Stan Hinton

Home
Contact Me
2017 Blog
2016 Blog
2015 Blog
2014 Blog
2013 Blog
2012 Blog
2011 Blog
2010 Blog
2009 Blog
2008 Blog
2007 Blog
2017 Procurement Review
2016 Procurement Review
2015 Procurement Review
2014 Procurement Review
2013 Procurement Review
2012 Procurement Review
2011 Procurement Review
2010 Procurement Review
2009 Procurement Review
2008 Procurement Review
2007 Procurement Review
Statutes
Regulations
Directives
Courts
GAO
Boards
SBA
Agency Sites
More Agencies
Periodicals
Research
 

 

Developments in Government Contracting--2012



December 31

DFARS Case 2012-D045: Effective January 30, 2013, a final rule revises the DFARS subpart 202.101 definitions of "contracting activity" and "departments and agencies." 

DFARS 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.

DFARS Case 2012-D049: A final rule amends the DFARS to add Poland as a "qualifying country."

DoD has issued quite a few miscellaneous technical corrections to the DFARS.  

The State 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.

The SBA's OHA has published several size decisions.

In Size 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.

In  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 subcontractor.

In Size 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.

December 28

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. 

GSAR 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. 

December 27

Effective 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 programs.

In P&K 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 excuses for its original proposal of a non-compliant system.

In Dellew 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.

In denying a motion for summary judgment in Alpena Marc, LLC, 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."  

December 25

In Matter 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 protest.

(Catching 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.

December 24 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." :)
December 21 Federal Acquisition Circular ("FAC") 2005-64 has been published and consists of the following item:

FAR 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.

December 20 The GAO sustained a protest by Exelis Systems Corp. because the agency's evaluation was not in accordance with solicitation's evaluation scheme and treated offerors unequally.
December 19

A proposed 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.

In The 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. 

December 18 In American 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 competition requirements.
December 14

Effective 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 update references.

In 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.

In NAICS 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.

December 13

The SBA's Office of Hearings and Appeals has published four decisions in size appeals.

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 determination. In 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.

In Size 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.

In Size 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."

December 12

In Evelyn 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.

In BAE 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.

In Hanley 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 applied."

In BYA 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.

December 11

In Management & 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.

In Systems 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.

In Tidewater 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 occurred.

December 8

Effective 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 retention.

Federal Acquisition Circular ("FAC") 2005-63 has been published. It includes only the following item:

FAR 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.

In COMINT 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.

December 7

In Ground 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 States.

December 6

Effective 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 51 ("Information"). The SBA will examine the employee-based size standards in this sector at a later date.

Also 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 Remediation Services"). 

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.

December 5

The 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.

December 4 

In Donald 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.

In  Amin 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.

December 3

In K-Con 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 construction sequence.

November 30

In the important Kingdomware 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 procurement.

November 29

The 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.

In FirstLine 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.

November 28

In Tri-County 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.

The State 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 Regulation's Commerce 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.

November 27

In Reema 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). :) 

Effective December 27, a final VA rule requires its contractors to submit payment requests in electronic form. 

November 22

In Chu 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.

November 21

In Science 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.

In Size 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.

November 20

The CBCA published several decisions.

In KK&L 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. 

In Jerome 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.

In Jane 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.

Federal Acquisition Circular (FAC) 2005-62 has been published and includes the following three items:

FAR 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. 

FAR 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.

FAR 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.

November 19

Effective 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 biobased 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.

A proposed 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.

November 16

Science 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.

DFARS 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.

November 14

In Res-Care, 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.

November 9

In SUFI 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.

In Size 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.

November 8

In Sigma 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 Government.

November 6

In Veridyne 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.

In J.C.N. 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.

In R.L. 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.

November 4

The SBA's OHA has published four new size decisions.

In Size 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.

In Size 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.

In Size 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.

In Size 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:

Appellant 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 management.   

The "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 affiliation.

November 2

In Steelform, 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.

November 1

The GAO published decisions sustaining three protests.

In Infoshred 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. 

In Phoenix 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. 

In Emergint 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. 

In Peter 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.  

October 31

Just to 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! 

October 26

In Power 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 litigation.

In MJL 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 Board.

October 25

Supreme 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 performance factor.

In Your 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 decision.

In Charles 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.

In EJB 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.

October 24

In a 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.

October 23

In Hartford 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)).

In Laboratory 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.

Lifecycle 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.

October 22

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.

October 19

In Kenney 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).

October 18

In IHS 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 procurement.

In Ettifaq-Meliat-Hai-Afghan-Consulting, 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.

In Union 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.

October 17

In Thomas 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.

October 16

In Bowers 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.

In Afghan 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 a classified addendum denying the plaintiff's claims that it had been disparately treated in relation to another similarly-situated firm.

In Atlantic 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.

October 11

In Orion 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.

In APAC 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").

October 10

In Phoenix 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. 

October 9

The CBCA has issued several decisions.

In Amin Farnam, the Board summarily denied an appeal involving a claim for the cost of repairs to a vehicle bought at an "as is" auction.

In Cecelia 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 subsequent orders.

In Shaw 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.

In Airclaims, 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 travel.

October 8

The SBA's OHA has issued several size decisions.

In Size 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 self-certification.

In Size 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. 

In Size 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.

October 5

In Extreme 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 of claims.

October 4

The EPA proposes to amend the "Printing" clause (1552.208-70) in its acquisition regulation (the "EPAAR"). Comments are due by November 5. 

October 3

FAR Case 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.

October 2

Executive 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.

In Golden 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.

September 30

In Size 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 "[t]akes 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? 

September 29

In Uniglobe 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.

GSAR Case 2006-G510: The GSA is revising Part 504 (Administrative Matters) of its acquisition regulation (the "GSAR"). 

September 28

In Kellogg 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 subcontracts.

In Eagle 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.

In URS 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.

September 27 Corrections to several sections of the DFARS have been published.
September 26

The GAO 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 12.301(a)(2).

The GSA's 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 September 25.

September 25

In Distributed Solutions, Inc., on the contractor's motion for reconsideration, the ASBCA vacated its earlier decision in order to allow further discovery on issues of contract interpretation.

In Green 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 original contract.

In Singleton 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.

The GAO sustained a protest by Glotech, Inc. because the agency failed to consider price in evaluating quotations for BPAs under the FSS program.

September 24

The SBA's OHA has issued several size decisions.

In Size 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.

In Size 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.

In Size 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 arrangement.

September 22

Effective 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). 

September 20

In Tip 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 CDA claim.

In Lublin 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 with HUD.

September 19

In GTSI 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 claim.

In Jacob 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.

Triumvirate 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 advantage. 

September 18

FAR 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. 

September 15

In Sikorsky 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." 

September 14

The 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).

The SBA 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.

September 13

Federal Acquisition Circular (FAC) 2005-61 has been published and includes the following four items plus technical amendments:

FAR 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 Procurement Agreement. 

FAR 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 Preparedness Program. 

FAR 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.

FAR 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.

The Circular also includes several editorial changes

September 11

SBA proposes (i) to increase small business size standards for 11 industries in NAICS Sector 11 (Agriculture, Forestry, Fishing and Hunting), (ii) to increase size standards for 37 industries in NAICS Sector 52 (Finance and Insurance) and for two industries in NAICS Sector 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.

September 9

In 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 unobjectionable.

September 8

In BPLW 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.

September 6

In Scott 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 on liability and quantum) 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.

FAR 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 5.

The 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 companies. 

DHS has issued a correction of the recently published rule that made extensive revisions to its acquisition regulation (the HSAR). See August 22 entry below. 

September 5

In NDG 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.

September 3

The DOT's 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.

The 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. 

September 2

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 circumstances.

September 1

In Size 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.

August 31

The GAO 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.

In K-Con 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.

In Atkins 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.

In Primetech, 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.

The CBCA gave each side a partial victory when it granted aspects of both cross motions for summary judgment concerning various construction contract claims in Power Wire Constructors.

August 30

Asiel 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.

The short 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 that happened. 

August 29

In Nycal 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 drilling.

DFARS 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.

DFARS 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. 

DFARS Case 2012-D001: A final rule amends the DFARS to revise and standardize reporting requirements for government-furnished property.

August 28

DFARS 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.

In Systems 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.

In Utility 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 contractor.

In ERKA 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.

August 26

In Overseas 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.

August 25

In NikiSoft 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 wins another 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. 

August 24

FAR 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.

Aldevra 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 client:

"Have you ever had any experience with GAO protests?"

"Quite a bit, yes."

"But have you ever won any protests?"

"Currently, 12 in a row and counting."

"You're hired!"

Philips 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 awardee.

August 22

In Teresa 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.

Cyberdata Technologies, Inc., is one of the extremely rare protests the GAO has entertained under its rule at 4 C.F.R. 21.2(c) ("GAO, 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 purchase agreement.

A final 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.

August 21

In IAP 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.

In Omni 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.

The 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.

The 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). 

August 20

The SBA 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.

August 19

The Court of Federal Claims' decision in the unsuccessful protest by Navarro 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. 

August 18

The SBA's OHA has published several decisions.

In Size 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 original protest.

In NAICS 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. 

In 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.

In Matter 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.

In Matter 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 years.

August 16

The following case is a cautionary tale that every government contractor should remember. 

Standard 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 tradeoffs. 

Historically, 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.

Assisted 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.      

August 15

In URS Federal Services, Inc., the GAO recommended reimbursement of costs related only to the portion of the protest that was meritorious.

August 14

In Inframat 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. . . . 

In Lear 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.

In Distributed 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.

August 10

FAR 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.

August 9

The 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 solicitation.

August 7 In M. 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.
August 6

In addition to the size decisions I described in yesterday's blog entry, the SBA's OHA has issued the following NAICS decisions.

In NAICS 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 the regulation.

The OHA also found three NAICS appeals meritorious.

In NAICS 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).

In NAICS 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.

In NAICS 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).  

August 5

The OHA has published several size decisions.

In Size 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.

In Size 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.

In Size 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 circumstances rules.

In Size Appeal of IPKeys Technologies, LLC, the OHA affirmed the Area Office's finding that there was no violation of the ostensible subcontractor rule.

In Size 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. 

August 4

In 360Training.com, 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.

In ePlus 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.

Clark/Foulger-Pratt 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.

August 3

In DGR 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.

August 2

In Bell 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 Responsibilities" clause.

In Sugar 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.

In Omniplex 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). 

August 1

In Watterson Construction Co., the Court of Federal Claims denied the plaintiff's EAJA application because it found that the Government's position was substantially justified.

July 31

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.

In  MCC 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.

July 27

In Raytheon Co., the 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.

July 26

FAR 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.

Federal Acquisition Circular (FAC) 2005-60 has been published and includes the following five items, plus technical amendments:

FAR 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.

FAR 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.

FAR 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.

FAR 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. 

FAR 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.

The FAR Council also has made editorial changes to certain sections in FAR Parts 1, 22, and 52.

The Bureau 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 Buy 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.

July 25

Effective 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. 

Also effective August 24, a final rule rule updates policies and responsibilities for controlling DoD Unclassified Controlled Nuclear Information.

July 24

In GaN 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.  

DoD has 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. Reg. 19128).

DFARS 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. 

DFARS 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.

DFARS 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. 

July 21

The Bureau 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.)

A proposed 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 September 21. 

July 19 SBA proposes to revise the small business size standards for nine industries in NAICS Sector 22: Utilities. Comments are due by September 17.
July 18

OFPP is 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 NAICS Sector 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.

In Glenn 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 scheme.

July 17

Aldevra 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.

In its 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 adjustment. 

In McTECH 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). 

July 15

The facts 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.

In 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.

In 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.

July 14

In Data 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 so. 

July 13

In CBY 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 record.

In System 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.

The CBCA granted the contractor's appeal in Red Gold, Inc., because the contractor successfully established all the elements for a unilateral mistake-in-bid claim.

July 10

The Commerce Department's Bureau of Industry and Security (BIS) has issued quite a few corrections to its Export Administration Regulations (EAR).

FAR 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.

July 7

Effective 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.

The Court 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 reading. 

July 4

The ASBCA published a slew of decisions yesterday, and I've added all of them to the ASBCA Decisions page. The most interesting of the bunch follow: 

In Intermark 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) were unavailing.)

In Parsons 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.

In TMS 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.

In Eastern 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 the contract.

In International 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 requirement.

In Strand 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.

In Hedgecock 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.

In a couple of similar cases involving the same contractor, e.g., DODS, 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.

July 3

In Size 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.

The State 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. 

The Bureau 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).

The BIS 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.

June 29

DFARS 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. 

DFARS 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.

DFARS Case 2012-D043: This final rule amends the DFARS to add the Czech Republic as a "qualifying country."

DFARS 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 August 2011.

DFARS 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.

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.

June 28

In BINL, 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 liability limit.

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 United States.

June 27

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 SDVOSB/VOSB status only every two years rather than annually. Comments are due by August 27.

June 25

The SBA's OHA issued several size decisions:

In Size 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.

In Elmendorf 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.

June 22

Rocamar 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 test.

June 21

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.

In tandem 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.

June 19

The State 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.

In SUFI 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. 

In Metron, 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. 

June 15

DFARS 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. 

DFARS 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."

DFARS 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.

June 13

In Admark 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. 

The State 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.

June 12

In Cubic 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.

In NOVA 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.

June 8

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.

June 7

KPMG 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.

The State 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).

The State 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.

As a 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.

June 6 In Wildflower 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 several decisions.

In Martin 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.

In Caddell 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.

In UniTech 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.

In Trace 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.

June 5

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.

June 2

I have 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.

June 1

The United 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.  

The CBCA 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 Bulletin Number 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.

May 31

In Kingdomware Technologies (as in Aldevra and Crosstown 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 work. Note to VA--the GAO is not going to change its mind on this issue. 

May 30

In International 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. 

In a 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 (as premature).

May 28

The SBA's OHA  has published several size decisions, four of which involve the ostensible subcontractor rule.

In Size 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.

In Size 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.

In 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. 

In 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.

In Size 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).

In Size 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.

In Size 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 another.

In a VET decision, Matter 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.

For all 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:

In Matter 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.

Similarly, 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.)

May 25

In CBY 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 rational basis.

In Grand 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. 

May 24

The GAO 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. 

In M.E.S., 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.   

May 22

In Shaka, 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.

The PSBCA has published several decisions, most of which are either unusual or just plain entertaining to read.

In Sharon 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. 

In Laura 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.)

In Harold 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.

In Winona 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.

DFARS 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.

DFARS 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 23. 

DFARS 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 23. 

DFARS 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.

DFARS 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 contingency areas.

DFARS 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. 

DFARS 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.

May 18

The 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.

The State 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 July 2.

May 17

FAR 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.

May 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.

May 15

The SBA 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.

In order 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.

May 13 In 360Training.com, 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. 

The SBA's OHA published two size decisions.

In Size 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 procurements. 

In Size 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.

May 11

DoD has 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.

May 10

Federal Acquisition Circular (FAC) 2005-59 has been published and includes the following three items:

FAR 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.

FAR 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 9.

FAR 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. 

In CPR 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.

May 9

In Terex 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 conclusive.

In California 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.

May 8

In Kellogg 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).

In Distributed 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.

In Pew 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 occur. 

In Versar, 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.

The ASBCA 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 fact.

In CACI, 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.

In Waterstone 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).

May 6

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.

May 3

The 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.

FAR 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. 

In Englewood Terrace Limited Partnership, a nonprecedential decision, the Court of Appeals for the Federal Circuit remanded 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.

May 2

Effective 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 exemption.

The State Department also is proposing to amend the ITAR in order to revise Category 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 June 18. 

May 1

The 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.

In 5860 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). 

In BayFirst 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 entry below.)

In Three 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.

In Top 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.

April 30

In Midwest 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 procurement.

April 29

The CBCA 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.

The CBCA 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 past.

April 24

In Triad 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.

In Valley 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.

In Size 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 review. 

Aldevra 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"?

April 22

In Parsons 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.

April 20

In an 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. 

April 19

The State 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. 

April 18

Federal Acquisition Circular (FAC) 2005-58 has been published and includes the following three items (plus technical amendments):

FAR 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. 

FAR 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.

FAR 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 million.

The VA is proposing to amend its acquisition regulations to require contractors to submit payment requests in electronic format. Comments are due by June 18.

April 17

Effective 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.

The 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.

Contracting, 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 duty.

The same 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.  

The ASBCA published several decisions.

In A-1 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. 

In Ironhorse 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.

In Kellogg 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.

In SplashNote 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 of profit.

April 16

The CBCA published two decisions.

In ASP 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.

In Singleton 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. 

April 13

The 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, 0Y521, to the CCL to cover items that warrant control on the CCL but are not yet identified in an existing ECCN. 

April 11

The GAO 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 evaluation criteria.

April 10

The GAO 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.

April 6

In HP 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.

The CBCA has published several decisions.

Fluor 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 Officer.

In CDA, 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.

In The 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.

In The 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. 

Even 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.

April 5

DFARS 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.  

April 4

In SWR, 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.

April 3

In Raytheon 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 period. 

In Clinton 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.

In The 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.

April 1

In Size 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).

March 30

DFARS 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. 

DFARS 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.

DFARS 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 clauses.

DFARS 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 $103 million. 

A technical amendment to the DFARS adds a section 203.806 to provide an address for reporting suspected lobbying violations.

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.

March 29

The Court of Federal Claims held that, pursuant to 10 U.S.C. 2304c(e)(1), 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.

The 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. 

March 28

The GAO 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.

March 27

Effective April 26, NASA is adopting, without change, a final rule amending the NASA 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. 

In InGenesis, 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.

In Maggie's 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 be waterproof. 

March 26

Numerous 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) and FAR Case 2011-030 (New Designated Country (Armenia) and other Trade Agreements Updates).

In NAICS Appeal of Hummingbird Solutions, the SBA's OHA dismissed, as untimely, a NAICS appeal filed more than 10 days after issuance of the solicitation.

March 25

I've fixed quite a few broken links to Federal Circuit decisions (and have corrected a few additional citations) on the Winstar decisions page

March 23

In Crosstown 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. 

March 22

In Boston 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.

In Contracting 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.  

Leaving 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. 

March 21

The GAO 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.

In Size 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.

In Matter 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.

March 20

The ASBCA has published four decisions denying various motions for summary judgment and for reconsideration, which you can find here.  

March 19

In denying Veleta 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.

In Walsh/Davis 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.

March 18

In Communication 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.  

The same court dismissed two contract claims for lack of subject matter jurisdiction.

In L-3 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 jurisdiction.

In Township 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 promissory estoppel.

March 16

Aldevra won its GAO protest because the VA failed to consider whether the FSS acquisition should have been set aside for SDVOSBs.

Proposed 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.

March 15

Digital 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.

March 14

The GAO 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, request clarifications.

In  Solute 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).

March 13

In Mission 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.

In Contracting 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).

In JRS 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 rejected.

In Bannum, 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.

March 12

The SBA's OHA has published several decisions. 

In Matter 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.

In Size 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.

In Size 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 appeal.  

DFARS 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." 

DFARS 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. 

In Joyce 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.

March 9

Numerous corrections 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.

March 7

FAC  2005-56 has been published and includes only the following item:

FAR 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.

March 4

In M.E.S., 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.

In Delta Industries, Inc., the ASBCA held that a purchase order was an offer that lapsed when Delta failed to deliver within the required time.

March 3

The award 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. 

First, the 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 CDA. 

Secondly, 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 "Disputes" clause. 

Third, the 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 (without qualification). 

Finally, 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).   [Emphases added] 

Those 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 unreviewable.

There probably was a way to reach the same result using logic--the court opted for gibberish. 

March 2

In Size 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, lacked standing. 

Federal Acquisition Circular (FAC) 2005-56 has been published and includes the following seven items plus technical amendments:

FAR 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 program. 

FAR 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.

FAR 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 accordingly."

FAR 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 WOSB Program. 

FAR 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.

FAR 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 Aircraft. 

FAR 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.

 

The Department of Energy has extended (to March 16) the period for providing comments 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). 

 

The Court 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, Inc.).  

February 29

In Muhtesem 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.

In Southern 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.

In Hartman 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.

February 25

The GAO has published two more decisions sustaining  protests.  

In InfraMap 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. 

In Wisconsin 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 performance. 

February 24

In Furniture 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.)

In Side 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 entire appeal.

In Lawrence 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.

DFARS 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).

DFARS 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. 

DFARS 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.

DFARS 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. 

DoD's 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 United States. 

In 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.  

Effective 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. 

SBA 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.

Effective 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 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. Comments are due by April 23.

February 23

The Court 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. 

In Diversified 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.

February 22

FAR Case 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.

In Pacific 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.

February 16

Somebody must have slipped some happy juice into the GAO's punchbowl because all three of the decisions it published yesterday sustained protests.

In Standard 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.

In ITT 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 technical evaluations.

In the 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 solicitation.

The SBA's OHA has published several size decisions.

In Size 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 industry.

In Size 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 the award.

In Size 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 requirement.

February 15

In TriCenturion, 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. 

Effective 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.

Effective February 29, EPA will amend the prescription in the EPAAR for the work assignment clause in order to provide clearer and more detailed instructions for the use of the clause. 

February 14

The ASBCA published several decisions, including the following:

In Space 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.

In ACR 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.

In General 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 prepared. 

February 11

The GAO has adopted the FAR's debarment and suspension procedures.

The GAO 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 technically unacceptable.

February 10

Effective 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). 

In Hillcrest 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).

In Whiteriver 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.

In TKC 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.

February 9

In J.F. 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.

In Lan-Cay, 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.

February 7

In GTA 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 order. 

In 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 the proposal.  

February 5

In Sharp 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 Government.

February 3

In 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 below).

In 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.

February 1

In an 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. 

DoD's 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 United States.

January 29

DFARS 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 this site

DFARS 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 Agreement.

DFARS 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.

DFARS 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.

DFARS 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 March 30.

January 28

In The 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.

In Travelers 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 equitable subrogation. 

In Simulation 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.

In Parsons-UXB, 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." 

In Singleton 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.

In Rafael 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.

In Dr. 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.' "

The SBA's OHA has published several decisions--

In Matter 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.

In Size 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.

In SP 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.

In Alutiiq 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). 

January 27

The GAO published two decisions sustaining protests.

In SeKON 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).

In The 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 procurements.

January 26

In The 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.

In Distributed 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 contractual language.

I've cleaned up a bunch of broken links on the Statutes page.

January 25

In Structural 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 merits.

In Century 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.

In South 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 costs. 

January 24

In CRAssociates, 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.

In URS 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.

In Ceradyne, 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.

In SUFI 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.

In Railway 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.

In Philip 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.

January 19

DFARS 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.

DFARS 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.

DFARS 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.

DFARS 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.

In Size 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.

In Size 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 affiliated firm.

January 14

The GAO 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 different brand.

The Court 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).

Science 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 administrative record).

On 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.

January 13

In USCS 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.

January 12

The SBA 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.

FAR Case 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 SBA.  

FAR Case 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. 

January 11

In Size 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 nonmanufacturer rule.

In Size 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.

January 8

In Matter 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.

In Size 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).

January 7

The GAO 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 Government.

January 6

The GSA 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 upon request.

January 5

Effective 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 information resources management

In Digitalis 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.)

January 4

In Quimba 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 appeal.

In Akal 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.

In URS 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.

In Timber 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.

January 1

Happy New Year! 

Federal Acquisition Circular (FAC) 2005-55 is being published and includes the following  six items:

FAR 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 parties. 

FAR 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 web site.

FAR 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. 

FAR 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.

FAR 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. 

FAR 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 GAAP. 


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