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.
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.
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.
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.
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.
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.
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.
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
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
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
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.
of Industry and Security is amending the Export Administration
Regulations (EAR): (i) to expand national security controls on certain
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.
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
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.
Effective January 15, 2015,
the EPA is amending its acquisition regulation (the EPAAR) to incorporate a
class deviation to
1552.209–73 (Notification of Conflicts of
Interest Regarding Personnel) and 1552.227-26 (Project Employee
and their respective prescriptions,
to include Alternate 1 for the
subcontract flow-down requirements for other
than Superfund work.
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.
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.
has amended its acquisition regulation, the EPAAR, to update policy, procedures, and contract
clauses, including the " Work
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.
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.
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.
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.
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
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.
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,
2005-79 has been published and includes the following two
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.
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.
In Size Appeal
of Kisan-Pike, A Joint Venture, the SBA's OHA affirmed
Area Office's finding that two firms were affiliated by virtue of
venture agreement because the provisions of the agreement between a mentor and
8(a) protégé did not meet the requirements of 13 C.F.R. §§ 124.513(c)
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
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.
Case 2013-D038: A final rule amends the DFARS to comply with the
DoD Instruction that addresses the use of animals in DoD programs.
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
Case 2015-D001: A final rule amends the DFARS to eliminate the requirement
for quarterly reporting of actual contract performance outside the United States.
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.
Case 2012-D035: A final rule amends the DFARS to provide guidance to
contractors for the submittal of forward pricing rate proposals.
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.
Case 2014-D013: A final rule amends the DFARS to remove duplicative
CAGE code instructions and an associated clause.
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.
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.
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.
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.
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
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.
of Government Ethics is revising various departmental component
designations for purposes of applying post-employment
conflicts of interest restrictions.
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.
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 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
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.
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.
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.
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.
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.
Worldwide Services, Inc., the ASBCA issued an order
directing the Contracting Officer to issue a decision on the
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
Al Sahab & Co., the ASBCA granted the Government's
motion to dismiss for failure to submit proper CDA claims to
the Contracting Officer.
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
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.
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.
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.
Acquisition Circular (FAC) 2005-78
has been published and includes the following four items (plus
Case 2014-001: Effective December 26, a final rule amends
the FAR to standardize the incorporation by reference of
representations and certifications.
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.
Case 2014-006: Effective December 26, a final rule amends
the FAR to delete obsolete provisions related to year 2000
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.
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.
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.
Financial Services, Inc., the Court of Federal Claims
dismissed a protest as moot after the Government decided to
take corrective action.
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
& Gorrie, LLC, the CBCA imposed significant sanctions
against the VA for repeated discovery delays and failures to
comply with the Board's discovery orders.
Services Corp., the CBCA dismissed (as untimely) an appeal
filed 91 days after receipt of the Contracting Officer's
sustained the protests by Computer
Sciences Corp., et al. because the agency's cost
realism, past performance, technical, and tradeoff evaluations
were all flawed.
& 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.
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.
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
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
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
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
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.
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
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.
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.
Express International won its GAO protest against the
price evaluation methodology stated in a solicitation because
it was ambiguous.
of Industry and Security has published a final rule that makes
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.
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.
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
emailed "snapshot" report from a business
development specialist at the agency showing the awardees for
numerous task orders, including the one in question.
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.
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.
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,
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
GSA has amended the GSAR to remove
clause 552.214–71 ("Progressive
Awards and Monthly Quantity Allocations").
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.
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
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.
GSA has amended its
acquisition regulation (the GSAR) to remove clause
552.237–70 ("Qualifications of
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.
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.
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.
2005-77 has been published and includes the following
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.
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.
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.
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.
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
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
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.
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
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.
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
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
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.
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
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
Department of State has made various revisions,
corrections, and clarifications to the ITAR.
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.
December 8, the DOL is issuing a final rule implementing the
requirements of Executive Order 13658 establishing a
wage for workers on covered federal contracts.
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
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."
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
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
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.
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]
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.
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.
Appeal of B&B Medical Services, Inc., the SBA's
OHA upheld the Contracting Officer's determination that a
home oxygen services and ventilation belonged under NAICS
621610 (Home Health Care Services) rather than 532291 (Home
Health Equipment Rental).
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.
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.
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
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.
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.
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.
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
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.
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,
the SBA's OHA held that 13 C.F.R. §
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
Size Appeal of Phoenix
Environmental Design, Inc., the OHA affirmed the Area
Office's size determination because the protester
evidence or explanation for its allegations that affiliation existed
between two firms based
on common management, identity of interest, or the newly organized
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.
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
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
Size Appeal of Phoenix
Environmental Design, Inc., the SBA's OHA affirmed the Area
Office's dismissal of a size protest as speculative and
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
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
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.
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
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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
negative finding of social disadvantage, economic
disadvantage, ownership or control.
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.
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.
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.
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
offeror proposing BEB solutions reflecting untested designs
and/or unvalidated designs, or only partially tested design,
will be evaluated at higher risk.
lack of test data for the proposed configuration/components
will be considered higher risk.
corrective actions or design changes which are either untested
or partially tested may increase risk.
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
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.
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.
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.
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.
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.
(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.
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.
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.
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
Simulator Co., the ASBCA dismissed a subcontractor's
attempt at a direct (unsponsored) appeal from a prime
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.
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.
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.
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
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
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.
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.
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.
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.
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
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
it had terminated the protested contract for convenience.
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
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.
& 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.
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
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
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
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
by the Court of Federal Claims (see October 7 entry
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.
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.
Appeal of Industrial Support Service, LLC, the OHA
affirmed the Area Office's finding of affiliation by identity
of interest among various family members.
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
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.
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.
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.
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
In Abdul Ahad Khadim Construction Company,
the ASBCA held it lacked CDA jurisdiction over an
uncertified claim in excess of $100,000.
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
the contractor's request for reconsideration.
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
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.
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.
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
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.
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.
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.
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.
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.
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]."
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
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.
September 2, the USDA is amending its regulations concerning
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
Acquisition Circular ("FAC") 2005-76
has been published and includes the following three items,
plus technical amendments:
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.
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.
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.
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.
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.
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
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.
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
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.
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
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.
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.
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. . . .
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.
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.
amend its acquisition regulation (the EPAAR) to update policy, procedures, and
EPAAR clause 1552.211–74 ("Work Assignments").
Comments are due by August 18.
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
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
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,
Department of Education is proposing extensive revisions to
regulation to update it to accurately implement FAR and Department policies.
Comments are due by September 15.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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
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.
Procurement Review is up, through June 30.
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
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.
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.
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.
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
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.
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.
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.
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.
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
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
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.
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.
Appeal of AeroSage, LLC, the SBA's OHA dismissed, as
moot, a NAICS appeal filed after contract award.
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.)
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
has been published and includes the following three items:
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.
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
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
With a conclusion
tailor-made for a blog summary, the Court of Federal Claims
granted a protest by Laboratory Corporation of
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.
Case 2013-D027: A final rule amends the DFARS to clarify the meaning of the
phrase "congressional defense committees."
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.
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.
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.
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.
old man needs a nap.
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.
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
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?
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
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.
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.
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.
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
Size Appeal of Knight
Networking & Web Design, Inc., the OHA held the
Area Office correctly found affiliation through identity of
interest among family members.
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.
The SBA is
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.
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.
Case 2013-002: A proposed rule would amend the FAR to require
expanded reporting of nonconforming items.
Comments are due by August 11.
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.
Business Services, LLC, the CBCA dismissed an appeal based
upon an alleged breach of a BPA because a BPA is not a
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.
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.
In Size Appeal of
Stronghold Engineering, Inc., the SBA's OHA held that
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.
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.
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.
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.
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.
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.
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.
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.
& Griffin Exploration, LLC, the court held, inter
alia, that the Government had breached a contract to
convey a valid leasehold interest to the plaintiff.
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.
Acquisition Circular (FAC) 2005-74
has been published and includes the following five items:
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.
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.
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.
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
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.
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
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.
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
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.
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
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.
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.
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
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)
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
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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
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
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
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.
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.
Case 2014-G501: The GSA is proposing to amend its
acquisition regulation (the GSAR) by removing the "Progressive Awards and Monthly
Quantity Allocations" clause.
Case 2013-G501: The GSA also is proposing to remove the
"Qualifications of Offerors" clause. Comments on
either proposal are due by June 30.
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
Acquisition Circular (FAC) 2005-73
has been issued. It includes only the following item (plus
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.
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.
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.
Group, Inc., the ASBCA rejected multiple arguments made by
the contractor against an assessment of liquidated damages for
late completion of the contract work.
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.
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.
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.
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
Case 2013-D023: This final rule amends the DFARS to remove coverage concerning
contracting officer’s representative responsibilities that is procedural in
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.
Moore, the CBCA dismissed an appeal for failure to
prosecute after the appellant missed several deadlines and
extension to file a complaint.
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.
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.
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.
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.
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
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.
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.
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
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
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
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.
Al Blad Co., the ASBCA held it lacked jurisdiction over an
appeal involving an uncertified claim for $500,000.
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.
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
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.
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.
& 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.
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.
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.
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.
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
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
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
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
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.
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.
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
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.
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
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.
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.
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.
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.
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
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
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
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.
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.
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.
has made some editorial
corrections to various sections of the DFARS.
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
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
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.
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.
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.
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.
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
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
performance information because those sections are
redundant in light of rules now included in the FAR.
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.
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."
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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
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.
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
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
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
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.
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.
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.
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.
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.
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.
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.
also made some editorial
corrections to the DFARS.
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.
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
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.
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.
Nadiry, the CBCA dismissed an appeal for failure to
prosecute after the appellant failed to respond to several
orders from the Board.
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
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.
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
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
Al Rajaa Co. also ran afoul of the CDA's six-year statute
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.
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.
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.
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.
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.
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.
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.
March 14, the Federal Highway Administration is revising its regulations
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
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
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.
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
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
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
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
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).
Appeal of TISTA Science and Technology Corp., the OHA held
that, for a set-aside task order solicitation under an FSS contract,
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.
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.
Contracting, LLC, the CBCA denied an appeal because
the contractor had not inquired regarding a patent ambiguity
in the contract prior to bidding.
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
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
17th Street Operating Co., LLC, the CBCA interpreted a
lease to determine the Government's proper share of a
building's property taxes.
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.
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
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."
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.
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
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.
Alshemal Earth Co., the ASBCA dismissed an appeal for lack
of jurisdiction because the contractor disavowed any
connection with purported appeal notice.
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.
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
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
& 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.
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.
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.
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
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
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).
reference to the Transamerica decision was a part of
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.
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.
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
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.
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.
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
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).
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
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.
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.
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.
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.
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
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.
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.
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.
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
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
Happy New Year!
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.
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.