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Developments in Government Contracting--2011



December 31

The GAO 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.

December 29

DoD has 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.

December 28

The DOE 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.

As required by statute and effective January 1, 2012, DoD is removing DoD and Office of Personnel Management regulations concerning the National Security Personnel System (NSPS) from 5 C.F.R. Chapter XCIX.

In American 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.

December 26

The State 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").

Specifically, 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 Category XX. 

A companion State Department proposed rule would revise USML Category XX, covering these submersible 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 the CCL.  

In 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. 

A companion BIS proposed rule applies to surface vessels.

Comments on any of the above four proposed rules are due by February 6, 2012.

Effective 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. 

Effective 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. 

December 23

In W. 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 proposal (LLC).

December 22

The OFPP's 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." 

FAR 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, 2012.

In NCI 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 by APEX-MBM, 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).

In International 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 recovery.

MORI 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.

December 21

The GAO 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.

In Martin 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.

In Orion 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 corrected.

In Sharp 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 Officer.

In Janssen 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.

December 20

DFARS 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. 

DFARS 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.

December 17

The GAO 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 stated requirements. 

The State Department is proposing to amend Part 129 of the ITAR relating to brokers 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.

December 16

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 Services).

December 14

In VSE 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.

By the 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. 

The SBA has issued several new OHA size decisions. 

In Size 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.

In Size 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.

In Size 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.

In Size 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.

In Size 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 requirements.  

December 13

In SplashNote 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. 

In DG21, 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.

December 12

In order 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. 

In Metcalf 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 Conditions" clause.

December 9

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.

December 8

In Size 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 actions.

In Americom 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.

In Endless 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.  

December 6

The 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.

The 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. Comments are due by January 20, 2012.

The 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 registrants.

In Veridyne 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.

In Office 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.

December 4

Adopting 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.

December 2

Effective 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.

Comments on this new rule may be submitted by January 30, 2012.

The SBA is reopening the comment period for the proposed rule described in the October 5 entry below and extending that comment period through January 6, 2012.

DFARS 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.

In Orion 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.

December 1

In Med 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 procurement.

In 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.

In CTI 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.

November 30

In Vanguard 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.

The ASBCA dismissed the appeal of Broadway Consolidated Companies because the company was in Chapter 7 bankruptcy and lacked standing to pursue the appeal.

November 29

FAR 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.

In Survival 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.

November 25

In Reliable Contracting Group, the CBCA discussed various quantum elements in a changes claim by the contractor on behalf of itself and its subcontractor.

November 23 

In 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."

In 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.

November 22

The State Department is proposing (i) to amend the ITAR to implement the Defense Trade 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. 

The 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. 

November 21

DFARS 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. 

DFARS 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.

DFARS 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.

The 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.

November 20

The GAO published two decisions sustaining protests.

In Raytheon 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.

In Raytheon Co., the GAO found (i) a lack of meaningful discussions and (ii) the improper evaluation of references under the experience evaluation factor.

The 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.

November 18

DFARS 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. 

DFARS 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.

DFARS 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 post-employment restrictions.

DFARS 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. 

DFARS 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. 

DFARS 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 business concerns. 

DFARS 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.

DFARS 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

DFARS 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.

DFARS 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. 

November 17

The GAO 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.

In Raytheon 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 alone? 

In TEKKON 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.

November 16

In W. 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 a contract.

Following are recently published NAICS decisions by the SBA's OHA. 

In NAICS 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).

In another 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).

In NAICS 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).

In NAICS 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).

In NAICS 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.

In NAICS 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. 

November 15

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 NAICS Sector 61, Educational Services. Comments are due by January 17, 2012.

In Benetech, 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 non-VA procurement.

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. 

In Cybersoft 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.” 

In Capitol Drywall Supply, Inc., the OHA dismissed an appeal from termination from the 8(a) program because the petitioner alleged only that it had faced "challenges." 

In Alabasi 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). 

In J. 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.

In Royal Engineers & Consultants, LLC, the OHA dismissed as untimely an appeal that had been filed at the wrong office.

In 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 its appeal).

In Gonzales-McCauley 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.

November 14

In Size Appeal of Hui O Aina, LLC, the OHA granted a petition for reconsideration of SIZ-5245 and held that the contested firm was 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 the ostensible subcontractor rule by unusual reliance on a subcontractor, specifically rejecting the Area Office's conclusions regarding key employees, the importance of a subcontractor's qualifications to obtaining the job, the percentages of labor costs attributable to the contractor and subcontractor, respectively, and the division of work assigned to each.

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.

In Size 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.

In Size 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.

In Size 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 by identity 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 considerations.

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 parents. 

In Innovative 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. 121.103(h). 

In Size 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. 

In Size 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. 

In Size 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.

In Size 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 size determination.

In Size 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).

In Size 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 primary industry.

In Size Appeal of SoftConcept, Inc., the OHA affirmed the Area Office's dismissal of protest as insufficiently specific.

In Size 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.

In Size 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 calculations.

November 11

The SBA 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 page.   

One other 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 system.     

November 9 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 Sudan. 

The CBCA issued two decisions.

In  Merchant's 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.

In Merlin International, the same board held that the Government did not breach a contract by failing to exercise an option.

November 8

The 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.

November 7

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 defense. 

In Liberty 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.

The 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.

In 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. 

November 4

The GAO sustained a protest by MEDI-e-ImageData Corp. because the awardee's proposal did not comply with material requirements of an RFQ. 

The State Department is amending the ITAR to update the policy regarding Libya to reflect the additional modifications to the United Nations Security Council arms embargo of Libya adopted in September 2011.

The State Department also is amending the ITAR to reduce the administrative burden on applicants by eliminating the requirement to return certain expired DSP-5 licenses.

DoD is 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.

November 3

DoD's Per Diem, Travel and Transportation Allowance Committee published Civilian Personnel Per Diem Bulletin 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.

The GAO just published a winning protest decision it originally issued in March of 2010--must have been a donneybrook over proposed redactions: Medical Development International, Inc., B-402198.2 (Mar. 28, 2010). 

November 2

FAC 2005-54 has been published and includes the following nine items plus technical amendments:

FAR Case 2010-006  ("Notification of Employee Rights Under the National Labor Relations Act"): A final rule adopts, without change, the interim rule amending the FAR to incorporate the DOL regulations that implemented  
E.O. 13496.

FAR 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). 

FAR 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.  

FAR 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. 

FAR 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 Iran. 

FAR 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. 

FAR 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. 

FAR 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 Netherlands Antilles.

FAR 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. 

Usually, a forum denies a motion for summary judgment because there are disputed facts that require further development in the record. In Trace 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 me.

In Special 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.

On reconsideration, the ASBCA modified its original decision in Thomas Associates--see June 1 entry below for original decision. 

November 1

In Exxon 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.

October 29

In D&S 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.

In 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 record. 

In Friendship 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.

October 26

The ASBCA published four decisions.

In D. J. Miller & Assocs., the Board denied a contractor's claim that the Government had breached a requirements contract by diverting work to other entities.

In Charles 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.

In Cooley Constructors, the Board denied a government motion for summary judgment because there were issues of fact regarding contract interpretation requiring further development in the record.

In Raytheon 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.

Power 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.

October 25

In Impresa 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 COLA.

October 23

The GAO sustained a protest by EBA Ernest Bland Assocs. because the agency made its selection without consideration of the solicitation's evaluation factors.

October 19

In NetStar-1 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 mitigated. 

DFARS 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 18.

October 18

On the 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 its prior decision

In Technosource 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. 

October 17

In Moshe 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 damages.

In Living 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 its subcontractor.

In U.S. 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 objective.

In Seaborn 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.

October 14

The GAO sustained two protests--

In Aldevra, 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 this situation.

In Construct 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.

FAR 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.

FTR 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.

October 13

The SBA 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 bundling.

In Environmental 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 before terminating.  

October 12

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 December  12.

October 11

In International 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.

In Rockies 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 charges.

October 7

The 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.

October 6

In Engage 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 motion). 

October 5

OFPP's CAS Board proposes to revise its regulations to clarify that the  exemption from CAS at 48 C.F.R. 9903.201–1(b)(15), the "(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 5.

To 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.

October 4

DFARS 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.

DFARS 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  off-the-shelf items.

DFARS 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.

The DOL 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.

The ASBCA published two decisions denying motions for summary judgment because the record was not yet sufficient to decide the issues.

October 1

The PSBCA has issued its 2011 decisions, including the following:

In Minute 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.

In JM Carranza Trucking Co. , the PSBCA held it lacked jurisdiction to stay enforcement of a government claim.

In two 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  Gordon T. Smart, the Board noted that the Government failed to present any evidence that the reprocurement contract was for the same, or similar, services.  

In Tip 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.

In Roger 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.

In Janet L. Fox and Todd Fox, the PSBCA dismissed an untimely-filed application for attorneys fees under the EAJA.

September 29

DoD is seeking comments by  November 30 on proposed updates to its Commercial Item Handbook, which may be viewed here.

September 28

In FirstLine 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 regulations. 

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.  

September 27

DFARS 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).

In Systems 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.

September 23

In Bluestar 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 non-set-aside.

September 22

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.

In KDI 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."

In Trygve 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 email.  

September 21

Following are more recent decisions by the SBA's OHA:

In Size 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).

In Size 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 website.

In Size 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)

In Size 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.

In 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.

In NAICS Appeal of NexOne, the OHA held that an appeal of a NAICS code in a presolicitation notice was premature. 

September 20

DFARS 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 systems.

DFARS Case 2009-D011: This final rule conforms the DFARS to higher-level changes in the C.F.R. relating to annual representations and certifications.

DFARS 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 architect-engineer services. 

DFARS 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 representatives.

DFARS 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) Receiving Report.

DFARS Case 2009-D026: This final rule reorganizes and updates existing DFARS coverage for multiyear acquisitions.

DFARS 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.

DFARS Case 2010-D014: Another final rule amends the DFARS to update requirements relating to the use of passive radio frequency identification (RFID).

DFARS Case 2011-D036: This final rule amends the DFARS to conform references to the new Codification of Title 41, United States Code, "Public Contracts."

September 19

In CW 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.

September 16

DFARS 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.

DFARS 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.

DFARS 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. 

September 15

NASA is 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.

September 14

In Med 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.

Following are recent decisions by the SBA's OHA:

In NAICS 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 solicitation.

In NAICS 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.

In Size 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 subcontractor. 

However, in Size 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 contract.

In Size 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 apply.

In Size 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.

In Size Appeal of Barlovento LLC, the OHA analyzed the calculation of average annual receipts when multiple joint venture affiliates are involved.

In Size 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 that industry.

In Size 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.

In Size 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 been unsuccessful. 

In Size 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).

September 12

In Eyak 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.

In Insurance 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.

September 10

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). 

September 9

FAR Case 2009-016: A proposed rule would amend the FAR to conform to the Federal Circuit's decision  in Rothe Development Corp. v. DoD, 545 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, 2011.    

September 7

FTR Case 2011-301: The GSA has amended the FTR by making various revisions 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.

September 6

Because the Netherlands 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.

Following are a few more recent SBA OHA decisions:

In Size 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 year. 

In 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 firm.

In Size 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.

In NAICS Appeal of Bevilacqua Research Corp , the OHA affirmed the Contracting Officer's designation of NAICS code 541690, Other Scientific and Technical Consulting Services.

September 1

In Cardiosom, 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 Act.

August 31

Following are recently published decisions by the SBA's OHA:

In Size Appeal of Assessment & Training Solutions Consulting Corp., the OHA affirmed the Area Office's determination that there was no violation of ostensible subcontractor rule.

In Size 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 day.

In Size Appeal of Active Deployment Systems, Inc., the OHA vacated the Area Office's decision and found three firms were affiliated through common management.

In Size 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, small contract.

In Matter 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.

August 30

In Todd 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.

In COSTAR 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 increases).

August 29

The DOL 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.

August 26

Because it 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. 9904.416–50(b)(1).

In Systems 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 selection decision. The court was emphatic in rejecting the GAO attorney's analysis of the alleged errors in the evaluation process. 

In The 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.

August 25

In Alcatec, 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 Monmouth, 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 issued Per Diem Bulletin 12-01 establishing revised per diem rates for lodging and meals for locations within CONUS.

August 23

The ASBCA published three decisions.

In The 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  submittal.

In CI2, Inc., the Board denied cross motions for summary judgment because there were far too many uncertain and disputed facts on both sides.

In Westech 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. 

August 22

DFARS Case 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 information.

In K-Con Building Systems, Inc., the Court of Federal Claims discussed how courts evaluate the enforceability of liquidated damages provisions.

August 19

DFARS 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.

DFARS Case 2009-D008: A final rule amends DFARS coverage regarding government property to conform to changes in the FAR.

DFARS 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.

DFARS 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 measuring tools.

August 17

The CBCA has amended its rules of procedure to permit electronic filing of documents. 

August 16

The ASBCA published three decisions. 

In General 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.

In  BECO 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.

In Tiger 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.

August 15

In PCCP 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) the agency 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 his prior access to documents and his continuing contacts with source selection officials.

In Nilson 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.

August 12

Effective 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.

August 11

A final 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.

In Joint 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.

August 10

The Court 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 individual’s behalf."

In The 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 required insurance.

The CBCA published several decisions. including the following.

In URS Energy & Construction, the Board held that a party that assumed a contract by novation was the proper party to pursue the appeal.

In Alpine Armoring,  the Board dismissed a bid protest for lack of CDA jurisdiction.

Effective 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 possessions.

August 9

The GSA's 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.

FAR Case 2009-042: Corrections to the previously-published rule regarding documenting contractor performance have been issued and the comment period has been extended to September 8.

August 8

The State Department has amended the ITAR to update country 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 typographical errors.

August 5

Explo 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 business proposal.

August 4

In Lumbermens 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.

The ASBCA published several decisions.

In Parsons-UXB 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.

In WestWind 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.

In Ball 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 CDA."

In Ali 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.

In Free & 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 was timely.

August 3

DoD's Per 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.

August 2

NASA has 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.

July 28

Effective September 26, the State Department is revising the ITAR to change the method of payment to electronic submission of registration fees. 

July 27

FAR 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.

July 26

The 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. 

In Outdoor 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.

The PSBCA 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 decisions page.

July 25

DFARS Case 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.

DoD is seeking public comments by September 8 on the definition of ‘‘produced’’ in DFARS 225.7003, Restrictions on Acquisition of Specialty Metals.

DFARS 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 September 23.

DFARS 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 23.

Those of 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:

Defendant 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.

. . .

The 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 procurement.

Obtaining a complete agency record is one of the principal reasons for choosing the CoFC  over the GAO when filing a protest. 

July 22

Effective 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.

The CBCA published several opinions.

In the latest Walsh/Davis 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.

In  DeLeon 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.

In United 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 missing).

July 21

The SBA 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.

July 18 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 code 339115 (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 business manufacturers.

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.

The GAO 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. 

Mission Essential Personnel won its GAO protest because the agency failed to evaluate resumes in accordance with the solicitation's evaluation scheme.

July 15

The Bureau 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.

In Turner 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. 

California 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.

July 14

The State Department proposes to amend the ITAR to remove reference to the International 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 August 29.

July 13

FAR 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.

DoD's Per 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.

The 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.

The CBCA has published several decisions.

In upholding a termination for cause in Ryll International, the CBCA wrote in part as follows:

We 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."

The CBCA denied National 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.

The CBCA 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 certification. 

July 12

The Bureau of Industry and Security has amended the EAR,  Supplement 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. 

In First 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 States.

OFPP's 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.

July 11

In M.E.S., 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 performance bond.

July 8

NASA has issued  a 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.

Latest 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.  

July 6

FAC 2005-53 has been published and includes the following six items:

FAR 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.

FAR 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.

FAR 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.

FAR 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, 2016.

FAR 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."

FAR 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 pricing data.

The Federal Accounting Standards Advisory Board is requesting comments by September 16 on the Exposure Draft entitled "Deferred Maintenance and Repairs, Amending Statements of Federal Financial Accounting Standards 6, 14, 29 and 32."

The 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.   

The ASBCA published six decisions, the most interesting of which follow.

In General 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.

In Matrix 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 inspectors.

The 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 relief.

In CME 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.

July 1

The Fiscal 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.

In General 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.

June 30

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 Conservation Group

June 29

FAR Case 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.

Several DFARS final, interim, and proposed rules have been published:

DFARS Case 2011-D004: A final rule (i) specifies that the  Defense Procurement 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 volume.

DFARS 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.

DFARS 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.

DFARS 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.

DFARS 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.

DFARS Case 2011-D034: An interim rule amends the DFARS to implement 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 29.

DFARS 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.

June 28

The ASBCA issued several decisions.

In Tawazuh 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.

In Southwest 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.

FAR 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, Better Performance Information Needed to Support Agency Contract Award Decisions and OFPP’s memorandum dated July 29, 2009, entitled "Improving the Use of Contractor Performance Information." Comments are due by September 29.

Effective July 28, the PSBCA is revising its rules of practice

June 27

In Jacobs 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.

June 24

In Northrop 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.

The 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. 

June 23 DFARS 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) system.

MPRI 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.

In Advance 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.

In Kearfott 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.

June 20

In Gear 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.

In Newtech 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.

June 16

In Defense 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. 

FTR 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.

The 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]

June 15

GSAR 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 15.

June 14

FAR 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. 

In Netstar-1 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 of interest.

June 11

In Allied 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.

June 10

Diebold won its GAO protest because the agency materially modified a commercial item solicitation's requirements only for the awardee.

June 9

In Jacobs 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.

June 8

DFARS 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 Identification Registry.

DFARS 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.

In Walsh/Davis 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.

June 7

In Sundt 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.

In FastLinks, 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.

In General 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.

In a decision labeled nonprecedential, which is nonetheless very interesting, the Court of Appeals for the Federal Circuit held in Totolo/King, 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 moot.

June 6

DFARS 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.

DFARS 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.

DFARS 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.

DFARS 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.

DFARS 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.

The following agencies are seeking comments to assist them in revising regulations to implement E.O. 13563: DoD; HHS; and Homeland Security.

FTR 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.

June 4

In DOW 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.

In Design 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. 

In Navigant Satotravel, the CBCA held that the Government not required to certify its CDA claim against a contractor.

June 3

The SBA is proposing to 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.

June 1

In Vanguard 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 different result. 

In Thomas 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 on reconsideration.

May 31

GSAR Case 2006-G508: Effective June 27, the GSA is amending GSAR Part 570 to revise sections that provide requirements for acquiring leasehold interests in real property.

May 30

Federal Acquisition circular (FAC) 2005-52 has been published. It consists of the following six items:

FAR 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. 

FAR 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.

FAR 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.

FAR 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 item. 

FAR 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.

The final 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.   

In Jacobs 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. 

May 26

In AEY, 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 authority.

The 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 accordingly. 

Effective June 24, the State Department is revising its acquisition regulation (the "DOSAR") to allow the appointment of selected 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 below.

The GSA has published a new notice (replacing the notice of May 16) concerning FOIA requests for contractor information in the CCR database.

May 25

In HomeStar 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.

In Todd 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.

In Hallmark-Phoenix 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. 

May 24

The State Department is revising the ITAR's policy concerning Libya to reflect the United Nations Security Council arms embargoes adopted in February and March.

In L-3 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.

May 23

In Gulf 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 decisions. 

The 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.

May 19

The GAO 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.

May 18 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.
May 17

In Lasmer 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. 

The Federal Accounting Standards Advisory Board (FASAB) has issued Statement of Federal Financial Accounting Standard 40, Definitional 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.

May 14

The GAO 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.

Effective 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.

The GSA has posted a notice containing new procedures for contractors to follow in posting data to the CCR after April 15, 2011.

May 13

In Tech 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.

In Northeast 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 11

Effective 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).

The rules 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."

May 8

In  Gulf 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. 

In Northeast 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.

May 6

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.

The EPA 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 June 6. 

A correction 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 2010.  

May 5

DFARS 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 contemplated.

DFARS 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.

DFARS 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.

In Santa 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.

In Patriot 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.

In Jullie 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:

It 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 claims.      

May 3

In Mori 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.

April 30

The 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 flawed.

April 28

In ARCTEC 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 for the cost of severance benefits paid to unionized employees pursuant to collective bargaining agreements following expiration of the  contract.

April 27

The GAO sustained a 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).

DFARS Case 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: "Multiple-award contract means--(1) 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. . . ."

DFARS 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. 

April 26

In Dominion Resources, the CAFC affirmed 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 such assignments.

In Bowers 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).

FAR Case 2011-001: This proposal would significantly amend the FAR's organizational 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.

April 23

In KDI 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.

April 20

FAR 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.

In New 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 unacceptable.

In Green Dream Group, the Board refused to dismiss an appeal, finding that an authorized individual had signed the CDA certification, which was correctable even though defective.   

April 19

DFARS 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 foreign government.

DFARS 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 "proscribed information."

DFARS 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 June 20.

DFARS 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.

DFARS 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.

DFARS 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 20.  

April 18

In Raytheon 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.

Walsh/Davis Joint Venture won its CBCA appeal related to constructive changes required by the project architect.

April 14

In companion decisions, the Court of Federal Claims reluctantly denied pre- and post-award 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.

April 12

In U. 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. 

In The 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.

Effective 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 Contractors"). 

April 10

The GAO 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 period.

In Resource 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.

In Glen  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).

In Parkwood 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:

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]

In In-Finn-Ity 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.

April 8

The 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.

April 7

In FloorPro, 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.

April 6

DoD's Per Diem, Travel and Transportation Allowance Committee is publishing Civilian 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 States.

In Scott 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.

April 5

The ASBCA 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 bidding. 

April 2

In Samuel 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.

FAR 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.

In American 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' fees. 

April 1

Federal Acquisition Circular (FAC) 2005-51 has been published and consists of the following two items: 

FAR Case 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.

FAR Case 2009-029 ("Clarification of Standard Form 26 Award/Contract") is 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 contract. 

The 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.)

March 30

In Watterson 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 emailed bid.

March 29

In Ceres 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." 

March 28

In Golden 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.

March 24

GSA has 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. The RIT allowance tables are located here.

March 23

The GAO 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.

In I.M. 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 proposal.  

The 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.

March 22

In Crewzers 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.

The 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 May 23.

GSA 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.

March 21

The GAO sustained two protests.

In A1 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."

In Global 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.

March 19

Sometimes, 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:

Respondent 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.

In Singleton 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.

March 17

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.

DFARS 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.

DFARS 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.

DFARS 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.

DFARS 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.

DFARS 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.

President Obama has issued a Memorandum of March 11, 2011, entitled "Government Reform for Competitiveness and Innovation."

March 16

The 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. 

The 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.

FAC 2005-50 has been issued. It includes the following nine items, plus technical amendments:

FAR 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.

FAR 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.

FAR 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.

FAR 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.

FAR 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. 

FAR 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.

FAR Case 2009-040 ("Trade Agreements Thresholds") adopts as final without change the interim rule amending the FAR to incorporate increased thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative.

FAR 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").

FAR 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."

In AmerescoSolutions, 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.

March 11

In The 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.

DoD is proposing to amend the DFARS to require contractors to display the DoD fraud hotline poster in common work areas. Comments are due by May 10.

DoD has 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.

March 9 In Tech 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: 

[When] 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.

In K-LAK 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 set-aside.

In Revenge 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.

In Genome-Communications, 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.

In Fit-Net International Corp., the Board upheld a termination for cause due to late delivery of nonconforming supplies.

March 8

The Department of Education has updated and reissued its acquisition regulation (EDAR) to harmonize it with current FAR and  Department policies. 

In SRI 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 reasons:  

First, 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 financing.

In Mission 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.

March 7

The Department of Energy is proposing to amend the DEAR sections concerning government property to conform to the FAR, remove outdated coverage, and update references. Comments are due by April 4.

The 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 revoke licenses.  

March 2

DFARS 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 May 2.

DFARS 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.

DFARS 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.

DFARS 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.

DFARS 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.

DFARS 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 May 2.

The SBA's OHA has published several decisions, the three most interesting of which follow. 

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.

In Fidelis 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.

In Innovative 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]

In Glenn 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 multiple awards.

March 1

DFARS 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.

In denying 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 particular contract.

February 28

The GAO 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.

In OK's 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.

February 24

The SBA's OHA has issued several decisions.

In Alutiiq 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).

In C2G 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.

In  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.

In SoftConcept, Inc., the OHA affirmed the Area Office's dismissal of a size protest as insufficiently specific.

The State 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 April 25. 

February 22

DFARS 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.

DFARS Case 2011-D001: DoD has amended the DFARS to eliminate the Small Business Competitiveness Demonstration Program.

DFARS 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.

DFARS 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.

February 19 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 . . .

In EarthCare 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.   

February 18

DFARS 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 8.

DoD, (i) 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.

In 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 acts doctrine.

February 17

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.

February 16

FAR 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. 

In DGR 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).

In Parsons-UXB 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 work.   

February 14

DFARS Case 2006-D021 ("Award Fee Contracts") is a final rule amending the DFARS to address award-fee contracts, including eliminating the use of provisional award-fee payments. 

February 12

Warning--rant 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.    

As 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.

Despite 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.

In Environmental 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.

February 11

DoD is 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.

Effective 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.

Effective 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 among them."

February 10

FAR 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. 

NASA is 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.

The ASBCA has published its decisions for January 2011. 

In Job 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.

In AECOM 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 discovered evidence.

In Office 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.

In another AECOM 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.  

In Lasmer 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.

In Precision 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."

 

In Diamante 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)

In Oce´ 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 copiers."

February 7

In Commissioning 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.

NASA 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.

February 6

In General 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."

February 4

Effective 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 April 5.

The CBCA 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.

February 2

Effective March 4, the SBA is extensively revising its regulations to (i) clarify the effect, across all small business programs, of initial and appeal eligibility decisions on the procurement in question; (ii) increase the amount of time that SBA has to render formal size determinations (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.

DoD is 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 April 4. 

DFARS Case 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.

DFARS Case 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 item management.

February 1

In the latest Raytheon 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 413 contracts. 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.

In Fulcra 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 performing services."

January 31

In Slattery, 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."

DoD's Per 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. 

January 28

In a 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.

The 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.

In K-Con Building Systems, the Court of Federal Claims discussed the standards used to judge the enforceability of a liquidated damages provision in a contract.

January 27

The GAO 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. 

January 26

The ASBCA has published three decisions from late 2010.

In C.E.M.E.S. 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.

In Shaw Environmental, Inc., the Board struck allegations from the contractor's complaint that were not part of its original claim to the Contracting Officer.

In Thorington 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 prices. 

January 25

The 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.

January 24

FAC 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. 

January 19

Effective 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.

DoD's Per 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.

The CBCA issued several decisions.

In Serco, 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.

In Healthcare 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. 

January 14

In Anthony 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 various administrations.

January 12

NASA 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.

The 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.

On remand 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.   

In Armour 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 reprocurement costs. 

January 11

The 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 responsibility concerns.    

January 6

Google 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 officials.

In Bannum, 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.  

January 3

The 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.

January 1, 2011 Happy New Year!  
  The complete 2010 blog can be found here.
 

This website links to resources on the web concerning government contracting. It is not intended to provide legal advice. Moreover, I do not vouch for the completeness, currency, or accuracy of the sites to which it links. If you have comments, suggestions, or corrections, please email me.