Stan Hinton

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Developments in Government Contracting--2015



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."

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.

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.

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.

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.

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.

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.

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.

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. 

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).

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.

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.

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.

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.

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. 

January 1, 2015

Happy New Year! 


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