Case 2012-D045: Effective January 30, 2013, a final rule
revises the DFARS subpart 202.101 definitions of "contracting
activity" and "departments and agencies."
Case 2011-D040: A final rule revises the DFARS to clarify the distinction
between "certified cost or pricing data" and
"data other than certified cost or pricing data," in
order to ensure consistency with the FAR, which has already been amended to
reflect this distinction.
Case 2012-D049: A final rule amends the DFARS to add
Poland as a "qualifying country."
issued quite a few miscellaneous technical
corrections to the DFARS.
Department is amending the ITAR to list Afghanistan as a major non-NATO
ally and to make available the use of two additional defense export license
exemptions for certain proscribed destinations.
OHA has published several size decisions.
Appeal of VMX International, LLC, the OHA held that
(i) an Area Office's past size decisions are not res
judicata even with the regard to the same Area Office's
subsequent determination involving the same general issue and
the same challenged firms; and (ii) the Area Office was correct
in this instance in finding that two firms were affiliated
through economic dependence because one was dependent on the
other for the vast majority of its revenues.
Size Appeal of Assessment
and Consulting Solutions Training Corporation, the OHA
affirmed the Area Office's size determination because (i)
compliance with the "Limitations on Subcontracting"
clause is a matter of contract administration, not for
consideration in a size determination; and (ii) the challenged
firm did not violate the ostensible subcontractor rule because
it was not subcontracting with the alleged ostensible
Appeal of J. W. Mills Management, LLC, the OHA
reversed the Area Office and held that a firm that would
provide the primary and vital contract services as the prime
contractor did not violate the ostensible subcontractor rule.
Due to the variety
of issues addressed in the proposed rewrite and the "strong stakeholder
interest," the GSA has agreed to withdraw GSAR Case
2006–G507 (Rewrite of GSAR Part 538, Federal Supply Schedule
Contracting) in order to allow time for an agency review of the current implementation
plan for this GSAR case.
Case 2012-G503: The GSA is proposing to amend the GSAR to address the use of the
Industrial Funding Fee under the Multiple Award Schedules
Program to offset losses in other Federal Acquisition Service
(FAS) programs and
to fund initiatives that benefit other FAS programs. Comments
are due by February 26, 2013.
January 28, 2013, the SBA is amending its regulations governing size and
eligibility for the Small Business Innovation Research (SBIR) and Small
Business Technology Transfer (STTR) programs in order to
implement provisions of the National Defense Authorization Act for Fiscal Year
2012 and to address ownership, control, and affiliation for participants in
these SBIR and STTR
Contracting, Inc., the Court of Federal Claims held that a
contractor was not entitled to the extra costs of providing a
contractually compliant HVAC system and rejected the
contractor's allegations of (among others) mistake, defective
specifications, equitable estoppel, superior knowledge as
for its original proposal of a non-compliant system.
Corp., an unsuccessful protest alleging the Government had
made an improper in-sourcing decision, the court held, among
other things, that the decision had been made when the
Government had completed the required cost comparison, not at
the significantly later times when the Government had
terminated the plaintiff's contract for convenience and
notified it of the termination.
a motion for summary judgment in Alpena
a case involving a dispute over the proper interpretation of
the term "base year" in a real property lease for
purposes of determining the responsibility for future tax
adjustments, the court noted that
the issue did not fit neatly within doctrine of patent
ambiguity and that "the parties’ cribbed formulation of
these doctrines [ambiguity and mistake] hamstrings not only
resolution on summary judgment, but also an appropriate resolution of a bizarre contractual impasse that the rules of contract interpretation may not
resolve satisfactorily to either party."
of Government Contracting Services, LLC
(over the challenged firm's objections) the SBA's OHA granted
the joint motion of the SBA and the protester to dismiss an
appeal and remand the case to the SBA for further proceedings
after the SBA agreed to rescind its original dismissal of the
up on a decision published quite some time ago) in Matter
of Accent Services Co., the OHA upheld a firm's
termination from the 8(a) program for failure to obtain prior
approval to enter into a teaming agreement to perform an 8(a)
contract, which the OHA held was a material breach of the
firm's 8(a) Program Participation Agreement.
In an 8(a)
BDP decision, Matter of
C.J. Hearne Construction Co., the SBA's OHA granted
the SBA's petition to dismiss an appeal because the company
that had been terminated from the 8(a) program did not deny
that it had failed to repay a debt to the Government. I have
commented several times in the past concerning how many typos
these 8(a) BDP decisions typically contain. This one offers
something new--very respectful note to the decision's author
(the OHA's Acting Chief Administrative Law Judge):
the OHA is not a court, much less "the Court."
Federal Acquisition Circular
has been published and consists of the following item:
Case 2011-028 ("Nondisplacement of Qualified Workers
Under Service Contracts"): Effective for solicitations
issued on or after January 18, 2013, this final rule adds a
new subpart 22.12 to the FAR concerning the nondisplacement of qualified
workers under service contracts (see also simultaneously
published Department of Labor announcement). In addition, Contracting officers are expected to
work with their existing service contractors (i) to bilaterally modify their
contracts, to the extent feasible, to include the new clause at FAR
52.222–17 covering these requirements, or, as an
alternative, (ii) to enter into bilateral modifications under
which contractors agree to perform paragraph (d) of the new clause, which:
(i) informs the existing predecessor contractor’s workforce of their right of first
refusal, and (ii) provides the list of service employees to the
Contracting Officer no less than 30 days before contract completion.
NOTE--this description has been revised in accordance with a
later correction published in the Federal Register.
sustained a protest by Exelis
Systems Corp. because the agency's evaluation was not in
accordance with solicitation's evaluation scheme and treated
rule would amend the FAR to implement the temporary policy
announced in OMB Policy Memorandum M-12-16 by adding a new clause to provide for
accelerated payments to small business
subcontractors. Comments are due by February 19, 2013.
Public Warehousing Co., the ASBCA ruled on several
discovery motions in a board case where there were concurrent
district court civil and criminal fraud proceedings involving
the same contractor and the same contract, but distinct
issues. One motion was the Government's (unsuccessful) motion
to dismiss the appeal after it discovered the contractor was
live-streaming the Contracting Officer's deposition to defense
counsel in the criminal proceeding.
Apparel, Inc., an unsuccessful bid protest, the Court of
Federal Claims held that a contract modification adding two
types of coats to a contract for coats was within the scope of
the contract and, therefore, was not subject to CICA's
January 14, 2013, the Department of Energy is amending its
acquisition regulation (the "DEAR"), making minor administrative
changes to conform to the FAR, remove out-of date government property coverage, and
NAICS Appeal of Cape Fox
Government Services, LLC, the SBA's OHA dismissed, as
untimely, a NAICS appeal filed 14 calendar days after issuance
of the solicitation.
Appeal of IMPAQ International, LLC, the OHA affirmed
the CO's designation of NAICS Code 541611 (Administrative
Management and General Management Consulting Services) as
opposed to 541720
(Research and Development in the Social Sciences and
Humanities) to cover a solicitation
requiring support for the Job Corps' data integrity, program
evaluation and statistical support program functions.
Office of Hearings and Appeals has published four decisions in
Size Appeal of CS360, LLC,
the OHA dismissed (as untimely) an appeal filed with the
OHA more than 15 days after receipt of the original size
Size Appeal of Silvergate
Pharmaceuticals, Inc., the OHA reached the same
conclusion, even though copies of the appeal had been served
on the Area Office, the SBA's Office of General Counsel, and
the procuring agency within the 15 day period.
Appeal of Civitas Group, LLC , the OHA affirmed
the Area Office's finding of affiliation by means of control
by a minority stockholder whose ownership interest was 1.75
times larger than the next largest shareholder's.
Appeal of American Construction Co., the OHA
affirmed the Area Office's finding that the challenged firm
complied with 13 C.F.R. § 121.201, n.2, which provides that,
to be considered small under the exception in the regulations
for Dredging and Surface Cleanup Activities under NAICS Code
237990, a "firm must perform at least 40% of the volume dredged with its own equipment or equipment owned by
another small dredging concern."
Burney dba Plott Bakery Products, a decision it labels as
nonprecedential, the Court of Appeals for the Federal Circuit
affirmed the CoFC's prior decision that the portions of a
protest alleging patent errors in a solicitation were untimely
filed after award and that the protester had not met the heavy
burden of showing the evaluation lacked a reasonable basis.
Systems San Francisco Ship Repair, the ASBCA held that the
Government did not breach its duty to cooperate with the
contractor by taking too long to approve a request made by the
contractor because the contractor did not inform the
Government of the significance or urgency of the request.
Industries, Inc., the ASBCA denied the Government's motion
for summary judgment upholding a default termination based on
the contractor's alleged failure to comply with a contract
provision requiring timely notice of a vendor change because
"contractual notice provisions will not be mechanically
International, LLC, the ASBCA denied the contractor's
motion for summary judgment to overturn a default termination
based on an alleged government waiver because the question
whether the forbearance period preceding the termination was
reasonable was a fact issue still to be resolved.
& Training Corp., the Court of Federal Claims denied a
protest by the incumbent (the large business operator of the
Dayton Job Corps' center) against the agency's decision to
set-aside the next procurement for small businesses.
Application and Technologies, Inc., the Court of Federal
Claims issued a permanent injunction against the decision by
the Committee for Purchase from People Who Are Blind or Severely Disabled
to place a particular contract on the AbilityOne Procurement
List pursuant to the Javits-Wagner-O’Day Act, 41 U.S.C. §§
8501-506, because the record did not establish that (i) the
contract had the potential to create jobs for the severely disabled
(or that the severely disabled could perform the work required
by the contract) or (ii) the proposed contractor had the capability to meet
government quality standards and delivery schedules.
Contractors, Inc., the court held it lacked CDA
jurisdiction because (i) no final decision had been issued at
time the Complaint had been filed; (ii) no final decision
could be implied because nothing the Government had done had
determined liability or damages related to the contractor's
claim; and (iii) no constructive termination for default had
January 9, 2013, HUD is amending its acquisition
regulation ("HUDAR") to, inter alia, (i)
remove provisions that are now obsolete, (ii) refine provisions to approve requests
for deviation from the HUDAR, (iii) update provisions that address the
organizational structure of HUD, and (iv) add provisions on contractor record
Acquisition Circular ("FAC") 2005-63
has been published. It includes only the following item:
Case 2012-030: An interim rule amends the FAR to implement the
expansion of sanctions relating to the energy sector of Iran and sanctions with
respect to Iran’s Revolutionary Guard Corps, as contained in Titles II and III
of the Iran Threat Reduction and Syria Human Rights Act of 2012.
Comments are due by February 8, 2013.
Systems Corporation and EyeIT.com, Inc , a Joint Venture,
the Court of Appeals for the Federal Circuit affirmed the
CoFC's prior decision denying a protest because (i) the
protester waited until after award to challenge a solicitation
amendment, making that part of the protest untimely, and (ii)
the protester did not establish that its evaluation rating was
arbitrary or capricious.
Improvement Techniques, Inc., the Court of Federal Claims
held it lacked jurisdiction because there was no privity of
contract between the plaintiff/subcontractor and United
January 7, 2013, the SBA is increasing the receipts-based small
business size standards for 15 industries and retaining the current receipts-based
size standards for five industries in NAICS Sector
The SBA will examine the employee-based size standards in this
sector at a later date.
effective January 7, the SBA is increasing the small business size
standards for 37 industries and retaining the current size standards for the
remaining seven industries in NAICS Sector
56 ("Administrative and Support, Waste Management and
The SBA is
proposing to increase the revenue-based small business size standards
for the three industries in NAICS Subsector 213 ("Support Activities for
Mining") within NAICS Sector
21 ("Mining, Quarrying, and Oil and Gas
Extraction"). The SBA will examine the employee-based
size standards in this sector at a later date. Comments are
due by February 4, 2013.
Department of Agriculture (USDA) is proposing to amend the Guidelines for Designating
Biobased Products for Federal Procurement (Guidelines) to add eight
sections that will designate the following product categories within
which biobased products would be afforded federal procurement preference:
aircraft and boat cleaners; automotive care products; engine crankcase oil; gasoline fuel additives;
metal cleaners and corrosion removers; microbial cleaning products; paint
removers; and water turbine bearing oils. USDA is also proposing to add the
following subcategories to previously designated product categories:
countertops to the composite panels category; and wheel bearing and chassis
grease to the greases category. USDA is also proposing minimum biobased
contents for each of these product categories and subcategories.
Comments are due by February 4, 2013.
P. Wood, the CBCA denied a claim for partial refund of the
purchase price paid for goods in an online auction because the
claimant failed to prove the items he received had been
misdescribed and failed to comply with the contract
requirements for making such claims.
Farnam, the CBCA affirmed its earlier
decision denying a claim in another auction case, despite
conceding it had gotten the facts wrong in the first decision.
Building Systems, Inc., the Court of Federal Claims held
that: (i) even though a contractor's letter to the Contracting
Officer requesting remission of previously-assessed liquidated
damages for allegedly late performance contained almost no
specifics concerning the basis of the request, it was,
nevertheless, a valid CDA claim when read in the context of
the contractor's earlier letters to the Contracting Officer
requesting time extensions for excusable delays; (ii) the
current suit divested the Contracting Officer of authority to
issue a decision on a portion of a subsequent claim that was
already encompassed by this suit; (iii) the liquidated damages
rate used in contract was unobjectionable; (iv) releases
in various contract modifications precluded the
contractor from seeking further excusable delays based on
inclement weather (hurricanes); and (v) the contractor was not
entitled to recover on a claim for excusable delay because the
contractor had not gone through the proper steps to obtain the
Contracting Officer's approval for a change in its
Technologies, Inc., decision, the Court of Federal Claims
held that, contrary to the conclusions reached in
several recent GAO protest decisions (including its
"Aldevra" decisions), the Veterans Benefits, Health
Care, and Information Technology Act of 2006 does not
require the VA to determine whether a procurement can be set
aside for VOSBs or SDVOSBs before proceeding with an FSS
Commerce Department's Bureau of Industry and Security is
proposing an extensive set of changes to
clarify the Export Administration Regulation's Commerce
Control List. Comments are due by January 28, 2013.
Transportation Security, Inc., an unsuccessful preaward
protest, the Court of Federal Claims held that a
solicitation's 40% "goal" for the participation of
small businesses in the contract resulting from solicitation,
while unusual, was not illegal and that the agency had
provided sufficient information in the solicitation and
elsewhere to permit qualified offerors to compete on informed
and equal basis. In a somewhat unusual move, however, the
court merely "recommended" that the agency revise
the solicitation to eliminate one ambiguity in it.
Contractors, Inc., the ASBCA held that, especially in
the context of earlier communications on the same subject, a
request for equitable adjustment addressed to the Contracting
Officer and seeking a "written response" (which was
accompanied by a CDA certification) satisfied the requirements
for a CDA claim.
Department proposes to amend the ITAR by revising Category XI
(military electronics) of the U.S. Munitions List (USML) to describe more
precisely the articles warranting control on the USML and to provide a
definition for "equipment." The Commerce
Department's Bureau of Industry and Security has issued a
corresponding proposal to revise the Export Administration
Control List to cover certain items no longer controlled
under Category XI of the ITAR. Specifically, military electronics and
related items would be controlled by new Export Control Classification
Numbers (ECCNs) 3A611, 3B611, 3D611, and 3E611; cryogenic and superconducting
equipment for military vehicles and related items would be controlled under
new ECCNs 9A620, 9B620, 9D620, and 9E620; and ECCNs 7A001 and 7A101
would be amended to apply the missile technology reason for
control only to items in those ECCNs on the Missile Technology Control Regime
Annex. Comments on both sets of proposed rules are due by
January 28, 2013.
Consulting Services, Inc. (an unsuccessful protest filed
by one of the original competitors on an 8(a) set-aside of an
agency's decision to reprocure as a small business set-aside
when existing task orders expire based on a post-award
decision by the SBA that the current contractor
was not an eligible small business), the protester lost (i)
its claim for injunctive relief because it was asking the
Court of Federal Claims essentially to preclude the agency
from deviating from its planned corrective action, something
the agency showed no intention of doing, and (ii) its claim
for bid and proposal costs on the original procurement
because, since the regulations contemplate both that small
businesses can self-certify and that agencies may continue
with contract performance in certain circumstances after
successful small-business protests, this agency had done
nothing wrong in evaluating the original proposals. (I try
whenever possible to summarize decisions in one sentence--that
was one hell of a challenge with this case). :)
December 27, a final VA rule requires its contractors to submit
requests in electronic form.
v. The Boeing Co., a decision it labels as
nonprecedential, the Court of Appeals for the Federal Circuit
(i) affirmed (for the most part) a prior set of CBCA
decisions (including this
most recent one) regarding the allowability of defense costs,
and (ii) held that, although the Board incorrectly
determined that it did not have the power to apportion the
costs of litigation in cases with mixed results, there was no
need to remand the case because apportionment would not have
been appropriate in this case.
Applications International Corp., an unsuccessful
post-award protest, the Court of Federal Claims rejected a
plethora of challenges to numerous aspects of the evaluation,
including the protester's contentions that the agency
evaluated it differently for proposing essentially the same
thing as other offerors. Basically, the court concluded that
all the evaluations were within the discretion of the agency
and had a rational basis in the record.
Appeal of A & H Contractors, Inc., the SBA's OHA
vacated the Area Office's size determination because the firm
that originally filed the size protest was ineligible for
award due to a bid price that exceeded the statutory limit
and, therefore, lacked standing to protest in the first place.
published several decisions.
Administration, Inc., the CBCA dismissed an appeal for
lack of jurisdiction because it was the subcontractor,
purporting to be the prime's representative, that filed the notice
of appeal. It did not help matters that a letter purportedly
authorizing the sub to file the appeal included the docket
number of the appeal but was dated three months before the
appeal was actually filed.
T. Dunbar, the CBCA upheld the default termination of a
sales contracts resulting from an online auction after the
buyer failed to pick up the items he had won at auction by the
extended deadline for doing so.
Mobley Assocs., the CBCA held that a claim that the
Government had breached the covenant of good faith and fair
dealing by issuing a modification that unilaterally changed
the contract's payment practices did not not require an
allegation of bad faith on the part of the Government. See
also the November 8 entry below.
Acquisition Circular (FAC) 2005-62
has been published and includes the following three items:
Case 2010-014 (Updates to Contract Reporting and Central
Contractor Registration): A final rule amends the FAR (i) to limit the use of generic substitutes
for DUNS numbers, (ii) to update the policies and procedures associated
with reporting in the Federal Procurement Data System (FPDS),
and (iii) to change the clauses requiring (a) contractor registration
in the CCR database and (b) DUNS number reporting.
Case 2012-010 (Interagency Acquisitions-Compliance by
Nondefense Agencies with Defense Procurement Requirements): An
interim rule implements a section of the National Defense Authorization Act
for Fiscal Year 2008, with later amendments, by amending FAR
Parts 4 and 17 to add new requirements specific to the acquisition of supplies and services by
nondefense agencies on behalf of DoD. Comments are due by
January 22, 2013.
Case 2012-027 (Free Trade Agreement-Panama): An interim
rule amends the FAR to implement the United States-Panama Trade Promotion
Agreement, which provides for mutually non-discriminatory treatment of eligible
products and services from Panama. Comments are due by January
22, 2013. See also November 16 entry below.
December 19, the Department of Agriculture's Office of
Procurement and Property Management is amending the Guidelines for Designating Biobased
Products for Federal Procurement (i) to add 12 product categories within which
products will be afforded federal procurement preference, as provided for
under section 9002 of the Farm Security and Rural Investment Act of 2002, as
amended by the Food, Conservation, and Energy Act of 2008, and
(ii) to establish minimum biobased contents for each of these product categories.
rule would amend 48 C.F.R. Part 9903 to clarify the exemption
from Cost Accounting Standards for contracts and subcontracts
for the acquisition of commercial
items. Comments are due by January 18, 2013.
Applications International Corp. won its GAO protest
because the agency's evaluators did not consider the awardee's
particular technical approach in evaluating either its
technical proposal or its price realism.
Case 2012-D044: DoD has issued an interim rule amending
the DFARS to implement the United States-Panama Trade Promotion
Agreement, which is a free trade agreement that provides for mutually
non-discriminatory treatment of eligible products and services from Panama.
Comments are due by January 15, 2013.
Inc., the Court of Federal Claims held that the
competition requirement in section 2887 of the Workforce
Investment Act does not preclude the Labor Department from
setting aside Job Corps procurements for small businesses.
Network Services, Inc., the Court of Federal Claims,
performing a Wunderlich Act review of a prior ASBCA
decision in a non-CDA case involving a nonappropriated
fund activity and a contract to provide telephone services in
guest lodging rooms on U. S. Air Force bases in Germany
increased the award to the contractor for various breaches and
extra work from the approximately $4.6 million previously
awarded to it by the ASBCA to more than $118.7 million.
Appeal of Alleo Corporation, the SBA's OHA affirmed
the Area Office's finding that two firms were affiliated
through identity of interests because the principals of the
firms were mother and son, respectively.
Services, Inc., the CBCA held that a claim that the
Government breached the implied covenant of good faith and
fair dealing does not require a showing of bad faith by the
Corp., the Court of Federal Claims granted a portion of
the Government's claim for its costs of reviewing the
unsupported portions of the contractor's CDA claim pursuant to
the anti-fraud provisions of the CDA ( 41 U.S.C. 7103(c)(2))
after the court's earlier
decision finding fraud on the part of the contractor.
Construction, Inc., a successful post-award protest
resulting in the award of bid preparation costs, the Court of
Federal Claims held that the procuring agency had treated
offerors unequally where only the awardee had information
concerning the work it had already completed on the
predecessor contract and thus could underbid other offerors
who could not ascertain from the solicitation that the work
was no longer required.
McDonnell Construction, the ASBCA denied a construction
contractor's claim for extra costs because (i) the SOW was not
ambiguous; (ii) there was no Differing Site Condition; (iii)
the drawings were not defective; and (iv) the Government did
not fail to cooperate; (v) but, rather, the contractor had
made an unreasonable assumption in bidding the job without
checking with the Government.
OHA has published four new size decisions.
Appeal of Horizon, Inc., the OHA dismissed, as
untimely, an appeal filed more than 15 days after the
appellant received the Area Office's size determination.
Appeal of HBC Management Services, Inc.,
the OHA disregarded evidence of affiliation that was publicly
available at the time of the original size protest but not
offered until the appeal.
Appeal of Professional Product Services, Inc., the OHA
denied an appeal and held that, in an FSS solicitation set
aside for small businesses that was silent as to which NAICS
code should apply, the Area Office had chosen an appropriate
size standard (following a size protest) with which to analyze
the awardee's size, pursuant to which the firm was not small.
Appeal of Bosco Constructors, a continuation of Roundhouse
saga, the OHA held that a firm owned by an Indian Tribe is
exempt under 13 C.F.R. 121.103(b)(2) from a finding of
affiliation through common ownership or management. There are
confusing typos in the first paragraph of the
"Analysis" section of the OHA's decision:
is a wholly owned subsidiary of Tepa, which also wholly owns
seven other companies. Further, the companies all share common
officers and directors. Thus, under ordinary circumstances,
Appellant plainly would be affiliated with its parent and
sister companies by virtue of their common ownership and
"appellant" (Bosco) is not the subsidiary or the
company with the alleged affiliation--Bosco was claiming that
the challenged firm (Roundhouse) was the subsidiary with the
Inc., the ASBCA granted the Government's motion for
summary judgment as to the propriety of a default termination
because bilateral mods acted as an accord and satisfaction,
preventing the contractor from relying on delays occurring
prior to the mods as excuses for its nonperformance.
published decisions sustaining three protests.
LLC, the GAO held the agency was wrong to reject a
quotation for failure to acknowledge an immaterial
solicitation amendment that did not impose any additional
requirements on the contractor.
Environmental Design Inc., the VA issued a purchase order
to a small business in violation of the Veterans Benefits, Health Care, and Information Technology Act of 2006,
where the VA (i) was aware of SDVOSBs that appeared capable of
performing the work and (ii) did not conclude that there were
not two or more SDVOSBs that could perform the work at fair
and reasonable prices.
Technologies, Inc., there was no basis in the record for
the deficiencies the agency found in the protester's proposal
in the technical evaluation, and the agency downgraded the
proposal for lack of price realism when the solicitation's
evaluation scheme did not provide for such an analysis.
C. Nwogu, dba Environmental Safety Consultants, Inc., a
decision labeled as nonprecedential, the Court of Appeals for
the Federal Circuit held, among other things, that the CDA
gives the Court of Federal Claims Tucker Act jurisdiction to
enforce a monetary judgment rendered by the ASBCA.
let you know: between Sandy and the upcoming election, new
regs and published decisions have slowed to a crawl the last
few days. Happy Halloween!
Wire Constructors, the CBCA denied the contractor's motion
for reconsideration in part because the contractor asserted as
fact a position directly contradictory to the one it had taken
in the original
Enterprises, Inc., the CBCA denied the Government's motion
for summary judgment in part because disputed issues of fact
remained as to whether the general release language in various
bilateral amendments covered the claims at issue before the
Foodservice GmbH won its GAO protest against the agency's
evaluation where (i) the awardee's proposal was given
the highest possible rating in the experience/past performance
evaluation despite the fact that none of its past contracts
met the dollar size requirements; (ii) the record was
insufficient to establish whether it was reasonable for the
agency to use internally-obtained past performance data
in place of unfavorable information in the awardee's proposal;
and (iii) the agency was inconsistent in its evaluations of
the protester's and the awardee's proposals under the past
Recruiting Company, Inc., an unsuccessful post-award
protest against the Contracting Officer's decision to proceed
with award despite a Procurement Integrity Act challenge that
certain information regarding the awardee's staffing plan in
its proposal was "stolen," the Court of Federal
Claims held that (i) where the statements at issue (a) had not
been clearly marked as proprietary initially, (b) involved
information that was generally available, and (c) were not the
source of the awardee's high evaluation ratings, and (ii)
where the awardee stood behind the statements in its proposal,
there was a rational basis for the Contracting Officer's
Mullens, the ASBCA held there was no basis for the
contractor's challenge to its termination where the contract
included a "no fault" termination clause.
Facilities Services, the ASBCA denied the Government's
motion to dismiss the appeal for lack of CDA jurisdiction
based on the Government's allegation that the person who
submitted the claim was a former government employee who,
prior to his retirement, had participated personally and
substantially in the solicitation leading to the award of the
contract at issue and, therefore, had allegedly violated 18
U.S.C. 207(a)(1) in communicating the claim to the Government.
decision it labeled as nonprecedential, the Court of Appeals
for the Federal Circuit reversed the prior decision by the
CBCA and held that the lessor, KD1
Development, Inc., rather than the lessee (GSA), was
entitled to recover on its monetary claims because an
ambiguity in a lease agreement as to whether operating costs
were included in the base rental rate was a latent ambiguity
that could not be resolved one way or the other by resort to
extrinsic evidence (which pointed in both directions) and,
therefore, must be construed against the Government.
Fire Insurance Co., the Court of Federal Claims denied the
Government's Rule 12(b)(6) motion to dismiss for failure to
state a claim upon which relief may be granted where the
plaintiff had alleged that it was entitled to funds due a
contractor on one contract as damages for a sum the Government
had wrongfully paid to the contractor on another where the
plaintiff, as equitable subrogee, was the performance bond
surety on both contracts (under the "two contract"
theory recognized in Transamerica Insurance Co. v. United
States, 989 F.2d 1188 (1993)).
Corp. of America, a protest involving a bid rejected by
the GSA's e-Buy website as late, the Court of Federal Claims
ordered briefing from the parties on the issue of sanctionable
spoliation after the GSA advised the court that it (routinely)
did not retain archival copies of its e-Buy website
information needed to address plaintiff's claims regarding the
required time for receipt of bids.
Construction Services, LLC, won its GAO protest because
the agency's rejection of its proposal as unreasonably low was
unreasonable where that determination was based on the fact
that the proposed price was 15% below the median of all other
proposed prices, which included proposals that were
unacceptable, unreasonably high, or otherwise
ineligible for award.
GSA has adopted, as final, an
interim rule that amends various provisions in the the Federal
Travel Regulation (FTR) related to temporary duty
(TDY) travel, specifically by, inter alia, (i) adjusting the definition of incidental
expenses; (ii) clarifying necessary deduction amounts from the meals and
incidental expense reimbursement on travel days; and (iii) extending
to agencies the authority to issue blanket actual expense approval
for TDY travel during Presidentially-declared disasters.
Orthopedic, LLC, the Court of Federal Claims held that,
although it had Tucker Act jurisdiction over the plaintiff's
claim for misrepresentation in the inducement to enter a
settlement agreement with the VA, the claim must be dismissed
for failure to state with sufficient particularity the alleged
facts of the what, when, where, and how of the
misrepresentation under Rule 9(b).
Global, Inc., the Court of Federal Claims dismissed a
pre-award protest for lack of standing because the plaintiff
did not establish it was a qualified offeror with the present
capacity to perform the contract resulting from the
Inc., an unsuccessful post-award protest, the court denied
the plaintiff's challenges to a nonresponsibility finding and
a finding of ineligibility under the Government's "vendor
vetting" procedures in Afghanistan.
Pacific Railroad Co., the court dismissed a case pursuant
to the Tucker Act's statute of limitations because it was
filed more than six years after the date it accrued.
Associates, Inc., the ASBCA upheld the ACO's determination
that five indirect cost items (membership in a hunting club,
costs of a jazz ensemble, gifts of flowers to employees on
various special occasions, an expensive Christmas party
that included significant costs for alcohol, and certain
rental costs) were expressly unallowable under FAR 31.205 and
that the contractor was not entitled to a waiver of the
penalties for unallowable costs under FAR FAR 42.709-5.
Investment Co., LLC, the Court of Appeals for the Federal
Circuit affirmed the CoFC's dismissal of a contractor's claims
for unpaid rent because they were based on the same
transactional facts as, and therefore were precluded by,
claims involved in a prior, unappealed, decision by the CBCA.
American Army Services Corp., a successful post-award
protest, the Court of Federal Claims remanded the dispute for
a new responsibility determination because the prior
determination had been based on (i) allegations of forgery on
other contracts (which the court believed the Contracting
Officer should have investigated further before accepting) and
(ii) a referral for debarment (which was ultimately dismissed after
the nonresponsibility determination). This has to be viewed as
a unique set of facts because normally a nonresponsibility
determination in a situation such as this one would be bullet
proof. Subsequently, the court published a redacted version of
addendum denying the plaintiff's claims that it had been
disparately treated in relation to another similarly-situated
Diving Supply, Inc., an unsuccessful post-award protest,
the court rejected the protester's challenges to (i) multiple
aspects of the evaluation and (ii) the agency's alleged
divergence from an evaluation procedure described only in
internal agency document that conferred no rights on offerors.
Technology, Inc.; Chenega Integrated Mission Support, LLC,
the GAO sustained protests by two offerors because the agency mechanically and unequally
applied undisclosed staffing estimates in evaluating offerors’ proposed staffing
to determine the acceptability of proposals.
Southeast, Inc., the ASBCA granted the Government's motion
for summary judgment because FAR 52.217-8 ("Option to
Extend Services") permits the Government to extend
a contract up to six months beyond its normal term,
including options, under to FAR 52.217-9 ("Option to
Extend the Term of the Contract").
Management, Inc., an unsuccessful post-award protest, the
Court of Federal Claims held that (i) an agency's
investigation (which rejected the protester's allegations of
Procurement Integrity Act violations and Organizational
Conflicts of Interest by the awardee) had a rational basis and
(ii) the solicitation did not require that an offeror provide
commitments to work for it from proposed employees.
has issued several decisions.
Farnam, the Board summarily denied an appeal involving a
claim for the cost of repairs to a vehicle bought at an
"as is" auction.
Sutton, the Board dismissed an appeal for failure to
prosecute after the appellant failed to respond to and comply
with the Board's initial scheduling order and several
Areva Mox Services, LLC, the Board denied the Government's
motion for summary relief because the Board was not bound by
the Contracting Officer's prior determination that the costs
at issue were not allowable.
Inc., the Board held that a contract was plain and
unambiguous and did not require the Government to compensate
the contractor for its employees' time spent in airplane
SBA's OHA has issued several size decisions.
Appeal of SIMMEC Training Solutions, the OHA upheld
the Area Office finding that the challenged firm was small,
(i) rejecting the protester's claim that the Area Office
should have conducted further investigation into other areas
of possible affiliation, because the protester did not provide
evidence alerting the Area Office to other problem areas, and
(ii) holding that the challenged firm did not violate the
ostensible subcontractor rule and that the Area Office
properly excluded the receipts of the firm not found to be
affiliated with challenged firm as of the date of
Appeal of Willow Environmental, Inc., the OHA reversed
the Area Office's determination that the challenged firm was
affiliated with another firm by virtue of the identity of
interest or newly organized concern rules.
Appeal of Competitive Innovations, LLC, the OHA denied
a petition for reconsideration of the OHA's earlier decision
in SIZ-5369, which
had reversed the decision of the Area Office and held that the
challenged firm was not a small business for purposes of the
procurement at issue because the firm was affiliated with its
four subcontractors through the ostensible subcontractor rule.
Coatings, Inc., the Court of Federal Claims stayed the
proceedings to permit Contracting Officer time to decide
claims submitted by the contractor to the Contracting Officer
after the contractor had filed this suit based on the
Contracting Officer's denials of other, related claims. The
court reasoned that the two sets of claims were not so
closely tied that the suit on the earlier claims had divested
the Contracting Officer of the power to decide the second set
proposes to amend the "Printing"
clause (1552.208-70) in its acquisition regulation (the
"EPAAR"). Comments are due by November 5.
2011-018: A correction to the previously-published
proposed rule amending the FAR to conform it to the
re-codification of Title 41 of the United States Code re-publishes
FAR Part 53 ("Forms").
DoD's Per Diem, Travel and
Transportation Allowance Committee is publishing Civilian Personnel Per Diem
Bulletin Number 286,
which lists revisions in the per diem rates prescribed for
government employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern
Mariana Islands and Possessions of the United States.
Order 13627 requires the FAR to be amended within 180 days
to include a set of provisions described in the Order in order
to strengthen the protections in the FAR against trafficking
in persons in federal contracting.
Manufacturing Co., an unsuccessful preaward protest, the
Court of Federal Claims held that an amendment to the
solicitation issued after the initial evaluation of proposals
did not change the solicitation's requirements sufficiently to
constitute a cardinal change and, therefore, did not require
the issuance of a new competition.
Appeal of Wear Mark, Inc., the SBA's OHA
interpreted one prong of the nonmanufacturer rule at 13 C.F.R.
121.406(b)(iii): A firm can qualify as a nonmanufacturer if it
ownership or possession of the item(s) with its personnel,
equipment or facilities in a manner consistent with industry
practice by arranging for the transportation of the
contract items." The OHA interpreted this prong to
establish an either/or requirement: (i) ownership (without
more) or (ii) possession of the items with its
personnel, equipment, or facilities. Thus, a firm that used a
common carrier to transport goods satisfied the ownership
prong of requirement because (i) the existence of a carrier
lien on the goods was irrelevant, and (ii) there was no
requirement for the contested business also to have possession
of the goods or to have ownership with its own personnel,
equipment, or facilities. Clear as mud?
General Trading & Contracting Co, W.L.L., the Court of
Federal Claims held it lacked CDA jurisdiction over a
contractor's suit filed more than four years after receiving
the Contracting Officer's decision and more than two years
after the the Government had terminated post-decision
discussions concerning the claim.
Case 2006-G510: The GSA is revising Part 504
(Administrative Matters) of its acquisition regulation (the
Brown & Root Services, Inc., the Court of Federal
Claims addressed the reasonableness of subcontractor costs
related to a cost reimbursable prime contract for the
provision of dining facility services in wartime in Iraq and
discussed the standards the contractor had to meet to
establish the reasonableness of its methods for pricing
changes to those subcontracts during times of rapid troop
buildups beyond the levels contemplated by the original
Peak Rock & Paving, Inc., the CBCA dismissed a direct
subcontractor appeal (brought under a third party beneficiary
theory) for lack of CDA jurisdiction because the subcontractor
had no privity of contract with the Government and the third
party beneficiary arguments would apply only to appeals in the
Court of Federal Claims pursuant to Tucker Act.
Energy & Construction, Inc., the CBCA denied the
Government's motion for reconsideration (based on sovereign
immunity and Anti-Deficiency Act arguments) of the Board's prior
decision finding the contractor entitled to recover the
amount paid to a surety under a supersedeas bond.
to several sections of the DFARS have been published.
sustained a protest by Verizon
Wireless against the terms of a solicitation to establish
BPAs with FSS contractors for commercial items and services
pursuant to FAR subpart 8.4 because the record did not
establish that the procuring agency had performed adequate market research to demonstrate that
the solicitation terms were consistent with customary commercial practice
(and not unduly restrictive of competition) as required by FAR
Federal Acquisition Service has
extended the comment period for, and the effective date
of, its implementation of a Demand Based Model
designed to assess and improve the performance of the Multiple Award
Schedule contracts operated by GSA. Comments are now due by
October 25, and the effective date is now 60 days from
Solutions, Inc., on the contractor's motion for
reconsideration, the ASBCA vacated its earlier
decision in order to allow further discovery on issues of
Dream Group, the Board (i) denied the Government's motion
to dismiss appeals for lack of jurisdiction, and (ii) held
that even though the contractor had changed its name and then
changed its address in a Baghdad war zone because of an
explosion, it was the same entity that had been awarded the
Enterprises, the CBCA upheld the Contracting Officer's
decision to deny various elements of a convenience termination
claim for lack of proof, tardiness in providing notice to the
Government, and performance in spite of the lack of a notice
to proceed with the contract work.
sustained a protest by Glotech,
Inc. because the agency failed to consider price in
evaluating quotations for BPAs under the FSS program.
OHA has issued several size decisions.
Appeal of Wichita Tribal Enterprises, LLC, the OHA
affirmed the Area Office's finding of a violation of the
ostensible subcontractor rule because (i) the subcontractor
was the incumbent (and was ineligible to bid on the current
procurement); (ii) the protested firm planned to hire the
majority of its workforce from the subcontractor, including
its proposed project manager; and (iii) the protested firm was
a relatively new firm with modest resources and little
relevant corporate experience.
Appeal of Environmental Restoration, LLC, the OHA
remanded the case to the Area Office for further investigation
because it had not adequately analyzed possible affiliation
through common management, including several identical board
members on both alleged affiliates.
Appeal of Professional Performance Development Group, Inc.,
the OHA affirmed the Area Office's denial of a protest
because the protester had not presented specific evidence to
support its allegation of a violation of the 3-in-2 joint
venture rule, and, even if it had done so, the
"violation" would have been irrelevant because the
firms in question were members of an approved 8(a) mentor-protégé
October 24, SBA is increasing the small business size standards
for (i) nine industries in NAICS Sector
61 (Educational Services); (ii) 28 industries in NAICS
Sector 62 (Health Care and Social Assistance); and (iii) 21 industries and one
sub-industry in NAICS Sector
53 (Real Estate and Rental and Leasing).
Top Construction, Inc. v. Donahoe, the Court of Appeals
for the Federal Circuit reversed the PSBCA's prior
decision and held that consultant and attorney costs were
recoverable because they were reasonable contract
administration costs incurred in connection with negotiating
the quantum of a change rather than for the prosecution of a
Corp., the Court of Federal Claims denied a
subcontractor's claim that its prime contractor had terminated
it because the Government allegedly had leaked information to
the prime that the subcontractor had disclosed to the
Government in confidence:
Plaintiff attempts to pile a Pelion of conjecture upon an Ossa of speculation in relying on
a single, lonesome fact - the timing of its termination - to prove that HUD officials breached an
alleged confidentiality agreement. But like the Greeks of old, whose stone pile atop Mt.
Olympus failed to reach the heavens, plaintiff’s efforts fall far short of its goal, dashed, inter
alia, by evidence proving that [the prime's] decision to terminate Lublin predated Lublin’s meeting
Corp., the CBCA held it lacked jurisdiction over the
portion of an appeal involving the GSA under a GSA FSS
contract where only the actions of the ordering agency (and
not the terms of FSS contract) were involved in the underlying
Construction LLC, the CBCA dismissed an appeal as untimely
filed where there was no evidence the Contracting Officer had
extended the period for appeal by reconsidering her original
decision, even though the Contracting Officer was considering
other claims related to the same contract.
Environmental, Inc. won its GAO protest because (i) the
agency's (a) conclusion that the protester's pricing was
unbalanced (too low in some cases) and (b) its post hoc
rationalization that the protester had used more employees
than needed on a prior contract were not sufficient to justify
the conclusion that there was a risk of higher prices to the
Government; and (ii) the agency's price/technical tradeoff
analysis failed to adequately consider the protester's price
Case 2011-018: A proposed rule would make amendments
throughout the FAR to conform its citations to the recent
re-codification of 41 U.S.C. ("Public Contracts").
Comments are due by November 18.
Aircraft Corp., the Court of Federal Claims denied the
Government's motion to strike a set of emails from the record
because the Government had waited too long after it had
produced the documents during discovery to assert the
deliberative process privilege: "By any measure, [ten
months] is simply too long a time to try now to resuscitate the privilege.
Its spirit has long since entered the Elysian Fields of the public domain."
Commerce Department's Bureau of Industry and Security has
issued a final rule that updates the legal authority
citations for the Export Administration Regulations (EAR) to include
citations to (i) the President’s Notice of August 15, 2012
(Continuation of Emergency Regarding Export Control Regulations);
(ii) the President’s Notice of May 19, 2012 (Continuation of the
National Emergency With Respect to the Actions of the Government of
Syria); and (iii) Executive Order 13338 (in the authority citations
paragraph of part 746 of the EAR).
has published quite
a few corrections to the interim final rule that
originally appeared in the Federal Register on August 20, 2012 (75
FR 49991), which (i) amended the SBA’s Small Business Size Regulations
by incorporating the Office of Management and Budget’s 2012 modifications of the North American
Industry Classification System (NAICS) into its table of small business size
standards; (ii) revised the definitions of some NAICS 2007
industries; (iii) deleted others; and (iv) aggregated a number of closely related
industries and activities into other new or revised industries. SBA will adopt
the changes effective October 1.
Acquisition Circular (FAC) 2005-61 has been published and
includes the following four items plus technical amendments:
Case 2012-004 (United States-Korea Free Trade Agreement):
A final rule implements, without change, the prior interim
rule amending the FAR to implement the United States-Korea Free
Trade Agreement and to lower the procurement threshold for The Republic of
Korea, which is already a party to the World Trade Organization Government
Case 2012-026 (DoD Industrial Preparedness Program):
Effective October 15, a final rule amends the FAR to delete
outdated references to the obsolete DoD Industrial
Case 2012-021 (NAICS and Size Standards): Effective
October 15, a final rule amends the FAR to clarify that new
NAICS codes are not available for use in federal contracting until the
SBA publishes corresponding industry size standards.
Case 2012-008 (Bid Protest and Appeal Authorities): A
final rule amends FAR Part 33 (i) to note that there are other
federal-court related protest authorities and dispute-appeal authorities that are not covered
by FAR part 33 and (ii) to provide contracting officers with appropriate
references to their office of legal counsel and the Web site for the rules of the U.S.
Court of Federal Claims.
also includes several editorial
(i) to increase small business size standards for 11 industries in
Sector 11 (Agriculture, Forestry, Fishing and Hunting), (ii) to increase size standards for 37 industries in
Sector 52 (Finance and Insurance) and for two industries in
55 (Management of Companies and Enterprises), and (iii) to change the measure of size from
average assets to average receipts for NAICS
522293 (International Trade Financing). Comments on any of
these proposed changes are due by November 13.
NAICS Appeal of edCount, LLC,
the SBA's OHA held that the Contracting Officer erred (i) by
stating that either of two NAICS codes, with different
size standards, might apply to the procurement, and (ii) by
indicating that the procuring agency would determine which of
those codes to utilize only at the time of contract award. The
OHA also concluded that the use of NAICS Code 611710
(educational support services) for this procurement was
Architects & Engineers. Inc., although the Court of
Federal Claims found that the architect breached the contract
by negligently failing to provide underfloor piping and civil site grading
designs that complied with the contract's requirements and the applicable standard of care,
the Government failed to prove that the negligent designs
caused the vast majority of the costs claimed by the
Government for its alleged damages.
Timber Co., the Court of Appeals for the Federal Circuit
reversed the prior decisions by Court of Federal Claims in
favor of a timber sales contractor (see prior decisions
and held that (i) the Government could not have breached the covenant of good faith and fair dealing by
failing to disclose information to the contractor prior to
award because the covenant does not exist until the contract
is signed; and (ii) the Government did not unreasonably
lengthen contract suspensions by unduly delaying its actions
during the suspensions because the suspensions were not
"specifically targeted" at delaying Scott's
contracts and did not reappropriate any benefit guaranteed by the contracts, since the contracts contained
no guarantee that performance would not be interrupted.
Case 2012-009: A proposed rule would amend Part 42 of the
FAR (and various other sections of the FAR that refer to that
Part) (i) to provide governmentwide standardized past performance evaluation factors and
performance rating categories and (ii) to require that past performance
information be entered into the Contractor Performance Assessment
Reporting System (CPARS). Comments are due by November
Department of Transportation has proposed an extensive set of
changes to its disadvantaged business
enterprise rule, including (i) revisions to personal net
worth, application, and reporting forms; (ii) modifications to certification-related
provisions; and (iii) various revisions to several sections concerning,
inter alia, good faith efforts, transit vehicle manufacturers, and counting of trucking
issued a correction
of the recently
published rule that made extensive revisions to its
acquisition regulation (the HSAR). See August 22 entry
Constructors, the ASBCA held that a construction
contractor failed to prove it encountered Type I Differing
Site Conditions in the form of (i) a different soil profile,
(ii) soil with different characteristics, or (iii) increased soil moisture conditions.
Federal Highway Administration proposes to update the regulations governing the
procurement, management, and administration of engineering and
design related services directly related to
federally-funded highway construction projects (i) to make the regulations consistent with
prior changes in legislation and other applicable regulations,
and (ii) to address findings and recommendations for the oversight of
consultant services contained in national review and audit reports.
Comments are due by November 5.
Commerce Department's Minority
Business Development Agency has extended the date by which
it plans to make its decision on a petition from the American-Arab Anti-Discrimination Committee requesting
formal designation from August 30 to November 30, 2012.
In Size Appeal
of Roundhouse PBN, LLC, the SBA's
OHA held that, given the exception at 13 C.F.R. 121.103(b)(2)
for analyzing affiliation issues involving Indian
tribes, the Area Office erred in finding a firm that
was owned by a holding company (which was, itself,
owned by a federally-recognized Indian tribe certified as economically
disadvantaged by the SBA) was affiliated with other firms owned
by same holding company through the newly organized concern rule, identity
of interest, the ostensible subcontractor rule, or the totality of the
Appeal of HAL-PE Associates Engineering Services, Inc.,
the SBA's OHA dismissed an appeal involving a firm's SDVOSB
status on a VA procurement set-aside for SDVOSBs because the SBA
lacks jurisdiction over that issue.
sustained a protest by J.R.
Conkey & Assocs. because (i) the agency improperly
downgraded the protester's proposal as lacking information
that was, in fact, included; (ii) the agency's evaluation of
the protester's proposal under the Schedule factor was
inconsistent with solicitation's evaluation scheme; and (iii)
the agency impermissibly limited its tradeoff analysis to the
three proposals with the highest technical scores, regardless
of their higher prices.
Building Systems, Inc., the Court of Federal Claims
imposed both monetary and evidentiary sanctions on the
Government because (i) it failed to produce a set of relevant
documents during discovery, and (ii) one of its witnesses
destroyed the documents after their existence became known but
before the plaintiff could examine them.
North America, Inc., the court (i) rejected the
plaintiff's contention that the Contracting Officer's decision
(which had been drafted by others) did not reflect her
independent judgment on a government claim and (ii) held that
it was sufficient that the Contracting Officer familiarized
herself with the facts and conclusions contained in the draft decision and
adopted them as her own.
the CBCA granted the Government's motion to dismiss an appeal
with prejudice because (i) the Government had fulfilled the
requirement in a bilateral settlement agreement (to make a
specified payment to the contractor), and (ii) extrinsic
evidence would not be admitted to vary the terms of the
agreement to require (as the contractor contended) that the
Government should also expunge references to the contractor's
default termination from government records.
gave each side a partial victory when it granted aspects of
both cross motions for summary judgment concerning various
construction contract claims in Power
Enterprises, Inc., won its GAO protest because the Air
Force lacked the authority to transfer its mission essential
food service requirements to a nonappropriated fund
instrumentality (NAFI) on a non-competitive basis and without
a sole-source justification.
description of Croman
Corp. is that it is an unsuccessful protest at the
Court of Federal Claims alleging that the agency's corrective
action plan in response to an earlier GAO protest was
inadequate to address the alleged errors in the original
evaluation. The court action was filed shortly after the
agency announced its corrective action plan (which involved a
reevaluation), but the motions for judgment on the
administrative record were argued after that reevaluation had
been completed, and the court addressed alleged errors in that
reevaluation even though the plaintiff had not filed a new
action concerning those alleged errors. I'm a bit fuzzy how
Offshore Development Corp., following an earlier decision
establishing that the Government had breached an oil and gas
lease, the Court of Federal Claims held that the contractor
was not entitled to lost profit expectancy damages because of
an intervening cause--the contractor would not have been able
to obtain the necessary air pollution permits to proceed with
Case 2011-D054: A final rule amends the DFARS to update DoD’s
voucher processing procedures and better accommodate the Wide Area
WorkFlow used to process vouchers.
Case 2012-D016: A final rule adopts, without change, the
interim rule amending the DFARS to implement a section of the National Defense Authorization Act for
Fiscal Year 2012 that requires adjustment of the statutory dollar
limitation on the acquisition of right-hand drive passenger sedans.
Case 2012-D001: A final rule amends the DFARS to revise and standardize
reporting requirements for government-furnished property.
Case 2012-D040: A proposed rule would amend the DFARS to update instructions for assigning basic
and supplementary procurement instrument identification numbers.
Comments are due by October 29.
Application & Technologies, Inc., the Court of Appeals
for the Federal Circuit affirmed the Court of Federal Claims' earlier
decision holding that (i) the court had jurisdiction under
28 U.S.C. 1491(b)(1) over an awardee's protest against the
procuring agency's decision to take corrective action in
response to an earlier GAO protest; (ii) the awardee had
standing to file such an action; and (iii) the case was ripe
for judicial review.
Construction Co., the ASBCA denied the Government's motion
to dismiss an appeal for failure to prosecute based on the
appellant's litigation delays. The Board noted that the
appellant had not refused to proceed and that the appellant's
attorney indicated it was not receiving payments from the
Construction Co., the ASBCA dismissed one count of the
complaint for lack of CDA jurisdiction because the prior
letter to the Contracting Officer on which it was based did
not request a decision and was not certified.
Lease Group, Inc., the Court of Federal Claims held that
the Government breached a contract for leased vehicles by
failing to compensate the lessor for damage to returned
vehicles and by forcing the lessor to accept short term leases
that did not comply with minimum contract term.
Systems Corp., the GAO originally held that the agency (i)
did not meaningfully consider the protester's lower price in
awarding to a higher technically rated proposal and (ii)
failed to provide a meaningful explanation for its past
performance evaluation. Now, after the agency's reevaluation
in response to the GAO's original protest decision, NikiSoft
protest of the same procurement because there is no basis
in the record to justify the agency's conclusion that
NikiSoft's proposed level of effort was inadequate and should
be adjusted upward.
Case 2011-020: A proposed rule would amend the FAR to add a
subpart 4.17 and a contract clause for the basic safeguarding of contractor
information systems that contain information provided by, or generated
for, the Government (other than public information), which will be resident on, or
transiting through, contractor information systems. Comments
are due by October 23.
won yet another set of GAO protests against the terms
of various VA FSS solicitations because the VA again
failed to consider whether the procurements should be set
aside for SDVOSBs. All you lawyers out there, imagine you are
being interviewed for a new representation by a prospective
you ever had any experience with GAO protests?"
a bit, yes."
have you ever won any protests?"
12 in a row and counting."
Healthcare Informatics won its GAO protest because (i) the
VA improperly considered a late proposal revision by the
awardee; (ii) the past performance evaluation was unreasonable, inconsistent with the
terms of the RFP, and insufficiently documented; and (iii) the
agency waived material solicitation requirements only for the
A. McVicker, P.C., the ASBCA held that the Government's
purported partial convenience termination merely ratified the
Government's prior breach of the covenant of good faith and
fair dealing when it induced the contractor to enter into the
contract and hire specific employees without disclosing that
the Government intended to bring those employees (and the
associated work) in house as soon as possible. Therefore, the
contractor was entitled to breach damages in the form of lost
profits for the base contract year.
Technologies, Inc., is one of the extremely rare
protests the GAO has entertained under its rule at 4 C.F.R.
for good cause shown, or where it determines that a protest
raises issues significant to the procurement system, may
consider an untimely protest"). Here, the protester won
because the agency
ignored FAR 8.405-3(a)(2)'s requirement that price be
considered in a best value FSS solicitation for a blanket
rule, effective September 21, amends multiple sections of the
Homeland Security Acquisition Regulation (HSAR) in order
to (i) implement Section 695 of the Post-Katrina Emergency Management Reform
Act of 2006 by restricting the length of certain noncompetitive contracts
entered into by the Department of Homeland Security to facilitate
the response to or recovery from a natural disaster, act of terrorism, or other
manmade disaster; (ii) align existing content with the FAR;
(iii) clarify the regulations; and (iv) make editorial corrections.
World Services, Inc., the CBCA held that, under a
fixed-price contract, the contractor was not entitled to
recover its costs of snow removal in a winter when three times
the normal amount of snow fell. Historical snowfall data in
the solicitation was not a guarantee, and the fact that a
different contracting officer had once paid for such removal
did not establish a course of dealing.
Pinnacle, L.L.C., the CBCA denied the Government's motion
to dismiss an appeal involving a cooperative agreement for
lack of CDA jurisdiction because the contractor's allegation
that Government's actions under the agreement created an
implied-in-fact procurement contract were sufficient to give
the contractor an opportunity to conduct discovery to try to
prove that allegation.
Department of Homeland Security proposes to amend its acquisition
regulation (HSAR) to require time-and-material or labor-hour contracts
to include (i) separate labor hour rates for
subcontractors and (ii) a description of the method that will be used to record and
bill for labor hours for both contractors and subcontractors.
Comments are due by October 22.
Department of the Treasury proposes to amend its acquisition
regulation (DTAR) to include a contract clause concerning the
fair inclusion of minorities and women in the workforces
of contractors and subcontractors, as required by the Dodd-Frank Wall Street
Reform and Consumer Protection Act of 2010 (the Dodd-Frank Act).
has issued an interim
final rule, effective October 1, to its Small Business Size Regulations
in order to incorporate the Office of Management and Budget’s
2012 modifications of the North American Industry Classification System
("NAICS 2012") into the SBA's table of small business size standards. NAICS
2012 has created 76 new industry codes and reused 13 NAICS 2007 industry
codes with additional or modified content, and SBA’s adoption of NAICS 2012 will result in
(i) changes to small business size standards for 41 NAICS 2007 industries and one
exception and (ii) changes to NAICS industry titles for one Subsector and eight industries.
Comments on the interim final rule are due by October 19.
Court of Federal Claims' decision in the unsuccessful protest
Research and Engineering, Inc., is somewhat unusual in
form because, even though the court is not really an appellate
court vis-à-vis the GAO, the plaintiff (in protesting the
agency's corrective action plan which was based on a prior GAO
decision sustaining a protest) essentially asked the court to
reevaluate the GAO's decision, and the court found that
all of the GAO's prior holdings were not irrational,
including (i) the GAO's decision that the original protests
were timely filed under the GAO's protest regulations, (ii)
each of the GAO's several holdings that various protest
allegations were meritorious, and (iii) the GAO's
recommendation for corrective action.
OHA has published several decisions.
Appeal of TFab Manufacturing, LLC, the OHA
affirmed the Area Office's decision not to examine
affiliation because the protester did not allege it in its
Appeal of J.D. Broco, LLC, the OHA dismissed a NAICS
protest for lack of standing because protester was not a
qualified offeror on the procurement.
Matter of Best Technology
Services, Inc., the OHA granted the Government's motion to
dismiss the appeal for lack of jurisdiction because the SBA's denial
of a firm's admission to the 8(a) program had been based in part on a
negative finding of potential for success pursuant to 13 C.F.R.
124.107, over which the OHA lacks jurisdiction.
of Loyal Source Government Services, the OHA remanded the case
to the SBA for further proceedings because the SBA (i) had improperly
disregarded incidents of alleged social disadvantage presented in the
8(a) applicant's request for reconsideration of an initial denial of
its entrance into the 8(a) program, and (ii) had not adequately
documented its analysis of other allegations.
of BDS Protective Services, LLC, the OHA overturned the SBA's
determination that an 8(a) applicant did not not
manage a firm on a full-time basis as required by 13
C.F.R. 124.106 simply
because his full-time, night-shift work on the third shift at
another firm "might" detract from his ability to concentrate
on the development of the applicant firm. The OHA noted that the
applicant had been operating successfully on the same schedule for 10
following case is a cautionary tale that every government
contractor should remember.
Communications, Inc., a service-disabled, veteran-owned small
business, filed suit at the Court of Federal Claims protesting
the rejection of its proposal. Originally, the court found
that the Government had not properly documented its best-value
tradeoff analysis and issued an injunction
requiring the Government to conduct another analysis and to
document its conclusions. The protester probably was feeling
pretty good at that point. Subsequently, however, after
documenting its new analysis, the Government again rejected
the protester's proposal. Now, as a consolation prize, the
protester seeks to recover approximately $100,000 in legal
fees under the Equal Access to Justice Act, as the prevailing
party in the original protest. The court, however, denies
that request because the Government's position was a
"substantially justified" (albeit incorrect) reading
of FAR 15.308's requirements concerning documenting best-value
only about one in ten protests succeeds. Moreover, protests
are expensive: the amount the protester incurred for
attorneys' fees in this case is not unusual for a protest in
federal court. Furthermore, even when a protester wins its
protest, the agency often finds a way to take whatever
corrective action is required and still avoid awarding
a contract to the protester. Finally, even on a winning
protest, recovery of attorneys' fees is not a given because
the statute permits recovery only if the agency's position was
not "substantially justified." In other words, the
winning protester has to show more than that the agency was
incorrect. As Dad used to say, all that's a tough row to hoe.
Housing Services Corp. won its GAO protest because the
agency should have issued a solicitation for contract
administration services rather than simply publishing a notice
of funding availability leading to a cooperative agreement.
Federal Services, Inc., the GAO recommended reimbursement
of costs related only to the portion of the protest that was
Corp., the ASBCA held held that, under FAR
42.709-5(c)(1), (2), the contractor was not
entitled to a waiver of the penalties for unallowable costs
included in its final indirect cost proposals because, inter
alia, the contractor:
failed to exercise due care
because its system support broke down for failure to make yearly maintenance payments,
its [software accounting] system crashed, it lost cost information, its bookkeeper could not make timely
cost entries, and its inexperienced controller included expressly unallowable costs in its
2004 final indirect cost rate proposal on the misunderstanding that DCAA later would tell
him what costs were not acceptable. . . .
Siegler Services, Inc., the ASBCA sustained the
contractor's appeal and held that a unilateral modification to
a task order under an Air Force ID/IQ contract for aircraft and depot maintenance
at National Guard aviation facilities was a compensable change
because it increased the agreed maintenance workload beyond
that required by the performance work statement.
Solutions, Inc., an unsuccessful post-award protest
against multiple aspects of an evaluation, the Court of
Federal Claims held that: (i) the protester's contention that
the procurement should have been set aside for small business
was untimely because it was not raised prior to submission of
proposals; (ii) the agency's use of the original technical
evaluation panel to reevaluate quotations as corrective action
was unobjectionable; (iii) the agency's corrective action plan
for the reevaluation was reasonable; and (iv) the agency's
evaluation of the protester's quotation under the technical
evaluation factor was reasonable, as were its evaluations of
the protester's past performance and product demonstration,
and of price reasonableness.
Case 2012-015: A proposed rule would revise paragraph (b)(2) of FAR
19.502–2 ("Total small business set-asides") to clarify that
contracting officers shall set aside acquisitions for research and
development in excess of the simplified acquisition threshold when
the market research conducted in accordance with FAR Part 10 indicates
there are small businesses capable of providing the best scientific and
technological approaches. Comments are due by October 9.
Clay Group, LLC won its GAO protest because (i) the agency
failed to evaluate in accordance with the solicitation's
evaluation scheme, and (ii) there was no evidence in the
record that the agency evaluated the awardee's product sample
for compliance with the salient requirements of the
L. Energia, Inc., the ASBCA held that the
"Inspection" clause authorized the Government
to equitably reduce the contract price (by means of a
unilateral mod) because the contractor failed to perform
all the required work.
addition to the size decisions I described in yesterday's blog
entry, the SBA's OHA has issued the following NAICS decisions.
Appeal of R. Christopher Goodwin & Assocs., Inc. and NAICS
Appeal of Eagle Home Medical Corp., the OHA dismissed,
as untimely, two appeals of Contracting Officers' NAICS
designations filed more than 10 calendar days after the
issuance of the solicitations in question, in each case noting
that the current reference to 10 "business" days in
13 C.F.R. 121.1103(b)(1) is an inadvertent, clerical error in
also found three NAICS appeals meritorious.
Appeal of Delphi Research, Inc., the OHA held that the correct
NAICS designation for a procurement to perform research facilities and
engineering support services at the Dryden Flight Research Center
was NAICS Code 541513, Computer Facilities Management Services
( with a corresponding size standard of $25.5 million in average annual receipts),
not NAICS Code 541712, Research and Development in Physical, Engineering, and Life Sciences (except Biotechnology).
Appeal of Dial General Engineering, the OHA held that the
correct NAICS designation for a procurement to raise, realign, and
reset upright marble headstones, flat markers and private
headstones onto a new marker grid support system at a national
cemetery was NAICS Code 238110, Poured Concrete Foundation and Structure
Contractors ( with a corresponding $14 million annual receipts size standard),
not NAICS Code 561730, Landscaping Services.
Appeal of CHP International, Inc., the OHA held that the
correct designation for a procurement of Job Corps outreach and
admissions and career training services was NAICS Code 541611, Administrative Management and General
Management Consulting Services ( with a corresponding $14 million annual receipts size
standard), not NAICS Code 561990, All Other Support Services ( with a
corresponding $7 million annual receipts size standard).
has published several size decisions.
Appeal of Reliable Contracting Group, the OHA affirmed
the Area Office's finding that two firms were not affiliated
because the assistance provided by one to the other was
pursuant to a valid mentor-protégé agreement.
Appeal of Alutiiq Education & Training, LLC, the
OHA affirmed the Area Office's finding that firms were not
affiliated under the identity of interest, ostensible
subcontractor, or totality of the circumstances rules.
Appeal of HAL-PE Associates Engineering Services, Inc., the
OHA affirmed the Area Office's finding of lack of affiliation
based on the newly organized concern, ostensible
subcontractor, identity of interest, and totality of
Appeal of IPKeys Technologies, LLC, the OHA affirmed
the Area Office's finding that there was no violation of the
ostensible subcontractor rule.
Appeal of Macro-Z Technology Co., the OHA affirmed the
Area Office's decision drawing adverse inferences based on
repeated failures of the protested firm to provide relevant
information requested by Area Office.
Inc., a successful post-award protest, the Court of
Federal Claims held that (i) the agency used undisclosed
evaluation factors to disqualify the protester's offer; (ii)
the actual evaluation differed from the evaluation scheme
described in solicitation; and (iii) there was no rationale
for the agency's decision in the administrative record.
Technology, Inc. the CBCA denied the Government's motion
to dismiss an appeal for lack of jurisdiction and held that a
submission labeled both as a termination for
convenience settlement proposal and a claim, which had been
properly certified and which included a request for a
Contracting Officer's decision, was a CDA claim that could be
appealed as deemed denied after the Contracting Officer failed
to respond to it for six months.
JV won its GAO protest because there was no basis in the
record for raising the awardee's rating or for the SSA's
conclusion that two offers were technically equal, where that
conclusion appeared to be at variance with the
contemporaneous record of the evaluation.
Associates, Inc., a Court of Federal Claims decision
awarding the plaintiff EAJA legal fees was reversed by the
Court of Appeals for the Federal Circuit because, at the time
of this dispute, there was significant disagreement among all
three branches of Government over the issue in the case on the
merits (whether the Small Business Act prioritized the HUBZone
program over the 8(a) program), and, therefore, the Air
Force's litigation position, although ultimately unsuccessful,
was substantially justified.
Heery/A Joint Venture, after dismissing the counts in the
complaint requesting a "review" of the Contracting
Officer's denial of the contractor's claims (because the CDA
only authorizes suits directly on the underlying claims), the
Court of Federal Claims held that the actions of state
officials hindering the performance of a federal construction
contract could not be attributed to actual or implied
breaches, changes, or cardinal changes of the contract by the
Federal Government because the contract allocated the risk of
such actions to the contractor through the "Permits and
Hill, LLC V. United States, the court held that the lessor
had not proved it was damaged by the Government's alleged
failure to properly restore a trailer park at the conclusion
of a post-Katrina lease for mobile home trailer pads because
the contractor did not present credible evidence that the park
had diminished in value.
World Services Corp., an unsuccessful post-award protest,
the court found that (i) although the Government's letter to
the offeror did not fulfill the requirements of FAR 15.307(b)
to notify the offeror that the Government was establishing a
common cutoff date for receipt of final proposal revisions,
there was no prejudice because the plaintiff would not have
submitted competitive pricing if it had received a compliant
letter; and (ii) the Government adequately notified the
offeror of deficiencies in its pricing proposal in accordance
with FAR 15.306(d).
Construction Co., the Court of Federal Claims denied the
plaintiff's EAJA application because it found that the
Government's position was substantially justified.
In Daniel S. Sinclair,
et al., the ASBCA held (i) it lacked CDA
jurisdiction over claims for "a minimum of" a stated
amount because there was no sum certain being claimed, and
(ii) the Government's termination of a lease did not
extinguish its contractual obligation to make specified
improvements, which was the main reason for the lessor to
enter the lease in the first place.
Construction Corp., the ASBCA held that the phrase
"subsequent contracting opportunities" in section
713(b) of the Small Business Competitiveness Demonstration Program Act of
1988 means solicitations for a contract rather than requests
for task order proposals.
Government argued unsuccessfully that the court should
reconsider its earlier
decision because the statute of limitations on the
Government's claim could not begin to run until it completed
its audit. In this case, the court concluded the Government
had enough information to know of its claim even before it
began the audit.
Case 2011-025 (Changes to Time-and-Materials and
Labor-Hour Contracts and Orders): A proposed rule would amend
the FAR to provide additional guidance when raising the ceiling price or otherwise changing the
scope of work for a time-and-materials or labor-hour contract or
order. Comments are due by September 24.
Acquisition Circular (FAC) 2005-60
has been published and includes the following five items, plus
Case 2008-039 (Reporting Executive Compensation and
First-Tier Subcontract Awards): Effective August 27, a final
rule adopts, with changes, the interim rule amending the FAR
to require contractors to report executive compensation and first-tier
subcontractor awards on contracts of $25,000 or more.
Case 2011-003 (Payments Under Time-and-Materials and
Labor-Hour Contracts): Effective August 27, a final rule
amends sections in Parts 16, 32, and 52 of the FAR to make necessary revisions to
accommodate the authorization to use time-and-materials and labor-hour
contract payment requirements.
Case 2012-007 (Extension of Sunset Dates for Protests of
Task and Delivery Orders): An interim rule amends the FAR to extend the
sunset date for protests against the award of task or delivery orders
to September 30, 2016.
Case 2012-019 (DARPA--New Mexico Tax Agreement): Effective
August 27, a final rule amends the FAR to to add the United States Defense
Advanced Research Projects Agency (DARPA) to the list of agencies that have
entered into separate tax agreements with the State of New Mexico
(NM), in order to eliminate the double taxation of government cost-reimbursement contracts when DARPA
contractors and their subcontractors purchase tangible personal property to
be used in performing services in whole or in part in the State of New Mexico,
and for which title to such property will pass to the United States upon delivery
of the property to the contractor and its subcontractors by the vendor.
Case 2011-022 (Clarification of Standards for Computer
Generation of Forms): Effective August 27, a final rule amends
the FAR to remove any reference to Federal Information Processing Standard (FIPS)
161 and to codify requirements for standards already in use.
Council also has made editorial
changes to certain sections in FAR Parts 1, 22, and 52.
of Industry of Security has published a set of corrections
to the CCL.
The Department of the
Interior proposes to issue regulations guiding implementation of the
Indian Act, which provides the Bureau of Indian Affairs with authority to set
aside procurement contracts for Indian-owned and controlled businesses.
Comments are due by September 24.
August 24, OFPP's CAS Board is publishing technical corrections to the
final rule, originally published on December 27, 2011, that revised
CAS 412, "Composition and Measurement of Pension
Cost," and CAS 413, "Adjustment and Allocation of Pension
Cost" for the CAS Pension Harmonization Rule because (i)
some illustrations in that document are not consistent with their
corresponding Table or text, and (ii) the text used in the two effective date
provisions is inconsistent.
effective August 24, a final rule rule updates policies and responsibilities for controlling
DoD Unclassified Controlled Nuclear
Corp., the ASBCA held that, under the "Payments"
clause of a contract that provided the contractor would be
paid at pre-established, fixed hourly rates for the hours
actually worked by its employees, the fact that the
contractor's salaried employees were not paid extra for
working extra hours was irrelevant.
made a couple of technical
amendments to the DFARS, including adding a paragraph (d)(1)(vii) to clause
252.204–7007, Alternate A (Annual Representations and
Certifications) which was inadvertently removed from the
C.F.R. with the publication of DFARS Case 2011–D048 (77 Fed.
Case 2011-D049: DoD is amending the DFARS to clarify the requirements for
the Canadian Commercial Corporation to submit data other than certified cost
or pricing data.
Case 2011-D044: DoD proposes to amend the DFARS to provide a provision for offerors, if
owned or controlled by another business entity, to identify the
Commercial and Government Entity (CAGE) code and legal name of that
business entity. Comments are due by September 24.
Case 2012-D041: In accordance with the requirements of the
National Defense Authorization Act for Fiscal Year 2011, which directed DoD to review
the definition of "produce" to ensure its compliance with the statutory
restrictions on specialty metals, DoD now proposes to
amend the DFARS to revise the definition of
"produce" as it applies to specialty metals.
Comments are due by September 24.
of Industry and Security has amended the Export Administration Regulations
(EAR) (i) to conform them to the termination of the United Nations
embargo on "arms and related materiel" against Rwanda,
(ii) to remove machetes from the CCL; and (iii) to amend Part 746
(Embargoes and Other Special Controls) to require a license to export
or reexport certain items to countries subject to United Nations Security
Council arms embargoes. (A presumptive denial policy will apply to applications
to export or reexport items that are controlled for UN reasons and that
would contravene a United Nations Security Council arms embargo.)
rule would amend the FAR to implement governmentwide requirements in National Defense
Authorization Acts that establish minimum processes and requirements
for the selection, accountability, training, equipping, and conduct of
personnel performing private security
functions outside the United States. Comments are due by
SBA proposes to revise the small business size standards for
nine industries in NAICS Sector
22: Utilities. Comments are due by September 17.
soliciting comments from the public concerning whether changes to current regulations
and other guidance might improve Contracting Officers’ access to relevant
information about contractor business ethics in the Federal Awardee
Performance and Integrity Information System (FAPIIS).
Comments are due by September 17.
As part of its ongoing comprehensive review of
all size standards, SBA proposes to increase the small business size
standards for 17 industries in NAICS Sector
71: Arts, Entertainment, and Recreation. SBA also is
proposing to increase small business size standards for one industry and one sub-industry in
23, Construction. Specifically, SBA proposes to increase the size standard for NAICS 237210,
Land Subdivision, from $7 million to $25 million and the size standard for
Dredging and Surface Cleanup Activities, a sub-industry category (or an
‘‘exception’’) under NAICS 237990, Other Heavy and Civil Engineering
Construction, from $20 million to $30 million in average annual receipts.
Comments on these proposals are due by September 17.
Defense Marine (Asia), an unsuccessful post-award protest,
the Court of Federal Claims found that the evaluations of the
awardee's and the protester's past performance had rational
bases and that the resulting tradeoff analysis culminating in
award to the significantly higher-priced firm with a higher
past performance rating was justified where past performance
was more important than price in the solicitation's evaluation
won another GAO protest (actually, it won four more protests,
which were consolidated into one decision) against the terms
of solicitations because the VA persists in beating its head
against the wall by failing to investigate whether two or more
SDVOSBs can meet its requirements at a reasonable price before proceeding with
FSS acquisitions, which violates the Veterans Benefits, Health Care, and Information Technology Act of 2006.
latest opinion (following trial) in the Raytheon
post-1995 CAS 413 segment-closing adjustment case, the Court
of Federal Claims held that: (i) the parties did not intend the
waiver language (which was taken from FAR 42.1204(i)) in the novation agreement
relating to individual segment closings to bar Raytheon's CAS
413 claim because the waiver language was contract-specific
whereas the CAS 413 claims were not; (ii) Raytheon’s reliance on the
"last place worked" methodology to determine the share of pension assets attributable to the AIS segment was
compliant with CAS 413-50(c)(12); (iii) linear interpolation was a reasonable method for
Raytheon to utilize in estimating pension plan assets, and it
complied with CAS 413-50(c)(12)(iii)’s requirement to utilize the market value of the assets
as of the date of the segment closing; (iv) Raytheon's use of a one-hundred percent retirement
assumption with regard to the retirement of retirement-eligible plan participants in preparing its segment closing
calculations for all of the plans in dispute in the AIS segment
was also reasonable and CAS-compliant; (v) Raytheon reasonably followed
the illustration in CAS 413-60(c)(9) and utilized sales data as a proxy for
pension cost data when performing its CAS 413 government share calculations, where a reasonable
search for historical data was performed, and actual pension cost data could not be
located; (vi) the court lacked jurisdiction over the
Government's equitable adjustment claim, as well as a set-off
claim it first raised during the trial; (vii) Raytheon’s Optical segment closing adjustment calculation
did not comply with the CAS requirements (found in CAS 413-50(c)(12)(ii) and CAS 413-50(c)(5))
for allocating assets from a single composite pension plan to the Optical
segment; and (viii) PWF was not a "segment" within the meaning of CAS 413-30(a)(19),
and, therefore, its sale did not trigger the need for a segment closing
Corp., a preaward protest, the court held that a
protester's amended complaint challenging the scope of the
Government's corrective action in response to the original
protest concerning the Government's removal of the protester
from the competition due to a potential OCI was not moot
because potentially viable relief remained available (i.e.,
the protester still had an argument that the corrective
action did not go far enough).
underlying the SBA OHA's decision in
NAICS Appeal of Ash Stevens,
Inc., are interesting. After offerors had submitted
proposals and participated in discussions, the Contracting
Officer notified Ash Stevens that, although the NAICS code in
the original solicitation was correct, the associated size
standard had been incorrectly stated. Ash Stevens asked the
Contracting Officer to waive the requirement and, after being
informed that was not possible, protested the original NAICS
code. The OHA held that since the NAICS appeal had been filed
more than 10 days after the solicitation was issued (and more
than 10 days after the Government had notified Ash Stevens
that the size standard in the solicitation was erroneous), the
appeal was untimely.
Size Appeal of Allied Technical
Services Group, the OHA upheld the Area Office's conclusion that both the
40% and 35% owners of the contested firm had the power to
control it, and, therefore, the firm was affiliated with four
other firms controlled the 40% owner.
Size Appeal of Magnum Opus
Technologies, the OHA vacated the Area Office's
decision on two grounds: (i) the Area Office had improperly
based its decision on one violation of the "3-in-2"
joint venture rule (which had occurred five years before the
events involved in the size protest) without giving notice of
the issue to the protested firm, which violated due process;
and (ii) the Area Office incorrectly concluded that one
violation of the "3-in-2" rule ( particularly by 8(a) BD mentor and protégé when the joint venture in question
is not even involved in the instant procurement) automatically
establishes that general affiliation exists.
Integrators, Inc., the GAO's Contract Appeals Board (yes,
there is such an animal) denied the contractor's appeal from a
default termination by the Government Printing Office because
the contractor failed to complete a preproduction test within
the allotted time, despite being given two chances to do
Design Builders, the Court of Federal Claims granted a
motion to amend the terms of the standard protective order to
permit counsel for the protester and intervenors to retain
copies of protected materials against the possibility that new
protests might be filed concerning additional corrective
actions or a new award under the same procurement, in order to
avoid having to re-copy and re-distribute the voluminous
Planning Corp., the court denied a contractor's claim
because the option clause containing the language on which the
claim was based was never exercised.
CBCA granted the contractor's appeal in Red
Gold, Inc., because the contractor successfully
established all the elements for a unilateral mistake-in-bid
Commerce Department's Bureau of Industry and Security (BIS)
has issued quite a few corrections
to its Export Administration Regulations (EAR).
Case 2012-018: A proposed rule would amend a cross
reference in FAR 15.404–1(b)(2)(i) in order to clarify the
use of a price analysis technique to help establish a fair and
reasonable price when when two or more responsible offerors, competing independently, submit
priced offers that satisfy the Government’s expressed requirement.
Comments are due by September 10.
August 8, the Department of the Treasury is amending its Acquisition Regulation
(DTAR) to implement use of the Internet
Payment Platform, a centralized electronic invoicing and payment
information system, and to change the definition of bureau to reflect the
consolidation on July 21, 2011, of the Office of Thrift Supervision with the
Office of the Comptroller of the Currency.
of Federal Claims' decision in Veridyne
Corp. is a fascinating story of a joint scheme by the
contractor and the procuring agency to avoid competition
requirements on an 8(a) contract extension (by vastly
understating its anticipated cost), which eventually collapsed
due to the accounting constraints of funding limitations. The
court refused to declare the extension mod void ab initio
because the agency was in on the deception, but the contractor
was, nevertheless, liable on the Government's counterclaims
for forfeiture, fraud, and CDA antifraud provisions because
the contractor manipulated certain invoices in order to get
around the ever-increasing problem of funding
limitations. It's a long decision, but I could not stop
published a slew of decisions yesterday, and I've added all of
them to the ASBCA
Decisions page. The most interesting of the bunch
Managed Services, Inc., the Board denied the Government's motions
to dismiss and held that the Board had jurisdiction where a
joint venture became the prime contractor under a modified
contract and the joint venture member who filed the appeal was
authorized by the relevant joint venture documents to do so on
behalf of the joint venture. The Board also held that a claim
was properly certified where the contractor submitted an
affidavit to the Board stating that the original claim was
certified and, prior to the appeal, the Contracting Officer
had repeatedly referred to it (in writing) as the
"certified claim." (Thus, the Contracting Officer's
subsequent statements on appeal (to the effect that those
prior references were a matter of form and that she first
noticed after the appeal was filed that the claim package in
the Government's Rule 4 file did not include a certification)
Evergreene L.L.C., the Board dismissed an appeal for lack of
jurisdiction because the Government's letter merely notifying
the contractor that the Government intended to assess
liquidated damages (absent (i) an actual assessment of
damages, (ii) a notice of the contractor's appeal rights,
(iii) a statement that the letter was a final decision) was
not an appealable final decision.
Envirocon, Inc., the Board dismissed most of the contractor's claims for failure to comply with
the CDA's six-year statute of limitations and denied a claim for REA preparation costs because
the costs were incurred
in anticipation of litigation, not negotiations, and were unreasonably
high compared to the claimed amounts.
New Mexico University -- Roswell, a "name that tune"
case, the Board held that a contract for providing training
classes was neither an ID/IQ nor a requirements contract and,
therefore, dismissed the contractor's claim for an alleged
shortfall in expected students, but held that there was a
possibility the contractor could recover for claims involving
extra work, even if the Board was not quite sure what to call
Oil Trading Co., another decision involving contract
interpretation, the Board held, inter alia, that the
Government's inspection method did not substantially comply
with requirement of the "Quantity Determination"
clause of a fuel delivery contract, and the Government could
not present extrinsic evidence to interpret that unambiguous
Hunt Construction, Inc., the Board held that (i) high temperatures
encountered by a contractor in a building were contemplated by
the specifications and, therefore, were neither a constructive
change nor a Type I Differing Site Condition, and (ii) an
interpretation never advanced by the contractor before appeal
(and then not raised until the very last opportunity during
the appeal) was not entitled to any weight.
Electric, Inc., the Board held, inter alia, that seemingly
broad release language in bilateral modifications did not
operate as an accord and satisfaction of the contractor's
delay claims where the Contracting Officer had indicated such
claims would not be considered until the end of the contract.
couple of similar cases involving the same contractor, e.g.,
Inc., the Board held that, because a firm had not
undertaken any substantial performance of a unilateral purchase order
(which is an offer) before the delivery date passed, the offer lapsed before
a contract was ever formed.
Appeal of W.I.N.N. Group, Inc., the SBA's OHA affirmed
the Area Office's conclusion regarding the "present
effect rule" and held that: (i) two firms had not reached
an agreement in principle to merge as of the date of
submission of the original quote on a solicitation; and (ii)
the fact that the firms merged after that date did not affect
the original size determination for that procurement.
Department is amending the ITAR to update the policy toward Yemen
so that licenses or other approvals for exports or imports of defense articles and defense services
destined for or originating in Yemen will be reviewed, and may be issued, on
a case-by-case basis.
of Industry and Security (BIS) has amended the EAR's CCL to implement changes made to the Wassenaar Arrangement’s List of
Dual-Use Goods and Technologies
maintained and agreed to by governments participating in the Wassenaar Arrangement on Export
Controls for Conventional Arms and Dual-Use Goods and Technologies
at the December 2011 WA Plenary Meeting (the Plenary).
also has amended the EAR and CCL to implement the understandings reached at the June 2011
plenary meeting of the Australia Group
(AG), specifically by (i) revising the CCL entry in the EAR that
controls human and zoonotic pathogens and ‘‘toxins’’ and the entry that controls
genetic elements and genetically modified organisms to reflect changes to
the AG "List of Biological Agents for Export Control" that were made based
on the understandings adopted at the meeting and (ii) revising
the CCL entries in the EAR that control chemical manufacturing facilities and equipment,
and equipment capable of use in handling biological materials to reflect
the June 2011 AG plenary changes to the "Control List of Dual-Use Chemical
Manufacturing Facilities and Equipment and Related Technology and
Software" and the "Control List of Dual-Use Biological Equipment and Related
Technology and Software," respectively.
Case 2012-D015: DoD has published an interim rule amending
DFARS subpart 225.70 and the associated DFARS clauses at 252.212–7001 and
252.225–7012, in order to implement sections 368 and 821 of the National
Defense Authorization Act for Fiscal Year 2012 (Pub. L.
112–81), specifically (i) to require award of contracts that provide the best
value when acquiring tents and other temporary structures, regardless of
whether purchased by DoD or by another agency on behalf of
DoD, (ii) to reflect the amendment of 10 U.S.C. 2533a (the ‘‘Berry
Amendment’’) extending the restriction requiring the acquisition of domestic tents to include
the structural components of tents, applicable to acquisitions that exceed
the simplified acquisition threshold (although there is an exception for domestic
nonavailability (see DFARS 225.7002–2)); and (iv) to provide
(a) a definition of "structural component of a tent" and
(b) examples of the type of temporary structures covered by this
regulation. Comments are due by August 28.
Case 2011-D047: DoD has issued a final rule amending the
DFARS to clarify that DoD policies relating to the use of material containing
hexavalent chromium also apply to acquisitions involving commercial items.
Case 2012-D043: This final rule amends the DFARS to add the Czech Republic as
a "qualifying country."
Case 2011-D013: This final rule amends the DFARS (i) to address acquisitions using
competitive procedures in which only one offer is received and
(ii) to implement a DoD Better Buying Power initiative. The revisions to this rule are
part of DoD’s retrospective plan under Executive Order 13563 completed in
Case 2011-D052: This final rule amends the DFARS (i) to update the form used by
contractors to request shipping instructions and the associated contract
clause and clause prescription in order to cover both commercial and Government bills
of lading, and (ii) to relocate the coverage within the DFARS.
Case 2011-D027: Another final rule amends the DFARS to update policies on the
submission of payment requests and receiving reports in electronic format.
For the period beginning July
1, 2012, and ending on December 31, 2012, the prompt payment interest rate
is 1.75 % per annum.
Inc., a successful preaward protest, the Court of Federal
Claims held that (i) a group of potential bidders
(transportation service providers, i.e., carriers) had
standing to challenge the refund terms for lost or damaged
freight included in an annual rate solicitation issued by
DoD's Surface Deployment and Distribution Command; and (ii)
the challenged freight refund terms violated the Carmack
Amendment by potentially exposing carriers to essentially
duplicative charges that exceeded the statute's
DoD's Per Diem, Travel and
Transportation Allowance Committee has published Civilian Personnel Per Diem
Bulletin Number 283,
which is effective July 1 and 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
The VA has
issued an interim final rule to implement a portion of the Veterans Benefits, Health
Care, and Information Technology Act of 2006, which requires
the VA to verify
ownership and control of VOSBs, including SDVOSBs, in order for these firms to participate in
VA acquisitions set-aside for SDVOSB/VOSBs. The rule requires re-verification of
only every two years rather than annually. Comments are due by
OHA issued several size decisions:
Appeal of iGov Technologies, Inc., the OHA affirmed the Area Office's finding that
the protested firm did not violate the ostensible subcontractor rule even
though it would be procuring the majority of contract dollar value as
hardware from a subcontractor because the solicitation as a whole called for
more than production and was mainly for the provision of services.
In Size Appeal of Carntribe-Clement 8AJV # 1, LLC,
the OHA reversed the Area Office's finding that a firm was not
an eligible small business because the Area Office had
exceeded its jurisdiction in a size protest by improperly
conducting an analysis of the firm's compliance with 8(a)
requirements and because the Area Office had used the wrong
legal standard to find affiliation through negative control.
In Size Appeal of
Goel Services, Inc., and Grunley/Goel JVD LLC, the OHA
dismissed the SBA's petition for reconsideration
of the OHA's prior decision (in SIZ-5320) for lack of standing because
the SBA had not
appeared or participated in the prior appeal.
Support Services Joint Venture, an unsuccessful protest,
the Court of Federal Claims held that, although the incumbent
contractor had standing to protest (and the court had
jurisdiction to consider) the Government's decision to perform
the remainder of the contract in-house rather than exercising
further options, the plaintiff was not entitled to a
preliminary injunction because: (i) even absent an in-sourcing
decision, the Government could have decided not to exercise
the options; (ii) the plaintiff waited an inordinate amount of
time to file suit after learning of the Government's decision;
(iii) the plaintiff's allegation of an inadequate cost
comparison was unlikely to succeed on the merits.
Engineering Services, Inc., won its GAO protest because
the agency improperly conducted a second fire/burn test (not
contemplated by the solicitation) on the protester's proposed
system after the protester had taken substantial steps to
dismantle the system following the completion of the initial
As part of the President’s
export control reform initiative, the State Department's Directorate of Defense Trade Controls seeks public comment on the
proposed Export Reform Transition Plan for defense articles and defense services
that will transition from the jurisdiction of the Department of State to the
Department of Commerce. Comments are due by August 6.
with the above, the Commerce Department's Bureau of Industry
and Security has published a proposed rule that (i) addresses issues
pertaining to the transition of control
from the ITAR to the EAR of items the President determines no longer
warrant control under ITAR, once congressional notification requirements
and corresponding amendments to the ITAR and the EAR are
completed and (ii) complements the State Department's proposed
Export Control Transition Plan. Comments are due by August 6.
Department and the Bureau of Industry and Security have each
proposed a definition of the term "specially
designed" for use in the ITAR
and the EAR,
respectively. Comments on either proposed regulation are due
by August 3.
Network Services, Inc., the Court of Federal Claims held
that a contractor on a NAFI contract could recover its
attorneys' contingent fees incurred before the appeal of its
claim to the ASBCA. The reach of this holding is
difficult to predict because the court repeatedly refers to
the FAR cost principles, even though it notes the FAR is not
applicable to this contract.
Inc., after an extensive, fact-based analysis, the ASBCA
held that a contractor's executive compensation costs were
reasonable and allowable.
In Paradigm II, LLC, d/b/a JB Carpet &
Upholstery Care, the ASBCA denied a contractor's claims
for anticipated profits and unabsorbed overhead after the
Government failed to order as much work as the contractor had
anticipated, noting that, during the alleged period of delay
(i) the contractor could not prove it was ready, willing, and
able to perform because it had declined several delivery
orders; and (ii) the contractor had only one permanent
employee (its managing member) and, therefore, did not pay
employees to stand by.
Case 2011-D023: DoD has adopted as final, with changes, an interim rule amending the
DFARS to implement those sections of several National Defense Authorization Acts which
establish minimum processes and requirements for the selection,
accountability, training, equipping, and conduct of personnel performing private
security functions under DoD contracts.
Case 2012-D003: A final rule amends the DFARS to conform statutory titles throughout the
DFARS to the new Positive Law Codification of Title 41, United States
Code, "Public Contracts."
Case 2011-D055: A proposed rule would amend the DFARS to update and clarify requirements for
unique identification and valuation of items delivered under DoD contracts.
Comments are due by August 14.
Korea Limited, the Court of Federal Claims held that the
accrual suspension doctrine did not apply and that a protest
was time-barred by the six-year statute of limitations where
the plaintiff waited to protest even though it knew enough to
be, and was, very suspicious years earlier that the eventually
protested activities (obtaining an AAFES contract by means of
bribery) had occurred. The protester argued unsuccessfully
that its earlier suspicions would not have overcome the
presumption of regularity that is accorded actions of
government officials. I think the protester was correct; an
earlier protest based only on strong suspicions would likely
have been dismissed as speculative.
Department and the BIS have published another coordinated set
of proposed rules concerning revisions to the USML and the
CCL. Specifically, the State Department proposes to amend the
USML by revising Category
IX (military training equipment), inter alia, to make clear that it will no longer control all generic parts,
components, accessories, and attachments (currently captured in
paragraph (d) of the USML) that are in any way specifically designed or modified for a
defense article, regardless of their significance to maintaining a military
advantage for the United States. These items are to controlled
under the newly proposed new Export Control Classification Numbers (ECCNs) 0A614,
0B614, 0D614, and 0E614 in Category 0 of the CCL,
under a proposal being published separately today by the Department of
Commerce's BIS. Comments on either set of proposed rules are
due by July 30.
Transportation Systems, Inc., the ASBCA held that both the
"Pricing of Adjustments" and "No Waiver of
Sovereign Immunity" clauses in a contract between a private
firm and the Washington Metropolitan Area Transit Authority
precluded the recovery of interest on late payments.
Technology Corp., the Board held it lacked CDA
jurisdiction over a dispute involving a cooperative agreement
that did not meet the FAR definition of a contract.
The Office of Federal
Procurement Policy (OFPP) in the Office of Management and Budget (OMB) is
proposing to revise OMB
Circular A–131, Value Engineering (VE), to update and reinforce policies associated with the
consideration and use of VE in order to ensure that the Federal
Government has the capabilities to employ VE techniques to the maximum extent
appropriate. Comments are due by August 7.
LLP won its GAO protest because (i) during discussions,
the procuring agency misled it into believing resumes were
required for all proposed personnel for the life of the
contract; and (ii) there was no basis in the record for the
evaluators' conclusions concerning the cost realism of the
awardee's proposal, especially where its proposed cost savings
depended on replacing the staff members whose resumes had been
relied on by the evaluators for its higher technical rating.
Department has announced that April
13 was the effective date of the rule first published on
March 21 implementing the Treaty between the Government of the United States of America and the
Government of the United Kingdom of Great Britain and Northern Ireland
Concerning Defense Trade Cooperation (Treaty Doc. 110–7).
Department also proposes to amend the ITAR to revise Category
X (personal protective equipment and shelters) of the
Munitions List. Comments are due by July 23.
corollary of the above, the Commerce Department is proposing
to amend the
EAR (i) to describe how articles no longer warranting
control under Category X of the Munitions List would be controlled under the
CCL in new ECCNs 1A613, 1B613, 1D613, and 1E613; (ii) to
control military helmets (currently controlled under ECCNs 0A018 and
0A988) under new ECCN 1A613; (iii) to amend ECCN 1A005 for body
armor; and (iv) to remove machetes from ECCN 0A988. Comments
are due by July 23.
International, Ltd., the Court of Federal Claims tackled
the thorny statutory interpretation question of the effect of
the 2012 National Defense Authorization Act's (NDAA)
restoration of the previously sunsetted (sunset ? sunseted ?)
limitations on civilian agency protests of task order awards
and held that (i) the new statute does not apply retroactively
to divest the court of jurisdiction over a pending protest
filed after the prior sunset date but before the 2012 NDAA;
(ii) absent FASA's limitations on such protests, the Tucker
Act grants the court jurisdiction over protests of task
orders; (iii) the court has jurisdiction over a protest of
corrective action (the termination for convenience of the
protester's prior delivery order and reissuance of the
underlying solicitation) as a type of preaward protest; and
(iv) the reissuance of an amended solicitation to correct an
ambiguity in the original solicitation was reasonable, even if
the protester's winning price had been disclosed to other
offerors in the interim as required by the FAR.
The ASBCA published
Edwards & Assocs., the Board denied the Government's
motion to dismiss or, in the alternative, for summary judgment
because the contractor had raised triable issues of fact
concerning whether the Government's misrepresentation had
induced the contractor to release its breach claim as part of
a no-cost termination.
Construction Co., the Board held it had CDA jurisdiction
over a contractor's claim for a mistake in bid allegedly induced by the contracting agency's'
"confusion" in failing to designate clearly the applicable Davis-Bacon Ac t wage determination rate for structural
ironworkers on a building construction task order.
Services Group, Inc., the Board denied the contractor's
claim for decommissioning costs, sometimes referred to as unamortized and stranded
costs, arising from the closing of the contractor's
longstanding nuclear laundry facility in Hawaii, finding there
was no evidence of an implied-in-fact contract, especially
where there was an express contract covering the same subject
area, and concluding there was no basis under that
express contract for recovery on theories of failure to
disclose superior knowledge, breach of the covenant of good
faith and fair dealing, or equitable estoppel.
Systems Inc., the Board denied the contractor's motion for
summary judgment on the issue of entitlement to recovery based
upon a latent ambiguity because the contractor had not yet
proved it had relied on its interpretation in bidding.
The USDA is proposing to
amend the Guidelines for Designating
Biobased Products for Federal Procurement (Guidelines) to
designate the following 12 product categories within which biobased products would be
afforded federal procurement preference (and to delineate the
minimum biobased content requirements for each): agricultural spray
adjuvants; animal cleaning products; deodorants; dethatcher products; fuel
conditioners; leather, vinyl, and rubber care products; lotions and moisturizers;
shaving products; specialty precision cleaners and solvents; sun care
products; wastewater systems coatings; and water clarifying agents.
Comments are due by August 6.
updated the site to add the 2012
Procurement Review (through June 1) and to revise the
various internal links to take that addition into account.
States just finished the job of royally screwing FloorPro,
Inc. Originally, the firm was a small subcontractor on a
government contract, and it completed its modest work scope
satisfactorily. The prime and the Government then entered a
bilateral modification providing that the payment for
FloorPro's work would be made out in a hard copy check jointly
to the prime and sub to ensure FloorPro received the funds.
The Government's paying office promptly ignored the mod and
sent the funds electronically to the prime, which did not pay
the sub. FloorPro sought relief from the Government's
Contracting Officer and when that was denied, appealed at the
ASBCA, which eventually (four years later) found in FloorPro's
favor on a third party beneficiary theory. The Government
appealed, and (two years later) the CAFC reversed on the
grounds that the CDA did not provide the boards with such
jurisdiction, but noted in dicta that the Tucker Act's grant
of jurisdiction to the Court of Federal Claims was broader, so
FloorPro promptly filed suit in that court, which eventually also
held in its favor. Now, the CAFC reverses that decision, too,
on the grounds that FloorPro did not file suit at the CoFC
until more than six years after the Government had made the
erroneous payment. The procuring agency and the court system
both have so much to be proud of on this one.
dismissed an appeal by URS
Energy & Construction., Inc., for lack of jurisdiction
because its attempt at the required CDA claim certification
was defective in so many respects that it could not be cured.
DoD's Per Diem, Travel and
Transportation Allowance Committee has published Civilian Personnel Per Diem
282, which lists revisions to 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.
Technologies (as in Aldevra
Courier Service before it), the GAO sustained a protest
because the VA violated the Veterans Benefits, Health Care, and Information Technology Act of 2006
by conducting an FSS procurement (rather than setting the
acquisition aside for SDVOSBs) even though this time its own
market research showed at least 20 SDVOSBs could perform the
Note to VA--the GAO is not going to change its mind on this
Genomics Consortium, an unsuccessful preaward protest, the
Court of Federal Claims took pains to distinguish (and
limit the holding of) Distributed
Solutions in concluding that the plaintiff lacked standing
to protest an agency's decision to assign one of its prime
contractors the responsibility to procure certain services
needed to run an agency project. Judge Allegra wrote:
[Plaintiff] seeks to leave the impression that it was singled out
by [the agency] for ill-treatment – that the agency, faced with the choice of procuring the
. . . services itself or having [the prime contractor] do that task, chose the latter option as a way to get rid of plaintiff. Now,
Mark Twain once advised never to let the facts get in the way of a good story – but, here, the
facts really do get in the way.
lengthy opinion in The
Boeing Co. (which involves sponsored claims for indemnification for the costs of
the investigation and remediation of groundwater pollution and for the costs
of toxic tort litigation), the ASBCA denied (i) cross motions
for partial summary judgment (because there remain triable
issues with regard to the each) and (ii) a motion to strike
SBA's OHA has published several size decisions, four of
which involve the ostensible subcontractor rule.
Appeal of SM Resources Corp., the OHA upheld the Area Office's finding of
a violation of the ostensible subcontractor rule where the incumbent contractor
was the proposed subcontractor, the protested firm planned to employ many of
the incumbent's employees, including those for all key positions,
the incumbent initiated contact with the protested firm to
suggest joining forces for
current procurement, and the protested firm did not have significant past
experience in type of work required for solicitation.
Appeal of HX5, LLC, the OHA reversed the Area Office's finding
of a violation of the ostensible subcontractor rule because
the Area Office erroneously (i) made a determination that Appellant's
PM was an employee of its subcontractor, (ii) relied upon Appellant's
repeated references to its pending (not yet approved) mentor/protégé
agreement as indicia of undue reliance, and (iii) conducted its own
independent evaluation Appellant's past performance proposal
submission for the procurement, ignoring the RFP's evaluation criteria
and the evaluators' contrary conclusions.
Size Appeal of CymSTAR
Services, LLC, the OHA (i) held the Area Office was
correct in finding no violation of the ostensible subcontractor rule
and the nonmanufacturer rule where the protested firm prepared the
proposal, was the sole interface with the procuring agency, and
provided all key management personnel for the contract, and (ii)
rejected the protester's contention that the agency's response to one
bidders' question regarding prospects for ECPs was sufficient to
establish those ECPs would all be awarded and were the primary and
vital requirements of the contract.
Size Appeal of J.R.
Conkey & Assocs., Inc.,
the OHA upheld the Area Office's finding of no violation of
the ostensible subcontractor rule on a construction contract
where the prime was to be the sole contact with Government,
had significant relevant experience, was to perform a greater
percentage of work than alleged ostensible subcontractor, and
was clearly responsible for managing all of the contract work.
Appeal of AIS Engineering, Inc., the OHA held that the Area Office correctly found that
a firm's purchase of only some of the assets of a large business did not
invoke the successor-in-interest rule (and also noted that interdivisional transactions
are excluded from the calculation of receipts).
Appeal of Ceres Environmental Services, Inc., the OHA held the
Area Office had incorrectly conducted a size
determination in an unrestricted procurement on a firm that did not check
the box representing itself as small because the Area Office's
had improperly placed reliance on CCH data,
ORCA status information not available until after submission of the original priced
offer, and a self-certification on another procurement.
Appeal of Signal Ship Repair, LLC, the OHA held (i) the Area
Office correctly applied the adverse inference rule after the
protested firm twice ignored the Area Office's request to
provide information on the number of employees of affiliated
firms, and (ii) it was reasonable for the Area Office to base
its finding of affiliation on the protested firm's own
representation that one firm owned a majority interest in
In a VET
of H&H -- DMS Joint Venture,
the OHA agreed that a protest in an Army procurement alleging
only that the protested firm did not appear in the VetBiz
database had been properly dismissed as insufficiently
specific because there is no such requirement for non-VA
procurements, and the protest contained no other allegations.
the OHA decisions that I post on this website (as opposed to
linking to the decisions that still are hosted on the SBA's
website), I take the liberty of silently correcting the
occasional typo, e.g., a missing space between words. The
following two 8(a) BDP decisions (although written by
different judges, which suggests the problem is with the
proofreading system, rather than with an individual judge)
share a truly astounding number of typos--missing or
superfluous punctuation, misspelled words, including the names
of the SBA's own cases (e.g., "Bitetrearns" for
"Bitstreams" and ""Wococo" for
"Woroco"), random, wildly inconsistent citation
forms, etc. I have silently corrected what must have been many
more than one hundred such errors between the two documents,
and there are bound to be many more that I did not spot. The
upshot is that if you need the original text with all its
flaws, go to the SBA's
search page to link to the originals (since, under the
SBA's goofy new system, I cannot link you directly to the
originals). At any rate:
of Unicon, Inc.,
the OHA held the SBA had correctly denied admission to the
8(a) program on the basis that an individual of Iranian
heritage had not presented adequate proof that his business
opportunities had been impaired as a result of ethnic bias.
in Matter of
Forrester Developer, LLC, the OHA held the SBA was
correct in refusing to certify a business owner for the 8(a)
program because she did not present sufficient evidence to
establish her social disadvantage under 13 C.F.R. 124.103 due
to gender discrimination. (By the way, in what I
consider a delicious irony, this decision includes 18
citations to LEXIS even though to view it (and all other
recent decisions) from the SBA's website, you are redirected
to a Westlaw site.)
Design Builders (a protest in which the plaintiff won half
the battles but lost the war), the Court of Federal Claims
held (i) it lacked jurisdiction over a challenge to corrective
action involving a new OCI determination undertaken by the
agency as a result of a prior GAO protest because the
corrective action had been completed and favored the plaintiff
(even though the results were in the process of being
protested at the agency level by its competitors); (ii) a
protest against the agency's decision to reopen the
competition as corrective action recommended by the GAO is
ripe for review without requiring the protester to wait for
the results of the corrective action; (iii) the court does not
defer to the GAO on questions of law, e.g., interpretations of
solicitations; (iv) the GAO's interpretation of the price
evaluation scheme was irrational because it would result in
price evaluation that violated CICA's requirements; and (v)
the agency's decision to undertake corrective action based on
the GAO's finding of a flawed technical evaluation had a
Acadian, Inc., the court denied all of the contractor's
various claims for government damage to leased property, but
also held that the Government had not established that the
contractor had the required mental state to support the
Government's counterclaims for fraud under the FCA, the FFCA or the
antifraud provision of the CDA , i.e.,
"knowing" submission of fraudulent claims.
sustained a protest by Tipton
Textile Rental, Inc., on multiple grounds: (i) the
awardee's quotation failed to comply with a material
solicitation requirement; (ii) the evaluators failed to
consider the protester's responses to their queries during
discussions; and (iii) the agency improperly ignored the
awardee's checking of the "is not" a small business
box in this small business set aside. Concerning this last
subject, the agency stated it believed the awardee had checked
the box in error because the agency had found a very similarly
named small business listed in ORCA and because the agency's
experience was that checking the wrong box on the
standard solicitation representation form was a common
mistake. The GAO said it had looked at the form and found
nothing confusing about the layout of the standard form. To
the contrary, anybody who has ever had to complete that form
knows you have to do a double take to make sure which box to
check. The form should be revised to eliminate the possibility
of errors such as this one.
Inc., the Court of Federal Claims plows a lot of ground on
interesting jurisdictional and procedural issues in a dispute
over a government claim for excess reprocurement costs
following a default termination. First, the court finds it
lacks subject matter and ancillary jurisdiction over a bonding
company's claims in intervention that (a) the
plaintiff/defaulted contractor should be required (i) to pay
the bonding company any recovery by plaintiff to the extent of
the bonding company's bond losses and (ii) to pay into
court any remaining balance on plaintiff's affirmative recovery
to be held for the benefit of the bonding company as a set-off against any
potential award in a separate federal district court lawsuit
between the bonding company and the Government (over the
bonding company's refusal to be responsible for the excess
reprocurement costs during the contractor's challenge to the
underlying default termination at the PSBCA); and (b) the
court should issue a declaratory judgment that the claims alleged against
the bonding company by the Government in the district court
suit with respect to the alleged excess reprocurement costs are subject to setoff to the extent of any
affirmative recovery by the contractor in the Court of Federal
Claims action. Secondly, the court holds that the CDA's
statute of limitations with regard for claims for excess
reprocurement costs begins to run when the Government pays the
reprocurement contractor, not when the original default
termination is issued. Third, the court finds that, in this
case, the Government, nevertheless, lost its right to claim
excess reprocurement costs under the CDA because it
unreasonably delayed the reprocurement for four years as part
of a litigation strategy, when the delay increased the costs
of reprocurement. Admittedly, my head was spinning by the time
I reached this last holding, but, since the Government was
quite willing to reduce its reprocurement costs claim by the
amount of the escalation caused by the delay, I'm not sure I
understand the court's reasoning here.
Inc. -- Request for Costs, the GAO held that a successful
protester was entitled to recover its costs of filing and
pursuing its protest, including attorneys' fees billed to a
subcontractor who had supported the protest, as well as the
costs associated with pursuing the claim for costs at at the
GAO because the agency had unreasonably failed to pay the
original claim for costs.
has published several decisions, most of which are either
unusual or just plain entertaining to read.
Roedel, the Board, in a rare result, held that (i) an
enforceable oral agreement for a six-month contract without
the right of termination had come into existence (despite
denials from the Postal Service), and (ii) the Postal Service
had breached the contract by terminating it within a week of
its inception, entitling the contractor to the wages and
profit she would have earned in the full term.
K. McNew, the Board held that although a mail deliverer's
act of taking, and using, a discount coupon from undeliverable
mail addressed to a former resident only as
"Occupant" breached the contract and was an event of
default, the default was excused by the fact that this was a
common practice of employees of the post office in question.
(When I was a kid, the "everybody else is doing it"
excuse never worked with my parents.)
N. Colerick, the Board held that the Postal Service had
properly terminated contract under its "notice
termination" clause (which contemplated no-cost
terminations) and that the contractor was not entitled to
convenience termination costs because the contract did not
contain a termination for convenience clause, even though the
Postal Service had muddied the water by repeatedly referring
to such a clause in its communications with the contractor.
Restoration Partners LLC , the PSBCA dismissed an appeal
requesting an order from the Board directing the Postal
Service to restore a parking lot because the Board lacks
jurisdiction to order injunctive relief.
Case 2012-D025: DoD has issued an interim rule amending
the DFARS to implement the United States-Korea Free Trade Agreement.
Comments are due by July 23.
Case 2012-D032: Another interim rule implements the United
States—Colombia Trade Promotion Agreement, a free trade
agreement that provides for mutually non-discriminatory treatment of eligible
products and services from Columbia. Comments are due by July
Case 2012-D034: This interim rule implements the requirements of
the Treaty Between the Government of the United States of America and the
Government of the United Kingdom of Great Britain and Northern Ireland
Concerning Defense Trade Cooperation (the Treaty) and the Security
Cooperation Act of 2010 regarding export control regulations between the
United States and the United Kingdom, which, together, establish an
Approved Community that includes members of the U.S. Government and
the Government of the United Kingdom. Comments are due by July
Case 2012-D023: This final rule amends the DFARS to implement the requirement
in the National Defense Authorization Act for Fiscal Year 2012 to report to the
congressional defense committees before issuing a waiver of the
prohibition on acquisition of United States Munitions List items from
Communist Chinese military companies.
Case 2012-D014: This final rule amends the DFARS to require additional planning,
monitoring, and executing activities for contract closeouts when the contracts are awarded for performance in
Case 2012-D002: This final rule amends the DFARS to establish an order for
application of contract modifications to resolve any potential conflicts that may
arise from multiple modifications with the same effective date.
Case 2011-D046: This final rule, implements (with change)
the prior interim rule amending the DFARS 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 shall comply with
the Buy American statute, subject to the exceptions provided in the Trade
Agreements Act of 1979 or otherwise provided by law.
Commerce Department's Bureau
of Industry and Security (BIS) is proposing (i) to
delineate how auxiliary and miscellaneous military equipment and
related articles the President determines no longer warrant control under
Category XIII (Auxiliary Military Equipment) of the United States
Munitions List (USML) would be controlled under the Commerce Control
List (CCL) in new Export Control Classification Numbers (ECCNs) 0A617,
0B617, 0C617, 0D617, and 0E617 as part of the proposed new
"600 series" of ECCNs; (ii) to integrate into these five new ECCNs
those items within the scope of Wassenaar Arrangement Munitions List
(WAML) Category 17 that would be removed from the USML, or that are not specifically identified on
the USML or CCL but that are currently subject to USML
jurisdiction; and (iii) to control some items now classified under ECCNs 0A018,
0A918 and 0E018 under new ECCNs 0A617 and 0E617, in order to consolidate
auxiliary and miscellaneous military equipment and related articles on the
CCL in the proposed new "600 series." Comments are
due by July 2.
Department proposes to amend the ITAR to revise Category
XIII (materials and miscellaneous articles) of the USML to describe more precisely the
materials warranting control on the USML. Comments are due by
Case 2011-019: A proposed FAR revision would remove
references to specific paragraphs in superseded Financial
Accounting Standard 106 from FAR 31.205-6 (Compensation
for Personal Services) because they are obsolete. Comments are
due by July 16.
The SBA is
proposing extensive revisions to its regulations at 13 C.F.R.
Parts 121 and 124-127 to reflect the provisions of the Small
Business Jobs Act of 2010 that concern multiple-award
schedule contracts (and orders placed against such
contracts) and the consolidation of contracts, including
proposed revisions to the following sections (among many
others): 121.103 (how the SBA determines affiliation); 121.402
(what size standards are applicable to federal procurements);
121.404 (the date the size of a business concern is
determined); 121.1001 (who may initiate a size protest);
121.1004 (the time limits for filing size protests); 121.1103
(the procedures for NAICS or size standard designations); and
125.1 (definitions governing SBA's government contracting
programs). Comments are due by July 16.
has issued corrections
to several errors in its previously published rule concerning
8(a) business development/small disadvantaged business status
determinations at 13 C.F.R. Part 124.
to implement provisions of the National Defense Authorization Act for Fiscal
Year 2012, the SBA is proposing to amend its regulations governing size
and eligibility for the Small Business Innovation Research (SBIR) and Small
Business Technology Transfer (STTR) Programs by
addressing ownership, control and affiliation for program
participants, including those that are majority owned by multiple
venture capital operating companies, private equity firms, or hedge funds.
Comments are due by July 16.
Inc., the Court of Federal Claims held it had jurisdiction
under 28 U.S.C. 1491(b)(1) over a post-award protest
involving a "request for application" issued by OSHA
under which successful applicants would be awarded
nonfinancial cooperative agreements to provide online OSHA Outreach Training Program
courses. The court noted as follows:
[T]he Court recognizes that not all cooperative agreements are procurements under
the Tucker Act. Where an agency, pursuant to a statutory directive, is distributing funds or
providing assistance to service providers to ensure a service’s availability, it is not conducting a
procurement. However, where an agency has a statutory mandate to provide a service, and the
agency decides to use a cooperative agreement to obtain the provision of that service, that agency
has engaged in a procurement process under the Tucker Act and this Court has jurisdiction over
protests in connection with that process.
OHA published two size decisions.
Appeal of Hardie's Fruit & Vegetable Company South, LP
(the latest decision in the epic battle between that firm and
M&S Foods Co.), the OHA vacated the Area Office's
determination and remanded the case for further analysis
because (i) it was not clear which NAICS codes were used for
the procurements, which in turn, might have affected which
protest allegations the Area Office should have considered;
and (ii) the Area Office improperly applied the simplified
acquisition exemption to its analysis of the
Appeal of RGB Group, Inc., the OHA upheld the Area Office's finding of
affiliation through identity of interest with no clear fracture
between a husband and wife who had numerous ties to one another in
operation of various firms.
published an interim final rule to establish a voluntary cyber
security information sharing program between DoD and eligible
Defense Industrial Base companies in order to enhance participants’
capabilities to safeguard DoD information that resides on, or transits,
unclassified information systems. Comments are due by July 10.
Acquisition Circular (FAC) 2005-59 has been published and
includes the following three items:
Case 2012-013 (Prohibition on Contracting With Inverted
Domestic Corporations): An interim rule amends the FAR to implement a section of the Consolidated
Appropriations Act, 2012, which prohibits the award of contracts using
appropriated funds to any foreign incorporated entity that is treated as an
inverted domestic corporation or to any subsidiary of such an entity.
Comments are due by July 9.
Case 2012-012 (Free Trade Agreement--Columbia): Effective
May 15, another interim rule amends the FAR to implement the United States-Colombia
Trade Promotion Agreement, which provides for mutually non-discriminatory treatment of eligible
products and services from Colombia. Comments are due by July
Case 2012-003 (Revision of Cost Accounting Standards
Threshold): A final rule amends the FAR to revise the threshold for
the applicability of cost accounting standards (by
substituting "$700,000" for "$650,000" in
several FAR sections and clauses) in order to implement a recent rule of the Cost
Accounting Standards Board and statutory requirements.
Restoration, LLC, the CBCA dismissed an appeal for lack of
jurisdiction because the appellant did not have a contract
with the agency and appeared to have been only a
subcontractor, with no right of direct appeal.
Corp., a post-award protest, although the Court of Federal
Claims could not determine which party's interpretation of
test data (concerning whether or not a test vehicle improperly
stalled) was correct, it denied the protest because (i) the
agency had thoroughly analyzed the data as part of a rational
evaluation of the relevant factors (and the court was not in a
position to substitute its judgment for that of the agency's
evaluators); and (ii) the solicitation did not require
offerors to build and test an actual production vehicle, but
only to present test data from similar vehicles to the one it
planned to provide, which would be predictive, rather than
Industrial Facilities Resources, Inc., the court held that an RFQ
and the proposed award of the resulting task order were
unobjectionable because they did not exceed the scope of the
underlying ID/IQ contracts.
Brown & Root Services, Inc., the Court of Federal
Claims ruled on a very complex factual situation involving the
contractor's burden of proving the reasonableness of its
claimed costs in connection with a contract to provide dining
facility services to troops in Iraq, in a situation that was
further complicated by the fact that two of the contractor's
managerial employees accepted kickbacks from a subcontractor,
which, in turn, resulted in government counterclaims for (i)
violations of Anti-Kickback Act and (ii) common law fraud
(with the court ultimately deciding that the contractor was
liable only for the return of the amount of the kickbacks
accepted by those employees).
Solutions, Inc. and STR, L.L.C. (after the CAFC reversed
the Court of Federal Claims' prior decision that it did not
have jurisdiction over this type of protest), the Court of
Federal Claims held that the procuring agency had not provided
a rational basis for switching from proposed direct
procurements of two types of software to having its prime
contractor to procure the software.
Forest Products, the plaintiff argued (unsuccessfully, in
both cases) that (i) its timber logging contracts came into
existence at the time bids were opened and its bid was
declared to be the best bid (as opposed to when the Government
later signed the contracts), and (ii) its logging operations
were compensably delayed by contingencies that the
solicitation and contract documents clearly stated might
Inc., the ASBCA denied both parties' delay claims against
the other because neither party presented evidence (i)
concerning concurrent delay or (ii) segregating its own and
its opponent's delays.
denied an appeal by Hartman
Walsh Painting Co. because, in connection with its
misrepresentation claim, the contractor failed to prove that
the Government made an erroneous representation of material
International, Inc., the ASBCA held it had jurisdiction
over the contractor's appeal from a government finding of
noncompliance with CAS 403 even though there was no allegation
of a monetary impact due to the alleged noncompliance.
Environmental Hydrology and Engineering, Inc., the ASBCA
dismissed an appeal not filed at the Board within 90 days of
receipt of the Contracting Officer's decision (the contractor,
without the assistance of counsel, had initially appealed to
the wrong forum).
In Size Appeal of
Bosco Constructors, Inc., the SBA's OHA held that, even though
the Area Office erroneously concluded that the protester had
been eliminated from the competition (and lacked standing),
the appeal should be dismissed as moot because the agency was
in the process of making a new award decision, which might
result in an award to a different firm from the one whose size
had been protested.
Commerce Department's Bureau of Industry and Security (BIS)
has published a proposed
rule (i) describing how energetic materials and related articles that the President
determines no longer warrant control under Category V (Explosives and
Energetic Materials, Propellants, Incendiary Agents and Their Constituents) of the United States
Munitions List (USML) would be controlled under the Commerce Control
List (CCL) in new Export Control Classification Numbers (ECCNs) 1B608,
1C608, 1D608, and 1E608; (ii) controlling (under ECCN 1C111) some of
the aluminum powder and hydrazine and derivatives thereof that are now
controlled under Category V of the USML; (iii) placing control equipment for the
"production" of explosives and solid propellants, currently controlled under ECCN
1B018.a, and related "software," currently controlled under ECCN
1D018, under new ECCNs 1B608 and 1D608, respectively; and (iv)
placing commercial charges and devices containing energetic materials, which
are currently controlled under ECCN 1C018, under new ECCN 1C608.
Comments are due by June 18.
Case 2011-028: A proposed
rule would amend the FAR to implement Executive Order
13495 and the related DOL regulations concerning the nondisplacement
of qualified workers on successor service contracts.
Comments are due by July 2.
Terrace Limited Partnership, a
nonprecedential decision, the Court of Appeals for the Federal
the case to the CoFC for a recalculation of a lost profit
award following a breach because the lower court had not
subtracted the costs saved by reason of the breach.
June 1, the State Department is amending section
123.17 of the ITAR, inter alia, (i) to add an exemption for the temporary export of
chemical agent protective gear for personal use; (ii) to
revise the exemption for body armor to also cover helmets when they are included with the body
armor; and (iii) to clarify the exemption for firearms and
ammunition by removing certain extraneous language that does not change the meaning of the
Department also is proposing to amend the ITAR in order to
V (explosives and energetic materials, propellants, incendiary agents, and their
constituents) of the U.S. Munitions List to describe more precisely the
articles warranting control thereunder. Comments are due by
Department of Agriculture is proposing extensive amendments to
nine sections of 7 C.F.R. Part 3201: "Guidelines for
Designating Biobased Products for Federal Procurement."
Comments are due by July 2.
Chicago Ridge, LLC, the Court of Federal Claims (i) upheld
the Government's default termination of a building lease due
to numerous, longstanding water leak problems even though the
Government failed to strictly comply with lease's cure period
requirements because the contractor indicated it could not
have fixed all the leaks within the full cure period, but (ii)
denied the Government's claims for relocation costs (because
the Government failed to meet its burden of proof to show
which of those costs were necessary) and excess reprocurement
costs of substitute rental space (because the Government's
witness failed to compare the relocated space with the
original space to establish they were similar).
Solutions, LLC, the Government cancelled an 8(a) set-aside
solicitation and awarded a task order to a firm under its
already existing ID/IQ contract as a bridge to tide the
Government over until it could issue a new solicitation.
BayFirst protested that task order (and the cancellation of
the original solicitation) because BayFirst claimed that
transferring the incumbent's employees to the bridge
contractor during the interim period would deprive BayFirst of
the advantage it would have had bidding on the original
solicitation since it had planned to offer to use the
incumbent's employees (by utilizing the incumbent as its
subcontractor). Although the court found it had jurisdiction
over significant portions of the protest, which were not
affected by the limits on task order protests, the court
denied the protest because BayFirst failed to prove that the
cancellation was unfair or unjustified or that the task order
was beyond the scope of the ID/IQ contract. (BayFirst had won
an earlier protest on this competition; see January 14
S Consulting, the court held that (i) the protester lacked
standing to challenge the original contract award because it
was not a qualified offeror and (ii) the alleged actions of a
government employee (who was not authorized to enter into
government contracts) in facilitating agreements between
private parties to complete work on a cancelled contract were
not within the court's bid protest jurisdiction.
Painting Co., the ASBCA granted the Government's motion
for summary judgment and rejected the contractor's claim for
Differing Site Conditions because (i) the contractor had
failed to conduct a pre-award site visit; (ii) the conditions
encountered by the contractor were visible (neither subsurface
nor latent); and (iii) the contract required the contractor to
deal with conditions of that type.
Tube Fabricators, Inc., the Court of Federal Claims
granted the protester's motion to supplement the
administrative record by deposing the Contracting Officer
(whose declaration had already been filed by the Government)
and by filing declarations of its own relating to a simplified
acquisition procurement under FAR Part 13 because of gaps in
the record attributable to the informal procedures used in the
upheld the default termination of a roadway vegetation
maintenance contract held by D&M
Grading, Inc., because the conditions encountered by
contractor (which it claimed excused its failure to complete
the work) did not amount to either a Type I or Type II
Differing Site Condition.
also granted in part a motion for reconsideration by Bannum,
Inc., of a prior
decision (which had dismissed its claim as time barred)
because the contractor had complained of many acts by the
Government that occurred more recently than six years in the
Mechanical, Inc., the ASBCA dismissed an appeal for lack
of CDA jurisdiction because (i) the contractor's termination
for convenience settlement proposal was not a claim despite
the fact that contractor had labeled it as such, and
(ii) a government request for additional documentation before
completing its audit of the proposal did not signify an
impasse over it.
Apparel, LLC, the ASBCA denied an appeal because one
statement in a footnote to a solicitation for an indefinite
quantity contract to supply parkas regarding the percentage of
each size parka the Government "anticipated"
ordering was not a guarantee that the Government would order
those percentages, especially when read in connection with
numerous other solicitation provisions indicating the amounts
to be ordered were uncertain.
Appeal of Williams Adley & Company -- DC, LLP, the
SBA's OHA upheld the Area Office's use (in a size
determination) of a firm's most recent tax return, which had
not been filed until after the firm's self-certification but
which was available at the time of the SBA's size
won another GAO protest because, once again, the VA failed to
consider whether an acquisition should be set aside for
SDVOSBs before proceeding with FSS requirements. Why does this
remind me of Jeff Probst's signature redundancy: "Once
again, immunity is back up for grabs"?
Global Services, Inc., the Court of Appeals for the
Federal Circuit affirmed an ASBCA decision dismissing an
appeal for lack of CDA jurisdiction because a prime
contractor's request for payment of its subcontractor's
overhead and G&A costs (at a rate specified in the
subcontract) submitted two years after a termination for
convenience was "routine" and, therefore, not a
claim within the meaning of the CDA. It's hard to argue with
the court's reasoning, but read the dissent to get a feel for
the frustration (shared by many in the government contracting
community) with the procedural hassles still being engendered
by a statute that was intended to be much simpler in its
application than it has turned out to be.
elliptical, qualified, and verbose opinion, the Court of
Federal Claims held that Triad
Logistics Services Corp., the incumbent contractor, lacked
standing to challenge the DoD's insourcing decision because
its contract had been completed before it filed its second
complaint. The protester had begun challenging the DoD's
decision at the GAO before its contract expired and filed its
first complaint in the court the day the contract expired,
after which the court dismissed that complaint without
prejudice because the agency voluntarily undertook corrective
action, which the plaintiff promptly challenged when it
learned of the results. Because the timing of the second
complaint was dictated by the actions of the Government, the court's
reasoning is suspect.
Department announced that on April 13, 2012, (i) the treaty between the
United States, Great Britain, and Northern Ireland concerning defense
trade cooperation (Treaty Doc. 110–7) came into force;
and (ii) the rule previously announced at 77 Fed. Reg. 16592 implementing the
treaty and making other updates to the ITAR (see March
22 entry below) became effective.
Acquisition Circular (FAC) 2005-58
has been published and includes the following three items
(plus technical amendments):
Case 2010-004 (Biobased Procurements): Effective May 18, a
final rule amends the FAR to implement changes (due to the Farm
Security and Rural Investment Act) that require contractors to report the
biobased products purchased under service and construction
contracts, which will enable agencies to monitor compliance with the
federal preference for purchasing biobased products.
Case 2010-018 (Representation Regarding Export of
Sensitive Technology to Iran): Effective May 18, a final rule
adopts, with changes, the prior interim rule amending 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.
Case 2009-038 (Justification and Approval of Sole-Source
8(a) Contracts): A final rule adopts (without change) the
prior interim rule amending the FAR to implement a section of the National
Defense Authorization Act for Fiscal Year 2010, which requires the
head of an agency to execute (and make public prior to award) the justification
for an 8(a) sole-source contract in an amount exceeding $20
The VA is
proposing to amend its acquisition regulations to require contractors to submit
in electronic format. Comments are due by June 18.
May 17, the State Department is amending the ITAR to to remove
references to the International Import
Certificate (Form BIS–645P/ATF–4522/DSP–53), which
will end the Department’s current practice of accepting DSP–53
submissions. Instead, the DSP–61 is to be used by importers when necessary.
Commerce Department's Bureau of Industry and Security (BIS) proposes to
amend the Export Administration Regulations (EAR) (i) by adding a
requirement for persons shipping under Authorization Validated End-User
(Authorization VEU) to send written notice of such shipments to the recipient
VEU and (ii) to clarify that when items subject to item-specific conditions under Authorization
VEU no longer require a license for export or reexport or become eligible for
shipment under a license exception, as set forth in the EAR, VEUs are no longer
bound by the conditions associated with such items. Comments
are due by June 18.
Consulting, Engineering, LLC, won its post-award protest
at the Court of Federal Claims because the agency's evaluators
irrationally supplied required information missing from the
awardee's proposal by assuming that the experience of the
awardee's proposed employees was consistent with the
evaluators' knowledge of the length of typical agency tours of
court found a post-award protest by Contract
Services, Inc., untimely because, prior to submitting its
proposal, the protester had not objected to a solicitation
requirement that it appear on the list of HUBZone certified
firms at the time of proposal submission, even though it had
been aware it was not on the list and had asked the SBA to
speed up the process of including its name.
published several decisions.
Horton's Moving Service, Inc., the Board denied the
Government's motion to dismiss for lack of CDA jurisdiction
and held that a claim for breach of a transportation
services contract when no services have been provided (as
opposed to a claim for monies due once services under such an
agreement have been provided) is governed by the CDA rather
than section 3726 of the Transportation Act.
Ltd., the Board held that a reminder letter sent by the
contractor three months after its submission of the original
REAs to the Contracting Officer converted those REAs into
claims filed within the CDA's six-year statute of limitations.
Brown & Root Services, Inc., the Board denied both
parties' dispositive motions because there remained material
issues of fact even after the Board concluded that the
contract contained no categorical prohibition on the use of armed private security
companies (without the express permission of the Theater
Commander) to supplement the government force protection where necessary to accomplish the logistical support mission.
Systems, Inc., the Board denied the contractor's motion
for reconsideration of the Board's prior
decision disallowing (i) deferred IR&D costs and (ii)
a large bonus which the Board had concluded was a distribution
published two decisions.
Denver, LLC, the Board denied the Government's motion to
dismiss for lack of CDA jurisdiction because the fact that the
real estate tax assessment in dispute was under appeal to the
taxing authority (and, therefore, ultimately might be reduced)
did not change the fact that the contractor had claimed a
definite amount as a sum certain in its claim.
Enterprises, the Board upheld a default termination after a
contract had been reinstated following an earlier default because there
was no reasonable prospect the contractor could meet newly agreed upon
completion date and because the contractor had not shown performance was
impossible due to an allegedly defective spec.
Commerce Department's Bureau of Industry and Security (BIS)
has published a final rule amending the Export Administration
Regulations (EAR) by adding a new a new Export Control Classification Number (ECCN) series,
to the CCL to cover items that warrant control
on the CCL but are not yet identified in an existing ECCN.
published two decisions sustaining protests by The Emergence
Group on the same solicitation. In the
first, the GAO found that the agency (i) did not
meaningfully evaluate the relevance of prior contracts in the
past performance evaluation and (ii) did not evaluate the
protester's proposal consistently with evaluation of other
offeror's proposals. Dissatisfied with the results of the
corrective action undertaken by the agency in response to the
first protest, the protester filed a
supplemental protest against the revised past performance
evaluation, which the GAO subsequently found to be
unreasonable and not in accordance with the solicitation's
sustained a protest by DNO,
Inc., because the procuring agency did not properly
investigate whether the solicitation should have been set
aside for small businesses.
Enterprise Services, LLC, a successful post-award protest,
the Court of Federal Claims held that the agency wrongfully
awarded a contract to a higher-priced offeror on the basis of
an unstated evaluation criterion improperly used to disqualify
the protester's proposal.
has published several decisions.
Intercontinental, Inc. lost on every one of its many
construction contract claims because (i) the Government did
not warrant that infrastructure would be in place at the
construction site; (ii) the contract included only a
performance specification and placed the onus of performing a
site investigation and the risk of a faulty design on the
contractor; (iii) changes in contractor's design for a
perimeter wall were its own responsibility; and (iv) the
contractor failed to give proper notice to the Contracting
Officer concerning its claim for constructive acceleration and
did not receive directions to accelerate from the Contracting
Inc., the CBCA upheld both (i) a termination for cause of
a commercial items contract on the basis of late delivery
(despite the lack of cure notice) because the contractor
failed to meet numerous schedules and reported it could not
timely meet other contract requirements, and (ii) the
Government's subsequent assessment of excess reprocurement
costs because the Government showed (a) the reprocured supplies or services
were the same as or similar to those involved in the termination;
(b) the Government actually incurred excess costs; and (c) the Government
acted reasonably to minimize excess costs.
Timber Harvester, Inc., which involved primarily issues of
contract interpretation, the CBCA denied the Government's
claim for allegedly uncut timber under a scaled salvage timber
sale contract because the Government did not prove that any
remaining timber met the contract's utilization standards, as
defined by its sawtimber and merchantability descriptions.
Carrington Group, Inc., the CBCA concluded that a contract
stating it was an indefinite delivery/indefinite quantity
contract, but lacking any minimum quantity, was defective and
that, therefore, the contractor was entitled "only to the compensation agreed upon in
the contract attributable to the work performed, with the reasonable value of the work
measured by the contract prices." The Board also denied
the contractor's claim submitted long after the conclusion of
contract performance for services not listed in contract
schedule absent proof Government actually ordered the
services. My favorite part of the decision, however, is the
following lament by the Board:
The terms of this contract, Carrington’s performance and billing, and the VA’s
administration and payments were presented to the Board in a jumble of facts with notable
gaps that took significant time to unravel. The VA appears to have used numbers for funding
mechanisms and obligations interchangeably with contract numbers, making the tracking of
payments, contracts, and obligations very difficult to sort out. Whatever system the VA had
was understood, at best, only by the VA, or, possibly, not at all. The confusion caused by
funding issues complicated what should have been a very simple procurement.
construing the board filings by the pro se claimant liberally,
the CBCA denied
various payment, termination, and harassment claims by House
of Joy Transitional Programs as entirely unsupported.
Case 2011-D056: DoD is proposing an extensive set of
changes to many parts of the the DFARS in order (i) to clarify
the clauses required in commercial item contracts and the
flowdowns applicable to subcontracts under such contracts and
(ii) to simplify the prescriptions for such clauses. Comments
are due by June 4.
Inc., the ASBCA denied the Government's motion to dismiss
a claim for lack of jurisdiction and held that the contractor
took sufficient steps under 11 U.S.C. 1123 to preserve its
claim in bankruptcy by adequately disclosing the claim in its
reorganization plan and disclosure statement.
Co., the Court of Federal Claims held that the CDA's
six-year statute of limitations barred a Contracting Officer's
decision on a government claim issued ten years after
the advance agreement on allowable costs that the decision
purported to challenge and that (i) the continuing
claims doctrine, (ii) equitable tolling under the FAR
"Credits" clause, and (iii) the accrual suspension
doctrine did not apply in this situation. The Government's
claim had been based on an audit conducted after the
expiration of the six-year period, apparently motivated by
criticism of the original audit conducted within that
Reilly, the court held that a bid protest filed more than
nine months after the plaintiff learned of the facts forming
the basis of the protest was barred by the doctrine of laches.
Electronic On-Ramp, Inc., a successful pre-award protest,
the plaintiff convinced the court that the Government's
rejection of a proposal as late was unreasonable because the
electronic copy had been delivered on time and the only
problem with delivery of the hard copy was the Government's
delay after the plaintiff's courier made it to the security
checkpoint on time.
Appeal of Ma-Chis Lower Creek Indian Tribe Enterprises, Inc.,
the SBA's OHA held that a firm lacked standing to appeal
statements about its own size included in another firm's size
determination (but was free to raise those issues if its own
size were ever challenged).
Case 2012-D018: Effective April 30, the DFARS is being
amended to reduce the threshold for DoD peer reviews of noncompetitive
contracts from the current level of $1 billion to $500 million.
Case 2012-D016: An interim rule amends the DFARS to implement a section of the
National Defense Authorization Act for Fiscal Year 2012, which requires that the
statutory limitation on the acquisition of right-hand drive passenger sedans be
included on the list of dollar thresholds subject to inflation adjustment.
Comments are due by May 29.
Case 2011-D048: A final rule amends the DFARS to separate provisions and clauses that are currently
combined in order to comply with DFARS drafting conventions
concerning the distinction between (i) solicitation provisions
that are not part of the resulting contract and (ii) contract
Case 2012-D020: A final rule amends the DFARS to remove a congressional notification
requirement for single source task-order or delivery-order contract awards over
technical amendment to the DFARS adds a section 203.806 to
provide an address for reporting suspected
The Guzar Mirbachakot Transportation
protest is an example of the closer review a protester may
receive at the Court of Federal Claims as opposed to the GAO.
In this case, the GAO had dismissed a protest based on (i) the
agency's assertion that the solicitation prohibited the
submission of proposals via "zip" files and (ii) a
message sent to by the agency's contract specialist to the
protester just a few hours before the proposal deadline
stating that such files were prohibited. The Court of Federal
Claims, however, allowed expert testimony and determined (i)
that the solicitation contained a latent ambiguity on the
issue, (ii) that the protester's interpretation was
reasonable, and (iii) that the last-minute email from the
contract specialist was not enough to change the court's
opinion, especially because the agency had waived other
responsiveness requirements for other offerors. Of course, a
protest at the court is generally much more expensive than one
at the GAO, but you get what you pay for.
of Federal Claims held that, pursuant to 10
it lacked subject matter jurisdiction over a protest filed by Mission
Essential Personnel, LLC against corrective action
undertaken by the agency as a result of a prior GAO protest
because Mission Essential's complaint was filed "in
connection with" the issuance of a task order.
CBCA did not buy National
Fruit Product Co.'s arguments that its late deliveries
were excused by a stinkbug outbreak, but concluded the
Government had vastly overstated the amount of liquidated
damages that were due. The contractor and the Government each
interpreted the liquidated damages provision in an equally
preposterous manner: the contractor claimed only $33.53 were
due, and the Government had assessed more than $500,000. The
Board concluded that the proper interpretation of the clause
resulted in an assessment of $9,650.
sustained a protest by Y&K
Maintenance, Inc., because the agency did not evaluate the
protester's key personnel in accordance with the
solicitation's stated evaluation criteria.
April 26, NASA is adopting, without change, a final rule amending the
FAR Supplement (NFS) to update the "Award Fee for Service Contracts" clause
(NFS 1852.216–76) in order to clarify that the amount of award fee held in reserve, if
any, shall not exceed $100,000 for the contract, and add similar language to
the "Award Fee for End-Item Contracts" clause (NFS 1852.216–77)
to allow the Contracting Officer to hold in reserve fee
payments at a not-to-exceed amount of $100,000 in order to protect the Government’s interests
relative to an orderly and timely closeout of the contract.
Inc., a bid protest based on the plaintiff's disagreement
with a NAICS decision
by the SBA's OHA, the Court of Federal Claims, like the OHA
before it, upheld the Contracting Officer's choice of NAICS
code 621111 (Physician's Services) as opposed to 622110 for
the solicitation at issue.
Landscaping, Inc., the ASBCA denied an EAJA application,
in part because the Government's litigation position, though
incorrect, was substantially justified and also because it was
the Board, on its own initiative, which had to search the
record to come up with evidence to support one of the
contractor's original claims.
In Weigel Hochdrucktechnik
GmbH & Co. KG, which involved a contract performed in
Spain, the ASBCA (i) held that the Government had failed to
prove that the water testing it required the contractor to
perform was required by either the contract or Spanish law and
(ii) denied the contractor's claim for waterproofing certain
containers because the Government merely acquiesced in
contractor's (ultimately unsuccessful) suggested method for
doing so, without waiving the contract requirement that they
corrections have been issued to the original Federal Register
pages (see March 2 entry below) concerning the changes
to FAR Part 52 related to FAR
Case 2010-015 (Women-Owned Small Business (WOSB) Program)
Case 2011-030 (New Designated Country (Armenia) and other
Trade Agreements Updates).
Appeal of Hummingbird Solutions, the SBA's OHA
dismissed, as untimely, a NAICS appeal filed more than 10 days
after issuance of the solicitation.
fixed quite a few broken links to Federal Circuit decisions
(and have corrected a few additional citations) on the Winstar
Courier Service, Inc., the GAO held that the VA violated
the requirement of the Veterans Benefits, Health Care, and Information Technology Act of 2006
by issuing an FSS acquisition without having first determined
whether two or more SDVOSBs could meet the agency's
requirements at a reasonable price.
Harbor Development Partners, LLC, the Court of Federal
Claims held that the protester lacked standing because its
complaint (that a lease should be terminated to allow the
procuring agency to complete corrective action in response to
a prior protest without possible bias towards the current
awardee in the reevaluation) was purely speculative.
Consulting Engineering LLC, the court included a good
discussion of the standards for permitting supplementation of
the administrative record and (tongue-in-cheek, I hope, since
it works so well on that level) responded to the plaintiff's
proffer of a set of procurement regulations:
Defendant is correct that Army regulations are legal authorities and not a matter for
supplementation. They can be cited as authorities in plaintiff’s brief, and the court will
regard them as authorities in support of plaintiff’s moving brief. The court is grateful
nonetheless that plaintiff provided the court with a copy of the 700 pages of regulations.
the effective date to be announced in the future, the State
Department has issued a final rule that will (i) amend the
ITAR to implement the Defense Trade Cooperation Treaty
between the United States and the United Kingdom and (ii) identify
(via a supplement) the defense articles and defense services that may not be
exported pursuant to the Treaty.
sustained a protest by Sea
Box, Inc., and held that (i) the failure of the
protester's quotation in response to an RFQ to include the
90-day acceptance period stated in the solicitation did not
render it unacceptable because quotations are not offers, and
(ii) the awardee's failure to comply with the RFQ's
requirements to submit technical information concerning its
quotation meant the record did not support the agency's
decision that its quotation was acceptable.
Appeal of Fuel Cell Energy, Inc., the SBA's OHA held
that (i) the Area Office correctly dismissed a protest as
insufficiently specific, and (ii) allegations regarding an
alleged violation of the ostensible subcontractor rule raised
for first time on appeal would not be considered.
of RUSH-LINK ONE Joint Venture, the OHA upheld the
determination that the protested firm was not a properly
constituted SDVOSB joint venture because (i) the SDV did not
(a) own and control the SDVOSB member (having received
commercially irregular loans from the minority owners) or (b)
control the board of directors of the joint venture; and (ii)
the proposed project manager for the contract at issue was not
an employee of the SDVOSB.
has published four decisions denying various motions for
summary judgment and for reconsideration, which you can find here.
Corp.'s claim under the "Changes" clause,
the CBCA held that the contractor failed to present any
evidence of either (i) work beyond that required by the
specifications specs or (ii) increased costs caused by this
allegedly extra work.
Joint Venture, the CBCA held that an unambiguous sentence
in various contract modifications barred the contractor from
passing through its construction subcontractor's subsequent
claims for cumulative labor inefficiencies.
Construction Services, the Court of Federal Claims ordered
additional briefing on the issues of what type of (i) record
(standard administrative record or something broader) and (ii)
procedural vehicle (cross motions (a) for judgment on the
administrative record or (b) for summary judgment) are to be
used in the relatively rare bid protests brought under 28
U.S.C. 1491(a) (for breach of the implied contract of fair
dealing) as opposed to the more common 1491(b) protests.
court dismissed two contract claims for lack of subject matter
Services, Inc., Aerospace Electronics Division, the court
noted it lacked jurisdiction over claims under maritime
contracts and that allegations of violations of the FAR and
the Antideficiency Act were not sufficient to establish
of Saddle Brook, the court dismissed a claim based on an
implied-in-fact contract (because the allegations in the
complaint were not adequate to establish either the mutual
intent to contract or an exchange of consideration) and held
there is no jurisdiction in the court over claims for
won its GAO protest because the VA failed to consider
whether the FSS acquisition should have been set aside for SDVOSBs.
rule changes would amend HUD's
acquisition regulation (HUDAR) to (i) remove provisions that are now
obsolete, (ii) refine provisions for approving requests for deviation from the HUDAR,
(iii) update provisions that address the organizational structure of HUD, and
(iv) add provisions on contractor record retention. Comments
are due by May 15.
Technologies won its GAO protest because the price
realism analysis lacked a rational basis: the agency failed to
follow the solicitation's clear requirement to consider the
proposed prices of all offerors in determining whether
the protester's price was realistic.
sustained a protest by ERIE
Strayer Co. because the agency conducted discussions only
with the awardee and downgraded the protester's proposal in an
area concerning which the agency could have, but did not,
Consulting, the Court of Federal Claims held it lacked
jurisdiction over a post-award protest of an agency's
evaluation of task order proposals (and rejected the
protester's definition of the term "scope" in its attempt
to fit its protest into the exception for protests of task
order awards beyond the scope of the underlying contracts).
Critical Solutions, the Court of Federal Claims denied the
plaintiff's claim that the agency had violated the court's
injunction against a contract award because (i) the new award
was not for the same contract covered by the injunction, and
(ii) the Government had a good faith basis to interpret the
injunction as applying only to the initial procurement, given
significant intervening changes in the applicable statute
occurring after the date of that procurement.
Consulting Engineering LLC, the court denied the
protester's motion for a preliminary injunction in a
post-award protest even though the protester raised
"troubling" allegations concerning the agency's
evaluations of the experience of the awardee's and protester's
key employees (but still set a briefing schedule for a
decision on a permanent injunction).
Management, the CBCA dismissed an appeal for lack of
jurisdiction (no contract) because the contractor had
responded to a government order for services by announcing it
was substituting a different individual from the one specified
in the order, thus making a counteroffer the Government then
Inc., the CBCA dismissed an appeal involving a claim
barred by the CDA's six-year statute of limitations because it
was filed more than six years after it originally accrued.
OHA has published several decisions.
of HANA-JV, the OHA affirmed a finding that a JV
failed to meet multiple requirements at 13 C.F.R. 125.15 for
qualified SDVOSB JVs, including the requirement to designate
an SDVO SBC as the managing venturer of the joint venture.
Appeal of Advent Environmental, Inc., the OHA affirmed
the Area Office's finding of affiliation through common
ownership and control and held that, pursuant to 13 C.F.R.
121.103(c)(2), one of the four owners of 25% shares in a
company (who also served on its board of managers) had the
power to control it and was not merely a passive investor.
Appeal of BR Construction, LLC, the OHA held that an
appellant was barred by the doctrine of issue preclusion from
raising the same issues decided against it in an earlier
Case 2011-D041: A final rule amends the DFARS (i) to require higher-level approval for
commercial item determinations for acquisitions exceeding $1 million when
the determination is based on "of a type" or
"offered for sale" language contained in the definition of
commercial item and (ii) to clarify approval requirements for determinations for acquisitions of
services exceeding $1 million, which utilize Part 12 procedures
but which do not meet the definition of "commercial item."
Case 2012-D006: A proposed rule would revise the DFARS clause at
252.225–7040 ("Contractor Personnel Authorized to Accompany
U.S. Armed Forces Deployed Outside the United States" to expand coverage
on contractor requirements and responsibilities regarding alleged crimes
by or against contractor personnel to apply to contingency operations, humanitarian
or peacekeeping operations, or other military operations when the latter are
designated by the combatant commander at any location
worldwide (these requirements currently apply only to DoD contracts
performed in Iraq and Afghanistan). Expanding the coverage worldwide will
provide contractors the guidance they need to take actions if such alleged
offenses occur. Comments are due by May 11.
Terry d/b/a Shirt Shack, the Court of Federal Claims
dismissed (i) a discrimination claim for lack of jurisdiction,
(ii) a promissory estoppel claim because it was based on
a contract implied in law, for which the Government has not
waived sovereign immunity, and (iii) breach claims for failure
to allege facts that establish any breach.
have been issued to the original publications of the final
rules related to (i) FAR Case 2010-015 (Women-Owned Small
Business (WOSB) Program) and (ii) FAR Case 2011-030 (New Designated Country
(Armenia) and Other Trade Agreements Updates).
See March 2 entry below for the original publications.
2005-56 has been published and includes only the following
Case 2012-004 ("United States-Korea Free Trade
Agreement"): Effective March 15, an interim rule amends
FAR Part 25 (and corresponding clauses in Part 52) to implement the
United States-Korea Free Trade Agreement (see the United States-Korea
Free Trade Agreement Implementation Act (Pub. L. 112–41) (19 U.S.C. 3805
note)). Comments are due by May 7.
Inc., the ASBCA decided several claims by a construction
contractor for alleged changes and compensable delays
(including claims for extended field and home office
overheads) opposed by various government defenses, including
the sovereign acts doctrine, concurrent delays, and lack of
proof of quantum.
Industries, Inc., the ASBCA held that a purchase order was
an offer that lapsed when Delta failed to deliver within the
for zaniest judicial reasoning of the year goes to the Court
of Appeals for the Federal Circuit's majority opinion in The
Minesen Co. v. McHugh, enforcing a provision in the
"Disputes" clause of a NAFI contract that stated the
ASBCA's decision on any appeal would be final and
unreviewable. Following are just a few of the lapses in logic
that permeate the opinion.
court declines to rule whether (post Slattery v. United States, 635 F.3d 1298 (Fed. Cir. 2011))
the CDA even applies to NAFI contracts, but then proceeds to
base its decision largely on its interpretation of the
the court repeatedly refers to the parties' 'mutual agreement'
in the contract that the ASBCA's decision would be final, as
if a government contractor ever has a say in the language of a
court tries to avoid the clear language of 41 U.S.C 7107(1)
(which specifically provides that "[t]he decision of an agency
board is final, except that . . . a contractor may appeal the decision
to the United States Court of Appeals for the Federal Circuit within 120 days from the
date the contractor receives a copy of the decision. . .
.") by noting that the provision does not state it cannot
be waived, while 41 U.S.C. 7104 (which the court suggests is
the analogous provision that applies to disputes at the Court
of Federal Claims) can be. The latter provision states that a
contract provision may not waive the contractor's option to
appeal a Contracting Officer's decision to the Court of
Federal Claims--it says nothing at all about whether the
parties could agree that the decision of the Court of Federal
Claims would be unreviewable. In fact, nothing in the CDA,
itself, states that a decision of the Court of Federal Claims
can be appealed to the Court of Appeals for the Federal
Circuit. So, the court disregards the only language in the CDA
that gives contractor the right to appeal to the court
the court includes several passages from the legislative
history of the CDA that allegedly support its position, not
one of which really does. Here is an example:
Nor does anything in the CDA’s legislative history
demonstrate that Congress did not intend for parties to be able to
agree to the finality of ASBCA decisions. On the contrary, Congress recognized first among the express
purposes of the CDA “induc[ing] resolution of more contract disputes
by negotiation prior to litigation,” S. Rep. No. 95-1118, at
1 (1978), and “encourag[ing] the informal, quick resolution of disputes before they can develop into
expensive and time-consuming administrative tangles or
litigation,” 124 Cong. Rec. 31,645 (1978).
statements reflect one aim of the CDA: to encourage resolution
of claims before they are appealed to either a board or the
Court of Federal Claims. They say nothing about whether the
parties may agree a board's decision will be final and
probably was a way to reach the same result using logic--the
court opted for gibberish.
Appeal of Hummingbird Data Systems, LLC, the SBA's OHA
held that the Area Office was correct in dismissing a size
protest because the protester had been eliminated from the
competition for reasons unrelated to size and, therefore,
Acquisition Circular (FAC) 2005-56
has been published and includes the following seven items plus
Case 2010-015 ("Women-Owned Small Business (WOSB)
Program"): Effective April 2, a final rule adopts, with
changes, the interim rule amending the FAR to implement the
SBA's regulations establishing the WOSB program, specifically
to authorize the restriction of competition for federal contracts in certain
industries to economically disadvantaged women-owned small business
(EDWOSB) concerns or WOSB concerns eligible under the WOSB
Case 2008-030 ("Proper Use and Management of
Cost-Reimbursement Contracts"): Also effective April 2, a
final rule adopts, with changes, the interim rule amending the
FAR to implement a section of the Duncan Hunter National Defense Authorization
Act for Fiscal Year 2009 that addresses the use and management of cost-reimbursement
contracts, including ensuring that a properly certified and
trained Contracting Officer's Representative (COR) be
appointed to assist the Contracting Officer in the
administration of such contracts, unless agency procedures
require the Contracting Officer to perform all such duties.
Case 2007-012 ("Requirements for Acquisitions
Pursuant to Multiple-award Contracts"): Effective April
2, a final rule adopts, with changes, the interim rule
amending the FAR to implement a section of the Duncan Hunter National Defense Authorization
Act for Fiscal Year 2009 to enhance competition in the purchase of supplies
and services by all executive agencies under multiple-award contracts.
Specifically, the threshold amount in FAR 8.405-3(a)(7)(v) is
changed to read $103 million, and the following language has
been added as FAR 8.405-3(c)(3): "‘The ordering activity is responsible for
considering the level of effort and the mix of labor proposed to perform a
specific task being ordered, and for determining that the total price is
reasonable through appropriate analysis techniques, and documenting the file
Case 2011-004 ("Socioeconomic Program
Parity"): Effective April 2, a final rule adopts, with
changes, the interim rule amending the FAR to implement a section of the Small
Business Jobs Act of 2010 that clarifies that there is no order of
precedence among the small business socioeconomic contracting
programs and that contracting officers may exercise discretion when determining whether
an acquisition will be restricted to small businesses participating in the 8(a)
Business Development Program (8(a)), Historically Underutilized Business
Zones (HUBZone) Program, Service-Disabled Veteran-Owned Small Business (SDVOSB) Program, or the
Case 2012-002 ("Trade Agreements
Thresholds"): Effective today, a final rule amends the
FAR to incorporate adjusted thresholds for application of the World Trade
Organization Government Procurement Agreement and the Free Trade
Agreements, as determined by the United States Trade Representative.
Case 2011-030 ("New Designated Country
(Armenia) and Other Trade Agreements Updates"): Effective
today, a final rule amends the FAR (i) to add Armenia as a designated country,
due to the accession of Armenia to membership in the World Trade
Organization Government Procurement Agreement and (ii) to
update the lists of countries that are parties to the Agreement on Trade in Civil
Case 2010-009 ("Government Property"): Effective
April 2, a final rule amends the FAR to clarify requirements
concerning reporting, reutilization, and disposal of
government property, by, inter alia, (i) adding a definition of
"surplus property" at FAR 2.101; (ii) defining
"loss of Government property" at FAR 45.101; (iii)
using the term "loss" consistently in lieu of
"loss, damage, destruction, or theft"; (iv)
clarifying, and distinguished among, the responsibilities and authorities of
the contracting officer, property administrator, plant clearance officer,
and contractor; (v) reorganized and clarifying procedures and responsibilities for
disposal of government property (see FAR subpart 45.6); and
(vi) clarifying and updating the government property clause at FAR
52.245–1 to conform with revisions to FAR part 45.
Department of Energy has extended (to March 16) the period for
in response to its proposed rule to revise existing regulations covering contractor legal
management requirements and make conforming amendments to the Department of Energy Acquisition
Regulation (DEAR) (76 FR 81408).
of Federal Claims published two decisions concerning
government motions to dismiss various aspects of claims for
alleged government breaches of a settlement agreement (Kenney
Orthopedic) and non-disclosure and CRADA agreements (Demodulation,
Co., the ASBCA granted the Government's motion to dismiss
(for lack of jurisdiction) the following elements of damages
claimed to result from Government's late final payment under a
contract: interest on borrowing; loss of reputation; and loss
of anticipatory profits on other business opportunities.
Defense Systems, Inc., the ASBCA held that the contractor
was not entitled to receive the same (higher) pass-through
mark-up on a particular delivery order as stated in the basic
contract (rather than the lower rate negotiated for the
delivery order) because the contractor did not demonstrate
there was a patent or latent ambiguity, a violation of the
FAR, a mistake, or bad faith, coercion, or misrepresentation
by the Government.
Walsh Painting Co., the Board denied the contractor's
claim for extra work on a painting contract and held that the
Government's approval of one of the contractor's submittals
did not preclude the Government from later enforcing
compliance with specification.
has published two more decisions sustaining protests.
Corp., the GAO held that the agency's estimate of future
underground utility relocation work in a solicitation lacked a
rational basis and likely was significantly understated.
Physician Service Insurance Corp. (which was originally
decided in May 2009), the GAO found flaws in the cost realism,
technical, and past performance evaluations, as well as a lack
of meaningful discussions regarding the protester's past
by Thurston, the Court of Federal Claims held that,
although the protester demonstrated that the winning offer
failed to comply with a material requirement of the
solicitation, the protester's remedy was limited to the
recovery of bid and proposal costs because the contract at
issue already had been substantially performed. (The court
also held that the protester's reorganization in bankruptcy
did not affect its standing to protest.)
Bar and Assocs., the CBCA held that the Contracting
Officer's belated issuance of a decision on a a claim that
already had been properly appealed to the Board from a deemed
denial could not affect the Board's jurisdiction over the
Jackson, the CBCA dismissed an appeal (with prejudice) for
failure to prosecute after the appellant repeatedly ignored
the Board's orders to file a Complaint or to designate its
notice of appeal as its Complaint.
Case 2011-D033: DoD is adopting as final, without change,
an interim rule amending the DFARS (i) to implement those sections of
the National Defense Authorization Acts for Fiscal Years 2010 and 2011,
providing increased authorities to reduce or deny award fees to companies
found to jeopardize the health or safety of Government
personnel and (ii) to modify the requirement that information on the final determination
of award fee be entered into the Federal Awardee Performance and Integrity
Information System (FAPIIS).
Case 2009-D038: DoD is adopting as final, with changes, an
interim rule amending the DFARS to improve the effectiveness of DoD oversight of
contractor business systems.
Case 2012-D024: DoD is amending the DFARS to extend the date for submittal of
applications under the DoD Mentor-Protégé Pilot Program for new mentor-protégé agreements
to September 30, 2015 and the date mentors may incur costs and/or receive
credit towards fulfilling their small business subcontracting goals through
an approved mentor-protégé agreement to September 30, 2018.
Case 2012-D026: DoD is amending the DFARS extend the program period for the DoD
Test Program for Negotiation of Comprehensive Small Business Subcontracting
Plans through December 31, 2014.
Per Diem, Travel and Transportation Allowance Committee has
published Civilian Personnel Per Diem
Bulletin Number 280, 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
a Memorandum of February 21, 2012, the President has directed
federal agencies to take various steps to increase federal
government procurement of biobased
and sustainable products.
March 26, the SBA is increasing the small business size standards for 22 industries in
NAICS Sector 48–49, Transportation and
Warehousing, while retaining the current standards for the
remaining 37 industries in that Sector.
is proposing to increase small business size standards for 28 industries in
NAICS Sector 62, Health Care and Social
Assistance. Comments are due by April 24.
March 26, the GSA is amending its acquisition regulation (the
GSAR) to modify acquisition-related
thresholds as follows: (i) the GSAR clause at 552.219–71, Notice to
Offerors of Subcontracting Plan Requirements, is revised by removing
"$500,000" and "$1,000,000" and replacing the GSAR text with
"$650,000" and "$1,500,000," respectively;
and (ii) the GSAR clause at 552.219–72, Preparation, Submission,
and Negotiation of Subcontracting Plans, is revised by removing
"$500,000" and "$1,000,000" and replacing the GSAR text with
"$650,000" and "$1,500,000," respectively.
The Department of the
Treasury is proposing to amend its acquisition regulation (DTAR) to implement use of
Payment Platform, a centralized electronic invoicing and payment information system, and to
change the definition of bureau to reflect the consolidation on July 21,
2011 of the Office of Thrift Supervision with the Office of the Comptroller of
the Currency. Comments are due by April 23.
of Federal Claims' latest opinion in the GTA
Containers, Inc., post-award protest replaces its prior
decision but just amplifies on the reasoning in the prior
case and reaches same result in favor of the protester. See
February 7 entry below.
Maintenance Systems, Inc., the court (i) rejected a
contractor's argument that the court had jurisdiction over its
claim for breach of contract monetary damages under 28 U.S.C.
1491(b) (because such bid protest jurisdiction does not cover
claims by contractors involving contract administration after
a contract has been awarded) and then (ii) dismissed the suit
for lack of jurisdiction because the contractor did not
first submit a certified claim to Contracting Officer, as
required by the CDA.
2011-011: A proposed rule would amend the FAR to implement the requirements of the
James Zadroga 9/11 Health and Compensation Act of 2010 regarding the
imposition of a 2 percent tax on certain
foreign procurements. Comments are due by April 23.
Gas & Electric Co., a spent nuclear fuel case, the
Court of Appeals for the Federal Circuit affirmed the damages
award by the Court of Federal Claims in a prior
decision favor of the plaintiff.
must have slipped some happy juice into the GAO's punchbowl
because all three of the decisions it published yesterday
Communications, Inc., the GAO found the agency treated the
eventual awardee and the protester differently by permitting
only the former to make material changes in its quotation,
which rendered its technically unacceptable quote acceptable.
Systems Corp., the GAO could not locate any explanation in
the record for apparent discrepancies (and the lack of a
logical connection) between the results of the cost and
long-delayed, published version of its decision in IBM
Global Business Services, B-404498, .2 (Feb. 23, 2011),
the GAO concluded that the agency had rewarded the awardee's
proposal on the basis of an unstated evaluation criterion and
that the agency had misled offerors by evaluating on basis of
much different quantities than those suggested in the
OHA has published several size decisions.
Appeal of Nuclear Fuel Services, Inc. , the OHA
reversed the Area Office and held that (i) the "present
effect" rule did not require a finding of affiliation
where discussions between two firms concerning merger or
acquisition had not reached the status of an agreement in
principle at the time of self-certification (although
agreement was reached very shortly thereafter) and (ii) the
NAICS code under which size should have been assessed was the
one the prime contractor had assigned to the RFP in question
rather than the NAICS code for the contested firm's primary
Appeal of Tyler Construction Group, the OHA affirmed
the Area Office's dismissal of an untimely protest against a
firm's size status for task order award where the Contracting
Officer had not requested recertification in connection with
Appeal of Santa Fe Protective Services, Inc., the OHA
affirmed the Area Office's finding that a firm did not run
afoul of the ostensible subcontractor rule because it would be
providing the large majority of what the Area Office had
determined were the primary requirements of the solicitation,
even though that area of work barely qualified as the primary
Inc.; SafeGuard Services, LLC, the GAO concluded that the
cost realism, technical, and past performance evaluations all
were insufficiently documented in the record to uphold the
agency's award decision.
March 15, USAID is amending the USAID Acquisitions Regulations
(AIDAR) to implement a pilot program for a Partner
Vetting System for USAID assistance and acquisition awards,
the purpose of which is to help ensure that USAID funds and other
resources do not inadvertently benefit individuals or entities that are terrorists,
supporters of terrorists or affiliated with terrorists, while also minimizing the
impact on USAID's programs and its implementing partners.
February 29, EPA will amend the prescription in the EPAAR for
assignment clause in order to provide clearer and more
detailed instructions for the use of the clause.
published several decisions, including the following:
Gateway Support, LLC, the ASBCA held that (i) the costs of
accrued sick leave hours paid to employees in cash at the termination of
their employment in accordance with the terms of applicable
collective bargaining agreements were allowable fringe
benefits under FAR 31.205-6, and (ii) the Government's
contrary interpretation of the contract would have required a
deviation from the FAR that the agency had not obtained.
Machine, Inc., the ASBCA held that a contractor's email to
the Contracting Officer requesting an extension of 120 days to
a purchase order was a " request for an adjustment in contract terms"
under the definition of a "claim" in the
"Disputes" clause (FAR 52-233.1) and, thus,
was a claim under the CDA.
Dynamics Ordnance and Tactical Systems, Inc. (a dispute
involving unanticipated costs associated with the Government's
allegedly inadequate estimates concerning ammunition
quantities required by the contract), the ASBCA held that the
Government's willful failure to comply with the Board's orders
to turn over documents to the contractor during discovery
merited the sanction of an adverse inference that the
documents, i f disclosed, would have shown that there was relevant
information available to the Government that it failed to consider when developing the estimates
in question, thereby causing the estimates to be inadequately or negligently
has adopted the FAR's debarment
and suspension procedures.
sustained a protest by MANCON
because the acceptability of the offeror's small business
subcontracting plan should have been a responsibility issue,
not a pass/fail reason for evaluating the proposal as
March 12, the SBA is (i) increasing 37 small business size
standards for 34 industries and three sub-industries ("exceptions" in SBA’s table of small business size standards) in NAICS
Sector 54 (Professional, Technical, and Scientific
Services), (ii) retaining the current standards for the
remaining industries in NAICS Sector 54, (iii) increasing one
size standard in NAICS Sector 81 (Other Services), and (iv)
removing "Map Drafting" as the "exception"
to NAICS 541340 (Drafting Services).
Aircraft Co., the CBCA denied the contractor's claim for
reimbursement of federal excise taxes in a contract containing
the unique commercial item tax clause at FAR 52.212-4(k).
Construction, Inc., the CBCA held that a letter submitted
to Contracting Officer labeled as "final certified
claim" and including a CDA certification (submitted to
correct a prior letter that did not include a certification)
constituted a CDA claim even though it did not specifically
request a decision.
Aerospace, Inc., the CBCA interpreted the contract as
making the contractor responsible for the costs of repairing
corrosion in an aircraft it was leasing to the Government and
for the costs of "downtime" during such repairs.
Taylor, Inc., the ASBCA determined that the executive
compensation paid by a contractor was reasonable because the
DCAA's method for challenging that compensation suffered from
unrebutted statistical flaws.
Inc., the ASBCA upheld a termination for default,
rejecting the contractor's contentions that the Government had
(i) wrongfully withheld progress payments and (ii) audited and
inspected the contractor's work excessively.
Containers, Inc., the Court of Federal Claims issued a
permanent injunction against performance of a delivery order
based on the fact that the awardee's submission to the SBA for
purposes of a post-award size determination indicated the
awardee did not really intend to subcontract with a firm it
had identified in its bid as a subcontractor, a representation
the agency's evaluators had relied on in favorably evaluating
the awardee's proposal. Also interesting is the court's
refusal to acquiesce in the corrective action undertaken
voluntarily by the procuring agency during the pendancy of the
protest, i.e., terminating all but what the agency
regarded as the essential portions of the original delivery
Size Appeal of
DoverStaffing, Inc., the SBA's OHA affirmed the Area
Office's finding of affiliation under the ostensible
subcontractor rule due to unusual reliance on a subcontractor
because, inter alia, the protested firm intended to
hire its key employees from the sub and relied almost entirely
on the sub's past performance for the past experience part of
Electronics Corp., the CBCA held that a purchase order
provision establishing a cancellation charge if the Government
did not extend a 48-month, lease-to-own term beyond the first
12-month period was valid and enforceable against the
its latest CRAssociates
decision, the Court of Federal Claims denied the protester's
request for a stay pending its appeal of the court's prior
decision denying the protest (see January 24 entry
a final rule effective today, the Department of Commerce's
Bureau of Industry and Security (BIS) has amended the Export
Administration Regulations (EAR) to add a reference to the Iran
Sanctions Act of 1996 (ISA), which states BIS’s licensing policy for export
and reexport transactions that involve persons sanctioned pursuant to certain
enumerated statutes, including its general policy of denying export and
reexport license applications in which a person sanctioned by the State
Department under the ISA is a party to the transaction.
interesting reverse twist on the typical mistake-in-bid case,
the Court of Federal Claims held, in the Virgin
Islands Paving bid protest, that the agency lacked a
rational, post-award, basis to reject the awardee's bid (and
then award to the second-low bidder) on the basis of
"mistakes" in the awardee's bid after the agency
originally had determined (preaward) that neither the
awardee's nor the second-low bidder's bids were mistaken, in
part because they were comparable to one another.
e Per Diem, Travel and Transportation Allowance Committee has
published Civilian Personnel Per Diem
Bulletin Number 279, 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
2010-D011: DoD is publishing a final rule, effective
January 30, requiring "major contractors" (i.e.,
those whose covered segments allocated a total of more than $11,000,000 in IR&D/Bid and Proposal
(B&P) costs to covered contracts during the preceding fiscal year)
to report IR&D projects to the Defense Technical Information
Center (DTIC) using the DTIC’s on-line input form and instructions at
2011-D057: Another final rule, also effective January 30,
amends the DFARS to add Armenia as a World Trade Organization Government
Procurement Agreement country and a designated country, due to the accession of Armenia to
membership in the World Trade Organization Government Procurement
Case 2012-D005: DoD is amending the DFARS to to incorporate adjusted
thresholds for application of the World Trade Organization Government
Procurement Agreement and the Free Trade Agreements, as determined by the
United States Trade Representative. Additionally, this rule includes
language in prescriptions for use of contract clauses intended to clarify their
applicability to commercial items.
Case 2011-D045: DoD proposes to amend the FAR to provide detailed guidance and
instructions on the use of the performance-based payments analysis
tool. Comments are due by March 30.
Case 2011-D052: DoD is proposing to amend the FAR to update the form used by contractors to
request shipping instructions and the associated contract clause and clause
prescription to cover both commercial and Government bills of lading, and to
relocate the coverage within the DFARS. Comments are due by
DIRECTV Group, the Court of Appeals for the Federal
Circuit affirmed the Court of Federal Claims' decision
concerning the appropriate segment closing adjustments under
CAS 413 when the sale of two segments involved the transfer of
defined benefit pension plans.
Casualty & Security Co. of America, the Court of
Federal Claims held that, given the Anti-Assignment Act, a
general liability insurer (as opposed to a surety) does
not have standing to sue Government for breach of contract to
recover amounts it paid to its insured, even under a theory of
Technology, a CDA jurisdictional decision, the court
dismissed an excusable delay claim that was not sufficiently
similar to the claim that had been previously presented to the
Contracting Officer to have put him on notice of it.
Joint Venture, the ASBCA granted the contractor's motion
to exclude an export report and testimony based on that report
because nothing in the proffered evidence required expert
testimony: "[The proffered] opinion is not based upon any
'scientific, technical, or other specialized knowledge' and does not
'help the trier of fact.' None of the facts described by [the
proffered expert] require any expertise to decide them. All of them
are within our competence to determine as the trier of fact.
Accordingly, his opinion about them is of no help. Additionally,
[the proffered expert's] opinion of the meaning of the word
'foreseeable' relates to an issue of law, and in particular attempts to interpret
specialized legal terminology."
Enterprises, the CBCA denied a post-award unilateral
mistake-in-bid claim due to a lack of evidence in two
areas: (i) what the bid would have been absent the
alleged mistake; and (ii) that government knew, or should have
known, of the mistake prior to award.
Portillo, the CBCA held that the Government complied with
an unambiguous lease provision that permitted it to terminate
a lease with 60-days advance notice.
Lewis J. Goldfine , the CBCA dismissed (for lack of CDA
jurisdiction) a claim for money damages that had not first
been submitted to the Contracting Officer for a decision and a
claim for cancellation of a BPA (because a BPA is not a
contract) even though the BPA repeatedly referred to itself as
a contract: "The fact that the BPA which SSA issued to Dr. Goldfine calls itself a contract brings to mind a quotation attributed to
President Lincoln: 'If you call a tail a leg, how many legs does a dog have? Four. Calling
a tail a leg doesn’t make it a leg.' "
OHA has published several decisions--
of Major Contracting Services, the OHA affirmed the
dismissal of an untimely protest of a firm's SDVOSB status
because the time period to protest started from the day notice
was received by email at 4:43 p.m., which was prior to the 5
p.m. close of business.
Appeal of Trident3, LLC, the OHA overturned
the Area Office's size determination because an 8(a) firm's
joint venture agreement was approved prior to the award of an
8(a) contract and Area Office lacked the authority to review
the underlying, approved mentor-protégé agreement in context
of an 8(a) procurement.
Technologies, LLC, the OHA overturned the Area
Office's finding of affiliation through identify of interest
because there was a clear fracture between the allegedly
affiliated firms, and the individual with the alleged identity
of interest was only a minority shareholder who did not
control the allegedly related firm.
Diversified Services, LLC, the OHA held that, where the
parties to an approved mentor-protégé agreement also had an approved
JV agreement for a particular procurement, the Area Office's decision
that it did not have the authority to examine whether the members of
the joint venture had formed too many such ventures together over the
years was correct (because the SBA already had determined that the JV
was approved for this particular procurement).
published two decisions sustaining protests.
Enterprise, Inc.; Signature Consulting Group, the GAO
found a lack of meaningful discussions because, based on
an incomplete analysis of the protester's proposal, the agency
misled the protester during discussions by directing it to
increase its proposed staffing (and thus its costs).
Argos Group, a protest against the terms of a
solicitation, the GAO held that the GSA improperly failed to
include the 10 percent price evaluation preference for HUBZone
small business concerns mandated by the Historically Underutilized Business Zone Act of 1997, 15 U.S.C. § 657a(b)(3)(B),
because the statute applies "in any case in which a contract is to be awarded on the basis of full and open
competition," and (i) the lease that will result from this procurement is a
contract; (ii) the agency is using full and open competition to award the contract; and
(iii) there is no language in the statute suggesting that an exception is applicable for GSA lease
Boeing Co., the ASBCA dismissed a government claim against
the contractor (for increased costs allegedly incurred by the
Government as a result of a voluntary change in the
contractor's accounting system) because the Contracting
Officer's decision asserting the government claim was not
issued within the CDA's six-year statute of limitations (41 U.S.C. §
7103(a)(4)(A), formerly 605(a)). The ASBCA (i) examined
whether any of several recent appeals court (including Supreme
Court) decisions had changed the conclusion that the CDA's is
a jurisdictional statute of limitations and (ii) concluded
they had not.
Solutions, the ASBCA engaged in a good analysis of a
contract interpretation issue and granted partial summary
judgment to the Government because its interpretation of
disputed language in a contract modification was the only
reasonable one and was not in conflict with any other
cleaned up a bunch of broken links on the Statutes
Concepts, the Court of Federal Claims denied cross motions
for partial summary judgment as to the propriety of government
counterclaims for liquidated damages because such damages
cannot not be quantified until after resolution of delay
claims that have been reserved by the parties for trial on the
Exploration New Orleans, Inc., And Champion Exploration, LLC,
the court discussed (at length) the evolution of the case law
on the subject before concluding that the contractor was not
prohibited from asserting a Fifth Amendment
"Takings" claim and a breach of contract claim as
alternative theories in the same Complaint.
Fuels, a spent nuclear fuel case, the Court of Appeals for
the Federal Circuit (a) affirmed (i) the CoFC's denial of a claim for
the cost of borrowed funds and (ii) the CoFC's causation analysis and revised
award of nominal damages; and (b) reversed the CoFC's denial of overhead
the Court of Federal Claims denied a protest asserting
multiple grounds allegedly showing that the agency's second
evaluation after a prior successful bid protest was a mere
pretext to justify re-award to the original awardee:
In seeking to overturn this award, plaintiff attempts to pile a Pelion of conjecture upon
an Ossa of speculation, literally raising dozens of alleged errors in contending that, from the
outset, the Army intended to make a second award to Spectrum. But reminiscent of the Greeks
of old, whose stone pile atop Mt. Olympus failed to reach the heavens, plaintiff ultimately fails
to convince this court that the second set of evaluations performed by the Army was a pretext for
giving the contract to its competitor.
Federal Services, the court (i) denied the Government's
request to reconsider a prior
decision declaring an agency override of an automatic stay
to have been improvidently issued and (ii) concluded that the
court is not required to use the four-factor test for
injunctive relief when analyzing the merits of an automatic
override for purposes of issuing a declaratory judgment.
an unsuccessful protest, the court held that the Government's
decision to modify one awardee's contract to add items that
were supposed to have been produced by another contractor that
had defaulted on its companion contract (i) was a type of
modification contemplated by the original solicitation, (ii)
was within the scope of the awardee's contract and (iii) was
not an improper sole source award in violation of CICA. The
court also held that the plaintiff's complaint about the
Government's alleged failure to conduct a proper
responsibility determination should be dismissed as moot
because the same claim was previously settled as part
of a prior GAO bid protest.
Network Services, the court denied the Government's motion
to dismiss a complaint in a direct appeal to the court from
the Government's failure to issue a decision on the
contractor's claim for attorneys' fees submitted after a prior
successful ASBCA case on the merits (despite the fact that the
1979 version of the "Disputes" clause in this
non-appropriated fund contract only provided for an appeal to
the ASBCA) because the Government breached the
"Disputes" clause by failing to issue a decision on
the contractor's claim within a reasonable time--meaning the
clause was no longer controlling on this issue. I'm not sure I
agree with the reasoning here; perhaps there is a way to reach
the same conclusion that is more compelling.
Logistics International, the court denied the contractor's
$6 million in breach claims (on a contract worth less than
$2.5 million) and granted the Government's counterclaims for
forfeiture under a special plea in fraud based on a contractor
spreadsheet concerning the claim quantum revealed during
discovery. The court left little doubt how it felt about the
spreadsheet and the contractor's claim in general:
RailwayLogistics could not support its claim because of fraud and misrepresentation of fact.
Every item on the spreadsheet that served as plaintiff’s support for its claim was overstated or
imaginary. Contents of the spreadsheet alone provide clear and convincing evidence that RLI
practiced fraud "against the United States in the proof, statement, establishment, or
allowance" of its claim. 28 U.S.C. § 2514.
Trial of this case revealed that defendant’s business relationship with RLI had no redeeming
aspect; it caused a grievous waste of limited resources and hindered the Government’s rebuilding
efforts in Iraq. RLI was in obvious breach of both contracts, yet defendant terminated them for
convenience of the Government. This would have allowed plaintiff to walk away with little or no
cost to itself, yet it sued the Government for millions of dollars on a specious claim, thereby creating
still more waste of valuable time and resources.
The Government limited its counterclaims to the most obvious and outrageously inflated
fraudulent claims. Given that restraint, the category of claims that RLI could not support because
of "misrepresentation of fact or fraud by the
contractor" totaled $1,175,160. See 41 U.S.C. § 7103(c)(2).
. . .
Any amount of RLI’s claim that might have been valid, or could have remained after
applying statutory penalties would be forfeited pursuant to the special plea in fraud. 28 U.S.C. §
2514. Statements contained in the spreadsheet alone support a finding, by clear and convincing
evidence, that plaintiff attempted to practice a fraud
"against the United States in the proof, statement, establishment, or
allowance" of its claims.
Emiabata d/b/a/ NOVA EXPRESS, the court held that the
Government properly terminated a Postal Services contract for
default after the contractor failed to provide the Contracting
Officer with proof that it had obtained the contractually-required liability insurance
that would enable it to begin performance.
Case 2011-D034: DoD has adopted as final, without change,
an interim rule amending the DFARS to establish a pilot
program to assess the feasibility of acquiring military-purpose
nondevelopmental items using streamlined procedures.
Case 2011-D040: DoD proposes to amend the DFARS to update text addressing the definition of
cost or pricing data to make it consistent with the FAR.
Comments are due by March 19.
Case 2011-D054: DoD proposes to amend the DFARS to update DoD’s voucher processing
procedures and better accommodate the use of Wide Area WorkFlow.
Comments are due by March 19.
Case 2012-D002: DoD proposes to amend the DFARS to establish an
order for application of contract modifications to resolve any potential
conflicts that may arise from multiple modifications with the same effective
date. Comments are due by March 19.
Appeal of Excalibur Laundries, Inc., the SBA's OHA held that the Area Office was not
required to consider a specific allegation of affiliation
first raised after the deadline for filing a size protest in a
negotiated procurement had passed.
Appeal of Rio Vista Management, LLC, the OHA found that the Area Office's size
determination contained multiple errors, including (i)
reliance on circumstances occurring more than three years
before the date of the size determination; (ii) finding
affiliation from assistance properly provided under an
approved 8(a) mentor-protégé agreement; (iii) finding a
violation of the newly-organized concern rule when the
protested firm's founder was not in one of proscribed
positions at the predecessor firm; and (iv) finding
affiliation based on an identity of interest between two
individuals when neither of them controlled the allegedly
sustained a protest by Veterans
Contracting Group after the agency improperly rejected a
bid as nonresponsive for proposing a brand of chiller and
refrigerant that the agency simply did not like, when the
specifications neither prohibited those items nor required a
of Federal Claims denied a protest by Brooks
Range Contract Services, after concluding the plaintiff
lacked standing (i) with respect to an argument it was
required to, but did not, raise in its initial brief and (ii)
because it did not establish it would have had a substantial
chance for award if its protest had been sustained. The court
also rejected the plaintiff's argument that the awardee's
contractor teaming agreement should have been analyzed as a
joint venture (although the court did concede that the
agency's (and the solicitation's) guidance concerning the
requirements for a teaming agreement were far from clear).
Applications International Corp. survived preliminary
motions to dismiss its complaint for lack of standing based
upon the evaluation of its management proposal as unacceptable
(even though the court indicated this argument could be raised
again in motions on the merits for judgment on the
a brighter note (at least for protesters), BayFirst
Solutions won its protest at the Court of Federal Claims
because the evaluators (i) irrationally awarded a strength to
the awardee for inadequate resumes while declining to assign a strength to
the protester for resumes that were deemed adequate; (ii)
assessed weaknesses in the protester's Transition Plan that were irrational or not warranted under the
solicitation's evaluation criteria; and (iii) treated offerors
unequally in the Past Performance evaluation.
Chemical Chartering, the CBCA held that the
successor-in-interest of a bankrupt firm lacked standing to
prosecute a claim because the bankrupt firm failed to list the
claim in its schedule of assets.
has published an interim rule amending its regulations (i) to make them consistent
with the inflationary adjustments that are already codified in the
FAR as they relate to the Women-Owned Small
Business (WOSB) Program and the Simplified Acquisition
Threshold and (ii) to make its WOSB Program protest procedures
consistent with the protest procedures for SBA’s other government
contracting programs. Comments are due by February 13.
2011-024: An extended
comment period (to February 13) now applies to the previously-published,
interim rule that (i) implements section 1331 of the Small Business Jobs Act of
2010 (addressing 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) and (ii) covers the
coordination of the Federal Supply Schedules Program with the
2010-016: A correction to the previously-published
rule (see January 1 entry below) concerning the
FAPIIS system notes that there will be a 14-calendar-day
delay in the posting information submitted for the publicly
available segment of FAPIIS.
Appeal of M1 Support Services, LP, the SBA's OHA affirmed the Area Office's
finding that a firm (i) was not the manufacturer of the
contract items (its proposed subcontractor was) and (ii) was
too large to qualify for the application of the
Appeal of Technibilt, LTD, the OHA affirmed the Area Office's finding that, under
13 C.F.R. 121.103(c)(2), a contested firm was affiliated
with two firms that each owned approximately 36% of the stock
in the company that controlled the contested firm.
of Mission Essentials, LLC, the SBA's OHA held that a protest alleging that the
challenged firm failed to comply with the joint venture
regulations covering SDVOSBs at 13 C.F.R. 125.15(b) was
sufficiently specific and should not have been dismissed.
Appeal of The Associated Construction Co., the OHA held that the Area Office
properly included a firm's interdivisional labor receipts in
calculating its average annual receipts because the firm's
division was not a separate legal entity and, therefore, not
an affiliate within the meaning of 13 C.F.R. 121.104(a).
sustained a protest by W.
B. Construction and Sons because both of the agency's
grounds for rejecting a bid as nonresponsive were improper:
(i) the bidder's failure to provide a price for one of many line items included in
a bid schedule, where the omitted item was divisible from solicitation’s overall requirements,
de minimis as to total cost, and would not affect the competitive standing of the
bidders; and (ii) the bidder's submission of an unbalanced bid
where the agency failed to conduct a FAR 15.404-1(g) risk analysis to determine whether
the unbalanced bid posed an unacceptable risk to the
has has adopted as final, with changes, an interim rule amending
its acquisition regulation (the GSAR) to implement policy and guidelines to
strengthen the security requirements for contracts and orders that include
information technology (IT) supplies, services, and systems,
by adding the following new paragraph (k) to the contract
clause at 48 C.F.R. 552.239-71:
GSA access. The Contractor shall afford
GSA access to the Contractor’s and subcontractors’ facilities, installations,
operations, documentation, databases, IT systems and devices, and personnel used in
performance of the contract, regardless of the location. Access shall be provided to the
extent required, in GSA’s judgment, to conduct an inspection, evaluation,
investigation or audit, including vulnerability testing to safeguard against
threats and hazards to the integrity, availability and confidentiality of GSA data
or to the function of information technology systems operated on behalf of GSA, and to
preserve evidence of computer crime. This information shall be available to GSA
January 20, the EPA is amending its acquisition regulation
(the EPAAR) by revising the contract clause at 48 C.F.R.
1552.211-79 (entitled "Compliance with EPA Policies for
Information Resources Management") to include administrative
changes and to update terminology and Web site links related to EPA policies for
Education Solutions, the Court of Appeals for the Federal
Circuit affirmed a Court of Federal Claims decision that a
company which did not file a statement of capabilities in
response to a published notice of a proposed sole-source award
lacked standing to protest that award. (The court also
discussed, with something less than its most trenchant
reasoning, the possibility that a firm might be able to
protest that the time period an agency allowed for such
submissions was too short.)
Software , the ASBCA dismissed an appeal as untimely after
determining that receipt of a Contracting Officer's decision
by email does not extend the 90-day period for filing an
Security, an unsuccessful post-award protest, the Court of
Federal Claims held that: (i) an awardee's failure to disclose
a government investigation regarding wage payments that
subsequently ripened into a civil action was not fatal to the
Government's favorable responsibility determination
because the awardee did disclose a related class action
lawsuit and because the size of the undisclosed matter was not
great enough to affect the awardee's overall financial
responsibility; (ii) there was no violation of FAR 15.308
where the SSA simply signed the CO's award recommendation in
the blank beside the word "Approved" because there
was no evidence in the record that the SSA did not exercise
independent judgment in coming to its conclusion; and (iii) an
evaluator's scoring error, even after being corrected, did not
change the ultimate rankings of offerors.
Federal Services, the court held that a "best
interests" override of an automatic stay (pending the
resolution of GAO protests) was improvidently issued
because the agency did not consider (i) any alternatives
to the override, such as extending the incumbent's contract
temporarily or (ii) the effect of an override on the integrity
of the procurement system.
Products Co., the court held the Government breached its
implied duties to cooperate with the contractor and not to
hinder its performance by awarding (and later suspending) a
timber sales contract without revealing to the contractor that
the Government's interpretation of the law as permitting it to
forego environmental surveys was unlikely to prevail in a
pending district court suit.
Acquisition Circular (FAC) 2005-55
is being published and includes the following six items:
Case 2008-032 ("Preventing Abuse of Interagency
Contracts"): A final rule, effective February 2, adopts
(with changes) the prior interim rule amending FAR Subpart
17.5 to implement a section of the Duncan Hunter National Defense Authorization
Act for Fiscal Year 2009 to prevent abuse of interagency
contracts by: (i) broadening the coverage to address all interagency acquisitions that
result in a contract action (except FSS orders under
$500,000); (ii) requiring agencies to support the decision to use an interagency
acquisition with a determination that such action is the
"best procurement approach"; and (iii) directing that assisted acquisitions
be accompanied by written agreements between the requesting agency and the
servicing agency documenting the roles and responsibilities of the respective
Case 2011-021 ("Transition to the System for Award
Management (SAM)"): A final rule, effective February 2,
amends the FAR to update certain definitions and clauses pertaining to three procurement systems
included in the Integrated Acquisition Environment (the CCR database, the Excluded
Parties List System, and the Online Representations and Certifications
Application) which (along with the Disaster Response Registry) will now
be accessed through a single
Case 2005-037 ("Brand Name Specifications"): A
final rule, effective February 2, adopts, with changes, a
prior interim rule and amends the FAR to implement three previously
published OMB memoranda on the use of brand-name specifications.
Case 2009-043 ("Time-and-Materials and Labor-Hour
Contracts for Commercial Items"): A final rule, effective
February 2, will implement various GAO recommendations: (i) to
ensure that time-and-materials and labor-hour contracts are used to acquire
commercial services only when no other contract type is suitable; and
(ii) to instill discipline in the determination of contract type
in order to minimize the risk to the Government.
Case 2010-016 ("Public Access to the Federal Awardee
Performance and Integrity Information System"): A final
rule, effective January 3, adopts, with changes, the prior
interim rule amending the FAR to implement a section of the Supplemental Appropriations Act,
2010, which requires that the information in the Federal Awardee
Performance and Integrity Information System (FAPIIS), excluding past
performance reviews, be made publicly available.
Case 2010-005 ("Updated Financial Accounting
Standards Board Accounting References"): A final rule,
effective February 2, amends the FAR to update references to authoritative
accounting standards owing to FASB's Accounting Standards Codification of