Stan Hinton

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

 

Developments in Government Contracting--2014



December 30

FAR Case 2014-020: A proposed rule would revise the FAR to clarify that a determination of exceptional circumstances is needed when a noncompetitive contract awarded on the basis of unusual and compelling urgency exceeds one year, either at the time of award or due to post-award modifications. Comments are due by March 2, 2015.

In Agility Logistics Services Company KSC, the ASBCA held it lacked jurisdiction over appeals involving the definitization of task orders under an ID/IQ contract issued to the appellant by the Coalition Provisional Authority of Iraq.

In Alderman Building Co., the ASBCA denied most aspects of the parties' motions for summary judgment, but held the contractor had established one of three required elements for recovery of Eichleay damages, i.e., that there had been a government-caused delay of uncertain duration.

In T.I.F, LLC, the ASBCA held that the contractor had failed to prove it was forced to sign a bilateral modification (detailing the amount owed to the contractor after a termination for convenience) under duress.

December 27

In Size Appeals of Strongwatch Corp. and Tactical Micro, Inc., the SBA's OHA granted the SBA's request to remand the appeals to the Area Office because it had not considered one issue raised by the protesters.

In Size Appeal of Kisan-Pike, A Joint Venture, the OHA dismissed an appeal because an SBA District Office's decision that a joint venture agreement did not meet the requirements of the regulations was not a size determination and, therefore, could not be appealed to the OHA.

December 26

SBA is proposing a slew of changes to its regulations, including, among many others: (i) allowing a joint venture to qualify as small for any government procurement as long as each partner to the joint venture qualifies individually as small under the size standard covering that solicitation; (ii) utilizing a new method for making calculations under 'limitations on subcontracting' requirements, as well as revising procedures related to 'performance of work' requirements; (iii) providing additional guidance on analyzing 'identity of interest' affiliation issues; (iv) clarifying that 'receipts' includes all income, including passive income; (v) requiring a firm to recertify its size status if it is involved in a merger or acquisition that occurs between the submission of its offer and the contract award; (vi) at long last, eliminating that horribly confusing double negative (any offeror that has " not been eliminated for reasons un related to size") in the current rule concerning standing to file a size protest; and (vii) making various changes and clarifications to the nonmanufacturer rule. These are just a few of the proposals in this document, so I encourage everyone to read the original. Comments are due by February 27, 2015.

December 25 

In Noor International Corp., the GAO's Contract Appeals Board held that the Government properly imposed a price discount on the contractor when its samples failed to comply with material contract requirements.

In Akima Intra-Data, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that: (i) in finding the awardee qualified for an AbilityOne contract, the agency properly calculated the statutory ratio of direct labor using all work performed by the awardee (both on AbilityOne and elsewhere) rather than only the types of services contemplated by the contract (as had been urged by the protester); and (ii) the agency properly analyzed all four required factors for determining that the contract was suitable for adding to the AbilityOne procurement list. Subsequently, the court denied the plaintiff's motion for an injunction pending appeal.

In Size Appeal of Research and Development Solutions, Inc., the SBA's OHA held that the Area Office had properly dismissed (as untimely) a protest of a firm's size for purposes of a task order solicitation under a long-term contract because the Contracting Officer had not requested recertification for the solicitation--this despite the fact that, by the time the Government had gotten around to awarding the task order, the protested firm had certified as other than small for purposes of another option under the same long term contract.

December 24

In International Resources Group, the GAO held that the procuring agency had failed to adequately investigate whether the awardee's employment of a high level agency official involved with the procurement had afforded the awardee access to non-public, competitively useful information, and, therefore, the GAO sustained a protest alleging that the employment had resulted in an unfair competitive advantage.

December 23

The Bureau of Industry and Security is amending the Export Administration Regulations (EAR): (i) to expand national security controls on certain electronic commodities controlled on the Commerce Control List (CCL); (ii)  to limit license exceptions for these items; and (iii) to expand license requirements for exports and reexports to Hong Kong of items controlled for national security reasons.

Effective December 30, the BIS is amending its regulations: (i) to revise six Export Control Classification Numbers (ECCNs) to clarify that they do not control certain basic parts, components, accessories and attachments because those items are controlled in a new ECCN created by a rule previously published on July 1, 2014; (ii) to remove controls on certain monolithic microwave integrated circuit (MMIC) power amplifiers and discrete microwave transistors and related technology (because these controls are no longer necessary given two other rules published after July 1, 2014, which provide appropriate controls on those items); (iii) to clarify the application of "specially designed" to controls published on July 1, 2014, that would apply to printed circuit boards, populated circuit card assemblies and multichip modules to reduce the possibility of confusion; and (iv) to revise three of the amendatory instructions in the final rule published on July 1, to avoid negating changes to the EAR that became effective after that date. For a reference to the July 1 rules, see the entry at July 2 in this blog.

Effective January 22, 2015, the Department of the Treasury is amending its Acquisition Regulation (DTAR) in order to make editorial changes that reflect (i) updates to the FAR, (ii) Treasury bureau organizational restructuring, and (iii) other internal updates that have occurred since the 2013 edition of the DTAR.

December 20

Effective January 15, 2015, the EPA is amending its acquisition regulation (the EPAAR) to incorporate a class deviation to clauses 1552.209–73 (Notification of Conflicts of Interest Regarding Personnel) and 1552.227-26 (Project Employee Confidentiality Agreement), and their respective prescriptions, to include Alternate 1 for the subcontract flow-down requirements for other than Superfund work. 

December 19

CGI Federal Inc. lost on many of its protest grounds, but it only takes one winner to prevail, and the GAO held that the original price evaluation scheme should have been revised to match the agency's changed ordering strategy.

December 18

The Bureau of Industry and Security (BIS) has amended the microprocessor military end-use and end-user control in the EAR by: (i) expanding the scope of microprocessors subject to the restriction and including  related software and technology for the development and production of these chips, (ii) adding a prohibition on the use of license exceptions (including License Exception ENC) and otherwise expanding license requirements for exports, reexports, or transfers (in-country) of microprocessors subject to the military end-use and end-user restriction, and (iii) expanding the scope of controls to cover in-country transfers, in order to control in-country transfers to prohibited military end users or end uses. 

The EPA has amended its acquisition regulation, the EPAAR, to update policy, procedures, and contract clauses, including the " Work Assignments" clause.  

December 16

In Atlas International Trading Corp., the ASBCA held that bribery of the Government's program manager in connection with obtaining a contract rendered it void ab initio.

Earlier, in CI2, Inc., the ASBCA denied certain claims by the contractor but held that the Government's failure to award the required quantities and to provide "award terms" in accordance with the contract's requirements breached the contract. Now, except for minor clarifications, the ASBCA denies the Government's motion for reconsideration.

The ASBCA denied the contractor's constructive change claim in Mountain Chief Management Services, Inc., holding that the Government's statements to the contractor did not compel it to expend hours in excess of the total specified by the contract.

In USAC Aerospace Group, Inc. dba USAC Aerospace Group: Aerostructures, the ASBCA analyzed the timeliness of several appeals emailed to the Contracting Officer rather than to the Board based upon whether those emails were sent within the 90-day period.

In SWR, Inc., the ASBCA denied the bulk of a convenience termination claim (based on a contract termination that had issued shortly after award) due mainly to a lack of proof and to the principle that, even in government commercial items contracts, the terminated contractor is not entitled to unearned profit.

The U.S. Agency for International Development (USAID) is amending its acquisition regulation (AIDAR) effective March 16, 2015 (unless adverse comments are received by January 15) in order (i) to maintain consistency with the FAR, (ii) to incorporate long-standing USAID internal policies into the regulation, (iii) to remove obsolete material, and (iv) to make clarifying editorial amendments.

December 15

FAR Case 2015-006: A proposed rule would amend the FAR to require additional actions by contractors to assist contracting officers in ensuring compliance with the governmentwide statutory prohibition on the use of appropriated (or otherwise made available) funds for contracts with any foreign incorporated entity that is an inverted domestic corporation or to any subsidiary of such entity. Comments are due by February 13, 2015.

FAC 2005-79 has been published and includes the following two items:

FAR Case 2015-003: Effective February 13, 2015, an interim rule amends the FAR to implement the Executive Order Establishing a Minimum Wage for Contractors and a final rule on that subject issued by the Department of Labor. Comments are also due by February 13.

FAR Case 2014-017: Another interim rule amends the FAR to address the continuing governmentwide statutory prohibition on the use of appropriated (or otherwise made available) funds for contracts with any foreign incorporated entity that is an inverted domestic corporation or any subsidiary of such entity. Comments are due by February 13, 2015.

December 11

In Size Appeal of Kisan-Pike, A Joint Venture, the SBA's OHA affirmed the Area Office's finding that two firms were affiliated by virtue of their  joint venture agreement because the provisions of the agreement between a mentor and its 8(a) protégé did not meet the requirements of 13 C.F.R. §§ 124.513(c) and (d).

In Sikorsky Aircraft Corp., the Court of Appeals for the Federal Circuit affirmed the CoFC's prior decision that the contractor's allocation of costs to government versus commercial contracts using a direct labor base did not violate CAS 418. The court also held the CDA's statute of limitations is not jurisdictional?!

In Kiewit-Turner, A Joint Venture, the CBCA issued a declaratory judgment that (i) a contract modification required the Government to provide a design to the contractor that could be built for a specified amount; (ii) the Government breached the contract by failing to provide such a design; (iii) therefore, the contractor (which has been proceeding with performance under protest) is entitled to stop work. See earlier ruling that the consideration of declaratory relief was appropriate in the circumstances of this dispute.

DFARS Case 2013-D038: A final rule amends the DFARS to comply with the DoD Instruction that addresses the use of animals in DoD programs. 

DFARS Case 2015-D003: A final rule amends the DFARS to delete the requirement for DoD departments and agencies to certify every two years that no senior leader has performed multiple roles in the acquisition of a major weapon system or major service. 

DFARS Case 2015-D001: A final rule amends the DFARS to eliminate the requirement for quarterly reporting of actual contract performance outside the United States. 

DFARS Case 2014-D010: A final rule adopts, with minor changes, the prior interim rule that amended the DFARS to implement a section of the National Defense Authorization Act for FY 2014 that prohibits acquisition of commercial satellite services from certain foreign entities. 

DFARS Case 2012-D035: A final rule amends the DFARS to provide guidance to contractors for the submittal of forward pricing rate proposals. 

DFARS Case 2014-D014: A final rule amends the DFARS to clarify and relocate text relating to state sponsors of terrorism (as identified by the Department of State), add an explicit representation, and conform the terminology. 

DFARS Case 2014-D013: A final rule amends the DFARS to remove duplicative CAGE code instructions and an associated clause. 

DFARS Case 2014-D016: A final rule adopts, without change, the prior interim rule amending the DFARS to implement sections of the Military Construction and Veterans Affairs, and Related Agencies Appropriations Act, 2014, which restricts use of military construction funds in various countries, including countries bordering the Arabian Sea.

DFARS Case 2014-D024: DoD proposes to amend the DFARS to identify the electronic Wide Area WorkFlow Energy Receiving Report as the equivalent of the paper forms for the Material Inspection and Receiving Report, for overland shipments, and the Material Inspection And Receiving Report, Tanker/Barge, for waterborne shipments. Comments are due by February 9, 2015.

December 10

In Size Appeal of MCH Corp., the SBA's OHA remanded the case to the Area Office so that it could consider whether there was an identity of interest between parents and their daughter and, if so, whether there was a clear fracture preventing a finding of affiliation.

December 9

In compliance with the changes made by Executive Order 13672, the OFCCP is revising the regulations prohibiting discrimination by federal contractors and subcontractors to add sexual orientation and gender identity to the list of covered categories, effective April 8, 2015.

December 6

In Bannum, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that the procuring agency did not abuse its discretion in accepting the awardee's proposal despite issues raised by the protester related to the awardee's compliance with the solicitation's zoning requirements and the awardee's alleged misrepresentations related to those requirements.

December 4

FAR Case 2013-020: DoD proposes to amend the FAR to implement a section of the National Defense Authorization Act for Fiscal Year 2013 to include in the Federal Awardee Performance and Integrity Information System (FAPIIS), to the extent practicable, the identification of any immediate owner or subsidiary and all predecessors of an offeror that held a federal contract or grant within the last three years, the objective being to provide a more comprehensive understanding of the performance and integrity of a firm before awarding it a federal contract. Comments are due by February 2, 2015.

The Office of Government Ethics is revising various departmental component designations for purposes of applying post-employment conflicts of interest restrictions.

December 2

In James G. Davis Construction Corp., a case involving contract interpretation, the ASBCA denied the contractor's claims (brought on behalf of a sub) for allegedly extra insulation because, in one instance, the contract unambiguously required such insulation and, in another, the contractor's interpretation on appeal was at odds with the one it had employed during contract performance, which was consistent with the Government's interpretation.

In BAE Systems Land & Armaments, Inc., the ASBCA directed the Government to file the complaint on its defective pricing claim even though the appeal was from the Government's denial of the contractor's claim, which was a response to the Government's allegation of defective pricing that had been made without a Contracting Officer's decision. Clear?

The SBA has corrected the prior interim final rule by revising the previously published small business size standard for NAICS code 334419 (Other Electronic Component Manufacturing) from 500 employees to 750 employees, effective immediately. 

December 1

In Size Appeal of AIS Engineering, Inc., the SBA's OHA dismissed, as untimely, a size protest concerning a task order solicitation issued under a long term contract because the contracting officer had neither requested recertification in the solicitation nor joined in the protest.

In Size Appeal of Glucan Biorenewables LLC, the OHA affirmed the Area Office's determination that a firm did not meet the SBIR requirement at 13 C.F.R. 121.702(a)(1)(i) that it be "more than 50% directly owned and controlled by one or more individuals (who are citizens or permanent resident aliens of the United States), other small business concerns (each of which is more than 50% directly owned and controlled by individuals who are citizens or permanent resident aliens of the United States), or any combination of these"  because it was 13% owned by an entity that was not a small business, and 48% owned by an entity that was not directly controlled by individuals.

In Matter of Precise Systems, Inc., the OHA affirmed the SBA's determination that a concern was not qualified as an SDVOSB because it had two different classes of stock, one of which was not owned by a service-disabled veteran. 

November 29 

In FitNet Purchasing Alliance, the GAO sustained the protest by a small business because (i) the agency's past performance evaluation was flawed in several respects; and (ii) that evaluation amounted to a finding that the protester was nonresponsible, an issue that should have been referred to the SBA for a COC determination.

November 28

In CACI Technologies, Inc.--Costs, the GAO recommended that the protester be awarded its costs of filing and pursuing its protest because the agency waited until after the outcome prediction conference before undertaking corrective action.

In IAP Worldwide Services, Inc., the ASBCA issued an order directing the Contracting Officer to issue a decision on the contractor's  claim.

In Agility Defense & Government Services, Inc., the ASBCA denied the Government's motion to dismiss the contractor's claim because a convenience termination issued after the original claim had been submitted did not moot all elements of that claim.

In Lael Al Sahab & Co., the ASBCA granted the Government's motion to dismiss for failure to submit proper CDA claims to the Contracting Officer.

In Amaratek, after Government exercised an option for 12 months of service and then terminated the contract part way through the first month, the contractor was entitled to payment for first full month's service because that was one "unit" of service.

November 26

The GAO sustained a protest by Quality Services International, LLC because the agency did not evaluate the awardee's experience in accordance with the solicitation's evaluation scheme.

In IBM Corp., an unsuccessful post-award protest, the Court of Federal Claims held that, in a solicitation governed by FAR Part 8, (i) the agency did not improperly relax solicitation requirements for the awardee or engage in discussions with the awardee that would have required the agency to conduct additional discussions with the protester; (ii) the agency properly investigated a potential OCI; and (iii) the agency properly evaluated the awardee's transition plan, which was not deficient merely because it mentioned that the awardee "might" attempt to subcontract with the protester (the incumbent). In an earlier decision in the case that was publicly published the same day, the court had denied the protester's request for a temporary injunction and its motion to supplement the administrative record with depositions concerning (i) possible post-award communications between the  Government and the  awardee regarding awardee's proposal and (ii) the extent of the Government's investigation of the possible OCI.

In FirstLine Transportation Security, Inc., another unsuccessful post-award protest, the court initially had sent the case back to the agency with various questions because the court found the record inadequate to address the protester's contentions. Now, the court finds that the agency's answers satisfy the court's concerns regarding the justifications for various aspects of the evaluation, in which the incumbent/protester and awardee were rated technically equal, and the awardee won on the basis of of its lower price.

November 25

Federal Acquisition Circular (FAC) 2005-78 has been published and includes the following four items (plus technical amendments):

FAR Case 2014-001: Effective December 26, a final rule amends the FAR to standardize the incorporation by reference of representations and certifications. 

FAR Case 2014-011: Effective December 26, a final rule amends the FAR to implement the Streamlining Claims Processing for Federal Contractor Employees Act which amends the United States Code (U.S.C.) to transfer certain functions from the GAO to the DOL relating to the processing of claims for the payment of workers who were not paid appropriate wages under certain provisions of the U.S.C. 

FAR Case 2014-006: Effective December 26, a final rule amends the FAR to delete obsolete provisions related to year 2000 compliance.

Far Case 2012-032: Effective December 26, a final rule amends the FAR to clarify when to use higher-level quality standards in solicitations and contracts. 

FAR Case 2014-022: A proposed rule would amend the FAR to to further implement the inflation adjustment of acquisition-related dollar thresholds. Comments are due by January 26, 2015.

November 21

In Size Appeal of Southwind Construction Services, LLC, even though the protester wanted to keep going, the SBA's OHA held that the Area Office had been properly dismissed the protest after the original apparently successful offeror (the protested firm) had withdrawn its offer and the agency had announced it would award to next firm in line.

In Size Appeal of Sea Box, Inc., the OHA held that the Area Office had correctly determined that the protested firm was the manufacturer of the contract items because it would perform more than minimal operations on the finished product.

November 20

In Savantage Financial Services, Inc., the Court of Federal Claims dismissed a protest as moot after the Government decided to take corrective action.

In Fidelity and Guaranty Insurance Underwriters, et al., the court held that a general liability insurer was not an equitable subrogee who could sue on behalf of a government contractor.

In Brasfield & Gorrie, LLC, the CBCA imposed significant sanctions against the VA for repeated discovery delays and failures to comply with the Board's discovery orders.

In Government Services Corp., the CBCA dismissed (as untimely) an appeal filed 91 days after receipt of the Contracting Officer's decision.

November 19

The GAO sustained the protests by Computer Sciences Corp., et al. because the agency's cost realism, past performance, technical, and tradeoff evaluations were all flawed. 

Premiums & Specialties, Inc. won its GAO protest because the GAO found it unreasonable for the agency to reject the protester's low quotation after the agency had waited less than an hour to hear back from its telephonic message requesting the firm to confirm the quotation when the solicitation had not advised bidders that such fast responses would be required.

Lynxnet, LLC lost its post-award protest at the Court of Federal Claims because (i) the record did not clearly establish that the awardee would violate the solicitation's Limitations on Subcontracting (LOS) requirement; (ii) the Contracting Officer's decision to recalculate the awardee's proposed price by deleting one element that was not supposed to have been included, rather than bringing the matter to the awardee's attention, was not a material error; and (iii) the fact that the administrative record did not include any discussion of the LOS issue did not prove it was not considered.

November 18

In Bulova Technologies Ordnance Systems LLC, an ASBCA decision issued early this year that I had overlooked until now, the Board held that, in a supply contract for the delivery of three, severable types of guns, the Government properly terminated a portion of the contract for failure to deliver one type of gun, properly terminated the portion attributable to a second type of gun for failure to make progress and failure to provide adequate assurances of performance, but improperly terminated the third type because the contractor was not yet in default as of the date of the termination and had not anticipatorily repudiated its obligations. Subsequently, the Board denied the contractor's motion for reconsideration.

In Vertex Construction & Engineering, the ASBCA held that the contractor's submission of a fraudulent master electrician certification in order to obtain a contract rendered it void ab initio, even though the contractor blamed the problem on a subcontractor.

In Optex Systems, Inc. a decision involving contract interpretation, the ASBCA held that, by its own terms, a bilateral modification was neither a release nor an accord and satisfaction of the contractor's claims involved in the appeal.

In Job Options, Inc., an appeal that involved only quantum, the ASBCA calculated the appropriate equitable adjustment for increased labor costs associated with the storage of additional goods under a contract  to provide inventory management, shelf stocking, and janitorial services.

In Canon Solutions America, Inc., the ASBCA held it lacked jurisdiction over a dispute arising out of an Army delivery order that involved issues related to an underlying GSA schedule contract because there had not been a decision by a GSA Contracting Officer.

November 15

In Butte Timberlands, LLC, the CBCA held that the agency had properly canceled a contract executed by someone who lacked authority to act on behalf of the contractor, as void ab initio.

In Jim Carranza Trucking Co., the PSBCA held that the Postal Service properly terminated contracts for default after the contractor refused to continue performance to protest the Postal Service's efforts to collect costs of excess fuel through partial offsets against monthly contract payments, because the contracts specifically permitted offsets.

In Oswald Ferro, the PSBCA denied the contractor's claims for additional costs because they were covered by bilateral modifications that were neither unconscionable nor entered into under duress.

November 13

Raymond Express International won its GAO protest against the price evaluation methodology stated in a solicitation because it was ambiguous.

November 11

The Bureau of Industry and Security has published a final rule that makes several clarifications and corrections to the prior  interim final rule that was published on May 13, 2014, which added controls to the Export Administration Regulations (EAR) for spacecraft and related items that the President has determined no longer warrant control under United States Munitions List (USML) Category XV—spacecraft and related items. 

November 10

The Department of State has revised the ITAR to reflect that exports of lethal defense articles and defense services to Vietnam may be authorized on a case-by-case basis when in support of maritime security and domain awareness. The Department also is publishing as final, with additional corrections, the prior interim final rule revising Category XV of the U.S Munitions List.

November 8

In Size Appeal of Quality Technology, Inc., the SBA's OHA affirmed the dismissal (as untimely) of what appeared to be a strong size protest on the merits because it was not filed within five days of the date the protester received an emailed "snapshot" report from a business development specialist at the agency showing the awardees for numerous task orders, including the one in question.

November 7

Effective December 4, the Postal Service is revising its regulations governing supplier debarment, suspension, and ineligibility to reflect that the Postal Service has eliminated its separate list of debarred, suspended, or ineligible suppliers, and now uses the list maintained by the GSA under its SAM.

DFARS Case 2014-D009: DoD is proposing to amend the DFARS to clarify that entering into a contract award may cause a small business to eventually exceed the applicable small business size standard. Comments are due by January 5, 2015.

DFARS Case 2014-D025: DoD is proposing to amend the DFARS to implement certain statutory requirements for inflation adjustments of acquisition-related dollar thresholds. Comments are due by January 5, 2015.

In Lynchval Systems Worldwide, Inc., the CBCA held that disputed, material issues of fact precluded summary judgment in favor of the Government on the contractor's allegation that a modification had been signed under economic duress.

November 5

DFARS Case 2014-D004: DoD is issuing a final rule amending the DFARS to revise and update clauses and their prescriptions for special contracting methods, major system acquisition, and service contracting to create basic and alternate clauses structured in a manner to facilitate use of automated contract writing systems, including publication of the full text of each alternate, rather than only showing the paragraphs that differ from the basic clause. 

DFARS Case 2013-D005: DoD is also issuing a final rule amending the DFARS to create separate prescriptions for the basic clause as well as each alternate in each set of foreign acquisition-related provisions/clauses with one or more alternates and to include the full text of the alternate clauses.

November 4

In New Iraq Ahd Co., the ASBCA held it lacked CDA jurisdiction over appeals from (i) an uncertified claim and (ii) another claim submitted more than six years after all events that gave rise to Government's alleged liability had occurred.

In Combat Support Assocs., the ASBCA denied a contractor's motion to dismiss government claims as time barred by the CDA's statute of limitations, but reserved the right to examine the issue further once the record was more fully developed.

In Capy Machine Shop, Inc., the ASBCA denied the Government's motion for summary judgment concerning the propriety of a default termination because the evidence produced by the Government did establish the required elements for a showing of anticipatory repudiation. ASBCA No. 59133 is essentially the same holding.

In Environmental Safety Consultants, Inc., the ASBCA imposed sanctions (limiting the evidence the contractor would be able to present at the hearing) as the remedy for the contractor's failure to comply with the  Board's discovery order.

In another Environmental Safety Consultants decision (this one in the "I don't trust them as far as I can throw them" category), after the Court of Appeals for the Federal Circuit had ruled in its favor, the contractor urged the CBCA to dismiss a prior appeal without prejudice "in the event the Government will attempt to cook up another bogus setoff claims [sic] in the near future . . . .”  The Board, nevertheless, dismissed the appeal with prejudice. 

November 2

In Size Appeal of Project Enhancement Corp., the SBA's OHA held that (i) the procuring agency had properly concluded that both the RFQ and underlying BPA were unclear as to the applicable size standard, and (ii) the agency's subsequent clarification and choice of size standard were unobjectionable.

In Swets Information Services, the GAO found insufficient documentation in the record to determine whether the agency's evaluations of vendors' product demonstrations were reasonable and, therefore, sustained that portion of the protest.

In Kenney Orthopedic, LLC, the Court of Federal Claims granted the Government's motion for summary judgment on the contractor's claims for alleged breaches of a settlement agreement because the Government had complied with all the express requirements of the settlement agreement.

October 30

In VFA, Inc. , the Court of Federal Claims dismissed a protest for lack of jurisdiction because the Government's decision to standardize operations by using software it already owned was not a procurement.

In InfoReliance Corp., the court held that the plaintiff had presented sufficient evidence of possible bad faith or bias by a procurement official to support its motion for additional discovery to supplement the administrative record.

October 28

In Tug Hill Construction, Inc., the ASBCA held that (i) the implied covenant of good faith and fair dealing did not require the Government to help the contractor perform work that the contract specifically stated was the contractor's sole responsibility; and (ii) the contractor's claim of the Government's superior knowledge failed because the contractor had the opportunity to gain that knowledge on its own before bidding the job. 

In Favor Co., there were several good reasons for dismissing the appeal for lack of jurisdiction, but the ASBCA settled on the fact that there had been no underlying claim submitted to the Contracting Officer. Subsequently, the Board denied the contractor's request for reconsideration.

Likewise, in New Iraq Ahd Co., the Board held that (i) it lacked jurisdiction over a claim raised for first time on appeal; and (ii) a bilateral modification operated as an accord and satisfaction because an allegation that the Contracting Officer had threatened a convenience termination to induce contractor to sign it did not satisfy the elements required to establish that the modification was signed under duress.

October 24

FCi Federal, Inc. won its GAO protest because, in making an affirmative responsibility determination concerning the awardee, the Contracting Officer failed to investigate and consider serious open allegations of fraud against the awardee's parent with which the awardee was closely connected.

October 23 GSA has amended the GSAR to remove clause 552.214–71 ("Progressive Awards and Monthly Quantity Allocations").
October 22

In Lulus Ostrich Ranch, the ASBCA held it lacked jurisdiction over a contractor's requests for injunctive relief to stay default terminations and collection actions by the Government. 

In Gerald R. Rouillard, d/b/a International Gear Technologies, the Board granted the Government's motion for summary judgment denying an appeal from a default termination because (i) the alleged illness of the contractor's President's father did not excuse the default; and (ii) the contractor had failed to provide proof for four of the five required showings for its allegation that it had made a mistake in bid. ASBCA No. 58458 is essentially the same decision on a different contract.

In Bahrain Maritime & Mercantile International BSC (C), the incumbent initially filed a series of GAO protests after it lost on the the new solicitation, in response to which the agency took various corrective actions (some of which were successfully protested), and reevaluated, but reached the same conclusion. When the GAO finally had had enough and denied the incumbent's latest protest, it filed suit. The Court of Federal Claims denied the protest, holding that there was no basis to overcome the presumption of regularity accorded the agency's actions or to conclude its various corrections, re-analyses, and re-evaluations after the prior protests were just a pretext to award the contract to the original awardee. This case should be required reading for everyone considering protesting the evaluation in a negotiated procurement. The agency wants the firm it chose as the winner. As a matter of historical average, the protester only has about a one in ten chance of winning its protest, and, even if it does win, the GAO or court will only order the agency to re-evaluate, and the agency will, in the vast majority of cases, simply rewrite the supporting documents to reach its original conclusion and award the contract to the firm it chose in the first place. I have no doubt that the agency did exactly what the protester alleged in this case. It simply re-papered the record to justify its original selection. As this case demonstrates, however, the GAO or court will not often second-guess that reevaluation. So, the protester simply ends up spending a bucket full of money for nothing, in the overwhelming majority of cases. The odds of getting the contract are not as bad as those of winning the lottery, but they ain't good. Think about it the next time you lose an evaluation.

October 21 GSA has amended its acquisition regulation (the GSAR) to remove clause 552.237–70 ("Qualifications of Offerors").
October 18

In Matter of Laurus Construction Corp., the SBA's OHA affirmed the early termination of a firm from the 8(a) program for failure to provide required Annual Review documents, holding that the pending divorce of the firm's principals from one another and the husband's inability to locate his wife were not sufficient excuses for the missing documents. 

October 17

In AmBuild Co., LLC, a successful post-award protest, the Court of Federal Claims held that the VA's removal a firm from the list of qualified SDVOSBs was improper because (i) the VA had failed to provide advance notice to the affected firm of the grounds on which the VA ultimately based the firm's decertification; and (ii) none of the provisions of the Operating Agreement cited by the VA as support for its decision impermissibly limited the SDV's ownership or control of the firm.

October 16

In Lake Charles XXV, LLC, the Court of Federal Claims held that, because the plaintiff had not provided the GSA with the required notice within 10 days of the start of alleged delays, they were unexcused and formed a valid basis for a subsequent default termination, especially where the plaintiff had not established bad faith on the part of the Government.

October 11

FAC 2005-77 has been published and includes the following three items:

FAR Case 2009-016: Effective October 14, a final rule amends the FAR (i) to remove certain coverage involving procurements with small disadvantaged business (SDB) concerns and certain institutions of higher education that is based on expired statutory authority that has been found to be unconstitutional by the Court of Appeals for the Federal Circuit, and (ii) to harmonize the FAR with current statutory authorities. Similarly, with DFARS Case 2011-D038, DoD has issued an interim rule amending the DFARS to implement changes resulting from the expiration of 10 U.S.C. 2323, which was the underlying statutory authority for DoD’s SDB program, including the establishment of a specific goal within the overall 5 percent SDB goal for the award of prime contracts and subcontracts to historically black colleges and universities (HBCUs) and minority institutions (MIs). DoD’s fundamental policy to provide the maximum practicable number of contracting opportunities for SDB concerns and, in defense-related research and development, the maximum number of opportunities for HBCUs and MIs, is unchanged by this rule.  

FAR Case 2011-023: Effective November 13, a final rule amends the FAR (i) to remove all references to OFPP Pamphlet No. 7 (Use of Irrevocable Letters of Credit) and (ii) to provide updated sources of data required to verify the credit worthiness of a financial entity issuing or confirming an irrevocable letter of credit.

FAR Case 2012-023: Also effective November 13, a final rule amends 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. 

Effective October 14, the Department of Commerce's Bureau of Industry and Security has issued an interim final rule amending the EAR to impose foreign policy controls on read-out integrated circuits and related software and technology, radar for helicopter autonomous landing systems, seismic intrusion detection systems and related software and technology, and technology required for the development or production of specified infrared upconversion devices. The read-out integrated circuits and related technology are controlled under new ECCNs on the CCL. An existing ECCN has been amended to control the related software for those items. New paragraphs have been added to certain existing ECCNs to control radar for helicopter autonomous landing systems, seismic intrusion detection systems, and the technology, as mentioned, for specified infrared upconversion devices. Specified existing software and technology ECCNs have been amended to apply to helicopter autonomous landing systems and seismic intrusion detection systems. Comments are due by December 15. 

DFARS Case 2014-D011: Effective October 14, a final rule amends the DFARS to clarify the flowdown requirements for the DFARS clause entitled "Restriction on Acquisition of Certain Articles Containing Specialty Metals." 

DFARS Case 2014-D012: Also effective October 14, a final rule amends the DFARS to remove text regarding contracting officer responsibilities that are procedural in nature when purchasing ocean transportation services. 

October 10

In Size Appeal of Axxon International, LLC, the SBA's OHA held that the Area Office correctly applied an adverse inference against the challenged firm after it failed to provide required information by the original (and then by an extended) deadline.

In Size Appeal of Radant MEMS, Inc., the OHA affirmed the Area Office's finding of affiliation through common management because the same person was President of the two companies in question.

In Size Appeal of Quality Services International, LLC, the OHA affirmed the Area Office's finding that numerous joint ventures (and contracts) between two protested firms, although significant, did not establish general affiliation.

In Size Appeal of Altendorf Transport, Inc., whether the challenged firm was small depended upon which trucking/freight-related NAICS code its business fell under, and the OHA held the Area Office had correctly analyzed the situation.

In Matter of Express Plus Staffing LLC, the OHA affirmed the SBA's denial of an applicant's entry into the 8(a) program because "immigrant" is not a protected ethnicity, and her allegations of sexual bias were not sufficiently specific.

In Matter of Ironwood Commercial Builders, Inc., the OHA found a host of errors in the SBA's analysis, and rejection, of an applicant's evidence of gender-motivated bias leading to social disadvantage and remanded the case to the SBA for reanalysis in compliance applicable law and regulations. 

In McAllen Hospitals, LP dba South Texas Health System, although the CBCA found that many of the issues were not ripe for summary judgment, it held that the contract was unambiguous in not limiting the contractor to the reimbursement rate alleged by the Government.

In SOS International, the CBCA held that the contractor was not permitted to apply a mark-up rate for G&A expenses in its billings for exception travel ordered under the contract.

The Department of State has made various revisions, corrections, and clarifications to the ITAR. 

October 8

In Laguna Construction Co., the ASBCA held that, without regard to the number of instances involved, a contractor's solicitation and receipt of kickbacks from its subcontractors constituted criminal fraud and a material breach which extinguished the Government's obligation to make further contract payments.

October 7

Effective December 8, the DOL is issuing a final rule implementing the requirements of Executive Order 13658  establishing a $10.10 minimum wage for workers on covered federal contracts. 

Federal Builders, LLC-The James R. Belk Trust won its GAO protest because the agency accepted a proposal that did not include a clear commitment to pay the wage rates required by the solicitation for reconstruction of the existing building it offered. 

In RLB Contracting, Inc., a successful preaward protest, the Court of Federal Claims held that, in selecting  NAICS code 237990 (Other Heavy and Civil Engineering Construction) for the procurement, neither the Contracting Officer nor (subsequently) the SBA's OHA  made the required quantitative analysis of which component of the work comprised the greatest percentage of the total contract value. The court derided the OHA's reasoning on the issue: "That simplistic and imprecise reasoning is too flabby to meet the regulatory requirements."

October 6

In Temple Contract Station LC, the PSBCA denied the contractor's claims for damages as a result of a termination after the Government entered into CBA with a postal workers' union, which called for the closure of the Temple station, among others, because, inter alia, the terminated contract included a clause allowing either party to terminate for any reason upon 60 days' notice, and there was no showing the Government's termination decision was intended to injure the contractor.

In Noor International Corp., the GAO's Contract Appeals Board upheld the Contracting Officer's decision to impose a price discount on the contractor because it had delivered items that were noncompliant with a clear, material contract requirement. 

October 3

In Size Appeal of FTSI-Phelps, JV, the SBA's OHA held that the Area Office had correctly determined the members of  a joint venture to be affiliates for purposes of a small business set-aside when one member had graduated from the 8(a) program before priced offers in response to the two-step solicitation were due, and, thus, the JV members could no longer claim the exemption for participants in a mentor-protégé agreement.

October 2

Effective November 3, the Department of Transportation is amending its disadvantaged business enterprise (DBE) program regulations to improve program implementation in three areas. First, the rule revises the uniform certification application and reporting forms, creates a uniform personal net worth form, and collects data required by the Moving Ahead for Progress in the 21st Century Act, on the percentage of DBEs in each State. Second, the rule strengthens the certification-related program provisions, which includes adding a new provision authorizing summary suspensions under specified circumstances. Third, the rule modifies several other program provisions concerning such subjects as: overall goal setting, good faith efforts, transit vehicle manufacturers, and counting for trucking companies. [SH Note: for some reason that I cannot fathom from examining the web address, at least in my system, the link above downloads the document rather than opening it as a web page. I do not know whether this is a quirk in my setup or whether you will experience the same issue]

In Magwood Services, Inc., the ASBCA, inter alia, rejected the contractor's claim for G&A costs in a convenience termination settlement proposal because the contractor had not allocated those costs across final cost objectives.

October 1

The Department of Commerce's Bureau of Industry and Security seeks public comment on ways to improve the recordkeeping requirements of the Export Administration Regulations (EAR) to reduce unnecessary burden, increase clarity, address changes in technology and data management, and maintain the tools necessary for compliance with and enforcement of the EAR. Comments are due by December 1.

In NAICS Appeal of B&B Medical Services, Inc., the SBA's OHA upheld the Contracting Officer's determination that a contract to provide home oxygen services and ventilation belonged under NAICS 621610 (Home Health Care Services) rather than 532291 (Home Health Equipment Rental).

In Global Military Marketing, Inc., an unsuccessful preaward protest, the Court of Federal Claims held that very bad weather at the plaintiff's location (which caused the FAA to shut down airports in the plaintiff's vicinity, which, in turn, delayed delivery of its proposal) did not excuse the plaintiff's failure to deliver a timely proposal when, pursuant to FAR 52.212-1(f)(4), there was no interruption of "normal government processes" at the government location designated to receive proposals.

September 30

DFARS Case 2013-D025: DoD is issuing a final rule amending the DFARS (i) to create an overarching prescription for a tax-related clause with an alternate and add a separate prescription for the basic clause; and (ii) to include  the full text of the alternate clause. 

DFARS Case 2014 D018: DoD is issuing a final rule amending the DFARS to delete an obsolete (expired) congressional reporting requirement concerning the ordering period for task and delivery order contracts.

DFARS Case 2013 D016: DoD has adopted as final, with changes, the prior interim rule amending the DFARS (i) to implement section 811 of the National Defense Authorization Act for Fiscal Year 2013, which prohibits DoD from entering into cost-type contracts for production of major defense acquisition programs (MDAPs); and (ii) to make clear that the prohibition also applies to entering into cost reimbursement line items for the production of MDAPs.

DFARS Case 2013 D029: DoD is issuing a final rule amending the DFARS to incorporate policies and procedures concerning payment for contracts to be performed in Afghanistan. 

DFARS Case 2013-D013: DoD is issuing a final rule amending the DFARS sections concerning the prohibition on storage, treatment, and disposal of toxic or hazardous materials in order to (i) conform with them with the governing statute, (ii) amend the clause prescriptions, and (iii) update the basic and alternate contract clauses. 

The Department of Commerce's Bureau of Industry and Security proposes to amend the Export Administration Regulations (EAR) by removing the Special Comprehensive License Authorization. Comments are due by October 30.

The Department of the Interior's Bureau of Land Management proposes to amend its regulations concerning competitive processes, terms, and conditions for lasing public lands for solar and wind energy development in order to facilitate responsible development and to receive fair market value for such development, specifically by (i) promoting the use of preferred areas for solar and wind energy development and (ii) establishing competitive processes, terms, and conditions (including rental and bonding requirements) for solar and wind energy development rights-of-way both inside and outside these preferred areas. Comments are due by December 1.

In Hyperion, Inc., a case involving a claim for EAJA costs after a successful protest, the Court of Federal Claims held, inter alia, that: (i) the agency's original failure to evaluate proposals regarding the issue involved in the protest meant the Government's  subsequent litigation position was not substantially justified; (ii) the plaintiff had presented sufficient evidence that it met the size requirements for submitting a claim for EAJA expenses; and (iii) the costs the plaintiff claimed at attorney hourly rates for work that normally is performed by paralegals were recoverable only at the paralegal hourly rate.

In Size Appeal of U.S. Information Technologies, Corp., the SBA's OHA held that 13 C.F.R. § 121.404(g)(5) does not create a right to file a size protest on an individual task order issued during contract performance of an overarching ID/IQ contract, apart from the circumstances listed elsewhere in the regulations.

In Size Appeal of Phoenix Environmental Design, Inc., the OHA affirmed the Area Office's size determination because the  protester provided no evidence or explanation for its allegations that affiliation existed between two firms based on common management, identity of interest, or the newly organized concern rule.

September 29

In Brad West & Assocs., Inc., the CBCA denied the Government's motion to dismiss an appeal from a deemed denial because the Government did not establish why it needed additional time to issue a Contracting Officer's decision.

The Department of the Interior has amended its regulations governing concessions contracts: (i) to clarify that the Director may amend or extend a prospectus soliciting proposals for a concession contract prior to and including the proposal due date and may award a temporary concession contract; and (ii) to update consolidated information collection requirements. 

September 26

In Williams, the Court of Federal Claims held that (i) a contract pursuant to which the plaintiff purchased an airplane from the Government was covered by the CDA;  and (ii) the court lacked jurisdiction over the plaintiff's claim because it had not previously been presented to the Contracting Officer in a sum certain.

September 25

In Size Appeal of Phoenix Environmental Design, Inc., the SBA's OHA affirmed the Area Office's dismissal of a size protest as speculative and insufficiently specific.

In NAICS Appeal of eScience & Technology Solutions, Inc., the OHA held that a solicitation for support of courseware development and instruction should be categorized under NAICS code 611430 ( Professional and Management Development Training), rather than the NAICS code 541549 (Other Computer Related Services) chosen by the Contracting Officer. 

The DOL's Veterans’ Employment and Training Service (VETS) is issuing a final rule, effective October 27, to revise the regulations implementing the reporting requirements under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (VEVRAA), which requires federal contractors and subcontractors to report annually on the total number of their employees who belong to the categories of veterans protected under the statute and the total number of those protected veterans who were hired during the period covered by the report. 

September 24

A proposed rule would update 14 parts of the NASA FAR Supplement (NFS) to eliminate unnecessary provisions, lessen overly-burdensome regulation, clarify language, and simplify processes where possible. Comments are due by November 24.  

September 23

The Department of Homeland Security has amended its acquisition regulation (HSAR) to implement statutory restrictions on contractors acting as lead system integrators in the acquisition of DHS major systems, if they have direct financial interests in the development or construction of the system. 

In Trident Technologies, LLC, an unsuccessful protest, the Court of Federal Claims held that it lacked jurisdiction over a protest of a task order award for less than $10,000,000, and a post-award protest against the procedures the agency had chosen for the solicitation was untimely.

Electrosoft Services, Inc. won its GAO protest because the GAO found flaws in the agency's evaluations of: (i) the experience of the awardee's proposed program manager; (ii) the protester's past performance; and (iii) the relative technical merits of protester's and the awardee's proposed approaches, which were similar.

September 21

In Rotech Healthcare Inc., a successful preaward protest, the Court of Federal Claims held that the nonmanufacturer rule applied to a solicitation that was only partially for supplies regardless of the fact that the solicitation was categorized under a NAICS code for service contracts.

September 20

CPS Professional Services, LLC won its GAO protest because the agency failed to follow the solicitation's requirement to assess the relative relevancy and quality of offerors' past performance submissions.

September 19

Effective October 20, the DOE is amending its acquisition regulation (the DEAR) to ensure the access to and ownership of records generated during contract performance for its contractors and subcontractors performing potentially hazardous work and to clarify the requirements for management, retention and disposal of records after contract termination, with particular attention to Privacy Act requirements. 

DFARS Case 2014-D019: DoD proposes to amend the DFARS to update the cancellation ceiling threshold for multiyear contracts and to correct statutory references. Comments are due by November 18.

DFARS Case 2014-D022: DoD also proposes to amend the DFARS to implement the statutory domestic source restrictions on acquisition of certain naval vessel components.  Comments are due by November 18.

In ASFA International Construction Industry and Trade, Inc., the ASBCA held, inter alia, that one government claim for liquidated damages was time-barred by the CDA's statute of limitations. See also discussion of jurisdictional issue in September 18 entry immediately below.

In Environmental Safety Consultants, Inc., the ASBCA denied the contractor's motion for the presiding judge and panel to recuse themselves, holding that unhappiness with the Board's rulings was not a sufficient basis to seek recusal.  

In Mansoor International Development Services, the ASBCA held that a termination letter notifying the contractor it had the "right to appeal under the disputes clause," but not including the required language about the time limits and possible forums for appeal, did not start appeal clock running.

In VLOX, LLC, the ASBCA held that a contractor's "initial" requests for payment were, nevertheless, CDA claims because they were labeled as such, were for sums certain, demanded payments as a right with supporting statements of fact and legal narratives, were certified, and included requests for decisions by the Contracting Officer.

September 18

Paradigm Technologies, Inc. won its GAO protest because the agency had ignored the fact that the awardee's proposal failed to satisfy a material solicitation requirement concerning key personnel.

In TPL, Inc., the Court of Federal Claims held that the contractor was liable for the Government's costs of disposing of ammunition because the contractor had breached its contractual obligation to do so. The court also held that the contractor's  failure to file an affirmative breach claim with the Contracting Officer precluded it from alleging the Government's antecedent breach as defense to the Government's own claim for breach. The court cites, inter alia, M Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010)  as precedent for this latter holding, but I am unpersuaded. To me, the better analysis of Maropakis comes from the ASBCA's decision of September 2 in ASFA International Construction Industry and Trade, Inc. , where the Board held that the contractor was not required to submit a claim for waiver before asserting it as a defense to a government claim for liquidated damages:

Maropakis requires contractors to submit CDA claims to the CO as a prerequisite to their "seeking an adjustment of contract terms," regardless of whether the claim is asserted "as an affirmative claim or as a defense to a government action." Maropakis, 609 F .3d at 1331; see also ERKA Construction Co., ASBCA No. 57618, 12-2 BCA if 35,129 at 172,474 (limiting Maropakis' claim mandate to defenses seeking contract modifications). Liquidated damages are simply the damages the parties fix to be paid in case of a breach, saving the time and expense of litigation. DJ Manufacturing Corp. v. United States, 86 F.3d 1130, 1133 (Fed. Cir. 1996). ASFA's defense that the government waived both the completion dates and its right to collect liquidated damages does not seek an adjustment or modification of the contract terms; it simply maintains the government waived rights already granted by the contract. Nothing in Maropakis requires the submittal of a CDA claim before such a defense can be advanced.

In Compliance Solutions Occupational Trainers, Inc., the court held that a cooperative agreement, which provided it must be signed by both parties to be effective and which was not signed by the Government, was not a binding agreement.

In Matter of Pynergy, LLC, the SBA's OHA repeated its oft-held maxim that it lacks jurisdiction over the appeal of a firm denied entrance into the 8(a) program for reasons other than a negative finding of social disadvantage, economic disadvantage, ownership or control.

September 17

The Department of Labor's OFCCP proposes, inter alia, the following amendments to the regulations implementing Executive Order 11246 (which set forth the basic equal employment opportunity requirements that apply to federal contractors and subcontractors): (i) adding definitions for key terms used in the Executive Order; (ii) amending the mandatory equal opportunity clauses included in federal contracts and subcontracts and federally assisted construction contracts; (iii) establishing contractor defenses to allegations of violations of the nondiscrimination provision; and (iv) requiring federal contractors to notify employees and job applicants of the nondiscrimination protection created by the Executive Order using existing methods of communicating to applicants and employees. 

In Au' Authum Ki Inc., the CBCA held that the release language in contract modifications did not apply to (and, therefore, did not bar) the contractor's Differing Site Conditions claims.

September 16

In SRA International, Inc., the Court of Appeals for the Federal Circuit held that, under FASA, the CoFC lacks jurisdiction over a protest of an agency's OCI waiver in connection with the issuance of a task order.

In Kvichak Marine Industries, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that (i) a part of the  protester's challenge to the technical evaluation was actually an untimely challenge to ambiguous solicitation terms; and (ii) other parts of the protest essentially asked the court to re-evaluate the proposals. I disagree with the first finding, but that takes some explanation. The solicitation was for bridge erection boats ("BEB"). The protester argued that, pursuant to the first two solicitation provisions quoted below, the agency erred in assigning the successful offeror the lowest possible risk rating for proposing boats with untested designs.  The court reasoned that the first two solicitation provisions quoted below conflicted with, and, therefore, created a patent ambiguity with, the third provision, so that the protester should have challenged the terms before proposals were submitted:

[A]ny offeror proposing BEB solutions reflecting untested designs and/or unvalidated designs, or only partially tested design, will be evaluated at higher risk.

A lack of test data for the proposed configuration/components will be considered higher risk.

Proposed corrective actions or design changes which are either untested or partially tested may increase risk.

It seems to me that these provisions are in harmony with one another or, at worst, contain only a latent ambiguity (which does not require a preaward protest). The first two can reasonably be read to require an increased assignment of risk if the boats offered by a competitor are untested. The third states that the agency may also increase the risk rating if an offeror proposes untested design changes to its basic boat.  

September 15

In Size Appeal of Star Poly Bag, Inc., the SBA's OHA denied an appeal by a firm that (i) speculated the challenged firm had submitted false information to the Area Office to obtain a favorable size determination and (ii) requested additional investigation of the issues.

September 11

In Trust Title Co., the Court of Federal Claims upheld default terminations based on a contractor's failure to comply with the contracts' timing requirements for real estate closings but denied the Government's claim for excess reprocurement costs because the set of ID/IQ contracts awarded to replace the defaulted contracts were dissimilar to those contracts.

In Bannum, Inc., an unsuccessful protest, the court held that the protester had failed to show disparate treatment of offerors by the agency's evaluators. Specifically, the protester's own proposal failed to provide evidence of required zoning; and a competitor's proposal provided all required information regarding Past Performance, even though some of that information was located in different proposal volume than the one contemplated by the solicitation.

In L&L Excavating & Land Clearing, LLC, the CBCA held that a timber sales contract did not allow an award of damages for lost income for the time period during which contract performance was suspended.

September 10

In ARKRAY USA, Inc., a successful post-award protest, the Court of Federal Claims held that the fact that the BPA awardee's affiliate was an FSS contractor did not authorize the awardee to represent itself as an eligible FSS contractor.

SBA proposes (i) to increase small business size standards for 209 industries in NAICS Sector 31–33, Manufacturing; (ii) to increase the refining capacity component of the Petroleum Refiners (NAICS 324110) size standard to 200,000 barrels per calendar day total capacity for businesses that are primarily engaged in petroleum refining; and (iii) to eliminate the requirement that 90 percent of the output being delivered be refined by the bidder. Comments are due by November 10.

SBA proposes (i) to increase employee-based small business size standards for 30 industries and three sub-industries (i.e., exceptions in SBA’s table of size standards) and decrease them for three industries that are not part of NAICS Sector 31–33 (Manufacturing), Sector 42 (Wholesale Trade), or Sector 44–45 (Retail Trade); (ii) to eliminate the Information Technology Value Added Resellers sub-industry or "exception" under NAICS 541519 (Other Computer Related Services) and its 150-employee size standard; (iii) to eliminate the Offshore Marine Air Transportation Services sub-industry or "exception" under NAICS 481211 and 481212 and Offshore Marine Services sub-industry or "exception" under NAICS Subsector 483 and their $28 million receipts based size standard; and (iv) to remove footnotes 15 and 18 from the table of size standards. Comments are due by November 10.

GSAR Case 2013-G502: GSA is proposing to amend the General Services Administration Acquisition Regulation (GSAR) to clarify and update the contracting by negotiation GSAR section and incorporate existing FSS contracting policies and procedures, and corresponding provisions and clauses. Comments are due by November 10.

September 5

In PricewaterhouseCoopers LLP, the GAO sustained a protest because there was no rational basis for the source selection authority's conclusion (which contradicted that of the evaluators) that the awardee's Past Performance distinguished its proposal from the protester's.

September 4

In Binghamton Simulator Co., the ASBCA dismissed a subcontractor's attempt at a direct (unsponsored) appeal from a prime contractor's decision.

In Kellogg Brown & Root Services, Inc., the ASBCA dismissed an appeal due to the CDA's six-year statute of limitations because the claim had originally been withdrawn voluntarily before the Contracting Officer had issued a decision, and there was no basis for equitable tolling.

In Macro-Z Technology, the ASBCA (on its own motion) dismissed a pre-award claim only quantified during proceedings at Board because it had not previously been presented to the Contracting Officer as a sum certain.

September 3

In Size Appeal of Harbor Services, Inc., the SBA's OHA affirmed the Area Office's findings that firms were not affiliated through common management or by virtue of a mentor-protégé agreement.

September 2 

In Guardian Angels Medical Service Dogs, Inc., the Court of Federal Claims dismissed (as untimely) a suit challenging a default termination issued more than 12 months before the suit was filed. 

In Threshold Technologies, Inc., the court held that, although there was no express contract or contract implied in law between NASA and the subcontractor/plaintiff, and the subcontractor was not a third-party beneficiary, the subcontractor had pled sufficient facts for the court to assume jurisdiction over its implied-in-fact contract theory. In New Hampshire Flight Procurement, LLC, however, the court dismissed another subcontractor's complaint because there was no express or implied-in-fact contract between NASA and the subcontractor, and the  subcontractor was not a third-party beneficiary.

In Bailey Tool & Manufacturing Co., an unsuccessful preaward protest, the court held that the Contracting Officer was not required to consider additional information submitted by a bidder after an initial nonresponsibility determination.

August 29

In Chloeta Fire, LLC, the CBCA held it lacked jurisdiction over an appeal based on an allegation of the existence of an implied contract because that theory had not previously been presented to the Contracting Officer for a decision.

In American Government Properties and Houma SSA, LLC, the Court of Federal Claims dismissed a suit challenging a default termination because the contract had been improperly assigned in violation of 41 U.S.C. 6305.

August 28

DFARS Case 2014-D001: DoD is proposing to amend the DFARS to require that scientific and technical reports be submitted in electronic format. Comments are due by October 27.

In David Frankel, the Court of Federal Claims held it had jurisdiction over a claim that the Government had breached a contract to provide the winner of a competition with a monetary prize.

August 26

In Coastal Environmental Group, Inc., the Court of Federal Claims imposed sanctions (attorneys' fees) on the Government because two government officials had acted in bad faith when they prepared and backdated an inaccurate Determination and Findings document to make it appear as if there had been a written justification for the Government's decision at issue in a protest. However, on the merits, the court denied the protest and held that the agency was not required to explain why it decided to conduct a new procurement instead of requesting bidders on the original procurement to extend already expired bids after it had terminated the protested contract for convenience.

In Gilbane Building Co., the ASBCA held that the Government had properly rejected a contractor's submittal of its proposed subcontractor's elevator system because the subcontractor did not comply with the contract requirement that it be regularly engaged in the manufacture of pre-engineered elevator systems.

In Hanley Industries, Inc., the ASBCA upheld a termination for default after a response to a cure notice, which mainly regurgitated excuses and explanations the Government already had found to be inadequate.

In CCIE & Co., the ASBCA held that a contractor had converted a routine request for payment into a CDA claim by its repeated queries seeking payment after the Government's continued failure to pay its original invoice.

In Bizhan Niazi Logistic Services Company, the ASBCA dismissed an appeal for lack of jurisdiction because no prior CDA claim had been submitted to the Contracting Officer for a decision.

In DMW Marine Group, the CBCA held that a termination for cause was improper because it was based on a nonconforming item that the Government already had accepted with knowledge of its nonconformity.

August 25

In CGI Federal Inc., an unsuccessful preaward protest, the Court of Federal Claims held that unusual payment terms included by an agency in an FSS solicitation governed by FAR 8.4 did not violate applicable regulations and were not unduly restrictive of competition.

August 23

In IBM U.S. Federal, et al., the GAO sustained a protest because an awardee's quotation took exception to material solicitation terms and violated the solicitation’s page limit provisions, and the SSA’s decision overruling the technical evaluation committee’s determination regarding the technical unacceptability of the quotation was inadequately documented.

August 21  In NAICS Appeals of RLB Contracting, Inc., et al., the SBA's OHA upheld the Contracting Officer's determination that a project to create marsh and restore shoreline was primarily construction work under the main NAICS code of 237990 (Other Heavy and Civil engineering Construction), rather than fitting within the exception under that category for dredging and surface cleanup. It seems to me that the protesters made a fairly compelling case to the contrary. The decision was subsequently overturned by the Court of Federal Claims (see October 7 entry above). 

Similarly, in NAICS Appeal of QED Systems, LLC, the OHA upheld the Contracting Officer's determination that a project fit within general category 541330 (Engineering Services), rather than the exception under that category for Military and Aerospace Equipment and Military Weapons. 

August 20

In Size Appeal of Trailboss Enterprises, Inc., the SBA's OHA affirmed the Area Office's finding of affiliation by identity of interest of husband and wife. Subsequently, Trailboss' petition for reconsideration was denied.

Similarly, in Size Appeal of Industrial Support Service, LLC, the OHA affirmed the Area Office's finding of affiliation by identity of interest among various family members.

August 19

Effective September 18, a final rule amends HHS' FAR Supplement (the HHSAR) to add two clauses: "Patent Rights--Exceptional Circumstances," and "Rights in Data--Exceptional Circumstances," and their prescriptions. 

The EPA proposes to amend the EPAAR to incorporate a class deviation to clauses 1552.209–73 ("Notification of Conflicts of Interest Regarding Personnel") and 1552.227–76 ("Project Employee Confidentiality Agreement") and their respective prescriptions, to include Alternate 1 for the subcontract flowdown requirements for other than Superfund work, in order to address the increased use of these conflict of interest (COI) clauses in non-Superfund contracts to better protect the agency from COI.

The ASBCA denied an appeal by Al Bahar Co.  because the contractor presented no credible evidence that it had performed, or that the Government had accepted, the work at issue in the appeal.

In Pros Cleaners, the ASBCA dismissed as untimely an appeal filed a wee bit beyond the 90 day limit after receiving the Contracting Officer's decision, 400 days beyond that limit, actually.  

In AEON Group, LLC, the ASBCA upheld a default termination and an assessment for unliquidated performance-based payments because the contractor was in default, and it failed to prove its default was excused by such things as the Government's alleged superior knowledge or its alleged lack of good faith and fair dealing.

In Abdul Ahad Khadim Construction Company, the ASBCA held it lacked CDA jurisdiction over  an uncertified claim in excess of $100,000.

In Commissioning Solutions Global, LLC, the ASBCA dismissed an appeal of a breach of contract claim because the contract was an IQ contract, and the Government had fulfilled its obligations by ordering the minimum required quantity.

August 15

Effective September 15, a final rule by the Department of Commerce's Bureau of Industry and Security (BIS): (i) clarifies existing  standards and procedures by which the BIS may require that certain contracts or orders that promote the national defense  be given priority over other contracts or orders; (ii) sets new standards and procedures for such prioritization with respect to contracts or orders for emergency preparedness activities; and (iii) sets new standards and procedures by which BIS may allocate materials, services and facilities to promote the national defense. 

In Americom Government Services, Inc., the CBCA held that, although there was no express or implied contract between a firm and the agency, additional fact finding would be needed to determine whether there had been "institutional ratification" of the alleged agreement.

August 14

In Applied Business Management Solutions, Inc., a successful protest against an agency's corrective action in response to an earlier GAO protest, the Court of Federal Claims held that the agency failed to justify how alleged budget reductions required it to terminate a competitively awarded contract and move to a more expensive sole-source 8(a) contract.

In Octo Consulting Group, Inc., after the protester conceded at oral argument that its evaluated score would not put it in line for award, the court held it lacked standing because it could not establish prejudice. However, the part of the court's decision that really stood out for me was the following sentence: The protester "calculated it’s self-assessment score as 5,875 points." My high school English teachers turned over in their graves. 

In Sotera Defense Solutions, Inc., the court held that there was nothing objectionable in the agency's decision to reevaluate proposals in response to an earlier GAO protest and that the reevaluation, itself, had a rational basis.

In Integrity Management Services, Inc., the ASBCA dismissed several related appeals because (i) release language in a settlement operated as an accord and satisfaction, and (ii) the Board lacked jurisdiction over the contractor's complaints concerning the payment of settlement proceeds to the IRS as part of its enforcement of federal tax liabilities. 

In PHA-JMR, JV, the ASBCA dismissed an appeal because the underlying claim was not for a sum certain, but rather for "at least" a stated amount, and because of a lack of evidence that the individual submitting and certifying the claim had the requisite authority to do so.

August 13

The GAO sustained a protest by Hamilton Pacific Chamberlain, LLC, and held that the awardee's failure to submit the required original of its bid guarantee at bid opening could not be waived by the agency as a minor informality.

August 12

The EPA proposes to amend its acquisition regulation (the EPAAR) to remove the evaluation of contracting performance and incorporate flexibility to identify the required number of days of key personnel commitment during the early stages of contractor performance under the "Key Personnel" clause. Comments are due by September 11.

In Cedge Software Consultants, LLC, the Court of Federal Claims held that the the agency's discussions with the protester were adequate and that the agency had then properly assigned a technical deficiency to the protester's proposal and removed it from the competitive range.

August 10

In Ulysses, Inc., the Court of Federal Claims awarded the plaintiff its EAJA attorneys' fees (including a COLA) and costs because the Government's positions, including its contentions that the contractor had submitted false claims or made misrepresentations, were not substantially justified.

August 8

In NAICS Appeal of ACE Consulting Services, LLC, the SBA's OHA reversed the Contracting Officer's designation of  NAICS code 541611 (Administrative Management and General Management Consulting Services) in favor of  611430 (Professional and Management Development Training) because the solicitation primarily involved training services rather than consulting services.

In an effort to "eradicate" compensation discrimination, the Department of Labor's OFCCP proposes to amend one of its implementing regulations for Executive Order 11246 (Equal Employment Opportunity) by adding a requirement that certain federal contractors and subcontractors supplement their Employer Information Report (EEO–1 Report) with summary information on compensation paid to employees, as contained in the Form W–2 Wage and Tax Statement forms, by sex, race, ethnicity, and specified job categories, as well as other relevant data points such as hours worked, and the number of employees. Comments are due by November 6.

August 6

The Court of Federal Claims denied a protest by Lawrence Battelle, Inc., et al., which was not filed until a year after a prior GAO decision denying the protest, because (i) the court lacked bid protest jurisdiction over allegations sounding in tort and those alleging fraud and racial discrimination under 42 U.S.C. 1983; (ii) the protester was not entitled to discussions concerning the weaknesses in its proposal since it was not within the competitive range; and (iii) the protester's other protest allegations were untimely or had been waived.

In Environmental Safety Consultants, Inc., the ASBCA held that the CDA's statute of limitations had long since run on the portion of a termination settlement proposal that covered a price adjustment claim (for alleged increased costs) that had accrued more than 14 years before the claim had been submitted to the Contracting Officer. Subsequently, the Board denied motions for reconsideration of various points by both the Government and the contractor

In PBS&J Constructors, Inc., the ASBCA (i) denied a Type I Differing Site Conditions claim in part because the contractor did not provide evidence of its precontract reliance on the indications of the site condition in the solicitation or that the conditions at the site were different, at that time, from those indicated in the solicitation; and (ii) denied a changes claim because the contract unambiguously required deep footings under balconies and exterior walkways, and the Government was within its rights to require strict compliance with these specifications, so denying the contractor's requests to deviate was not a breach of the duty to cooperate with the contractor.

In Lee's Ford Dock, Inc., the ASBCA dismissed an appeal with regard to a claim of superior knowledge not previously presented to the Contracting Officer for a decision. Subsequently, the Board denied the contractor's request for reconsideration.

In DODS, Inc., the ASBCA denied an appeal of a default termination for failure to make progress because there was no reasonable likelihood the contractor could provide the First Article by the contract's delivery date, and the contractor failed to provide adequate assurances in response to Government's cure notice.

In Kellogg Brown & Root Services, Inc., the Court of Federal Claims dismissed a suit styled as a preaward bid protest because it actually involved matters of contract administration in a contract close-out.

August 5

In Intelligent Decisions, Inc., et al., the GAO sustained parts of several protests because (i) the agency's performance confidence evaluation failed to consider all the elements required to be evaluated by solicitation, and (ii) the agency's final source selection decision failed to meaningfully consider the offered prices.

Executive Order 13673 requires, inter alia, the promulgation of regulations to ensure that, for procurements in excess of $500,000, offerors shall be required to disclose any administrative or judicial determinations of violations of labor laws within the past three years and any steps they have taken to correct such violations, which information shall be used as part of the agency's responsibility determination. 

FAR Case 2012-014: A proposed rule would amend the FAR to establish a uniform line item identification structure in federal procurement, in order to to improve the accuracy, traceability, and usability of procurement data. Comments are due by October 6.

DFARS Case 2014-D010: An interim rule amends the DFARS to implement a section of the National Defense Authorization Act for FY 2014 that prohibits the acquisition of commercial satellite services from certain foreign entities. Comments are due by October 6.

DFARS Case 2014-D014: A proposed rule would amend the DFARS to clarify and relocate coverage relating to state sponsors of terrorism (as identified by the Department of State), add an explicit representation, and conform the terminology.  Comments are due by October 6.

August 4

In Affiliated Western, Inc., the CBCA held that a contractor's Project Manager did not have the requisite authority to submit a notice of appeal on behalf of the corporation.

In Jane Mobley Assocs., Inc., the CBCA ruled on various claims of attorney-client privilege by the Government concerning emails and attached documents. Subsequently, the CBCA vacated its ruling to permit the Government to submit a log of allegedly  privileged documents.

In Qwest Communications Co., LLC, the CBCA held that (i) the Government owed CDA interest from the date a claim was submitted to the Contracting Officer even though the Government did not dispute the claimed amount; and (ii) the Government owed PPA interest from the date of a novation agreement, which stated that "[t]he Government shall, as soon after the date of this Agreement as reasonably possible, make all payments and reimbursements under the contract to [the contractor]."

August 2

In CliniComp International, Inc., a successful post-award protest, the Court of Federal Claims held that the VA had treated proposals unequally by rating the protester's proposal technically unacceptable for failing to commit to a solicitation requirement, while rating the awardee's proposal acceptable even though it, too, contained no commitment to comply with that requirement.

In American Auto Logistics, LP, an unsuccessful post-award protest, the court essentially showed how difficult it is to win a protest against the evaluation in a negotiated procurement by holding, inter alia, that (i) there was sufficient information in the awardee's proposal about an affiliate's participation in the project for the agency to credit the awardee with the past performance of the affiliate; (ii) the solicitation did not limit the undefined term "major subcontractor" to firms that would be performing a large dollar amount of work; (iii) there was a rational basis for the performance/price tradeoff analysis; and (iv) the awardee's proposed subcontractors were not debarred or suspended at the time of the award decision.

August 1

Effective September 2, the USDA  is amending its regulations concerning Guidelines for Designating Biobased Products for Federal Procurement to incorporate statutory changes to section 9002 of the Farm Security and Rural Investment Act (FSRIA) that were effected when the Food, Conservation, and Energy Act of 2008 (FCEA) was signed into law on June 18, 2008. The USDA is also announcing that an additional rulemaking activity will be initiated to further amend the Guidelines to address the provisions of the recently signed Agricultural Act of 2014. 

July 31

DFARS Case 2013-D035: A final rule amends the DFARS 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.  

DFARS Case 2013-D020: A final rule amends the DFARS to remove the DoD-unique list of domestically nonavailable articles because these items have been found to be either (i) available domestically or (ii) not used by DoD. 

DFARS Case 2014-D016: An interim rule amends the DFARS to implement those sections of the Military Construction and Veterans Affairs, and Related Agencies Appropriations Act, 2014, that restrict use of military construction funds in various countries, including countries bordering the Arabian Sea. Comments are due by September 29.

July 30

In United States Enrichment Corp., the Court of Federal Claims held it lacked jurisdiction over the portions of the plaintiff's breach-of-contract claims that related to its work as a subcontractor.

In BAE Systems San Francisco Ship Repair, the ASBCA held that the contractor was not entitled to a summary judgment as to the allowability of disputed costs simply because a DCAA audit had not taken any exception to the claimed costs.

In Allison Transmission, Inc., the ASBCA held that the CAS statute requires the contractor to pay compound interest on increased costs paid by the Government as a result of the contractor's change in its cost accounting practices.

July 29

Native Resource Development Co. won its GAO protest because (i) the agency acted unreasonably in finding the protester's overall proposed staffing level  to be a weakness without giving the protester reasonable notice of, and the opportunity to address, the agency’s internal staffing estimate and without providing analysis as to specific areas in which the protester’s final staffing numbers were considered insufficient; and (ii) the agency did not even attempt to rebut the protester's contention that its Past Performance should have received the "Outstanding" rating. 

In Size Appeal of WG Pitts Co., the SBA's OHA upheld the Area Office's finding of a affiliation under the ostensible subcontractor rule because, as described in the final proposal in response to a solicitation, a large business subcontractor rather than the protested firm, as prime contractor, would be performing the primary and vital contract requirements.

NASA is issuing an interim rule, effective today, amending the NASA FAR Supplement to implement statutory requirements providing whistleblower protections for contractor and subcontractor employees and to address the allowability of legal costs incurred by a contractor related to whistleblower proceedings. Comments are due by September 29.

July 28

Iron Vine Security, LLC won its GAO protest because the agency failed to follow the solicitation's  requirement to evaluate the price realism of proposed labor rates.

In Jay Hymas d/b/a Dosmen Farms, another successful protest, the Court of Federal Claims held that the Fish and Wildlife Service's practice of awarding cooperative farming agreements to private individuals, who raise commercial crops on public lands in wildlife refuges under a "priority" system that essentially limits awards to incumbents without competition, violates CICA, among other statutes and regulations. Subsequently, the CAFC reversed the decision.

July 25

The GAO sustained a protest by Raytheon Co. because (i) there was no rational basis in the record for certain discriminators found by the agency between the protester's and the awardee's proposals; and (ii) the agency improperly credited the awardee for the experience of an affiliate that was not shown in the awardee's proposal to contribute significantly to the proposed contract work.

The GAO sustained a portion of a protest by Risk Analysis and Mitigation Partners because the agency used unstated evaluation criteria, which offerors could not reasonably know to address in their proposals, to assign weaknesses to the protester's proposal.

Federal Acquisition Circular ("FAC") 2005-76 has been published and includes the following three items, plus technical amendments:

FAR Case 2014-013: An interim rule amends the FAR to implement final rules issued by the DOL's OFCCP relating to equal opportunity and affirmative action for veterans and individuals with disabilities. 

FAR Case 2012-014: Effective August 25, a final rule amends the FAR to implement the SBA's revision of the small business size and status protest and appeal procedures. 

FAR Case 2013-017: A final rule adopts, with changes, the prior interim rule amending the FAR to implement a section of the National Defense Authorization Act for Fiscal Year 2013 that addresses 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 or subcontractor employee. 

In Delaware Cornerstone Builders, Inc., the Court of Federal Claims (i) held that an agency's failure to appoint a successor Contracting Officer upon the original Contracting Officer's death did not eliminate the CDA's requirement to submit a claim to the Contracting Officer prior to bringing suit; and (ii) dismissed the suit because the claim described in the complaint differed from the claim previously submitted by the contractor.

In BC Peabody Construction Services, Inc., the Court of Federal Claims analyzed the allowability of various types of costs claimed by a successful protester under the EAJA, (i) finding, among other things, that there was no showing of entitlement to an enhanced hourly rate for the protester's attorneys and (ii) discussing, inter alia, bonding costs; filing fees; paralegal expenses; and travel, copying, and FedEx expenses.

July 24

In VSE Corp.; The Univ. of Hawaii--Costs, the GAO recommended the reimbursement of costs, but only for the segregable, successful protest grounds, where the agency waited until after the protesters had filed comments on the agency report to take corrective action.

July 23

Executive Order 13672 amends prior Executive Orders to make clear that discrimination  based on sexual orientation or gender identity is prohibited in federal procurement and by federal contractors. 

July 22

In Science and Management Resources, Inc., an unsuccessful post-award protest, the Court of Federal Claims (i) denied the Government's motion to dismiss for lack of standing because standing is determined based on the allegations in the complaint, not from a decision on their merits; but then (ii) held that the technical, past performance, and cost/price evaluations all had rational bases.

In Classic Site Solutions, Inc., the ASBCA held that the Government was not bound by a summary level, preaward project schedule in a bidder's proposal when clear solicitation requirements established a different time for the event in dispute between the parties.

In So-Co Piedmont, J.V., LLC, the ASBCA held that the date established by the Contracting Officer for issuing a decision on a complex claim was reasonable and, therefore, denied the contractor's request for an order directing the Contracting Officer to issue the decision sooner.

In Creek Services, LLC, the ASBCA dismissed, as untimely, an appeal filed more than 90 days after the contractor received the Contracting Officer's decision.

In Al Barih for General Contracting Ltd., the Board dismissed longstanding appeals for failure to prosecute, holding that financial hardship and difficulty locating an attorney were not adequate excuses. In Vet-Tech, LLC, the CBCA dismissed an appeal for failure to prosecute after repeated failures by the contractor to respond to the Board's orders.

In Certified Construction Co. of Kentucky, LLC, based on the CDA's statute of limitations, the ASBCA dismissed the portion of the contractor's claim that had accrued more than six years before it was submitted to the Contracting Officer.  

In Iron Bow Technologies, LLC, the ASBCA held that the monetary amount of the Contracting Officer's warrant was sufficient to give him authority to execute the contract and the options at issue in the appeal.

July 20

In Size Appeal of Pacific Power, LLC, the SBA's OHA held that the Area Office had properly used the NAICS code originally assigned to a procurement to determine that a firm was not small since the Contracting Officer had not modified the solicitation to reflect a change in the NAICS code designation and definition implemented by the SBA after the date the solicitation was issued. The agency argued against the protester's appeal, in part, by noting that the protester had filed several successful protests on the same procurement arguing that other firms were not small under the original NAICS code. What's good for the goose. . . . 

 July 19

In Orbis Sibro, Inc., the Court of Federal Claims dismissed a protest because, under FASA, the court lacked jurisdiction over the protester's challenges to the evaluation in a competition for an individual task order under a multiple order ID/IQ contract.

July 18

Alutiiq Pacific, LLC won its GAO protest because: (i) the agency credited the awardee with the experience of two affiliated firms even though its proposal did not explain how they would contribute significantly to the work; (ii) the agency accepted the awardee's assertion that it would retain a large proportion of the incumbent's staff even though its proposal showed it intended to offer them significantly less pay than the incumbent had; and (iii) the agency treated similar aspects of the awardee's and the protester's proposals disparately in the evaluation.

The EPA proposes to amend its acquisition regulation (the EPAAR) to update policy, procedures, and EPAAR clause 1552.211–74 ("Work Assignments"). Comments are due by August 18. 

July 17

In JMR Construction Corp., the Court of Federal Claims discussed the standards for determining entitlement to, and the calculation of, field office overhead and home office overhead (using Eichleay) in delay damages claims under construction contracts.

July 16

In RUSH Construction, Inc., a successful post-award protest against an agency's proposed corrective action in response to a prior GAO decision sustaining a protest alleging that a construction contract bid was nonresponsive, the Court of Federal Claims, in a sweeping and thorough indictment, held that the GAO's decision lacked a rational basis because it was based upon (i) precedents that were not applicable and (ii) a flawed analysis of the facts of the original awardee's bid, which contained only a minor flaw and, therefore, was responsive.

In Veridyne Corp., the long-running case involving forfeiture under the Special Plea in Fraud Statute, the Court of Appeals for the Federal Circuit reversed the CoFC's partial quantum meruit award to the contractor but affirmed the lower court's award of penalties to the Government under the False Claims Act and the CDA. See prior CoFC decisions: 1, 2, 3.   

The Department of Education is proposing extensive revisions to its acquisition regulation to update it to accurately implement FAR and Department policies. Comments are due by September 15.

July 15

DFARS Case 2012-D042: DoD is proposing to amend the DFARS to ensure appropriate contractor accountability for adequate contractor business systems. Comments are due by September 15.

July 13

In SEK Solutions, LLC, the Court of Federal Claims upheld the DLA's decision to create an "Emall" of tent systems through the use of an unrestricted procurement for ID/IQ contracts, followed by competitions limited to ID/IQ holders for individual orders, denying plaintiff's allegations that (i) the procurement violated various CICA and FAR requirements and (ii) the Contracting Officer had failed to conduct a proper Rule of Two analysis in deciding not to set aside the procurement for small businesses.

July 10

FAR Case 2013-012: A proposed rule would amend the FAR to implement section 802 of the National Defense Authorization Act of Fiscal Year 2013, which establishes additional requirements relative to the review of, and justifications for, pass-through contracts.  Comments are due by September 9.

July 9

In Classic Site Solutions, Inc., the ASBCA held that the Government's was the only reasonable interpretation of the MIX DESIGN paragraph in a construction contract's specs.

July 7

In Intermarkets Global--Costs, the GAO held that, absent more reliable documentation from the protester, the agency had reasonably calculated  the amount of claimed costs attributable to a successful protest issue based on the percentage of pages in the protest that had been devoted to that issue.

In Size Appeal of Crosstown Courier Service Incorporated, the SBA's OHA remanded a size appeal to the Area Office because it had not adequately investigated the issue of whether firms were affiliated through close family relationships.

In Matter of United Global Technologies, Inc., the OHA upheld the SBA's denial of an applicant's entry into the 8(a) program for failure to demonstrate social disadvantage.

In Matter of Cabin John Consulting Corp., the OHA held that the SBA had properly calculated an applicant's adjusted net worth in denying him admission to the  8(a) program.

In Matter of Wichita Tribal Enterprises, LLC, the OHA ordered the SBA to lift its suspension of a firm from 8(a) program because the SBA had repeatedly failed to comply with OHA's orders to present evidence in support of its suspension allegations (which were "cogent" on their face).

July 3

The GAO sustained a protest by AeroSage LLC, because the Contracting Officer had improperly imposed a bid confirmation requirement not identified in the solicitation and had relied on the protester's failure to respond to it to bypass the protester's low bid, despite the fact that the protester had timely and properly confirmed its bid in accordance with the solicitation's terms.

In its latest decision in the Palafox Street Assocs., L.P. case, the Court of Federal Claims held that a certified claim resubmitted by a contractor at the  Government's urging was not a request for reconsideration of the contractor's original claim. The court requested additional briefing on an election-of-forum issue.

The EPA has issued a final rule amending its acquisition regulation (the EPAAR) by, inter alia, updating the "Ordering—By Designated Ordering Officers" clause and a corresponding prescription.  

In BAE Systems San Francisco Ship Repair, the ASBCA denied a contractor's motion for summary judgment, holding that a DCAA audit report approving of disputed costs was not dispositive of the issue because it was the Contracting Officer's job to decide the contractor's claim.

July 2

The 2014 Procurement Review is up, through June 30.

In Kellogg Brown & Root Services, Inc., the ASBCA dismissed one government claim as untimely under the CDA's statute of limitations and held for the contractor on other government claims because the contractor's costs of hiring private security companies to provide protection not adequately afforded by the Government in Iraq were reasonable and allowable.

As part of the President’s Export Control Reform effort, the State Department is amending the International Traffic in Arms Regulations (ITAR) to revise U.S. Munitions List (USML): (i) Category XI (Military Electronics); (ii) Category VIII (Aircraft and Related Articles) with respect to wing folding systems and (iii) both Categories VIII and XIX, to remove three paragraphs superseded by the revision of Category XI. This rule is effective on December 30, 2014, except for to the revision to Category VIII(h)(4), which is effective August 15, 2014. In concert with these revisions, the Commerce Department's Bureau of Industry and Security is revising the the Commerce Control List (i) to add certain military electronics, technology and software for certain wing folding systems, certain superconducting and cryogenic equipment, and related items that no longer warrant control under the USML; and (ii) to amend ECCNs 7A006 and 7A106 to apply the "missile technology" reason for control only to items in those ECCNs on the Missile Technology Control Regime (MTCR) Annex. This rule is effective December 30, 2014, except for the addition  of software and technology for certain wing folding systems to ECCNs 0D521 and 0E521 via Supplement No. 5 to part 774 of the EAR (amendatory instruction number 24), which is effective July 1, 2014.

In Cardiosom, L.L.C., the Court of Federal Claims held that the Government's termination of a contract was a breach because the contract did not allocate to the contractor the risk of a termination required by a change in a governing statute.

June 27

In ARKRAY USA, Inc., a post-award protest, the Court of Federal Claims stayed the case and remanded the issue to the Contracting Officer for a determination whether the BPA awardee met the solicitation requirement to have an existing FSS contract for all offered items.

June 25

The SBA proposes to amend its program regulations (i) to implement statutory provisions establishing a safe harbor from fraud penalties for individuals or firms that misrepresent business concerns as being small for purposes of federal procurement opportunities if they acted in good faith reliance upon small business status advisory opinions received from Small Business Development Centers (SBDCs) or Procurement Technical Assistance Centers (PTACs); (ii) to establish the criteria small business status advisory opinions must meet in order to be deemed adequate and specify the review process for such opinions; and (iii) to update the circumstances under which SBA may initiate a formal size determination. Comments are due by August 25.

June 24

In New Iraq Ahd Co., the ASBCA dismissed an appeal for lack of jurisdiction because an MOA contingent on the availability of funds that never became available was not a contract.

In Zomord Co., the ASBCA (i) denied the Government's motion to dismiss an appeal as untimely because the contractor could reasonably have concluded the Contracting Officer was reconsidering his decision; and (ii) denied the Government's motion to dismiss the claim as time-barred  because it was filed more than two months before the six- year CDA statute of limitations would have expired. 

In Patriot Pride Jewelry LLC, the ASBCA held it had jurisdiction to decide a dispute under an AAFES agreement because the agreement's Disputes clause specifically granted it such authority, even though the agreement erroneously referred to the CDA. However, on the merits, the Board denied the contractor's breach claim because the agreement did not require the Government to advertise the contractor's products.

In Superior Maritime Services, Inc., the ASBCA denied the Navy's motion to dismiss for lack of jurisdiction and held that (i) a non-FAR based transportation contract was governed by the CDA, and (ii) the Transportation Officer who administered the contract met the CDA definition of a Contracting Officer.

In Tele-Consultants, Inc., the ASBCA denied a contractor's motion to dismiss an appeal without prejudice under Rule 30 so that it could seek relief from Congress because it lacked the resources to pursue the appeal.

In Leidos, Inc., f/k/a Science Applications International Corporation, the ASBCA granted the Government's motion to substitute a contract number for one that had been incorrectly identified in the Government's claim for alleged misallocation of costs in various CAS-covered contracts.

In Brookwood Research Center, LLC, the CBCA granted the contractor's request for payment under the Tax Adjustment clause because the contractor's evidence established  it was more probable than not that the contractor had timely mailed the information  in accordance with the requirements of the contract, even though the Government established a prima facie case that it had not received the information.

In EHR Doctors, Inc., the CBCA (i) dismissed one count of the complaint that involved a claim that had not been presented to the Contracting Officer for a  decision; but (ii) denied the Government's motion for summary relief as to a second claim that involved allegations that the contractor had signed a modification only under improper duress from the Government.

In NAICS Appeal of AeroSage, LLC, the SBA's OHA dismissed, as moot, a NAICS appeal filed after contract award.

In Size Appeal of Complete Packaging and Shipping Supplies, Inc., the OHA held that a solicitation to establish BPAs under FSS contracts did not require quoters to recertify their status as small businesses as part of their initial quotes. (The OHA reached the same conclusion in several other protests filed by the same protester against various quoters on the same procurement.)

In Size Appeal of Elite Construction Management Corp., the OHA held that the Area Office correctly applied the adverse inference rule after a firm failed to provide requested ownership records required to establish whether there was affiliation through identity of interest among various firms.

Federal Acquisition Circular (FAC) 2005-75 has been published and includes the following three items:

FAR Case 2013-016: An interim rule amends the FAR to implement changes in the Electronic Product Environmental Assessment Tool (EPEAT®) registry. Comments are due by August 25.

FAR Case 2013-010: A final rule adopts, without change, the prior interim rule amending 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 2014-012: An interim rule amends the FAR to implement section 702 of the Bipartisan Budget Act of 2013, specifically (i) to revise the allowable cost limit relative to the compensation of contractor and subcontractor employees; and (ii) to implement the possible exception to this allowable cost limit for scientists, engineers, or other specialists upon an agency determination that such exceptions are needed to ensure that the executive agency has continued access to needed skills and capabilities. Comments are due by August 25.

With a conclusion tailor-made for a blog summary, the Court of Federal Claims granted a protest by Laboratory Corporation of America Holdings because "the VA deviated from the RFQ terms, neutralized [the protester's] technical advantage, eliminated the need for a best value trade-off analysis, conducted an "apples to oranges" price comparison, and failed to recognize [the awardee's] significant miscalculations." 

In Cherokee Nation Technologies, another successful protest, the court held that the agency lacked a rational basis for its determination to issue a sole-source bridge contract as part of its corrective action on a procurement. 

DFARS Case 2013-D027: A final rule amends the DFARS to clarify the meaning of the phrase "congressional defense committees." 

DFARS Case 2012-D036: A final rule adopts, with changes, the prior interim rule amending the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2012 regarding private sector notification of in-sourcing actions.  

DFARS Case 2013-D038: A proposed rule would amend the DFARS to comply with the DoD Instruction that addresses the use of animals in DoD programs. Comments are due by August 25.

DFARS Case 2014-D008: A proposed rule would amend the DFARS to address DoD-unique requirements for defense contractors performing private security functions outside the United States. Comments are due by August 25.

DFARS Case 2014-D003: A proposed rule would amend the DFARS to notify contractors of requirements relating to Afghan taxes. Comments are due by August 25. 

Whew. The old man needs a nap.

June 21 In Oswald Ferro, the PSBCA denied the Postal Service's motion to dismiss the appeal because it involved the same operative facts and amount sought as the claim previously presented to the Contracting Officer for a decision.

In Shawn G. Logan, the PSBCA dismissed an appeal based on a convenience termination claim because the contract contained only a clause allowing termination without cost upon proper notice.

In Marilyn Laney, the PSBCA dismissed part of a contractor's claim because it was barred by the CDA's statute of limitations but found the Postal Service liable for payment of the last month before the contract was terminated, even though the contract had been suspended, because the contract did not specifically provide for cessation of payments during a suspension. This reasoning seems strange to me--if the Postal Service could suspend the work, wouldn't that imply it could also suspend payments for the work that was not being done?

DFARS Case 2014-D011: DoD proposes to amend the DFARS to clarify the flowdown requirements for DFARS clause 252.225–7009 ("Restriction on Acquisition of Certain Articles Containing Specialty Metals"). Comments are due by August 22. 

June 18

The GAO sustained a protest by Gaver Technologies, Inc. because (i) there was no rational basis for the source selection authority's failure to credit the protester with several innovative approaches previously found by the agency's evaluators to be significant strengths in its proposal; and (ii) the agency credited the awardee with a 30-day phase-in plan (and relied on that attribute as a key discriminator between the awardee's and the protester's proposals) when the awardee (like the protester) only proposed a 60-day phase in.

June 17

In Laguna Construction Co., the ASBCA dismissed the Government's monetary claim against the contractor because it was  time-barred by CDA's six-year statute of limitations.

The DOL proposes to amend its regulations to implement Executive Order 13658 ("Establishing a Minimum Wage for Contractors") which directs that the hourly minimum wage paid by federal government contractors to workers performing on covered federal contracts be raised to $10.10 per hour, beginning January 1, 2015; and beginning January 1, 2016, and annually thereafter, to an amount determined by the Secretary of Labor. Comments are due by July 17. 

June 14 In Size Appeal of Strata-G Solutions, Inc., the SBA's OHA held that the Area Office correctly determined that a firm could not protest the size of a company with a long-term contract at the time of a contract modification accomplishing a preplanned downselect. Moreover, in Size Appeal of Systems Technologies Corp., the OHA held that the Area Office correctly determined a firm could not protest the size of a company awarded a BPA under an existing GSA schedule contract.

In Size Appeal of Knight Networking & Web Design, Inc., the OHA held the Area Office correctly found affiliation through identity of interest among family members.

June 13

In Liquidating Trustee Ester Du Val of KI Liquidation, Inc., the Court of Federal Claims (i) upheld a default termination where the contractor abandoned the job to cut its financial losses; (ii) denied the contractor's claim for extra geotechnical work because the fixed-price contract required that work; (iii) awarded the contractor extra costs for construction of the secure part of an embassy; and (iv) granted the Government's counterclaim in fraud under the FCA because the contractor's payment certification contained a statement it knew was false.

June 12

The SBA is revising its monetary based industry size standards (i.e., receipts, assets, net worth, and net income) in order to account for the inflation that has occurred since the last adjustment in 2008. 

June 11

Navarro Research and Engineering, Inc. won its portion of a GAO protest because several discriminators used by the agency to distinguish between two similarly rated proposals could not withstand scrutiny and were the result of unreasonable conclusions, unequal evaluations, or inaccurate judgments regarding the differences between the two proposals.

June 10

FAR Case 2013-002: A proposed rule would amend the FAR to require expanded reporting of nonconforming items.   Comments are due by August 11.

The GAO sustained a protest by Marathon Medical Corp. because the agency permitted the awardee, but not the protester, to submit information establishing the acceptability of its proposal.

June 9

In Muse Business Services, LLC, the CBCA dismissed an appeal based upon an alleged breach of a BPA because a BPA is not a contract.

In JRS Management, the CBCA denied various claims by the contractor because the agency had fulfilled its obligations under the contract, while the contractor had not, and, as explicitly stated in the contract, the agency's notice of its intent to exercise the option did not commit it to exercise that option. Subsequently, the Board denied the contractor's request for reconsideration. 

In Russell Sand & Gravel Co., the CBCA  granted an EAJA application after a successful appeal, but reduced the attorney's $250 hourly rate to the $125 statutory limit.

June 7

In Size Appeal of Stronghold Engineering, Inc., the SBA's OHA held that the Area Office had correctly determined that the protester was not primarily engaged in the generation, transmission or distribution of electric power as of the date its size was determined, and, therefore, was not small under the NAICS code applicable to the procurement.

June 6

In Size Appeal of Tinton Falls Lodging Realty, LLC, the SBA's OHA held that the Area Office had correctly determined that the awardee would perform the primary and vital requirements of the contract and, therefore, would not run afoul of the ostensible subcontractor rule.

June 5

DFARS Case 2012:D051: DoD is proposing to amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2008, specifically to require contractors to annually report service contract direct labor and corresponding dollar value data for prime contractors and subcontractors, using the Enterprise-wide Contractor Manpower Reporting Application (ECMRA) online database, at the end of the Government's fiscal year or at the end of contract performance, whichever comes first. Comments are due by August 4.

In Business Integra, Inc., the Court of Federal Claims held that, where a solicitation covered by FAR Part 15 provided that failure to include all required pricing information would render a proposal ineligible for award, the protester's omission of three required labor rates in its proposal was a material defect (even though those three categories represented only .0041% of the total value of its proposal) and was not a problem the agency was required to permit the protester to correct through  clarifications or to waive.

June 4

In Kingdomware Technologies, Inc., the Court of Appeals for the Federal Circuit (over a dissent) affirmed the prior Court of Federal Claims decision and held that the Veterans Act of 2006 does not require the VA to conduct a Rule of Two inquiry before contracting via FSS, so long as the agency is meeting its overall percentage goals for contracting with VOSBs. Subsequently, the Supreme Court reversed the CAFC and held that the Act does require a Rule of Two analysis.

June 3

In Laboratory Corp. of America Holdings, the Court of Federal Claims permitted supplementation of the administrative record with a declaration by a price analysis expert, but rejected another declaration concerning an untimely protest of the solicitation's terms.

In BGI-Fiore JV, LLC, the GAO found that an agency had improperly determined an 8(a) JV member was ineligible to compete on the basis that the SBA had not approved its JV agreement by the time proposals were submitted--SBA's regulations only require approval by the time of award.

June 2

In Size Appeal of Rich Chicks, LLC, the SBA's OHA held that the SBA had properly applied the adverse inference rule to a firm that refused to provide requested documents concerning the firm identified in its proposal as the place of manufacture, in order for the SBA to determine compliance with the nonmanufacturer rule.

June 1

In FirstLine Transportation Security, Inc., the Court of Federal Claims denied the Government's motion to strike a probative  declaration by a the protester's expert in cost and price analysis. However, in Communication Construction Services, Inc., the court held that the same expert had crossed line between simply providing analysis to assist the court in complex technical issues and substituting his judgment for that of the Government's evaluators.

In Griffin & Griffin Exploration, LLC, the court held, inter alia, that the Government had breached a contract to convey a valid leasehold interest to the plaintiff.

May 30

In the long-running SUFI Network Services case, the Court of Appeals for the Federal Circuit reversed the Court of Federal Claims, in part, and remanded several issues of alleged lost revenues to the ASBCA for reconsideration and further findings.

Federal Acquisition Circular (FAC) 2005-74 has been published and includes the following five items:

FAR Case 2012-024: Effective November 1, a final rule amends the FAR to require the use of CAGE codes, including NATO CAGE codes for foreign entities, for awards valued at greater than the micro-purchase threshold. 

FAR Case 2014-016: Two interim rules have been adopted as final, with changes, which amend the FAR to revise the clause on Recovery Act reporting procedures in order to implement a section of the Consolidated Appropriations Act, 2014, by repealing the reporting requirements of the American Recovery and Reinvestment Act of 2009.

FAR Case 2012-017: A final rule adopts, without change, the prior interim rule that amends the FAR to implement a section of the National Defense Authorization Act of 2012, which expands the application of the senior executive compensation benchmark to a broader group of contractor employees on contracts awarded by DoD, NASA, and the Coast Guard. The senior executive compensation benchmark amount limits the reimbursement of contractor employee compensation costs.  

FAR Case 2012-028: Effective July 1, a final rule amends the FAR to implement provisions of law that change the period allowed for contractor comments on past performance evaluations and require that past performance evaluations be made available to source selection officials sooner.

FAR Case 2012-018: Effective July 1, a final rule amends the FAR to clarify contractors' and subcontractors' 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.

May 29

The GAO sustained a protest by System Studies & Simulation, Inc. because the agency's actual needs, as reflected in the contract it awarded, were less than 30% of the amount solicited.

In The Hanover Insurance Co., et al., a dispute over the propriety of a default termination, the Court of Federal Claims held it lacked jurisdiction over the portion of the suit involving the contractor's claim for convenience termination costs because it had not been submitted to the Contracting Officer for a decision.

May 28

In POZ Engineering and Environmental Consulting, the ASBCA held that, although it lacked jurisdiction over an appeal involving a termination settlement proposal that was still being negotiated at the time of the appeal, it did have jurisdiction over a subsequent appeal of the same matter because the  Contracting Officer had issued a "settlement by determination" letter after the  original appeal had been filed, which indicated an impasse had been reached in the negotiations and which was an appealable event.

DFARS Case 2013 -D015: This final rule amends the DFARS (especially section 252.225) to harmonize it with DoD Instruction 3020.41, entitled "Operational Contract Support (OCS)."

DFARS Case 2014-D004: A proposed rule would amend the DFARS to revise and update clauses and their prescriptions for special contracting methods, major system acquisition, and service contracting to create basic and alternate clauses structured in a manner to facilitate use of automated contract writing systems. Comments are due by July 28.

May 24

The Court of Federal Claims denied a protest by AM General, LLC because the agency's errors (crediting the awardee with the past performance of its non-major subcontractors and misevaluating one subfactor in the technical evaluation) did not prejudice the protester.

May 20

In Ensign-Bickford Aerospace & Defense Co., the ASBCA held that, although an appeal was premature when originally filed, the Board had jurisdiction because the Contracting Officer still had not issued a decision on the underlying claim as of date of the Board's decision on the Government's motion to dismiss for lack of jurisdiction and more than a reasonable amount of time had passed without that decision.

May 18

The SBA proposes to increase employee based size standards for 46 industries in NAICS Sector 42 (Wholesale Trade) and one industry in NAICS Sector 44–45 (Retail Trade) and retain the current size standards in the remaining industries in those sectors. SBA also proposes to retain the current 500-employee size standard for the procurement of supplies under the nonmanufacturer rule. Comments are due by July 18.

May 17

In NAICS Appeal of Palladian Partners, Inc., the SBA's OHA dismissed a NAICS code appeal because it had already issued its decision in a previous NAICS code appeal involving the same issue.

May 14

In Suh'dutsing Technologies, LLC, the ASBCA denied the Government's motion to dismiss an appeal as premature because the Contracting Officer's letter near the end of original 60-day deadline for issuing a decision stating it would be "at least" another 60 days before a decision was issued was not sufficiently definite to comply with 41 U.S.C. 7103(f)(2)(B), and the contractor was, therefore, authorized to appeal at any time from that point forward.

In Lukos VATC JV LLC, an unsuccessful protest, the Court of Federal Claims held that, although it had jurisdiction over a claim that the SBA had approved an 8(a) mentor-protégé agreement in time for a particular procurement and although the SBA had given preliminary approval in time, the final approval was not given until two days after the solicitation closed, meaning the members of the JV bidder were deemed to be affiliates for purposes of determining size eligibility for the 8(a) set-aside procurement.

May 13

As part of the President's Export Reform Control effort, the State Department has published an interim final rule amending the ITAR to revise Category XV (Spacecraft and Related Articles) of the United States Munitions List to describe more precisely items warranting control under this category. Comments are due by June 27. In conjunction with the prior rule, the Commerce Department's Bureau of Industry and Security has published its own interim final rule adding controls to the EAR for spacecraft and related items that no longer warrant control under the Munitions List. Comments are due by November 10. Both sets of rules contain some sections that are effective June 27 and others that become effective November 10.    

May 12

In Insight Technologies Corp. and CenterScope Technologies, Inc., the Court of Federal Claims denied EAJA claims for attorney fees by successful protesters because the case was one of first impression involving an unusual fact pattern, and the Government was substantially justified in relying on some sparse prior case law, even though the court ultimately held those cases had been wrongly decided. The court also denied a claim by one of the protesters for bid preparation costs because it failed to prove it could not bid on the reprocurement and, thus, failed to establish its earlier expenditures were wasted.

May 7

In J.C. Lee, which involved a timber sales contract, the CBCA held that the contractor did not own timber that had not yet been measured, removed, and paid for, and, thus, the agency was within its rights to stop the contractor from cutting timber that had been mistakenly marked for cutting.

May 6

In Beechcraft Defense Co., the ASBCA granted the contractor's request to require Government to file the complaint where the Government had alleged that the contractor was noncompliant with CAS 402.

In Zara Co., the ASBCA dismissed an appeal for lack of jurisdiction because the emails to the Contracting Officer that the contractor alleged constituted its claim did not specify a sum certain.

In Maersk Line Limited, Inc., the ASBCA rejected the Government's contention that the dispute was covered by the GSA's dispute resolution procedures under The Transportation Act of 1940 and held that the Board had CDA jurisdiction over a dispute involving GSA claims for overcharges under a FAR-based transportation services contract covered by CDA. The Board also held that the contractor's submission to the Contracting Officer (which was based on the assertion that the overcharge notices issued by the GSA were not consistent with the provisions of the CDA, the FAR, or the contract) was a claim within the meaning of the CDA.

In Tokyo Co., the ASBCA held it lacked jurisdiction over an appeal involving a $920,602 claim that (i) included a certification without a physical signature and (ii) bore only the company's stamp and the typed written name of its general manager, because the defects in the certification could not be cured on appeal.

In S&L Enterprise, Inc., the ASBCA granted the contractor's requests to dismiss appeals without prejudice because (i) the parties agreed that no impasse had occurred in negotiations over a convenience termination settlement proposal before the Contracting Officer had issued his decision; and (ii) the contractor had not certified another claim in excess of $100,000.

In American General Trading & Contracting, WLL, the ASBCA granted the Government's motion for summary judgment because there was no evidence of implied-in-fact cost-reimbursable contracts for the provision of laundry services.

DFARS Case 2012-D055: A final rule amends the DFARS in partial implementation of 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.

May 5

In Size Appeal of Professional Security Corp., the SBA's OHA affirmed the Area Office's finding of affiliation through the ostensible subcontractor rule because the prime proposed to employ the exact percentage of its subcontractor's (the incumbent's) staff as the prime's percentage of work on the contract as well as the incumbent's managerial staff to assume the same positions on the prime, and because the prime had little experience with contracts of this magnitude.

May 2

In an interesting decision, the Court of Federal Claims held in DMS Imaging, Inc. that the Government was liable for damages to leased equipment under the "Risk of Loss" clause in an unsigned lease agreement that was attached to, and incorporated in, the basic contract, which was signed by both parties.

The GAO sustained the protest in Prism Maritime, LLC,  because (i) there was no basis in the record for SSA's evaluation that disagreed with all the negative findings of the evaluators; and (ii) the cost realism evaluation was flawed, and the SSA used the competitors' proposed, rather than evaluated, prices in making the source selection decision.

May 1

In Puget Sound Environmental Corp., the ASBCA held (i) it lacked jurisdiction over a claim for contract adjustment based on alleged misclassification of DOL wage rates because the DOL had not yet ruled on the proper classification, which was within the DOL's sole jurisdiction; and (ii) it had jurisdiction over another claim for adjustment based on allegations in the original claim that the Government had breached a delivery order by terminating it for convenience on the false pretext that it no longer needed the services but then  had continued to order the services from another firm. The complaint the contractor subsequently filed at the Board did not allege that the termination was in bad faith, but the Board noted that it was the language of the original claim that determined whether or not it had jurisdiction. 

In Lobar, Inc., the ASBCA temporarily stayed proceedings on an appeal from a deemed denial of a claim in order to allow the Contracting Officer time to issue a decision as a means to facilitate potential settlement of the claim.

In Shell Oil Co., the Court of Appeals for the Federal Circuit reversed the prior decision by the CoFC and held that the plaintiffs' avgas contracts required the Government to indemnify the contractors for their CERCLA clean-up costs.

April 30 GSAR Case 2014-G501: The GSA is proposing to amend its acquisition regulation (the GSAR) by removing the "Progressive Awards and Monthly Quantity Allocations" clause. 

GSAR Case 2013-G501: The GSA also is proposing to remove the "Qualifications of Offerors" clause. Comments on either proposal are due by June 30.

April 29

ICI, Services, Inc., won its GAO protest against the agency's rejection of its submission of a revised proposal by email to the Contract Specialist after the agency and several offerors had experienced problems with the SeaPort-e Proposal Event Website portal officially designated for receiving proposals, because (i) the offeror had received permission from the Contract Specialist to email the proposal revision directly to him, (ii) that email had been timely sent and received, and (iii) the protester timely complied with the agency's subsequent solicitation amendment  instructing all offerors to resubmit the proposal revisions to the SeaPort-e website portal.

Federal Acquisition Circular (FAC) 2005-73 has been issued. It includes only the following item (plus technical amendments):

FAR Case 2011-018: Effective May 29, this final rule amends the FAR to conform references throughout the FAR to the new Positive Law Codification of Title 41, United States Code, "Public Contracts" and to make other conforming changes. 

April 23

In Hughes Group, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that the incumbent lacked standing to protest discussions with the awardee leading to the new award because its low evaluation rating meant it had no substantial chance of receiving the award.

FAR Case 2014-001: A proposed would would amend the FAR to standardize the incorporation by reference of representations and certifications in contracts. Comments are due by June 23.

In Dyno Group, Inc., the ASBCA rejected multiple arguments made by the contractor against an assessment of liquidated damages for late completion of the contract work.

In Public Warehousing Co., K.S.C., the ASBCA granted the Government's motion to dismiss an appeal without prejudice pursuant to Rule 30 due to a pending criminal case in district court with overlapping issues.

April 21

In Hyperion, Inc., a successful post-award protest, the Court of Federal Claims held that there was no rational basis for the agency's conclusion that the awardees' proposals on a small business set-aside established that they would comply with the requirement in FAR 52.219-14 (Limitations on Subcontracting) that at least 50% of the cost of contract performance incurred for personnel would be expended by the awardees' employees.

DFARS Case 2013-D014: A final rule revises DFARS 252.232-7007 (Limitation of Government's Obligation) as part of DoD's project to create basic and alternate clauses structured in a manner to facilitate use of automated contract writing systems.

DFARS Case 2012-D057: Another final rule revises transportation-related clauses throughout the DFARS as part of the same project to facilitate use of automated contract writing systems.

DFARS Case 2013-D023: This final rule amends the DFARS to remove coverage concerning contracting officer’s representative responsibilities that is procedural in nature. 

DFARS Case 2014-D006: This final rule adopts, without change, the prior interim rule that 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. 

In Anthony Moore, the CBCA dismissed an appeal for failure to prosecute after the appellant missed several deadlines and extension to file a complaint.

In Eurasia Partners. LLC, the CBCA dismissed a claim for misdescription in an online auction because the appellant missed the 30-day deadline for filing the claim in the Property Descriptions clause by one day.

In NAICS Appeal of Rotech Healthcare, Inc., the SBA's OHA dismissed (for lack of standing) an appeal of the NAICS code designation for a small business set-aside by a firm that would not be small under either the NAICS code assigned to the procurement or the code it argued was the correct one.

In Size Appeal of Jenn-Kans Disposal Service, the OHA affirmed the dismissal of a protest as insufficiently specific because it contained only a broad suggestion that two firms might be affiliated.

In Size Appeal of NEIE Medical Waste Services, LLC, the OHA reversed the Area Office's finding of affiliation through the ostensible subcontractor rule because the prime contractor was experienced at the type of work involved in the contract, would manage the work, and would perform the majority of its primary requirements. In addition the Area Office's determination of what constituted the primary and vital work lacked a rational basis.

In Matter of Bartkowski Life Safety Corp., the OHA remanded a matter to the SBA for further review after the OHA determined that the SBA's refusal to admit a firm into the 8(a) program was not well-reasoned given that the firm (i) had offered examples of gender-motivated bias in all three phases of its principal's life, and (ii) had provided evidence that the social disadvantage allegedly caused by that bias had hindered and frustrated her entrepreneurial opportunities.

April 18

In Affiliated Construction Group, Inc., the Court of Federal Claims dismissed a claim because, as originally presented to the Contracting Officer, it covered a matter for which the contractor had assumed the risk in its fixed-price contract and, as articulated before the court, it was based on a different set of operative facts than any claim that had been submitted to the Contracting Officer, and, thus, was not ripe for review by the court.

April 17

GSAR Case 2010-G511: GSA is proposing to amend GSAR Part 511 (Describing Agency Needs)  to implement the Federal Supply Schedules Usage Act of 2010, the Native American Housing Assistance and Self-Determination Reauthorization Act of 2008, the John Warner National Defense Authorization Act for Fiscal Year 2007, and the Local Preparedness Acquisition Act for Fiscal Year 2008, in order to provide increased access to GSA’s Federal Supply Schedules. GSA is also amending GSAR Part 538 (Federal Supply Schedule Contracting) and Part 552 (Solicitation Provisions and Contract Clauses) to reflect these statutory initiatives. Comments are due by June 16.

The State Department has amended the ITAR to provide the defense trade policy regarding the Central African Republic to reflect certain resolutions adopted by the United Nations Security Council.

In NAICS Appeal of Information Ventures, Inc., a successful appeal, the SBA's OHA held that the appropriate NAICS code for the solicitation was 541611 (Administrative Management and General Management Consulting Services), with a size standard of $14 million average annual receipts, as opposed to 541712 (Research and Development in the Physical, Engineering, and Life Sciences (except Biotechnology)) because the solicitation was not one for research and development.

In Thefaf Al-Rafidain Contracting Co., the ASBCA denied the contractor's claim that the contract required the Government to order more work because the Government had satisfied the minimum order requirements the IDIQ contract.

In Esood Al Blad Co., the ASBCA held it lacked jurisdiction over an appeal involving an uncertified claim for $500,000.

April 16

GSAR Case 2012-G503: Effective May 16, a final rule amends the GSAR to reflect the GSA's use of the Industrial Funding Fee (IFF) collected under the MAS Program, which (i) includes uses specified in the Acquisition Services Fund and (ii) extends beyond the purposes currently stated in the GSAR. 

April 15

In McGoldrick Construction Services Corp., the GAO sustained the protest because the agency had improperly downgraded a proposal based on an unstated evaluation criterion concerning quality control staffing requirements.

April 12

In Lakeshore Engineering Services, Inc., the Court of Appeals for the Federal Circuit affirmed the prior CoFC decision and denied the contractor's claims because its fixed-price contract placed the risk of future cost increases on the contractor.

In Size Appeal of Irvine Sensors Corp., the SBA's OHA (i) dismissed (as untimely) an appeal filed more than 15 days after the Area Office's size determination and (ii) held there was no separate right to appeal the Area Office's refusal to reopen its size determination.

In Brasfield & Gorrie, LLC, the CBCA denied a contractor's motion for partial summary judgment because it was essentially a complaint about the Government's delays in auditing subcontractor claims, which was not a sufficient reason to grant those claims when there were still genuine issues of fact regarding them.

In Moshe Safdie and Assocs., the CBCA discussed in detail the standards for considering (i) the unique issues involved in contractor claims for extra work under a design contract and various specific claimed cost elements, including extra work by salaried employees and appropriate overhead rates; and (ii) the Government's counterclaim for alleged delays in providing an adequate design.

April 9

In WHR Group, Inc., et al., the Court of Federal Claims held that an agency's corrective action in response to an earlier GAO protest, i.e., canceling all awards and resoliciting the requirements for relocation services, was unreasonable because, inter alia, (i) the original protest had been against only one of the four awards; (ii) the Contracting Officer's conclusory musings in his notes to file concerning the advisability of removing a solicitation requirement for 100% financial capability as part of the corrective action did not amount to agency findings on the administrative record that would justify the step; and (iii) the proposed corrective action was more drastic than would have been required to address any alleged flaws in the evaluation or the terms of the solicitation, itself.

In Jordan Pond Co., LLC, an unsuccessful protest, the court held that (i) the agency's technical evaluation was not flawed in any significant way that prejudiced the protester, and (ii) the draft contract's failure to incorporate certain features from the awardee's proposal that the evaluators had found desirable was not objectionable.

April 8

In Ocean Ships, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that (i) the protester had not established how it was prejudiced by the agency's failure to amend a solicitation (and request revised offers) to take into account a 4% wage rate escalation that occurred after the submission of offers and that none of the offerors had taken into account in their proposals; and (ii) there were rational bases for the agency's technical, past performance, and best value evaluations.

In FCN, Inc., a successful post-award protest, the court held that the  Government improperly credited the awardee's proposal to utilize government-furnished property to perform significant aspects of the work, when the solicitation did not contemplate such an approach. Thus, the Government did not properly investigate, conduct a price realism analysis of, or follow FAR Part 45 procedures with regard to the awardee's proposed approach.

In Singleton Enterprises, the ASBCA dismissed an appeal filed more than 90 days after the contractor had sent the Government an email acknowledging its receipt of the Contracting Officer's decision.

April 7

In Size Appeal of DefTec Corp., the SBA's OHA held that the Area Office was unjustified in applying an adverse inference against a firm for failure to submit requested documentation because the firm reasonably believed that the issue in question had been resolved without the need to supply further information.

April 6

In Matter of Arima Capital, LLC, the SBA's OHA affirmed the SBA's decision terminating a firm from the 8(a) program for failure to submit required annual reporting documents.

In Size Appeal of Bull Moose Energy Ventures, LLC , the OHA affirmed a finding that a firm, together with its affiliates, was not small because it was not primarily engaged in the generation, transmission, and/or distribution of electric energy for sale, which was a requirement of the size standard applicable to the procurement.

April 5 In Raytheon Co., the Court of Appeals for the Federal Circuit affirmed the prior CoFC decision and held that (i) segment closing adjustments are not pension costs subject to the timely funding requirement of FAR 31-205.6(j); (ii) the Government bears the burden of proof that a contractor's accounting practices do not comply with the CAS; and (iii) the court lacked jurisdiction over the Government's claim for a downward equitable adjustment because there was no Contracting Officer's decision concerning that claim.

In Rollock Co., the Court of Federal Claims (i) held that the portion of a contract involving the sale of business scrap inventory was governed by the CDA, even though other portions of the contract were covered by Relocation Act; and (ii) rejected the Government's contention that the contractor failed to submit claims to Contracting Officer because the Government did not identify who that was, and the individuals to whom contractor had submitted claims had made several payments on them.

In Uniglobe General Trading & Contracting Co., W.L.L., the court held that, while one document sufficed as a final decision on one of the contractor's claims, a contract modification that did not (i) indicate it was a final decision, (ii) include a demand for payment, or (iii) inform contractor of its appeal rights was not sufficient to start the appeal clock running on another claim.

The EPA proposes to amend its acquisition regulation (EPAAR) to update policy, procedures, and contract clauses, including the "Ordering—By Designated Ordering Officers" clause and corresponding prescription. Comments are due by May 7.

In Kiewit-Turner A Joint Venture, the CBCA discussed the standards governing the public disclosure of (i) videotapes (and transcripts) of discovery depositions and (ii) procedural motions filed by the parties.

April 3

In Coulson Aviation (USA) Inc., et al., the GAO sustained the protest because the agency's agreement to award a sole-source contract to a firm in exchange for its withdrawal of a protest was not an adequate justification for a sole-source award.

April 2

FAR Case 2013-022: A proposed rule would amend the FAR to implement a section of the National Defense Authorization Act for Fiscal Year 2013 to extend the limitations on contractor employee personal conflicts of interest to apply to the performance of all functions that are closely associated with inherently governmental functions and contracts for personal services. Comments are due by June 2.

April 1

DFARS Case 2011-D045: DoD has issued a final rule amending Part 232 of the DFARS to provide detailed guidance and instructions on the use of the performance-based payments analysis tool, which is a cash-flow model for evaluating alternative financing arrangements, and is required to be used by all contracting officers contemplating the use of performance-based payments on fixed-price type contract awards. 

The DOE is proposing to amend its Acquisition Regulation (the "DEAR") (i) to define "contractor business system" to include the contractor's accounting system, estimating system, purchasing system, earned value management system , and property management system; and (ii) to implement compliance enforcement mechanisms in the form of a contractor business system clause and related clauses that includes a provision that would allow contracting officers to withhold a percentage of payments, under certain conditions, when a contractor’s business system contains significant deficiencies. Comments are due by June 2.

March 28

In Allen Engineering Contractor, Inc., the Court of Federal Claims dismissed a contractor's challenge to a default termination because none of its theories of recovery (mostly accusations that the Government had not properly investigated the bonds) excused its failure to submit valid performance and payment bonds.

DFARS Case 2013-D004: This final rule amends the DFARS  to create an overarching prescription in Part 246 for a quality assurance-related clause with two alternates. The rule also includes separate prescriptions for the basic and alternate clauses and includes the full text of each alternate.

DFARS Case 2013-D026: This final rule amends the DFARS to create an overarching prescription in Part 235 for a research and development-related clause with an alternate. The rule also includes separate prescriptions for the basic and alternate clause and includes the full text of the alternate clause.

DFARS Case 2014-D007: This rule amends the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2014 by extending the expiration date of the pilot program for the acquisition of military-purpose nondevelopmental items to December 31, 2019. 

DoD also has made some editorial corrections to various sections of the DFARS.

March 27

In DM Petroleum Operations Co., an unsuccessful post-award protest, the Court of Federal Claims held that the procuring agency exercised reasonable judgment in its evaluations of various aspects of the protester's and the awardee's proposals.

In Treasure Valley Forest Products, the CBCA dismissed an appeal as untimely because it was filed more than 90 days after the earliest date the contractor received the Contracting Officer's decision on its claim, even though the contractor had also received confirming copies of the decision on subsequent dates.

In Jane Kim & Co., the CBCA denied a lessor's claims for unpaid rent and damages to property because the leased building was untenantable due to problems not attributable to the Government as the lessee.

In CB&I Federal Services LLC, the CBCA denied the Government's motion to dismiss, holding that the complaint alleged claims sufficiently similar to those originally presented to the Contracting Officer to establish the Board's jurisdiction.

March 26

In CMS Contract Management Services, et al., the Court of Appeals for the Federal Circuit reversed a prior CoFC decision because (i) HUD's Performance-Based Annual Contribution Contracts are procurement contracts rather than cooperative agreements, and (ii) the agency acknowledged it did not follow procurement regulations in the conduct of the solicitation.

In Size Appeal of West Texas Power Co., the SBA's OHA dismissed, as untimely, an appeal filed more than 15 days after receipt of the underlying size determination.

March 25

In CCI, Inc., the ASBCA denied a Type I differing site conditions claim because (i) any absolute reliance on the limited and qualified indications concerning site conditions in the contract would have been unreasonable; (ii) the contractor did not prove it relied on those indications; and (iii) even if it did so, its interpretation of those indications was not reasonable.

FAR Case 2014-006: A proposed rule would amend the FAR to delete obsolete regulations relating to the year 2000 compliance. Comments are due by May 27.

The EPA is amending its acquisition regulations (EPAAR) to rescind sections relating to EPA’s policies for collecting and maintaining contractor past performance information because those sections are redundant in light of rules now included in the FAR. 

March 22

In CMI Management, Inc., an unsuccessful preaward protest of a firm's exclusion from the competitive range, the Court of Federal Claims (i) found rational bases for the agency's evaluations of various areas of the protester's proposal and also (ii) held that the willingness of one team of evaluators to overlook some weaknesses in other offerors' proposals in one area of the evaluation while a different group of evaluators had been unwilling to overlook shortcomings in the protester's proposal in a different area of the evaluation did not amount to  unequal treatment of offerors.

March 20

Effective April 21, the Department of the Treasury is amending its acquisition regulation (DTAR) to comply with the requirements of the Dodd-Frank Act by promulgating a clause for use in service contracts above the simplified acquisition threshold that commits the contractor to the "fair inclusion of women and minorities in its workforce."

In Manus Medical, LLC, a successful post-award protest, the Court of Federal Claims held that an agency's corrective action in response to a prior GAO protest (i.e., the agency's submission of a proposal that had omitted information required for a past performance evaluation to the SBA for a CoC review) was improper because the issue was a matter of responsiveness rather than responsibility.

In Agility Defense & Government Services, Inc., the court denied the contractor's express and constructive changes claims because they were precluded by a bilateral modification that required the contractor to perform work beyond the original completion date at no additional cost as consideration for extending the delivery schedule to avoid a default termination.

March 19

In Gerald R. Rouillard III dba International Gear Technologies, the ASBCA held that (i) the contractor was not entitled to attorney fees for the time period before an individual was retained as its attorney, but was assisting the contractor only as a contract specialist; (ii) the jury verdict method should be used to determine the portion of the contractor's legal fees that were recoverable on a partially successful appeal; and (iii) the EAJA award should not be reduced for mistakes made (or incorrect conclusions drawn) by the contractor's attorney in his legal research. 

March 15

Management and Training Corp. is the latest in what is becoming a long line of cases in which the Court of Federal Claims has denied protests by large businesses against the DOL's decisions to set aside contracts for the operation of various Job Corps Centers for small businesses.

March 14

In Weston/Bean Joint Venture, the Court of Federal Claims denied cross motions for summary judgment because of open questions of fact concerning a Differing Site Conditions claim.

In Woodies Holdings, LLC, the court used a detailed analysis of the history of the parties' dealings with one another to interpret whether they had reached an agreement on the application of a "Tax Adjustment" clause.

March 13

GSAR Case 2012-G501: Effective April 14, the GSA is issuing a final rule to amend its acquisition regulation (the GSAR) by adding 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.

In Bannum, Inc., an unsuccessful protest, the Court of Federal Claims held that a firm whose offer did not comply with a mandatory solicitation requirement (and was, therefore, nonresponsive) lacked standing to protest. In an interesting side note, the court also held that the Federal Circuit's decision in Blue & Gold Fleet does not require a formal preaward protest of a solicitation defect to the GAO or court: a letter addressed to the Contracting Officer and explicitly objecting to the solicitation's terms was sufficient to preserve the protester's right to later file a post-award protest against the terms in court, even if the original letter did not conform to all regulatory requirements for an agency-level protest. 

March 11

In Thorpe Seeop Corp., the ASBCA denied the contractor's motion for the sanction of a default judgment against the Government due to the Government's failure to file a timely answer.

March 9

In Kellogg Brown & Root Services, Inc., the Court of Federal Claims held that the contractor's indemnification requests submitted to the Contracting Officer involved monetary claims over which the court lacked CDA jurisdiction because they were neither stated in a sum certain nor certified.

March 8

In Solers Inc., the GAO sustained a protest because (i) the record was inadequate to establish a rational basis for the agency's evaluation of (a) the awardee's proposed labor mix for both the cost-reimbursable and fixed-price CLINs, and (b) the realism of the awardee's proposed level of effort for the fixed-price CLINs; and (ii) the procuring agency's arguments advanced only after the protest had been filed were not an adequate response to the protester's contention that the agency's original evaluation failed to credit its technical proposal for items that exceeded the solicitation requirements.

March 7

In Size Appeal of ReliaSource, the SBA's OHA affirmed the dismissal of a size protest related to a task order issued in response to an RFQ that did not require recertification under a long term contract.

In Size Appeal of Industria Lechera de Puerto Rico, Inc., the OHA affirmed the Area Office's finding that a firm was affiliated with the Commonwealth of Puerto Rico because government officials had the power to control the firm's parent company. 

In Omni Pinnacle, L.L.C., the CBCA dismissed an appeal for lack of CDA jurisdiction because a cooperative agreement between the Federal Government and a local Parish did not give rise to a procurement contract whereby the Federal Government received a direct benefit from the work of the appellant (the Parish's contractor).

In ACM Construction and Marine Group, Inc., the CBCA overturned a default termination and awarded the contractor termination for convenience costs because (i) the contractor's interpretation of a disputed contract requirement was the only reasonable interpretation; (ii) the Government's position that the contractor had failed to make progress did not take into account excusable delays due to the unexpected amount of rust encountered by the contractor; (iii) a government message to the contractor did not amount to a request for adequate assurances of performance; and (iv) the Government failed to produce any evidence that contractor had actually damaged government equipment.

March 6

In Carney, Inc.--Costs, after the agency took corrective action following the filing of the protester's comments on the agency report, the GAO limited the protester's  recovery of costs to a segregable protest ground that was clearly meritorious.

March 1

In Optimization Consulting, Inc., the Court of Federal Claims held, inter alia, that (i) the protester had waived its objections to the pricing model to be used in the evaluation by failing to protest prior to the deadline for the submission of proposals; and (ii) there was nothing improper in the evaluation panel's Past Performance rating of the protester, which (due, in part, to the personal knowledge of the situation by one of the evaluators) discounted the rating given the protester by its Contracting Officer on its prior contracts.

February 28

In Bay County, Florida, the Court of Federal Claims determined the quantum of late payment fees and Prompt Payment Act and CDA interest due on increased rates for water and sewer service charged to the Government by a Florida county.

DFARS Case 2013-D009: DoD has adopted as final, with changes, an interim rule amending the DFARS to implement two sections of the National Defense Authorization Act for Fiscal Year 2013 that (i) require compliance with domestic source restrictions for 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. 

DFARS Case 2013-D010: DoD has adopted as final, with changes, an interim rule amending the DFARS to implement statutory amendments to whistleblower protections for contractor and subcontractor employees.

DFARS Case 2012-D029: DoD has issued an interim rule amending the DFARS to implement authority for DoD to allow its litigation 
support contractors to have access to "sensitive information," provided that those contractors are subject to certain restrictions on using and disclosing such information. Comments are due by April 29.

DFARS Case 2013-D025: DoD is proposing to amend the DFARS (i) to create an overarching prescription for the "Tax Relief" clause with an alternate, (ii) to add a separate prescription for the basic clause, and (iii) to include in the regulation the full text of the alternate clause. Comments are due by April 29.

DoD is proposing  to amend the DFARS at Appendix A Part 2 to update the Rules of the Armed Services Board of Contract Appeals (ASBCA) by (i) revising and reordering the Rules for clarity and consistency, (ii) accounting for changes in technology, (iii) providing updated contact information, and (iv) adding two addendums. Comments are due by April 29.

DoD has also made some editorial corrections to the DFARS.

February 27

In K-CON Building Systems, Inc., the Court of Federal Claims held that the Coast Guard's default termination of an order under an FSS contract was invalid because the agency had not first complied with the requirement to submit the contractor's allegations of excusable delay to the GSA for its review. The court also decided several CDA jurisdictional issues concerning the Government's assessment of liquidated damages and the contractor's claim for remission of those damages.

In Ensley, Inc., the court held that (i) the lessor was responsible for unrepaired roof leaks in a building leased to the Postal Service, and (ii) the Postal Service was entitled to replace the roof and set off its costs against rent otherwise due the lessor and against payments otherwise due for real estate taxes.

February 24

In Akal Security, Inc., the CBCA denied the Government's motion to summarily dismiss an appeal for failure to state claims based on mutual mistake and breach of the duties to cooperate with the contractor and not to hinder its performance.

In Western States Federal Contracting, LLC, the CBCA dismissed an appeal for lack of standing because the appellant failed to prove it was an LLC in good standing in the state in which it was organized as a business entity.  

In Mahshid Nadiry, the CBCA dismissed an appeal for failure to prosecute after the appellant failed to respond to several orders from the Board.

In FRASSON LODOVICO, S.r.l., the ASBCA denied the Government's motion to dismiss (as untimely) an appeal filed more than 90 days after the date by which a prior board decision had ordered the Contracting Officer to issue his decision, in a situation where the Government allegedly had emailed that decision to what it believed was a representative of the contractor on the due date, followed by mailing a copy to the contractor's official address. The Board noted the contractor had done all that was required, which was to appeal within 90 days of the date it received the mailed decision. Part of the Board's reasoning was based on the fact that there is no statutory 90 day time limit for appealing from a deemed denial.

February 22

In Montano Electrical Contractor, the Court of Federal Claims dismissed a subcontractor's direct claim against the Government for lack of jurisdiction because it was neither sponsored nor passed through by the prime contractor.

Palafox Street Assocs., L.P. is a procedural mess that has left both the CBCA and the Court of Federal Claims completely flummoxed. The Government originally issued a final decision to withhold more than $800,000 from payments otherwise due the contractor. The contractor appealed to the CBCA. The Government moved to dismiss for lack of jurisdiction because the contractor had not filed its own certified claim. For some reason that completely escapes me, the CBCA did not summarily reject the Government's motion on the basis that the claim was the Government's rather than the contractor's, and, therefore, did not require certification. Instead, the Board ordered further briefing on that issue. Before the matter was fully briefed, the parties jointly moved to dismiss the appeal so that the contractor could file a certified claim, which it did. The Government issued a decision denying that claim; and the contractor then brought suit on both decisions in the Court of Federal Claims. The Government then reversed itself, admitted the first Contracting Officer's decision involved a government claim, and moved the court to dismiss that part of the suit because the contractor had already made a binding election to proceed before the CBCA. The court agreed. However, that left the suit on the second Contracting Officer's decision before the court, which now has asked for further briefing since it cannot seem to figure out how it can avoid jurisdiction over the second decision. Thus, both forums have been sufficiently bemused to request additional briefing, and I have no idea what happens from here on out in either one.

February 20

In The R. R. Gregory Corp., the ASBCA held that a claim for remission of liquidated damages filed more than six years after they were withheld was barred by the CDA's statute of limitations. Taj Al Rajaa Co. also ran afoul of the CDA's six-year statute of limitations. 

In Commissioning Solutions Global, LLC, the ASBCA dismissed a contractor's request for the Board to direct the Contracting Officer to issue a decision because the underlying claim did not state a sum certain that was being claimed. 

By means of Executive Order 13658, the President has, inter alia, established a minimum wage of $10.10 per hour for federal contractors beginning in January 2015, with a provision for regular cost of living adjustments thereafter.

February 17

In NAICS Appeal of Latvian Connection, LLC, the SBA's OHA dismissed an appeal of a NAICS code designation because it amounted to an argument that the procurement should have been set aside for small businesses, a type of claim over which the OHA lacks jurisdiction.

In G4S Technology LLC, the Court of Federal Claims held that the plaintiff, a subcontractor/vendor, had failed to establish it was an intended third party beneficiary of a loan and security agreement between the Government and a company that was to construct a wireless broadband network in various rural areas.

February 14

The GAO sustained a protest by C&D Construction, Inc., because the agency improperly waived a material IFB requirement for the awardee by ignoring a problem in its bid that resulted in the lack of a clear commitment to perform the optional scope of work.

In Size Appeal of Lukos-VATC  JV, LLC, the SBA's OHA held that the Area Office had correctly concluded that a JV's member firms were affiliated because their mentor-protégé agreement had not been approved until two days after the JV submitted its offer on the procurement in question.

February 13

The Court of Federal Claims is redoing its website, which increases the possibility some of my links will break as URLs are revised. Anytime you spot a broken link, I would appreciate you letting me know because, of course, the court does not announce when it is changing the URLs, so I have to keep checking them regularly, and I often don't pick up on the changes immediately. Thank you. 

February 12

Effective March 14, the Federal Highway Administration is revising its regulations at 22 C.F.R. Part 636 related to the use of alternative technical concepts (ATC) in design-build project delivery of highway construction in order to eliminate the requirement to submit a base proposal when a contracting agency allows design-build proposers to submit ATCs in their technical and price proposals. 

DoD is requesting input from industry (by March 14) concerning any impacts from complying with any contracting statutes that the responders feel do not achieve the intended benefit of the legislation.

DFARS Case 2013-D005: DoD is proposing to amend the DFARS (i) to create separate prescriptions for the basic clause (as well as each alternate) in each set of foreign acquisition-related provisions/clauses with one or more alternates, and (ii) to include the full text of each provision or clause alternate. Comments are due by April 14.

February 11

The GAO sustained a protest by Iyabak Construction, LLC, against the terms of a solicitation as unduly restrictive of competition because the agency failed (despite repeated opportunities to do so) to articulate a rational basis for the solicitation's statement that the experience and past performance of an offeror's affiliates would not be considered in the evaluation, even with firm commitments from them to perform a meaningful part of the work.

In Metcalf Construction Co., the Court of Appeals for the Federal Circuit vacated a prior CoFC decision because the lower court had misused a legal standard in rejecting a claim. Specifically, the appeals court held that proving a breach of the implied duty of good faith and fair dealing does not always require the plaintiff to establish that the Government's actions were "specifically targeted" to reappropriate a benefit guaranteed by the contract to the plaintiff.

February 10

In B&B Medical Services, Inc., the Court of Federal Claims dismissed a protest as moot because a recently revised regulation will result in the protester being considered an eligible small business despite its differences with the Government over the proper interpretation and application of the non-manufacturer rule. In other words, no harm, no foul.

In Size Appeal of Drace Anderson Joint Venture, the SBA's OHA granted a size appeal because the Area Office, without explanation, had failed to consider whether a firm was eligible for an exception to the normal rules of affiliation as a mentor-protégé joint venture under 13 C.F.R. § 121.103(h)(3)(iii).

In Size Appeal of TISTA Science and Technology Corp., the OHA held that, for a set-aside task order solicitation under an FSS contract, the Area Office correctly determined a firm's size as of date of its most recent certification under the main FSS contract because (i) the task order solicitation did not explicitly require recertification, and (ii) 15 U.S.C. § 632(w)(2) should not be interpreted to mean that the mere submission of an offer constitutes a recertification.

In Demodulation, Inc., the Court of Federal Claims vacated two prior rulings on substantive motions to enable the parties to make a fresh start after the previous judge disqualified herself based on a prior acquaintance and professional relationship with a potential fact witness in the case.

In Gottfried Contracting, LLC, the CBCA denied an  appeal because the contractor had not inquired regarding a patent ambiguity in the contract prior to bidding.

In Carlet B. Merrell, the CBCA denied an appeal by a disgruntled purchaser of a vehicle at auction because she had chosen not to take advantage of the opportunity to inspect the vehicle before bidding. 

In Toma West Management Corp., the CBCA dismissed an appeal for lack of jurisdiction because the appellant (the managing agent of the contractor) had no contractual relationship with the Government.

In 633 17th Street Operating Co., LLC, the CBCA interpreted a lease to determine the Government's proper share of a building's property taxes.

February 9

Drafting protests is largely a matter of stepping carefully through a crowded mine field. In Innovative Management Concepts, Inc., the Court of Federal Claims dismissed (for failure to state a claim upon which relief could be granted) a suit essentially claiming that a prior GAO protest decision lacked a rational basis. The court noted it does not function as an appellate court from the GAO and that the protest should have been framed as a direct challenge to the underlying agency procurement action. 

February 7

In Crewzers Fire Crew Transport, Inc., the Court of Appeals for the Federal Circuit affirmed the prior CoFC decisions that a BPA is not a binding contract that gives rise to Tucker Act jurisdiction.

February 6

In Safety Training Systems, Inc., the ASBCA held that (i) the contract placed the risk of increased shipping costs on the contractor; (ii) application of the Christian doctrine to incorporate FAR 52.245-2 (Government Property) was inappropriate in a contract for commercial items; (iii) there was, however, an implied warranty that government-supplied equipment would be fit for its intended use; and (iv) the contractor was entitled to only 10 days of compensable delay because its evidence of the duration of delays caused by the breach of that implied warranty was "spotty."

In DayDanyon Corp., the ASBCA (i) rejected the contractor's contention that the Government had breached the contract by failing to order some supplies within a time that would have permitted delivery within 2 years of award and (ii) held that, where the FAR 52.216-18 "Ordering" clause defined the period for ordering supplies as the "DATE OF CONTRACT AWARD . . . THROUGH: TWO (2) YEARS," and the FAR 52.216-22(d) "Indefinite Quantity" clause provided that "the Contractor shall not be required to make any deliveries under this contract after Two Years," the clauses, having different purposes, were not in conflict, and, even if they had been, they would have created a patent ambiguity about which the contractor should have inquired prior to bidding. I wish the Board had described (i) what those differing purposes were and (ii) how it read the two clauses in harmony with one another.

February 4

In Kellogg Brown & Root Services, Inc., the Court of Appeals for the Federal Circuit affirmed the CoFC's determination that the costs in a subcontractor's change order proposal were not reasonable (and, therefore, were not allowable when claimed by the contractor under its cost-reimbursable contract) as a result of the contractor's gross negligence in approving the proposed costs.

The GAO sustained a protest by Motorola Solutions, Inc., because the awardee's proposal did not include required evidence that it could actually obtain the equipment it proposed to use, which was material to the acceptability of its proposal.

February 1

In Balad Alshemal Earth Co., the ASBCA dismissed an appeal for lack of jurisdiction because the contractor disavowed any connection with purported appeal notice.

FAR Case 2012-022: A proposed rule would amend the FAR to implement revisions made by the SBA to its regulations implementing section 8(a) of the Small Business Act, and to provide additional FAR coverage regarding protesting an 8(a) participant’s eligibility or size status, procedures for releasing a requirement for non-8(a) procurements, and the ways a participant can exit the 8(a) Business Development program. Comments are due by April 4.

DFARS Case 2013-D033: A final rule revises the DFARS to remove and reserve item 19 of the solicitation provision at DFARS 252.215–7009 (Proposal Adequacy Checklist), which required price analyses for all commercial items offered that are not available to the general public, because DOD has now determined this item is duplicative and is addressed by other requirements. 

January 31

In Sentrillion Corp., an unsuccessful post-award protest, the Court of Federal Claims held that the procuring agency had properly evaluated the protester's and the awardee's proposals under the solicitation's requirements for evidence of partnership agreements and business licenses.

The Commerce Department's Bureau of Industry and Security ("BIS") has issued a proposed rule to implement provisions in the Defense Production Act Reauthorization of 2009, specifically (i) to clarify existing standards and procedures by which the BIS may require that certain contracts or orders that promote the national defense be given priority over other contracts or orders; (ii) to incorporate new standards and procedures for such prioritization with respect to contracts or orders for emergency preparedness activities; and (iii) to incorporate new standards and procedures by which the BIS may allocate materials, services and facilities to promote the national defense. Comments are due by April 1.

January 30

In U.S.I.A. Underwater Equipment Sales Corp., the CBCA (i) upheld a termination for cause after the Government's tests showed leaking dry suits, but (ii) dismissed the Government's claim for excess reprocurement costs as premature because it was not yet the subject of a written decision by the Contracting Officer.

January 29

In Kardex Remstar, LLC, the GAO rejected the agency's contention that it had only engaged in clarifications with the protester and then sustained the protest because the agency had failed to alert the protester to a deficiency during discussions that rendered its quotation unacceptable.

In Northrop Grumman Corp., the ASBCA upheld the Government's disallowance of post-retirement benefit costs under FAR 31-205.6(o) because the costs were not accrued using GAAP/FAS 106 and were not timely funded. Subsequently, the Board denied the contractor's motion for reconsideration.

In Hanley Industries, Inc., the ASBCA held that, for purposes of the CDA's statute of limitations, the claim did not accrue until the Government advised the contractor of the Government's interpretation of the disputed contract requirement.

In K-Con Building Systems, Inc., the Court of Federal Claims dismissed the plaintiff's constructive change claims because it had  failed to provide written notice to the Government of the alleged changes as required by FAR 52.242-14.

DFARS Case 2013-D016: An interim rule amends the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2013, which prohibits DoD from entering into cost-type contracts for production of major defense acquisition programs. Comments are due by March 31.

DFARS Case 2013-D029: DoD is proposing to amend the DFARS to incorporate policies and procedures concerning payment for contracts for performance in Afghanistan. Comments are due by March 31.

DFARS Case 2013-D013: DoD is proposing to amend the DFARS to conform with statute, amend the clause prescriptions, and update the basic and alternate clause for the prohibition on storage, treatment, and disposal of toxic or hazardous materials. Comments are due by March 31.

The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to harmonize it with revisions made to the Census Bureau’s Foreign Trade Regulations (FTR) by correcting citations, nomenclature, and procedures set forth in the EAR. 

January 28

In Adams and Assocs., the Court of Appeals for the Federal Circuit affirmed CoFC decisions that the DOL acted within its statutory and regulatory authority in setting aside Job Corps procurements for small businesses.

January 25

In Piquette & Howard Electric Service, Inc., the GAO sustained the protest because, after the initial evaluation, an agency conducted discussions with the eventual awardee and then allowed only that firm to revise its technical proposal, which resulted in a reevaluation.

January 23

In Teledyne Brown Engineering, Inc., which should be a fascinating case when it reaches a decision on the merits, the ASBCA denied the Government's motion for summary judgment that, because a cost-plus-fixed fee contract had only been funded to approximately half of its ceiling cost, the contractor could not possibly be entitled to its full fixed fee.  

In All Star Technical Services, Inc., the ASBCA held that, as a matter of contract interpretation, a contract clause covering the responsibility for damage to the specific item in dispute controlled over another clause covering responsibilities for damage in general.

January 17 In Group Health Incorporated on Behalf of Douglas Consulting & Computer Services, Inc., the CBCA held that (i) a certification made by the prime contractor sponsoring its subcontractor's termination for convenience claim was CDA compliant; and (ii) no subcontract provision immunized the prime from liability to the sub, and, therefore, the claim was not barred by the Severin doctrine. I thought it might be useful to quote the three-paragraph certification that the CBCA explicitly approved (substituting generic descriptions for the actual names of the prime and the sub): 

I certify that this claim is made in good faith by [the prime contractor]; that the supporting data
are accurate and complete to the best of [the prime contractor's] knowledge and belief; that the
amount requested accurately reflects the contract adjustment for which [the prime contractor]
believes the Federal Government is liable; and that I am duly authorized to certify the claim on
behalf of [the prime contractor].

This claim is being filed on behalf of [the prime's] subcontractor, [name of sub], and inasmuch as
[the subcontractor] does not have privity with the Government, [the prime contractor] is acting as
a conduit on [the subcontractor's] behalf in this matter. [The prime contractor] does not have access 
to [the subcontractor's] books and records and, therefore, cannot make any statement with respect
to the amount of [the subcontractor's] claim. However, [the prime contractor] has no reason to
believe that [the subcontractor's] cost figures and supporting data are inaccurate or incomplete.

See Transamerica Ins[urance] Corp. v. United States, 973 F.2d 1572, 1575 (Fed. Cir. 1992)
(holding that substantially similar language complies with the certification requirements of the
Contract Disputes Act, 41 U.S.C. § 7103(b), formerly codified at 41 U.S.C § 605(c)(1).

The reference to the Transamerica decision was a part of the certification.

January 16 In Size Appeal of BA Urban Solutions, LLC, et al., the SBA's OHA affirmed the Area Office's denial of size protests because (i) the protested firm's size was correctly determined as of date of its initial offer; (ii) the Area Office correctly based its calculation of receipts on the period of measurement specified in 13 C.F.R. 121.104(c)(3) rather than (c)(2) because the protested firm had been in business for three complete fiscal years, one of which was a "short year"; and (iii) the Area Office correctly concluded there was no affiliation through negative control.

In Size Appeal of TLS Contracting, Inc., the OHA held that the SBA had properly added the cost of goods sold to a corporation's total income to derive its receipts for purposes of determining its size.

In NAICS Appeal of Latvian Connection, LLC, the OHA dismissed (as premature) a NAICS appeal based on a sources sought synopsis because the formal solicitation had not yet been issued.

In Matter of Battalion, LLC, the OHA affirmed a finding that a protested firm was not an eligible SDVOSB because its SDV and majority owner was a full time employee of another firm controlled by the protested firm's minority owner. 

In Size Appeal of RELM Communications, Inc., the OHA held that a protest alleging only that a procurement was subject to nonmanufacturer rule and providing no explanation how the protested firm allegedly ran afoul of that rule was  properly dismissed as insufficiently specific.

In Size Appeals of Real Estate Resource Services, Inc. and OneSource REO, LLC, the OHA held that (i) the Area Office properly concluded firms were not affiliated because the former affiliation ended well before the date of size certification; and (ii) the Area Office had no obligation to investigate a possible affiliation issue not raised in the original protests.

In NAICS Appeal of The U.S. Small Business Administration, a successful protest, the OHA held that the correct NAICS Code for RFPs for a broad range of support equipment was 334419 (Other Electronic Component Manufacturing), with a corresponding size standard of 500 employees, rather than 541330 (Engineering Services).

January 15

In SRA International, Inc., the Court of Federal Claims held that FASA's limitations on task order protests did not deprive the court of jurisdiction over a claim that an agency's use of FAR 9.503 to waive an OCI was ineffective. The court (using arguments that seem strained to me) held that the protest did not involve the alleged violation of a regulation occurring "in connection with" the issuance of a task order even though the agency had made the waiver specifically in order to get rid of the protest and to get on with this particular procurement. Subsequently, the Court of Appeals for the Federal Circuit vacated the decision, and, finally, the Court of Federal Claims dismissed the case.

January 14

In RLB Contracting, Inc., the ASBCA used the jury verdict method, rather than a total cost approach, to determine the quantum of excess costs resulting from the requirement that a contractor move an excavation pit from the location it had anticipated in bidding the job.

January 13

Wyle Laboratories, Inc., won its GAO protest because the procuring agency did not evaluate any effects of the awardee's disclosed plans to split itself into two companies, one of which would actually perform the contract.

January 9

In Size Appeal of NiSUS Technologies Corp., the SBA's OHA dismissed a size appeal as untimely, even though it was timely served on all the interested parties except the OHA.

In Size Appeal of Continental Solutions, Inc., the OHA dismissed an appeal filed more than 15 days after the firm was sent an  emailed notice of a size determination.

January 8

In Bell/Heery, A Joint Venture, the Court of Appeals for the Federal Circuit (over a lengthy dissent) affirmed the Court of Federal Claims' prior decision  dismissing a suit because a contract's "Permits and Responsibilities" clause placed the total responsibility on the contractor to comply with all requirements for obtaining a state environmental permit and did not require the Government to assist it in doing so.

January 7

In Size Appeal of US Builders Group, the SBA's OHA held that the Area Office erred finding firms affiliated through common management and identity of interest even though husband, wife, and daughter held various ownership interests and positions in the firms. However, in Size Appeal of Seacon Phoenix, LLC, the OHA affirmed the Area Office's finding of affiliation through identity of interest because two individuals shared common investments in a group of companies.

In Size Appeal of EnviroServices & Training Center, LLC, the OHA affirmed the Area Office's dismissal of a size protest as untimely because emails sent within the required five-day period were not sufficiently specific to notify the Contracting Officer that a protest was intended.

January 6

In Coastal Environmental Group, Inc., the Court of Federal Claims granted the agency's request to dismiss a protest against an award as moot because the agency had canceled the award. However, the court granted the protester leave to file a supplement complaint to challenge the agency's decision to cancel the original procurement.

In Estes Express Lines, the Court of Appeals for the Federal Circuit held that a bill of lading was sufficient to establish privity of contract between a motor carrier and the Government.

In Walterboro Motor Sales Co., the CBCA denied the purchaser's claim for the cost of repairs to a vehicle purchased at a government auction because the vehicle had not been misdescribed in the auction materials.

January 1, 2014 Happy New Year! 

Effective July 1, the Commerce Department's Bureau of Industry and Security (BIS) is (i) implementing four previously proposed rules and adding Export Administration Regulations (EAR) controls on energetic materials, personal protective equipment, shelters, military training equipment, articles related to launch vehicles, missiles, rockets, military explosives, and related items that the President has determined no longer warrant control on the United States Munitions List (USML); (ii) adding EAR controls on items within the scope of the Munitions List (WAML) of the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies that are not specifically identified on the USML or the Commerce Control List (CCL), but that were subject to USML jurisdiction; and (iii) moving certain items that were already subject to the EAR to the new Export Control Classification Numbers (ECCNs) created by this rule. This rule is being published in conjunction with the publication of a State Department's Directorate of Defense Trade Controls rule revising USML Categories IV, V, IX, X, and XVI to control those articles the President has determined warrant control in those categories of the USML. 

The BIS also is correcting a final rule concerning changes to the EAR that appeared in the July 8, 2013, issue of the Federal Register (78 FR 40892), which becomes effective on January 6. The State Department has issued a parallel set of corrections to its rule related to the USML. 


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