sustained the protest of Commandeer
Construction after the agency rejected its bid as the
apparently successful offeror on an SDVOSB set-aside because
it was not listed as an eligible SDVOSB on the VA's Vendor
Information pages even though the solicitation indicated such
businesses were entitled to expedited verification reviews.
published an interim rule, effective today, adding an
extensive set of regulations at 32 C.F.R. Part 158, entitled Operational
Contract Support, which reflect the sustained employment of a large number of
contractors in the U.S. Central Command area of responsibility; the
importance of contractor oversight in support of the counter-insurgency
operation in Afghanistan; and the requirement to effectively manage
contractors during the transition in Iraq. Comments are due by
February 27, 2012.
proposes to revise existing regulations covering contractor legal management
(and make conforming amendments the DOE's Acquisition Regulation
(DEAR)) in order to provide rules for handling legal matters and
associated costs by certain contractors whose contracts exceed $100,000,000, as
well as legal counsel retained directly by the DOE for matters in which
costs exceed $100,000. Comments are due by February 27, 2012.
required by statute and effective January 1, 2012, DoD is
removing DoD and Office of Personnel Management regulations concerning the
Personnel System (NSPS) from 5 C.F.R. Chapter XCIX.
General Trading & Contracting, the ASBCA denied cross
motions for summary judgment on a claim based on negligent
estimates and also held that, although it lacked jurisdiction
over a claim for extraordinary contractual relief under FAR
Part 50, it had jurisdiction over the alternative claim theory
of breach of an implied-in-fact contract.
Department and Commerce Department each have proposed
complementary regulation changes to implement portions of
President Obama's Export Control Reform policy by moving items
from the United States Munitions List ("USML") to
the Commerce Control List ("CCL").
the State Department has published a proposed rule that rule revises USML
Category VI, covering surface vessels of
war and special naval equipment, to establish a clear
distinction between the USML and the CCL for the control of these
articles by narrowing the types of surface vessels of war and special naval equipment
controlled on the USML to only those that warrant control under the stringent
requirements of the Arms Export Control Act and removing from control
of the USML harbor entrance detection devices formerly controlled under
Category VI(d) and transferring control of submarines to USML
companion State Department proposed rule would revise USML Category XX, covering
vessels and related articles, to consolidate the USML controls that
will apply to all submersible vessels, as well as naval
nuclear propulsion plants for such vessels (which will be
covered in Category XX(b)). leaving all other parts, components, accessories, and
attachments to be covered by the new 600 series controls in Category 8 of
parallel with the above, the Commerce Department's Bureau of
Industry and Security has published a proposed rule that describes
(i) how submersible vessels, oceanographic equipment and
related articles that the President determines no longer warrant control
under Category VI or Category XX of the USML would be controlled under the
CCL in new Export Control
Classification Numbers (ECCNs) 8A620, 8B620, 8D620, and 8E620
and (ii) how closed and semi-closed circuit (rebreathing) apparatus, engines and propulsion
systems for submersible vessels, and submarine and torpedo nets, which are
currently controlled under ECCN 8A018 would be covered. With this proposed rule, BIS also would
establish a new, unilateral control on submersibles
"specially designed" for cargo transport that are not currently
subject to USML or CCL controls.
companion BIS proposed rule applies to surface
on any of the above four proposed rules are due by February 6,
January 26, 2012, DoD is adding a new Part 222 to 32 C.F.R.
that implements policy established in DoD Instruction 5200.01
and provides procedures for members of the public to request a
declassification review of
information classified under the provisions of Executive Order
13526 or predecessor orders.
February 27, 2012, the Cost Accounting Standards Board of
OMB's OFPP is revising CAS 412, "Composition and Measurement of
Pension Cost," and CAS 413, "Adjustment and Allocation of Pension
Cost" in order (i) to harmonize the measurement and period assignment of
the pension cost allocable to
government contracts and the minimum required contribution under
ERISA, as required by the Pension Protection Act (PPA) of
2006, which amended the minimum funding requirements for qualified defined
benefit pension plans and (ii) to include the recognition of a
"minimum actuarial liability" and "minimum normal
cost," which are measured on a basis consistent with the liability measurement used to determine
the PPA minimum required contribution, and accelerate the recognition of actuarial gains and losses.
B. Construction and Sons, the GAO decided it was improper
to award an 8(a) contract to a business entity form
(corporation) different from the one that submitted the
CAS Board has adopted, without change from the interim rule, a final rule
revising the threshold for the
application of CAS from "$650,000" to "the Truth in Negotiations Act (TINA)
threshold, as adjusted for inflation."
Case 2011-022: A proposed rule would revise the FAR to implement the
removal of Federal Information Processing Standard ("FIPS")
161 based on the notice posted in the Federal Register on
September 2, 2008 (73 FR 51276) by the Department of Commerce,
withdrawing the FIPS requirement because it was obsolete and
had not been updated to adopt current voluntary industry standards,
federal specifications, federal data standards, or current good practices for
information security. The withdrawal of this standard created a gap in the
FAR, which will be closed by the proposed rule by clarifying the use of
American National Standards Institute X12, as the valid standard to use for
computer-generated forms. FAR 53.105 is being amended; it will continue
allowing agencies and the public to generate standard and optional
forms on their computers. Comments are due by February 21,
Information Systems, Inc., the GAO sustained a protest and
held that a proposal was late because it was submitted after
the time stated in the FAR (4:30 pm) for application to
solicitations that do not include a specific time by which
proposals must be received. The GAO also sustained a protest
JV because the agency used an unstated evaluation
criterion to evaluate an item the solicitation did not require
to be submitted with the proposals (but instead suggested
would be addressed after award).
Industrial Park, Inc., the Court of Federal Claims held on
reconsideration that the plaintiff was entitled to recover
attorneys fees regardless of the applicability of the EAJA
because the contract at issue specifically provided for such
Associates won its protest at the Court of Federal Claims
because, in response to earlier protests at the GAO, the
agency improperly canceled a solicitation that should have
been set aside for small businesses and issued a task order
solicitation under the FSS.
sustained a protest by Kingdomware
Technologies because the procuring agency improperly used FSS procedures rather than setting the procurement aside for SDVOSBs as
required by the Veterans
Benefits, Health Care, and Information Technology Act of 2006.
Construction, Inc., the Court of Federal Claims held a
termination for default was improper because the Government's
defective design caused excusable delays well beyond the
contract's stated completion date.
Technology, the court dismissed a protest for lack of
standing because the bidder failed to comply with a
solicitation requirement to submit cost or pricing data for
each of its team members. In Joint
Venture of Comint Systems Corp., et al., the court
dismissed consolidated protests for lack of standing because
the protesters did not have a substantial chance of receiving
award even if the alleged errors in the procurement were
Electronics Corp., the ASBCA held it lacked jurisdiction
over an appeal because the original claim should have been
submitted to the Contracting Officer for the GSA schedule
contract rather than to the CO of the agency placing a
delivery order under the schedule contract. In Harry
Richardson, the same Board reached the same conclusion
because no claim at all had been claim submitted to the
Contracting, Inc., the CBCA held the contractor had failed
to establish any of the elements required to justify
reformation of its contract based on a mistake in bid.
Case 2011-D046: DoD is issuing an interim rule to implement a section of the National
Defense Authorization Act for Fiscal Year 2011, which provides that
photovoltaic devices to be utilized in performance of any covered contract
must comply with the Buy American Act, subject to the exceptions
provided in the Trade Agreements Act of 1979 or otherwise provided by law.
Comments are due by February 21, 2012.
Case 2012-D003: DoD is proposing to amend the DFARS to conform
statutory titles to the new Positive Law Codification of Title 41, United States
Code, "Public Contracts." Comments are due by
February 21, 2012.
sustained a protest by The
Ross Group Construction Corp. because the past performance
evaluation lacked a rational basis: the awardee received a
superior rating despite failing to comply with solicitation's
Department is proposing to amend Part 129 of the ITAR relating to
and brokering activities in order to clarify registration requirements, the scope of brokering
activities, prior approval requirements and exemptions, procedures for
obtaining prior approval and guidance, and reporting and recordkeeping of such
activities. Comments are due by January 17, 2012.
In the NAICS
Appeal of Millennium Engineering and Integration Co., the SBA's OHA upheld the
Contracting Officer's assignment (in a NASA procurement) of
the exception for Military and Aerospace Equipment and
Military Weapons under NAICS Code 541330 (Engineering
Corp., the GAO sustained a protest against a Contracting
Officer's termination of an awarded contract based on her
belief that there was an appearance of impropriety (an OCI) in
the contractor's employment of a former federal employee as a
consultant. The GAO concluded that the Contracting Officer's
decision was largely based on misunderstandings and unfounded
assumptions as to both the facts and the applicable law.
way, the GAO has changed its website design so that the format
for the web address of the VSE decision above is different
from the address format of prior decisions. So far, all my
links to prior GAO decisions still work, but, being a
glass-half-empty kind of person, I'm anticipating the
GAO will soon switch all its old decisions to the new address
system, which will mean I will have to modify all the links on
my site. Ugh.
has issued several new OHA size decisions.
Appeal of TPG Consulting, the OHA affirmed the Area Office's determination that a
firm was affiliated with Toyota through economic dependence on
Toyota as the firm's customer.
Appeal of Garco Construction, the OHA affirmed the Area Office's dismissal of a
size protest as untimely because it was filed more than five
business days after the Contracting Officer notified the
protester of the identity of the prospective awardee.
Appeal of National Sourcing, the OHA reversed the Area Office's finding that a
firm violated the "ostensible subcontractor" rule
and held that the firm was not "unusually reliant"
on the alleged affiliate.
Appeal of GPA Technologies, the OHA reversed the Area Office's findings of
affiliation because there was no basis for finding a
lack of clear fracture or identity of interest based only on a
limited number of shared employees.
Appeal of Onopa Management Corp., the OHA affirmed the Area Office's finding of
affiliation based on the ostensible subcontractor rule through
unusual reliance on a subcontractor for vital subcontract
Systems, Inc., the ASBCA denied a contractor's appeal from
a government claim for repayment of unallowable costs because
(i) costs now claimed as deferred IR&D costs had not been
specifically identified and authorized in the contract; (ii)
the bonus paid to the contractor's owner/CEO was an
unallowable distribution of profits; and (iii) numerous
local meals allegedly conducted to discuss recruiting were
unallowable under several claimed costs principles, chiefly
because the contractor had not presented sufficient
documentation to establish their allowability.
LLC, the ASBCA denied a claim because, in advancing
theories of misrepresentation and superior knowledge, the
contractor did not establish that (i) it was misled by, or
relied on, a misstatement in the solicitation that there was
no historical information available, or (ii) it did not have
independent knowledge of that historical information.
to facilitate compliance with the comprehensive
sanctions on Syria, the Bureau of Industry and Security
(BIS) has amended the Export Administration Regulations (EAR) by
(i) moving the substantive provisions of those sanctions from General Order
No. 2 in Supplement No. 1 to part 736 to a revised § 746.9
and (ii) making conforming changes to the EAR.
Construction Co., the Court of Federal Claims denied
multiple claims by a construction contractor for, inter
alia, constructive changes, breach of the duty of good
faith and fair dealing, and differing site conditions, but
awarded the contractor more than a year in excusable delays
due to (i) the Government's delayed notice to proceed and (ii)
the Government's failure to promptly investigate soil
conditions as required by the "Differing Site
The DOL's Office of Federal Contract
Compliance Programs (OFCCP) is proposing to revise the regulations
implementing the non-discrimination and affirmative action regulations of
section 503 of the Rehabilitation Act of 1973, as amended,
which prohibits discrimination by covered federal contractors and subcontractors against
individuals on the basis of disability
and requires affirmative action on behalf of qualified individuals with
disabilities. The proposed regulations would (i) strengthen the affirmative action
provisions, detailing specific actions a contractor must take to satisfy its
obligations; (ii) increase the contractor’s data collection
obligations; and (iii) establish a utilization goal for individuals
with disabilities to assist in measuring the effectiveness of the contractor’s affirmative action
efforts. Revision of the non-discrimination provisions to implement
changes necessitated by the passage of the ADA Amendments Act (ADAAA) of
2008 is also proposed. Comments are due by February 7, 2012.
Appeal of BR Construction, the SBA's OHA affirmed the Area Office's finding that a
minority owner had negative control of a firm where the firm's
operating agreement required his approval for many types of
Government Services, the CBCA denied the Government motion
to dismiss the appeal because the contractor's affidavit
raised a factual question concerning the Government's
contention that there was no contract between the appellant
and the Government.
Gutter & Sheet Metal Co., the CBCA held it lacked
jurisdiction over an appeal from a claim denial that was not
issued by the Contracting Officer.
Department of Commerce's Bureau of Industry and Security (BIS)
has published a proposed rule that describes how military gas turbine
engines and related articles that the President determines no longer warrant
control under Category VI, VII, or VIII of the United States Munitions List
would be controlled under the Commerce Control List (CCL) in new
Export Control Classification Numbers (ECCNs) 9A619, 9B619, 9C619, 9D619
and 9E619. In addition, this proposed rule would control military trainer
aircraft turbo prop engines and related items, which are currently controlled
under ECCN 9A018.a.2 or .a.3, 9D018 or 9E018, under new ECCN 9A619, 9D619
or 9E619. Comments are due by January 20, 2012.
BIS has published another proposed rule that describes how articles the President
determines no longer warrant control under Category VII (military vehicles
and related articles) of the Munitions List would be controlled under the
CCL. This proposed rule re-proposes, with certain changes, five new
ECCNs on the CCL that were originally proposed in a proposed rule published on July 15, 2011 (76
Fed. Reg. 41958). The revised ECCNs in this proposed rule are the result of
continued deliberations of the BIS, DoD and the State Department
and recommendations of commenters on the July 15 proposed rule. This
proposed rule is being published in conjunction with a proposed rule by the
Department of State, Directorate of Defense Trade Controls, to remove from
Category VII of the Munitions List (22 C.F.R. 121.1, Category VII) articles that the
President determines no longer warrant control on that list.
due by January 20, 2012.
State Department has amended the ITAR to identify the Federal Reserve Wire Network
(FedWire) as another method of electronic payment of registration fees,
so as to provide a choice in and facilitate the submission of fees by
Corp., the Court of Federal Claims (i) granted the
plaintiff's motion in limine to preclude the testimony
of an SBA official (who had been hired after the facts
involved in the dispute at bar) concerning the generally
detrimental effect of fraud on the SBA's 8(a) program and (ii)
held that, regardless whether it was considered expert
testimony or lay opinion testimony, the SBA official's proffered
testimony did not satisfy the standards for admissibility.
Automation & Training Consultants, the ASBCA held, in
part, that it lacked jurisdiction over a theory of recovery
first presented to the Board as part of the contractor's
motion for reconsideration of a prior decision and never
presented to the Contracting Officer.
the "everything but the kitchen sink" approach, IBM
Corp, U.S. Federal faulted numerous aspects of the
agency's technical, past performance, and price evaluations,
as well as the Source Selection Authority's comparative
evaluation and the adequacy of the agency's discussions, but
the Court of Federal Claims patiently waded through each
protest ground and rejected them all.
February 29, 2012, the Department of Agriculture is amending
its Agriculture Acquisition Regulation (the "AGAR")
to add a new
contract clause at section 422.70, entitled "Labor
Law Violations," which reads as follows:
In accepting this contract award, the
contractor certifies that it is in compliance with all applicable labor laws and that, to
the best of its knowledge, its subcontractors of any tier, and suppliers, are also in
compliance with all applicable labor laws. The Department of Agriculture will
vigorously pursue corrective action against the contractor and/or any tier
subcontractor (or supplier) in the event of a violation of labor law made in the provision of supplies
and/or services under this or any other government contract. The contractor is
responsible for promptly reporting to the contracting officer when
formal allegations or formal findings of non-compliance of labor
laws are determined. The Department of Agriculture considers certification under this
clause to be a certification for purposes of the False Claims Act. The Department will
cooperate as appropriate regarding labor laws applicable to the contract which are enforced
by other agencies.
on this new rule may be submitted by January 30, 2012.
The SBA is
the comment period for the proposed rule described in the
October 5 entry below and extending that comment period
through January 6, 2012.
Case 2011-D042: DoD is proposing the amend the DFARS to incorporate a
proposal adequacy checklist for proposals in response to solicitations
that require submission of certified cost or pricing data.
Technology, Inc., the Court of Federal Claims ruled on
various motions to supplement the administrative record in a
bid protest, including denying plaintiff's motion to
supplement the record with the declaration of an expert
opining as to the impropriety of the protested procurement
action by the Government, which had been submitted to the GAO
in connection with the original protest at that forum.
Trends, the Court of Federal Claims held that (i) the
protester had waived its claims against several alleged
defects apparent on face of the solicitation because it had
not protested before bids were due; and (ii) the court
lacked jurisdiction over the protester's claim that its
suspension by the SBA (which applied governmentwide but was
not the result of the protested procurement) improperly
deprived the plaintiff of the right to compete on the instant
denying two government motions in limine in Sikorsky
Aircraft Corp., the Court of Federal Claims included an
extensive interpretation and analysis of the coverage and and
interplay of subsections 50(d) and (e) of CAS 418.
Global Solutions , the CBCA summarily dismissed most of
contractor's claims for increased labor rates resulting from
increases in DOL wage determinations because the contractor
and the agency had agreed on the rates to be paid to the
contractor after the revised wage determinations were issued.
Recovery Assistance, Joint Venture, the Court of Federal
Claims denied a protest (even though it was clear the agency
had violated procurement law in important respects by failing
to prepare and obtain past performance information on the
incumbent contractors and by failing to obtain relevant past
performance information from competitors) because the
protester did not meet its burden of establishing it was
prejudiced by the agency's failures: "While it is evident that the agency
violated the law, the consequences of that transgression insofar as this procurement are
concerned remain obscured." This decision should be
required reading for all firms considering incurring the
expense of filing and pursuing a protest because it shows of
how difficult it is to win a protest.
dismissed the appeal of Broadway
Consolidated Companies because the company was in Chapter
7 bankruptcy and lacked standing to pursue the appeal.
Case 2010-014: A proposed rule would amend the FAR to limit
the use of generic substitutes instead of DUNS numbers, and update the
policies and procedures associated with reporting in the Federal Procurement
Data System. Additionally, changes are proposed for the clauses
requiring contractor registration in the CCR database and DUNS number
reporting. Comments are due by January 30, 2012.
Systems, USA, Inc., the Court of Federal Claims held that
(i) even though the protester had complained about the
technical evaluation in its complaint, it waived that
objection by failing to raise it in its principal brief and
arguing it only in the reply brief; and (ii) the agency's
evaluation of price reasonableness and its evaluation for
possible unbalanced pricing were both unobjectionable, even
though the record did not include the specific steps the
agency used to conclude the pricing was not unbalanced.
Contracting Group, the CBCA discussed various quantum
elements in a changes claim by the contractor on behalf of
itself and its subcontractor.
a protest by Standard
Communications, Inc., the Court of Federal Claims held
that, in its best-value, tradeoff analysis, the agency did not
sufficiently explain or document its rationale for selecting
lower-priced, lower technically-rated proposals over a
higher-priced, higher technically-rated proposal in a
solicitation where non-price factors were more important than
price. Specifically, it was not sufficient for the SSA to
write simply: "I hereby determine that this higher-priced proposal does not exhibit sufficient superiority in the
non-Price factors to warrant an award."
protests by North
Wind, Inc., and Earth Resources Technology, Inc., the GAO
determined that the agency improperly evaluated the awardee's
proposal by, in effect, waiving the solicitation's 50-page
proposal limit by allowing it to submit significant portions
of its proposal in appendices without informing other
offerors, who strictly complied with the page limit, that the
approach taken by the awardee to provide additional
information was acceptable.
NASA has adopted as final,
without change, a proposed rule amending the NASA FAR Supplement
to require contracting officers to
notify prospective contractors if hey are found to be nonresponsible.
State Department is proposing (i) to amend the ITAR to implement the
Cooperation Treaty between the United States and Australia and the Defense
Trade Cooperation Treaty between the United States and the United
Kingdom, and identify via a supplement the defense articles and defense services
that may not be exported pursuant to the Treaties; (ii) to amend
the section pertaining to the Canadian exemption to reference the new
supplement; and (iii) with regard to Congressional certification, to add
Israel to the list of countries and entities that have a shorter certification time
period and a higher dollar value reporting threshold. Comments
are due by December 22.
ASBCA published several decisions on motions
for reconsideration, including Red
Sea Engineers & Constructors, in which the Board
denied the contractor's motion for summary judgment on appeal
from a default termination because two of the three alleged
bases for complaining of the termination were invalid and the
third involved issues of material fact.
Case 2011-D027 (Updates to Wide Area WorkFlow): DoD proposes to update policy and
procedures in the DFARS for electronic submission of payment requests and receiving reports
through Wide Area WorkFlow and TRICARE Encounter Data System.
Comments are due by January 20, 2012.
Case 2011-D048 (Separation of Combined Provisions and
Clauses): DoD is proposing to amend the DFARS to separate provisions and clauses that are
currently combined, in order to be in compliance with DFARS drafting
conventions. Comments are due by January 20, 2012.
Case 2011-D047 (Application of Hexavalent Chromium Policy
to Commercial Items): DoD is proposing to amend the DFARS to clarify the
applicability to commercial items of DoD policies relating to the use of
materials containing hexavalent chromium. Comments are
due by January 20, 2012.
GSA has amended the FTR to permit agencies to establish internal
policies and procedures for storage of a
privately owned vehicle when an employee is assigned a temporary
change of station in support of a contingency operation.
The GSA is amending the
FTR to establish policy for the transportation of the immediate family, household goods,
personal effects, and one privately owned vehicle of a covered employee
whose death occurred as a result of
personal injury sustained while in the performance of the employee’s duty as
defined by the agency.
published two decisions sustaining protests.
Technical Services Co., the GAO found that the agency (i)
improperly relaxed an evaluation requirement for the awardee
by ignoring its material failure to propose loaded labor rates
for 20 labor categories; (ii) failed to provide a common
cut-off date for receipt of proposals; and (iii) treated
offerors unequally by giving the awardee credit under the
management factor for a similar item to that proposed by the
protester, who was not given that same credit.
Co., the GAO found (i) a lack of meaningful discussions
and (ii) the improper evaluation of references under the
experience evaluation factor.
Court of Federal Claims issued a TRO (conditioned on
the the posting of a $300,000 bond) in the bid
protest by the incumbent contractor, Serco,
because the protester established it had a reasonable chance
of success on the merits, and the balance of equities weighed
against displacing the incumbent's workforce for the short
period of time required to resolve the protest.
Case 2011-D051 (Administering Trafficking in Persons
Regulations): DoD is issuing a final rule amending the DFARS to add a requirement
to maintain surveillance over contractor compliance with duties and
responsibilities pertaining to trafficking in persons when those
duties are incorporated in contracts.
Case 2011-D021 (Fire-Resistant Fiber for Production of
Military Uniforms): DoD is adopting as final, with changes, an interim rule amending the
DFARS to implement the section of the National Defense Authorization Act for Fiscal Year
2011 that prohibits specification of the use of fire-resistant rayon fiber in solicitations
issued before January 1, 2015.
Case 2010-D020 (Representation Relating to Compensation of
Former DoD Officials): DoD is amending the DFARS to require offerors to represent whether
former DoD officials who are employees of the offeror are in compliance with
Case 2010-D018 (Responsibility for Government Property): DoD is issuing a final rule
amending the DFARS to extend the government self-insurance policy to
government property provided under negotiated fixed-price contracts that are awarded
on a basis other than submission of certified cost or pricing data.
Case 2011-D032 (Simplified Acquisition Threshold for
Humanitarian or Peacekeeping Operations): DoD is adopting as final,
without change, an interim rule amending the DFARS to implement the statutory
authority to invoke a simplified acquisition threshold that is two times
the normal amount to support a humanitarian or peacekeeping operation.
Case 2011-D008 (Accelerate Small Business Payments): DoD is adopting as final,
without change, an interim rule amending the DFARS to accelerate payments to all small
Case 2011-D050 (Extension of Department of Defense Mentor-Protégé
Program): DoD is issuing a final rule amending the DFARS to
extend the date for submittal of applications under the DoD Mentor-Protégé Pilot Program for new
mentor-protégé agreements and the date mentors may incur costs and/or receive
credit towards fulfilling their small business subcontracting goals through
an approved mentor-protégé agreement.
Case 2011-D031 (Management of Manufacturing Risk in Major
Defense Acquisition Programs): DoD is adopting as final, without change, an interim rule
amending the DFARS to implement a section of National Defense Authorization Act for Fiscal Year 2011
requiring appropriate consideration of the manufacturing readiness and
manufacturing-readiness processes of potential contractors and subcontractors
as a part of the source selection process for major defense acquisition programs
Case 2009-D036 (Notification Requirements for Awards of
Single-Source Task- or Delivery-Order Contracts): DoD is adopting as final, with
changes, an interim rule amending the DFARS to implement the National
Defense Authorization Act for Fiscal Year 2010 regarding the notification
requirements to Congress when awarding a single-award task- or
delivery-order contract in excess of $103 million.
Case 2011-D053 (Transition to the System for Award
Management): DoD is issuing a final rule amending the DFARS for
the transition of the Integrated Acquisition Environment systems to the
new System for Award Management architecture.
sustained a protest by Shaka,
Inc. because it was improper for the agency to reject a
bid bond (and find the bidder nonresponsive) solely because
the bidder disclosed that it had obtained the bond through its
sub's relationship with the surety.
Co. (on remand from the Federal Circuit), the ASBCA held
that interest on the interest due the Government for CAS 413
noncompliance continues to accrue until the date the interest
is paid rather than only to the date the principal is repaid
(as the contractor had argued). This seems strange to me. Am I
Engineering Co., the ASBCA decided several aspects of a
government motion for partial summary judgment as to various
categories of excess costs claimed by the contractor
associated with (i) denial of its entry at the Iraqi border
and (ii) the effects of an embargo on certain contract items
from Jordan under a contract to supply water treatment chemicals and cylinders of
chlorine gas to various locations in Iraq.
G. Yates and Sons Construction Co., the CBCA denied the
Government's motions to submit new evidence and to reconsider
the Board's prior
decision concerning the proper measure of
an equitable adjustment after the retroactive correction of an
erroneous Davis Bacon Act wage determination originally included in
are recently published NAICS decisions by the SBA's OHA.
Appeal of InGenesis, Inc., the OHA held that a solicitation for physicians'
services was properly classified under NAICS Code 621111
(Offices of Physicians, Except Mental Health Specialists)
rather than 622110 (General Medical and Surgical Hospitals).
NAICS Appeal of InGenesis, Inc., SBA No.
NAICS-5295 (Oct. 24, 2011), the OHA held that a solicitation
for nursing services was properly classified under
NAICS Code 621399 (Offices of All Other Miscellaneous Health
Care Professionals) rather than NAICS Code 622110
(General Medical and Surgical Hospitals).
Appeal of AllSource Global Management, LLC, the OHA held that a
solicitation for administrative support services (including
clerical, secretarial, logistical, and administrative
services) to various health clinics was properly
classified under NAICS Code 561110 (Office Administrative
Services) rather than 561210 (Facilities Support Services).
Appeal of Technica Corp., the OHA held that a solicitation for global
information services grid management engineering, transition,
and implementation was properly classified under NAICS Code
541512 (Computer Systems Design Services) rather than NAICS
Code 517110 (Wired Telecommunications Carriers).
Appeal of Secure Network Systems, the OHA held that a NAICS appeal
filed based on a presolicitation (and before issuance of the
actual solicitation) was premature. However, in NAICS
Appeal of Quantum Research International, Inc., the OHA dismissed an appeal filed
more than 10 days after the issuance of the initial
solicitation as untimely.
Appeal of SD Titan Resources/SM&MM, the OHA held that a solicitation for leased
modular vehicles should be classified under NAICS Code 236220
(Commercial and Institutional Building Construction) rather
than either NAICS Code 321992 (Prefabricated Wood building
Manufacturing), which had been the code designated by the
Contracting Officer, or NAICS Code 531120 (Lessors of
Nonresidential Buildings (except miniwarehouses)), which was
the code proposed by the appellant.
SBA proposes to proposes to increase small business size standards
for 20 industries and one sub-industry in NAICS Sector
53, Real Estate and Rental and Leasing, and for nine industries in
61, Educational Services. Comments are due by January 17,
LLC, the OHA held that a
service-disabled veteran who, under Louisiana law, shared
management responsibilities with another member of the LLC,
did not control the LLC as required by 13 C.F.R. 125.10.
In Ai Procurement
LLC/JVS, the OHA held
that two service-disabled veterans shared control of the
contested firm and that the firm was not disqualified as an
SDVOSB by the facts that a non-SDVOSB held a minority interest
in the firm or that the SDVOSB was dependent on a non-SDVOSB
for certain required licenses.
In Fidelis Design &
Construction, LLC, the
OHA held that a protest had been properly dismissed as
insufficiently specific and that the fact that a firm was not
listed in the VetBiz database was not grounds for protest in a
In Spectrum Contracting
Services, the OHA
upheld the SBA's determination that an individual had not
presented sufficient evidence to establish that his retinitis
pigmentosa, which impaired his vision, had resulted in him
being socially disadvantaged due to his physical disability.
The OHA's decision includes a very detailed and skeptical
analysis of the evidence the applicant had submitted.
International, Inc., the
OHA dismissed an appeal from a termination from the 8(a)
program whose only grounds was the appellant's
"unconditional apology" for failing to provide
required documents in a timely manner.
In NuRelm, Inc., the OHA dismissed an appeal
from termination from the 8(a) program which alleged only that
its 8(a) annual update, although admittedly late, was complete
when it was finally submitted.
In Secure Trendz, Inc., the OHA dismissed as untimely
an appeal filed more than 45 days after the firm received the
SBA's decision terminating it from the 8(a) program. To the
same effect is Indigo Spectrum, Inc., SBA No. BDP-360
(July 2, 2010).
In LCCCS, the OHA dismissed an appeal from a termination
from the 8(a) program because the petitioner alleged only that
“[d]ue to staff turnovers and server crashes,” the firm was
unable to retrieve information “which triggered a chain of
delays to everyone that needed access to [the firm's] past
and current tax information including SBA.”
Drywall Supply, Inc., the
OHA dismissed an appeal from termination from the 8(a) program
because the petitioner alleged only that it had faced
Construction, Inc., the
OHA upheld the SBA's determination that the applicant's
evidence presented with regard to his education, employment,
and business history as an Arab American of Iraqi descent, who
was sometimes suspected (without evidence) of being a
terrorist was insufficient to establish negative impact upon
his entrance into or advancement in the business world, which
is one of the requirements for a finding of social
disadvantage under 13 C.F.R. 124.103(c)(2)(iii).
Millennium Enterprises, Inc., the OHA dismissed an appeal from termination from the
8(a) program because the petitioner admitted it had not
submitted required documents to the SBA.
Engineers & Consultants, LLC, the OHA dismissed as untimely an appeal that had
been filed at the wrong office.
Hazzard's Excavating and Trucking Co., the OHA
held that an allegation of a lack of support from the SBA's
district office was insufficient as an excuse for termination
from the 8(a) program.
In Dominican Services,
Inc., the OHA denied a
motion for reconsideration, which was based on the fact that
the copy of the SBA's original motion to dismiss sent to the
protesting firm was not signed, a defect the OHA concluded was
an immaterial technical mistake, even though the protester
claimed that was the reason it had not responded to the motion
(which was the reason the OHA originally had dismissed
Investment Group, the Court of Federal Claims held that
correspondence between the Government and the plaintiff
concerning the plaintiff's quotation, which the Government
ultimately decided not to pursue because of suspected
plagiarism, was insufficient to establish a procurement
contract based on offer and acceptance.
In Size Appeal of
Hui O Aina, LLC, the OHA
petition for reconsideration of SIZ-5245 and held that the contested firm
not a small business because the proper interpretation of footnote 1 to 13
C.F.R. 121.201 ("A
firm is small if, including its affiliates, it is primarily engaged in
the generation, transmission, and/or distribution of electric energy
for sale and its total electric output for the preceding fiscal year
did not exceed 4 million megawatt hours") means (i) the majority
to the receipts of the challenged concern, itself, must be
derived from the generation, transmission, and/or distribution
of electric energy, and (ii) the majority of the
aggregated receipts of the challenged concern and its
affiliates must be derived from the generation, transmission,
and/or distribution of electric energy.
In Bering Straits Logistics Services, LLC, the OHA reversed the Area Office's finding that a firm violated
subcontractor rule by unusual reliance on a subcontractor,
specifically rejecting the Area Office's conclusions regarding key employees,
importance of a subcontractor's qualifications to obtaining the job,
percentages of labor costs attributable to the contractor and
subcontractor, respectively, and the division of work assigned to
In Size Appeal of
Four Winds Services,
the OHA denied a petition for reconsideration of SIZ-5260 (which found
a violation of the ostensible subcontractor rule) because a firm's proposal
did contain a firm commitment to perform the work at issue.
Appeal of Accent Service Co., the OHA held that a Master Subcontracting Agreement did
not establish a joint venture and did not establish that one
firm was the ostensible subcontractor of the other; the fact
that the contested firm often awarded subcontracts to another firm
did not establish economic dependence, if anything it made the
other firm dependent on the contested firm.
Appeal of EarthCare Solutions, the OHA affirmed the Area Office's
finding that the contested firm would be unusually reliant
upon another firm under the ostensible subcontractor rule.
Appeal of Alutiiq Education & Training, LLC, the OHA dismissed an appeal based on
an alleged violation of the ostensible subcontractor rule
because the contract at issue already had been awarded.
In Size Appeal of
IRA Green, Inc., the OHA held it
was clear error for the Area Office to determine a firm
complied with the nonmanufacturer rule solely on the basis of
the firm's bare assertions, without requiring any
proof, that it normally sold the type of item in question and that it
would supply the product of a U.S. small business manufacturer.
In Size Appeal of
ETouch Federal Systems, the
OHA upheld the Area Office findings that firms were affiliated through
the newly-organized concern rule (where there was no clear fracture) and
of interest due to economic dependence. Size Appeal of
ETouch Federal Systems, LLC, SBA No. SIZ-5271 (Aug. 25, 2011) has
the same holding.
In Size Appeal
of CJW Construction, the
OHA reversed the Area Office's size determination because the Area
Office erroneously (i) looked behind a valid mentor-protégé agreement
to find a violation of the newly-organized concern rule; (ii) found a
violation of the newly-organized concern rule based on a key employee
of the new firm who had not been an owner, officer, director, or key
employee of the prior firm; and (iii) found affiliation based on the
totality of the circumstances based on erroneous and inadequate
In Size Appeal
of Grantco Pacific, Inc., the
OHA affirmed the Area Office's finding of affiliation through identity
of interest of a firm owned by the son with another firm owned by his
Resources, the OHA affirmed the
Area Office's finding that the contested firm was not generally
affiliated with its joint venture partners under 13 C.F.R.
Appeal of Active Deployment Systems, Inc., the OHA held that a firm formed by
four former employees of a bankrupt firm (none of whom were
officers, directors, or owners of that firm) was not
affiliated with the bankrupt firm through the newly-organized
concern rule even though these personnel were employed by a bankruptcy trustee to assist in winding up the former firm.
In Size Appeal
of Emerald Biostructures, Inc.,
the OHA held that, under 13 C.F.R. 121.702(a)(1), a firm with multiple
layers of corporate ownership above it is ineligible to participate in
the SBIR program.
Appeal of NMA Architects Planners Leed Consultants, LLC, the OHA held that,
despite the general rule at 13 C.F.R. 121.404(a) that size is
determined as of the date of self-certification with a priced
offer, the Area Office erred in dismissing a protest as
premature, which was filed upon notification of the identity
of the offeror chosen for negotiation (before submission of a
price) in a formal two-step procurement for A/E services under
the Brooks Act pursuant to FAR 36.6.
Appeal of Quantum Professional Services, Inc., the OHA vacated a size determination
because it was based on a task order award under ID/IQ
contract absent a request for size recertification by the
ordering agency); Size Appeal of Quantum Professional
Services, Inc., SBA No. SIZ-5225 PFR (Apr. 13, 2011)
affirmed this decision on reconsideration.
Appeal of Hal Hays Construction, Inc., the OHA held that, under 13 C.F.R.
121.104(a)(1), the SBA must use tax returns filed before the date
of self-certification to determine size, not amended
returns filed after that date but before the initiation of the
Appeal of Malouf Construction, the OHA affirmed the Area Office's finding
that the Mississippi Material Purchase Certificate tax must be
included in a firm's gross receipts because the tax does not
fall under the exception for taxes collected on behalf of a
taxing authority at 13 C.F.R. 121.104(a).
Appeal of Pugh Enterprises, the OHA affirmed (i) a decision that a firm was not
eligible for a disaster loan and (ii) the determination of its
Appeal of SoftConcept, Inc., the OHA affirmed the Area Office's dismissal of protest
as insufficiently specific.
Appeal of SB Technologies, the OHA dismissed appeal as insufficient
because it did not allege any errors in two of three bases for
the Area Office's original size determination.
In Size Appeal of
Eagle Consulting Corp., the
OHA denied a
petition for reconsideration of SIZ-5267, which found a company was
affiliated with another through economic dependence.
In Size Appeal of
Mark Dunning Industries, Inc.,
the OHA held the Area Office did not adequately investigate a firm's adequately specific
allegations of affiliation.
Appeal of Innovative Resources, the OHA remanded a case to the Area Office to explain
(i) which regulatory provision it used in making its size
determination and (ii) which firms' receipts it used in its
has revised its OHA
decisions page yet again. The new page offers various
search options, and the searches take you to a Westlaw site
for the texts of the actual decisions. So far, it seems like
all the old links I currently have on my
OHA decisions page to OHA decisions since January 2007 still work, but, from
now on, it appears the SBA will only be providing access to
its new decisions via links to this Westlaw site. There
may be another hurdle to overcome with this new system. It
appears that, although you can navigate from the SBA'S search
page to the Westlaw site, you cannot copy the Westlaw address
for an individual decision and link directly to that decision
from a website other than the SBA's website. So, it appears I
may not be able to continue to publish links directly to new
OHA decisions from my website. If I am right (and I am still
getting to know this new set-up, so don't hold me to this),
what I may be limited to doing from now on is giving you the
case name, number, date, and summary of a decision's holding,
and then have you link to the SBA's search page. Then, you may
have to find the decision on that page and relink yourself from
that page to the text of the decision on Westlaw, which is
much more cumbersome that what we have now, but may be the
only option left if SBA does not change its mind about
publishing decisions on its own site. If anyone out there
knows more about the new system than I have been able to
figure out so far, please let me know. You may email me at the
"Contact me" link on in the left column on this
thought on this issue. Sometimes, readers send me copies of
SBA OHA decisions for cases that they are involved in.
Whenever you do that, I can upload those decisions to my
website and link directly to them. I encourage you to spread
the word that I'm willing to do this, and, that way, we can
make decisions directly available to the community without the
cumbersome process seemingly required by the SBA's new
The State Department
is amending the ITAR to include the Republic of the Sudan as a proscribed
destination, pursuant to a United Nations Security Council arms embargo,
and to clarify that this policy does not apply to the Republic of South
The CBCA issued
Automotive Group, the CBCA held a contractor's unilateral,
unfounded error in judgment not communicated to the Government
prior to award was not sufficient to entitle it to relief from
the terms of a vehicle lease.
International, the same board held that the Government did
not breach a contract by failing to exercise an option.
SBA is extending the
comment period (to December 8) for the proposed rules to implement
statutory provisions which provide that (i) there is a presumption of loss equal to
the value of the contract or other instrument when a concern willfully
seeks and receives an award by misrepresentation; (ii) the submission of an offer
or application for an award intended for small business concerns will be deemed
a size or status certification or representation in certain
circumstances; (iii) an authorized official must sign in connection with a size or status
certification or representation for a contract or other
instrument; and (iv) concerns that fail to update their size or status in the
ORCA database (or any successor thereto) at least annually shall
no longer be identified in the database as small or some other socioeconomic
status until the representation is updated. The proposed rules
also clarify when size is determined for purposes of entry into
the 8(a) Business Development and HUBZone programs.
In a spent
nuclear fuel case (Entergy
Nuclear Fitzpatrick), the Court of Federal Claims denied
the Government's motion to reconsider the court's prior
decision striking the Government's Unavoidable Delays
Ammunition, the court refused to summarily dismiss the
plaintiff's claim for the Government's breach of
non-disclosure agreements (NDAs) because questions remain
whether either the "waiver" or "operation of
law" exceptions to the Anti-Assignment Act apply to the
assignment of the NDAs.
Commerce Department's Bureau of Industry and Security (BIS)
has issued a proposed rule that (i) describes how articles the President determines
no longer warrant control under Category VIII (aircraft and related
items) of the United States Munitions List (USML) would be controlled under the
Commerce Control List (CCL) in new Export Control Classification Numbers
(ECCNs) 9A610, 9B610, 9C610, 9D610, and 9E610; (ii) would
transfer control of military aircraft and related items now controlled under
ECCNs 9A018, 9D018 and 9E018 to new ECCNs 9A610, 9D610 and
9E610; and (iii) addresses license exception availability for items
controlled by the five new ECCNs that would be created.
a parallel effort, the State Department proposes to amend the
ITAR to revise Category
VIII (aircraft and related articles) of the USML to describe
more precisely the military aircraft and related defense articles warranting
control on the USML. Comments on both the Commerce and State
Department's proposed rules are due by December 22.
sustained a protest by MEDI-e-ImageData
Corp. because the awardee's proposal did not comply with
material requirements of an RFQ.
Department is amending the ITAR to update the policy regarding Libya to reflect the
additional modifications to the United Nations Security Council
of Libya adopted in September 2011.
Department also is amending the ITAR to reduce the
administrative burden on applicants by eliminating the
requirement to return certain expired DSP-5
proposing to update policy, responsibilities, and procedures to
conform with section 21(e)(1)(B) of Public Law 90–629, as amended,
for calculating and assessing charges for recoupment
of nonrecurring costs on sales to non U.S. government
customers of items developed for or by DoD. Comments are due
by January 3, 2012.
Diem, Travel and Transportation Allowance Committee published Civilian Personnel Per Diem
Number 278, 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.
just published a winning protest decision it originally issued
in March of 2010--must have been a donneybrook over proposed
Development International, Inc., B-402198.2 (Mar. 28, 2010).
2005-54 has been published and includes the following nine
items plus technical amendments:
Case 2010-006 ("Notification of Employee
Rights Under the National Labor Relations Act"): A final rule
without change, the interim rule amending the FAR to
incorporate the DOL regulations that implemented
Case 2008-025 ("Preventing Personal
Conflicts of Interest for Contractor Employees Performing
Acquisition Functions"): Effective December 2, a final rule
adds a subpart 3.11 to the FAR to implement the policy on personal
conflicts of interest by employees of government contractors as
required by section 841(a) of the Duncan Hunter National Defense Authorization
Act for Fiscal Year 2009 (Pub. L. 110–417) (41 U.S.C. 2303).
Case 2009-019 ("Small Disadvantaged Business
Program Self-Certification"): This final rule adopts,
without changes, the prior interim rule amending the FAR to incorporate
revisions made by the SBA to its small disadvantaged business
program, specifically to permit subcontractors to self-represent their
SDB status to prime contractors in good
faith when seeking federal subcontracting opportunities.
Case 2010-012 ("Certification Requirement
and Procurement Prohibition Relating to Iran Sanctions"):
A final rule adopts, with changes, the prior interim rule
amending the FAR to to implement sections 102 and 106 of the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of 2010, which,
respectively, (i) require 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
and (ii) impose a procurement prohibition relating to contracts with persons that
export certain sensitive technology to Iran.
Case 2010-018 ("Representation Regarding
Export of Sensitive Technology to Iran"): An interim rule
amends the FAR to add a representation to implement section 106 of the Comprehensive Iran
Sanctions, Accountability, and
Divestment Act of 2010, which imposes a procurement prohibition
relating to contracts with persons that export certain sensitive technology to
Case 2011-024 ("Set-Asides for Small
Business"): An interim rule amends the FAR to implement section 1331 of the Small
Business Jobs Act of 2010, which addresses set-asides of task-
and delivery-orders under multiple-award contracts, partial set-asides under multiple-award contracts,
and the reserving of one or more multiple-award contracts that are
awarded using full and open competition.
Case 2009-041 ("Sudan Waiver Process"): Effective
December 2, a final rule amends the FAR to revise the prohibition on contracting
with entities that conduct restricted business operations in
Sudan and to add specific criteria including foreign policy aspects that an agency must
address when applying to the President or his appointed designee for a waiver
of the prohibition on awarding a contract to a contractor that conducts
restricted business operations in Sudan. The rule also describes the consultation
process that will be used by the OFPP in support of the waiver request review.
Case 2011-014 ("Successor Entities to the
Lesser Antilles"): A final rule amends the FAR to revise the definitions of
"Caribbean Basin country" and "designated
country"’ due to the change in status of the islands that comprised the
Case 2009-006 ("Labor Relations Costs"): Effective
December 2, a final rule amends the FAR to implement the E.O. on Economy in Government
Contracting, issued on January 30, 2009, and amended on October 30,
2009, which treats as unallowable the costs of any activities undertaken to persuade
employees, whether 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.
a forum denies a motion for summary judgment because there are
disputed facts that require further development in the record.
Systems, however, the ASBCA denied the Government's motion
after the Board found there were no disputed facts and held
that (i) the contract contained a latent ambiguity concerning
whether R&R travel expenses were reimbursable and (ii) the
contractor's interpretation that they were reimbursable was
reasonable. Looks a win on the merits for the contractor to
Operative Group, the ASBCA dismissed an appeal based on a
progress payment request in excess of $100,000 for lack of CDA
jurisdiction because the request did not include the CDA
certification and the progress payment certification it did
include was not an adequate substitute.
the ASBCA modified its original decision in Thomas
Associates--see June 1 entry below for original
Mobil Corp., the Court of Federal Claims held that certain
World War II contracts for the production of avgas require the
Government to bear the current cleanup costs for refineries
that produced the gas.
Consultants, the Court of Federal Claims denied a
post-award protest because (i) discussions were not
misleading, inadequate, or unequal; (ii) the Government did
not add an unstated evaluation criterion in analyzing the
protester's proposal; (iii) there was a rational basis for the
IGCE; and (iv) there was a rational basis for the evaluation
of the protester's management proposal.
another protest (by Survival
Systems, USA), the court denied the Government's motion to
supplement the administrative record with the declaration of
the individual who conducted the price analysis because the
declaration was prepared after the fact, and the information
it purported to provide already was ascertainable from the
Dental Laboratories, the GAO recommended that the
protester recover its costs because the agency filed the
agency report disputing the protest after the agency knew a
protest ground had merit.
ASBCA published four decisions.
J. Miller & Assocs., the Board denied a contractor's
claim that the Government had breached a requirements contract
by diverting work to other entities.
Mullens, the Board held that, concerning a non-CDA
concession contract, the Board lacked jurisdiction over an
appeal from a no-fault termination absent an underlying claim.
Constructors, the Board denied a government motion for
summary judgment because there were issues of fact regarding
contract interpretation requiring further development in the
Missile Systems, the Board denied the contracting agency's
motion for summary judgment because of material disputed facts
over whether that agency's relationship with another
government agency resulted in the increases in fuel prices for
which contractor is seeking recovery under theories of
constructive change and breach of the duty of non-interference
with contractual performance.
Connector won its GAO protest against an agency's
corrective action because, after the agency materially amended
the solicitation, it should have permitted offerors to
revise all aspects of their proposals, including price.
Construzioni Geom. Domenico Garufi, the Court of Federal Claims
awarded EAJA fees after a partially successful bid protest and
analyzed various quantum issues in such awards, including
expenses of (i) foreign attorneys, (ii) translation, and (iii)
travel, as well as the standard for determining whether an
enhanced award is justified and the method of computing a
sustained a protest by EBA
Ernest Bland Assocs. because the agency made its selection
without consideration of the solicitation's evaluation
Government Consulting, the Court of Federal Claims issued
a permanent injunction against further performance of a
contract because (i) the contractor had access to proprietary
information concerning its competitors from its work on
a prior contract and (ii) this OCI was not adequately
Case 2012-D001: DoD (i) is proposing to amend the DFARS to
revise and expand reporting requirements for
government-furnished property to include items uniquely and
non-uniquely identified and clarify policy for contractor
access to Government supply sources; and (ii) is hosting a
public meeting to discuss the proposed rule on November 17,
2011, at 1 p.m. EST in the Defense Acquisition Regulations
Council Conference Room, 241 18th Street South, Suite
200A, Arlington, VA 22202–3409. Comments are due by December
Government's motion for reconsideration, the ASBCA held in SRI
International that the amount due the contractor for
maintaining a standby letter of credit over two fiscal years
under several contracts is to be determined by the procedures
set forth in the "Allowable Cost and Payment" clause
rather than being predetermined by the Board as suggested by
Information Systems, LLC; TrueTandem, LLC, the GAO
sustained a protest because the agency failed to establish any
legitimate government need for a solicitation requirement that
any non-U.S.-based cloud computing data centers be located in
Trade Agreements Act Designated Countries.
Safdie and Assocs., the CBCA denied the contractor's
motion for summary relief because the remedy stated in
"Design Within Funding Limitations" clause (FAR
52.236-22), requiring the contractor to re-design the work if
construction bids come in over budget, does not per se
bar the Government from also seeking consequential or actual
Tree Care, the CBCA denied various claims by a contractor
performing storm clean-up work in a forest because the work
was required by the contract and because the contractor was
responsible for the costs associated with improper actions by
Foodservice, the Court of Federal Claims upheld a challenge to the agency's use of a Most Favored
Customer clause in a solicitation because the terms of the
clause were not a reasonable means of achieving the agency's
Health Care, the court (i) dismissed one protest for lack
of standing because resolution of the protest grounds would
not place the protester in line for award; and (ii) denied the
protests of a second protester against the solicitation's
terms and the past performance evaluation.
sustained two protests--
the GAO held that (i) the VA violated the Veterans Benefits,
Health Care, and Information Technology Act of 2006 and its
implementing regulations in the VAAR by using non-mandatory
FSS procedures rather than setting aside an acquisition
for SDVOSBs; and (ii) FAR provisions implementing the
separate Veterans Benefit Act of 2003 are not controlling in
Solutions, the GAO recommended that the agency terminate
an award and award the contract to the SDVOSB protester after
the SBA reversed its initial refusal to issue a COC to the
protester because that decision had been based on the use of
the wrong standard for determining the firm's compliance with
the "Limitations on Subcontracting" clause.
Case 2010-013: A proposed rule would amend the FAR to
require contractors to complete training that addresses the
protection of privacy, in accordance with the Privacy Act of
1974, and the handling and safeguarding of personally
identifiable information. Comments are due by December 13.
Case 2011-309: GSA
has amended the FTR regarding (i) the reimbursement of lodging
per diem expenses while on TDY
and (ii) GSA’s policy concerning reimbursement for
personally-owned residence and personally-owned recreational
vehicle expenses while on TDY.
has issued a direct final rule that will be effective November
28 (unless significant adverse comments are received by
November 14) making various amendments conforming SBA's
regulations to changes made by the Small Business Jobs Act of
2010 to several SBA programs, including business lending,
disaster lending, and contract
Safety Consultants, the ASBCA converted a default
termination to a termination for convenience because (i) the
Government "dallied" for 11 months after the
contract completion date before terminating, demonstrating
that time was not the essence, and (ii) the Government,
therefore, should have established a new completion date
As part of
its comprehensive review of size standards, the SBA is
proposing to increase its size standards for 37 industries in NAICS
sector 56 (Administrative and Support, Waste Management
and Remediation Services) and to retain the current size
standards for seven industries in that sector. The SBA also is
proposing to increase its size standards for 15 industries in NAICS
sector 51 (Information). Comments are due by
Industrial Park, the Court of Federal Claims (i) examined a
non-CDA barter contract requiring the Government to make road
improvements in exchange for an easement on the plaintiff's
land to patrol the border and (ii) decided issues of contract
interpretation, equitable estoppel, waiver, and rescission.
Express Pipeline, the CBCA determined the damages flowing from the
Government's breach of of a Precedent Agreement and a firm transportation
service agreement and the Government's refusal (i) to execute another firm
transportation service agreement and (ii) to pay required reservation
SBA is proposing to amend its regulations to
implement provisions of the Small Business Jobs Act of 2010
pertaining to small
business size and status integrity, specifically (i) to
establish that there is a presumption of loss equal to the
value of the contract or other instrument when a concern
willfully seeks and receives an award by misrepresentation;
(ii) to provide that the submission of an offer or application
for an award intended for small business concerns will be
deemed a size or status certification or representation in
certain circumstances; (iii) to provide that an authorized
official must sign in connection with a size or status
certification or representation for a contract or other
instrument; (iv) to provide that concerns that fail to update
their size or status in the ORCA database at least annually
shall no longer be identified in the database as small or some
other socioeconomic status, until the representation is
updated; and (v) to clarify when size is determined for
purposes of entry into the 8(a) Business Development and
HUBZone programs. Comments are due by November 7.
Learning, Inc., the CAFC reversed the CBCA's summary dismissal of an appeal for lack of subject matter jurisdiction
because, after the contractor initially pled that its appeal
involved a contract covered by
the CDA, the CBCA made summary conclusions
about the credibility of evidence as to the existence of a
contract. The CAFC held the Board should have treated the
situation as a motion to dismiss for failure to state a claim
(where the factual allegations in the complaint must be
accepted as true) as opposed to a motion to dismiss for lack
of subject matter jurisdiction (where only the uncontroverted
factual allegations are accepted for purposes of the
Board proposes to revise its regulations to clarify that
the exemption from CAS at 48 C.F.R. 9903.201–1(b)(15),
"(b)(15) FFP exemption," applies to
firm-fixed-price contracts and subcontracts awarded on the
basis of adequate price competition without submission of
certified cost or pricing data. Comments are due by December
implement provisions of the Small Business Jobs Act of 2010,
the SBA is proposing to amend its regulations (i) to provide
that, for a "covered contract" (a contract for which
a small business subcontracting
plan is required, currently valued above $1.5 million for
construction and $650,000 for all other contracts), a prime
contractor must notify the Contracting Officer in writing
whenever the prime contractor does not utilize a subcontractor
used in preparing its bid or proposal during contract
performance; (ii) to require a prime contractor to notify the
Contracting Officer in writing whenever the prime contractor
reduces payments to a subcontractor or when payments to a
subcontractor are 90 days or more past due; (iii) to establish
that the Contracting Officer is responsible for monitoring and
evaluating small business subcontracting plan performance;
(iv) to clarify which subcontracts must be included in
subcontracting data reporting, which subcontracts should be
excluded, and the way subcontracting data is reported; (iv) to
make other changes to update its subcontracting regulations,
including changing subcontracting plan thresholds and
referencing the electronic subcontracting reporting system
(eSRS), some of which changes would require the Contracting
Officer to review subcontracting plan reports within 60 days
of the report ending date; and (v) to address how
subcontracting plan requirements and credit towards
subcontracting goals can be implemented in connection with
Multiagency, Federal Supply Schedule, Multiple Award Schedule
and Government-wide Acquisition ID/IQ contracts. Comments are
due by December 5.
2007-D002: DoD is adopting as final, with changes, an
interim rule amending the DFARS to comply with section 3504 of
the National Defense Authorization Act for Fiscal Year 2009,
which addresses requirements that apply to riding gang members
and DoD-exempted individuals who perform work on U.S.-flag
vessels under DoD contracts for transportation services.
2011-D028: DoD is issuing a final rule amending the DFARS
to revise the definition of "qualifying country end
product" by eliminating the component test for qualifying
country end products that are commercially available
2011-D049: DoD is proposing to amend the DFARS to clarify
the requirements for the Canadian Commercial Corporation to
submit data other than certified cost or pricing data.
Comments are due by December 5.
proposes to revise the list required by E. O. 13126 ("Prohibition
of Acquisition of Products Produced by Forced or Indentured
Child Labor") in accordance with the DOL's "Procedural
Guidelines for the Maintenance of the List of Products
Requiring Federal Contractor Certification as to Forced or
Indentured Child Labor" by adding the following three
products: bricks from Afghanistan and cassiterite and
coltan from the Democratic Republic of the Congo. Comments are
due by December 3.
decisions denying motions for summary judgment because the
record was not yet sufficient to decide the issues.
has issued its 2011
decisions, including the following:
Man Properties, the PSBCA held that the Government, by
holding over, did not constructively exercise a lease renewal
option, which required written notice of its exercise.
Carranza Trucking Co. , the PSBCA held it lacked
jurisdiction to stay enforcement of a government claim.
cases, the Government was denied recovery of excess
reprocurement costs after a valid default termination simply
because it neglected to present any evidence on the subject of
the similarity of the reprocurement contract to the terminated
contract. In Odessa
R. Brown, for example, the PSBCA wrote: "Respondent
did not submit into the record a copy of the replacement
contract or any other evidence which could establish the type,
frequency or timing of the service required by the replacement
contract." Similarly, in
T. Smart, the Board noted that the Government failed to
present any evidence that the reprocurement contract was for
the same, or similar, services.
Top Construction , the PSBCA held that (i) the contractor
could recover its consultant costs incurred up to, but not
after, the Government's approval of substitute equipment
associated with a change; and (ii) attorney fees incurred in
trying to convince Contracting Officer of the amount claimed
by contractor for the change were not recoverable.
W. Holcombe, the PSBCA held that a default termination was
justified by a contractor's failure to disclose on a pre-award
form negative employment history of prior bad acts, even
though the Government did not discover this omission until
after it had terminated the contract on other grounds.
L. Fox and Todd Fox, the PSBCA dismissed an untimely-filed
application for attorneys fees under the EAJA.
by November 30 on proposed updates to its Commercial
Item Handbook, which may be viewed here.
Transportation Security, a successful bid protest, the
Court of Federal Claims (Judge Bush) held that (i) the SSEB
failed to evaluate the technical factors in accordance with
relative weights (as required by the solicitation) and failed
to offer any specific justification for preferring the lower
priced proposal over the higher technically rated proposal
when technical factors were supposed to be paramount; and (ii)
the SSA simply adopted the SSEB's recommendation without any
independent analysis. Judge Bush, in other words, did what
other judges rarely do (and the GAO almost never does), i.e.,
looked below the surface and saw the agency was merely going
through the motions rather than doing its job. Well done,
judge. The court also held that, even though the protester had
not filed a timely protest of the solicitation's price
evaluation scheme, that scheme should be modified by the
agency as part of its remedial actions in response to the
meritorious parts of the protest because the scheme was
irrational and not in conformance with the applicable
Back to my
pet peeve subject (see KDI Development squib at
September 22 below), in Zafer
Taahut Insaat ve Ticaret A.S., the ASBCA denied a
government motion to dismiss an appeal and held that the
contractor's submission met the requirements for a CDA claim:
it was certified; it requested a Contracting Officer's
decision; and it was for a sum certain. Now that the parties
and the Board have wasted resources and time on that issue,
they can proceed to the merits.
Case 2011-D013: DoD has reopened the comment period (which
now extends to October 7) for the proposed rule that would
amend the DFARS to address the procedures to be followed in
competitive acquisitions when only one offer is received, i.e.,
with some exceptions, the Contracting Officer must (i)
resolicit for an additional period of at least 30 days (if the
solicitation allowed fewer than 30 days for receipt of
proposals) or (ii) determine prices to be fair and reasonable
through price or cost analysis or enter negotiations with the
offeror (if a period of at least 30 days was allowed for
receipt of proposals).
Development Corp., the Court of Appeals for the Federal
Circuit affirmed the ASBCA's dismissal for lack of
jurisdiction because the contractor failed to appeal a
termination settlement cost claim to the Board within 90 days
of receiving the Contracting Officer's decision and failed to
submit equitable adjustment claims within the CDA's six-year
statute of limitations.
Energy Services, the Court of Federal Claims held that (i)
a protester that did not qualify as a SDVOSB because it was
not directly owned by a SDV lacked standing to protest a VA
set-aside for SDVOSBs, and (ii) its complaint that the DLA
should not have dissolved a SDVOSB set-aside was moot because
it would not be precluded from bidding on the resulting
In the East
West, Inc., bid protest, the Court of Federal Claims
denied the protester's request to add a declaration by
one of its officers to the administrative record but
granted the protester's alternative request to include the
declaration in the court record on the issue of alleged
prejudice from the agency's actions: in this case, how the
protester interpreted, and responded to, those actions.
Development, Inc., the CBCA applied the CDA's statute of
limitations to a government claim and held that the agency
could recoup overpayments for operating costs it made to a
contractor under a lease only for a period of six years prior
to date the agency provided the contractor with a
"claim" for such overpayments. The CDA has been in
effect now for more than 30 years, and we still see language
like the following in case after case because of the statute's
most glaring omission: "Because the statute lacks a
definition of 'claim,' one looks to language of implementing
regulations, the contract, and facts."
Dale Westergard, the CBCA denied the Government's motion
to dismiss an appeal to the Board as untimely because the
Government could not prove when the contractor received a
Contracting Officer's decision sent to it by
are more recent decisions by the SBA's OHA:
Appeal of The MayaTech Corp., the OHA affirmed the
Area Office's finding that reimbursements for items the
contractor purchased at its customer's request under various
government contracts and subcontracts could not be excluded in
calculating its receipts under 13 C.F.R. 121.104(a).
Appeal of MWE Services, Inc., the OHA affirmed the
Area Office's dismissal of a protest where the initial protest
submissions were insufficiently specific and later
submissions were untimely filed more than five days after the
posting of the contract award notice on the FedBiZOpps
Appeal of DMI Educational Training LLC, the OHA affirmed the Area Office's
findings of affiliation due to (i) common management existing as of
the self-certification date and (ii) application of the adverse
inference rule (after the protested firm failed to provide information
requested by Area Office), even though the Area Office was incorrect
on the application of the newly-organized concern rule)
Appeal of Griswold Industries dba CLA-VAL Co., the OHA
affirmed the Area Office's decision to count a firm's
"inactive employees" in determining its size.
Appeal of Spiral Solutions and Technologies, Inc., the
OHA reversed the Area Office's finding of a violation of the
ostensible subcontractor rule because the prime contractor
would perform primary and vital contract requirements.
Appeal of NexOne, the OHA held that an appeal of a
NAICS code in a presolicitation notice was premature.
Case 2010-D017: DoD has issued a final rule amending the
DFARS to establish
a standard procedure for offerors responding to solicitations
for commercial items and initial provisioning spares to
propose an alternative line item structure that reflects the
offeror’s business practices for selling and billing
commercial items and initial provisioning spares for weapon
Case 2009-D011: This final rule conforms
the DFARS to higher-level changes in the C.F.R. relating to
annual representations and certifications.
Case 2010-D024: DoD has issued a final rule amending the
DFARS to remove
the requirement to use DoD-unique forms to prepare contractor
performance evaluations for construction and
Case 2011-D037: This final rule amends the DFARS to
clarify that a contracting officer’s representative must be
an employee, military or civilian, of the U.S. Government, a
foreign government, or a NATO/coalition partner, and that
contractor personnel shall not serve as contracting officer’s
Case 2009-D023: Another final rule amends the DFARS Appendix
F, Material Inspection and Receiving Report, to incorporate
new procedures for using the electronic Wide Area WorkFlow (WAWF)
Case 2009-D026: This final rule reorganizes
and updates existing DFARS coverage for multiyear
Case 2010-D013: This final rule amends the DFARS to
strongly encourage discussions prior to award for source
selections of procurements estimated at $100 million or more.
Case 2010-D014: Another final rule amends the DFARS to
update requirements relating to the use of passive radio
frequency identification (RFID).
Case 2011-D036: This final rule amends the DFARS to
conform references to the new Codification of Title 41, United
States Code, "Public Contracts."
Government Travel, Inc. d/b/a CWTSATOTravel, a pre-award
protest, the Court of Federal Claims issued a declaratory
judgment that the GSA’s use of a
15-year fixed pricing schedule in a solicitation for
commercial services violated customary commercial practice and
was, therefore (in the absence of a valid waiver), arbitrary,
capricious, and contrary to law.
Case 2011-D033: DoD has issued an interim rule amending
the DFARS to implement those sections of the National Defense
Authorization Acts (NDAA) for FY 2011 and 2010 providing
increased statutory authorities to reduce or deny award fees
to companies found to jeopardize the health or safety of
government personnel and adding a mechanism to decrease or
eliminate a contractor’s award fee for a specific
performance period. In addition, this rule modifies the
regulations based on the section of the NDAA for FY 2009 which
requires that information on the final
determination of award fee be entered into FAPIIS. Comments
are due by November 15.
Case 2010-D026: DoD has issued a final rule amending the
DFARS to require contractors to display the DoD hotline poster
in common work areas.
Case 2011-D010: DoD has issued a final rule amending the
DFARS to increase the use of fixed-price incentive (firm
target) contracts, with particular attention to share lines
and ceiling prices.
proposing to revise the NASA FAR Supplement (NFS) to update
both the "Award Fee for Service Contracts" clause
(NFS 1852.216–76) and the "the Award Fee for End Item
Contracts" clause (NFS 1852.216–77) to clarify that the
amount of award
fee held in reserve, if any, shall not exceed $100,000 for
the contract. Comments are due by November 14.
Trends, Inc., the Court of Federal Claims held that, after
the expiration of FASA's sunset provision regarding task order
protests (41 U.S.C. 4106(f)), the court has jurisdiction over
bid protests of task orders under 28 U.S.C. 1491(b)(1). Maybe
the court's analysis follows the rules of legislative
interpretation, but I think I agree with the Government that
this is probably not the result Congress intended.
are recent decisions by the SBA's OHA:
Appeal of Head, Inc., the OHA dismissed an appeal for
lack of standing because, in an unrestricted procurement, the
firm did not establish that it was eligible for any price or
evaluation preference based on the NAICS designation in the
Appeal of Phoenix Environmental Design, Inc. , the OHA
held that the Contracting Officer should
have assigned the manufacturing NAICS code 325320, Pesticide
and Other Agricultural Chemical Manufacturing, instead of the
wholesale trade NAICS code 424910, Farm Supplies Merchant
Wholesalers, because RFQ was for supplies.
Appeal of Four Winds Services, Inc., the OHA concluded
a firm that would perform the majority
of the contract labor and would staff the second most
influential contract position was the offeror's ostensible
Appeal of The Patrick Wolffe Group, Inc., the OHA
reversed the Area Office's finding of an ostensible
subcontractor because (although the offeror
delegated specific contract tasks to be performed by its
proposed subcontractor), (i) the offeror alone would
manufacture the contract items, (ii) its representative
presided over the oral presentation, and (iii) the Contracting
Officer concluded that the offeror had the necessary
experience and capability to produce the items and manage the
Appeal of OSC Solutions, Inc., the OHA held that,
because a solicitation was for services, the nonmanufacturer
rule and the corresponding 500 employee size standard did not
Appeal of Malouf Construction, LLC, The OHA affirmed
the Area Office's inclusion of the Mississippi Material
Purchase Certificate tax in a firm's average annual receipts
because that tax is levied on prime contractors, and there is
no indication it is to be collected from a firm's customers on
behalf of the taxing authority.
Appeal of Barlovento LLC, the OHA analyzed the
calculation of average annual receipts when multiple joint
venture affiliates are involved.
Appeal of McClendon Acres, Inc., although the OHA
affirmed the Area Office's findings of affiliation with
various firms through majority ownership, control based on
initial capital contributions, ownership of a non-majority
block of stock that was large compared to other outstanding
blocks, and identity of family interests without clear
fracture, the OHA also held that the Area Office failed to
determine the primary industry of a firm applying for HUBZone
status and to apply the single appropriate size standard for
Appeal of Manroy USA, LLC, the OHA overturned
the Area Office's finding of affiliation through
identity of interest because the business ties between an
individual and a firm were limited to, and did not extend
beyond, furthering the business of the challenged entity.
Appeal of Outdoor Venture Corp., the OHA dismissed an
appeal filed more than 15 days after the firm's receipt of a
size determination as untimely, even though the firm had
attempted to file by email in a timely manner, because the
email was not received by the OHA. It did not matter that the
firm received no indication that its email transmission had
Appeal of Falcon, Inc., the OHA found the original
size appeal was untimely because it was filed more than five
days after receipt of the notice of award from the Contracting
Officer (and filing a protest at the GAO did not extend the
period for filing the size protest).
Technology, the CBCA held the Contracting Officer lacked
the authority to impose the reporting requirements of the
American Recovery and Reinvestment Act of 2009 on a contractor
midway through its contract by unilaterally inserting FAR
52.204-11 in the contract.
Co. of the West, the Court of Federal Claims dismissed for
lack of jurisdiction an action brought by a surety as the
alleged equitable subrogee and assignee of a contractor's
claim because the surety did not prove the Government had
waived the protections of the Assignment of Claims Act.
In the Matter
of Construction Engineering Services, an important
decision overruling two prior OHA decisions, the SBA's OHA
clarified the law and held that, for an SDVO joint venture, it
is not required that the SDV control the joint venture. The
proper, two-step analysis is: (i) whether the SDVO
SBC joint venture partner meets the SDVO SBC program
eligibility requirements set forth in Subpart B of 13 C.F.R
Part 125; and, then, (ii) whether the joint venture meets the
requirements of 13 C.F.R. § 125.15(b).
Case 2009-016: A proposed rule would amend the FAR to
conform to the Federal Circuit's decision in Rothe
Development Corp. v.
F.3d 1023 (Fed. Cir. November 4, 2008)
(which declared 10 U.S.C. 2323 unconstitutional). Section 2323
was the basis for the DoD's small disadvantaged business
program and the 10 percent price advantage for SDBs. The
proposed rule would amend the FAR (i) to remove coverage at
FAR subpart 19.11, FAR subpart 19.12, corresponding clauses at
FAR 52.219–22, Small Disadvantaged Business Status, FAR
52.219–23, Notice of Price Evaluation Adjustment for Small
Disadvantaged Business Concerns, FAR 52.219–24, Small
Disadvantaged Business Participation Program—Targets, FAR
52.219–25, Small Disadvantaged Business Participation
Program—Disadvantaged Status and Reporting, and FAR 52.219–26,
Small Disadvantaged Business Participation Program—Incentive
Subcontracting; and (ii) to remove references to FAR subpart
19.11, 19.12, and corresponding clauses in FAR parts 1, 2, 4,
12, 14, 15, 19, 22, 26, 52, and 53. Other FAR provisions in
section 19.12 and related sections that address the award of subcontracts
to SDBs and that are rooted in the Small Business Act were
not at issue in the Rothe decision and, therefore,
retain their legal status. These include the authority (i) to
provide monetary incentives to prime contractors to encourage
subcontracting opportunities to SDBs and (ii) to use an
evaluation factor or subfactor to evaluate the participation
of small businesses as subcontractors. Comments on the
proposed rule are due by November 8,
Case 2011-301: The GSA has amended the FTR by making
to Chapters 300 and 301 regarding temporary duty (TDY) travel,
including (i) adjusting the definition of incidental expenses;
(ii) clarifying necessary deduction amounts from the meals and
incidental expense reimbursement on travel days; (iii)
extending to agencies the authority to issue blanket actual
expense approval for TDY travel during Presidentially-Declared
Disasters; and (iv) updating other miscellaneous provisions.
Antilles dissolved on October 10, 2010, the Bureau
of Industry and Security has revised the EAR (i) to
remove the Netherlands Antilles from all places where it is
mentioned in the regulations; (ii) to add Curacao and Sint Maarten
(the Dutch two-fifths of the island of Saint Martin) to the
Commerce Country Chart (because they are now semiautonomous
entities within the Kingdom of the Netherlands); (iii) to make
clear that Bonaire, Saba, and Sint Eustatius
are treated like the Netherlands (because they are
dependencies and fall under the direct administration of the
Netherlands) and will not be listed on the Commerce Country;
and to revise the name "East Timor" to read
"Timor-Leste" throughout the
EAR, because this is the proper name of the country.
are a few more recent SBA OHA decisions:
Appeal of Bush Technologies, LLC, the OHA held the
Area Office erred in dismissing as insufficiently specific, a
protest alleging that, based on information in a government
website, a firm exceeded the size standard because it had more
than the dollar limit in contracts in its most recent
Size Appeal of
Camden Shipping Corp. , the OHA upheld the Area
Office's decision in spite of the appellant's contention that
the Area Office did not count all employees of challenged
Appeal of C2 Freight Resources, Inc., the OHA vacated
the Area Office's determination because the amounts a firm
collects for freight carriers as a property broker should be
excluded from the calculation of its annual receipts.
Appeal of Bevilacqua Research Corp , the OHA affirmed
the Contracting Officer's designation of NAICS code 541690,
Other Scientific and Technical Consulting Services.
L.L.C., the Court of Appeals for the Federal Circuit
reversed the CoFC and held that court had Tucker Act
jurisdiction over a contractor's breach of contract claim
following termination in accordance with the 2008 amendment to
the Medicare Improvements for Patients and Providers
are recently published decisions by the SBA's OHA:
Appeal of Assessment & Training Solutions Consulting Corp.,
the OHA affirmed the Area Office's determination that there
was no violation of ostensible subcontractor rule.
Appeal of A-Top Security Co., the OHA dismissed an
appeal not filed within 15 days of contractor's receipt of a
size determination, although it was postmarked on the 15th
Appeal of Active Deployment Systems, Inc., the OHA
vacated the Area Office's decision and found three firms were
affiliated through common management.
Appeal of Argus and Black, Inc, the OHA overturned the
Area Office's finding of affiliation through economic
dependence because that determination was based only on one,
of Artis Builders, Inc. , the OHA upheld the SBA's
finding that a non-SDV had the power to control the company's
Board of Directors, in part because he was required to be
present for a quorum, and the bylaws did not specify what
happened in case of a tie vote between the two directors.
Construction, L.P., the Court of Appeals for the Federal
Circuit affirmed the CoFC's decision that, although the court
had CDA jurisdiction to consider the contractor's claim that
the Government gave it an unfair performance evaluation, the
complaint failed to state a claim under Rule 12(b)(6) because
the contractor did not allege that all its delays were
excusable and, thus, there was no basis for concluding the
Government's evaluation was arbitrary or capricious.
III, LLC, the ASBCA held that the contractor was not
entitled to reimbursement for health and welfare benefit cost
increases in (i) the base year of the contract (because it
modified its CBA to effectuate such increases after the
beginning of the base year, and the applicable contract clause
did not provide for base year adjustments) or (ii) in the
option years (because each of the option year mods constituted
an accord and satisfaction and did not provide for such
has issued final regulations (but with the effective dating
pending) to implement E.O. 13495 and to mandate the inclusion
of a contract clause in service contracts requiring the
successor contractor and its subcontractors to offer those
employees employed under the predecessor contract, whose
employment will be otherwise terminated as a result of the
award of the successor contract, a
right of first refusal of employment under the successor
contract in positions for which they are qualified.
has determined that no changes are required at this time, the
CAS Board is discontinuing its reviews of (i) the
CAS 403 thresholds at 48 C.F.R. 9904.403–40(c)(2) that
require use of the three
factor formula described at 48 C.F.R. 9904.403–50(c)(1)
for allocating residual home office expenses; and (ii) the
development of an amendment to CAS 416 regarding the use of
the term catastrophic
losses at 48 C.F.R.
Application & Technologies, a successful protest, the
Court of Federal Claims held that an agency's decision to take
corrective action (after receiving an email from a GAO
attorney indicating GAO likely would sustain a protest) was
irrational because, contrary to the statements in the GAO's
email, there was nothing wrong with the original source
The court was emphatic in rejecting the GAO attorney's
analysis of the alleged errors in the evaluation process.
Tauri Group, another bid protest, the court allowed
partial supplementation of administrative record (e.g.,
with evaluators' worksheets) requested by the plaintiff and
amendment of the record requested by the agency.
LLC, the Court of Federal Claims held that the plaintiff
had forfeited its claim pursuant to the Forfeiture of
Fraudulent Claims Act, 28 U.S.C. § 2514, and that the
Government was entitled to penalties and damages (for its
costs of investigating the plaintiff's actions) under the
False Claims Act, 31 U.S.C. § 3729(a)(1), because the
plaintiff had engaged in a scheme to defraud the Government by
over-billing for preventative maintenance inspections of
trailers in the wake of Hurricane Katrina.
The Office of
Personnel Management has issued an interim rule abolishing the
New Jersey, nonappropriated fund (NAF) Federal Wage System
wage area and redefining Monmouth County, NJ, to the
Burlington, NJ, NAF wage area because the closure of Fort
Monmouth will leave the Monmouth wage area without an activity
having the capability to conduct a local wage survey. Comments
are due by September 26.
The GSA has
Diem Bulletin 12-01 establishing revised per diem rates
for lodging and meals for locations within CONUS.
ASBCA published three decisions.
Davis Group, the Board denied the contractor's claim for
an extension of the performance period because the
contractor's own delays were primarily responsible for the
delay in the Government's approval of the contractor's
Inc., the Board denied cross motions for summary judgment
because there were far too many uncertain and disputed facts
on both sides.
International, the Board held that the contractor
satisfied the requirements for reimbursement of Arizona
transaction privilege taxes plus penalties and interest
pursuant to FAR 31.205-41.
2011-D039: DoD has
extended the comment period to November 30 for the
proposed rule that would add a
new subpart and associated contract clauses
to address requirements for safeguarding unclassified DoD
Building Systems, Inc., the Court of Federal Claims
discussed how courts evaluate the enforceability of liquidated
Case 2011-D023: An interim rule amends the DFARS to
implement sections of the National Defense Authorization Act
for Fiscal Year 2008, which establish minimum processes and
requirements for the selection, accountability, training,
equipping, and conduct of personnel performing private
security functions. Comments are due by October 18.
Case 2009-D008: A final rule amends DFARS coverage
regarding government property to conform to changes in the
Case 2010-D022: A final rule adds a contract clause (DFARS
252.209-7010: Critical Safety Items) to clearly identify any
items being purchased that are critical safety items so that
the proper risk-based surveillance can be performed.
Case 2011-D025: This final rule adopts the prior interim
rule with minor changes to implement part of the National
Defense Authorization Act for Fiscal Year 2011, which provides
a domestic nonavailability exception to the requirement (known
as the Berry Amendment) to acquire only domestic hand or
has amended its rules of procedure to permit electronic
filing of documents.
published three decisions.
Construction Services, the Board granted the Government's
motion for summary judgment because the appellant failed to
establish that (i) it had a contract with the Government, (ii)
the individual who allegedly committed the Government to a
verbal agreement had the authority to do so, or (ii) the
Contracting Officer ratified the alleged agreement.
Construction Co., the Board held the contractor was
entitled to compensation for work it was required to perform
in a larger area than was indicated in the contract's
specifications and drawings.
Enterprises, the Board dismissed an appeal for lack of
jurisdiction because the contractor had not submitted a
claim to the Contracting Officer requesting a decision on
disputed invoices that the Government had refused to pay.
Constructors, JV; Bechtel Infrastructure Corp., the GAO concluded
that (i) the agency evaluated a technical proposal for foundation
design in a manner inconsistent with solicitation requirements; (ii)
led offerors to believe they had to bid the full budget amount and then
credited the awardee for proposing less than that; and (iii) the agency's investigation
of an OCI was inadequate because the agency did not consider a former official's
access to source selection information about the procurement through
access to documents and his continuing contacts with source selection
Van & Storage, Inc., an unsuccessful protest, the Court of
Federal Claims held that (i) the awardee was properly registered in government
databases at the time of award; (ii) the awardee was not required to possess
interstate carrier permits because the contract did not require interstate
transportation; and (iii) the awardee's change of its proposed place of performance
after submission of initial offers but before award was unobjectionable because
the agency verified the new
location was acceptable.
September 12, the Department of the Interior is amending its Acquisition
Regulation at 48 C.F.R. Part 1400 to be consistent with
the FAR and to add a new clause at 48 C.F.R. 1452.201-70
covering contract administration roles and responsibilities,
entitled "Authorities and delegations."
In the Jacobs
Technology protest, which involved allegations that the
incumbent had improper access to source selection information
that helped it prepare its proposal, the Court of Federal Claims held that
(i) the agency was required to conduct an additional
investigation concerning an unequal-access-to-information OCI
related to a reprocurement but that (ii) the protester had not
established a Procurement Integrity Act violation.
DoD rule, effective September 12 (which supplements DoD
Instruction 3020.41, "Contractor Personnel Authorized to
Accompany the U.S. Armed Forces"), (i) establishes
policy, assigns responsibilities and provides procedures for
the regulation of the selection, accountability, training,
equipping, and conduct of personnel performing private
security functions under a covered contract during
contingency operations, combat operations or other significant
military operations; and (ii) assigns responsibilities and
establishes procedures for incident reporting, use of and
accountability for equipment, rules for the use of force, and
a process for administrative action or the removal, as
appropriate, of PSCs and PSC personnel.
Venture of Comint Systems Corp. and EyeIT.com, the Court
of Federal Claims granted the protester's motion for leave to
file a second amended complaint based upon information found
in second corrected administrative record.
of Federal Claims denied an application for a TRO by The
Geo Group because the protester's allegation that
its former official gave the awardee pirated
information, which the awardee then used to prepare its
winning proposal, does not amount to a Procurement Integrity
Act violation or an organization conflict of interest. The
interesting part of the court's reasoning is its conclusion
that the Procurement Integrity Act, read as a whole, "appears
to apply only to current or former officials of the United
States or persons who are acting or have acted on such an
Boeing Co. (which involves claims by the contractor for
indemnification for the costs of (i) the investigation
and remediation of ground water pollution and (ii) toxic tort
litigation), the ASBCA denied the contractor's motion for
summary judgment with regard to the Government's affirmative
defense that the individual authorizing use of an
indemnification clause in one of the subject contracts lacked
authority to do so; but granted the contractor's motion with
regard to the Government's affirmative defense that the
contractor had misrepresented whether it had obtained certain
published several decisions. including the following.
Energy & Construction, the Board held that a party
that assumed a contract by novation was the proper party to
pursue the appeal.
Armoring, the Board dismissed a bid protest for lack
of CDA jurisdiction.
October 11, OMB's OFPP is amending 48 C.F.R. Part 9903 to
eliminate the exemption from regulations regarding Cost
Accounting Standards for contracts executed and performed
entirely outside the United States, its territories, and
Federal Travel Regulation has been amended to reflect changes
to the IRS Standard
Mileage Rate for moving purposes (i.e., the rate at
which agencies will reimburse an employee for using a
privately owned vehicle for relocation on a worldwide basis).
Specifically, the mileage rate relocation mileage rate is
increasing to $0.235 until December 31, 2011.
2009-042: Corrections to the previously-published rule
contractor performance have been issued and the comment
period has been extended to September 8.
State Department has amended the ITAR to
policies regarding Afghanistan, Côte d’Ivoire, Cyprus,
the Democratic Republic of the Congo, Eritrea, Fiji, Iraq,
Lebanon, Liberia, North Korea, Sierra Leone, Somalia, Sri
Lanka, Yemen, and Zimbabwe, and to correct administrative and
Systems won its GAO protest because the solicitation
required the agency to apply the HUBZone
price evaluation preference in evaluating proposals, even
though the HUBZone proposal was lower in price than the large
Mutual Casualty Co., the Court of Appeals for the Federal
Circuit held that: (i) a Miller Act surety's claims against
the Government seeking to recover allegedly improper progress
payments made to the contractor before the Government received
notice of the contractor's default are not claims for
equitable subrogation cognizable under the Tucker Act; (ii)
there is no Tucker Act jurisdiction over claims for impairment
of suretyship apart from the theory of equitable subrogation;
and (iii) the requirements of the CDA apply to
a surety’s claim against the United States arising from a
takeover agreement which the government and surety have
entered into for the completion of a bonded contract following
the principal obligor’s default.
ASBCA published several decisions.
Joint Venture, the Board denied the Government's motion to
compel production of documents based upon the Government's
contention that the contractor had engaged in a blanket waiver
of the attorney-client privilege.
Technologies, the Board interpreted FAR 52.216-8
("Fixed Fee") to allow the Government to withhold
the stated reserve amount on each, individual task order,
rather than just once on contract as a whole.
Aerospace & Technologies Corp., the Board held that a
claim containing the following language adequately claimed a
sum certain within the meaning of the CDA: "[t]his
claim is for the sum certain amount of$72,730.29 relating to
fiscal year . . . 2003 costs that the government has failed to
reimburse, plus future costs to be incurred using the
FY 2003 indirect rates at issue and interest under the
Fawzi Gomme, Co-Owner, d/b/a Areebel Engineering &
Logistics, the Board dismissed a claim over the
contractor's objections because it was clearly covered by a
settlement agreement between the parties.
& Ben, Inc., the Board held that a motion for
reconsideration sent by email and received after Board's
business hours but before midnight on the last day for filing
Diem, Travel and Transportation Allowance Committee has
published Civilian Personnel Per Diem Bulletin Number 277,
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.
adopted, without change, an interim final rule amending the
NASA FAR Supplement (NFS) to implement the FAR award
fee revision issued in FAC 2005–46.
September 26, the State Department is revising the ITAR to
change the method of payment to electronic
submission of registration fees.
Case 2011-003: A proposed rule would amend the FAR to
enable the use of appropriate payment provisions for
time-and-materials and labor-hour contracts, addressing
potential problems with the new time-and-materials
regulations. Comments are due by September 26.
procedural history of the Court of Federal Claims decision in NCLN20,
Inc., is complicated, but the case is worth reading
as an instruction concerning how difficult it is to prove bad
faith (and breach) on the part of the Government, which this
contractor for armed guard services failed to do even
though (i) the Government improperly terminated it for default
without giving it a fair chance to begin performance
after giving it only one day to cure its failure to
provide a significantly increased number of armed guards of
which the Government notified it immediately after award; (ii)
an IG report found many faults with the Government's treatment
of the contractor and administration of its contract; (iii)
the court, itself, found the contracting officer's behavior
toward the contractor to be overbearing a times; and (iv)
after the Government determined the default termination was
improper, it dallied about releasing funds that it had
improperly offset against another contract to cover excess
reprocurement costs because the contractor allegedly was not
submitting invoices in a format that was to the Government's.
I could go on. There's a great subplot about the incumbent
contractor (which became the reprocurement contractor) and its
contract administrator's role in the drama.
Venture Corp., an unsuccessful post-award protest, the
Court of Federal Claims held, inter alia, that the
awardee of a total small-business set-aside contract lacks
standing to complain that its contract may be
terminated as a result of a post-award SBA determination that
it is not a small business.
has changed all the web addresses for its decisions, and the
new addresses are not of the same form as the old ones. I have
corrected all the links (and added new decisions) on my PSBCA
2010-D027: DoD has
adopted as final, without change,
an interim rule amending the DFARS to implement section 1038
of the National Defense Authorization Act for Fiscal Year
2010, which prohibits contractor personnel from interrogating
detainees under the control of DoD.
seeking public comments by September 8 on the definition of
‘‘produced’’ in DFARS
225.7003, Restrictions on Acquisition of Specialty Metals.
Case 2011-D032: This interim rule amends the DFARS to to
implement the authority provided by 10 U.S.C. 2302(7) to
invoke a simplified acquisition threshold that is two times
the amount specified at 41 U.S.C. 134 (formerly 41 U.S.C.
403(11)), as amended by section 807 of the National Defense
Authorization Act for Fiscal Year 2005, to support a
humanitarian or peacekeeping operation. Comments are due by
Case 2011-D013: DoD is seeking comments on a proposed rule
addressing competitive acquisitions in which only one offer is
received and requiring that, with some exceptions (i) if the
solicitation allowed fewer than 30 days for receipt of
proposals, the contracting officer must resolicit for an
additional period of at least 30 days, or (ii) if a
period of at least 30 days was allowed for receipt of
proposals, the contracting officer must determine prices to be
fair and reasonable through price or cost analysis or enter
negotiations with the offeror. Comments are due by September
you who have had difficulty convincing the GAO to require the
agency to produce a complete administrative record will find
the CoFC's protest decision in Joint
Venture of Comint Systems Corp. et al, refreshing. In
requiring the agency to complete the record, the court wrote
in part as follows:
concedes that the agency-assembled record is not a complete
record of the NIEITS procurement, stating that the record
instead is comprised only of documents upon which the WHS
purportedly relied when it made its procurement decision. Yet,
an agency may not exclude information merely on the grounds
that it did not rely upon the excluded information when
reaching a final decision when there was evidence that the
information was, in fact, reviewed.
court rejects the position taken by defendant and
defendant-intervenors that plaintiffs should not be permitted
access to agency materials related to Amendment 5 because
their protests are untimely. Timeliness of plaintiffs’
protests is an entirely separate and distinct matter that
bears no relation to the requirement that the WHS produce a
complete agency record of the NIEITS procurement. It is the
role of the court, not that of the WHS, to determine whether
plaintiffs’ protests are untimely. In the meantime,
plaintiffs are entitled to review the complete record and
develop further the grounds for their protests. If defendant
and defendant-intervenors seek to challenge portions of
plaintiffs’ amended complaints on timeliness grounds, then
they should do so at the appropriate time, which is not until
after the WHS has produced a complete record of the NIEITS
a complete agency record is one of the principal reasons for
choosing the CoFC over the GAO when filing a
August 22, the Office of Personnel Management is issuing a
final rule to redefine the geographic boundaries of the
Northeastern Arizona and Southern Colorado appropriated fund Federal
Wage System (FWS) wage areas. The final rule redefines
Dolores, Montrose, Ouray, San Juan, and San Miguel Counties,
Colorado, and the Curecanti National Recreation Area portion
of Gunnison County, Colorado, from the Southern Colorado wage
area to the Northeastern Arizona wage area.
published several opinions.
Joint Venture decision, the CBCA denied the Government's
motion for summary judgment because the contractor presented
evidence that the parties did not intend a seemingly
unambiguous general release to cover the subcontractor claim
at issue in the Government's motion.
Industries, the CBCA granted a portion of the Government's
motion for summary judgment and held that the Government's
breach of one contract did not entitle the contractor to lost
profits on other contracts it might have received if it had
not lost bonding capacity due to the breach. The Board denied
the Government's motion as to other matters, and, in doing so,
addressed issues of contract interpretation, course of
dealing, and the Government's attempt to enforce a requirement
it previously had waived.
Concordia Companies, the Court of Federal Claims denied a
protest against (i) a Past Performance evaluation (concluding
the agency did not have to give the incumbent a higher rating
than its competitors solely because of its incumbency) and
(ii) the evaluation of sub-subcontractor efforts (in part,
because the solicitation did not require lower tier subs to
provide the information the the protester complained was
has issued an interim rule which allows a declined
or decertified HUBZone small business to reapply 90
calendar days after the decline or decertification decision is
rendered, rather than wait one year to reapply, provided that
it meets the eligibility requirements at that time of
application. Comments are due by August 22.
Effective August 2, the SBA
is (i) denying a request for a class waiver of the
Nonmanufacturer Rule for Optical Eyeglass Frames, PSC 6540
(Ophthalmic Instruments, Equipment, and Supplies), under NAICS
(Ophthalmic Goods Manufacturing) based on SBA’s discovery of
one small business manufacturer and (ii) retracting its waiver
of the Rule for PSC 9130 (Liquid Propellants—Petroleum Base)
under NAICS code 324110
(Petroleum Refineries), based on SBA’s discovery of small
Effective August 17, the
Treasury Department is amending its acquisition
regulation (DTAR) to: update, revise, or remove, as
applicable, outdated text and references; add new text to
maintain consistency with the FAR; incorporate
Treasury-specific policy associated with current FAR
requirements; reflect the Treasury’s organization and
delegation of authorities; and make minor editorial changes.
sustained the protest of SafeGuard
Services where the agency rejected a proposal after the
offeror submitted its revised business plan (containing some
subcontractor spreadsheets) late; the GAO reasoned that the
agency should have considered whether the proposal was
complete even without the spreadsheets.
Essential Personnel won its GAO protest because the agency
failed to evaluate resumes in accordance with the
solicitation's evaluation scheme.
of Industry and Security (BIS) has issued a proposed
rule that creates a new regulatory framework for the
transfer of items on the United States Munitions List (USML)
that (in accordance with section 38(f) of the Arms Export
Control Act), the President determines no longer warrant
control under that statute and that would be controlled under
the Export Administration Regulations (EAR) once the
congressional notification requirements of section 38(f) and
corresponding amendments to the International Traffic in Arms
Regulations (ITAR), the USML, the EAR, and the Commerce
Control List (CCL)
are completed. The proposed rule includes
the transfer of an initial group of items from USML Category
VII (Tanks and Military Vehicles) to the CCL. This rule also
proposes amending the EAR to establish a process by which
certain items moving from the USML to the CCL would be made
eligible for License Exception Strategic Trade Authorization
(STA), and proposes EAR amendments related to movement of USML
items to the CCL, such as new definitions of several terms,
including "specially designed," "end items,’"
"parts," and "components."
Finally, this notice proposes establishing a new holding
Export Control Classification Number (ECCN) in which items
that warrant a significant level of control, but are not
otherwise classified on the CCL, may be temporarily placed.
Comments are due by September 13.
Construction Co., the Court of Appeals for the Federal
Circuit affirmed the decision of the Court of Federal
Claims mandating reinstatement of the original awardee's
terminated contract because, since there was no showing that
an OCI allowed the awardee access to competitively useful
information, there was no reason for the agency to have
followed the GAO's original recommendation to terminate the
awardee's contract. The court also rejected an argument that
the Court of Federal Claims exceeded its authority by ordering
reinstatement of the terminated contract
since the plaintiff had not followed the procedures of the CDA
in pursuing its requested relief in federal court. The CAFC
held the CoFC's actions were within its bid protest
jurisdiction to fashion equitable relief.
Industrial Facilities Resources won its bid protest
because the Court of Federal Claims found there was no
adequate justification for a sole-source award, and the court
issued a stinging rebuke to the Government for intentionally
withholding publication of the J&A supporting the sole
source award until the contract had been almost completed,
simply in order to avoid protests.
Department proposes to amend the ITAR to remove reference to
Import Certificate, which action will effectively end the
current practice of accepting DSP–53 submissions. The State
Department also proposes to eliminate the requirement for
applicants to return certain expired or exhausted DSP-5
documents. Comments on each of these proposed rules are due by
Case 2010-004: A proposed rule would amend the FAR to
implement changes to the Farm Security and Rural Investment
Act and require contractors to report the biobased products
purchased under service and construction contracts, which, in
turn, will allow federal agencies to monitor compliance with
the federal preference for purchasing biobased products.
Comments are due by September 12.
Diem, Travel and Transportation Allowance Committee has
published Civilian Personnel Per
Diem Bulletin Number 276, 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.
State's Department's Bureau of Industry and Security has
amended the EAR to add controls on exports and reexports of
U.S.-origin dual-use items to the new nation of the Republic
of South Sudan.
has published several decisions.
upholding a termination for cause in Ryll
International, the CBCA wrote in part as follows:
conclude that [the] CO . . . had a reasonable,
contract-related basis to support termination for cause. Ryll
failed to complete the contract despite the CO’s best
efforts to mediate negotiations between appellant and its
subcontractors. It is notable that in Ryll’s . . . letter .
. . requesting a termination for convenience with costs, the
contractor wrote that its "financial difficulties have
been caused by the apparent collusion of certain companies and
are not the fault of the government."
Housing Group's motion for reconsideration, not simply
because it did not state a valid basis, but because it did not
state any basis. apparently leaving it to the Board to
figure that out for itself.
dismissed an appeal by Red
Gold, Inc. for lack of CDA jurisdiction because its
original letters to the Contracting Officer did not (i) state
a sum certain, (ii) request a decision, or (iii) contain a CDA
Bureau of Industry and Security has amended the EAR,
No. 7 to Part 748--Authorization
Validated End-User: List of Validated End-Users, Respective
Items Eligible for Export, Re-export and Transfer, and
Eligible Destinations--to add a column that lists Federal
Register citations for the respective entries.
Annapolis Bancorp., Inc. v. United States, one of the
increasingly rare, remaining Winstar cases, the Court of
Appeals for the Federal Circuit reversed the Court of Federal
Claims and held that a holding company did not have standing
to bring a breach of contract action against the United
Cost Accounting Standards Board invites
public comments concerning an interim
rule (effective August 11) revising the wording of the
threshold for the application of CAS from its current ‘‘$650,000’’
to ‘‘the Truth in Negotiations Act (TINA) threshold, as
adjusted for inflation’’ because the CAS applicability
threshold is statutorily tied to TINA, and the wording
change will effectively revise the CAS threshold to $700,000
and cause future changes to the CAS applicability threshold to
self-execute upon any changes to the TINA threshold as they
are implemented in the FAR. Comments are due by September 12.
Inc., the Court of Federal Claims granted a surety's
motion to intervene in a dispute over an assessment of excess
reprocurement costs by the Postal Service against its
contractor because of the surety's potential liability on the
final rule deleting the requirement in the NASA FAR Supplement
for contractors to establish and maintain an Earned
Value Management System for firm fixed-priced contracts.
update to continuing rant re the SBA. The agency still has not
published any new OHA decisions to its website since the
beginning of March. I have received permission to publish this
very recent size decision from one of the visitors to my
site. If anybody else wants me to publish a decision in which
they were involved while we wait for the incredibly slow gears
at the SBA to grind, please send it to me, and I will be happy
to publish it here.
2005-53 has been published and includes the following six
Case 2009-007 ("Equal Opportunity for
Veterans"): Effective August 4, a final rule adopts, with
changes, the current interim rule amending the FAR
to implement DOL regulations on equal opportunity provisions
for various categories of military veterans by revising the
coverage and definitions of veterans covered under the Vietnam
Era Veterans’ Readjustment Assistance Act of 1972 and
including new reporting requirements established under both
that Act and the Jobs for Veterans Act.
Case 2009-023 ("Unique Procurement Instrument
Identifier"): Also effective August 4, this final rule amends
the FAR to standardize the use of unique Procurement
Instrument Identifiers (PIID) throughout the Government in
order to eliminate inconsistent agency policies and procedures
for PIIDs, which subjected users of contract data, including
the Government, contractors, and the public, to potential
duplicate, overlapping, or conflicting information from the
different federal agencies.
Case 2009-036 ("Uniform Suspension and
Debarment Requirement"): Effective August 4, a final rule
adopts, with changes, the current interim rule amending the
FAR to implement
section 815 of the National Defense Authorization Act for
Fiscal Year 2010, which extends the flow down of limitations
on subcontracting with entities that have been debarred,
suspended, or proposed for debarment.
Case 2011-015 ("Extension of Sunset Date for
Protests of Task and Delivery Orders"): An interim rule
amends the FAR to implement
section 825 of the Ike Skelton National Defense Authorization
Act for Fiscal Year 2011, which extends the sunset date for
protests against the award of task or delivery orders by DoD,
NASA, and the Coast Guard from May 27, 2011, to September 30,
Case 2009-028 ("Encouragement of Contractor
Policies to Ban Text Messaging While Driving"): Effective
August 4, a final rule adopts, with changes, the interim rule
amending the FAR to implement E.O. 13513,
dated October 1, 2009, entitled "Federal Leadership on
Reducing Text Messaging while Driving."
Case 2009-034 ("TINA Interest
Calculations"): A final rule effective August 4 amends
the FAR to revise
the FAR clauses on price reduction for defective pricing to
require compound interest calculations be applied to
Government overpayments as a result of defective cost or
Federal Accounting Standards Advisory Board is requesting
comments by September 16 on
Draft entitled "Deferred Maintenance and Repairs,
Amending Statements of Federal Financial Accounting Standards
6, 14, 29 and 32."
GAO sustained protests by One
Largo Metro LLC, et al., because portions of the
evaluation were not in accordance with the solicitation's
evaluation scheme and because the source selection official
failed to meaningfully consider the evaluated differences
among competing proposals.
ASBCA published six decisions, the most interesting of which
Dynamics Corp., the Board held that the contractor's use
of intra-year pension fund returns in the contractor's forward
pricing estimates of pension costs violated CAS 412.
Research, Inc., the Board upheld a default termination
because the contractor inexcusably failed to deliver the final
15 items under the contract, and its problems were due to
actions of its subcontractor, not those of the Government's
Public Warehousing Co. barely dodged the bullet when the
Board denied the Government's motion to dismiss the
contractor's original appeal based on a theory of unjust
enrichment (over which the Board had no jurisdiction) and
granted the contractor's motion to amend its complaint to
rely, instead, on theories of breach and constructive changes
because both the original and revised complaints involved the
same operative underlying facts and same requested ultimate
Group , the Board held it lacked jurisdiction over an
appeal from a termination for convenience because that
termination, standing alone, is not a government claim.
Service of the Department of the Treasury has announced that
for the period beginning July 1, 2011, and ending on December
31, 2011, the prompt
payment interest rate is 2.5 % per annum.
Dynamics Corp. v. United States, the Supreme Court vacated
the prior opinion by the Court of Appeals for the Federal
Circuit and held that in a contract concerning which the state
secrets doctrine made it impossible to adjudicate
a Government contractor’s
prima facie valid affirmative defense to the Government’s
allegations of contractual breach, the proper remedy is to
leave the parties where they were on the day they filed suit.
Sorry I'm late in reporting this one.
In the Castle-Rose
bid protest, the Court of Federal Claims (i) held that the
agency's determination to reject an offer as arriving late at
the government office designated for receipt of offers was
reasonable, and (ii) discussed the court's jurisdiction
over protests based on an alleged breach of the covenant
of good faith and fair dealing after the Federal Circuit's
decision in Resource
2011-001 (Organization Conflicts of Interest); A proposed rule
would amend the FAR to provide
revised regulatory coverage on organizational conflicts
of interest (OCIs), provide additional coverage regarding
contractor access to nonpublic information, and add related
provisions and clauses. The comment period for the original
proposed rule is reopened,
and comments are now due by July 27.
DFARS final, interim, and proposed rules have been published:
Case 2011-D004: A final rule (i) specifies that the
and Acquisition Policy, Program Development and Implementation
Office is the office responsible for maintaining order code
assignments and (ii) moves order code procedures from the
DFARS to the DFARS Procedures, Guidance, and Information
Case 2010-D023: A final rule amends the DFARS to
ensure contractor employees accompanying U.S. Armed Forces are
made aware (i) of the DoD definition of sexual assault as
defined in DoD Directive 6495.01, Sexual Assault Prevention
and Response Program and (ii) that many of the offenses
addressed in the definition are covered under the Uniform Code
of Military Justice.
Case 2011-D035: A final rule (i)
implements section 8102 of the DoD and Full-Year Continuing
Appropriations Act, 2011 and similar sections in subsequent
appropriations acts, and (ii) extends the restriction on the
use of mandatory arbitration agreements (when awarding
contracts that exceed $1 million) to the use of 2011 and
subsequent fiscal year funds appropriated or otherwise made
available by this Act or any subsequent DoD appropriation act.
Case 2011-D029: A final rule amends the definitions
of "Caribbean Basin country" and "designated
country" in the clauses at DFARS 252.225–7021
("Trade Agreements") and 252.225–45 ("Balance
of Payments Program—Construction Materials Under Trade
Agreements") due to the change in the political status of
the islands that comprised the Netherlands Antilles.
Case 2011-D031: An interim rule amends the DFARS to implement
section 812(b)(5) of the National Defense Authorization Act
for Fiscal Year 2011, which instructs DoD to issue guidance
that, at a minimum, requires appropriate consideration of the
manufacturing readiness and manufacturing-readiness processes
of potential contractors and subcontractors as a part of the
source selection process for major defense acquisition
programs. Comments are due by August 29.
Case 2011-D034: An interim rule amends the DFARS to
implement section 866 of the National Defense Authorization
Act for Fiscal Year 2011, which authorizes the Secretary of
Defense to establish a pilot program to assess the feasibility
and advisability of acquiring military-purpose
nondevelopmental items in accordance with the streamlined
procedures of the pilot program. Comments are due by August
Case 2011-D039: A proposed rule would amend the DFARS to to
add a new subpart and associated contract clauses to address
requirements for safeguarding unclassified DoD information.
Comments are due by August 29.
issued several decisions.
Commercial and Construction Co., the ASBCA upheld a
default termination because of defects in road construction
work despite the contractor's contention that the Government
did not inspect the work promptly.
Marine, Inc., the ASBCA determined the quantum due the
Navy as a result of debt concessions made by creditors after
confirmation of a Chapter 11 reorganization plan of a company
in bankruptcy. The case was on remand after the original board
decision was reversed by a district court whose decision was
then upheld by the Ninth Circuit.
Case 2009-042: A proposed rule would amend the FAR to provide
governmentwide standardized past performance
evaluation factors and performance ratings and to require all
past performance information be entered into the Contractor
Performance Assessment Reporting System (CPARS), all as a
result of recommendations from Government Accountability
Office Report number GAO–09–374,
Performance Information Needed
to Support Agency Contract Award
dated July 29, 2009, entitled "Improving the Use of
Contractor Performance Information." Comments are due by
July 28, the PSBCA is revising its rules
Technology, the Court of Federal Claims held that the GAO's prior
protest decision decision finding defects in a procurement (i.e.,
the agency's use of unstated evaluation criteria and its
failure to provide sufficient information for all offerors to
compete on a fair and equal basis) had a rational basis and,
therefore, the agency was justified in accomplishing the GAO's
suggested corrective action.
Grumman Computing Systems, the Court of Federal Claims
found it lacked jurisdiction over a dispute involving a claim
that did not notify the Contracting Officer that it had been
assigned and, therefore, did not fulfill the requirement that
it contain a clear and unequivocal
statement that gave the Contracting Officer adequate notice of
the basis of the claim.
Department of Commerce's Bureau of Industry and Security has
issued a final rule amending the EAR to
implement changes made to the Wassenaar Arrangement’s List
of Dual Use Goods and Technologies that relate to raising the
Adjusted Peak Performance (APP) for digital
computers in ECCN 4A003.
Case 2011-D030: DoD has issued a final rule revising the
DFARS to modify terminology and address internal
contract administration requirements associated with the
Synchronized Predeployment and Operational Tracker (SPOT)
won its GAO protest because the amount of agency's upward
adjustment to the protester's labor rates during a cost
realism evaluation was unreasonable.
Construction Services, the ASBCA upheld the propriety of a
default termination before a cure period had expired because
the contractor had no reasonable prospects of finishing the
job by the conclusion of the cure period.
Guidance & Navigation Corp., the ASBCA allowed
reformation of several contracts because identifiable
intangible asset write-up amortization costs had been
mistakenly omitted from the calculation of contractor's
G&A rates and FCCOM factors.
Wizzard, the Court of Federal Claims upheld the agency's
decision to cancel a procurement that had been improvidently
issued as a small business set-aside because there was not a
reasonable expectation that bids would be received from two
small businesses although a responsive, responsible bid had
been received from one qualified small business.
Research Systems, the court dismissed a contractor's
appeal for lack of CDA jurisdiction because (i) one underlying
claim had not been submitted to the Contracting Officer within
six years from the date it accrued; (ii) another had not
been appealed to the court within 12 months of receiving a
Contracting Officer's decision; and (iii) an undated letter to
the Inspector General did not constitute a claim.
Technology, Inc., the Court of Federal Claims held that
the protester was entitled to recover its bid and proposal
costs after the Government published a non-required notice of
a proposed sole-source award to a Russian entity, which (incongruously)
stated that all proposals would be considered.
Case 2011-306: Effective July 18, the GSA is amending the
FTR by increasing the set lump-sum rate amount to be paid for
the miscellaneous expenses allowance when the employee chooses
not to provide documentation of miscellaneous expenses.
President has issued Executive
Order 13576, which establishes additional committees and
requires further studies to facilitate earlier mandates to
streamline and cut waste from government procurement. [Yawn]
Case 2011-G503: Effective for contracts and orders awarded
after today, the GSA is amending the GSAR with an interim rule
to implement policy and guidelines for contracts and orders
that include information technology supplies, services and
systems with security requirements. Comments are due by August
Case 2009-024: As a result of the GAO's bid protest
decision in Murray-Benjamin
Electric Co., the FAR Council is proposing to amend FAR
Part 8 (i) to
limit FAR 8.002 and 8.003 to a discussion of the mandatory
Government sources of supplies and services and (ii) to
add a new FAR section to encourage agencies to give
priority consideration to using certain sources, despite the
fact that the use of the listed sources is not mandatory.
Comments are due by August 15.
Government Consulting, the Court of Federal Claims granted
the plaintiff's request for a preliminary injunction in a
post-award protest because the awardee's work on prior
contracts gave it access to plaintiff's proprietary
information and created an unmitigated organizational conflict
Technology Group , the Court of Appeals for the Federal
Circuit affirmed a prior decision by the Court of Federal
Claims (which, itself, had reached the same conclusion as an
earlier decision on the protest by the GAO) and upheld a
Contracting Officer's decisions (i) to disqualify an offeror
for taking exceptions to solicitation requirements but (ii) to
accept an awardee's certification of compliance with other
requirements despite minor exceptions. No wonder the protester
kept up the fight (and one of the judges dissented). That's a
hard pill to swallow.
won its GAO protest because the agency materially modified a
commercial item solicitation's requirements only for the
Technology, the Court of Federal Claims held that a firm
had standing to challenge the terms of a revised solicitation
issued by an agency as corrective action in response to the
same firm's earlier GAO protest.
Case 2009-D018: DoD has issued a final rule amending the
DFARS to make
clear that the enforcement of warranties is essential to DoD’s
material readiness by implementing a policy memorandum of the
Undersecretary of Defense for Acquisition, Technology and
Logistics dated February 6, 2007, which required definition of
the requirements to track warranties for Item Unique
Identification-required items in the DoD Item Unique
Case 2011-D024: DoD has issued another final rule amending
the DFARS to implement section 826 of the National Defense
Authorization Act for Fiscal Year 2011, which requires that
the threshold limitation of $50 million for contracts and
subcontracts under the DoD pilot program for transition to
follow-on contracting after use of other transaction
authority includes the dollar value of all options.
Joint Venture, the CBCA denied the GSA's request for
reconsideration of the Board's original
decision, which granted an appeal based on constructive
changes made by the project architect.
Construction, the ASBCA held that, under a construction
contract task order modification, which established two
separate completion dates, the Government could properly
assess liquidated damages for the portion of work covered by
one of the two dates, which already had passed when the
modification was signed.
the ASBCA upheld a default termination despite the
contractor's contention that the specified part could not
perform properly, because the reprocurement contractor
installed the same part without incident.
Dynamics Ordnance and Tactical Systems , the ASBCA denied
the Government's motion for summary judgment in part because
the record was not yet sufficiently developed to determine
whether the appeal involved a requirements contract or a BOA.
decision labeled nonprecedential, which is nonetheless very
interesting, the Court of Appeals for the Federal Circuit held
Joint Venture that the death of the disabled veteran who
was source of plaintiff's status as an SDVOSB during
litigation which involved that status rendered its case
Case 2011-D017: DoD has issued a final rule amending the
DFARS to correct several anomalies resulting from recent
changes relating to the source of ball and roller bearing
components, the eligibility of Peruvian end products under
trade agreements, and participation by foreign contractors in
acquisitions in support of operations in Afghanistan.
Case 2011-D006: This is a final rule amending the DFARS to
make some administrative corrections relating to DFARS clause
252.203–7003, Agency Office of the Inspector General.
Case 2011-D021: DoD has issued an interim rule amending
the DFARS to implement section 821 of the National Defense
Authorization Act for Fiscal Year 2011, which prohibits
specification of the use of fire-resistant rayon fiber in
solicitations issued before January 1, 2015. Comments are due
by August 5.
Case 2010-D020: This is a proposed rule to require that
offerors represent whether former DoD officials employed by
the offeror are in compliance with post-employment
restrictions. Comments are due by August 5.
Case 2011-D028: This is a proposed rule to amend the
definition of "qualifying country end product" by
eliminating the component test for qualifying country end
products that are commercially available off-the-shelf items.
Comments are due by August 5.
following agencies are seeking comments to assist them in
revising regulations to implement E.O. 13563: DoD;
Case 2009-307: GSA is proposing to amend the FTR by (i)
incorporating recommendations of the Governmentwide Relocation
Advisory Board concerning calculation of reimbursements for
taxes on relocation expenses and (ii) altering the process for
calculating reimbursements for taxes on extended TDY benefits
to correct errors and to align that process with the proposed
changes to the relocation income tax process. Comments
are due by August 5.
Electric, the Court of Federal Claims held the low bid was
properly rejected as nonresponsive because it included items
that did not conform to the specification requirements.
One Building Systems , the CBCA set the date by which the
Contracting Officer will be required to issue a decision on
the contractor's claim.
Satotravel, the CBCA held that the Government not required
to certify its CDA claim against a contractor.
The SBA is
retract the class waiver of the non-manufacturer rule for
PSC 9130, Liquid Propellants, Petroleum Base, NAICS code
324110. Comments are due by June 20.
The GSA is
seeking comments by July 5 concerning its retrospective
review plan (which is available for review here)
to implement the goals of E.O. 13563, "Improving
Regulation and Regulatory Review," which was signed
by President Obama on January 18, 2011. Similarly, the FAR
council has published its preliminary plan for retrospective
review of FAR provisions, which is available for review here.
Recovery Assistance, Joint Venture, the Court of Federal
Claims, inter alia, (i) refused the
intervenor/awardees' request to expand the timeliness holding
in Blue & Gold Fleet and (ii) held that a protest
was timely filed after a reevaluation of proposals
conducted in accordance with a GAO recommendation made as a
result of an earlier GAO protest by another offeror even
though the GAO had, at the same time, rejected the protester's
complaints at the GAO about the original evaluation. The court
indicated a different result might apply if the agency had
sought revised proposals rather than simply reevaluating
proposals, but I do not see how that distinction merits a
Assocs., the ASBCA discussed (a) the allowability of (i)
life insurance costs for the contractor's President and (ii)
the cost of a Jeep transferred to an employee and treated as
fringe-benefit compensation to that individual and (b) the
applicability of the penalty for expressly unallowable costs
pursuant to FAR 42.709. Update--the decision has been modified
2006-G508: Effective June 27, the GSA is amending GSAR Part
570 to revise sections that provide requirements for acquiring
interests in real property.
Acquisition circular (FAC) 2005-52
has been published. It consists of the following six items:
Case 2010-001 ("Sustainable Acquisition") is an
interim rule amending the FAR to implement Executive Order
13514 (Federal Leadership in Environmental, Energy, and
Economic Performance) and Executive Order 13423 (Strengthening
Federal Environmental, Energy, and Transportation Management)
by requiring (a) federal agencies (i) to leverage agency
acquisitions to foster markets for sustainable technologies,
materials, products, and services and (ii) to implement high
performance sustainable building design, construction,
renovation, repair, commissioning, operation and maintenance,
management, and deconstruction practices in applicable
acquisitions and (b) contractors to support the goals of an
agency’s environmental management system. Comments are due
by August 1.
Case 2008-020 ("Contract Closeout") is a final
rule effective June 30 that (i) revises FAR sections related
to closing out contract files, including steps for clearing
final patent reports and quick-closeout procedures and (ii)
sets forth a description of an adequate final indirect cost
rate proposal and supporting data.
Case 2008-009 ("Prohibition on Contracting with
Inverted Domestic Corporations") is a final rule adopting
(with changes) the interim rule amending the FAR to implement
section 743 of Division D of the Omnibus Appropriations Act,
2009, which prohibits the award of appropriated fund contracts
to any foreign incorporated entity that is treated as an
inverted domestic corporation or to any subsidiary of one.
Case 2009-039 ("Buy American Exemption for Commercial
Information Technology--Construction Materials") is a
final rule adopting, without change, an interim rule amending
the FAR to implement section 615 of Division C, Title VI, of
the Consolidated Appropriations Act, 2010, by authorizing an
exemption from the Buy
American Act for
the acquisition of information technology that is a commercial
Case 2010-017 ("Oversight of Contractor Ethics
Programs") is a final rule effective June 30 amending the
FAR to add a contract administration function to ensure that
contractors have implemented the mandatory contractor business
ethics program requirements.
item is a set of technical,
editorial changes to the FAR, including revised Standard
Forms 1447 ("Solicitation/Contract"), 1449
("Solicitation/Contract/Order for Commercial
Items"), and Optional Form 347 ("Order for Supplies
or Services") in FAR Part 53.
Technology, the Court of Federal Claims held it had
jurisdiction over an awardee's protest against an agency's
decision to follow the GAO's recommendation to revise a
solicitation and allow offerors to submit another round of
proposals as a result of a post-award GAO protest.
Inc., the Court of Federal Claims upheld a default
termination premised on the contractor's provision of
ammunition manufactured by a Communist China munitions company
in violation of DFARS 252.225-7007 despite the contractor's
claim of estoppel against the Government based on the
Contracting Officer's knowing acceptance of the nonconforming
supplies because the court held that not even the Contracting
Officer had the authority to accept supplies that violated the
clause, the point being that there are limits even to a PCO's
Office of Government Ethics has designated the Pension Benefit
Guaranty Corporation as a distinct and separate component
within the Department of Labor for purposes of the
one-year, post-employment, conflict-of -interest restriction
at 18 U.S.C. 207(c) and
has revised Appendix
B to 5 C.F.R. Part 2641
June 24, the State Department is revising its acquisition
regulation (the "DOSAR") to allow the appointment of
non-U.S.-citizen, locally employed staff (Foreign Nationals
and Third Country Nationals) as contracting
officers for acquisitions with a value of $25,000 or
has published a new
notice (replacing the notice of May 16) concerning FOIA
requests for contractor information in the CCR database.
Services, the ASBCA dismissed an appeal from a default
termination for lack of jurisdiction because the dissolved
corporation lacked the capacity to accept the purchase order
that was later terminated.
Pacific Shipyards Corp., the ASBCA denied the contractor's
claim that it should be allowed to re-classify certain
indirect costs as direct costs because it had treated the
costs as indirect costs for an extended period of time and
they benefited more than one contract.
3 LLC (a decision specifically disagreeing with the
court's recent decision in Santa
Barbara Applied Research), the Court of Federal Claims held that,
under the concept of prudential standing, the plaintiff was
not within the zone of interests protected by statutes setting
requirements for the Government's decision to in-source work
and, therefore, lacked standing to challenge the Government's
decision that it would in-source work rather than exercise the
next option in plaintiff's contract. Until the Federal Circuit
settles the issue, contractors will just have to guess whether
Judge Allegra or Judge Firestone is right.
Department is revising the ITAR's policy concerning Libya
to reflect the United Nations Security Council arms embargoes
adopted in February and March.
Communications Corp., the Court of Federal Claims denied a preaward protest against Egypt's sole-source selection
of a contractor to provide flight simulators under an FMS agreement
after Egypt had originally requested the plaintiff as the
sole-source supplier but then changed its mind.
Group General Enterprises, an interesting decision
involving attorney-client privilege and work product issues,
the Court of Federal Claims held that (in part because the
Government did not comply with an agreement to make such
witnesses available for deposition prior to trial) the
contractor could call as a witness a civilian attorney who
helped the Contracting Officer investigate the facts
underlying terminations for default and who gathered and
provided factual information used in the termination
Department of Commerce's Bureau of Industry and Security has
amended the Commerce Control List (CCL) in the Export
Administration Regulations (EAR) in order to harmonize it with
changes made at the December 2010 Wassenaar
Arrangement Plenary meeting, by (i) amending CCL entries that
are controlled for national security reasons in Categories 1,
2, 3, 4, 5 Parts I & II, 6, 7, 8, and 9, (ii) revising
reporting requirements, and (iii) adding and amending various
definitions in the EAR.
granted two requests by protesters for reimbursement of the
costs associated with filing protests because, in each case,
the agency waited until after the agency report had been filed
and an outcome determination conference had been conducted
before it decided to take corrective action: Greentree
Transportation and Symvionics.
DFARS Case 2009-D038: DoD has
published an interim rule to improve DCMA and DCAA
oversight of contractor
business systems by (i) defining such systems as
accounting systems, estimating systems, purchasing systems,
earned value management systems, material management and
accounting systems, and property management systems and (ii)
implementing a contract clause at DFARS 252.242–7005, which
allows contracting officers to withhold a percentage of
payments, under certain conditions, when a contractor’s
business system contains significant deficiencies. Comments
are due by July 18.
Industries, the ASBCA denied an EAJA application because,
after having initially denied a government motion to dismiss
appeals as mooted by a proposed bilateral modification that
did not contain all the language desired by the plaintiff, the
Government inserted the desired language, and the Board then
had dismissed the appeal as moot without ever issuing a
decision on the merits. The lesson is that, even when a board
decision causes the Government to take action favoring the
appellant, that is not enough to trigger an EAJA award unless
the board decision is on the merits.
Federal Accounting Standards Advisory Board (FASAB) has issued
Statement of Federal Financial Accounting Standard 40,
Changes Related to Deferred
Maintenance and Repairs,
which (i) amends Statement of Federal Financial Accounting
Standard 6, Accounting for Property, Plant, and Equipment,
and (ii) is available here.
sustained a protest by USA
Jet Airlines because a solicitation requirement that
offerors present evidence of certification under ISO 9001, ISO
9100, or AS 9110 at the time of proposal submission, rather
than at the time of award or performance, exceeded the
agency's minimum needs and unduly restricted competition.
August 15, the State Department is amending the ITAR to
establish a policy
covering those who
are unable to implement the exemption for intracompany,
intra-organization, and intragovernment transfers of defense
articles and defense services by approved end-users to dual
national and third-country nationals who are employees of such
approved end-users. Prior to making transfers to certain dual
national and third-country national employees under this new
policy, approved end-users must screen employees, make an
affirmative decision to allow access, and maintain records of
screening procedures to prevent diversion of ITAR-controlled
technology for unauthorized purposes.
has posted a notice containing new procedures for contractors
to follow in posting data to the CCR
after April 15, 2011.
Systems, an unsuccessful, scattershot protest against
technical, past performance, and price evaluations, the Court
of Federal Claims held, inter alia, that complaints
about entries on individual evaluators' worksheets were
immaterial where the evaluation was to be by consensus and the
SSA then exercised its own independent judgment in adopting
the consensus evaluation.
Military Sales, another bid protest, the court denied (as
untimely) a motion to intervene filed almost two months after
the original protest and less than 48 hours before final oral
arguments were scheduled.
The SBA is
extending (by 30 days, to June 15) the
comment period concerning its proposed size standard
changes in NAICS Sector 54 (Professional, Scientific and
Technical Services) and NAICS Sector 81 (Other Services).
The SBA is
proposing to increase size standards for
22 industries in NAICS
Sector 48–49 (Transportation and Warehousing). Comments
are due by July 12.
May 26, the SBA is granting a waiver of the nonmanufacturer
rule for GEN
II and GEN III Image Intensifier Tubes, PSC 5855 (Night
Vision Equipment), under NAICS code 333314 (Optical Instrument
and Lens Manufacturing).
of the ASBCA are being updated (i) to increase, from
$10,000 to $50,000, the threshold for the applicability of
small claims procedures for the disposition of appeals;
(ii) to increase from $50,000 to $100,000, the threshold
for the applicability of accelerated procedures for the
disposition of appeals; and (iii) to amend rule 21.1(a) by
inserting after "50,000 or less" the following
language: "[o]r, in the case of a small business concern
(as defined in the Small Business Act and regulations under
that Act), $150,000 or less."
Group General Enterprises Co. W.L.L., the Court of Federal
Claims held, inter alia, that the Army's regulations at
32 C.F.R. §§
516.51(a) and 516.52,
which purport to be an absolute bar against former Army
employees providing expert testimony adverse to the United
States, are invalid.
Military Sales, the court granted the plaintiff's motion
to supplement the administrative record with documents the
solicitation indicated the Government should have
examined in evaluating proposals.
The EPA is
proposing to revise clause number 1552.211-79
(Compliance with EPA Policies for Information Resources
Management) in its acquisition regulation (the EPAAR) to
update the clause and remove outdated and unnecessary
information. Comments are due by June 6.
also proposes to revise the EPAAR to incorporate prescriptive
language that provides instructions on the use of the "Work
Assignments" contract clause. Comments are due by
has been published to the language of FAR section
19.502-2(b) in the previously published interim rule
implementing section 1347 of the Small Business Jobs Act of
Case 2009-D037 (Electronic Ordering Procedures) is a final
rule requiring insertion of a new DFARS ordering clause
(252.216-7006) in lieu of the standard FAR ordering clause in
solicitations and contracts when a definite-quantity contract,
a requirements contract, or an indefinite-quantity contract is
Case 2009-D028 (Guidance on Personal Services) is a final
rule adopting, with changes, an interim rule amending the
DFARS to implement
section 831 of the National Defense Authorization Act for
Fiscal Year 2009, which required DoD to develop guidance on
personal services contracts.
Case 2009-D004 (Minimizing the Use of Materials Containing
Hexavalent Chromium) is a final rule amending the DFARS
to minimize the use of materials containing hexavalent
chromium in items acquired by DoD by prohibiting the delivery
of items containing more than 0.1 percent by weight hexavalent
chromium in any homogeneous material under DoD contracts
unless there is no acceptable alternative.
Barbara Applied Research, the Court of Federal Claim held
that a contractor had standing to protest the
Government's decision to in-source work previously performed
by the contractor, but the Government's decision had a
rational basis and, therefore, was upheld.
Taxiway Industries, an unsuccessful post-award protest,
the court held that (i) a past performance evaluation was
sufficiently documented and reasonable; (ii) discussions were
meaningful; and (iii) the awardee's price reasonableness
evaluation had rational basis.
G. Horn, the court held that even though a Bureau of
Prisons "contract" for dental hygienist services
contained boilerplate language identifying it as a
requirements contract (and both parties read it to be such a
contract), its other provisions clearly established it was
neither a requirements contract nor an indefinite quantity
contract, and, therefore, the contractor had no recourse when
the Government decided to use in-house services shortly after
performance period began:
is unfortunate that the Government has continued to use this
standard form document that appears to the non-legal reader as
a binding contract, but is in fact not. It is clear that this
document misled [the plaintiff] into believing she had an
agreement with the Government when, in reality, the agreement
was unenforceable. More to the point, even the Government
officials with whom she dealt did not seem to understand the
document’s lack of enforceability. This point is
particularly troublesome to the Court. While there are
certainly instances where a contract contains a latent defect
rendering it unenforceable, this is not the case here. As
early as 1929, the Supreme Court put the Government on notice
that this type of contractual language created an
unenforceable instrument. See
Willard, Sutherland & Co.,
262 U.S. at 493. In 1984, the Court in Ralph
Constr. Inc. similarly
declared an indefinite quantities contract unenforceable that
contained seemingly identical FAR language. See
Ralph Const. Inc., 4 Cl. Ct.
at 731-32. Yet, more than a quarter of a century later, these
FAR provisions are still rendering
contracts unenforceable and unsuspecting contractors are being
denied the opportunity to pursue what may be meritorious
Assocs., Inc., the Court of Federal Claims granted the
protester's motion to supplement the administrative record
with the protester's final proposal revision, which was
relevant to the Contracting Officer's decision to cancel the
procurement due to alleged cost savings.
GAO sustained a protest by Solers,
Inc. because (i) the awardee took exception to a
solicitation requirement to propose a fixed price; (ii) there
was nothing in the record to establish the past performance
evaluation was reasonable; and (iii) the technical evaluation was
Services, the ASBCA held that, under both the
"Service Contract Act--Price Adjustment" and
"Incentive Price Revision--Firm Target" clauses of
its contract, a contractor was entitled to a price adjustment
cost of severance benefits paid to unionized employees
pursuant to collective bargaining agreements following
expiration of the contract.
protest by CWTSatoTravel
because the terms of a solicitation were ambiguous as to
whether objectives were optional or required.
The SBA is
considering granting a class waiver of the nonmanufacturer
rule for Optical Eyeglass Frames, Product Service Code (PSC)
6540 (Ophthalmic Instruments, Equipment, and Supplies), under NAICS
code 339115 (Ophthalmic Goods Manufacturing).
2011-D016: DoD is revising the first two paragraphs in the
definition of multiple-award
contract at DFARS section 207.170-2 to read as follows:
A multiple-award schedule contract issued by the General
Services Administration or Department of Veterans Affairs as
described in FAR subpart 8.4; (2)
A multiple award task-order or delivery-order
contract issued in accordance with FAR subpart 16.5. . .
Case 2011-D008: This interim rule accelerates payments to
all small business concerns by, inter alia, revising
DFARS section 232.903 to read as follows: "DoD policy is
to assist small business concerns by paying them as quickly as
possible after invoices and all proper documentation,
including acceptance, are received and before normal payment
due dates established in the contract." Comments
are due by June 27.
a Court of Federal Claims decision that that
the Assignment of Claims Act does not prohibit the assignment
of existing contract claims in a spent nuclear fuel case
because the Nuclear Waste Policy Act, 42 U.S.C. 10222, allows
Investment Co., the Court of Federal Claims relied on the
claim preclusion doctrine to dismiss claims that could (and
should) have been litigated during earlier CBCA appeal. (I'm
not convinced. The claims were mentioned in the decision in
the earlier CBCA appeal, but were not submitted to the
Contracting Officer for a decision prior to that earlier
appeal, so I would say that they could not have been part of
the earlier CBCA appeal and, therefore, should not be barred
in the current litigation).
Case 2011-001: This proposal would significantly amend the
conflict of interest regulations by providing
additional coverage regarding contractor access to nonpublic
information and adding related provisions and clauses.
Comments are due by June 27.
Development, the CBCA recognized the Government's right to
offset amounts due it under one lease against amounts it owed
under a second lease with the same contractor.
Case 2010-010 (Service Contracts Reporting Requirements):
this proposed rule would amend the FAR to implement section
743 of Division C of the Consolidated Appropriations Act,
2010, by requiring service contractors for executive agencies
(except the DoD) covered by the Federal Activities Inventory
Reform (FAIR) Act of 1998 to submit information annually in
support of agency-level inventories for service contracts.
Comments are due by June 20.
Era Contract Sales, the ASBCA held that the Government
properly terminated fixed-price delivery orders for default
after the contractor refused to perform because subcontract
prices had increased by an amount the contractor considered
Dream Group, the Board refused to dismiss an appeal,
finding that an authorized individual had signed the CDA
certification, which was correctable even though
Case 2008-D011 (Acquisition of Commercial Items) is a
final rule adopting, with minor editorial changes, an interim
rule amending the DFARS to implement two sections of the
National Defense Authorization Act for Fiscal Year 2008: (i)
Section 805, which specifies when time-and materials or
labor-hour contracts may be used for commercial item
acquisitions; and (ii) Section 815, which (a) provides
identifies situations in which a major weapon system,
subsystems of major weapon systems, or components and spare
parts for major weapon systems may be acquired using
procedures established for the acquisition of commercial items
and (b) clarifies that the terms "general public"
and "nongovernmental entities"
do not include the Federal Government or a State, local, or
Case 2010-D010 (Ownership or Control by a Foreign
Government) is a final rule adopting, without change, an
interim rule that implemented revisions to DoD Directive-Type
Memorandum 09–019, "Policy Guidance for Foreign
Ownership, Control, or Influence (FOCI)," which revises
the description of communications security material that is
Case 2010-D017 (Alternative Line-Item Structure) is a
proposed rule to
establish a standard procedure for offerors to propose an
alternative line item structure that reflects the offeror’s
business practices for selling and billing commercial items
and initial provisioning spares for weapon systems, including
a proposed new solicitation provision to facilitate
offerors’ ability to propose such changes to the
solicitation structure in their offers. Comments are due by
Case 2010-D024 (Construction and Architect-Engineer
Services Performance Evaluation) is a proposed rule to amend
the DFARS to remove
the requirement to use DoD-unique forms to prepare contractor
performance evaluations for construction and
architect-engineer services. Comments
are due by June 20.
Case 2010-D018 (Responsibility
and Liability for Government Property)
is a proposed rule to amend the DFARS to extend
the Government's self insurance policy to government property
provided under negotiated fixed-price contracts that are
awarded on a basis other than submission of certified cost or
pricing data. Comments are due by June 20.
Case 2009-D019 (Ships Bunker Easy Acquisition (SEA) Card
and Aircraft Ground Services) is a proposed rule to amend the
DFARS to allow the use of U.S. Government fuel cards in lieu
of a Purchase Order-Invoice-Voucher for fuel, oil, and
refueling-related items for purchases not exceeding the
simplified acquisition threshold. Comments are due by June
Co., the ASBCA granted summary judgment in favor of the contractor because
the aggregate effect on all affected contracts of a voluntary change in cost
accounting practices related to the actuarial value of pension plans did
not result in increased costs to Government.
Joint Venture won its CBCA appeal related to constructive changes required by
the project architect.
companion decisions, the Court of Federal Claims reluctantly
protests by RCD Cleaning Service against its decertification
from the HUBZone program (and its subsequent elimination from
the competition in one procurement and the cancellation of its
contract award in another) after it failed to provide all
requested information to the SBA concerning the location of
its principal office in the process of another firm's protest
of its HUBZone status. The court, however, was critical of the
SBA's unwieldy and error-prone methods of determining HUBZone
status in such protests.
S. Information Technologies Corp., the GAO sustained a
protest in an FSS best-value procurement because (i) there was
no explanation in the record why the awardee's past projects
were considered similar in scope and complexity to the order
being issued and (ii) the agency (in its best-value analysis)
failed to assess the vendors' differing strengths or otherwise
explain why the quotations were technically equal.
Redland Co., the Court of Federal Claims held, inter
alia, that a contractor was not entitled to Eichleay
or unabsorbed overhead damages during a suspension of work
that was ordered before initial performance began, especially
when the contractor offered no proof that it remained on
standby during the suspension.
May 12, the Department of State is amending its Acquisition
Regulation (DOSAR) by adding a clause (which will apply to
contracts that require contractor employees (i) to perform
on-site at a Department of State location and/or (ii) to have
access to Department information systems) that
implements procedures regarding personal
identity verification of contractor personnel, as required
by Homeland Security Presidential Directive 12 ("Policy
for a Common Identification Standard for Federal Employees and
Contractors") and Federal Information Processing
Standards Publication Number 201 ("Personal Identity
Verification (PIV) of Federal Employees and
sustained a protest by Ocean
Services, LLC, because the agency should not have rejected
a bid whose acceptance period expired on a Saturday when the
bidder revived it the next Monday by extending the acceptance
Conservation Group, the Court of Appeals for the Federal
Circuit held that the Court of Federal Claims lacks
jurisdiction under 28 U.S.C. 1491(b)(1) over non-procurement
protests (in that case a protest of a lease of
government property). Now, in Creation
Upgrades, Inc., the CAFC holds that, under the same
reasoning, the Court of Federal Claims lacks jurisdiction
under 28 U.S.C. 1491(b)(1) over protests involving the sale
of government property. The court describes the holding as
nonprecedential, but it is the law, so heed it.
Defense Marine (Asia) PTE LTD, the Court of Federal Claims
denied a pre-award protest in which the protester claimed that
the information in the solicitation was not sufficient for
bidders to price (or the agency to evaluate) proposals
intelligently. I wonder why the protest was not dismissed as
untimely since the recitation of facts notes that proposals
had been submitted (so, presumably, the protest was not filed
before that time).
Assocs. Limited Partnership, the Court of Federal Claims
dismissed a claim for breach of contract as time-barred under
28 U.S.C. 2501 because it "first accrued" more than
six years before the plaintiff brought suit. Judge Allegra
made this mundane holding memorable by the language he chose
to express it:
is safe to say that some things in life ought not be feigned.
"Do not feign affection," a famous poem admonishes.
Nor should an official invoke "feigned necessities,"
characterized by Cromwell as "the greatest cozenage that
men can put upon the Providence of God, and make pretence to
break known rules by." And when it comes to contracts,
one probably should add to this list – not feigning a demand
for performance. Doing so when performance is not truly
desired, and when there is no genuine intent to pursue damages
upon nonfeasance, is a pretense that, over time, can serve to
render important rights unenforceable – as this case,
unfortunately for plaintiff, so well illustrates. [footnotes
omitted; the "famous poem" is Max Ehrmann's Desiderata]
Geotech Service , the CBCA held the Government breached
the implied covenant of good faith and fair dealing by
refusing to allow the contractor to use a method of
performance permitted by the specifications.
GAO sustained a protest by Technology
Concepts & Design, Inc., because the evaluation lacked
a rational basis and because a part of it was made on a
different basis than required by the solicitation.
the Court of Federal Claims held that a subcontractor had
standing (as the intended third-party beneficiary of a
contract modification) to bring a suit for damages against the
Government after the Government breached the mod by failing to
issue checks jointly to the prime and the sub.
Diem, Travel and Transportation Allowance Committee is
Personnel Per Diem Bulletin Number 275, 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
Timber Co., the Court of Federal claims determined the
damages, including lost profits, due the contractor for the
Government's breach of timber sales contracts.
issued several opinions, the only interesting one of which is Free
& Ben, Inc., which upholds a default termination of a
contractor who did not deliver trucks to Iraq because, after
award, it requested an End-User Certificate, which the
Government refused to issue because the contract did not
require it to do so. The Board found, inter alia, (i)
that the contractor did not prove such certificates were
required by Japan (where the trucks were manufactured) and
(ii) that the contractor had not checked this issue prior to
A. Rubino, the CBCA denied the Government's motion for
summary judgment because whether or not a government official
had authority to make certain representations to the
contractor was a disputed issue of fact.
Case 2010-009: This Government is proposing to amend the
FAR to clarify the requirements for reporting, reutilization,
and disposal of government property and the contractor's
obligations under the "Government Property" clause.
Comments are due by June 3.
Savings Bank, et al. v. United States, one of the
increasingly rare Winstar decisions still being issued, the
Court of Federal Claims awarded the plaintiff expectancy
damages for lost profits and lamented the fact that under
current law it could not also award interest and attorneys'
Acquisition Circular (FAC) 2005-51 has been published and
consists of the following two items:
2010-015 ("Women-Owned Small Business Program") is an interim
rule amending the FAR extensively to implement the SBA's
regulations establishing the Women-Owned
Small Business Program ("WOSB"). Comments are
due by May 31.
2009-029 ("Clarification of Standard Form 26
a final rule effective May 2 that clarifies Standard
Form 26 by, inter alia, by making changes above
blocks 17 and 18 and in block 18 to make it clear that block
18 should not be used when awarding a negotiated procurement
and should only be checked when awarding a sealed bid
procurement in The
Huntsville Times Co., has to be in the running for
the title of the worst solicitation process ever because, in
sustaining the plaintiff's post-award protest, the court
concluded there were "(1) procedural errors in
establishing the [Source Selection Plan "SSP"]; (2)
a confusing and internally inconsistent SSP; (3) ratings that
were based on evaluation criteria different from those stated
in the [solicitation]; (4) ratings that were irrational or
were in violation of the governing regulation; and (5) a
failure to apply the weighting scheme for evaluation criteria
set forth in the [solicitation]" (and that summary does
not do justice to the multiple specific errors the court
detailed in its decision.)
Construction Co., the Court of Federal Claims held that
a bidder was improperly eliminated from a
competition after an email flood backed up the Government's
servers and was responsible for the late delivery of an
Environmental Services, the Court of Federal Claims denied
a post-award protest against, inter alia, a price
realism analysis even though the court found many problems
with the analysis and concluded that determining it was
acceptable was a "close call."
Wings, Inc., the ASBCA held that the Government was not
liable for the contractor's vehicle storage costs incurred
after the Government returned the leased vehicles to the
contractor at the end of the lease.
announced the publication
of FTR Bulletin 11–05, which provides the annual changes to
the RIT allowance tables necessary for calculating the
amount of a transferee’s increased tax burden due to an
employee’s official permanent change of station. This
bulletin and all other FTR Bulletins
can be found here.
allowance tables are located here.
sustained a protest by California
Industrial Facilities Resources, Inc. d/b/a CAMSS Shelters
against the unduly restrictive terms of a solicitation (issued
without an appropriate J&A) that required brand name
products without listing salient characteristics that would
permit offers of equivalent alternates.
Systems Group, the GAO sustained another protest because
the agency did not perform required cost realism evaluations
of either the awardee's or the protester's
Department of State is proposing to amend the
ITAR (i) to add an exemption for the temporary
export of chemical agent protective gear for exclusive
personal use to destinations not subject to restrictions and
to Afghanistan and Iraq under specified conditions and (ii) to
clarify an exemption for firearms and ammunition by removing
extraneous language that does not change the meaning of the
exemption. Comments are due by May 23.
Fire Crew Transport, Inc., an unsuccessful pre-award
protest, the Court of Federal Claims rejected various
challenges to the Forest Service's nationwide procurement for
establishment of regionally based BPAs.
Department of the Interior (DOI) is proposing to revise the
Department of the Interior
Acquisition Regulation (DIAR) in order to make minor
corrections to DOI acquisition procedures to be consistent
with the FAR, to add a new clause covering contract
administration roles and responsibilities. Comments are due by
Bulletin FTR 11-06: Effective April 1, the GSA is increasing per
diem rates for certain locations in California,
Mississippi, New York, Pennsylvania, Texas, and Virginia.
sustained two protests.
Procurement, JVG, the GAO found there was no documentation
in the record supporting agency's rationale for rejecting the
protester's fixed-price proposal as being "too low."
Computer Enterprises, Inc., the GAO sustained the protest
because the Government's needs for migration services during
first two years of the contract changed dramatically so that
they were much less than the amount of migration on which
offerors were required to bid.
you will see a decision dismissing a pro se plaintiff's
complaint as essentially incomprehensible, but in TKS
Aerospace v DHS, the CBCA found the Government's motion to
dismiss to be nonsensical:
has submitted a twenty-four page, single-spaced motion
containing numerous, unrelated factual and legal allegations,
few of which relate to each other or to this Board’s
jurisdiction. In reviewing the motion, the Board is unable to
discern what respondent’s legal positions are, or the basis
of those positions.
Enterprises-GMT Mechanical, the CBCA held that the VA changed
a construction contract by directing the contractor to attach
insulation to the roof in a manner different from that stated
in the specifications.
As part of
its ongoing comprehensive review of all of its size standards,
the SBA has evaluated 45 industries and three sub-industries
in NAICS Sector 54 and one industry in NAICS Sector 81 and
proposes to increase small
business size standards for 35 industries and one
sub-industry in NAICS Sector 54, Professional, Scientific and
Technical Services, and one industry in NAICS Sector 81, Other
Services. Comments are due by May 16.
Case 2008-D006 (Multiyear Contract Authority for
Electricity from Renewable Energy Sources): DoD has published
a final rule which establishes that the head of the
contracting activity may enter into a contract for the
purchase of renewable energy for a period in excess of five
years, not to exceed ten years, only after a determination of
the cost effectiveness of the proposed purchase has been made
based upon a business case analysis and only if it would not
be possible to purchase electricity from the source in an
economical manner without the use of a contract for a period
in excess of five years.
Case 2011-D026 (Repeal of Restriction on Ballistic Missile
Defense Research, Development, Test, and Evaluation): DoD has
issued a final rule to implement section 222 of the National
Defense Authorization Act for Fiscal Year 2011 (Pub. L. 111–383),
which repeals the restriction on the purchase of Ballistic
Missile Defense research, development, test, and evaluation
from foreign sources.
Case 2009-D029 (Safety of Facilities, Infrastructure and
Equipment for Military Operations): DoD has adopted as final,
without change, an interim rule amending the DFARS to
implement section 807 of the National Defense Authorization
Act for Fiscal Year 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 inspected for safety and
habitability prior to use, and that such facilities should be
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.
Case 2011-D025 (Nonavailability Exception for Procurement
of Hand or Measuring Tools): DoD has issued an interim rule to
implement section 847 of the National Defense Authorization
Act for Fiscal Year 2011, which provides a nonavailability
exception to the Berry Amendment requirement to acquire only
domestic hand or measuring tools. Comments are due by May 16.
Case 2010-D022 (Identification of Critical Safety Items):
DoD proposes to amend the DFARS to to add a contract clause
that clearly identifies any items being purchased that are
critical safety items so that the proper risk-based
surveillance can be performed. Comments are due by May 16.
Obama has issued a Memorandum
of March 11, 2011, entitled "Government Reform for
Competitiveness and Innovation."
Court of Federal Claims' decision in the RN
Expertise, Inc. bid protest is a great example of the
burden of proof. The court found that both the plaintiff
and the defendant presented equally conclusory and unsupported
arguments and then called that tie in favor of the defendant
because the plaintiff had the burden of proof.
Defendant contends that potential offerors would have
reasonably anticipated the modification, and therefore, it was
within the scope of the contract. The Defendant's assertions,
however, are conclusory and not supported by the
Administrative Record. . . .Similarly, the Plaintiff's
assertions that the potential offerors would not have
reasonably expected at the time of competition that the
addition of on-site collections would have been within the
scope of the contract's changes clause are conclusory and not
supported by the Administrative Record. For example, the
Plaintiff does not make any argument based on contract
language in support of its position. Unfortunately, since the
burden concerning this factor rests on the Plaintiff, this
Court must decide against the Plaintiff on the reasonable
expectations of potential offerors.
2005-50 has been issued. It includes the following nine
items, plus technical amendments:
Case 2008-030 ("Proper Use and Management of
Cost-Reimbursement Contracts") is an interim rule
amending the FAR to provide regulatory guidance on
the proper use and management of other
than firm-fixed-price contracts (e.g., cost-reimbursement,
time-and-material, and labor-hour) in order to implement
section 864 of the Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009, which aligns with the
Presidential Memorandum on Government Contracting, issued on
March 4, 2009, directing agencies to save $40 billion in
contracting annually by FY 2011 and to reduce the use of
high-risk contracts. Comments are due by May 16.
Case 2007-012 ("Requirements of Acquisitions Pursuant to
Multiple-Award Contracts") is an interim rule, effective
May 16, that amends the FAR to implement section 863
of the Duncan Hunter National Defense Authorization Act for
Fiscal Year 2009, entitled "Requirements for Purchase of
Property and Services Pursuant to Multiple-Award
Contracts," which mandates enhanced competition for
orders placed under multiple-award
contracts, including the GSA’s Federal Supply Schedules.
If an individual order over the simplified acquisition
threshold does not follow the section 863 competitive
procedures, section 863 requires that a notice of, and the
determination to waive competition for, the order be published
in FedBizOpps within 14 days after award.
Comments are due by May 16.
Case 2009-038 ("Justification and Approval for
Sole-Source, 8(a) Contracts") is an interim rule amending
the FAR to implement section 811 of the National
Defense Authorization Act for Fiscal Year 2010 and to
encourage agencies to maximize the effective use of
competition by making certain that the proper J&A is
obtained prior to award of 8(a)
sole-source contracts over $20 million. Comments
are due by May 16.
Case 2008-007 ("Additional Requirements for Market
Research") is a final rule effective April 15, adopting
with changes the interim rule amending the FAR to implement
section 826, Market Research, of the National Defense
Authorization Act for Fiscal Year 2008, which requires the
head of an agency to take appropriate steps to ensure that any
prime contractor of a contract (or task order or delivery
order) in an amount in excess of $5 million for the
procurement of items other than commercial items engages in market
research as necessary before making purchases.
Case 2011-004 ("Socioeconomic Program Parity") is an
interim rule amending the FAR to implement section
1347 of the "Small Business Jobs Act of 2010," which
clarifies the Contracting Officer's ability to use discretion
when determining whether an acquisition will be restricted to
small businesses participating in the 8(a), HUBZone, or SDVOSB
programs by noting that there is no
order of priority among these programs. Comments are due
by May 16.
Case 2008-034 ("Use of Commercial Services in Item
Authority") is a final rule adopting without change the
interim rule amending the FAR to implement section
868 of the Duncan Hunter National Defense Authorization Act
for Fiscal Year 2009, which provides that the FAR shall be
amended with respect to the procurement of commercial
services, specifically services that are not offered and
sold competitively in substantial quantities in the commercial
marketplace, but are of a type offered and sold competitively
in substantial quantities in the commercial marketplace. These
services may be considered commercial items only if the
contracting officer has determined in writing that the offeror
has submitted sufficient information to evaluate, through
price analysis, the reasonableness of the price for such
services. The rule details the information the contracting
officer may consider in order to make this determination.
Case 2009-040 ("Trade Agreements Thresholds") adopts
as final without change the interim rule amending the FAR to incorporate
thresholds for application of the World Trade Organization
Government Procurement Agreement and the Free Trade
Agreements, as determined by the United States Trade
Case 2009-025 ("Disclosure and Consistency of Cost
Accounting Practices for Contracts Awarded to Foreign
Concerns") is a final rule adopting without change the
interim rule amending the FAR to align it with a CAS
Board clause ("Disclosure and Consistency of Cost
Accounting Practices-Foreign Concerns").
Case 2009-026 ("Compensation for Personal Services")
is a final rule adopting without change the interim rule
amending the FAR to align it with the following
revised CAS Board standards: "Cost Accounting Standard
for composition and measurement of pension cost";
and "Accounting for the cost of deferred compensation."
the ASBCA held that a delivery order issued by DESC pursuant
to a DOE contract was a separate DoD contract over which the
ASBCA had CDA jurisdiction on appeal.
Boeing Co. v. DOE, the CBCA granted the contractor's
motion for summary judgment that it was entitled to the costs
of defense of qui tam suit (in which it was ultimately
found not liable) from the time the suit was originally filed
until the Government intervened as plaintiff.
The GSA is
proposing to amend the GSAR to restore guidance prescribing
the use of GSA
Form 1142 ("Release of Claims") in construction
and building service contracts for purposes of making final
payments and to ensure contractors are paid in accordance with
their contract requirements and that they are neither overpaid
or nor receiving improper payments for work performed.
Comments are due by May 10.
proposing to amend the DFARS to require contractors to display
the DoD fraud
hotline poster in common work areas. Comments are due by
issued a final rule amending the DFARS by adding a section
215.300 with a reference to the Director, Defense
Procurement and Acquisition Policy memorandum dated March 4,
2011, concerning Department of Defense Source Selection
Procedures, which provides mandatory requirements for
conducting competitively negotiated acquisitions under FAR
part 15 and outlines a common set of principles and procedures
for conducting such acquisitions.
Systems, Inc., the Court of Federal Claims held the
protester had met the tests for supplementing the record with
affidavits from its officers and employees in order to permit
effective judicial review:
a plaintiff alleges bad faith and bias on the part of an
official who had at least some involvement in the procurement,
and seeks to supplement the record with evidence of bias and
bad faith allegedly coming from that official’s own mouth,
effective judicial review would be frustrated if the Court
were not to allow the record to be supplemented.
Corp., the court held there was nothing improper in the
agency's decision to purchase under an FSS order items that
previously had been purchased under a small business
Advanced Composites, the ASBCA granted the Government's
motion for a summary judgment denying contractor's claim for
extra work under the Changes clause because the contract's
performance specification required the contractor to provide
the navigation system at issue in the appeal.
the Board granted the contractor's motion for summary judgment
that the Government failed to pay for contractually compliant
training materials and improperly terminated the contract for
cause due to a failure to comply with a cure notice that
imposed extra-contractual requirements.
International Corp., the Board upheld a termination for
cause due to late delivery of nonconforming supplies.
Department of Education has updated and reissued its acquisition
regulation (EDAR) to harmonize it with current FAR
and Department policies.
International, the ASBCA held that the costs of
maintaining a standby Letter of Credit (LOC) to
guarantee the contractor's ability to repay the entire amount of its
long-term debt in two years were allowable costs for the following
FAR 31.205-20 is inapplicable to disallow the LOC costs because
SRI treated the full amount of its long-term . . .[b]ond debt as
a part of its "[c]urrent
liabilities" not as its "long-term
liabilities," and the government has failed to show
this treatment is inappropriate. Second, paying an annual fee
(the LOC costs) for a one-year
bank LOC for the purpose of collateralizing or guaranteeing
its ability to repay the
full amount of its long-term . . . [b]ond debt in the short-term
(one year) qualifies as
administrative costs for short-term borrowing for working
capital allowable under FAR
31.205-27(a)(3). Third, the LOC costs in dispute are not fixed
and upfront costs and are
therefore different in kind from the typical costs of
Critical Solutions, the Court of Federal Claims held that,
in order to obtain an HUBZone contract, a firm must meet the
35% employee residency threshold both at time of its initial
offer and at the time of contract award.
Department of Energy is proposing to amend the DEAR sections
property to conform to the FAR, remove outdated coverage,
and update references. Comments are due by April 4.
Bureau of Industry and Security (BIS) has issued a final rule
amending the Export Administration Regulations (EAR) by
clarifying the application-processing, issuance, and denial
provisions concerning BIS's authority to revise, suspend, or
2009-D031 (Government Support Contractor Access to
Technical Data) is an interim rule amending the DFARS to
implement section 821 of the National Defense Authorization
Act for Fiscal Year 2010, which authorizes certain types of
government support contractors to have access to proprietary
technical data belonging to prime contractors and other third
parties, provided that the technical data owner may require
the support contractor to execute a nondisclosure agreement
having certain restrictions and remedies. Comments are due by
Case 2009-D020 (Payments in Support of Emergencies and
Contingency Operations) is a final rule adopting, with minor
changes, the prior interim rule amending the DFARS to exempt
both military payments related to contingencies and certain
payments related to emergencies and the release or threatened
release of hazardous substances from the requirements of the
Prompt Payments Act.
Case 2008-D042 (Preservation of Tooling for Major Defense
Acquisition Programs) is a final rule amending the DFARS to
implement section 815 of the National Defense Authorization
Act for Fiscal Year 2009, which addresses the preservation of
tooling for major defense acquisition programs and (i)
requires that the milestone decision authority (MDA) approve a
plan for the preservation and storage of such tooling
prior to Milestone C approval; (ii) requires the MDA to
periodically review the plan to ensure that it remains
adequate and in the best interest of DoD; and (iii) provides a
mechanism for the Secretary of Defense to waive the
requirement under certain circumstances.
Case 2011-D010 (Increase the Use of Fixed-Price Incentive
(Firm Target) Contracts) is a proposed rule to amend DFARS
subpart 216.4 to require that contracting officers (i) give
particular consideration to the use of fixed-price incentive
(firm target) contracts, especially for acquisitions moving
from development to production; and (ii) pay particular
attention to share lines and ceiling prices for such
contracts, with a 120 percent ceiling and a 50/50 share ratio
as the default arrangement. Comments are due by May 2.
Case 2010-D011 (Independent Research and Development
Technical Descriptions) is a proposed rule to amend the DFARS
to require contractors to report IR&D projects
generating annual costs in excess of $50,000. Comments are due
by May 2.
Case 2009-D026 (Multiyear Contracting) is a proposed rule
to amend Part 217 of the DFARS to update and clarify the
requirements for multiyear contracting. Comments are due by
The SBA's OHA has
published several decisions, the three most interesting of
In David Boland, Inc.,
the OHA affirmed the Area Office's finding that a firm was no
longer affiliated with a with large business under the totality of circumstances, identity of interest, clear fracture,
and common management analyses.
Design and Construction,
LLC, the OHA dismissed an appeal because it lacks
jurisdiction over determinations by the VA's Office of Small
and Disadvantaged Business Utilization concerning
whether firms are eligible SDVOSBs.
Construction & Management Services, LLC,
the Area Office had determined that an 8(a) firm was other
than small based on its size as of the dates of (i) its
application for 8(a) status and (ii) notice to the firm that
its size was in question. The OHA reversed the size
determination because the second date used by the Area Office
was not the date required by the regulations (i.e., the date
the firm was actually certified by the SBA). [SH Note--I can
no longer find a link to this decision]
Defense Marine (Asia), the Court of Federal Claims denied
a post-award protest against split awards because the
solicitation included FAR 52.212-1(h), which permitted
2009-D043 (Reporting of Government-Furnished Property):
DoD is hosting a public meeting to discuss the
proposed rule on March 18, 2011, from 1 p.m. to 4 p.m. DST in
the General Services Administration multipurpose room, 2nd
floor, One Constitution Square, 1275 First Street, NE.,
Washington, DC 20417.
the Government's motion for summary judgment in Lublin
Corp., t/a Century 21, Advantage Gold, the Court of
Federal Claims held that government officials need not have
explicit authority to enter into contracts generally in order
to be found to have implied actual authority to enter into a
sustained a protest by Resource
Dimensions, LLC because there was inadequate information
on the record to support the agency's evaluation of the
protester's oral presentation during discussions.
Cascade Co., the Court of Federal Claims held that a
contractor whose protested contract was terminated for
convenience and replaced by another contract for essentially
the same work was not entitled to a
termination-for-convenience claim recovery.
OHA has issued several decisions.
Education & Training, LLC , the SBA's OHA affirmed
the Area Office's finding of affiliation under the
ostensible subcontractor rule. (A much-appreciated contributor
to this site provided this decision to me before it appeared
on the SBA's site).
Ltd Co., the OHA reversed the Area Office's
determination and found that the firm was no longer affiliated
with its former affiliate under the former affiliate rule
because the former affiliate was no longer the primary source
of its revenue.
Allstates Employer Services II, Inc., the OHA affirmed
the Area Office's finding that a firm's average annual
receipts exceeded the applicable size standard and noted that
the issue of the number of employees that should be counted
for a firm supplying employee leasing services is irrelevant
to a determination under a revenue-based size standard.
Inc., the OHA affirmed the Area Office's dismissal of
a size protest as insufficiently specific.
Department is proposing to amend the ITAR to
require the electronic submission of registration
fees and to add definitions for "Foreign Ownership"
and "Foreign Control."
Comments are due by
Case 2009-D033: DoD is adopting as final, without change,
an interim rule amending the DFARS to to implement the Fiscal
Year 2010 National Defense Authorization Act, section 820,
entitled "Publication of Notification of Bundling of
Contracts of the Department of Defense," by adding a
requirement at DFARS 205.205–70 to publish a notification of
the intention to bundle a DoD procurement at least 30 days
prior to (i) releasing a solicitation or (ii) placing an order
without a solicitation.
Case 2011-D001: DoD has amended the DFARS to eliminate the
Small Business Competitiveness Demonstration Program.
Case 2009-D027: DoD is adopting as final, without change,
an interim rule amending the DFARS to implement
section 806 of the National Defense Authorization Act for
Fiscal Year 2010, which authorizes an agency that is an
element of the intelligence community to award a contract for
supplies or services in excess of the simplified acquisition
threshold for the performance of a joint program conducted to
meet the needs of DoD and the non-DoD agency.
Case 2010-D014: DoD is publishing a proposed rule that
would amend the requirements in the DFARS concerning the use
of passive radio frequency identification (RFID). Comments are
due by April 25.
Following is the latest
report from my continuing quest (see entries at
February 12 and 17 below) to learn to navigate the SBA's new
OHA decisions webpage. Even though the decisions on the top
page of the web page (and on subsequent pages) are not listed
in any recognizable order (certainly not most recent decisions
first), if you type "2011" in the search box for
"Title" (there is no search box for
"Date") you will be taken to 2011 decisions.
Hopefully that page will be updated to show new cases in
order, most recent first, else it will become increasingly
difficult to search for the latest decisions the further into
the year we go (as more and more cases appear on it). At any
rate . . .
Solutions, Inc., the SBA's OHA upheld the Area Office's
determination that firms were affiliated under the ostensible
subcontractor rule because one was "unusually
reliant" on the other. In Total
Solutions, the OHA held it lacked jurisdiction to
award fees under the EAJA.
Case 2009-D043 ("Reporting of Government-Furnished
Property") includes proposed amendments to the DFARS that
would revise and expand reporting requirements for
government-furnished property to include items uniquely and
non-uniquely identified and to clarify policy for contractor
access to government supply sources. Comments are due by April
in recognizing that some of its mandates, reporting
requirements, and other acquisition practices encourage
industry to adopt processes and make investments that increase
costs, especially overhead costs, but do not contribute to
value added in systems and services delivered to DoD and (ii)
in order to implement the memorandum from Under Secretary of
Defense (Acquisition, Technology, and Logistics) Dr. Ashton
Carter, dated September 14, 2010, entitled "Memorandum to
Acquisition Professionals," requests information from the
industrial base to identify the sources of these costs, backed
by specific, credible, convincing data, which will enable DoD
to develop a fact-based program to reform cost-inflating
practices. Comments are due by April 8.
vacating the judgment of, and remanding the case to, the Court
of Federal Claims, the Court of Appeals for the Federal
Circuit held, in Klamath
Irrigation District, that impossibility of performance is
a factor to be taken into account in considering the sovereign
In my rant
at the February 12 entry, I complained that SBA OHA
decisions were not organized or searchable in a meaningful
way on the SBA's newly designed website. Subsequently, a
visitor to this site sent me one 2011 OHA decision that I
initially could not locate on the
new SBA OHA page (in fact, there are no 2011 decisions
visible on that basic webpage, at least as of the time of this
post). Subsequently, I did find the decision by typing in the
name of it from the copy of the decision my site visitor had
sent me. That's fine if one already knows the name of the
decision, but what if (like me) you just want to keep track of
all new decisions as they are published, and you do not know
their names before reading them? I still do not see how that
is easily doable on the SBA's new site. I have published
the new OHA decision my site visitor sent me here.
Thanks to him for the contribution; I welcome all such input.
By the way, that 2011 decision is not posted on the
"archive" webpage, which is usefully searchable.
That confirms my suspicion that "archive" means just
that and that the SBA will not be updating that page with new
decisions published after its website redesign.
Case 2010-005 covers a proposed rule to update FAR
references to authoritative accounting standards to
harmonize with FASB's Accounting Standards Codification of
Generally Accepted Accounting Principles. Comments are
due by April 18.
Associates, the Court of Federal Claims held that the
protester was entitled to an EAJA award and, in so doing,
provided a good, basic discussion of the tests for whether the
Government's position was substantially justified and for
granting a COLA adjustment to the statutory cap on hourly
attorney rates ($125).
Joint-Venture, the court denied the Government's motion
for summary judgment, which was based on the Government's
argument that the Limitation of Cost or Limitation of Funds
clause precluded the contractor's recovery for state general
excise taxes because the contractor had reason to foresee the
cost overrun when there was still funding available and when
the contractor could have protected itself by stopping
Case 2006-D021 ("Award Fee Contracts") is a
final rule amending the DFARS to address award-fee
contracts, including eliminating the use of provisional
ahead re SBA website. Late last year, I noted here that the
SBA had redesigned its website, so that the web addresses for
all its Office of Hearings and Appeals (OHA) decisions had
changed, and navigation to the page that listed all those
decisions was not possible from the SBA's new home page. Then
(although I can't remember how I did it), I figured out that,
by substituting "archive" for "www" in
each of the old addresses, you could still link to all the
decisions (at least those published to the web on or before
December 23, 2010), so I changed all the corresponding urls on
my SBA OHA recent decisions
page. With that change, you can still link from my SBA
and SBA OHA pages (i) to
any of the decisions I summarize on this site or (ii) to the
SBA's old page that links to all its own decisions. That
latter page lets you select "all" decisions to
search, or "size," or "NAICS," etc., and,
then, you may sort the selected list of decisions by the dates
that they were published to the web. It is cumbersome, but you
can (could) painstakingly keep up with new decisions as they
are (were) published. However, since the first word in the url
is now "archive," I'm suspicious that the SBA is not
going to keep these pages current as new decisions are issued.
Now for the meat of the rant. If you go to the SBA's newly
redesigned homepage and search for "OHA" decisions,
you're in for a real treasure hunt, with not much to show for
it at its end. First of all, "OHA" does not appear
at all on the busy homepage. So, after stumbling around, you
finally click on the "Contracting" drop-down menu at
the top of the page and, within that menu, you select the link
to "Protests" in the "Contracting
Officials" column. On the page that link takes you to,
you see a promising link to "Size Protests
Guidelines," so you click on that link, and, on the page
that link takes you to, you find what appears to be the end of
your quest, which is a link to "Office of Hearings and
Appeals." Naively, you select that link, only to be taken
to a page that describes the OHA, but does not contain any
link to its actual decisions. Fatigued, but undaunted, you
back out of that page and the one before it, until you are at
the "Protests" page again, and this time you select
the link to "Status Determinations After a Size
Protest," which takes you to a page that has a link to
"Size Protest Determinations and Appeals," which has
a link to "Office of Hearings and Appeals" under the
"Size Determination" section. You are very
suspicious of that link because the identically-titled link on
another page just led you to a dead end, but you click on it
anyway (mostly, out of desperation), and, voila,
it does indeed take you to the new OHA homepage from which you
can finally link to the new
page listing all OHA decisions. Unless you really want to
make this trek each time, I suggest you bookmark that last
link. But, now that you are on the new OHA decisions page,
what you are confronted with is only a seemingly random list
of all types of size, naics, bdp, and vet decisions, not
presented in any recognizable order, sortable only by type of
decision, but, within types, not sortable by date, and not
described by subject, so that it is impossible to
identify new decisions as they are published or to search for
decisions on a particular issue, as far as I can tell (if
anybody sees a way to do it, please let me know). So, how is
your intrepid reporter supposed to spot the new decisions and
report them to you as they appear? The answer does not
immediately leap to my mind. Yours? And, forget about me, how
much less useful could the new OHA site possibly be for any of
you who want to rely on it as a resource? I'm sure there is an
annual prize out there somewhere for "Poorest Website
Design," and I think I've found a serious contender.
explained in this
congressional report, a new statute (P.L. 111-350) revises
41 U.S.C. (Public Contracts) to eliminate errors,
inconsistencies, and obsolescence that has crept in gradually
over the years, and, while it does not involve substantive
changes to the current law, it does result in significant
revisions to the old section number system. For example, the
Contract Disputes Act is now at 41 U.S.C. 7101-7109 instead of
its old location at sections 601-613.
numerous errors in the procurement, the Court of Federal
Claims dismissed the protest of Digitalis
Education Solutions because it submitted neither a timely
expression of interest to the agency nor a timely protest to
the court and, therefore, suffered no prejudice, was not an
interested party and lacked standing.
Safety Consultants, Inc., the Court of Federal Claims
dismissed an appeal for lack of jurisdiction because
contractor failed to file valid CDA claim with Contracting
Officer within CDA's six-year statute of limitations, and, in
doing so, the court explained the difference between the CDA's
and the Tucker Act's six-year statutes of limitations.
proposing to update the rules of the ASBCA
at DFARS Appendix A, Part 2, to include the current monetary
statutory limits and thresholds for (i) claim certification,
(ii) the use of accelerated procedures, and (iii) the
use of small claims procedures. Comments are due by March 14.
March 14, the DOE is amending many sections of the its
acquisition regulation, the DEAR,
to to make changes to conform to the FAR, remove out-of-date
coverage, and update references.
March 14, the SBA
is extensively amending its regulations concerning (i) the
8(a) business development program (the first revisions in this
area in 10 years), (ii) the SBA's size regulations, and (iii)
its regulations covering small disadvantaged businesses.
Although the changes are too numerous to detail here, I will
quote one that especially interests me, i.e., the new language
at 13 C.F.R. at 121.103(h) detailing the number of contracts
that joint ventures may engage in without a finding of general
affiliation between the partners to the joint venture:
"[A] specific joint venture entity generally may not be
awarded more than three contracts over a two year period,
starting from the date of the award of the first contract,
without the partners to the joint venture being deemed
affiliated for all purposes. Once a joint venture receives one
contract, SBA will determine compliance with the three awards
in two years rule for future awards as of the date of initial
offer including price. As such, an individual joint venture
may be awarded more than three contracts without SBA finding
general affiliation between the joint venture partners where
the joint venture had received two or fewer contracts as of
the date it submitted one or more additional offers which
thereafter result in one or more additional contract awards.
The same two (or more) entities may create additional joint
ventures, and each new joint venture entity may be awarded up
to three contracts in accordance with this section. At some
point, however, such a longstanding inter-relationship or
contractual dependence between the same joint venture partners
will lead to a finding of general affiliation between and
Case 2009-004 ("Enhancing Contract
Transparency") withdraws the advance notice of proposed
rulemaking and notes that, because of comments received in
response to that notice, no changes to the FAR in this area
are contemplated at this time.
proposing to revise the requirements in the NASA FAR
Supplement for contractors to establish and maintain an Earned
Value Management System for firm, fixed-price (FFP)
contracts. The proposal recognizes the reduction in risk
associated with FFP contracts and is intended to relieve
contractors of an unnecessary reporting burden. Comments are
due by April 11.
has published its decisions for January 2011.
Options, the Board held that, even though the contractor
won its appeal on the merits, it could not recover its
attorney fees under the EAJA because the Government's position
had been substantially justified, in that: "the
appeal involved [the Board's] determination of close factual
questions[;] the pre-hearing documentary record established a prima
facie case supporting the government’s deductions[;] and
the government’s position was supported by legal precedent
involving the same agency on closely analogous, albeit
distinguishable, facts." In States
Roofing, the Board reduced contractor's EAJA claim for, inter
alia, the "disproportionate amount" of
fees incurred after the contractor's rejection of the
Government's lump sum settlement offer.
Government Services, the Board refused to grant relief
from its prior judgment after the period to file a motion for
reconsideration had expired because the evidence presented in
support of the requested relief did not qualify as newly
Automation & Training Consultants, the Board granted
the Government's motion for summary judgment denying the
contractor's claim for reformation on the basis of unilateral
mistake, in part because the contractor failed to inquire
about a DOL wage determination it now alleges was missing from
the solicitation, which the Board said would have been a
patent error creating a duty to inquire.
Government Services decision, the Board held 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 a fixed-price contract award on the basis of the
contractor's theory reformation based on mutual mistake. Last
year, the Board had rejected the
same claim but made on a theory of breach of the implied
warranty of good faith and fair dealing.
Industries, the Board dismissed an appeal over the
contractor's objections since the Government's issuance of a
no-cost termination "because of the impossible
specification" provided all the relief originally
requested by the contractor.
Standard, the Board dismissed a claim for lack of CDA
jurisdiction because it was for "at least" a
specified amount, did not list the amounts requested for each
separate category of recovery sought, and, therefore, was not
for a "sum certain."
Contractors, Inc., v. Dept. of Interior, CBCA 2017 (Feb. 8, 2011), the CBCA dismissed for lack of jurisdiction a
contractor's appeal (filed more than 90 days after a default
termination) based on a unilateral contract modification
(which was not labeled as a Contracting Officer's decision)
that notified the contractor the Government might
reprocure and charge the contractor's account. The Board noted
that the Fulford doctrine did not apply to these facts.
(I cannot find a working link to this decision)
North American, Inc., the CBCA denied the Government's
motion for summary judgment because "almost every
material fact is contested, including the length of the
purchase order, the number of renewal periods of the purchase
order, the number of copiers leased, and whether the Navy
intended to end its use of some or all of the leased
Solutions Global, LLC, the Court of Federal Claims held
that, given the deference it was required to accord an
agency's decision-making process, the agency's failure,
despite some efforts, to locate all the relevant past
performance information in its own files concerning the
protester's past work did not vitiate its conclusion that the
awardee had more relevant, highly rated experience.
has issued an interim rule revising the NASA FAR
Supplement to implement the FAR Award
Fee revision previously issued in FAC 2005–46. Comments
are due by April 11.
Dynamics C4 Systems, the
Court of Appeals for the Federal Circuit
reversed the ASBCA's
prior decision (partially because the Board applied the
wrong test for equitable estoppel) and held that the fact that
the contractor on an ID/IQ contract accepted some emailed
delivery orders, when the contract required them to be mailed,
estopped the contractor from claiming an equitable adjustment
when the Government directed it to proceed after it initially
refused to perform subsequent, similarly defective delivery
orders. The correct test for equitable estoppel is the Federal
Circuit's own test from the Aukerman case, which requires a
showing of "(1) misleading conduct,
which may include not only statements and actions but silence
and inaction, leading another to reasonably infer that rights
will not be asserted against it; (2) reliance upon this
conduct; and (3) due to this reliance, material prejudice if
the delayed assertion of such rights is permitted."
immediately (?), the USDA is amending its Guidelines
for Designating Biobased Products for Federal Procurement,
to be consistent with certain statutory changes to section
9002 of the Farm Security and Rural Investment Act that were
effected when the Food, Conservation, and Energy Act of
2008 was signed into law on June 18, 2008. The question mark
above is because, elsewhere in the same document, the
effective date is also listed as June 6. Simultaneously, the
USDA is publishing proposed
regulations to provide a procedural framework to finalize the
above rule in the event the agency receives significant
adverse comment and withdraws the direct final rule. Comments
on both the "final" and proposed rules are due by
has published three
decisions. In A
To Z Wholesale, the Board denied a claim for based on a
violin (which the buyer did not inspect) and its case
purchased at an "As Is" auction that conformed to
their description in the auction catalogue, even though the
violin in the case did not turn out to be the valuable item
the name on the case indicated it would be.
March 4, the SBA is extensively revising its regulations
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 (from the current 10 days to
"15 business days, if possible"); (iii) require SBA’s
OHA to 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 NAICS code appeals (from the
current 10 days after the solicitation is issued to anytime
before offers are due); (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
goaling statistics; and (vii) make other changes to size
status protest and appeal rules.
proposing changes to 32 C.F.R. Part 156 to update policies and
responsibilities for the DoD Personnel
Security Program in accordance with the provisions of
current statutes and executive orders. Comments are due by
2008-D049: DoD has issued a final rule amending the DFARS to
require contractors to report the loss
of government property to the DCMA eTools application.
2008-D050: DoD has issued another final rule amending the
DFARS to require contractors to tag, label, or mark
government-furnished property items identified in the contract
as subject to serialized
CAS 413 segment-closing decision, the Court of Federal Claims
held that the Government
is entitled to an equitable adjustment to the extent that the
application of revised CAS 413 to segment closings results in
the Government owing more under revised CAS 413 for pension
costs attributable to pension costs arising under original CAS
The court also reaffirmed prior decisions that (i) the FAR's
Limitation of Funds and Limitation of Cost clauses do not
limit CAS 413 segment-closing adjustments because such
adjustments of previously determined pension costs do
not increase contract-specific costs; and (ii) recovery for
segment closing adjustments is not dependent on the contractor
having fully funded them in accordance with CAS 412 and the
FAR's pension cost regulations because segment closings are
not pension costs.
Worldwide, LLC, an unsuccessful post-award protest, the court held
that (i) an agency's "vague" statement that work
under the contract resulting from solicitation would be
"largely similar" to the work currently being
performed by the protester under a bridge contract did not
invalidate agency's subsequent award to the protested firm at
a significantly lower price than that proposed by protester;
and (ii) the protester did not establish that the awardee
engaged in a prohibited "bait and switch" of key
personnel. Concerning the latter issue, the court noted that,
to prove a bait and switch, a protester must show: "(1)
The awardee represented in its proposal that it would rely on
certain specified personnel in performing the services; (2)
the agency relied on this representation in evaluating the
proposal; (3) it was foreseeable that the individuals named in
the proposal would not be available to perform the contract
work; and (4) personnel other than those proposed are
et al. v. United States, over a strong, four-judge
dissent, the CAFC held that Tucker Act jurisdiction exists
over claims for breach of contract by the FDIC and, more
generally, that "(1)
when a government agency is asserted to have breached an
express or implied contract that it entered on behalf of the
United States, there is Tucker Act jurisdiction of the cause
unless such jurisdiction was explicitly withheld or withdrawn
by statute, and (2) the jurisdictional foundation of the
Tucker Act is not limited by the appropriation status of the
agency’s funds or the source of funds by which any judgment
may be paid."
Diem, Travel, Transportation Allowance Committee
has published Civilian
Personnel Per Diem Bulletin 274, effective February 1,
listing 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.
decision dated November 15, 2010, the GAO CAB denied a
contractor's claim for the costs of providing replacement
envelopes after the originals jammed sorter machines
because the originals were not manufactured in accordance with
the specifications referenced in the contract.
Department of Transportation has issued a final rule
(effective February 28) making extensive improvements to the
regulations at 49 C.F.R. Part 26 governing its disadvantaged
business enterprise program by,
inter alia, increasing accountability for recipients
with respect to meeting overall goals, modifying and updating
certification requirements, adjusting the personal net worth
threshold for inflation, providing for expedited interstate
certification, adding provisions to foster small business
participation, and improving post-award oversight.
Building Systems, the Court of Federal Claims
discussed the standards used to judge the enforceability of a
liquidated damages provision in a contract.
sustained the protest by Northeast
Military Sales, Inc., after concluding that the agency
ignored adverse past performance information concerning the
awardee with the result that its past performance rating of
"exceptional" lacked a rational basis.
has published three decisions from late 2010.
S.p.A. , the Board dismissed one appeal for lack of a CDA
certification and denied another because (i) an authorized
Contracting Officer did not change the sequence of work and
(ii) although the contractor was worried about the presence of
unexploded ordnance in the construction site and took extra
precautions based on its fears, it did not encounter any and,
therefore, could not recover for a Differing Site Condition.
Environmental, Inc., the Board struck allegations from the
contractor's complaint that were not part of its original
claim to the Contracting Officer.
Electrical and Construction Co., the Board held that, in a
firm, fixed-price construction contract, absent an EPA clause,
the contractor was not entitled to recover its increased costs
for asphalt caused by an unusually large spike in gasoline
GWU Library has stopped publishing and maintaining ASBCA
decisions, so I have converted all the old ASBCA links on this
website to the new urls from the ASBCA's website. If you spot any
errors, please let me know.
2005-49 has been published and includes one item, FAR
Case 2010-016 (Public Access to Federal Awardee
Performance and Integrity Information System), an interim interim
rule, effective today, that implements section 3010 of the Supplemental
Appropriations Act, 2010, by amending the FAR to
notify contractors of the new statutory requirement for public
access to FAPIIS and creates a new FAR clause to support the
posting of information in FAPIIS consistent with section 3010.
All information posted in FAPIIS on or after April 15, 2011,
except for past performance reviews, will be publicly
available. Comments on the interim rule are due by March 25.
February 18, the VA is revising its regulations at 38 C.F.R.
Part 74 concerning verification
of ownership and control of veteran-owned small businesses,
including SDVOSBs, (i) to rescind the requirements
(a) that eligible owners work full-time in the business for
which they have applied for acceptance in the Verification
Program and (b) that eligible participants are limited
to a single business; (ii) to change the time period for
issuance of reconsideration decisions from 30 to 60 days; and
(iii) to change the distribution of profits for limited
liability companies and employee stock ownership plans.
Diem, Travel and Transportation Allowance Committee is
publishing Civilian Personnel Per Diem Bulletin
Number 273, 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.
issued several decisions.
Inc., the CBCA held that, pursuant to the "Payments
Under Time and Materials Labor Hours Contract" clause,
the contractor was entitled to reimbursement only for the
amounts it actually paid subcontracted employees as opposed to
the direct labor rates it billed for its own employees.
Technology Solutions International, the contractor in a
services contract signed a bilateral modification (absent any
duress) pursuant to which it paid the Government rent to
occupy a space for many months and then claimed
(unsuccessfully, of course) that the modification was a
cardinal change or evidenced a differing site condition.
M. Bussie, the Court of Federal Claims held it lacked
subject matter jurisdiction to consider the plaintiff's claim
that he had not been paid for psychic services he provided to
has revised the
NASA FAR Supplement (NFS) to update agency-level,
government property-related provisions, clauses, prescriptions
and procedures to be consistent with changes made to FAR Parts
45 (Government Property) and 52.245 by FAC 2005–17, which
significantly rewrote those parts and changed property-related
definitions, provisions, and contract clauses.
FAA is proposing revisions to 14
C.F.R. Part 17 to update, simplify,
and streamline the current regulations governing the
procedures for bid protests brought against the FAA and
contract disputes brought against or by the FAA by adding a
voluntary dispute avoidance and early resolution process.
Comments are due by March 14.
from the Federal Circuit, the Court of Federal Claims held in Resource
Conservation Group, LLC that (i) the Government properly
rejected as nonresponsive a bid that proposed a use for leased
property (sand and gravel mining) that violated a federal
statute and associated regulations; (ii) the bidder was
charged with notice of those provisions even though they were
not cited in the solicitation; and, therefore, (iii) the
bidder's claim that the Government had an obligation to
specifically apprise it of the issue (under the doctrine of
superior knowledge) was unavailing.
of America, the court (i) denied the contractor's claims
that a default termination (for failure to make progress) was
made in bad faith and that the Government breached its duty of
cooperation and its duty not to hinder performance and (ii)
granted the Government's counterclaim for excess
Court of Federal Claims held in Acrow
Corp. of America (an unsuccessful post-award protest)
that, in making a favorable responsibility determination, the
Contracting Officer (i) did not rely on a bidder's
misstatements concerning involvement in a bribery scheme and
(ii) reviewed sufficient information to support her favorable
responsibility determination. The court based its conclusion
on the fact that, in her determination, the Contracting
Officer referred to "the events" that led to
prosecution, as opposed to the statement of "the
practices" that led to prosecution in the bidder's
misleading submission. There are at least two problems
with the court's reasoning. First, the court over-parses the
documents in its attempt at critical analysis and succumbs to
the intentional fallacy. Secondly, the court loses itself in
the trees, missing the forest altogether: its careful parsing
of the wording of various documents distracts it from the
larger issue of the appropriate consequences for efforts to
misdirect the the Contracting Officer's attention from serious
won a preliminary injunction at the Court of Federal Claims
against a proposed noncompetitive award by the Interior
Department (involving Microsoft products) because the
Determination and Findings purporting to justify the award was
deficient in its content and was not approved by the proper
Inc., the Court of Federal Claims denied a protest based
on alleged errors in the evaluation of (i) the successful
offeror's compliance with the zoning compliance requirements
of the solicitation and (ii) the protester's (a)
technical/management proposal; (b) most recent past
performance information; and (b) experience as the incumbent.
Concerning the last area, the court held that numerous and
continuing problems on less relevant contracts could have
significant (negative) evaluation weight compared to
performance on the single most highly relevant contract, i.e.,
the protester's work as the incumbent.
Department of Labor's OFCCP is proposing to rescind two
guidance documents addressing compensation
discrimination ( (i) Interpreting Nondiscrimination
Requirements of Executive Order 11246 with respect to Systemic
Compensation Discrimination and (ii) Voluntary Guidelines for
Self-Evaluation of Compensation Practices for Compliance with
Executive Order 11246 with respect to Systemic Compensation
Discrimination) because these documents (i) have limited OFCCP’s
ability to effectively investigate, analyze and identify
compensation discrimination and (ii) have been largely unused
by the Federal Government contracting community. Comments are
due by March 4.
Happy New Year!
||The complete 2010 blog
can be found here.