December 31 |
Federal Acquisition Circular (FAC)
2005-86 has been published and includes the following four
items:
FAR Case 2015-019: Effective February 1, 2016, a final rule
amends FAR 2.101 to define "multiple-award" contract.
FAR Case 2015-034: Effective February 1, 2016, a final rule
amends the FAR to add Montenegro and New Zealand as new
designated countries under the World Trade Organization
Government Procurement Agreement and update the list of parties
to the Agreement on Trade in Civil Aircraft.
FAR Case 2016-001: Effective January 1, 2016, a final rule
amends the FAR to incorporate revised thresholds for application
of the World Trade Organization (WTO) Government Procurement
Agreement (GPA) and the Free Trade Agreements (FTAs), as
determined by the United States Trade Representative.
FAR Case 2015-032: An interim rule amends the FAR to
implement regulatory changes made by the SBA that provide for
authority to award sole-source contracts to economically
disadvantaged women-owned small business concerns and to
women-owned small business concerns eligible under the
Women-Owned Small Business Program. Comments are due by February
29, 2016.
In
Nelson, Inc., the ASBCA overturned
several default terminations because, inter alia, no
notice to proceed was ever issued for work at two of the
contract sites, and the Government had not granted the
contractor time extensions to which it was entitled at other
sites. |
December 30 |
DFARS Case 2016-D003: Effective January 1, 2016, a
final rule amends the DFARS to incorporate increased thresholds
for application of the World Trade Organization Government
Procurement Agreement and the Free Trade Agreements, as
determined by the United States Trade Representative.
DFARS Case 2014-D003: A final rule amends the DFARS to
notify contractors of requirements relating to Afghanistan taxes
for contracts performed in Afghanistan.
DFARS Case 2013-D018: An interim rule amends the DFARS to
provide contractors with additional time to implement security
requirements specified by a National Institute of Standards and
Technology Special Publication. Comments are due by
February 29, 2016.
DFARS Case 2015-D021: A proposed rule would amend the DFARS
to consolidate requirements that are applicable to DoD
contracts for private security functions performed in designated
areas outside the United States, make changes regarding
applicability, and revise applicable quality assurance
standards. Comments are due by January 29, 2016.
DFARS Case 2015-D009: A proposed rule would amend the DFARS
to to implement a section of the National Defense Authorization
Act for FY 2015 and a section of the Department of Defense
Appropriations Act for FY 2015, which address various
requirements for multiyear contracts. Comments are due by
February 29, 2016.
Effective July 1, 2016, a final rule
issued by NOAA's National Marine Fisheries Service establishes a
single small business size standard of $11 million in annual
gross receipts for all businesses in the
commercial fishing industry (NAICS 11411), for Regulatory
Flexibility Act compliance purposes only.
In
Matter of VetPride
Services, Inc., the SBA's OHA affirmed the SBA's finding
that a firm was a qualified SDVOSB because the record
established that a service-disabled veteran was its
highest-ranking officer.
December 29 |
In Size
Appeal of Sea Box, Inc.,
although the SBA's OHA denied a size appeal on the grounds
advanced by the protester, it nevertheless remanded the case to
the Area Office to determine whether the awardee complied with
the fourth element of the nonmanufacturer rule on the basis of
the subcontractor the awardee had included in its proposal
rather than new subcontractor it had proposed after the size
protest was filed. (By the way, unless I am misreading the
decision, I think the judge used the term "Appellant" a couple
of times on the last page of this opinion when he meant to refer
to the awardee, instead.)
In
Size Appeal of Western
River Restoration Partners, the OHA held that the Area
Office had properly used a nonprofit affiliate's tax return to
calculate its total receipts, rather than using other records to
reduce those receipts, as had been suggested by the appellant.
|
December 28 |
In
Diversified Construction of Oklahoma, the ASBCA denied a claim for
reformation of the contract price of a mowing contract because:
(i) the contractor's
reduction of its original bid priced during negotiations was not
the result of any misrepresentation by the Government concerning
the amount of mowing
that would be required because the Government's negotiator was simply
using the Government's IGE; and (ii) the contractor had not
established that it had reasonably relied rely on the Government's
representation because the contractor's own evaluation of the cost of the job, the
advice of three experienced people it had consulted, and a site visit all showed
that a
higher cost would be involved.
Lockheed Martin Services, Inc. involves complicated issues
of contract interpretation but basically holds that, in a
contract for the performance of the Government's
retired/annuitant pay system during which the contractor
voluntarily developed and implemented a new system to replace
the outdated government system, the contract did not prohibit
the contractor's recovery for a license fee and other costs of
the Government's continued use of the new system after the
Government decided to bring the work back in house.
Subsequently, the Government's motion for reconsideration was
denied.
In
Aurora LLC, the CBCA denied the Government's motion to
dismiss an appeal from a default termination, holding that the
prime had authorized the sub to file the appeal in the name of
the prime.
In
Magwood Services, Inc., the CBCA held it lacked jurisdiction
over an appeal requesting the Board to overrule a state court's
decision on a matter involving a dispute between a contractor
and its subcontractor.
|
December 23 |
The GAO sustained a protest by
CORTEK, Inc.
because the agency had improperly (i) accepted a proposal that
included references to employees who did not meet solicitation's
experience requirements, (ii) allowed the awardee to exceed the
solicitation's clear page limitation (by one page), and (iii)
used information on that additional page, which should have been
ignored, to reach a favorable evaluation of the awardee's past
performance. The GAO also noted that the administrative record
produced by the agency was so heavily redacted that it was
difficult for the GAO to evaluate the agency's response to
the above (and other) protest allegations.
|
December 22 |
The GAO sustained a protest by
West Coast
General Corp. because (i) the agency failed to enforce a
solicitation requirement that offered G&A rates be supported by
(and evaluated on basis of) certified financial statements or
DCAA audit reports; and (ii) the agency's award determination
was based entirely on a mechanical comparison of total technical
scores and G&A rates.
For the second time in December (see
the
Braseth Trucking decision discussed at the December 17 entry
below), the Court of Federal Claims remanded a protest (this one
by
FFL Pro LLC) to the procuring agency to provide an
explanation, lacking in the administrative record, for its
evaluation--this time of the awardee's past performance. |
December 20 |
Octo Consulting Group, Inc. lost its post-award protest at
the Court of Federal Claims because: (i) the protester's
quoted price was substantially higher than those of competitors
selected for multiple-award blanket purchase agreements, so it
lacked standing; and (ii) the solicitation did not mandate a
specific number of awards, so, even if the protester's
allegation (that three of the awardees were noncompliant) were
true, the agency would not have been required to replace those
awards with an award to the protester.
In
Summit Multi-Family Housing Corp., the court held that an
awardee whose contract was canceled as a result of corrective
action undertaken by the Government lacked standing to challenge
the original procurement process that led to its award
since it was injured by the corrective action, not by the
procurement. |
December 18 |
SBA intends to draft regulations to implement the statutory changes in
section 825 of the National Defense Authorization Act for Fiscal
Year 2015, which removes the statutory authority allowing
Women-Owned Small Businesses (WOSBs) and Economically
Disadvantaged Women-Owned Small Businesses (EDWOSBs)
to self-certify. SBA seeks comments on these matters
by no later than February 16, 2016. |
December 17 |
In
Excelsior Ambulance Service, Inc., a successful post-award
protest, the Court of Federal Claims found that: (i) the
successful offeror had failed to provide the business license
required of all offerors by the solicitation; and (ii) the
successful offeror's original (protested) offer did not comply
with the solicitation's requirement that at least 50% of the
work be performed by SDVOSBs, and that offeror was then
improperly permitted to substantially revise its offer to make
it compliant in response to what was supposed to be only a
clarification request during the agency's corrective action
arising out of the original protest.
In
Braseth Trucking LLC and Corwin Co., the court dismissed the
higher priced of two protesters for lack of standing and
remanded the remaining protest back to agency to attempt to
provide an explanation (which was completely lacking in the
administrative record) of its rationale for choosing the awardee
over the protester. |
December 16 |
While a permanent solution is being developed, the State
Department has published a
temporary rule modifying Category XI of the United States
Munitions List (USML) to clarify that the scope of control in
existence prior to December 30, 2014, for USML paragraph (b) and
directly related software in paragraph (d) remains in effect.
This clarification is achieved by reinserting the words "analyze
and produce information from" and by adding software to the
description of items controlled.
|
December 12 |
In Matter of
JBL System Solutions, the SBA's OHA affirmed the SBA's
dismissal of a VET protest as insufficiently specific where the only allegation
was that the protester had been unable to locate in any online records
evidence that the protested firm met all the requirements for an
SDVOSB.
In Matter
of Brandt Group, Inc., the OHA affirmed the
SBA's dismissal of a protest as untimely, also noting that several
of the protest grounds were actually bid protests over which the SBA has no
jurisdiction.
|
December 11 |
In
Smartronix, Inc.; ManTech Advanced Systems
International, Inc.,
the GAO sustained a protest alleging that the agency’s cost
realism evaluation failed to reasonably assess whether the
vendors’ proposed direct labor rates were realistic and
consistent with the vendors’ various proposed approaches.
The SBA's OHA dismissed the protest in
Size Appeal of In & Out
Valet Co. because there is no
SBA or OHA jurisdiction over a protest allegation that a firm in
a VA procurement set aside for SDVOSBs is not controlled
by an SDV and, therefore, does not meet the SDVO eligibility
criteria. In those circumstances, jurisdiction rests in the VA.
In Size Appeal of
Potomac River Group, LLC, the OHA held that the Area
Office had correctly found affiliation where the protested
firm's operating agreement required 75% owner approval of all
major decisions and a large business held a 48% stake in the
firm.
In
Size Appeal of
Government Contracting Resources, Inc., the OHA remanded
a case to the Area Office to consider the appellant's argument
that a firm was controlled by a six-person Executive Committee
that did not include the challenged individual.
December 10 |
The GAO sustained a protest by
Protect
the Force, Inc., because: (i) the awardees' proposals
did not fulfill a solicitation requirement that they
demonstrate how they met a particular technical requirement; and
(ii) the agency's finding that these proposals were technically
acceptable lacked a rational basis.
In the latest chapter
of the
SUFI Network Services, Inc. saga, the Court of Federal
Claims held, inter alia, that the contractor was
not entitled: (i) to recover overhead and profit on its
attorneys' fees; or (ii) (especially so late in the proceedings
and without first presenting the claim to the Contracting
Officer) to change its claim for attorneys' fees from the
lodestar method it had consistently used in prior proceedings
to a much larger claim based on an alleged contingent fee
agreement that the contractor had not even provided to the court
for review.
|
December 7 |
In
Size Appeal of
Orion Construction Corp., the SBA's
OHA held that: (i) the Area
Office had correctly relied on the size standard included in the
original solicitation because the Contracting Officer had not
explicitly amended the solicitation to reflect a revised
size standard that had been published during the bidding
process; and (ii) the protester's arguments were unpersuasive
because they merely hinted at certain arguments the protester
should have researched by reviewing the appeal file for
supporting evidence. |
December 4 |
Federal Acquisition Circular (FAC)
2005-85 has been published and includes the following items:
FAR Case 2015-011: Effective February 26, 2016, an interim
rule will amend the FAR to implement sections of the
Consolidated and Further Continuing Appropriations Act, 2015, to
prohibit the Federal Government from entering into a contract
with any corporation having a delinquent federal tax liability
or a felony conviction under any federal law, unless the agency
has considered suspension or debarment of the corporation and
has made a determination that this further action is not
necessary to protect the interests of the Government. Comments
are due by February 2, 2016.
FAR Case 2015-036: Also effective February 26, another
interim rule will amend the FAR to implement a final rule issued
by the DOL's Veterans’ Employment and Training Service (VETS),
which replaced the VETS–100 and VETS–100A Federal Contractor
Veterans’ Employment Report forms with the new VETS–4212,
Federal Contractor Veterans’ Employment Report form. Comments
are due by February 2, 2016.
FAR Case 2015-013: A final rule adopts, without change, the
prior interim rule amending the FAR to implement Executive Order
(E.O.) 13672, entitled, "Further Amendments to Executive Order
11478, Equal Employment Opportunity in the Federal Government,
and Executive Order 11246, Equal Employment Opportunity," and a
final rule issued by the DOL.
FAR Case 2015-015: A final rule adopts, with changes, the
prior interim rule amending the FAR to implement a statutory
pilot program enhancing whistleblower protections for contractor
employees.
FAR Case 2015-009: Effective January 4, 2016, a final rule
amends the FAR to update the government contract file retention
periods to conform with the retention periods in the National
Archives and Records Administration General Records Schedule.
FAR Case 2015-003: A final rule adopts, with changes, the
prior interim rule amending the FAR to implement the Executive
Order Establishing a Minimum Wage for Contractors, and a final
rule issued by the DOL.
In
International Automotriz, the ASBCA denied the contractor's
claim because the Government already had compensated the
contractor fully for all recoverable costs that the contractor
had proven for damage to leased vehicles.
In
Global Energy U.S.-DLA Acquisitions LLC, the ASBCA dismissed
an appeal after the contractor failed to identify its
representative for purposes of the Board's proceedings.
In
Magwood Services, Inc., the CBCA held it lacked jurisdiction
over an appeal because the prior correspondence between the
contractor and the Contracting Officer amounted to a discussion
and disagreement over contract terms, not a CDA claim.
In
Brent Packer and Myrna Palasi, the CBCA denied a request to
use the small claims procedure for bare appeals of BPA
terminations because such procedures are available only for
monetary claims.
In
Bob L Walker, the CBCA dismissed an appeal filed with Board
more than 90 days after the contractor's receipt of the
Contracting Officer's decision, even though the contractor had
appealed the Contracting Officer's decision to the Contracting
Officer within 90 days. |
December 3 |
The frequency with which the GAO makes an exception and hears
and sustains an untimely protest on the grounds that it
presents an issue of significant interest to the procurement
community as a whole makes a blue moon seem like a common
occurrence by comparison, but that is just what happened in
DRS Technical
Services, Inc., where the GAO: (i) sustained an untimely
protest of the solicitation’s evaluation scheme because it
failed to account for differences in offerors’ transition plans
and effectively penalized offerors that proposed to provide full
staffing and operational performance on the first day of the
task order and rewarded offers that proposed a phased approach
to staffing and performance; (ii) found that the agency’s
evaluation of the awardee’s proposed level of effort was
unreasonable and inconsistent with the terms of the
solicitation; and (iii) held that the agency’s organizational
conflict of interest (OCI) investigation was not reasonable as
it failed to meaningfully consider whether the awardee’s
performance of a portion of the work required under the
anticipated task order would result in an impaired objectivity
OCI.
In
Terraseis Trading Limited,
the ASBCA held that: (i) despite the lack of a specific
delivery schedule in the contract for equipment that was
supposed to be transported to the site by the Government, the
contractor was entitled to six of its claimed 28 days of
compensable delay for the Government's delays in delivering the
equipment based on a need-by date stated by the contractor at
the post-award conference; but (ii) the Government's delay (and
other excuses presented by the contractor) were insufficient to
overcome the contractor's ultimate failure to meet the contract
delivery date so that a default termination was justified.
In
Chloeta Fire, LLC, the ASBCA sustained the contractor's
appeal that it was entitled to the full contract price for
completing a required burn on federal property because the Board
drew an adverse inference from the Government's failure to
provide evidence or testimony from the individual who could have
rebutted the contractor's contentions that he had the authority
to, and did, accept the contractor's work.
In
Military Aircraft Parts, the ASBCA denied the contractor's
EAJA application because the Government's position was
substantially justified in three of four areas in dispute. |
December 2 |
The GAO sustained a protest by
Celta
Services, Inc. because: (i) the SSA's award memorandum
indicated she had improperly considered weaknesses in the
protester's proposal that had been resolved during discussions;
(ii) the evaluators' point scores were not applied consistently
among offerors; and (iii) the record was not sufficient to
conclude that the evaluation of the awardee's Past Performance
was reasonable.
The Bureau of Industry and Security
proposes to require reporting of
offsets agreements in connection with sales of items
controlled in "600 series" Export Control Classification Numbers
(ECCNs) on the Commerce Control List (CCL) except for certain
submersible and semisubmersible cargo transport vessels and
related items that are not on control lists of any of the
multilateral export control regimes of which the United States
is a member. Comments are due by February 1, 2016.
NASA
has adopted as final, without change, an interim rule amending
the NASA Federal Acquisition Regulation Supplement (NFS) to
increase the NASA
capitalization threshold from $100,000 to $500,000. Also,
effective December 28, a final rule amends the NFS to revise a
clause related to
safety and health measures and mishaps reporting in order to
reduce the burden on contractors and to provide guidance on (i)
specific safety and health measures that the contractor must
take when working on a federal facility and (ii) the remedies
available to the Government for the contractor's failure to
maintain an effective safety and health program.
|
December 1
|
In
FP-FAA Seattle, LLC, the Court of Federal Claims rejected
the protester's contention that the awardee improperly
conditioned its lease proposal on an offer of an approximate
amount of space. This is the second recent protest in which the
court has had to analyze issues involving the amount of space
required by a lease solicitation. See the Springfield
Parcel decision discussed in the November 26 entry below. |
November 28 |
In Size Appeal of
Wescott Electric Co., the
SBA's OHA affirmed the Area Office's decision that the protested
firm was a small business because the protester had initially
failed to produce specific evidence to the contrary, even though
apparently relevant and significant evidence was publicly
available at the time of the protest. |
November 27 |
In
Size Appeal of
GiaCare and MedTrust JV, LLC,
the SBA's OHA affirmed the Area
Office's decision that the protester's allegations (regarding the
protested firm's (i) use of
its proposed subcontractor's former employee as the Senior Project Manager
on the disputed contract, (ii) inclusion
of its proposed subcontractor's past performance references in
the current proposal, and (iii) alleged lack of evidence of
sufficient lines of credit) did not demonstrate affiliation under
the ostensible subcontractor rule. |
November 26 |
Happy Thanksgiving!
In
KWR Construction, Inc., the Court of Federal Claims held
that (in its fourth reevaluation after prior protests) the
procuring agency's rejection of a small business's revised price
proposal as unrealistically low contravened the terms of the solicitation, lacked a
reasonable basis in the record, and amounted to a de facto
nonresponsibility determination which should have been referred
to the SBA.
In
Springfield Parcel C, LLC, a successful post-award protest,
the court held that: (i) the GSA improperly
accepted a proposal that contravened a material requirement of
the solicitation
regarding the maximum allowable leased space; and (ii) the awarded lease violated 40 U.S.C.
3307 and was void ab initio because, in seeking the required
Congressional approval of the lease, the agency did not accurately describe
the size
of the leased space. |
November 25 |
In Logistics
Management International, Inc., et al., the GAO
sustained portions of several protests against the agency's
reevaluation of past performance in response to prior,
successful GAO protests because: (i) the reevaluation gave the
original awardee credit for a number of orders that did not meet
the solicitation's requirement for treating orders as a series
and a single reference; and (ii) the agency's reevaluation also
involved disparate treatment of the offerors because the
reevaluation denied one protester the same opportunity to submit
additional information as had been afforded to another offeror. |
November 24 |
In
DNT Environmental Services, Inc., a decision involving
contract interpretation, the CBCA denied the contractor's claim,
holding that the contractor had been properly compensated based
on the tons of contaminated materials it had actually removed
and the cubic yards of backfill it had actually provided, not
the number of properties it had worked on. |
November 23 |
The GAO sustained a protest by
Coastal
International Security, Inc. because the collective
bargaining agreement incorporated in the solicitation included
latent ambiguities regarding the required wage rates in two
labor categories, which offerors interpreted differently,
leading to differing proposed labor rates and a lack of
competition on a common basis, which, in turn, tainted the
agency's price realism and best value trade-off evaluations. |
November 20 |
The simple explanation for
Satellite
Tracking of People, LLC's "success" in
its GAO protest is that the agency failed to investigate
or mitigate an OCI. The facts of the protest, however, are
bizarre. The original protest challenged the agency's evaluation
and award decision. In response, the agency requested that the
protest be dismissed because the protester allegedly had a
conflict of interest in that its former employee was the
Government's Program Manager for the procurement. The agency
also alleged (without presenting any specifics or evidence to
the GAO) that the protest document, itself, improperly included
proprietary information related to a competitor. The protester
responded that it did not have a conflict, but that
the agency did because the former employee might have been
disgruntled and tilted the competition against the
protester. The GAO sustained this aspect of the protest because,
regardless whether the former employee's presence in the
procurement favored, or worked against, the protester, his
presence was a potential OCI of which the agency was aware, but
which it did not investigate adequately or attempt to mitigate.
Finally, the GAO concluded that, although it could not discern
any improper information in the protest, the agency's allegation
was a serious one that should be investigated further for a
potential Procurement Integrity Act violation. In other words,
what began as a rather routine quarrel with an evaluation
quickly devolved into a donnybrook that the "winning" protester
might eventually rue having filed in the first place.
In
Estes Brothers Construction, Inc., the CBCA dismissed (as
untimely) an appeal transmitted to the Board by email five
minutes after the 4:30 pm close of business on 90th day after
the contractor's receipt of the Contracting Officer's decision.
In
EHR Doctors, Inc., the CBCA held that the Government's cure
notice did not amount to duress that voided a subsequent
modification signed by the contractor.
DFARS Case 2015-D031: A final rule amends the DFARS to
eliminate a requirement for military departments and defense
agencies to collect and report relevant data on award and
incentive fees paid to contractors.
DFARS Case 2015-D007: A final rule amends the DFARS to
implement a section of the National Defense Authorization Act
for Fiscal Year 2015 that revises the restrictions relating to
utilization of domestic photovoltaic devices.
DFARS Case 2015-D037: A proposed rule would amend the DFARS
to clarify when it is appropriate to omit DFARS clause
252.225–7001, Buy American and Balance of Payments Program, with
regard to exceptions to the Buy American statute and Balance of
Payment Program. Comments are due by January 19, 2016.
DFARS Case 2015-D018: A proposed rule would amend the DFARS
to clarify the contract term for contracts awarded under the
statutory authority of 10 U.S.C. 2913, which requires DoD to
develop a simplified method of contracting for shared energy
savings contract services that will accelerate the use of such
contracts. Comments are due by January 19, 2016.
DFARS Case 2015-D036: A proposed rule would amend the DFARS
to update the threshold for duty-free entry on foreign supplies
that are not qualifying country supplies or eligible foreign
supplies. Comments are due by January 19, 2016.
DFARS Case 2015-D008: A proposed rule would amend the DFARS
to implement a section of the National Defense Authorization Act
for Fiscal Year 2015, which amended a section of the National
Defense Authorization Act for Fiscal Year 2010, in order to
extend and modify the contract authority for advanced component
development and prototype units. Comments are due by
January 19, 2016.
DFARS Case 2015-D023: A proposed rule would amend the DFARS
to add a definition of "long-haul telecommunications."
Comments are due by January 19, 2016.
DFARS Case 2015-D030: A proposed rule would amend the DFARS
to stipulate that DoD contracting officers shall request a
limited-scope audit, unless a full-scope audit is appropriate
for the circumstances, in the interest of promoting voluntary
contractor disclosure of defective pricing identified by the
contractor after contract award. Comments are due by January 19,
2016. |
November 19 |
In
Raymond Express International, LLC, an unsuccessful
post-award protest, the Court of Federal Claims held, inter
alia, that (i) various erroneous references in one awardee's
proposal to its corporate name did not create uncertainty as to
identity of the party to be bound by the contract because only
one CAGE code and one DUNS number were used throughout the
proposal; (ii) given the solicitation's stated evaluation
scheme, there was nothing objectionable in the agency's
consideration of the business references of one awardee's
affiliated companies in the Past Performance evaluation; and
(iii) the use of a weighted price realism analysis as
urged by the protester would have been contrary to the terms of
the solicitation.
In
Lean Construction and Engineering Co., the ASBCA denied all
but $105 of claims for extra costs associated with alleged
differing site conditions because the contractor failed to
provide the required notice of the alleged condition and had
failed to produce credible evidence of the condition.
In
Korte-Fusco Joint Venture, the ASBCA denied the Government's
motion for summary judgment because the language of a contract
modification did not clearly release the claim at issue in the
appeal.
In
Ahjar Shat Alarab Albidhaa Co., the ASBCA denied the
Government's motion to dismiss an appeal for lack of
jurisdiction because the Government failed to present credible
evidence that it had not received an emailed claim sent to the
address Government had previously provided to the contractor. |
November 18 |
W.P. Tax &
Accounting Group won its GAO protest because the agency had
determined its quotation was unacceptable due to an
unrealistically low price even though the solicitation had not
advised bidders that price realism would be evaluated.
FAR Case 2015-022: A proposed rule would amend the FAR to
re-designate the terminology used for the unique identification
of entities receiving federal awards by removing the proprietary
DUNS® number and substituting appropriate references to the web
site where information on the unique entity identifier will be
located. In addition, the proposed rule would establish
definitions of "unique entity identifier," and "electronic funds
transfer (EFT) indicator." Comments are due by January 19, 2016. |
November 17 |
The Commerce Department's Bureau of Industry and Security (BIS)
has published an interim final rule amending the Export
Administration Regulations (EAR) to classify
XBS Epoxy Systems under Export Control Classification Number
(ECCN) 0C521 on the Commerce Control List (CCL) and to
impose on such items a license requirement for export and
reexport to all destinations, except Canada. Comments are due by
January 12, 2016.
In
Care One EMS, LLC, an appeal from the default termination of
two ambulance contracts, the CBCA granted the Government's
motion to dismiss the portion of the complaint seeking monetary
compensation because no monetary claims had previously been
submitted to the Contracting Officer for a decision--this even
though, during the course of the appeal, the Government had
converted the default terminations to terminations for
convenience.
In
ServiTodo, LLC, the CBCA held that the Government was
responsible for certain of the contractor's costs incurred in
complying with directions from a government employee who was not
authorized to change the contract, because those costs were
incurred after the Contracting Officer became aware of the
unauthorized direction but did nothing to stop it.
|
November 16 |
The GAO sustained a protest by
AECOM
Technical Services, Inc. against the agency’s decision to
reject a proposal that was submitted to an incorrect
location within the FedConnect web portal where the record showed
that: (i) the complete proposal was timely submitted; (ii) the
agency was contemporaneously aware of the proposal’s submission;
(iii) the agency planned to make multiple awards, so that no other
competitor could claim to have been meaningfully harmed by
accepting the proposal; (iv) the proposal was out of protester’s
control and therefore could not have been altered or revised
after the deadline for proposal submission had passed; and (v)
acceptance of the proposal as timely would enhance competition.
|
November 13 |
Yesterday, the GAO published three decisions sustaining
protests. Somebody must have spiked the punch.
Eastern
Forestry won its protest because the agency's publication of
a substantive amendment to the solicitation at 7 p.m. on the eve
of a 10 a.m. bid opening time did not leave the protester
sufficient time to submit the required hard copy of its bid.
The GAO sustained a protest by
Onix
Networking Corp. because an out-of-scope modification to a
task order adding a product not contemplated by the original
award amounted to an improper sole-source award.
Global
Technical Systems convinced the GAO that a solicitation for
engineering services contained only vague statements of its
requirements and did not contain sufficient information to
permit offerors to compete intelligently and on a common
basis.
|
November 10 |
In Size
Appeal of Hanks-Brandan, LLC,
the SBA's OHA held that an awardee's teaming arrangement with
the incumbent under which the incumbent would become a
subcontractor (and the awardee would hire one of the incumbent's
employees as the awardee's Program Manager) under the new
contract did not run afoul of the ostensible subcontractor rule
because, inter alia,
the awardee would be responsible for
performing primary requirements of new contract as the prime
contractor.
In
Fidelity and Guaranty Insurance Underwriters, Inc., the
Court of Appeals for the Federal Circuit affirmed the CoFC's
prior decision that it lacked Tucker Act jurisdiction over a
suit by a general liability insurer claiming to be an equitable
subrogee of a prime contractor, but without any responsibility
for contract performance or obligation to the Government. |
November 9 |
In
FCN, Inc., an unsuccessful preaward protest, the Court of
Federal Claims upheld the agency's decision to leave the
protester out of the competitive range, despite its lower price,
because other offerors had higher technical scores.
In
Jim Carranza Trucking Co., the PSBCA held that the Postal
Service could offset a prior EAJA award against debts owed by
the contractor to the Postal Service. |
November 6 |
The VA proposes
extensive revisions to its regulations governing the
Veteran-Owned Small Business (VOSB) Verification Program in
order to: (i) clarify the eligibility requirements for
businesses to obtain "verified" status; (ii) add and revise
definitions, including the definition of "control"; (iii) better
explain the examination procedure and review processes; (iv)
remove or revise references to community property restrictions,
"unconditional" ownership, day-to-day requirements, and
full-time requirements; and (v) add an exception for majority,
supermajority, unanimous, or other voting provisions for
extraordinary business decisions. Comments are due by January 5,
2016.
In
NAICS Appeal of Global
Precision Systems, LLC, the
SBA's OHA held that the Contracting Officer had correctly
determined that, pursuant to 13 C.F.R. 121.402(b)(2), a
solicitation for the provision of maintenance consumables should
be classified under the appropriate manufacturing or supply
NAICS code, not under a Wholesale Trade or Retail Trade NAICS
code.
November 5 |
In
Hamilton Pacific Chamberlain, LLC, the CBCA rejected the
Government's motion to dismiss an appeal involving a claim the
Contracting Officer had summarily denied for lack of adequate
documentation, and held that: (i) "adequate claim documentation
is not a CDA prerequisite"; (ii) a defective certification was
irrelevant because the claim was for less than $100,000; and
(iii) the contractor's submission of supporting documents to the
Board not previously submitted to the Contracting Officer did
not constitute filing a new claim.
|
November 4 |
In
Palco Distributing, LLC, the ASBCA upheld the cancellation
of a purchase order after the seller tendered different items
from those specified in the order.
In
Air Services, Inc., the ASBCA denied the Government's motion
to dismiss an appeal for lack of CDA jurisdiction, holding that
(i) a revised REA satisfied the requirements for a claim in the
context of the totality of the parties' communications even
though it did not include a request for a Contracting Officer's
decision; and (ii) a DFARS 252.243-7002
certification included with the revised REA was a deficient, but
correctable, CDA certification.
In
Matcon Diamond, Inc., the ASBCA denied the Government's
motion to dismiss the complaint for failure to state a claim
upon which relief could be granted because the Government had
not established from the pleadings alone that the claim had not
been submitted until after final payment or that the Government
was not aware of the basis of the claim prior to that time.
In
Weatherford Group, Inc., in choosing between competing
theories as to which party was responsible for certain costs
under the contract, the ASBCA held that (i) the Government's
interpretation of three contract provisions was preferable
because it gave reasonable meaning to all the clauses without
creating any conflicts between them; and (ii) the contractor had
failed to present the evidence required to establish a prior
course of dealing between the parties concerning the matter in
dispute.
In
Pros Cleaners, the ASBCA awarded the contractor its
reasonable and unavoidable post-termination costs of attempting
to settle quantum after the convenience termination of a
commercial items contract. |
November 3 |
In
Horn & Assocs., the Court of Federal Claims dismissed
various CDA and fraud counterclaims filed by the Government,
holding that the numerous misstatements and inaccuracies in the
contractor's claim were attributable to difficulties
caused by the Government during performance and the contractor's
efforts to come up with an appropriate measure of damages for
the Government's alleged breach of the unusual contingent-fee
auditing contract, not by the contractor's fraud or any
intent to deceive Government or violate the requirements of the
CDA. |
October 30 |
DFARS Case 2012-D050: DoD has adopted as final, with
changes, the prior interim rule amending the DFARS to implement
a section of the National Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2011, as amended by the NDAA for FY 2013, which
allows DoD to consider the impact of supply chain risk in
specified types of procurements related to national security
systems.
DFARS Case 2015-D032: A final rule amends the DFARS to to
remove Cuba from the definition of "state sponsor of terrorism"
in two DFARS clauses.
DFARS Case 2015-D033: A final rule amends the DFARS to add
Montenegro and New Zealand as newly designated countries under
the World Trade Organization Government Procurement Agreement.
|
October 29 |
In General
Dynamics Advanced Information Systems, Inc., a successful
protest, the GAO found that the agency had incorrectly
interpreted a spreadsheet as proposing uncompensated overtime
and, therefore, had improperly made an upward adjustment to the
protester's estimated costs as part of a cost realism analysis.
In
National Telecommuting Institute, Inc., the Court of Federal
Claims held that the doctrine of laches barred a protest (as
untimely) because the protester had not filed suit until six
months after the official notice of award and nearly ten months
after it had exhausted its agency appeals. The court also found
the protest failed on the merits because the agency's
source selection decision had a rational basis. |
October 28 |
The Commerce Department's Bureau of Industry and Security has
amended the Export Administration Regulations (EAR)
to revise the existing authorizations for Validated End
Users Advanced Micro-Fabrication Equipment, Inc., China (AMEC)
and Applied Materials (China), Inc. (AMC) in the People’s
Republic of China (PRC), specifically by amending Supplement No.
7 to Part 748 of the EAR to add one item to AMEC’s list of
eligible items that may be exported, reexported or transferred
(in country) to the company’s eligible facility in the PRC, and
to add a facility and an item to Validated End User AMC’s list
of eligible destinations and eligible items.
In
DMS Imaging, Inc., building on the Court of Federal Claims'
prior decision finding the Government liable for breach of a
lease agreement after a fire destroyed the leased premises, the
court finds the plaintiff entitled to the quantum of damages
specifically bargained for and stated in the lease agreement,
e.g., unpaid rent amounts, charges for late payments, and
attorney's fees. |
October 27 |
The GAO sustained a protest by
Trandes Corp.
because several of the awardee's proposed key personnel failed
to meet the experience requirements of the solicitation. |
October 24 |
In
Raytheon Co., the Court of Appeals for the Federal Circuit
affirmed the
prior CoFC decision denying a protest and upholding the
agency's decision to undertake corrective action because the
agency had provided disparate information concerning the
solicitation's requirements to bidders, misleading one of them.
|
October 23 |
In
Bahram Malikzada Construction Co., the ASBCA dismissed an
appeal as untimely because an email sent by the contractor
to the Contracting Officer within the 90-day period stating it
"would start its appeal" did not express an intent to appeal to
the Board (as opposed to the Court of Federal Claims).
In
Capy Machine Shop, the ASBCA overturned a default
termination because the contractor's request for a no-cost
cancellation was not sufficient to establish anticipatory
repudiation, and its past practice of bidding low and then
requesting no-cost terminations on other contracts was not
evidence it bid this contract with no intention of performing.
The Board applied the same reasoning to reach the same result
regarding the same contractor's request for a no-cost
cancellation of another contract in
ASBCA No. 59085.
Effective November 23, the
Department of Energy (DOE) is adopting as final, with changes, a
rule amending its Acquisition Regulation (DEAR) to add
clauses regarding applicable
export control requirements for DOE contracts. |
October 20 |
FAR Case 2015-025: A proposed rule would amend the FAR to
revise the Standard Forms used in contracts involving bonds and
other financial protections in order to clarify liability
limitations and expand the options for organization types.
Comments are due by December 21.
In
Advanced Government Solutions, Inc., the Court of Federal
Claims denied the protester's request for EAJA attorneys' fees
because the Government had undertaken voluntary corrective
action before the court had issued any decision on the merits of
a preaward bid protest. |
October 19 |
In
DynPort Vaccine Co. LLC, the ASBCA held that the Contracting
Officer could not divest the Board of its CDA jurisdiction to
entertain appeals from government claims by issuing a letter
characterizing his six previous unilateral contract
modifications directing the contractor to perform corrective
work at no cost to the Government as something other than final
decisions.
In
MicroTechnologies, LLC, the ASBCA granted a motion to strike
the portion of a complaint asking that the Government be ordered
to revise a CPAR because the Board does not have jurisdiction to
grant specific performance or injunctive relief. |
October 14 |
In
XTec, Inc.,
the GAO: (i) sustained a protest because the agency’s inadequate
advance planning led to the issuance (and then the cancellation)
of a solicitation with an insufficiently detailed statement of
requirements; and (ii) recommended that the protester recover
its bid preparation and protest costs. |
October 12 |
In
Janet Rodriguez-Rivera, the PSBCA held that (beyond
coincidence and speculation) the Postal Service had not
presented nearly enough evidence of alleged drug trafficking or
mail theft by a delivery person to justify the default
termination of a mail delivery contract. |
October 10 |
In
Crowley Technical Management, Inc., an unsuccessful
post-award protest against an agency's cost realism evaluation
and adjustments, the Court of Federal Claims held that: (i) the
agency's decision that a "tolerance adjustment" of the awardee's
proposal was unnecessary was supported in the record, and
the protester's only "evidence" to the contrary was speculative;
and (ii) the protester's remaining arguments for different price
realism adjustments were not sufficient to establish prejudice,
i.e., to displace the awardee's low evaluated price.
The Bureau of Industry and Security and the Department of
State have each published notices of their respective plans to
review the
Commodity Control List and the
Munitions List in light of recent changes to the control of
certain military vehicles, vessels of war, submersible vessels,
oceanographic equipment, auxiliary and miscellaneous military
equipment, and related items therefor. Comments on either plan
are due by December 8. |
October 9 |
In Tantus
Technologies, Inc., the GAO sustained a protest on several
grounds: (i) the agency failed to consider whether, under the
personnel and management evaluation factor, the awardee’s
proposal to relocate a significant number of employees to a
cheaper labor market after the first year of the task order
posed a risk to the awardee’s ability to retain qualified staff;
(ii) the agency did not evaluate corporate experience and or the
relevance of past performance in a manner consistent with the
RFP; and (iii) the awardee's proposal to hire incumbent
subcontractor staff at substantially lower rates than they were
currently being paid resulted in a risk of unrealistically low
labor rates that the agency should have adjusted upward in
conducting its cost-realism evaluation.
|
October 8 |
FAR Case 2014-020: A proposed rule would implement 41
U.S.C. § 153 by increasing the simplified acquisition
threshold from $150,000 to $300,000 for overseas acquisitions in
support of humanitarian or peacekeeping operations. Comments are
due by December 7.
FAR Case 2015-018: A proposed rule would amend the FAR to
implement section 814 of the Carl Levin and Howard P. 'Buck'
McKeon National Defense Authorization Act for Fiscal Year 2015,
which requires the head of the contracting activity to approve
any determinations to select more than five offerors to submit
phase-two proposals for a two-phase design-build construction
acquisition that is valued at greater than $4 million. Comments
are due by December 7.
Effective November 6, NASA is
amending the NASA FAR Supplement (NFS) to remove requirements
related to the discontinued Space Flight Mission Critical
Systems Personnel Reliability Program and to revise requirements
related to contractor
drug and alcohol testing. |
October 7 |
Already having failed in its attempt to satisfy its needs with a
sole-source acquisition, DHS again struck out swinging in
Harris IT
Services Corp., a successful GAO protest against the terms
of two DHS solicitations issued to multiple award IDIQ
contractors under the tactical communications (TacCom) program,
because the GAO found the solicitations impermissibly (in
violation of FASA): (i) contemplated the issuance of what
amounted to a single, second-tier IDIQ instrument, under which
the agency would place subsequent delivery orders, without
providing the multiple-award IDIQ contract holders a subsequent,
fair opportunity to compete for those delivery orders; (ii)
contemplated the issuance of delivery orders that potentially
could exceed the scope of the underlying IDIQ contracts; and
(iii) included restrictive specifications (effectively limiting
competition to Motorola products) that had not been justified. |
October 6 |
In
Size Appeal of B GSE Group, LLC,
the SBA's OHA held that the Area Office had correctly determined
that a solicitation for frequency converters required a
manufactured end item, not a kit, and that the challenged firm
did not meet the requirements of the nonmanufacturer rule
because it would supply an item manufactured by large business
subcontractor.
However,
in another
appeal involving the same firm but a smaller solicitation,
the OHA remanded the case to the Area Office
for a determination whether the firm met the requirements for
the exception to the nonmanufacturer rule
in simplified acquisitions (and, therefore, would not have to
supply an end item manufactured by a small business).
In
Size Appeal of RX Joint
Venture, LLC, the OHA held that the Area Office had correctly dismissed a size
protest of a task order awardee under a long term contract because
the task order solicitation did not require recertification of size.
In
Honeywell International, Inc., the ASBCA held that the
contractor was entitled to quantum valebant recovery for
the value of conforming solar arrays it had delivered to the
Government under invalidated provisions of a delivery order. The
Board found it irrelevant that the Government had chosen not to
(i) connect the panels to its electrical grid or (ii) formally
accept them.
In
Automotive Management Services FZE, a case involving contract
interpretation, the ASBCA held that the contractor was entitled
to reimbursement of its costs of transporting vehicle parts in
Afghanistan, in part because a word in the title of one of the
contract's sections could not change the plain meaning of the
text of that section.
The SBA proposes to amend its
regulations to implement Section 1614 of the National Defense
Authorization Act for Fiscal Year 2014 in order to permit an
other than small prime contractor that has an individual
subcontracting plan for a contract to receive credit towards its
small business subcontracting goals for subcontract awards
made to small business concerns at any tier. Comments are
due by December 7.
October 5 |
In
Caddell Construction Co., the Court of Federal Claims held
(once again) that the State Department's interpretation of the
"total business volume" and "similar work" requirements of
Omnibus Diplomatic Security and Antiterrorism Act of 1986 in
evaluating proposals was reasonable. This is the latest in the
long-running stand-off between the GAO and the court over
whether the Act requires a company to have the specified
business volume in each of three of the last five years
or only cumulatively. The GAO originally picked the former
interpretation in its
2007
Caddell decision. Subsequently, the court reached the
opposite conclusion in
Grunley-Walsh. The GAO stuck with its guns in its most
recent
Caddell case, and the court has now approved the State
Department's decision not to follow the GAO's recommendation. As
noted in the court's decision, we need a decision by the CAFC to
break the logjam.
In
Rocky Mountain Helium, LLC, the court held that: (i) a
plaintiff in default of its basic obligation to pay the
Government a specified sum lacked standing to complain of
subsequent alleged contract breaches by the Government; and (ii)
the court lacked jurisdiction over a dispute under a settlement
agreement that provided for all disputes to be decided by a
named CBCA judge through the use of ADR.
|
October 1 |
In
Safe Haven Enterprises, LLC, a decision that includes lots
of good analysis of the law governing reconsideration of
contracting officer decisions, the CBCA held that the
Contracting Officer's suggestion (coming more than 90 days, but
less than 12 months, after issuance of the prior decisions) that
he would "take a look at" them, constituted reconsideration so
that the contractor's appeal clock to either the Board or
the Court of Federal Claims was reset and did not start anew
until either a new decision was issued or the Contracting
Officer reaffirmed the prior decisions. The upshot was that an
appeal to the CBCA filed 661 days after the original decision
was issued was found to be timely in this case.
In
Reliable Contracting Group, LLC, on remand from the
Federal Circuit, the CBCA (as it had in its
original decision) denied the contractor's claim
for extra compensation for the costs of providing new backup
electrical generators because, at the time the contractor
originally proffered four-year-old generators to the VA,
the contractor did not dispute the VA's contention that those
generators were not "new" as required by the contract.
Interestingly, although the Federal Circuit's decision was based
on what it saw as an incomplete record at the Board concerning
what constituted a "new" generator, neither party presented any
new evidence on the issue when given the opportunity on remand.
In
Environmental Chemical Corp., the ASBCA allowed the
contractor to amend its Complaint concerning delay claims to add
a count for Eichleay unabsorbed overhead and
certain allegations concerning breaches of the implied duty of
good faith and fair dealing, because the amendments arose from
the same operative facts as, and could reasonably have been
inferred from, the contractor's original delay claim, but the
Board refused to recognize one other allegation of a breach of
the duty of good faith and fair dealing because it could not
possibly have been an element of the original claim.
In
Bell Helicopter Textron Inc. and The Boeing Co., the ASBCA
refused to allow form to triumph over substance and held that:
(i) an individual from one company had the requisite authority
to sign the claim certification on behalf of both; and (ii) an
appeal filed jointly in the names of the two companies would be
construed as having been brought by their joint venture, which
was the contracting party.
In
Jeffrey C. Stone, Inc., d.b.a. Summit Builders, the ASBCA denied
the contractor's requests for sanctions and a default judgment for
the Government's repeated delays in
discovery and in responding to the Board's orders because
the Government's actions were not "contumacious or contemptuous to
the extent that a default judgment is warranted."
In
McHugh v. Kellogg Brown & Root Services, Inc., a decision
labeled as nonprecedential, the Court of Appeals for the Federal
Circuit: (i) affirmed the portion of the ASBCA's prior decision
finding that a government claim was barred by the CDA's six-year
limitations period where a contractor's submission had included
sufficient information to start the running of the limitations
period; but (ii) reversed the Board with reference to its
conclusion that a contract prohibition against using armed
employees did not apply to a situation where the contractor
hired private security firms with armed employees. |
September 30 |
In
CMS Contract Management Services, et al., the Court
of Federal Claims held that a group of prevailing plaintiffs in
a prior bid protest were entitled to awards of their bid
preparation and proposal costs where the plaintiffs had not been
awarded contracts despite their successful protests.
In
the latest
Estes Express Lines decision, the Court of Federal Claims
dismissed the suit for lack of jurisdiction because none of the
plaintiff's previous communications with the Government
satisfied the requirements for a CDA claim, including the
requirements that the submission: (i) be more than a routine
request for payment; (ii) include a request for a Contracting
Officer's decision; (iii) be for a sum certain; and (since the
amount requested exceeded $100,000) (iv) be certified.
DFARS Case 2015-D029: A final rule amends DFARS subpart
232.6 on contract debts to conform with the comparable FAR
subpart.
DFARS Case 2012-D056: A final rule amends the DFARS: (i) to
establish that the Electronic Data Access system is the primary
tool for distributing contracts and contract data; (ii) to
provide internal control procedures for data verification to
ensure contract documents in the Electronic Data Access system
are accurate representations of original documents; and (iii) to
remove outmoded language that is not consistent with electronic
document processes.
DFARS Case 2015-D017: A proposed rule would amend the DFARS:
(i) to clarify clauses and their prescriptions for small
business programs and to create a basic and alternate clause
structured in a manner to facilitate use of automated contract
writing systems, specifically with regard to DFARS 252.219–7003
(Small Business Subcontracting Plan (DoD Contracts)); and (ii)
to clarify DFARS 252.219–7010, Alternate A (now titled
"Notification of Competition Limited to Eligible 8(a)
Concerns—Partnership Agreement"). Comments are due by November
30.
DFARS Case 2014-D026: A proposed rule would amend the DFARS
to require the use of the electronic contract attachments
accessible via the Product Deficiency Reporting and Evaluation
Program to record and track warranty data and source of repair
information for serialized items. Comments are due by November
30. |
September 29 |
In
Square One Armoring Service, Inc., an unsuccessful protest,
the Court of Federal Claims held that: (i) the protester's
challenge to the original evaluation and award was moot because
the agency already had announced its decision to undertake
corrective action in response to the protester's original
protest at the GAO; (ii) the protester lacked standing to
challenge the agency's proposed corrective action (issuing a
revised solicitation) because the protester would be eligible to
compete under that procurement; and (iii) any protest of the
supposed terms of the revised solicitation is premature until
those revisions are issued. |
September 28 |
In
EMTA Insaat, A.S., the Court of Federal Claims denied a
post-award protest challenging a price realism evaluation
because the solicitation did not mandate the method the
Government must use to perform the analysis, and the evidence
showed the Government had evaluated price realism even though
the evaluators had not mentioned the term "realism."
In
Kristin Allred, the CBCA held it lacked jurisdiction over an
appeal by an individual not in privity of contract with the
Government. |
September 23 |
In
Hearthstone, Inc., the CBCA held that the Forest Service had
failed to provide adequate evidence (e.g., the
reprocurement contract) to support its claim for reprocurement
costs following the contractor's default under a timber sales
contract.
In
Amir Aghdam, the CBCA denied a claim for the costs to repair
a broken automobile transmission because the warranty at the
auto auction covered only misdescription, specifically excluding
warranties of condition, and the vehicle was as described, there
being no mention of the transmission in the description. |
September 21 |
In
TENICA & Assocs., LLC, an unsuccessful protest, the Court of
Federal Claims held, inter alia: (i) it
lacked jurisdiction to consider a disappointed bidder's
challenge to the procuring agency's decision to allow the
original awardee to proceed with performance temporarily during
a reevaluation process undertaken by the agency in response to a
prior GAO protest; and (ii) the plaintiff, absent the capacity
to perform these services during the reevaluation period, lacked
standing to protest.
In
Demodulation, Inc., the court (i) analyzed the
reasonableness of claimed attorney fees as a sanction for the
issuance of a patently unreasonable subpoena duces tecum, and
(ii) discussed the prevailing hourly billing rates in the D.C.
area for attorneys (partners and associates) and paralegals. I
retired too soon.
In
CSX Transportation, Inc., the court dismissed a suit because
the original over-$100,000 claim did not contain a CDA
certification.
In
Bruce E. Zoeller, a nonprecedential decision, the CAFC
affirmed the ASBCA's denial of the appellant's requests for
discovery sanctions and a default judgment against the
Government for alleged violations of a discovery order.
The Commerce Department's National Marine Fisheries
Service (NMFS) of the National Oceanic and Atmospheric
Administration (NOAA) proposes to establish a small business
size standard of $11 million in annual gross receipts for
all businesses in the commercial fishing industry (NAICS 11411),
for Regulatory Flexibility Act (RFA) compliance purposes only.
The proposed $11 million standard would be used in RFA analyses
in place of the SBA's current standards of $20.5 million, $5.5
million, and $7.5 million for the finfish (NAICS 114111),
shellfish (NAICS 114112), and other marine fishing (NAICS
114119) sectors of the U.S. commercial fishing industry,
respectively.
The Bureau of Industry and Security (BIS)
has published
corrections to typographical errors in a Note to ECCN
1C351.a (which includes viruses identified on the AG "List of
Human and Animal Pathogens and Toxins for Export Control") in
the final rule
first published on June 16, 2015 (80 FR 34266), which
amended the Export Administration Regulations (EAR) to implement
the recommendations presented at the November 2013 Australia
Group (AG) intersessional implementation meeting and later
adopted pursuant to the AG silent approval procedure.
DFARS Case 2014-D005: DoD proposes to amend the DFARS to
further implement a requirement of the National Defense
Authorization Act for Fiscal Year 2012, as modified by a section
of the National Defense Authorization Act for Fiscal Year 2015,
that addresses required sources of electronic parts for defense
contractors and subcontractors. Comments are due by November 20.
DoD published
several corrections to the DFARS and another set of changes
to make
needed editorial revisions. |
September 18 |
In
Schott Government Services, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that:
(i) the protester's contention that the awardee
lacked a facilities security clearance was irrelevant because
the solicitation did not require one; and (ii) a contract modification
requiring compensation from the awardee for the delivery of
nonconforming supplies was a matter of contract administration,
not grounds to challenge the original award as a violation of
CICA. |
September 17 |
In
Per Aarsleff A/S, an unsuccessful post-award protest, the
Court of Federal Claims held essentially that it was premature
to protest an agency's decision to award a bridge contract while
considering further corrective action in response to a
prior successful protest where the bridge contract could be,
but has not yet been, extended sufficiently to obviate the need
to award a contract arising out of current solicitation. |
September 15 |
In Size
Appeal of Jamaica Bearings Co.,
the SBA's OHA resolved a clear conflict between two sections of
the applicable regulations and held that, in a procurement
conducted under simplified acquisition procedures, a small
business does not have to supply an item manufactured by a small
business in order to comply with the nonmanufacturer rule. The
OHA also affirmed the Area Office's finding that the protested
firm in this case, which was specifically authorized to
distribute the products of a large business manufacturer, met
the requirements of the nonmanufacturer rule.
In
Size Appeal of Erickson
Helicopters, the OHA remanded the case to the Area
Office for further investigation because it had not explained
its conclusions regarding the aggregation of ownership interests
and alleged control issues among several affiliates.
In
Balfour S&P Two, A Joint Venture, after many back-and-forth
"who shot John?" arguments by the parties, the ASBCA held that
the contractor was responsible for the costs of repairing
defects in drilled concrete foundation piers because its
original construction methods failed to comply with the contract
specifications in several ways.
Relying on the Severin
doctrine, the ASBCA held that
Freedom Systems, LLC, was barred from pursuing a
pass-through subcontractor claim because the subcontractor
already had released the contractor from all liability.
In
Subsurface Technologies, the ASBCA held it lacked
jurisdiction over an appeal previously pursued at, and rejected
on the merits by, the Court of Federal Claims.
In
Military Aircraft Parts, the ASBCA overturned a default
termination that had been based on alleged discrepancies in a
First Article because: (i) a contract specification that formed
one basis of the termination was latently ambiguous, and the
contractor's interpretation of it was reasonable; (ii) the
Government had not conducted the logical "fit" test to determine
whether another alleged discrepancy actually existed; and (iii)
the contractor provided persuasive evidence that other alleged
deficiencies were minor and could have been easily corrected in
production.
In
Raytheon Missile Systems Co., the ASBCA determined the
quantum owed to the contractor after the Board's
prior entitlement decision concerning increased jet fuel
costs. |
September 14 |
In
Weston/Bean Joint Venture, a good primer on the principles
of contract interpretation, the Court of Federal Claims rejected
the contractor's various differing site condition, constructive
change, and breach of implied duties claims because a channel
dredging contract was not limited to the removal of "sediment,"
but required the contractor to dredge all material (except
massive "massive, monolithic in situ rock") necessary to achieve
the specified depth of 15 feet. |
September 12 |
Effective October 14, the SBA is revising its regulations to
implement section 825 of the National Defense Authorization Act
for Fiscal Year 2015, which allows
sole source awards to Women-Owned Small Businesses (WOSBs)
or Economically Disadvantaged Women-Owned Small Businesses (EDWOSBs)
in appropriate circumstances.
|
September 11 |
OFCCP has issued
regulations to be effective January 11, 2016, implementing
E.O. 13665, which prohibits retaliation for the disclosure
of compensation information.
In
CDM Constructors, Inc., the ASBCA dismissed (for lack of
jurisdiction) the parts of the Complaint requesting the Board to
order the Government to terminate a contract for convenience or
to issue a contract modification because these were essentially
claims for injunctive relief. |
September 10 |
Executive Order 13706 requires the Government to promulgate
regulations requiring federal contractors and subcontractors to
provide paid sick leave to employees. |
September 9 |
In
NAICS Appeal of T3
TigerTech, the SBA's OHA held
it lacked jurisdiction over a protest involving the SIN number
designation in a solicitation rather than the NAICS
classification.
In
Western States Federal Contracting, LLC, on remand
from the Federal Circuit, the CBCA reaffirmed its
original decision that an LLC lacked the capacity to bring
an action before the Board because it was not in good standing
in the state where it was organized.
September 8 |
In
Savantage Financial Services, Inc., an unsuccessful protest
against DHS' decision to acquire financial management services
by use of a federal shared service provider without permitting
plaintiff (or others) to compete, the court denied a significant
portion of the protest because of a lack of prejudice from the
Government's errors:
First, some of the
information omitted from the A-127 Justification is found
elsewhere in the administrative record. In particular, DHS’s September 9, 2013 D&F identifies the
Economy Act as the statutory authority for the acquisition of
financial management software systems and related services from
an FSSP and explains why an Economy Act agreement is
appropriate. In addition, a number of documents–including the
alternatives analyses and the A-127 Justification–reflect the
conclusion of the Coast Guard, TSA, and DNDO that migration to
an FSSP was a comparatively low-cost option, strongly suggesting
their belief that the costs that they anticipated incurring were
fair and reasonable. Second, requiring the Coast Guard, TSA, and
DNDO to add a statement regarding how they might be able to
conduct a full and open competition in a future procurement
would not affect whether plaintiff had a chance of being awarded
a contract in the present procurement. Finally, although the
A-127 Justification lacks any contracting officer
certifications, its conclusion was endorsed by the Chief
Financial Officers, Chief Information Officers, and Chief
Acquisition Officers of the Coast Guard, TSA, and DNDO, all of
which are higher-level officials than a contracting officer. In
sum, the Coast Guard’s failure to include all of the information
in the A-127 Justification that is required by 41 U.S.C. §
3304(e) and FAR 6.303-2(b) amounts to nothing more than harmless
error. As such, plaintiff was not prejudiced by the omissions. |
September 4 |
Under the heading of decisions that do not advance the ball
significantly, in
A-Son's Construction, Inc., on cross-motions for summary
judgment on the meaning of the contract term "month," the CBCA
held it could determine when the month ended, but not when it
began.
In
ARI University Heights, LP, the CBCA held it lacked
jurisdiction over the portion of an appeal related to a monetary
claim based on "speculated utility costs" in the future years of
a lease because a "formula that includes an unfixed variable
cannot yield a sum certain." |
September 3 |
In
Tinton Falls Lodging Realty, LLC, an appeal to the Court of
Appeals for the Federal Circuit of what is essentially a size
protest, the court held that (i) there was a rational basis for
the SBA's and OHA's determinations (subsequently ratified by the
Court of Federal Claims) of what constituted the primary and
vital contract requirements in a solicitation for the provision
of lodging services, and, thus, (ii) the awardee was not unduly
reliant on a subcontractor (a large business hotel) for those
requirements. The case also involved a significant issue of
standing because the plaintiff had been determined not to be a
small business on this small-business set-aside. The court's
majority found standing because of the possibility that the
solicitation might have to be re-issued unrestricted if the
protester prevailed. The dissent found this too speculative.
The Court of Federal Claims' decision in
Advanced Concepts Enterprises, Inc. probably left the
protester bewildered (it certainly had that effect on me)
because the court held that (i) the agency had conducted a price
realism analysis even though the agency, itself, wrote that it
had not; and (ii) although the agency had failed to perform a
proper analysis for unbalanced pricing, the protester failed to
establish prejudice from that error "because" the awardee's
total price was substantially lower than the protester's (of
course, if the awardee's pricing were materially unbalanced, it
should not matter that its total price was lower). The flaw in
the court's reasoning is evident from the following non
sequitur: "[E]ven even if the Air Force had performed the
required pricing balance analysis, it properly concluded that
[the awardee's] proposal was significantly less expensive."
Federal Acquisition Circular (FAC)
2005-84 has been published and includes just the following
item (plus technical amendments):
FAR Case 2015-0051: Effective October 5, a final rule
adopts, with changes, the prior interim rule amending the FAR to
implement revisions to the Electronic Product Environmental
Assessment Tool (EPEAT®) registry.
|
September 2 |
In
The ClayGroup, LLC, the Court of Federal Claims held that a
firm whose quote for an FSSI BPA was too high to have a
substantial chance of being selected for an award lacked
standing to protest the agency's decision, made long after
award, to convert the BPAs to exclusive and mandatory
arrangements.
In
Solaria Corp., the court held that, while a commitment
letter to consider a loan to the plaintiff was sufficient to
constitute a (non-CDA) contract, the agreement left such wide
discretion in the Government that the plaintiff's complaint was
not sufficient to establish any breach by the Government after
it decided against making the loan.
The Commerce
Department's Bureau of Industry and Security (BIS) has published
a rule to correct an error in License Exception Temporary
imports, exports, reexports, and transfers (in-country) (TMP) to
make
consumer communications devices and related software
eligible for temporary export and reexport to Sudan as "tools of
trade."
In
Big Iraqi Co., the ASBCA held it lacked jurisdiction over an
appeal involving an MOA pursuant to which a firm was required to
deliver and set up trailers and related equipment to be used as
a temporary school for Iraqi children in the village of Al Awad,
Iraq.
In
Afghanistan Trade Transportation Co., the ASBCA held that a
contractor's fraudulent conduct (bribery) predating (and on
different contracts from) the current contract under dispute did
not breach its obligation of good faith and fair dealing toward
the Government under the current contract.
In
Soap Creek Marina, LLC, the ASBCA held it lacked
jurisdiction over the portion of contractor's claim for alleged
future damages of $985,462 identified in the complaint because
such damages were reasonably known to the contractor at the time
it submitted its initial claim to the Contracting Officer but
were not certified.
In
Kellogg Brown & Root Services, Inc., the ASBCA dismissed a
contractor's motion for reconsideration of a prior decision as
untimely in a complicated situation involving the contractor's
former counsel's special procedures for obtaining delivery from
the local Post Office by means of a courier service.
In
DayDanyon Corp., the ASBCA upheld a default
termination because the contractor's performance during the 42 day
period between the first missed delivery date and the date of termination was too
insubstantial to establish the contractor's detrimental reliance on
the Government's delay in terminating. |
September 1 |
Effective October 1, a final rule revises the NASA FAR
Supplement (NFS) to delete clause 1852.242–72 ("Observance of
Legal Holidays") and its alternates and replace them with a new
clause that prescribes conditions and procedures pertaining to
the
closure of NASA facilities. |
August 28 |
In
Demodulation, Inc., the Court of Federal Claims held that a
subcontractor under a Cooperative Research and Development
Agreement had no right to file a direct action against the
United States for breach of contract because (i) it was not in
privity of contract with the Government and (ii) none of the
exceptions to that general rule applied.
The GAO
sustained a protest by
FCi Federal,
Inc. because, in undertaking corrective action nine months
after its original award, the agency had failed to consider
whether (given that the awardee had been sold to another company
in the interim) the awardee’s proposal still accurately
reflected the manner in which the contract would be performed
and the resources, experience, and past performance to be relied
upon in that performance.
|
August 27 |
NASA has issued an interim rule revising the
capitalization
threshold in the NASA FAR Supplement's "Use of Government
Property for Commercial Work" clause (section 1845.301–71) from
$100,000 to $500,000. Comments are due by October 26.
In
Crockett Facilities Services, Inc., the CBCA denied an
application for EAJA fees because (i) the contractor did not
establish it met the size requirements, and (ii) the
Government's actions in response to the contractor's claim had
been substantially justified. |
August 26 |
DFARS Case 2015-D005: A final rule amends the DFARS to
implement sections of the Department of Defense Appropriations
Acts for Fiscal Years 2014 and 2015 that prohibit use of funds
made available under these acts for the purchase or manufacture
of a flag of the United States, unless that flag is manufactured
in the United States.
DFARS Case 2014-D023: A final rule amends the DFARS to
provide updates and clarifications regarding requirements for
contractor personnel supporting U.S. Armed Forces deployed
outside the United States.
DFARS Case 2015-D014: A final rule amends the DFARS (i) to
remove duplicative text relating to contracts or delivery orders
issued by a non-DoD Agency and (ii) to relocate remaining text
to conform to the FAR.
DFARS Case 2014-D021: A final rule amends the DFARS to
correct the prescription at DFARS 211.274–6(a)(1) for the
contract clause at DFARS 252.211–7003 ("Item Unique
Identification and Valuation").
DFARS Case 2013-D018: An interim rule amends the DFARS to to
implement a section of the National Defense Authorization Act
for Fiscal Year 2013 and a section of the National Defense
Authorization Act for Fiscal Year 2015, both of which require
contractor reporting on network penetrations. Additionally, this
rule implements DoD policy on the purchase of cloud computing
services. Comments are due by October 26.
DFARS Case 2015-D006: A final rule adopts the prior interim
rule, without change, which amends the DFARS to implement a
section of the Military Construction and Veterans Affairs and
Related Agencies Appropriations Act, 2015: (i) to require
offerors bidding on DoD military construction contracts to
provide opportunities for competition to American steel
producers, fabricators, and manufacturers; and (ii) to restrict
use of military construction funds in certain foreign countries,
including countries that border the Arabian Gulf.
Effective September 25, the Bureau of Industry and Security
(BIS) is amending the Export Administration Regulations (EAR) by
removing the
Special Comprehensive License (SCL) authorization because
the BIS has determined that the SCL has outlived its usefulness
to the exporting public since recent changes to the EAR permit
exporters to accomplish similar results using individual
licenses and without undertaking the more onerous SCL
application.
|
August 25 |
In
IEI-Cityside, JV,
the Court of Federal Claims
essentially ratified the OHA's
prior decision
that the joint
venture agreement of a mentor-protégé joint venture
competing for a non-8(a) procurement contained only generalized
statements and lacked the
specificity required by 13 C.F.R. §§ 124.513(c) and (d).
In
Kellogg Brown & Root Services, Inc., a decision involving
contract interpretation, the ASBCA held that, pursuant to
FAR 52.250-1 (Indemnification Under Public Law 85-804), the
contractor was entitled to indemnification from the Government
for third-party claims and related litigation costs--even those
attributable to the contractor's alleged misconduct.
In
Symetrics Industries, LLC, the ASBCA denied the Government's
defective pricing claim because the Government had actual
knowledge of the data at issue when evaluating the contractor's
price proposal.
In
Certified Construction Co. of Kentucky, LLC, another
decision involving contract interpretation, the ASBCA held that
the Government's interpretation of subparagraph 5.1 of the
General Construction specifications, which excluded all
"measurement" and "payment" paragraphs of certain
incorporated specifications, was the only reasonable
interpretation of the contract.
In
Avant Assessment, LLC, the ASBCA sustained an appeal from a
default termination because a contract modification had deleted
the requirement that the Government subsequently used to try to
justify the termination.
The GAO sustained a
protest by
Starry Assocs. because the agency did not properly evaluate
whether the personnel proposed by the awardee were available and
qualified to perform the required work.
In
Size Appeal of
Olgoonik Solutions, LLC, the SBA's OHA
held that, under the exception announced
in Argus and Black to the general
rule that a firm is economically dependent on a business from which it
derives more than 70% of its revenue, the protested firm here is not
affiliated with a large business because the protested firm is newly formed,
actively seeking business apart from alleged affiliate, and could not
be sustained by the revenue from its contract with the alleged affiliate.
In
Size Appeal of IEI-Cityside, JV,
the OHA held that the joint
venture agreement of a mentor-protégé joint venture
competing for a non-8(a) procurement contained only generalized
statements and lacked the
specificity required by 13 C.F.R. §§ 124.513(c) and (d):
In particular, Appellant's
representation that Ms. [ ] will, in the future, purchase
facilities and equipment for Appellant does not suffice to meet
the requirement that the agreement "[i]temiz[e] all major
equipment, facilities, and other resources to be furnished by
each party to the joint venture, with a detailed schedule of
cost or value of each." 13 C.F.R. § 124.513(c)(6). Further, the
statement that IEI and Cityside each will perform 50% of total
dollar value of the labor portion of the contract does not meet
the requirement to "[s]pecify[] the responsibilities of the
parties with regard to . . . contract performance, including
ways that the parties to the joint venture will ensure that the
joint venture and the 8(a) partner(s) to the joint venture will
meet the performance of work requirements set forth in paragraph
(d) of this section." 13 C.F.R. § 124.513(c)(7). Appellant's
joint venture agreement does not designate specific tasks or
responsibilities to IEI and Cityside, and fails to explain how
Appellant will fulfill the performance of work requirements set
out in 13 C.F.R. § 124.513(d).
August 24
|
Ruling on cross motions for summary judgment, the CBCA held in
Fortis Networks, Inc. that: (i) both parties having failed
to comply with a contract requirement that fuel costs be
negotiated prior to issuing task orders, the Government had not
breached its duty of good faith and fair dealing by refusing the
contractor's subsequent request to negotiate those costs after
the task orders were completed; (ii) the contractor was barred
by the release language in contract modifications from seeking
extra compensation for moving additional quantities of soil;
(iii) the Government was entitled to summary judgment as to a
third claim because, apart from bare allegations, the contractor
had failed to provide any evidence of alleged delay costs due to
a differing site condition. |
August 23 |
In
CYIOS Corp., an unsuccessful post-award protest, the Court
of Federal Claims held that the protester was not prejudiced by
the errors the court found in the evaluation because the
protester's proposal was still inferior to the awardee's, even
after correcting for those errors. Subsequently, the court
denied the protester's motion for reconsideration. Similarly, in
ACC Construction Co., an unsuccessful preaward protest, the
court held that, even allowing for any errors the agency had made in
its evaluation, the protester's proposal was not strong enough
to merit advancing it to Phase II of the competition.
In
New Orleans Regional Physician Hospital Organization, Inc.,
d/b/a Peoples Health Network, the court granted the
contractor's motion to compel the Government to redo searches
for documents covered by the contractor's discovery requests,
reasoning in part as follows:
The
court finds that defendant did not put into place a systematic,
reliable plan to find and produce all relevant documents in this
case. First, it appears that there was little oversight by
defendant’s counsel over the search efforts of the CMS
employees. The declarations indicate that many of the custodians
relied upon an email they received in June 2013 for their search
instructions. That email listed categories of documents and
recommended eight search terms for the custodians to use in
their searches. The decision regarding which exact search terms
to use was left up to the individual custodians, who
understandably varied greatly as to the terms they actually
selected. Several of the custodians did use the eight search
terms listed in the email, but none of them seemed to use the
twenty-eight search terms that defendant had represented to
plaintiff were used in the search for responsive documents.
Additionally, the custodians were not required to keep any
record of the search terms they used and exactly what records
they searched. Nor did the declarants mention any meaningful
oversight over their individual search efforts.
|
August 22 |
The GAO sustained a protest by
Fire Risk
Management, Inc., because the agency's market research was
flawed and could not justify the agency's conclusion that the
procurement should not be set aside for SDVOSBs. |
August 21 |
In
Sikorsky Aircraft Corp., the Court of Federal Claims held
that the doctrine of "claim preclusion" barred an "alternative"
government claim regarding alleged CAS noncompliance that could
have been, but was not, raised in the same Contracting Officer's
decision that already had been litigated.
The Bureau of
Industry and Security has modified the DPAS regulations by
adding Spain to the list of countries with which the DOD has
entered into
security of supply arrangements.
|
August 20 |
In eAlliant,
LLC, the agency kept selecting the original awardee through
several rounds of protests and corrective actions, but then,
apparently worn down by the battles, finally selected another
offeror, at which point the original awardee protested. The GAO
sustained the protest because there was no basis stated in the
record for the agency's downgrades of the protester's scores
when its proposal was essentially unchanged.
In
The Public Warehousing Co., a case hinging on contract
interpretation, after an exhaustive review of the parties'
actions and discussions before and after executing a bilateral
modification, the ASBCA denied the contractor's claim for
transportation costs because the modification established a cap
on transportation fees.
In
Donald A. Woodruff and The DuckeGroup, LLC, the Court of
Federal Claims held the plaintiff lacked standing because there
was no privity of contract with the United States, and the court
lacked jurisdiction because of the plaintiff's (i) prior
election to proceed at the CBCA and (ii) failure to file suit
within 12 months of the Contracting Officer's decision.
|
August 19 |
In
Sigmatech, Inc., despite efforts by one of the
intervenor/defendants to keep the original protest alive, the
Court of Federal Claims dismissed it as moot based on the
Government's decision to take corrective action. Of the
intervenor's arguments, the court had this to say:
"F.
Scott Fitzgerald wrote in 'The Crack-up' that 'the test of a
first-rate intelligence is the ability to hold two opposed ideas
in mind at the same time, and still retain the ability to
function.' F. Scott Fitzgerald, The Crack-up 69 (Edmund Wilson,
ed., New Direction Publishing 1993) (1936). So we must credit
Intervenor . . . with a first-rate intellect. How else to view
the argument that the court has no jurisdiction due to the
operation of 28 U.S.C. § 1500 (2012), and that it nevertheless
should address the merits of plaintiff’s complaint? This is a
particularly breathtaking argument in view of the fact that the
plaintiff itself . . . has agreed to the government’s motion to
dismiss on mootness grounds." |
August 14 |
In the extremely rare case where it grants a protester's motion
for reconsideration, the GAO held that (although it was too late
in the procurement process to recommend anything other than that
the protester recover its bid preparation and protest costs)
SCB
Solutions, Inc. should prevail because the solicitation had not provided sufficient
information for offerors to compete intelligently and on a fair
and equal basis. |
August 13 |
Through an unusual, but interesting, confluence of circumstances
(and even though it had mailed one copy of its original offer to
the wrong address and had not protested within the GAO's normal
time limits),
Latvian Connection, LLC, won its protest because the
agency had not provided it sufficient time to respond to a
solicitation amendment. |
August 12 |
NASA proposes to amend the NASA FAR Supplement (NFS)
to revise the current clause at 1852.223–70 ("Safety and
Health Measures and Mishaps Reporting") by narrowing its
application, in order to decrease the reporting burden on
contractors while reinforcing the measures contractors at NASA
facilities must take to protect the safety of their workers,
NASA employees, the public, and high value assets. Comments are
due by October 13 |
August 11 |
In
Transatlantic Lines, LLC, the Court of
Federal Claims held that the procuring agency agency reasonably
evaluated the schedules in the awardee's technical proposal, despite
minor discrepancies in them, as complying with the solicitation's
requirements.
In
ViON Corp., another unsuccessful
post-award protest, the court held that: (i) the procuring
agency had properly evaluated the awardee's proposed technical
solution and its proposed price and had conducted a reasonable
price realism analysis; (ii) the awardee's proposal did not take
exception to any material requirements of the RFP; and (iii) the
protester had failed to provide any substantial evidence of an
OCI involving the awardee.
In
American Safety Council, Inc., a
successful preaward protest, the court held that: (i) portions
of a solicitation's technical data rights clauses were unduly
restrictive because they did not reflect the agency's actual,
minimum needs; and (ii) there was sufficient evidence to warrant
requiring the agency to make an OCI determination.
|
August 8 |
In Size
Appeal of NMC/Wollard, Inc., the
SBA's OHA affirmed the Area Office's finding after a prior
remand that the
protested firm would be performing sufficient modifications to
John Deere vehicles to be considered the manufacturer of the
final product. |
August 7 |
The GAO sustained a protest by
Lilly Timber
Services after the agency had found the protester's bid for
a fixed-price contract unrealistically low because the
solicitation did not alert offerors that the agency intended to
evaluate price realism. |
August 5 |
In
Guam Industrial Services, Inc., the Court of Federal Claims
held that, pursuant to FASA, the court lacked jurisdiction over
a protest of the cancellation of a solicitation for a task order
under an IDIQ contract.
In
VLOX, LLC, which involved an issue of contract
interpretation, the ASBCA held that the contract unambiguously
required that "if a contractor's truck waits more than three
days to be loaded and unloaded, the contractor is owed a
demurrage payment for any additional days, regardless of whether
those first three days were spent waiting for loading, waiting
for unloading, or a combination of the two." |
July 31 |
The GAO sustained protests by
Metis
Solutions, LLC, et al. due to numerous flaws in the
agency's evaluation process including the following: the agency
downgraded a proposal for failure to provide a plan not required
by the solicitation; the agency assigned weaknesses to two
offerors, but not to the awardee, for the same proposal content;
there were unexplained discrepancies between the technical
evaluation report and the source selection evaluation report; there
were inconsistencies in the agency's evaluation of the relevancy
of the past performance submission of the awardee versus other
offerors; there was not a sufficient basis in the record for the
performance confidence ratings; and the source selection decision
failed to include a price versus technical tradeoff analysis and
failed to evaluate proposals individually.
In
Xerox Corp., the CBCA held
that, absent any defense asserted by
the Government, the contractor was entitled to the early termination
charges specified in an equipment rental agreement.
In
United Veterans Construction, LLC,
the CBCA dismissed an appeal for lack of jurisdiction because
the contractor had filed only REAs, but not a claim, with the
Contracting Officer.
In
Dekatron Corp., the CBCA held
that, although emails of the Contracting Officer's decision to
corporate officers had failed to be delivered, an email received
by the firm's attorney was sufficient to start the appeal clock
running.
|
July 30
|
GSAR Case 2015-G508:
GSA has issued a proposed rule that would amend the GSAR's
coverage on Construction and Architect-Engineer Contracts,
including provisions and clauses for solicitations and resultant
contracts, to remove
unnecessary regulations. Comments are due by September 28.
In
Precise Systems, Inc., an unsuccessful protest, the Court of
Federal Claims held that there was a rational basis for an OHA decision, which concluded that
(for purposes of determining that the protester did not meet the SDVOSB
requirement that an SDV own a majority of each class of voting
stock) this situation involved two different classes of stock,
even though the court conceded the protester's contrary
interpretation also had a reasonable basis and would have been
upheld had the
OHA adopted it. |
July 28 |
In
ASFA Construction Industry and Trade, Inc.), the ASBCA first
found an implied-in-fact contract absent an express contract,
then incorporated a Termination for Convenience clause into the
implied contract by use of the Christian doctrine, and
finally found that the Government had "constructively"
terminated the implied contract, by virtue of its conduct.
In
CP of Bozeman, Inc., the ASBCA: (i) overturned a termination
for default because the contract gave the contractor the right
to unilaterally end its services at a specific location on one
days' notice, so, doing so, was not a breach of contract;
but (ii) denied the contractor's claim for misrepresentation
because the contractor failed to inquire about, or properly make
use of, data provided by Government.
In
Precision Standard, Inc., the ASBCA: (i) upheld a
termination for default based on the contractor's failure to
deliver the First Article on time; and (ii) concluded that a
provision authorizing a termination at no cost "to the
Government" did not mean the termination would also be at no
cost to the contractor.
In
Highland Al Hujaz Co. Ltd., the ASBCA directed the
Government to file the complaint in part to clarify whether its
claim was just for excess reprocurement costs or might also
include amounts allegedly overpaid to the contractor. |
July 27 |
The Court of Appeals for the Federal Circuit in its [lack of]
infinite wisdom has apparently decided to change the urls for
all its decisions, which, of course, breaks all my links to its
cases. I was trying to fix my links when I discovered that the
court's website, itself, now has a bunch of broken links, so
apparently it has confused itself as well as the rest of us. As
soon as it figures out what it is doing, I will repair the links
here.
|
July 24 |
In
Meridian Engineering Co., the Court of Federal Claims held,
among others too numerous to list here, that: (i) the contractor
was not entitled to the costs of protecting its workers from
contamination at the construction site because the Government
did not misrepresent the site conditions or agree to pay for
such costs; (ii) the contractor's claim based on dewatering
requirements and sewer conditions did not meet the requirements
for either a Type I or Type II Differing Site Condition claim
and was covered by an accord and satisfaction; (iii) an accord
and satisfaction also barred the contractor's claims for flood
events; (iv) the Government's punchlist was not unreasonable;
and (v) the Government did not breach the contract by failing to
reimburse the contractor for its costs of preparing a VECP.
The GAO sustained the protest in
B&B Medical
Services, Inc.; Ed Medical, Inc. because there was no
evidence in the contemporaneous record that the agency had
conducted the price realism analysis contemplated by the
solicitation even though the awardee's price was much lower than
other offerors' prices and the Government's estimate.
In
Triad
Isotopes, Inc., the GAO held that the agency had failed to
conduct an adequate market analysis to determine that it would
receive at least two bids from responsive, responsible small
business, and, therefore, its decision to restrict the
competition to small businesses lacked a rational basis.
The GAO sustained a protest by
Cubic
Applications, Inc., finding that the agency had engaged in
unequal evaluations after it rated the protester's optional
labor rates so exceptionally low as to pose an unacceptable risk
while not evaluating the awardee's even lower optional labor
rates in that manner. |
July 22 |
Declaring "SUFI's twelve-year saga is at an end," the Court of
Federal Claims held in
SUFI Network Services, Inc., that the Government had no
right of appeal from the ASBCA's decision on remand in a case
involving a nonappropriated-fund activity decided under the
Wunderlich Act, rather than the CDA.
|
July 20 |
The CBCA issued two decisions related to procedural issues.
In
Yates-Desbuild, Joint Venture, the Board addressed issues involving
whether certain documents should be released from the coverage
of the Board's protective order.
In
Akal Security, Inc., the Board
discussed the discoverability of documents related to the settlement of
a separate
lawsuit in light of the contractor's assertion of the attorney-client and work
product privileges.
|
July 16 |
The GAO sustained a protest by
International
Waste Industries because the procuring agency conducted
discussions with the awardee, allowing it to correct
unacceptable aspects in its quotation, while failing to conduct
discussions with the protester.
In
A-T Solutions, Inc., an unsuccessful post-award protest, the
Court of Federal Claims held that (i) staffing costs proposed by
the awardee were not objectionable simply because they were
lower than Government's estimate; and (ii) the Government's
evaluations of cost realism and of the competitors' transition
plans each had a rational basis. |
July 14 |
In
Circle, LLC, the ASBCA denied the contractor's constructive
change claims because the Government's engineers, who allegedly
directed the changed work, lacked the express or implied
authority to modify the contract. |
July 13 |
In
Guardian Moving and Storage Co., the Court of Federal Claims
denied the protester's challenges to (i) the type of corrective
action taken by the agency in response to its original protest,
and (ii) the agency's subsequent decision to affirm its
original award. |
July 12 |
In
NAICS Appeal of National Electric Coil,
the SBA's OHA held that the Contracting Officer had properly classified
a solicitation for
the replacement of the stator core and stator winding in an
air-cooled, vertical hydro-electric generator under NAICS code
237990 (Other Heavy and
Civil Engineering Construction) rather than
333611 (Turbine and Turbine
Generator Set Unit Manufacturing), as had been urged by the protester.
July 11 |
The Commerce Department's Bureau of Industry and Security has
published a final rule making
a second set of corrections and clarifications to the
interim final rule originally published on May 13, 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. |
July 10 |
In
Donald Mich, the PSBCA upheld both (i) the Postal Services' termination of
a mail delivery contract (because the contractor had permitted a heroin-addicted
individual to drive the delivery vehicle), and (ii) an assessment against
the contractor for unauthorized fuel purchases.
In
Trojan Horse, Ltd., the PSBCA upheld a
termination of another mail delivery contract because the contractor
persisted in using of single axle tractors
rather than the required tandem axle tractors, even after notice of the
problem from the Postal Service.
In Jim
Carranza Trucking Co., the PSBCA granted one-third of an EAJA claim
because the contractor
had prevailed on only one of three equally-weighted issues.
|
July 9 |
On cross motions for summary judgment in a case involving
government claims for increased costs as a result of various
accounting changes by the contractor on CAS-covered contracts,
the ASBCA held in
Raytheon Co.,
Space & Airborne Systems that:
(i) prior to April 2005, in the absence of regulatory guidance,
there was an established procedure at DoD (recognized by the Board in its
Boeing decision) to permit offsets across contracts of the
effects of simultaneous changes in accounting practices; (ii) the contractor could utilize this
cross-contract offsetting for contracts executed prior
to the effective date (April 8, 2005) of the revised
regulation (FAR 30.606) that prohibited the procedure from that
point forward; (iii)
that revised regulation did not overstep the authority of the
FAR Councils or infringe on the authority of the CAS Board; (iv)
in the absence of any specific allegation by the contractor
as to how it was damaged by the Contracting Officer's failure to consider any of the
regulatory factors except increased costs to the Government in deciding whether the contested
accounting changes
were "desirable," the Contracting Officer's
decision-making process was
unobjectionable; and (v) the Government's attempt to recover both
the increased costs resulting from the accounting changes on
flexibly-priced contracts and the corresponding decreases
in allocations to fixed-price contracts (allegedly to eliminate
excess profits on the latter) amounted to improper double-counting that would
result in a prohibited windfall to the Government.
|
July 5 |
Perhaps the legal analysis is acceptable, but I do not like the
result of the Court of Federal Claims' decision in
WIT Assocs., Inc. The agency's award decision had been
delayed long after the original offers had expired, so the
agency asked each offeror whether it would be willing to revive
its original price. The protester said it would need the
opportunity to submit a revised offer since so much time had
passed. The ultimately successful offeror, whose original offer
was 60% higher than the protester's, agreed to revive its
original offer. So, the agency concluded the protester had
removed itself from the competition and awarded to the
higher-priced offeror, and the court went along with that
decision. Of course, it was reasonable for the protester, having
sharpened its pencil so finely in its original bid, to want to
rethink things after a delay of more than 200 days, and now the
agency has no way of knowing whether, even after repricing, the
protester's bid would still have been low. So, the agency does
not know whether it got the best possible deal, and the
protester was, in effect, penalized for having submitted such a
low original bid, imho.
The State Department has
temporarily revised
Category XI of the Munitions List to clarify that the scope
of control in existence prior to December 30, 2014 for paragraph
(b) and directly related software in paragraph (d) remains the
same. This clarification is achieved by reinserting the words
"analyze and produce information from" and by adding software to
the description of items controlled. A permanent fix for the
issue is being developed.
In
Tri-County Contractors, Inc., the ASBCA held that: (i) a
bidder's disclosure of its proposed debarment to the Contracting
Officer was sufficient to overcome the Government's subsequent
defense of fraud in the inducement; (ii) a general release did
not bar a claim where the Government had reason to know of the
contractor's mistake in failing to exclude the claim from the
release; and (iii) any ambiguity in the contract related to the
contractor's claim was patent, and the contractor had a duty,
but failed, to inquire about it prior to bidding.
In
Smart Construction & Engineering, Co., the ASBCA dismissed
(for lack of standing) an appeal filed by an individual who did
not meet the requirements of Board rule 15(a).
|
July 2 |
The 2015
Procurement Review is up--though July 1--and I will keep
updating it through the end of the year.
Federal Acquisition Circular (FAC) 2005-83 has been
published and includes the following six items, plus technical
amendments:
FAR Case 2014-022: Effective October 1, a final rule amends
the FAR to implement the inflation adjustment of
acquisition-related dollar thresholds using the Consumer Price
Index for all urban consumers, except for the Construction Wage
Rate Requirements statute (formerly the Davis-Bacon Act),
Service Contract Labor Standards statute, and trade agreements
thresholds.
FAR Case 2015-006: Effective November 1, a final rule amends
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.
FAR Case 2014-017: A final rule adopts, without change, the
prior interim rule amending 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.
FAR Case 2014-020: Effective August 3, a final rule amends
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 1 year,
either at time of award or due to post-award modifications.
FAR Case 2015-010: Effective August 3, a final rule amends
the FAR to implement a section of the Carl Levin and Howard P.
‘Buck’ McKeon National Defense Authorization Act (NDAA) for
Fiscal Year 2015 that makes permanent the authority to issue
solicitations using special simplified procedures for
acquisition of certain commercial items.
FAR Case 2015-008: Effective August 3, a final rule amends
the FAR to correct the terminology relating to preparation and
transmittal of synopses and update the descriptions of federal
product and service codes related to exemptions from service
contract labor standards, to conform to the current Federal
Procurement Data System Product and Service Codes Manual. |
June 30 |
In
WHR Group, Inc., the Court of Federal Claims granted an
application under the EAJA for attorneys' fees filed by the
prevailing party in a prior bid protest. |
June 26 |
DFARS Case 2013-D022: DoD has adopted as final, without
change, an interim rule that amended the DFARS to implement a
section of the National Defense Authorization Act for Fiscal
Year 2013, which addresses the allowability of legal costs
incurred by a contractor related to whistleblower proceedings.
DFARS Case 2014-D025: Effective October 1, a final rule
amends the DFARS to implement the inflation adjustment of
acquisition-related dollar thresholds using the Consumer Price
Index for all urban consumers, except for the Construction Wage
Rate Requirements statute (formerly the Davis-Bacon Act),
Service Contract Labor Standards statute, and trade agreements
thresholds.
DFARS Case 2015-D015: In order to conform the DFARS with the
FAR, a final rule (with minor editorial changes): (i) moves the
text of DFARS subpart 225.74 (Defense Contractors Outside the
United States) to DFARS subpart 225.3 (Contracts Performed
Outside the United States); (ii) revises the introductory texts
of the clauses at DFARS 252.225–7040 ( Contractor Personnel
Supporting U.S. Armed Forces Deployed Outside the United States)
and 252.225–7043 ( Antiterrorism/Force Protection for Defense
Contractors Outside the United States) to reflect the changed
location of the prescriptions for use of those clauses; (iii)
makes a minor editorial change to the text of each of the
clauses; and (iv) revises DFARS subparts 204.8, 212.3, and
242.3 to revise references to the DFARS text that has been
relocated from DFARS subpart 225.74 to DFARS subpart 225.3.
DFARS Case 2015-D016: A final rule amends the DFARS to
clarify (for clauses with alternates) the appropriate use of the
basic clauses and their alternates.
|
June 24 |
GSAR Case 2006-G506: GSA has issued a final rule amending
the GSAR to update the text and clauses regarding Hazardous
Materials Identification and Material Safety Data.
|
June 22 |
In Size
Appeal of GaN Corp., the SBA's
OHA held that the record did not support the Area Office's
finding of noncompliance with the ostensible subcontractor rule
but remanded the case to the Area Office to determine whether
the firm's final revised proposal (to which the Area Office did
not have access in its original size determination) showed that
the firm complied with the rule. |
June 19 |
In
Equine Architectural Products, Inc., the ASBCA held it
lacked jurisdiction over a purported claim that was not for a
sum certain and was not certified.
In
White Hand Co., LLC, the ASBCA held it lacked jurisdiction
over a dispute under an I-CERP contract funded entirely by the
Iraqi government for the benefit of the Iraqi people.
In
Enterprise Information Services, Inc., a decision involving
the interpretation of various conflicting notices and questions
and answers published by the procuring agency prior to contract
award, the CBCA held that the prime contract at issue did not
prohibit the prime contractor from also functioning as a
subcontractor in the same agency program but in a different
functional category than the one in which it held the prime
contract.
|
June 18 |
The GAO sustained parts of a protest by
DKW
Communications, Inc. because the procuring agency
failed: (i) to consider the cost to the Government as part of
its cost/technical trade-off analysis; (ii) to document other
aspects of its proposal evaluation; and (iii) to consider the
protester's relevant, positive past experience. |
June 17 |
In
JRS Management, the Court of Appeals for the Federal Circuit
held that, in denying a contractor's claims, the CBCA had erred
(i) by treating the Government's motion to dismiss as a motion
for summary judgment without prior notice to the contractor, and
(ii) by resolving disputed factual issues against the
contractor.
The State Department
proposes to amend the ITAR to revise Categories XIV
(toxicological agents, including chemical agents, biological
agents, and associated equipment) and XVIII (directed energy
weapons) of the U.S. Munitions List (USML) to describe more
precisely the articles warranting control there. Concurrently,
the Bureau of Industry and Security (BIS) proposes that the
items that no longer warrant control under these categories of
the USML would be controlled under the
Commerce Control List (CCL). The affected Category XIV
articles consist primarily of dissemination, detection and
protection equipment and related articles and would be controlled
under new Export Control Classification Numbers (ECCNs) 1A607,
1B607, 1C607, 1D607, and 1E607. The affected Category XVIII
articles consist primarily of tooling, production equipment,
test and evaluation equipment, test models and related articles
and would be controlled under new ECCNs 6B619, 6D619 and 6E619.
Comments are due by August 17. |
June 16 |
In
Bannum, Inc., the Court of Federal Claims held that a
procuring agency's decision to transfer inmates formerly housed
pursuant to the incumbent/protester's bridge contract to
facilities operating under contracts distinct from the protested
contract did not constitute a de facto override of the
automatic CICA stay accompanying the protester's GAO protest. |
June 15 |
In
Cooley Constructors, Inc., the CBCA held it had jurisdiction
over a notice of appeal that had been filed directly by a
subcontractor, in the name of the prime, with the prime's prior
authorization and in accordance with the terms of the
subcontract. Subsequently, the Board
denied the Government's motion for reconsideration. |
June 13 |
Effective July 15, the USDA is amending its regulations
concerning
Guidelines for Designating Biobased Products for Federal
Procurement to incorporate statutory changes to section 9002
of the Farm Security and Rural Investment Act (FSRIA) that went
into effect when the Agricultural Act of 2014 (the 2014 Farm
Bill) was signed into law on February 7, 2014.
GSAR Case 2007-G500: The GSA proposes to amend its
acquisition regulation (the GSAR) (i) to revise requirements for
special contracting methods, (ii) to incorporate various updates
eliminating out of date references, and (iii) to reorganize the
text to align with the FAR. Comments are due by August 14. |
June 12 |
In
Colonial Press International, Inc., the Court of Appeals for
the Federal Circuit held that the Government Printing Office, as
a legislative branch agency, need not, as part of its
bid-evaluation process, refer the responsibility determination
to the SBA before declining to award a contract to a small
business. |
June 11 |
FAR Case 2014-003: A proposed rule would amend the FAR to to
implement regulatory changes made by the SBA, which provide for
a governmentwide policy on small business subcontracting.
Comments are due by August 10.
In
Pernix Group, Inc., the Court of Federal Claims dismissed
protests as unripe because the agency had not yet announced
whether it would implement a GAO recommendation from a prior
protest that would be adverse to the plaintiffs' positions. |
June 10 |
In
The Ryan Co., the ASBCA denied the Government's motion for
summary judgment on whether the contractor's claims were barred
by the CDA's six-year limitations period because the record was
not sufficiently developed and because of disputed questions of
fact concerning when the contractor had reason to know of its
claims for purposes of claim accrual. In
Raytheon Co., the Board reached the same conclusion
concerning the contractor's contention that the Government's
claim was beyond the limitations period. So, it seems clear
that, after the CAFC's decision in
Sikorsky, the Board will be unlikely to decide
questions concerning the six-year time limit until the facts
underlying an appeal have been fully developed, at least through
discovery, and, often, at the hearing. |
June 9 |
In
Size Appeal of
All Around Access, LLC, the SBA's OHA
affirmed the Area Office's finding that
a procurement of utility vehicles conducted in accordance with NAICS 336112
(Light Truck
and Utility Vehicle Manufacturing) in conjunction with
2310 (Passenger Motor Vehicles) was subject to a class waiver of the
nonmanufacturer rule.
In
Per Aarsleff A/S, a consolidated group of successful
post-award protests by disappointed bidders, the Court of
Federal Claims held that the agency improperly awarded the
contract to a subsidiary of a foreign company, which violated
the solicitation's eligibility requirement that the contractor
must be a Danish or Greenlandic company.
June 8 |
In
Joseph Grasser t/a Grasser Logging, the CBCA (by way of
summary judgment) held that a contractor was not entitled to
either a rate redetermination or monetary damages due to insect
damage to some black cherry trees under a timber sales contract
because, inter alia, the Forest Service had disclaimed
warranties in the solicitation and the timber turned out to be
worth slightly more than the estimate in the solicitation. |
June 6 |
In
Snowden, Inc., the ASBCA held that, pursuant to the
"Government Property" clause (FAR 52.245-1), the contractor owed
the Government the proceeds from the sale of "contractor
inventory" to a third party because the Government had not
abandoned the property.
In
Jaynes Corp., a decision limited to quantum, the ASBCA
determined the recoverable costs associated with the
Government's improper rejection of pipe to be used in a fire
sprinkler system.
In
Adria Operating Corporation, d/b/a/ Ramada Inn) d/b/a/ Adria
Hotel & Conference Center, an ADR decision, the ASBCA held
that the contractor had not proved that the agreement on which
its claim was based was either executed or ratified by a
government employee with the requisite contracting authority.
In
Yates-Desbuild, Joint Venture,, the CBCA refused to exclude
the proffered testimony of a scheduling expert concerning,
inter alia, the effect of the building permit process in Mumbai on
a construction schedule. |
June 5
|
In
Matter of A.J.
Nesti Materials, the SBA's OHA held it lacked jurisdiction over
an appeal from a denial of entry into the 8(a) program that was based on
the conclusion that the firm had not shown the potential to successfully meet
the business development objectives of the program. |
June 4 |
In
United States Enrichment Corp., the Court of Federal Claims
held that the contractor's original claim (i.e., that, in
failing to establish any rates, the Government had failed to pay
the contractor's proposed indirect cost rates) was sufficient
for the court's jurisdiction over the contractor's suit
challenging the indirect costs rates subsequently established by
the Government. |
June 3 |
FAR Case 2014-015: A proposed rule would amend the FAR to
implement sections of the Small Business Jobs Act of 2010 and
regulatory changes made by the SBA, which provide for a
governmentwide policy on the consolidation and bundling of
contract requirements. Comments are due by August 3.
The
Department of Commerce's Bureau of Industry and Security (BIS)
is proposing
amendments to the Export Administration Regulations (EAR):
(i) to revise the definitions of "technology," "required,"
"peculiarly responsible," "proscribed person," "published,"
results of "fundamental research," "export," "reexport,"
"release," "transfer," and "transfer (incountry)"; and (ii) to
amend the Scope part of the EAR to update and clarify the
application of controls to electronically transmitted and stored
technology and software. Concurrently, the State Department is
proposing
conforming amendments to the ITAR. Comments on either set of
proposals are due by August 3.
In
Raytheon Co., the Court of Federal Claims held that, where
the procuring agency had not evaluated proposals in
accordance with the solicitation's requirements and had conducted
unequal and misleading discussions with offerors concerning IR&D
cost reductions, the agency's decision to undertake corrective
action in response to a GAO attorney's statements concerning
problems with solicitation process during an outcome prediction
conference in a prior GAO protest had a rational basis. |
June 2 |
In
Rotech Healthcare, Inc., an unsuccessful post-award protest,
the Court of Federal Claims held that the procuring agency's
evaluation of the awardee's transition plan, past performance,
and price realism all had rational bases and were in accordance
with the solicitation's requirements.
FAR Case 2015-019: A proposed rule would define a
multiple-award contract as "a contract that is— (1) A Multiple
Award Schedule contract issued by GSA (e.g., GSA Schedule
Contract) or agencies granted Multiple Award Schedule contract
authority by GSA (e.g., Department of Veterans Affairs) as
described in FAR part 38; (2) A multiple-award task-order or
delivery-order contract issued in accordance with FAR subpart
16.5, including Governmentwide acquisition contracts; or (3) Any
other indefinite-delivery, indefinite-quantity contract entered
into with two or more sources pursuant to the same
solicitation." Comments are due by August 7.
DFARS Case 2015-D028: DoD has issued an interim rule
amending the DFARS to clarify requirements related to costs
associated with indirect offsets under FMS agreements. Comments
are due by August 3.
Effective July 2, the PSBCA is
revising its rules of practice to implement an
electronic filing system. |
May 31 |
In
Fort Howard Senior Housing Assocs., LLC, the Court of
Federal Claims upheld a default termination of an enhanced use
lease due to the lessee's unexcused failure to construct a
required Community Based Outpatient Clinic on the leased
premises and held that: (i) the Government did not breach its
duty to cooperate or any implied warranties by requiring the
lessee to comply with state and local land use and construction
requirements and state and local taxes, or by failing to assist
the lessee in resolving issues that arose out of its obligations
to comply with local zoning laws; (ii) the lessee was not
entitled to reformation due to mutual mistake; and (iii) the
lease was not impossible to perform. |
May 30 |
In Size
Appeal of Tactical Micro, Inc.,
the SBA's OHA affirmed the Area Office's conclusions that the
protested firm was not affiliated with other firms through
common ownership or management or as a result of asset
purchases, (ii) would perform the primary and vital contract
requirements, and (iii) was not unduly reliant on a
subcontractor in violation of the ostensible subcontractor rule.
|
May 29 |
In
Kellogg Brown & Root Services, Inc., the ASBCA held that,
based on its analysis of when a claim had accrued, the
Government had not run afoul of the six-year time limit for
asserting a CDA claim.
Effective June 29, the Justice
Department is finalizing without change an amendment to the
Bureau of Alcohol, Tobacco, Firearms, and Explosives regulations
to remove those defense articles currently on the United
States Munitions Import List that ATF by delegation has
determined no longer warrant import control under the Arms
Export Control Act.
The State Department is
revising the ITAR to rescind the previous policy of denying the
export of defense articles and defense services to
Fiji. |
May 28 |
In
NVE, Inc., an unsuccessful post-award protest, the Court of
Federal Claims held, inter alia, that the protester's
challenge to the procuring agency's corrective action decision,
which the protester raised only after submitting a
proposal for the reevaluation, was waived under the reasoning of
the CAFC's
Blue & Gold Fleet decision, i.e., an offeror cannot
fully participate in a second round of proposal submissions and
then only later challenge the agency’s corrective action
decision.
HUD proposes to amend its acquisition
regulation (the HUDAR) to implement miscellaneous changes
necessary to
update the HUDAR. These changes include a correction to the
designation of Source Selection Authorities, limited delegation
of Head of Contracting Activity authorities, incorporation of
the HUDAR Matrix, addition of new clauses, certain
administrative corrections, and incorporation of alternates to
various clauses to allow for electronic invoicing. Comments are
due by July 27.
FAR Case 2014-025: A proposed rule would amend the FAR to
implement the Executive Order (E.O.) entitled "Fair Pay and Safe
Workplaces," which is designed to improve contractor compliance
with labor laws and increase efficiency and cost savings in
federal contracting and which: (i) requires that prospective and
existing contractors disclose certain labor violations and that
contracting officers, in consultation with labor compliance
advisors, consider the disclosures, including any mitigating
circumstances, as part of their decision to award or extend a
contract; (ii) directs agencies to include clauses in their
contracts that require similar disclosures by certain
subcontractors so their prime contractors can also consider
labor violations when determining the responsibility of
subcontractors; (iii) requires that processes be established to
assist contractors and subcontractors to come into compliance
with labor laws; (iv) requires contractors and subcontractors to
provide individuals with information each pay period regarding
how they are paid and to provide notice to those workers whom
they treat as independent contractors; and (v) addresses
arbitration of employee claims. Comments are due by July 27.
Effective June 29, DoD is promulgating regulations to
establish
ratemaking procedures for civil reserve air fleet contracts. |
May 27 |
FAR Case 2014-018: A proposed rule would amend the FAR (i)
to remove the distinction between DoD and nonDoD agency areas of
operation applicable for the use of FAR clause "Contractors
Performing Private Security Functions Outside the United States"
and (ii) to provide a definition of "full cooperation" within
the clause. Comments are due by July 27. |
May 23 |
DFARS Case 2014-D009: A final rule amends the DFARS to
clarify that entering into a contract award may cause a small
business to eventually exceed the applicable small business size
standard.
DFARS Case 2014-D020: A final rule amends the DFARS to
establish the level of approval required for a determination and
findings for time-and-materials and labor-hour contracts, or
portions of contracts, exceeding $1 million.
DFARS Case 2014-D024: A final rule amends the DFARS to
identify the Wide Area WorkFlow Energy Receiving Report as the
electronic equivalent of the DD Form 250, Material Inspection
and Receiving Report, for overland shipments and the DD Form
250–1, Tanker/Barge Material Inspection And Receiving Report,
for waterborne shipments.
DFARS Case 2014-D019: A final rule amends the DFARS to
update the cancellation ceiling threshold for multiyear
contracts.
DFARS Case 2014-D015: A final rule amends the DFARS to
require contracting officers to consider information in the
Statistical Reporting module of the Past Performance Information
Retrieval System when evaluating past performance of offerors
under competitive solicitations for supplies using simplified
acquisition procedures.
DFARS Case 2015-D007: A proposed rule would amend the DFARS
to implement a section of the National Defense Authorization Act
for Fiscal Year 2015 that revises the restrictions relating to
utilization of domestic photovoltaic devices. Comments are due
by July 27.
DFARS Case 2015-D011: Another proposed rule would amend the
DFARS to comply with the uniform procurement identification
procedures implemented in the FAR. Comments are due by July 27.
Effective July 27 unless a further notice is published as a
result of any unanticipated adverse comments, the EPA is issuing
a
direct final rule to address administrative and minor
non-substantive changes in four clauses of its acquisition
regulation (the "EPAAR"): "Monthly Progress Reports," "Working
Files," "Final Reports," and "Management Consulting Services."
The State Department proposes to amend the ITAR to
clarify the requirements for the
licensing and registration of U.S. persons providing defense
services while in the employ of foreign persons. Comments are
due by July 27.
The Bureau of Industry and Security (BIS)
has made extensive revisions to the CCL to implement changes
made to the Wassenaar Arrangement’s List of
Dual-Use Goods and Technologies maintained and agreed to by
governments participating in the Wassenaar Arrangement on Export
Controls for Conventional Arms and Dual-Use Goods and
Technologies at the December 2014 WA Plenary Meeting. |
May 22 |
In
NAICS Appeal of
Downrange Operations and Training LLC, et al., the SBA's
OHA overturned the Contracting Officer's NAICS code
designation of 541330 (Engineering Services) in favor of 611430
(Professional and Management Development Training) in a
solicitation for offers to
provide training support services, equipment, material,
instruction, and products to improve the capability of U.S. and
partner nation agencies' capability to detect, deter, disrupt,
and degrade national security threats posed by illegal drugs,
trafficking, piracy, transnational organized crime, threat
finance networks, and any potential nexus among these
activities.
In
NAICS Appeal of RCF Information Systems, Inc., the OHA
upheld the Contracting Officer's assignment of NAICS code 517110
(Wired Telecommunications Carriers) over 541513 (Computer
Facilities Management Services) in a solicitation for offers to
provide support services to operate, sustain, and assure the
availability of the Air Force Information Network.
Effective June 12, the DOT's Federal Highway Administration is
issuing a final rule that updates its regulations governing the
procurement, management, and administration of engineering and
design related services directly related to a
highway construction project and reimbursed with federal-aid
highway program funding by (i) revising the regulations to
conform to changes in legislation and other applicable
regulations, including the DOT’s recent adoption of the revised
"Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards," (ii) removing outdated
references, and (iii) addressing certain findings and
recommendations for the oversight of consultant services
contained in national review and audit reports.
The
Bureau of Industry and Security (BIS) has issued a final rule
amending the EAR to facilitate
internet-based communications with persons in the Crimea
region of the Ukraine by allowing exports or reexports without a
license to that region of software that is necessary to enable
the exchange of personal communications over the Internet,
provided that such software is designated EAR99, or is
classified as mass market software under Export Control
Classification Number (ECCN) 5D992.c of the EAR, and provided
further that such software is widely available to the public at
no cost to the user. This final rule is being published
simultaneously with the Department of the Treasury’s Office of
Foreign Assets Control (OFAC) issuance of General License No. 9,
which authorizes the export or reexport from the United States
or by U.S. persons to the Crimea region of the Ukraine of
certain services and software incident to the exchange of
personal communications over the Internet.
As part of
the President’s Export Control Reform (ECR) effort, the State
Department is proposing to amend the ITAR: (i)
to clarify regulations pertaining to the export of items
subject to the EAR; (ii) to revise the licensing exemption for
exports made to or on behalf of an agency of the U.S.
Government; and (iii) to revise the destination control
statement in ITAR § 123.9 to harmonize the language with the
EAR. In tandem with this proposed rule, the BIS is proposing to
revise the
destination control statement in the EAR to harmonize the
statement required for the export of items subject to the EAR
with the destination control statement in the ITAR. Comments on
either set of proposals are due by July 6. |
May 21 |
In
Jacintoport International LLC, the Court of Federal Claims
(i) denied the parties' cross motions for summary judgment after
finding a contract provision concerning the scope of required
fumigation services to be latently ambiguous; but (ii) granted
the Government's motion for summary judgment as to a payment
provision the court held to be patently ambiguous because the
contractor had failed to inquire about that ambiguity prior to
bidding. |
May 20 |
In
NAICS Appeal of
Heritage Health Solutions, Inc., the SBA's OHA
overturned the NAICS code of 621399 (Office for All Other
Miscellaneous Health Practitioners), assigned by the Contracting
Officer, in favor of NAICS code 446110 (Pharmacies and
Drugstores), in a solicitation for the provision of pharmacy
benefits management services.
In
Alliance Roofing & Sheet Metal, Inc.,
the contractor won a battle but lost the war when it failed to
prove the amount of alleged damages it suffered as a result of a
government directive to provide warranty coverage beyond what
was required by the specifications.
In
Dellew Corp., the ASBCA held, inter alia, that FAR
52.212-4(1) (the contract terms for a commercial items contract)
governs a contractor's right of recovery when a commercial items
contract is terminated by the Government for convenience and
that this right is not expanded by DFARS 252.232-7007
("Limitation of Government's Obligation").
In
Al Rafideen Co., the ASBCA held it lacked jurisdiction over
a claim unaccompanied by a signed certification.
In
HSH Nordbank AG, the Court of Federal Claims held that (i)
the mere assignment of contractual rights pursuant to the
Assignment of Claims Act does not create privity of contract
between the private party assignee and the Government, and the
plaintiff did not act as a surety in this case; and (ii) the
plaintiff was not in a position to complain of offsets by the
Government in part because it failed to provide timely notice to
the Contracting Officer of the assignment, as required by the
statute.
In
Old Veteran Construction, Inc., the court granted summary
judgment in favor of the Government and denied a Type I
Differing Site Conditions claim because the contractor failed to
prove the conditions at the work site differed materially from
those indicated in the contract documents.
GSA has issued
a final rule amending its Acquisition Regulation (GSAR)
to remove clause 552.211–93 ("Unique Item
Identification").
The Bureau of Industry and Security (BIS)
proposes to implement the agreements by the Wassenaar
Arrangement (WA) at the Plenary meeting in December 2013 by
imposing a license requirement for the export, reexport, or
transfer (in-country) of certain
cybersecurity items to all destinations (except Canada).
Although these cybersecurity capabilities were not previously
designated for export control, many of these items have been
controlled for their "information security" functionality,
including encryption and cryptanalysis. This rule thus continues
applicable Encryption Items (EI) registration and review
requirements, while setting forth proposed license review
policies and special submission requirements to address the new
cybersecurity controls, including submission of a letter of
explanation with regard to the technical capabilities of the
cybersecurity items. Comments are due by July 20. |
May 19 |
In
Size Appeal of
BCS, Inc.,
the
SBA's OHA held that the Area Office had correctly identified the
primary and vital contract requirements in deciding the
protested firm was not unduly reliant on its subcontractors in
violation of the ostensible subcontractor rule. |
May 16 |
In
Crockett Facilities Services, Inc., the
CBCA refused to dismiss as premature an EAJA fee application filed before
the expiration of the appeal period after a board decision.
In
Systems Management and Research Technologies Corp.,,
the CBCA refused to dismiss claims as
untimely because the contract (i) required the submission of
fee vouchers
before the obligation to pay arose and (ii) permitted the contractor to
wait to submit the fee vouchers until after the entire contract
had been completed.
In
Vet Tech, LLC, the CBCA dismissed items in a complaint that had not been submitted
to the Contracting Officer for a decision or had been withdrawn
from a previous claim before the decision was issued.
|
May 14 |
In
MARCON Engineering, Inc., the ASBCA held that the
contract's original specification requirement was
defective and was effectively relaxed by the incorporation
into the contract of the approach clearly identified in
the contractor's technical proposal, so the Government's
subsequent attempt to impose the specification requirement
was a constructive change. Interestingly, although the
Board ultimately held the issue was not crucial to its
decision, the parties disagreed over which of two
versions of the "Order of Precedence" clause in the
contract took precedence over the other! What caught my
eye, however, was the final sentence in the decision:
"Neither the defective fence foundation design claim nor
the CMP claim have merit." That would be "has," judge. |
May 13 |
As authorized by Section 111 of the "Department of
Commerce Appropriations Act, 2015," the Commerce
Department has issued
an interim final rule amending its acquisition
regulation (the "CAR") by inserting a section and amending
a part to provide procedures for waiving performance
and payment bonds associated with contracts for the
repair, alteration and construction of the NOAA fleet of
research and survey vessels operated by the Office of
Marine and Aviation Operations. |
May 12 |
In
Mansoor International Development Services, Inc., the
Court of Federal Claims held it had jurisdiction over a
contractor's complaint that the methodology used by the
Contracting Officer in rejecting the contractor's claim
violated the implied duty of good faith and fair dealing.
In
Unique Builders Construction Co., an unsuccessful
protest, the court held that, under the highly deferential
standard applicable to such situations, the Government had
a rational basis for its determination that, based on an
analysis of a firm's integrity and ethics, the firm was
ineligible for award. |
May 11 |
The Court of Federal Claims dismissed a protest by
Visual Connections, LLC because the protester had
waived its right to challenge a patent ambiguity in the
solicitation's terms by failing to protest until after
award.
In
Yurok Tribe, the Court of Appeals for Federal Circuit
affirmed the CBCA's dismissal of a case because no
contract had yet been formed between the plaintiff and the
Government. |
May 8 |
FFederal Acquisition Circular (FAC)
2005-82 has been published and includes the following
three items, plus technical amendments:
FAR Case 2014-013: A final rule adopts, without
change, the prior interim rule amending the FAR to
implement rules issued by the DOL's OFCCP relating to
equal opportunity and affirmative action for veterans and
individuals with disabilities.
FAR Case 2013-012: Effective June 8, a final rule
amends the FAR to implement section 802 of the National
Defense Authorization Act (NDAA) for Fiscal Year 2013,
which provides additional requirements relative to the
review of, and justification for, pass-through contracts.
FAR Case 2014-010: Effective June 8, a final rule
amends the FAR to accommodate the recent merger of the
Architect-Engineer Contract Administration Support System
(ACASS) and the Construction Contractor Appraisal Support
System (CCASS) modules within the CPARS database.
In
Allen Engineering Contractor, Inc., a decision labeled
as nonprecedential, the Court of Appeals for the Federal
Circuit upheld the CoFC's dismissal of a complaint seeking
to overturn a default termination because the plaintiff
had not alleged any plausible excuses for its failure to
provide valid performance and payment bonds, which
constituted a material breach of contract. |
May 5
|
The State Department proposes to amend the ITAR to revise
Category XII (fire control, range finder, optical and
guidance and control equipment) of the U.S. Munitions List
(USML) to describe more precisely the articles warranting
control there. In tandem with these changes, the Commerce
Department's Bureau of Industry and Security (BIS)
proposes to amend the EAR's Commodity Control List (CCL)
by creating new
"600 series" ECCNs 6A615, 6B615 and 6D615 for military
fire control, range finder, and optical items, by revising
ECCN 7A611, and by creating new ECCNs 7B611, 7C611 and
7E611 for military optical and guidance items. In
addition, the proposed rule would: (i) expand the scope of
control for certain night vision items currently subject
to the EAR; (ii) eliminate the use of some license
exceptions; (iii) create new ECCNs for certain software
and technology related to night vision items; (iv) expand
the scope of end-use restrictions on certain exports and
reexports of certain cameras, systems, or equipment; and
(v) expand the scope of military commodities described in
ECCN 0A919. Comments on each set of proposed rules are due
by July 6.
In
Tessada & Assocs., the ASBCA held that a notice of
appeal addressed to the Contracting Officer rather than to
the Board, which was deposited in a Postal Service mailbox
within 90 days of receipt of the Contracting Officer's
decision, was timely filed, even though delivery to the
Contracting Officer was delayed somewhat by the fact that
the contractor did not use the exact address listed in the
Contracting Officer's signature block. |
May 4 |
In
Corrections Corp. of America, the CBCA denied the
Government's motion to dismiss an appeal for lack of
jurisdiction based on the contractor's repeated refusals
to provide the supporting cost information requested by
Contracting Officer in support of, first, the contractor's
REAs and, later, its claim. My speculation is that, if the
Contracting Officer had simply refused to issue a decision
absent the cost data he had requested from the contractor,
the CBCA would not have required him to do so. |
May 1 |
The SBA proposes to amend its regulations: (i) to
implement section 825 of the National Defense
Authorization Act for Fiscal Year 2015, which grants
contracting officers the authority to award
sole source contracts to Women Owned Small Businesses
(WOSBs) and Economically Disadvantaged Women Owned Small
Businesses (EDWOSBs); and (ii) to amend its definitions of
underrepresentation and substantial underrepresentation.
Comments are due by June 30. |
April 30 |
In
Suodor Al-Khair Co - SAKCO for General Trading, the
ASBCA held, inter alia, that it had jurisdiction
over a timely appeal from a Contracting Officer's decision
because the Government had failed to support its
contention that there was an earlier decision on the same
subject that had been provided to the contractor. |
April 28 |
In
NAICS Appeal of
Pinnacle Solutions, Inc., the SBA's OHA upheld the
Contracting Officer's assignment of NAICS code 336413
(Other Aircraft Parts and Auxiliary Equipment
Manufacturing), with a corresponding size standard of
1,000 employees, over appellant's contention that the
appropriate code was 611512 (Flight Training), with a size
standard of $27.5 million average annual receipts, on a
contract to manage, operate, maintain, and modify aircraft
simulator devices used to train Air Force personnel to
properly operate KC-10 aircraft. |
April 27 |
In
Charles F. Day & Assocs., LLC, the Court of Federal
Claims held that the procuring agency's decision to award
a competitive bridge contract to the original awardee
during a pending GAO protest rendered the
protester's challenge to the agency's previous override
decision moot.
In
Caddell
Construction Co., the GAO found that the procuring
agency's determination (i.e., that applicants for
prequalification had met the requirements of the Security
Act concerning adequate financial resources and total
business volume) was unreasonable and not supported by the
record. The decision was essentially
overturned by the Court of Federal Claims.
See blog entry at October 5 above.
In the latest chapter from the
Sufi Network Services saga, the Court of Appeals for
the Federal Circuit vacated the portions of the CoFC's
previous decision that had denied the contractor's
requests for overhead and profit on its claim preparation
efforts in connection with its breach of contract claim.
In
Size Appeals of G&C Fab-Con, LLC, the SBA's OHA
affirmed the Area Office's findings that: (i) certain
firms were affiliated through common management because
family members with identity of interests held several
important management positions; and (ii) transactions
between affiliated firms that did not involve the
protested firm, as well as transactions between firms that
did not have a parent-subsidiary relationship should
not be excluded in determining the total receipts of
the protested firm and its affiliates. |
April 24 |
In
Coast Professional, Inc., the Court of Federal Claims
held that the Government's decisions not to extend task
orders based on contractual provisions for evaluating
performance were matters of contract administration and
did not provide the court with bid protest jurisdiction.
In
Park Properties Associates, L.P., the court denied
applications for EAJA fees because the relevant case-law
precedent had been unsettled, and the Government's
litigation position had a reasonable basis. |
April 23 |
The GAO sustained a protest by Alcazar
Trades, Inc., because the agency had performed the
price realism analysis required by the solicitation by
simply comparing bids to the government estimate (and to
one another) without taking the protester's unique
staffing approach into account.
In
Palladian Partners, Inc.,
the Court of Appeals for the Federal Circuit, relying on
the doctrine of exhaustion of remedies, reversed the
CoFC's prior decision, holding the CoFC lacked
jurisdiction over a protest by a firm excluded from the
competition as a result of an OHA ruling in a NAICS code
appeal because that firm had not first participated in the
OHA proceeding, knowing that the OHA's decision could
(and, as it turned out, did) adversely affect its
interests. In other words, if you like the NAICS code
assigned to a solicitation and some other firm protests
it, you better enter an appearance in that OHA proceeding
or risk being unable to appeal if the OHA assigns a new
NAICS code that you don't like (e.g., one that
would render you ineligible for award).
|
April 21 |
In
U.S. Coating Specialties & Supplies, LLC, the ASBCA
denied the Government's motion to dismiss an appeal from a
default termination because open questions remained as to
whether the Contracting Officer had induced the contractor
into agreeing that the Bankruptcy Court would reject the
contract by promising that the Government would then
terminate the contract for convenience.
In
Accurate Automation Corp., the ASBCA denied the
contractor's appeal from the Government's claim for
unallowable costs because the costs at issue did not
qualify as deferred compensation. |
April 20 |
In
Clifford B. Finkle, Jr., Inc., the PSBCA dismissed a
contractor's monetary claim (which the contractor had
submitted following a default termination) for failure to
appeal within 90 days of the Contracting Officer's
decision, holding that, even after the CAFC's ruling in
Sikorsky Aircraft that the CDA's six-year period for
filing claims is not a statute of limitations (and,
therefore, is not jurisdictional), the CDA's 90-day period
for filing appeals is a jurisdictional requirement. |
April 16 |
In
LYB Mechanical Timber Falling and
Processing, the CBCA refused to
dismiss a portion of the contractor's claim related to
costs arising from a suspension of work, because a
contract provision setting a time limit for filing certain
types of claims did not apply to this situation.
In
Coherent Logix, Inc., the ASBCA analyzed (i) the
accrual date for a government claim for unallowable
patent-related legal costs, and (ii) whether FAR
42.709-5 required the Contracting Officer to waive the
penalty for unallowable costs in this situation (finding
that it did not). Subsequently, the Board denied the
contractor's
motion for reconsideration. |
April 15 |
Effective June 15 (unless adverse comments are received by
May 15), the EPA is
amending the EPAAR
(i) to remove source selection guidance and clauses that
are not consistent with current EPA internal operating
procedures for source selections and (ii) to delete
the "Payments—Fixed Rate Services
Contracts" clause because it is inconsistent with the
FAR.
In
Caddell Construction Co., the Court of Federal Claims
ignored a protester's understandable trepidation and held
that, absent an actual contract award, the court lacked
jurisdiction over protests that the Government was
violating CICA's automatic stay provisions by continuing
the evaluation process during the pendency of a timely GAO
protest in which a decision had not yet been issued. |
April 14 |
The EPA
proposes to amend its acquisition regulation (the EPAAR)
to update the "Level of Effort—Cost Reimbursement Term
Contract" clause by modifying the clause title and updating
the corresponding clause prescription. Comments are due by May
11. |
April 13 |
In
CCI, Inc., the Court of Appeals for the Federal Circuit
affirmed the ASBCA's
prior decision that the contractor had not established the
elements required to recover under a Type I differing site
conditions claim. |
April 12 |
In
Kepa Services, Inc.,
the CBCA held that, in the particular circumstances of this
dispute, where the OIG had not issued a subpoena and the
contractor had not previously submitted certified cost or
pricing data, the only means for the VA's OIG to
audit the contractor's records related to its claims was by
means of discovery requests to its attorney under the Board's
discovery rules. |
April 10 |
Federal Acquisition Circular (FAC)
2005-81 has been published and includes the following
item--
FAR Case 2015-013: An interim rule amends the FAR to
implement both (i) Executive Order (E.O.) 13672, "Further
Amendments to Executive Order 11478, Equal Employment
Opportunity in the Federal Government, and Executive Order
11246, Equal Employment Opportunity," and (ii) a
final rule previously issued by the DOL, which substituted
the phrase "sex, sexual orientation, gender identity, or
national origin" for "sex or national origin" in the
applicable regulations requiring affirmative measures by
federal contractors and subcontractors to prevent
discrimination on any of the prohibited bases. Comments
are due by June 9. |
April 9 |
In
Anthem Builders, Inc., the Court of Federal Claims upheld
the procuring agency's decision that the protester's
proffered bond did not satisfy the requirements of FAR Part
28.
In
Northrop Grumman Computing Systems, Inc., on remand from
the CAFC, the Court of Federal Claims held that the contractor
was not entitled to recover any expectation damages as a
result of the Government's decision not to exercise any
options beyond the first year of a delivery order. |
April 8 |
Latvian
Connection, LLC won another GAO protest because the
procuring agency excluded it from a competition due to a perceived
lack of business integrity without referring the matter to the SBA for a CoC determination.
See also April 2 entry below.
NASA is
proposing a third and final set of
updates to its FAR Supplement to streamline
overly-burdensome regulations, clarify language, and simplify
processes where possible. Comments are due by June 8.
The Bureau of Industry and Security (BIS)
has amended the Export Administration Regulations (EAR),
inter alia, to revise six Export Control
Classification Numbers (ECCNs) to reflect changes to the
Missile Technology Control Regime (MTCR) Annex that were
agreed to by MTCR member countries at the September and
October 2014 Plenary in Oslo, Norway. |
April 7 |
In
Precise Systems, Inc.,
the Court of Federal Claims held that, in determining that a
service disabled veteran did not own 51% of "each class" of a
firm's voting stock, the SBA's OHA had not explained its
conclusion that two types of stock were "sufficiently
dissimilar" to constitute separate classes; and, therefore,
the court remanded the case so that the OHA could complete its
analysis.
In
RLB Contracting, Inc., the court denied the protester's
motion for an injunction pending its appeal of the court's
prior order to the procuring agency because (i) there was no
current protest before the court, and (ii) the agency had
literally complied with the court's order to reconsider its
determination of the correct size standard applicable to a
procurement, even though the agency had reached the same
conclusion after that reconsideration.
In
Tech Projects, LLC, the ASBCA held that an allegation
(that the SBA's acceptance of a requirement for the 8(a)
program created implied-in-fact contract) was sufficient to
establish the Board's jurisdiction over an appeal,
especially when the Contracting Officer had agreed with the
point in his decision. However, the Board left the question of
whether such a contract actually existed to be
decided later, on the merits.
In
Optimum Services, Inc., the ASBCA held that a dredging
subcontractor was entitled to recover costs associated with a
Type I differing site condition after encountering much harder
than anticipated subsurface material.
In
Laitifi Shagiwall Construction Co., the ASBCA held it
lacked jurisdiction over disputes involving contracts under
the Commanders' Emergency Response Program (CERP)
program, which are not procurement contracts covered by the
CDA. |
April 6 |
In
MLJ Brookside, the CBCA upheld the GSA's decision to
terminate a building lease for default after the lessor re-let
the space without the GSA's permission following the federal
tenant's vacation of the premises.
In
Zafer Taahhut Insaat Ve Ticaret, A.S., the Court of
Federal Claims held that, under a fixed-price contract that
specifically made the contractor responsible for
transportation costs, the plaintiff was not entitled to
recover extra storage and transportation costs caused by the
Pakistani government's decision to close the border, which
restricted the contractor's access to its construction site in
Afghanistan. |
April 2 |
In
Latvian
Connection, LLC, the GAO decided that a small business had
been improperly excluded from a competition due to a perceived
lack of business integrity because the matter had not been
referred to the SBA for a CoC determination. |
April 1 |
In
The Electronic On-Ramp, Inc., an unsuccessful post-award protest,
the Court of Federal Claims held that the procuring agency had
a rational basis for downgrading the protester's proposal
because it failed to comply with what the agency considered to
be material requirements of the solicitation.
In
Jasmine International Trading & Services Co.,
W.L.L., the court denied the contractor's motion to
dismiss the Government's common law fraud counterclaim because
the allegations in the Government's amended answer and
counterclaim were sufficient to meet the "but-for" causation
test for the alleged fraud.
In
Combat Support Assocs., the ASBCA vacated its prior
decision (in which it had dismissed a government claim for
lack of jurisdiction (as untimely)) because of the CAFC's
recent holding in
Sikorsky Aircraft that the CDA's six-year requirement for
asserting a claim is not a statute of limitations. The Board
left it to the parties to decide how they wished to proceed to
litigate the alleged untimeliness of the Government's claim (e.g.,
by a motion for summary judgment).
In
AMEC Environment & Infrastructure, Inc., the ASBCA held
that, pursuant to its obligations under the "Permits and
Responsibilities" clause, the contractor was not entitled to
any additional costs of obtaining a permit to replace one that
had expired. |
March 31 |
In Matter of Arrow S. Co.,
the SBA's OHA held that the petitioner should be admitted into
the 8(a) program because, in considering her application,
the SBA had improperly rejected or discounted clear evidence
of social disadvantage due to gender bias and discrimination,
which had limited her entrance into and advancement within
typical male-dominated industries. |
March 29 |
In
Safe Haven Enterprises LLC, after looking past several
informational deficiencies in the jurisdictional allegations
in notices of appeal, the CBCA ordered further development of
the record to decide the disputed factual issue of whether the
Contracting Officer had agreed to reconsider his final
decision and, thus, toll the 90-day time period for filing the
appeal.
In
Robert Dourandish, the Court of Federal Claims held it
lacked jurisdiction over claims by an individual shareholder
concerning a company's contract dispute with the Government. |
| March 27 |
In
Monteray Consultants, Inc., an
unsuccessful post-award protest, the Court of Federal Claims
upheld the decision to rescind a task order to the
incumbent contractor as corrective action after the
Contracting Officer identified an OCI absent an effective risk
mitigation plan.
|
March
26 |
In Leeward
Construction Corp., the CBCA granted
the Government's motion for partial reconsideration of the
Board's prior
decision with respect to the proper calculation of fee due
the contractor pursuant to subparagraph (5) of VAAR
852.236-88(b).
In I-A
Construction & Fire, LLP, the CBCA (i) upheld a
default termination because the contractor presented no
adequate defenses or excuses; and (ii) dismissed the
Government's request for excess reprocurement costs and the
contractor's request for excess costs for lack of jurisdiction
because neither was the subject of a prior decision by the
Contracting Officer.
DFARS
Case 2011-D038: DoD has adopted as final, without change,
an interim rule amending the DFARS to remove language based on
a statute that provided the underlying authority for DoD’s
Small Disadvantaged Business program because the governing
statute has expired.
DFARS
Case 2015-D006: DoD has issued an interim rule amending
the DFARS to implement sections of the Military Construction
and Veterans Affairs and Related Agencies Appropriations Act,
2015, that (i) require offerors bidding on DoD military
construction contracts to provide opportunity for competition
to American steel producers, fabricators, and manufacturers
and (ii) restrict use of military construction funds in
certain foreign countries, including countries that border the
Arabian Gulf. Comments are due by May 26.
|
March
24 |
In Size
Appeal of Camp
Noble, Inc., dba 3-D Marketing,
the SBA's OHA held that the Area Office had correctly
determined that a firm was not
small because it: (i) stated in its proposal that another firm was the
"actual manufacturer" of the contract items; (ii) admitted
it had no employees; and (iii) failed to provide information requested
by the Area Office.
In Size
Appeal of Medical Comfort Systems, Inc., and B&B Medical Services, Inc.,
the OHA held that the Area Office had correctly determined that
past affiliations between several firms had ended well before
the date for
determining size and that an identity-of-interest analysis did not apply
because there was no evidence of economic
dependence or firms being owned by family members or common investors.
FAR
Case 2015-001: Public comments are being sought to assist
in the process of updating the list of domestically
nonavailable articles under the Buy American Act:
specifically, the Government seeks information that will
assist in identifying domestic capabilities and in evaluating
whether some articles on the list of domestically nonavailable
articles are now mined, produced, or manufactured in the
United States in sufficient and reasonably available
commercial quantities and of a satisfactory quality. Comments
are due by May 26.
In Government
Contracting Resources, Inc., the ASBCA held that, pursuant
to FAR 52.222-43, the contractor was entitled to recover its
increased costs for severance payments required by the
applicable CBA upon contract expiration.
In HEB
International Logistics, the ASBCA dismissed claims for
lack of jurisdiction because the language in the claim letter
was not close enough to the required language to be considered
even a defective certification.
In Carro
& Carro Enterprises, Inc., the ASBCA denied the
contractor's motion for an order directing the Government to
file the complaint because the appeal involved a claim by the
contractor for the percentage of progress payments retained by
the Government, and the contractor had sufficient information
concerning the basis for the withholding to file the
complaint.
In Martin
Edwards & Assocs., the ASBCA denied the contractor's
claim after finding that the release-of-claims language in a
bilateral modification was not induced by any
fraudulent or a material misrepresentation by the Government
upon which the contractor justifiably relied.
In DODS,
Inc., the ASBCA considered various elements of a
contractor's convenience termination settlement proposal,
including: costs of work-in-progress, G&A, profit (on a
loss contract), costs of litigation, and settlement expenses.
In RAK
Contractors, LLC, the CBCA upheld a default termination
because the contractor failed to perform and did not establish
(i) the requirements for a mistake in bid or (ii) that its
financial difficulties were an acceptable excuse for
nonperformance.
|
March
21 |
The
GAO sustained a protest by Smith
and Nephew, Inc., finding a specification was unduly
restrictive of competition because the agency had not
established that it had any actual need for the
requirement.
|
March
20 |
In Hanel
Storage Systems, L.P., the GAO held that the VA erred in
issuing a purchase order to a vendor whose quotation did not
comply with a material requirement of an RFQ, rejecting the
agency's loopy argument that, because a quotation is not an
offer, anything goes in an RFQ.
In Hyperion,
Inc., the Court of Federal Claims held that, although it
had jurisdiction over a post-award protest of an agency's
decision to cancel a solicitation and substitute a sole-source
award directed by a foreign government, the International
Agreement exception to CICA applied to the situation and
precluded the protester from recovering its bid and proposal
costs.
The
Court of Federal Claims has established the following email
address to which pre-filing notices of bid protests may be
sent: CFC_Bidprotests@ao.uscourts.gov
. For the court's rules concerning the required pre-filing
notice, see link.
|
March
18 |
In
Impact
Assocs., the CBCA held that the contractor was entitled to
recover its out-of-pocket expenses incurred as a result of
directives issued by the Government on what would otherwise
have been a no-cost order that were outside the scope of the
order and changed its nature (directives that required
compliance with certain federal ethics and fiscal laws and
regulations, along with, inter alia, the elimination of
corporate sponsorships).
In Seven
Seas Shipchandlers, LLC, the ASBCA held that the
Government was liable to the contractor for a contract payment
because the Government (without following the proper
procedures for verifying his identity) had made payment to a
person who had forged a signature and who was not proven to
possess apparent authority to act on behalf of the
contractor.
In Anwar
Alsabah Co., the ASBCA held that it lacked jurisdiction
over a contractor's request that the Board direct the
Contracting Officer to issue a decision because there was no
evidence a properly certified claim had been submitted to the
Contracting Officer.
In Environmental
Safety Consultants, Inc., the ASBCA held that a
contractor's price-based convenience termination settlement
claim failed for lack of proof because the contractor did not
maintain a job cost ledger, provided gross payroll records
that did not identify the job on which the employee was being
paid, and provided copies of checks payable to a subcontractor
and vendors that were unsupported by invoices.
|
March
15 |
In Tamba
Manya Momorie, the PSBCA held that a contractor's
contentions that he was the victim of racially-motivated
animus and conspiracies by the Government (which he claimed
excused a default on one contract and motivated the
non-renewal of other contracts) were not credible.
|
March
14 |
In Americom
Government Services, the CBCA denied the Government's
motion to dismiss an appeal for lack of jurisdiction because
open questions remained as to whether there was an
implied-in-fact contract based on institutional ratification. In
Mykola
Shchupak, the CBCA denied a claim that a vehicle purchased
at an on-line auction was not the same as the one shown in a
photograph because the auction materials warned bidders not to
rely on the photographs, and the plaintiff declined to inspect
the actual car before bidding.
In Construction
Group LLC, the CBCA held it lacked CDA jurisdiction over
an appeal because there was no underlying claim or Contracting
Officer's decision. Subsequently, the Board denied
the contractor's request for relief from judgment.
In Comprehensive
Community Health & Psychological Services, LLC, the
Court of Federal claims held that: (i) routine invoices which
were not in dispute at the time they were submitted for
payment did not constitute CDA claims; and (ii) the
contractor's challenge of a default termination filed more
than 12 months after the termination was untimely.
|
March
13 |
Effective
April 13, a
final rule amends the NASA Federal Acquisition Regulation
Supplement (NFS) with numerous revisions designed to eliminate
unnecessary regulation, clarify language, and simplify
processes.
In Northrop
Grumman Systems Corp., the Court of Federal Claims
analyzed the standards for enforcing a "claw back"
provision for the return of privileged documents inadvertently
produced during discovery.
In Bannum,
Inc., the Court of Appeals for the Federal Circuit
affirmed the CoFC's prior decisions denying a protest, but on
different grounds, i.e., that the protester's challenge
to the solicitation's terms was untimely because not it was
not "adequately" raised before award, and that, on
appeal, the protester had failed to preserve its challenge to
the evaluation.
|
March
11 |
In CGI
Federal Inc., the Court of Appeals for the Federal Circuit
reversed the CoFC's prior
decision in a preaward protest and held that: (i)
FAR Part 12 applied to RFQs for commercial item orders made
against existing FSS contracts; and (ii) the RFQs' unusual
payment terms violated Part 12's prohibition against including
contract terms inconsistent with customary commercial practice.
As a preliminary matter, the court held that the protester,
who had not submitted a bid, but who had, instead, filed a
timely preaward GAO protest and then promptly (within 3 days)
filed suit at the CoFC after the GAO had denied the protest,
had standing to maintain its protest at the court.
In TriRAD
Technologies Inc., the ASBCA discussed at length the proper manner
of calculating the amount due a contractor pursuant to each
prong ("percentage of work performed" and
"reasonable charges resulting from the termination")
of FAR 52.212-4(1) under a commercial items contract after the
original default termination had been converted to a
termination for convenience. In
Military
Aircraft Parts, the ASBCA denied the contractor's application for
an EAJA recovery because the Government had voluntarily
satisfied the contractor's original claim without a board
decision. In
Joseph
Grasser t/a Grasser Logging, which involved a timber sale
contract, the CBCA held that the contractor had not
established the elements required to prove "catastrophic
damage" to purchased timber under the contract's
"Damage by Catastrophe" clause.
|
March
10 |
The VA has
adopted
as final, and without changes, the prior interim rule: (i)
amending its adjudication procedures for SDVOSB and VOSB
status protests to provide that (a) VA’s Director, Center
for Verification and Evaluation (CVE), shall initially decide
SDVOSB and VOSB status protests, and (b) protested businesses,
if they are denied status, may appeal to VA’s Executive
Director, Office of Small and Disadvantaged Business
Utilization (OSDBU); and (ii) revising the meaning of the
title "CVE" from the "Center for Veterans
Enterprise" to the "Center for Verification and
Evaluation," in order to more appropriately describe the
function of this office.
|
March
9 |
In G4S
Technology LLC, the Court of Appeals for the Federal
Circuit affirmed the CoFC's prior
decision that the Government's actions did not
establish that the plaintiff/subcontractor was an intended
third party beneficiary of the prime contract.
|
March
4 |
In
JEM
Transport, Inc., the Court of Federal Claims held that: (i)
an unsigned document to extend the contract term, which was
sent to the contractor, was not an offer that could be
accepted by the contractor, because the Contracting Officer
neither sent it, nor ever signed it; and (ii) a letter was not
a claim because it did not include a demand for a sum certain.
In ADT
Construction Group, Inc., the ASBCA discussed the
requirements for collateral estoppel and held that, in this
case, it precluded the contractor from re-litigating the
existence of a causal nexus between the government-caused
preconstruction delays and the contractor's trade subcontract
cost escalation damages.
In Hearthstone,
Inc., the CBCA denied an appeal from a default termination
because the contractor failed to prove the required elements
of the defense of commercial impracticability.
Effective
April 3, the Department of the Treasury is amending its
acquisition regulation (the "DTAR") to make editorial
changes in response to updates made to the FAR, Treasury
bureau organizational restructuring, and other internal
updates that have occurred since the 2013 edition.
GSAR
Case 2013-G504: GSA proposes to amend its acquisition
regulation (the "GSAR") to include clauses that
would require vendors to report transactional data from orders
and prices paid by ordering activities for orders placed
against both FSS contract vehicles and GSA’s non-FSS
contract vehicles: Governmentwide Acquisition Contracts
(GWACs) and Governmentwide IDIQ contracts. A public meeting on
the proposal will be held on April 17, and written comments
are due by May 4.
|
March
3 |
In
Matter
of PotomacWave Consulting, Inc., the SBA's OHA
concluded the SBA had rational bases for concluding that a
firm qualified as an Economically Disadvantaged Women-Owned
Small Business because its President exercised the requisite
control, had the required managerial experience, and did not
run afoul of the limitation on outside employment.
In Raymond
Express International, LLC, an unsuccessful preaward
protest,, the Court of Federal Claims held that: (i) there was
nothing improper in the solicitation's treatment of
transportation costs; (ii) the market research conducted by
the agency in determining the form of the solicitation was
adequate; and (iii) the solicitation's price evaluation scheme
had a rational basis.
|
February
28 |
In Northeast
Construction, Inc., an unsuccessful preaward protest, the
Court of Federal Claims held that: (i) a protest against
issuance of a solicitation amendment filed after the date the
amendment set for the submission of revised proposals was
untimely; and (ii) absent a contract document signed by the
Government, which the solicitation required, no contract
existed between the Government and the plaintiff, even though
the Government had determined that the plaintiff's proposal
was the only technically acceptable proposal received and had
orally informed it that it was the successful offeror.
In
E&E
Enterprises Global, Inc., while considering the
Government's preliminary motion to dismiss portions of the
Complaint concerning an ID/IQ contract that the Government had
terminated for its convenience after it had ordered the
minimum required quantity, the court held that the
Government's duty of good faith and fair dealing applies to
ID/IQ contracts.
In
Red
River Computer Co., one of those decisions that
demonstrates just how hard it is to win a bid protest, the
court held that, where there were many proposals that were
more highly rated than the plaintiff's, the agency's errors in
evaluating the plaintiff's Past Performance were not shown to
be prejudicial, and the agency's decision to exclude the
plaintiff from the competitive range, despite its low price,
had a rational basis. It looks to me, however, that the
agency's own administrative record reveals that its errors had
a significant effect on the evaluation of the protester.
HHS
proposes a lengthy set of revisions
to its FAR Supplement (the HHSAR): to update its
provisions to current FAR requirements; to remove information
from the HHSAR that consists of material that is internal
administrative and procedural in nature; to add or revise
definitions; to correct certain terminology; and to delete
outdated material and material duplicative of the FAR.
Comments are due by May 1.
|
February
27 |
Bear with
me through this explanation. In late 2011, the SBA switched
its system for linking to decisions of the OHA. I adjusted
accordingly, so all my links to OHA decisions beginning in
2012 are still good. For a time, the SBA's website also
retained an archive of decisions before 2012, and I continued
to link to that archive, which worked until recently. Now,
however, the SBA has taken down that archive, so all my links
to OHA decisions from 2007 through 2011 are broken.
Fortunately, I had previously taken the precaution of
downloading all those archived decisions to my desktop, just
in case, and I have now uploaded all those decisions to this
website. So, they are here, but the links to them are still
broken, and it's going to be a large effort to correct the
links, which I will do a bit at a time. In the meantime, if
you click on a link and it is still broken, here is a
workaround. Get the case number from the citation to the case
on my SBA OHA Decisions
page. Then, type that case number into your browser bar in the
format I use for other cases of that type, and you will
be taken to that case.
|
February
26 |
In
Size Appeal of Novex Enterprises,
the SBA's OHA held that (i) a challenge to the NAICS code
assigned to the procurement made during course of a size
determination a year after the solicitation had been issued
was untimely; and (ii) the Area Office correctly determined
the protested firm would not manufacture the end items and,
thus, was not eligible for award under a small business
set-aside procurement.
In Size
Appeal of NMC/Wollard, Inc., on the other hand, the
OHA determined that the Area Officer had not adequately
investigated the question whether the protested firm would be
the manufacturer of the contract items and remanded the case
to the Area Office to complete that analysis.
DFARS
Case 2015-D005: DoD is proposing to amend the DFARS to
implement sections of the Department of Defense Appropriations
Acts for Fiscal Years 2014 and 2015 that prohibit use of funds
made available under the acts for the purchase or manufacture
of a flag of the United States, unless such flag is
manufactured in the United States. Comments are due by April
27.
DFARS
Case 2014-D022: A final rule amends the DFARS to to
implement the statutory domestic source restrictions on
acquisition of certain naval vessel components.
DFARS
Case 2015-D002: A final rule amends the DFARS to delete
obsolete language concerning the acquisition of commercial
items.
|
February
25 |
GSA proposes
to amend the Federal Property Management Regulations (FPMR)
and the Federal Management Regulation (FMR) by: (i) migrating
regulations regarding the supply and procurement of government
personal property management from the FPMR to the FMR; and
(ii) eliminating material that is not regulatory in nature,
overly prescriptive, addressed in other policy, or outdated.
Comments are due by April 27.
In Kepa
Services, Inc., the CBCA granted, in part, the
contractor's motion to compel discovery but also extended the
previously established discovery schedule because of the
"burdensome" nature of the contractor's voluminous
discovery requests.
|
February
24 |
In
Equa
Solutions, Inc., an unsuccessful post-award protest, the
Court of Federal Claims held that (i) a solicitation amendment
issued after initial proposals were submitted did not require
the agency to conduct discussions with the protester
concerning deficiencies in its proposal; and (ii) the agency
properly concluded the protester's price proposal was
unrealistically low because it did not include elements
discussed in the protester's technical proposal.
In Rudolph
and Sletten, Inc., the court held that, because the CDA
allows a Contracting Officer only one extension of the 60-day
time limit for deciding claims in excess of $100,000, the
Contracting Officer's attempt at a second extension amounted
to a deemed denial of the claim, which gave the court
jurisdiction over the contractor's action. Nevertheless, the
court exercised its discretion and stayed the proceedings
while ordering the Contracting Officer to issue a decision
within 30 days.
Similarly,
in Tokyo
Co., the ASBCA directed the Contracting Officer to issue a
decision (also within 30 days of the Board's order), noting
that the Contracting Officer could not rely on a decision
previously issued before the contractor had submitted the
required certification for its claim. In GSC
Construction, Inc., the Board dismissed the appeal because
the required certifications were not submitted until after the
Contracting Officer's decision was issued and, in one case,
until after the appeal was filed.
In TTF,
LLC, the Board noted, inter alia, that a contractor
receiving multiple copies of the same final decision on
different days is entitled to compute the 90-day period of
appeal from date of the last copy received.
In another
GSC
Construction, Inc. case, the Board denied the contractor's
motion to amend its complaint to add two new claims because
they did not arise from the same operative facts as the
original claim under appeal and neither of them was a proper
claim that had been the subject of a valid decision by the
Contracting Officer.
In C.R.
Pittman Construction Co., the Board, inter alia, denied
a contractor's Type I differing site condition claim because
the contractor had stopped work before it ever exposed (i.e.,
"encountered" in the language of the clause) the
allegedly differing site condition.
In Tele-Consultants,
Inc, the Board held that a subcontractor had failed to
establish an implied-in-fact contract with the
Government because the Government never indicated an
intention to contract directly with the sub.
In the
complex and long-running SUFI
Network Services dispute, after remand from decisions by
the CoFC and CAFC,
the Board increased the amount it originally awarded the
contractor on its $131 million claim from approximately $7.5
to $111 million. Subsequently, the Board
denied the Government's
request for reconsideration except for points of
clarification but
granted the contractor's unopposed motion to increase the award
pursuant to Count XVI.
|
February
21 |
In EM
Logging, the Court of Appeals for the Federal Circuit
reversed the CBCA's prior
decision upholding a termination because the evidence did
not establish "a pattern of activity that demonstrates
flagrant disregard for the terms of this contract" as
required by the contract's "Termination for Breach"
clause.
|
February
20 |
In Systems
Integration and Management, Inc., the CBCA held that even
though agency's litigation position was not substantially
justified at the outset, it became so after the agency made a
reasonable settlement offer, which the contractor rejected;
therefore, the contractor's EAJA award was limited to
activities occurring before the settlement offer was made.
|
February
19 |
In
QBE,
LLC, an unsuccessful preaward protest, the Court of
Federal Claims held there was a rational basis for the
procuring agency's decision to exclude a firm from the
competitive range due to numerous, material deficiencies in
its technical proposal.
In
Matter of KBT Contracting
Corp., the SBA's OHA affirmed the SBA's denial of a firm's entrance into
the 8(a)
program because, although SBA's analysis of the claimed social disadvantage as a
result of gender bias
was deficient, the separate basis for denial (control of the business by a nondisadvantaged individual)
was supported by the record.
|
February
18 |
The
Bureau of Industry and Security has
amended the Export Administration Regulations: (i)
to revise the general licensing policy from one of denial to
one of case-by-case licensing for exports and reexports to
Sudan of telecommunications equipment and associated
computers, software, and technology for civil end use,
including items useful for the development of civil
telecommunications network infrastructure; (ii) to revise
License Exception Consumer Communications Devices (CCD) (which
previously applied only to consumer communications devices to
Cuba) to authorize exports and reexports of such devices to
Sudan; (iii) to make minor technical changes to the list of
items that are eligible for both Sudan and Cuba under the
license exception; (iv) to make changes to License Exception
Temporary Imports, Exports, Reexports and Transfers
(in-country) in light of the changes to License Exception CCD;
and (v) to remove a license requirement for reexports to Sudan
of certain telecommunications software.
|
February
17 |
In Draken
International, Inc., an unsuccessful preaward protest, the
Court of Federal Claims held that: (i) there was no basis for
the protester's contention that justifiable delays in the
solicitation process converted what were initially
unobjectionable solicitation terms into undue restrictions on
competition; (ii) the argument that the protester had been
treated differently from other offerors was unripe because
award had not yet been made; and (iii) the court does not
perform an appellate review of the decision on an underlying
agency-level protest, but, instead, reviews only an agency's
procurement actions.
|
February
16 |
GSAR
Case 2006-G506: GSA proposes to amend its acquisition
regulations (the GSAR) to update the text and clauses
regarding Hazardous Materials Identification and Material
Safety Data. Comments are due by April 20.
|
February
13 |
In Watts
Constructors, LLC, the ASBCA held that a construction
contractor that had chosen to account for job site overhead
expenses as indirect costs pursuant to FAR 31.105(d)(3)
could not switch and treat them as direct costs for the
duration of a government-caused delay.
In Framaco
International, Inc., the Court of Federal Claims held that
the procuring agency had a rational basis for declining to
adjust the value of the protester's past projects for
inflation or to credit it with the value of unresolved REAs so
that it would meet the requirements to have performed work of
a specified value in order to prequalify to participate
in the competition at issue.
In
K-Con
Building Systems, Inc., the Court of Appeals for the
Federal Circuit affirmed prior
CoFC decisions that (i) the liquidated damages provision
in the contract was enforceable; (ii) the contractor had
failed to provide timely notice of alleged changes in
accordance with the "Changes" clause; and (iii) the
court lacked jurisdiction over the contractor's claim for time
extensions because it had not been first presented to the
Contracting Officer for a decision.
|
February
12 |
In
Size
Appeal of Brown & Pipkins LLC, the SBA's OHA held
that the Area Office had correctly determined that the prime was affiliated with
its large business sub through the ostensible subcontractor rule
because the sub's procedures, people, quality
control program, and equipment would be used to conduct the primary and
vital contract responsibilities.
In Matter
of Cornerstone Construction Services, Inc., the OHA
held that, in analyzing whether an 8(a) applicant was
economically disadvantaged, the agency had correctly
determined that the amount of a home loan taken as second
mortgage on a primary residence should be subtracted from the
equity value of that residence in computing the applicant's
net worth.
In Matter
of The Desa Group, Inc., the OHA upheld a termination
from the 8(a) program because, even though two of the grounds
for termination lacked a rational basis, the third (that the
firm was unduly reliant on another business that already had
graduated from the program) was supported by the evidence in
the record.
|
February
10 |
In Adams
and Assocs., after having lost previous protests and
appeals at the Court of Federal Claims, the Federal Circuit,
and the GAO, the incumbent lost yet another challenge to the
agency's decision to conduct a procurement for operation of a
Job Corps center as a small business set-aside, this time
failing in its argument that the agency's generalized
request for public comments on how to implement
Congressional instructions (passed well after the solicitation
had been issued) that the DOL should consider an incumbent's
performance in making such set-aside decisions constituted a
new procurement decision.
In
Woodies
Holdings LLC, the court held that the plaintiff had
established that (despite the fact that it had not received
the requested return receipt) it had timely and properly
submitted (by certified mail) the notice required for
reimbursement of real estate tax payments, especially given
testimony from both parties that the Government had mishandled
mailed submissions in the past.
In
Universal
Marine Co., K.S.C., the court held that the fourth-highest
rated offeror who had failed to protest the ratings of any but
the winning offeror and who had filed only one (untimely)
challenge to the overall solicitation, lacked standing.
Effective
August 10, the SBA is amending
its small business size regulations: (i) to implement
statutory provisions establishing limitations of liability
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 or Procurement
Technical Assistance Centers; (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
the SBA may initiate a formal size determination.
|
February
9 |
GSA has withdrawn
GSAR Case 2008–G509 (Rewrite of GSAR Part 536, Construction
and Architect-Engineer Contracts), originally published on
December 2, 2008, because the agency believes that an agency
review of the current implementation plan for this GSAR case
is appropriate to address the variety of issues included in
the GSAR Part 536 rewrite.
The State
Department is making a host of technical
amendments to its acquisition regulation (DOSAR) to
update procedures and terminology and align the DOSAR with
changes to the FAR.
|
February
6 |
In Quimba
Software, Inc., the Court of Federal Claims denied the
contractor's motion to dismiss the Government's counterclaim,
which (although it corrected an error in the original
Contracting Officer's decision demanding repayment of
unallowable costs and reduced the amount sought to be
recovered) was based on the same operative facts and legal
theory as the original decision.
|
February
5 |
GSAR
Case 2014-G504: GSA proposes to amend its acquisition
regulation (GSAR) to remove clause 552.211–93 (Unique Item
Identification) because it: (i) is no longer needed with
respect to serially managed supply items and supply items of
$5,000 or more; (ii) is unnecessarily duplicative of
provisions in the DFARS, which can be used directly; and (iii)
only pertains to deliveries to military activities. Comments
are due by April 6.
SBA
proposes to
amend its regulations: (i) to establish a government-wide
mentor-protégé program for all small business concerns,
consistent with SBA’s mentor-protégé program for
Participants in SBA’s 8(a) Business Development (BD)
program; (ii) to adopt minor changes to the mentor-protégé
provisions for the 8(a) Business Development program in order
to make the mentor-protégé rules for each of the programs as
consistent as possible; (iii) to amend the current joint
venture provisions to clarify the conditions for creating and
operating joint venture partnerships, including the effect of
such partnerships on any mentor-protégé relationships; and
(iv) to make several additional changes to current size, 8(a)
Office of Hearings and Appeals and HUBZone regulations,
concerning among other things, ownership and control, changes
in primary industry, standards of review and interested party
status for some appeals. Comments are due by April 6.
In Professional
Performance Development Group, Inc., the Court of Federal
Claims denied the Government's motion to dismiss portions of a
contractor's complaint alleging excusable delay in response to
a default termination because they were defensive allegations
rather than affirmative claims.
|
February
3 |
In Total
Engineering Inc., the Court of Federal Claims held, inter alia,
that a contractor's allegation of defective specifications
pled as a defense to a government claim for a deductive credit
was not a CDA "claim" and, therefore, did not have
to be submitted to the Contracting Officer for a decision
before being raised at court.
In Canpro
Investments Ltd., the court held it lacked jurisdiction
over a lessor's suit for a preliminary injunction that would
require the government/lessee to abate noise and overcrowding
by reducing the number of visitors to government offices in
the leased premises pending the issuance of a Contracting
Officer's decision on the contractor's claim.
In EJB
Facilities Services, the ASBCA rejected the contractor's
use of a total cost method to measure quantum because the
contractor failed to establish both: (i) the impracticability
of measuring its losses directly; and (ii) the reasonableness
of its bid in light of the Government expert's allegations
regarding mistakes in that bid. In
Amaratek,
the ASBCA awarded a prevailing party appearing pro se
$33.47 in EAJA expenses for FedEx and notary costs. In
Kellogg
Brown & Root Services, Inc., the ASBCA directed the
Government to file the complaint on a government claim because
the Contracting Officer's decision did not contain sufficient
information concerning the basis for the claim to permit the
contractor to draft the complaint. In
Axxon
International, LLC, the ASBCA held it had jurisdiction
over: (i) a misdirected appeal sent to agency counsel within
the 90 day period; and (ii) another appeal received by the
Board on the Monday following the Sunday that was 90th day
from the date the contractor had received the Contracting
Officer's decision.
|
January
31 |
In NAICS
Appeal of Allserv, Inc., a successful protest, the
SBA's OHA held that a solicitation for the maintenance of
cemetery grounds and structures belonged under NAICS 561730
(Landscaping Services) rather than the Contracting Officer's
choice of 812220 (Cemeteries and Crematories).
|
January
30 |
OFCCP
proposes regulations that would set forth requirements that covered
federal government contractors and subcontractors and federally
assisted construction contractors and subcontractors must meet in fulfilling
their obligations under Executive Order 11246, as amended, to ensure
nondiscrimination in employment on
the basis of sex and to take affirmative action to ensure that applicants are
employed, and that employees are treated during employment, without
regard to their sex. This proposal would substantially revise the existing Sex
Discrimination Guidelines, which have not been substantively updated since
1970, and replace them with regulations that align with current law and legal
principles and address their application to current workplace practices and
issues. Comments are due by March 31.
In Size Appeal of
Connected Logistics, Inc., the SBA's OHA held that the Area Office
correctly determined the challenged firm acted as a broker rather than
a conference management service provider, and, therefore, under 13
C.F.R. 121.104(a), was not entitled to exclude from its receipts
revenue that the challenged firm had characterized as reimbursements.
|
January
29 |
In Leeward
Construction Corp., the CBCA held that the phrase
"provided by VAMC" in the title to the asbestos
abatement section of the contract specifications had been
reasonably interpreted by bidders to mean that such work would
be performed by the Government after the VA refused to further
clarify phrase in response to bidders' questions,
especially where the VA's subsequent interpretation of
the phrase made no sense.
FAC
2005-80 has been published and includes the following two
items (plus technical amendments):
FAR
Case 2013-001: Effective March 2, a final rule amends the
FAR to strengthen protections against trafficking in persons in
federal contracts as required by Executive Order 13627 and title
XVII of the National Defense Authorization Act for Fiscal Year 2013.
FAR
Case 2014-008: Also effective March 2, a final rule amends
the FAR to strengthen guidance on service acquisitions
involving uncompensated overtime. Specifically, the existing definitions of
"uncompensated overtime" and "uncompensated overtime
rate" at FAR 52.237–10(a) have been incorporated at FAR 37.101, with the defined term
"uncompensated overtime rate" changing to
"adjusted hourly rate (including uncompensated
overtime)," whose definition, in turn, clarifies that the proposed hours per week include
uncompensated overtime hours over and above the standard 40-hour work
week. The clause at FAR 52.237–10 is further amended to clarify the
application of the adjusted hourly rate, and categorization of proposed hours
subject to the adjusted hourly rate.
The Bureau
of Industry and Security has issued a final rule amending the Export Administration
Regulations (EAR) to impose additional sanctions that implement U.S. policy
toward Russia, by: (i) imposing a license requirement for the export and
reexport to the Crimea region of
Ukraine (and the transfer within that region) of all items
subject to the EAR, other than food and medicine designated as
EAR99; and (ii) establishing a presumption of denial for all such exports or reexports,
except with respect to items authorized under the Department of the Treasury’s
Office of Foreign Assets Control General License No. 4, which BIS will
review on a case-by-case basis.
DFARS
Case 2015-D004: A final rule amends the DFARS to update the descriptions of
Federal supply groups (now identified as product service groups) subject to
trade agreements to conform to the current Federal Procurement Data
System Product and Service Codes Manual.
DFARS
Case 2014-D001: A final rule amends the DFARS to require that scientific and
technical reports be submitted in electronic format.
DFARS
Case 2012-D056: DoD proposes to amend the DFARS to state the policy that the Electronic
Document Access (EDA) system is DoD’s online repository and distribution
tool for contract documents and contract data, to require internal control procedures
for contract document and data verification in EDA, and to remove
outmoded language that is not consistent with electronic document
processes. Comments are due by March 30.
DFARS
Case 2014-D015: DoD proposes to amend the DFARS to require contracting officers to consider
information in the Statistical Reporting module of the Past Performance
Information Retrieval System when evaluating past performance of offerors
under competitive solicitations for supplies using simplified acquisition
procedures. Comments are due by March 30.
DFARS
Case 2014-D023: DoD proposes to amend the DFARS to update the clause entitled
"Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United
States." Comments are due by March 30.
|
January
28 |
In Jacqueline
R. Sims, LLC, the Court of Appeals for the Federal Circuit
affirmed the CoFC's prior
decision that: (i) although two agreements both contained
flaws in language that might have rendered them unenforceable,
both parties performed as if they intended to be bound; (ii)
while the FAR did not require the Government to prepare past
performance evaluations (PPEs) for contracts under the
micro-purchase threshold, the Government had the discretion to
do so; and (iii) negative PPEs based on the contractor's
failure to provide significant portions of the services
contemplated by the agreements did not breach the Government's
obligation of good faith and fair dealing.
|
January
27 |
Unless
adverse comments are received by by February 26, effective
March 30, the EPA is amending
its acquisition regulation (the EPAAR) to address minor non-substantive changes
in three clauses and two related prescriptions in the
following areas: "‘Protection of Human Subjects,"
"Care of Laboratory Animals," and "EPA Green Meetings
and Conferences."
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January
26 |
In DynPort
Vaccine Company LLC, the ASBCA held that: (i) under the
particular facts of the case, a unilateral mod directing the
contractor to perform corrective work at no cost was a
government claim from which contractor could appeal, even
absent language in the mod indicating it was a claim or
notifying the contractor of its appeal rights; and (ii) the
Government was required to file the complaint.
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January
24 |
In CFS-KBR Marianas Support Services, LLC; Fluor Federal Solutions
LLC, the GAO held that the procuring agency mechanically
(and, therefore, improperly) used only the government estimate
to evaluate the cost realism of each offeror's proposed
staffing in initial proposals, without regard to the varying
proposed technical approaches, and then used that flawed
analysis to conduct misleading discussions with offerors
regarding the sufficiency of their proposed staffing.
In Anchorage,
A Municipal Corporation, the Court of Federal Claims
denied the Government's motion to dismiss for lack of
jurisdiction because agreements between the city and the
Government to expand the port of Anchorage were not
cooperative agreements (as suggested by the Government) but
rather were express contracts that presumed monetary damages
for breach and, thus, conferred Tucker Act jurisdiction on the
court.
In Group
Health Incorporated, the CBCA held that a subcontractor
was entitled to post-termination costs of maintaining
sufficient staff and resources to support a long-delayed and
protracted government audit.
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January
23 |
The Bureau
of Industry and Security (BIS) has amended the Export Administration Regulations
(EAR) to further implement the bilateral
understanding between the United States and India announced by
President Obama and India’s Prime Minister Singh on November 8,
2010, by removing license requirements for certain items controlled for crime control and
regional stability reasons.
Originally,
in Guardian
Angels Medical Service Dogs, Inc., the Court of Federal Claims
dismissed a suit filed more than 12 months after the contractor received
a default termination letter from the Contracting Officer.
Now, the court denies the contractor's motion
for reconsideration because, even though a message the
contractor sent the Contracting Officer after the termination
might be considered a request for reconsideration (which would
toll the running of the statute of limitations) the contractor
provided no documentation to support its request and,
therefore, the Contracting Officer never reconsidered his
decision.
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January
22 |
The U.S.
Office of Special Counsel (OSC) proposes to revise its
regulations to expand who may file a whistleblower
disclosure with OSC concerning wrongdoing within the
federal government to include employees of federal contractors,
subcontractors, and grantees if they work at or on behalf
of a U.S. government component for which OSC has jurisdiction to accept
disclosures. Comments are due by March 23.
In Brocade
Communications Systems, Inc., the Court of Federal Claims
dismissed (as unripe and speculative) a suit alleging that the
procuring agency would not act in good faith in conducting
market research as corrective action to determine whether it
was correct to limit the original solicitation to one
manufacturer.
In
US
Investigative Services, Professional Services Division,
the GAO sustained a protest because the record did not support
the agency's determination that a purchase order was within
the scope of the awardee's underlying FSS where that contract
did not include the labor categories involved in the purchase
order.
In 6K
Systems, Inc--Costs, the GAO recommended the reimbursement
of the protester's legal fees except for its pre-protest costs
related to attending the agency's debriefing and post-protest
costs related to considering possible next steps after the GAO
decision on the protest. The GAO also recommended
reimbursement at the requested rate of $225 per hour because
FASA does not impose a $150 per hour cap on small businesses'
claims for attorney fees in protests.
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January
21 |
In Columbia
Construction Co., the CBCA held that the contractor was
entitled to its extra costs incurred in using a construction
method directed by the Government because the less expensive
method the contractor had intended to use also complied with
the contract's specifications.
In Gatekeepers
Internet Marketing, Inc., the CBCA dismissed an appeal for
lack of jurisdiction because there was no underlying
"claim" that sought a decision from the Contracting
Officer or demanded a sum certain.
In Capitol
Construction, Inc., the CBCA dismissed another appeal for
lack of jurisdiction because there was no underlying contract
with an executive agency of the Government.
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January
20 |
In
Size Appeal of U.S. Department of
State and Precise Systems, Inc., the SBA's OHA held that, even
though a solicitation did not formally incorporate a NAICS code
designation or size standard, both the solicitation's synopsis and the
agency's responses to questions and answers clearly did, and, therefore, it was improper for
the Area Office to have substituted another size standard in deciding a size appeal, absent a
timely challenge to the NAICS code selected by the Contracting
Officer.
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January
17 |
The GAO
sustained a protest by Glen
Mar Construction, Inc., related to a sealed bid
competition because the agency’s price evaluation (i) improperly included
the prices of options (additive items) the agency knew with reasonable certainty
that it would not have sufficient funds to purchase, and,
therefore, (ii) could not guarantee award was being made to
the low bidder.
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January
15 |
In John
C. Brisbin, the Court of Federal Claims dismissed a suit
filed by an individual pro se because it was filed more
than 12 months after the Contracting Officer's decisions on
the underlying claims, even though the suit had originally
been improperly filed in District Court, which had failed to
transfer the case to the Court of Federal Claims as it should
have done under 28 U.S.C. 1631. If it had done so, the date of
filing would have been considered the date when the suit had
been filed in District Court.
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January
13 |
GSAR
Case 2013-G503: A final rule amends the GSA's acquisition
regulation (GSAR) to move the definitions of words and terms from the regulatory text to the
non-regulatory General Services
Acquisition Manual (GSAM).
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January
12 |
In Justman Freight
Lines, Inc., over a dissent, the PSBCA held that a bilateral
modification eliminating one major delivery route and
repricing the remaining contract was a deductive change rather
than a partial termination and operated as an accord and
satisfaction, barring the contractor's future claims for,
e.g., purchased equipment allegedly rendered useless by the
change, even though the modification did not include any
release language.
In Innovation
Development Enterprises of America, Inc. , the Court of
Appeals for the Federal Circuit affirmed the Court of Federal
Claims' prior
decision that the protester was not entitled to bid
preparation costs under the EAJA because it had not prepared
or submitted a proposal.
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January
10 |
in DayDanyon
Corp., a decision labeled as nonprecedential, the Court of
Appeals for the Federal Circuit affirmed the ASBCA's prior
decision that a contract unambiguously gave the Government
two years within which to order the guaranteed minimum
quantity.
In Dan
Balbach, the Court of Federal Claims dismissed a suit
involving a corporation not represented by counsel in
contravention of the court's rules.
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January
6 |
In New
Iraq Ahd Co., the ASBCA held that a "Release of
Claims" form signed by the contractor following a default
termination operated as an accord and satisfaction, barring
further claims.
TTF,
L.L.C. was unsuccessful in its attempt to recover its
allegedly extra costs of performance prior to a valid default
termination because the ASBCA found the contractor had failed
to provide evidence to support its allegation that the
contract specifications were impossible to perform.
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January
5 |
In
NAICS Appeal of Environment International, Ltd., the SBA's OHA upheld the
Contracting Officer's assignment of NAICS 562910 (Environmental
Remediation Services) to a solicitation for natural resource damage
assessment support services, rather than 541620 (Environmental
Consulting Services), as suggested by the protester.
In Size Appeal of Lynxnet,
LLC, the OHA affirmed the Area Office's (i) identification of
the primary and vital requirements of a contract and (ii) conclusion
that the contractor was not unduly reliant on its subcontractor under
the ostensible subcontractor rule.
In Size
Appeal of Solis Constructors, Inc., the OHA affirmed
the Area Office's dismissal of a protest as untimely because a
FedBizOpps notice of award was sufficient to start the clock
running for filing the protest.
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January
3 |
In Size
Appeal of MCH Corporation, the SBA's OHA upheld the Area Office's
finding that, as of the date
of self-certification, a clear fracture overcame the familial identity of
interest between parents and child. The OHA also concluded that, even absent
much analysis of the issue by the Area Office, the protester had not presented sufficient evidence
for its contention that the protested firm was affiliated with various
nonprofit firms. For earlier proceedings in this
case, see the December 10, 2014, entry below.
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January
1, 2015 |
Happy New
Year!
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