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Developments in Government Contracting--2009



December 31

The Department of Defense Appropriations Act, 2010, Public Law 111-118, was enacted December 19.

Beginning January 1, the CDA prompt payment interest rate is 3 1/4 percent.

December 30

Five new ASBCA decisions have been published. Three are essentially requests for reconsideration of earlier decisions. The Government won its motions for summary judgment dismissing various claims by Bruce E. Zoeller because those claims already had been decided by the Board and the Court of Federal Claims. Corners and Edges (which is certainly tenacious) lost another round of various motions for rehearing, recusal, and reconsideration. SUFI Network Services lost on most of its grounds in its second request for reconsideration, but did obtain some additional monetary relief in a couple of areas.

Mark O'Connor deals with the Government's liability for cost of various repairs under the "Restoration" clause of its military housing lease. R. L. Bates General Contractor Paving & Assocs. lost on most of its claims related to road paving and repairs, but did prove it was entitled to the return of unearned Prompt Payment discounts improperly deducted from its invoices by the Government.

By the way, if you are wondering why I mentioned all five decisions here, when none of them breaks new legal ground, I am working on changes to some of my other web pages (including the "Recent ASBCA Decisions" page, where I normally would have listed these decisions), and I won't publish those changes until Monday, so this is a temporary solution.  

December 29

In Unisys Corp., the Court of Federal Claims discussed the confusing recent history of the statutes and regulations governing the Transportation Security Administration ("TSA") and concluded that CICA's automatic stay provisions now apply to protests of TSA procurements at the GAO.

The DoD is adopting as final (with only a minor change) the interim rule that amended the DFARS to implement Section 802(a) of the National Defense Authorization Act for Fiscal Year 2007 (and DoD policy mandates) to require the DoD to assess long-term technical data and computer software needs when acquiring major weapon systems and subsystems.

The Office of the United States Trade Representative has published the procurement thresholds applicable to a wide range of trade agreements. 

December 25 Merry Christmas, everyone!
December 24

Sometimes an agency's perseverance (obstinance) prevails. After losing two GAO protests, the Bureau of Prisons stuck with its choice for contractor on the second required reevaluation, and Bannum lost the third GAO protest of that decision. Now, Bannum loses again at the Court of Federal Claims on the oft-repeated principle that its mere disagreement with the agency's evaluation of various factors is not sufficient to sustain the protest.

Several DFARS regulations have been published:

DFARS Case 2007-D004, entitled "Allowability of Costs to Lease Government Equipment for Display or Demonstration," is a final rule specifying that monies paid to the Government for the leasing of government equipment are unallowable, except in the case of foreign military sales contracts.

DFARS Case 2005-D010, entitled "Definitions of Component and Domestic Manufacture," revises the definitions of those terms in order to clarify the distinction between foreign acquisition policies that apply only to top-level components of end products and those that apply to both top-level and lower-tier components of end products.

DFARS Case 2008-D009, entitled "Statutory Waiver for Commercially Available Off-the-Shelf Items," adopts as final (without change) the interim rule conforming the DFARS to the FAR changes implementing the waiver of the component test of the Buy American Act to contracts and subcontracts  for the acquisition of COTS items.

December 23

The Commerce Department's Bureau of Industry and Security published a final rule to amend certain requirements in the Export Administration Regulations (EAR) that apply to Albania and Croatia, based upon the accession of those two countries to formal membership in NATO on April 1, 2009.

December 22

The SBA has issued the following correction to 13 C.F.R. §121.201 in its small business size regulations: "[I]n the table [entitled] 'Small Business Size Standards by NAICS Industry,' under Sector 54, Subsector 541, remove the three subentries under NAICS code 541712, beginning with the word 'EXCEPT'."

The GAO sustained the protest of Coastal Environments because the agency did not include any but the highest technically ranked, highest priced proposals in its tradeoff analysis, even though lower priced proposals were judged technically acceptable and low risk.

December 18

The GAO published the decision it had earlier announced (see December 14 entry below) sustaining the protests of Navistar Defense and BAE Systems against the Army's award to Oshkosh for the production of the family of medium tactical vehicles because there was no basis in the record for the past performance evaluation; and the risk evaluation of existing production capabilities was improper.   

December 16

The Court of Federal Claims published several new decisions re contract disputes--

Digital Technologies (DTI) is a fascinating case. As a result of a complicated set of facts and a series of past protests (all of which are explained in interesting, if lengthy,  detail in the court's opinion), the Government (while originally intending to award only one ID/IQ contract) ended up with two of them and specifically included clauses and procedures in each that guaranteed the contractors the fair opportunity to compete for task orders to be issued under them. After having ordered (more than) the minimum amount required by its contract with DTI, the Government exercised the contract option only in the second contract and allowed DTI's contract to expire. DTI filed a contract claim under the CDA, alleging breach of the duty to give it a fair opportunity to compete for orders and a bad faith failure to exercise its option. The Government sought dismissal on the grounds that this was a thinly disguised bid protest subject to the statutory limitation on task order protests. The court ultimately disagreed with the Government. To reach that conclusion, the court (more than 30 years now after the effective date of the CDA) became the latest forum (in a very, very long line) to note that it must examine whether this was a CDA claim because the CDA does not define that term (which is my pet CDA peeve). Ultimately, the court concluded that the contractor's submission  was a CDA claim and rejected the Government's motion to dismiss.

In CBS Corp., the court held that the proper date to consider a segment closed under the original version of CAS 413-50(c)(12)(1986) was the date the contractor had closed its plant and transferred all remaining work on its sole government contract to another segment rather than the date its subcontractor had finally completed all its work on the subcontract, as the Government had contended.

In a companion case issued the same day, the court examined whether a segment-closing calculation must include (and whether the Government is liable for) pension assets and liabilities transferred to another company in a segment sale. Ultimately, the court concluded that "the [G]overnment is not liable to CBS for pension costs attributable to the pension deficit transferred to [segment buyer] and CBS is not entitled to payment for that transferred deficit."     

Minor changes and corrections have been made to (i) the Department of Homeland Security's regulations prohibiting awards of guard services contracts to firms owned by convicted felons and (ii) the Rules of Procedure for the Civilian Board of Contract Appeals.

December 15

In McDonnell Douglas Services, the ASBCA dismissed the Government's claim for defective pricing against the contractor's sub because it was time-barred by the CDA's six-year statute of limitations. 

GSAR Case 2007-G507: Effective January 14, 2010, the GSA is revising Part 511 of the GSAR re "Describing Agency Needs."

December 14

Although the decision has not yet been redacted for public release, the GAO announced this morning that it had sustained the protest of Navistar Defense, LLC and BAE Systems, Tactical Vehicle Systems LP, B-401865 et al. concerning the procurement of the family of medium tactical vehicles because the Army’s evaluation was flawed with regard to the evaluation of Oshkosh’s proposal under the capability evaluation factor, and the evaluation of Navistar’s past performance.

December 11

The Bureau of Industry and Security (BIS) has published revisions to the Commerce Control List (CCL) in the Export Administration Regulations (EAR) to implement changes made to the Wassenaar Arrangement’s List of Dual Use Goods and Technologies maintained and agreed to by governments participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual Use Goods and Technologies.

Effective December 28, the Under Secretary of Defense (Acquisition, Technology, and Logistics) 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 the following defense items produced in the UK:

1. Air circuit breakers;

2. Welded shipboard anchor and mooring chain with a diameter of four inches or less;

3. Gyrocompasses;

4. Electronic navigation chart systems;

5. Steering controls;

6. Pumps;

7. Propulsion and machinery control systems; and

8. Totally enclosed lifeboats.

In Distributed Postal Consultants, an individual who had properly executed the original contract with the Postal Service on behalf of the plaintiff then secretly formed his own company and fraudulently signed an agreement with the Postal Service terminating the original contract and executing a new one with his new company. The Court of Federal Claims held that the Government did not breach the original contract by relying on the individual's misrepresented status in terminating it. 

There are two new size appeal decisions from the SBA's OHA.

December 10

In Lumbermens Mutual Casualty, the Court of Federal Claims (i) held that the Government had impaired the surety's collateral on a bonded contract by improperly assessing delay damages against the contractor and (ii) awarded the surety damages under the theory of equitable subrogation.

Federal Acquisition Circular (FAC 2005-38) has been published. It includes the following six items plus technical amendments:

Item I (FAR Case 2009-017), entitled "Revocation of Executive Order 13201, Notification of Employee Rights Concerning Payment of Union Dues or Fees," is a final rule that deletes FAR Subpart 22.16 and the corresponding clause at FAR 52.222–39, Notification of Employee Rights Concerning Payment of Union Dues or Fees (which had implemented E.O. 13201 and required contractors to post a notice informing employees of their rights concerning payment of union dues or fees and detailed that employees could not be required to join unions or maintain membership in unions to retain their jobs), because that E.O. was revoked by E.O. 13496 of January 30, 2009, entitled "Notification of Employee Rights Under Federal Labor Laws." See entry at February 4 below.

Item II (FAR Case 2006-026), entitled "Governmentwide Purchase Card Restrictions for Treasury Offset Program Debts ," is a final rule (effective February 1, 2010) that amends the FAR to restrict the use of the governmentwide commercial purchase card as a method of payment for offerors with debts subject to the Treasury Offset Program.

Item III (FAR Case 2005-041), entitled "Internet Protocol Version 6 (IPv6)," is a final rule that requires IPv6 compliant products to be included in all new IT acquisitions using IP, which is one of the primary mechanisms that define how and where information moves across networks.

Item IV (FAR Case 2008-017), entitled "Federal Food Donation Act of 2008 (Pub. L. 110-247)," is a final rule (adopting the previous interim rule without changes) amending the FAR to implement the Federal Food Donation Act of 2008 (Pub. L. 110–247), which encourages executive agencies and their contractors, in contracts for the provision, service, or sale of food, to the maximum extent practicable and safe, to donate apparently wholesome excess food to nonprofit organizations that provide assistance to food-insecure people in the United States.

Item V (FAR Case 2006-021), entitled "Postretirement Benefits (PRB) FAS 106," is a final rule effective January 11, 2010, which amends the FAR to permit contractors to measure accrued PRB costs using either the criteria in Internal Revenue Code 419 or the criteria in FAS 106.

Item VI (FAR Case 2006-024), entitled "Travel Costs ," is a final rule effective January 11, 2010, which amends the FAR travel costs principle to ensure a consistent application of the limitation on allowable contractor airfare costs.

Technical Amendments in the form of editorial changes are being made to FAR Parts 6, 8, 15, and 52.

December 9 The SBA has corrected the faulty urls on its pages listing NAICS and BDP decisions. All is well again.

The SBA has extended the comment period for the proposed changes to its JV affiliation, mentor-protege, and 8(a) rules (see the October 28 entry below) to January 28, 2010.

In Wyoming Sawmills, the Court of Federal Claims stayed a case for six months to allow the contractor time to exhaust its administrative remedies (by petitioning the Secretary of Agriculture for relief).

December 8

The Department of Veterans Affairs has amended its acquisition regulation (the VAAR) to implement portions of the Veterans Benefits, Health Care, and Information Technology Act of 2006 (the Act) and Executive Order 13360, by permitting VA contracting officers either to restrict competitions to SDVOSBs or VOSBs or to award sole source contracts to such entities. The VA also has issued an interim rule authorizing the VA to hear protests of SDVOSB and VOSB status until the VA and the SBA have completed the process of executing an interagency agreement so that the SBA can hear such protests. 

In States Roofing Corp., the Court of Appeals for the Federal Circuit reversed part of an ASBCA decision because the contractor's interpretation of an ambiguous contract provision was within the zone of reasonableness.

In Alatech Healthcare, the Court of Federal Claims followed the precedent of the CAFC in the Distributed Solutions case and held that the Government's involvement in a procurement by its prime contractor was sufficient to give the court bid protest jurisdiction. The court also interpreted the meaning of the word "feasible" in a federal statute giving preference to domestic condom manufacturers.  

December 4

GSAR Case No. 2006-G508: The GSA is proposing to rewrite GSAR Part 570, entitled "Acquiring Leasehold Interests in Real Property." Comments are due by February 2, 2010.

The ASBCA granted the Government's motion for summary judgment denying the VECP claim by WEDJ/Three C's, Inc. because the contract already required what the contractor claimed was covered by its VECP.

Make that 33 successful GAO protests on the merits. The Analysis Group won its protest because the agency (i) permitted the successful offeror to improve its offer through discussions without providing the protester a similar opportunity and (ii) failed to consider the successful offeror's "impaired objectivity" organizational conflict of interest.

December 3

The Port of Bellingham won its GAO protest because the agency's evaluation of the awardee's proposed pier location lacked a rational basis. By my unofficial count, that's 32 successful GAO protests on the merits so far this year.

December 2

Wonderlyn Lorraine Bell Pinckney lost her request for reconsideration of the Court of Federal Claims' decision that, while the Postal Service's default termination of her contract was improper, it was not made in bad faith. See the August 5 entry below for a discussion of original decision.

December 1

The Court of Federal Claims decided that the default termination of United Partition Systems' contract was improper (because the wrong agency's contracting officer had decided the issue) and should be converted to a termination for convenience, but that the Government could reduce the contractor's termination-for-convenience claim by the amounts required to replace defective wall materials pursuant to the Government's rights under the Inspection clause. 

November 28

It's probably a symptom of OCD, but I feel compelled to note that the link errors on the SBA's pages listing NAICS and BDP decisions are still there. I have emailed the SBA, described the problem, provided the urls of the affected pages, and explained to them how to correct the situation.  

HHS is publishing a complete revision of its acquisition regulation (the HHSAR) to reflect statutory, FAR, and governmentwide and HHS policy changes since the last revision to the HHSAR in December 2006. The revision will become effective January 26, 2010.

November 25

Executive Order 13520 (Nov. 20, 2009), entitled "Reducing Improper Payments," requires, inter alia, agencies to publish lists of the entities that have received the greatest amount of outstanding improper payments under government contracts, grants, etc. 

The State Department is proposing to amend Section 126.6 of the ITAR (pertaining to U.S. Government transfer programs and foreign-owned military aircraft and naval vessels) to clarify the circumstances when a license  by the Directorate of Defense Trade Controls is not required. Comments are due by January 25, 2010.

In Opportunities for the Aging Housing Corp. and Opportunities for the Aging Housing Corp. II, the CBCA dismissed an appeal for lack of jurisdiction because agreements involving the management of facilities by public housing authorities, including HAP agreements, were not covered by the CDA, even though they were funded and regulated by HUD.

November 24

The State Department is proposing to amend the ITAR (22 C.F.R. § 125.4(b)(9)) to clarify that the exemption for technical data covers data, regardless of media or format, sent or taken by a U.S. person who is an employee of a U.S. corporation or a U.S. Government agency to a U.S. person employed by that U.S. corporation or to a U.S. Government agency outside the United States. Comments are due by January 25, 2010.

Medical Development International, Inc. Government Healthcare Services lost its pre-award protest against its exclusion from the competitive range. It argued that the competitive range had not been established until after the date stated in the solicitation to which prices must remain firm and that, therefore, no rational price determination could have taken place. The court noted that while such a situation was not optimal, it could be addressed as the competition proceeded. The interesting aspect of the case, however, is the court's reasoning that the protester had standing. The court saw the protest as neither fish (a pre-award protest of a solicitation) nor fowl (a post-award protest), but held that denying a protester standing in this situation "could have the frustrating result of depriving [the protester] completely of any possibility of judicial relief."  

November 23

DFARS Case 2009-D010: The DoD has published an interim rule amending several clauses in Part 252 of the DFARS to add Taiwan as a designated country to the list of World Trade Organization Government Procurement Agreement designated countries, due to the accession of Taiwan to the World Trade Organization Government Procurement Agreement. Comments are due by January 22, 2010.

DFARS Case 2008-D039: The DoD has issued an interim rule amending the DFARS to implement section 825 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110–417), which clarifies the Government’s rights in technical data in the designs of DoD vessels, boats, craft, and components thereof, and the Vessel Hull Design Protection Amendments of 2008 (Pub. L. 110–434). Comments are due by January 22, 2010.

November 20

The ASBCA published three more decisions yesterday. In Parsons-UXB Joint Venture, the Board denied the Government's motion to dismiss, holding that the CDA's statute of limitations did not begin to run on the contractor's claim for back taxes until it presented the claim to the Government and the Government denied it. The Board also noted that, since the claim was in a sum certain, it satisfied the CDA, even though the contractor had not yet paid the taxes.

November 19

The DoD has adopted five previously interim rules, without any changes, as final DFARS rules:

DFARS Case 2008-D007 (entitled "Senior DoD Officials Seeking Employment with Defense Contractors") implements section 847 of the National Defense Authorization Act for Fiscal Year 2008, which addresses requirements for senior DoD officials to obtain a post-employment ethics opinion before accepting compensation from a DoD contractor within two years after leaving DoD service.

DFARS Case 2008-D012 (entitled "Whistleblower Protections for Contractor Employees")  implements section 846 of the National Defense Authorization Act for Fiscal Year 2008 and section 842 of the National Defense Authorization Act for Fiscal Year 2009, which address protections for contractor employees who disclose information to government officials with regard to waste or mismanagement, danger to public health or safety, or violation of law related to a DoD contract.

DFARS Case 2008-D015 (entitled "Competition Requirements for Purchases from Federal Prison Industries ") implements section 827 of the National Defense Authorization Act for Fiscal Year 2008, which requires the use of competitive procedures in the acquisition of items for which Federal Prison Industries has a significant market share.

DFARS Case 2008-D030 (entitled "Pilot Program for Transition to Follow-On Contracting After Use of Other Transaction Authority") implements section 824 of the National Defense Authorization Act for Fiscal Year 2009, which amended the DoD pilot program for transition to follow-on contracting after use of other transaction authority, to establish a new program expiration date and to include items developed under research projects within the scope of the program. The pilot program provides that certain items which do not otherwise meet the definition of ‘‘commercial item’’ may be treated as commercial items in the award of contracts and subcontracts that follow an other transaction agreement.

DFARS 2008-D038 (entitled "Steel for Military Construction Projects") implements section 108 of the Military Construction and Veterans Affairs Appropriations Act, 2009, which requires that American steel producers, fabricators, and manufacturers be given the opportunity to compete for contracts and subcontracts for the acquisition of steel for use in military construction projects or activities.

The ASBCA published five new decisions, two of them dismissing appeals for lack of jurisdiction after the Contracting Officer rescinded his decision. The most noteworthy of the five, however, is the Kostmayer Construction case, in which the ASBCA held that the EAJA does not require a firm to include its affiliates' assets in determining its net worth for purposes of EAJA eligibility.

The CBCA has issued two new decisions on the merits.

November 18

The Court of Appeals for the Federal Circuit reversed the Court of Federal Claims' prior decision sustaining the protest in the Alabama Aircraft Industries bid protest. The appeals court ruled that the lower court was wrong to fault the agency's price realism analysis because the lower court had judged that evaluation on the basis of how the court felt the agency should have addressed the problem of aging aircraft rather than limiting itself to analyzing whether the agency had followed the evaluation scheme set forth in the solicitation. 

Usually, protest attorneys scratch and claw just to uncover one valid ground for protest. In Health Net Federal Services, the GAO found a multitude of prejudicial errors in the procurement, including flawed past performance, price realism, and staffing risk evaluations, as well as the appearance of an unfair advantage because a former high level government official with access to sensitive information had helped the awardee prepare its proposal. Don't you wish all protests came gift-wrapped like this one?      

November 17

In Alsalam Aircraft Co., the GAO noted it could (and did) recommend reimbursement of costs in a meritorious protest involving an FMS procurement.

November 16

DHS has issued a final rule amending the Homeland Security Acquisition Regulation (HSAR) to prohibit awards of Federal Protective Service guard services contracts to firms owned, controlled, or operated by an individual who has been convicted of a serious felony.

November 14

As of this morning, the errors in the SBA's pages listing various types of cases by case number, which I mentioned in the second entry in the November 9 post below, are still there. For example, if you try to link from the page listing "msbe" and "bdp" cases to one of those BDP decisions, you will receive an error message. To get to the actual case, you need to revise the linked url address so that the last occurrence of "bdp" in the address is all caps. Let's see how long it takes the SBA to catch the errors. I wonder if anyone from the SBA reads this blog?

In its post-award protest, Afghan American Army Services Corp. proved there were multiple failings in the Government's evaluation, but the Court of Federal Claims only awarded it bid and proposal costs rather than the requested injunction.

In the Phillip Ozdemir bid protest, the Court of Federal Claims decided its jurisdiction under 28 U.S.C. 1491(b)(1) was broad enough to cover a protest that a DOE agency had refused to consider plaintiff's concept paper after having solicited such papers. The Government had argued there was no jurisdiction because there was no "procurement."

November 13

FAR Case 2008–025, entitled "Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions," is a proposal to amend the FAR to address personal conflicts of interest by employees of Government contractors as required by section 841(a) of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110–417). Comments are due by January 12, 2010.

The GAO sustained another protest (could we be heading for a record-breaking year?), this one against the issuance of a purchase order to an FSS contractor for items that were not included on its FSS contract list.

November 11

In Sage Western Investments, the CBCA noted that contractors may argue inconsistent theories of recovery in the alternative on appeal. 

In The Analysis Group, the Court of Federal Claims refused to reinstate an automatic stay after an agency override during the pendancy of a GAO protest. The court noted it would reach the same result regardless whether it used the four-pronged test of an override decision enunciated in the APA or the four-pronged analysis announced in the Reilly's Wholesale Produce case.

November 10

Yet another successful GAO protest, this one by Humana Military Healthcare Services, which established that the agency's evaluators failed to give it proper  credit for the provider discounts it would be able to obtain in the region where the contract would be performed.

November 9

The SBA's OHA  has published six new size decisions.  In C.E. Garbutt Construction, the OHA found a violation of the ostensible subcontractor rule when the protested firm's only contribution to the project was its HUBZone status and its contract was simply a pass through. In Inuit Services, the OHA upheld an Area Office finding that a firm was other than small because that is what the materials it had submitted to the Area Office clearly stated, even though the firm asserted on appeal, and offered evidence that, its original submission had been mistaken. The reasoning here was that the Area Office had to base its decision on the record before it.  In Blue Cord Construction, the OHA found affiliation between a newly organized firm and a firm whose key employee and officer had formed the new firm and which was providing it with technical and financial assistance, where there was no fracture.

By the way, I don't know how long this error will last (probably not long), but the SBA just reorganized its pages listing various kinds of decisions in numerical order (like its list of size decisions), so that the lists would be in descending order rather than ascending order like they have been previously. However, in doing that, it introduced errors in the linked urls on its page of NAICS decisions, so that, if you click on one of those links (at least the few I tried), you receive an error message. As best as I can tell, the error can be corrected for any particular link by changing the second appearance of the term "NAICS" in the url to all caps.  I just found the same error for some of the cases (the "bdp" designations beginning about a third of the way down) on the SBA list of 8(a) decisions

November 4

In Teknowledge, the Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims' decision because a contractor's software amortization costs were not properly allocable to its contract and, therefore, were unallowable.

There are also a couple of new Court of Federal Claims contract disputes decisions just out.

November 3

The SBA has issued a new definition (effective May 3, 2010) of the term "employee" for purposes of the HUBZone program. The new definition at 13 C.F.R. 126.103 reads as follows: "Employee means all individuals employed on a full-time, part-time, or other basis, so long as that individual works a minimum of 40 hours per month. This includes employees obtained from a temporary employee agency, leasing concern, or through a union agreement or co-employed pursuant to a professional employer organization agreement. SBA will consider the totality of the circumstances, including criteria used by the IRS for Federal income tax purposes and those set forth in SBA’s Size Policy Statement No. 1, in determining whether individuals are employees of a concern. Volunteers (i.e., individuals who receive deferred compensation or no compensation, including no in-kind compensation, for work performed) are not considered employees. However, if an individual has an ownership interest in and works for the HUBZone SBC a minimum of 40 hours per month, that owner is considered an employee regardless of whether or not the individual receives compensation."

Several new ASBCA decisions have been published, the most interesting of which follow.

In HMRTECH2, LLC (yes, I typed that correctly, and it was fun, too), the Board held it had CDA jurisdiction over a contractor's claim that the Government's improper interpretation of a contract clause would deprive the contractor of access to future task orders (on the grounds that the contractor/joint venture had graduated from the SBA's 8(a) program).

In Montage, the Board refused to dismiss an appeal even though the contractor had not submitted a document entitled "Notice of Appeal," but rather had evidenced an intent to appeal in a document entitled "Status Report" and had attached the wrong claim to its Complaint.

In DynCorp, the Board needed more evidence on the question when the contractor should have known about a mistake for purposes of determining when its claim accrued. The Board also discussed the "continuing claim" doctrine in terms of an option contract: "With respect to the option years, we believe the claim is subject to the continuing claim doctrine which we have determined to have application to government contract cases. Under that doctrine, a "claim must be inherently susceptible to being broken down into a series of independent and distinct events or wrongs, each having its own associated damages." Only the base year was initially awarded. Each subsequent year was to be separately awarded at the government’s option. Thus, if the government chose not to award additional option years, there would be no claim for those years. Therefore, the portions of the claim attributable to each option year are distinct events with its own associated damages."

BearingPoint involves various interesting disputes concerning cost allowability and allocability under a cost reimbursable contract.

October 31 Happy Halloween!

Several new CBCA decisions have been published, including Medtek, in which the Board imposed severe evidentiary sanctions for the contractor's refusal to comply with the Board's discovery orders.

In Impresa Construzioni Geom. Domenico Garufi, which involved determining the size of an Italian firm for purposes of assessing its eligibility for an EAJA recovery, the Court of Federal Claims directed supplementation of the administrative record when faced with incomplete and, in some cases, untranslated documents in Italian. 

October 28

The GAO sustained the protest of RBC Bearings against a sole source contract award because the agency's lack of advance planning created the situation.

The SBA is proposing to amend its joint venture affiliation,  8(a),  and mentor-protege regulations in many important respects, only a few of which I have space to mention here. First, whereas the current rule at 13 C.F.R. 121.3(h) limits joint ventures to submitting three offers over a two year period, the proposed rule changes the limit to three awarded contracts over that period. Moreover, the proposed rule makes clear that it is not intended as an absolute prohibition against the joint venture competing for more than three contracts, but only a statement that its members will be treated as affiliates if it does so. Secondly, the proposed rule specifically recognizes and allows the current practice of two entities who have reached the basic limit forming a new joint venture, but adds this caution: "At some point, however, such a longstanding inter-relationship or contractual dependence between the same joint venture partners will lead to a finding of general affiliation between and among them. For purposes of this provision and in order to facilitate tracking of the number of contract awards made to a joint venture, a joint venture must be in writing and must do business under its own name. . . ." These same rules will apply to SBA mentor-protege joint ventures involving an 8(a) protege. Third, the proposed rule emphasizes that the SBA is the only agency that may determine there is an exception from affiliation between a mentor and its protege, even in mentor-protege programs purportedly established by other agencies, such as the DoD's and the GSA's programs. There are many other proposed revisions to the 8(a) and mentor-protege regulations. This is major proposed rulemaking that should be studied carefully by all those who may be affected by its changes. Comments are due by December 28.

Pursuant to 31 U.S.C. 3511(d), the Federal Advisory Committee Act (Pub. L. 92–463), as amended, the Federal Accounting Standards Advisory Board (FASAB) has released the Exposure Draft on Subsequent Events: Codification of Accounting and Financial Reporting Standards Contained in the AICPA Statements on Auditing Standards. AU Section 560, Subsequent Events, of the AICPA Statements on Auditing Standards includes accounting and financial reporting guidance that is not discussed in the authoritative literature that establishes accounting principles. The objective of the proposed Statement is to incorporate that guidance into the authoritative literature of the FASAB. The Exposure Draft is available here. Comments are requested by December 28.      

October 27

The Department of Agriculture has issued a final rule defining the following nine categories of biobased products that will receive federal procurement preference as provided for under section 9002 of the Farm Security and Rural Investment Act of 2002, as amended by the Food, Conservation, and Energy Act of 2008: (i) chain and cable lubricants; (ii) corrosion preventatives; (iii) food cleaners; (iv) forming lubricants; (v) gear lubricants; (vi) general purpose household cleaners; (vii) industrial cleaners; (viii) multipurpose cleaners; and (ix) parts wash solutions. The USDA is also establishing a minimum biobased content requirement for each of these items.

The GSA is amending FTR provisions covering premium class travel and transportation allowances.

October 24

In accordance with the Livestock Mandatory Reporting Reauthorization Act, the Department of Agriculture has issued proposed rules reviving the Swine Contract Library.  Doubtless you are as pleased as I am to learn that soon we will be able, once again, to while away blissful hours, totally oblivious to our worldly cares, browsing to our hearts' content in the Swine Contract Library.  Comments (all of which I predict will be ecstatic) are due by December 28.

GSAR Case 2006-G515: the GSA has rewritten GSAR Part 532, Contract Financing.  The GSA has revised the FTR to include an updated table of meal cost adjustments for meals furnished by the Government or included in ticket prices.

October 23

The GAO sustained the protest of Frank A. Bloomer--Agency Tender Official in an A-76 public-private competition because the agency unreasonably : (i) accepted the private-sector offeror’s revised fringe benefit ratios in its cost realism analysis; (ii) accepted the private-sector offeror’s unsupported assumption that the firm could perform a significant portion of the workload 10 percent more efficiently; and (iii) allowed the private-sector offeror to omit the labor cost associated with the material supply function from its cost proposal, and these errors prejudiced the protester.

October 21

The SBA is proposing to increase the size standards for five industries in NAICS Sector 72, Accommodation and Food Services: NAICS 721110, Hotels and Motels (from $7.0 million to $30 million); NAICS 721120, Casino Hotels (from $7.0 million to $30 million); NAICS 722211, Limited Service Restaurants (from $7.0 million to $10 million); NAICS 722212, Cafeterias (from $7.0 million to $25.5 million); and NAICS 722310, Food Service Contractors (from $20.5 million to $35.5 million). Comments are due by December 21.

The SBA is proposing to increase the size standards for 18 industries in NAICS Sector 81, Other Services. The explanatory comments for the proposed changes are quite detailed and lengthy, but you can find a table listing the specific changes proposed for those 18 industries at 74 Fed. Reg. 53950 (Oct. 21, 2009). Comments are due by December 21.

The SBA is proposing to increase the size standards for 48 industries in NAICS Sector 44-45, Retail Trade. A lengthy table listing both the industries affected by the proposed changes and those that will remain unchanged begins at 74 Fed. Reg. 53929 (Oct. 21, 2009). Comments are due by December 21.

The SBA has published a document entitled "SBA Size Standards Methodology," which explains the SBA's process for analyzing and adjusting its size standards.

October 20

The Court of Federal Claims granted the motion for summary judgment by DIRECTV Group, Inc. in another CAS 413 segment closing case because "the undisputed evidence demonstrates that the government received the value of DIRECTV’s CAS 413 segment closing obligation through a cost reduction from the successor contractors. . . ." Thus, "the existence of a government agreement in which the government protected its interest in the pension asset surplus through a novation agreement or other means is not material."

In its pre-award protest, Camden Shipping made all sort of ingenious arguments why its offer remained open (or was revived) after the 60 day limit it had checked on the offer form. The Court of Federal Claims did not buy into any of those arguments and concluded that revival would harm the competitive process.

October 19

I still learn something every day (thank goodness). In The Centech Group, the SBA's Office of Hearings and Appeals dismissed a contractor's NAICS protest because the agency that issued the solicitation, the FAA, is not subject to the Small Business Act. 

October 18

Two Court of Federal Claims post-award bid protest decisions discuss, inter alia, the standards for permitting supplementation of the administrative record after the Court of Appeals for the Federal Circuit's decision in Axiom (discussed in the May 6 entry below): Kerr Contractors and Bannum.  In Kerr, the protester lost even though the court found several errors in the solicitation process because it concluded they were "de minimis."

The Federal Accounting Standards Advisory Board has issued Statement of Federal Financial Accounting Standard 35, Estimating the Historical Cost of General Property, Plant, and Equipment—Amending Statements of Federal Financial Accounting Standards 6 and 23. The standard is available here.

The DoD is amending the DFARS to remove obsolete text addressing a restriction on awards to foreign entities for DoD research and development, which had implemented a statutory provision that is no longer in effect.

October 17

The Postal Service Board of Contract Appeals (PSBCA) has caught itself up by issuing a bunch of decisions covering the period January through September 2009. The two most interesting decisions are: (i) Park Ridge South Holland Partnership, in which the PSBCA repeatedly chastised both parties for failing to give it enough evidence to decide the case and then went ahead and decided it anyway; and (ii) Webco Transportation, in which the Board upheld a default termination on a basis (violation of the Service Contract Act) of which the Contracting Officer was completely unaware when he terminated the contract.

October 16

The GAO has belatedly issued another decision (originally dated March 25), sustaining the protest of The S. M. Stoller Corp. because the agency allowed the winning offeror to propose an approach that did not strictly comply with the PWS requirements, without alerting other offerors that such alternative approaches might be considered.

October 14

FAC 2005-37 has been published and includes the following seven items (plus technical amendments):

Item I (FAR Case 2008-035), an interim rule entitled "Registry of Disaster Response Contractors," implements Section 697 of the Department of Homeland Security Appropriations Act, 2007 (6 U.S.C. 796), which requires (i) FEMA to establish and maintain a registry of contractors, who are willing to perform debris removal, distribution of supplies, reconstruction, and other disaster or emergency relief activities; and (ii) contracting officers to consult the Registry during market research and acquisition planning.

Item II (FAR Case 2007-008), a final rule entitled "Limiting Length of Noncompetitive Contracts in Urgent and Compelling Urgency Circumstances," implements section 862 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110–417) (hereinafter the "2009 NDAA") and the OFPP Administrator’s memorandum of May 31, 2007, by limiting the length of contracts awarded noncompetitively under unusual and compelling urgency circumstances to the minimum contract period necessary to meet the requirements, and no longer than one year, unless the head of the agency determines that exceptional circumstances apply.

Item III (FAR Case 2008-026), a final rule entitled "GAO Access to Contractor Employees," implements section 871 of the 2009 NDAA,  which allows the GAO to interview current contractor employees during the audit of the contractor’s records.

Item IV (FAR Case 2008-034), an interim rule entitled "Use of Commercial Services Item Authority," implements section 868 of the 2009 NDAA, which provides that purchases of commercial services that are not offered and sold competitively in substantial quantities in the commercial marketplace may only be considered commercial items for the purposes of the FAR if the contracting officer determines in writing that the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price of such services.

Item V (FAR Case 2008-031), an interim rule entitled "Limitations on Pass Through Charges," implements, inter alia, section  866 of the 2009 NDAA to minimize excessive pass-through charges by contractors from subcontractors, or of tiers of subcontractors, that add no or negligible value, and to ensure that neither a contractor nor a subcontractor receives indirect costs or profit/fee (i.e., pass-through charges) on work performed by a lower-tier subcontractor to which the higher-tier contractor or subcontractor adds no, or negligible, value.

Item VI (FAR Case 2008-008), an interim rule entitled "Award Fee Language Revision," implements section 814 of the John Warner National Defense Authorization Act for Fiscal Year 2007, section 867 of the 2009 NDAA, and the OFPP guidance memorandum dated December 4, 2007, entitled "Appropriate Use of Incentive Contracts," and makes an extensive set of FAR revisions to improve agency decision-making procedures when using award-fee contracts.

Item VII (FAR Case 2009-003), a final rule entitled "National Response Framework," amends the FAR to reflect (i) the January 22, 2008, re-issuance of the FEMA National Response Plan as the National Response Framework and (ii) the elimination of the term ‘‘Incident of National Significance.’’

A couple of new ASBCA decisions have been issued, the more interesting of which is Yardney Technical Services, which involves the standards for rejection under the "Inspection" clause and the principle that the performance of a pre-existing duty is not sufficient consideration for a purported change.

October 8

In Martin Byrd Quillen, Sr., the Court of Federal Claims discussed the meaning and calculation of the 12-month CDA time limit for appealing Contracting Officer decisions to the court.

October 7

The ASBCA has issued several new decisions.

The Taylor Consultants decision in the Court of Federal Claims is impossible to summarize. I had to list it on both the bid protest and contract disputes pages. Basically, after having originally won a contract, the plaintiff had been disqualified because the SBA found it to be other than small as a result of a size protest. The plaintiff reacted by submitting a complicated, rapid-fire salvo of letters and emails denoted as protests of the subsequent award to another firm and contract claims for possible wrongful termination of its contract. Basically, the court found the plaintiff lacked standing on its protests and stayed its contract actions (which alleged violations of the Trade Secrets Act, the Procurement Integrity Act, and the Contract Disputes Act) in order to allow the plaintiff the opportunity to submit proper claims to the Contracting Officer. It doesn't sound like things will get less complicated anytime soon in this one. See also the SBA's earlier Taylor Consultants decision, discussed in the August 30 entry below.

The GSA is amending Part 503 of its procurement regulation regarding "Improper Business Practices and Personal Conflicts of Interest."

As a result of one of those defeats you never forget, after 30 years, I still have a bad taste in my mouth  over what I believe is the Government's, ASBCA's, and court's bungling of one case involving an assignment to a financial institution under the Anti-Assignment statute. The HAM Investments case brought back bad memories. In it, the Court of Federal Claims held that the Government had not waived the requirements of the Act and, therefore, was not deemed to have approved an assignment even though the Contracting Officer had actively assisted the contractor by providing encouragement and guidance as to the proper forms and regulations covering such transactions.

October 5

FAR Case 2008-027: The due date for comments on the proposed FAR regulation concerning the Federal Awardee Performance and Integrity Information System, which would implement the requirements of section 872 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, has been extended to November 5.

September 30

In an important decision, the Court of Appeals for the Federal Circuit held that the CDA's six-year statute of limitations is subject to the doctrine of equitable tolling.

Okay, this is getting downright eerie. The GAO has sustained another protest! Has its charter been changed and I somehow missed it? Is it under some sort of spell? In TMI Management Systems, the GAO found that an agency's misclassification of a procurement in its announcement on the FedBizOpps website was inconsistent with the requirement to obtain full and open competition.

September 29

The SBA's Office of Hearings and Appeals has issued three new size decisions. The most interesting of the bunch is the Cox Construction decision which specifically holds that, for purposes of determining a firm's size, the SBA's regulations control over any conflicting FAR regulations. In Cox, a firm self-certified as small at the time it submitted its initial, unpriced offer. Subsequently, the Contracting Officer did not require offerors to re-certify at the time they submitted priced offers. The OHA upheld the Area Office's determination that the firm should, nevertheless, have re-certified at that time and was other than small as of the later date, despite contrary FAR regulations.  

In yet another successful protest, the GAO found in OSC Solutions, that the cancellation of an RFQ and the issuance of orders on a sole-source basis to a non-profit agency under the authority of the Javits-Wagner-O'Day Act was improper because the acquired items were not on the procurement list maintained by the Committee for Purchase From People Who Are Blind or Severely Disabled.

Minor corrections have been published for FAR Parts 52 and 201.

September 28

In Alutiiq, the SBA's Office of Hearings and Appeals reversed an Area Office's determination that a firm had violated the ostensible subcontractor rule because the Area Office's failure to notify the protested firm of that issue and specifically to request documents related to it constituted a lack of due process.

September 25

FAR Case 2009-009: guidance has been published to assist federal contractors who have contracts that are funded, in whole or in part, by the American Recovery and Reinvestment Act of 2009 and that include the FAR clause at 52.204–11,  in understanding the FederalReporting.gov centralized reporting tool.

The GAO is on a roll and has sustained another protest, this one by Caddell Construction Co., because the agency had no basis to conclude an offeror had met the past experience requirements of the Security Act.

The CBCA has issued a couple of new decisions, one of which (over a strong dissent) dismissed an appeal because it had been brought by only one member of the joint venture/contractor.

September 24

PAI lost all three grounds its post-award protest at the Court of Federal Claims concerning (i) the incumbents' alleged organization conflicts of interest; (ii) the evaluation of proposed subcontractors' experience; and (iii) the cost realism evaluation.

The SBA's Office of Hearings and Appeals has issued three new decisions: two "VET" decisions regarding eligibility to participate as a service-disabled veteran-owned small business concern, and one "BDP" decision upholding the termination of a firm from the 8(a) program because its owner falsely stated on his application that he was not a federal employee at the time of the application.

September 23

'Tis the season for corrections. The FAR has been corrected to reorganize the subparagraphs in FAR 52.219-9 (the "Small business Subcontracting Plan" clause) and to reinstate subsection (d)(2)(iv) in that clause. The DOE has corrected its section 909.405 of its acquisition regulation (concerning the effect of suspension or debarment) by reinstating section (e).

The President has determined the Economic Community of Central African States and Maldives are eligible to receive defense articles and services.

Unisys lost its protest at the Court of Federal Claims in part because the court found that a GSA solicitation for a blanket purchase agreement under a Federal Supply Schedule contract pursuant to FAR 8.405-2 did not include the FAR Part 15 requirement that, if discussions are held with one offeror, they must be held with all. On another issue, the court refused to conclude that when two offerors receive an equal number of deficiencies, they must also receive the same adjectival evaluation rating: "As the government correctly observes, not all weaknesses are equal. Simply tallying up the weaknesses accrued by Unisys and Lockheed and finding that the number each accrued is the same does not provide a basis for asserting that they should then have achieved the same adjectival rating. This is all the more true where, as here, the adjectival ratings being compared are for two different factors."

September 22 The DoD has issued a couple of corrections to Parts 205 and 247 of the DFARS.

In one new Court of Federal Claims decision, the plaintiff alleged that the government had breached a mail delivery contract by agreeing to its novation to another contractor. The Court of Federal Claims held against the plaintiff because of a failure of proof that (i) there was a valid contract between the plaintiff and the Government at the time of the alleged breach; (ii) (even assuming there was such a contract) the Government breached any duties it owed plaintiff under the contract; and (iii) (even assuming the first two requirements had been met) plaintiff had proved its claimed damages. It was this third element that elicited the court's most colorful language: "These . . . points barely scratch the surface in illustrating the extent to which [plaintiff's] testimony varied inconsistently over the course of trial and ultimately was contradicted by other probative evidence. Accordingly, if the court were required to determine damages here – which it is not – it would find it difficult to begin. Finally, in terms of assessing credibility, the court simply cannot ignore [plaintiff's] past history of making false statements. . . .Given the telltales that permeate the record, the court thus totally discounts, as incredible, plaintiff’s self-serving and entirely uncorroborated testimony regarding damages. . . .The court will not gild the lily, for this is not a close case."

September 21

Effective within 15 days, the SBA is terminating a waiver of the Nonmanufacturer Rule for radio telephones based on the SBA’s recent discovery of a small business manufacturer. Terminating this waiver will require recipients of contracts set aside for small businesses, service-disabled veteran-owned small businesses, or Participants in the SBA’s 8(a) Business Development Program to provide the products of small business manufacturers or processors on such contracts.

September 17 Effective October 19, the GSA is revising Part 514 of the GSAR regarding Sealed Bidding.

T-C Transcription won its GAO protest because the VA mis-evaluated its technical proposal in so many ways that the GAO just cited some "examples" of the agency's problems.

September 16

Major Contracting Services "won" its GAO protest, but that didn't amount to much. The agency had decided to recompete its requirements instead of exercising the full original contract option because the contractor had been determined not to be an SDVOSBC as it had represented when bidding for the contract. Therefore, the Government announced it was extending the original contract for only four months pursuant to the "Option to Extend Services" clause (FAR 52.217-9) while it conducted the recompetition. Major Contracting Services protested that the Government should have conducted a new solicitation even for that four-month extension. In its decision, the GAO agreed because (i) the four-month extension option had not been evaluated at the time of the original procurement, (ii) the extension, therefore, could only be justified under FAR Part 6 as a sole-source extension, and (iii) the agency's delay in making a decision to re-compete had created the urgency that it said justified the extension. However, since the GAO's decision did not come until two weeks before both the extension and the recompetition will be complete, all the protester won was its costs of pursuing the protest. My thought as a potential protester might have been: I'm thinking about protesting a four-month extension and it will require the GAO four months to issue a decision, so is protesting worth the effort?

September 15

The EPA has issued revisions to the EPAAR to bring its government property requirements in line with FAR Part 45.

In Raytheon , the Court of Appeals for the Federal Circuit reversed the ASBCA's decision on summary judgment that Raytheon's potential violation of CAS 413 had not caused the Government to pay increased costs and, therefore, that Raytheon was not liable for interest.

September 14

The SBA has issued an interim rule adjusting various acquisition-related dollar thresholds to account for inflation.

September 11

Consistent with section 202(d) of the National Emergencies Act, 50 U.S.C. 1622(d), the President is continuing for one year the national emergency declared on September 14, 2001, in Proclamation 7463, with respect to the terrorist attacks of September 11, 2001, and the continuing and immediate threat of further attacks on the United States.

In accordance with the Small Business Paperwork Relief Act of 2002 (44 U.S.C. 3520), OMB is publishing lists of (i) the compliance assistance resources available to small businesses and (ii) the points of contacts in agencies to act as a liaison between the agency and small business concerns with respect to the collection of information and the control of paperwork.

September 10

L-3 Services won its GAO protest because the Air Force improperly concluded the awardee had neither "biased ground rules" nor "unequal access to information" organizational conflicts of interest.

September 9

The SBA has issued several corrections to the small business size regulations it originally published May 21, 2004, including a reference to an incorrect NAICS code.

September 8

Several new ASBCA decisions have been published. One of them, Gosselin World Wide Moving, used the contract's Order of Precedence clause to resolve an inconsistency between two contract provisions.

September 3

FAR Case 2008-027 is a proposed rule to amend the FAR to implement Section 872 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, which requires (i) the GSA to establish and maintain a data system containing specific information on the integrity and performance of covered federal agency contractors and grantees and (ii)  awarding officials to review the data system and consider other past performance information when making any past performance evaluation or responsibility determination. The new data system will be called the Federal Awardee Performance and Integrity Information System (FAPIIS). Comments are due by October 5.

In the Salt River Pima-Maricopa Indian Community case, the CBCA dismissed an appeal for lack of CDA jurisdiction (under the "election doctrine") because the identical case was pending in the Court of Federal Claims.

September 2

Several SBA OHA NAICS decisions have been published.

FAR Case 2008-016 is a proposed rule establishing procedures for contracting officers to report data concerning default terminations and defective cost or pricing data into the Past Performance Information System (PPIRS). Comments are due by November 2. 

August 30

Several SBA OHA size decisions have been published.

Reading through them has led me to confess to (at least) one serious mental defect. I cannot understand any sentence with one negative embedded in another. My brain short circuits when I see it. I learned this the hard way on the Law School Admissions Test almost 35 years ago where one of the questions included such a construction, and I wasted an inordinate amount of time staring at it before giving up and moving on. Thus, I was perversely pleased to read the new SBA OHA decision on the Taylor Consultants protest and to find the OHA perplexed by the following section in the SBA's protest regulations listing which firms have standing to file a size protest, including: "Any offeror whom the contracting officer has not eliminated for reasons unrelated to size."  13 C.F.R. § 121.1001(a)(2)(i) [the coloring and italics are mine] I cannot resist quoting the OHA's efforts to parse this language:

[T]he language . . . is cumbersome. The regulation employs negative syntax to delineate its bounds and is dependent on two successive alternatives: (1) whether a contracting officer has eliminated an offeror from a procurement; and (2) whether elimination was related or unrelated to size. The regulation does not require an offeror to meet the first hurdle to proceed to the second. Thus, a straightforward reading of the regulation could rest solely on the second question of whether an offeror’s disqualification was related to size. Thus, reasonable men could conclude the language is ambiguous and I find, depending on how it is read, the regulation could connote different meanings. The purpose of 13 C.F.R. § 121.1001 is to give standing to businesses whose successful protest would enable them to compete in the procurement. 67 Fed. Reg. 70,339, 70,345 (Nov. 22, 2002) (discussing proposed amendment to 13 C.F.R. § 121.1001). The regulation denies protest standing to offerors who have been eliminated for reasons unrelated to size since they would be unable to compete for award even if their protest was successful. Conversely, the regulation enables firms eliminated based on size to file size protests since they would be eligible to compete if the protest is successful and the contracting officer resolicits the procurement on an unrestricted basis. Accordingly, a reasonable reading of the regulation allows businesses who have been eliminated due to size to file a protest. If the offeror was disqualified for reasons related to size, the protest may proceed; where if an offeror is eliminated for reasons unrelated to size, they have no standing to file a size protest. Despite the text of 13 C.F.R. § 121.1001(a)(2)(i), the right of other than small businesses to file a size protest is still limited by 13 C.F.R. § 121.1001(a)(1)(iv), which states: "A concern found to be other than small in connection with the procurement is not an interested party unless there is only one remaining offeror after the concern is found to be other than small."

I feel your pain, judge.

August 28 Pursuant to the requirements of Executive Order 13502, effective September 28 HUD is removing a regulation that prohibits the use of project labor agreements on federal construction projects. 

Northrop Grumman Information Technology won its GAO protest, in part because the agency failed to discriminate among proposals even though the solicitation stated that they would be evaluated on "the extent to which" they exceeded a solicitation requirement.

August 27 Four ASBCA decisions have been published.
August 25

FAR Case 2009-009: registration at federalreporting.gov is now available for contractors required to register by FAR 52.204-11 pursuant to the American Recovery and Reinvestment Act.

With the publication of Bulletin 10-01, the GSA has revised the per diem rates for use in the continental United States for fiscal 2010.

The Court of Appeals for the Federal Circuit reversed the Court of Federal Claims decision enjoining the Government in a bid protest case because the protester (Labatt Food Service) lacked standing to protest.  The facts are somewhat complicated, but, basically, the Court of Federal Claims had found Labatt had standing because the Government had allowed all the competitors to submit offers by an unauthorized method (email). The Federal Circuit holds that non-prejudicial errors in a bid process do not automatically invalidate a procurement: "Labatt tautologically argues that it was harmed by the method of transmission error because it would have a substantial chance of receiving the contract award in a rebid. By conflating the standing requirements of prejudicial error and economic interest, Labatt would create a rule that, to an unsuccessful but economically interested offeror in a bid protest, any error is harmful. Under this radical formulation there would be no such thing as an error non-prejudicial to an economically interested offeror in a bid contest. We decline to adopt such a rule."  Or, as the court says a bit more succinctly later in the decision: "All errors are not equal" (and Labatt had been eliminated from the procurement for submitting a late bid, not for  submitting a bid by email).

August 24

The comment period for the proposed FAR rule concerning the use of  Project Labor Agreements on federal construction projects has been extended to September 23.

August 21

Two new Court of Federal Claims decisions on contract disputes have been published. In Kenney Orthopedic, the court held that the contractor's breach claim appeal was not untimely because it was based on different facts from an unappealed default termination. KI Liquidation involved cross motions for summary judgment (both of which were denied) on issues concerning a bankruptcy trustee's liability under the False Claims and forfeiture statutes.

After a very long dry spell, the SBA's OHA finally has published some new NAICS and VET decisions. In Command Languages, the OHA upheld a finding that a service-disabled vet controlled a company's operations even though he lived 900 miles from the company's headquarters: "(1) corporate location within the United States; and (2) the location of the service-disabled veteran within the United States are irrelevant to the issue of control when a concern performs the majority of its contracts overseas. Instead, the key, under 13 C.F.R. § 125.10, is whether the Record establishes the service-disabled veteran actually controls the SDVO concern. In the instant case the Record confirms [the SDV] built [the company] to its current level of success and that he controls its operations through his hard work, nearly incessant travel, and use of modern electronic communications."

Today, the Office of Legal Counsel (OLC) of the Department of Justice issued a memorandum that (i) disagreed with the GAO’s analysis in the Mission Critical Solutions and International Program Group Protests, (ii) concluded that the SBA’s interpretation is a permissible construction of the relevant statutes, and (iii) stated that the OLC Opinion is--and GAO’s decisions are not--binding on the executive branch.

August 20

As required by the National Defense Authorization Act for Fiscal 2008, the Air Force announced it will publish (within 30 days) the inventory of its service contracts.

A proposed rule (FAR Case 2008-020) would amend the FAR to change the procedures for close out of contract files. Comments are due by October 19.

August 17

The Department of Homeland Security has issued an interim rule amending Parts 3025 and 3052 of its acquisition regulations (HSAR) to reflect restrictions in the American Recovery and Reinvestment Act on the purchase of certain foreign textile products (HSAR Case 2009-004). To be considered in connection with the final rule, comments must be submitted by September 16.

August 14

Export control regulations:  in a notice issued yesterday, President Obama continued for one year Executive Order 13222, which declared a national emergency with respect to the unusual and extraordinary threat to the national security, foreign policy, and economy of the United States in light of the expiration of the Export Administration Act of 1979, as amended (50 U.S.C. App. 2401 et seq.).

Effective September 14, the GSA is amending the GSAR by adding a Part 519.70 to establish a mentor-protege program (i) to encourage GSA prime contractors to assist small businesses, including veteran-owned small businesses, service-disabled veteran-owned small businesses, HUBZone, small disadvantaged businesses, and women-owned small businesses, in enhancing their capabilities to perform contracts and subcontracts for GSA and other Federal agencies; (ii) to increase the base of small businesses eligible to perform GSA contracts and subcontracts; and (iii) to foster long-term business relationships between GSA prime contractors and small business entities and to increase the overall number of small business entities that receive GSA contracts, and subcontract awards.

August 11

The Court of Appeals for the Federal Circuit reversed Weeks Marine's Court of Federal Claims bid protest victory because the Fed Circuit (i) found the agency had a rational basis for its procurement plan to utilize an ID/IQ contract and (ii) refused to second-guess the agency's rationale. Just as interesting as the ultimate holding, however, is the court's discussion of the appropriate test for a protester's standing in a pre-award protest. The court settles on the following standard (after considering several alternatives): "standing is established by alleging 'a non-trivial competitive injury which can be redressed by judicial relief.'"

It was not a good day for protesters in federal court. NEQ lost its protest at the Court of Federal Claims, which described its arguments as "overblown" and not in accordance with the facts. The court also scoffed at the protester's position that it need not meet the tests for injunctive relief because it was only seeking a reevaluation.

Federal Acquisition Circular (FAC) 2005-36 has been published. It includes the following six items (plus technical amendments):

Item I (FAR Case 2008-038), a final rule entitled "Federal Technical Data Solution (FedTeDS)" retires that system, removes all references to it from the FAR and substitutes references to the Governmentwide Point of Entry (GPE) system.

Item II (FAR Case 2007-021), a final rule entitled "Fair Labor Standards Act and Service Contract Act Price Adjustment Clauses" specifically requires the inclusion of FAR 52.222-43 and 52.222-44 in time-and-materials and labor-hour service contracts that are subject to the Service Contract Act.

Item III (FAR Case 2009-014), an interim rule entitled "New Designated Country--Taiwan" implements the designation of Taiwan under the World Trade Organization Agreement on Government Procurement (which took effect on July 15, 2009) and allows contracting officers to purchase goods and services made in Taiwan without application of the Buy American Act if the acquisition is covered by the World Trade Organization Agreement on Government Procurement.

Item IV (FAR Case 2008-004), a final rule entitled "Prohibition on Restrictions on Business Operations in Sudan and Imports from Burma" implements Section 6 of the Sudan Accountability and Divestment Act of 2007, which requires certification in each contract entered into by an executive agency that the contractor does not conduct certain business operations in Sudan. In addition, in accordance with Executive Orders 13310 and 13448, Burma is added to the list of countries from which most imports are prohibited.

Item V (FAR Case 2006-013), a final rule entitled "List of Approved Attorneys, Abstractors, and Title Companies" updates the procedures for the acceptance of a bond with a security interest in real property because the DOJ has discontinued maintenance of its former list of approved abstractors, attorneys, and title companies.

Item VI (FAR Case 2007-002), a final rule entitled "Cost Accounting Standards (CAS) Administration and Associated FAR Clauses" converts (without change) the interim rule that revised FAR 30.201–4(b)(1) and FAR 52.230–1 through 52.230–5 to maintain consistency between the FAR and CAS regarding the administration of the CAS Board’s rules, regulations and standards.

August 10

The DoD's Per Diem, Travel and Transportation Allowance Committee has published Civilian Personnel Per Diem Bulletin Number 265, 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 U.S. Possessions.

Although the Court of Appeals for the Federal Circuit's holding in Vantage Associates is nonprecedential, the following language is interesting: "[I]f the government had not cancelled the purchase order, Vantage would not have furnished the cases in accordance with the terms of the contract. Vantage argues, nevertheless, that the government prematurely cancelled its purchase order at 3:27 a.m. on August 18, 2006—hours before the purchase order would have lapsed by its own terms. In other words, despite its inability to perform, Vantage contends it can recover all of its costs because, just before the delivery deadline that it admits it would not have met, it received notice of the purchase order’s cancellation. We do not think that, under these circumstances, Vantage is entitled to damages for the costs it incurred in preparation to deliver the cases."

August 7 FAR Case 2009-013, entitled "Nonavailable Articles," is a proposal to revise the list of nonavailable articles at FAR § 25.104(a) to which the Buy America Act restrictions do not apply. Comments are due by October 6.

The GSA (GSAR Case 2008-0501) is revising Part 502  of the GSAR concerning definitions of words and terms.

August 6

An extensive set of proposed revisions and clarifications to various FAR government property provisions has been published (FAR Case 2008-011). Comments are due by October 5.

The State Department is amending the ITAR to add an exemption for the temporary export of body armor for exclusive personal use to destinations not subject to restrictions under the ITAR § 126.1 and to Afghanistan and Iraq under specified conditions.

Three interesting ASBCA decisions have been published. FitNet survived a government motion to dismiss its appeal of a default termination as untimely because "the contracting officer’s [subsequent] decision on the merits of [a] claim, rather than summarily denying it on the basis of his prior termination decision, was in effect a reconsideration of the termination whether he consciously intended that effect or not." 

The Government fared better in the other two decisions--winning summary judgments (i) upholding the default termination of a concession contract and (ii) dismissing certain "Changes" claims because the COR did not have the authority to order changes and because nobody with authority ratified those changes.   

August 5

The Court of Federal Claims held that Wonderlyn Lorraine Bell Pinckney's Postal Services contract should not have been terminated for default because the Government did not prove  that the contractor had returned from the postal route one day with deliverable but undelivered mail. Unlike Keeter Trading, however, the contractor did not establish a bad faith termination. The decision is a highly fact-specific (often fascinating) examination of the credibility of various witnesses as to the conditions along the mail route, e.g.: "Plaintiff testified that one resident on Brown Pelican Loop has some kind of an attack dog, but that resident informed plaintiff that she could blow her horn and he would come out and get the mail."

The Coast Guard convinced the Court of Federal Claims to dilute the language in its original decision a bit in the Global Computer Enterprises protest (see July 30 entry below), from requiring the Government to recompete a protested procurement using "fair and open competition," to the following: "The Coast Guard must procure these services in accordance with the law and in a manner that preserves the integrity of the procurement process, exercising its discretion in a reasonable manner."

Belatedly, I noticed an April decision by the GAO's Contract Appeals Board.  In  Inventory Discount Printers, that board held that it lacked jurisdiction over a contractor's appeal because the contractor's vague assertion to the contracting officer was not sufficient to put him on notice of the claim the contractor eventually asserted on appeal.

August 4

The SBA is proposing to terminate the nonmanufacturer waiver for radio telephones. Comments are due by August 19. The SBA is also proposing to eliminate the class waiver under PSC 9130 for Liquid Propellants--Petroleum Base. Comments are due by August 21.

August 3

The State Department has amended the ITAR regarding Congressional certification for South Korea, which is now in the same category as the countries in NATO, Japan, Australia, and New Zealand requiring certification to Congress prior to granting any license for export of major defense equipment sold under a contract in the amount of $25,000,000 or more, or for defense articles or defense services sold under a contract in the amount of $100,000,000 or more.

July 31

There are several new CBCA decisions out. The most interesting of the bunch is EBS/PPG Contracting. In that case, the Government kept requiring the contractor to re-submit (and provide more information for) its termination settlement proposals. Finally fed up, the contractor sent a letter stating it expected a contracting officer's decision on its prior proposals by a date certain and would treat a failure to decide by that date as a denial. The Board held this letter was sufficient to turn the prior submissions into a claim. However, the contractor subsequently acquiesced in the contracting officer's request to submit still more information in a revised format, and the Board found the latter submission was again not a CDA claim, dismissing the subsequent appeal for lack of CDA jurisdiction. The Board wrote as follows: "It is apparent that in its effort to get some sort of action from the BOP on any of its settlement proposals EBS became caught up in the nuances associated with CDA jurisdictional practice. Nevertheless, we find that by the time EBS was finished resubmitting and withdrawing its settlement proposals, it had neither a proposal nor a claim before the contracting officer." Thirty years into the CDA's existence, contractors are still being trapped by the "nuances associated with CDA jurisdictional practice."  I would phrase it this way: thirty years in, there are still some kinks to work out of the statute.

July 30

Global Computer Enterprises won its protest because the Court of Federal Claims determined that work added by the Government to a contract was outside its scope and should have been competed. The interesting thing about the decision, however, is the court's finding that the Coast Guard repeatedly overstated the harm it would suffer if it were required to compete rather than proceed as it wished. Often, the court is much more deferential to an agency's avowals of the dire consequences of an injunction, regardless how overwrought such predictions may be.

In a decision originally made in September 2008, but just now published, the GAO sustained the protest of Radiation Oncology Group because the agency permitted the awardee to submit proposal revisions after the deadline for receipt of proposals and failed to document the bases for its evaluation.

July 29

Busy, busy day--

Global Computer Enterprises succeeded in its efforts to supplement the record extensively in its bid protest at the Court of Federal Claims over objections that its submissions contained impermissible lay opinions and hearsay (e.g., non-agency RFP summaries and material from various web pages).

Todd Construction concerns the scope of, and limits on, (i) the Court of Federal Claims' power to remand a case to the agency with "proper and just" directions for further consideration of  the agency's faulty performance evaluation of a contractor and (ii) the types of relief a contractor may request of the court in such a situation. The court's discussion of the history of its remand power is fascinating, and I recommend you take a few minutes out of your busy days to read this one.

OK's Cascade tried to enforce relatively favorable decisions it had obtained from the Contracting Officer on uncertified claims exceeding $100,000. The court found the Contracting Officer's decisions bound neither the agency nor the court in these circumstances.

A bunch of DFARS amendments have been published--

DFARS Case 2008-D035, entitled "Peer Reviews of Contracts," is a final rule that adds, inter alia, a DFARS section 201.170 ("Peer Reviews"), which (i) specifies that the Office of the Director, Defense Procurement and Acquisition Policy, will organize teams of reviewers and will facilitate Peer Reviews for all solicitations valued at $1 billion or more and for all contracts for services valued at $1 billion or more and (ii) requires the military departments, defense agencies, and DoD field activities to establish procedures for pre-award Peer Review of solicitations valued at less than $1 billion, and postaward Peer Review of contracts for services valued at less than $1 billion.

DFARS Case 2008-D003, entitled "Restriction on Acquisition of Specialty Metals," is a final rule that 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 by  addressing restrictions on the acquisition of specialty metals not melted or produced in the United States.

DFARS Case  2008-D010, entitled "Clarification of Central Contractor Registration and Procurement Instrument Identification Data Requirements," is a final rule addressing requirements for ensuring the accuracy of contractor information in the CCR database and in contract documents and clarifying the requirements for proper assignment of procurement instrument identification numbers.

DFARS Case 2007-D006, entitled "Contract Reporting," is a final rule that updates DFARS text addressing reporting of contract actions to remove references to obsolete reporting form DD 350 and to address current DoD procedures for reporting of contract actions in the Federal Procurement Data System ("FPDS").

DFARS Case 2007-D020, entitled "Government Property," is a final rule that extensively updates text throughout the DFARS addressing the management of government property in the possession of contractors. The updates are consistent with changes made to the FAR.

DFARS Case 2007-D008, entitled "Protection of Human Subjects in Research Projects,"  is a final rule that adds DFARS policy (i) addressing requirements for the ethical treatment of human subjects involved in research projects, (ii) adding a clause for use in contracts involving human subjects in research, and (iii) informing contractors of their responsibilities for compliance with 32 CFR Part 219; DoD Directive 3216.02; applicable DoD component policies; 10 U.S.C. 980; and, when applicable, FDA policies and regulations.

DFARS Case 2008-D029, entitled "Requirements Applicable to Undefinitized Contract Actions," is a final rule that (i) requires DoD departments and agencies to submit semi-annual reports regarding undefinitized contract actions exceeding $5 million and (ii) establishes requirements for (a) obligation of funds for the undefinitized period consistent with the contractor’s proposal for that period and (b) compliance with existing DFARS policy relating to profit computation for undefinitized contract actions.

DFARS Case 2008-D046, entitled "Trade Agreements--Costa Rica and Peru,"  is an interim rule that amends trade agreement provisions and clauses in DFARS Part 252 to implement the Dominican Republic-Central America-United States Free Trade Agreement with respect to Costa Rica, and the United States-Peru Trade Promotion Agreement, which were approved by Congress in the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (Pub. L. 109–53) and the United States-Peru Trade Promotion Agreement Implementation Act (Pub. L. 110–138) (19 U.S.C. 3805 note). Comments are due by September 28.

DFARS Case 2008-D040, entitled "Motor Carrier Fuel Surcharge," is an interim rule to implement Section 884 of the National Defense Authorization Act for Fiscal Year 2009, which requires the DoD to ensure that fuel-related adjustments in contracts for carriage are passed through to the person bearing the cost of the fuel to which the adjustment relates. Comments are due by September 28.

July 28

Effective August 12, the EPA is amending its acquisition regulation (the EPAAR) to revise the prescription for and the content of the "Technical Direction" clause by adding and defining two terms: (i) contracting officer technical representative and (ii) task order.

The ASBCA published six new decisions. After reviewing an extensive and complex motion for reconsideration by SUFI, the Board more than doubled the quantum of its recovery in its original decision and granted its request for claim preparation costs and consulting fees, although not at the rate the contractor desired. There was a split decision in the American Renovation and Construction appeals. One default termination was upheld because, even though the Contracting Officer received "marching orders" from the customers to terminate, she showed great patience with the contractor and exercised careful discretion in finally doing so. A related termination was overturned because the Government waited more than a reasonable time after final acceptance to rescind that acceptance.

July 25

In LAI Services (LABAT-Anderson below), a decision involving several issues of contract interpretation, the Court of Appeals for the Federal Circuit reversed the ASBCA and held that a contractor performing materiel distribution services should be compensated for "minimum military packing" of off-base transshipments under CLIN 002 rather than CLIN 001 of the contract. In the interests of judicial economy, the court also determined the appropriate method of billing under CLIN 002 (per-package versus the per-item payment claimed by the contractor), an issue not addressed by the Board.

July 23

Red River Holdings won its post-award protest at the Court of Federal Claims because of a defective evaluation, but the winner got to retain the contract for the base period because of national security needs, so Red River received both partial equitable relief and the right to recover its proposal costs. The court spent quite a bit of space analyzing whether it had jurisdiction because the contract was a maritime contract which raised the issue whether even the protest should be under the exclusive admiralty jurisdiction of a federal district court.

Public Communications Services won its GAO protest against a flawed evaluation that did not treat offerors equally. 

July 22

Effective August 21, the Department of Energy is issuing an extensive set of technical amendments and corrections to its acquisition regulations (the DEAR).

Effective today, the SBA has issued an  interim final rule implementing provisions of the American Recovery and Reinvestment Act that pertain to the Surety Bond Guaranty (SBG) Program. Specifically, until September 30, 2010, the SBA is authorized (i) to guarantee bonds on contracts of up to $5,000,000 (or up to $10 million based upon the certification of a federal contracting officer) and (ii) to partially deny liability under its bond guarantee (but not on the basis of material facts disclosed to SBA in a guarantee application submitted under the Prior Approval Program). The rule also revises the size standard for participation in the SBG Program.

The GAO sustained another protest regarding an OMB Circular A-76 procurement because the agency failed to reasonably consider whether agency tender's material and supply costs were realistic.

July 21

In Canal 66 Partnership, the Court of Federal Claims denied motions for summary judgment because it found both parties' interpretations of an ambiguous contract reasonable and concluded that extrinsic evidence will have to be examined to resolves the issue.

The DFARS (section 212.207(b)) has been corrected by adding the words "commercial item" in two places to clarify the particular definition to which that section is referring in specifying the types of services to which the rule applies.

Effective August 20, the GSA is amending the FTR to update the list of travel purpose identifiers and incorporate new descriptive language for each identifier to enhance how travel costs are identified by Federal agencies.

July 17

The DoD has issued an interim final rule adding a Part 159 to 32 C.F.R. entitled "Private Security Contractors Operating in Contingency Operations," which "establishes policy, assigns responsibilities and provides procedures for the regulation of the selection, accountability, training, equipping, and conduct of personnel performing private security functions under a covered contract. It also assigns responsibilities and establishes procedures for incident reporting, use of and accountability for equipment, rules for the use of force, and a process for administrative action or the removal, as appropriate, of" private security contractors and their personnel.

The GAO sustained a protest by the agency's tender official in an OMB Circular A-76 procurement.

July 15

In response to the SBA's request for reconsideration, on July 6, the GAO reaffirmed its decision in the Mission Critical Solutions protest that HUBZone program set-asides are mandatory when the statutory conditions are met. (The original decision is discussed at the May 7 entry below). However, on July 10, the OMB issued a Memorandum (M09-23) directing all executive agencies to disregard the GAO's position in both the Mission Critical Solutions and International Program Group protests while the matter was under legal review.

Several DFARS regulations have been issued--

DFARS Case 2008-D011 is an interim rule amending the DFARS to implement Sections 805 and 815 of the National Defense Authorization Act for Fiscal Year 2008. It lists the conditions under which (i) a time-and-materials or labor hour contract may be used for the acquisition of commercial items and (ii) major weapon systems and subsystems may be treated as commercial items.

DFARS Case 2006-D013 is a final rule implementing statutory provisions relating to the leasing of vessels, aircraft, and combat vehicles. It applies to long-term leases and charters and to contracts with a substantial termination liability.

DFARS Case 2006-D051 is an interim rule  implementing Section 802 of the National Defense Authorization Act for Fiscal Year 2008, which places limitations on the award of new contracts for lead system integrator functions in the acquisition of major DoD systems.

DFARS Case 2008-D044 is a final rule implementing Section 803 of the National Defense Authorization Act for Fiscal Year 2009, which requires the DoD to identify and evaluate, at all stages of the acquisition process, opportunities for the use of commercial computer software and other nondevelopmental software.

DFARS Case 2008-D005 is an interim rule implementing Section 801 of the National Defense Authorization Act for Fiscal Year 2008, which requires internal controls for procurements made by non-DoD agencies on behalf of DoD.

The DoD (DFARS Case 2007-D011) is also proposing revisions to the DFARS to clarify requirements regarding definitization of letter contracts and to specify that DoD letter contracts will be definitized using the DFARS procedures applicable to all other undefinitized contractual actions. Comments are due by September 14.

In its latest Ashbritt protest decision, the Court of Federal Claims clarified its use of the term "reprocure" in its original decision (see July 1 entry below) granting the protest and ordering the agency to reprocure certain items. The court stated as follows: "The Court used the word 'reprocure' in its broadest sense to permit Defendant to effect a remedy of the procurement errors at any stage in the reopened procurement process that the agency deems appropriate. Defendant has asked whether the Corps could reopen discussions and evaluate revised proposals or whether it must issue a new solicitation. Reopening discussions and proceeding from that point in the reprocurement effort will comply with the Court’s order, so long as the agency corrects the errors identified in the opinion. As this Court emphasized, the agency has discretion in taking corrective action, and 'it is not for this Court to dictate the particulars of each step the agency should take to remedy what transpired.' "

July 14

FAC 2005-35 has been published. It includes one item, FAR Case 2009-015, entitled "Revocation of Executive Order 13202." The item removes all references in the FAR to Executive Order 13202, which had prohibited the Government from requiring or prohibiting the use of project labor agreements by its construction contractors and subcontractors. Similarly, a proposed rule (FAR Case 2009-005) would implement President Obama's Executive Order 13502 by adding (i) a new FAR Subpart 22.5, Use of Project Labor Agreements for Federal Construction Projects; (ii) a new solicitation provision, entitled "Notice of Requirement for Project Labor Agreement," to be included in solicitations where the agency has exercised its discretion to require a project labor agreement; and (iii) add a new contract clause entitled "Project Labor Agreement." Comments are due by August 13.

Effective July 29, the SBA is waiving the nonmanufacturer rule for 13 Watt CFLs, 26 Watt CFLs, and Occupancy Sensors Dual Technology.

The SBA has also published an interim final rule that implements certain provisions of the American Recovery and Reinvestment Act of 2009 affecting small business investment companies (SBICs). These provisions increase the maximum amount of SBA leverage available to an SBIC, change the calculation of the maximum investment size that an SBIC is permitted to make, and simplify the requirement for an SBIC to devote a portion of its investment activity to smaller enterprises.

L-3 Communications EOTech lost its protest at the Court of Federal Claims because the agency's decision to eliminate the protester from the competitive range (leaving only one competitor in the competitive range) survived the "close" scrutiny such an action entails. L-3 was eliminated from further consideration primarily because its bid samples were not satisfactory to the agency.

July 13

Although I'm still working out the kinks, I have published the 2009 Procurement Review through today. Of course, I will continue updating it through the end of the year. If you spot typos, I would really appreciate it if you would email me and let me know about them.

July 10

The GAO's decision granting the protest of AINS, Inc., is interesting because it goes into much more depth and detail than the GAO normally is willing to undertake in analyzing the protester's proposal and the agency's flawed evaluation of it.

In Pixl, Inc., the CBCA held that a contractor's request that the Contracting Officer reconsider his decision made more than 90 days after the contractor had received that decision did not toll or re-establish the 90-day period for appealing the original decision, and, therefore, the Board dismissed the contractor's subsequent appeal to the Board as untimely.

July 8

In Leader Communications, the SBA's OHA held that amounts paid for the New Mexico gross receipts tax and a GSA funding fee should not be excluded in determining a firm's annual receipts.

July 7

Two Court of Federal Claims decisions on contract disputes have been published. In United Surety & Indemnity Co., the court dismissed a surety's complaint for failure to state a claim upon which relief could be granted because the surety had not provided the Government with proper notice of the contractor's default or imminent default on its Miller Act bond and, therefore, the Government did not owe a surety a duty under the doctrine of equitable subrogation. In IMS Engineers-Architects, the court held that a Government's oral assurances during settlement negotiations under one contract that it would order larger quantities under two other contracts did not create rights under the latter two contracts because they were ID/IQ contracts and the Government did order the required minimums under each. The question of the Government's good faith and fair dealing under the contract on which the release was executed is still open, however.

The VA announced it intends to deviate from the FAR 32.905 by adding an interim clause to the VA Acquisition Regulation, which will allow vendors to voluntarily submit invoices electronically.

I consider myself fairly internet savvy for an old man, but once in awhile, something happens that makes me feel my age. The news that the GAO is now on Twitter is one such event.

The GAO sustained Ashbury International Group's protest because the agency failed to test the awardee's submittal as it was supposed to and failed to engage in meaningful discussions with the protester. 

July 2

The Prompt Payment interest rate  for the period from July 1 to December 31 is 4 7/8 percent.

The ASBCA has published four new decisions, each of which involves application of the rules of contract interpretation to various situations.

July 1

The DoD is seeking comments (by July 31) concerning its upcoming revision of the Commercial Item Handbook.

Federal Acquisition Circular (FAC) 2005-34 has been published. It includes three items. Item I (FAR Case 2006-022), a final rule effective today entitled "Contractor Performance Information," implements the President's March 4 Memorandum on Government Contracting by promoting the use of a standard performance information reporting system, the Past Performance Information Retrieval System (PPIRS). Item II (FAR Case 2008-009), an interim rule effective today entitled "Prohibition on Contracting with Inverted Domestic Corporations," implements Section 743 of Division D of the Omnibus Appropriations Act, 2009 (Public Law 111–8), which prohibits the award of contracts using appropriated funds to any foreign incorporated entity that is treated as an inverted domestic corporation or to any subsidiary of one. An inverted domestic corporation is one that used to be incorporated in the United States, or used to be a partnership in the United States, but now is incorporated in a foreign country, or is a subsidiary whose parent corporation is incorporated in a foreign country, the purpose being to avoid United States taxes on business income generated in foreign countries. Comments are due by August 29. Item III (FAR Case 2008-028), a final rule effective July 31 entitled "Role of Interagency Commission on Debarment and Suspension" implements Section 873(a)(1) and (2) of the National Defense Authorization Act for Fiscal Year 2009. The rule clarifies the role of the Interagency Committee on Debarment and Suspension when more than one agency has an interest in the debarment or suspension of a contractor.

The GAO sustained Carahsoft's protest because the agency issued a delivery order in response to a proposal that failed to meet one of the minimum technical requirements of the solicitation's specification.

The Court of Federal Claims awarded Ashbritt a declaratory judgment and a permanent injunction on its post-award protest because of serious errors by the agency in the price evaluation and because the agency treated offerors unequally during discussion by giving one offeror significantly more information and opportunities to improve its proposal.

June 29

Anyone with even a rudimentary knowledge of the CDA and the doctrine of sovereign immunity should have seen this one coming from a mile away. Certainly, the ASBCA should have. In FloorPro, the Court of Appeals for the Federal Circuit reversed the ASBCA and held that a subcontractor claiming to be a third party beneficiary of a bilateral modification between the Government and the prime did not have CDA jurisdiction to bring a claim directly against the Government based on an alleged breach of that mod.

Sitco, however, evinced an even more fundamental misunderstanding of the CDA when it tried to file a complaint in the Court of Federal Claims without first having submitted a written, certified claim to the Contracting Officer. Needless to say, that went over like a lead balloon.

Academy Facilities Management lost its post-award bid protest at the Court of Federal Claims, after the court requested an advisory opinion from the GAO. The decision is notable not so much for any particular holding on the various evaluation errors the protester alleged, but for the fact that the judge seems to cite every case under the sun for each step in his analysis. If you ever want a starting point for analyzing the standards applicable to a bid protest at the court, this would be one good place to begin your education.

June 26

Over a strong dissent, the Court of Appeals for the Federal Circuit reversed parts of a Court of Federal Claims decision on Bell BCI's cumulative impact delay claims because the appeals court found that the language "attributable to this modification" in a release unambiguously barred certain claims.

Four new SBA OHA size decisions have been published, three of which reverse a determination by an SBA Area Office. In KVA Electric, the OHA faulted the Area Office for relying on a firm's self-serving post-offer statements contracting clear evidence in the resumes submitted in its offer of excessive reliance on a firm that the OHA found should have been considered its affiliate under the ostensible subcontractor rule. In Henderson Group Unlimited, the OHA found a firm had rebutted a presumption of affiliation by establishing a that a "clear fracture" existed between two firms. Btw, I'm not usually a fan of  regulatory jargon, but "clear fracture" appeals to me for some reason.

June 24

The SBA published a comprehensive list of all the currently approved class waivers from the nonmanufacturer rule

The GAO sustained TFab Manufacturing's protest against a solicitation's requirements concerning the applicability of the "Limitations on Subcontracting" clause.

June 23

The EPA is proposing to amend various provisions in the EPAAR concerning government property in order to consolidate the EPAAR physical property clauses (Decontamination, Fabrication, and Government Property), re-designate the prescription number in the data clause, and update the roles and responsibilities of the contractor, DCMA and CPC. Comments are due by July 23.

Five ASBCA decisions have been published. In denying DMJM H&N, Inc.'s claim, the Board wrote: "It is simply unreasonable for appellant to declare at the project halfway point, that it should be compensated for any changes not 'effortless.' "

June 17 A couple of new ASBCA decisions have been published. 
June 15

Federal Acquisition Circular 2005-33 has been published. It includes two items. Item I (FAR Case 2008-036) is an interim rule, which allows contracting officers to purchase the goods and services of Costa Rica, Oman, and Peru without application of the Buy American Act if the acquisition is subject to the applicable trade agreements. Item II, entitled Contractor's Request for Progress Payments (FAR Case 2005-032), is a final rule that incorporates improvements related to requests for progress payments and the Standard Form 1443, Contractor’s Request for Progress Payments, used to request those progress payments.

June 10

Rhinocorps finally lost its protest at the Court of Federal Claims because the agency had a rational basis for concluding, as a result of a market analysis, that there were not two, responsible small businesses available to justify setting aside a procurement. Rhinocorps had argued that the market analysis was a sham undertaking meant only to reinforce a decision the Government already had made. The court concluded as follows: "And, although the administrative record reveals that the Air Force reluctantly performed the required analysis under FAR 19.502-2(b), and only did so after plaintiff forced the issue, the FAR does not require the Air Force to negate evidence of a predisposition."

Systore Companies proved the Government breached a license agreement, but it was a hollow victory because the ASBCA also found that Systore failed to prove its damage claim (for lost profits).

June 8

Effective June 23, the SBA is waiving the nonmanufacturer rule for PSC 9130--Liquid Propellants--Petroleum Base Manufacturing. Also, the SBA is considering granting a waiver for 13 Watt Compact Fluorescent Lamps (CFLs), 26 Watt CFLs, and Occupancy Sensors Dual Technology. Comments are due by June 23.

Cochran Lumber Co. lost its appeal at the CBCA concerning a timber sales contract because the board rejected the contractor's method of calculating the difference between the Government's estimates and the actual amounts available.

June 5

The applicability date for the employment eligibility verification rules has been delayed yet again to September 8.

The Court of Federal Claims somewhat reluctantly dismissed Datapath's protest, citing 28 U.S.C. § 1491(b)(3) for the proposition that courts must "give due regard to the interests of national defense and national security and the need for expeditious resolution of the action." Datapath did, however, recover certain costs associated with pursuing its protest, in a somewhat unusual manner, as revealed in footnote 5 to the court's opinion: "Recognizing that the court has authority to award bid preparation and proposal costs, in the event DataPath prevailed in this protest, following oral argument, L-3 Global, the incumbent contractor and primary beneficiary of this contested Solicitation, agreed to the court’s request to reimburse DataPath for certain costs incurred to date. Since the issues raised by this bid protest are complex and were well presented by DataPath’s counsel, this accommodation by L-3 Global is appropriate, as it serves the interest of an 'expeditious resolution of the action.' 28 U.S.C. § 1491(b)(3)." 

June 4 Effective July 6, the NSF is implementing final regulations covering the Program Fraud Civil Remedies Act.
June 3 The Court of Appeals for the Federal Circuit upheld the Court of Federal Claims' decision sustaining the default termination of McDonnell Douglas and General Dynamics on the A-12 Avenger program.

Engineering & Management Integration won its GAO protest because the agency had rejected its proposal for failing to identify (as required) the percentage of its proposed staffers that were certified, when it had provided the number that were certified.
June 1

Effective today, the GSA (GSAR Case 2008-G514) is amending Part 546 of the GSAR (Quality Assurance).

May 29 Effective June 29, the GSA will remove Part 547 (Transportation) from the GSAR.

Effective today, NASA has amended its FAR Supp regulations concerning its mentor-protege program, inter alia, expand it to cover Veteran-owned, HUBZone, and NASA Small Business Innovation Research (SBIR) Phase II small businesses.

In General Dynamics, C4 Systems, the ASBCA (by analogy to option exercise case law) strictly construed the ordering clause under an ID/IQ contract and held that delivery orders issued by email (when the contract did not permit such means of delivery) were changes entitling the contractor to an equitable adjustment.

May 28 Effective today, the GSA has rewritten GSAR Part 513 re Simplified Acquisition Procedures.

There are three new SBA OHA 8(a) business development program decisions out.

American K-9 Detection Services won its GAO protest because, in taking corrective action in response to a prior protest, the agency did not engage in meaningful discussions.

May 20

The Court of Appeals for the Federal Circuit reversed the ASBCA's summary judgment in favor of Tecom  and held that the contractor could not recover the costs of defending against, and settling, a private suit for sexual harassment unless the contractor could show the original plaintiff had very little chance of succeeding on the merits.

May 19

Comments are due by July 20 on a proposed regulation (FAR Case 2008-023) that would clarify the requirements that have to be met for a sole source award to a service-disabled veteran-owned small business (FAR 19.1406). The proposed rule also would modify the language in the regulation concerning sole source awards to HUBZone small businesses (FAR 19.1306) to make it consistent with the changes to the SDVOSB regulations. The proposed rules respond to the GAO's decision in the matter of MCS Portable Restroom Service, B–299291, March 28, 2007.

The GSA is proposing to amend GSAR Part 541 (Acquisition of Utility Services). Comments are due by July 20.

The Court of Federal Claims reissued (as corrected) two earlier decisions in the Rhinocorps bid protest. The first corrected decision involves jurisdictional matters; the second is the one granting the preliminary injunction.

The CBCA's decision in the Sectek case gave me a headache. Moreover, I can't shake the feeling the decision is wrong. The Government sought to extend the term of a services contract for a third option year when, in fact, the contract only permitted two option years. The contractor submitted proposed labor rates for the "third" option year; the Government ignored those rates, and, after the end of the actual contract term, sent a bilateral modification with the old rates, which the contractor signed, purporting to extend it for the third option year pursuant to the "Option to Extend the Term of the Contract" clause. The contractor argued that it could not be bound by that modification because there was no legal authority under the "Option to Extend the Term of the Contract" clause to enter into it. The Board got around this with some fairly lame references to the policy behind the contract's "Option to Extend Services" provision, which would have allowed the parties to extend the contract for six months, even though the Government had not complied with that clause's notice provision and had not cited it as authority for the modification at issue.  (As a side note, although the contractor's name is "Sectek," the url for the case includes the name "Sectex.")

May 18

Effective June 17, the Department of Energy Acquisition Regulation (DEAR) is being amended to revise the security clause used in all contracts and subcontracts involving access authorizations to specifically require background reviews, and tests for the absence of any illegal drug, as defined in DOE regulations of uncleared personnel (employment applicants and current employees), who will require access authorizations. Background reviews will not be required for applicants for DOE access authorization who possess a current access authorization from another Federal agency.

May 14

Four new ASBCA decisions are out. Coincidentally, two involve default terminations for failure to delivery military equipment to Iraq (machine guns and cargo trucks), and both  of those involve the contractor's difficulty in obtaining End User Certificates. The machine gun supplier lost its appeal; the cargo truck contractor's appeal survives after the Board denied cross motions for summary judgment.

In Trace Inc., the ASBCA sustained an appeal involving the contractor's allegations that the Government had improperly deducted amounts based on improvidently issued Contractor Deficiency Reports. Judge Van Broekhoven scolded both parties, however, for an incomplete and unclear record, quoting from a Seventh Circuit case: "Judges are not like pigs, hunting for truffles buried in briefs."

May 11

The SBA is considering waiving the nonmanufacturer rule for PSC 9130--Liquid Propellants--Petroleum Base. Comments are due by May 26.

May 7

The GSA has rewritten GSAR Part  549 (Termination of Contracts). The effective date is June 8.

Mission Critical Solutions won its protest against a sole source award because  the agency made the award without considering whether it could obtain competition from two or more HUBZone small businesses as required by the HUBZone statute, the provisions of which the GAO recognized as "mandatory."  Interestingly, the SBA fought against the protester's position in the protest (so the GAO decided against the SBA's interpretation).

May 6

The Court of Appeals for the Federal Circuit reversed the Court of Federal Claims' prior decision in the Axiom bid protest case because the appeals court did not believe it appropriate for the Court of Federal Claims to have set aside a contract award based solely on its suspicion that the Contracting Officer would not enforce Lockheed's OCI mitigation plan. The Federal Circuit also found fault with the lower court's decision to allow supplementation of the administrative record without a showing that such supplementation was necessary for necessary for effective judicial review.

The GSA has rewritten GSAR Part 525 (Foreign Acquisition). The effective date is July 6.

May 5

There is a proposed rule (FAR Case 2008-015) that would  change the withholding requirement for payments under fixed-price architect-engineer contracts from 10% to an amount determined by the Contracting Officer as being necessary to protect the Government's interests. Comments are due by July 6.

The GSA has rewritten GSAR Part 537 (Service Contracting). The effective date is June 4.

The Postal Service has published the final revisions to the rules of practice for the Postal Service Board of Contract Appeals. The final rules are effective June 1.

May 2

Three new ASBCA decisions are out, all of which involve interesting cost issues. To me, the most interesting of the three is the ATK Launch Systems decision, which involved a contractor's claim that the Government breached the Allowable Cost and Payment clause by failing to adjust interim billing rates to include certain allowable costs. The Board wrote, in part, as follows: "While we agree with the government that under the ALLOWABLE COST AND PAYMENT clause the CO or authorized representative is responsible to set interim billing rates, there is nothing in the clause -- or anywhere in the contract, regulations or case law for that matter -- that would forbid a contractor from filing a claim under the CDA challenging this CO determination. The parties often use billing rates for years until final rates are agreed upon, or litigated and determined by a court or board. An erroneously low billing rate may cause loss to a contractor throughout this period. Subsection (e) of the ALLOWABLE COST AND PAYMENT clause provides that the billing rates "shall be the anticipated final rates." This means that they must include all properly allowable and allocable costs, and failing mutual agreement a contractor may claim under the CDA that the CO did not include such costs and hence violated this contract provision and the ALLOWABLE COST AND PAYMENT clause." The Board also held that the Allowable Cost and Payment clause does not prohibit the award of damages for its breach.

May 1

Recall the CBCA's irritation with the VA in the Ocwen Loan Servicing case (see the entry at March 26 below)? In the latest decision, the Board granted the contractor's appeal because the VA refused another opportunity to provide the appraisals the Board had ordered it to produce. Judge Daniels' opinion of the VA's actions has not improved: "Once again, the Board has thrown the [VA] a lifeline, and the agency has used that rope to hang itself." 

April 29

The Bureau of Industry and Security (BIS) is proposing to amend its regulations (at 15 C.F.R. Part 701) concerning the reporting of offset agreements in sales of weapon systems or defense-related items to foreign countries or foreign firms in order to update and provide clarification with regard to the information U.S. companies are required to submit each year to BIS to support the preparation of the annual report to Congress on offsets in defense trade. Comments are due by June 29.

Savantage could not convince the Court of Federal Claims that the Government's actions are violating the court's previous injunction against proceeding with a sole-source award to Oracle. Reading the decision, some of you may feel (as I do) that Savantage lost only because of its high burden of proof and that the Government probably is doing what Savantage suspects (i.e., maneuvering to get around the court's earlier injunction).

April 24

Blackwater Lodge & Training Center lost its post-award protest at the CoFC, but Judge Wheeler certainly gave the protester's complaints against the technical and past performance evaluations and the trade-off evaluation a full and fair analysis. One wishes all judges were that thorough.

The GAO published seven protest decisions today--deny, deny, deny, deny, deny, deny, deny. Still a tough row to hoe.

April 23

The Cost Accounting Standards (CAS) Board is soliciting comments concerning whether the "overseas exemption" from CAS for contracts performed entirely outside the United States should be retained, eliminated or revised and, if revised, how so. Comments are due by May 26.

The SBA is waiving the nonmanufacturer rule for Conductor and Control Cable (Aluminum); Conductor and Control Cable (Copper); Truck Trailer; All terrain vehicles (ATVs), wheeled or tracked; Snowmobiles and parts; Off-road ATV, wheeled or tracked; Noncurrent-Carrying Wiring Device Manufacturing, i.e., dead end tees and connectors, guy strain and link assemblies, bolts, washers, turnbuckles, twisted clips, steel angle assemblies, yoke plates, compression T connectors, press dies, anchor shackles, Y clevis ball and Y clevis sockets, yoke plates, and grounding clamps.

April 22

Although the CoFC's latest opinion in the long-running Veridyne fraud case is just a ruling on the Government's motion to amend its answer and counterclaim, the recited facts of the case continue to amaze me. Veridyne (an 8(a) small business at the time) and the Government jointly devised a way to extend its 8(a) subcontract for five additional one-year options beyond its original term without competition by stating that the estimated cost was less than $3,000,000 (the amount that would have required a new competition) even when it was apparent to both that the probable cost was much more than that. Part way through Veridyne's performance, the Government apparently had second thoughts and came at Veridyne with both guns blazing, alleging fraud and demanding all its money back, even though Veridyne was successfully performing the work. Veridyne's current suit ensued.  If this all strikes you as a bit disingenuous on the Government's part, the court apparently shares your feelings. Witness its footnote nine from the current opinion: "[D]uring oral argument the court discussed candidly with both parties the vulnerabilities in their respective cases. Each time the court has been asked to review the merits of this case, it has been evident that [the Government] may not be able to prevail at trial, and [Veridyne] may well succeed."

April 21

Two new CBCA decisions are out: DSS Services and Tarheel Specialties.
April 17 The applicability date for the employment eligibility verification rules in the FAR has been pushed back to June 30.

New per diem rates have been published for travel by government employees in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and United States Possessions.

The CBCA's decision denying the Government's motion for summary judgment in West Ridge LLC is interesting for the following tantalizing footnote: "West Ridge asserts that '[w]here the Government accepts an offer that it could have rejected as non-responsive, the award constitutes acceptance of a counter-offer and binds the Government to the terms of that counter-offer.' . . . In support of this proposition, the lessor cites Bob Vandiver Office Equipment Co., GSBCA 4138, 75-1 BCA ¶ 11,004 (1974). While the proposition may be valid, Vandiver does not bind us. That decision was issued under the small claims procedure and therefore has no value as precedent. . . . We will appreciate further briefing as to the legal implications of the Government’s acceptance of a non-responsive offer."  Stay tuned.

Take a look at the last page of the Vastec Group decision by the SBA's OHA. Is it just me, or does the "Analysis" section of the opinion seem a bit perfunctory? (EDIT--they fixed it; it was much more humorous the old way--the "Analysis" section was originally blank).

April 16

I have corrected the headings at the top of the SBA OHA decisions page so that they will link correctly to the various sections on that page. There are several new SBA OHA decisions out today. Forterra and Val-Coast are the new size decisions, and Dynamac Corp. is a new NAICS decision.

April 14

The GSA has issued a rewrite of GSAR Part 528, entitled "Bonds and Insurance."

The ASBCA has issued a couple of new decisions.

April 13

Proposed revisions would conform the FAR to changes in the SBA's regulations concerning the HUBZone program. Comments are due by June 12.

The Court of Federal Claims found Rhinocorps had standing to continue its protest despite the fact that the company did not bid on the protested solicitation because the protest had been pending since well before the solicitation was issued and the protester claimed the solicitation was issued as a pretext to keep it from being awarded a follow-on contract.

April 10

Effective today, the GSA has amended the Federal Travel Regulation to clarify that travelers must deduct the appropriate amounts from their meals and incidental expense allowance when meals are part of a registration fee or otherwise paid for by the Government, in conjunction with attendance at conferences or other events while on official travel. The amendments also clarify that in limited instances, agencies may allow employees to claim the full allowance for meals when employees are unable to consume meals furnished by the Government.

Effective May 11, the GSA has clarified the meal and incidental expense allowance for travel in excess of 12 hours but less than 24 hours.

April 9

I just discovered that the links to federal regulations issued prior to April 2008 in the 2007 and 2008 blogs and the 2007 and 2008 procurement reviews were broken because those web addresses  have been changed. I have fixed the problems so the links should be working again. I've also fixed several broken links on the Statutes page.

April 8

The Department of Transportation has issued several proposed rules concerning its Disadvantaged Business Enterprise (DBE) program, relating to (i) counting items obtained by a DBE subcontractor from its prime contractor; (ii) encouraging "unbundling" of contracts to facilitate participation by small businesses, including DBEs; (iii) improvements to the DBE application form; (iv) program oversight; (v) facilitating certification for firms seeking to work as DBEs in more than one state; and (vi) limitations on the discretion of prime contractors to terminate DBEs for convenience, once the prime contractor has committed to using the DBE as part of its showing of good faith efforts.
April 6 Sorry for the gap in the blog--I've been too busy for my own good the past few days. There are several new Court of Federal Claims decisions out that I have listed in the CoFC  bid protests page. The most interesting of the bunch is the temporary restraining order issued by the court in favor of Datapath, enjoining a contract award because the Government's J & A was sketchy at best; the Government had contributed to the delay responsible for the emergency buy; the Government did not have the administrative record available for review by the protester before the proposed time of contract award; and the court was mindful of President Obama's memorandum to executive agencies of March 4 re government contracting policies and requirements. It didn't take long for that memorandum to have an effect.
April 1 In D & F Marketing, the ASBCA found that nobody in the entire Navy had the authority to enter into the type of contract the appellant claimed existed.
March 31 There are a couple of interesting new Court of Federal Claims decisions. In the court's decision on the NEQ post award protest, Judge Allegra refused to go as far as some other judges appear to in allowing supplementation of the administrative record. He wrote, in part: "The court will not repeat itself here except to reiterate, in particular, its refusal to supplement the record, via discovery, with more information regarding the agency’s reasoning for an award, or to otherwise add to the record evidence, not previously possessed by the agency, designed supposedly to improve the court’s 'understanding' of a case." The Tecom decision involves a slew of different categories of damage calculations for government breach, including costs of REA preparation, lost profits, prime contractor profit on a claim sponsored by the prime for the sub, and many specific labor and material cost categories.

Federal Acquisition Circular 2005-32 has been published. It contains six regulations, the first five of which are issued under the American Recovery and Reinvestment Act of 2009 (the "Recovery Act"):

Item I, an interim rule effective today, entitled "Buy American Act Requirements for Construction Materials" (FAR Case 2009-008), prohibits the use of funds appropriated or otherwise made available by the Recovery Act for any project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.

Item II, an interim rule effective today, entitled "Whistleblower Protections" (FAR Case 2009-012), prohibits federal employers from discharging, demoting, or discriminating against employees as a reprisal for disclosing information concerning violations of the Recovery Act.

Item III, an interim rule effective today, entitled "Publicizing Contract Actions" (FAR Case 2009-010), amends the FAR to reflect new requirements for (i) posting of presolicitation notices; (ii) announcing contract awards; (iii)  entering awards into the Federal Procurement Data System (FPDS); and (iv) actions that are not fixed-price or competitive.

Item IV, an interim rule effective today, entitled "Reporting Requirements" (FAR Case 2009-009), which implements the portion of the Recovery Act known as the  ‘‘Jobs Accountability Act,’’  requires contractors that receive awards (or modifications to existing awards) funded, in whole or in part, by the Recovery Act to report quarterly on the use of the funds.

Item V, an interim rule effective today, entitled "GAO/IG Access" (FAR Case 2009-011), adds alternate clauses to FAR 52.214–26, "Audit and Records–Sealed Bidding," FAR 52.212–5, "Contract Terms and Conditions Required to Implement Statutes or Executive Orders–Commercial Items," and FAR 52.215–2, "Audit and Records-Negotiation." Moreover, FAR 12.504(a)(7) is amended for contracts using Recovery Act funds to apply 41 U.S.C. 254d(c) and 10 U.S.C. 2313(c), Examination of Records of Contractor, to commercial item subcontracts that are otherwise exempt when subcontractors are not required to provide cost or pricing data. Likewise, FAR 13.006(d) is amended for contracts using Recovery Act funds to apply 52.215–2, "Audit and Records-Negotiation" to contracts and subcontracts which are otherwise exempt because they are under the simplified acquisition threshold.

Item VI, an interim rule effective today, entitled "GAO Access to Contractor Employees" (FAR Case 2008-026), implements Section 871 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (NDAA) (Pub. L. 110–417), which allows the GAO to interview current contractor employees during the audit of the contractor’s records. FAR 52.215–2(d)(1) "Audit and Records-Negotiation," is revised to allow for the required access by inserting before the period: "‘and to interview any current employee regarding such transactions." FAR 52.214–26(c) "Audit and Records-Sealed Bidding" is revised to allow for the required access by inserting before the period: ‘‘and also the right to interview any current employee regarding such transactions."

March 30

The Office of Labor Management Standards of The Department of Labor has rescinded the regulations at 29 C.F.R. Part 470, which had required government contractors and subcontractors to post certain notices concerning the rights of union workers. This action is the result of President Obama's Executive Order 13496, which rescinds Executive Order 13201.

March 26

The DoD is soliciting suggestions from contractors concerning its acquisition strategy to fulfill the requirement that contractors working outside the United States have Defense Base Act insurance to provide workers compensation benefits in accordance with Section 843 of the National Defense Authorization Act for Fiscal Year 2009. Comments are due by April 3.

I highly recommend the CBCA's decision in the Ocwen Loan Servicing case as a thoroughly entertaining read. The Board imposed sanctions against the Department of Veterans Affairs after it repeatedly refused both the contractor's discovery requests and the Board's orders to provide certain documents critical to the Government's own claim against the contractor. The opinion is chock full of great zingers from the Board; here is just one taste to whet your appetite. The Board had issued an order requiring the Government's response  by March 10. The VA filed a "preliminary response" on March 5, noting that it would file a full response by March 11. The Board replied (with palpable sarcasm) that it "appreciates respondent's attentiveness to the order and assumes that the reference to '11 March' is a typographic error, since respondent must realize that it is not the province of a party to determine when it will respond to a Board order." The Government, nevertheless, did not file its response until March 11, which caused the Board to disregard it completely. Umm, VA, in case you haven't figured it out yet, you ain't winning this battle.                                                             

March 25

The GSA (GSAR Case 2006-G512) has published its final rule revising Part 509 (Contractor Qualifications) of the GSAR. The rule is effective April 24.

March 24

Three new ASBCA decisions are out, covering, inter alia, EAJA awards, deductive changes, and the requirements for a CDA claim.

ACCESS Systems won its GAO protest because the agency's evaluators did not attempt to justify a task order award to a higher priced offeror.

March 23

The National Technology Information Service of the Department of Commerce is accepting orders for the 2009 edition of the Export Administration Regulations, which should be available to ship by approximately April 5.

Barrios Distributing alleged that, upon the return of beverage dispensers it had leased to the DOJ, it discovered that the Government had damaged them. The CBCA, however, found that (i) the contract placed the risk of loss on Barrios; (ii) even assuming that were not the case, the company had not proved the equipment was damaged; (iii) assuming it were damaged, the company had not proved who was responsible for the damage; and (iv) the company had signed for the re-delivered equipment as having arrived in "good condition." The arcane Latin legal phrase describing the Government's position in this case is "slam dunk winner."

March 20

The GSA (GSAR Case 2006-G506) is proposing to rewrite Part 523 of he GSAR. One of the proposed revisions changes the title of that part to "Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace," to correspond to the title in FAR Part 23. Comments are due by May 19.

In Per Diem Bulletin 09-05, the GSA revises the Federal Travel Regulation CONUS maximum per diem rates for Idaho, Maryland, and South Carolina. 

Pond Security Group prevailed in its application for costs at the GAO based upon its protest of a defect in a solicitation despite the fact that its subsequent proposal later was determined to be noncompliant. The GAO said the award of costs in such protests is not dependent on post-protest events in the competition.

March 19

Federal Acquisition Circular 2005-31 has been published. It includes the following six items:

Item I, a final rule entitled "Small Business Size Rerepresentation" (FAR Case 2006-032), implements the Small Business Administration's (SBA) final rule published on November 15, 2006 (71 FR 66434), entitled "Small Business Size Regulations; Size for Purposes of Governmentwide Acquisition Contracts, Multiple Award Schedule Contracts and Other Long-Term Contracts; 8(a) Business Development/Small Disadvantaged Business; Business Status Determinations." The new rule adopts (with several changes) the interim rule originally published at 72 FR 36852 (July 5, 2007) and applies to solicitations issued and contracts awarded on or after April 20, 2009. Moreover, all long-term contracts as defined in the rule, awarded to small business concerns prior to June 30, 2007, that have not yet been modified to include FAR 52.219-28, must be modified to include FAR 52.219-28 within 90 days after the effective date of this final rule. Basically, the new rule requires businesses to re-certify their status as small at various points during long-term contracts.

Item II, an interim rule entitled "Clarification of Submission of Cost or Pricing Data on Non-Commercial Modifications of Commercial Items" (FAR Case 2008-012), implements Section 814 of the National Defense Authorization Act for Fiscal Year 2008, which requires  the harmonization of the threshold for cost or pricing data on non-commercial modifications of commercial items with the Truth In Negotiation Act (TINA) threshold for cost and pricing data. The new threshold is $650,000, and it will be adjusted as necessary to maintain the required consistency in the future. The interim rule is effective today.

Item III, a final rule entitled "Amendments to Incorporate New Wage Determinations" (FAR Case 2008-014), amends the FAR  to preclude a possible scenario where a contracting officer has to unnecessarily reevaluate proposals already eliminated from a competition. The new rule corrects the inconsistency at FAR 22.404-5(c)(3) by changing the language to indicate a contracting officer shall amend solicitations to incorporate new wage determinations and furnish the wage rate information to all offerors that have not been eliminated from the competition, if the closing date for receipt of offers has already passed. The rule is effective April 20.

Item IV, a final rule (effective today) entitled "Least Developed Countries that are Designated Countries" (FAR Case 2008-021), amends FAR 25.003's lists of designated and least-developed countries and the contract clauses at FAR 52.225-05 and 52.225-11.

Item V, an interim rule (effective today) entitled "Federal Food Donation Act of 2008 (Pub. L. 110-247)" (FAR Case 2008-017), to implement the Federal Food Donation Act of 2008, which encourages executive agencies and their contractors, in contracts for the provision, service, or sale of food, to the maximum extent practicable and safe, to donate apparently wholesome excess food to nonprofit organizations that provide assistance to food-insecure people in the United States. Comments are due by May 18.

Item VI entitled "Technical Amendments" makes miscellaneous editorial changes to the FAR.

In Sundt Construction, the ASBCA held it had jurisdiction to enforce a term of a settlement agreement by which a contractor dropped certain claims in return for the Government's agreement to provide it with a specified performance rating. The existence of the agreement was proved by an affidavit submitted by the former contracting officer who made the agreement. 

March 18

The Department of Homeland Security is proposing to amend the Homeland Security Acquisition Regulation (HSAR) to prohibit DHS from awarding a Federal Protective Service (FPS) contract for guard services to a business concern that is owned, controlled, or operated by an individual who has been convicted of a serious felony. The rule is necessary to implement the provisions of Public Law 110-356, the Federal Protective Service Guard Contracting Reform Act of 2008. Comments are due by April 17. 

March 17

Effective April 1, the SBA is terminating its waiver of the nonmanufacturer rule for PSC 3930, Warehouse Trucks and Tractors, Self-Propelled based on SBA’s recent discovery of small business manufacturers of these items.

In Texas National Bank f/k/a Mercedes National Bank, the Court of Federal Claims discussed the "accrual suspension rule" for determining whether the six-year statute of limitations has been tolled: ". . .'[a]ccording to the accrual suspension rule, the accrual of a claim against the United States is suspended, for purposes of 28 U.S.C. 2501, until the claimant knew or should have known that the claim existed.' Young v. United States, 529 F.3d 1380, 1384 (Fed. Cir. 2008) (quotation omitted). 'To achieve such suspension the plaintiff must either show that the defendant has concealed its acts with the result that plaintiff was unaware of their existence or it must show that its injury was inherently unknowable at the accrual date.' Id. (quotation omitted). The phrase 'inherently unknowable' has been construed to mean that the factual basis for the claim is 'incapable of detection by the wronged party through the exercise of reasonable diligence.' Ramirez-Carlo v. United States, 496 F.3d 41, 47 (1st Cir. 2007)." In this case, the actions were readily ascertainable rather than inherently unknowable. Thus, the rule did not apply.

March 13

The DOE has published lengthy, detailed regulations concerning the federal procurement of energy efficient products pursuant to the National Energy Conservation Policy Act. The final rule becomes effective April 13.

March 12

GWU just published two ASBCA decisions from mid-February. Every time I notice that no decisions have been published for an inordinate period of time and email GWU to inquire, the response always is that they publish them when they "get around to it." Dear ASBCA, there are many of us out here who are more interested than that and who would happily publish your decisions the same day you sent them to us. Just fyi. :)

CBCA decisions are published much more promptly than those of the ASBCA (do you hear me, ASBCA?). In Navigant Satotravel, the CBCA found the one witness the contractor had called to try to prove a negative left much to be desired: "NST called Mr. Stec as its only witness to prove a lack of knowledge of receipt of the SF 1449 by all of NST's personnel. We find, however, that '[w]hen the persons having the greatest familiarity with events are not called, but a litigant seeks to rely on second-hand, hearsay evidence, a tribunal may draw an inference that the testimony of the persons not called would not support a litigant's position . . . .' TDC Management Corp., DOT BCA 1802, 91-2 BCA ¶ 23,815, at 119,259. . . . Nothing in the record would suggest that Mr. Stec was the only person available who could have testified as to the circumstances surrounding receipt of the SF 1449."

March 11

The GAO sustained Arc-Tech's protest because the agency excluded its proposal from the competitive range without evaluating its cost and without any documentation showing the proposal was technically unacceptable.

March 10

Several new SBA OHA size decisions are out. The most interesting is Cummings Construction, in which the OHA overruled the determination of the Area Office and found that the one person who had a majority membership interest of a limited liability company had the power to control it, despite that fact that he and another individual had made equal capital contributions (because capital contributions are not a factor in determining control).

March 9

The SBA is considering waiving the nonmanufacturer rule for aluminum and copper conductor and control cable; all terrain vehicles (ATVs), wheeled or tracked; snowmobiles and parts; off-road ATVs, wheeled or tracked; and non current-carrying wiring device manufacturing, i.e., dead end tees and connectors, guy strain and link assemblies, bolts, washers, turnbuckles, twisted clips, steel angle assemblies, yoke plates, compression T connectors, press dies, anchor shackles, Y clevis ball and Y clevis sockets, yoke plates, and grounding clamps. Comments are due by March 24.

March 6

President Obama's Memorandum of March 4, entitled "Government Contracting," suggests we may be seeing fewer cost reimbursement contracts and less reliance on limited competition (including sole source) contracts and outsourcing.

In Southern Scrap Metal, the Government tried (without success) to convince the Civilian Board of Contract Appeals that amendments to requests for equitable adjustment that formed the basis for later claims appealed to the Board from the Contracting Officer's failure to decide them within the statutory time period had tolled that 60-day time period. The Board reasoned that the contractor had not amended the claims, themselves, and that the amendments to the original requests for equitable adjustment were for different periods of alleged delay and were based on a different theory than that which underlay the claims being appealed. 

Flexing its judicial muscles in Libbey Physical Medicine Center and Hot Springs Health Spa, the same Board noted it wasn't bound by decisions of the D.C. Circuit and was co-equal with the Court of Federal Claims in the interpretation of the Contract Disputes Act and then held that the CDA applied to a concession contract, one component of which involved "construction, alteration, repair, and maintenance of real property, title to which vested in the Government," which gave the Board jurisdiction to determine the valuation of the leasehold surrender interest under an expired concession contract.

Gardner Zemke was stuck with an increased tax imposed by the Navajo Nation because (i) the Government had not represented the tax would not change; (ii) the Government had not changed it; and (iii) the Government employees who allegedly promised to do something about it had no actual authority to change the contract. 

Honeywell Technology Solutions won its GAO protest because the agency's Past Performance evaluators were unreasonable in relying on a contract that was too small to be considered relevant. 

March 5

In Scott Timber, the Court of Federal Claims held the Government's suspensions of timber sales contract breached them, despite the presence of a suspension of work clause in the contracts, because (i) the Government failed to disclose its superior knowledge to bidders concerning ongoing lawsuits that had a significant potential to delay the work and (ii) unreasonably continued one such suspension. 

March 2

SP Systems originally won a NASA award, but, after the GAO sustained a protest against the evaluations of cost realism, management approach, and past performance that led to that award, the agency followed the GAO's specific recommendations for corrective action and (after re-evaluation) awarded the contract to a competitor. SP Systems then filed suit in the Court of Federal Claims, which found both the GAO's decision and the agency's decision to follow it, reasonable, even though there were other ways the agency might have re-evaluated proposals.

February 24

In L-3 Communications EOTech , the Court of Federal Claims held that the Government did not violate any law or regulation in awarding a sole-source bridge contract to the  protester's competitor pending the completion of a competition for a follow-on contract because protester's product was not "type classified" (even though the Government previously had awarded  contracts for the items to the protester, among others).

Carahsoft, too,  lost its protest involving a bridge contract because the Court of Federal Claims was "simply dumbstruck" by the protester's theory that certain terms from a bridge contract had been incorporated in a subsequent follow-on contract despite a contractor's explicit exclusion of them--terms that would have required the agency to pay twice for the same items. 

February 21

In Daewoo Engineering, the Court of Appeals for the Federal Circuit affirmed the CoFC's decision that a contractor's certified CDA claim, which was was baseless and intended only as a negotiating ploy, was fraudulent.

February 19

Because it exceeded its 5% contracting goal in 2008, the DoD has suspended its 10% price evaluation adjustment for small disadvantaged businesses from March 13, 2009 to March 12, 2010.

The GAO has issued Principles of Federal Appropriations Law, Third Edition, Volume III, which supersedes (in the always entertaining logic of the Federal Government) Volume IV, Second Edition, published in 2001.

February 13

In Rhinocorps, the Court of Federal Claims ruled on a preliminary skirmish in an incumbent small business's challenge of the Air Force's decision not to re-compete its small-business, set-aside contract in favor of adding essentially the same work to an ongoing contract being performed by a large business. The court held that the plaintiff's challenge to the adequacy of the Government's D&F supporting the decision not to re-compete was sufficient to survive a motion to dismiss. In doing so, the court considered the import of the Federal Circuit's recent decision in the Distributed Solutions case concerning what constitutes a "procurement" that can be protested.

February 12

The SBA proposes to terminate the waiver of the Nonmanufacturer Rule for PSC 3930, Warehouse Trucks and Tractors, Self-Propelled because there are small business manufacturers of these items. Terminating this waiver will require recipients of contracts set aside for small businesses, service-disabled veteran-owned small businesses, or participants in SBA's 8(a) program to provide the products of small business manufacturers or processors on such contracts. Comments are due by February 27.

February 11

The Postal Service has published proposed rules for the Postal Service Board of Contract Appeals, which was re-established by Section 847 of the  National Defense Authorization Act for Fiscal Year 2006. Comments are due by March 13. 

Executive Order 13502 authorizes federal agencies to require project labor agreements (collective bargaining agreements) on large scale construction projects (those whose cost to the federal government equals or exceeds $25 million) when certain criteria are met.

In CHARO Community Development Corp., on reconsideration, the SBA's Office of Hearings and Appeals reversed itself and decided that the SBA had established a de novo hearing under the APA at the OHA as the means of review for firms believing themselves aggrieved by actions of the SBA under WBC program cooperative agreements. See also entry at January 16 below.

SMARTnet won its GAO protest because of a solicitation requirement that exceeded the agency's minimum needs.

 February 10

The Court of Federal Claims awarded Keeter Trading Co. breach damages for the Postal Service's bad faith default termination of its contract. "Bad faith" by government officials is very difficult for a contractor to prove, but Keeter did it, with room to spare.  According to the court, the Postmaster meddled (the best way to put it) in the contract, required an improper change to it, and then essentially engineered the termination by the official who had the authority to make that decision.

The same court awarded Alabama Aircraft Industries, Inc. - Birmingham about $1 million in bid and proposal costs as a result of its earlier, successful protest (about half the amount it had claimed).

February 9

The agency's "considerable ineptitude in managing" a delivery order to DLT Solutions did not rise to the level of a bad faith termination according to the ASBCA. For an appeal that involved less than $10,000 in claimed damages, this one certainly kept everybody busy. In a 26-page opinion, the Board had to decide whether the fact that payments were to be made to a financing institution under an assignment agreement precluded the claim under the Severin doctrine (it did not) and whether some of the claims involved alleged misrepresentation and fraudulent inducement by the Government as a third-party tortfeasor over which the Board lacked jurisdiction (they did).

Speaking of hoary doctrines, the ASBCA also has issued a decision in which the Fulford doctrine saved the contractor (RO.VI.B. Srl--you read that right) from a tardy appeal of a default termination.

February 5

WRS Infrastructure & Environment is a Court of Federal Claims case in which the plaintiff challenges a size determination by the SBA's Office of Hearings and Appeals.

Three ASBCA decisions have been published, the most interesting of which is the ALKAI Consultants case, which converts a default termination to a termination for convenience in part because the contractor officer ordered the contractor to de-mobilize based on a mistaken understanding of what the completion date was.

February 4

Pursuant to the devilishly arcane strictures of 28 U.S.C. 1500, the Court of Federal Claims dismissed the complaint in Lan-Dale Co. because the suit had been filed simultaneously in the CoFC and in Arizona district court. In several passages guaranteed to make attorneys cringe and vow to pay more attention in their next CLE class, the court described not only the plaintiff's mistake in the original filing but also the plaintiff's failure to avail itself of several opportunities the court gave it to find a way out of the mess.

The Court of Appeals for the Federal Circuit upheld the Court of Federal Claims' decision dismissing the protest of The Centech Group because, in its offer, it had not agreed to comply with a material requirement of the solicitation.

Executive Order 13494 makes unallowable the costs of "any activities undertaken to persuade employees—whether employees of the recipient of the Federal disbursements or of any other entity—to exercise or not to exercise, or concerning the manner of exercising, the right to organize and bargain collectively through representatives of the employees’ own choosing." Executive Order 13495 requires service contracts to include a clause requiring a follow-on service contractor to give the previous contractor's employees a right of first refusal to continue work on the contract.  Executive Order 13496 requires government contractors and subcontractors to post notices informing employees of their collective bargaining rights. Failure to do so can result in contract termination and debarment.

More and more, redactions are delaying and eroding access to judicial and administrative decisions. Now, we are having to wait for redacted versions of SBA OHA decisions. Witness the belated issuance of Baldt, Inc., is an interesting size decision analyzing affiliation even ignoring all the "x's."

February 3

The Office of U.S. Citizenship and Immigration Services in the Department of Homeland Security is extending until March 4 the date for comments on the interim final rule originally published December 17, 2008 concerning the types of documentation acceptable for employment eligibility verification. The interim final rule, itself, is extended until April 3.

January 30

FAR Case 2007-013: The effective date of the employment eligibility verification regulations has been moved back to May 21, 2009.

In Zoltek Corporation, the Court of Federal Claims allowed a plaintiff who had filed a patent infringement claim against the Government under 28 U.S.C. 1498 over which the court lacked jurisdiction to transfer the case to federal district court because the Court of Federal Claims believed the case could easily be re-formulated by substituting the infringing government contractor for the Government as the defendant and using 35 U.S.C. 271(g) as the jurisdictional hook instead of 28 U.S.C. 1498.

The CBCA dismissed an appeal by Corners and Edges for failure to prosecute because the contractor stated it would not file its complaint unless and until the Board provided it with a free copy of the hearing transcript in another of the contractor's appeals. 

January 27

There are four new SBA Office of Hearings and Appeals VET decisions out. One dismisses a protest of VOSB status because regulations governing such appeals have not yet been promulgated. So much for the old saw: "Where there is a wrong, there is a remedy."

January 26

The GSA is proposing an extensive and lengthy rewrite of GSAR Part 538, entitled "Federal Supply Schedule Contracting." Comments are due by March 27.

January 24

Critical Process Filtration protested the terms of six solicitations because the DLA did not list a product's salient features to allow offers of other than the specified brand name. The agency countered that it was using simplified acquisition procedures. That argument worked in five of the solicitations, but the protester won the sixth because the total estimated quantity exceeded the simplified acquisition threshold. The agency argued unsuccessfully that each of its orders would be less than the threshold, but the GAO said the agency could not split orders simply to avoid competition requirements.

January 23

Robinson Quality Constructors completed its construction contract (except for punch list items) by June 1, 1999 and submitted a CDA claim for various construction delays on June 2, 2005. The ASBCA dismissed the claim as barred by the six year statute of limitations. The Board reasoned that the events that gave rise to the delay claim must have accrued sometime before June 1, 1999.

January 21

The GAO sustained a protest by Tiger Truck because the agency failed to conduct meaningful discussions and also failed to follow proper procedures with regard to offered items that were not compliant with the requirements of the Trade Agreements Act.

January 20

I was born in Mississippi in 1947. I remember visiting my grandmother in Jackson when I was eight or nine years old and watching her silently get up from her rocking chair and turn off the television simply because an African-American appeared on the screen. I remember my uncle (who still lived in Mississippi at the time) telling me in 1970 that the races should always be schooled separately so that the white students would not catch venereal diseases simply by using the same public restrooms as students of other races. I remember one of the partners at the first law firm I worked at after law school in 1979 opining that a Black quarterback could never lead a college team to a national championship. This is a great moment for our country.  So, I'll be glued to the TV screen instead of updating the site today, and, this time, nobody's going to shut off the TV.

January 16

In its first decision relating to the Women's Business Center (WBC) awards program, the SBA's Office of Hearings and Appeals threw out the SBA's decision not to renew the CHARO Community Development Corp.'s award because the SBA had not established any procedures for notice of, or opportunity to contest, such decisions, thus violating the the petitioner's due process rights.

In North Star Alaska Housing, one Court of Federal Claims judge read the bad faith exception to the American Rule for fee apportionment very narrowly and refused to award attorneys fees and litigation expenses to the plaintiff despite some fairly egregious conduct by the Government before and during litigation.

January 15

This is a busy day for FAR and DFARS regulations.

FAR

FAC 2005-30 has been published. It includes the following nine items:

Item I, a final rule entitled "Federal Procurement Data System ("FPDS")" (FAR Case 2004-038), (i) establishes the FPDS as the single authoritative source of all procurement data for a host of applications and reports, such as the Central Contractor Registration (CCR), the Electronic Subcontracting Reporting System (eSRS), the Small Business Goaling Report (SRGR), and Resource Conservation and Recovery Act (RCRA) data; and (ii) requires contracting officers to verify the accuracy of contract award data prior to reporting the data in FPDS.

Item II, a final rule entitled "Commercially Off-the-Shelf ("COTS") Items"  (FAR Case 2000-305), (i) amends the FAR to implement Section 4203 of the Clinger-Cohen Act of 1996 (41 U.S.C. 431) with respect to the inapplicability of certain laws to contracts and subcontracts for the acquisition of COTS items, (ii) establishes a new FAR section 12.103, which  outlines the treatment of COTS items, and (iii) provides a new definition of a COTS item and revised definitions of "domestic end product" and "domestic construction material."

Item III, a final rule entitled "Exemption of Certain Service Contracts from the Service Contract Act ("SCA")" FAR Case 2001-004, (i) revises the current SCA exemption in the FAR and adds an SCA exemption for contracts for certain additional services that meet specific criteria and (ii) adds to the "Annual Representations and Certifications" clause at FAR 52.204-8, the conditions under which each listed provision applies or (for the more complex cases) a check-off for the contracting officer to indicate whether the provision is applicable to the solicitation.

Item IV, an interim rule entitled "Public Disclosure of Justification and Approval Documents for Noncompetitive Contracts-Section 844 of the National Defense Authorization Act for Fiscal Year 2008 (Interim)" (FAR Case 2008-003), (i) implements Section 844 of the National Defense Authorization Act for Fiscal Year 2008; (ii) amends FAR 6.305 to require agencies to make available for public inspection within 14 days after contract award the justification required by FAR 6.303-1, on the website of the agency and at the FedBizOpps website or (in the case of a contract award permitted under FAR 6.302-2) a posted justification within 30 days after contract award; and (iii) requires contracting officers to screen all justifications for contractor proprietary data and remove all such data prior to publication.

Item V, a final rule entitled "SAFETY Act: Implementation of DHS Regulations" (FAR Case 2006-023), implements the provisions of the SAFETY Act, which provides incentives for the development and deployment of anti-terrorism technologies by creating a system of "risk management" and a system of "litigation management."

Item VI, a final rule entitled "Electronic Products Environmental Assessment Tool ("EPEAT")" (FAR Case 2006-030), adopts the previous interim rule without change so as to (i) require use of EPEAT when acquiring personal computer products such as desktops, laptops, and monitors pursuant to the Energy Policy Act of 2005 and Executive Order 13423, (ii) revise FAR Subpart 23.7 and (iii) prescribe a clause at 52.223-16 (also included in 52.212-5 for acquisition of commercial items) in all solicitations and contracts for the acquisition of personal computer products, services that require furnishing of personal computer products for use by the Government and services for contractor operation of government-owned facilities.

Item VII,  a final rule entitled "Combating Trafficking in Persons" (FAR Case 2005-012), (i) implements Section 3(b) of the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2003, (ii) requires that contracts contain a clause allowing the agency to terminate the contract if a contractor, contractor employees, subcontractor, or subcontractor employees engage in severe forms of trafficking in persons or procures a commercial sex act during the period of performance of the contract, or uses forced labor in the performance of the contract, and (iii) provides that the contracting officer may consider whether the contractor had a Trafficking in Persons awareness program at the time of a violation as a mitigating factor when determining remedies; and a website where the contractor may obtain additional information about Trafficking in Persons and examples of awareness programs.

Item VIII, a final rule entitled "Trade Agreements--New Thresholds" (FAR Case 2007-016) adopts the previous interim rule without change and adjusts the thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements as determined by the United States Trade Representative, according to a formula set forth in the agreements.

Item IX is an editorial change to FAR 15.101-2.

DFARS

A final rule entitled "Clean Air Act and Clean Water Act Exemptions" (DFARS Case 2007-D022) establishes the procedures for awarding a contract  to a contractor that is otherwise excluded from Federal procurement programs due to a violation of the Clean Air Act or the Clean Water Act.

A final rule entitled "Contract Actions Supporting Contingency Operations or Facilitating Defense Against or Recovery From Nuclear, Biological, Chemical, or Radiological Attack" (DFARS Case 2008-D026) lowers the required level of DoD approval for determinations with regard to the use of emergency acquisition flexibilities for contract actions supporting contingency operations or facilitating defense against or recovery from nuclear, biological, chemical, or radiological attack.

A final rule entitled "Delegation of Authority for Single Award Task or Delivery Order Contracts" (DFARS Case 2008-D017) specifies that the authority to award of a single source task or delivery order contract exceeding $100 million may not be delegated below the level of the senior procurement executive.

A final rule entitled "DoD Law of War Program" (DFARS Case 2006-D035) includes requirements for DoD contractors to institute effective programs to prevent violations of the law of war by contractor personnel authorized to accompany U.S. Armed Forces deployed outside the U.S.

A final rule entitled "List of Firms Owned or Controlled by the Government of a Terrorist Country" (DFARS Case 2008-D025) establishes procedures for notifying the appropriate DoD office that a firm or its subsidiary may be owned or controlled by the government of a terrorist country.

An interim rule (with a request for comments) entitled "Pilot Program for Transition to Follow-On Contracting After Use of Other Transaction Authority" (DFARS Case 2008-D030) amends the DoD pilot program addressed in DFARS Subpart 212.70 "Pilot Program for Transition to Follow-On Contracting After Use of Other Transaction Authority" by establishing a new program expiration date of September 30, 2010, and adding items developed under research projects in accordance with 10 U.S.C. 2371 to the types of items to which the program applies.

A final rule entitled "Security-Guard Functions" (DFARS Case 2006-D050) adopts without change the previous interim rule extending until 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.

An interim rule (with a request for comments) entitled "Senior DoD Officials Seeking Employment With Defense Contractors" (DFARS Case 2008-D007) amends the DFARS to implement Section 847 of the National Defense Authorization Act for Fiscal Year 2008, section 847 of which addresses requirements for senior DoD officials to obtain a post-employment ethics opinion before accepting a position from a DoD contractor within two years after leaving DoD service.

A final rule entitled "Separation of Senior Roles in Source Selection" (DFARS Case 2008-D037) requires the military departments and defense agencies to certify every two years that no senior leader has performed multiple roles in the acquisition of a major weapon system or major service.

Another interim rule (with a request for comments) entitled "Statutory Waiver for Commercially Available Off-the-Shelf Items" (DFARS Case 2008-D009) implements a determination made by the Administrator for Federal Procurement Policy on February 14, 2008, in accordance with 41 U.S.C. 431, that the Buy American Act domestic component test is inapplicable to acquisitions of COTS items so that a COTS item will be treated as a domestic end product if it is manufactured in the U.S., without the need to track the origin of the item’s components.

An interim rule (with a request for comments) entitled "Steel for Military Construction Projects" (DFARS Case 2008–D038) requires that American steel producers, fabricators, and manufacturers be given the opportunity to compete for contracts and subcontracts for the acquisition of steel for use in military construction projects or activities.

A final rule entitled "U.S.-International Atomic Energy Agency Additional Protocol" (DFARS Case 2004-D003) adds a contract clause for use 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,  requires a contractor to notify DoD if the contractor is required to report its activities under the U.S.-International Atomic Energy Agency Additional Protocol.

An interim rule (with a request for comments) entitled "Whistleblower Protections for Contractor Employees" (DFARS Case 2008–D012) addresses protections for contractor employees who disclose information to government officials with regard to waste or mismanagement, danger to public health or safety, or violation of law related to a DoD contract.

January 14

FAC 2005-29, Amendment 1 (FAR Case 2007-013, "Employment Eligibility Verification"): The effective and applicability dates of this FAR case have been delayed to January 19 and February 20, respectively. Beginning February 20, contracting officers shall (i) include the new clause at 52.222-54, entitled "Employment Eligibility Verification," in  solicitations in accordance with the prescription at FAR 22.1803; and (ii) modify, on a bilateral basis, existing indefinite-delivery/indefinite-quantity contracts in accordance with FAR 1.108(d)(3) to include the clause for future orders if the remaining period of performance extends beyond August 20, 2009, and the amount of work or number of orders expected under the remaining performance period is substantial. See also the blog entry at November 14, 2008, below. 

In National Housing Group, the contractor complained because HUD assigned it fewer properties to manage (and withdrew certain properties from its services in a shorter time frame) than it had anticipated based on certain historical information provided with the Government's solicitation. The Civilian Board of Contract Appeals found for the Government because (i) the solicitation clearly called for an ID/IQ contract; (ii) the Government provided the required minimum quantities; and (iii) the solicitation clearly allowed the Government to remove properties from the contractor's management. On a related claim, however, the Board held that a partial settlement agreement did not operate as an accord and satisfaction because it contemplated future negotiations on open issues.

January 13

GSA Bulletin 09-02 clarifies the Federal Travel Regulation by describing the situations in which those on travel may be reimbursed for various special fees, including fees for checked baggage and seat assignments. The bulletin, itself, may be found by scrolling down to the "Bulletins" section on this page.

In Vantage Assocs., the contractor argued unsuccessfully that cancellation of its purchase order was improper because a notice it allegedly had sent stating it could not perform on time was a forgery. The ASBCA, however, found the notice was irrelevant--the company had not performed the purchase order by the revised delivery date, which justified the cancellation, even absent any notice.

January 12

In Teknowledge Corp., the Court of Federal Claims held that a company's software development costs were not allocable to its government contracts because there was no nexus between the software and any government contract work or benefit from the software to such work.

January 10

The SBA is extending (until March 13) the comment period concerning the list of  industries that will be eligible for women-owned small business federal contract assistance.

January 9

A proposed rule (FAR Case 2007-021) would amend the FAR to explicitly require the use of the "Fair Labor Standards Act and Service Contract Act-Price Adjustment (Multi-Year and Option Contracts)" clause and the "Fair Labor Standards Act and Service Contract Act-Price Adjustment" clause in time-and-materials and labor-hour contracts that are subject to the Service Contract Act. The explanatory statements note that the clauses are widely used in such contracts now but that the absence of a specific prescription in the FAR leads to some inconsistencies. Comments are due by March 10.

The saga of the Information Sciences Corp. (ISC) protests continues. After the Court of Federal Claims twice invalidated a GSA award under a competitive solicitation because of faulty evaluation procedures, the agency (stubbornly) awarded a sole-source contract to its contractor-of-choice. Rather than protest a third time, Information Sciences filed suit on the basis that the latest "award [i] violated FAR requirements to conduct business with integrity, fairness, and openness, and [ii] breached an implied-in-fact contract with ISC." ISC's Complaint did not request that the sole-source award be set aside. Instead it sought monetary damages for "employee time, labor, material, and expert time involved in pursuing the two prior solicitations." The court dismissed the Complaint because neither of the prayers for relief was a proper request for bid and proposal costs cognizable under the Administrative Dispute Resolution Act, but noted that the contractor could refile for such costs.

In Multiservice Joint Venture, during a break in a deposition, a version of an exhibit containing handwritten notes mysteriously disappeared and was replaced with a "clean" version of the exhibit. After the plaintiff's deponent, representatives, and attorneys all failed or refused to explain the situation to defendant's counsel and (later) the judge, the Court of Federal Claims barred the deponent from testifying at trial and ordered the plaintiff's attorneys personally to pay the defendant's costs of filing the motion for sanctions. 

Effective today, the GSA (GSAR Case 2008-G513) has rewritten GSAR Part 543 regarding contract modifications. Effective February 9, the GSA (GSAR Case 2008-G512 ) is rewriting GSAR Part 542 regarding  contract administration and audit services.

Nortel Government Solutions won its GAO protest against a DEA award because the agency failed to adequately address the awardee's potential organizational conflict of interest.

January 8

The DoD has issued revised per diem travel rates for its civilian employees for travel in Alaska, Hawaii, Puerto Rico, and the Mariana Islands, and possessions of the United States.

January 7

The GAO sustained a protest by Master Lock because the Contracting Officer and the Source Selection Official improperly raised the awardee's evaluation scores in the socioeconomic and JWOD evaluation factors from the "poor" rating given by the source evaluation panel to "neutral." The GAO concluded the agency had, in effect, ignored these two evaluation factors simply because the awardee was a small business, which violated the evaluation scheme set forth in the solicitation.

January 5

The Department of Commerce's Bureau of Industry and Security (BIS) is seeking public comments on whether U.S. export controls influence manufacturers' decisions to use or not use U.S.-origin parts and components in commercial products and the effects of such decisions. BIS is interested in obtaining specific information about whether such a  practice occurs, and if so, its economic effects in order to assess the effectiveness of export controls as well as the impact of export controls on the U.S. economy. Comments are due by February 19.

January 2

The IRS and the GSA standard relocation mileage rate for privately owned vehicles has been reduced to $0.24 per mile for calendar year 2009.

January 1, 2009

Time to begin anew. You can find the entire 2008 Blog by following this link.  You might find it easier to peruse the 2008 Procurement Review or the 2007 Procurement Review than to search through the old blogs. 

The 2008 blog can be found here.

 

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.