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.

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.

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.

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.

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.

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.

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. 

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.

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.

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.

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.

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.

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.

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.

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.

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. 

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.

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.

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.

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.

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.

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.

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. 

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.

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. 

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.

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.

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.

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.

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.

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.

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.

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).

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.

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. 

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.

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."

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.

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.

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.

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.

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.

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.

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.

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. 

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).

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.

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.

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.

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.

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. 

Happy New Year!