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Developments in Government Contracting--2013



December 31

In WorleyParsons 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.

In Bruce 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.

Federal Acquisition Circular (FAC) 2005-72 has been published and includes the following four items.

FAR 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. 

FAR 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. 

FAR 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.   

FAR 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 DFARS Case 2013-D032.

December 30

In The 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 convenience termination.

December 24

In Size 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.

In Size 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. 121.1001(a)(7)).

In Size Appeal of Alterity Management & Technology Solutions, the OHA affirmed the Area Office's finding of affiliation under the newly organized concern rule.  

December 23

NASA 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 reporting information.

Effective 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.

In 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."   

December 20

DFARS 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, 2014.

DFARS Case 2011-D055: A final rule amends the DFARS to update and clarify requirements for unique identification and valuation of items delivered under DoD contracts.

In CMEC ARC Electric JV, LLC, the CBCA denied the contractor's claim for extra compensation to deliver an item clearly required by the contract specifications.

In VSE 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.

December 19

In BAE 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.

December 18

DFARS Case 2011-D055: A final rule amends the DFARS to update and clarify requirements for unique identification and valuation of items delivered under DoD contracts.

December 17

In Fluor 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.

In Linc 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.

In Duncan 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.

In The 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.

December 16

In Kenneth 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 policy."

In Eco 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.

In Size 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 firms.

December 10 In NEIE, 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.

In Reliable 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 manufacturing facility.

In Laguna 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 appeal.

December 6

The GAO 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 equal basis.

DFARS 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.

DFARS 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. 

DFARS 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, 2014. 

DFARS 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.

DFARS 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.

December 5

West 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.

In Coffee 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.

In PAW & 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 order proposal).

In Colonial 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.

In Chapman 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.

December 4

The GAO 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.

In Englewood 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.

In Earthstar 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.

In Public 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.

December 3 FAR 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. 

November 29

In Lyon 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.

November 26

Federal Acquisition Circular (FAC) 2005-71 has been published and includes the following two items (plus some editorial changes to the FAR):

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.

FAR 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.

November 25 In Russell 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 were recoverable.
November 23

In AquaTerra 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).

November 22

In Res-Care, 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.

In KWV, 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. 

November 21 

FAR Case 2013-001: The comment period for the proposed rule regarding ending trafficking in persons has been extended to December 20.

In Development & 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.

In Metag 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).

November 20

In Matter 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.

November 19

In Size 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.

In Size 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 project. 

In Size 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 subcontractor rule.

In Size 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.

November 17 In CB 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 increases.

In Dace 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.

November 16 DFARS Case 2013-D037: A final rule amends the DFARS to remove coverage on contractors performing private security functions that is now covered in the FAR.

DFARS 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.

DFARS 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 information. 

November 15

In AXIS 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.

November 9

In Amazon 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.

November 8

Kap-Sum 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 drawings.

The 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.

November 7

The 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 the solicitation. 

In Dyncorp 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 as follows: 

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.

November 5

In Jane 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. 

November 4

In White 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 EAJA.

In Miles 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.

In Size 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. 

In Size Appeal of AcelRx Pharmaceuticals, Inc., the OHA upheld the Area Office's finding of affiliation through identity of interest.

October 31

The GAO 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 Personnel factors.

DFARS 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. 

DFARS 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.  

DFARS 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.  

DFARS 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 Commercial Corporation. 

DFARS 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.

DFARS 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.

October 29

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.

October 25

In Project 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 dust.

October 22

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.

Effective 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. 

In Tiger 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.

In Ft. 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."

October 17

In SUFI 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 were reasonable.

October 11

In General 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 benefits.

October 8

In BYA 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 exterior walls.

In Mawaraa AlBihar Co., the ASBCA held it lacked jurisdiction over an uncertified claim in excess of $100,000.

In EJB 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.

October 6

In Matter 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.

In Matter 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.

In NAICS 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).

In Brookfield 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).

October 5

In Size 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 employees.

In Size 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.

October 4

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. 

In Sperient 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.

October 3

In Mori 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 order contract.

Effective October 15, the BIS and the State Department are making multiple corrections to recently-published changes to the EAR and the ITAR, respectively.

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.

October 2

In Sigma 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.

In Zip-O-Log 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 letter.

Effective 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.

October 1

In Jacqueline 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.

In Mylene 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.

In B.A.E. 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.

In Alalamiah Technology Group Co. (K.S.C.C.), the ASBCA held it lacked jurisdiction over an appeal by a disappointed bidder.

September 30

In Size 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 subcontractor's.

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.

DFARS 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. 

Federal Acquisition Circular (FAC) 2005-70 has been published and includes the following two items:

FAR Case 2013-015: An interim rule amends the FAR to implement a statutory pilot program enhancing whistleblower protections for contractor employees.   DFARS Case 2013-D010 makes similar amendments to the DFARS.

FAR 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.

September 27

In Systems 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 justification. 

September 26

In BCPeabody 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.

A proposed 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. 

September 24

Effective 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 with disabilities.   

In Xerox 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.

In Kellogg 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.

In Optimum 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.

September 20

In its unsuccessful post-award protest at the Court of Federal Claims, Supreme 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.

September 19

In Size 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.

September 18

In Archura 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.

September 17

In TTF, 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.

Following 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.

The most 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. :)

In Matter 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 brother.   

September 15

In Tricon 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 to appeal.

In Selrico 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.

September 14

Sayres & Assocs. Corp. won its GAO protest because the Navy's evaluators incorrectly read two tables in the protester's proposal as contradicting one another.

In Rockies 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.

September 12

The GAO 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.  

September 11

In Sentrillion 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 unacceptable.

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 item 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.

September 10

In Dragados 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. 

In EJB 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.

In Protecting 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. 

September 8

In Asiel 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.

September 6

In Kellogg 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.

September 5 The ASBCA dismissed two appeals for failure to certify claims in excess of $100,000: Baghdadi Swords Co. and Lael Al Sahab & Co.

In International 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.

August 31

In Size 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 underlying company.

In Size 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.

In NAICS 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.

In Matter 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 SDVOSB] 

In Matter 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)

In Matter 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.

August 30

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. Thank you. 

August 29

In 600 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. 

The Court 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. 

August 28

In Platinum 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.

In Baghdad Fallujah Co., the ASBCA dismissed an appeal for failure to certify a claim in excess of $100,000.

In Dongbuk R&U Engineering Co., the ASBCA dismissed another appeal because a contract obtained through fraudulent misrepresentations was void ab initio.

August 26

In Honeywell International, Inc., the ASBCA held that portions of a delivery order were illegal or invalid terms that the Board lacked jurisdiction to enforce.

In Coulson 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.

The State 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.

August 24

In 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 proposals.

August 23

In Thomas 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 Government.

August 22

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.

In Sikorsky 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.

August 19

The 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 termination.

August 15

In Bay 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.

August 14

In ST 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.

In Parsons-UXB 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 excise tax. 

In GMS Hawaii Corp., the ASBCA denied a claim for termination costs because the contract permitted termination without liability in the circumstances of this case.

August 13

In Cohen 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.

August 9

In Size 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 affiliate's contracts.

In Size 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. 

In Size 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.

August 8

In Amina 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 appeal.

In Grunley 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 clearly did.

DFARS 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 sanctions).

DFARS Case 2012-D054: A final rule amends the DFARS to provide guidance relating to the release of fundamental research information.

DFARS 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.

DFARS 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.

DFARS 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.

August 7

FAR 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 7. 

August 6

In Aeroplate 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 contractor/plaintiff.

In Allen Jerry Oliver, the PSBCA dismissed an appeal filed absent an underlying claim and a Contracting Officer's decision.

In Redmond 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.

In Tromel Construction Corp., the PSBCA almost netted out competing construction delay damages and liquidated damages claims, concluding the Postal Service owed the contractor about $1,000.

In Postal 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 claim submission.

August 4

In Size 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 primary industry.

August 2

In Management & 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.

August 1

In Croman 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.

FAC 2005-69 has been published and includes the following six items, plus technical amendments:

FAR 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. 

FAR 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. 

FAR 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. 

FAR 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.

FAR 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. 

FAR 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. 

July 31

Laerdal 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.

In Donaldson 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.

In Bluebird 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 period. 

Unless it receives adverse comments by August 30, the EPA is making several minor administrative changes to its acquisition regulation (the EPAAR), effective September 30.  

July 30 

In 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.

In 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 equal competition.

July 29

A proposed 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 property. Comments are due by September 27.

In Summit 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.

In EHR Doctors, Inc., the CBCA dismissed another appeal for lack of jurisdiction because it involved an uncertified claim in excess of $100,000.

July 26 In Excel 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.
July 25

The GAO 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.

In order 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.  

July 24

Desktop 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 notification system.

In General 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).

In Corporate Systems Resources, Inc., the ASBCA held it lacked jurisdiction over a claim by a subcontractor under a Washington Metropolitan Transit Authority prime contract.

In Hewlett-Packard 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.

July 21

The SBA's OHA has published several decisions.

In Size 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.

In Size 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.

In Size 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 business.

In NAICS 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

In Matter 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.

In Free&Ben, 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.

July 19

In Gulf 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.

July 18

McAfee, 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.  

July 17

The SBA 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 1.

July 16

Effective 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. 

July 15

In NAICS 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" days. 

July 11

In The 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.

July 9

In James 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.

In Environmental 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 justified.

In Commissioning 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.

In Bruce 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.

July 8

OFPP's CAS 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 6.

The Bureau 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.  

The State 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.

July 6

In Matter 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.

July 5

In Size 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 of both.

In Size 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.

July 3

In Atlantic 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.

In Government 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.

In Premier 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.

In MVS 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."  :) 

July 1 The 2013 Procurement Review is up, through June 30. Of course, I will continue to update it through the end of the year.
June 29

In Size 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 the OHA. 

June 28

In The 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.

In Hart 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 contracts.

In IAP 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. 

Effective 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. 

June 26

In Glenn 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.

DFARS 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 contracts. 

Federal Acquisition Circular 2005-68 has been published and includes the following item (plus technical amendments):

FAR 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.

FAR 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 August 26.

June 25

DFARS 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 subcontracts. 

June 21

Federal Acquisition Circular (FAC) 2005-67 has been published and includes the following 10 items plus technical amendments.

FAR 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.

FAR 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 responsibilities. 

FAR 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 (SAM) database.

FAR 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.

FAR 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. 

FAR 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 price. 

FAR 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.

FAR 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.

FAR 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.   

FAR 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.

June 20

The 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.

The SBA has issued several rules revising various size standards, each effective July 22.

First, the SBA is increasing the small business size standards for 11 industries in NAICS Sector 11 (Agriculture, Forestry, Fishing and Hunting) and retaining the current standards for five industries and two exceptions to NAICS 115310.

Secondly, the SBA is increasing the small business size standards for 17 industries in NAICS Sector 71 (Arts, Entertainment, and Recreation) and retaining the current size standards for the remaining eight industries in that Sector.

Third, the SBA is is increasing small business size standards for 36 industries in NAICS Sector 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.

Finally, the SBA is increasing the small business size standards for three of the four industries in NAICS Subsector 213 (Support Activities for Mining).

June 19

In Trailboss 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.

June 18

In Environmental 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 certification.

IBM-U.S. 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 awardee.

June 17

DFARS 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.

June 14

The CBCA 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.

June 13

The GAO 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.

In Mil-Mar 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.

June 12

In Size 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 export control laws, regulations and directives applicable to the performance of DOE contracts. Comments are due by July 12.

In Ensign-Bickford 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.

In CAE 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.

In Gargoyles, 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.

In PHI 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 costs.

June 11

Effective 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. 

June 10

In Matter 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 bias.

In Size 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.

In Size 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.

In NAICS 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.

In NAICS 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 (shipyard activities).

In 360Training.com, 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.

June 7

In Advanced 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). 

Effective 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. 

June 6

In Command 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 rules.

In Unisys 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.

In Crewzers 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?   

FAR 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. 

June 5

Exelis 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.

In Proteus, 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."

May 30

Previously, in Environmental 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.

In Laguna 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).

In Chameleon 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.

May 29

In Davis 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.

May 27 In its prior decision involving Reality 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 follows: 

Per 76 FR 8222-01, "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."

That quotation is from the prefatory comments to some SBA regulations published in 2011. The actual quotation reads as follows:

The 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.

The 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:

One 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.

76 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.") 

 

May 26

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.

May 24

In Caddell 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 result.)     

Effective June 24, a final rule revises 32 C.F.R. Part 165 to update policy, responsibilities, and procedures for calculating and recouping nonrecurring 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. 

The State 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.

May 22

DFARS 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.

May 21

In Henry Stranahan, the ASBCA held it lacked jurisdiction over an appeal from a decision to debar a contractor.

In Jaynes 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 ASTM A135.

In Tri-County 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.

May 16

DFARS Case 2012-D053: A final rule amends the DFARS to reflect the joining of the CCR, ORCA, and EPLS databases into the SAM database.

DFARS 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.

DFARS Case 2012-D035: 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.

DFARS 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.

DFARS 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 July 15.

Global 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 Plan factors.

May 14

In PHI 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.

In ADT 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.

In Beechcraft 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.

May 11

The 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 unintended consequences? 
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?

There 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.

May 10

Nuclear 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.

In General 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.

In KWV, Inc., a successful preaward protest, the Court of Federal Claims built upon the preliminary injunction it had issued in an earlier 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 residency.

In Soto 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.

In Environmental 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 illusory.

May 9

In Esegur-Empresa 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.

In Size 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 affiliate rule.

In Matter 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 another firm. 

May 8

In J. 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.

In MAC 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.

In Service 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).

May 6

In Insight 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 quotations.

A proposed 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.

The FAR 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 clause." 

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.

The SBA 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.

May 4

In Size 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.

In Matter 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.

May 3

Effective 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 exceed $100,000. 

May 2

In Quest 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.

May 1

In Ulysses, 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.

In Impact 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.

April 30

In Turner 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 performance.

In R&G 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 sum certain.

In Diversified 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. 

April 26

The SBA's OHA has issued several size decisions.

In Size 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, size.

In Size 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 affiliation.

In Size 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 recertification.)

In Size 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.

In Size Appeal of Washington Patriot Construction, LLC, the OHA affirmed the Area Office's finding of affiliation through the power of negative control.

April 24

In MOQA - 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.

In Glasgow 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.

In Strand 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. 

April 23

In CMS 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. 

The DoJ 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. 

April 20

In Matter 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 business relationships with non-disadvantaged individuals or entities that result in an inability to exercise independent business judgment without great economic risk.

April 19

In Sammy's 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. 

In Temescal 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.

April 18

In Norsat 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 proposal.

In State 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.

FAR 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.

April 17

The EPA has made several revisions to the "Printing" clause in its acquisition regulation (the EPAAR).

DFARS Case 2012-D027: DoD announces the withdrawal of the proposed rule concerning development of science, technology, engineering, and mathematics (STEM) programs.

April 16

As 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.

In Taj 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.

In United 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.

In Servicios 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.

April 12

In CW 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.

April 11

Although 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 supplement.

April 8

In Cohen 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.

In Dynamics 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 funding.

April 6

In 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 withdrawing the 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 development process. 

April 4

In Arcata 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.

In TigerSwan, 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.    

In Lakeshore 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.

The SBA is proposing to rescind the class waiver from the Nonmanufacturer Rule for NAICS code 332991 (Aerospace Ball and Roller Bearings) PSC 3110. Comments are due by May 4.

April 3

In Raytheon 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 fixed-price contract. 

In Joe 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]

In Tiger 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 contractor. 

In Executive Personnel Services, Inc., the CBCA dismissed an appeal filed 92 days after receipt of the Contracting Officer's decision, as untimely.

In Selrico 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).

April 2

In Hernandez, 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 been negotiated had given rise to legitimate issues concerning its scope, and, therefore, the Government's counterclaims in fraud could not be sustained.

April 1

In DaVita, 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 certain. 

In Sikorsky 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.

March 29

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.

In Matter 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 "chronic and substantial social disadvantage" brought about by the alleged bias; and (ii) required "conclusive proof" rather than simply a "preponderance of the evidence." 

March 28

The Bureau 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.

DFARS 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. 

DFARS 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.

DFARS 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

DFARS Case 2012-D041: A final rule amends the DFARS to to revise the definition of "produce" as it applies to specialty metals.

March 27

Bahrain 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 solicitation requirements. 

March 26

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 2012 NAICS revisions published by the Office of Management and Budget. Comments are due by April 25.

March 23

In Preferred 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.

In Matter 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.

March 22

In ALK 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 Payne 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.

March 21

Although 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.

March 20 

FAR 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.

March 17

In Matter 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". . . . ;)

March 15

In Plasan 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)).

March 14

In G4S 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.

March 11

In NCL 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.  

In Aircraft 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.

March 9

In Matter 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 actions.  

March 7

FAR 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.

March 6

In a 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.

In Supreme 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.

March 5

In Red 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.

In Lockheed 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.

In Kellogg 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.

March 4

In Expediters 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 contract.

February 28

I'm going for my personal record for blog post length today.

Metters 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 the matter.  

Adams 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.

In Matter 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.

In Size 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.

In 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).

In NAICS 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.

In NAICS 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 process.

Federal Acquisition Circular ("FAC") 2005-66 has been published and includes the following three items, plus technical amendments:

FAR 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.

FAR 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.

FAR 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.

In addition to the above, the following DFARS rules and proposals have been published:

DFARS 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.

DFARS 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.

DFARS 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.  

DFARS 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.

DFARS 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 OFCCP is rescinding 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 Compensation Discrimination.

The Bureau of Industry and Security has issued numerous corrections of typographical errors and references in the Export Administration Regulations.

February 27

In Dynamic 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 business set-aside.

February 26

In Jaynes 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."

In South 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.

In Kellogg 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.

February 25

In Sharp 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.

February 22

One 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.

February 21

In Tele-Consultants, 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.

In Colorado 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.

In JRS 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.

February 20

In Northrop 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.

In the Red 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.  

In McTech 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).

Nexant, 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 proposal.

February 19

In Size 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.

In Size 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.

February 18

In 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. 

In NAICS 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.

February 17

In Size 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.

In 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.

In 1200 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.

February 15

In Miles 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.

February 14

In Red 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.

February 13

In a 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. :)     

February 12

In Size 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.

In Kurtis 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 contentions.

In New Iraq Company 2003, the CBCA held it lacked jurisdiction over an appeal from a decision by an Army Contracting Officer.

February 11

The SBA's OHA has issued several decisions.

In Size 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.

In Size 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.

In 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.

In Matter 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.

In Matter 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.

In Matter 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, i.e., the fact that the business had not existed for the required two-year period.

February 7

In the Lockheed 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.

In ThinkQ, Inc., the ASBCA held that the Government's was the only reasonable interpretation of term "utilized" in the "Placing Orders" clause.

February 5

In Tobias 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.

February 1

In Mission 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.

January 31

In Innovation 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.

The State 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.

January 30

The State 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.

In 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 "receipts."  

In 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. :)

In Matter of JA Harris Trucking, the OHA upheld a firm's termination from the 8(a) program for failure to submit required documents.

January 29

Federal Acquisition Circular (FAC) 2005-65 has been published and includes the following four items plus technical amendments.

FAR 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. 

FAR 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.

FAR 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.

FAR 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. 

The technical amendments can be found here.

January 25

In KWV, 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.

January 24

In American 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.

January 22

I 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.

January 21

I have corrected a bunch of outdated, broken links to cases from 2000 to 2005 on my CAFC Contract Disputes and CAFC Bid Protest pages.

January 20

In Sundowner 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.

In Westlands 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 limitations.

January 17

In Estes 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 Government.

In Larrye 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.

January 16

In Drennon 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 compensation.

January 15

In Orion 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.

In Laboratory 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. 

FAR 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 "DATES." 

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

In Shell 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 contracts ended.

In Size 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.

In Size 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.

January 14

The CBCA has redesigned its website

January 10

The Department of Health and Human Services is proposing to amend its FAR Supplement--the HHS Acquisition Regulation (HHSAR)--by adding two contract clauses: "Patent Rights--Exceptional Circumstances" and "Rights in Data--Exceptional Circumstances." Comments are due by March 11. 

January 9

In Lacey 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 order.

In ECC, 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 contract's requirements.

January 8

J. 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.

January 5

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.

In Kollsman, 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).

In Veterans 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.

January 4

On the contractor's motion for reconsideration, the ASBCA affirmed its earlier decision in the TMS Envirocon case (dismissing claims that had not been presented within the CDA's six-year statute of limitations).   

Responding to another motion for reconsideration, in DODS, Inc., the ASBCA not only affirmed its original 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). 

January 1, 2013

Happy New Year!

In The 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.


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