Stan Hinton

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Developments in Government Contracting--2010



December 30

Federal Acquisition Circular (FAC) 2005-48 has been published. It includes the following four items:

Item I (FAR Case 2011-005), entitled "Repeal of the Small Business Competitiveness Demonstration Program," is a final rule effective January 31, 2011, which removes subpart 19.10 of the FAR in order to comply with the requirements of section 1335 of the Small Business Jobs Act of 2010. 

Item II (FAR Case 2009-027), entitled "Personal Identity Verification of contractor Personnel," is a final rule effective January 31, 2011, which amends the FAR to provide additional regulatory coverage to reinforce the requirement of collecting from contractors all forms of Government-provided identification once they are no longer needed to support a contract.

Item III (FAR Case 2009-031), entitled "Terminating Contracts," is a final rule effective January 31, 2011, which amends the FAR to clarify which procedures for terminating contracts apply to contracts for commercial items.  

Item IV (FAR Case 2009-018), entitled "Payrolls and Basic Records," is a final rule, effective today, adopting the interim rule (with one change) that amends the FAR's "Payrolls and Basic Records" clause in order to implement a Department of Labor rule that protects the privacy of workers.

December 29

DFARS Case 2009-D015 (Organizational Conflicts of Interest in Major Defense Acquisition Programs) is a final rule amending the DFARS to implement section 207 of the Weapon Systems Acquisition Reform Act of 2009, which addresses organizational conflicts of interest in major defense acquisition programs.

DFARS Case 2009-D012 (Foreign Participation in Acquisitions in Support of Operations in Afghanistan) is a final rule amending the DFARS (i) to waive section 302(a) of the Trade Agreements Act of 1979, as amended (which prohibits acquisitions of products or services from nondesignated countries) in order to allow acquisition from the nine South Caucasus/Central and South Asian (SC/CASA) states; and (ii) to determine the inapplicability of the Balance of Payments Program evaluation factor to offers of products (other than arms, ammunition, or war materials) from the SC/CASA states to support operations in Afghanistan.

The Prompt Payment Act interest rate has been set at 2 5/8% for the period January 1 through June 30, 2011.

FTR Bulletin 11-03 establishes the privately-owned vehicle mileage reimbursement rates for calendar year 2011. 

December 25

The facts and legal issue underlying the CBCA's decision in W. G. Yates & Sons Construction Co. are very interesting (at least to me). I'm going to fictionalize the numbers for the sake of simplicity, so bear with me. The contractor had a fixed-price construction contract incorporating a Davis-Bacon Act wage determination, which required a wage rate of $10 per hour. Part of the contract price was a subcontract, which was bid on the basis of an estimated 5,000 hours of labor covered by the wage determination. After award, the Government discovered it had used the incorrect wage determination in the contract, so it retroactively incorporated a revised wage determination that called for wages of $20 per hour. The subcontractor ended up incurring 10,000 hours to do the job. The contractor submitted a claim under the Changes clause on behalf of its sub for 10,000 hours (the sub's total performance hours) times the $10 difference  between the erroneous and revised wage determination hourly rates, plus associated profit and overhead. The Government argued that (i) the claim should only be for the originally estimated 5,000 hours times the $10 difference and (ii) it should not include any added overhead and profit.  The case involves questions concerning the proper measurement of an equitable under the Changes clause and whether the Changes clause was even the appropriate vehicle for recovery. The Board chose the contractor's calculation.

in Nu-Way Concrete Co., the CBCA denied claim for extra work under constructive change and implied ratification theories because (i) the Contracting Officer did not require or ratify the extra work allegedly ordered by the inspectors and warned the contractor not to do it; and (ii) the contractor's proof of quantum conflicted with its certification of costs and was "inconsistent, incredible, and incomprehensible."

December 24

The SBA's OHA has published a bunch of new decisions. 

In Size Appeal of Ecotope Environmental Services, Ltd., the OHA affirmed the Area Office's finding that the protested firm was other than small based upon an adverse inference after the protested firm failed to file SBA Form 355 as requested by the  Area Office.

In Size Appeal of TLC Catering, the OHA reversed the Area Office's finding of a violation of ostensible subcontractor rule where the subcontractor made sandwiches and the prime provided all other box-lunch ingredients, and assembled, delivered, and served the box lunches.

In Size Appeal of PTL Contracting Corp., the OHA dismissed an appeal to the OHA because it was not filed within the required 15 days of receipt of the Area Office's determination.

In Size Appeal of Space Concepts, LLC, the OHA remanded the case to the Area Office for further investigation whether the company awarded a small business set-aside contract complied with nonmanufacturer rule or was merely an assembler/distributor for the product of a large business.

In Size Appeal of Sunshine Kids Services, Inc., the OHA concluded that the Area Office properly dismissed a protest as untimely despite the protester's contention that the agency's notice of award was not sufficient to give it notice of its protest grounds because it did not identify the separate members of the JV awardee. The OHA noted that the applicable regulations only require notice of the awardee, not its constituents.

In Size Appeal of Aero-Graphics, Inc., the OHA dismissed an appeal for lack of jurisdiction because the contract at issue had been awarded and the protest allegation (violation of the ostensible subcontractor rule) was contract-specific.

In Size Appeal of Sabre88, LLC, the OHA affirmed the Area Office's finding of affiliation through the newly organized concern rule because one firm's Managing Member was a key employee of the other, and there was no clear evidence of fracture .

In Size Appeal of LGS Management, Inc., the OHA affirmed the Area Office's  determination that a common address was not enough to establish affiliation between two firms, especially in light of other evidence that argued against affiliation.

In Size Appeal of Service Disabled Veteran Contractors LLC, the OHA affirmed the Area Office's dismissal of the protest as untimely because it was not filed within five days of the notice of award.

In Size Appeal of Beltsville Industries Group, Inc.-Desbuild Incorporated Joint Venture, the OHA affirmed the Area Office's conclusions that (i) the members of a mentor-protégé that formed four joint ventures, no single one of which violated the 3 offers in 2 years rule, were not affiliated with one another, and (ii) the various joint ventures were not affiliates.

In Size Appeal of LOGMET, LLC, the OHA reversed the Area Office's size determination that firms were affiliated based on the identity of interest and ostensible subcontractor rules; the OHA found that the subcontracts did not rise to level of economic dependence and that the prime contractor had the capacity to perform the entire contract and only chose to assign a portion of the  work to the subcontractor.

In Size Appeal of Cummings Construction, the OHA affirmed the Area Office's finding of affiliation based upon identity of interest (via economic dependence) with the 49% owner. 

The new OHA NAICS decisions are the top seven entries under the NAICS section of my SBA OHA Decisions page. The most interesting of the bunch is the NAICS Appeal of McKissack & McKissack, in which the OHA dismissed the appeal as premature (because only a presolicitation notice had so far been issued) and for lack of jurisdiction (because the procurement at issue will be unrestricted).

The new OHA VET decisions are the top nine decisions under the VET section of my SBA OHA Decisions page. The most interesting of the bunch is Matter of Airborne Services, LLC, which overrules the prior decision in  Matter of United Medical Design Builders, LLC  and states in part as follows:

I hereby overrule United Medical to the extent it holds that the SBA has an obligation to adjudicate protests brought in relation to VAAR Part 819 procurements. The SBA currently has no authority or obligation to decide SDVO SBC status protests filed in connection with procurements issued under VAAR Part 819, and the SBA’s decision to reject jurisdiction for such protests is consistent with the statutes and regulations at issue. Consequently, SDVO SBC status protests relating to VAAR Part 819 must be decided by the VA OSDBU until an interagency agreement is executed between the VA and the SBA to allow the SBA D/GC to decide such protests under VAAR § 819.307.

 

December 22

DFARS Case 2009-D043 (Reporting of Government-Furnished Property) is a proposed rule to amend the DFARS (i) to revise and expand reporting requirements for government-furnished property to include items uniquely and nonuniquely identified and (ii) to clarify policy for contractor access to government supply sources. Comments are due by February 22, 2011.

December 21

Acrow Corp. of America contains a detailed analysis of the standards the Court of Federal Claims will use to decide whether to permit supplementation of the administrative record in a bid protest.

December 19

The Bureau of Industry and Security has amended the EAR to implement changes to the Entity List on the basis of the annual review of that list conducted by the End-User Review Committee. Specifically, the rule removes five entities from the Entity List under Russia and makes twenty-one modifications to the Entity List (consisting of modifications to eighteen Chinese entries and three Russian entries currently on the Entity List) by adding additional addresses, aliases and/or clarifying the names for these twenty-one entities.

December 17

In YRC, Inc., the Court of Federal Claims held it lacked jurisdiction over a subcontractor's claim against the Government for payments a defaulted contractor failed to make to it because there was no express or implied-in-fact contract between the plaintiff and the Government and because the federal officials who dealt with plaintiff and made arrangements to make some payments to it had no authority to contract on behalf of the Government.

In BLR Group of America, the court denied the contractor's motion for partial reconsideration of the court's prior decision (dismissing the suit for lack of a CDA claim)  because neither the contractor's comments disagreeing with the Government's performance assessment report nor the contractor's counsel's email to the Contracting Officer attempting to convince her to withdraw or change the Government's evaluation constituted a CDA claim. The decision involves my pet peeve: the failure of the CDA, itself, to define a claim and the myriad disputes that failure continues to provoke. Here, the court notes that two inquiries beyond examining the regulatory definition of a claim are required: "First, in determining whether a contractor’s submission constitutes a CDA claim, the court must examine the intent of the contractor as expressed in the submission. . . . Second, the court is required . . . to look beyond the [regulatory] definition of a CDA claim and take into account the particular facts of the case." Imagine how much time has been wasted on those two endeavors since 1980.     

December 16

In Arctic Slope Native Ass'n, the Court of Appeals for the Federal Circuit affirmed the CBCA and held that (i) the  contractor was not entitled to reimbursement for costs that exceeded available appropriations because the contract contained explicit "subject to the availability of appropriated funds" and "not to exceed" language; and (ii) the Government did not breach the contract by failing to request additional appropriations because there was no contractual requirement that it do so. The court also rejected the contractor's argument that the statutory funds were sufficient to reimburse its costs, alone. The court noted that, if it were to allow this approach, and all similarly situated contractors also used it, the result would be total reimbursements exceeding the available appropriations, which would circumvent the explicit cap included in the statute, itself.  

In Joyce Terry d/b/a Shirt Shack, the Court of Federal Claims held that, although it lacked 28 U.S.C. 1491(b) jurisdiction over protests of AAFES procurements (because AAFES is a non-appropriated fund instrumentality or "NAFI")  and also lacked jurisdiction over the CDA count in plaintiff's complaint (because no claim had been submitted to the contracting officer), the court (in what it calls a case of first impression), nevertheless, has 28 U.S.C. 1491(a)(1) jurisdiction over a protest that AAFES acted arbitrarily and capriciously by awarding a concessionaire contract despite the awardee's alleged failure to comply with a material solicitation requirement (even though the protester had only pled section 1491(b)). Interestingly, the court noted, without further comment, that the protester had filed suit seven months after its agency protest had been denied.

FASAB has released an exposure drafts entitled "Implementation Guidance on the Accounting for the Disposal of General Property, Plant & Equipment," and "Implementation Guide for Estimating the Historical Cost of General Property, Plant and Equipment."

I caught and corrected a broken link to the Link Government Services protest described in the November 6 entry below.

December 15

In The Boeing Co., the CBCA held that the contractor was not entitled to recover its "common costs" of a defense against a False Claims Act suit, i.e., those costs attributable to both the successful and unsuccessful portions of its defense.

In the original (PlanetSpace I) decision (see the May 2 entry below), the Court of Federal Claims found the SSA's rationale for an award decision ambiguous and ordered the agency to provide an explanation. After having received and reviewed a sworn declaration from the SSA, the court denies the protest because the SSA's declaration evidences a rational trade-off analysis that did not amount to a non-responsibility determination concerning the protester's proposal. 

In Harris Patriot Healthcare Solutions, the protester originally filed suit at the Court of Federal Claims when the agency indicated it intended to override a CICA stay during a GAO protest, but, after the agency decided to take corrective action and the GAO dismissed the protest as academic, the court concluded the suit concerning the override was moot, despite the  protester's suspicions that the agency would use another contractual vehicle to circumvent maintaining the status quo pending the outcome of the corrective action.

December 14

The ASBCA published several decisions.

Parsons Global Services is difficult to summarize, but, basically, the Board dismissed the appeal for lack of CDA jurisdiction because the contractor had omitted all the normal steps for determining (and invoicing the Government for) its subcontractor's indirect costs, and, therefore, Government had never been in a position to dispute any of these costs.

The Board dismissed an appeal by Tefirom Insaat Enerji Sanayi ve Ticaret A.S. because the contractor failed to provide a CDA certification.

In Kelly-Ryan, the Board denied the Government's motion to dismiss as premature (or, alternatively to stay proceedings concerning) an appeal from a deemed denial of a $36 million claim of more than 3,500 pages after the Contracting Officer had informed the contractor that a decision would require a year from the time the claim was originally submitted. The Board found that time period to be unreasonable; I'm not so sure. 

DoD has issued an interim final rule amending 32 C.F.R. Part 241 to implement section 1110 of the National Defense Authorization Act for Fiscal Year 2010, which authorizes DoD to establish a Pilot Program for the Temporary Exchange of Information Technology (IT) Personnel under which there may be temporary assignments of DoD IT employees to private sector organizations and vice versa. Comments are due by February 14, 2011.

December 11

Federal Acquisition Circular (FAC) 2005-47 has been published and includes the following six items (plus technical amendments): 

Item I (FAR Case 2010-006), entitled "Notification of Employee Rights Under the National Labor Relations Act," is an interim rule  to implement Executive Order 13496 (as previously implemented by the DOL), which requires contractors to display a notice to employees of their rights under Federal labor laws, including (as the DOL has determined) the National Labor Relations Act. Comments are due by February 11, 2011.

Item II (FAR Case 2006-005), entitled "HUBZone Program Revisions," is a final rule effective January 12, 2011, which implements revisions to the SBA's HUBZone Program and requires that (i) for award of a HUBZone contract, a HUBZone small business concern must be a HUBZone small business concern both at the time of its initial offer and at the time of contract award; and (ii) for general construction or construction by special trade contractors, a HUBZone small business concern must spend at least 50 percent of the cost of contract performance incurred for personnel on its own employees or subcontract employees of other HUBZone small business concerns. (The 50 percent requirement may be waived in some circumstances.)

Item III (FAR Case 2008-032), entitled "Preventing Abuse of Interagency Contracts," is an interim rule amending FAR subpart 17.5 to implement section 865 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, by (i) broadening the scope of coverage to address all interagency acquisitions (with limited exceptions), rather than just those conducted under the Economy Act; (ii) requiring agencies to support the decision to use an interagency acquisition with a determination that such action is the "best procurement approach"; (iii) directing that assisted acquisitions be accompanied by written agreements between the requesting agency and the servicing agency documenting the responsibilities of the respective parties, including the planning, execution, and administration of the contract; (iv) requiring the development of business cases (concerning which OMB is developing additional guidance, which will be referenced in the FAR once it is issued) to support the creation of multi-agency contracts; and (v) requiring the senior procurement executive for each executive agency to submit an annual report on interagency acquisitions to the Director of OMB. Comments are due by February 11, 2011.

Item IV (FAR Case 2009-019), entitled "Small Disadvantaged Business Self-Certification," is an interim rule designed to conform the FAR to revisions in the SBA's regulations and to clarify that (i) small disadvantaged business (SDBs) may provide written statements to primes self-certifying their status as SDBs and (ii) primes may rely on these statements in awarding subcontracts to SDBs. Comments are due by February 11, 2011.

Item V (FAR Case 2009-036), entitled "Uniform Suspension and Debarment Requirement," is an interim rule amending the FAR to implement section 815 of the National Defense Authorization Act for Fiscal Year 2010, which extends the flowdown of the restriction on subcontracting to lower tier subcontractors that have been suspended or debarred, with some exceptions for contracts for the acquisition of commercial items and commercially available off-the-shelf items. Comments are due by February 11, 2011.

Item VI (FAR Case 2008-031), entitled "Limitation on Pass-Through Charges," is a final rule (adopting the prior interim rule with changes), effective January 12, 2011, amending the FAR (i) to implement section 866 of the Duncan Hunter National Defense Authorization Act (NDAA) for Fiscal Year 2009 (which applies to executive agencies other than DoD) and section 852 of the John Warner NDAA for FY 2007, (which applies to DoD) and (ii) to minimize excessive pass-through charges by contractors from subcontractors, or from 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.

December 10

As part of the President’s export control reform initiative, the State Department's Directorate of Defense Trade Controls (i) solicits public comments on revisions to the United States Munitions List that would make it a "positive list" of controlled defense articles (i.e., a list that describes controlled items using objective criteria rather than broad, open-ended, subjective, or design intent-based criteria), and (ii) requests that the public (a) "tier" defense articles based on the Administration’s three-tier control criteria and (b) identify those current defense articles that the public believes do not fall within the scope of any of the criteria’s tiers. Comments are due by February 8. The State Department proposes to revise Category VII (tanks and military vehicles) of the Munitions List in the ITAR (22 C.F.R. Part 121) to provide more accurate descriptions of the products included in that category. Comments are due by February 8, 2011.

The CBCA published several decisions, including the following two: 

In Lockheed Martin Aspen Med Services, the Board held it had CDA jurisdiction over the appeal from a denial of a claim filed by one member of a Contractor Team Arrangement because, according to the solicitation's terms, each team member was in privity of contract with the Government. (Note--this will not be the result under all teaming agreements).

In Macrosystems, the Board dismissed an appeal for lack of CDA jurisdiction because the contractor did not file a claim following a termination for convenience.

The Court of Federal Claims denied all construction contract defective spec, extra work, and delay claims by Delhur Industries because of a complete failure of proof by the contractor at trial.

In Pyramid Real Estate Services, LLC v. United States, No. 10-599C (Dec. 9, 2010), the court assessed monetary sanctions against an attorney in a bid protest for disclosing material under a protective order to its client in order to file a separate bid protest.

December 9

The Bureau of Industry and Security ("BIS") has proposed an extensive set of changes to the CCL by adding a new exception (Strategic Trade Authorization or "STA") to the EAR, which would allow exports, reexports and transfers (in-country) of specified items to destinations that pose little risk of unauthorized use of those items so long as notification, destination control statement and consignee statement requirements are met. Comments are due by February 7, 2011.

The BIS also is requesting comments by February 7 concerning how the CCL could be more clear, positive, and tiered, including comments on the degree to which a controlled item provides the United States with a critical, substantial, or significant military or intelligence advantage and the availability of the item outside certain groups of countries.

DFARS Case 2009-D038 (Business Systems--Definitions and Administration): DoD has extended the comment period to January 10, 2011.   

December 8

DFARS Case 2006-D029 (Restriction on Ball and Roller Bearings) is a final rule amending the DFARS to implement DoD annual appropriations act requirements and to require that each ball or roller bearing be manufactured in the United States, its outlying areas, or Canada, and that the cost of the bearing components manufactured in the United States, its outlying areas, or Canada, exceed 50 percent of the total cost of the bearing components of that ball or roller bearing.

DFARS Case 2010-D004 (Restrictions on the Use of Mandatory Arbitration Agreements) is a final rule (adopting a prior interim rule with changes as a results of comments received from the public ) which prohibits the use of funds appropriated or otherwise made available by the DoD Appropriations Act for Fiscal Year 2010 for any contract for noncommercial items (including task or delivery orders and bilateral modifications adding new work) in excess of $1 million, if the contractor restricts its employees to arbitration for claims under title VII of the Civil Rights Act of 1964, or torts related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.

Effective December 23, DoD is waiving the requirements of 10 U.S.C. 2354 for the following defense items produced in the United Kingdom (which will permit procurement from sources in the United Kingdom): (i) air circuit breakers; (ii) welded shipboard anchor and mooring chain with a diameter of four inches or less; (iii) gyrocompasses; (iv) electronic navigation chart systems; (v) steering controls; (vi) pumps; (vii) propulsion and machinery control systems; and (viii) totally enclosed lifeboats.

Civilian Personnel Per Diem Bulletin 272 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 Possessions of the United States, while AEA changes announced in Bulletin Number 194 remain in effect. 

December 7

In Bona Fide Conglomerate (a successful post-award request for a TRO under a procurement by the GSA and the Committee for Purchase From People Who Are Blind or Severely Disabled pursuant to the AbilityOne Program, formerly known as the Javits-Wagner-O’Day Act) the Court of Federal Claims found the plaintiff had raised significant factual questions concerning the agency's failure to follow the evaluation scheme and possible bias, but required a $50,000 bond to enter the TRO.

The ASBCA published several decisions.

In Kellogg Brown & Root Services, the Board denied a government motion to dismiss (for lack of subject matter jurisdiction under CDA) a claim for unpaid invoices on a contract unilaterally transferred by the Corps of Engineers to the Interim Iraqi Government and thereafter funded by Development Fund for Iraq funds, which are nonappropriated funds. The Board was forced to look to the Restatement of Contracts for guidance concerning assignments and delegations since neither the Anti-Assignment Act nor any other similar federal law covers a government transfer of a contract.

In another Kellogg Brown & Root Services  decision published the same day, the Board denied government motions to stay appeals pending resolution of a suit under the False Claims Act because (i) there was insufficient similarity between the actions; (ii) the Government did not establish there would be prejudice to its suit from proceeding with the board appeals; and (iii) the indefinite length of requested stay weighed against granting it.

In Smart Power Systems, the Board granted the Government's motion for summary judgment and upheld a default termination for failure to make progress because the contractor failed to cure its performance after (or provide an adequate response to) a cure notice.

In Western Plains Disposal, the Board denied a government motion to dismiss an appeal for lack of jurisdiction because the Board found that submission of a Certification of Current Cost of Pricing Data instead of a CDA certification was a correctable error.

In Cardinal Maintenance Service, the Board dismissed the portions of the contractor's claims time barred by the CDA's six-year statute of limitations.

The CBCA denied Arun Enterprises' appeal from a GSA claim for unpaid rent and capital improvement deposits under a building lease because the contractor presented no credible evidence to support its contention that it was entitled to  adjustments to the building rental.

December 4

In Matt Martin Real Estate Management LLC, an unsuccessful post-award protest, the Court of Federal Claims held, inter alia, that HUD had a rational basis for assigning all five proposals an overall rating of "Good" after analyzing the ratings under each individual evaluation factor, even though the offerors' individual ratings were not identical.

December 3

The GAO published decisions sustaining two protests.

NCS Technologies convinced the GAO that solicitation provisions requiring (i) computers and monitors to be from the same manufacturer and (ii) computers to have Intel-based microprocessors were unduly restrictive of competition.

CIGNA Government Services won its protest because (i) the agency failed to conduct meaningful discussions where it determined that certain of the protester's proposed costs were understated and  adjusted the most probable cost estimate associated with the protester's costs upwards rather than reopening discussions to allow it an opportunity to address the issue; (ii) the agency evaluated the past performance of the awardee's minor subcontractor where the solicitation provided for the consideration of the past performance only of "significant" or "critical" subcontractors; and (iii) the agency presented no rational basis for its less favorable evaluation of the protester's proposal for one of the awards contemplated under the solicitation  than for another, essentially identical proposal submitted by the protester for a different award under the same solicitation. 

DFARS Case 2009-D038 (Business Systems--Definition and Administration) is an lengthy, extensive set of proposed changes to the DFARS designed to improve the effectiveness of DoD oversight of contractor business systems, and, after receiving 370 comments on the original proposed rules, the DoD has published revised proposed rules. Comments on the latest proposals are due by January 3, 2011.

DFARS Case 2009-D008 (Government Property) is a proposed rule to revise DFARS part 245, Government Property, to reflect recent revisions to FAR part 45, Government Property.

December 2

Two ASBCA decisions have been published.

In AmerescoSolutions, the Board denied the contractor's motion for summary judgment in a default termination appeal because the contractor did not establish the Government had waived the due date under the "unusual circumstances" legal standard required to establish waiver in  a construction contract default termination appeal.

In J. A. McAmis, the Board held that the contractor was entitled to recover increased haul costs and delay costs after haul routes to the site became unavailable due to a local ordinance passed after award (and rejected the Government's attempts to rely on the "Permits and Responsibilities Clause" and the sovereign acts doctrine to avoid this result); but the contractor was not entitled to recover its costs of the rejection of rock that complied with the specifications because the contractor did not establish the Government had rejected the rock. 

November 30

DFARS Case 2010-D023 (Definition of Sexual Assault): A proposed would would amend the DFARS to ensure that contractor employees who are authorized to accompany U.S. Armed Forces deployed outside the United States are aware (i) of the DoD definition of ‘‘sexual assault’’ as defined in DoD Directive 6495.01, Sexual Assault Prevention and Response (SAPR) Program and (ii) that such offenses are covered under the Uniform Code of Military Justice. Comments are due by January 31, 2011.

In a nonprecedential decision that is, nevertheless, interesting, the Court of Appeals for the Federal Circuit reversed the Court of Federal Claims and held that Norma C. Sullivan and Donald E. Sullivan (who were injured by car driven by Postal Service contractor's employee) could not maintain an action against the Postal Service for breach of contract as third party beneficiaries for the Postal Service's failure to enforce a contract provision requiring the contractor to obtain additional insurance because that failure was not a breach of the contract (which did not require the Postal Service to enforce that provision).

November 27

The GAO sustained two protests. Marine Hydraulics International won because the agency made several erroneous upward adjustments to the protester's cost proposal during the cost realism evaluation. DRS ICAS, LLC is another example of an agency's stubborn insistence on finding ways to stick with its original awardee after taking corrective action, and DRS won because (i) several technical weaknesses assessed by the agency's evaluators lacked a rational basis; (ii) the agency should have considered additional performance under a related contract that occurred between the time of the original evaluation and the reevaluation; and (iii) the agency improperly assessed a weakness for failing to explain an an MTBF calculation when neither the solicitation nor the specifications required such an explanation.

November 24

The following DFARS final and proposed rules have been issued.

DFARS Case 2008-D027 (Cost and Software Data Reporting System) is a final rule to amend the DFARS to address DoD Cost and Software Data Reporting system requirements for Major Defense Acquisition Programs and Major Automated Information Systems. 

DFARS Case 2009-D034 (Contract Authority for Advanced Component Development or Prototype Units) is a final rule (adopting the prior interim rule with only a minor change) amending the DFARS to implement section 819 of the National Defense Authorization Act for Fiscal Year 2010, which places limitations on certain types of line items and contract options that may be included in contracts initially awarded pursuant to competitive solicitations. 

DFARS Case 2010-D025 (Services of Senior Mentors) (i) implements previously issued DoD memoranda on Senior Mentors (retired DoD personnel that provide training to active DoD personnel) and (ii) has no impact on the general public. 

DFARS Case 2009-D025 (Contractor Insurance/Pension Review) is a final rule adopting, without any changes, the proposed rule to remove and relocate the requirements for conducting a Contractor Insurance/Pension Review from Procedures, Guidance, and Information (PGI) to the DFARS.

DFARS Case 2009-D011 (Annual Representations and Certifications) is a proposed rule to amend the DFARS to conform to FAR requirements concerning Annual Reps and Certs. Comments are due by January 24, 2011.

DFARS Case 2010-D013 (Discussions Prior to Contract Award) is a proposed rule (recommended by the DoD Source Selection Joint Analysis Team) to strongly encourage discussions prior to award for source selections of procurements estimated at $100 million or more. Comments are due by January 24. 

November 23

The GAO sustained the protest of Missouri Machinery & Engineering Co. because the agency did not establish that a solicitation requirement for vendors to be an original equipment manufacturer's authorized repair facility was necessary to meet the agency's needs.

In D'Andrea Brothers, LLC, the Court of Federal Claims denied the Government's summary judgment motion to dismiss a claim that it had violated its obligation of good faith and fair dealing under a CRADA by "bad-mouthing" HooAH! energy bars.

In a very interesting decision in several respects, Bilfinger Berger AG Sede Secondaria Italiana won its protest at the Court of Federal Claims due to the agency's inappropriate reliance on an Italian legal opinion (concerning a certificate required by applicable Italian law) as the basis for a negative responsibility determination. The court rejected the Government's contention that the claim was barred by laches because the contractor had waited a number of weeks for the publication of the redacted version of the GAO's decision on its earlier protest before proceeding in federal court. The court also discussed the plaintiff's standing, i.e., its contention that it would have had a substantial chance for award if the errors it alleged were remedied.

November 19

Mobile Medical International Corp. lost its post-award protest at the Court of Federal Claims because (i) it did not establish it would have had a substantial chance for award if its protest were sustained and, therefore, lacked standing and (ii) its allegedly proprietary information had not been improperly disclosed because plaintiff, itself, had already disclosed it in the public domain.

November 17

In Henry Housing Limited Partnership, the Court of Federal Claims denied the Government's Rule 12(c) motion to dismiss the Fifth Amendment takings portion of a contractor's claims based on the Government's abrogation of the prepayment term of a Farmers Home Administration loan contract.

November 12

DFARS Case 2009-D039 is an interim rule amending the DFARS to implement section 823 of the National Defense Authorization Act for Fiscal Year 2010, which requires contracting officers to consider reducing or denying an award fee if actions by a contractor or subcontractor jeopardize the health or safety of government personnel. Comments are due by January 11, 2011.

November 10

Effective December 10, the DOE is amending sections of the DEAR related to socioeconomic programs to conform them to the FAR. to remove outdated coverage, and to update references.

FTR Bulletin 11-02: The GSA has updated the Fly America Act information on the GSA web site with recent changes to the new US–EU Open Skies agreement signed June 24, 2010.

November 9

I always enjoy a good tug of war between the GAO and the procuring agency. Early this year, the GAO sustained a protest by PMO Partnership Joint Venture after the DOT had found the accounting system proposed by the JV for a cost reimbursable contract unacceptable simply because the proposal was based on using the individual indirect rates of the JV partners. The GAO thought this was a matter of responsibility rather than responsiveness, rejected the agency's unsupported conclusion that CAS 401 demanded a single overhead rate for the JV, and found no other rational basis for the agency's conclusion. Undaunted, the agency then decided that the joint venture's proposal should be rejected because it was noncompliant with cost or pricing data requirements in FAR 15.408. PMO protested again, and the GAO has now sustained this latest protest, too, because the solicitation did not require cost or pricing data and was not subject to the cost or pricing data requirements of FAR Part 15. 

The ASBCA published seven decisions--

In A. Montano Electrical Contractor, the Board held it lacked CDA jurisdiction over a direct claim by a subcontractor for monies allegedly owed it by its prime contractor where the sub's claim was not sponsored by the prime or a surety.

In Utility Construction Co., the Board held that a claim, which stated the amount being claimed, satisfied the CDA requirement for a sum certain, even though the Government complained it could not ascertain how the delay portion of the claim had been calculated.

In MAC International FZE, the Board held it lacked CDA jurisdiction over claims for payment pursuant to orders under an ID/IQ contract between the contractor and the Coalition Provisional Authority ("CPA") in Iraq (funded with Iraqi funds) because the CPA was not U.S. government agency subject to the CDA.

David J. Needham discusses various categories of allowable and unallowable costs in a convenience termination claim after the termination of an aircraft lease with a nonappropriated fund instrumentality.

In Genome-Communications, the Board denied a motion for summary judgment because there were factual issues as to whether the contractor was entitled to payment for providing training materials for an instructional seminar and whether the materials complied with the contract requirements.

In United Healthcare Partners, the Board denied the Government's motion motion for reconsideration (of the Board's prior decision denying the Government's request for summary judgment) because (i) the Board had not held that the solicitation was an RFQ and (ii) under the parol evidence rule, the instructions to bidders in a solicitation may be used to interpret the subsequent contract.

In American AquaSource, Inc., the Board denied the contractor's motion for reconsideration of the prior decision denying contractor's motion for summary judgment as to the propriety of a termination.

November 7

In Malinda Baldwin, the Court of Federal Claims held that failing to submit a written demand to the Contracting Officer and to specify a sum certain are not "harmless errors" that can be overcome by reference to the plaintiff's "intent," but, rather, are fatal CDA jurisdictional flaws.

November 6

In its latest decision in the winning Sheridan protest, the Court of Federal Claims permanently enjoined the Government from resoliciting revised proposals where the agency's needs had not changed: 

The Court finds the MCII Generator case particularly relevant to the present case. In both situations, the "defect" identified by the Government had no relation to the proposed corrective action. The record in both cases suggests that the respective agencies made the correct award decisions, and that if any flaws in the process existed, such flaws occurred during the evaluation of the properly submitted proposals. In such circumstances, a reevaluation of the proposals may be warranted, but a resolicitation of the proposals compromises the integrity of the procurement system, especially where the winning price has been disclosed to the public.

Defendant argues that this case can be distinguished from Delaney, MCII Generator, and other cases because here, the resolicitation is on identical terms. The Court finds this position entirely illogical. Instead, the fact that the agency conducted the resolicitation on identical terms further strengthens Plaintiff’s argument that a resolicitation was improper and unnecessary. Where the terms of the RFP remain unchanged and the initial proposals were properly submitted, there is no rational basis for the agency to resolicit proposals that it already received under a properly conducted solicitation. The only conceivable reason to permit resolicitation would be to allow the unsuccessful offerors an opportunity to beat the now disclosed price of the winning proposal. Such a result is impermissible and would severely damage the integrity of the procurement process.

Exactly so, Your Honor, exactly so. 

 

Linc Government Services lost its protest against multiple types of alleged errors in the technical, price, past performance, and trade-off evaluations, but, as a preliminary matter, the court described the three-pronged analysis that may be required to establish the necessary element of "prejudice" in any bid protest:

[B]id protest jurisprudence writ large can be seen as evolving into a three-step analysis. First, in order to demonstrate allegational prejudice, a plaintiff must show that it would have had a substantial chance of being awarded the contract but for the combined impact of all agency decisions alleged to be unlawful. . . .  Second, and only if the plaintiff makes this threshold showing of prejudice, the court determines whether the challenged agency decisions were contrary to law. . . .  And third, in order to demonstrate APA prejudice, the plaintiff must show that it would have had a substantial chance of being awarded the contract but for the combined impact of any agency decisions adjudged to be unlawful. . . .

To be sure, the second prejudice inquiry (the third step in the above analysis) is not always required. If all alleged procurement errors ultimately withstand the court’s scrutiny—i.e., if the court upholds as lawful every agency decision challenged by a plaintiff—the need for a second prejudice inquiry will be obviated. . . . By the same token, if none of the challenged agency decisions survives judicial review—i.e., if all decisions alleged to be unlawful are adjudged to be so—a second prejudice inquiry would simply duplicate the first and would thus be redundant. . . . However, where a plaintiff succeeds on the merits of some but not all of its allegations, a second examination of prejudice becomes necessary. This is because the plaintiff’s success in demonstrating allegational prejudice in such cases does not guarantee its success in demonstrating APA prejudice. . . . Specifically, the plaintiff in such cases may be able to satisfy the substantial chance test based upon the combined impact of all allegedly unlawful agency decisions, but may fail to do so based upon the cumulatively lesser impact of those decisions that the court ultimately determines to be unlawful. . . . [citations omitted]

The interesting thing about the past performance evaluation in this procurement is the lengths the evaluators went to in order to ascertain that seemingly negative past performance information concerning the eventual awardee was not actually relevant. The issue was whether the evaluators' efforts amounted to commendable diligence or bias (as the protester alleged).

November 5

Effective December 6, the DOE is amending Subchapter I of the DEAR at 48 C.F.R. Part 970 (concerning Management and Operating Contracts) to conform it to the FAR.

Effective November 22, the SBA is is granting a class waiver of the Nonmanufacturer Rule for Woven and Knit Impregnated with Flat Dipped Rubber/Plastic Gloves, under NAICS code 315992 (Glove and Mitten Manufacturing).

November 4

EREH Phase I won its post-award protest at the Court of Federal Claims because the GSA's finding that the property offered by awardee did not lie within a flood plain was arbitrary and capricious (and just plain wrong); but the court also held that the equities did not favor an injunction; so the protester was limited to recovering its bid preparation costs. In the court's heavily-redacted decision in Pyramid Real Estate Services, the protester failed to timely protest solicitation terms and alleged ambiguities in the solicitation and lost its protest against various conclusions by the evaluators (because the court would not not substitute its judgment for those of the evaluators and  because the protester failed to meet the high burden of proof required to establish the evaluators' bias).

November 3

DFARS Case 2010-D027 (Prohibition on Interrogation of Detainees by Contractor Personnel) is an interim rule to implement section 1038 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84), which prohibits contractor personnel from interrogating detainees under the control of the Department of Defense, but also allows the Secretary of Defense to waive the prohibition for a limited period of time, if determined necessary to the national security interests of the United States. Comments are due by January 3, 2011.

FTR Case 2010-303: This interim rule, effective March 3, 2011, amends the FTR  by (i) adding terms and definitions for "Dependent," "Domestic partner," and "Domestic partnership," and (ii) revising the definition of "Immediate family" to include "Domestic partner" and children, dependent parents, and dependent brothers and sisters of the Domestic partner as named members of the employee’s household, and (iii) adding  references to domestic partners and committed relationships, where applicable, in the FTR. Comments are due by December 20.

November 2

In Kenney Orthopedic, the Court of Federal Claims ruled on a slew of discovery disputes involving, among other things, the VA's back-up, preservation, recovery, and production of electronic records. 

October 31

Hostetter, Keach & Cassandra Construction won its GAO protest against the rejection of its bid as nonresponsive where, although there was a discrepancy in names of bidder and bid bond principal, the record showed that they were the same entity and that the principal would be liable on the bonds if the bidder defaulted.

The ASBCA dismissed Sygnetics' appeal for lack of CDA jurisdiction because the original certification was not signed.

In AECOM Government Services, the Board granted the Government's motion for summary judgment that the contractor was not entitled to recover F.I.C.A. taxes on offshore subsidiaries first imposed by the HEART Act six months after the award of its fixed-price contract, at least based on the contractor's theory of breach of the implied warranty of good faith and fair dealing. The Board noted that the contractor's alternative theory of mutual mistake was not involved in the summary judgment motion. 

In Inchcape Shipping Services, the Board analyzed whether the claims before it involved maritime contracts, and, therefore, admiralty jurisdiction.

In Systems Development Corp., the Board dismissed a claim as barred by the CDA's statute of limitations because it "accrued" more than six years before it was submitted to the Contracting Officer for a decision.

October 29

Angelika Textile Services won its protest at the Court of Federal Claims because the Contracting Officer, in violation of the Veterans Benefits Act and its implementing regulations (the New Guidelines), did not consider whether SDVOSBs or VOSBs were available to meet a requirement prior to placing a firm on the AbilityOne Procurement List so that she could award it a sole source contract, all this despite the fact that the GAO had previously dismissed the protest as frivolous because it did not spot the issue.

DFARS Case 2010-D016 (Continuation of Contracts--Deletion of Redundant Text): This final rule eliminates the now redundant text of DFARS 209.405–1,  which limits the placement of orders against contracts with contractors that have been debarred, suspended, or proposed for debarment, because, on December 11, 2003, the final rule published under FAR Case 2002–010 (68 FR 69250) incorporated these restrictions into the FAR.

DFARS Case 2009-D017 (Continuation of Essential Contractor Services): This final rule, adopts, with changes the interim rule amending the DFARS to add policy and a contract clause (DFARS 252.237–7023) requiring that contractors providing essential contractor services, as determined by the requiring activity, shall be prepared to continue such services during periods of crisis.

DFARS Case 2009-D029 (Safety of Facilities, Infrastructure, and Equipment for Military Operations) is an interim rule designed to implement section 807 of the National Defense Authorization Act of 2010, which requires that facilities, infrastructure, and equipment that are intended for use by military or civilian personnel of the DoD, in current or future military operations, should be (i) inspected for safety and habitability prior to use and (ii) brought into compliance with generally accepted standards for the safety and health of personnel to the maximum extent practicable consistent with the requirements of military operations and the best interests of DoD to minimize the safety and health risk posed to such personnel. Comments are due by December 28.

DFARS Case 2009-D040 (Trade Agreements--New Thresholds): This final rule adopts as final (without change)  the interim rule that amended the DFARS to incorporate increased thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative.

DFARS Case 2009-D041 (Balance of Payments Program Exemption for Commercial Information Technology--Construction Material): This final rule amends the DFARS to implement the exemption from the Balance of Payments Program for construction material that is commercial information technology.

October 28

The SBA has announced the availability of a compliance guide for the Women-Owned Small Business (WOSB) Program, which sets forth in plain language the requirements for participation in the WOSB program and is intended to help small businesses understand the regulation and how it affects them. The guide is available here.

October 27

In the Weston Solutions protest, the Court of Federal Claims ordered the procuring agency to review and clarify its ambiguous rankings of A-E firms and then to make a new determination of final rankings on the record.

October 26

Several Court of Federal Claims decisions have been published. In United Constructors, the court denied (i) a Type I Differing Site Conditions claim because the conditions were reasonably foreseeable at time of bidding and (ii) a constructive acceleration claim because contractor's own actions contributed to the delay. In Environmental Safety Consultants, the court (pursuant to Rules 12(b)(1) and 12(b)(6)) dismissed PPA, takings, and punitive damages claims, as well as (i) a claim first submitted when the firm was no longer a contractor with the United States and (ii) a claim barred by the CDA's statute of limitations. PMTech is noteworthy not so much for its specific holding (denying the plaintiff's challenge to the Government's override of the automatic stay during a bid protest) but rather for its thorough discussion of the legislative history, case law, and  standards for deciding whether an override decision is justifiable.  CRAssociates succeeded in convincing the court that there were a number of prejudicial errors in the agency's price, technical, and past performance evaluations that justified an injunction even though the protester lost on several other grounds of its protest (e.g., OCI, flawed responsibility determination, misplaced price information in the technical proposal).

October 25

DFARS Case 2009-D002 (the companion case to FAR Case 2005-040) is an interim rule amending DFARS  219.708 and 252.219 to provide DoD-specific procedures and policies related to DoD’s implementation of the Electronic Subcontracting Reporting System (eSRS). Comments are due by December 27.

DFARS Case 2007-D002 is an interim rule amending the DFARS to implement section 3504 of the National Defense Authorization Act for Fiscal Year 2009, which addresses requirements (e.g., holding either a transportation security card or a Merchant Mariner's Document and/or passing a background check) that apply to riding gang members (i.e. foreign nationals who perform work while the ship is underway beyond standard vessel maintenance and repair)  and other  DoD-exempted individuals performing work on U.S. flag vessels under DoD contracts for transportation services. Comments are due by December 27.

October 21

In JRS Management, the ASBCA held that laches barred a contractor's claim even though the CDA's statute of limitations was not applicable.

HUD's Federal Housing Finance Agency has issued final rules implementing the EAJA for eligible prevailing parties in adjudications against it.

October 20

OMB's OFPP proposes to amend 48 C.F.R. Part 9903 to eliminate an exemption from the Cost Accounting Standards for contracts executed and performed entirely outside the United States, its territories, and possessions. Comments are due by December 20.

October 16

In Tekkon Engineering Co. , the ASBCA held that (i) the contractor did not prove the  elements required to establish a prior course of dealing; (ii) the contractor was not entitled to adjustments under the EPA clause, in part because there were no established prices on which to base those adjustments; (iii) the contractor's subjective, unexpressed reading of the contract, which was never communicated to the Contracting Officer, could not form the basis for its interpretation; and (iv) because the Government was not required to place any orders during an option period (and did not do so), the contractor could not recover costs associated with that option period.

October 15

The GAO sustained Total Health Resources'  protest that a solicitation requirement for two years' experience by the prime was unduly restrictive because the agency could not establish the requisite experience by a subcontractor or team member would not be sufficient.

October 14

The GAO sustained the protest of Douglas County Fire District #2 because the agency unreasonably rated the protester's proposal as "fail" in the "geographic coverage" evaluation factor even though (i) it offered to provide the same geographic coverage as it had successfully provided under the predecessor contract and (ii) its proposal language was similar to the awardee's, which the agency rated as "pass."

FTR Case 2010-306: Effective November 15, the GSA is revising the FTR by (i) removing section 301–50.8, which contains language regarding limitations on travel arrangements for common carriers, commercial lodging, and car rental usage; (ii) revising (a) section 301–10.105 regarding the basic requirements for using common carrier transportation and (b) section 301–10.450 to provide guidance to travelers regarding renting vehicles under the Defense Travel Management Office’s (DTMO) U.S. Government Car Rental Agreement; (iii) revising section 301–11.11 to provide guidance to travelers who choose to obtain commercial lodging under a government lodging agreement; and (iv) updating references in section 301–73.106 and Appendix D to Chapter 301 to change "Surface Deployment Distribution Command" (SDDC) to "Defense Travel Management Office" (DTMO).

October 13

The Court of Federal Claims held that The Marquardt Co. was not entitled to either CDA or PPA interest on the time required for Government to make payments under a global settlement agreement of various underlying contracts because the agreement was not a contract within the meaning of those statutes, because it did not provide for a definite time for payment to be made, and because it provided a different remedy if payment were not made.

In United Partition Systems, after concluding that the contractor was entitled to an EAJA award because the Government's position in the litigation was not "substantially justified," the court noted that the "precise question at hand is whether an expenditure listed as a 'cost' under 28 U.S.C. § 1920 is recoverable as an 'expense' under 28 U.S.C. § 2412(d)(1)(A), particularly in an instance where 'costs' were not awarded to the plaintiff." The court held that it is.

In International Industrial Park, the court held that because a barter agreement for the relocation of  an easement in return for an undertaking to pave roads on the easement was not a contract within meaning of the CDA, the plaintiff was not required to file a claim with the Contracting Officer prior to filing suit in court.

October 11

In System Planning Corp., the Court of Federal Claims held that the Tucker Act's six-year Statute of Limitations does not apply to claims by a contractor who has elected to proceed under the CDA.

October 8

In Powerhouse Design Architects & Engineers, the GAO sustained a set of protests because the VA failed to follow the requirements of the Veterans Benefits, Health Care, and Information Technology Act of 2006, which required it to set aside architect-engineering services procurements for SDVOSBs.

October 7

In a final rule published today, and effective February 4, 2011, the SBA is making extensive amendments to (i) 13 C.F.R. Part 127, currently entitled ‘‘Women-Owned Small Business Federal Contract Assistance Procedures,’’  and (ii) other parts of the SBA's regulations affected by these changes, all in order to implement procedures authorized by the Small Business Act (Pub. L. 85–536, as amended) to help ensure a level playing field on which Women-Owned Small Businesses can compete for federal contracting opportunities. As revised, Part 127 will be entitled "Women-Owned Small Business Federal Contract Program."

FAR Case 2009-041 (Sudan Waiver Process): A proposed rule would amend FAR section 25.702 (Prohibition on Contracting with Entities that Conduct Restricted Business Operations in Sudan) to add specific criteria an agency must address in a waiver request and a waiver consultation process regarding foreign policy aspects of the waiver request for consultations. This information will be provided, in a waiver request, to the President or his appointed designee for consideration of whether the prohibition on awarding a contract to a contractor that conducts business in Sudan should be waived. Comments are due by December 6.

October 6

As part of a comprehensive review that will eventually cover all its size standard categories, the SBA today has published final rules revising its size standards in multiple categories within each of three NAICS sector groups: 44-45 (Retail Trade); 72 (Accommodations and Food Services); and  81 (Other Services).

In Thorington Electrical and Construction Co., the ASBCA granted the Government's motion for summary judgment because an unambiguous release barred the contractor's claim.

October 5

In Vero Technical Support, the Court of Federal Claims discussed the definition of "pending" in applying 28 U.S.C. 1500 to decide whether it had jurisdiction (it did not) over a bid protest when a prior suit based on the same operative facts had been dismissed by, but was still within the appeal period in, a federal district court.

October 4

The Small Business Jobs Act of 2010, inter alia, closes the loophole that had favored HUBZone business during set asides, and places HUBZone, SDVOSB, and women-owned small businesses in parity with one another in such situations, which, in the future, should eliminate GAO and court decisions like those in the Rice Services protests discussed at the September 20 entry below.

October 1

DoD is proposing to update current policies and procedures to reflect the DoD FOIA Program as prescribed by Executive Order 13392. The changes are intended to ensure appropriate agency disclosure of information and offer consistency with the goals of 5 U.S.C. § 552. Comments are due by November 29.

DFARS Case 2009-D037: DoD is proposing to amend the DFARS to to make electronic distribution procedures a routine part of order issuance by adding a new "Ordering" clause (and associated prescription) to establish a standard method for issuing orders via electronic means. Comments are due by November 30.

September 29

Information Ventures won its GAO protest because the record did not support the Contracting Officer's determination to make only one ID/IQ award, rather than multiple awards, under a solicitation for support services.

In L.A. Ruiz Assocs., the Court of Federal Claims held it lacked jurisdiction over a contractor's counterclaim in response to an affirmative claim by the Government because there was no showing the two claims arose from the same set of operative facts, and the contractor had not submitted its counterclaim to the Contracting Officer for a decision; the court, however, did find jurisdiction over the contractor's claim for a declaratory judgment to the effect that Government's affirmative claim against the contractor was null and void.

In FloorPro, the same court found a case was not barred by the Statute of Limitations because the contractor had diligently pursued its rights even though circumstances had conspired to drag things out for many years.

Federal Acquisition Circular (FAC) 2005-46 has been issued. It includes the following seven items:

Item I (FAR Case 2009-007), entitled "Equal Opportunity for Veterans," is an interim rule amending the FAR to implement DOL regulations on equal opportunity provisions for various categories of military veterans. This rule sets forth revised coverage and definitions of veterans covered under the Vietnam Era Veterans’ Readjustment Assistance Act of 1972 (VEVRAA) and includes new reporting requirements established under the VEVRAA and the Jobs for Veterans Act (JVA). Comments are due by November 29.

Item II (FAR Case 2010-012), entitled "Certification Requirement and Procurement Prohibition relating to Iran Sanctions," is an interim rule amending the FAR to implement section 102 and partially implements section 106 of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010. Section 102 requires certification that each offeror, and any person owned or controlled by the offeror, does not engage in any activity for which sanctions may be imposed under section 5 of the Iran Sanctions Act of 1996, as amended (the Iran Sanctions Act). Section 106 imposes a procurement prohibition relating to contracts with persons that export certain sensitive technology to Iran.. Comments are due by November 29.

Item III (FAR Case 2008-016), entitled "Termination for Default Reporting," is a final rule, effective October 29, to establish procedures for contracting officers to provide contractor information, such as terminations for cause or default and defective cost or pricing data, into the Past Performance Information System (PPIRS) and Federal Awardee Performance and Integrity Information System (FAPIIS) module within PPIRS.

Item IV (FAR Case 2008-008), entitled "Award-Fee Language Revision," is a final rule, effective October 29, adopting, with changes, the interim rule amending the FAR to implement section 814 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364), section 867 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110-417), and the OFPP Policy guidance memorandum dated December 4, 2007, entitled "Appropriate Use of Incentive Contracts."

Item V (FAR Case 2009-020), entitled "Offering a Construction Requirement--8(a) Program," is a final rule effective October 29 which revises FAR subpart 19.8, Contracting with the Small Business Administration (The 8(a) Program), to conform to SBA regulations, by changing the location for submitting offering letters to the SBA for a construction requirement for which a specific offeror is nominated.

Item VI (FAR Case 2009-028), entitled "Encouraging Contractor Policies to Ban Text Messaging While Driving," is an interim rule amending the FAR to implement Executive Order 13513, issued on October 1, 2009, entitled ‘‘Federal Leadership on Reducing Text Messaging while Driving,’’ which was issued to demonstrate federal leadership in improving safety on the nation’s roads and highways, and to enhance the efficiency of federal contracting by preventing the unsafe practice of text messaging by federal contractors while driving in connection with government business and by promoting economy and efficiency in federal procurement, and by seeking to prohibit the disruption of government business and federal procurement, as a result of unsafe text messaging practices. . Comments are due by November 29. You've got to be kidding me.

Item VII (FAR Case 2009-039), entitled "Buy American Exemption for Commercial Information Technology--Construction Material," is an interim rule amending the FAR to implement section 615 of Division C, Title VI, of the Consolidated Appropriations Act, 2010 (Pub. L. 111–117), which authorizes an exemption from the Buy American Act for the acquisition of information technology that is a commercial item. Comments are due by November 29.

September 28

In Shawview Cleaners , the ASBCA held that the contractor was not entitled to rely on alleged representations by government employees that the wage determination attached to contract was just a suggestion and not mandatory.

In Bruce E. Zoeller, the ASBCA denied the contractor's motions for sanctions against the Government for failing to produce discovery documents that the Government was unable to locate.

September 27

In  Charleston Marine Containers, the CBCA granted the contractor summary relief based on its interpretation of FAR 52.247-64 ("Preference for Privately-Owned, U.S.-Flag Commercial Vessels") and DFARS 252.247-7023 ("Transportation of Supplies by Sea") because neither of those clauses nor anything else in the contract mentioned the possibility that the contractor would be required to use Priority Two (P2) service, which is what the Government had demanded of it.

September 25

DFARS Case 2010-D015: A new DFARS clause 252.203-7003 (entitled "Agency Office of the Inspector General") has been added, which reads as follows: "The agency office of the Inspector General referenced in paragraphs (c) and (d) of FAR clause 52.203–13, Contractor Code of Business Ethics and Conduct, is the DoD Office of the Inspector General at the following address: DoD Office of the Inspector General, Investigative Policy and Oversight, 400 Army Navy Drive, Suite 1037, Arlington, VA 22202–4704, Toll Free Telephone: 866–429–8011."

DFARS Case 2008-D047: This final rule establishes a standard DoD method of specifying Government-assigned serial numbers contractually and requires (i) the contractor (a) to associate these serial numbers with the Unique Item Identifier (UII) assigned by the contractor and (b) to register them in the DoD Item Unique Identification (IUID) Registry along with the UII and (ii) the Government and the contractor to reach an agreement prior to use of the serial numbers in constructing the end item UII.

DFARS Case 2008-D040: This final rule adopts, with changes, the prior interim rule that implements section 884 of the National Defense Authorization Act for Fiscal Year 2009, which requires DoD to ensure that, to the maximum extent practicable, in all carriage contracts in which a fuel-related adjustment is provided for, any fuel-related adjustment is passed through to the person who bears the cost of the fuel to which the adjustment relates.

DFARS Case 2010-D001 ("Patents, Data, and Copyrights") is a proposed rule to update text on patents, data, and copyrights in order to (i) remove text and clauses that are obsolete or unnecessary; (ii) relocate and integrate the coverage for computer software and computer software documentation with the coverage for technical data to eliminate redundant coverage for these subjects; (iii) eliminate or combine the clauses associated with technical data and computer software, consistent with the revised and streamlined regulatory coverage; (iv) relocate, reorganize, and clarify the coverage for rights in works; and (iv)  relocate to the DFARS companion resource, Procedures, Guidance, and Information (PGI), text that is not regulatory in nature and does not impact the public. Comments are due by November 26.

FAR Case 2009-043 ("Time-and-Materials (T&M) and Labor-Hour (LH) Contracts for Commercial Items"): This proposed rule would amend the FAR to implement recommendations of GAO Report 09–579 ("Minimal Compliance with New Safeguards for Time-and-Materials Contracts for Commercial Services and Safeguards Have Not Been Applied to GSA Schedules Program") Comments are due by November 26.

FTR Case 2010-305: This final rule amends the FTR by (i) updating statutory references in a number of sections, (ii) providing additional guidance for determining distance measurements when traveling by privately owned aircraft, (iii) clarifying provisions regarding the use of personally owned vehicles for official travel, (iv) updating the addresses to which per diem review requests should be sent, and (v) changing the method by which agencies must report the use of government aircraft to carry senior federal officials and non-federal travelers.

In DLT Solutions , the CAFC reversed the prior ASBCA decision and held that, following the termination of the contractor, the Government did not replace contracted-for software in violation of a delivery order's Non-Substitution clause.

September 24

In the latest decision in the Turner Construction Co. OCI case, the Court of Federal Claims denied the intervenor's request to stay the injunction issued in the court's prior decision pending an appeal to the Federal Circuit.

September 23

Vanguard Recovery Assistance, Joint Venture won its GAO protest because the agency's  past performance evaluation was based on a numerical scoring system that reduced the offeror's overall rating because it submitted additional information on two less relevant contracts, even though it received the highest adjectival rating on each of the individual contracts it submitted.

September 22

FAR Case 2009-034 ("TINA Interest Calculations"): A proposed rule would amend the FAR to revise the clauses at FAR 52.214–27, 52.215–10 and 52.215–11 to require compound interest calculations be applied to government overpayments as a result of defective cost or pricing data. Comments are due by November 22.

Effective October 22, the DOE is amending the DEAR to implement E. O. 13514 (Federal Leadership in Environmental, Energy and Economic Performance) to utilize agency acquisitions to foster markets for sustainable technologies and energy efficient and environmentally sustainable materials, products, and services. 

September 21

Regarding an EAJA application in Infiniti Information Solutions, the Court of Federal Claims held, inter alia, that government contract law was not a legal specialty justifying an increase in the statutory cap on hourly attorney rates recoverable under the EAJA. Although this is not the first court decision to so conclude, I remain offended. :) The decision includes other interesting issues, including whether the fact that the GAO originally dismissed the protest proved the Government's position was substantially justified (it did not). The court, on its own motion (and with shaky and speculative reasoning, it seems to me), decided to reduce the claim for the amount of time one attorney recorded preparing for oral argument: "The vast majority of work throughout the case had been undertaken by [two other attorneys], who were undoubtedly substantially more familiar with the matter than [the attorney who actually made the oral argument] was. The court infers that much of [the latter attorney's] time in preparation for oral argument was spent becoming familiar with the facts and law of the case for the first time. Because no explanation was given for why [the other two attorneys] could not deliver the argument themselves, the court finds that half of the 23.3 hours spent in preparation for oral argument were not 'reasonably expended.' " 

September 20

The SBA's OHA has issued one new NAICS code decision and two size decisions. In Brian Scott, the OHA decided that NAICS code 113310 (Logging) rather than 561760 (Landscaping Services) was appropriate for a forestry services contract for harvesting wood products. In  Gulf-Shred, Inc. dba Shred-It Mobile/Biloxi, the OHA reversed the Area Office's determination because the indemnity provision in a franchise agreement did not create an affiliation between the franchisor and the franchisee and because the franchise agreement did not give the franchisor the power to control the franchisee. In Southeastern Protective Services, the OHA rejected a firm's attempt to ignore certain income stated on its tax returns based on its erroneous allegation that it was engaged in a joint venture rather than a prime/sub relationship, which is what all the documents (and its own prior admissions) established.

Rice Services won two GAO protests, each in summary fashion, because the Air Force and the Defense Commissary Agency failed to consider whether an SDVOSB set-aside should be reserved for HUBZone concerns.

September 18

The GAO is requesting public comments (by November 22) on proposed changes to the exposure draft of proposed revisions to Government Auditing Standards (GAGAS) (also known as the Yellow Book).

September 17

DFARS Case 2009-D023: A proposed rule would amend DFARS Appendix F (Material Inspection and Receiving Report) to incorporate procedures for using the electronic Wide Area Workflow Receiving Report required for use in most contracts in lieu of the DD Form 250, Material Inspection and Receiving Report. Comments are due by November 16.

CS-360, LLC filed a pre-award protest claiming that the agency unreasonably delayed restoring it to the VIP database of eligible firms after it resolved the agency's concerns with its status, but the Court of Federal Claims held that the agency's subsequent determination that the plaintiff was not eligible as an SDVOSB on different grounds meant the plaintiff lacked standing because it was not eligible for consideration for award, and, therefore, the court lacked jurisdiction.

September 15

Biblia won its GAO protest because the agency did not document the basis for its "best value" evaluation.

The Court of Federal Claims rejected the Madison Services' motion for post-judgment relief from the prior adverse decision on its protest: "Throughout the proceedings in this case, plaintiff has doggedly employed a shotgun approach (unfortunately a trend in modern litigation) spraying about as many arguments as can be made no matter the worth. It is as if plaintiff is following Mason Cooley’s aphorism: 'If you at first don’t succeed, try again, and then try something else.' . . . Clearly, quantity does not always equate with quality. The second motion before the court is plaintiff’s self-styled 'Motion to Compel Production of a Complete Administrative Record.' . . . Therein, plaintiff is essentially moving for post-judgment discovery so as to lay a foundation to support the rickety edifice of the [affidavit in support of its first motion] and plaintiff’s unsupported attorney arguments. However, no matter how lucrative the catch might be, the law will not support a fishing expedition."  [citations omitted]

The court rejected arguments by Chenega Management that the evaluators were biased, that they did not evaluate offerors on a fair and equal basis, that they were unqualified as evaluators, and that an illegal gratuity had been accepted by a cognizant government official.   

The Sheridan Corporation fared much better in its protest when the court found that the agency's proposed corrective action in response to a GAO protest had been filed was improper. Though the agency's requirements had not changed, the agency proposed to broaden the  former competitive range and solicit revised proposals. The court found the corrective action prejudiced the original awardee after its prices had been exposed and was unnecessary.

September 11

The Department of Homeland Security (DHS) is considering a lengthy set of proposed changes to its acquisition regulation (HSAR), 48 C.F.R. Parts 3001-3053, to align existing content with the FAR; to implement Section 695 of the Post-Katrina Emergency Management Reform Act of 2006; to clarify agency acquisition regulations; to provide editorial corrections; and to comply with the statutory change restricting the length of certain noncompetitive contracts entered into by DHS to facilitate the response to or recovery from a natural disaster, act of terrorism, or other manmade disaster. Comments are due by November 12.

September 10

In an interesting CDA decision, the CBCA denied the Government's motions to dismiss for lack of jurisdiction in Rockies Express Pipeline. The Board found that a duly executed "Precedent Agreement" (in which the Government agreed to execute transportation contracts with the contractor if the contractor  would build a pipeline) was a contract within the meaning of the CDA. The Board also found that a Disputes clause purporting to give exclusive jurisdiction in federal district court "to the fullest extent allowed by law" must give way to the CDA's choice of forums.

In Wackenhut Services, the GAO caught the agency trying to make a silk purse from a sow's ear by evaluating a management approach prohibited by the solicitation as an attribute that exceeded the solicitation's requirements.

September 9

In Ceres Gulf, Inc., the Court of Federal Claims denied a protest by the prior awardee after the court found that the Army's decision to take corrective action in response to a GAO protest (by rescinding the original award, revising the solicitation, and then soliciting another round of offers) had a rational basis because it was reasonable to conclude the agency had not engaged in meaningful discussions due (in part) to ambiguities in the original solicitation.

Powersolv won its GAO protest because the evaluation of the protester's project manager was inconsistent with solicitation's evaluation scheme and because there was no evidence in the record to demonstrate that the agency meaningfully evaluated price in making its award decision.

September 8

Several DFARS changes have been published.

DFARS Case 2009-D028 ("Guidance on Personal Services") is an interim rule that revises DFARS Parts 211 and 237 to enable further implementation of section 831 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, which requires DoD to develop guidance related to personal services contracts. Comments are due by November 8.

DFARS Case 2009-D014 ("Acquisition Strategies To Ensure Competition Throughout the Life Cycle of Major Defense Acquisition Programs") adopts as final, without changes, the interim rule amending Part 207 of the DFARS to implement the Weapon Systems Acquisition Reform Act of 2009, to improve the organization and procedures of DoD for the acquisition of major weapon systems.

DFARS Case 2008-D023 ("Additional Requirements Applicable to Multiyear Contracts") adopts as final, with only minor editorial corrections, the interim rule amending subsections 217.170 and 217.172 of the DFARS to implement the National Defense Authorization Act for Fiscal Year 2008, section 811, entitled "Requirements Applicable to Multiyear Contracts for the Procurement of Major Systems of the Department of Defense."

DFARS Case 2009-D035 ("Payment of Costs Prior to Definitization--Definition of Contract Action") adopts as final, without change, the interim rule amending Part 217.7401(a) of the DFARS by changing the definition of "contract action" to include task orders and delivery orders.

DFARS Case 2008-D039 ("Government Rights in Design of DoD Vessels") adopts as final, without change, the interim rule amending Parts 227 and 252 of the DFARS to implement section 825 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 and the Vessel Hull Design Protection Amendments of 2008, which clarifies the Government’s rights in technical data in the designs of a DoD vessel, boat, craft, or components thereof.

 

FAR Case 2009-029 ("Clarification of Standard Form 26--Award/Contract") is a proposed rule to amend the FAR to  to revise (i) the header for blocks 17 and 18 and (ii) block 18 of the Standard Form 26 to clarify that block 18 should not be used when awarding a negotiated procurement and should only be checked when awarding a sealed-bid contract. Comments are due by November 8.

The Bureau of Industry and Security ("BIS") is seeking public comments by October 8 on how existing foreign policy-based export controls have affected exporters and the general public as part of the BIS's review of the foreign policy-based export controls in the Export Administration Regulations to determine whether they should be modified, rescinded or extended. 

September 6

Effective September 7, the Department of Commerce's Bureau of Industry and Security (BIS) is revising the Commerce Control List (CCL) of the Export Administration Regulations (EAR) to implement changes made to the Wassenaar Arrangement’s List of Dual Use Goods and Technologies (Wassenaar List) maintained and agreed to by governments participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual Use Goods and Technologies at the December 2009 WA Plenary Meeting (the Plenary). Specifically, the new rule revises the EAR by amending certain entries that are controlled for national security reasons in Categories 1, 2, 3, 4, 5 Part I (telecommunications), 6, 7, and 9, revising reporting requirements, and adding, removing and amending EAR Definitions. The changes agreed to at the Plenary that pertain to Export Control Classification Numbers (ECCNs) 5A002, 5D002, 6A002, 6A003, 8A002 and all related ECCNs will be implemented in a separate rule. Moreover, the changes agreed to at the Plenary that pertain to raising the Adjusted Peak Performance (APP) for digital computers in ECCN 4A003 will be implemented in another  separate rule when the President’s report for High Performance Computers has been sent to Congress that sets forth the new APP in accordance with the National Defense Authorization Act for FY1998.

In Presidential Determination 2010-13, dated September 2, President Obama continued for one year the exercise of certain authorities under the Trading with the Enemy Act with respect to Cuba, as implemented by the Cuban Assets Control Regulations at 31 C.F.R. Part 515.

The DoD's Civilian Personnel Per Diem Bulletin Number 270 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 Possessions of the United States.

September 1

Nova Group lost its ASBCA appeals of (i) its Type I and Type II Differing Site Conditions claims due to insufficient evidence and (ii) its delay claim because it did not comply with a contract requirement to present a CPM analysis to support it. The ASBCA also concluded it lacked jurisdiction to enforce unilateral modifications the Government  had issued to recoup amounts paid to the contractor because those mods were not the subject of the contractor's claims or a Contracting Officer's decision.

Sometimes the handwriting is on the wall long before the decision on the merits. In Eyak Technology, LLc, CBCA 1975 (Aug. 24, 2010), the CBCA denied DHS' motion to dismiss an appeal for lack of jurisdiction. The Government had relied on the fact that the complaint requested, inter alia, specific performance and injunctive relief. The Board replied: "DHS neglects to refer to Eyak’s prayer for damages resulting from DHS’s actions. We may grant or deny Eyak’s request for an equitable adjustment to the contract resulting from DHS’s actions in this matter. While this alone provides a basis to deny DHS’s motion, we note that we are not limited to granting only the relief sought in the complaint. . . . .In reaching the decision on damages, the Board is likely to interpret the contract and determine the validity of the three contract modifications in issue. The net effect of a favorable determination for Eyak could well provide the relief that Eyak desires. The failure of Eyak to properly articulate the remedy available from the Board does not deprive us of jurisdiction over this matter." (January 16, 2013 update--the CBCA has redesigned its website and changed its web addresses for its decisions. I am no longer able to find a link to this decision on the updated website.) In a subsequent decision, the Board found that the agency had improperly attempted to penalize the contractor for failure to comply with reporting responsibilities the agency had purported to impose on the contractor without the required advance notice.

August 31

FAR Case 2009-038: The FAR Council plans to hold tribal consultation and outreach meetings in October to discuss rulemaking associated with section 811 of the National Defense Authorization Act for FY 2010, Public Law 111-84, which addresses requirements for the justification and approval of sole-source contracts over $20 million under the 8(a) small business development program.

Homesource lost its protest because the Court of Federal Claims found it failed to establish prejudice (and, therefore, lacked standing). Specifically, the protester's evaluation scores were so low that it would not have been in line for award even if it had prevailed on the merits. Just to be safe, the court also examined the protest on the merits and denied the protester's challenges to the past performance and technical evaluations.

August 30

The SBA's OHA has issued several new decisions:

In Reese Goel JV, the OHA held it lacked jurisdiction to hear an appeal from determination by the VA's Office of Small and Disadvantaged Business Utilization.

In Colamette Construction Co., the OHA reversed the Area Office's finding of a violation of the ostensible subcontractor rule: "[T]here is no evidence of unusual reliance because [the alleged ostensible subcontractor] is performing only 3% of the anticipated value of the contract. Second, other than the evidence concerning the shared indemnity, and perhaps the evidence that [the alleged ostensible subcontractor] provided limited assistance with Appellant’s bid preparation, I can find no evidence that is even arguably probative that [the alleged ostensible subcontractor] may be Appellant’s ostensible subcontractor for the instant procurement. When I weigh [the alleged ostensible subcontractor's] agreement to indemnify the surety against Appellant’s extensive industry experience and [the alleged ostensible subcontractor's] limited role in performing the . . . contract, I find the issue of indemnification to be an outlier and thus not probative of a violation of the ostensible subcontractor rule." The OHA also found that the Area Office had confused general affiliation tests with an ostensible subcontractor analysis: "[T]he fact that Appellant leases office space or receptionist services from [the alleged ostensible subcontractor] is irrelevant under an ostensible subcontractor rule analysis." 

In another interesting size appeal, the OHA held in The Clement Group that the Area Office's finding of affiliation through negative control was improper because, under Alabama law, the 51% owner could remove directors for cause if they attempted to prevent action by refusing to attend meetings, thereby denying a quorum.

In Speegle Construction, the OHA upheld the Area Office's finding of affiliation due to identity of interest between family members because there was insufficient evidence of a clear fracture (the challenged family member was a Vice President with, among other things, the power to control the firm upon the absence or inability of its President).

 

The GSA has published Per Diem Bulletin 11-01 updating per diem travels rates for CONUS for fiscal 2011.

DFARS Case 2009-D018 ("Warranty Tracking of Serialized Items") is a proposed rule to amend the DFARS to implement a policy memorandum of the Undersecretary of Defense for Acquisition, Technology, and Logistics dated February 6, 2007, that required definition of the requirements to track warranties for items subject to Item Unique Identification in the Item Unique Identification registry as an aid to enforcement of warranties, which is essential to the effectiveness of DoD’s material readiness. Comments are due by  October 29.

FAC 2005-45 has been published and includes the following three items:

FAR Case 2008-024 ("Inflation Adjustment of Acquisition-Related Thresholds") is a final rule effective October 1 amending the FAR to implement section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, which requires an adjustment every 5 years of acquisition-related thresholds for inflation using the CPI for all urban consumers, except for Davis-Bacon Act, Service Contract Act, and trade agreements thresholds. The FAR Councils have used the same methodology to adjust nonstatutory FAR acquisition-related thresholds in 2010.

FAR Case 2005-036 ("Definition of Cost or Pricing Data") is a final rule effective October 1 amending the FAR to clarify the distinction between "certified cost or pricing data" and "data other than certified cost or pricing data," and to clarify the requirements for the submission of cost or pricing data.

FAR Case 2009-008 ("American Recovery and Reinvestment Act of 2009--Buy American Requirements for Construction Materials") is a final rule effective October 1, adopting, with changes, an interim rule amending the FAR to implement section 1605 of the American Recovery and Reinvestment Act of 2009.

August 27

DFARS Case 2008-D011: DoD has delayed confirmation of the interim rule discussed in the August 20 entry below as a final rule to allow consideration of public comments that had been misplaced.  

The SBA is considering granting a class waiver of the nonmanufacturer rule for woven and knit impregnated with flat dipped rubber/plastic gloves, under NAICS code 315992 (Glove and Mitten Manufacturing). Comments are due by September 13.

The SBA also is considering granting a class waiver of the nonmanufacturer rule for Optical Instrument and Lens Manufacturing, specifically GEN II and GEN III Image Intensifier Tubes, Product Service Code (PSC) 5855, and Night Vision Equipment, Emitted and Reflected Radiation, under NAICS code 333314 (Optical Instrument and Lens Manufacturing). Comments are due by September 13.

The State Department has issued an amendment to the ITAR to clarify that an exemption for technical data includes technical 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.

The State Department also amended the ITAR to remove the requirements for prior approval or prior notification for certain proposals to foreign persons relating to significant military equipment.

August 24

In its latest decision in the long-running L-3 Communications Integrated Systems protest (based on the Druyun fiasco), the Court of Federal Claims denied the Government's motion to dismiss the protester's claim for breach of the implied contract of fair dealing. Specifically, the court held that, contrary to the Government's view, the Federal Circuit's recent decision in Resource Conservation Group did not "preclude a plaintiff either from claiming a breach of the implied contract of fair dealing in a bid protest or from relying on [28 U.S.C.] § 1491(a) as a predicate for jurisdiction in a bid protest involving a procurement."

August 23

The Department of Education is proposing to reissue its acquisition regulation (the "EDAR") to update it to comply with current FAR and Education Department policies and requirements. Comments are due by September 22.

Executive Order 13549 of August 18, 2010, establishes (and provides details of) a Classified National Security Information Program designed to safeguard and govern access to classified national security information shared by the Federal Government with State, local, tribal, and private sector entities. 

The CBCA denied Springcar's motion to re-open the record and reconsider the Board's prior decision  because (i) the Board could rely on a quantum exhibit in the record to which the contractor had not objected, especially when the contractor had the opportunity to, and did not, question a hearing witness about its methodology, and (ii) and the fact that the contractor allegedly had been "surprised" by testimony at the hearing did not excuse its failure to pursue the subject at the time, especially because the person identified in the testimony had been on the Government's  discovery list.

August 21

In Pitney-Bowes Government Solutions, the Court of Federal Claims denied  the protester's challenges to various aspects of the evaluation: the protester did not establish bias from a COTR's past friendly relationship with awardee; the evaluators could use their personal knowledge of the incumbent's past performance issues in making their evaluation; and recovery of improperly destroyed evaluation materials from back-up tapes was sufficient to overcome an allegation of spoliation.

August 20

FMR Case 2010-102-2: The GSA has amended the Federal Management Regulation (FMR) by updating its coverage on transportation management.

DFARS Case 2008-D011: DoD has adopted as final (without changes) the interim rule that amended the DFARS to implement sections 805 and 815 of the National Defense Authorization Act for Fiscal Year 2008 by specifying when time-and-materials or labor-hour contracts may be used for the acquisition of commercial items, and revising the language to address the conditions under which major weapon systems or subsystems may be treated as commercial items. [However, subsequently, the DoD delayed the final adoption--see August 27 entry above]

DFARS Case 2003-D028: DoD has issued a final rule extensively updating and revising Part 247 ("Transportation") of the DFARS concerning  transportation issues under DoD contracts.

August 18

In Navarro Research and Engineering, the Court of Federal claims held that 41 U.S.C. 253j(d)'s requirement for a post-award debriefing (and other enhanced competition procedures) on solicitations for large task order contracts does not apply to GSA FSS solicitations.

In BLR Group of America, on reconsideration of its prior decision, the Court of Federal Claims dismissed the contractor's suit for lack of jurisdiction because the contractor's written objections to an unfavorable CPAR did not constitute a CDA claim. There was no demand for a decision by the Contracting Officer, and the Contracting Officer reasonably interpreted the submission as comments submitted pursuant to FAR § 42.1503(b). It should be noted that the case does not stand for the proposition that an objection to a CPAR evaluation can never be a CDA claim--only that the contractor's submission in this case was not sufficient to identify itself as a such a claim.

Two PSBCA decisions have been published. In an unusual default termination appeal, the Board upheld the termination of a mail deliverer because, basically, he could not get along with other Postal employees.

August 17

FAR Case 2009-023: a proposed rule would standardize the use of Unique Procurement Instrument Identifiers (PIIDs) throughout the Government and extend the requirement for using PIIDs to all solicitations, contracts, and related procurement instruments. Comments are due by October 18.

August 16

In the DGR Associates protest, the Court of Federal Claims castigated the Air Force in the strongest possible language for ignoring the GAO and court's views and the applicable statute in awarding a contract as an 8(a) set-aside without considering giving preference to a HUBZone procurement when there was a reasonable likelihood that two or more qualified HUBZone firms would submit offers and award could be made at a fair and reasonable price.  The court overturned the award and required to agency to consider the HUBZone procurement before proceeding further. The court also rejected the agency's allegation that the protest was untimely under Blue & Gold, Fleet because it was filed after proposals were due. The court noted that the protester (i) had initially filed a timely GAO protest, which satisfied the timeliness requirement and (ii) was in court only because the agency had ignored the GAO's decision in favor of the protester.

August 14

DFARS Case 2006-D057 (Excessive Pass-Through Charges): a correction has been issued to the final rule (discussed at the August 10 entry below), which had incorrectly removed and reserved two C.F.R. sections.  

August 13

The ASBCA published its July decisions in a bundle. 

In Kaman Precision Products, the Board refused the Government's request to stay proceedings on an appeal from a default termination (and related claims) during the pendancy of an FCA claim against the contractor in district court. The Board reasoned that the stigma associated with a default termination that did not involve the allegations in the FCA suit outweighed the Government's interest in the stay. (The Board did permit a brief stay on one issue directly related to the FCA suit).

The Board dismissed Corners and Edges' appeal on the bases of res judicata and collateral estoppel. It also denied the Government's motion for reconsideration in  Job Options because the Government merely rehashed arguments it already had made. 

In The Minesen Co., the Board dismissed an appeal because the agency's allegedly continuing failure to cure an alleged breach at issue in another pending appeal did not create new claim that could be appealed separately.

In Thorington Electrical and Construction Co., the Board denied a performance and payment bond surety's motion to intervene in an appeal because the surety was not a contractor with respect to the claims involved in the appeals.

In J. P. Donovan Construction., the Board dismissed the entire claim as lacking a sum certain because the contractor stated it would be adding an approximate amount of G&A expenses onto its subcontractor's sum certain claim.

In United Healthcare Partners, the Board held that, despite the fact that a solicitation was labeled as an "RFQ," repeated and clear language in the document indicated the requested quote would become part of a bilateral contract. The Board noted that the Government's contrary view would result in an unreasonable interpretation that would permit it to order a significant number of increased services for free.

Senate Builders & Construction Managers involves a construction contract and issues of  contract interpretation, as well as a finding that the contractor failed to make timely inquiry concerning a patent ambiguity in the specifications.

In Northrop Grumman Systems Corp, Space Systems Division, the Board held that (i) an alternative legal theory first raised in post-hearing briefs but based on the same operative facts as the theory in original claim was not a new claim; (ii) it lacked jurisdiction over an "improper exercise of option" claim because that claim was not encompassed by the claim submitted to the Contracting Officer; and (iii) a portion of an appeal involving allegations not stated in a sum certain was severable from the remainder of claim and, therefore, did not require dismissal of the entire claim. Turning to the merits, the Board found that no government actions or inactions (including remaining silent and nodding during the contractor's presentation and shaking hands with him afterwards) created a binding contract.

In General Dynamics Ordnance and Tactical Systems, the ASBCA held it had the authority to (and, therefore, did) grant appellant's request for a protective order allowing it access to certain discovery materials involving trade secrets, but then stayed that decision for 60 days to allow the Government to assess its litigation options, including a possible appeal to the Federal Circuit.

Anybody else remember the good old days (around the time I routinely walked ten miles to school barefoot in the snow) before the "improvements" wrought by the CDA, when the vast majority of board decisions were on the merits? 

August 12

The Interior Department has adopted as final an interim rule amending its Acquisition Regulation (the "DIAR") at 48 C.F.R. Chapter 14.

GSAR Case 2008-G511: Effective September 13, the GSA is amending GSAR Part 541 (Acquisition of Utility Services) by adding two clauses specific to utility services: the "Availability of Funds" clause, which replaces the corresponding FAR clause, and the "Disputes" clause, which supplements the FAR clause.

August 11

The State Department proposes to amend the ITAR to relax requirements placed on end-users to include information concerning employment of dual-nationals and third-country nationals in export licenses. Comments are due by September 10.  

The SBA has issued a final rule to permanently adopt the current temporary size standard implemented under the American Recovery and Reinvestment Act that is now in effect through September 30, 2010 for the Surety Bond Guarantee Program, which provides that a business concern is small if such concern, combined with its affiliates, does not exceed the size standard for the NAICS code that corresponds to the primary industry of the business concern combined with its affiliates.

August 10

DFARS Case 2008-D034 (Management of Unpriced Change Orders) is a final rule that adds new policy to address section 812 of the National Defense Authorization Act for Fiscal Year 2010 by  amending the DFARS to make requirements for DoD management and oversight of unpriced change orders consistent with those that apply to other undefinitized contract actions.

DFARS Case 2006-D057 (Excessive Pass-Through Charges) is a final rule to delete the interim DFARS language implementing section 852 of the National Defense Authorization Act for Fiscal Year 2007 (which requires that pass-through charges on contracts or subcontracts that are entered into for or on behalf of DoD are not excessive in relation to the cost of work performed by the relevant contractor or subcontractor) because the interim language was made obsolete with the publication of the FAR interim rule at 74 FR 52853 on October 14, 2009.

DFARS Case 2009-D024 (Reporting of Commercially Available Off-the-Shelf Items that Contain Specialty Metals--Deletion of Obsolete Clause) is a final rule amending the DFARS to delete the requirement for contractors to report commercially available off-the-shelf items that contain foreign specialty metals and are incorporated into noncommercial end items.

In its decision on quantum, the Court of Federal Claims awarded Englewood Terrace Limited Partnership contract damages for HUD's breach of a housing assistance payment (HAP) contract but rejected the contractor's claim for "lost equity damages" for failure of proof. In Peninsula Group Capital Corp., the same court found it lacked jurisdiction over a dispute because the parties had never finalized a written contract at the conclusion of negotiations. In Croman Corp., the court refused to allow the Government to re-open discovery six months after it had closed, in order to explore possible fraud counterclaims the Government claimed it belatedly noticed in reviewing responses to the original discovery requests.

August 7

In PAI Corp. v. United States , the Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims' opinion and denied a claim that the procuring agency had failed to follow applicable regulations in documenting and mitigating organizational conflicts of interest because the Contracting Officer reasonably determined (after certain corrective actions had been completed) that no "significant" conflict of interest remained.

August 6

Effective September 20, the SBA is extensively revising its rules of practice at 13 C.F.R. 134 for cases before the SBA's Office of Hearings and Appeals, inter alia: (i) to codify the OHA’s longstanding practices on access to appeal files and protective orders as well as its practice of citing its prior decisions as precedent; (ii) to permit the filing and service of pleadings by e-mail; (iii) to limit the number of pages for each appeal petition unless the OHA approves otherwise in advance; (iv) to clarify the time period for filing an appeal; and (v) to  promote the use of alternative dispute resolution procedures.

The DoD has published Civilian Personnel Per Diem Bulletin Number 269, 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 Possessions of the United States.

Is the Court of Federal Claims going soft on us? I still remember the clerk rejecting one of my filings in the first case I ever tried at the CoFC's predecessor in the early 80s simply because he did not approve the aesthetics of the way I bound it. Now, in Gonzalez-McCaulley Investment Group, the court (over the Government's objection) has granted one plaintiff leave to amend a complaint that failed to include many of the jurisdictional allegations required by the rules for both a CDA claim and a bid protest.  P.S. I finally found a binding that satisfied the clerk and made the filing on time . . . on my third try. 

In FAS Support Services, the Court of Federal Claims held that the Government did not err in refusing to reinstate a bidder to a competition after the bidder had been (i) suspended and dropped from the competition because its 49% owner was de-barred but then (ii) removed from the suspension list after it divested itself of the de-barred firm. The court noted, inter alia, that the post-divestiture firm was a significantly different entity, which was too big a change for the Government to be required to re-assess in mid-competition.

In Tenderfoot Equipment Services , the CBCA held it lacked CDA jurisdiction over appeal based on Government's refusal to offer services to a firm under an emergency equipment rental agreement because the agreement was a BPA, which, without more, is not a contract.

August 4

Effective August 19, the SBA is granting a class waiver of the Nonmanufacturer Rule for Not-Portable, Liquid Chromatography Mass Spectrometry (CS–MS) Systems, High Performance Liquid Chromatography (HPLC) Systems, Gas Chromatography Mass Spectrometry (GC–MS) Systems, and, Inductively Coupled Plasma Mass Spectrometry (ICP–MS) Systems under Product Service Code (PSC) 6640 (Laboratory Equipment and Supplies), under North American Industry Classification System (NAICS) code 334516 (Analytical Laboratory Instrument Manufacturing).

The State Department is amending the ITAR to require electronic submission of a request for a commodity jurisdiction determination using "Commodity Jurisdiction (CJ) Determination Form" (Form DS–4076).

July 31

In the latest Todd Construction decision, the Court of Federal Claims held that, although contractors may have CDA claims against government performance evaluations that do not comply with FAR 36.201, Todd failed to allege a causal connection between the Government's alleged procedural flaws in conducting the evaluation and any injury to Todd (i.e., an error in the final evaluation rating). The court also concluded there was no abuse of discretion by the Government in its ultimate finding that plaintiff's performance was unsatisfactory. 

July 30

Two Court of Federal Claims decisions on bid protests were published. In Infiniti Information Solutions, the court denied a government motion for relief from the court's prior decision sustaining a bid protest and directing the Government to set-aside an improper contract award (the Government apparently having ignored that prior decision and having failed to request reconsideration or to appeal within the required time periods). In Diversified Maintenance Systems, a protest of an award on a HUBZone set-aside, the court discussed the standards for allowing discovery in a bid protest and permitted limited discovery concerning the issue whether the awardee qualified as a HUBZone business.

The SBA's OHA published three size decisions. In Silver Enterprises Assocs., the OHA affirmed an Area Office size determination because the probative value of signed statements provided under penalty of perjury by the challenged firm outweighed the general allegations of the protester.  In Incisive Technology, the OHA found that a firm's almost total dependence on subcontracts with one large firm for  revenues created affiliation through economic dependence. In  Condor Reliability Services, the OHA concluded the Area Office was correct in finding affiliation by identity of interest among family members absent evidence of a clear line of fracture.

The OHA also decided in United Medical Design Builders, LLC, that a firm was not qualified as an SDVOSB because, under its operating agreement, the service-disabled veteran could not be considered the managing member of the LLC and did not control its management and daily business operations.

July 29

In denying the Government's motion for summary judgment in ALK Services, the CBCA noted that ordering the minimum quantity in an ID/IQ contract does not automatically insulate the Government from a claim of breach of the covenant of good faith and fair dealing for failure to  consider the contractor  for additional work.

In Scott Timber, the Court of Federal Claims decided to allow testimony from a remote site via videoconference from a witness who was too far from Washington to travel easily to the hearing. The court also granted a motion to exclude all other persons from the room from which the witness would be testifying to avoid any possible prejudice from having representatives of one party, but not the other, present during the testimony.

July 27

AMEC Earth & Environmental won its GAO protest because the agency failed to conduct meaningful discussions and treated offerors unequally in its evaluation. Specifically, the agency failed to apprise the protester of weaknesses in its proposal to the same extent the agency did so with all other offerors and failed to evaluate other offerors' neglect to identify an issue required by the solicitation that the protester had reasonably identified based on publicly available information.

July 24

In G & R Service Co. , the CBCA dismissed an appeal for lack of jurisdiction because the underlying demands for "not-to-exceed" amounts did not constitute a CDA claim for a sum certain.

July 23

The GAO sustained a protest by System Engineering International because the agency only included two higher-rated, higher-priced quotations in its price/technical tradeoff analysis when lower-priced, lower-rated quotations were technically acceptable. 

The Office of Federal Contract Compliance Programs (OFCCP) is inviting the public to provide input on how OFCCP can strengthen the affirmative action requirements of the regulations implementing section 503 of the Rehabilitation Act of 1973, as amended in order to help increase the employment opportunities of people with disabilities in the federal contracting sector. Comments are due by September 21.

The SBA's OHA published five size decisions. In Judson Builders, it affirmed the decision of the Area Office because, as required by the applicable regulation, the Area Office relied on tax returns filed by a firm before it self-certified, instead of amended returns filed after the initiation of a size determination. In PMTech, the OHA remanded a case to Area Office for additional findings because it had not included sufficient information in its original size determination to enable the OHA to evaluate the Area Office's conclusions concerning the total average employee count of the protested firm and its affiliates. In Specialized Veterans, the OHA upheld a finding of affiliation through the totality of circumstances, including the provision of technical and financial assistance, e.g., enabling the protested firm to obtain required bonding. In Glen/Mar Construction, the OHA found a firm whose offer had been eliminated from competition as technically unacceptable lacked standing to protest the awardee's size. Similarly, in Reams Enterprises , a firm whose offer had been eliminated from competition for reasons unrelated to size lacked standing to protest the awardee's size.

July 22

In Office Design Group, the SBA's OHA upheld an SBA decision that a firm was not eligible for the 8(a) business development program because the disadvantaged individual on whom it based its claimed status did not hold its highest officer position and a non-disadvantaged officer received higher compensation than did the disadvantaged individual.

July 21

The SBA's OHA issued one size decision and three VET decisions. In Forterra Systems, the OHA found affiliation based on the presumption of ownership and control by two shareholders holding 28.74% and 17.32% of voting stock (pursuant to 13 C.F.R. 121.103(c)(2)). In the belatedly published, but still interesting, NEIE Medical Waste Services, the SBA had dismissed an SDVOSB eligibility protest as untimely because it was not submitted within five days of bid opening in a sealed bid procurement. The OHA remanded the case for a determination whether the protester was correct in its allegation that, regardless how the acquisition was labeled, it was not conducted according to sealed bid procedures. The OHA noted that, if the protester's allegations were correct, the timeliness rule would not apply. On the other hand, in Excelsior Defense, the OHA affirmed a dismissal (as untimely) of a protest  in a negotiated procurement filed more than five days after receipt of notice from the Contracting Officer of the apparently successful offeror.

July 20

Effective August 4, the SBA is granting a class waiver of the nonmanufacturer rule for Configured Tape Library Storage Equipment, Product Service Code (PSC) 7025 Automated Data Processing (ADP) Input/Output and Storage Devices, PSC 7035 ADP Support Equipment, and PSC 7045 ADP Supplies, under the North American Industry Classification System (NAICS) code 334112 (Computer Storage Device Manufacturing).

The Bureau of International Labor Affairs in the Department of Labor has updated the list required by Executive Order No. 13126, entitled "Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor,"  in accordance with the "Procedural Guidelines for the Maintenance of the List of Products Requiring Federal Contractor Certification as to Forced or Indentured Child Labor," to set forth the latest list of products, by country of origin, which the Departments of Labor, State and Homeland Security have a reasonable basis to believe might have been mined, produced, or manufactured by forced or indentured child labor. Federal contractors who supply products on this list are required to certify, among other things, that they have made a good faith effort to determine whether forced or indentured child labor was used to produce the item.

July 18

In the important Turner Construction Co. bid protest decision, the Court of Federal Claims held that the agency lacked a rational basis for following a GAO recommendation that the court considered irrational. The GAO had concluded that an awardee should have been disqualified for an organizational conflict of interest, and the agency decided to follow that recommendation. The awardee then filed suit, and the court found that the GAO had impermissibly substituted its judgment for the agency's original judgment concerning the absence of a conflict of interest. The court's decision is instructive for its discussion of the various types of OCIs and for its analysis of the standard of review the GAO should use in assessing an agency's determination concerning an OCI and the court's standard of review in assessing both a GAO recommendation and an agency's decision to follow that recommendation. This one is headed to the Court of Appeals for the Federal Circuit--see the September 24 entry above.

July 16

When NASA complied with the Court of Federal Claims' decision in the original Wackenhut protest and corrected errors in the evaluation, it awarded the contract to Wackenhut. The original awardee, Coastal International Security, then protested, but failed to convince the court (i) that the agency's use of a staffing benchmark instead of an independent government staffing estimate for part of the technical evaluation was improper or (ii) that the SSA was required to follow the details of the SEB's findings.

July 15

Effective August 16, the GSA is revising Part 516 ("Types of Contracts") of the GSAR to clarify the requirements for the use of each type of contract.

HSAR Case 2009-003 ("Lead System Integrators") is an interim rule amending the Homeland Security Acquisition Regulation (HSAR) to implement section 6405 of the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, which restricts contractors from acting as lead system integrators in the acquisition of DHS major systems if they have direct financial interests in the development or construction of any individual system or element of any system of systems they integrate (subject to stated exceptions). Comments are due by August 16.

The Bureau of Industry and Security is issuing a final rule that (i) updates and clarifies export and reexport license requirements on striking weapons, restraint devices, shotguns and parts, optical sighting devices, and electric shock devices and (ii) adds equipment designed for the execution of humans to the Commerce Control List.

July 14

Effective July 29, the SBA is granting a waiver of the nonmanufacturer rule for Herbicides, Insecticides, and Fungicides (PSC 6840, under NAICS code 325320).

The GSA has issued a proposed rule revising Part 102-38 of the Federal Management Regulation (FMR) by amending the provisions for the sale of personal property through Federal Asset Sales (FAS) Sales Centers. Comments are due by August 13.

The State Department's Bureau of Verification, Compliance, and Implementation has published a list of foreign persons and firms banned from selling to the Government, receiving FMS items or services, or obtaining items on the Munitions Control List because of violations involving the Iran, North Korea, and Syria Nonproliferation Act.

July 13

DFARS Case 2009-D020 is an interim rule amending the DFARS to bring DoD into compliance with the OMB's implementation of the Prompt Payment Act by exempting military contingencies, and certain payments related to emergencies and the release or threatened release of hazardous substances. Comments are due by September 13.

DFARS Case 2009-D036 is an interim rule amending the DFARS  to implement section 814 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84), which requires agency heads to notify the congressional defense committees within 30 days after making any determination to award a task or delivery order exceeding $100 million to a single source. In addition, if the task or delivery order concerns DOD intelligence activities, the agency head also is required to provide notification within 30 days of the determination to the Permanent Select Committee on Intelligence of the House of Representatives if the order relates to tactical intelligence and intelligence related activities, and to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives if the order relates to intelligence and intelligence-related activities other than those activities previously mentioned. Comments are due by September 13.

DFARS Case 2009-D033 is an interim rule amending the DFARS to implement section 820 of the National Defense Authorization Act for Fiscal Year 2010, entitled ‘‘Publication of Notification of Bundling of Contracts of the Department of Defense,’’ which requires DoD contracting officers (i) to publish a notification consistent with the requirements of FAR 10.001(c)(2) on FedBizOpps.gov, or any successor site, at least 30 days prior to the release of a solicitation for a bundled acquisition and (ii) if the DoD agency has determined that measurably substantial benefits are expected to be derived as a result of bundling, to include within the notification a brief description of those benefits. The acquisitions covered by section 820 are defined at 820(b) as those that are funded entirely by DoD funds and covered by FAR 7.107. Comments are due by September 13.

July 9

Three CBCA decisions were published. In Walsh/Davis Joint Venture, the CBCA denied the Government's motion to reconsider the Board's earlier decision refusing to dismiss a claim for lack of jurisdiction. The Government argued that it had not been presented to the Contracting Officer for a decision. The Board concluded it was based on the same operative facts as a claim that had been. In Pearson E. Dubar, which the Board described as nonprecedential, the CBCA dismissed an appeal for lack of jurisdiction because there was no underlying contract--oral assurances by a government official who was not a Contracting Officer did not create a contract. In Global Ship Systems, the Board dismissed an appeal because the Government fulfilled terms of a settlement agreement even though it applied amount owed to contractor to offset the contractor's debt on another contract.

July 8

In Lasmer Industries, the ASBCA held that the Government's rescission of a claim, which resulted in the Board's dismissal of the contractor's appeal, did not make the contractor a "prevailing party" entitled to and EAJA award.

In Colonna's Shipyard, the ASBCA distinguished what it cannot do (grant a request for specific performance or injunctive relief, e.g., by ordering the Government to change a contractor's performance rating) from what it can do (determine whether a particular performance rating breached a contract requirement or provision).

In ALKAI Consultants, the ASBCA determined some of the types of costs that are recoverable under the commercial items "Termination for Convenience" clause (FAR 52.212-4).

FAC 2005-44 has been published. It includes one item:

FAR Case 2008-039, entitled "Reporting Executive Compensation and First-Tier Subcontract Awards," is an interim rule (whose reporting requirements will be implemented in phases) that amends the FAR to implement section 2 of Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109-82), as amended by section 6202 of the Government Funding Transparency Act of 2008 (Pub. L. 110-252), which requires the OMB to establish a free, public, website containing full disclosure of all federal contract award information. This interim rule eventually will require contractors to report executive compensation and first-tier subcontract awards on contracts and orders expected to be $25,000 or more (including all options), except classified contracts and contracts with individuals. This information will be available to the public. The phased reporting requirements are as follow. Until September 30, 2010, any newly awarded subcontract must be reported if the prime contract award amount was $20,000,000 or more. From October 1, 2010, until February 28, 2011, any newly awarded subcontract must be reported if the prime contract award amount was $550,000 or more.  Starting March 1, 2011, any newly awarded subcontract must be reported if the prime contract award amount was $25,000 or more. Comments are due by September 7.

July 7

Allied Technology Group won a preliminary skirmish in its protest at the Court of Federal Claims, but lost the war. The court rejected the Government's argument that the protester lacked standing because its proposal had been evaluated as technically disqualified. However, the company lost on the merits because it was not prejudiced by any of the alleged errors in the procurement (i.e., it would not have been in line for award because of its huge price disadvantage).

July 6

I have added a page providing an introduction to GAO protests, including links to successful protests of each of the most common grounds for protest. 

July 2

FAC 2005-43 has been published. It includes the following five items:

Item I (FAR Case 2008-011) entitled "Government Property" is a final rule effective August 2 amending FAR Part 45 (Government Property) and its associated contract clauses.

Item II (FAR Case 2008-035) entitled "Registry of Disaster Response Contractors" is a final rule effective August 2 adopting, without changes, the prior interim rule amending the FAR to implement the Department of Homeland Security Appropriations Act, 2007, section 697, which requires the establishment and maintenance of a registry of disaster response contractors.

Item III (FAR Case 2010-008) entitled "Recovery Act Subcontract Reporting Procedures" is an interim rule revising the FAR clause at 52.204-11 to (i) to require first-tier subcontractors with Recovery Act funded awards of $25,000 or more, to report jobs information to the prime contractor for reporting into http://FederalReporting.gov and (ii) to require the prime contractor to submit its first report on or before the 10th day after the end of the calendar quarter in which the prime contractor received the award, and quarterly thereafter. Comments are due by August 31.

Item IV (FAR Case2008-023) entitled "Clarification of Criteria for Sole Source Awards to Service-disabled Veteran-owned Small Businesses" is a final rule effective August 2 that revises the language in FAR 19.1306(a)(1), which deals with sole source awards to HUBZone small business concerns based on 15 U.S.C. 657a(b), to match the language in FAR 19.1406(a)(1) to alleviate confusion on the appropriate use of the criteria needed to conduct a sole source SDVOSB concern acquisition.

Item V (FAR Case 2009-040) entitled "Trade Agreements Thresholds" is an interim rule amending the FAR to incorporate increased thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative. Comments are due by August 31.

July 1

The SBA is considering granting a class waiver of the Nonmanufacturer Rule for Liquid Chromatography Mass Spectrometry Systems (CS–MS), High Performance Liquid Chromatography (HPLC) Systems, Gas Chromatography Mass Spectrometry (GC–MS) Systems, and Inductively Coupled Plasma Mass Spectrometry (ICP–MS) Systems under Product Service Code (PSC) 6640 (Laboratory Equipment and Supplies), under NAICS code 334516 (Analytical Laboratory Instrument Manufacturing). Comments are due by July 16.

The DOE is proposing to (i) remove its Contract Appeals regulation, which implements DOE’s contract appeals procedures and (ii) amend the DEAR Subchapters A--General, B--Acquisition Planning, and C--Contracting Methods and Contract Types, to make changes to conform to the FAR, remove out-of-date coverage, and update references. Comments are due by August 2.

June 30

The BIS proposes to amend the EAR by adding ECCN 6A981 to the CCL to control passive infrasound sensors because of their military and commercial utility. Items under this new ECCN will be controlled for Regional Stability (RS) and Anti-Terrorism (AT) reasons. In addition, BIS proposes to control technology and software for the development, production, or use of these items for RS and AT reasons under revised ECCNs 6D991 and 6E991, respectively. Comments are due by August 30.

For the period July 1 through December 31, the Prompt Payment Act interest rate is 3 1/8%.

The ASBCA denied the request for reconsideration by American Renovation and Construction Co. concerning the Board's earlier decision upholding the Government's revocation of acceptance of the contractor's work despite its claims of defective specifications.

June 28

The Bureau of Industry and Security has made more changes to the EAR as a result of its comprehensive review of the CCL.

The Information Security Oversight Office of the National Archives and Records Administration has published a Directive as a final rule implementing E.O. 13526 regarding classifying, safeguarding, and declassifying national security information

In Ron Anderson Construction Co., the CBCA denied the Government's motion to dismiss the contractor's appeals for lack of subject matter jurisdiction. The Board concluded from the "totality of the circumstances" that a request for a decision by the Contracting Officer was implied in the contractor's original cost proposals.

June 24

Three ASBCA decisions were published. In Qatar International Trading Co., the Board denied the contractor's claim for fraudulent phone charges on illegal clones of satellite phones the contractor had provided to the Government. In DWBH Services, the Board denied a claim that maintaining lawns in areas where housing was demolished during contract performance was outside the scope of the contract. The Board also rejected a contractor's request for a mistrial based on its contention that the Government, inter alia, had tampered with the hearing transcript.

June 23

DFARS Case 2010-D010: DoD has issued an interim rule implementing revisions to DoD Directive-Type Memorandum 09–019, entitled "Policy Guidance for Foreign Ownership, Control, or Influence (FOCI)," which revises the description of communications security material that is "proscribed information."

June 22

The GAO sustained two protests. Contrack International won its protest because the agency knew of adverse past performance information concerning the awardee but failed to consider it. The GAO also sustained a protest by  Brican Inc. because the agency failed to credit it in the areas of past performance and experience for proposing the same subcontractor that the awardee had been rewarded for proposing.

June 21

The CBCA was unpersuaded by a contractor's contentions that its change of counsel and its counsel's illness excused its failure to file a timely request to reconsider an order dismissing an appeal for failure to prosecute

DFARS Case 2008-D024: DoD is adopting as final, with changes, an interim rule amending the DFARS to implement determinations made by the Under Secretary of Defense for Acquisition, Technology, and Logistics with regard to the acquisition of items containing para-aramid fibers and yarns manufactured in foreign countries that have entered into a reciprocal defense procurement memorandum of understanding with the United States.

DFARS Case 2008-D006 is an interim rule implementing section 828 of the National Defense Authorization Act for Fiscal Year 2008, which authorizes the Secretary of Defense to enter into a contract for a period not to exceed 10 years for the purchase of electricity from sources of renewable energy. Comments are due by August 20.

June 18

In M. Maropakis Carpentry, the Court of Appeals for the Federal Circuit, over a vigorous dissent, affirmed the Court of Federal Claims and held "that a contractor seeking an adjustment of contract terms must meet the jurisdictional requirements and procedural prerequisites of the CDA, whether asserting the claim against the government as an affirmative claim or as a defense to a government action." More than 30 years after the effective date of the CDA, we still are embroiled in disputes like this because the CDA's authors neglected to define its key term, i.e., a "claim."

In Paradigm Learning, the Court of Federal Claims held it had CDA jurisdiction over a claim that the Government breached a schedule contract by disclosing proprietary information included in delivered items under the contract in violation of the contract and a related nondisclosure agreement. In Allstar Mayflower , the court held that a claim for reimbursement of PowerTrack Fees under transportation services contracts was governed by the three-year statute of limitations of the Interstate Commerce Act rather than by the six-year statute of the CDA.

June 16

Federal Acquisition Circular (FAC) 2005-42 has been published. It includes the following 11 items plus technical amendments:

Item I (FAR Case 2009-012) entitled "American Recovery and Reinvestment Act of 2009--Whistleblower Protections" is a final rule adopting (with changes) the interim rule amending the FAR to implement section 1553 of Division A of the Recovery Act ("Protecting State and Local Government and Contractor Whistleblowers") by prohibiting non-Federal employers from discharging, demoting, or discriminating against an employee as a reprisal for disclosing information.

Item II (FAR Case 2005-040) entitled "Electronic Subcontract Reporting System (eSRS)" is a final rule amending the FAR to require that contractors’ small business subcontract reports be submitted using the Electronic Subcontracting Reporting System (eSRS), rather than Standard Form 294 - Subcontract Report for Individual Contracts and Standard Form 295 - Summary Subcontract Report.

Item III (FAR Case 2009-010) entitled "American Recovery and Reinvestment Act of 2009--Publicizing Contract Actions" is a final rule adopting (with changes) an interim rule amending the FAR to implement OMB Memorandum M-09-10, entitled "Initial Implementing Guidance for the American Recovery and Reinvestment Act of 2009," (the Recovery Act) with respect to publicizing contract actions, which has since been supplemented, amended, and clarified by Memorandum M-09-15.

Item IV (FAR Case 2008-003) entitled "Public Disclosure of Justification and Approval Documents for Noncompetitive Contracts--Section 844 of the National Defense Authorization Act for Fiscal Year 2008" is a final rule adopting (with changes) an interim rule amending the FAR to implement section 844 of the 2008 National Defense Authorization Act, which details the requirements for the public availability of justifications and approvals after the award of of a federal contract.

Item V (FAR Case 2008-007) entitled "Additional Requirements for Market Research" is an interim rule amending the FAR to implement section 826 of the National Defense Authorization Act for Fiscal Year 2008, which established additional requirements in subsection (c) of 10 U.S.C. 2377 that, as a matter of policy, are extended to all executive agencies. Specifically, the head of the agency must conduct market research before issuing an ID/IQ task or delivery order for a noncommercial item in excess of the simplified acquisition threshold, and a prime contractor with a contract in excess of $5 million for the procurement of items other than commercial items is required to conduct market research before making purchases that exceed the simplified acquisition threshold for or on behalf of the Government. Comments are due by August 16.

Item VI (FAR Case 2009-011) entitled "American Recovery and Reinvestment Act of 2009--GAO/IG Access" is a final rule adopting (with changes) an interim rule amending the FAR to implement sections 902, 1514, and 1515 of the Recovery Act.

Item VII (FAR Case 2009-014) entitled "New Designated Country--Taiwan" is a final rule adopting (without change) an interim rule amending the FAR to add Taiwan as a designated country, due to the its accession to membership in the World Trade Organization Agreement on Government Procurement.

Item VIII (FAR Case 2009-013) entitled "Nonavailable Articles" is a final rule amending the FAR to revise the list of articles determined to be domestically nonavailable.

Item IX (FAR Case 2009-025) entitled "Disclosure and Consistency of Cost Accounting Practices for Contracts Awarded to Foreign Firms" is an interim rule amending the FAR to align it with the revised CAR Board clause entitled "Disclosure and Consistency of Cost Accounting Practices--Foreign Firms." Comments are due by August 16.

Item X (FAR Case 2009-026) entitled "Compensation for Personal Services" is an interim rule amending the FAR to align it with revised CAS 412 ("Cost Accounting Standard for composition and measurement of pension cost") and 415 ("Accounting for the cost of deferred compensation"). Comments are due by August 16.

Item XI (FAR Case 2009-018) entitled "Payrolls and Basic Records" is an interim rule revising the FAR "Payrolls and Basic Records" clause to implement a DOL rule to protect the privacy of workers. Comments are due by August 16.

In Northrop Grumman Computing Systems, the Court of Federal Claims denied cross motions for summary judgment in a dispute involving an alleged government breach of a contract to lease surveillance software to the Department of Homeland Security.

June 15

The DOE is proposing to amend the DEAR to (i) make changes to conform to the FAR, (ii) remove out-of-date coverage, and (iii) update references. Comments are due by July 15.

DoD is extending the comment period to July 21 on its proposed rule to amend the DFARS to implement section 207 of the Weapons System Acquisition Reform Act of 2009.

The Bureau of Industry and Security (BIS) has issued a final rule making technical amendments to the EAR to  delete references concerning federal court jurisdiction for judicial review of final decisions and orders issued in BIS export control administrative enforcement proceedings and in administrative appeals of BIS temporary denial orders.

June 14

Pursuant to President Obama's April 26 Memorandum regarding enhancing the use of small businesses in federal contracting (see entry at April 29 below), interested parties are invited to offer their views concerning (i) removing barriers to small business participation in federal contracting; (ii) using innovative strategies and technologies to increase opportunities for small business contractors; and (iii) identifying successful agency and private sector outreach practices for matching small businesses with contracting and subcontracting opportunities. A public meeting on these issues will be held on June 28 in the auditorium of the Department of Commerce at 1401 Constitution Avenue NW, Washington, D.C.

June 11

DFARS Case 2009-D010: The DoD has adopted, as final, an interim rule amending the DFARS to add Taiwan as a designated country, due to the accession of Taiwan to membership in the WTO's Government Procurement Agreement.

DFARS Case 2009-D025: The DoD proposes to relocate the requirements for conducting a Contractor Insurance/Pension Review from Procedures, Guidance, and Information to the DFARS. Comments are due by August 10.

The Navy is withdrawing the notice it previously published announcing a Preferred Supplier Program. See entry at May 25 below.

The Air Force lost its appeal to the Federal Circuit of the ASBCA's decision in the Lockheed Martin case concerning whether the F-22 contract was an "affected CAS-covered contract" within the meaning of FAR 30.602(3)(1993) concerning a change in cost accounting practices.

June 10 GSAR Case 2008-G503: The GSA has published a final rule revising Part 505 of the GSAR, entitled "Publicizing Contract Actions."

Pitney Bowes Government Solutions convinced the Court of Federal Claims to allow additional discovery in its protest because the court was satisfied Pitney Bowes had shown there were indicia of bias and favoritism by the head of the TEP and because the Government had violated FAR Subpart 4.8 by destroying the individual TEP evaluators' worksheets.

The SBA's OHA has published numerous decisions, including seven new size decisions, five of which reverse decisions by the Area Office. For example, in PRO SERVICES--Teltara Joint Venture, the OHA decided the Area Office did not adequately investigate indicia of affiliation.

The SBA also issued two VET decisions, in one of which it decided that a protest alleging that an owner was not a service-disabled veteran should not have been dismissed as insufficiently specific. In another, the OHA concluded an Operating Agreement did not establish 51% unconditional and direct ownership by a service-disabled veteran. The SBA also issued two BDP decisions and a NAICS decision.

June 9

JER 370 Third Street won its GAO protest because the agency lacked rational basis for canceling the solicitation.

The DOE proposes to amend the DEAR on Management and Operating Contracts to make changes to conform to the FAR, remove out-of-date coverage, and update references. Comments are due by July 9.

The DHS adopted the amendments to its Homeland Security Acquisition Regulation that were issued under an interim rule on August 17, 2009, as final, without change, to implement a statute limiting the acquisition of products containing textiles from sources outside the United States.

In HSAR Case 2009-005, entitled "Limitations on Subcontracting in Emergency Acquisitions," the DHS proposes a rule to implement a statutory requirement limiting the use of subcontractors on cost-reimbursement type contracts entered into by the Department to facilitate the response to or recovery from a natural disaster or act of terrorism or other man-made disaster. Comments are due by August 9.

June 8

Several interim, final, and proposed DFARS regulations have been published--

DFARS Case 2009-D040, entitled "Trade Agreements Thresholds," is an interim rule to incorporate increased thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative. Comments are due by August 9. 

DFARS Case 2009-D034, entitled "Contract Authority for Advanced Component Development or Prototype Units," is an interim rule to implement section 819 of the National Defense Authorization Act for Fiscal Year 2010, which places limitations on certain types of line items and contract options that may be included in contracts initially awarded pursuant to competitive solicitations and, in certain circumstances, limits the dollar value, period of performance, and time for exercise of such contract line items or contract options. Comments are due by August 9.

DFARS Case 2009-D027, entitled "Limitations on Procurements with Non-Defense Agencies," is an interim rule to implement section 806 of the National Defense Authorization Act for Fiscal Year 2010 authorizing the placing of contracts for property and services in excess of the simplified acquisition threshold by certain non-DoD agencies for the performance of a joint program conducted to meet the needs of DoD and the non-DoD agency. Comments are due by August 9.

DFARS Case 2009-D022, entitled "Finland--Public Interest Exception to the Buy American Act," is a final rule issued to reflect a determination by the Secretary of Defense that it is inconsistent with the public interest to apply the restrictions of the Buy American Act to the acquisition of articles, materials, and supplies produced or manufactured in Finland.

DFARS Case  2007-D011, entitled "Letter Contract Definitization Schedule," is a final rule adopting, without changes, a proposed rule amending the DFARS to 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 contract actions.

DFARS Case 2007-D009, entitled "Ground and Flight Risk Clause," is a final rule amending the DFARS to revise and combine contract clauses addressing assumption of risk of loss under contracts that furnish aircraft to the Government so that the requirements will apply consistently to all contract types.

DFARS Case 2009-D041, entitled "Balance of Payments Program Exemption for Commercial Information Technology," is a proposed rule that would amend the DFARS to implement the exemption from the Balance of Payments Program for construction material that is commercial information technology. Comments are due by August 9.

 

The SBA has granted a waiver of the nonmanufacturer rule for Liquid Propane Gas, NAICS Code 325120, PSC 6830. 

June 7

The SBA is considering granting a class waiver of the nonmanufacturer rule for Configured Tape Library Storage Equipment, PSC 7025 ADP Input/Output and Storage Devices, 7035 ADP Support Equipment, and 7045 ADP Supplies, under NAICS code 334112 (Computer Storage Device Manufacturing). Comments are due by June 22.

The Bureau of Industry and Security has proposed various changes to the DPAS regulations. Comments are due by July 7.

June 4

Effective July 6, the Bureau of Indian Affairs in the Interior Department and the Indian Health Service in HHS are making belated technical amendments to their joint regulations governing contracts and annual funding agreements under the Indian Self-Determination and Education Assistance Act to reflect, among other things, the dissolution of the Interior Board of Contract Appeals in favor of the CBCA.

In Shell Oil, the Court of Federal Claims held that neither the Anti-Deficiency Act nor settlement agreements closing out certain WWII gas production contracts in the late 1940s insulated the Government from liability for CERCLA clean-up costs. The court based its finding on the contracts' "Taxes" clause, which required the Government to reimburse the contractors for "any new or additional taxes, fees, or charges, other than income, excess profits, or corporate franchise taxes, which Seller may be required to pay by any municipal, state, or federal law in the United States or any foreign country to collect or pay by reason of the production, manufacture, sale or delivery of the [avgas]." The court concluded CERCLA clean-up costs were a "charge" within the meaning of that clause. The court concluded that the CERCLA costs could not have been within the contemplation of the close-out settlement agreements because CERCLA costs did not exist at the time those agreements were executed. If that's valid reasoning, then how could CERCLA costs have been within the contemplation of the "Taxes" clause? If they didn't exist for purposes of one provision, they weren't within the contemplation of the other either, were they? ;)

June 3

The fortuitously named (and successful) Magnum Opus protest involves a passel of fascinating issues. The Court of Federal Claims granted a tailored injunction to the protesters after it decided it had bid protest jurisdiction to hear a protest that the Government's decision to exercise options in only four of six ID/IQ contracts was improper because, by eliminating the contracts' NTE pricing from the option awards, the Government did not evaluate the options as exercised as part of the original evaluation, as required by CICA and FAR 17.207(f) (which the court found confers a cause of action upon potential competitors). The court addressed a variety of other issues, including, inter alia, the standing of a firm to proceed with a protest absent its joint venture partner; timeliness and waiver issues; and the parameters for a limited  injunction.

The court awarded plaintiffs approximately $9,000,000 in the Fireman's Fund case, which concerned construction at the Montgomery Point Lock and Dam Project on the White River in eastern Arkansas and various claims involving defective specifications, breach of the covenant of good faith and fair dealing, the responsibility for labor shortages and resulting increased wages, critical path analyses, delay claims, and government counterclaims.

June 2

I have added the protests for 2005 to the Recent Court of Federal Claims Bid Protests page so that it now covers January 2005 to the present. 

May 28

USfalcon lost its post-award protest at the Court of Federal Claims because the court concluded there was a rational basis for the agency's decision to eliminate the firm from the competitive range on the ground that the firm's response to a sample task was unacceptable. The court stressed it would not second guess the technical evaluation, itself.

In Technical Innovation, the agency decided to take corrective action after which the original awardee tried to convince the court to keep the protest on the docket so that it might review that corrective action. The Court of Federal Claims, however, dismissed the original action as moot and concluded the awardee, who was not the original protester, had no standing to keep it alive.

In Benefits Consulting Associates, another post-award protest, the court found that the agency did not engage in misleading discussions with the protester or fail to adequately apprise it of the weaknesses in its proposal.

In Retirement Communities, the court held that a firm's "hope" as to how a lease would be interpreted was not sufficient to vary its plain meaning.

The SBA's OHA published several size decisions, the most interesting one of which is CWU, Inc., in which the OHA upheld the Area Office's determination that a firm violated the ostensible subcontractor rule because, inter alia, it "(1) hired the incumbent contractor; (2) proposed giving the incumbent 49% of the work; (3) did not delineate tasks it would perform or that [the incumbent] would perform on either a task or a cost basis; and (4) proposed to keep all of the incumbent‘s on-site management employees in the same positions as under the previous contract." The OHA concluded "there is little evidence that Appellant planned to contribute anything to the contract other than its size." Ouch.

Busy day. Apparently the Government did not want me to start my holiday weekend early.

The CBCA published two decisions, one of which merits inclusion here.

In Sigal Construction Corp., the CBCA granted the contractor's motion for summary judgment only as to entitlement, finding the contractor entitled to recover lost profits when, after award, Government did not provide it with all the contractually-required, unit-priced work but, instead, sought a better price from another contractor. The Board wrote in part: "The parties agree that by precluding Sigal from performing some of the unit price work, GSA constructively terminated for convenience a portion of the contract. One of the few limitations on the Government’s right to terminate for convenience is that the Government may not terminate simply to get a better price for performing needed work. [citation omitted] That is what GSA did here. It was a breach of the contract."

May 27

The GAO sustained the protest of Ewing Construction Co. because, in taking corrective action on Ewing's prior protest by reevaluating proposals without further discussions, the agency improperly determined that part of Ewing proposal rendered the firm ineligible for award when, under the solicitation's evaluation scheme, such a deficiency should only have resulted in the proposal being downgraded. 

May 26

Effective June 25, the DOE is amending the DEAR Subchapters E (General Contracting Requirements), F (Special Categories of Contracting), and G (Contract Management) to make changes to conform to the FAR, remove out-of-date coverage, and update references.

May 25

The Deputy Assistant Secretary of the Navy, Acquisition and Logistics Management,  is soliciting comments that the Department of the Navy may use in drafting a policy that will establish a Preferred Supplier Program (PSP) under which contractors that have demonstrated exemplary performance at the corporate level, in the areas of cost, schedule, performance, quality, and business relations would be granted Preferred Supplier Status and would, thereby, receive more favorable contract terms and conditions in DON contracts. Comments are due by July 15.

May 24

FAR Case 2009-027 ("Personal Identity Verification of Contractor Personnel"): A proposed rule would revise the FAR to provide additional regulatory coverage in Subpart 4.13 and in clause 52.204–9 to reinforce the requirement of collecting from contractors all forms of government-provided identification once they are no longer needed to support a contract. Comments are due by July 23.

The DOE is proposing to amend the DEAR to (i) revise the applicability and the policies and procedures involving the access to and ownership of records; (ii) to amend various contract clauses for consistent inclusion in all applicable contracts (not just M&O contracts) based on the type of work being performed, to ensure preservation and Government ownership of records; and (iii) to address inconsistencies relating to DOE contractor and subcontractor efforts in managing records in accordance with DOE retention requirements. Comments are due by June 23..

The GAO published a report entitled "Service-Disabled Veteran-Owned Small Business Program: Fraud Prevention Controls Needed to Improve Program Integrity."

May 20

FAR Case 2009-031 ("Terminating Contracts"):   A proposed rule would amend the FAR to, inter alia, clarify the FAR 49.502(a) prescription for the "Termination for Convenience of the Government (Fixed Price) (Short Form)" clause to apprise contracting officers that there are alternative clauses that can be used for terminations up to the simplified acquisition threshold. 

The SBA's OHA published three size decisions and two VET decisions. ONS21 Security Services succeeded in its size protest because the Area Office had no authority to change the NAICS code assigned to a procurement in response to a size protest, at least absent a NAICS code protest, and the protested firm's receipts clearly exceeded the limit established by the NAICS code in the solicitation.  It appears the Area Office really dropped the ball in the size appeal of DynaLantic Corp. because the OHA vacated the Area Office's denial of the size protest and remanded for further investigation of a host of possible violations of the clear fracture and ostensible subcontractor rules and other matters related to possible affiliation. In Corners Construction, the OHA affirmed the determination a firm was not an eligible SDVOSB because its General Partnership Agreement was ambiguous on relevant points, and its service-disabled veteran was not shown to have sufficient experience to control the firm.

May 19

The SBA is considering waiving the nonmanufacturer rule for herbicides, insecticides, and fungicides, under PSC 6840, under NAICS code 325120. Comments are due by June 3.

The SBA has decided not to issue a class waiver for Improved Outer Tactical Vests and related accessories under Product Service Code (PSC) 8470 (Armor Personal) under North American Industry Classification System (NAICS) code 339113 (Surgical Appliance and Supplies Manufacturing).

DFARS Case 2010-D004: The DoD has issued an interim rule to implement Section 8116 of the FY 2010 DoD Appropriations Act (Pub. L. 111–118), which  prohibits the use of funds appropriated or otherwise made available by the Act for any contract (including task or delivery orders and bilateral modifications adding new work) in excess of $1 million, if the contractor restricts its employees to arbitration for claims under title VII of the Civil Rights Act of 1964, or torts related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention. The interim rule does not apply to the acquisition of commercial items, including commercially available off-the-shelf items.

The ASBCA issued three decisions:

In Inchcape Shipping Services, the Board denied the Government's  motion to remove a set of nine appeals from the Rule 12.3 accelerated docket because the choice to use accelerated procedures under the CDA is exclusively the contractor's.

In Versar, Inc., the Board held it (i) lacked jurisdiction to decide the contractor's request that Board order specific performance (i.e., that the Government rescind a "red" performance rating) but (ii) had jurisdiction to decide whether the rating was appropriate.

In Whiting-Turner Contracting Co., which principally involved questions of accord and satisfaction and the interpretation of releases in bilateral modifications, the Board held that the contractor was not entitled to interest on claims because its contract was with a nonappropriated fund instrumentality. 

May 17

DGR Associates won its GAO protest against the terms of a solicitation because the procuring agency failed to consider whether the conditions for a HUBZone set-aside existed before proceeding with an 8(a) set-aside.

In Electronic Data Systems, the Court of Federal Claims found that the agency (i) made a clear and significant error in allowing a pricing proposal from the awardee that was not compliant with the solicitation's requirements and (ii) failed to notify all offerors that such an approach was acceptable. Nevertheless, the court found the protester had not established that it was prejudiced by this error because the source selection authority (i) attempted to adjust for it in the final evaluation and (ii) concluded that, even if all the costs at issue were eliminated from the protester's offer, it still would have been significantly higher than the awardee's. Maybe so, but decisions like this make me nervous. Instead of permitting the agency to make a self-serving, after-the-fact guesstimate of what the bids would have been had the error not occurred, it would seem preferable to require the agency to correct it and then find out for certain by requiring the submission of revised proposals. 

May 14

The GAO sustained the protest of J2A2JV  because the  awardee failed to meet the solicitation's definitive responsibility criterion of five years relevant experience as a general contractor.

May 13 FAR Case 2009-004 ("Enhancing Contract Transparency"): Comments are sought by July 12 concerning how best to amend the FAR to enable public posting of contract actions, should such posting become a requirement in the future, without compromising contractors’ proprietary and confidential commercial or financial information.
May 12

OMB is soliciting public comments (by July 12) on the advisability of adopting the Economic Classification Policy Committee’s recommendations for NAICS updates for 2012.

The SBA's OHA has published two size decisions, one belatedly.

May 11

The ASBCA published two new decisions.  The Board found AST Anlagen-und Sanierungstechnik GmbH entitled to an EAJA recovery and remanded for a determination of quantum. In Lasmer Industries, the Board refused to dismiss an appeal from a deemed denial of a claim for a "no cost" termination based on allegedly impossible specifications. 

May 8

The DoD is proposing revisions to the FAR 52.219-7 class deviation regarding partial small business set-asides for DLA DESC bulk fuel solicitations in order to, inter alia, clarify that a small business will not be awarded a set-aside portion at a price higher than its offer price under the non-set-aside portion. Comments are due by July 9.

The OFPP  CAS Board is proposing to harmonize CAS 412 and 413 with the Pension Protection Act (PPA) of 2006 (which amended the minimum funding requirements for defined benefit pension plans) by, inter alia, recognizing a "minimum actuarial liability" consistent with the PPA minimum required contribution, which should lessen the difference between the amount of pension cost reimbursable to the contractor in accordance with CAS and the amount of pension contribution required to be made by the contractor as the plan sponsor. Comments are due by July 9.

The DOT proposes to improve administration of the Disadvantaged Business Enterprise Program by increasing accountability for recipients with respect to good faith efforts to meet overall goals, modifying and updating certification requirements, adjusting the personal net worth threshold for inflation, providing for expedited interstate certification, and adding provisions to foster small business participation and improve post-award oversight. Comments are due by July 9.

May 7

The ASBCA published three decisions.

In Hanley Industries, the Board decided that a letter from the Contracting Officer revoking acceptance of items under the "Inspection" clause and reserving the Government's right to quantify the amount it associated with this action at a later date was not a CDA claim and, therefore, could not be appealed by the contractor.

In PGDC/Teng, Joint Venture, the Board granted the Government's motion to dismiss the contractor's claim for contract reformation because there was no basis for its theories of (i) breach of a duty to disclose superior knowledge, (ii) mutual mistake, or (iii) unilateral mistake.

In Starwin Industries, the Board decided it lacked jurisdiction over the quantum portion of an appeal from a default termination because no quantum claim had been submitted to the Contracting Officer for a decision.

Five proposed DFARS revisions have been published. Comments on each of the following proposals are due by July 6.

DFARS Case 2008-D042 ("Preservation of Tooling for Major Defense Acquisition Programs") would amend the DFARS to implement section 815 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, which requires acquisition plans for major weapons systems to include a plan for the preservation and storage of special tooling associated with the production of hardware for major defense acquisition programs through the end of the service life of the related weapons system.

DFARS Case 2008-D050 ("Marking of Government-Furnished Property") would require contractors to tag, label, or mark items of government-furnished property identified in the contract when the government-furnished material and government-furnished property are subject to serialized item management.

DFARS Case 2007-D003 ("Presumption of Development at Private Expense") would amend the DFARS to implement section 802(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2007 and section 815(a)(2) of the NDAA for FY 2008 by establishing special requirements and procedures related to the validation of a contractor’s or subcontractor’s asserted restrictions on technical data and computer software.

DFARS Case 2008-D027 ("Cost and Software Data Reporting System") would add a new subpart 234.71 to the DFARS to set forth DoD Cost and Software Data Reporting system requirements for major defense acquisition programs and major automated information system programs.

DFARS Case 2006-D029 ("Restriction on Ball and Roller Bearings") would amend the DFARS to revise the domestic source restriction on acquisition of ball and roller bearings from the current rule (which requires that the bearings and the main bearing components be manufactured in the U.S. or Canada and is based on 10 U.S.C. 2534(a)(5), which expired on October 1, 2005) to a rule that interprets the annual defense appropriations act domestic source restriction on the acquisition of these items in a manner similar to the domestic source restriction of the Buy American Act.

May 6

In the latest decisions in the Raytheon and General Electric segment closing cases, the Court of Federal Claims granted the Government's motions for partial summary judgment and held that (i) Raytheon's post retirement benefit costs are not pension costs under CAS 412 and cannot be included in segment closing adjustments under CAS 413 and (ii) General Electric's Pay-As-You-Go post-retirement benefit costs are not covered by CAS 413 and cannot be included in segment closing adjustments.

May 5

FTR Case 2010-302: Effective June 4, the GSA is amending the FTR by (i) adding new terms and definitions for "official travel" and "transit system"; (ii) clarifying reimbursement for transportation at an official station while en route to and/or from an authorized TDY location; (iii) clarifying reimbursement for transportation expenses within the surrounding area of a TDY location and provisions for payment under the FTR; and (iv) specifying when the government contractor-issued travel charge card must be used while on official travel.

Civilian Personnel Per Diem Bulletin 267: The DoD has published revisions in the per diem rates prescribed for government employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and Possessions of the United States.

The SBA's OHA has issued eight VET decisions and a cautionary size decision, dismissing an appeal alleging a lack of specificity in another size protest because the appellant had not raised that argument until it filed its appeal with the OHA.

May 2

In the PlanetSpace protest, the Court of Federal Claims gave up trying to figure out what, if any, trade-off analysis the SSA had conducted and stayed the case to give the SSA an opportunity to submit a sworn statement articulating the trade-off evaluation.  One of the Government's arguments was that the protest was barred by laches because the protester had waited for three months before filing its suit after it had lost its GAO protest. The court said that laches cannot shorten a statute of limitations absent extraordinary circumstances, and that the statutory period for bid protests at the court is the Tucker Act's six-year statute of limitations. Anybody out there have a protest you wish you had filed a few years ago? Maybe it's not too late. ;) The courts have not hesitated to adopt the GAO's rule that protests against solicitation requirements must be filed before proposals are due. I wonder why the six-year statute of limitations governs only one type of bid protest.   

May 1

I have posted the 2010 Procurement Review (through May 1),  and I will continue to update it throughout the remainder of the year.

April 30

DFARS Case 2008-D032 ("Service Contract Surveillance") is a final rule amending the DFARS to ensure that (i) the requirement for a quality assurance surveillance plan is addressed for each contract with a dollar value above the simplified acquisition threshold and (ii) contracts for services have appropriate performance management or surveillance plans prepared for the work being performed under the contracts.

DFARS Case 2008-D047 ("Government-Assigned Serial Number Marking") is a proposed rule that would require contractors to apply government-assigned serial numbers in human-readable format on major end items, when required by law, regulation, or military operational necessity. Comments are due by June 29.

DFARS Case 2008-D049 ("Reporting of Government Property Lost, Stolen, Damaged, or Destroyed") is a proposed rule to amend the DFARS to require contractors to report loss, theft, damage, and destruction of government property to the DCMA "eTools" application. Comments are due by June 20.

DFARS Case 2006-D021 ("Award Fee Contracts") is a proposed rule to amend the DFARS to address award-fee contracts, including eliminating the use of provisional award-fee payments. Comments are due by June 29.

April 29

The President has issued memoranda establishing interagency task forces to increase federal contracting opportunities for (i) small businesses and (ii) veteran-owned and service disabled veteran-owned small businesses.

The Court of Federal Claims held Shamrock Foods lacked standing because it had not bid on the protested solicitation and had waited until after bids were submitted (long after award, actually) to file a protest.

April 28

In Jones Automation, the Court of Federal Claims came within a whisker of holding that it lacked jurisdiction over a protest that a bridge contract should be extended, especially absent any showing that the plaintiff would be excluded from the follow-on competition. However, the court contented itself with concluding the plaintiff had not established the requisite elements for a TRO and invited it (dared it, actually) to let the court know whether it was still interested in pursuing injunctive relief. 

I hesitate to quarrel with a decision again so soon after fussing about Milani Construction, but the ASBCA's decision in the Dixie Construction Co. case seems flat out wrong to me. The contractor had a requirements contract, which included the standard "Order Limitations" clause (FAR 52.216-19). That clause provided, inter alia, that the contractor was not required to accept an order in excess of $500,000 (paragraph (b)) and that the Government was not required to order part of a requirement from the contractor if the whole requirement was more than $500,000 (paragraph (c)). The Government had placed several orders in excess of $500,000 with the contractor under both the predecessor contract and the current contract (and the contractor routinely had accepted such orders). The contractor filed a breach claim when the Government ordered one such large job from another firm without giving the contractor a chance to at accept  it. The Board granted summary judgment in favor of the Government, reasoning that paragraph (c) of the "Order Limitations" clause meant the Government was free to bypass the contractor for any order exceeding $500,000. Au contraire! Read together (and in the contexts of (i) a requirements contract and (ii) the course of dealing between these parties), paragraphs (b) and (c) meant that the Government should have offered the contractor a shot at the above-$500,000 order and, then, if the contractor had refused the order, the Government would not have been bound to break the order into smaller pieces for him.  It is the Board's interpretation of the clause that is unreasonable, not the contractor's.  I bet this dispute is headed for the CAFC.

April 27

Two Court of Federal Claims decisions on protests conclude the Government's evaluators had rational bases for excluding the protesters' offers from the competitive range: ManTech (which discusses, inter alia, the permissible methods of conducting a price realism evaluation) and Hyperion.

In U. S. Home, the same court held it had jurisdiction over claims for breach of contracts for the sale of real property but lacked jurisdiction over various claims based on CERCLA because it is not a money-mandating statute.   

April 26

The SBA's OHA has published several 8(a) BDP decisions. For example, in Matter of Hazzard's Environmental and Trucking Co., the OHA granted the SBA's request to dismiss an appeal of a termination from the 8(a) program because of the protester's pattern of failing to provide required documentation to the SBA to establish its continued eligibility for the 8(a) program.

The CBCA has published two decisions, dismissing one appeal for failure to prosecute and a portion of another for lack of jurisdiction.

The GAO sustained the protest of Milani Construction because the agency concluded the protester's offered price for a fixed-price contract was unrealistically low even though the solicitation did not specifically notify offerors that price realism would be an evaluation factor. This decision highlights one of my pet peeves. Specifically, the GAO's oft-repeated axiom (that price realism is not normally to be evaluated on a fixed-price contract) is bootstrapped. Anybody interested in testing that assertion need only trace back the GAO's citations for this proposition from case to case further and further back in time until finally you reach a point where the case cited in support of it does not so hold. As I recall, you have to trace it back through about six degrees of separation to reach that point, so the original mis-citation has become firmly entrenched as the established rule by now. Someday before I die, I'm going to write an article instead of just whining about the issue.  Of course, a company can make a conscious decision to "buy in" below cost on a fixed-price contract, but there should always be an analysis by every procuring agency as to whether the price being offered is so far below cost that the offeror clearly hasn't the foggiest idea of the magnitude of work involved in performing the contract and will only get itself and the Government in trouble if it is awarded the contract.

April 22

DFARS Case No. 2009-D015: The DoD is proposing to amend the DFARS  to implement section 207 of the Weapons Systems Acquisition Reform Act of 2009 (Pub. L. 111–23), which requires the DoD to provide uniform guidance and tighten existing requirements for organizational conflicts of interest (OCIs) by contractors in major defense acquisition programs. Comments are due by June 21.

April 21

The ASBCA published three decisions. Several claims by Guy W. Parker d/b/a Parker International were dismissed/denied for various reasons: res judicata on a claim related to the Contracting Officer's authority; the fact that another claim had not been submitted to the Contracting Officer for a decision; and a lack of evidence or any contractual basis for claims related to government property. SUFI Network Services, Inc., squeezed even more money out of the Board after the contractor already had seen its recovery double as a result of the Board's prior decision on its request for reconsideration. In Yonir Technologies Inc. , the Board upheld a default termination based on the contractor's failure of first article testing.

The SBA is considering granting a waiver of the Nonmanufacturer Rule for Improved Outer Tactical Vests. Comments are due by May 6.

April 20

The Bureau of Industry and Security (BIS) has amended the Export Administration Regulations (EAR) to reflect changes to the Missile Technology Control Regime (MTCR) Annex that were agreed to by MTCR member countries at the November 2009 Plenary in Rio de Janeiro, Brazil, including clarifying the meaning of the term "production facilities."

In accordance with 10 U.S.C. 2330a as amended by section 807 of the National Defense Authorization Act for Fiscal Year 2008,  within 60 days, the Defense Threat Reduction Agency will make available to the public (at this website) the first inventory of activities performed pursuant to contracts for services .

April 16

The SBA's OHA published a size decision and three "VET" decisions. In the Size Appeal of A1 Procurement, the OHA upheld the Area Office's determination  that a firm ran afoul of ostensible subcontractor rule because the firm had no experience in the type of work required by the contract and planned to use a large business as a subcontractor to perform an undefined portion of work.  In Jordan-Reses Supply Co., the VA had extended blanket purchase agreements with several companies, two of which were SDVOSBs, one a small business, and another a large business. In doing so, the Contracting Officer indicated that any orders placed during the extended period should give preferential status to the SDVOSBs. The small business protested, but the OHA affirmed the dismissal of the protest on the grounds that it was speculative (since no contract actions had yet occurred and) that it raised a non-protestable issue (since it did not involve an SDVOSB set-aside).

April 15

Infiniti Information Solutions won its protest at the Court of Federal Claims against a direct 8(a) award because HUD ran afoul of (i) 13 C.F.R. 124.503(e) (by going beyond informal market assessments, which are permissible, and performing actual technical evaluations before making the award) and (ii) 13 C.F.R. 504 (by expressing a clear intent to make the procurement a SDVOSB set-aside prior to offering the procurement to the SBA for award as an 8(a) contract).

In Nycal Offshore Development Corp.,  the Court of Federal Claims allowed a claim for lost profits by a lessee (based on a government breach) to proceed despite the fact that plaintiff's co-lessees had previously elected restitution as their remedy.

Effective May 17, the Department of the Interior is issuing an interim final rule making various administrative changes to its acquisition regulation to harmonize it with the FAR and to make other corrections. Comments are due by June 14.

April 14

FAR Case 2009-006 ("Labor Relations Costs"): A proposed rule would amend FAR 31.205-21 to implement Executive Order 13494, Economy in Government Contracting (issued on January 30, 2009, and amended on October 30, 2009) by designating as unallowable the costs of any activities undertaken to persuade employees of the recipient of 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 employee’s own choosing. Comments are due by June 14.

April 13

FAC 2005-41 has been published. It contains FAR Case 2009-005 ("Use of Project Labor Agreements for Federal Construction Projects"), a final rule that implements Executive Order 13502 by amending the the FAR  (i) to provide that an agency may, if appropriate, require that every contractor and subcontractor engaged in construction on a federal construction project agree, for that project, to negotiate or become a party to a project labor agreement with one or more labor organizations, (ii) to identify factors that agencies may consider to help them decide, on a case-by-case basis, whether the use of a project labor agreement is likely to promote economy and efficiency in the performance of a specific construction project, and (iii) to identify multiple strategies for timing the Federal Government’s receipt of project labor agreements.

April 8

Several DFARS regulations have been issued:

DFARS Case No. 2004-D010--The DoD is adopting as final, with changes, an interim rule (i) amending the DFARS (Subpart 204.73) to address  contractor responsibilities to comply with existing Department of Commerce and Department of State export control laws and regulations and (ii) prescribing  a contract clause (DFARS 252.204-7008) to address those responsibilities.

DFARS Case No. 2006-D053--The DoD is adopting as final, without change, an interim rule that requires the Milestone Decision Authority  for a major defense acquisition program to select the contract type for a development program that is consistent with the level of program risk in accordance with section 818 of the National Defense Authorization Act  for Fiscal Year 2007.

DFARS Case No. 2008-D002--The DoD is adopting as final, with minor changes, an interim rule amending the DFARS to implement sections 886 and 892 of the National Defense Authorization Act for Fiscal Year 2008, which (i)  provide authority for the DoD to limit competition when acquiring products or services in support of operations in Iraq or Afghanistan and (ii) address competition requirements for the procurement of small arms for assistance to Iraq or Afghanistan.

DFARS Case No. 2009-D004--The DoD is proposing to amend the DFARS to address requirements for minimizing the use of hexavalent chromium in defense weapon systems, subsystems, components, and other items by prohibiting the delivery of items containing hexavalent chromium under DoD contracts unless an exception applies. Comments are due by June 7.

In the Allied Technology Group post-award bid protest, the Court of Federal Claims denied motions by both the protester and the intervenor to supplement the administrative record with affidavits essentially arguing the case and not available to the Contracting Officer at the time the selection decision was made. The court did allow supplementation with certain other factual materials.

April 7

The GAO sustained the protest of Irving Burton Associates  because there was no rational basis for the agency's evaluation of (i) the awardee's proposal with regard to a transition plan and the requirement to present program milestones and (ii) the protester's alleged lack of proposal detail.

April 6

The Information Security Oversight Office of the National Archives and Records Administration has amended National Industrial Security Program Directive No. 1 to provide guidance to agencies concerning the release of certain classified information (specifically, "proscribed information") to contractors that are owned or under the control of a foreign interest and have had the foreign ownership or control mitigated by a Special Security Agreement. The amendment is effective May 6.

April 5

In Paul & Partners, the GAO Contract Appeals Board (yes, there is such an animal) upheld the Government's assessment of the postage costs of re-mailing items a printing contractor had misprinted even though those costs greatly exceeded the total value of the misprinted order.  

April 3

The SBA has just published  four "new" size decisions by the OHA. In Precision Lift (which is dated December 17, 2007, and that's not a typo), the OHA reversed the Area Office's determination that an offeror would not be supplying the product of a small domestic manufacturer. In Jenn-Kans, the OHA discussed affiliation in the context of identity-of-interest and clear fracture analysis.

April 2

In BioFunction, the Court of Federal Claims denied the plaintiff's claim because (i) the government employee who allegedly entered a "side agreement" to a Postal Service contract lacked contracting authority and, in any event, (ii) the plaintiff did not establish that the side agreement provided for any monetary compensation.

I couldn't resist quoting the following introduction by Judge Allegra to the decision in the Schortmann case, which involved allegations that the IRS breached a settlement agreement:

"To every complicated problem there is a simple solution, which turns out to be wrong.”

Various temporal limitations are interwoven into the Federal income tax system. The warp of that system is the annual accounting principle, famously described in Burnet v. Sanford & Brooks . . ., which vertically limits the calculation of income to events occurring within a given taxable year. Then, there are the wefts supplied by the limitation provisions in the Internal Revenue Code . . ., which introduce into the weave finality principles that horizontally limit, to a prescribed set of years, the ability of taxpayers and government alike to modify the computation of income. Meshed together, these concepts form a tough fabric that resists efforts to reach back and remedy even the most patent of errors. The necessity for this resistance makes sense in the broader state of affairs, based, inter alia, on the paramount need "to produce revenue ascertainable and payable at regular intervals," Hillsboro Nat’l Bank v. Comm’r of Internal Revenue . . . . Yet, as attractive as this rationale might be from a tax policy perspective, it offers little solace to the individual taxpayer who finds himself on the wrong side of these limitations. Often he or she perceives the warp and wefts not as a cohesive body of law, but as an entangling web of inequity – and sometimes that perception is reality. [Introductory quotation attributed to H. L. Mencken; full citations omitted]

I don't have the slightest idea what that means, but I am mightily impressed, nonetheless.  

April 1

The DOD has issued Phase III Final-Draft Business Rules for the Defense Personal Property Program (DP3) in the Defense Transportation Regulation (DTR) Part IV (DTR 4500.9R). Comments are due by June 1.

The Department of Transportation is removing the sunset provision from its rule governing the airport concessions disadvantaged business enterprise (ACDBE) program.

In the Eskridge Research Corp. bid protest, the Court of Federal Claims denied a firm's request for an injunction against the Government's decision to continue to employ the services of a contract awardee during the period in which the Government is accomplishing corrective action in response to the plaintiff's earlier filed GAO protest. In balancing the equities for an injunction, the court found that interests of national defense and security and the plaintiff's lack of urgency in the timing of both its original GAO protest and its subsequent court case weighed against granting an injunction. Specifically, the court noted, inter alia, that the plaintiff had not filed its GAO protest in time to obtain the automatic stay (even  though the GAO protest had subsequently been dismissed as moot when the agency undertook corrective action): "By sitting on its rights and failing to secure an automatic stay before the GAO or seeking timely relief in this court, the plaintiff created or exacerbated the harm it now claims can only be avoided by preliminary injunction. [The awardee] is performing the current contract because [the plaintiff] did not timely seek to stop this performance. In such circumstances, the equities do not favor the plaintiff." The case is worth a read for several other issues as well, including the concept of mootness.

March 31

In response to the March 4, 2009, Presidential Memorandum on Government Contracting, the OMB's OFPP has issued a proposed policy letter to clarify the circumstances when work must be reserved for performance by federal government employees consistent with section 321 of the National Defense Authorization Act for FY 2009, which requires OMB to (i) create a single definition for the term "inherently governmental function" that addresses any deficiencies in the existing definitions and reasonably applies to all agencies; (ii) establish criteria to be used by agencies to identify "critical" functions and positions that should only be performed by federal employees; and (iii) provide guidance to improve internal agency management of functions that are inherently governmental or critical. Comments are due by June 1.

March 30

In  Eagle Home Medical Corp., the GAO sustained a protest because the Contracting Officer failed to amend a solicitation to comply with an SBA OHA decision that the NAICS code assigned to the procurement was improper.

March 29

The Department of State is proposing to amend the ITAR by removing the requirement for prior approval or prior notification before proposals for foreign sales of significant military equipment or defense services to foreign persons may be made. Comments are due buy May 28.

In Madison Services, Inc., the Court of Federal Claims denied a protest after finding that FEMA's cancellation of solicitation had a rational basis and was not a mere pretext. Moreover, the protester's allegations of bad faith did not come close to the standard of clear and convincing evidence needed to overcome the strong presumption of good faith accorded to agency decisions.

In DataMill, the court held that, under FASA, it lacked jurisdiction over protest against an agency's decision to conduct a noncompetitive, sole source procurement via the issuance of a delivery order under a competitor's contract. In another decision in the same case, the court declined the protester's request to supplement the administrative record and struck an affidavit relied on by the protester in its arguments to the court because the affidavit contained many irrelevant statements, some statements repeating evidence already in the administrative record, and arguments against the protested agency decision. 

The ASBCA has published several new decisions. In Solid State Electronics Corp., the Board denied a contractor's claim for costs of expedited delivery because the government employee who requested it did not have the authority to change the contract. In the latest States Roofing  decision, the Board determined the quantum owed the contractor after the Court of Appeals for the Federal Circuit reversed and remanded the Board's prior decision.

March 26 The SBA's OHA has issued four new BDP decisions.

The GAO sustained the protest of Shaw-Parsons Infrastructure Recovery Consultants because the agency's evaluators failure to adequately consider narrative responses in past performance questionnaires.

March 25

In IMS Engineers-Architects , the Court of Federal Claims held that a contractor knew about Government's improper contract administration and termination prior to the time it signed a release, which was, therefore, knowing, valid, and enforceable.

The Bureau of Industry and Security has published a final rule amending the Export Administration Regulations (EAR) to clarify coverage of concealed object detection equipment.

The GSA has published Per Diem Bulletin 10-03 concerning revised FTR per diem rates for certain locations in the States of Kansas, New Mexico, New York, Rhode Island and Texas.

I have removed the temporary entries that were below for the last three months of 2009, but the entire 2009 blog can still be found and searched here.

March 24

The GAO sustained two, companion protests (B. L. Harbert-Brasfield & Gorrie, JV,  and McCarthy/Hunt, JV) because the GAO found two types of organizational conflicts of interest: one based on "unequal access to information" and the other on "biased ground rules."

The DoD has published the updated charter of the ASBCA as Appendix A, Part 1 of the DFARS.

March 23

The ASBCA has issued several new decisions. In HMRTECH2, LLC, the Board held that a contractor's graduation from the 8(a) program did not give the Government the right to deny the contractor a fair opportunity to continue to compete for further task orders for the duration of a multiple-award schedule contract. In Al-Dhiyaa Bureau for General Contracting, the Board held that the Government had established its affirmative defense to the contractor's claims by proving that payments had been made to contractor's authorized representatives.

Federal Acquisition Circular (FAC) 2005-40 has been published. It consists of one item, FAR Case 2008-027, entitled "Federal Awardee Performance and Integrity Information System," a final rule (effective April 22) to implement the Federal Awardee Performance and Integrity Information System (FAPIIS), as required by section 872 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, which is designed to improve the Government’s ability to evaluate the business ethics and expected performance quality of prospective contractors and protect the Government from awarding contracts to contractors that are not responsible sources.

The SBA is considering waiving the nonmanufacturer rule for  Liquid Propane Gas.  Comments are due by April 7.

The Bureau of Industry and Security (BIS) has issued corrections to a previously published final rule affecting Export Control Classification Numbers 1A004 and 5A001. The BIS has also published a final rule to amend the Export Administration Regulations (EAR) to implement the understandings reached at the September 2009 plenary meeting of the Australia Group (AG) and to implement a decision recommended at the 2009 AG Plenary, specifically (i) to add  technical notes to the AG ‘‘Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology and Software’’ in order to clarify (a) the term "alloys,"’ as used in reference to the types of materials from which such equipment is made and (b) "nominal size,"’ as used in reference to the valves described on this AG control list and (ii) to amend the EAR to reflect the AG decision  to remove "white pox" virus from the AG List of Biological Agents for Export Control.

March 21

The SBA's OHA has issued several new decisions on size and NAICS appeals. For example, in Diverse Construction Group, the OHA overturned an Area Office finding of affiliation because there was not enough evidence to establish such affiliation either under the "totality of the circumstances" or  an "identity of interest" analysis. The remainder of the decisions can be found here.

March 20

In the important ATK Thiokol decision, the Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims and held that, for purposes of determining whether costs qualify as IR&D costs, the phrase "required in the performance of a contract" in the definition of IR&D costs means the same thing as it does in the definition of B&P costs, i.e. "costs that are specifically required by the contract," not  "costs that are necessary in order to perform the contract."

March 19

In the Rapiscan Systems protest, the GAO found that issuance of a purchase order for items not included in a vendor's FSS contract was improper where the underlying solicitation had limited competition to vendors holding FSS contracts.

 

Federal Acquisition Circular (FAC) 2005-39 has been published. It includes the following six items, plus a technical amendment:

Item I (FAR Case 2009-035), entitled "Extend Use of Simplified Acquisition Procedures for Certain Commercial Items," is a final rule revising FAR subpart 13.5, ‘‘Test Program for Certain Commercial Items,’’ to implement section 816 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84) by extending the program for two more years.

Item II (FAR Case 2008-012), entitled "Clarification of Submission of Cost or Pricing Data on Non-Commercial Modifications of Commercial Items ," is a final rule (adopting the prior interim rule with few changes) to implement section 814 of the National Defense Authorization Act for Fiscal Year  2008,  which requires alignment of the threshold for cost or pricing data on noncommercial modifications of commercial items with the Truth In Negotiation Act (TINA) threshold for cost or pricing data.

Item III (FAR Case 2008-040), entitled "Use of Standard Form 26 -- Award/Contract," is a final rule effective April 19 (i) revising  FAR parts 15 and 53 instructions for use of the Standard Form (SF) 26 to strengthen the prohibition against using block 18 of the form when awarding a negotiated procurement and  to emphasize that block 18 should only be checked when awarding a sealed bid contract and (ii) revising the final sentence of the current FAR 53.214 because the updated SF 26, which was issued in April 2008, makes the sentence unnecessary.

Item IV (FAR Case 2008-006), entitled "Enhanced Competition for Task- and Delivery- Order Contracts--Section 843 of the Fiscal Year 2008 National Defense Authorization Act," is a final rule effective April 19, adopting the prior interim rule with changes and  amending the FAR to implement Section 843, Enhanced Competition for Task and Delivery Order Contracts, of the National Defense Authorization Act for Fiscal Year 2008. which contains several requirements regarding enhancing competition within federal contracting, including: (i) limitation on single-award task and delivery-order contracts greater than $100 million; (2) enhanced competition for task and delivery orders in excess of $5 million; and (3)restrictions on protests in connection with issuance or proposed issuance of a task- or delivery-order except for a protest on the grounds that the order increases the scope, period, or maximum value of the contract under which the order is issued, or a protest of an order valued in excess of $10 million.

Item V (FAR Case 2008-036), entitled "Trade Agreements--Costa Rica, Oman, and Peru," is a final rule adopting the interim rule without changes amending the FAR to implement the Dominican Republic--Central America--United States Free Trade Agreement with respect to Costa Rica, the United States-Oman Free Trade Agreement, and the United States-Peru Trade Promotion Agreement.

Item VI (FAR Case 2008-015), entitled "Payments under Fixed-Price Architect-Engineer Contracts," is a final rule effective April 19 amending the FAR to revise the withholding of payment requirements under FAR 52.232–10, a change that was initiated by the SBA's Advocacy Office, a part of the SBA Office of Advocacy’s Regulatory Review and Reform Initiative, or r3 initiative, which was established to help small businesses address the cumulative federal regulatory burden.

Item VII is a technical amendment to FAR 14.202-4.

 

The DOL has issued a proposed rule which, in its final form, will implement Executive Order 13495 regarding the nondisplacement of qualified workers on service contracts. Comments on the proposed rule are due by May 18.

March 17

FTR Bulletin 10-02: The GSA has published a revised Standard Mileage Rate for moves within the continental United States, reducing the prior rate of 24 cents per mile to 16.5 cents. The revised rate is effective for travel during calendar year 2010.

In C. R. Pittman Construction Co., the Court of Federal Claims held that the contract's  Damage to Work clause unambiguously assigned to the contractor the responsibility for damage to equipment caused by Hurricane Katrina, and, therefore, the contractor's efforts to rely on various "course of dealing" arguments to interpret the clause differently were unavailing.

March 15 President Obama has issued a memorandum dated March 10 entitled "Finding and Recapturing Improper Payments," which directs OMB to develop guidance within 90 days  for increased use of Payment Recapture Audits to identify improper payments that have been made to contractors.

The GAO sustained the protest of DynCorp International LLC because task order solicitations were outside the scope of the underlying multiple-award contracts.

March 12 The GAO has issued the March 10, 2010, update of the third edition of Principles of Federal Appropriations Law.
March 10

The DoD has issued revised non-foreign overseas per diem rates for travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and Possessions of the United States.

Three ASBCA decisions have been published.  In Laser Manufacturing, the Board denied a claim for alleged changes in inspection and acceptance criteria. In Bernard Cap Co., the Board dismissed several claims as time barred by CDA's  statute of limitations. In American Ordnance, the Board found the Government responsible for excusable and compensable delays resulting from (i) defective specifications; (ii) withholding of superior knowledge; and (iii) breach of the implied duties of cooperation and noninterference. The Board found that the Government's technical data package was seriously defective, that the Government failed to communicate its superior knowledge of the problems to the contractor; that the contractor did not assume the risk of these issues by, inter alia, entering a fixed-price contract, and that the Government compounded the problem by its improper administration of contract performance as these issues came to light.

Meanwhile, the SBA's OHA published five decisions in size determination appeals: (i) dismissing as premature an appeal that a size determination "might" affect a firm's 8(a) eligibility; (ii) returning another to the Area Office and requiring it to explain its rationale for a finding of affiliation; (iii) concluding there is no exception for 481(a) income adjustments that counters the general rule that total income plus cost of goods sold as stated on a firm's tax return is the basis for calculating annual receipts for purposes of size determinations;   (iv) denying a petition for reconsideration of its decision in SIZ-5090 regarding the inclusion of inclusion of conference management revenues in annual receipts as amounts collected for another pursuant to 13 C.F.R. § 121.104(a); and (v) dismissing an appeal both regard to the current procurement (because it was untimely for that purpose) and for future procurements (because it lacked the requisite specificity as to the alleged errors in the Area Office's determination.  

March 9

In Bell BCI, the Court of Federal Claims held that, when there is no just reason for a delay, a contractor may obtain immediate recovery in the form of partial summary judgment on claims affirmed on appeal without waiting for its remaining claims to be resolved.

March 8

In The Dallas Irrigation District, the Court of Federal Claims had occasion to address many elements of EAJA awards including, inter alia, attorney fees, a request for an enhanced award, COLA, paralegal fees, legal research expenses, attorney travel expenses, deposition, hearing, and trial transcript costs.

The CBCA upheld the default termination of (and subsequent government claims for liquidated damages and excess reprocurement costs against)  C-Shore International, rejecting the contractor's contention that the Government's claims were untimely and dismissing the contractor's cross complaint for lack of jurisdiction because that claim had not been submitted to the Contracting Officer for a decision.  

Effective April 7, the Commerce Department is updating the entire Commerce Acquisition Regulation to bring it in line with the FAR.

March 5

DFARS Case 2009-D017: The DoD has issued an interim rule  to add policy and a contract clause requiring that contractors providing essential contractor services must be prepared to continue such services during periods of crisis. Comments are due by May 4.

DFARS Case 2009-D035: The DoD has issued another interim rule to implement section 812 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84, enacted October 28, 2009). Section 812 (entitled "Revision of Defense Supplement Relating to Payment of Costs Prior to Definitization") makes the limitations on payment of costs prior to definitization of unpriced change orders applicable to all categories of undefinitized contractual actions, "including undefinitized task orders and delivery orders"  and already has been partially implemented in DFARS Case 2008–D034. The current case implements the balance of the section by specifically including the category of "task orders and delivery orders" in the definition of "contract action" at DFARS 217.7401. Comments are due by May 4.

Mission Critical Solutions won its bid protest at the Court of Federal Claims. As you may recall, the company originally won its protest at the GAO 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." The SBA and the Army fought the protester's position in the protest (but the GAO rejected the SBA's interpretation). On the SBA's request for reconsideration, the GAO reaffirmed its decision and emphasized that HUBZone program set-asides are mandatory when the statutory conditions are met. However, shortly thereafter, the OMB issued a memorandum and then the Office of Legal Counsel of the Department of Justice issued its own memorandum concluding the GAO's position was incorrect and directing executive agencies to disregard it. Mission Critical Solutions took the fight to the Court of Federal Claims, which has just held for the company. Why do I think this one ain't over?

March 4

The bid protest by White Hawk Group was dismissed by the Court of Federal Claims because the offeror had such inferior overall evaluation scores that any errors by the SBA or procuring agency in regard to its small business size or joint venture status were irrelevant and nonprejudicial since it would not have received award anyway.

The SBA is proposing changes to 13 C.F.R. Part 127 (entitled "Women-Owned Small Business Federal Contract Assistance Procedures"), including eliminating the requirement for an agency-by-agency determination of discrimination, adopting both ‘‘numbers’’ and ‘‘dollars’’ measures of under-representation, and using the Fiscal Year 2006 CCR database as the data source for determining eligible industries under the WOSB Program. 

March 3

The DoD has proposed adding a new part 157 to 32 C.F.R. to reduce the use of social security numbers in forms and systems generated or maintained by DoD personnel and contractors. Comments are due by May 3.

DFARS Case 2008-D028: The DoD is seeking comments on potential changes to the DFARS to add a new subpart and associated contract clauses for the safeguarding, proper handling, and cyber intrusion reporting of unclassified DoD information.

March 2

The Court of Appeals for the Federal Circuit cleared up some important jurisdictional issues in Resource Conservation Group, holding that the Court of Federal Claims does not have jurisdiction over nonprocurement protests under 28 U.S.C. 1491(b)(1), but continues to have jurisdiction over claims for breach of an implied-in-fact contract under 1491(a)(1) for claims where the Administrative Dispute Resolution Act (ADRA) does not provide a remedy. Thus, according to the court, the ADRA did not repeal the Court of Federal Claims pre-existing jurisdiction over implied-in-fact contracts in nonprocurement cases.

March 1

The SBA's Office of Hearings and Appeals has published a slew of VET decisions (regarding the eligibility of service disabled veteran-owned small businesses). The most interesting of the bunch is Cooper-Glory LLC, in which the SBA's OHA determined that a joint venture owned by two other companies was not qualified as a SDVOSB and, in doing so, rejected the protester's attempt to rely on rules from other sections of the SBA's regulations that encourage joint ventures. In International Logistics, the OHA found that an ownership interest was not unconditional because it could not be sold at fair market value to anyone of the owner's choosing. Two other decisions (Teracore  and Advanced Environmental Solutions) involved the question whether the service disabled owner's ownership or work in another firm impeded his ability to full time manage and operate the SDVOSB in question.

February 27

DFARS Case No. 2008-D023: Effective March 1, the DoD is promulgating an interim rule adding several requirements to the DFARS related to the authority and funding requirements for multiyear contracts for major weapons systems, in order to implement section 811 of the National Defense Authorization Act for Fiscal Year 2008 and section 8008 of the Fiscal Year 2007 Defense Appropriations Act, and the same language in subsequent DoD appropriations acts. Comments are due by April 30.

The SBA is proposing numerous amendments to its small business size regulations to (i) clarify the effect, across all small business programs, of initial and appeal eligibility decisions on the procurement in question; (ii) increase the amount of time that SBA has to render formal size determinations; (iii) require that SBA’s Office of Hearings and Appeals (OHA) issue a size appeal decision within 60 calendar days of the close of the record, if possible; (iv) increase the amount of time that SBA has to file North American Industry Classification System (NAICS) code appeals; (v) alter the NAICS code appeal procedures to comply with a federal court decision; (vi) clarify that contracting officers must reflect final agency eligibility decisions in federal procurement databases and goal statistics; (vii) clarify how a contracting officer assigns a NAICS code and size standard to a multiple award procurement; and (viii) make other changes to size status protest and appeal rules. The proposed rule changes would affect 13 C.F.R. Parts 121, 124, 125, 126, and 134. Comments are due by March 31.

February 25

General Dynamics and Unisys won their GAO protest against the TSA's issuance of a task order to Computer Sciences Corp. because the agency's price realism evaluation re staffing was flawed and because the agency credited CSC for proposing an incentive fee lower than the one the solicitation suggested to other offerors was mandatory.

There are a couple of new CBCA decisions out, both dealing with contract interpretation issues.

February 24

The DoD has published an interim rule amending the DFARS to implement the provisions of Section 202 of the Weapons Systems Acquisition Reform Act of 2009, entitled "Acquisition Strategies to Ensure Competition throughout the Lifecycle of Major Defense Acquisition Programs," which:  (i)  requires that the acquisition strategy for each Major Defense Acquisition Program (MDAP) include measures to ensure competition at both the prime contract and subcontract level of the MDAP throughout its life cycle as a means to improve contractor performance and adequate documentation of the rationale for selection of the subcontractor at any tier; and (ii) requires specified actions to ensure fair and objective ‘‘make-buy’’ decisions by prime contractors on MDAPs and (whenever a decision regarding the source of repair results in a plan to award a contract for performance of maintenance and sustainment of a major weapon system) actions to ensure that the contract is awarded on a competitive basis with full consideration of all sources. The interim rule is effective today, and comments on it are due by April 26.

February 23

In Savantage Financial Services, the Court of Appeals for the Federal Circuit affirmed the finding of the Court of Federal Claims that the agency had a rational basis for the requirements stated in the solicitation, which were not shown by the protester to be merely a pretext for ordering the brand of one particular offeror. 

The latest procedural decision by the Court of Federal Claims in L-3 Communications Integrated Systems (a bid protest based on the Druyun fiasco) concluded, inter alia, that the standard to be applied in deciding whether a plaintiff (who is alleging bad faith by government procurement officials) should be allowed to supplement the administrative record is not the "irrefragable proof" required to actually prove the bad faith on the merits, but rather only that the bad faith allegations "appear to be sufficiently well-grounded" to support supplementation.  The court also rejected most of the evidentiary objections raised by the Government, permitting the supplementation requested by the plaintiff except as to rough drafts of a final report that was to be admitted and documents that had not been adequately identified or authenticated. Stay tuned.

February 21

The SBA has published two WBC decisions and several 8(a) BDP decisions.

Both the WBC decisions continue the battle regarding the Women's Venture Fund. The OHA originally held that the SBA's suspension of the firm from the program was improper because the suspension had been imposed without affording the firm a hearing. Subsequently, the SBA tried unsuccessfully to convince the OHA to reconsider its decision or to decide sua sponte that the insistence on the requirement for a hearing was misplaced, both of which the OHA refused to do. However, unfortunately for the Fund, the SBA found a way to prevail in the end. It sent the firm reinstatement papers that included unacceptable terms and, when the firm did not sign and return them in the time required, it in effect "relinquished" its awards. Unfortunately, the OHA had no jurisdiction to hear an appeal from this situation because the SBA had not terminated the firm from the program.

In Precision Pine & Timber, the Court of Appeals for the Federal Circuit reversed the Court of Federal Claims and held that the Forest Service did not breach either (i) an express warranty (because none existed) or (ii) the duty of good faith and fair dealing (because the Government's actions did not specifically target the plaintiff) in suspending timber harvesting contracts in 1996 while the Forest Service reluctantly engaged in consultations with the Fish & Wildlife Service (regarding an endangered species--the spotted owl) that were required by another court in separate litigation. 

February 18

The Federal Circuit reversed the Court of Federal Claims in the Agredano case and held the "as is, where is" warnings at a federal vehicle auction meant the Government bore no responsibility on a theory of an implied warranty when the purchasers had to spend a year in a Mexican prison after hidden marijuana was discovered in the vehicle.

There are several ASBCA decisions just out:

Todd Pacific Shipyards discusses (i) the standards for CDA jurisdiction over "new" and revised claims not yet presented to a Contracting Officer for decision and (ii) the time when a claim accrues for purposes of the CDA's statute of limitations.

On reconsideration in Wimberly, Allison, Tong & Goo, the Board affirmed its decision to dismiss a government claim when the Contracting Officer rescinded his decision after an appeal had been filed. The Board reasoned that the government claim was not for a sum certain and, therefore, that the Board lacked CDA jurisdiction.

In Symbion Ozdil Joint Venture, the Board decided that claims for extra work on a contract that was subsequently terminated for convenience should be priced at the unit price stated in the contract specifications rather than at cost pursuant to the "Changes" clause.  

February 16

Medtek lost its appeal at the CBCA because it failed to offer evidence to prove any of its three areas of claimed costs: extra construction costs; lost profits; and attorneys fees.

February 11

DFARS Case 2008-D005: Effective March 15, the DoD is modifying Part 217 of the DFARS by adopting as final, with several changes, the current interim rule (i) to address statutory provisions relating to interagency procurements on behalf of DoD, and (ii) to add new policy (a) to cover the requirements of Section 801(b) of the National Defense Authorization Act for Fiscal Year 2005 regarding the circumstances under which property and services in excess of the simplified acquisition threshold can be acquired through civilian agencies and (b) to expand existing DFARS definitions.

February 10

The Department of Agriculture is proposing (i) to amend the Guidelines for Designating Biobased Products for Federal Procurement to designate the following items within which biobased products would be afforded Federal procurement preference: disposable tableware; expanded polystyrene foam recycling products; heat transfer fluids; ink removers and cleaners; mulch and compost materials; multipurpose lubricants; office paper; topical pain relief products; and turbine drip oils; and (ii) to establish minimum required biobased contents for each of these items. Comments are due by April 12.

February 8

The VA has adopted as final, without changes, an interim final rule that implements portions of the Veterans Benefits, Health Care, and Information Technology Act of 2006, which requires the VA to verify ownership and control of veteran-owned small businesses, including service-disabled veteran-owned small businesses. The final rule defines the eligibility requirements for businesses to obtain ‘‘verified’’ status, explains examination procedures, and establishes records retention and review processes. In the same document, the VA also has implemented new interim final requirements, that eligible owners work full-time in the business for which they have applied for acceptance in the Verification Program, changes the time period for issuance of reconsideration decisions from 30 to 60 days, and changes the distribution of profits for limited liability companies and employee stock ownership plans and solicits comments on these regulatory amendments only. Comments on the interim portions of these new rules are due by March 10.

February 5

Esterhill Boat Service Corp. lost its protest at the Court of Federal Claims because the firm waited until after offers were submitted to claim a solicitation requirement unduly restricted competition.

The GAO published decisions sustaining three protests. AINS, Inc., won its protest because of a lack of meaningful discussions; specifically, the agency's request for a new project schedule did not adequately apprise the firm that the agency's evaluators considered its original project schedule too short. You ought to make a note of this unusual decision because there are hundreds of prior decisions where the GAO has said that meaningful discussions only require the agency to alert offerors to the general areas in which their proposals are found wanting.  C2C and Cahaba Safeguards won companion protests because the GAO was not satisfied with the agency's evaluation of a mitigation plan for a possible organizational conflict of interest submitted by the successful offeror.

February 4

The GAO published two decisions sustaining protests by Velos, Inc. Velos won the first protest because, during discussions, the agency misled it into believing its proposed terms for a software license were acceptable, when the agency subsequently found them unacceptable. Then, after the GAO's original decision had forced the agency to reevaluate, the GAO found the reevaluation unreasonable because the Source Selection Official had (i) ignored the technical evaluation panel on one issue in favor of the opinion of a consultant who had reviewed only the response to one discussion question rather than evaluating the proposals as a whole and (ii) downgraded Velos' performance risk solely on the basis of the date of the D&B report it had submitted.  

A proposed rule would (i) amend the FAR to implement Section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, which requires an adjustment every 5 years of acquisition-related thresholds for inflation using the Consumer Price Index for all urban consumers (except for Davis-Bacon Act, Service Contract Act, and trade agreements thresholds) and (ii) use the same methodology to change nonstatutory FAR acquisition-related thresholds for adjustment in 2010. Comments are due by April 5.

February 2

GSAR Case 2008-G504: Effective March 4, the GSA is revising Part 512 of the GSAR regarding the "Acquisition of Commercial Items."

In Rahil Exports, the ASBCA dismissed an appeal by a subcontractor for lack of jurisdiction because the subcontractor had no privity of contract with the Government either through an alleged agency relationship (with the prime allegedly acting on behalf of the Government) or through a quantum meruit recovery via an implied-in-fact contract.

In Mach II, the standard procedure under an ID/IQ contract was for the Contracting Officer to send the contractor an unsigned, proposed delivery order, which the contractor would sign and return, after which the Contracting Officer was to sign and formally issue it. The contractor claimed the Contracting Officer was often late in this second step, which was just a formality. The Government refused to pay for some orders which the contractor shipped without the Contracting Officer having signed the delivery orders. The ASBCA denied the contractor's subsequent appeal. Make sure all the "i's" are dotted when you deal with the Government.

Somebody's not getting the message. In Free & Ben, Inc., the ASBCA denied the contractor's second motion to reconsider the Board's denial of the contractor's first motion for reconsideration of the Board's denial of the contractor's motion for summary judgment.

On the other hand, some victories on dispositive motions can only be seen as temporary. In UniTech Services Group, the ASBCA denied the Government's motion for judgment on the pleadings after the contractor's complaint alleged the Government had breached (or, at least, had terminated for convenience) an implied-in-fact requirements contract for laundry services, after the Government declined to extend the last in a series of such contracts going back 35 years, because the Government had finally decided to opt for disposable uniforms for work involving radiation. Something tells me the contractor should not get its hopes up on this one.

The CBCA upheld a default termination because, after the contract's original completion date had passed, the contractor did not submit a new schedule, forcing the Contracting Officer to issue one unilaterally, after which she terminated the contractor because she reasonably determined (after issuing show cause and cure notices) that the contractor could not complete the work within the remaining time.

February 1

I have added cases for 2006 to the Court of Federal Claims Contracts Disputes and Bid Protest pages, and I have divided the former page into subject areas. Towards the end, I was bleary-eyed, so if you spot mistakes, please let me know. 

In K-Mar Industries, the Court of Federal Claims held that the agency did not act irrationally in giving the awardee's staffing plan a technically-acceptable rating (despite the plaintiff's contention the awardee misclassified workers in violation of Service Contract Act) because (i) the awardee did not manifest an affirmative intention not to be bound by that Act and (ii) the specific SCA evaluation advocated by the protester was not in the solicitation evaluation plan.

In DMS All-Star Joint Venture, the same court held that the price discussions with offerors were fair, were not unequal, and did not improperly alert one offeror that it must lower its price in a particular area.

January 27

The GAO sustained two protests: one by American Security Programs against a task order outside the scope of an FSS contract; and another by LIS, Inc. against a flawed best value analysis lacking in a documented rationale for its conclusions. 

January 26

The ASBCA issued three decisions. It upheld a default termination in ZIOS Corporation. It held the Government did not unreasonably delay consideration or improperly reject a subcontractor's submittals in a construction contract in Clark Construction. Finally, in Smoke Blotter, it found it lacked CDA jurisdiction over a contractor's protest of the issuance of a delivery order to its competitor.  

January 23

In companion decisions, the GAO sustained protests by McKissack+Delcan JV II and PMO Partnership Joint Venture after the DOT had found the accounting systems proposed by two joint ventures for a cost reimbursable contract unacceptable simply because each proposal was based on using the individual indirect rates of the JV partners. The GAO thought this was a matter of responsibility rather than responsiveness, rejected the agency's unsupported conclusion that CAS 401 demanded a single overhead rate for the JV, and found no other rational basis for the agency's conclusion. 

The President has issued a Memorandum that begins the process of collecting information to assess the extent of, and then to address, the problem of firms who are delinquent in paying federal taxes being allowed to bid on government contracts. 

January 22

Although this is not exactly on topic, pursuant to one of President Obama's initiatives,  various government agencies are posting a  bunch of previously unavailable data to the internet. The new data collections will be available at data.gov.

January 20

DFARS Case 2009-D003: The DoD is proposing (i) to amend the DFARS to implement Section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (which provides for adjustment every 5 years of statutory acquisition-related thresholds) and (ii) to review nonstatutory acquisition thresholds. Comments are due by March 22.

DFARS Case 2008-D046: The DoD is converting the interim rule issued July 29, 2009, to a final rule without any changes. The rule amends the DFARS 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 by waiving the applicability of the Buy American Act for some foreign supplies and construction materials and specify procurement procedures designed to ensure fairness.

DFARS Case 2006-D051: The DoD also is converting the interim rule issued January 10, 2008, to final without change. The rule implements 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.

I'm gradually adding more decisions to the Court of Federal Claims Contract Disputes page and the Court of Federal Claims Bid Protest page. This morning, I noticed the following conclusion of a 2006 decision in which Judge Allegra held against the Government on a suretyship issue. Enjoy--

"The refrain of a 15th century English ditty, known as the 'Riddle Song,' goes –

I have four brothers over the sea,

Perry merry dictum domine,

They each sent a present unto me,

Perry merry dictum domine,

Partum quartum pare dissentum

Perry merry dictum, domine.

One supposing that these lyrics say something profound about the power (domine) of dictum would be disappointed, as the rhyming 'Latin' employed is prattle. While it might be too harsh to say the same of defendant’s dictum-driven attempt to reinvent the law of subrogation, the fact of the matter is that its theory lacks not only precedential support, but a doctrinal foundation (with the latter undoubtedly contributing to the former). With this theory now having been rejected by a sextet of decisions, a prolonged fermata perhaps is in order."

January 19

The DoD is contemplating a Reciprocal Defense Procurement Memorandum of Understanding with the Czech Republic. Comments are due by February 18.

January 15

The Army Corps of Engineers is proposing an interim "Continuing Contracts" funding clause for use only on specially designated civil works projects, which is designed (i) to provide options for funding contracts spanning more than one fiscal year after the enactment of statutory restrictions to the Corps’ continuing contract authority and (ii) to allow Congress more oversight over continuing contracts and better control over the rate at which funds are spent on projects so that contracts will obligate funds in close alignment with prerogatives reflected in budget documents and appropriations acts. Comments are due by March 16.

DFARS Case No. 2009-D038: The DoD is proposing to amend the DFARS to improve the effectiveness of DoD oversight of contractor business systems by (i) defining contractor business systems as accounting systems, estimating systems, purchasing systems, earned value management systems (EVMS), material management and accounting systems (MMAS), and property management systems, and (ii) implementing a business systems clause which includes payment withholding that allows administrative contracting officers to withhold a percentage of payments, under certain conditions, when a contractor’s business system contains deficiencies, including (a) interim payments under cost reimbursement contracts, incentive type contracts, time-and-materials contracts, or labor-hour contracts; (b) progress payments; or (c) performance-based payments. Comments are due by March 16.

January 13

There are a couple of new ASBCA decisions out. After the Government did not seek to extend a stay covering a fraud investigation, Unconventional Concepts won most of its claims on summary judgment, and the Board dismissed several government claims because they were not the subject of a Contracting Officer's decision.  COSTAR lost its claims on a host of bases: the lack of authority of the government official allegedly requiring changes; extra work covered by bilateral modifications; performance of work as a volunteer; and a failure of proof as to alleged damages. 

January 12

The SBA is considering granting a waiver of the Nonmanufacturer Rule for Compressed and Liquefied Gases, PSC 6830, NAICS code 325120. Comments are due by January 27.

Off topic rant: One of the items that appears likely to be included in the final version of the new health care reform act is a 40% tax on so-called "Cadillac" health insurance plans. It is intended to target those individuals who have plans that include such things as no (or extremely low) deductibles and concierge doctor service. The problem is that the way the current bill identifies those plans is simply by including all plans that cost over a certain amount (more than $8500 per year for individuals). That amount might buy a 24-year-old person working for a large company a Cadillac plan. I can tell you from painful and ongoing personal experience that it does not buy anything close to a Cadillac plan for a 62-year-old, self-employed lawyer who gets his insurance through the State Bar of Texas Insurance Trust. People like me pay an astronomical amount just for basic insurance with a very high deductible and large co-payments. Adding a 40% tax on top of that is not what I would call health care "reform." :) 

January 11

The SBA has announced additional public meetings in Miami (January 14) and Los Angeles (January 19) as part of its consideration of proposed revisions to its 8(a) and size regulations the agency first announced October 28, 2009.

January 8

In Government Technical Services, the Court of Federal Claims held that the Government's failure to exercise an option under an ID/IQ contract did not establish bid protest jurisdiction in the court.

There are seven new size decisions listed at the top of the size decisions on the SBA OHA web page. The most interesting of the bunch is Alutiiq International Solutions, which overturned the Area Office's  finding that a firm violated the ostensible subcontractor rule. The OHA noted that the firm's associations to which the Area Office objected were with its parent rather than a subcontractor and also fell within the ANC exemption to the SBA's affiliation rules.

I have redone the SBA OHA Recent Decisions page so that the size decisions are now organized by general subject matter to help you search them more easily. Clicking on either the general headings at the top of the page or the specific headings in the table underneath the Size Appeals section will take you to the appropriate part of the page.

While working on revising that web page, I belatedly noticed something. The SBA's published decision re a NAICS appeal by Inklings Media instructs us (mistakenly, I assume)  to cite it as: NAICS Appeal of Inklings Media Company, LLC, SBA No. SIZ-4850 (2007). See the very top of the first page of the decision. However, it is a NAICS decision, and, in the actual case caption (on that same page, just below the previously-quoted instruction), the citation is "SBA No. NAICS-4850," instead of SBA No. SIZ-4850. I assume the second is the correct title of the case, but the SBA's url address for it also identifies it as SIZ-4850. Confusing enough for you? My only point is that, if you are looking for SIZ-4850, you will actually find a NAICS decision.  

January 7

The Department of Energy (DOE) is proposing to amend the DOE Acquisition Regulation (DEAR) Subchapters E (General Contracting Requirements), F (Special Categories of Contracting), and G (Contract Management), to conform to the FAR, remove out-of-date coverage, and  update references. Comments are due by February 8.

I have reorganized the Recent Successful GAO Protests (2005-Present) page into subject areas, so that it matches the Successful GAO Protests (2000-2004) page.

While we're on the subject of the GAO, it sustained a protest by C&B Construction because the agency did not adequately document its rationale for selecting a higher-priced quote in response to a solicitation for the award of a task order under a BPA.

January 6

Effective today and applicable to official travel performed on or after January 1, the GSA's FTR per-mile reimbursement rates for official travel are as follows: privately-owned automobiles ($.50); privately-owned motorcycles ($.47); and privately-owned airplanes ($1.29).

DFARS Case 2009-D012: The DoD is proposing to amend the DFARS to implement (i) the July 9, 2009 waiver (issued by the Deputy Secretary of Defense) of the section 302(a) of the Trade Agreements Act of 1979, as amended (which generally prohibits acquisitions of products or services from nondesignated countries) in order to allow acquisition from the nine South Caucasus/Central and South Asian (SC/CASA) states; and (ii) the Deputy Secretary's determination of inapplicability of the Balance of Payments Program evaluation factor to offers of products (other than arms, ammunition, or war materials) from those SC/CASA states to support operations in Afghanistan. Comments are due by March 9.

January 5

Executive Order 13256 (dated Dec. 29, 2009, but published today) "prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism." It is accompanied by a memorandum to agencies containing directions for implementing the E. O., as well as a document listing those officials who are authorized to classify items as SECRET or TOP SECRET.

January 4, 2010

Happy New Year!

You may access the complete 2009 blog here.

I've also made what I hope you will agree are a few improvements to the website:

First, I have added a page that lists successful GAO protests (by general subject areas) from 2000-2004. Of course, the website still includes the page listing successful GAO protests from 2005-present.

I have also added more, earlier cases to both the Federal Circuit protest decisions page and the Federal Circuit contract disputes decisions page, so that each page now covers decisions from the beginning of 2000 to the present.

I have reorganized the cases on the recent ASBCA decisions page into subject areas to help you search those decisions more easily.

Finally, to eliminate some clutter, I have broken out all the Winstar-related decisions and put them on their own, separate page.

I hope to gradually extend the decisions listed on other pages back to 2000, but that probably will take awhile now that the Christmas season is over, and I don't have nearly as much time on my hands. Maybe next Christmas. . . .

At any rate, I hope the changes help you find information that may be useful to you.

  The complete 2009 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.