International, Inc., the ASBCA held it lacked CDA
jurisdiction over a government claim against only one member
of a JV, when the JV was the contracting entity.
E. Zoeller , the ASBCA held that a motion for
reconsideration filed 32 minutes past the expiration of the
30-day deadline would not be considered.
Acquisition Circular (FAC) 2005-72
has been published and includes the following four items.
Case 2010-010: Effective January 30, 2014, a final rule
amends the FAR to implement a section of the Consolidated Appropriations Act,
2010, specifically, to require service contractors for executive agencies,
except where DoD has fully funded the contract or order, to submit information
annually in support of agency-level inventories for service contracts.
Case 2009-024: Effective January 30, 2014, this final rule
amends the FAR to update and clarify the priority of sources of supplies and services for use
by the Government.
Case 2013-005: A final rule adopts, without change, the
prior interim rule amending the FAR to address concerns raised in an opinion from the
DOJ's Office of Legal Counsel involving the use of unrestricted, open-ended
indemnification clauses in acquisitions for social media applications.
Case 2013-021: Effective January 1, 2014, a final rule
amends the FAR to incorporate revised thresholds for application of the World Trade
Organization Government Procurement Agreement and the Free Trade
Agreements, as determined by the United States Trade Representative.
A parallel rule amends the DFARS to reflect these changes. See
Boeing Co., the ASBCA held that the "Limitation of
Funds" clause limited the amount the prime contractor
could recover for subcontract settlement costs after a
Appeal of Ramcor Services Group, Inc., the
SBA's OHA held that the Area Office correctly determined a
firm's size status as of the date of its initial priced offer,
as opposed to the date of a subsequent proposal revision.
Appeal of Pacific Power, LLC, the OHA reversed the Area
Office's dismissal of a protest because (i) the protester
presented sufficient evidence that it had made a timely
telephonic protest; and (ii) the protester had standing
pursuant to the regulation applicable to procurements that are
not set aside for small businesses (13 C.F.R.
Appeal of Alterity Management & Technology Solutions,
the OHA affirmed the Area Office's finding of affiliation
under the newly organized concern rule.
has published a direct
final rule, to be effective February 21, 2014, unless
adverse comments are received by January 22, which amends 14
C.F.R. Part 1204 (i) to make administrative changes to correct
organizational information and citations that have changed in a regulation that
establishes NASA’s small business policy, (ii) to outline the delegation of
authority to implement this policy, and (iii) to include a reference to NASA’s general policy for
small business programs and NASA small business subcontracting plan and
January 22, 2014, SBA is increasing two small business size
standards in NAICS Sector 23 (Construction) and retaining the
current standards for the 30 remaining industries in that Sector. Specifically,
SBA is increasing the size standards for NAICS 237210 (Land
Subdivision) from $7 million in average annual receipts to $25.5 million, and 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 $25.5 million.
Jemal’s Lazriv Water, LLC
(for purposes of applying a building lease's tax adjustment
clause), the Court of Federal Claims interpreted a provision
stating that the base year taxes included "the real estate taxes for the first 12-month period of the lease term coincident
with full assessment."
Case 2014-D006: An interim rule amends the DFARS to clarify rules of origin under
trade agreements for photovoltaic devices to be utilized under covered
DoD contracts, as required by a section of the National Defense Authorization
Act for Fiscal Year 2011. Comments are due by February 18,
Case 2011-D055: A final rule amends the DFARS to update and clarify
requirements for unique identification and valuation of items delivered under
ARC Electric JV, LLC, the CBCA denied the contractor's
claim for extra compensation to deliver an item clearly
required by the contract specifications.
Corp., the CBCA held that the contractor was liable for
damage caused by Hurricane Irene to government vehicles stored
by, and in the care and possession of, the contractor.
Systems Information and Electronic Systems Integration Inc.,
the GAO sustained the protest because (i) the agency did not
evaluate technical risk in accordance with the solicitation's
requirements; (ii) the agency did not adequately document its
rationale for eliminating multiple technical risks and
weaknesses from its evaluation of the awardee's technical
proposal; and (iii) the agency improperly credited the awardee
with outdated corporate experience.
Case 2011-D055: A final rule amends the DFARS to update and clarify
requirements for unique identification and valuation of items delivered under
Corp., the ASBCA held that (for purposes of determining
whether certain government claims were barred by the CDA's
six-year statute of limitations) (i) the Government's CAS
noncompliance claim first accrued as of date the Government
completed its CAS noncompliance audit for all payments made to
contractor prior to that date; and (ii) thereafter, the
Government's claims were in the nature of a continuing claim
that accrued for each subsequent payment to the contractor as
it was made.
Government Services, LLC , the ASBCA held that (i) given
all the surrounding circumstances, the contractor's letters to
the Government implicitly requested Contracting Officer's
decisions concerning the interpretation of the contract's
terms and, therefore, were valid CDA claims; and (ii) the
contractor complied with the CDA's requirements by sending its
claim letter to the Contracting Officer identified in the
contract, and the fact that a new Contracting Officer (with a
different address) had been assigned without notice to the
contractor did not invalidate the claim submission.
Aviation, Inc., the ASBCA held that (i) a claim
certification submitted subsequent to, but clearly
referencing, a prior REA essentially converted the REA into a
CDA claim; and (ii) a request for a Contracting Officer's
decision was implicit in the correspondence read as a whole.
Boeing Co., the ASBCA (i) refused the contractor's request
to dismiss claims related to several contracts simply because
the Government had misidentified one contract number and (ii)
allowed the Government to correct the number in the record.
Earman, the Court of Federal Claims rejected the
plaintiff's claims on various jurisdictional and contract
interpretation grounds, including the following: (i) the
plaintiff presented no evidence of its own mistake to support
its mutual mistake claim; (ii) a statute relied on by the
plaintiff had not been incorporated into the contract (despite
the Government's concession during the litigation that it had
been!); and (iii) another provision had not been incorporated
by the Christian doctrine because the contract at issue was
not a procurement contract, and the clause in question was not
a "mandatory contract clause which express[es] a significant or deeply ingrained strand of public procurement
Tour Adventures, Inc., the court held that, although the
Government had erred in concluding that omissions of financial
information from the proposals of the protester's competitors
were immaterial, the court lacked jurisdiction to award
injunctive relief on a solicitation for a concession contract
and, therefore, the protester was limited to recovery of its
bid preparation costs.
Appeal of Cambridge International Systems, Inc.,
the SBA's OHA affirmed the Area Office's finding that there
was no affiliation through common management among various
Inc., a successful protest, the Court of Federal Claims
held that the Contracting Officer's determination that an
otherwise successful offeror on an SDVOSB set-aside was
nonresponsible solely because it had not informed the
Government that its service-disabled owner had died after
it had submitted its offer lacked a rational basis because (i)
SDVOSB status is determined as of the date of submission of an
offer; (ii) the solicitation did not require the owner's
performance on the contract; (iii) his identity was not one of
the evaluation factors; and (iv) he was nowhere identified in
the offer as one of the offeror's key personnel.
Contracting Group, LLC, the CBCA denied the contractor's
claim of improper rejection because the generators it
had offered had been in storage for the previous four
years and, therefore, did not meet the contract's requirements
that they be new and available for testing at their
Construction Co., the ASBCA granted the Government's
motion to amend its answer to include the affirmative defense
of fraud after the contractor's vice president pleaded guilty
to soliciting and receiving kickbacks from subcontractors on a
number of contracts, including the one involved in the current
sustained a protest by SRA
International, Inc., because (i) the procuring agency's
conclusion that the protester had failed to provide required
information regarding small business subcontracting lacked a
rational basis; and (ii) by assigning a significant weakness
to the protester's proposal regarding strategic planning while
failing to do so for other offerors with deficiencies of
similar import, the agency had not evaluated offers on an
Case 2012-D048: A final rule amends the DFARS to address the
Contracting Officer's role in assisting the DoD implementing agency in
the preparation of the letter of offer and acceptance for a foreign military sales program that will
require an acquisition.
Case 2012-D038: A final rule amends the DFARS to make it
clear that fringe benefit costs are unallowable if they are contrary to
(i) law, (ii) an employer-employee agreement, or (iii) an established policy of the contractor.
Case 2013 D035: A proposed rule would amend DFARS Part 212
(Acquisition of Commercial Items) to clarify the applicability of
DFARS 252.211–7008 (Use of Government-Assigned Serial
Numbers) and DFARS 252.232–7006 (Wide Area WorkFlow Payment
Instructions) to acquisitions of commercial items by adding them to the list at 212.301(f) and
revising the clause prescriptions to require their inclusion in solicitations
and contracts for acquisitions of commercial items using FAR
Part 12 procedures. Comments are due by February 4,
Case 2013-D026: A proposed rule would amend the DFARS (i) to
create an overarching prescription for the research and development-related
clause with an alternate, (ii) to add a separate prescription for the basic clause and for the alternate,
and (iii) to include in the regulation the full text of the alternate clause.
Comments are due by February 4, 2014.
Case Case 2013-D020: A proposed rule would amend the DFARS
to remove the DoD-unique list of nonavailable articles because these
items have been found to be either available domestically or are not used
by DoD. Comments are due by February 4, 2014.
A set of technical
corrections to the DFARS also has been published.
Sound Services Group, LLC won its GAO protest because the
agency's evaluators (i) failed to conduct meaningful
discussions with it and (ii) failed to adequately consider the
information it had provided in its non-price proposal.
Connections, Inc., the Court of Federal Claims held that
(i) CDA language requiring, inter alia, a claim in a
sum certain, which had been improperly inserted in the
Disputes clause of a non-CDA AAFES concessions contract, was
unenforceable; and (ii) AAFES properly terminated the contract
for unsanitary conditions under a Default clause that
permitted immediate termination by either party for a breach
by the other.
& Assocs., LLC, the ASBCA held that the Government did
not breach an ID/IQ contract by failing to award a specific
task order to the contractor during an option period because
the Government already had met its obligation to order the
minimum quantity. Denying the Government's motions to dismiss,
the Board retained jurisdiction over the contractor's claims
that the Government had breached both (i) the implied-in-fact contractual duty to provide
the contractor a fair opportunity to be considered for the issuance of a task
order and (ii) the underlying ID/IQ contract (by failing to
protect the proprietary information in the contractor's task
Press International, Inc., an unsuccessful post-award
protest, the Court of Federal Claims held that (i) the GPO is
not subject to SBA's COC requirements, and (ii) the
Contracting Officer had a reasonable basis for determining
that the low bidder was nonresponsible.
Law Firm, LPA, the court held that (i) the plaintiff's
affirmative claims were forfeited under the Special Plea in
Fraud statute because the plaintiff had submitted falsified
routine inspection reports under its contract, and (ii) the
plaintiff was liable for monetary penalties for four such
falsified submissions under the Civil False Claims Act.
sustained a protest by Logistics
2020, Inc., because the agency had violated the
solicitation's evaluation scheme by failing (i) to perform a
price realism analysis and (ii) to conduct a qualitative
evaluation of proposed personnel.
Terrace Limited Partnership, on remand from the Court of
Appeals for the Federal Circuit, the Court of Federal Claims
reduced its original award of more than $3 million in damages
for lost profits resulting from a breach of contract to zero
because it said the plaintiff had failed to prove the amount
of damages resulting from the breach. The decision is a bit
strange because the court said it did not need to even address
the single, narrow issue that the appeals court had ordered it
to reconsider. Subsequently (in 2015) the CAFC
affirmed the CoFC's decision.
Construction and Logistics Co., the ASBCA upheld a
termination for cause due to the contractor's failure to
deliver "new" items, as required by the contract.
Warehousing Co. K.S.C., the ASBCA held that the
Contracting Officer's repeated delays (totaling more than four
years) in issuing a decision on the contractor's claim (in
order to wait for judicial outcomes in separate fraud cases)
gave rise to an appealable deemed denial.
Case 2012-032: A proposed rule would amend the FAR to clarify
when to use higher-level quality standards in solicitations and contracts,
and to update the examples of higher-level quality standards by revising
obsolete standards and adding two new industry standards that pertain to
quality assurance for avoidance of counterfeit items. Comments
are due by February 3, 2014.
DoD has issued a final
rule, effective January 2, 2014, which supersedes the prior
interim rule and revises 32 C.F.R. Part 158 to establish policy,
assign responsibilities, and provide procedures for operational contract
support (OCS), including OCS program management, contract support
integration, and integration of defense contractor personnel into contingency
operations outside the United States.
Shipyard, Inc., an unsuccessful protest, the Court of
Federal Claims held that (i) the Government had engaged in
meaningful discussions with the protester by advising it that
its price was higher than Government's estimate and, later, by
providing it an opportunity to revise its proposal, including
its price; and (ii) the Government was not also
required to advise the protester that its price was higher
than that of other offerors or to reopen discussions to remind
it that its price was high.
Acquisition Circular (FAC) 2005-71
has been published and includes the following two items (plus
changes to the FAR):
Case 2012-031: Effective December 26, a final rule amends
the FAR to implement the policy provided by OMB Memoranda M–12–16, dated July
11, 2012, and M–13–15, dated July 11, 2013, by incorporating a new clause to
provide accelerated payments to small business subcontractors.
Case 2013-019: A final rule amends the FAR to add Croatia as a new designated country
under the World Trade Organization Government Procurement Agreement.
Sand & Gravel Co., over the Government's strenuous
objections, the CBCA determined that most of costs claimed in
the contractor's convenience termination settlement proposal
Contracting, Inc., the Court of Federal Claims held the
protester lacked standing to protest the award to another
contractor because the protester's proposed price was more
than 25% higher than the Corps of Engineers' IGE, making it
ineligible for award under 33 U.S.C. 624(a)(2).
Inc., the Court of Appeals for the Federal Circuit
affirmed the CoFC's prior decision that the DOL acted within
its statutory authority and in compliance with applicable
regulations in setting aside a Job Corps Center procurement
for small businesses.
Inc., the Court of Federal Claims denied a successful
protester's application for attorneys fees under the EAJA
because the Government's (losing) position was substantially
justified, "albeit barely." To me, the court is
treating "substantially justified" as covering any
litigation position that is barely plausible, and I don't
think that was the intent of the statute.
Case 2013-001: The comment period for the proposed rule
regarding ending trafficking in persons has been extended to
& Evolution Construction Co., the ASBCA held it lacked
CDA jurisdiction over an appeal demanding a convenience
termination settlement amount in excess of $100,000 because
none of the prior termination settlement proposals submitted
to the C.O. had been certified, even though the most recent of
those proposals had been for less than $100,000.
Insaat Ticaret A.S., the ASBCA held that, under the concept of a
"deemed denial," the Board had jurisdiction over an appeal
which had been filed with the Board (i) before the C.O. had issued a
decision on the underlying claim and (ii) less than 60 days after that
original claim had been filed with the C.O., because, at the time the
Government had moved to dismiss the claim for lack of jurisdiction,
and indeed even as of the date of the Board's decision on that motion,
the C.O. still had not issued a decision on claim (and many
more than 60 days had, by then, elapsed).
of Y & S Technologies, Inc., the SBA's OHA
affirmed the SBA's decision denying a firm's entrance into the
8(a) program because the individual upon whom its application
was based had not presented sufficient specific
evidence of social disadvantage as a result of his appearance
and practice as an Hasidic Jew.
Appeal of Red River Computer Co., the SBA's OHA affirmed
the Area Office's finding that the protested concern was
affiliated with its large business subcontractor under the
ostensible subcontractor rule because the subcontractor would
be performing all the primary and vital contract requirements.
Appeal of Iron Sword Enterprises, LLC, the OHA
affirmed the Area Office's finding of affiliation under the
ostensible subcontractor rule because the prime construction
contractor would not be the manager of the construction
Appeal of Combat Readiness Health Services, Inc., the
OHA affirmed the Area Office's finding that the prime
contractor was not unduly reliant on its subcontractor
and, therefore, was not affiliated under the ostensible
Appeal of Mali, Inc., the OHA affirmed the Area
Office's authority to issue its size determination because the
solicitation was for a requirements contract, not a BPA, as
the appellant had contended.
of Bozeman, Inc., dba Maintenance Patrol, the ASBCA held
that the Government's failure to notify the contractor of its
appeal rights in a Contracting Officer's
"memorandum" denying a claim, coupled with
subsequent actions that led contractor to believe the
Government was reconsidering its decision, excused the
contractor's failure to appeal the original
"decision" within 90 days. On the merits, however,
the Board held that yearly releases executed by the contractor
precluded its subsequent claims for additional SCA wage
Enterprises, LLC, the ASBCA held that the Government
properly terminated a contract for cause because the
contractor was not authorized by the manufacturer to provide
(resell) required support for specified systems and, thus,
could not fulfill terms of contract.
Case 2013-D037: A final rule amends the DFARS to remove coverage on
contractors performing private security functions that is now covered in the
Case 2012-D050: An interim rule amends the DFARS to implement a section of the
National Defense Authorization Act (NDAA) for FY 2011, as amended by the NDAA for FY
2013, which allows DoD to consider the impact of supply chain risk
in specified types of procurements related to national security systems.
Comments are due by January 17, 2014.
Case 2011-D039: A final rule amends the DFARS to add a new subpart
204.73 and associated contract clause to address the requirements for safeguarding unclassified controlled technical
Management Group LLC, the GAO held that the agency's
evaluation of the protester's price proposal was flawed
because, in raising the proposed labor hours and prices, the
agency ignored the protester's innovative technical approach.
Web Services, Inc., the Court of Federal Claims sustained
a protest against the proposed corrective action in response
to a successful GAO protest. Specifically, the court held that
(i) the original awardee's proposal was so far superior to the
original protester's proposal that there was no basis for the
GAO to find any prejudice to the original protester from the
limited flaws it found in the evaluation, and (ii) the GAO's
recommendation that negotiations should be re-opened was
overbroad. In other words, the original contract winner gets
to keep its contract.
Properties, LLC involves the unusual situation where a
lessor claimed the Government/lessee had anticipatorily
repudiated its building lease. The lessor, therefore,
terminated the lease and made a claim for breach damages
associated with its attempts to release the space. The CBCA
held that the Government had not repudiated the lease and that
the lessor should have simply made a claim for delay damages
as a result of the Government's delays in providing build-out
DOE is proposing to amend its acquisition
regulation (the "DEAR") to make changes to conform to the
FAR and to update, clarify and streamline text in certain DOE intellectual property and technology
transfer clauses to make these DOE clauses consistent with recent changes to the FAR.
Comments are due by December 9.
GAO sustained a protest by Trailboss
Enterprises, Inc., because the record was devoid of
evidence that the evaluators had conducted a qualitative
evaluation and comparison of proposals, which was required by
International LLC and Kellogg, Brown & Root Services, Inc.,
the Court of Federal Claims held that the Government's
decision to override a CICA stay during a bid protest was
based on a "best interests" analysis that was
neither arbitrary nor capricious. The court reasoned in part
Given the fact that all the transition activities would occur in Iraq,
which the agency describes as a dangerous place and one in which it is in the
government’s best interest to limit personnel and the size of its
"footprint" in order to minimize security concerns,
. . . and that multiple contract vehicles would have to be extended, with the attendant need for visas,
housing and licensing, it was not arbitrary or capricious to limit the risks of transition
by overriding the stay. These are not illusory concerns. In light of the
possibility that extending existing contracts or implementing sole-source
bridge contracts would not unfold with the efficiency of a Swiss watch, the
agency’s decision that the best interest of the government was served by
initiating immediate transition to [the winning offeror] rather than pursuing what it believed
was a risky alternative approach was not unreasonable. While the government
may have been cautious, it was not arbitrary or capricious to insist on a stay
override to ensure a buffer period during the transition schedule.
Mobley Assocs., the CBCA held that the overwhelming weight
of the evidence established that an extension to a fixed-price
contract was, itself, fixed-price (rather than T&M) so
that the actual hours worked by the contractor were irrelevant
to the amount it was entitled to bill.
Buffalo Construction, Inc., a nonprecedential decision,
the Court of Appeals for the Federal Circuit agreed with the
CoFC that the Government's decision shortly before trial to
convert a default termination to a termination for convenience
mooted the plaintiff's claim for attorneys' fees under the
Construction, LLC, the Court of Federal Claims held that
the contractor was entitled to attorneys' fees under the EAJA
because the agency's position in the underlying
bid protest was not substantially justified.
Appeal of Advanced Projects Research, Inc., the SBA's
OHA remanded the case to the Area Office to determine whether
an oral operating agreement existed between the members of
firm to limit one individual's power to control it.
Appeal of AcelRx Pharmaceuticals, Inc., the OHA upheld
the Area Office's finding of affiliation through identity of
sustained a protest by Savvee
Consulting, Inc., because the agency used unstated
evaluation criteria to evaluate proposals and because of
flawed evaluations under the Corporate Experience and
Case 2013-D006: A final rule amends the DFARS to remove the Director of
Defense Security Cooperation Agency from the approval process for waiver or
reduction of charges for the use of Government property on work for
foreign governments or international organizations.
Case 2013-D031: A final rule amends the DFARS to add Croatia as a new designated country
under the World Trade Organization Government Procurement Agreement.
Case 2012-D044: A final rule adopts, with changes, the
interim rule amending the DFARS to implement the United
States--Panama Trade Promotion Agreement, which provides for mutually
non-discriminatory treatment of eligible products and services from Panama.
Case 2013-D001: A final rule amends the DFARS to further implement DoD
policy relating to competitive acquisitions in which only one offer is
received, providing additional exceptions, and further addressing
requests for data other than certified cost or pricing data from the Canadian
Case 2012-D036: An interim rule amends the DFARS to implement a section of the
National Defense Authorization Act regarding private sector notification of
in-sourcing actions. Comments are due by December 30.
Case 2013-D015: A proposed rule would amend the DFARS to align it with revisions to the DoD
Instruction on operational contract support. Comments are due
by December 30.
NASA is proposing to amend
the NASA FAR Supplement to incorporate a proposal adequacy checklist for proposals in response to
solicitations that require the submission of certified cost or pricing data.
Comments are due by December 30.
Solutions Group, a decision it noted was nonprecedential,
the CBCA held that excessively high relative humidity levels
encountered by a contractor at the installation site for new
flooring were not the result of a compensable, latent
differing site condition but likely were caused by fact that
the contractor repeatedly watered the area to keep down the
GAO sustained a protest by Coburn
Contractors, LLC because the agency used an unstated
evaluation factor in faulting an offeror for failing to
provide a list of subcontractors with its proposal, when the
solicitation neither required such a submission nor stated
that it would be evaluated.
November 21, a final rule establishes the Defense Industrial
Base ("DIB") Voluntary
Cyber Security and Information Assurance Program, which enhances and supplements DIB
participants’ capabilities to safeguard DoD information that resides on, or
transits, DIB unclassified information systems.
Enterprises, Inc., the ASBCA held that the Government
properly made lease payments directly to the bank/assignee
(rather than to the contractor/assignor) under a bridge
contract because the Government was merely continuing the
proper procedure it had followed under the basic contract, the
proceeds of which had been assigned to the bank.
McCoy Shipping & Services, the ASBCA held that it had
CDA jurisdiction over an appeal commenced by a letter
submitted directly to the Contracting Officer within 90 days
of the his decision on a claim because the letter (i) referenced the
Contracting Officer's decision, (ii) included the contract number,
(iii) expressed dissatisfaction with the decision, (iv) made
it clear that the contractor was seeking resolution by a higher authority, and
(v) stated: "This letter serves as my notice of intent to appeal."
Network Services, Inc., the Court of Federal Claims held
that the contractor was entitled to recover ~$697,000 in
attorneys fees as a result of its successful suit for
government breach of a NAFI contract not covered by the CDA or
FAR because its attorneys' recorded hours and hourly rates
Motors Corp., the Court of Federal Claims (i) held that,
under original CAS 413.50(e)(12), the contractor was entitled
to include pension benefit improvements adopted in the regular
course of business just prior to a segment closing in the
contractor's segment closing adjustment calculation and, in
the process, (ii) denied the Government's contentions (a) that
such inclusion would result in an "inequitable
calculation" and (b) that an alternate segment closing
adjustment date should be used in order to exclude those
International, LLC, the ASBCA granted the Government's
motion for summary judgment because the contractor had not
followed the contract's requirements for obtaining approval to
use a different method than specified for constructing
AlBihar Co., the ASBCA held it lacked jurisdiction over an
uncertified claim in excess of $100,000.
Facilities Services, the ASBCA denied both (i) the
contractor's motion to dismiss a government claim for fire
damages because the Board found it is was just different
theory of recovery for the same claim previously decided by
the Contracting Officer, and (ii) the Government's motion to
dismiss the contractor's complaint as a request for
declaratory relief not previously decided by Contracting
Officer because the Complaint was just a response to the
Government's claim that included a suggestion as to why the
Board should deny that claim.
of KRR Partners Joint Venture,
the SBA's OHA affirmed the SBA's determination that a JV was
not a qualified SDVOSB because the joint venture agreement did
not specify the parties' contract responsibilities.
of Alpha Terra Engineering, Inc., the OHA held the SBA erred
in finding that, because the minority directors could block a quorum,
the SDV majority owner did not have control. The OHA noted that the
overriding fact was that the SDV majority owner could remove the other
directors for any reason.
Appeal of Evanhoe & Associates, LLC, the OHA affirmed the CO's decision that
the proper NAICS code for the solicitation in question was
541712 (Research and Development in the Physical, Engineering, and Life Sciences
(except Biotechnology), aircraft exception), rather than NAICS
code 541511 (Custom Computer Programming Services).
Relocation Inc., the Court of Federal Claims held it
lacked jurisdiction over a protest essentially asking that the
Government be required to take the corrective action it
already had decided to take (corrective action that is being
challenged by other firms in related protests).
Appeal of Maywood
Closure Co., LLC & TPMC-EnergySolutions Environmental
Services 2009, LLC,
the SBA's OHA affirmed the Area Office's finding that
the challenged firm did not run afoul of the ostensible
subcontractor rule because it would (i) perform the primary
and vital contract requirements as the prime contractor, (ii)
manage the project, and (iii) provide 10 of the 16 key
Appeal of Aerospace Engineering Spectrum,
the OHA held that the Area Office erred in finding general
affiliation between the two members of a joint venture because
it incorrectly applied the "3-in-2" rule that was in
effect at the time of the size determination.
The BIS is
publishing a final rule, most of which is effective October
15, which makes extensive changes to the EAR in order to
clarify many sections of the CCL.
Corp., the Court of Federal Claims (i) held that the
plaintiff's Phase II Small Business Innovation Research (SBIR)
R&D contracts were procurement contracts covered by the
CDA and, therefore, (ii) dismissed the suit for lack of
jurisdiction because the plaintiff had not obtained a
Contracting Officer's decision on its claims.
Assocs., the Court of Federal Claims held that, under 41
U.S.C. 4106(f)(1), it lacked jurisdiction over a protest by
the incumbent against an agency's decision to procure
follow-on services through the use of a multiple-award task
October 15, the BIS
and the State
Department are making multiple corrections to
recently-published changes to the EAR and the ITAR,
The SBA is partially
rescinding the general class waiver for aerospace ball and roller bearings and
replacing it with a class waiver for 305 aerospace ball and roller bearings.
Construction, Inc., a/k/a Sigma Services, Inc., the Court of
Federal Claims dismissed the suit, holding that an oral
agreement by the Contracting Officer and the contractor to
settle a convenience termination claim was not enforceable
against the Government because (i) it was not in writing as
required by FAR Part 49, and (ii) the Contracting
Officer lacked the authority to enter into an oral contract.
Mills, Inc., d/b/a Zip-O Timber Co., the court held that a timber
sales contract was effectively terminated for convenience when
the Government ceased actions that would permit it to fulfill
its obligations, not the years-later date when the Government
finally acknowledged the obvious by sending a termination
December 31, the SBA is amending its regulations governing small business contracting
procedures (i) to establish policies and procedures for
setting aside, partially setting aside and reserving
Multiple Award Contracts for small business concerns and for
setting aside task and delivery orders for small business
concerns under Multiple Award Contracts, (ii) to address how
it will determine size under certain agreements and when
recertification of status will be required, and (iii) to
establish a new definition of consolidation and reorganize
its prime contracting assistance regulations.
R. Sims, aka JRS Staffing Services, an unsuccessful
protest of the terms of a solicitation, the Court of Federal
Claims held that the solicitation's requirement that the
contractor perform certain start-up tasks related to
recruitment and background checks of contract personnel before
a task order would be issued was not objectionable.
Will Co., L.L.C., the ASBCA denied a Type I Differing Site
Condition claim because the contractor did not prove it was
damaged by the differing conditions.
Systems Technology Services, the ASBCA used principles of
contract interpretation to conclude that, although the
contract was not a "model of clarity," it
established that the repair of a generator damaged during a
fire was covered by the cost reimbursable depot
maintenance/repair CLIN rather than the fixed-price
organizational and intermediate maintenance/repair CLIN.
Technology Group Co. (K.S.C.C.), the ASBCA held it lacked
jurisdiction over an appeal by a disappointed bidder.
Appeal of Bell Pottinger Communications USA, LLC,
the SBA's OHA affirmed the Area Office's finding that two
firms were affiliated under the ostensible subcontractor rule
because (i) the subcontractor would perform the primary and
vital contract requirements and 90% of the contract work, and
(ii) seven of the ten key contract employees were the
The VA has
published an interim
final rule amending its adjudication procedures for SDVOSB and
VOSB status protests in order to provide that VA’s Director,
Center for Veterans Enterprise (CVE), shall initially adjudicate SDVOSB and
VOSB status protests, and to provide that protested businesses, if they are
denied status, may appeal to VA’s Executive Director, OSDBU.
Case 2013-D009: An interim rule amends the DFARS to implement two sections of
the National Defense Authorization Act for Fiscal Year 2013 that
(i) require compliance with domestic source restrictions in the case of any textile
components supplied by DoD to the Afghan National Army or the Afghan
National Police for purposes of production of uniforms, and
(ii) eliminate the application of the enhanced authority to acquire products and
services from Iraq.
Acquisition Circular (FAC) 2005-70
has been published and includes the following two items:
Case 2013-015: An interim rule amends the FAR to implement a statutory pilot program
enhancing whistleblower protections for contractor employees.
Case 2013-D010 makes similar amendments to the DFARS.
Case 2013-017: A related interim rule amends the FAR to
address the allowability of legal costs incurred by a contractor or subcontractor related to a
whistleblower proceeding commenced by the submission of a complaint of
reprisal by the contractor's or subcontractor's employee. DFARS
Case 2013-D022 makes similar changes to the DFARS. Comments
on any of these four interim rules are due by November 29.
Integration & Management, Inc., the CBCA held that the
contractor was entitled to payment (plus Prompt Payment Act
interest) for invoices it submitted on various delivery orders
for completed work, with adequate supporting documentation,
which the agency had refused to pay without any adequate
Construction Services, Inc., a successful post-award
protest, the Court of Federal Claims held that, in a
negotiated procurement, where the protester mistakenly
submitted two, identical experience sheets for its major
subcontractor, instead of separate sheets showing its
experience in two different areas, the Government should have
sought clarification (even under the discretionary standard of
FAR 15.306(a)(2)), rather than rating the proposal as
unacceptable, especially because the winning offeror's
proposal of the same subcontractor clearly showed it had the
requisite experience in both areas.
rule would amend the FAR to implement E.O. 13627 and Title XVII of
the National Defense Authorization Act for Fiscal Year 2013 by
strengthening protections against trafficking in persons in
federal contracts. Another proposed rule would make conforming
and clarifying changes to the DFARS.
Comments are due by November 25.
March 24, 2014, the Department of Labor's OFCCP is publishing extensive
revisions to its regulations prohibiting discrimination
against (and requiring covered contractors and subcontractors
to take affirmative actions regarding) Disabled Veterans, Veterans of the Vietnam Era, Disabled
Veterans, Recently Separated Veterans, Active Duty Wartime or Campaign Badge Veterans, and Armed
Forces Service Medal Veterans. Effective that same day, the
OFCCP also is making extensive revisions to its regulations
concerning nondiscrimination and affirmative action
obligations concerning individuals
Corp., the ASBCA dismissed (for lack of jurisdiction) an
appeal involving an Army National Guard Bureau delivery order
because resolving the dispute would require interpretation of
the underlying FSS contract, which is a matter for the GSA's
Contracting Officer and the CBCA.
Brown & Root Services, Inc., the ASBCA exercised its
discretion and denied the Government's motion to dismiss a
nonmonetary appeal regarding the proper interpretation of a
contract clause even though the Government had not taken any
action (in years) to enforce its interpretation by denying any
costs involved in the dispute.
Services, Inc., the ASBCA held that the contractor had
failed to prove the elements of a Type I Differing Site
Condition and was the party who was primarily responsible for
project delays involving submittal reviews.
unsuccessful post-award protest at the Court of Federal
Foodservice, GmbH attacked multiple aspects of the
competition, arguing, inter alia, that (i) the language
in the J&A justifying Supreme's bridge contract meant the
awardee was incapable of performing the contract on schedule;
(ii) the agency's downgrade of one aspect of the eventual
awardee's proposal following its responsibility analysis of
the awardee must mean the agency had allowed only the awardee
to revise its proposal; (iii) the agency committed multiple
errors in the evaluation, itself, and (iv) the agency had not
adequately investigated the protester's allegations that the
awardee had misrepresented its capabilities in its proposal.
Appeal of Mission Critical Technologies, Inc.,
the OHA denied a size protest and affirmed the Area Office's
finding that the protested firm was a small business because
(i) the Area Office properly relied on the protested firm's
tax returns rather than possibly conflicting information from
other sources cited by the protester, and (ii) employing the
large business incumbent as a subcontractor was not a
violation of the ostensible subcontractor rule where the
protested firm would perform a majority of the contract work
and would be responsible for managing the entire project.
LLC, an unsuccessful post-award protest, the Court of
Federal Claims held that, even though the Government erred in
rejecting the protester's proposal due to missing brand and
model information while accepting other offers with similar
deficiencies, the protester was not prejudiced because its
price was so high in relation to other offers that it did not
have a substantial chance of award.
L.L.C., the ASBCA held that a purchase order had lapsed as
a matter of law because the firm had failed to timely deliver
supplies that met the specification requirements, and the
items it did attempt to deliver were nonconforming because
they did not fulfill the requirement that they be manufactured
by a HUBZone business.
are several recent decision by the SBA's OHA relating to
eligibility for the 8(a) program. Please remember that, as I
note at the top of my SBA OHA
Decisions page, all the decisions posted on this website
may differ from the originals in formatting (e.g.,
typeface, type style, line breaks, page breaks), and I also
silently correct typos in the originals when I spot them.
interesting of these cases involves G. M. Hill Engineering,
Inc.'s application for admission to the 8(a) program, which
the SBA originally denied. On appeal, the OHA directed the SBA
(i) to reexamine the evidence and (ii) to issue a new
determination. Subsequently, after the SBA again determined
the firm was ineligible, the firm appealed once more, and, in Matter of
G. M. Hill Engineering, Inc.,
SBA No. BDPE-485 (2013), the OHA directed the SBA to admit
the firm into the 8(a) program because the SBA had failed to
comply fully with the prior remand order. The SBA subsequently
requested reconsideration, arguing vociferously that it had
complied with the prior order and that the OHA did not have
the authority to direct it to admit an applicant to the
program. In Matter of
G. M. Hill Engineering, Inc.,
SBA No. BDPE-496 (2013), the OHA denied the SBA's request
for reconsideration and delivered a lengthy lecture on the
history and powers of the OHA. If I were the SBA, I would have
found the OHA's tome more convincing if it had not erroneously
referred to itself as "the Court" at least 67 times
in the course of the decision, but maybe that's just me. :)
of MillenniumSoft, Inc., the OHA upheld the SBA's
decision to terminate a firm from the 8(a) program for failure to provide
required annual report information. Similarly, in Matter of
Brighter Days & Nites, the OHA held it was proper
to terminate a firm from the from 8(a) program for
failing to obtain prior written approval from the SBA for
changing its business structure from a limited liability
company to a corporation.
In Matter of Sunrise
Staffing, the OHA remanded the case to the SBA for
further investigation because, in rejecting an application for
admission to the 8(a) program, the SBA failed to consider some
evidence submitted by the applicant, including video evidence,
and misread other evidence. Likewise, in Matter of
Boblits Services, LLC, the OHA remanded the case to
the SBA for further proceedings because, in denying an
application for admission into the 8(a) program, the SBA made
numerous errors and failed to follow applicable regulations in
examining the evidence.
In Matter of
NAMO, LLC, the OHA upheld a decision denying a firm
admission into the 8(a) program because the applicant had a
contractual relationship with another 8(a) firm in the same
line of business, which was owned by the applicant's
Timber, LLC, the CBCA held that in the circumstances of
the case, the contractor's submission satisfied the
requirements for a CDA claim even though it was labeled an
"invoice," and the fact that the Contracting
Officer's subsequent decision did not advise the contractor of
its appeal rights did not deprive the contractor of the right
Services, Inc., the CBCA held that the Government had
satisfied the requirements of 31 U.S.C. 3716(a) before
offsetting money otherwise owed to the contractor under a USMS
contract against money improperly paid to the same payee under
a separate Army contract.
& Assocs. Corp. won its GAO protest because the Navy's
evaluators incorrectly read two tables in the protester's
proposal as contradicting one another.
Express Pipeline LLC, the Court of Appeals for the Federal
Circuit held that, although the CBCA had correctly concluded
that the Government had breached a contract, the Board had
improperly limited the contractor's damages based on a flawed
assumption as to the Government's rights after the breach
when, in fact, the contractor was entitled to damages through
the end of the contract term.
sustained a protest by Triad
International Maintenance Corp. because (i) the agency's
evaluation of the protester's past performance failed to
reasonably consider its work as the incumbent contractor; and
(ii) the agency improperly determined that the protester's
proposed price was a moderate risk where the solicitation did
not provide for a price realism evaluation.
Corp., the GAO held that the agency had failed to conduct meaningful discussions
because it had failed to alert the protester during discussions to a
deficiency in its proposal that had subsequently become one basis for the
agency's finding that the proposal was
The Bureau of Industry and
Security (BIS) proposes to amend the Export Administration Regulations
(EAR) by: (i) requiring exporters to file an Automated Export System (AES) record
for all exports subject to the EAR involving a party or parties to the transaction who are listed on the Unverified List (the
UVL); (ii) suspending the availability of license exceptions for exports,
reexports, and transfers (in-country) involving a party or parties to the
transaction who are listed on the UVL; (iii) requiring exporters,
reexporters, and transferors to obtain a UVL statement from a party or parties to the transaction
who are listed on the UVL before proceeding with exports, reexports, and
transfers (in-country) involving items subject to the EAR, but where the
does not require a license; (iv) publishing the UVL in the EAR; and
(v) adding to the EAR the procedures to request removal or modification of a UVL entry.
Comments are due by October 11.
USA, Inc., the ASBCA disagreed with the specific contract
interpretation arguments of both parties and used the rules of
contract interpretation to arrive at the plain meaning of a
disputed specification paragraph.
Facilities Services, the ASBCA agreed with the contractor
that the pricing of a deductive change order should be based
on the contractor's estimated costs to perform the deleted work
(which relied on the actual historical costs of performance)
rather than the contractor's original proposal, as the
Government had argued.
the Homeland Innovations, LLC, a non-CDA appeal involving
the Washington Metropolitan Area Transit Authority (WMATA),
the ASBCA held it lacked jurisdiction over a contractor's
claim of promissory estoppel because it involves the assertion
of a contract implied-in-law, and the WMATA has not waived
sovereign immunity with respect to such claims.
Enterprises, Inc., a successful protest, the GAO held that
10 U.S.C. 2492 could not be relied on as the authority to justify transferring an appropriated fund mission essential requirement to a
nonappropriated fund instrumentality using a memorandum of agreement.
Brown & Root Services, Inc., the Court of Appeals for
the Federal Circuit upheld much of the CoFC's prior decision
but held it erred in (i) failing to impute the contractor's
employees' actions to the contractor for purposes of the
Government's counterclaim under the Anti-Kickback Act and (ii)
calculating the base fee due the contractor.
The ASBCA dismissed two
appeals for failure to certify claims in excess of $100,000: Baghdadi
Swords Co. and Lael
Al Sahab & Co.
Oil Trading Co., the ASBCA held that it has CDA
jurisdiction over the Government's affirmative defense that
contracts were obtained by bribery and were void ab initio.
Appeal of Jackson and Tull, the SBA's OHA rejected the
protester's contention that the awardee and the subject of a
size determination were two different firms because the record
was clear that two different names referred to the same
Appeal of Washington Patriot Construction, LLC, the
OHA overturned the Area Office's finding of affiliation
because the Area Office did not explain how the buyout of the
former 49% owner at substantially more than the fair market
price enabled the former owner to continue to control the firm
after the buyout.
Appeal of MicroTechnologies, LLC, the OHA upheld the
Contracting Officer's determination that NAICS Code 541519
(Other Computer Related Services), rather than 517110 (Wired
Telecommunications Carriers) was the appropriate designation
for a procurement of video teleconferencing services.
of Golden Key Group, LLC,
the OHA upheld a determination that a firm did not qualify as
an SDVOSB because only one of the three individuals who
controlled it was a service-disabled veteran. [Update: Golden
Key's counsel informs me that the company has corrected this
administrative issue and is now a fully-qualified
of SPARCcom & Associates, the OHA affirmed a
firm's termination from the 8(a) program for failure
to pursue competitive and commercial business in accordance
with its business plan and for failure to make reasonable
efforts to develop and achieve competitive viability in
violation of 13
C.F.R. § 124.303(a)(9)
of National Sourcing Specialists, LLC, the OHA held it
lacked jurisdiction over an appeal by a joint venture that was
not an 8(a) participant, even though one of the JV members was
an 8(a) firm.
I think I
have fixed all the links to Court of Federal Claims decisions
to reflect the new urls the court has just implemented. (See
yesterday's entry.) However, if you find a page or an
individual link that I've overlooked, please let me know.
Second Street Holdings LLC the CBCA held that the fact
that a lessor had, in the past, charged less than the maximum
amount allowed by a lease for additional parking spaces did
not preclude it from raising the charge to the maximum amount.
of Federal Claims has changed all the web addresses for its
published decisions (by adding "opinions/" after
"files/" in the old addresses). That broke all my
links. I have corrected the broken links on my CoFC
Contract Disputes Decisions and CoFC
Bid Protests pages and in this 2013 blog as well as in the
2012 and 2011 blogs and the 2013, 2012, and 2011 procurement
reviews. I will correct the remaining pages, as I
have time. Ugh.
Logistics Services Co., the ASBCA upheld a termination for
default because the contractor had repeatedly failed to
provide conforming items and, in response to a cure notice,
had failed to give the Government assurances it would comply
with contract in the future.
Fallujah Co., the ASBCA dismissed an appeal for failure to
certify a claim in excess of $100,000.
R&U Engineering Co., the ASBCA dismissed another
appeal because a contract obtained through fraudulent
misrepresentations was void ab initio.
International, Inc., the ASBCA held that portions of a
delivery order were illegal or invalid terms that the Board
lacked jurisdiction to enforce.
Aviation (USA) Inc.; 10 Tanker Carrier, LLC--Costs, the
GAO recommended an award of costs except for (i) the portion
of a protest that was withdrawn, and (ii) protest allegations
related to CLINs for which the protester did not compete.
Department has published an interim final rule, effective
October 25, relating to brokers, brokering activities, and
related provisions of the ITAR in order to clarify (i) registration
requirements, (ii) the scope of brokering activities, (iii) prior approval requirements
and exemptions, (iv) procedures for obtaining prior approval and guidance,
and (v) reporting and recordkeeping of such activities.
a decision originally issued in 2012 but just now published,
the GAO sustained a protest by Basic
Overnight Quarters, LLC due to multiple errors in
the evaluation of the protester's proposal and the evaluators'
unequal treatment of the protester's and the awardee's
F. Neenan, the Court of Federal Claims held that a draft
lease agreement did not amount to a binding contract because
it was not signed by the Contracting Officer and the
government employee who assured the plaintiff that "it's
a deal" did not have the authority to bind the
VA has adopted as final, without change, the prior interim
rule requiring re-verification
of VOSB or SDVOSB status only once every two years.
Aircraft Corp., the Court of Federal Claims denied the
Government's post-decision motion to effectively dissolve a
protective order while an appeal of the case was still pending
at the Federal Circuit.
CBCA denied a couple of motions for summary judgment because
of disputed issues of material fact. In Butte
Timberlands, LLC, the Board denied the contractor's motion
in part because there was a question whether the contractor's
authorized representative had ratified an agreement. In Care
One EMS, LLC, the Board denied the Government's
motion because there were questions whether the contractor
breached the contract and whether the breach justified a
County, Florida, the Court of Federal Claims held that,
under the Christian doctrine, the Government could not
rely on the provisions of a clause it had improperly included
in a contract, but, instead, was bound by the terms of the
clause it should have included.
Net, Inc., an unsuccessful post-award protest, the Court
of Federal Claims held that an agency's decision in a
negotiated procurement to reject an offer that included
material omissions in required information, rather than to
seek clarifications from the offeror, had a rational basis.
Joint Venture, the ASBCA addressed several issues arising
under a Navy contract concerning the allowability of various
costs incurred by individual members of a joint venture in a
dispute with Hawaii over amounts owed for Hawaii's general
Hawaii Corp., the ASBCA denied a claim for termination
costs because the contract permitted termination without
liability in the circumstances of this case.
Financial Services, Inc., the Court of Federal Claims held
that, in response to its prior
decision, the agency had conducted an unobjectionable
price realism analysis of the low offeror, which resulted in a
confirmation of the original award.
Appeal of Willowheart, LLC, the SBA's OHA reversed the
Area Office's finding of affiliation between two firms because
the former affiliate was dissolved in bankruptcy prior to the
date of the size determination, and the new firm took over the
assets involved in the performance of only one of the former
Appeal of Step Construction, Inc., the OHA affirmed the Area
Office's finding of affiliation through identity of interest because
the protested firm refused to provide sufficient information to permit
the Area Office to investigate the issue.
Appeal of Logistics & Technology Services, the OHA
reversed the Area Office's finding of affiliation under the
ostensible subcontractor rule because the Area Office failed
to consider which firm was managing, and performing the
primary and vital requirements of, the contract at issue.
Enterprise Group, LTD, the ASBCA held that gratuitous
statements in a pro se appellant's notice of appeal
from a default termination regarding remedies the Board does
not have the power to grant and a possible future contractor
claim did not deprive the Board of jurisdiction over this
Construction Co., the GAO sustained a protest because the
agency did not explain how it had concluded the protester's
proposed schedule did not include "float," when it
Case 2013-D019: A final rule amends the DFARS to revise
the list of least developed countries that are designated countries
under the Trade Agreements Act of 1979 by (i) changing the
name of East Timor to Timor-Leste; (ii) removing Maldives; and
(iii) adding South Sudan (to be distinguished from Sudan,
against which the United States continues to impose
Case 2012-D054: A final rule amends the DFARS to provide guidance relating to
the release of fundamental research information.
Case 2013-D014: A proposed rule would amend the DFARS (i) to
create an overarching prescription for the set of contract financing related
clauses with one or more alternates; (ii) to add a separate prescription for the basic clause as well
as the alternate; and (iii) to include the full text of the clause alternate.
Comments are due by October 7.
Case 2013-D004: A proposed rule would amend the
DFARS (i) to create an overarching prescription for
each set of quality assurance-related provisions/clauses with one or more
alternates; and (ii) to include the full text of each provision and/or clause alternate.
Comments are due by October 7.
Case 2012-D057: A proposed rule would amend the DFARS (i)
to create an overarching prescription for each set of transportation-related
provisions/clauses with one or more alternates, (ii) to add a separate prescription for the basic
clause as well as each alternate, and (iii) to include the full text of each provision
and/or clause alternate. Comments are due by October 7.
Case 2012-028: A proposed rule would amend the FAR (i) to
limit the time periods allowed for contractor comments on past performance
evaluations and (ii) to make past performance evaluations available to
source selection officials sooner. Comments are due by October
Corp., the Court of Federal Claims denied (for lack of
jurisdiction) two subcontractors' motions to intervene in a
contract case to enforce an equitable lien on funds the agency
had set aside for the project or owed to the prime
Jerry Oliver, the PSBCA dismissed an appeal filed absent
an underlying claim and a Contracting Officer's decision.
City Center, L.L.C., the PSBCA denied the Postal Service's
motion to dismiss for lack of jurisdiction and held that an
employee of one firm was specifically authorized to submit the
claim and then the notice of appeal as the representative of
the actual party in interest.
Construction Corp., the PSBCA almost netted out competing
construction delay damages and liquidated damages claims,
concluding the Postal Service owed the contractor about
Group, LLC, the PSBCA denied the Postal Service's motion
to dismiss a claim under a theory of laches because the Postal
Service had not shown it was prejudiced by any delay in the
Appeal of Altendorf Transport, Inc., the SBA's
OHA vacated a determination by the SBA's Disaster Office that an applicant
for an economic injury disaster loan was not a small business
because the Disaster Office had not adequately investigated the
firm's contention as to the appropriate NAICS code for its
& Training Corp., the latest in a string of
unsuccessful preaward protests on the same subject, the Court
of Federal Claims upheld the DOL's decision that the
solicitation to operate the Dayton, Ohio Job Corps Center
should be set aside for small businesses. Several of these
decisions already have been appealed to the Federal Circuit,
so stay tuned.
Corp., the Court of Appeals for the Federal Circuit
affirmed the prior decision by the Court of Federal Claims
denying a protest because (i) the protester failed to meet the
high burden of proof required to establish that the agency had
canceled four CLINs from the original solicitation in bad
faith; and (ii) the documentation evidenced an adequate
price/technical tradeoff analysis by the SSA.
2005-69 has been published and includes the following six
items, plus technical amendments:
Case 2013-003 (Definition of Contingency Operation): A
final rule adopts, without change, the prior interim rule
amending the FAR to revise the definition of "contingency
operation" to address the statutory change to the definition made by the
National Defense Authorization Act for Fiscal Year 2012.
Case 2012-030 (Iran Threat Reduction): A final rule
adopts, with only minor changes, the prior interim rule
amending the FAR to require certifications that 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.
Case 2012-009 (Documenting Contractor Performance);
Effective September 3, this final rule amends the FAR to provide
governmentwide standardized past performance evaluation factors and
performance rating categories and require that past performance
information be entered into the CPARS.
Case 2013-011 (Repeal of Sunset for Certain Provision of
Task- or Delivery-Order Contracts): Effective September 3,
this final rule amends the FAR to remove the sunset date for protests against
certain orders under a task-order contract or delivery-order contract for
Title 10 agencies only.
Case 2013-009 (Least Developed Countries that are
Designated Countries): Effective September 3, this final rule
amends the FAR to implement a revision by the United States Trade Representative
to the list of least developed countries that are designated countries under the
Trade Agreements Act of 1979.
Case 2013-006 (Update to Biobased Reporting Requirements):
Effective September 3, this final rule amends the FAR to revise the biobased reporting clause to
require the contractor to submit the annual biobased report to a new
governmentwide Web site instead of the agency environmental point of contact.
Medical Corp. lost its post-award protest at the Court of
Federal Claims against the Government's decision to terminate
its contract (and cancel the underlying solicitation) as
corrective action in response to a prior GAO protest because
the agency's evaluators had evaluated aspects of proposals
that were noncompliant with mandatory solicitation
requirements as weaknesses instead of treating them as
rendering the proposals ineligible for award.
Enterprises, Inc., the ASBCA upheld a government deduction
against the contractor's delivery order invoice for the value
of government property converted (taken) by a subcontractor.
Communications, Inc., the ASBCA granted the Government's
motion for summary judgment and denied the contractor's claim
for allegedly unamortized capital improvement costs based on a
theory of mutual mistake because the contract had been fully
performed, and the contractor simply had not priced it
adequately to recover such costs within the performance
receives adverse comments by August 30, the EPA is making
administrative changes to its acquisition regulation (the
EPAAR), effective September 30.
response to the Government's motion for summary judgment in The
Ravens Group, Inc., the Court of Federal Claims held that
a contractor (i) was not entitled to recover allegedly excess
costs for servicing three units not identified in the original
contract because the total number of units it serviced did not
exceed total number contemplated by contract, and (ii) could
not use the jury verdict method to calculate its alleged
damages because the contract required it to track labor hours
to determine any excess costs, which it had failed to do, and
sufficient records existed for it to reconstruct such
hours. The court left questions regarding the
Government's allegedly negligent estimates for determination
at the trial on the merits.
Qwest Government Services,
Inc., an unsuccessful preaward protest, the court rejected
the plaintiff's contention that the solicitation did not
provide sufficient information to offerors to permit fair and
rule would update the Department of State Acquisition Regulation (DOSAR) to
conform to recent FAR changes and add a new DOSAR clause and provision
regarding reporting certain categories of government-furnished and contractor-acquired
Comments are due by September 27.
Commerce Pointe, LLC , the CBCA dismissed an appeal by the
assignee of lease for lack of jurisdiction because the
Government had not accepted the assignment.
Doctors, Inc., the CBCA dismissed another appeal for lack
of jurisdiction because it involved an uncertified claim in
excess of $100,000.
Manufacturing, Ltd., an unsuccessful post-award protest,
the Court of Federal Claims rejected the protester's
contention that the awardee's proposal indicated it would not
comply with the Limitations on Subcontracting clause.
sustained the protests in IAP
World Services, Inc.; EMCOR Government Services because
(i) the agency credited a joint venture with the corporate
experience and past performance of one of its partner's
affiliates when the record did not show that those affiliates
would contribute to contract performance; (ii) the agency
failed to evaluate offerors on a fair and equal basis because
it neglected to credit the protester for offering the same
feature that was evaluated as a strength in the awardee's
proposal; and (iii) the source selection official failed to
recognize and consider the features in the protesters'
proposals that resulted in their higher evaluation rankings.
to permit time for additional comments, the BIS
and the State
Department are publishing revisions to previously proposed
rules amending the CCL and the USML, respectively, with
respect to military electronics and certain superconducting and
cryogenic equipment and related items the President has
determined no longer warrant control under the USML. Comments
are due by September 9.
Alert, Inc. won its GAO protest because the procuring agency
failed to demonstrate a reasonable basis for the brand name
restriction in its solicitation for an emergency mass
Electric Co., the Court of Federal Claims granted partial summary
judgments to each side and reserved the remaining issues for
trial in a dispute over the appropriate segment closing
adjustment under CAS 413.50(c)(12).
Systems Resources, Inc., the ASBCA held it lacked jurisdiction
over a claim by a subcontractor under a Washington
Metropolitan Transit Authority prime contract.
Co., the ASBCA held it had jurisdiction over a dispute
involving Army delivery orders because the resolution of the
appeal required the interpretation of only those delivery
orders, not the underlying GSA schedule contract or BPA.
SBA's OHA has published several decisions.
Appeal of Saint George Industries, LLC, the OHA
affirmed the Area Office's determination that two firms were
affiliated under the newly organized concern rule because a
key employee of the predecessor firm (albeit for only 90 days)
founded the new firm.
Appeal of HAL-PE Associates Engineering Services, Inc.,
the OHA affirmed the Area Office's determination that a size
protest was untimely because the agency's issuance of a corrected
notice of the apparently successful offerors did not toll the time
period for protesting where the original notice contained the
information on the basis of which the protest was filed.
Appeal of IAP World Services, Inc., the OHA held that,
in an unrestricted procurement, a large business offeror was
an interested party with standing to allege that an award was
based in part on the allegedly erroneous assumption that a
joint venture partner of the successful offeror was a small
Appeal of SAC Cleaners, Inc., the OHA reversed the
Contracting Officer's determination and held that the
appropriate NAICS code for a procurement of laundry services
was 812320 Drycleaning and Laundry Services (except Coin-Operated), rather than
812331, Linen Supply
of SOF Associates--JV
(and a companion case),
the OHA affirmed a finding that a firm was not an eligible
SDVOSB JV because the JV agreement did not include several
provisions required by the regulations, e.g.,
provisions establishing that the 51% owner SDVOSB was the managing
venturer and designating an employee of of the 51%
owner as the project manager.
the CBCA upheld the agency's assessment of liquidated damages
for a buyer's failure to make timely payment for an item
bought at an online auction.
Group General Enterprises Co., W.L.L., the Court of
Federal Claims analyzed the propriety of three terminations
and a claim for delay and extra work in light of (i)
government counterclaims alleging violations of the False
Claims Act and (ii) (with regard to the delay claim) the
affirmative defense of the Sovereign Acts doctrine.
Inc. "won" its preaward protest at the Court of
Federal Claims because the Air Force did not have any proper
justification for a sole source procurement for its network
security needs under a NETCENTS ID/IQ task order contract. The
decision is strange for several reasons. First, McAfee was not
qualified to bid as a prime contractor for the work because it
did not have a NETCENTS contract, so it was complaining it had
been deprived of the opportunity to compete as a
subcontractor. Secondly, the court conceded that the
Government had various strong arguments that McAfee did not
have standing to complain about any specific event in the
chain that had led up to issuing the task order solicitation,
including that task order solicitation, itself, but,
nevertheless, found (to my mind, at least) a sort of nebulous
jurisdiction because McAfee was complaining about the extended
decision process as a whole, rather than any one specific
event. Finally, the court held McAfee's victory came without
any remedy because (i) since it did not submit a bid on the
task order solicitation, it could not recover bid and proposal
costs, and (ii) the Government's security needs weighed
against issuing an injunction.
intends to rescind
a class waiver of the Nonmanufacturer Rule for "All Other Miscellaneous
Electrical Equipment and Component Manufacturing" under
NAICS code 335999 because (i) there is at least one small business manufacturer of
the various supplies listed under this category that has conducted business with the Federal
Government within the previous 24 months, and (ii) there are other small business
manufacturers for the various items listed under this
category. Comments on this intended action are due by August
August 15, the SBA is amending its regulations governing small business subcontracting to
implement portions of the Small Business Jobs Act of 2010 by:
(i) adding a section providing that, for a ‘‘covered contract’’ (a contract for
which a small business subcontracting plan is required), a prime contractor
must notify the Contracting Officer in writing whenever,
during contract performance, the contractor does not employ a small business
subcontractor that was used in preparing its bid or proposal;
(ii) adding a provision requiring a prime contractor to notify a
Contracting Officer in writing whenever the prime contractor reduces
payments to a small business subcontractor or when payments to a
small business subcontractor are 90 days or more past due;
(iii) making it clear that the Contracting Officer is responsible for monitoring and
evaluating small business subcontracting plan performance;
(iv) delineating which subcontracts must be included in subcontracting data
reporting, which subcontracts should be excluded, and the way subcontracting
data is reported; (v) updating various subcontracting regulations,
including changing subcontracting plan thresholds and referencing the electronic
subcontracting reporting system (eSRS); and, finally, (vi)
adding a provision to the regulations which addresses subcontracting plan requirements and
credit towards subcontracting goals in connection with multiple award multi-agency,
FSS, MAS and government-wide acquisition ID/IQ contracts.
The Bureau of Industry and
Security (BIS) is
revising (i) six Export Control Classification Numbers (ECCNs) (1C011, 1C111,
1C116, 9A101, 9B105 and 9E101) and one defined term (the definition of
"payload") in the Export Administration Regulations (EAR) to
reflect changes to the Missile Technology Control Regime (MTCR)
Annex that were agreed to by MTCR member countries at the October 2012
Plenary in Berlin, Germany, and at the MTCR Reinforced Point of Contact
(RPOC) meeting in Paris, France, in December 2011; and (ii) ECCNs 7E004 and
9D004 to better align the Commerce Control List (CCL) with the MTCR
Annex and past MTCR agreements.
Appeal of RhinoCorps, Ltd., the SBA's OHA dismissed,
as untimely, another NAICS appeal filed more than 10 calendar
days after the RFP was issued. Don't be fooled by the typo in
the regs that states the limit in "business"
McVey Co., an unsuccessful post-award protest, the Court
of Federal Claims found no prejudicial errors by the agency
with respect to the plaintiff's contentions regarding (i) the
agency's evaluation of organizational conflicts of interest;
(ii) the agency's evaluation of mitigation plans; or (iii) the
agency's adherence to the solicitation's evaluation scheme.
A. Cummings, Inc., the CBCA held that the Government's
rejection of a type of piping permitted by the contract (and
its requirement that the contractor use steel piping instead)
was a compensable change.
Safety Consultants, Inc., the ASBCA denied the
contractor's EAJA application because, although it did not
prevail, the Government's litigation position (no waiver of
delivery prior to default termination) was substantially
Solutions Global, LLC, the ASBCA upheld the termination
for cause of a fixed-price contract because the contractor
refused to perform absent a price increase. The Board) reected the contractor's argument that a drawing was
illegible because its condition was patent before award, and
the contractor did not rely on it in order to perform.
E. Zoeller, the ASBCA granted the Government's motion for
summary judgment as to the contractor's claims of superior
knowledge and bad faith in a lease cancellation and also
rejected the contractor's claim that the Board, itself, had
been unfair to it.
Board is conducting fact-finding for the development of a Staff Discussion Paper
on CAS 413 Pension Adjustments
for Extraordinary Events. Public meetings are to be held
on July 31 and August 14, 2013. Comments are due by September
of Industry and Security and the Department of State have
issued parallel rules, effective January 6, 2014, amending the
coverage of the EAR
and the ITAR's
USML, respectively, concerning, inter alia, certain
military vehicles and related items; vessels of war and related items;
submersible vessels, oceanographic equipment and related items; and
auxiliary and miscellaneous items.
Department also is amending the ITAR to implement a statutory
provision regarding the exemption from licensing for export to
Canada of firearms components not
exceeding $500 in value.
of ME Cubed Engineering, LLC, the SBA's OHA upheld the
termination of a firm from the 8(a) program because the
disadvantaged individual on whom its program eligibility was
based was employed by another firm and did not devote himself
fulltime to the 8(a) firm.
Appeal of Marple Fleet Leasing, LLC, the SBA's OHA
upheld the Area Office's determination that two firms were
affiliated because the same individual was the majority owner
Appeal of AudioEye, Inc., the OHA held that, although
the Area Office erred in finding two firms affiliated by
virtue of the newly organized concern rule and the
totality of the circumstances, it was correct (i) in finding
affiliation with another firm through common management and
(ii) in drawing an adverse inference from the protested firm's
failure to provide requested tax returns for that affiliate.
Dry Dock Corp., the ASBCA denied a claim for the costs of
painting the allegedly unexpected vertical square footage area
on a ship because there was no proof the Government had
superior knowledge as to the actual vertical square footage
and no clear proof of a trade practice to include a
contingency of only 20% for such painting in a bid.
Technical Services, LLC, the ASBCA partially granted a pro
se appellant's motion to dismiss without prejudice
under Rule 30 due to a pending criminal matter in another
forum, but noted that the dismissal would be deemed to be with
prejudice unless either party moved to reinstate the appeal
within one year.
Group, the ASBCA denied the Government's motion to dismiss
an appeal as untimely due to the lack of a postmark on an
appeal that was received by the Board more than 90 days after
the contractor received the Contracting Officer's decision.
The Board accepted as sufficient a declaration from the
appellant's attorney that he placed the notice appeal in a
U.S. Postal Service mail receptacle on the 90th day.
USA, Inc., an unsuccessful post-award protest, the Court
of Federal Claims held that the Government did not violate FAR
8.405-2 in its evaluation of the contractor's eligibility for
a facility security clearance even though the Government's
approval came too late for the contractor to receive a task
order award. Describing the Government's excuses for its
delays in processing the request, the court noted that,
although the reviewing official "certainly did not act with alacrity, vigor, or timeliness, he
provided a propinquent level of bureaucratic service and consideration."
Procurement Review is up, through June 30. Of course, I
will continue to update it through the end of the year.
Appeal of Dawson Technical, LLC, the SBA's OHA held
that the protester was large under the size standard included
in the original solicitation because the solicitation was
never formally amended to revise it even though the agency (i)
stated repeatedly (both in the original solicitation and
afterwards) that it intended to revise the standard to reflect
an increased size standard that everyone knew was to become
effective shortly after the solicitation was first published,
and (ii) repeatedly tried to do just that, including issuing
an administrative solicitation amendment to
"correct" the original size standard. What
policy is advanced by this decision? Bad call by the SBA and
Ducke Group LLC, dba Haven House Veterans Resource, the
CBCA denied a contractor's claim for alleged expenses not
recouped due to the Government's alleged underutilization of
contract to provide room and board for homeless veterans at a
fixed per diem rate because the contract was neither a
cost-reimbursable nor a requirements contract, and because it
did not contain a guaranteed minimum quantity.
Ventures, Inc., d/b/a A-1 Fire Services, the CBCA held it
lacked jurisdiction over an appeal from the termination of a
blanket purchase agreement because such agreements are not
World Services, Inc., the CBCA granted an appeal from the denial of
a claim for excess costs under an FFP contract because the contractor
originally had followed the Government's directions to base its bid on
certain costs related to service calls published in the solicitation
that turned out to be inaccurate in practice.
August 27, the SBA is amending its size regulations to implement statutory provisions
establishing that (i) there is a presumption of
loss equal to the value of the contract or other instrument when a concern
willfully seeks and receives an award by misrepresentation; (ii) the submission of an offer or
application for an award intended for small business concerns will be deemed
a size or status certification or representation in certain circumstances;
(iii) an authorized official must sign in connection with a size or status
certification or representation for a contract or other instrument; and
(iv) concerns that fail to update their size or status in the ORCA database or a successor thereto (such as
the SAM database) at least annually shall no longer be identified in the database
as small or some other socioeconomic status, until the representation is
updated. The rule also amends SBA’s regulations to clarify when size is
determined for purposes of entry into the 8(a) Business Development, HUBZone and
Small Disadvantaged Business (SDB) programs.
Defense Marine (Asia) PTE LTD., the Court of Appeals for
the Federal Circuit affirmed the Court of Federal Claims' prior
decision denying a protest because: (i) the protester did
not allege prejudicial error; (ii) the Past Performance
evaluations of the protester and the awardee had a rational
basis; and (iii) the best value determination was not
arbitrary or capricious.
Case 2012-D047: This final rule makes various amendments
to the DFARS to remove obsolete and redundant references and
to harmonize the DFARS with the FAR in reflecting statutory
changes related to competition requirements for the
acquisition of services using multiple award
Acquisition Circular 2005-68
has been published and includes the following item (plus
Case 2012-017: An interim rule amends the FAR to implement section 803 of the National
Defense Authorization Act for Fiscal 2012 by expanding
application of the senior executive compensation benchmark amount
(which limits the reimbursement of compensation costs) to a broader group of
contractor employees. This interim rule applies section 803 prospectively to
contracts awarded on or after December 31, 2011, to the contractor
compensation costs incurred after January 1, 2012. Comments
are due by August 26.
Case 2012-025: A proposed rule would amend the FAR to
apply the changes implemented by FAR Case 2012-017 above
retroactively to contracts awarded before December 31,
2011, although still only to compensation costs incurred on
those contracts after January 1, 2012. Comments are due by
Case 2011-D056: A final rule revises the DFARS to simplify prescriptions for
provisions and clauses that are applicable to the acquisition of
commercial items and to specify the flowdown of clauses to commercial
Acquisition Circular (FAC) 2005-67
has been published and includes the following 10 items plus
Case 2011-029 (Contractors Performing Private Security
Functions Outside the United States): Effective July 22, a
final rule amends the FAR to 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.
Case 2013-004 (Contracting Officer's Representative):
Effective July 22, a final rule amends the FAR to improve contract
surveillance by clarifying the contracting officer’s representative's
Case 2012-033 (System for Award Management Name Change,
Phase l Implementation): Effective July 22, a final rule
amends the FAR to reflect the joining of the Central Contractor Registration (CCR), Online
Representations and Certification Application (ORCA), and Excluded
Parties List System (EPLS) databases into the System for Award Management
Case 2012-010 (Interagency Acquisitions: Compliance by
Nondefense Agencies With Defense Procurement Requirements):
Effective July 22, a final rule adopts, with changes, the
interim rule that amended the FAR to add new requirements specific to
the acquisition of supplies and services by nondefense agencies on behalf of DoD.
This rule implements a section of the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2008, with later amendments; and section 801 of
the NDAA for FY 2013, Public Law 112–239.
Case 2013-005 (Terms of Service and Open-Ended
Indemnification and Unenforceability of Unauthorized
Obligations): This interim rule amends the FAR to address concerns raised in an opinion
from the DOJ's Office of Legal Counsel involving the use of unrestricted, open-ended indemnification clauses in
acquisitions for social media applications.
Case 2012-018 (Price Analysis Techniques): Effective July
22, a final rule amends the FAR to clarify and give a precise reference in
the use of a price analysis technique in order to establish a fair and reasonable
Case 2013-010 (Contracting with Women-Owned Small Business
Concerns): An interim rule amends the FAR to remove the dollar limitation for set-asides to economically disadvantaged
women-owned small business concerns and to women-owned small business
concerns eligible under the Women-Owned Small Business Program.
Case 2013-008 (Deletion of Report to Congress on
Foreign-Manufactured Products): Effective July 22, a final
rule amends the FAR to eliminate an obsolete Congressional reporting requirement on acquisitions of
end products manufactured outside the United States.
Case 2012-027 (Free Trade Agreement--Panama): A final rule
adopts, without change, the prior interim rule amending the
FAR 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.
Case 2011-019 (Updated Postretirement Benefit References):
Effective July 22, a final rule amends the FAR (i) to remove references to specific paragraphs
of an accounting standard that were deleted in the Financial Accounting
Standards Board’s (FASB’s) Accounting Standards Codification (ASC) of
Generally Accepted Accounting Principles (GAAP) because the references no
longer exist in the authoritative GAAP (the ASC), and (ii) to
replace the current GAAP references in the FAR with explicit criteria
that generally replicate the substance of the formerly referenced GAAP methodology so that
the substance of the FAR does not change as a result of this final rule.
Department of Commerce's Bureau of Industry and Security has
issued a final rule revising the CCL in the EAR to implement changes
made to the Wassenaar Arrangement’s List of Dual-Use Goods and
Technologies (WA List) at the December 2012 WA Plenary Meeting.
The rule harmonizes the CCL with the changes made to the WA List
at the Plenary Meeting by revising ECCNs controlled for national security reasons
in each category of the CCL, except category 8, as well as amending the
General Software Note, WA reporting requirements, and definitions section in
the EAR. BIS is adding unilateral controls to the CCL for specific software
and technology for aviation control systems, which the WA agreements
removed from the WA List, i.e., EAR national security controls.
has issued several rules revising various size standards, each
effective July 22.
SBA is increasing the small business size standards for 11 industries in
11 (Agriculture, Forestry, Fishing and Hunting) and retaining the current standards for five
industries and two exceptions to NAICS 115310.
the SBA is increasing the small business size standards for 17 industries in
71 (Arts, Entertainment, and Recreation) and retaining the current size standards for
the remaining eight industries in that Sector.
SBA is is increasing small business size standards for 36 industries in
52 (Finance and Insurance) and for two industries in NAICS Sector
55 (Management of Companies and Enterprises). In addition, the
SBA is changing the basis for measuring size from assets to annual receipts for one
industry in NAICS Sector 52, namely, NAICS 522293 (International Trade
Financing). Moreover, the SBA is deleting NAICS 525930 (Real Estate Investment
Trusts) from its table of size standards because the OMB added the financial
activities formerly included in NAICS 525930 to NAICS 531110, NAICS
531120, NAICS 531130, NAICS 531190, and NAICS 525990.
the SBA is increasing the small business size standards for three of the four industries
Subsector 213 (Support Activities for Mining).
Enterprises, Inc., the Court of Federal Claims dismissed a
"protest" by the contract awardee against its
own award for lack of standing under 28 U.S.C. 1491, noting
that the only possible jurisdiction over a claim by a
contractor must involve the CDA, whose requirements the
awardee had not yet met because it had not obtained a
Contracting Officer's decision on a CDA claim.
Safety Consultants, Inc., the ASBCA granted the
Government's motion to dismiss the contractor's appeal because
the underlying invoice, which had resubmitted an earlier
routine progress payment request, included neither a request
for a Contracting Officer's decision nor the the required CDA
Federal won its GAO protest because the procuring agency
failed to conduct one aspect of the price evaluation of the
protester and the awardee on an equal basis and, subsequently,
relaxed a material solicitation requirement only for the
Case 2012-D034: DoD has adopted as final, with changes, the interim rule amending
the DFARS to implement 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 and the Security
Cooperation Act of 2010 regarding export control regulations between the
United States and the United Kingdom. The final rule also
implements the Treaty Between the Government of the United States of America and the
Government of Australia Concerning Defense Trade Cooperation.
dismissed an appeal by Ryll
International, LLC for failure to prosecute after the
contractor essentially disappeared, did not answer her phone,
and failed to respond to several messages regarding a
scheduled video conference hearing.
sustained a protest by NOVA
Corp. against a task order award because the record was
inadequate to explain (i) whether the source selection
official considered the significant evaluated differences
between the awardee and the protester's past performance
records and (ii) her conclusion that the evaluated differences
were not significant.
Century Corp., an unsuccessful post-award protest, the
Court of Federal Claims concluded (i) there were rational
bases for the agency's past experience evaluation and its
price realism analysis, as well as its best value tradeoff
analysis, (ii) the agency treated offerors fairly and equally
in the past experience evaluation, and (iii) exchanges between
the agency and the awardee constituted clarifications rather
than prohibited, unequal discussions.
Appeal of Alares, LLC, the SBA's OHA affirmed the Area
Office's finding that the protested firm was not
affiliated with others by virtue of negative control by the
minority owners or otherwise.
The DOE is
proposing to amend its acquisition regulation (the DEAR) to add new
subparts 925.71 and 970.2571 to set forth requirements concerning compliance with
control laws, regulations and directives applicable to the performance of DOE
contracts. Comments are due by July 12.
Aerospace & Defense Co., the ASBCA denied the
Government's motion for the dispositive sanction of an adverse
inference against the contractor for discarding evidence
(tested items) primarily because the Government had not
demonstrated it was prejudiced since other evidence was still
available on the issue in question.
USA, Inc., the ASBCA granted the Government partial
summary judgment on a contractor's equitable adjustment claims
that it was entitled (on a theory of unilateral mistake,
failure to disclose superior knowledge, or breach of the
implied covenant of good faith and fair dealing) to
recover fringe benefit costs it had been required to pay
under a collective bargaining agreement as the successor
contractor pursuant to the Service Contract Act.
Inc., the ASBCA upheld the termination for cause of a
commercial items contract for light armored vehicles because,
without a valid excuse, the contractor failed to deliver
within the required delivery schedule. The Board noted that a
warning letter issued by the Government after the delivery
date had passed was actually a "show cause" notice
even through it referred to itself as a cure notice and both
parties had consistently referred to it as such.
Applied Physical Sciences, Inc., the ASBCA denied a claim
for a cost overrun because the contractor failed to give the
required notice under FAR 52.232-20 (Limitation of Cost) and
the Contracting Officer did not authorize incurrence of the
July 11, the USDA is amending the Guidelines for Designating Biobased
Products for Federal Procurement, to add eight sections to designate product
categories within which biobased
products will be afforded a 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.
of Oxley Enterprises, Inc., the SBA's OHA affirmed
the denial of an application for admission to the 8(a) program
because the applicant's assertions of various events that
allegedly were discriminatory did not include evidence of chronic
and substantial social disadvantage brought about by gender
Appeal of Shoreline Services, Inc., the OHA sustained
an appeal and found that the challenged firm was affiliated
with its proposed subcontractor under the ostensible
subcontractor rule because the subcontractor would be
performing all the primary and vital contract requirements.
Appeal of Navarro Research and Engineering, Inc., the OHA
dismissed (as moot) an appeal from a negative size
determination related to a task order award under an FSS contract because
the agency already had canceled the petitioner's task order and
awarded it to another firm.
Appeal of Global Dynamics, LLC, the OHA affirmed the Contracting
Officer's assignment of a NAICS code to an RFQ because
it was the only NAICS code identified on the underlying FSS
schedule, and NAICS codes used on orders under FSS schedule
contracts must correspond to a NAICS code in the schedule.
Appeal of Pacific Shipyards International, LLC, the OHA affirmed the
assignment of NAICS code 488310 (Port and Harbor Operations)
to a procurement because that code accurately described the
majority of the work, even though a small portion of work
would involve work normally covered by a different NAICS code
Inc., the Court of Federal Claims granted an EAJA motion
for attorneys fees and expenses incurred in a successful bid
protest (including attorneys fees incurred for several
unsuccessful motions filed by the protester during its
protest) except for fees associated with an ultimately
unsuccessful government motion to dismiss for lack of
jurisdiction (because the jurisdictional issue was one of
first impression) and fees the protester incurred in
connection with related district court litigation by another
protester on the same procurement.
American Construction, Inc., the Court of Federal Claims
held that (i) requirements the plaintiff claimed the awardee
could not meet were not special responsibility standards but
rather post-award requirements that are not subject to a bid
protest; and (ii) in limiting the procurement to 8(a) firms,
the Government did not violate (a) FAR 19.805-1 (the
requirements such set-asides), (b) FAR 10.001 (conducting
market research), or (c) FAR 10.002 (documenting the results
of market research).
July 8, the Department of the Interior is issuing a final rule
that supplements the FAR and the Department of the Interior Acquisition Regulation
(DIAR) and implements procedures under the Buy Indian
Act, which provides Indian Affairs with authority to set aside procurement
contracts for Indian-owned and controlled businesses.
Management Services, Inc., an unsuccessful post-award
protest, the Court of Federal Claims found no evidence that a
former government official, who had been cleared to work for
the awardee after his retirement from the Government, violated
any post-employment restrictions or conflict-of-interest
Corp., the Court of Federal Claims held that, after making
the appropriate CAS 413 segment closing adjustments, the
contractor did not owe the Government any additional amounts
claimed by the Government.
Fire Crew Transport, Inc., the Court of Federal Claims
held it lacked jurisdiction over a firm's claims related to
the Government's termination for cause of a BPA because a BPA
is not a contract and, under it, the plaintiff had made no
binding commitments to the Government. In a companion
case, the court reached the same result where the
Government had issued a convenience termination of another BPA
involving the same firm. In both cases, the terminations were
based on the firm's alleged "breaches" of the BPA.
Am I the only one who thinks it peculiar that one can be said
to "breach" something that is not a contract in part
because it contains no binding promises by the party being
charged with the breach?
Case 2012-023: A proposed rule would amend the FAR to implement a uniform Procurement
Instrument Identification (PIID) numbering system, which will require
the use of Activity Address Codes (AACs) as the unique identifier for
contracting offices and other offices, in order to standardize procurement
transactions across the Federal Government. Comments are due
by August 5.
Systems Corp. won its GAO protest because the agency's
"Excellent" rating of the awardee's proposed
staffing for contract years after the base year lacked a
rational basis where the awardee significantly reduced its
proposed staff in the out years without explanation despite
the fact that the contract requirements in the base and out
years remained essentially constant.
Inc. , the CBCA denied the Government's motion to dismiss
the contractor's appeal for failure to prosecute because the
Board found that both parties had engaged in "a pattern of non-egregious, albeit frustrating, delay."
Safety Consultants, Inc., the ASBCA sustained a contractor's
appeal from a default termination because the Government
delayed 11 months beyond the stated completion date before
terminating, thus waiving the original date without
establishing a new one. The Government appealed the decision
to the Court of Appeals for the Federal Circuit, but then
agreed to a dismissal of that appeal. Most recently, the
Government returned to the Board and filed a motion for relief
from the original judgment. The Board denied
the Government's motion because it was based on a slew of
arguments that had already been rejected or were too late to
raise at this late date.
Construction Co., the ASBCA granted the Government's
motion to stay the proceedings pending related criminal
proceedings against three principal officers of the contractor
(and four officers of its subcontractor).
Integrated Services, Inc., the Court of Federal Claims
dismissed a post-award protest because, under FASA, the court
lacks jurisdiction over the award of a task order under GSA's
GWAC STARS II multiple award IDIQ contract.
Boat Works, Inc., an unsuccessful post-award protest, the
Court of Federal Claims held that (i) the fact that the
Government had downgraded aspects of the protester's proposal
during a reevaluation did not constitute bad faith; (ii) the
Government's evaluation of the protester's technical and price
proposals had a rational basis and complied with the
solicitation's evaluation scheme; (iii) the Government did not
permit the awardee to substantially revise its proposal, but
only sought clarifications from it; and (iv) the Government's
error in evaluating the awardee's key personnel did not
prejudice the protester.
In its prior decision
Technologies, Inc., the SBA's Office of Hearings and
Appeals (OHA) upheld a firm's termination from the 8(a)
program basically because it was merely a front for a
purported subcontractor that performed almost all the actual
work. Subsequently, the firm asked the OHA to reconsider its
decision, partially on the basis that the contracts underlying
the original decision were supply, rather than services,
contracts. Recently, in its decision denying
the request to reconsider, the OHA reasoned, in part, as
"The nonmanufacturer rule only applies where the
procuring agency has classified a procurement as a
manufacturing procurement by assigning the procurement a NAICS
code under Sectors 31-33."
quotation is from the prefatory comments to some SBA
regulations published in 2011. The actual quotation reads as
proposed rule explicitly provided that the nonmanufacturer
rule applies only where the procuring agency has classified a
procurement as a manufacturing procurement by assigning the
procurement a NAICS code
under Sectors 31–33.
six little words the opinion's author silently omitted
(by capitalizing the "T" in "the" without
putting it in brackets) are important because reading just one
page further in the original prefatory comments to the
regulations, one discovers that:
commenter disagreed with the proposal to limit application of
the nonmanufacturer rule to acquisitions that have been
classified with a manufacturing NAICS code. The commenter
argued that some supply contracts cannot be classified as
manufacturing. We agree. Thus, we have removed this
requirement from the final rule.
Fed. Reg. at 8226 (2011). Oops! (The opinion's author is the
same judge who continues to labor under the misapprehension
that he is presiding over "the Court.")
The GSA is
proposing to amend its acquisition regulation (the GSAR) to add a
"Modifications (Federal Supply Schedule)" clause, and an
Alternate I version of the clause that will require electronic submission of
modifications under FSS contracts managed by GSA. Comments are
due by July 29.
Construction Co., a successful post-award protest, the
short summary is that the protester prevailed because, in the
court's view, there was no adequate explanation in the
administrative record of any one of the following: (i) the
reason why the agency reversed its initial decision to
disqualify the awardee from proceeding to Phase II of the
competition based on a lack of relevant experience by one of
its joint venture partners; (ii) the subsequent reversal by
the Government of its initial decision to deny the awardee a
ten percent Percy Amendment price preference; or (iii) the
SSA's final tradeoff analysis. However, the first two
reversals had occurred after the awardee had sent detailed,
well-reasoned letters to the agency explaining why the
Government should reverse its initial decisions, and the
contract was awarded to the firm that (i) was, at worst, tied
with the protester in technical merit and (ii) had the lowest
price. Therefore, to me, the court strained to fault the
agency for allegedly arbitrary and capricious behavior that
the court said was only "suggested" by the record.
Color me unimpressed. (One other nit: it might well be
that the Government can easily cure all these alleged
omissions in the record and still properly award the contract
to the original winner--it is unclear, however, whether the
court's permanent injunction will allow that
June 24, a final rule revises 32 C.F.R. Part 165 to update policy,
responsibilities, and procedures for calculating and recouping
costs on sales of items developed for or by the Department of
Defense to non-U.S. Government customers so that all such costs related to the sale
of the items are fully reimbursable by the non-U.S. Government.
Department and the Department of Commerce have, in tandem,
issued proposed rules amending the ITAR and the EAR,
respectively, to move certain spacecraft and related items
from control under the USML
to coverage under the CCL.
Comments on the proposed rules are due by July 8.
2009-D031: DoD has issued a final rule that adopts, with
changes, a prior interim rule amending the DFARS to implement a
section of the National Defense Authorization Act for Fiscal Year 2010,
which provides authority for certain types of government support
contractors to have access to proprietary technical data belonging to prime
contractors and other third parties, provided that the technical data owner
may require the support contractor to execute a non-disclosure agreement
having certain restrictions and remedies.
Stranahan, the ASBCA held it lacked jurisdiction over an
appeal from a decision to debar a contractor.
Corporation, the ASBCA held that the Government's improper
interpretation of the contract led to its rejection of the
contractor's submittal of Schedule 40 pipe that complied with
Contractors, Inc., the ASBCA denied the Government's
motion for summary judgment because of material issues of fact
concerning whether the Contracting Officer should have known
that the contractor's signature on a general release in
connection with a final invoice was not intended to release
two previously-submitted claims.
Case 2012-D053: A final rule amends the DFARS to reflect the joining of the
CCR, ORCA, and EPLS databases into the SAM database.
Case 2012-D055: A proposed rule would amend the DFARS to partially
implement a section of the National Defense Authorization Act for Fiscal Year
2012 and a section of the National Defense Authorization Act for
Fiscal Year 2013 relating to the detection and avoidance of counterfeit
electronic parts. Comments are due by July 15.
A proposed rule would amend the DFARS to provide guidance to contractors for the
submittal of forward pricing rate proposals. Comments are due
by July 15.
Case 2013-D001: A proposed rule would amend the DFARS (i) to
further implement DoD policy relating to competitive acquisitions in which
only one offer is received, providing additional exceptions, and
(ii) to further address requests for data other than certified cost or pricing data from the
Canadian Commercial Corporation. Comments are due by July 15.
Case 2012-D048: A proposed rule would amend the DFARS to
address the Contracting Officer's role in assisting the DoD implementing agency
in the preparation of the letter of offer and acceptance for foreign military sales
programs that will require an acquisition. Comments are due by
Dynamics, LLC won its GAO protest against its exclusion
from the competitive range because the record did
support (actually contradicted) the weaknesses found by
evaluators in the protester's proposal
under the Recruitment Plan and Retention/Employee Relations
Applied Physical Sciences, Inc., the ASBCA held that FAR
52.232-20 (the "Limitation of Cost" clause) barred
the contractor's claim for increased costs under a CPFF
contract because the contractor failed to provide the notice
of cost overruns required by that clause, and the Contracting
Officer never issued a notice that the estimated cost of the
contract had been increased.
Construction Group, Inc., the ASBCA upheld a default
termination based on (i) the contractor's failure to meet the
original completion date and an interim construction date on a
revised schedule; (ii) the contractor's lack of progress,
indicating it was unlikely to meet any new completion date;
and (iii) the contractor's failure to provide adequate
assurances that it would or could complete the contract absent
additional financial support to which it was not entitled
under the contract. The Board rejected a plethora of excuses
offered by the contractor, including what the Board viewed as
a tardy spoliation claim.
Defense Co., LLC, the Court of Federal Claims upheld the
Government's decision to override a CICA stay pending the
resolution of a protest because the D&F on which the
override was based had a rational basis.
VA's OSDBU is publishing an advance notice of proposed
rulemaking in which it is soliciting suggestions as to how the
VA's VOSB verification
regulations could be improved to provide greater clarity, to
streamline the program, and to encourage more VOSBs to apply for
verification. The following are two of the many questions the
VA is considering:
1. What could be changed to improve
the clarity of the regulations? Where might bright lines be drawn to more
clearly indicate compliance with the regulations and reduce potential for
misinterpretation? Where might the addition of bright line tests create
2. It has been suggested that VA should develop a list that would clearly
delineate what constitutes ownership and control and what constitutes lack of
control or ownership. Should a list like this be included in the rule, and if so,
what should be on the list?
have been many complaints about the VA's current procedures,
so now is your chance to have your voices heard. Comments and
suggestions are due by July 12.
Production Partners LLC won its GAO protest because the
agency failed to follow a solicitation requirement to evaluate
the feasibility of offerors' proposed cost savings, but,
instead, assumed all proposed savings were feasible.
Dynamics Corp., the Court of Appeals for the Federal
Circuit affirmed the ASBCA's prior decision that the
contractor's use of a partial-year asset valuation in computing its retirement plan forward pricing
rates was noncompliant with CAS 412.
Inc., a successful preaward protest, the Court of Federal
Claims built upon the preliminary injunction it had issued in
decision and held that the VA's OSDBU improperly
determined otherwise successful offeror was ineligible VOSB
under VIP program, based on flawed analysis related to owner's
Construction Co. the CBCA dismissed an untimely appeal for lack of
jurisdiction, reasoning that the reference in the Contracting
Officer's decision to the right to appeal to "the agency
board of contract appeals" was sufficient and rejecting
the contractor's allegation that the generic reference misled
it into believing it would be appealing to some department of
the procuring agency.
Quality Management, Inc., the CBCA denied a government motion for
summary judgment because of unresolved factual issues
concerning type of contract involved and whether it was
de Seguranca, SA, a successful protest, the GAO held that
a solicitation which stated that proposals "may" be
rejected as unrealistically low required the agency to perform
a price realism analysis.
Appeal of Global, A 1st Flagship Company, the SBA's
OHA reversed the Area Office's finding of affiliation between
the protested firm and a large business that had been the
parent of an affiliate the protested firm had recently
acquired because: (i) under the totality of the circumstances
analysis, the 10 interactions between the companies cited as
support by the Area Office were either irrelevant or were no
longer in effect as of the relevant date; and (ii) the Area
Office improperly analyzed the situation under the
successor-in-interest rule instead of the newly acquired
of Allcon LLC, the OHA affirmed the agency's denial of
a firm's application for admission to the 8(a) program because
of ongoing contractual relationships between the applicant and
F. Taylor, Inc., the ASBCA denied the contractor's EAJA
application in a dispute over executive compensation costs because the
Government's litigation position, though it did not prevail, was substantially
justified in that (i) it was supported by legal precedent;
(ii) the method for which Government argued was the
longstanding method used in the DCAA audit manual; (iii) the
statistical evidence presented by the contractor at the
hearing was a new approach; and (iv) the Government prevailed
on some individual aspects of dispute.
International FZE, the ASBCA held it lacked jurisdiction
over claims for PPA interest because the contract was not with
the Government (see prior
decision) and no PPA claim had been submitted to the
Contracting Officer for a decision.
Disabled Veteran Owned Small Business Network, Inc., the
Court of Federal Claims dismissed (for lack of jurisdiction)
the bid protest of a non-profit organization that assists
veterans in obtaining government benefits as small businesses
because the plaintiff lacked standing (it did not allege a
specific procurement violation and did not identify any
particular procurements under which any of its members was an
actual or potential bidder).
Systems Corp., a
decision important for its detailed analysis of FAR's late bid
rules as they should be applied in the context of electronic
bid submissions, the Court of Federal Claims held that electronically
submitted quotations that were addressed correctly and
received by the initial government mail server before
the time permitted by the solicitation should not have been
rejected simply because a subsequent internal government
server malfunctioned, which prevented them from being received
on time in the government office designated for receipt of
rule would amend the FAR to remove all references to OFPP Pamphlet
No. 7 ("Use of Irrevocable Letters of Credit") and also
to provide updated sources of data required to verify the credit worthiness of a financial entity
issuing or confirming an irrevocable
letter of credit. Comments are due by July 8.
has been corrected
to reinstate paragraph (i) of the contract clause at FAR
52.249-2 (Termination for Convenience of the Government (Fixed
Price)). Paragraph (i) reads as follows: "The cost principles and procedures
of part 31 of the Federal Acquisition Regulation, in effect on the date of this
contract, shall govern all costs claimed, agreed to, or determined under this
The SBA is amending its
regulations to implement Section 1697 of the National Defense Authorization
Act for Fiscal Year 2013, which removed the statutory limitation on the dollar
amount of a contract that women-owned small businesses can compete for under
the Women-Owned Small Business (WOSB) Program, so that contracting officers may now set-aside
contracts under the WOSB Program at
any dollar level, as long as the other requirements for a set-aside under the
program are met.
has extended (to June 3) the public
comment period for the notice of the intent to rescind a class waiver of the
Nonmanufacturer Rule for Aerospace Ball and Roller Bearings,
NAICS code 332991, PSC 3110.
Appeal of EFT Architects Inc., the SBA's OHA
affirmed the dismissal of a size protest as untimely because
the filing of an intervening GAO protest did not toll the time
limit for filing the size protest.
of Veterans Contractors Group JV, LLC,
the OHA affirmed the SBA's dismissal, as insufficiently
specific, of a protest alleging (without supporting evidence
or facts) only that the protested firm did not
"appear" to meet the requirements for forming an
SDVOSB JV and "appeared" to have exceeded the
maximum allowable number of contracts in a two-year period.
July 2, the DOE is revising its regulations concerning contractor
legal management requirements at 10 C.F.R. Part 719 and
associated parts of its acquisition regulation, the DEAR, to
better monitor and control legal costs and to provide guidance to aid contractors and the
Department in making determinations regarding the reasonableness of outside
counsel costs, including the costs associated with litigation,
for certain contractors whose contracts exceed $100,000,000, as well
as legal counsel retained directly by the DOE for matters in which costs
Diagnostics, Inc., an unsuccessful post-award protest, the
Court of Federal Claims held that (i) absent specific
instructions to the contrary, the awardee was free to amend
parts of its proposal not affected by a change to the
solicitation made as corrective action in response to a prior
protest; (ii) the agency did not engage in unequal discussions
by answering the awardee's procedural question differently
than it answered a different procedural question posed
by the protester; (iii) the technical and experience
evaluations had rational bases; (iv) an error in one aspect of
the evaluation had not been shown to be prejudicial; and (v)
the best value analysis was adequate, though brief.
Inc., the Court of Federal Claims held that, although the
Government was justified in canceling one purchase order
because the contractor was supplying its own part rather than
the one specified in the RFQ and the order, the Government's
cancellation of a second order was unreasonable (and should be
converted to a T for C) because neither the second RFQ nor
plaintiff's quotation specified a particular part, and
plaintiff reasonably believed that the reference in the
purchase order was just historical. (A significant factor in
the court's decision that a contract had been formed from the
second RFQ was that the plaintiff had almost finished
manufacturing the full quantity of items before the disconnect
was discovered.) The court denied the Government's
counterclaims in fraud in large part because plaintiff's
claims were based on its clearly stated disagreement with
Government's view of the legal issues involved in the dispute.
Associates, Inc., the ASBCA held it lacked jurisdiction
over a claim under a Corps of Engineers FSS task order because
the dispute involved the interpretation of provisions in the
FSS contract, itself, which must be decided by the GSA
schedule Contracting Officer, rather than by the Corps' KO.
Construction Co., the CBCA held that, where a contract
required the parties to attempt to negotiate a final, fixed
contract price after performance had reached a certain point
but the parties had failed to reach agreement, nothing
precluded the contractor from subsequently submitting a claim
for an equitable adjustment for its reasonable costs of
Food Services, Inc. d/b/a Port-A-Pit Catering, the CBCA
held it lacked CDA jurisdiction over claim for "not less
than" a specified amount because the claim was not for a
Maintenance Systems, Inc., the Court of Federal Claims
dismissed a complaint for lack of jurisdiction because the
contractor failed to establish it had submitted a claim to the
Contracting Officer for a decision. The interesting thing is
that this was the contractor's second try at this suit, the first
one meeting the same fate.
OHA has issued several size decisions.
Appeal of Heard Construction, Inc., the OHA
remanded the case to the Area Office to consider the possible
effects of a recent merger on affiliation and, therefore,
Appeal of A & H Contractors, Inc., the OHA
reversed the Area Office's finding of affiliation primarily
because the historic association between, and the personal
friendship of, two individuals was not sufficient to find such
Appeal of Metters Industries, Inc., the OHA
affirmed the Area Office's determination that the appellant
was other than small, holding that the Contracting Officer had
the authority to protest the firm's size because the BPA task
order solicitation required recertification, and the firm had
failed to provide it. (The firm's argument had been that the
solicitation did not clearly require submission of a
Appeal of Autonomic Resources, LLC , the OHA
dismissed an untimely appeal file more than 15 days after the
firm's receipt of its size determination.
Appeal of Washington Patriot Construction, LLC, the
OHA affirmed the Area Office's finding of affiliation through
the power of negative control.
- AQYOL JV, LTD , the ASBCA denied the Government's
motion to disqualify an individual from representing the
contractor before the Board because the motion was based on an
alleged violation of a criminal statute, and the Board lacks
jurisdiction to make such determinations.
Investigative Solutions, Inc., the ASBCA granted the
Government's motion for summary judgment that options were
properly exercised and, in doing so, rejected the contractor's
contention that FAR 52.217-8 (Option to Extend Services) can
only be used to extend the contract term after all other
options have been fully exercised and is intended only for
situations at the end of a contract when the Government needs
extra time to transition to a new contractor.
Hunt Construction, Inc., the ASBCA held (in a 23-page
opinion by the majority) that (i) the contract completion date
was the date originally proposed by the contractor and
accepted by the Government, despite the fact that, in
bilateral modifications, both parties erroneously continued to
refer to the completion date in the solicitation until the
dispute arose; and (ii) the contractor was entitled to the
remission of liquidated damages to the extent of, the
unreasonable portion of a stop work order and the Contracting
Officer's failure (a) to act within reasonable period of time
to resolve punch list items and (b) to concede beneficial
occupancy occurred at same time as substantial completion. Two
dissents (one of which ran to 130 pages) disagreed with the
majority's position concerning the completion date.
Contract Management Services, an unsuccessful preaward
protest, the Court of Federal Claims held that HUD's Notice of
Funding Availability ("NOFA") for the Performance-Based Contract Administrator
("PBCA") Program (which covers the administration of Project-Based Section 8 Housing Assistance Payment Contracts)
is not subject to CICA's competition requirements.
has amended its ATF
regulations to remove the cross reference to the ITAR's
USML; to clarify that the AG exercises delegated authority pursuant to the Arms Export Control
Act (AECA) and Executive Order 13637 to designate defense articles and defense
services as part of the statutory USML for purposes of permanent import
controls, regardless of whether the Secretary of State controls such defense
articles or defense services for purposes of export and temporary import;
and to clarify that defense articles and defense services controlled pursuant to the
Attorney General’s delegated AECA authority are part of the USML
(along with those that are controlled for export and temporary import by the
Secretary of State), but that the list of defense articles and defense services
controlled by the AG is labeled the USMIL to distinguish it from
the list of defense articles and defense services in the ITAR that are controlled
by the Secretary of State.
of Harris Grant, LLC, the SBA's OHA affirmed the prior
denial of a firm's application for admission to the 8(a)
program pursuant to 13 C.F.R. 124.106(g)(4) because of
relationships with non-disadvantaged individuals or entities
that result in an inability to exercise independent business
judgment without great economic risk.
Delivery Service, the PSBCA denied the Government's motion
in limine to preclude the contractor from contesting the
existence or amount of a debt on a government claim based, inter
alia, on the contractor's prior acknowledgment of the
debt. The Board noted, however, that the Government could
present evidence of the prior admissions to counter the
contractor's current contentions.
Plaza, LLC, the PSBCA held it lacked jurisdiction over (i)
a contractor's claims for specific performance and equitable
relief, (ii) monetary claims not previously presented to the
Contracting Officer for a decision, and (iii) an
indemnification claim prematurely brought before the
contractor had been found liable. The Board, however, retained
jurisdiction over the contractor's claim for interpretation of
a contractual provision.
International [America], Inc., an unsuccessful post-award
protest by the incumbent against an award to a much
lower-priced, but also lower-rated offeror, the Court of
Federal Claims (i) held that, but for an error that did not
significantly prejudice the protester, the evaluation had a
rational basis, and also (ii) rejected the protester's claims
that the awardee had made material misrepresentations in its
of North Carolina Business Enterprises Program, an
unsuccessful preaward protest, the court held that a
requirement in a solicitation for the provision of dining hall
services that offerors bid a fixed price per meal without
knowing what the actual headcount (and, therefore, the
economies of scale) would be was not contrary to law.
Case 2012-024: A proposed rule would amend the FAR (i) to require
the use of Commercial and Government Entity (CAGE) codes, including
NATO CAGE (NCAGE) codes for foreign entities, for awards valued at greater
than the micro-purchase threshold and (ii) to require offerors,
if owned or controlled by another business entity, to identify that entity
during System for Award Management (SAM) registration.
Comments are due by June 17.
has made several revisions to the "Printing"
clause in its acquisition regulation (the EPAAR).
Case 2012-D027: DoD announces the withdrawal of the proposed
rule concerning development of science, technology, engineering, and mathematics (STEM)
part of the President's Export Control Reform initiative and
in coordination with one another, the State Department and the
Department of Commerce's Bureau of Industry and Security have published
final rules making multiple revisions to
delete from the ITAR those aircraft and gas turbine engines
that the President has determined no longer require control
under the USML and to
add provisions for their control under the EAR. The new rules
are effective October 15.
Al Safa Co., the ASBCA dismissed (without prejudice) an
appeal for lack of CDA jurisdiction because it was
questionable whether the contractor's emails constituted a
demand for a Contracting Officer's decision on a claim for a
sum certain, but, in any event, there was no certification of
an amount sought in excess of $100,000.
Healthcare Partners, Inc., the ASBCA dismissed the
monetary portion of an appeal from a termination for cause
because the contractor had not previously submitted that part
of the claim to the Contracting Officer for a decision.
y Obras Isetan S.L., the ASBCA dismissed an appeal because
the underlying contract had been obtained through fraud in the
inducement (the submission of fictitious documents) and,
therefore, was void ab initio.
Government Travel, Inc., d/b/a CWTSatoTravel, a successful
post-award protest, the Court of Federal Claims held that, in
awarding only one ID/IQ contract in excess of $103 million as
a result of a solicitation, (i) the GSA had not satisfied the
prerequisite of FAR 16.504(c)(1)(ii)(D)(1)(iii) that it first
determine there was only one source qualified and capable of
performing the work, but instead had simply chosen the higher
ranked offeror; and (ii) the agency had treated offerors
unequally in its evaluations.
the effective date has not yet been announced, the State
Department is amending the ITAR (i) to implement the
treaty between the United States and Australia concerning Defense
trade cooperation, (ii) to identify via a supplement to the ITAR the
defense articles and defense services that cannot be exported pursuant to the licensing
exemption created by the treaty, and (iii) to make other corrections to the
Financial Services, Inc., a successful post-award protest,
the Court of Federal Claims remanded the case to the agency
for further investigation or explanation because the agency
record was devoid of any documentation of the specifics of a
price realism analysis that was required by the regulations.
Research Corp., the ASBCA held that a contractor which had
failed to comply with the notice requirement of the
"Limitation of Government Obligation" clause (i.e.,
that it notify the Government at least 90 days before its
incurred costs were expected to equal 85% of the then-allotted
funds) could not recover for costs in excess of the allotted
a decision originally issued last year but just now published
in redacted form, the GAO sustained a protest by IBM
Corp., U.S. Federal because the record did not support (i)
the agency's evaluation of the protester's proposal in several
respects and (ii) the discriminators the agency allegedly
found between the protester's and the awardee's proposals.
The USDA is
final rule entitled "Designation of Product Categories for Federal
Procurement" published April 1, 2013, at 78 FR 19393 (which amended
the Guidelines for Designating Biobased Products for Federal
Procurement to add eight sections to designate product categories within which biobased
products will be afforded Federal procurement preference)
because the original rule was published prematurely due to an oversight in the
Assocs., Inc., a preaward protest, the Court of Federal
Claims upheld the OHA's prior decision in NAICS
Appeal of Delphi Research, Inc., that the original
NAICS code chosen by the Contracting Officer (541712) was
erroneous and that the correct designation for the procurement
was NAICS code 541513.
Inc., the Government (i) initially awarded a contract to
the plaintiff for security services in Iraq, (ii) then (in the
midst of protests filed by competing offerors, including the
incumbent) terminated the contract for convenience after it
concluded it no longer needed many of the services; (iii)
awarded a second contract for a reduced scope of work to the
plaintiff after a quick turnaround solicitation limited to the
original competitors; (iv) but then terminated that contract
for convenience as well (and awarded a sole source contract to
the incumbent, which was already operating under a bridge
contract due to the prior protests) on the basis that the
protests and the resulting stop work order and delays had made
it impossible for the plaintiff to mobilize and complete the
work in a timely manner. The court denied the Government's
motion to dismiss the plaintiff's claims for breach of
contract based on its objections to the terminations for
convenience, but granted the motion to dismiss its bid protest
claims for bid preparation costs, because it had not bid on
the sole source contract, which had been completed by the time
of the decision.
Engineering Services, Inc., the court granted the
Government's motion for summary judgment and held the
contractor was not entitled to recover under any of its
theories (including, inter alia, breach of the warranty
of specifications, mutual mistake, and unilateral mistake) for
price increases based on alleged discrepancies between local
prices and those contained in a pricing book incorporated in
the solicitation because the book contained explicit warnings
that those prices might not be accurate and that the
contractor should verify pricing for itself and should adjust
its bidding coefficient accordingly.
SBA is proposing to rescind the class waiver from the Nonmanufacturer Rule for
332991 (Aerospace Ball and Roller Bearings) PSC 3110.
Comments are due by May 4.
Missile Systems Co., the ASBCA first imputed DESC JP-10
fuel price increases to the contracting party (NAVAIR) and
then held that NAVAIR breached its implied duty not to hinder
or interfere with the contractor's performance by subjecting
the contractor to fuel price increases caused by conditions
outside the set of risks the contractor assumed in its
Phillips, the ASBCA used the jury verdict method to reduce
the 79% profit rate sought by the contractor for the
Government's improper diversion of work under a requirements
contract to approximately 30%. [Subsequently, the Board denied
the Government's motion for reconsideration]
Enterprises, Inc., the ASBCA denied the contractor's
appeal, finding that the Government had properly paid the
contract amounts directly to a bank under valid assignment,
despite all sorts of procedural objections raised by the
Personnel Services, Inc., the CBCA dismissed an appeal
filed 92 days after receipt of the Contracting Officer's
decision, as untimely.
Services, Inc., the CBCA held it had jurisdiction over a claim that
the Government had improperly offset against appellant's contract funds
that Government had mistakenly paid to another contractor (even
though the Government contended the two entities were one and the same).
Kroone and Assocs., the Court of Federal Claims held that
(i) the actions of the parties before the dispute arose
demonstrated that the plaintiff's proposal formed a part of
the resulting contract, and, therefore, a subsequent
modification merely making that fact clear was not a change to
the contract; but (ii) the unorthodox way the contract had
negotiated had given rise to legitimate issues concerning
its scope, and, therefore, the Government's counterclaims in
fraud could not be sustained.
Inc., the Court of Federal Claims denied the Government's
motion to dismiss and held it had jurisdiction over a
plaintiff's (i) non-CDA claim for a declaratory judgment that
the VA had improperly failed to pay the plaintiff for
authorizations for dialysis treatments issued pursuant to 38
C.F.R. 17.36; and (ii) its CDA claim requesting an
interpretation of a 2009 contract as authorizing certain of
the treatments for which Government also failed to pay
the plaintiff. The court held that the latter claim was a
nonmonetary claim in the way the plaintiff had presented it to
the Contracting Officer and, therefore, was not subject to the
CDA's requirement that monetary claims be stated as a sum
Aircraft Corp., the court denied the Government's claim
that a contractor had violated CAS 418-50 in allocating its
material overhead costs. Specifically, the court determined
that (i) because the management and supervision costs contained within the materiel overhead pool were insignificant relative to the
entire pool, CAS 418-50(e) rather than CAS 418–50(d) applied;
and (ii) because the first two allocation bases permitted by
that subsection (e) were impractical to use in this case, the
contractor had properly reverted to the third alternative
base--in the contractor's situation, direct labor--which complied
with that subsection because that allocation base varied in proportion to materiel overhead costs
during the relevant periods and, thus, was an acceptable means of measuring the resources consumed in
connection with pool activities.
In Size Appeal of
OBXtek, Inc., the SBA's OHA reversed the Area Office's
finding of affiliation through economic dependence because, as
of the date of its self-certification as small, the challenged
firm had established its economic autonomy from a firm on
which it previously relied.
of Mill Mike Mfg. Corp., the OHA remanded a case to
the SBA for further proceedings because, in denying a firm's
application for 8(a) status based on chronic and substantial
social disadvantage to which gender bias contributed, the SBA
failed to explain its reasons for rejecting the applicant's
claims and evidence and completely ignored other evidence.
Similarly, in Matter
of Gearhart Construction Services, the OHA remanded
another 8(a) case to the SBA for further consideration because
the agency had (i) applied an improper "chronic and
substantial bias" standard instead of requiring only a showing of
and substantial social disadvantage" brought about by the alleged
bias; and (ii) required "conclusive proof" rather
than simply a "preponderance of the evidence."
of Industry and Security has issued an interim
final rule to make the following items subject to the EAR and to impose on
those items a license requirement for export and reexport to all destinations,
except Canada, because the items provide at least a significant
military or intelligence advantage to the United States or foreign policy reasons
justify control: specified biosensor systems,
"software," and "technology" under ECCNs 0A521, 0D521 and 0E521,
respectively, on the CCL. Comments are due by May 28.
Case 2011-D042: A final rule amends the DFARS to incorporate a proposal
adequacy checklist for proposals in response to solicitations that require
submission of certified cost or pricing data.
Case 2012-D032: A final rule adopts, without change, the
prior interim rule amending the DFARS to implement the United States-Colombia Trade Promotion
Agreement, a free trade agreement that provides for mutually non-discriminatory treatment of eligible
products and services from Colombia.
Case 2012-D025: Another final rule adopts, without change,
the prior interim rule amending the DFARS to implement the United
States-Korea Free Trade Agreement
Case 2012-D041: A final rule amends the DFARS to to revise the definition of
"produce" as it applies to specialty metals.
Telecommunications, Co., B.S.C., won its GAO protest
because the agency's evaluation overlooked the fact that the
awardee's quotation did not commit to comply with material
The U.S. Office of Personnel
Management has issued a proposed rule that would update the 2007
NAICS codes currently used in Federal Wage System wage survey industry regulations with the
NAICS revisions published by the Office of Management and Budget.
Comments are due by April 25.
Systems Solutions, Inc., an unsuccessful post-award
protest, the Court of Federal Claims found that, although the
third-ranked offeror had standing to protest, the agency's
technical evaluation and its price-realism analysis of the
low-priced offeror had rational bases.
of Agile Tek Solutions, the SBA's OHA upheld the
decision to terminate a firm from the 8(a) program for failure
to timely submit its annual review materials or to timely
respond to allegations in the notice of intent to terminate.
Services, Inc., although the CBCA agreed with the
contractor that contracts for grounds maintenance services at
various national cemeteries were requirements contracts and
recognized that the contractor had presented some anecdotal
evidence that the Government had diverted some work that
should have been performed by the contractor to the
Government's own employees, the Board nevertheless held that
the contractor had failed to present sufficient evidence to
establish either bad faith by the Government in failing to
exercise an annual option or to quantify the damages allegedly
flowing from the diversion of work. In
Enterprises, the CBCA held that declining prices for the timber,
an overall economic decline, and a precipitous drop in housing starts and housing remodeling resulting in a
steep decline in the demand for hardwood lumber did not excuse
the contractor's failure to complete a timber sales contract.
it denied both parties' motions for summary judgment on other
issues in the appeal, the ASBCA, in Troy
Eagle Group, granted the Government's motion for summary
judgment that delays in performance of a contract in Iraq
caused by gate and border closures, road blockages, and
requirements that shipments be made in military convoys,
whether ordered by the United States (in its sovereign
capacity) or the Iraqi government, were not compensable.
Case 2012-016: A proposed rule would amend the FAR to to clarify
contractor and subcontractor responsibilities to obtain workers’
compensation insurance or to qualify as a self-insurer, and other requirements,
under the terms of the Longshore and Harbor Workers’ Compensation Act as
extended by the Defense Base Act. Comments are due by May 20.
of Black Horse Group, LLC, the SBA's OHA
remanded the case to the SBA for further proceedings because,
in denying a firm's application for 8(a) status, the SBA had
(i) improperly employed a "clear and convincing
proof" standard instead of the correct
"preponderance of the evidence" standard; (ii)
improperly applied an improper "chronic and substantial
gender bias" standard instead of the correct
"chronic and substantial social disadvantage to which
gender has contributed" test; (iii) reached conclusions
contrary to the applicant's evidence; and (iv) ignored other
evidence. The Administrative Law Judges from other agencies
seem to be taking a closer look at these 8(a) appeals than
the SBA's own judges have in the past, which is probably
a good thing; now, if the new judges could just figure out
that the OHA is not a "court". . . . ;)
North America, Inc., another unsuccessful post-award
protest, the protester lost mainly due to the deference the
court paid to the agency's evaluation of past performance and
to its best-value tradeoff analysis: "The Court will not disturb a
best-value award so long as the agency 'documents its final award decision and includes the rationale for any business
judgments and tradeoffs made.'" (citing Blackwater Lodge & Training Ctr. v. United
States, 86 Fed. Cl. 488, 514 (2009)).
Technology CW LLC, an unsuccessful post-award protest, the
Court of Federal Claims held that (i) the agency only engaged
in clarifications with the successful offeror and, therefore,
was not required to conduct discussions with the protester;
and (ii) the agency's decision to exclude the protester from
the competition was unobjectionable where statements in its
proposal rendered it incomplete and precluded the agency from
determining price reasonableness.
Logistics Co., an unsuccessful post-award protest, the
Court of Federal Claims held that the Army's nonresponsibility
determination was reasonable despite a host of challenges from
the plaintiff, including its complaints about the vendor
vetting process and its allegations that the agency had de
facto debarred or blacklisted it.
Charter Solutions, Inc., another unsuccessful post-award
protest, the same court held that a contract modification to
add airlift support of cargo and passenger movement throughout Afghanistan
7 days a week, which was not restricted to the counter-narcotics programs
contemplated by the original contract, was not a cardinal
change outside the scope of the "Changes" clause
and, therefore, did not subvert the requirement for
competition for new contracts.
of 347 Construction Group, the SBA's OHA affirmed the
SBA's dismissal of an SDVOSB protest because (under 13 C.F.R.
125.24(b)), the SBA lacked jurisdiction over the protester's
complaint about its own elimination from an SDVOSB
set-aside competition by the Air Force's Contracting Officer
after he discovered the firm was not listed in VetBiz
database. The Contracting Officer lacked the authority to make
this determination on his own, but, according to the OHA, the
protest of his action should have been treated as a bid
protest and handled by an appropriate bid protest forum (e.g.,
the GAO). Interestingly, the protester originally sent its
protest to the Contracting Officer, and, from the description
of that document in the OHA's decision, the Contracting
Officer could well have treated its as an agency-level bid
protest. Instead, he forwarded it to the SBA, which resulted
in the dismissal for lack of jurisdiction. So, the protester
was twice bitten by the Contracting Officer's
Case 2012-014: A proposed rule would make extensive
revisions to the FAR (i) to implement several recent SBA revisions of
the small business size and small business status protest and appeal procedures,
and (ii) to restructure sections of the FAR that address small business status protest
and appeal procedures in order to provide uniformity to the protest and
appeals guidance provided at FAR 19.306 (protesting a firm’s status as a
HUBZone small business concern), FAR 19.307 (protesting a firm’s status as an
SDVOSB), and FAR 19.308 (protesting a firm’s status as an economically disadvantaged women-owned small business
concern or women-owned small business concern). The proposed rule also
updates the protest and appeals guidance found at FAR 19.302
(protesting a small business representation or rerepresentation).
Comments are due by May 6.
decision originally issued in December 2011, but just now
being published in heavily redacted form, the GAO
sustained a protest by BAE
Systems Technology Solutions and Services, Inc., because
(i) the agency credited the successful offeror with a proposed
approach that the offeror did not commit to complete to the
agency's satisfaction; and (ii) the agency looked only at the
protester's corporate experience as a whole, refusing to
credit it with the significant, relevant experience of its
proposed personnel. The second part of this holding is a
head-scratcher. The GAO's annals are littered with the carcasses of protesters
felled by the GAO's typical reasoning that an agency is not required to do something just because a
regulation permits it (especially where the solicitation does
not require it). Yet here, the GAO took the opposite approach:
faulting the agency for failing to do something that the
solicitation did not require and reasoning from the fact that
the regulations permitted it. Of course, this approach is
great for protesters, but I bet another blue moon has come and
gone before the GAO uses it again.
Foodservice, GmbH, the Court of Federal Claims issued a
declaratory judgment that an agency's override of (actually,
its failure to implement) CICA's automatic stay during a GAO
protest of the results of corrective action in response to a
prior protest was not adequately justified in the D&F
under either the "best interests of the Government"
or the "urgent and compelling circumstances" tests.
Sea Engineers & Constructors, Inc., the ASBCA upheld a
default termination because (i) the construction contractor's
delay was not excused by the Government's withholding of
progress payments and its refusal to process related documents
in a situation where the Government had expressed reasonable
concerns that, due to the contractor's lack of progress,
earlier payments had overpaid the contractor; and (ii) a
four-month forbearance period after the Government's warning
that it was reserving its rights did not waive the completion
date, especially because the contractor had continued to
submit optimistic (though inaccurate) reports of its progress
during that period.
Martin Services, Inc., the ASBCA denied (for lack of
jurisdiction) the Government motion for partial summary
judgment seeking return of license costs previously paid to
the contractor because there was no underlying decision by the
Contracting Officer asserting the claim.
Brown & Root Services, Inc., the ASBCA exercised its
discretion and dismissed two appeals without prejudice under
ASBCA Rule 30 because False Claims Act litigation had been
instituted in federal district court covering the same claims.
Worldwide USA, Inc., the CBCA sustained an appeal of the
default termination of an auction sales contract for a barge
because (i) the bid description omitted mention of the large
amount of water in the barge's ballast tanks, which would have
to be disposed of, and (ii) the Contracting Officer failed to
inform the buyer of an agency's availability to undertake that
disposal, which failure breached the Government's duty to
cooperate with the contractor in the performance of the
for my personal record for blog post length today.
Industries, Inc., the apparently successful offeror in
response to a task order solicitation set aside for small
businesses under the GSA's LOGWORLD schedule contract, who was
subsequently determined by the SBA's Area Office to be other
than small, has won an injunction preventing the agency from
awarding the order to any other firm until the protester's
appeal of the Area Office's size determination is resolved on
appeal by the OHA because of the protester's claim that it was
small as of the date it last "updated" its LOGWORLD
contract in 2009 and, therefore, should retain that status for
five years for LOGWORLD orders. The court conceded the
applicability of the relevant regulations to the facts of the
solicitation left it in doubt as to what the OHA will
ultimately decide, but saw sufficient merit in the protester's
arguments to require everyone to wait for the OHA to clear up
and Associates, Inc., is another unsuccessful pre-solicitation protest by
an incumbent contractor of a DOL
decision to designate a follow-on procurement (this one for the operation of
the Shriver Job Corps Center) as a small business set-aside.
of Innovet, Inc., the SBA's OHA, in an opinion
highly critical of the SBA, remanded the case for further
proceedings because the SBA had ignored, misread, and
misstated significant portions of the evidence provided by an
applicant for admission to the 8(a) program and had failed to
explain the rationales for its conclusion that the applicant
had not demonstrated harm resulting from his acknowledged
physical and mental handicaps.
Appeal of Absolute Staffers LLC, the OHA
affirmed the Area Office's dismissal of untimely protest filed
(much, much) more than five days after the agency had notified
the protester of the identity of the winning offeror.
NAICS Appeal of Katmai
Simulations & Training the OHA upheld the Contracting
Officer's determination that a solicitation for roleplayer support
services was covered by NAICS code
561320 (Temporary Help Services) with an associated size standard of
$25.5 million in average annual receipts, as opposed to
NAICS code 611710 (Educational Support Services).
Appeal of Savantage Solutions, the OHA upheld the
Contracting Officer's designation of NAICS code 541512 (Computer Systems Design
Services) with a corresponding $25.5 million annual receipts size standard,
as opposed to NAICS
Code 541330 (Military and Aerospace Equipment and Military
Weapons), with a $35.5 million size standard.
Appeal of Validata Chemical Services, Inc., the OHA
held that the agency's failure to formally include the NAICS
Code designation in a solicitation did not excuse the
appellant's failure to file a timely appeal because the code
was included in a published presolicitation notice and again
in questions and answers published during the solicitation
Acquisition Circular ("FAC") 2005-66
has been published and includes the following three items,
plus technical amendments:
Case 2013-003 (Definition of Contingency Operation): An
interim rule amends the definition of "contingency
operation" at FAR 2.101 to reflect the statutory change to the definition made by the
National Defense Authorization Act for Fiscal Year 2012.
Comments are due by April 29.
Case 2011-025 (Changes to Time-and-Materials and
Labor-Hour Contracts and Orders): Effective April 1, a final
rule amends 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.
Case 2013-007 (Extension of Authority to Use Simplified
Acquisition Procedures for Certain Commercial Items): A final
rule amends the FAR to extend the authority of the Commercial Item Test Program at FAR subpart 13.5
to January 1, 2015.
addition to the above, the following DFARS rules and proposals
have been published:
Case 2012-D015: A final rule adopts, with changes, the
interim rule amending the DFARS procedures for the acquisition
of tents and other temporary structures.
Case 2012-D006: A final rule amends the DFARS to implement a section of the
National Defense Authorization Act for Fiscal Year 2009 and to
expand coverage of contractor requirements and responsibilities
relating to alleged crimes by or against contractor personnel.
Case 2009-D002: A final rule adopts, with changes, the
prior interim rule amending the DFARS to conform to the FAR regarding policy
and procedures related to the Electronic Subcontracting Reporting System.
Case 2012-D027: A proposed rule would amend the DFARS to implement a section of the National
Defense Authorization Act for Fiscal Year 2012, which requires DoD to take
steps to encourage contractors to develop science, technology,
engineering, and mathematics (STEM) programs. Comments are due
by April 29.
Case 2012-D038: A proposed rule would amend the DFARS to explicitly state that fringe benefit costs
incurred or estimated that are contrary to law, employer-employee
agreements, or an established policy of the contractor are unallowable.
Comments are due by April 29.
the following two guidance documents in order to improve OFCCP’s
ability to enforce the Executive Order 11246's ban on pay
discrimination and to eliminate a rarely used, ineffective
program: (i) Interpreting Nondiscrimination Requirements of Executive Order 11246 with respect to
Systemic Compensation Discrimination and (ii) Voluntary Guidelines for Self-Evaluation of Compensation Practices
for Compliance with Executive Order 11246 with respect to Systemic
of Industry and Security has issued numerous corrections
of typographical errors and references in the Export
Educational Systems, Inc. (a case involving the
interpretation of both the "fair proportion"
determination required by 15 U.S.C. 644(a) and the Rule of Two
requirement of FAR 19.502), the Court of Federal Claims denied
the incumbent's presolicitation protest against the DOL's
decision to designate the follow-on procurement for operation
of the Montgomery, Alabama Job Corps Center as a small
Corp., the ASBCA relied on the rule of contract
interpretation that contracts must be read as a whole in
finding for the contractor because the Government's
interpretation would have rendered several portions of the
contract "inoperative, meaningless, and useless."
Carolina Public Service Authority, a decision limited to
quantum after a prior finding of entitlement, the ASBCA held
that the contractor was entitled to indemnification from the
Government for the full amount a jury awarded to third party
landowners for flooding damages in a separate action against
the contractor, plus CDA interest from the time the contractor
submitted its indemnification claim to the Government.
Brown & Root Services, Inc., because the contract
award fee provisions at issue were ambiguous on the issue of
whether the Contracting Officer had discretion to ignore the
contract's mathematical system for calculating the award fee,
the Court of Federal Claims denied the Government's
preliminary motion to dismiss contractor's claims that the
Contracting Officer's decision awarding no fee to the
contractor despite its high numerical scores (i) breached the
contract and (ii) was arbitrary and ambiguous, but did dismiss
the claims that the decision (i) breached the implied covenant
of good faith and fair dealing and (ii) violated FAR 16.401.
Electronics Corp. , the Court of Appeals for the Federal
Circuit affirmed the ASBCA's prior decision dismissing an
appeal for lack of jurisdiction and held that, under FAR
8.406-6, only the GSA's Contracting Officer has the authority
to decide disputes involving, even in part, the interpretation
of FSS contract provisions and that an ordering agency
Contracting Officer lacks such authority, even when the
dispute also involves purchase order provisions.
Largo Metro, LLC, lost its post-award protest in large
part because of the high degree of deference the court accords
the agency's evaluation and trade-off analysis.
Inc., the ASBCA held (i) that the appellant need only
allege a contract existed in order to establish the Board's
jurisdiction and (ii) that whether such a contract actually
was formed goes to the merits of the appeal.
River Materials, Inc., d/b/a NAC Construction, the ASBCA
held (i) that a written, bilateral settlement agreement, which
applied to "all claims and all potential claims"
related to a contract, acted as an accord and satisfaction and
(ii) that there was no evidence in the record to support the
contractor's contention that the Government had misled
contractor into believing its claim was excepted from the
agreement and was still being considered by Government.
Management, the CBCA held it lacked jurisdiction over a
claim that relied on the same operative facts (the
Government's allegedly improper performance evaluations) as a
prior claim that had not been timely appealed to the Board.
Grumman Computing Systems, the Court of Appeals for the
Federal Circuit reversed the Court of Federal Claims and held
that, despite omitting information concerning
third-party financing arrangements related to Anti-Assignment
Act issues, the contractor's original claim letter gave the
Contracting Officer adequate notice of the amount and basis of
its breach of contract claim and, therefore, was sufficient
under the CDA. My pet peeve remains that (in part because the
CDA, itself, does not define a claim), we still are
litigating whether particular submissions constitute claims
more than 30 years after the CDA became law.
River Communications, Inc., protest, the Government had
inflated both the duration and scope of an ID/IQ contract to
the point that I would have thought the balloon had popped,
but the Court of Federal Claims held that it had not. Even
more interesting was the court's preliminary conclusion that
the plaintiff (which was not a party to the underlying ID/IQ
contract and thus was not solicited, or eligible to compete,
for the task order solicitation at issue in the protest) had
not waived its right to protest by waiting until after offers
were received, even though the plaintiff knew of the existence
of the underlying contract and of the solicitation and knew of
its basis for protesting prior to that time. The court
reasoned that holding the plaintiff to the Blue
& Gold Fleet standard in these circumstances would
result in "time-consuming collateral inquiries." I
confess my mind is not sufficiently resilient to grasp this
distinction. If a firm knows of its grounds for protest, I
think the policies of Blue
& Gold Fleet and a host of GAO decisions should
require it to protest before proposals are due.
Corp., the court (over the protester's objections)
dismissed a protest as moot because the agency's corrective
action plan (canceling the solicitation and moving the
procurement to another office) adequately mitigated the
original problems (improper conduct of the procurement and a
possible bias against the plaintiff).
Inc. won its GAO protest because (i) during discussions,
the agency neglected to specifically alert the protester to
two weaknesses that ultimately contributed to its failure to
win the award; (ii) the agency's numerical scoring methodology
was not consistently applied and contained numerous errors;
and (iii) the cost/technical tradeoff analysis did not
adequately explain the reason for selecting the higher-cost
Appeal of Shoreline Services, Inc., the SBA's OHA
affirmed the Area Office's finding that two firms were not
affiliated through the ostensible subcontractor rule in part
because there was no evidence the second firm would be a
subcontractor on the challenged procurement.
Appeal of Environmental Quality Management, Inc., the
OHA reversed the Area Office's size determination because,
under the applicable state law, the majority stockholder could
simply remove the directors who otherwise might appear to have
the power to control the firm.
NAICS Appeal of Cape Fox
Government Services, LLC, the SBA's OHA denied an appeal of NAICS
code designation 541330 (Engineering Services) in a procurement
to provide installation and logistics management services for Command
Control Communications Computers Information Technology systems.
Appeal of Trans Aero, Ltd., the OHA dismissed an appeal that
(i) did not involve a specific solicitation (but complained generally
about the agency's selection of NAICS codes) and (ii) was not timely
filed at OHA.
Appeal of Patriot Construction, Inc., although the
SBA's OHA found that an approved mentor-protégé agreement
established the clear fracture required to rebut the
presumption of identity of interest between family members,
the OHA nevertheless remanded the issue of affiliation to the
Area Office for further review concerning whether the
assistance provided by the mentor to its protégé went beyond
the scope of the mentor-protégé agreement.
Matter of Striker Electric,
the OHA remanded the case to the SBA so that it could address
three alleged incidents of disability-related bias that it
neglected to consider originally in denying an application for
admission to the 8(a) program.
Sixth Street, LLC, the Court of Federal Claims dismissed
the contractor's breach of contract claim because the
Government's actions did not strictly comply with requirements
of option provision, and, therefore, the Government had not
exercised the option the contractor claimed had been breached.
Construction, LLC, a successful preaward protest, the
Court of Federal Claims held that the VA's ODBSU erred
in handling a protest of the verified SDVOSB status of a
firm by (i) misapplying the VA's regulations regarding
restrictions on transfer of ownership in determining a
service-disabled veteran did not unconditionally own the
SDVOSB, and (ii) expanding its review to areas of the SDVOSB's
operating agreement not mentioned in protest without affording
the protested firm adequate opportunity to address those
additional areas of scrutiny. This is the second recent case
in which the court has criticized the VA's protest regulations
as being "cryptic," i.e., as failing to
provide clear guidance concerning the procedures to be
followed. See January 25 entry below.
Hawk Construction, Inc., the Court of Federal Claims
dismissed a subcontractor's claim (i.e., that the
Government's Contracting Officer had fraudulently dispersed
funds in violation of the Anti-Assignment Act) because the
subcontractor had no privity of contractor with the Government
and was not (and could not have been) an assignee under the
facts of this case.
236-page opinion (the majority of which is devoted to tracing
the history of government procurement generally and limits on
recovery of profit in government contracts in particular from
the Constitution and the Revolutionary War through the Civil
War, WWI and WWII (and most of the wars between) and on up to
the present), the ASBCA, in Space
Gateway Support, LLC, held that former FAR 45.302.3(c)
(now revised and relocated to 15.404-4(c)(3)) prohibited the
contractor from recovering profit on the cost of equipment
purchased pursuant to directions from the Government. The two
judges signing the opinion in addition to its author
specifically wrote that they only concurred in the result,
which I suspect is their way of acknowledging they had not
read the whole tome. :)
Appeal of Trailboss Enterprises, Inc., the SBA's OHA
held that the Area Office erred by automatically concluding
married individuals had an identity of interest instead of
giving the challenged firm a chance to rebut the presumption
by showing a clear fracture.
Parker, an appeal from a government claim for liquidated
damages, the CBCA dismissed for failure to prosecute because
the appellant failed to respond to the Government's reasonable
request for documentation supporting the appellant's
Iraq Company 2003, the CBCA held it lacked jurisdiction
over an appeal from a decision by an Army Contracting Officer.
OHA has issued several decisions.
Appeal of Saint George Industries, LLC, the OHA
reversed the Area Office's finding of a violation of the
newly-organized concern rule and remanded the dispute for
further proceedings because the Area Office had not adequately
analyzed whether the founder of the new firm had ever been an
officer or key employee of the predecessor firm.
Appeal of InGenesis, Inc., the OHA held that, although
the existence of a mentor-protégé agreement did not insulate
a firm from scrutiny under the ostensible subcontractor rule
where the protégé was to be the prime contractor, there was
no violation of that rule (even though the subcontractor was
the incumbent and the prime planned to hire two of incumbent's
employees as key personnel) because the prime would still
provide clearly-defined (and primary and vital) requirements
of the contract.
Matter of NOVA Training &
Technology Solutions, LLC, the OHA held that the SBA
had rational bases for terminating a firm from the 8(a)
program based on unresolved ownership and control issues.
of StrategyGen Co., the OHA found that the SBA had
misinterpreted and misapplied the "chronic and
substantial bias" test of social disadvantage due to
gender and, therefore, had improperly denied a firm entry into
the 8(a) program.
of Wholesale Distribution, the OHA decided the SBA had
a rational basis for denying an applicant admission into the
8(a) program because she failed to prove that her narcolepsy
and epilepsy had resulted in a disability-related bias.
of Novel Wares, Inc., the OHA held it lacked
jurisdiction over an appeal from a denial of admission to the
8(a) program because it was based on something other than a negative
finding of social disadvantage, economic disadvantage,
ownership or control,
fact that the business had not existed for the required
Martin Aeronautics Co. defective pricing case, the ASBCA
held that the Government had utterly failed to prove that the
alleged nondisclosure of cost or pricing data had resulted in
any increase in the negotiated price.
Inc., the ASBCA held that the Government's was the only
reasonable interpretation of term "utilized" in the
"Placing Orders" clause.
Schunck, the CBCA held that a notice of appeal sent by
Federal Express, which did not arrive at the Board until 91
days after the contractor had received the Contracting
Officer's decision, was untimely.
Essential Personnel, LLC, the GAO sustained a protest
because (i) during discussions, the agency failed to alert the
protester to two weaknesses in its proposal that eventually
led to its rejection, and (ii) the agency's method of
evaluating "fill rates" was not in accordance with
the evaluation scheme.
Development Enterprises of America, Inc., the Court of
Federal Claims found a sole source award improper on multiple
grounds, including, inter alia, the agency's lack of
advance planning, the absence of a publicized advance notice
of the award, and problems with the J&A.
Department is proposing to amend the ITAR by revising Category IV
(launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes,
bombs, and mines) of the USML to describe more precisely the articles warranting control
on the USML. Concurrently, the Department of Commerce's Bureau
of Industry and Security (BIS) is proposing to amend the
CCL to cover the items no longer covered under Category IV
of the USML. Comments on either set of proposed rules are due
by March 18.
Department is proposing to amend the ITAR to revise Category
XVI of the USML (nuclear weapons related articles) by
removing most items currently covered by that category,
retaining only tools that model or simulate the environments generated by nuclear
detonations or the effects of these environments on systems, subsystems,
components, structures, or humans, and technical data and defense services
directly related to those defense articles. Nuclear radiation detection
and measurement devices currently controlled in paragraph (c) would
become subject to the jurisdiction of the Department of Commerce under
existing Export Control Classification Number (ECCN) 1A004.c.2 or 2A291.e.
Comments are due by March 18.
Size Appeal of EASTCO Building
Services, Inc., the SBA's OHA affirmed the Area
Office's finding that a firm was other than small because the
firm had not timely presented the Area Office with evidence
that management fees were inter-affiliate transfers, which,
therefore, should have been excluded in calculating the firm's
Matter of Career Personnel,
Inc., the OHA held it lacked jurisdiction to consider
an appeal from a determination that a firm was ineligible for
the 8(a) program, which was based in part on the firm's
failure to disclose the existence of a trust in its initial
application. The version of the decision accessible from the
SBA's website includes the following sentence: "Contrary
to Petitioner's arguments, I do not read SBA's final
determination as relying on the feet that the existence of the
trust remained undisclosed throughout the application and
reconsideration process." I assume "feet" was
supposed to be "fact" and have made that correction.
Matter of JA Harris Trucking, the OHA upheld a firm's termination from the 8(a) program
for failure to submit required documents.
Acquisition Circular (FAC) 2005-65
has been published and includes the following four items plus
Case 2012-013 (Prohibition on Contracting with Inverted
Domestic Corporations): A final rule adopts, without change,
the prior interim rule amending the FAR to implement a section of the Consolidated
Appropriations Act, 2012, that 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 entity.
Case 2012-007 (Extension of Sunset Dates for Protests of
Task and Delivery Orders): A final rule adopts, without
change, the prior interim rule amending the FAR to implement sections of the Ike Skelton
National Defense Authorization Act for Fiscal Year 2011 and the National
Defense Authorization Act for Fiscal Year 2012, which extend the
sunset date for protests against the award of task or delivery orders from
May 27, 2011 to September 30, 2016.
Case 2012-012 (Free Trade Agreement--Columbia): A final
rule adopts, with one minor change, the prior interim rule
amending the FAR to implement the United States--Colombia Trade Promotion
Agreement, which is a free trade agreement that provides for mutually non-discriminatory treatment
of eligible products and services from Colombia.
Case 2011-011 (Unallowability of Costs Associated with
Foreign Contractor Excise Tax): A final rule amends the FAR to
implement certain requirements of section 301 of the James Zadroga 9/11
Health and Compensation Act of 2010 (which imposes a 2 percent excise tax on
certain federal procurement payments to foreign persons) by
disallowing the costs associated with that excise tax.
technical amendments can be found here.
Inc., the Court of Federal Claims held that the the VA
OSDBU's prior determination (that a veteran did not control a
business because he lived in another state for six months of
the year) lacked a rational basis.
AquaSource, Inc., the ASBCA upheld a termination for cause
of a contract to supply purified water because the
contractor's performance during the 49 day period between the
missed delivery date and the termination (conducting a site
survey, being notified by its construction contractor that it
might be liable for liquidated damages, and using minimal
efforts to find an alternate source of water) was not
sufficiently substantial to constitute reliance on the alleged
waiver of the delivery date.
have corrected some broken links to 2010 decisions on my PSBCA
Decisions page. I still need to correct the corresponding
entries in the 2010 blog.
have corrected a bunch of outdated, broken links to cases from
2000 to 2005 on my CAFC
Contract Disputes and CAFC
Bid Protest pages.
102, LLC, the Court of Federal Claims held that the use of
the phrase "long term" in an ID/IQ contract to lease
aircraft to the Government for a base term of one year with
seven one-year options did not obligate the Government to
exercise the options.
Water District, the court dismissed claims based on
various breach-of-contract theories because they all assumed a
contractual obligation by the Government to provide drainage
to the plaintiff, which the court held did not exist, and
because many of the claims were time-barred by the statute of
Express Lines, the Court of Federal Claims held it lacked
Tucker Act jurisdiction over an action brought by a motor
carrier/subcontractor that had no privity of contract with the
Cheaves, the court excluded an expert's report offered by
the plaintiff as evidence of trade usage of an allegedly
ambiguous contract term because the court concluded that
the contract was not ambiguous and that it already
incorporated the trade usage in question.
Construction & Consulting, Inc., which involved a
contract to widen a road, the work was delayed and truncated
after a hill the contractor was required to excavate
collapsed, and the CBCA held that the collapse was due
to defective specifications and a differing site condition,
making the resulting period of suspension of the work
unreasonable per se and entitling the contractor to
Technology, Inc., the Court of Appeals for the Federal
Circuit held that, although the Court of Federal Claims erred
in finding that a firm protesting the rejection of its initial
proposal (on the basis of missing data) lacked standing, the
lower court was, nevertheless, correct in noting that there
was a rational basis for the Government's decision to reject
the initial proposal because it failed to include required
subcontractor cost or pricing data when the solicitation
stated proposals might be rejected for being incomplete and
the missing data was material to the Government's evaluation.
Corp. of America, a successful preaward protest, the Court
of Federal Claims held that the VA erred in rejecting a
quotation the protester attempted to submit online in
accordance with the solicitation's instructions and within the
time required by the solicitation (because the VA's website
was incorrectly set to a different time and improperly
rejected the proposal for that reason). The court obviously
had no patience for the agency's continuing attempts to claim
the quotation was untimely:
Unlike someone on good terms with the Mad Hatter’s Time, the officials at the VA could
not whisper a hint to Time and make the clock on this procurement go round, in a twinkling, to a
time different than that listed in the solicitation. There is nothing on this side of the looking
glass to support the VA’s rejection of plaintiff’s offer. It is time, via an injunction, for defendant
to return to reality.
Case 2011-028, "Nondisplacement of Qualified Workers
Under Service Contracts," (see the December 21
entry in my 2012 blog) has been corrected
to change "paragraph (c)" to "paragraph
(d)" in the discussion in the original notice under
The Federal Accounting Standards Advisory
Board (FASAB) has issued Statement of
Federal Financial Accounting Standard 44, Accounting for Impairment of
General Property, Plant, and Equipment Remaining in Use, the
full text of which is available here.
Oil Co., et al., the Court of Federal Claims held
that the "Taxes" clause included in the contracts in
dispute did not contemplate indemnification claims by
contractors for later-imposed CERCLA clean-up costs after the
Appeal of AutoFlex AFC, Inc., the SBA's OHA held that
the Area Office erred in dismissing a protest as untimely
because the protester did not receive the notice of award
until after close of business and, therefore, it was deemed
not to have been notified until the following business day.
Appeal of American Blanching Company, the OHA held
that the Area Office properly applied the adverse inference
rule to find a firm other than small after it failed to submit
the requested Form 355 in response to a size protest.
has redesigned its website.
Department of Health and Human Services is proposing to amend its
FAR Supplement--the HHS Acquisition Regulation (HHSAR)--by
contract clauses: "Patent Rights--Exceptional
Circumstances" and "Rights in Data--Exceptional
Circumstances." Comments are due by March 11.
Newday Consulting LLC, the CBCA denied the contractor's
claim that a mistake in bid justified a higher price for
ground beef because, under the RFQ, the contractor
accepted the Government's "offer" (purchase order)
by delivering in accordance with the terms of the purchase
International, the ASBCA denied all delay claims by a
construction contractor for various constructive changes,
including defective government-furnished property,
interference with performance, and acceleration, most of which
boiled down to the contractor's belief that the Government's
representatives had been too strict in enforcing the
Squared Inc. won its GAO protest because the awardee's
quotation failed to comply with a material solicitation
requirement and, therefore, could not have formed the basis
for an award by the agency.
In the Linc
Government Services, LLC, and J&J Maintenance, Inc.,
protests filed separately by two disappointed bidders
(each of which involved a myriad of challenges to
multiple aspects of the evaluation), the Court of Federal
Claims granted the preliminary injunction sought by one of
those plaintiffs (Linc) and remanded the case to the
agency for additional investigation or explanation of various
aspects of its evaluation that were either defective or lacked
an explanation in the record, all this despite the fact that
the court denied the majority of Linc's protest grounds and
all of its co-plaintiff's.
Inc., the GAO found there was a dearth of documentation in
the record to support the awardee's "substantial
confidence" rating in past performance (and noted that
the agency's post hoc efforts to justify the situation
during the protest hearing were not credible).
Healthcare Supply Solutions, Inc., the GAO concluded that
the record of the evaluation did not support the agency's
conclusion that the protester's proposed product was not
"equal" to the specified brand name item.
contractor's motion for reconsideration, the ASBCA
decision in the TMS Envirocon case (dismissing claims that
had not been presented within the CDA's six-year statute of
to another motion for reconsideration, in DODS, Inc., the
ASBCA not only affirmed
decision (overturning a default termination) but also
added a new basis for that decision (the absence of required
information from the Government's TDP as an excuse for failure
to meet the original delivery date).
Happy New Year!
Alamo Travel Group, LP, the Court of Federal Claims held
that a protest against the Government's failure to evaluate
past performance information actually involved an untimely
challenge to a patent error in the solicitation.