? See also the E-Management Consultants decision at the October 22 entry below.

October 23

The Department of Agriculture is proposing to amend the Guidelines for Designating Biobased Products for Federal Procurement, by adding nine sections to designate the following nine items within which biobased products would be afforded federal procurement preference: chain and cable lubricants; corrosion preventatives; food cleaners; forming lubricants; gear lubricants; general purpose household cleaners; industrial cleaners; multipurpose cleaners; and parts wash solutions. USDA also is proposing minimum biobased content for each of these items. The authority for the proposed changes is section 9002 of the Farm Security and Rural Investment Act of 2002 (FSRIA), as amended by the Food, Conservation, and Energy Act of 2008 (FCEA), 7 U.S.C. 8102. Comments are due by December 22.

October 22

The Court of Federal Claims issued its latest decision in the Watts-Healy Tibbitts protest, dissolving the preliminary injunction it had issued previously. The court determined that the Government had complied with the court's order to conduct a new responsibility determination, which was neither arbitrary nor capricious, even though the court might not agree with its conclusions.  See also entry at August 11 below.

In E-Management Consultants, the Court of Federal Claims voided an agency's override of the automatic stay issued during pendancy of a GAO protest because the agency failed to consider the impact of the stay on the procurement system and made an inadequate cost-benefit analysis, which did not establish that serious consequences would befall the agency in the absence of the override.

In Comptech, the ASBCA went through a lengthy and detailed analysis of the legal status of unilateral purchase orders before concluding that the Government properly canceled such an order because the contractor failed to deliver conforming supplies within the required time.

October 20

The DoD has amended the DFARS (section 215.370) to implement Section 819 of the National Defense Authorization Act for Fiscal Year 2006, which authorizes the DoD to use an evaluation factor reflecting whether an offeror intends to perform a contract using employees or individual subcontractors who are members of the Selected Reserve.

The DoD has issued a proposed rule designed to ensure the accuracy of the information in the Central Contractor Registration (CCR) database. Comments are due by December 19.

The Department of Labor has issued a proposed rule that would reduce the amount of personal data concerning individual workers in reports required by the Davis-Bacon and Copeland Anti-Kickback Acts, in order to protect workers' privacy. Comments are due by November 19.

In The Management Consulting Group, the SBA's Office of Hearings and Appeals criticized (but could do nothing about) several SBA practices for determining whether individuals are economically disadvantaged: "Although SBA's current practice of determining income is the law, the practice results in unintended inequities because the SBA fails to (1) consider inflation, (2) distinguish between initial 8(a) eligibility income thresholds and continuing eligibility income thresholds to account for business growth (as is done with net worth determinations, 13 C.F.R. 124.104(c)(2)), (3) consider deductible expenses, such as medical expenses, and instead considers adjusted gross income, without exception, (4) evaluate geographical cost of living differences in assessing the value of income, and (5) treat each business similarly irrespective of its business organizational form."

October 18

In Access Systems, the Court of Federal Claims held that the award of a bridge contract to the incumbent during the pendancy of a GAO protest does not constitute the override of an automatic stay of the protested procurement. 

October 16

In Delex, the GAO held that FAR 19.502-2(b) concerning set-asides for small businesses applies to competitions for task and delivery orders under multiple-award contracts and that a solicitation for a delivery order under one such NAVAIR contract should have been set aside for small businesses rather than being issued on an unrestricted basis.

October 14

The GAO has issued the final rules of procedure for the GAO Contract Appeals Board.

October 10

The GSA is proposing a rewrite of GSAR Part 514, Sealed Bidding (GSAR Case No. 2008-G505). Comments are due by December 9.

The SBA is considering granting a waiver of the nonmanufacturer rule for Control Cable and Conductors, Trailers and Heavy Duty Truck Tractors, and Line Hardware (Insulator Strings) Manufacturing.

October 9

The GSA is proposing rewrites of: (i) GSAR Part 504, Administrative Matters (GSA Case No. 2006-G510); and (ii) GSAR Part 511, Describing Agency Needs (GSA Case No. 2007-G507). Comments are due by December 8.

Alabama Aircraft won its protest at the Court of Federal Claims against the Air Force's contract award to Boeing for maintenance and modifications to the KC-135 Stratotanker fleet because of the agency's faulty price realism analysis of Boeing's proposal. The court issued an injunction setting aside the award and requiring the agency to resolicit. Specifically, the agency failed to take into account the rapidly aging fleet in analyzing Boeing's price realism.

The GAO sustained a protest by Helicopter Transport Services in part because the agency did not produce documentation of its past performance discussions or evaluation.

October 8

The Civilian Board of Contract Appeals issued several new decisions. One of them is Tidewater Contracting. Tidewater originally submitted a claim for an extension of the contract time/period of performance. After its appeal of the denial of that claim had been docketed by the Board, the Government assessed liquidated damages against Tidewater. Tidewater now argues its original appeal should cover that assessment. The Board rejects Tidewater's contention because Tidewater never submitted a claim to the Government for return of the liquidated damages. Something about this decision bothers me. It seems to me that I've seen decisions in other fora in which claims for time extensions and those for liquidated damages have been seen to be intertwined. Moreover, couldn't  the  assessment of liquidated damages in this situation be considered a government claim?

October 7

The GSA is proposing to rewrite GSAR Part 532, Contract Financing (GSAR Case 2006-G515). Comments are due by November 6.

October 6

The Architect of the Capitol proposes to implement a small-business set-aside program for small purchases. Comments are due by November 5.

The Commerce Department's Bureau of Industry and Security (BIS) has published a significant number of changes to the Export Administration Regulations (EAR) based on a a systematic review of the Commodity Control List (CCL).

The State Department has added Eritrea to its International Traffic in Arms (ITAR) regulations on prohibited exports and sales to certain countries as a result of its designation as a country not cooperating fully with antiterrorism efforts.

In a consolidated protest by Femme Comp, among several others, the Court of Federal Claims found the Army's Source Selection Authority improperly converted what should have been a best value trade-off among the evaluation factors listed in the solicitation into simple technically acceptable, low price award decisions. The Court ordered the Army to reevaluate using the correct methodology. 

October 3

The GSA (GSAR Case 2008-G506) is proposing a rewrite of GSAR Part 515, Contracting by Negotiation. Comments are due by December 2.

The Commerce Department's Bureau of Industry and Security (BIS) has proposed to amend the Export Administration Regulations (EAR) to establish a new license exception entitled "Intra-Company Transfer (ICT)," which (with prior authorization from BIS) would allow an approved parent company and its approved wholly-owned or controlled in fact entities to export, reexport, or transfer (in-country) many items on the Commerce Control List (CCL) among themselves for internal company use. Comments are due by November 17.

The SBA has issued revised rules concerning its Small Disadvantaged Business (SDB) Program. Specifically, the rule allows firms to self-represent their SDB status without first receiving any SDB certification. It also recognizes that the benefits of being an SDB for federal prime contracts have  diminished and shifts the responsibility of identifying firms as SDBs for federal prime contracts to those limited agencies that have authority and choose to use price evaluation adjustments for SDBs.

L-3 Communications EoTech won its protest at the Court of Federal Claims, which issued an injunction in its favor because the Government relaxed and waived mandatory solicitation requirements for only one offeror, failed to seek readily available clarifications from the protester, and irrationally established a competitive range of (and then conducted further discussions only with) one offeror.

October 1

The Commerce Department is revising the provisions of the Export Administration Regulations (EAR) relating to foreign-made items that incorporate controlled U.S.-origin items, the so-called "de minimis" rules. Specifically, the revised rules (i) change the de minimis calculation for foreign produced hardware that is bundled with U.S.-origin software; (ii) clarify the definition of 'incorporate' as it applies to the de minimis rules and to the medical statement of understanding; (iii) remove the requirement to submit a one-time report to the Bureau of Industry and Security for foreign-made software that incorporates U.S.-origin software, and (iv) revise the "Steps for Using the EAR" and General Prohibition Two with regard to the de minimis rules.

The SBA has published a final rule, effective October 31, to set forth procedures that will govern the new Women-Owned Small Business (WOSB) Federal Contract Assistance Procedures as authorized in the Small Business Act. The rule does not identify the industries in which WOSBs are underrepresented or substantially underrepresented in Federal procurement because SBA is awaiting comments on a proposed rule in that area before concluding its eligibility determinations.

In White Hawk/Todd, the OHA held that area offices may not review mentor-protege eligibility issues in 8(a) procurements. In DCS Night Vision JV, the OHA had occasion to clarify White Hawk in a situation where a firm contended that it assumed the SBA had extended its mentor-protege agreement past its expiration date because the firm had not heard anything to the contrary from the SBA. The OHA also published decisions in four other size appeals, a NAICS appeal concerning a solicitation for counterintelligence services, and two other NAICS decisions.

September 30

If you would like to find a specific 2008 development without scrolling through nine months worth of entries in this blog (or using the ctrl-f keys), please try the 2008 Procurement Review. I am keeping it fairly current with this blog, and it is indexed.

September 25

The State Department is removing Rwanda from the ITAR provisions on prohibited exports and sales to certain countries as a result of United Nations Security Council Resolution 1823, which terminated remaining arms sanctions against that country. The ITAR also is being amended to increase the registration fees, change the registration renewal period, and make other minor administrative changes.

September 24

DFARS Case No. 2007-D020 (Government Property)--The DoD is proposing to amend the DFARS to update text addressing the management of government property in the possession of contractors. The DFARS changes are consistent with changes made to the FAR. Comments are due by November 24.

September 23

In Dionyx, Judge Miller excoriated the Government for making "the senseless jurisdictional argument that an agency arbitrarily can declare a protested proposal to be nonconforming, while accepting the awardee's allegedly nonconforming proposal, and thereby preclude the protestor from standing to challenge the award." Warming to its task, the court also roundly criticized several CoFC decisions regarding a protester's "standing" because they improperly applied the concepts of responsiveness and noncompliance to negotiated procurements. Although Judge Miller is quite clear about what she dislikes, she is somewhat less successful articulating what the analysis should be, beyond the repeated admonition that one should follow the CAFC's decision in Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006).

Until such time as it may lift this suspension of activities, the SBA is no longer receiving applications for admission into the Small Disadvantaged Business Program. Since 1994, the SBA has processed these applications on behalf of all federal procuring agencies. In December 2004, however, the price evaluation preference for such businesses lapsed for most federal agencies, and the remaining agencies have become more reluctant to reimburse the SBA for the costs of its administration of the program. Hence, the suspension while the SBA reassesses the situation.

September 22

In Veridyne, the Court of Federal Claims decided that disputed facts precluded summary judgment on the Government's contention that fraud allegations merited forfeiture of the plaintiff's claim. In providing guidance for the upcoming trial on the merits, the court stated in part as follows: "The court takes this opportunity to caution the parties that the law does not absolve a contractor of a fraudulent representation, even if government personnel are implicated or cognizant or participatory. The brand of fraud, however, will be cosmetic and not require forfeiture of all monies already paid or due and owing for services rendered insofar as the fraudulent activities do not transcend that level of deceit that amounts to engaging government personnel in a conflict of interest or affording them some pecuniary gain."

September 19

In Delmarva Power & Light, the Court of Appeals for the Federal Circuit recognized the Government's power to waive the prohibition against the assignment of claims against the Government in the Anti-Assignment Act, 31 U.S.C. 3727(a).

The GAO sustained a protest by AT&T Government Solutions because the Navy rejected its proposal due to a perceived organizational conflict of interest ("OCI") without evaluating the mitigation plan included with the proposal and without giving AT&T the opportunity to correct the perceived deficiencies in its proposal, when the company's products that allegedly created the OCI were not even available for purchase by the agency.

The General Services Administration (GSAR Case 2008-G517) has amended the GSAR to implement Pub.L. 110–248, The Local Preparedness Acquisition Act, which authorizes the use by state or local governments of GSA Federal Supply Schedules (FSS) for alarm and signal systems, facility management systems, firefighting and rescue equipment, law enforcement and security equipment, marine craft and related equipment, special purpose clothing, and related services (as contained in Federal supply classification code group 84 or any amended or subsequent version of that classification group).

NASA proposes to amend the procedures in the NASA FAR Supplement relating to the mentor-protege program to streamline the program; align the mentoring to technical skills; expand the program to include Small Disadvantaged Businesses (SDB), women-owned small businesses, HUBZone small businesses, veteran-owned and service-disabled veteran-owned small businesses, Historically Black Colleges and Universities, minority institutions of higher education, and NASA Small Business Innovation Research (SBIR) Phase II small businesses; and include award fee incentives. Comments are due by November 18. 

The State Department is amending the ITAR to clarify that certain anti-tumor drugs are not within the definition of "chemical agents."

September 18

Five ASBCA decisions have been published. In Corners and Edges, the ASBCA held it had jurisdiction over a notice of appeal mailed before the date the CBCA became effective but received by the ASBCA after that date. In Qatar International Trading, the Board held that the Government's defense in tort did not divest the Board of jurisdiction over the contractor's claim (the contractor had claimed that the Government failed to pay satellite phone service charges for calls made from cell phones delivered to the Government by the contractor; the Government claimed the calls had come from cloned cell phones, i.e., had been made by tortfeasors).

Several CBCA decisions also have been published. In Omegaman Fireprotection, the Board held it lacked jurisdiction over what was essentially a bid protest because there was no contract between the claimant and the Government. Often it's the contractor that is bitten by the release language in a termination settlement agreement. In Government Marketing Group it was the Government's claims that were precluded by such a release. 

September 17

Federal Acquisition Circular (FAC) 2005-27 has been published. It includes the following items: (i) FAR Case 2007-020, entitled "Correcting Statutory References Related to the Higher Education Act of 1965," a final rule to reflect citation changes necessitated by the Higher Education Amendments of 1998; (ii) FAR Case 2008-001, entitled "Changing the Name of the Office of Small and Disadvantaged Business Utilization for DoD," a final rule which substitutes the new name of Office of Small Business Programs; (iii) FAR Case 2007-015, entitled "Changes to the FPI Blanket Waiver and the JWOD Program Name," a final rule to increase the blanket waiver threshold for small dollar-value purchases from Federal Prison Industries (FPI) by Federal agencies from $2500 to $3000 and to change the name of the JWOD Program to the AbilityOne Program; (iv) FAR Case 2006-014, entitled "Local Community Recovery Act of 2006," a final rule implementing amendments to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5150) concerning set-asides for major disaster or emergency assistance acquisitions to businesses that reside or primarily do business in the geographic area affected by the disaster or emergency; (v) FAR Case 2007-007, entitled "Additional Requirements for Competition Advocate Annual Reports, a final rule requiring that annual reviews by executive agency competition advocates be provided in writing to both the agency senior procurement executive and the agency chief acquisition officer, if designated, and that the reports specifically address the quality of planning, executing, and managing of task and delivery orders over $1 million; (vi) FAR Case 2005-018, entitled "Contract Debts," a significant final rule that revises the FAR's policies and procedures concerning contract debts; (vii) FAR Case 2007-022, entitled "Subcontractor Requests for Bonds," a final rule to clarify that the ‘‘Prospective Subcontractor Requests for Bonds’’ clause does not apply to commercial items; (viii) FAR Case 2008-002, entitled "Extension of Authority for Use of Simplified Acquisition Procedure for Certain Commercial Items," which extends until January 1, 2010, the timeframe in which an agency may use simplified procedures to purchase commercial items in amounts greater than the simplified acquisition threshold, but not exceeding $5,500,000 ($11 million for acquisitions as described in 13.500(e)); (ix) FAR Case 2008–006, entitled "Enhanced Competition for Task and Delivery Order Contracts—Section 843 of the Fiscal Year 2008 National Defense Authorization Act," an interim rule which (a) prohibits issuing a task or delivery order exceeding $100 million without special authorization, (b) provides additional competition requirements for orders in excess of $5 million, and (c) establishes the right to protest to the GAO for orders in excess of $10 million; (x) FAR Case 2006-025, entitled "Online Representations and Certifications Application Review," a final rule revising the prescription for use of clauses for the use of Environmental Protection Agency-designated products and toxic chemical release reporting; (xi) FAR Case 2007-002, entitled "Cost Accounting Standards (CAS) Administration and Associated Federal Acquisition Regulation Clauses," an interim rule to revise the FAR CAS administration clauses to maintain consistency between the FAR and CAS and to reflect various amendments made by the CAS Board on June 14, 2007; (xii) FAR Case 2006-004, Entitled "CAS Administration," a final rule related to CAS administration in contracts with foreign firms; and (xiii) FAR Case 2006-027, entitled "Accepting and Dispensing of $1 Coin," a final rule to implement Section 104 of the Presidential $1 Coin Act of 2005, which requires that entities that operate any business on any premises owned or controlled by the United States be capable of accepting and dispensing $1 coins on January 1, 2008.

September 16

GSAR Case 2008-G503: The GSA is proposing to rewrite Part 505 of the GSAR, entitled "Publicizing Contract Actions." Comments are due by November 17.

September 15

Several DFARS amendments are out. DFARS Case 2008-D002 (entitled Acquisitions in Support of Operations in Iraq or Afghanistan) is an interim rule amending the DFARS to implement Sections 886 and 892 of the National Defense Authorization Act for Fiscal Year 2008. Section 886 provides authority for DoD to limit competition when acquiring products or services in support of operations in Iraq or Afghanistan. Section 892 addresses competition requirements for the procurement of small arms for assistance to Iraq or Afghanistan. DFARS Case 2008-D013, entitled Limitation on Service Contracts for Military Flight Simulators, is a final rule implementing Section 883(b) of the National Defense Authorization Act for Fiscal Year 2008, which changed the conditions under which DoD may waive the prohibition on entering into a service contract to acquire a military flight simulator. Specifically, it adds a provision that allows a waiver of the general prohibition if the Secretary of Defense determines it to be in the national interest. DFARS Case 2006-D050, Security Guard Functions, is an interim rule extending through September 30, 2012, the period during which contractor performance of security-guard functions at military installations or facilities is authorized to fulfill additional requirements resulting from the terrorist attacks on the United States on September 11, 2001.

The Postal Service Board of Contract Appeals has published two decisions. In one, a postal delivery contractor was terminated for default because he refused to comply with a unilateral contract amendment requiring him to deliver mail by driving down a gravel rural driveway that he considered unsafe. He lost his appeal because, after having had the driveway inspected, the Postal Service determined it to be narrow, but, nonetheless, safe.

Career Training Concepts ("CTC") lost its post-award protest at the Court of Federal Claims. Its primary argument was that an email to all offerors from the Contracting Officer extending the date for receipt of proposals was ineffective because it was not a formal solicitation amendment. The court found that the email, especially when coupled with the Government's change of the due date for proposals on the GSA's e-Buy website, sufficed. The case also involved the protester's complaints about "discussions" that allegedly occurred. The court viewed the protester's somewhat unusual arguments in this regard as follows: "CTC apparently believes that it was given an opportunity to materially revise its proposal, while [the awardee] was only given the opportunity to clarify its proposal, and that any additional opportunity the agency afforded CTC may be employed to undo a competition it did not win. The record does not support CTC’s view of the exchanges."

September 12

In Metric Construction Co., the Court of Federal Claims found the Government's position in litigation was substantially justified and precluded an award of fees under the Equal Access to Justice Act even though (i) the contractor prevailed on the majority of its claim and (ii) the Government made almost no attempt to rebut the plaintiff's application for attorneys' fees because: "It was reasonable for the Government to have litigated this dispute to its conclusion." 

September 8

HUD proposes to revise its regulations implementing the Program Fraud Civil Remedies Act. Comments are due by November 7.

A bunch of new SBA OHA decisions are out.

September 3

The Forest Service proposes several amendments to  its regulations concerning timber sales contracts. Comments are due by October 3.

The Court of Federal Claims has issued three more decisions in the Chevron U.S.A. equity process agreement dispute: one denying the Government's motion to dismiss certain parts of the complaint (concerning the issue whether certain breaches were "material") for lack of jurisdiction; anther denying the Government's motion to certify the court's earlier discovery orders for interlocutory appeal; and the third mostly denying the Government's requests for reconsideration of the court's earlier rulings on the Government's claims of attorney-client privilege for various documents.

September 2

The Office of Federal Procurement Policy (OFPP) from the Office of Management and Budget (OMB) has issued an Advance Notice of Proposed Rulemaking to harmonize CAS 412 and 413 with the Pension Protection Act of 2006. Comments are due by November 3.

Effective today, the Bureau of Industry and Security is amending the Export Administration Regulations (EAR) to establish export licensing requirements for Kosovo.

August 28

Effective today, the GSA is revising the Federal Management Regulation to clarify and amend its coverage of the replacement of personal property pursuant to the exchange/sale authority.

In Distributed Solutions, Inc., and STR. L.L.C., the Court of Appeals for the Federal Circuit reversed the prior decision by the Court of Federal Claims and held that the lower court had jurisdiction over a protest against the Government's decision to abandon a proposed competition in favor of permitting a current prime to procure items by soliciting various subcontractors.  The issue was the meaning of the phrase "in connection with a procurement or proposed procurement" in the Tucker Act, as amended by the Administrative Dispute Resolution Act.

August 27

In Benjamin & Shaki Alli and BSA Corp., the Court of Federal Claims discussed the elements of proof for breach claims by and against the United States in the context of substandard conditions at properties involved in HUD housing subsidence programs.

August 21

L-3 Global Communications Solutions lost its protest at the Court of Federal Claims. L-3 complained that the awardee based its offer on using a company other than the one required by the solicitation for certain contract work. The court rejected the protest because the awardee did not express this intent in its proposal, but, instead, promised to comply with all material solicitation requirements. Moreover, the Government rejected the awardee's efforts to switch to the unapproved company after award.

August 20

The Department of Veterans Affairs (VA) proposes to amend its acquisition regulation (the VAAR) to implement portions of the Veterans Benefits, Health Care, and Information Technology Act of 2006 and Executive Order 13360 (Providing Opportunities for Service-Disabled Veteran Businesses to Increase Their Federal Contracting and Subcontracting). Together, the statute and executive order authorize the VA to establish special methods for contracting with service-disabled veteran-owned small businesses (SDVOSBs) and veteran-owned small businesses (VOSBs). Under the proposed changes to the VAAR, a VA contracting officer could restrict competition in contracting for SDVOSBs or VOSBs under certain conditions. Likewise, sole source contracts with SDVOSBs or VOSBs would be permitted under certain circumstances. Comments are due by October 20.

In the Tyler Construction Group protest, the Court of Federal Claims decided several interesting issues of statutory construction and regulatory interpretation concerning, inter alia, the use of ID/IQ contracts for construction services and the prohibition on bundling in such situations.

August 18

The DoD is proposing to amend the DFARS to add a contract clause requiring a contractor to notify the DoD if the contractor is required to report its activities under the U.S.-International Atomic Energy Agency Additional Protocol. The proposed clause would be included in contracts for research and development or major defense acquisition programs involving fissionable materials, other radiological source materials, or technologies directly related to nuclear power production.

August 15

The SBA is proposing to increase the thresholds for Small Business Innovation Research (SBIR) Program awards to offset the effects of inflation since the thresholds were originally set in 1992. Specifically, the proposed increases would be from $100,000 to $150,000 for Phase I awards and from $750,000 to $1,000,000 for Phase II awards. Comments are due by September 15.

August 14

Effective today, the Department of State is amending Part 121 of the International Traffic in Arms Regulations (ITAR) to add language clarifying how the criteria of Section 17(c) of the Export Administration Act of 1979 ("EAA") are implemented in accordance with the Department of State's obligations under the Arms Export Control Act ("AECA")  and restating the Department's policy and practice of implementing the criteria of this provision. The rule reinstates the Section 17(c) reference in the ITAR to assist exporters in understanding the application of the Section 17(c) criteria to parts and components for civil aircraft. It also clarifies that any part or component that (i) is standard equipment; (ii) is covered by an FAA civil aircraft type certificate (including amended type certificates and supplemental type certificates but expressly excluding military aircraft certified as restricted and any type certification of Military Commercial Derivative Aircraft, defined by FAA Order 8110.101 effective date September 7, 2007 as "civil aircraft procured or acquired by the military"); and (iii) is an integral part of such civil aircraft, is subject to the jurisdiction of the Export Administrative Regulations (EAR). Where such part or component is not Significant Military Equipment ("SME"), no Commodity Jurisdiction (CJ) determination is required to determine whether the item meets these criteria for exclusion under the United States Munitions List (USML), unless doubt exists as to whether these criteria have been met. However, where the part or component is SME, a CJ determination is always required, except where a SME part or component was integral to civil aircraft prior to the effective date of this rule. Additionally, the rule adds language in a new Note after Category VIII(h) to provide guidelines concerning the parts or components meeting these criteria. The change to Category VIII*(b) also identifies and designates certain sensitive military items, formerly controlled under Category VIII(h), as SME. Previous and current authorizations concerning the manufacturer of these items will not require notification in accordance with section 124.11 and will not require a "Nontransfer and Use Certificate" DSP-83, unless they are amended, modified, or renewed.

August 13

The GSA is proposing a rewrite of GSAR Part 549, Termination of Contracts  (GSAR Case 2008-G515). Comments are due by October 14.

Non-government contract rant (hey, it's my blog). For the past couple of years, I have used a home PSA test kit manufactured by a company called Biosafe to obtain prostate specific antigen results to provide my doctor at my yearly exams. Today, when I went to buy this year's kit, it was not on the shelf, so I went online to try to find it. I found several web sites that said the kit was "unavailable," including one site that mentioned it had been discontinued because of serious quality problems with the test results and test reporting. Concerned, I went to the company's website (ebiosafe.com). It was not accessible. Therefore, I tried Google's "cache" and found a partial version of the website dated August 8, so apparently it was available until recently. Then, I tried calling the toll-free number listed on last year's test report from the company. The number was disconnected without any message or forwarding number. So, I went to the FDA's website to find out if there were any alerts or warnings concerning Biosafe's products. There were none. Not satisfied, I called the FDA. After going through countless recorded messages and switching from one department to another, I finally was connected to a human female. I described the situation to her, and she said all the information she had was that Biosafe was currently registered with the FDA. She gave me the number of the person who was listed as the company's registered agent, and she gave me a local number that was on file with the FDA for the company's headquarters. I called that local number first. You guessed it--disconnected. Then, I called the registered agent, who alternated between telling me that he had no information and that he was not authorized to say anything. I called the lady at the FDA and reported to her what I had learned (i.e., nothing). She was not concerned. I asked her whether it was alarming to her that a company that (until very recently) had been producing FDA-approved products was unreachable at the telephone number it had provided to the FDA on its latest registration form. She said that, since it had paid its registration fee for calendar 2008, nothing else was of interest to her. I asked her whether it was of concern to the FDA that the company was unreachable by its customers when its product had apparently been pulled because of quality issues? (I mentioned specifically that I was interested in finding out whether my last two years' test results were worthless or, worse, misleading.) She said that, if the company were having quality issues, the FDA preferred to handle such issues in private, and that such discussions between the FDA and the company (if they had occurred) would be unavailable to the public!  Since I can't seem to find anything, do any of my  readers have any recent information on Biosafe?   

August 12

Several DFARS amendments have been published: (i) in compliance with section 904 of the National Defense Authorization Act for fiscal 2006, the Office of Small and Disadvantaged Business Utilization has been re-designated the Office of Small Business Programs (DFARS Case 2008-D001); (ii) the DFARS has been updated to make its language consistent with the FAR concerning contractor standards of conduct and the handling of extraordinary contractual actions (DFARS Case 2008-D004); (iii) in compliance with Section 827 of the National Defense Authorization Act for Fiscal Year 2008, an interim rule requires the use of competitive procedures in the acquisition of items for which Federal Prison Industries has a significant market share (DFARS Case 2008-D015); (iv) in compliance with  Section 130 of the National Defense Authorization Act for Fiscal Year 2007, a final rule establishes a quality control policy for the procurement, modification, repair, and overhaul of ship critical safety items (DFARS Case 2007-D016); (v) a final rule increases  dollar thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative (DFARS Case 2007-D023); and (vi) a final rule updates and clarifies the requirements for unique identification and valuation of items delivered under DoD contracts and revises the applicable contract clause to reflect the current requirements (DFARS Case 2007-D007).

August 11

The Court of Federal Claims modified its original order in the Watts-Healy Tibbitts bid protest to specify the requirements for the new responsibility determination it is requiring the Government to make.

August 8

Effective today, the GSA has implemented a final rule rewriting GSAR Part 522, Application of Labor Laws to Government Acquisitions.

Effective October 1, the GSA is revising the maximum CONUS per diem lodging and meal allowance rates. The new rates may be found here.

Boeing already is suspicious about the air refueling tanker resolicitation.

August 7

Effective September 8, the Office of Personnel Management is updating the 2002 North American Industry Classification System (NAICS) codes currently used in Federal Wage System wage survey industry regulations with the 2007 NAICS revisions published by the Office of Management and Budget.

In Alabama Aircraft Industries Inc. - Birmingham, the Court of Federal Claims decided a slew of procedural issues in the continuation of this protest that began at the GAO, including several requests by the protester to supplement the administrative record and several requests to obtain discovery from the Government, e.g., requests for documents for which the Government is asserting attorney-client or work product protection.

The Court of Federal Claims' decision in the Watts-Healy Tibbitts case demonstrates how difficult it is to prevail in request for a preliminary injunction in a bid protest. On reconsideration, the protester prevailed, but the court noted it was granting the injunction "with reluctance" only because it had "no choice." The court noted that a decision to ignore bid rigging in a responsibility determination simply because it was a widespread and accepted practice in Japan was too important to be made at the Contracting Officer level without any reflection and without any analysis of foreign policy considerations.

The GAO sustained a protest by Consolidated Engineering Services in part because the agency used an unannounced evaluation factor of transition risk associated with moving to a non-incumbent awardee.

August 6 NASA proposes to amend the NASA FAR Supplement to update procedures for compliance with FAR Subpart 4.13, Personal Identity Verification of Contractor Personnel. Comments are due by October 6.

Often overlooked among a contract's boilerplate provisions, the integration clause was used by the Court of Appeals for the Federal Circuit in Northrop Grumman Information Technology to conclude that a particular document was not a part of the contract.

Several new ASBCA decisions have been published (see the top six cases listed on my ASBCA page).

In Inversa, S.A., the CBCA held that the contractor's efforts to hinder the Government from fulfilling its obligations to restore leased premises precluded the contractor from premising its claim on the Government's failure to do so.

Whew--busy day. 

August 5

The GSA proposes rewrites of GSAR Part 528, Bonds and Insurance (GSAR Case 2006-G517); and GSAR Part 546, Quality Assurance  (GSAR Case 2008-G514). Comments are due by October 6.

August 4

The GSA is proposing a rewrite of GSAR Part 503, Improper Business Practices and Personal Conflicts of Interest (GSAR Case 2008-G502). Comments are due by October 3.

Several new Postal Service board decisions have been published.

August 1

The GSA is proposing rewrites of GSAR Part 512, Acquisition of Commercial Items (GSAR Case 2008-G504)  and Part 513, Simplified Acquisition Procedures (GSAR Case 2007-G502). Comments are due by September 30.

July 31

The CBCA's decision concerning the discovery disputes in LFH includes good, black-letter analyses of several attorney-client privilege issues, including the analysis of situations in which one agency discloses allegedly protected documents to another agency.

July 30

The GSA is proposing to revise Part 525 of the GSAR regarding Foreign Acquisition. Comments are due by September 29.

The GAO sustained MCT JV's protest in part because the agency neglected to evaluate the performance risk associated with the awardee's failure to follow solicitation instructions not to propose unrealistically low costs.

July 28

Effective today, the Federal Travel Regulation is revised to increase the cost of operating a privately owned airplane from $1.07 to $1.26 per mile, a privately owned automobile from $0.505 to $0.585 cents per mile, and a privately owned motorcycle from $0.305 to $0.585 cents per mile.

July 25

In Metrotop Plaza Associates, the Court of Federal Claims held that the statute of limitations for appealing from a Contracting Officer's decision was tolled by his willingness to reconsider his decision and that "[r]econsideration . . . was implicit in [his] offer to discuss settlement."

July 24

The GAO just issued a redacted decision (originally dated August 10 2007) sustaining a protest by Lockheed Martin Maritime Systems & Sensors because the agency (in violation of solicitation terms) failed to give Lockheed an opportunity to correct defects in its prototype.

July 22

Effective August 21, the SBA is revising the small business 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) (NAICS code 454312) from $6.5 million in average annual receipts to 50 employees.

Comments are due by August 15 on a proposed SBA rule retracting or reclassifying waivers from the non-manufacturer rule that have been erroneously extended or granted to industry classifications that are not manufacturing industry classifications under the NAICS System.

I've finished adding the latest SBA OHA decisions to the website, with the usual caveat that I did not bother listing the appeals of that NAICS code protesting machine, DCX/CHOL Enterprises.

July 21

SBA's OHA has published a slew of new decisions. I have the new size appeals listed on the website. I'm still working on the rest.

July 19

DFARS Case 2004-D010: effective July 21, the DoD is issuing an interim rule amending the DFARS to specify requirements for complying with export control laws and regulations when performing DoD contracts. The rule recognizes contractor responsibilities to comply with existing  Commerce and State Department regulations and adds two new clauses to be used when export-controlled items, including information or technology, may be involved in the performance of a contract. The new clauses are: 252.204-7008--Requirements for contracts involving export-controlled items; and 252.204-7009--Requirements regarding potential access to export-controlled items.

DFARS Case 2008-D003: DoD is proposing to amend the DFARS to address statutory restrictions on the acquisition of specialty metals not melted or produced in the United States. The proposed rule implements Section 842 of the National Defense Authorization Act for Fiscal Year 2007 and Sections 804 and 884 of the National Defense Authorization Act for Fiscal Year 2008. Comments are due by September 19.

A recent article claims GAO protests are the "new" business strategy for a rapidly increasing group of contractors. Of course, the GAO docketed 2,334 protests in fiscal 1997 and only 1,318 in 2007, but one should never let the facts get in the way of a catchy headline.

July 18

The SBA has increased its monetary size standards by 8.7% to account for inflation since December 2005.

July 17

The GAO sustained separate protests by two offerors against a lease awarded by the GSA because it failed to alert the protesters to significant weaknesses in their proposals and gave the awardee credit for a part of its proposal that did not comply with the solicitation's requirements. See Trammel Crow and New Jersey & H Street.

July 16

John L. Jones, who sometimes operates as Master B. DJ's Karaoke & Video, had hundreds of contracts with a nonappropriated fund instrumentality over a period of 26 years to perform at various night clubs at Fort Bragg. The contracts typically permitted him to take periodic 15-minute breaks. Mr. Jones claimed that, at one point, one of the club managers directed him not to take his breaks and that he was entitled to recover for all the breaks he missed over the ensuing 20 plus years. The Board noted that there was no evidence that the club manager had any authority to change the contract or that his alleged directions applied to other contracts or other clubs. As part of his evidence, Mr. Jones provided an unsworn statement from a Ms. Tina Turner Jones, who stated that she was a regular customer at the clubs where Mr. Jones performed between 1984 and 2004 and that for one week, breaks were taken but discontinued because of customer dissatisfaction.  The ASBCA denied the claim. 

In BearingPoint, the Board discussed the Government's high burden of proof to defend against a subcontractor claim by relying on the Severin doctrine.

Several other ASBCA decisions were published today.

July 15

Sealift, Inc. lost its protest at the Court of Federal Claims because  even though the agency relaxed, waived, or modified quite a few of the solicitation's requirements after award, none of these actions rose to the level of a fundamental change in the scope of the contract. Had the GAO decided this dispute, it likely would have referred to the Government's actions as normal matters of contract administration. 

Omega World Travel lost its protest against a task order under an ID/IQ contract in part because of the limits on the scope of such protests imposed by the Federal Acquisition Streamlining Act and in part because the Government's allegedly improper disclosure of the protester's personnel information occurred after the task order was awarded and, therefore, was not a violation of the Procurement Integrity Act. 

July 11

The CBCA rejected  Business  Management Research Associates' argument that a prior course of dealing had altered the task ordering process in its contract with HHS.

July 9

The GSA is proposing a rewrite of GSAR Part 516, Types of Contracts: GSAR Case 2006-G504.

The Air Force officially announced that it is reopening the air refueling tanker contract competition in response to the GAO's decision in Boeing's protest. 

The latest decision in the Axiom Resource Management protest denied the Government's motion to stay the court's order not to exercise the contract option.

July 8

Effective July 23, the SBA is waiving the nonmanufacturer rule for televisions.  

July 4

After last year's effort, I decided it was too hard to write an entire year's procurement review in one fell swoop at the end of the year, so this time round, I am doing it in increments. The 2008 procurement review for January through June can be found here. If you find any broken links or other errors, please email me and let me know. Thank you.

Chapter 1 of Title VI of H.R. 2642 (the Supplemental Appropriations Act, 2008)  is entitled "Close the Contractor Fraud Loophole," and section 6102 of that chapter reads as follows: "The Federal Acquisition Regulation shall be amended within 180 days after the date of the enactment of this Act pursuant to FAR Case 2007-006 (as published at 72 Fed Reg. 64019, November 14, 2007) or any follow-on FAR case to include provisions that require timely notification by Federal contractors of violations of Federal criminal law or overpayments in connection with the award or performance of covered contracts or subcontracts, including those performed outside the United States and those for commercial items."

July 2

The DoD has published new per diem rates for official travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and U. S. Possessions.

The President has issued Executive Order 13467 concerning, inter alia, new procedures for access to classified information by contractor and subcontractor personnel.

July 1 Beginning today, the prompt payment interest rate is 5 1/8 %.
June 28

The Equal Access to Justice Act provides in part that an application for attorneys fees must be filed within 30 days of the date a judgment becomes final and unappealable. Impresa Construzioni Geom. Domenico Garufi won a bid protest at the Court of Federal Claims and filed a request for bid and proposal costs. The Court of Federal Claims denied it, and Impresa appealed to the Federal Circuit, but then filed a motion requesting that the Federal Circuit dismiss its appeal and enter a final judgment in favor of the Government. The Federal Circuit complied. About 114 days later, Impresa  filed an application for attorneys fees under the Equal Access to Justice Act with the Court of Federal Claims. The court held that the application was untimely because more than 30 days had passed since the Federal Circuit's order had become final. Now, the Federal Circuit overturns that decision, establishing a firm rule that the 30-day period begins to run only after the 90-day period for requesting certiorari expires, regardless whether there is any possibility the Supreme Court would grant cert. Judge Rader's one-paragraph dissent is cogent and pithy and ends with an instant classic: "Impresa cannot now revive a corpse it buried with its own motion."

June 26

The redacted version of the GAO's decision in the Boeing air refueling tanker protest is out in record time.

The GAO has issued interim rules of procedure for the GAO Contract Appeals Board, which will be codified at 4 C.F.R. Part 22.

June 25

The GSA is proposing a rewrite of General Services Acquisition Regulation (GSAR) Part 509 re Contractor Qualifications, GSAR Case 2006-G512.

The Office of Government Ethics has published final rules regarding post-employment conflicts of interest restrictions  for governmental employees terminating governmental service on or after January 1, 1991, which are to be codified at 5 C.F.R. 2637 and 2641. The final rules include an extensive and lengthy introduction summarizing comments received concerning the proposed rule and the agency's reaction to these comments.

June 24

The GSA is proposing rewrites of two more sections of the General Services Acquisition Regulation (GSAR): (i) Part 542 re Contract Administration and Audit Services (and related clauses in Part 552), GSAR Case 2008-G512; and (ii) Part 543 re Contract Modifications, GSAR Case 2008-G513.

June 23

Effective July 8, the SBA is waiving the nonmanufacturer rule for Other Aircraft Parts and Auxiliary Equipment Manufacturing (Drones and Aircraft Launching Equipment), Product Service Codes 1550 and 1720.

June 18

The GAO sustained Boeing's bid protest of the aerial refueling tanker solicitation!

Klinge Corporation won its protest at the Court of Federal Claims in slam dunk fashion. The court declared the award invalid, directed the agency to terminate the awardee's contract, and awarded costs to Klinge because the agency should have recognized that the awardee violated the Trade Agreements Act by proposing an item essentially made in China, rather than being a U.S.-made or qualifying country end product as required by the certification at DFARS 252.225-7020.

FAR Case 2007-018 (organizational conflicts of interest): the comment period has been extended for 30 days (until July 18) for input from the community concerning whether the FAR's current guidance on OCIs adequately addresses the current needs of the acquisition community or whether providing standard provisions and/or clauses, or a set of such standard provisions and clauses, might be beneficial.

Carr Forest Products complained that the Government failed to make a reasonable estimate of the number and types of trees available in various lots in a fixed-price timber sales contract. The judge wrote that at one point the Government's estimators did not determine the size of the trees with measuring tape but instead performed "an ocular measure." Or, as we say in Texas, they eyeballed it.

June 17

FAR Case 2007-017 : the comment period concerning service contract employee conflicts-of-interest proposed rulemaking has been extended for an additional 30 days (to July 17).

GSAR Case 2006-G502: the GSA is proposing a rewrite of GSAR Part 501. Comments are due by August 18.

June 16

The Defense Department has reinstituted small business set-asides for a number of Designated Industry Groups under the Small Business Competitiveness Demonstration Program because it has failed to meet its 40% goal for these Designated Industry Groups.

The Bureau of Industry and Security is amending the Export Administration Regulations to reflect changes to the Missile Technology Control Regime (MTCR) Annex that were agreed to by MTCR member countries at the November 2007 Plenary in Athens, Greece.

June 12

An interim rule, effective today, amends the FAR to implement section 6 of the Sudan Accountability and Divestment Act of 2007, which generally requires certification that the contractor does not conduct certain business operations in Sudan. The interim regulation also updates the list of countries from which most imports are prohibited, to reflect Burma as well as Sudan. FAC 2005-26; FAR Case 2009-004.

Comments are due by August 11 on proposed amendments to the FAR that will require contractors to utilize the U.S. Citizenship and Immigration Services' (USCIS) E-Verify system to verify that certain of their employees are eligible to work in the United States. See also first entry at June 9 below.

There's an interesting article in today's Seattle Times regarding the status of Boeing's GAO protest and what Boeing's next steps might be.

June 10

The GSA proposes to amend the General Services Acquisition Regulation to establish a GSA Mentor-Protege Program, GSAR Case 2006-G501. Comments are due by August 11.

The ASBCA overturned a default termination that had been based on a failure to make progress because the Board found the contractor (Kostmayer Construction) had responded satisfactorily to a cure letter.

June 9

President Bush has amended Executive Order 12989 to read in part as follows: "Sec. 5. (a) Executive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract."

The GAO has amended its bid protest regulations concerning the term "interested party" in A-76 procurements to comply with the requirements of the National Defense Authorization Act for Fiscal Year 2008 and to make several other clarifications to various sections of the rules.  See also the entry under March 21 below.

The GSA is proposing revisions to Part 533 of the General Services Acquisition Regulation concerning protests, disputes, and appeals, GSAR Case 2007-G501. Comments are due by August 8.

I've posted links to a few new SBA OHA decisions concerning SDVOSB status and a slew of size decisions going back as far as March.

In the Richlin Security Service decision, the Supreme Court held that recovery by a prevailing party under the Equal Access to Justice Act may include paralegal fees billed at prevailing market rates.

In Allison Engine Co. v. United States, the Supreme Court held that, under section 3729(a)(2) of the False Claims Act,  a subcontractor can be found liable if it submits a false statement to the prime contractor, intending that the prime use the statement to induce the Government to pay the subcontractor's claim. 

Busy day.

June 7

In the Hedlund Construction case, the CBCA denied the parties' JOINT motion to vacate the Board's prior decision.

June 6

The GSA is proposing rewrites of three parts of the General Services Acquisition Regulation: (i) Part 537 covering service contracting, GSAR Case 2008-G510;  (ii) Part 547 covering transportation, GSAR Case 2006-G518, and (iii) Part 517 covering special contracting methods, GSAR Case 2007-G500.

June 5

The GAO recommended Sysorex be awarded protest costs because the agency delayed until after filing the agency report to take corrective action on a clearly meritorious protest.

In denying General Injectables & Vaccines' petition for rehearing, the Federal Circuit held that the failure of FAR 52.212-4(f) to state specifically that a contractor is liable for unexcused subcontractor delays does not change the fact that the contractor is liable for such delays.

June 4

The SBA is proposing to waive the nonmanufacturer rule for televisions. Comments are due by June 19.

June 2

I have added quite a few new decisions to the webpage of decisions by the SBA's Office of Hearings and Appeals. The standard caveat applies: I list decisions in chronological order; the SBA does not issue them that way; so the new decisions are scattered in my list as far back as February. The most interesting decision in the bunch is Alaka'i, in which the OHA found that the SBA improperly included the owner's spouse's income in determining his net income and net worth for purposes of qualifying as economically disadvantaged.   

May 27

The Department of Homeland Security has announced that the Transportation Security Administration's exemption from the FAR will expire for acquisitions initiated after June 22 and has amended the Homeland Security Acquisition Regulation (i) to remove provisions related to DHS' special streamlined acquisition authority and (ii) to change the name of the Bureau of Immigration and Customs Enforcement to U.S. Immigration and Customs Enforcement, and the name of the Bureau of Customs and Border Protection to U.S. Customs and Border Protection.

May 23

The Metric Construction Co. case includes a good discussion of how the Court of Federal Claims views the various bases for recovery under the constructive change doctrine.

May 19

Effective today, the VA has issued an interim final rule, which implements portions of the Veterans Benefits, Health Care, and Information Technology Act of 2006. That Act requires the VA to verify ownership and control of veteran-owned small businesses, including service-disabled veteran-owned small businesses. According to the new rule, a VA contracting officer Veterans Affairs may restrict a competition for a requirement to an SDVOSB or a VOSB if that business is listed as "verified" in the VetBiz.gov Vendor Information Pages (VIP) database. The rule defines the eligibility requirements for businesses to obtain verified status, explains examination procedures, and establishes records retention and review processes.

May 16

FAR Case 2007-006: a second version of proposed rules concerning contractor compliance program and integrity reporting has been published. Comments are due by July 15.

The SBA is considering waiving the nonmanufacturer rule for Other Aircraft Parts and Auxiliary Equipment Manufacturing (Drones, Miscellaneous Aircraft Accessories, and Components; Aircraft Launching Equipment). Comments are due by June 2.

The redacted version of the winning Contingency Management Group GAO protest has been published. Five or more attorneys were admitted to the protective order for EACH of the winning protesters and the intervenors--TEN lawyers from two firms for just ONE of those intervenors. It's a brave new world where the combined hourly rate of all the participants in a single GAO protest forms a significant portion of the nation's GDP.  ;-)

L-3 Communications Corp. won bid preparation expenses (but not lost profits) at the ASBCA as a result of the Government's breach of the "fair opportunity to be considered" provision covering the solicitation for a delivery order under an ID/IQ contract.

May 14

On reconsideration, the ASBCA has reversed its prior decision in the Raytheon CAS 413 segment-closing case, which had found the contractor liable to the Government for interest for failing to make timely period adjustments to pension costs.  In the most recent Raytheon decision, the Board held that its prior inferences from an unclear record were unjustified. However, the Board also decided that further development of the record is not necessary because the "contract price or cost adjustment did not result from a CAS violation or from a failure to follow a cost accounting practice consistently, which is what the CAS statute and CAS clause require in order for [the contractor] to be liable for a contract price adjustment and interest. . . ." 

The Department of Agriculture's Office of Energy Policies and New Uses has issued three sets of regulations (to be published at 7 C.F.R. Part 2902) designating biobased items for federal procurement. The new regulations include many categories of designated items and are issued in three parts: Part III; Part IV; and Part V.

May 13

DFARS Case 2006-D057: DoD has issued an interim rule amending the DFARS in accordance with Section 852 of the National Defense Authorization Act for Fiscal Year 2007 to ensure that pass-through charges on contracts or subcontracts are not excessive in relation to the cost of work performed by the contractor or subcontractor. The interim regulation includes two, new standard contract clauses (252.215-7003 and -7004). According to the clauses, an "excessive pass-through charge, with respect to a contractor or subcontractor that adds no or negligible value to a contract or subcontract, means a charge to the Government by the contractor or subcontractor that is for indirect costs or profit on work performed by a subcontractor (other than charges for the costs of managing subcontracts and applicable indirect costs and profit based on such costs)." The clauses generally operate when the contractor is subcontracting more than 70% of the work.

May 12

The GSA has published the final rules of procedure for the Civilian Board of Contract Appeals.

May 9

In The CNA Corp. pre-award protest, the Court of Federal Claims overturned a decision by a Health and Human Services contracting officer to exclude an offeror from a competition on the basis of an agency ethics opinion regarding a perceived post employment conflict of interest under 18 U.S.C. 207(a)(1).

May 7

The Watts-Healy Tibbitts decision by the Court of Federal Claims demonstrates how difficult it is to win a protest. The "one thing" that was "clear" to the court was that neither DFARS 252.236-7010 nor the statute on which it is based "clearly define[s] whether a joint venture between an American company and foreign corporation is an American company for the purposes of the twenty percent differential to be applied to foreign corporations." The court also found the agency's responses to bidders' questions on the subject completely unenlightening. Nevertheless, the court did not find the agency's subsequent interpretation of the requirements in this particular solicitation unreasonable.

I love a "gotcha" moment. In the Information Systems & Networks Corp. decision, the Court of Federal Claims wrote: "[T]here is at least one other significant factual kink in plaintiff's assertion that defendant hatched a scheme to terminate it for default and seize its equipment - namely, it was not terminated for default, but rather for convenience."

May 6

Homeland Security has revised its acquisition regulation to delegate authority for  one-step turnkey design-build contracts to the Coast Guard (HSAR Case 2007-002).

The GAO sustained a protest by Native American Industrial Distributors because the awardee failed to provide required letters of commitment for key personnel.

May 5

The seminannual regulatory agenda for the FAR is out. Many individual agencies also are publishing their separate agendas today.

May 2

As any aspiring writer knows, the first paragraph is half the battle, and this one from the CBCA's decision in the Minneapolis Community Development Agency and City of Minneapolis case is a doozy: " 'Most of the disputes in the world arise from words.' Morgan v. Jones, (1773) 98 Eng. Rep. 587, 596 (K.B.). As the appeal pending before us shows, words are no less troublesome in the contract disputes of today than they were when Lord Mansfield, Chief Justice was developing common law to govern commercial transactions." It actually had me looking forward to the ensuing 70+ pages of contract interpretation issues.

May 1

Effective June 2, the Cost Accounting Standards Board of the Office of Federal Procurement Policy has revised Cost Accounting Standard (CAS) 412, "Cost Accounting Standard for composition and measurement of pension cost," and CAS 415, "Accounting for the cost of deferred compensation" to address issues concerning the recognition of the costs of Employee Stock Ownership Plans (ESOPs) under government cost-based contracts and subcontracts. These amendments provide criteria for measuring the costs of ESOPs and their assignment to cost accounting periods and  specify that accounting for the costs of ESOPs will be covered by the provisions of CAS 415.

Effective May 16, the SBA is waiving the nonmanufacturer rule for (i) trash bags manufacturing, (ii) safety zone rubber gloves manufacturing, and (iii) paper products manufacturing.

Effective today, the the Per Diem, Travel and Transportation Allowance Committee of the Defense Department is publishing Civilian Personnel Per Diem Bulletin Number 258, which  lists revisions in the per diem rates prescribed for U.S. Government employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and United States possessions.

April 30

Burns and Roe offers a very short refresher course in the standards and tests the GAO uses in deciding whether to award protest costs.

April 29

Bell BCI won its claim against the NIH at the Court of Federal Claims for the cumulative impact of 200 changes, but the part of the decision I enjoyed the most was this little gem regarding the Government's counterclaim for liquidated damages: "NIH did not believe that it had a factual basis to assert a liquidated damages claim against Bell. NIH asserted this claim only upon the advice of counsel to create negotiating leverage in the event Bell filed a claim. . . ." The Government's witness admitted this at trial. A Perry Mason moment.

April 28

The GSA's Office of Governmentwide Policy invites comments to be submitted by June 27 on a proposed document entitled "Federal Acquisition System Requirements," which gives functional, process, technical and data standards requirements for software developers of Government acquisition and contract writing systems.

April 23

Several DFARS amendments have been issued, including changes related to earned value management policy (DFARS Case 2005-D006), a final rule implementing Section 823 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181), which provides a 5-year extension of the authority for DoD to carry out a pilot program for follow-on contracting for the production of items or processes begun as prototype projects under other transaction agreements (DFARS Case 2008-D008), and a final rule removing an obsolete restriction on the acquisition of propellers from foreign sources (DFARS Case 2007-D027).

The DoD is proposing to amend the DFARS (i) to revise the criteria under which the contract administration office may permit a contractor to release supplies for shipment without government authorization of the shipping documents and (ii) to address review and documentation requirements with regard to the use of time-and-materials contracts for the acquisition of non-commercial services in order to provide for the same level of review for both commercial and non-commercial DoD time-and materials contracts.

In Phillips/May Corp., the Court of Appeals for the Federal Circuit held that the Contract Disputes Act does not permit splitting claims arising under the same contract between a board and the Court of Federal Claims in derogation of the normal standards of res judicata.

April 22

FAC 2005-25 is out today and includes six items, plus a technical amendment: (i) FAR Case 2004-038--an interim rule change to FAR Subpart 4.6 that revises the process for reporting contract actions to the Federal Procurement Data System (FPDS); (ii) FAR Case 2005-040--another interim rule, which requires that small business subcontract reports be submitted using the Electronic Subcontracting Reporting System (eSRS), rather than Standard Form 294 - Subcontract Report for Individual Contracts and Standard Form 295 -Summary Subcontract Report; (iii) FAR Case 2006-033--a rule which amends the FAR to reflect the President's delegation of the Defense Production Act's priorities and allocations authorities in Executive Order 12919, and the current provisions of the DPAS regulations of the Department of Commerce in 15 CFR Part 700; (iv) FAR Case 2005-039--effective May 22, a FAR amendment to clarify language on the use of products containing recovered materials, pursuant to the Resource Conservation and Recovery Act of 1976, and Executive Order 13101; (v) FAR Case 2006-011--also effective May 22, a FAR amendment to add conditions regarding violation of Federal criminal tax laws and delinquent Federal taxes to standards of contractor responsibility, causes for debarment and suspension, and the certifications regarding debarment, suspension, proposed debarment, and other responsibility matters; and (vi) FAR Case 2006-031--a final rule amending FAR 33.211(a)(4)(v) to create a higher dollar ceiling to enable small businesses to use the small claims procedure to appeal a contracting officer's final decision.

The GAO has just published the redacted version of a June 2007 winning protest by IBM against an award by the EPA to CGI. The GAO found the agency's cost/price evaluation was flawed in several respects, but the redactions are so heavy in crucial places that it is difficult to ascertain what is going on. See, e.g., the discussion under "Other CGI costs."

April 21

I've added some newly released SBA OHA decisions. Because the SBA often does not publish its decisions in chronological order (while I list them that way) some of the newly added decisions (e.g., PMTech, J. W. Mills Management, and TKTM Corp.) are down among others already published in my list) while others are at the top.

I haven't been a huge fan of the Court of Federal Claims' reasoning concerning its procurement jurisdiction in Ezenia! Recently, the court had occasion to distinguish that case and provide a much more appealing (hopefully, not appealable) decision in Savantage.

DoD is seeking comments concerning how to define the term "nontraditional defense contractor."

April 18

The Commerce Department's Bureau of Industry and Security (BIS) has published various technical corrections and clarifications to the Export Administration Regulations (EAR).

The BIS has also proposed making conforming changes in certain end-user/end-use controls and to clarify that a party cannot proceed with an export, reexport, or transfer (in-country) that is in transit at the time the party is informed by BIS that a license is required (in accordance with certain end-user/end-use controls in the EAR), unless that party first obtains a license from BIS authorizing the completion of the transaction. Comments are due by June 17.

The ASBCA found a government breach but declined to award breach damages in Total Procurement Service, Inc., because the contractor failed to prove quantum, which is putting it mildly. The Board put it this way: "However, appellant here has failed to prove the amount, reasonableness and allocability of any costs that were incurred. Because of the almost complete absence of documentation or other corroboration of these costs and indeed the destruction of pertinent records, as well as conflicts in the amounts claimed, we also do not consider that a 'jury verdict' is appropriate. The failure to maintain, preserve and promptly produce to the government fundamental accounting data and records goes to the credibility of the entire claim. Appellant's actions with respect to those records were irresponsible and militate against any award."

In Teknocraft, the Board dismissed a claim without prejudice after holding that typing "//signed//" in a signature block was not a defect in a certification that could be remedied at the Board.

April 15

Several ASBCA decisions were published yesterday. Among the more interesting: the Board held it (i) had jurisdiction over NSA contract disputes; (ii) lacked jurisdiction over a claim based on "humanitarian" grounds; and (iii) lacked jurisdiction over Qatar International Trading Co.'s complaint that the Government had lost the contractor's bulldozer after having towed it from an accident site (the actual facts are more complicated and more interesting than this summary). The Board also held that the Government had not extended only some services under the "Option to Extend Services" clause, but, rather, had extended the contract under the "Option to Extend the Contract Term" clause, such that elimination of some services was a partial termination for convenience or a deductive change, entitling Wackhenhut to compensation. 

April 14

Fedcar Company won its GAO protest against the GSA's award of a contract to construct and lease a dedicated campus facility. The GSA admitted it made a mistake in calculating the awardee's price but claimed it would have made no difference in the cost/technical tradeoff evaluation. The GAO gave this argument short shrift: 

"While the agency argues that the outcome of the SSA's cost/technical tradeoff would be the same regardless of the re-calculated price, our Office affords little weight to an agency's post-protest arguments that are based on judgments the agency asserts it would have made because such judgments made in the heat of litigation and based on facts that were not previously considered that are materially different from those on which the agency relied in making the original decision may not represent the fair and considered judgment of the agency. Global, A 1st Flagship Co., B-297235.2, Dec. 27, 2005 2006 CPD para. 14 at 8. Under the circumstances, we give little weight to the agency's assertion that the outcome would have been the same, given that Fedcar now has a significantly greater price advantage than found by the agency when it made its source selection decision. Where a source selection authority bases his or her source selection decision on figures that do not reasonably represent the differences in costs to be incurred under competing proposals, the source selection is not reasonably based. See Gemmo Impianti SpA, B-290427, Aug. 9, 2002, 2002 CPD para. 146 at 5-6."   

Fedcar also obtained meaningful relief because the agency made a counteroffer in the contract it sent the awardee for signature post-award, which meant no enforceable agreement was in place at the time of the protest. Thus, the GAO did not have to worry about disturbing an ongoing contract in fashioning a remedy.

April 11

The State Department is proposing to amend the ITAR to clarify how the criteria of Section 17(c) of the Export Administration Act of 1979 are implemented in accordance with the Department's obligations under the Arms Export Control Act with regard to aircraft components. Comments are due by May 12.

Infrastructure Defense Technologies lost its pre-award bid protest against a sole source solicitation and a related bridge contract in part because it neither submitted a proposal nor filed a protest prior to the date proposals were due.

AT&T didn't win all its protest grounds, but the agency's failure to conduct meaningful discussions with AT&T and its unexplained final evaluation of the awardee's management proposal were sufficient for the GAO to recommend that the agency re-open discussions and re-evaluate.    

April 8

FAR Case 2005-032: Comments are due by June 9 on proposed FAR rule changes to improve the regulations at FAR 32.001, 32.5, and 52.232–16 related to requests for progress payments and Standard Form (SF) 1443, Contractor’s Request for Progress Payments.

The SBA is considering waiving the nonmanufacturer rule for: (i) paper products manufacturing, (ii) safety zone rubber gloves manufacturing,   and (iii) trash bags manufacturing. Comments are due by April 23.

The Chapman Law Firm Co. lost its latest protest at the Court of Federal Claims. Chapman and several other contractors had contracts to perform managing and marketing services in Michigan and Ohio for HUD. The agency did not renew Chapman's contract at its option exercise date. Subsequently, the agency requested input from the remaining contractors as to whether they would like to expand their service territories and at what price. Chapman claimed that the agency violated the Competition in Contracting Act by not soliciting it for these services and that the subsequent modifications to the incumbents' contracts were cardinal changes. The court, however, held that limiting the pool of solicited firms to current incumbents was reasonable and that, since each of their contracts explicitly contemplated it might be modified to increase their areas of service, the modifications were not cardinal changes.  

Adding insult to injury in the latest round of the International Air Response case, the Court of Federal Claims (i) denied the Government's motion for reconsideration of the original  EAJA fee award to the company and (ii) indicated that the contractor was entitled to additional EAJA fees for responding to the motion for reconsideration.

It's my impression that the contractor and his lawyer simply outfoxed the Government's General Manager in drafting the termination settlement agreement at issue in the Government Marketing Group case and that the "clear" meaning of the settlement was not what the Government intended. 

April 7

Effective today, OFCCP has issued a final rule that revises the regulations in 41 CFR part 60-250 implementing the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974.

The Office of Personnel Management is finally getting around to proposing to amend its procurement regulations to recognize the CBCA as the replacement for the ASBCA for appeals under the Federal Employees Group Life Insurance Federal Acquisition Regulation (LIFAR).

April 4 IBM's suspension has been lifted.

The GAO sustained a protest against 8(a) awards for construction services because the agency evaluated the experience of the awardees' parents/affiliates in violation of a clear solicitation statement that the agency would not do so.

April 3

Rick's Mushroom Service couldn't establish a basis for jurisdiction at the Court of Federal Claims, and now the Federal Circuit affirms the lower court's decision because the company's claims either sound in tort or are based on an agreement that does not involve a procurement of goods or services, neither of which is a proper basis for Tucker Act or CDA jurisdiction.

April 2

FAR Case 2006-022: Comments are due by June 2 on a proposed rule that would make several changes to the FAR concerning contractor performance information, including, inter alia, (i) adding a definition of past performance that would include both active and completed contracts, (ii) clarifying the use of the Past Performance Information Retrieval System, (iii) requiring contracting officers to evaluate past performance for orders that exceed the simplified acquisition threshold placed against Federal Supply Schedule contracts, or under a task order contract or a delivery order contract awarded by another agency (i.e. a government-wide acquisition contract or multi-agency contract) and recommending past performance evaluations for orders under single agency contracts, and (iv) requiring the agency to identify the individual responsible for each past performance evaluation.   

April 1 IBM has been suspended--this is not an April Fool's joke.
March 31 Effective today, the DoD has adopted a final DFARS rule (unchanged from the interim rule)  to implement policy regarding contractor personnel authorized to accompany U.S. Armed Forces deployed outside the United States.
March 28

FAR Case 2007-016: a corrected table of contract thresholds has been issued for various trade agreements.

I don't usually report on losing GAO protests, but Brian X. Scott complained that canceling an RFP and obtaining the services under a pre-existing contract was beyond the proper scope of that contract because the individuals working on it had "no responsibility for nothing. . . ." The GAO, however, found those individuals clearly did not have no responsibility for nothing. 

March 27

Am I alone in thinking the SBA's OHA decisions site is difficult to search? At any rate, I have added a bunch of decisions to my SBA OHA Decisions webpage, most of them from February and March, but a few going back much further.

March 26

Describing the holding in the OSG Product Tankers case is like standing in a hall of mirrors in an arcade. OSG originally protested the agency's finding that it was non-responsible, despite its low bid. Subsequently, OSG moved to amend its complaint to allege that the winning bidder was non-responsible. The Court of Federal Claims denied that motion and now denies OSG's motion to make an interlocutory appeal of the court's earlier ruling.  The court reasons that OSG does not have standing to challenge the responsibility of the winning bidder because OSG has been found non-responsible and, therefore, lacks a substantial chance of award, even though, if OSG wins its basic protest, it will be awarded the contract as the low, responsible bidder.

FAR Case 2007-017: Service Contractor Employee Personal Conflicts of Interest--Public comments are being solicited by May 27 concerning whether there is a need for a set of regulatory and contract FAR provisions specifically covering personal conflicts of interest by employees of service contractors. Because the federal government is increasingly using service contractors to perform work formerly performed by federal employees, there is a concern that these private employees are not subject to the same ethical standards and obligations as their federal counterparts.

FAR Case 2007-018: Organization Conflicts of Interest--for the same reason as above, comments are also being solicited concerning whether there is a need for increased regulatory coverage of the the subject of organizational conflicts of interest.

Effective April 25, the Cost Accounting Standards Board has adopted, without change, the proposed rule establishing a clause to be used in CAS-covered contracts and subcontracts with foreign entities. See 48 C.F.R. 9903.201-4.

March 25

OMB has established $612,196 as the maximum executive benchmark compensation allowable under government contracts in contractors' fiscal 2008.

March 24

Effective today, the State Department is amending the ITAR to deny licenses and other approvals to export or otherwise transfer defense articles and defense services to Sri Lanka except, on a case-by-case basis, for technical data or equipment made available for the limited purposes of maritime and air surveillance and communications, in order to comply with the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2008.

March 21

The GAO is proposing to amend its bid protest regulations to implement the requirements in section 326 of the National Defense Authorization Act for Fiscal Year 2008, which expands the protest rights of federal employees in an A-76 competition to grant "any one individual" who represents the majority of affected employees the status of an "interested party" to file a protest at GAO or the status of an intervenor to participate in a protest filed at GAO, to remove the current restriction limiting protests of A-76 competitions to those competitions affecting 65 or more fulltime equivalent employees of a federal agency, and to allow a protest of a decision to convert a function performed by federal employees to private sector performance without a competition. Comments are due by April 21.

Effective April 7, the SBA is waiving the nonmanufacturer rule for "All Other Miscellaneous Electrical Equipment and Component Manufacturing (Indoor and Outdoor Electrical Lighting Fixtures)."

March 20

In the Stout Road Associates case, a DLA intern made hotel reservations for herself and other interns at the site of DLA training classes. The classes were canceled; the intern canceled the reservations; and the hotel attempted to collect cancellation fees from the agency pursuant to the agreement the intern had signed. The Court of Federal Claims found the Government was not liable because the intern did not have the authority to enter into a government contract. The plaintiff also argued ratification, but the court found that the intern's superiors were not contracting officers either.

Some decisions send chills down an attorney's spine. A case in point is West Bay Builders, in which the Court of Federal Claims refused to permit the contractor to withdraw admissions it was deemed to have made by failing to provide a timely response to defendant's request for admissions. The plaintiff's cause was not aided by the fact that (more than seven months before plaintiff finally filed its motion requesting that the deemed admissions be withdrawn) the plaintiff had signed a joint status report to the court noting that the discovery responses were already overdue.

March 19

The GAO finally published the redacted version of a winning protest originally decided in May 2007. The Defense Information Systems Agency's evaluation of the proposal of Apptis, Inc. was improper because the agency irrationally evaluated past performance under technical approach risk and failed to alert the protester to deficiencies in its proposal during discussions. The protester's allegation that one evaluator had a conflict of interest was untimely because the protester knew of this grounds for protest before submitting its offer but did not protest until after award.

Finally, a non-Winstar 2008 Federal Circuit decision on a contract dispute. The court upheld the ASBCA's decision sustaining a termination for default in the General Injectables & Vaccines case. The contractor could not supply flu vaccine produced by its subcontractor because the FDA found it was contaminated. The contractor argued the FDA's action was governmental action constituting an excuse for nonperformance. The court held that the underlying cause was the subcontractor's default, which was attributable to the prime, even under the controlling, commercial items, "Excusable Delays" provision (FAR 52.212-4(f), which does not include the traditional language that the default must be without the fault of the contractor "or its subcontractors. . . "). In other words, even in contracts for commercial items, the contractor is responsible for delays and defaults attributable to its subcontractors.

The Court of Federal Claims has spanked the GSA a second time after its inadequate response to an earlier protest decision.  In the original protest, the court set aside the GSA's award of a Federal Business Opportunities ("FBO") contract to Symplicity Corp. The GSA subsequently re-evaluated and then re-awarded the contract to the same company. Information Sciences protested the second award. Now, the court has set it aside, too, and has directed the GSA to issue a revised solicitation. Will the GSA try for a threepeat?

March 18

Although the contractor was not successful in its claim, the ASBCA's decision in the Fox Construction case includes a discussion of the seldom used "loss of production" theory of recovery. 

In Mr. Michael Ronchetti, the ASBCA found it lacked jurisdiction over a subcontractor's claim that was not sponsored by the prime.

In Southern Oregon Ecological (SOE) , the CBCA cut the appellant some slack in specifying its damages because of its small business status: "SOE is appearing pro se . . . and is a small business concern, which appears to be essentially a one-man operation that hires subcontractors to perform the work. SOE is not expected to have the accounting system that a large company would have."

March 13 Effective March 19, the FTR's mileage allowance for privately owned vehicles is increasing from .485 to .505 per mile.
March 12

In Northrop Grumman, Military Aircraft Division, the CoFC held that certain Claim Research Papers drafted to assist the Contracting Officer in making a decision and prepared primarily by contractual and technical staff were not privileged and were properly disclosed voluntarily by the Government, even though a government attorney had some part in their preparation and they had been stamped with a legend that they had been prepared in anticipation of litigation. Thus, the Government's disclosure of the documents was not a waiver of any claim of privilege with regard to other documents concerning the same issues.

From now on, I make no promises to keep up to date on my SBA OHA webpage with all the NAICS code appeals of DCX/CHOL Enterprises. The company apparently spends much of its time and energy pursuing these appeals, but I'm just not sufficiently interested to keep reading and posting them all.

March 11 Boeing is protesting the tanker contract award at the GAO. 

The SBA issued several corrections/clarifications to previously published size standards.

March 10

FAR Case 2006-034: This proposed rule is intended to ensure that the FAR clearly reflects the SBA's interpretation of the Small Business Act and the SBA's own regulations concerning the order of precedence that applies when deciding whether to satisfy a requirement through an award to a small business, a HUBZone small business concern, an SDVOSB concern or an 8(a) company. Specifically the proposed rule is intended to make the following four things clear: (1) although there is no order of precedence among the 8(a), HUBZone, or SDVOSB programs, if a requirement has been accepted by SBA under the 8(a) program, it must remain there unless SBA agrees to its release in accordance with 13 CFR 124, 125 and 126;. (2) for acquisitions exceeding $100,000, the contracting officer must consider making award under the 8(a), HUBZone or SDVOSB programs (either set-aside or sole source) before the contracting officer proceeds with a small business set-aside, and, after such consideration, the contracting officer may set aside an acquisition for small businesses, unless the criteria for setting it aside for HUBZone small businesses are met; (3) FAR 19.502-2(a) sets forth the requirement to exclusively reserve acquisitions between $3,000 and $100,000 for small businesses unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more small businesses that are competitive in terms of market prices, quality, and delivery, and the proposed rule clarifies that these small business set-asides do not preclude award of a contract to a qualified HUBZone small business, an 8(a) concern, or an SDVOSB concern because the SBA’s regulations give the contracting officer discretionary authority to use the HUBZone, 8(a), or SDVOSB programs at these dollar levels (and the rule shows that, unlike procurements that are expected to exceed $100,000, it is not mandatory that the contracting officer set aside an acquisition for HUBZone small business concerns before setting aside the requirement for small businesses); and (4) the SBA believes that progress in fulfilling the various small business goals, as well as other factors such as the results of market research and the acquisition history, should be considered in making a decision as to which program to use for the acquisition. Comments are due by May 9.

March 7

Effective March 17, the GSA is revising the FTR's maximum per diem rates for certain areas of Alabama, California, Illinois, Missouri, and Texas.

March 6

The Court of Federal Claims sustained an important post-award protest by Serco and seven other plaintiff/offerors under the GSA's Alliant Solicitation No. TQ2006MCB0001 because, in selecting multiple awardees, the agency used a flawed  past performance evaluation and seemed not to have conducted a required price/technical trade-off analysis. The court enjoined performance under all contracts awarded in response to the solicitation.

The Court of Federal Claims' most recent decision in the Information Sciences protest ostensibly involves only a motion to amend the complaint, but it includes an interesting discussion of post-award actions by an agency of which a protester may complain under The Competition in Contracting Act.

The SBA is considering waiving the Nonmanufacturer Rule for "All Other Miscellaneous Electrical Equipment and Component Manufacturing." Comments are due by March 21.

March 4

The ASBCA's decision in the AEI Pacific construction case has some good, black letter discussions of accord and satisfaction; duty to cooperate; defective specifications; and compensable delays.

Tri-State Consultants tried almost every theory of construction contract recovery in the book, all to no avail.

The ASBCA dismissed Valenzuela Engineering's appeal because, as a suspended corporation under California law, it lacked the capacity to maintain the appeal.

FloorPro defies a brief summary but concerns situations in which third party beneficiaries have standing and jurisdiction to pursue an appeal before the ASBCA.

The EPA is proposing to amend its acquisition regulation (the EPAAR) to revise the prescription for using the "Technical Direction" clause and the clause, itself. The clause describes the circumstances in which technical direction may be provided to contractors, the types of direction that may be provided, and the role of the Contracting Officer's technical representative in issuing such direction.

The GSA is proposing to amend the Federal Travel Regulation (FTR) provisions relating to the use of U. S. Flag air carriers under the provisions of the Fly America Act and to make the regulations consistent with the Open Skies Air Transport Agreement between the U.S. and the European Union.

March 3

Today, the Court of Federal Claims published a redesigned website and changed many of the web addresses for pages in the website, including the addresses for every decision published by the court. I have updated all my webpage hyperlinks to CoFC decisions accordingly. However, in that process I lost my way to the recent International Air Response decision related to the EAJA and referenced at the  February 16 entry below, so, if anybody finds a good link to that decision, I'd appreciate it if you would email that information to me. Thank you.

DFARS Case 2002-D002: Effective today, DoD has adopted as final (with certain changes) an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 832 of the National Defense Authorization Act for Fiscal Year 2002. Section 832 codified (and made modifications to) the Berry Amendment, which requires the acquisition of certain items from domestic sources. The latest changes affect the following sections in the DFARS: 225.7002-2; 252.212-7001; and 252.225-7012.

DFARS Case 2006-D049: Also effective today, DoD has issued a final rule amending the DFARS to require use of the Wide Area WorkFlow electronic system for submitting and processing payment requests and receiving reports under DoD contracts, in order to facilitate timely and accurate payments to DoD contractors.

February 29

Northrop and the manufacturer of Airbus beat out Boeing for a $35 billion Air Force contract for refueling tanker aircraft.

The Department of Energy makes various changes to its regulations, including its acquisition regulations (the DEAR) to conform them to a 1991 amendment of the Defense Production Act with regard to the Defense Priorities and and Allocations System (DPAS). Better late than never.

February 28

In Axiom Resource Management, Inc. v. United States, an important decision involving organizational conflicts of interest, after the Court of Federal Claims found such conflicts in Lockheed Martin Federal Health Insurance's TRICARE contract, and the Government refused to accede to any type of ongoing court monitoring of a contractual mitigation plan, the court enjoined the Government from exercising the contract options. The dialogue among the judge, government counsel, and Lockheed's counsel, which is included in the body of the opinion, is extremely interesting.  

Federal Acquisition Circular (FAC) 2005-24 was published today. It includes six items: (1) FAR Case 2005-011--(effective March 31) adding new subpart 25.3 to the FAR covering contractor personnel that are providing support to the mission of the United States Government in a designated operational area or supporting a diplomatic or consular mission outside the United States, but are not authorized to accompany the U.S. Armed Forces; (2) FAR Case 2006-16--amending the FAR to update and clarify policy for synopses of proposed contract actions and to delete all references to Numbered Notes ; (3) FAR Case 2007-16--(effective February 28), incorporating increased thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative; (4) FAR Case 2006-28--(effective February 28) adopting (without change) the interim rule published in the Federal Register at 72 FR 46357 (August 17, 2007) and amending the FAR to implement the Dominican Republic-Central America-United States Free Trade Agreement with respect to the Dominican Republic; (5) FAR Case 2005-27--(effective March 31) amending the FAR to implement revisions to the regulations related to the administration of the Cost Accounting Standards; and (6) FAR Case 2007-004--(effective March 31), amending the FAR to require agencies to include common security configurations in new information technology acquisitions, as appropriate, to reduce the risks associated with security threats and vulnerabilities and to enhance public confidence in the confidentiality, integrity, and availability of Government information. (This final rule requires contracting officers to consult with the requiring official to ensure the proper standards are incorporated in their requirements.)

February 27

There is an interesting GAO report just out on the operation of the Judgment Fund under the Contract Disputes Act.  

February 26

The SBA's Office of Hearings and Appeals has published quite a few decisions recently, so I have tried to catch up on my summary page.

February 20

Because the DoD exceeded its 5% goal for awards to small disadvantaged businesses in fiscal 2007, it is suspending the price evaluation adjustment for such businesses for one year beginning March 10.

February 19

The Department of Energy is proposing to amend its acquisition regulation (the DEAR) to revise the security clause used in all contracts and subcontracts involving access authorizations to specifically require background checks and tests for the absence of any illegal drug of uncleared personnel (employment applicants and current employees) who will require access authorizations. Comments are due by March 20.

February 16

International Air Response is yet another example of a judge scolding the Government for resisting its obligations under the EAJA.

February 15

After an interesting analysis of the scope and meaning of the Antideficiency Act and an indemnification clause in a World War II contract for the supply of aviation fuel to the Government, the Court of Federal Claims found the Government responsible for cleanup costs for which the contractors (Shell Oil, Union Oil, Atlantic Richfield, and Texaco) were found liable under CERCLA long after the war and long after the contracts had expired.

February 13

The Cost Accounting Standards Board has requested public comments on a staff discussion paper concerning whether to revise the longstanding CAS 403 thresholds (48 C.F.R. 9904.403-40(c)(2)) for determining whether home office residual expenses must be allocated to segments. Comments are due by April 14. The Board also announced its decision to retain the exemption from CAS coverage for contracts executed and performed outside the United States.

February 12

There are plenty of fancy Latin-named rules for the interpretation of ambiguous contracts, but in the Manhattan Construction Company case, the Court of Federal Claims used good, old-fashioned grammar to determine the meaning of the phrase "as indicated in the drawings." Specifically, the court wrote: "Rules of grammar state that the subordinate clause 'as indicated on the drawings' modifies the noun or independent clause immediately preceding it. See Frederick C. Crews, The Random House Handbook 242 (5th ed. 1987). Also, the absence of a comma before the clause denotes that it applies only to the final noun or clause. See Resolution Trust Corp. v. Nernberg, 3 F.3d 62, 65 (3d Cir. 1993). Plaintiff's interpretation might have had support if a comma set off the subordinating clause; but the disputed clause, 'as indicated on the drawings,' does not have an offsetting comma. See Id. (noting that a comma preceding a subordinate clause 'may indicate that the qualifying language [applies] to all of the previous phrases and not merely the immediately preceding phrase[].'); Demko v. United States, 44 Fed. Cl. 83, 87-88 (Fed. Cl. 1999) (using normal rules of punctuation to interpret a statute). Thus, the lack of a comma setting off the modifying phrase, 'as indicated in the drawings,' confirms that it does not apply to all of the preceding phrases."   The next time your children (or, in the case of my generation, grandchildren) ask you why they have to learn these rules, you have your answer. ;-) 

In Enron Federal Solutions ("EFSI"), the contractor had a privatization contract to buy the Government's dilapidated utility services plant, make certain capital improvements to it, and then provide utility services to the Government for a 10-year period, with the monthly price designed to cover the cost of the services and gradually to pay for the original capital improvements. After EFSI completed the capital improvements and the first two years of service, it defaulted on its obligations and was terminated for default. The court denied EFSI's attempt to recoup the remaining costs of the capital improvements. The court based its decision in large part on an extensive analysis of the common law definition of a material breach and the common law consequences of such a breach.   

February 8

The GAO has issued a report to the Senate Armed Services Committee recommending improvements in the DoD's practices and processes for multiyear procurements.

February 6 The ASBCA published several decisions today.

In Northrop Grumman Ship Systems, the Board held that a contractor could appeal from the Contracting Officer's failure to issue a decision on a claim without asking the Board to direct him to do so: "In this case, the contracting officer neither issued a timely decision nor notified appellant when he would do so. The CDA does not require the contractor to ask the Board to direct the contracting officer to issue a decision before the contractor can appeal from the deemed denial of its claim; it merely permits the contractor to do so, at its option."

In General Dynamics C4 Systems, the Board decided several issues relating to option contracts, including whether alleged government violations of FAR 17.202(c)(1) and 17.204(e) in exercising options entitled the contractor to relief.

February 5

The GAO issued two decisions sustaining protests, one of which (Systems Research and Applications Corp.) originally was decided in September 2007 (the redactions took awhile). The other (Data Integrators) involved the agency's improper acceptance of a late quotation. Also, in Eagle Home Medical Corp., the GAO recommended the protester be reimbursed its protest costs because the agency delayed unreasonably (until after filing the agency report and the protester's comments) in taking corrective action on a clearly meritorious protest.

February 4

The Court of Federal Claims has scolded the Government for attempting to withhold far too many documents under claimed work product, deliberative process, and attorney-client privileges in Chevron U.S.A., Inc. v. United States

In USProtect Corporation, the contractor appealed to the Board from the Contracting Officer's failure to issue a decision on a claim within the statutory time limits. The Board docketed the appeal, then suspended proceedings in part because the Government said it needed additional time to issue a decision and also to permit the parties to discuss settlement. Those discussions were unavailing so the Government finally issued a decision on the contractor's claim, and, at the same time, issued a decision on a government counterclaim. The contractor did not appeal the decision to the Board. The Government then attempted to amend its pleadings at the Board to include the counterclaim. The Board dismissed the counterclaim for lack of jurisdiction because the contractor had not appealed it (and still had time to appeal to the Court of Federal Claims). The contractor did not have to appeal the Government's belated decision on the contractor's claim--the docketing of the contractor's original appeal was enough to sustain continued jurisdiction. 

In Bowers Investment Company, the CBCA dismissed an appeal for lack of jurisdiction because the contractor had failed to submit a claim to the Contracting Officer, but instead had appealed after ADR procedures had failed to completely resolve its disputes with the agency. 

February 1

Executive Order 13457 of January 29, 2008, addresses earmarking and provides in pertinent part:  "For appropriations laws and other legislation enacted after the date of this order, executive agencies should not commit, obligate, or expend funds on the basis of earmarks included in any non-statutory source, including requests in reports of committees of the Congress or other congressional documents, or communications from or on behalf of Members of Congress, or any other non-statutory source, except when required by law or when an agency has itself determined a project, program, activity, grant, or other transaction to have merit under statutory criteria or other merit-based decisionmaking."

In Stevens Van Lines, the Court of Federal Claims found a contract on the basis of the "implied actual authority" of the Government's agents. 

In Bill Hubbard, the court (as directed by the Federal Circuit) recalculated (and reduced) an EAJA award based on the standards in Hensley v. Eckerhart, 461 U.S. 424 (1983)

January 31

A proposed FAR rule (section 6.302-2(d)) would limit the length of contracts awarded noncompetitively under unusual and compelling urgency circumstances to the minimum time necessary to meet the requirements, and no longer than one year, unless approved by the head of the contracting activity.

Biltmore Forest Broadcasting lost a suit in district court challenging the FCC's award of a broadcast license. It tried again in the guise of a bid protest at the Court of Federal Claims. The court, however, recognized the issue already had been litigated.

January 29

Effective February 13, the SBA is waiving the nonmanufacturer rule for "Irradiation Apparatus Manufacturing, Computerized axial tomography (CT/CAT) scanners manufacturing; CT/CAT (computerized axial tomography) scanners manufacturing; Fluoroscopes manufacturing; Fluoroscopic X-ray apparatus and tubes manufacturing; Generators, X-ray, manufacturing; Irradiation equipment manufacturing; X-ray generators manufacturing; and X-ray irradiation equipment manufacturing."

January 28

There is a NAICS code protest decision by the SBA's Office of Hearings and Appeals regarding a solicitation for portable toilets. The protester is a firm called "King's Thrones." 'Nuff said.

The recent Civilian Board of Contract Appeals decision in Blackstone Consulting is interesting. Shortly after the contractor complained of sexual harassment by the COR's husband, the Government began taking more and more unilateral deductions for allegedly inadequate performance by the contractor, until the contractor wrote that it was being forced to exercise its right to cancel the contract within 120 days. The next yearly option exercise period came up before that 120 period expired, and the Government did not exercise the option. The contractor subsequently filed a claim for, among other things, anticipatory profits for the unexercised option year and the succeeding option year. The Board found the claim for the future option year too speculative, but the claim for the first unexercised year survived the Government's motion for summary dismissal.

I have updated the pages listing recent PSBCA decisions and recent decisions by the SBA's Office of Hearings and Appeals.

January 27

Effective February 12, the SBA is waiving the nonmanufacturer rule for (i) All Other Miscellaneous Electrical Equipment and Component Manufacturing (Fluorescent Lamps, Incandescent Lamps, etc) and (ii) All Other Miscellaneous Electrical Equipment and Component Manufacturing (Electric Lamp Starters and Lamp Holders, etc.).

January 24

Several DFARS amendments have been published: (i) DFARS Case 2006-D045--text regarding contract close-out procedures has been removed from the DFARS and relocated to the DoD Procedures, Guidance, and Information (PGI) resource; (ii) DFARS Case 2004-D017--text regarding combating trafficking in persons has been removed from the DFARS (sections 222.17 and 252.222-7006) because it is now covered in the FAR; (iii) DFARS Case 2007-D005--a new DFARS subpart 212.1 requires that, when using FAR Part 12 procedures for acquisitions exceeding $1 million in value, the contracting officer must determine in writing that the acquisition meets the "commercial item" definition in FAR 2.101, and the contracting officer must include the written determination to this effect in the contract file; (iv) DFARS Case 2007-D010 deletes text regarding withholding payments on T&M and labor-hour contracts from DFARS 232.111 and 252.232-7006, because the subject is covered in FAR 32.111 and 52.232-7; (v) DFARS Case 2006-D053--an interim rule amending the DFARS (sections 232.004 and 235.006) to implement Section 818 of the National Defense Authorization Act for Fiscal Year 2007, which requires DoD to modify its regulations regarding the determination of contract type for major development programs to address the assessment of program risk, and (vi) DFARS Case 2007-D023--an interim rule amends DFARS 225.1101 and 225.7503 to reflect increased dollar thresholds for implementation of various trade agreements. 

You can read an interesting story on earmarking issues here.

January 19

I don't discuss every single case here that I list on other pages of the site, but the story behind the Court of Federal Claims' decision in the International Management Services (IMS) protest deserves some space. Shortly after a firm won a small business set aside, three of its competitors (including IMS) protested that it was not small. They won, so the agency rescinded the contract and awarded it to IMS. The two competitors who had originally protested the first award with IMS then challenged IMS' small business status, and they won. So, IMS lost its contract, and one of the remaining two competitors ascended the throne. There were further fights between the competitors over their status. Then, at the CoFC, IMS claimed that both the remaining companies were other than small and that the solicitation should never have been set aside in the first place. IMS lost on standing and justiciability issues, but the overriding impression one gets from the case is the administrative nightmare often created in the course of carrying out even a laudable mandate. 

January 16

The GAO sustained a protest by Superlative Technologies. After the agency cancelled a solicitation because source selection sensitive information may have been improperly provided to an offeror, the agency turned around and awarded a sole source contract to a team that included that same offeror, which had submitted essentially the same proposal as it had in the canceled procurement. The GAO hinted the agency may have chosen this course of action just to avoid further scrutiny of the original problem. The agency? The Department of Justice.

January 15

The largest government contractors receive the most contracts without competition. Now, there's a big surprise. [Sarcasm] 

The VA has rewritten its acquisition regulation (VAAR), 48 C.F.R. Chapter 8,   in "plain language."

January 14

LABAT-Anderson lost its principal appeal before the ASBCA because (i) to the extent the ambiguity of which it complained was patent, it failed to raise the issue with the Contracting Officer prior to bidding; and (ii) to extent the ambiguity was latent, the contractor's interpretation was outside the "zone of reasonableness." In any event, the contractor had not relied on its suggested interpretation in bidding the job.

January 11

The GAO sustained a protest because the procuring agency determined a bidder was nonresponsive due to lack of SDVOSB status, a matter that is within the exclusive jurisdiction of the SBA.

Need a quick refresher course in constructive changes, defective specifications,  government misrepresentations, and "jury verdict" quantum calculations?  Metric Construction Co. is the case for you. The contractor prevailed in its claim for the costs of repairing leaks in a roof it had installed. The court found (i) the Government's design specifications for the roof support structure were defective (even though the specs for the roof, itself, were performance specifications) and (ii) the Government gave an ambiguous, misleading reply to the contractor's request for guidance as to how to proceed once the contractor noticed problems with the roof installation during performance. In addition, the court used an approximation method for calculating the contractor's damages: "No better method (other than the rough calculations presented in this opinion) for computing damages exists, given the perplexing nature of the origin of roof leaks, which would provide a more precise dollar amount for the [Government's] liability in this case."

EPA is amending its acquisition regulation (48 C.F.R. Chapter 15) to add a section 1515.401-70 (along with associated contract clauses), which establishes award term incentives as a means of enabling a contractor to become eligible for additional periods of performance under a current contract by achieving prescribed performance measures under that contract.

A partnership of Fluor, Honeywell, and Newport News (a.k.a. Savannah River Nuclear Solutions) has won a 5 year, $800 million per year contract to operate and manage the Savannah River nuclear site.

January 10

Several DFARS amendments have been published: (i) DFARS Case 2006-D032: revisions to harmonize DFARS online representations and and certifications requirements (ORCA) with those in the FAR; (ii) DFARS Case 2006-D051: an interim rule to implement the Defense Authorization Act for Fiscal 2007 requirement that prohibits contractors who act as lead system integrators on major systems acquisitions from having any financial interest in the development or construction of any system element unless an exception applies; (iii) DFARS Case 2007-D019: a final rule to address procedures for preparation of the written determination required by the FAR that none of the functions to be performed by contract are inherently governmental; (iv) DFARS Case 2007-D016: an interim rule implementing another section of the National Defense Authorization Act for Fiscal 2007 to establish a quality control policy for the procurement, modification, repair, and overhaul of ship critical safety items; (v) DFARS Case 2006-D023: a final rule implementing the Federal Information Security Management Act of 2002 (44 U.S.C. 3541 et seq.) to address training requirements that apply to contractor personnel who perform information assurance functions for DoD; (vi) DFARS Case 2006-D062: an interim rule implementing the Dominican Republic-Central America-United States Free Trade Agreement with respect to the Dominican Republic, and adding Bulgaria and Romania to the list of countries covered by the World Trade Organization Government Procurement Agreement; and (vii) DFARS Case 2006-D024: a final rule to address requirements for the distribution of material inspection and receiving reports under DoD contracts.

January 9

Ezenia! strove mightily to convince the CoFC that it was not protesting the Army's earlier decision to standardize the software it was using for a particular purpose for reasons of interoperability (by specifying Adobe Connect software), but, instead, was challenging an invalid sole source award. The CoFC concluded that the standardization decision was, in reality, what Ezenia! was protesting and that the court lacked jurisdiction because such a protest was not of a procurement or of a solicitation.     

January 8

In DKW Construction, the CBCA denied the contractor's appeal from a government claim to collect an overpayment on a T&M contract. The contractor argued (for the first time on appeal, which didn't help) that it was forced to enter into the contract at a much lower ceiling price than its proposed price. The Board noted that, since the contractor was free to stop work when it reached the ceiling, the source of the alleged duress was difficult to discern. The contractor also argued that the Government's audit of its costs was improper. The Board noted that the contractor had participated fully in the audit process without objection.

January 7

Two DoD contractors have been charged with conspiring to steal information on fuel supply contracts.

January 4

OFPP is proposing to issue a policy letter on the acquisition of green products and services by federal agencies. 

January 3

In a press release, the GAO announced that it was sustaining (in part) Pemco Aeroplex's protest because the agency had not properly evaluated changes in the awardee's cost proposal. The Press Release noted the GAO was not addressing the protester's contentions of bias because the source selection official associated with those contentions had (apparently) committed suicide, and the matter was still under investigation.

John Kerry has criticized the SBA's proposed rules for women-owned small business contracting (see December 27 entry below) as being too narrow in scope.

January 2

The Bureau of Industry and Security has issued a slew of revisions to the Export Administration Regulations (EAR), most of which are technical corrections. However, there are some substantive revisions, including removing certain non-Country Group D countries from Country Group D, removing a reference to Libya under embargoed destinations, clarifying the requirements for obtaining an Import Certificate or an End-User Statement, changing Validated End-User report requirements, and removing references to certain entries on the Commerce Control List.

The ASBCA published five decisions, all originally issued in late December, involving (i) government deductions for substandard work, (ii) PPA interest, (iii) an interest claim released by a contract modification, (iv) a net credit due the Government on a convenience termination, and (v) the prime's failure to certify a sponsored subcontractor claim (even though the sub had certified it).

January 1

I've written a review and analysis of developments in  government contracting in 2007. I'll probably be adding a few more 2007 developments to it as they straggle in over the next few days.

If you'd rather access  the 2007 blog instead of the 2007 procurement review, you can find the complete 2007 blog here.

_________

2007

 

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