Stan Hinton

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Developments in Government Contracting--2016



December 30 In Size Appeal of Gregory Landscape Services, Inc., the SBA's OHA remanded a case to the Area Office because it had found affiliation through identity of interest based in part on findings it did not give the challenged firm a fair opportunity to rebut.
December 29 In Deas Construction, Inc., the ASBCA held that: (i) interpreted as a whole, the contract required the contractor to fabricate and provide a fully functional ISO Stand and that the Government had not withheld superior knowledge that the contractor's price was too low; and (ii) after it terminated the contract for convenience because the contractor was unable to complete the work, the Government correctly determined that the contractor had performed only 10% of the work and, therefore, was limited to that percentage of the contract price.

In 554 Bloomfield, LLC, the ASBCA denied the contractor's tardy request to reinstate an oft-delayed appeal to the Board's docket because the contractor offered no excuse for its untimely request. Subsequently, the Board denied the contractor's request for reconsideration.
December 28 In Ricoh USA, Inc., the ASBCA denied the contractor's claim for the Government's use of fewer leased copiers than the contractor had expected because the contract was a requirements contract that clearly contemplated the number of units might be reduced without any penalty, and the executed contract did not include extraneous language concerning, e.g., termination fees, that the contractor had submitted in unsolicited parts of its proposal.

In URS Federal Support Services, Inc., the ASBCA dismissed (as moot) an appeal from a Contracting Officer's decision that was subsequently withdrawn. Similarly, in BAE Systems Tactical Vehicle Systems LP, the Board dismissed (as moot) an appeal from a decision alleging a government claim for defective pricing, which the Contracting Officer had rescinded.

Finding that the Government's delay in disclosing its affirmative defense of equitable estoppel was not done in bad faith, the ASBCA allowed the Government to amend its answer to include that defense in ABB Enterprise Software, Inc. f/k/a Ventyx.

In Public Warehousing Co., K.S.C., the ASBCA granted the Government's motion to stay an appeal pending the Government's criminal case against the contractor in the Northern District of Georgia that involved many of the same issues and factual allegations.
December 27 In Angela M. Stine, the PSBCA dismissed an appeal involving a monetary claim that had not been presented to the Contracting Officer for a decision and requesting relief the Board lacked jurisdiction to provide, i.e., renewal of a contract.

The Bureau of Industry and Security (BIS) has published a final rule amending the Export Administration Regulations (EAR) to reflect the understandings reached at the June 2015 Nuclear Suppliers Group (NSG) Plenary meeting held in Bariloche, Argentina (which address the nuclear nonproliferation (NP) controls that apply to certain centrifugal multiplane balancing machines) and certain understandings reached at the 2016 NSG Plenary meeting held in Seoul, Republic of Korea (which address the NP controls that apply to certain linear displacement measuring systems).

The BIS also has amended the EAR consistent with Executive Order 13742 of October 7, 2016, which terminated the national emergency with respect to the actions and policies of the Government of Burma and revoked several Burma-related Executive Orders in recognition of Burma’s substantial advances to promote democracy, including historic elections held in November 2015 that resulted in the formation of a democratically elected, civilian-led government.

My domain hosting service has notified me that, due to server maintenance and upgrades, access to this site might be sporadic tonight and tomorrow.
December 26 In Ahtna Environmental, Inc., the CBCA refused to penalize the contractor pursuant to an unusual and onerous Federal Highway Administration contract clause purportedly barring claims not specifically identified by the contractor in executing a final payment voucher prepared by the Government because (i) the contractor adequately notified the Government of its REA before the voucher was due, and (ii) the Contracting Officer continued to evaluate the REA thereafter.
December 24 Effective January 23, 2017, the SBA is revising its regulations to implement section 1614 of the National Defense Authorization Act for Fiscal Year 2014, which amended the Small Business Act to provide that where a prime contractor has an individual subcontracting plan for a specific prime contract with an executive agency, the prime contractor shall receive credit towards its subcontracting plan goals for awards made to small business concerns at any tier under the contract.

The GAO sustained a protest by Patriot Solutions, LLC, because the procuring agency improperly converted the best-value tradeoff competition set forth in the solicitation into a lowest-priced, technically acceptable competition.

Although I usually only report on successful GAO protests, I should note that the GAO has begun dismissing certain protests against the exclusion of proposals from competitions for the placement of task orders because the statutory grant of jurisdiction to the GAO to consider protests in connection with task and delivery orders valued above $10 million and issued under civilian agency multiple-award indefinite-delivery/indefinite-quantity contracts has expired. See, e.g., Analytic Strategies LLC, Ryan Consulting Group, Inc., and HP Enterprise Services, LLC.
December 22 Xtreme Concepts Inc. won its GAO protest because the agency improperly lowered its evaluation and excluded it from the competitive range based on its neutral past performance rating.

DFARS Case 2015-D026: A final rule amends the DFARS to provide that contracting officers are not required to further justify a decision to provide customary contract financing, other than loan guarantees and advance payments identified in FAR Part 32, for certain fixed-price contracts.

DFARS Case 2017-D001: A final rule amends the DFARS to add Estonia as a qualifying country.

DFARS Case 2016-D015: A proposed rule would amend the DFARS to implement a section of the National Defense Authorization Act that provides the competition requirements for religious-related services contracts on a U.S. military installation.  Comments are due by February 21, 2017.

In Size Appeal of MDW Assocs., the SBA's OHA upheld the Area Office's finding of affiliation through economic dependence less than two months after the date on which a previous size determination had found such affiliation because the affected firm had not shown any change in circumstances that would warrant a different conclusion.

In Size Appeal of Encore Analytics, LLC, the OHA affirmed the Area Office's dismissal of a protest because the procuring agency was not required to, and did not, revise a solicitation to reflect the requirements of a newly-amended regulation on which the protester's arguments relied. The regulation at issue is at 13 C.F.R. § 121.201 n.20 and SBA's accompanying commentary in the Federal Register and states that a procurement of non-customized software under NAICS code 511210 should be treated as a supply procurement, subject to the nonmanufacturer rule.


In Size Appeal of Emergency Pest Control, Inc., the OHA affirmed the Area Office's finding that the protested firms were not affiliated as a result of a franchise agreement and held that the Area Office was not required to examine other issues not raised in appellant's original size protest, which was not clearly worded.

In Matter of Crystal Clear Technologies, Inc., the OHA held that the SBA had correctly found that the challenged firm met all the WOSB eligibility requirements despite the fact that certain of its SAM representations and certifications were inaccurately filled in.
December 21 In 1201 Eye Street, N.W. Assocs., LLC, the CBCA granted the contractor's claim because: (i) the plain language of the original lease between the contractor and the GSA established the method of calculating yearly operating cost adjustments, and the lease extension executed by the parties explicitly indicated the original lease provisions would continue to govern; and (ii) the Government's interpretation was contradicted by the prior course of dealing between parties before dispute arose.

In ASI Constructors, Inc., the Government whiffed on all its efforts to have the contractor's claims dismissed summarily, and the Court of Federal Claims held that: (i) it had jurisdiction over issues that were clearly described in the legal memorandum that formed part of the claim originally submitted to the Contracting Officer for decision; (ii) the contractor's differing site conditions claim involved questions of fact regarding the contract as a whole and was not subject to summary dismissal for failure to state a claim; and (ii) the contractor's claims based on  superior knowledge, breach of the duty of good faith and fair dealing, and misrepresentation all were sufficient to withstand motions to dismiss.

In The Meyer Group, Ltd., the court denied the contractor's EAJA application because: (i) the Government's position in the underlying litigation was substantially justified given the lack of precedent on an unusual issue and the contractor's overly aggressive interpretation of the underlying agreement; and (ii) special circumstances rendered an EAJA award unjust because the case did not involve any public policy issues or any violations by the Government of a law or regulation, but rather the consequences of unfortunate Government missteps in entering a disadvantageous contract drafted by the plaintiff.
December 20 Target Media Mid Atlantic, Inc. won its GAO protest against the procuring agency's cost evaluation because the agency failed to evaluate the realism of the awardee’s cost proposal in accordance with its proposed technical approach and failed to evaluate the awardee’s professional employee compensation plan in accordance with the requirements of the solicitation.

Federal Acquisition Circular (FAC) 2005-94 has been published and includes the following two items:

FAR Case 2010-013: Effective January 19, 2017, a final rule amends the FAR to require that contractors, whose employees have access to a system of records or handle personally identifiable information, complete privacy training.

FAR Case 2014-004: Also effective January 19, 2017,  a final rule amends the FAR to implement a section of the Small Business Jobs Act of 2010, which requires contractors to notify the contracting officer, in writing, if the contractor pays a reduced price to a small business subcontractor or if the contractor’s payment to a small business subcontractor is more than 90 days past due.
December 19 In CB&I Areva Mox Services, LLC, even though the contractor sought the same relief (increase in fee percentage) on appeal as it had in its original claim to the Contracting Officer, the CBCA dismissed the appeal for lack of jurisdiction because the contractor's contention on appeal that the Contracting Officer failed to negotiate the fee in good faith would require the Board to examine different operative facts than the original claim, which relied on the assertion that the Government had breached a specific contract clause.
December 16 Federal Acquisition Circular (FAC) 2005-93 has been published and includes the following two items:

FAR Case 2017-001: Effective January 1, 2017, an interim rule amends the FAR to implement (i) the Executive Order (E.O.) entitled "Establishing Paid Sick Leave for Federal Contractors," and (ii) a final rule issued by the Department of Labor, which applies to FAR acquisitions (as described in FAR 1.104) that are covered by, inter alia, the Service Contract Labor Standards statute or the Wage Rate Requirements (Construction) statute.

FAR Case 2014-025: A final rule was published in the Federal Register on August 25, 2016, amending the FAR to implement the E.O. on Fair Pay and Safe Workplaces, which was designed to promote contracting efficiency by improving compliance with basic labor standards during the performance of federal contracts, but implementation of portions of the E.O. was subsequently preliminarily enjoined by a federal district court on October 24, 2016, so that sections of the FAR that are affected by the court’s preliminary injunction order are now being amended.

The BIS has amended the Export Administration Regulations (EAR) to implement the recommendations presented at the February 2016 Australia Group (AG) Intersessional Implementation Meeting concerning certain toxins and antigens.

Effective January 17, 2017, NASA is amending its FAR Supplement (NFS) to add a monthly reporting requirement for contractors having custody of $10 million or more in NASA-owned Property, Plant and Equipment.
December 15 Deloitte Consulting, LLP, won its GAO protest against the agency's implementation of corrective action in response to the firm's prior successful protest because the agency's new solicitation instructions would unreasonably restrict revisions in areas of proposals impacted by changes made as a result of the corrective action.

In Mustafa Kamosh Group, the CBCA dismissed an appeal for lack of jurisdiction because the contractor had not submitted a claim to the Contracting Officer.

In Agbayani Construction Corp., the CBCA held that an appeal filed prior to the Contracting Officer's issuance of a decision was premature.
December 14 In Telos Corp., the Court of Federal Claims denied the plaintiff's request for an injunction pending its appeal of a prior court decision denying its protest. The Court of Appeals for the Federal Circuit has also affirmed the CoFC's prior decision on the merits.

NASA has adopted as final, without change, an interim rule amending the NASA FAR Supplement (NFS) to implement revisions to the voucher submittal and payment process.

In B3 Solutions LLC, the ASBCA dismissed a direct appeal by a second-tier subcontractor to an 8(a) contractor for lack of jurisdiction because there was no privity of contract with the Government.

In The Adamant Group for Contracting and General Trading, the ASBCA dismissed an appeal as time-barred because the contractor failed to follow-up with any inquiries on an unpaid invoice until more than nine years  had passed.

In Akal Security, Inc., the CBCA denied the contractor's claim for reimbursement of its liabilities to employees under California law for providing insufficient wages and benefits because: (i) the contract obligated the contractor to comply with all laws; (ii) the Government was not required to research those laws for the contractor; and (iii) the Government did not interfere with contractor's ability to comply with California laws.
December 12 In Size Appeal of TMC Global Professional Services, the SBA's OHA found that the Area Office had erred in dismissing (for lack of standing) a size protest by a firm that had received low evaluation scores but that had not been eliminated from the competition.

The Court of Federal Claims dismissed a suit by Zafer Taahhut Insaat ve Ticaret, A.S. because the contractor had not requested a Contracting Officer's decision on its underlying REA.
December 11 In a lengthy opinion concerning a delay and disruption claim that was larger than the basic contract price and was based primarily on alleged differing site conditions, the CBCA denied the appeal by Choctaw Transportation Co. for a host of reasons, including, inter alia: (i) the absence of support in the contract for the contractor's interpretation, (ii) the contractor's failure to timely notify the Contracting Officer of either changes or differing site conditions, (iii) the fact that the contractor should have known of the disputed conditions at the site from its pre-bid investigations, (iv) questions concerning the credibility of the contractor's testimony concerning its original plan for performing the work, and (v) deficiencies in the contractor's expert's legal analysis and his methods for calculating the quantum of delays and impacts. 

In Perry Bartsch Jr. Construction Co., the CBCA denied the Government's motion for summary judgment because of ambiguities in (and unresolved factual issues concerning scope of) the release language in a bilateral modification.

In NAICS Appeal of LJR Solutions, LLC, the SBA's OHA held that, in a solicitation for on-site animal husbandry support services in the FDA's Animal Care and Use Program, the Contracting Officer reasonably selected NAICS code 541711 (Research and Development in Biotechnology) rather than NAICS code 561210 (Facilities Support Services) as advocated by the appellant. The OHA reached essentially the same conclusion based on similar reasoning in another NAICS appeal by the same firm, LJR Solutions.
December 9 NASA is proposing to amend its FAR supplement (NFS) to implement policy providing for additional contract periods of performance which a contractor may earn if the contractor’s sustained performance is superior, the Government has an on-going need for the requirement, and funds are available. Comments are due by February 7, 2017.
December 8 Progressive Industries, Inc. won its post-award protest of the procuring agency's decision in response to an earlier agency-level protest to make awards to the same two firms as it had originally selected; specifically: (i) in establishing the competitive range, the agency treated offerors inconsistently; (ii) the agency granted only one offeror an extension of time to submit its revised proposal; (iii) the record did not show when or how the agency evaluated price; and (iv) the record indicated the final source selection decision following corrective action was accomplished using different standards and methodology than those set forth in the original source selection plan.
December 7 Level 3 Communications, LLC, the incumbent contractor, won its post-award protest at the Court of Federal Claims because: (i) in the lowest-priced, technically-acceptable competition, the Contracting Officer should have sought clarification from the protester regarding an aspect of its significantly lowest price proposal rather than finding it unacceptable; (ii) the Contracting Officer engaged in disparate treatment of offerors by finding one unacceptable for a defect shared by the successful offeror; and (iii) given that the incumbent's proposed price was 40% lower than the awardee's, the Contracting Officer should have entered into negotiations with offerors, especially where the awardee could not meet the start-up timing requirement in the solicitation. The decision ends with the court's unusual scolding of the agency for leading the court to believe that contract performance would not begin until December 1 when it actually began significantly earlier:

On or before January 3, 2017, the Government is advised to show cause why the Government’s written and oral representations to the court that performance of the contract with Verizon would not commence until December 1, 2016 does not violate RCFC 11(b).

In addition, the court hereby orders the Defense Information Systems Agency promptly to provide all pleadings, the Administrative Record, and all Memorandum Opinion and Orders in this case to the Inspector General of the Department of Defense for investigation into why the Contracting Officer awarded the contract at issue to Verizon at a price of $38.6 million more than the incumbent contractor and proceeded to commence performance contrary to written and oral representations to the court – and prior to the November 8, 2016 election.

In that regard, the court also intends to forward the public record in this case to the Senate Armed Services Committee for such oversight as it deems appropriate.

In Smart Way Transportation Services, the ASBCA rejected the contractor's various theories of recovery because the Government had satisfied its obligations by permitting the contractor to invoice for the minimum guaranteed order quantity during the base period under an ID/IQ contract. Subsequently, the contractor's motion for reconsideration was denied.

The ASBCA dismissed an appeal by KBAJ Enterprises, LLC t/d/b/a Home Again because the contractor's alleged claim letter was not sent to the Contracting Officer and did not request a decision by the Contracting Officer.

December 6 Vencore Services and Solutions, Inc. won its GAO protest because the agency engaged in misleading discussions with the protester based on a faulty, inflated agency cost estimate.

In Hawk Contracting Group, LLC, the CBCA denied the contractor's request that the Board order the Contracting Officer to issue a decision earlier than the date he had previously identified for the expected decision, but, given the agency's protracted delays in addressing the claim, the Board indicated the contractor could treat any failure to meet the predicted date as a  deemed denial.

FAR Case 2014-002: A proposed rule would amend the FAR to implement regulatory changes previously made by the SBA (see the October 2 entry in the 2013 Blog), which provide government-wide policy for (i) partial set-asides and reserves and (ii) setting aside orders for small business concerns under multiple-award contracts. Comments are due by February 6, 2017.
December 5 In Tiber Creek Consulting, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that the Contracting Officer's best value analysis (determining that the awardee's 20% lower price outweighed the protester's superior technical expertise) had a rational basis and was supported by the administrative record.

In CSC Government Solutions, LLC, another unsuccessful post-award protest, the court held that: (i) contrary to the protester's contentions, the agency's cost realism analysis considered both option years and direct labor rates; (ii) the agency's cost evaluation of the awardee's staffing plan satisfied the requirements of FAR 52.222-46 (which addresses how offerors' proposals that may reduce compensation for incumbent employees should be analyzed); (iii) any inconsistencies between the Government's positive evaluation of the protester's technical approach and concerns the Government raised during discussions concerning the protester's cost-price realism were not prejudicial because the Government ultimately evaluated its cost-price as realistic; (iv) there was a rational basis for the agency's technical evaluation of the phase-in staffing plan; (v) the solicitation gave the agency the discretion to evaluate only the past performance references submitted by offerors and did not require it to conduct additional research of a particular contract mentioned only fleetingly in the awardee's proposal and not submitted as a reference;  and (vi) the agency's discussions with offerors were not misleading, unequal, or coercive.

Effective January 4, 2017, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) by removing the Special Iraq Reconstruction License.

The State Department has amended the International Traffic in Arms Regulations (ITAR) to clarify (i) the scope of disclosure of information submitted to the Directorate of Defense Trade Controls (DDTC) and (ii) the policies and procedures regarding statutory debarments.
December 2 In Strawberry Hill, LLC, the CBCA dismissed an appeal because: (i) no contract existed absent the Contracting Officer's signature; and (ii) the contractor's self-styled "amended" claim presented on appeal was actually a new claim for greater than $100,000 that had not been presented to the Contracting Officer.
December 1 In Sallyport Global Holdings, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that: (i) the procuring agency's finding that the protester's proposed dual-Project Manager structure did not meet the solicitation's requirement for a single qualified Project Manager deployed on site was supported by the record; (ii) the agency's improper assignment of a weakness to the protester's proposal based on the unjustified assumption that it had contacted agency personnel during a blackout period was not prejudicial because the proposal was unacceptable for the reason above; and (iii) the "certification" held by the awardee's proposed Project Manager met the solicitation's requirement.
November 30 Partially granting cross motions for summary judgment, the CBCA held in Grunley Construction Co. that: (i) the Government was liable for excess costs resulting from its requirement that the contractor classify and pay workers in a higher wage rate category than was required by the contract; and (ii) for a differing site conditions claim, clause GSAM 552.243-71 allowed the contractor to recover a maximum commission of 10%, and no overhead, on work performed by its subcontractor.
November 29 In Missouri Department of Social Services, the ASBCA held that, under FAR 52.249-2(l), the contractor was entitled to an equitable adjustment for its increased costs of performing the remaining work, which were caused by the Government's partial termination for convenience of a requirements contract.

In Tetra Tech Facilities Construction, LLC, the ASBCA held that the contractor had established that the unsuitable (saturated) subsurface soil it had encountered during construction constituted a Differing Site Condition.

The Board denied an appeal by ABC Data Entry Systems, Inc. because, as a matter of law, the Government has no liability for a negligent estimate of work on an indefinite-quantity contract.


In both Genuine Construction Co. and Washington Star Construction Co., the ASBCA dismissed an appeal because the contractor had not submitted a claim to the Contracting Officer. Similarly, in Sauer Inc., the Board struck a claim from the Complaint because it had not been previously submitted to the Contracting Officer.

In Excel Link Construction Co., the Board dismissed an appeal challenging a firm's designation as "Not Eligible for Installation Access" in a vendor vetting program because there was no contract between the firm and the Government and no prior claim to the Contracting Officer.

In RECO Rishad Engineering Construction ORG, the ASBCA dismissed an appeal because the claim certification included only the typed name of a company official and was not signed. Similarly, in ABS Development Corp., the Board dismissed an appeal because merely typing the name of an alleged claim certifier in a different font, even a cursive font, does not result in signature that can be authenticated.

In Public Warehousing Co., K.S.C., the ASBCA granted the Government's motion to amend its Answer to add the affirmative defenses of fraud in the inducement, first material breach, the sovereign acts doctrine, the political question doctrine, assumption of the risk, and failure to mitigate, after finding that (i) the Government did not unduly delay seeking to amend the Answer and (ii) the contractor had not been prejudiced.

FAR Case 2016-005: A proposed rule would amend the FAR to implement a section of the National Defense Authorization Act for Fiscal Year 2016, specifically to clarify that agency acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry, so long as those exchanges are consistent with existing law and regulation and do not promote an unfair competitive advantage to particular firms. Comments are due by January 30, 2017.

USAID seeks public comments by January 30, 2017, on a proposed rule that would amend its Acquisition Regulation (AIDAR) to clarify the accountability for all mobile Information Technology equipment provided as government-furnished property by government officials.
November 26 EFW Inc. won its GAO protest because: (i) the agency's discussion questions did not alert the protester to the agency's true concerns; (ii) a faulty past performance evaluation obscured the differences among the proposals; and (iii) the agency assigned the protester a significant weakness in the price realism evaluation based upon considerations not properly within scope of such an analysis.
November 25 The Bureau of Industry and Security has amended the EAR to remove nuclear nonproliferation Column 2 license requirements from certain pressure tubes, pipes, fittings, pipe valves, pumps, numerically controlled machine tools, oscilloscopes, and transient recorders on the CCL.

In Veterans Electric, LLC, an unsuccessful protest, the Court of Federal Claims basically held that the procuring agency was entitled to consider past positive experiences with the awardee as a contractor in selecting its low-priced, somewhat ambiguous, proposal for award. The decision is interesting primarily because the court rationalizes the limits of its analysis when the dispute does not involve much money:

This Court’s bid protest jurisdiction covers an enormous diversity of procurement disputes and a large dollar range. For example, a $6 billion dispute was just settled before this Court relatively quickly. The case at bar has been disputed before both the Agency and the [GAO]. The dollars involved in the procurement are certainly disproportionate to the legal costs involved in this dispute. Of course this Court is as willing to decide a $100 dispute as it is a $10 billion dollar dispute. But the cost to the parties is a legitimate concern of this Court since it has a duty to further the efficient administration of justice. In this case the parties did litigate the matter efficiently and well, so no criticism is intended. The plaintiff is litigating for a principle. The government is defending for a different principle. The plaintiff's principle is that the government must treat all bidders fairly. The government's principle is that the dispute must be governed by the rules and by the solicitation. Both principles are correct. Unfortunately the Court cannot award relief on the basis of a principle without a legal right. Plaintiff must show that he was treated unfairly by being required to meet a different standard in the solicitation and its review by the government than was the awardee.

Plaintiff submitted an A++ proposal for $19,250.00, while [the awardee] submitted a somewhat ambiguous proposal for $13,400. . . . For a contract of this size, this difference in dollar amount is significant. As [the awardee] has completed similar jobs for the Agency, the government was understandably comfortable with [the awardee]. [The awardee’s] ambiguous proposal was understood in the light of this significant past performance, as well as in the light of the fact the government would save almost 44% of the contract total by awarding the contract to [the awardee]. The plaintiff’s complaint raises the following question: did the VA’s award to [the awardee] despite the ambiguous nature of its proposal violate any procurement rules? After a thorough review of the Administrative Record, this Court cannot find any violation of law occurred in this award. [The awardee’s] proposal met all of the Solicitation’s requirements. While a third party reading [the awardee’s proposal] might have a number of questions, the Agency, familiar with [the awardee] and the solicitation as a whole, did not. The Court can certainly understand plaintiff’s concerns in light of the record as a whole. While government procurement law does not allow credit for the goodwill created by past performance and prior positive relationships with contractors, it is impossible to eliminate the knowledge and memories of procurement officers gained from past dealings when they are reviewing the factual descriptions in the proposal. Thus, as no violation of procurement rules or regulation occurred, and as no unfair actions were taken by the procurement officials in favoring [the awardee], the Court must deny this protest.

The "somewhat ambiguous proposal" the court excused in its analysis above included the awardee's apparent failure to comply with the following standard solicitation requirement: "The proposal should not simply restate the Government’s requirements, but it should describe, in detail, how the Offeror intends to meet the requirements." 

November 23 In Size Appeal of Quigg Bros., Inc., the SBA's OHA held that the Area Office had correctly determined that the appellant had failed to rebut the presumption of affiliation through identity of interest among brothers.

In Financial & Realty Services, LLC, the Court of Federal Claims held that the plaintiff's failure to provide a project manager to perform the contract services for a period of time after its original project manager resigned in mid-performance was not excused by the time required for the Government to screen the new candidate the contractor offered to fill the vacant position, and thus the Government's failure to pay for work during that time period was not a breach of contract.

The GAO sustained a protest by GiaCare and MedTrust JV, LLC on numerous grounds, including the following: (i) the agency's price realism evaluation failed to consider discrepancies between the awardee's price proposal and its proposed technical approach; (ii) the agency used labor rates in its price realism analysis that did not match those actually proposed by the offerors; (iii) there was no basis to support the agency's conclusion that the awardee's proposed indirect rate was not unrealistically low; and (iv) the agency did not properly consider the awardee's unrealistically low direct and indirect proposed rates in evaluating the risk associated with its proposed technical approach.
November 22 In Size Appeal of Greener Construction Services, Inc., the SBA's OHA affirmed the Area Office's finding of a violation of the ostensible subcontractor rule because the challenged firm's subcontractor would perform the primary and vital contract requirements, and the challenged firm's change of approach after it had submitted its final proposal was irrelevant to this determination.

In Size Appeal of Sage Acquisitions, LLC, the OHA held that the Area Office (although it had made other errors) had correctly determined that the 8(a) member of a purported mentor-protégé joint venture did not satisfy the regulatory requirement that it perform more than merely administrative and ministerial functions.


The SBA seeks comments by January 23, 2017, on a notice of proposed rulemaking regarding the Women's Business Center (WBC) Program that would incorporate the SBA’s oversight of the WBC Program into regulations in a new Part 131 of the SBA’s regulations by: (i) creating standard definitions for the program; (ii) incorporating program-participation requirements and application procedures; (iii) incorporating financial-management and grant-administration requirements; (iv) detailing reporting requirements including oversight and programmatic and financial examination provisions; (v) incorporating procedures for dispute resolution, suspension, termination and non-renewal of a grant; and (vi) setting forth privacy requirements. 

Although several of its protest allegations were denied, Jacobs Technology, Inc., won its protest because the agency's evaluation failed to reasonably consider a significant aspect of the awardee’s technical submission that indicated a lack of technical understanding. 

In R & G Food Services, Inc., the CBCA held that the Government had not breached a mobile food service company's contract after two fires merged into one by (i) releasing the company from further work, and (ii) consolidating service with another contractor that had been working at one of the two fires before they merged.

In Sea Shepherd Conservation Society, the CBCA denied an auction winner's claim that, because the agency had allowed another firm (which ultimately had been determined to be ineligible) to bid in an auction, the winning bidder was forced to bid higher for an item that it would have had that other bidder not been permitted to participate. The CBCA reasoned that the agency had followed all applicable auction rules.
November 21 In its latest decision in the long running protest by Caddell Construction Co. (see, e.g., February 19 entry below), the Court of Federal Claims held that: (i) the awardee was not prohibited by either the solicitation or applicable law from radically revising its proposal regarding the role of a proposed subcontractor following discussions with the agency; (ii) the awardee's proposed home office staffing approach was not prohibited by the solicitation and was rationally evaluated as acceptable by the agency; (iii) the awardee repeatedly represented that it would comply with the "Limitations on Subcontracting" clause and whether it does so will be a matter of contract administration; (iv) the Contracting Officer's decision not to conduct a new responsibility determination concerning the awardee based on a court decision concerning fraud by a predecessor of one of its proposed subcontractors was reasonable because that  decision did not affect any of the awardee's prior representations; and (v) the Contracting Officer's decision not to conduct a new responsibility decision of the same subcontractor was rational because the solicitation did not require responsibility determinations of subcontractors and a prior court decision had affirmed a separate responsibility determination of the subcontractor because of various remedial measures it had taken since the original fraud finding.
November 18 Federal Acquisition Circular (FAC) 2005-92 has been published and includes the following two items plus technical amendments:

FAR Case 2015-024: Effective December 19, a final rule amends the FAR to establish a representation for offerors to indicate if and where they publicly disclose greenhouse gas emissions and greenhouse gas reduction goals or targets.

FAR Case 2015-035: Effective December 19, a final rule amends the FAR (i) to delete the use of "telegram," "telegraph," and related terms and to replace them with references to electronic communications and (ii) to make conforming changes regarding the means of expedited notices of termination and change orders.

In Rocky Mountain Helium LLC, which involved a non-CDA contract dispute, the Court of Appeals for the Federal Circuit: (i) affirmed the CoFC's holding that a suit challenging the 2004 termination of a helium extraction contract was untimely under the six-year limitations period of 28 U.S.C. 2501; and (ii) reversed the CoFC's holding that a subsequent Settlement Agreement between the parties was not "money-mandating" under the Tucker Act and, therefore, that the CoFC lacked jurisdiction over a claim for the breach of it. The appeals court reasoned in part as follows: "Where there is a breach of a government contract, 'as with private agreements, there is a presumption in the civil context that a damages remedy will be available upon the breach of an agreement.'"
November 17 In Level 3 Communications, LLC, the Court of Federal Claims issued a TRO against further contract performance pending its decision on the merits of a bid protest after the agency (without notice to the court) allowed the awardee to begin performance sooner than it had previously predicted it would to the court. Lesson: don't mess with a federal court judge.
November 16 The GAO sustained a protest by Glacier Technical Solutions, LLC because there was no basis in the record to explain the agency's decision to assign a "Good" Mission Capability rating to the awardee despite the evaluators' conclusion that one of its staffing methodologies should be rejected.

It is difficult to win a protest and more difficult still to win the contract even after a successful protest because the agency often can figure out a way to select the offeror it originally wanted. There are, however, limits to how blatant the agency can be. In Professional Service Industries, Inc., for example, the Court of Federal Claims held that the corrective action undertaken by the agency in response to a prior, successful GAO protest was unacceptable because the agency had merely revised the solicitation to water down its requirements to match the qualifications and experience of the PM originally proposed by the awardee.

Effective December 16, a final rule amends the Department of Treasury Acquisition Regulation (DTAR) to provide acquisition policy for the incremental funding of Fixed-Price, Time-and-Material or Labor-Hour contracts during a continuing resolution.
November 15 FAR Case 2013-018: In response to recommendations in GAO report GAO-13-118 concerning FAR guidance for sole-source 8(a) contract awards exceeding $22 million, a proposed rule would amend the FAR: (i) to clarify whether an 8(a) justification is required for 8(a) contracts that are subject to a pre-existing CICA class justification; (ii) to provide additional information on actions contracting officers should take to comply with the justification requirement when the contract value rises above or falls below $22 million between the SBA’s acceptance of the contract for negotiation under the 8(a) program and the contract award; and (iii) to clarify whether and under what circumstances a separate sole-source justification is necessary for out-of-scope modifications to 8(a) sole-source contracts. Comments are due by January 17, 2017.

DFARS Case 2016-D002: A final rule amended the DFARS to improve the effectiveness of independent research and development (IR&D) investments by the defense industrial base, by requiring contractors to engage in technical interchanges with DoD before costs are generated.

DFARS Case 2016-D005: A final rule amended the DFARS to remove the acronym for contiguous United States.

DFARS Case 2016-D014: A final rule amended the DFARS by adopting, with changes, the prior rule implementing a section of the National Defense Authorization Act for Fiscal Year 2016 that changes the criteria for the pilot program for acquisition of military purpose nondevelopmental items.

DFARS Case 2016-D017: A proposed rule would amend the DFARS to ensure that substantial future independent research and development expenses (as a means to reduce evaluated bid prices in competitive source selections) are evaluated in a uniform way during competitive source selections.  Comments are due by January 3, 2017.

DFARS Case 2015-D028: A proposed rule would revise the prior interim rule on the basis of comments received and amend the DFARS to to implement a section of the National Defense Authorization Act for Fiscal Year 2016 related to costs associated with indirect offsets under FMS agreements. Comments are due by January 3, 2017.


In Boarhog LLC, the Court of Federal Claims held that the agency's convenience termination of the plaintiff's contract (as part of corrective action in response to an agency-level bid protest by another firm) did not constitute a breach, and, even if it had, the contractor could not show any compensable damages because the termination had occurred before it had performed any work or incurred any costs. All this was especially true because, as a result of the contractor's protest against the cancellation, the agency had subsequently taken additional corrective action and awarded it a second contract that was identical to the original award.

The Commerce Department's Bureau of Industry and Security (BIS) has amended the Export Administration Regulations (EAR): (i) to implement United Nations Security Council Resolutions adopted in 2016 that terminated arms embargoes against Cote d’Ivoire and Liberia; and (ii) to remove U.S. arms embargo-related controls on both (a) Sri Lanka (to reflect the Consolidated Appropriations Act, 2016) and (b) Vietnam (pursuant to a determination made by the Secretary of State and announced by the President).
November 11 In Palantir USG, Inc., a successful preaward protest, the protester obtained a permanent injunction because, although the protester failed to establish bias by the Government against its product, the documents the agency relied on in limiting competition did not establish that the agency had conducted adequate market research and analysis to determine whether the agency's needs could be met by commercial items in accordance with the preference for such items in 10 U.S.C. 2377.
November 9 CALNET, Inc., won its GAO protest because there was no basis in the record for the agency's conclusions (i) that the offerors' proposed costs were realistic or (ii) that four proposals were equivalent under the non-cost evaluation factors.

In Seven Seas Shipchandlers LLC, the ASBCA denied a Prompt Payment Act interest claim because the payment delays resulted from a dispute that had been litigated at the ASBCA and that fell under the exception in the statute for "a dispute between the head of an agency and a business concern over the amount of payment or compliance with the contract."

In Crane & Co., the CBCA denied the contractor's motion to amend its complaint to add two new claims for a constructive change and ambiguity-of-specifications because those new claims: (i) had never been presented to the Contracting Officer for a decision, and (ii) had accrued more than six years prior to the date the contractor had submitted its only other claim to the Contracting Officer. Coming at the issue from the opposite direction, in Optimus Technology, Inc., the CBCA denied the Government's motion to amend its answer to include a counterclaim that (i) did not relate to the invoices at issue in the contractor's claim and appeal,  and (ii) had not been communicated to the contractor in a proper Contracting Officer's decision that notified the contractor of its appeal rights.

In Mission Support Alliance, LLC, the CBCA denied the contractor's claim for the costs of purchasing SAFETY Act insurance because: (i) the contractor failed to comply with the contract requirement to notify the Contracting Officer of the proposed purchase and obtain his prior consent; and (ii) the Contracting Officer's determination that the costs were neither "reasonable" (because the contractor had incurred them without seeking the required approval) nor "ordinary" (because the contract did not require them and other similarly situated contractors did not incur them) was supported in the record.

In Ralph Muhammad, the CBCA dismissed appeal with prejudice as moot without the pro se contractor's consent because the parties had signed a bilateral modification giving the contractor its requested relief. 
November 8 The GAO sustained a protest by NCI Information Systems, Inc., because (i) there was nothing in the record to document that the agency meaningfully considered the awardee's potential impaired objectivity OCI or its proposed mitigation measures prior to award; and (ii) the record was insufficient to support the agency's conclusions that the awardee's proposed price: (a) was commensurate with the proposed technical approach and reflected realistic labor category pricing; and (b) was not clearly unrealistic.
November 5 The GAO sustained a protest by Phoenix Air Group, Inc. because (i) the agency's decision that the awardee met the offer acceptability criteria ignored the fact that the awardee had provided inconsistent information concerning the identify of its proposed aircraft, and (ii) the agency applied unstated evaluation criteria in downgrading the protester's proposal.

In Great Southern Engineering, Inc., an unsuccessful pre-award protest, the Court of Federal Claims held there was a rational basis for the agency's past performance evaluation of "past projects," which scored an offeror submitting information from totally separate contracts more favorably than the protester, who had submitted only multiple task orders under a single IDIQ contract. Although that was doubtless the correct result, I question some of the reasoning the the court used to get there. Specifically, the court asserted that the Supreme Court's recent decision in Kingdomware Technologies could not be read to hold that, as a general proposition, task orders are contracts. Here is the relevant language from Kingdomware:

When the Department places an FSS order, that order creates contractual obligations for each party and is a "contract" within the ordinary meaning of that term. See, e.g., Black’s Law Dictionary 389 (10th ed. 2014) ("[a]n agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law"). It also creates a "contract" as defined by federal regulations, namely, a "mutually binding legal relationship obligating the seller to furnish the supplies or services . . . and the buyer to pay for them," including "all types of commitments that obligate the Government to an expenditure of appropriated funds and" (as a general matter) "are in writing." 48 C.F.R. § 2.101 (2015). An FSS order creates mutually binding obligations: for the contractor, to supply certain goods or services, and for the Government, to pay. The placement of the order creates a new contract; the underlying FSS contract gives the Government the option to buy, but it does not require the Government to make a purchase or expend funds. Further confirming that FSS orders are contracts, the Government is not completely bound by the FSS contract’s terms; to the contrary, when placing orders, agencies may sometimes seek different terms than are listed in the FSS.

Given that competitions for orders under IDIQ contracts generally are conducted like as those under FSS contracts, I do not see the distinction the Court of Federal Claims is trying to make.  
November 4 In its latest decision regarding the protest by Favor TechConsulting, LLC (see October 25 entry below), the Court of Federal Claims required the agency to institute a CICA stay pending the resolution of a GAO protest because all the evidence available to the protester had indicated the contract award date was September 27, meaning it had filed its GAO protest on the tenth day after award, which, according to the court, was in time to obtain the CICA stay. The court's reasoning is based largely on grounds of fairness--the protester used the only available information to compute its 10-day time limit for filing and obtaining the automatic stay:

The Government’s failure to institute the CICA’s automatic stay in this case is founded neither in fact nor law. The record is absolutely clear that Plaintiff learned of the contract award via the September 27, 2016 Notice of Award. The Notice of Award is marked "September 27, 2016," and no other date appears that awards the BPAs. . . . Nor were there any other publically available notices of the award date, and nothing in the nearly 300-page October 24, 2016 Appendix submitted by the Government suggests anything to the contrary. In addition, the Government has not demonstrated, either in the two status conferences convened by the court in this case or in its filings, how Plaintiff was supposed to know that the contract was awarded by DIA on September 26, 2016.

The decision leaves one question open, at least in my mind. CICA requires that the agency receive notice of the protest from the GAO within 10 days of award. The GAO allows itself 24 hours to give notice of a protest to the agency. This protest was filed with the GAO on the tenth day after award. The case does not discuss whether the GAO gave notice to the agency that same day. If it did not, then the CICA stay was not required.

November 3 Pending the resolution of a suit challenging their validity, the Federal District Court for the Eastern District of Texas has temporarily stayed the implementation of the regulations that were intended to implement E.O. 13673 concerning contractor compliance with labor laws. See August 25 entry below.
November 1 In Certified Construction Co. of Kentucky, LLC an interesting case involving contract interpretation, the Court of Federal Claims held that two disputed contracts were requirements contracts, in part because, although standing alone, the contract note quoted below could be read as either the contractor or the Government advocated,  by taking into consideration the contracts as whole, the italicized (by me) portion of the note should be read to modify all four items in the list that precedes it (as the contractor contended), rather than just the immediately preceding phrase (as the Government had contended): "[The Government reserves the right to] perform the work included in this contract with in-house personnel, Job Order contracting, troop labor, or by another contract where concrete placement, asphalt surface treatment, or pavement marking is incidental to other work.”

In Ensign-Bickford Aerospace & Defense Co., the ASBCA held that: (i) the Government had failed to meet its burden to prove by a preponderance of the evidence that its rejection of production lots was proper; and (ii) the characteristics of an approved First Article do not change, or make more stringent, the contract requirements for subsequent production lots.

In Creative Times Dayschool, Inc., the contractor had initially submitted a document to the Contracting Officer that qualified as a CDA claim, but then down-converted it into an REA (so that the ASBCA lacked jurisdiction over an appeal based on the Contracting Officer's response to the REA), and still later,  reconverted it into a CDA claim, giving the Board jurisdiction over the Contracting Officer's subsequent denial of that claim. The fact that the submission was initially a claim submitted in anticipation of litigation, rather than an REA, however, precluded the contractor from recovering its professional consulting fees incurred in preparing it. On the merits, the ASBCA held that the contractor failed to offer adequate proof for any of its contentions that: (i) the Government required paving work beyond the original contract specifications; (ii) the roofing specification was defective; (iii) the Government unreasonably delayed roofing work;  and (iv) the Government changed the requirements regarding the fall prevention system or the size of the mandatory management team. However, the ASBCA held that the contractor was entitled to remission of liquidated damages for the period of time it took the parties to agree on a solution to a problem that arose during construction.

In Contrack International, Inc., the ASBCA held that, accepting the Government's contentions as true for purposes of the contractor's summary judgment motion, the contractor was not entitled to delay damages for a third party's (the Afghan National Army's) delay in moving vehicles off the contractor's worksite.

In Grunley Construction Co., on cross motions for summary judgment on numerous issues, the CBCA held, inter alia, that the Government was responsible for the contractor's (and its subcontractor's) excess costs incurred because of the Government's erroneous insistence (initially supported, but ultimately rejected, by the DOL) that the subcontractor was paying certain workers less than the rates required by the Davis-Bacon Act.

In Size Appeal of System Studies & Simulation, Inc., the SBA's OHA held that the Area Office had correctly dismissed a size protest of a task order awardee under a long-term contract because the Contracting Officer had not requested recertification of size in connection with the  order.
October 31 The GAO sustained a protest by Bluehorse Corp., because an RFQ, which (i) was not electronically advertised, (ii) was sent only to three potential offerors (one of whom was unlikely to be able to supply the required items and did not submit a quote), and (iii) was placed in a binder inside a closed government building on a Saturday with a response due by Monday, did not satisfy the competition and publications requirements for solicitations of commercial items using streamlined procedures under FAR 12.6.
October 27 In DCX-CHOL Enterprises, Inc., the ASBCA denied the contractor's motion for summary judgment to overturn a default termination because the contractor failed to present evidence for either of the two elements required by the so-called DeVito rule to establish that the Government had waived the contract delivery date.
October 26 In Military Aircraft Parts,  the ASBCA dismissed an appeal as untimely, holding that the notice of appeal rights in a decision by a Contracting Officer need not inform a contractor that, if it chooses to appeal to the Court of Federal Claims, the company cannot be represented by non-attorney appearing pro se. (Here, the contractor discovered this CoFC rule only after his 90-day time limit for appealing to the Board had passed.)
October 21 In Favor TechConsulting, LLC, the Court of Federal Claims granted the protester a TRO prohibiting the Government from proceeding with performance of awarded orders for seven days (within which time the agency will have the opportunity to submit additional documentation concerning its contention that the original GAO protest was not filed within 10 days of the award date) because the documentation in the record so far supports the protester's contention that it filed its GAO protest within the time period required to trigger CICA's automatic stay. Subsequently, the court extended the TRO for an additional 10 days to permit the parties to submit their respective filings.

In its latest slam dunk win in this decade-plus long case, SUFI Network Services, Inc. convinced the Court of Federal Claims that it was entitled to its attorneys fees at full law firm rates because its position was substantially justified and there were special circumstances entitling it to an upward adjustment of EAJA's statutory cap on hourly rates. The court reasoned, in part, as follows:

[T]he facts here . . . suggest that Crowell & Moring’s [SUFI's litigation counsel] expertise was essential to SUFI’s success. First, SUFI initially approached its regular counsel to take on this matter and its counsel declined because this case required specialized knowledge, specifically recommending Crowell & Moring. . . .  Second, this case involved an unusual kind of government contract under a nonappropriated funds instrumentality employing its own unique set of rules and contract clauses unknown to most general litigators. Third, Crowell & Moring also served as an accounting expert during the litigation – a skill essential to the litigation and requiring specialized knowledge of accounting in government contracts. . . .  Fourth, Crowell & Moring was extremely successful in achieving a significant award and setting records for damages within government contracts litigation. If ever there were a set of facts supporting a finding that government contracts expertise was essential to a litigation, this is it."

In Sylvan B. Orr., the CBCA, inter alia: (i) dismissed the contractor's claim that it should have been offered work under a BPA because the BPA did not commit the Government to order any work; (ii) held that the contractor's signature on a general release accompanying final payment on an order barred the contractor's subsequent claim for actions that occurred prior to the execution of the release; (iii) concluded that the contractor had failed to prove it signed the release under duress; (iv) dismissed a claim based on minor procedural missteps by the Government in issuing a CPAR; and (v) held that the contractor's challenge to the specifics in a CPAR was moot because the Government, recognizing the contractor had not had an opportunity to comment on the CPAR, never utilized (or acted on) it for any purpose.

DFARS Case 2016-D018: A final rule amends the DFARS to consolidate the multiple hotline posters into one poster that delineates multiple reportable offenses.

DFARS Case 2013-D018: A final rule adopts, with changes, the prior rule amending the DFARS 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, as well as providing DoD policy on the purchase of cloud computing services.

DoD is making technical amendments to the DFARS to make needed editorial corrections. Also, by means of an update to  FAR Case 2014-018, corrections are being issued to the paragraph designations in the section of FAC 2005-91 concerning contractors performing private security functions. (See September 30 entry below)

DFARS Case 2015-D024: A proposed rule would amend the DFARS to provide a more transparent means of documenting the impact of costs incurred during the undefinitized period of an undefinitized contract action on allowable profit.   Comments are due by December 20.

DFARS Case 2015-D035: A proposed rule would amend the DFARS to expand the prescription for use of the FAR "Government Property" clause.   Comments are due by December 20.
October 20  The SBA corrected various errors in recently published rules concerning the mentor-protégé program. The SBA issued a second rule making another correction. 
October 19 In Dorado Services, Inc., an unsuccessful post-award protest, the Court of Federal Claims held: (i) it had bid protest jurisdiction over a contract awardee's suit challenging the SBA's decision to decertify it as an eligible HUBZone business for purposes of the HUBZone set-aside contract it was already performing (the SBA's decision coming as a result of a HUBZone status protest filed by another firm shortly after award); and (ii) the SBA had correctly concluded that certain of the plaintiff's employees did not reside in HUBZones at the time of award  and, therefore, that the plaintiff did not meet the HUBZone program requirement that 35 % of its workers do so.

In Colonna's Shipyard, Inc., the ASBCA held that, although it lacked jurisdiction over (a) the contractor's claim that its due process rights were violated by the Government's failure to permit the contractor to review and respond to negative comments in a CPAR before it was published and (b) the contractor's request for injunctive relief or specific performance, the Board did have jurisdiction over other contract disputes involving alleged improprieties in the CPAR.
October 18 The GAO sustained a protest by Phoenix Environmental Design, Inc., because the agency's justifications for restricting a solicitation to certain brand name items did not have a rational basis and did not comply with the competition requirements of FAR Part 13 regarding simplified acquisition procedures.

In Attenuation Environmental Co., the CBCA rejected all the contractor's theories of recovery for lost profits after the Government declined to exercise an option because the Government had ordered (more than) the minimum quantity under an IDIQ contract, which was all it was required to do.

Because it received adverse comments on the direct final rule first issued on July 28, the EPA has withdrawn it.

For purposes of the one-year postemployment conflict of interest restriction for senior employees, the U.S. Office of Government Ethics is issuing a proposed rule to revoke two existing component designations and add five new component designations, based on the recommendations of the agencies concerned. Comments are due by November 17.

NASA is making various editorial changes to the NASA FAR Supplement.
October 17 The Commerce Department's Bureau of Industry and Security is revising its regulations: (i) to amend a license exception to allow cargo aboard aircraft to transit Cuba when that cargo is bound for destinations other than Cuba; (ii) to authorize export and reexport of certain items sold directly to individuals in Cuba under a license exception; and (iii) to revise the lists of ineligible Cuban officials for purposes of certain license exceptions.

The Department of Transportation has finally revised its regulations to recognize (belatedly, by almost 10 years) that the DOT's board of contract appeals was absorbed by the CBCA in 2007.
October 14 In Avant Assessment, LLC, the ASBCA converted a default termination to one for convenience because the Government: (i) failed to present any evidence of the existence of the delivery schedule it claimed the contractor had not met; and (ii) failed to show the contractor had delivered fewer than the required number of items because the parties had agreed to reduce the number of required items to only the number the Government found acceptable.

In Native American Construction Services, LLC, the CBCA denied a claim for breach of contract because the contractor had not presented any evidence that would permit the CBCA to determine the amount, if any, of increased costs associated with the alleged breach. Subsequently, the Board denied the contractor's request for reconsideration because it sought relief on a basis that was inconsistent with the issue that had been originally litigated.

In E Industry, Inc., the CBCA held that the purchaser's failure to inspect the merchandise prior to bidding in an online auction did not preclude its subsequent claim for misdescription of the items in the auction.

The the Bureau of Industry and Security has amended the Export Administration Regulations (EAR) to permit electronic submission as an additional method available to United States persons for reporting requests they have received to take certain actions in furtherance of an unsanctioned foreign boycott.
October 12 Effective December 31, the  State Department is amending the International Traffic in Arms Regulations (ITAR) by: (i) revising CCategory XII (fire control, laser, imaging, and guidance equipment) of the U.S. Munitions List (USML) to remove certain items and to describe more precisely the articles continuing to warrant control; (ii) revising Categories VIII, XIII, and XV to reflect that the items previously described in those Categories are now controlled under the revised Category XII or Commerce Control List (CCL); and (iii) amending Category XI to move items to the CCL as a result of changes to related control in Category XII. Simultaneously, the Commerce Department's  Bureau of Industry and Security is revising the CCL: (i) to describe how items that no longer warrant control under Category XII of the ITAR will be controlled under the CCL by amending Export Control Classification Number (ECCN) 7A611/a> and creating new "600 series" ECCNs 7B611, 7D611, and 7E611;  (ii) to expand controls for certain software and technology relating to certain dual-use infrared detection items; (iii) to eliminate the use of some license exceptions, revise licensing policy, and expand license requirements for certain transactions involving military end users or foreign military commodities; and (iv) to harmonize provisions within the EAR by revising controls related to certain quartz rate sensors.
October 10 In Loch Harbor Group, Inc., an unsuccessful request for emergency relief (a TRO and preliminary injunction) pending a full trial on the merits, the Court of Federal Claims held that: (i) the evidence in the record so far was not sufficient to demonstrate that the protester had standing (because it was not a small business under the size standard applicable to the protested procurement, which likely would be applicable to any reprocurement); and (ii) the available record suggested the agency had complied with all requirements of the Veterans Benefit, Health Care, and Information Technology Act in awarding a sole-source contract to a veteran-owned business, and, therefore, the protester had not demonstrated it was likely to succeed on the merits of the case.

In Bryant Commercial Postal, LLC, the PSBCA held that the Postal Service, as the lessee, was responsible for the costs of removing trash and graffiti from a building it continued to pay rent on, but had abandoned.
October 7 Although I had previously updated the 2014 Blog and 2014 Procurement Review to indicate the reversal, I should also point out here that in Kingdomware Technologies, Inc., the Supreme Court reversed the prior CAFC decision that the Veterans Act of 2006 does not require the VA to conduct a Rule of Two inquiry before contracting via FSS and held that such an analysis is mandatory.

SBA proposes to amend the rules of practice of its Office of Hearings and Appeals (OHA), inter alia, to implement Section 869 of the National Defense Authorization Act for Fiscal Year 2016, which authorizes OHA to decide petitions for reconsideration of new, revised, or modified size standards. Comments are due by December 6.

In Claude Mayo Construction Co., which involved a dispute over the propriety of a default termination, the Court of Federal Claims dismissed:  (i) counts of the complaint alleging (a) interference with the contractor's ability to secure other contracts and (b) unjust enrichment, because they were outside the court's jurisdiction, and (ii) another count alleging breach of contract because the contractor had not first submitted a CDA claim for breach to the Contracting Officer.
October 6 In Size Appeal of BryMak & Assocs., the SBA's OHA held that the Area Office had erred in finding affiliation based on familial identity of interest between a stepmother and her stepchild despite clear evidence presented by the appellant that the two were not close (in fact, were estranged) and had no significant ongoing ownership or business interests in one another's firms.

In California Department of Water Resources, the Court of Federal Claims held that certain agreements for the operation and maintenance of water storage facilities in California were not contracts within the coverage of the CDA and, therefore, dismissed the plaintiff's claims for breach of contract.
October 5 In Size Appeals of ProActive Technologies, Inc. and CymSTAR Services, LLC, the SBA's OHA remanded the case to the Area Office to analyze whether, under a solicitation for manufactured items set aside for small businesses, the challenged firm qualified as the manufacturer when considering the three factors listed at 13 C.F.R. 121.406(b)(2)(i).

In Size Appeal of Veterans Technology, LLC, the OHA upheld the Area Office's finding of affiliation through economic dependence because the challenged firm had derived more than 70% of its revenues from a large business for each of the past three years.
October 4 In Proxtronics Dosimetry, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that: (i) it lacked jurisdiction over claims sounding in tort based on the Lanham Act;  (ii) the plaintiff lacked standing to protest a sole-source award because it had failed to provide any notice of its objections or its own availability at the time the notices of the sole-source procurement were issued; (iii) the plaintiff waived its right to challenge the agency's decision not to set aside a procurement for small businesses because it did not protest at the time the solicitation was issued; and (iv) the plaintiff's protest of a contract that already had been fully performed was moot.

In Pacific Gas and Electric Co., et al., the Court of Appeals for the Federal Circuit affirmed the CoFC's dismissal of a breach of contract suit because the plaintiffs did not have privity of contract with the Government and, therefore, lacked standing.

In Douglas P. Fleming, LLC, the CBCA expressed its displeasure with (a) the contractor's failure to track its actual costs of allegedly extra work it knew at the time of performance would be the subject of a dispute and (b) its reliance on unpersuasive testimony that was often at odds with the sparse contemporaneous record, and held, inter alia: (i) the jury verdict method would be used to calculate a recovery where the contractor's evidence was insufficient; (ii) the contractor's claim for costs associated with responding to a cure notice must be denied because the cure notice was justified by the contractor's statements and actions threatening anticipatory repudiation; (iii) claims for excess painting costs were not justified because, under the rules of contract interpretation, the contract required the contractor to paint all of the disputed area for the contract price; (iv) a clear release in a supplemental agreement precluded a subsequent claim for the costs of administrative time incurred prior to a notice to proceed; and (v) the contractor failed to present evidence that it had performed extra touch-up painting work. 

The ASBCA sustained an appeal by HCS, Inc. because the Government failed to present evidence in support of its post-contract, unilateral 50% price reduction for deleted work as a result of an earlier unilateral change order.

In Ft. McCoy Shipping & Services, the ASBCA denied claims for various categories of costs because (i) the contract made the contractor responsible for them, (ii) the contract contained no provision for their recovery, (ii) they constituted ordinary business expenses, or (iv) the contractor incurred them as a volunteer after the contract had ended.

Effective November 3, a final rule updates the regulations concerning DoD’s Defense Industrial Base Cybersecurity  Activities at 32 C.F.R. Part 236 by implementing mandatory cyber incident reporting requirements for DoD contractors and subcontractors who have agreements with DoD.

GSAR Case 2016-G501: A final rule updates language regarding acquisition-related thresholds in various sections of the GSAR to align with the FAR.
September 30 In Raytheon Co., Space & Airborne Systems, the ASBCA held that the Contracting Officer had violated FAR § 30.602 and abused her discretion by making a government claim for increased costs associated with a change in cost accounting practices without considering the materiality of the cost impacts associated with the change pursuant to the criteria in 48 C.F.R. § 9903.305.

The GAO sustained a protest by Halbert Construction Co. because: (i) the agency treated the protester and a competitor disparately in the evaluation of their past performance; and (ii) the agency's tradeoff analysis was  based upon a non-existent distinction in the definitions of the assigned adjectival rating terminology.

The State Department has issued an interim final rule amending the ITAR as of September 29: (i)  to designate Tunisia as a major non-NATO ally; (ii) to reorganize the content in several paragraphs to clarify the intent of the ITAR; (iii) to update defense trade policy regarding Eritrea, Somalia, the Democratic Republic of the Congo, Liberia, and Cote d’Ivoire to reflect resolutions adopted by the United Nations Security Council; (iv) to update defense trade policy regarding Sri Lanka to reflect the Consolidated Appropriations Act, 2016; and (v) to update defense trade policy regarding Vietnam to reflect a determination made by the Secretary of State. Comments are due by October 31.

Federal Acquisition Circular (FAC) 2005-91 has been published and includes the following 10 items (plus technical amendments):

FAR Case 2015-011: A final rule adopts, without changes, the prior interim rule amending 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. 

FAR Case 2015-036:: A final rule adopts, without change, the prior interim rule amending the FAR to implement a rule issued by the DOL's Veterans’ Employment and Training Service (VETS) that replaced the VETS–100 and VETS–100A Federal Contractor Veterans’ Employment Report forms with the VETS–4212 (Federal Contractor Veterans’ Employment Report) form. 

FAR Case 2015-032: A final rule adopts, with a minor edit, the prior interim rule amending 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 (WOSB) Program.

FAR Case 2015-022: Effective October 31, a final rule amends the FAR to redesignate the terminology for unique identification of entities receiving federal awards. The change to the FAR removes the proprietary standard or number.

FAR Case 2014-015: Effective October 31, a final rule amends 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 consolidation and bundling.

FAR Case 2016-006: Effective October 31, a final rule amends the FAR to implement a section of the National Defense Authorization Act for FY 2016, to require a finding that "significant" savings would be achieved as a condition for entering into a multi-year contract.

FAR Case 2016-009: Effective October 31, a final rule amends the FAR to add Ukraine and Moldova as new designated countries under the World Trade Organization Government Procurement Agreement

FAR Case 2014-018: Effective October 31, a final rule amends the FAR to remove the DoD-unique requirements for contractors performing private security functions outside the United States and to provide a definition of "full cooperation" within the associated clause.

FAR Case 2016-007: An interim rule amends the FAR to implement  (i) the E.O. entitled "Non-Retaliation for Disclosure of Compensation Information" and (ii) a final rule issued by the DOL that revises the equal opportunity clause to prohibit contractors from discharging, or in any manner discriminating against, any employee or applicant for employment because the employee or applicant inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.  Comments are due by November 29.
September 29 In Aegis Technologies Group, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that: (i) the plaintiff failed to provide "hard facts" (beyond inference and speculation) necessary to establish that the awardee's proposed subcontractor suffered from (a) a biased-ground-rules OCI under FAR 9.505-1, (b) an unequal-access-to- competitively-useful-non-public information OCI, or (c) an impaired objectivity OCI; and (ii) there were rational bases for the agency's cost realism, technical risk, and past performance evaluations.

In Federal Contracting, Inc. d/b/a Bryan Construction, Inc., the court held that: (i) especially because they did not include a sum certain regarding alleged breaches of contract, a contractor's responses to the Government's cure notice and the Government's notice of termination did not constitute CDA claims, and the default termination, itself, was not a decision on those alleged claims; but (ii) the contractor's written request that the Contracting Officer formally withdraw an unsatisfactory performance evaluation and the Contracting Officer's subsequent denial of that request constituted a CDA claim and a decision on that claim.

In Baistar Mechanical, Inc., the court: (i) held it lacked jurisdiction over a contractor's quantum meruit claim; (ii) dismissed claims for extra work based on directions received from the Contracting Officer's technical representative (because the contract specifically stated only the Contracting Officer had the authority to order changed work), except claims for allegedly emergency work requirements, which might constitute an exception to the general rule; (iii) dismissed claims related to the Government's alleged failure to order certain work because the contract did not contain minimum order requirements or require the Government to order the disputed work; and (iv) refused to dismiss other claims based on a contract ambiguity where the contractor had alleged a course of dealing supporting its interpretation.
September 28 In Nevada Site Science Support and Technologies Corp., the Court of Federal Claims denied motions by third parties to intervene in a bid protest challenging an agency's decision to rescind a contract and used the following colorful analogy to support its reasoning: "[T]he simple fact that a party might benefit from another’s legal misfortune does not lead to an understanding that said party should have a role in . . . that legal misfortune. If a singer suffers a voice injury and is, as result, fired from her job, it is hardly conceivable to believe that a Court would allow a rival singer to intervene in that case on the side of the employer simply because he might subsequently get the newly vacant job!"

In Alaska Aerospace Corp., the ASBCA denied the Government's claim for recoupment of pension contributions because the Government neglected to present any evidence that it reimbursed the contractor for any of those costs. Just a small evidentiary oversight. ;)
September 27 In Jonathan Noeldner, the CBCA dismissed an appeal because the contractor had failed to file a claim with the Contracting Officer within the time limit established by a timber sales contract.

In Alluviam, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that the plaintiff had waited far to too long to challenge a procurement strategy adopted 12 years previously, especially because all the contracts at issue were almost fully performed.

In Pioneer Reserve, LLC, the court held that, although the plaintiff had established the Government had breached the contract, it failed to prove any damages resulting from the breach.

On a lighter note, in Bryndon Fisher, the court refused to dismiss a suit claiming that a software glitch in the Government's PACER system overcharges users for copies of certain HTML-formatted documents.

The SBA seeks comments by November 28 on a proposed amendment to its regulations governing the small business timber set-aside program which will require that appraisals be based on the nearest small business mill.
September 26 In McConnell Jones Lanier & Murphy LLP, an unsuccessful post-award protest, the Court of Federal Claims held that there were rational bases for the disputed aspects of the agency's technical and cost realism evaluations, and, in any event, the protester was not prejudiced by any errors in the cost realism evaluation.
September 23 In Dellew Corp., a case that demonstrates, among other things, how difficult it is for a protester to actually obtain the contested contract, the Court of Federal Claims upheld the agency's selection (after two sets of corrective actions) of the same firm it had originally selected (despite the facts that (i) the evaluations were very close, (ii) the protester's evaluated price was lower, and (iii) there were flaws in the evaluation) because the Contracting Officer had rationally exercised his discretion in awarding the contract. In other words, the agency ultimately found a way that was acceptable to the court to choose the contractor it had wanted all along.

In TAT Technologies, LTD, another unsuccessful post-award protest, the court rejected the protester's contention that the solicitation required offerors to perform and pass qualification tests on the contract items prior to award.

In Bullseye International SDVOB, Inc., the CBCA found no basis for the contractor's claim that it was entitled to recover merchant transaction fees incurred because the agency had allegedly used government purchase cards in amounts, and at intervals, that violated agency regulations.

DFARS Case 2016-D028: A final rule amends the DFARS to add Moldova as a new designated country under the World Trade Organization Government Procurement Agreement.

DFARS Case 2015-D040: A final rule amends the DFARS to prohibit any form of cost-plus contracting for military construction projects or military family housing projects.

DFARS Case 2016-D008: A final rule amends DFARS provisions that address rights in technical data relating to major weapon systems by expanding the application of the presumption that a commercial item has been developed entirely at private expense.

DFARS Case 2016-D011: A proposed rule would amend the DFARS to implement section 861 of the National Defense Authorization Act for FY 2016, which concerns the DoD Pilot Mentor Protégé Program ("the Program") and: (i) imposes new reporting requirements on contractors who participate in the Program as mentors; (ii) adds new eligibility criteria; (iii) limits the number of mentor-protégé agreements to which a protégé firm may be a party; (iv) limits the period of time during which a protégé firm may participate in mentor-protégé agreements under the Program; (v) adds new elements to mentor-protégé agreements addressing the benefits of the agreement to DoD and goals for additional awards for which the protégé firm can compete outside the Program; (vi) removes business development assistance using mentor firm personnel and cash in exchange for an ownership interest in the protégé firm from the types of assistance that a mentor firm may provide to a protégé firm; (vii) prohibits reimbursement of any fee assessed by the mentor firm for certain services provided to the protégé firm while participating in a joint venture with the protégé firm; (viii) revises the definitions of the terms "small business concern" and "disadvantaged small business concern"; (ix) adds definitions for "severely disabled individual" and "affiliated"; and (x) extends the Program for three years. Comments are due by November 22.

DFARS Case 2015-D013: A proposed rule would amend the DFARS to make extensive revisions to the Test Program for Negotiation of Comprehensive Small Business Subcontracting Plans.   Comments are due by November 22.
September 21 In Engility Corp., a rare decision sustaining a protest against a nonresponsibility determination, the GAO held that, in determining a firm did not have a required facility security clearance, the agency: (i) relied on incomplete information and speculation, (ii) ignored evidence suggesting  the agency's conclusion was incorrect, and (iii) failed to contact the firm to clarify the situation.
September 20 In Amaratek, the ASBCA dismissed an appeal challenging the Government's in-sourcing decision because it was essentially a bid protest over which the Board lacks jurisdiction.

The ASBCA dismissed an appeal by Fahim Noori Construction Co. because the contractor's only submission to the Contracting Officer was a routine request for payment in the form of  an invoice, rather than a claim.

The ASBCA also dismissed an appeal by KBAJ Enterprises, LLC  t/d/b/a Home Again because the essence of the appeal was a monetary dispute, and the contractor had not submitted a monetary claim in a sum certain to the Contracting Officer.

In Optimum Services, Inc., after the parties were unable to agree on quantum, the ASBCA used the Measured Mile Method to determine the amount owed to the contractor for a differing site condition on a dredging contract.

The Bureau of Industry and Security (BIS) has revised the Commerce Control List (CCL) as well as corresponding parts of the Export Administration Regulations (EAR) in order to implement changes made to the Wassenaar Arrangement’s List of Dual-Use Goods and Technologies (WA List) agreed to at the December 2015 WA Plenary Meeting (the Plenary) by revising Export Control Classification Numbers (ECCNs) controlled for national security reasons in each category of the CCL, including raising the Adjusted Peak Performance (APP) for high performance computers.  This rule also makes changes to the EAR that were not agreed to at the WA Plenary. APP parameters are amended in several places in the EAR by this rule, such as APP parameters in the de minimis rules, License Exception APP, and related reporting requirements. BIS is also updating license requirements and policies associated with Category 5—Part 2, including revising ECCNs 5A992, 5D992 and 5E992. In addition, this rule removes the Foreign National Review requirement associated with deemed exports under License Exceptions APP and CIV.
September 19 In Size Appeal of K4 Solutions, Inc.,  the SBA's OHA held that the Area Office had correctly dismissed a protest against a firm's size status on a BPA issued under a long-term contract as untimely because the protester had  not alleged, until its appeal to the OHA, that recertification was required under 13 C.F.R. § 121.404(g)(2) as a result of an acquisition of the challenged firm. In other words, the Area Office had no obligation to investigate allegations not brought to its attention by the protester.
September 17 In DekaTron Corp., the Court of Federal Claims held that, although there would be a difficult burden of proof, the contractor's allegations of bad faith and a lack of independent judgment underlying the Contracting Officer's decision not to exercise an option were sufficient to withstand the Government's motion to dismiss the suit.
September 15 In Omran Holding Group, an unsuccessful protest, the Court of Federal Claims held that, in a lowest-price, technically acceptable procurement with only one awardee, the protester lacked standing to challenge the agency's finding that its proposal was nonresponsive on technical grounds because 18 technically acceptable offerors proposed a lower price than the protester did.
September 14 In Exelis, Inc., the ASBCA (i) dismissed the Government's CAS 404 claim because a building lease is not a tangible asset, which is the type of asset covered by CAS 404, but (ii) permitted the Government to proceed with its claim that the contractor's alleged mischaracterization of lease expenses violated FAR principles of allowable costs. Subsequently, the Board denied the Government's motion for reconsideration.

FAR CASE 2015-039: A proposed rule would revise the FAR to raise the dollar threshold requirement for the audit of prime contract settlement proposals and subcontract settlements from $100,000 to $750,000. Comments are due by November 14.

Effective today, NASA is issuing an interim rule amending the NASA Federal Acquisition Regulation Supplement (NFS) to implement revisions to the voucher submittal and payment process required by section 893 of the National Defense Authorization Act for Fiscal Year 2016, which prohibits the DCAA from performing audit work for non-Defense agencies. Comments are due by November 14.

Effective October 18, the U.S. Agency for International Development (USAID) is revising the Agency for International Development Acquisition Regulation (AIDAR) clause 752.247–70 (Preference for Privately Owned U.S.-flag Commercial Vessels) to conform to the current requirements of the Cargo Preference Act of 1954 and provide up-to-date submission instructions to the Maritime Administration.
September 13 Although the GAO has not yet announced the date when its new electronic filing system for bid protests will take effect, it has just published the set of instructions that will govern such e-filings. Stay tuned for the effective date, which probably will appear first on the GAO's website.

The GAO sustained a protest by AT&T Government Solutions, Inc. because: (i) the record did not demonstrate that the agency reasonably evaluated a potential unequal-access-to-information OCI arising from the relationship between the awardee and one of its proposed subcontractors; and (ii) the past performance evaluation contained errors in the assignment of adjectival ratings, which the source selection authority subsequently relied on in making the award decision.

In Tender Years Learning Corp., the Court of Federal Claims denied the overnment's motion to dismiss (and overruled its objections) and allowed the contractor: (i) to amend its Complaint to eliminate bid protest allegations and allege only implied-in-fact contract damages; and (ii) to bifurcate the issues of entitlement and quantum.

In ThinkGlobal Inc., the CBCA, inter alia, dismissed: (i) a claim for the Government's alleged failure to provide required information on one contract because the claim accrued when the information was due at contract award, which was more than six years before the claim was filed; (ii) a claim for unfair competition from the Government because the contract did not give the contractor the right to operate on the disputed program; and (iii) a claim based on the Government's delays in responding to an FOIA request because the claim involved a statutory, rather than a contract, right. The Board, however, denied the Government's motion to dismiss a claim for damages solely because a no-cost contract was involved.
September 10 GSAR Case 2015-G503: The GSA proposes to amend its acquisition rgulation (GSAR) coverage on construction contracts, including provisions and clauses for solicitations and resultant contracts, to clarify, update, and incorporate existing construction contract administration procedures. Comments are due by November 8.

GSAR Case 2015-G506: The GSA also proposes to amend the GSAR to clarify the authority to acquire order-level materials when placing a task order or establishing a BPA against an FSS contract. Comments are due by November 8.
September 8 In InSpace 21 LLC, an unsuccessful post-award protest, the Court of Federal Claims held that: (i) the doctrine of laches did not bar the protester's suit even though it was filed four months after the original GAO decision on its protest because, inter alia, the protester had timely requested reconsideration from the GAO and then had filed suit within 10 days of the GAO's decision on reconsideration; and (ii) rational bases existed for the challenged aspects of the evaluation, including the agency's decision not to adopt the views of a minority of its evaluators.

The State Department is amending the ITAR (22 C.F.R. Parts 120, 125, 126, 130): (i) to revise the definition of "retransfer" in § 120.51 to clarify that temporary transfers to third parties and releases to same-country foreign persons are within the scope of the definitions; (ii) to add a new paragraph (f) in § 125.1 to mirror the new sections of the ITAR in §§ 123.28 and 124.1(e) detailing the scope of licenses; (iii) to revise § 126.16(a)(1)(iii) and § 126.17(a)(1)(iii) to reflect the definitions of reexport and retransfer in the Defense Trade Cooperation Treaties with Australia and the United Kingdom, respectively, and to make appropriate revisions to the definitions of reexport in § 120.19 and retransfer in § 120.51 to reflect that these definitions do not apply in the treaty context; (iv) to revise § 126.18(d)(1) to clarify that the provisions include all foreign persons who meet the definition of regular employee in § 120.39; and (v) to revise § 130.2 to ensure that the scope of the Part 130 requirements does not change due to the revised and new definitions.
September 7 In Size Appeal of The Emergence Group, the SBA's OHA dismissed the appeal because the OHA lacks jurisdiction over protest allegations that an ANC's exemption from the normal rules of affiliation gives it an unfair competitive advantage.

In Size Appeal of Quadrant Training Solutions, LLC, the OHA reversed the Area Office's decision because the evidence in the record did not support the Area Office's conclusion that the protested firm's mentor-protégé agreement had been approved and renewed during its annual review. Therefore, the protested firm was considered to be affiliated with its joint venture partners.

In Size Appeal of Human Learning Systems, LLC, the OHA reversed the Area Office because the founder of the protested firm was not an officer, director, or key employee of the allegedly affiliated firm; therefore, there was no affiliation under the newly organized concern rule.
September 3 The GAO sustained a protest by Professional Service Industries, Inc. because the awardee's proposed Program Manager failed to meet solicitation's requirement for management experience.

In CACI, Inc.-Federal; Booz Allen Hamilton, Inc., the GAO sustained preaward protests of the terms of a solicitation because: (i) the solicitation for cost-reimbursable task orders did not require offerors to propose labor rates for individual tasks and, therefore, did not include a means for the Government to compare the probable costs of competing proposals; and (ii) the agency failed to adequately justify its rationale for excluding from the competition any proposals with a total proposed price that was 50 percent below the trimmed average total proposed price.
September 2 In Impact Assocs., Inc., the CBCA (i) reduced the contractor's EAJA claimed recovery by the amount the contractor had spent on proceedings at the ASBCA, which ultimately decided it lacked jurisdiction, before proceedings were held at the CBCA; but (ii) declined to reduce the EAJA recovery on the basis that the contractor had recovered only a portion of its claimed costs before the CBCA.

In Systems Management and Research Technologies Corp., the CBCA allowed an EAJA recovery when the agency did not dispute either the entitlement to, or the claimed quantum of, the EAJA request.
August 31 The GAO sustained a protest by Kratos Defense & Rocket Support Services, Inc., because the awardee's proposal was based on the assumption that the agency would provide on-site workspace when the solicitation clearly stated it would not.

In Size Appeal of Straughan Environmental, Inc., the SBA's OHA held that a firm that (i) had not protested another firm's size status and (ii) had been eliminated from the competitive range, lacked standing to appeal to the OHA from the SBA's determination of that other firm's size status. Subsequently, the OHA denied the firm's petition for reconsideration.

In denying motions to dismiss two, consolidated protests for lack of standing, the Court of Federal Claims held in Precision Asset Management Corp. and Q Integrated Companies, LLC that the protesters need only establish that, absent the alleged errors in the evaluations, their evaluation ratings would have improved and their chances of securing a contract award would have increased, there being no requirement that they were next in line for award. One hopes the GAO is paying attention.
August 30 In Tetra Tech AMT, an unsuccessful post-award protest, the Court of Federal Claims: (i) rejected the protester's challenge to the agency's disregard for excess pages in its proposal because the protester's interpretation of the solicitation's proposal page imitation requirements was not within the zone of reasonableness; (ii) held that the protester waited too long to raise issues with (i.e., waived its objections to) the awardee's alleged manipulation of the page limitation requirements; and (iii) found the protester's challenges to various aspects of the evaluation and trade-off analysis undermined by the administrative record.

In Palantir Technologies, Inc. and Palantir USG, Inc., the court dismissed (as waived) one plaintiff preaward protest because its initial protest at the GAO had been untimely, but refused to dismiss a second plaintiff's preaward protest filed in court 43 days after an adverse GAO decision because that plaintiff's original GAO protest had been timely filed and no award had yet been made by the agency.

In Bryan Concrete & Excavation, Inc., the CBCA denied an appeal from a default termination because the contract obtained by the contractor's false certification that it was an eligible SDVOSB was void ab initio. Subsequently, the Board (i) held it had jurisdiction over the contractor's motion for reconsideration even though an appeal to the CAFC was pending and (ii) denied that motion.

In Suffolk Construction Co., the CBCA denied the Government's motion to dismiss (as untimely) an appeal filed with the Board more than 90 days after the Contracting Officer's decision on the original claim because the contractor had brought a timely action on the claim in the Court of Federal Claims, and that court, on the basis of an unopposed motion supported by good cause, had then transferred the action to the Board pursuant to 41 U.S.C. § 7107(d).

In Sylvan B. Orr, the CBCA held it would not recognize a non-attorney family member of a pro se non-attorney appellant as the appellant's legal representative for purposes of pursuing an appeal.

In Suzan Co., the ASBCA dismissed an appeal for lack of jurisdiction because, despite several orders from the Board to do so, the contractor never provided any evidence to the Board that it had certified its original claim prior to the time the Contracting Officer had issued a decision on it. An appeal by Stobil Enterprise at the CBCA suffered from the same defect and suffered the same fate. Subsequently, the Board denied the contractor's motion for reconsideration.

In Jonathan Noeldner, the CBCA held that, despite confusion caused by multiple transmissions of notices of appeal by different means, a notice of appeal (i) that referred to all of the claims being appealed and (ii) that was postmarked within 90 days of the Contracting Officer's decision, was timely.

DFARS Case 2016-D027: A final rule amends the DFARS to specify the countries with which DoD has audit agreements, i.e., France, Germany, the Netherlands, and the United Kingdom.

DFARS Case 2016-D004: Effective September 29, a final rule amends the DFARS to add instructions for utilizing the Wide Area WorkFlow Reparable Receiving Report.

DFARS Case 2016-D010: A final rule amends the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2016 that amends the allowability of costs of counterfeit electronic parts or suspect counterfeit electronic parts and the cost of rework or corrective action that may be required to remedy the use or inclusion of such parts.

DFARS Case 2016-D016: A proposed rule would amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2016 that provides exceptions from the certified cost and pricing data requirements and from the records examination requirement for certain awards to small businesses or nontraditional defense contractors.  Comments are due by October 31.
August 29 In National Air Cargo Group, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that: (i) an offer required by a solicitation to remain open for 180 days was not extinguished by the agency's initial rejection and could be accepted following corrective action; (ii) the agency had a rational basis for making six awards when the solicitation had stated "approximately four" would be made; and (iii) even though the agency's evaluation of the protested firm's past performance as "limited confidence" did not change from the original to the revised evaluation after corrective action, the record contained a rational basis for the trade-off analysis after corrective action that justified an award to the protested firm.
August 25 The GAO sustained a protest by MicroTechnologies, LLC because: (i) the agency's evaluation of the awardee’s proposed professional employee compensation plan  was not adequately documented; (ii) the data relied upon by the agency did not provide a meaningful basis to evaluate the awardee’s proposed compensation; and (iii) the agency acknowledged it mistakenly relied upon incorrect data from a salary survey.

In an important decision concerning competition requirements, the Court of Federal Claims held, in AugustaWestland North America, Inc., that: (i) the Army's order to designate a specific helicopter as the Army's institutional training helicopter and its manufacturer as the only responsible source was a procurement decision that violated, inter alia, CICA; and (ii) the Army did not have a rational basis for its decision to limit competition to one manufacturer.

Federal Acquisition Circular (FAC) 2005-90 has been published and includes the following item:

FAR Case 2014-025: Effective October 25, a final rule was slated to amend the FAR to to implement Executive Order 13673 (Fair Pay and Safe Workplaces), which is designed to increase efficiency and cost savings in federal contracting by improving contractor compliance with labor laws. Simultaneously with this publication, the Department of Labor is publishing final guidance (the Guidance) to assist the the FAR Council and federal contracting agencies in the implementation of the Executive Order, which, inter alia, (i) includes new instructions for federal contracting officers to consider a contractor’s compliance with certain federal and state labor laws as a part of the determination of contractor "responsibility," and (ii) directs the FAR Council to propose the rules and regulations necessary to carry out the Order and the Labor Department to develop guidance to help implement the new requirements. In this final Guidance, the Labor Department provides (i) detailed definitions for various terms used in the Order and the FAR rule to categorize and classify labor law violations, and (ii) a summary of the processes through which contracting agencies will assess a contractor’s overall record of labor law compliance and carry out their other duties under the Order. However, on October 24, the Federal District Court for the Eastern District of Texas temporarily stayed the implementation of a large portion of these regulations pending resolution of a suit challenging their validity.
August 24 In NAICS Appeal of Hendall, Inc., the SBA's OHA held that, in a solicitation for support for HHS' Public Engagement Platform (PEP) project, the Contracting Officer's selection of NAICS Code 511199 (All Other Publishers) was incorrect, and NAICS Code 561422 (Telemarketing Bureaus and Other Contact Centers) should have been selected.

In NAICS Appeal of Milani Construction, LLC, the OHA held that the Contracting Officer reasonably selected NAICS Code 238910 (Site Preparation Contractors
) for a solicitation for road and infrastructure improvement around the National Museum.

In Financial & Realty Services, LLC, the CBCA dismissed the contractor's claim and held that, in a fixed-price task order to provide an individual to perform property management services, the fact that the employee left to work for the Government does not entitle the contractor to payment for the months during which no replacement was performing the required services.
August 23 In Matter of Jamaica Bearings Co., the SBA's OHA sustained an appeal against the SBA's determination that a firm was not an eligible SDVOSB because the original protest was nonspecific on that issue, and the SBA should not have considered it.

In Size Appeal of Tenax Aerospace, LLC, the OHA remanded the case to the Area Office for a determination as to whether new SBA Size Policy Statement No. 3 requires a different analysis of interaffiliate transactions.

In Size Appeal of ACR Electronics, Inc., the OHA held that an appeal from a prior dismissal of a size protest was moot because the agency had, in the interim, filed its own protest.

In Size Appeal of OER Services, LLC, the OHA held that, although the body of the original protest was not sufficiently specific, the protest should not have been dismissed by the Area Office because it included a copy of the protested firm's SAM profile showing it was not small for purposes of the instant procurement.

In Size Appeal of Maron Construction Co., the OHA dismissed an appeal that failed to include several types of information required by OHA's regulations concerning, inter alia, the timeliness of the appeal.

In Size Appeal of Hale Laulima, LLC, the OHA held that, contrary to the finding by the Area Office, the protest was timely because the agency had re-opened discussions and solicited revised proposals after the original announcement of the apparent awardee.

In Size Appeal of CoSTAR Services, Inc., the OHA held that, on remand from a prior OHA decision, the Area Office properly limited its inquiry to whether two individuals had an identity of interest and properly concluded they did not.
August 22 In Guardian Moving Storage Co., a decision it labeled as nonprecedential, the Court of Appeals for the Federal Circuit affirmed the prior CoFC decision and held that a protest against the agency's corrective action was based on the flawed assumptions that the protester's proposal was acceptable and that no corrective action was necessary.

In Regency Construction, Inc., the CBCA held that a contractor could recover some of its claimed costs associated with delays in its subcontractor's access to the work site caused by the presence of another contractor because the Government had affirmatively warranted that the other contractor would have vacated the site by the date when the subcontractor was to  begin work.

The U.S. Agency for International Development (USAID) proposes to amend its acquisition regulation (AIDAR): (i) to incorporate a warrant program for cooperating country national personal service contractors into the regulation in order to address a shortage of U.S. direct-hire contracting officers by delegating limited contracting officer authority to a select number of Cooperating Country National personal services contractors and to build long-term, host country technical capacity to assist the agency's missions with procurement responsibility; and (ii) to clarify that third-country-national  and cooperating-country-national employment requirements do not apply to consultants. Comments are due by October 18.
August 19 In Lawson Environmental Services, LLC, the Court of Federal Claims refused to stay its previous decision (in which had denied a bid protest) pending the protester's appeal to the CAFC.
August 17 The GAO sustained a protest by Rotech Healthcare, Inc. because: (i) the evaluators did not comply with the solicitation requirement to consider and document the similarity of the awardee's past contracts in the Past Performance evaluation; and (ii) the agency conducted unequal discussions by allowing only the awardee the opportunity to revise its price after the protester had submitted its final proposal revisions.

In T.W LaQuay Marine, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that the agency's initial evaluation of offers in response as technically unacceptable and its subsequent decision to conduct discussions were reasonable, and the discussion questions and subsequent evaluation and award to the lowest-priced technically acceptable offeror, as provided for in the solicitation, had rational bases.

In Zafer Taahhut Insaat ve Ticaret A.S., the Court of Appeals for the Federal Circuit affirmed the prior CoFC decision and held that: (i) there was no evidence the Government had denied the contractor's request for a time extension, which was a required element of the contractor's constructive acceleration claim; and (ii) the contractor failed to establish that the Government's negotiations with Pakistan to re-open one contract route amounted to fault on the part of the Government establishing a constructive change.

Effective November 15, the Department of Commerce's Bureau of Industry and Security (BIS) is revising the destination control statement in section 758.6 of the Export Administration Regulations (EAR) to harmonize the statement required for the export of items subject to the EAR with the destination control statement in section 123.9(b)(1) of the International Traffic in Arms Regulations (ITAR). Also effective November 15, the Department of State is amending the ITAR to clarify rules pertaining to the export of items subject to the EAR, revise the destination control statement in ITAR § 123.9 to harmonize the language with the EAR, make conforming changes to ITAR §§ 124.9 and 124.14, and make several minor edits for clarity.

NASA is proposing to amend the NASA FAR Supplement (NFS) to remove both basic NFS clause 1852.243–70 (Engineering Change Proposals (ECPs)) and its Alternate I & II, as well as associated information collection requirements. Comments are due by October 17.
August 16 The ASBCA dismissed an appeal by Arab Shah Construction Co. because there was no evidence a claim in any form had been filed with the Contracting Officer.

The ASBCA dismissed another appeal because Great America Construction Co. had signed a contract mod releasing all claims in return for a settlement payment.
August 15 In Academy Partners, Inc., dba Academy Technology, the CBCA held that the contractor's mere  allegation of the existence of an implied-in-fact contract for continued performance after the base period of an order had ended was sufficient to survive the Government's motion to dismiss for lack of jurisdiction.
August 12 The GAO sustained a protest by Arcadis U.S., Inc. because (i) there was no basis for the evaluators' decision to downgrade the protester's otherwise meritorious technical proposal for a fixed-price task order on the basis of the allegedly higher costs of the proposed approach since there was no risk those costs would be passed on to the agency; (ii) the agency's evaluators provided no rational explanation for disregarding the awardee's lack of project experience; and (iii) the subsequent source selection decision based on these and other defects lacked a rational basis.

Alutiiq Banner Joint Venture won its GAO protest because: (i) the agency improperly credited a member of the awardee's joint venture for past performance of which there was no record; and (ii) the awardee was ineligible for award of an 8(a) set-aside because it had not timely submitted an addendum to its 8(a) joint venture agreement to the SBA for approval as required by SBA regulations, causing the SBA to rescind approval of the joint venture.
August 11 DFARS Case 2016-D006: A proposed rule would amend the DFARS to implement sections of the National Defense Authorization Acts for Fiscal Years 2013 and 2016 relating to commercial item acquisitions, specifically by: (i) adding definitions of "market prices," "market research," "nontraditional defense contractor," "relevant sales data," and "uncertified cost data"; (ii) revising DFARS 212.102 (Applicability) to instruct contracting officers on the treatment of prior commercial item determinations and nontraditional defense contractors; (iii) adding DFARS 212.209  (Determination of Price Reasonableness) to provide a hierarchy of data for contracting officers to consider when making determinations of price reasonableness; (iv) adding DFARS subpart 212.72 (Limitation on Conversion of Procurement from Commercial Acquisition Procedures); (v) amending DFARS 215.402 (Pricing Policy) to provide information regarding the contracting officer’s responsibility for determining if the information provided by the offeror is sufficient to determine price reasonableness; (vi) revising DFARS 215.403–1 (Prohibition on Obtaining Certified Cost or Pricing Data (10 U.S.C. 2306a and 41 U.S.C. chapter 35)) to provide a reference to 212.102 regarding prior commercial item determinations; (vii) amending DFARS 215.404–1 (Proposal Analysis Techniques) to supplement the proposal analysis procedures identified in the FAR; (viii) revising DFARS 234.7002 (Policy) to incorporate the revisions in section 852 of the NDAA for FY 2016; (ix) amending DFARS 239.101 (Policy) to incorporate the revisions in section 855 of the NDAA for FY 2016 and (x) adding DFARS provisions 252.215–70XX, 252.215–70YY, and 252.215–70ZZ.  Comments are due by October 11.
August 10 In AMX Veterans Specialty Services, LLC, the CBCA denied the Government's motion to dismiss an appeal because the contractor established that the individual who signed its claim certification had the requisite authority, and the individual who signed the notice of appeal to the Board was the contractor's duly licensed attorney.

In King Aerospace, Inc., the ASBCA held that (in an aircraft maintenance contract), the contractor was entitled to recover its extra costs incurred because (i) the condition of the government-furnished aircraft was inferior to that represented in the contract, and (ii) the government-furnished property listed in the contract was often not delivered in a serviceable condition or in a timely manner.

In  BAE Systems Tactical Vehicle Systems LP, the ASBCA denied the Government's motion to stay proceedings on an appeal from the Government's TINA claim pending resolution of the Government's FCA suit on the same dispute in District Court. Similarly, in Kellogg Brown  & Root Services, Inc., the ASBCA denied the Government's motion to suspend or dismiss (for an indefinite duration) appeals from the denial of the contractor's claim for certain subcontractor costs pending an FCA suit by the Government in District Court. Subsequently, the Board denied the Government's motion for reconsideration.

August 9 In SOS International LLC, an unsuccessful preaward protest of the agency's proposed corrective action of clarifying ambiguous proposal page limitation requirements in response to a previous protest, the Court of Federal Claims held: (i) the protester lacked standing because it was not the winner of the original competition and could not establish it would be in line for award but for the proposed corrective action; and in any event (ii) the proposed corrective action was reasonable because the original solicitation was, in fact, ambiguous.
August 8 Effective September 2, the State Department is adopting as final revisions to the Department of State Acquisition Regulation (DOSAR) relating to the suspension and debarment process.

Unless significant adverse comments are received by September 6, effective October 3, the SBA is adopting several amendments to the regulations governing the HUBZone Program to implement section 866 of the National Defense Authorization Act for Fiscal Year 2016, specifically: (i) to authorize Native Hawaiian Organizations to own HUBZone small business concerns; (ii) to expand the definition of "base closure area" under the HUBZone program; and (iii) to authorize the inclusion of "qualified disaster areas" under the HUBZone program.

With an interim final rule, the Bureau of Industry and Security (BIS) is amending the EAR to make certain items subject to that regulation and to impose on those items a license requirement for export and reexport to all destinations, except Canada. Specifically, this rule classifies certain specified targets "specially designed" for the production of tritium and related "development" and "production" technology under ECCNs 0A521 and 0E521, respectively, on the Commerce Control List (CCL).
August 6 In Tech Projects, LLC, the ASBCA denied the contractor's request for an EAJA recovery (after the Contracting Officer had amended his decision to concede quantum and the Board had dismissed the original appeal) because the contractor  was not a "prevailing party" that had obtained either a decision or a consent judgment from the Board.

In CACI International, Inc. & CACI Technologies, Inc., a decision involving contract interpretation, the ASBCA held that the hazardous pay supplement of 35% of the contractor's "basic compensation" applied to all hours worked by the contractor's employees, including overtime work.

In Parcel 49C Limited Partnership, a preaward protest, the Court of Federal Claims allowed supplementation of the administrative record with information concerning the agency's development of the independent government estimate (IGE).
August 4 In Sectek, Inc., the CBCA granted the contractor's motion for reconsideration of its prior decision and dismissed the appeal as one involving a dispute within the exclusive jurisdiction of the Labor Department.

In ASW Assocs., the CBCA dismissed the portion of the appeal related to the contractor's contention that  the agency had interfered with or hindered the contractor’s performance because the contractor failed to provide any evidence to support that assertion despite numerous requests during discovery.

In ASRC Communications, Ltd., the GAO held that the agency's reevaluation of portions of the awardee's proposal following a prior protest was not in accordance with solicitation's evaluation scheme.

In Valor Healthcare, Inc., the GAO held that the agency failed to follow the solicitation's requirement that it compare the awardee's proposed pricing to its technical approach for purposes of assessing price realism.
August 3 Effective September 2, the State Department is adopting changes in  its acquisition regulation (the "DOSAR") relating to the suspension and debarment process .
August 2 DFARS Case 2014-D005: A final rule amends the DFARS to 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.

DFARS Case 2016-D023: A final rule amends the DFARS to add Japan and Slovenia as qualifying countries.

DFARS Case 2016-D013: A proposed rule would amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2016 that makes contractors and subcontractors subject to approval (as well as review and audit) by appropriate DoD officials when identifying a contractor-approved supplier of electronic parts. Comments are due by October 3.
August 1 In Algese 2 s.c.a.r.l., after a remand to the agency for a new responsibility determination and the receipt of additional explanations from the agency, the Court of Federal Claims reluctantly lifted its previous injunction against an award, which had been based on the court's prior findings of "multiple failures to disclose rampant criminal conduct by [the awardee's] parent company officers and principals. . . ." Subsequently, the court denied a motion to stay its decision pending an appeal.
July 30 Effective August 31, a final rule amends the NASA Federal Acquisition Regulation Supplement (NFS) to clarify NASA’s award fee process by incorporating: terms used in award fee contracting; guidance relative to final award fee evaluations; provisions concerning the release of source selection information; an explanation of the calculation of the provisional award fee payment percentage in NASA end-item award fee contracts.
July 28 In Starry Assocs., Inc., a successful post-award protest, the Court of Federal Claims held that the agency lacked a rational basis for cancelling a solicitation rather than undertaking the corrective action previously recommended by the GAO and that the cancellation merely "punctuates a series of actions [by the agency] which reflect a lack of fidelity to the procurement process."

Effective on October 26 without further notice, unless the EPA receives adverse comment by August 29, the EPA is revising its Disadvantaged Business Enterprise program at 40 C.F.R. Part 33 to improve the practical utility of the program, minimize burden, and clarify requirements that have been the subject of questions from recipients of EPA financial assistance and from disadvantaged business enterprises. (UPDATE: Subsequently, the EPA did receive adverse comments and withdrew this rule.)

Effective December 31, the Department of State is amending 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. In conjunction with these changes, the Commerce Department's Bureau of Industry and Security is amending the CCL to add items deleted from the ITAR by the State Department's action. 
July 27 In Puget Sound Environmental Corp., the ASBCA held that the Government had not acted in bad faith in terminating a purchase order for convenience and declining to exercise additional options after the DOL made a preliminary determination that the contractor failed to pay wages in accordance with the Service Contract Act.

In GSC Construction, Inc., the ASBCA held that although the DOL had exclusive jurisdiction to decide whether a contractor violated a contract's labor provisions, the Board has jurisdiction to decide whether a termination based on alleged violations of those provisions was justified.

In another GSC Construction, Inc. decision, the ASBCA denied the contractor's motion for summary judgment as to  quantum because the contractor's motion lacked proof.

In Avant Assessment, LLC, the ASBCA held the contractor was entitled to an EAJA recovery after obtaining a summary judgment converting a termination for cause to one for convenience in an appeal that was factually distinct from two other, still-pending, appeals that were consolidated with it for purposes of judicial economy.

In Panjshir Kandahur Construction Co., the ASBCA dismissed an appeal for lack of jurisdiction because the contractor had previously filed only a routine invoice rather than a claim with the Contracting Officer.
July 26 In Nova Group/Tutor-Saliba, a Joint Venture, the Court of Federal Claims (i) denied the contractor's unopposed motion to transfer its case to the ASBCA for consolidation with another appeal involving the same contract because the case would be time-barred there and involves wholly different facts, but (ii) granted the contractor's alternative motion to transfer the ASBCA appeal to the court.

Effective August 25, USAID is amending its acquisition regulation (AIDAR) to maintain consistency with federal and other agency regulations and incorporate current and new USAID clauses.

NASA proposes to amend its FAR Supplement (NFS) to add a monthly reporting requirement for contractors having custody of $10 million or more in NASA-owned Property, Plant and Equipment (PP&E).
July 23 Effective August 24, the SBA is amending its regulations: (i) to establish a government-wide mentor-protégé program for all small business concerns, consistent with the SBA’s mentor-protégé program for participants in the SBA’s 8(a) Business Development (BD) program; (ii) to make minor changes to the mentor-protégé provisions for the 8(a) BD 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.

Veterans Evaluation Services, Inc., et al. won their GAO protests on three grounds: (i) the agency's "Good" Past Performance rating of the awardee was unreasonable because it was based on the prior contract performance of a mentor firm that the awardee did not plan to utilize for the current contract work in the geographical area to which this aspect of the evaluation pertained; (ii) the agency's price evaluation methodology did not provide reasonably accurate information concerning the relative total price of the competing proposals; and (iii) the agency engaged in misleading discussions by failing to inform some offerors that, after initially finding their prices reasonable, the agency had changed its mind and concluded they were unreasonably high.
July 21 In NAICS Appeal of Dentrust Optimized Care Solutions, the SBA's OHA held that the Contracting Officer had properly assigned NAICS Code 621210 (Offices of Dentists) to a solicitation for commercial dental services consisting of dental examinations and dental treatments.
July 20 In Size Appeals of GTA Containers, Inc. and MPC Containment Systems, LLC, the SBA's OHA found that the Area Office had failed to consider several issues and, therefore, remanded the case to the Area Office to determine whether: (i) the challenged firm was the manufacturer of the contract items or qualified under the nonmanufacturer rule; (ii) the challenged firm was affiliated with another firm as alleged by the protesters; and (iii) there was an identity of interest among the largest stockholders of a firm such that their interests should be aggregated.

In Size Appeals of Insight Environmental Pacific, LLC, the OHA held that the Area Office correctly concluded from an Operating Agreement that an LLC was a joint venture and that, therefore, its members were affiliated for purposes of the procurement at issue.

Unless adverse comments are received by September 19, effective October 18, the U. S. Agency for International Development (USAID) is revising its acquisition regulation (AIDAR) section 752.247–70 (Preference for Privately Owned U.S.-Flag Commercial Vessels) to conform to the current requirements of the Cargo Preference Act of 1954, which mandates that at least 50 percent of the gross tonnage of all government-generated cargo be transported on privately owned, U.S.-Flag commercial vessels, to the extent such vessels are available at fair and reasonable rates.
July 19 In Laguna Construction Co., the Court of Appeals for the Federal Circuit affirmed the ASBCA's prior decision, holding that the contractor's Chief Operating Officer's guilty plea for accepting kickbacks from subcontractors demonstrated a prior material breach of the "Allowable Cost and Payment" clause of the contract at issue and was a valid defense to the contractor's claim for costs disapproved by a DCAA audit.

In Dynamic Systems Technology, Inc., an unsuccessful post-award protest, the Court of Federal Claims found there were rational bases for the agency's evaluations of the awardee's technical proposal and the relevance of its past performance submissions, as well as for the agency's price/technical best-value analysis.
July 18 The Court of Appeals for the Federal Circuit's latest decision in Western States Federal Contracting, LLC (albeit nonprecedential) leaves me perplexed. At the time (April 29, 2013) the contractor originally appealed to the CBCA from a deemed denial of its claim, it was not in good standing in its state of incorporation (Delaware), which is a requirement for maintaining an appeal. Although the Board gave it numerous chances to correct the problem, it did not do so until sometime after the CBCA published a decision dismissing the case on February 11, 2014. The contractor appealed to the CAFC from the CBCA's dismissal, and then (at the Government's request) the court vacated the Board's original dismissal so that the Board could consider two specific issues (one having to do with whether the company should have been permitted to proceed as an unincorporated association). As instructed, the  CBCA reviewed those two issues and, once again, dismissed the contractor's case. The contractor again appealed the dismissal to the CAFC. Now, the CAFC reverses again because the company is finally in good standing with the state and the CBCA's second decision was not entitled to rely on the company's lack of good standing at the time of the original dismissal because the court previously had vacated the Board's original decision, rendering it a nullity. I have a bunch of problems with this situation--here's just one. Assume that the company originally appealed to the CBCA as soon as possible after there was a deemed denial. That would mean that, when the Board issued its original decision, the company still was not in good standing with the state  (and, therefore, was without the capacity to maintain its action at the Board) more than 10 months after the deemed denial. Maybe, the answer is that, since the company was not in good standing at the time it filed its original claim with the Contracting Officer, no deemed denial was possible, but isn't it at least worth discussing the policy issues involved in ignoring the contractor's delays altogether in situations like this?  
July 17 Effective August 15, and for solicitations issued on or after that date, the Department of Energy is adopting a final rule amending its acquisition regulation (DEAR) to make technical and administrative changes, including changes: (i) to conform to the FAR, (ii) to remove out-of-date coverage, (iii) to update references, and (iv) to correct minor errors and omissions.
July 14 Federal Acquisition Circular (FAC) 2005-89 has been published and includes the following four items, plus technical amendments:

FAR Case 2014-003: Effective November 1, a final rule amends the FAR to implement regulatory changes made by the SBA in the regulations it originally published on July 16, 2013, which provide for a governmentwide policy on small business subcontracting.

FAR Case 2014-023: Effective August 15, a final rule amends the FAR to update outdated OMB Circular citation references.

FAR Case 2016-008: Effective August 15, a final rule amends the FAR to increase the blanket waiver threshold for small dollar-value purchases from Federal Prison Industries by federal agencies from $3,000 to $3,500.

FAR Case 2015-025: Effective August 15, a final rule amends five Standard Forms prescribed by the FAR for contracts involving bonds and other financial protections in order to clarify liability limitations and expand the options for organization types.

In Securiforce International America, LLC, the Court of Federal Claims denied the contractor's motions for sanctions as a result of the Government's alleged failures to provide adequate discovery responses.
July 13 In Coast Professional, Inc., the Court of Appeals for the Federal Circuit reversed the prior CoFC decision and held that, under the specific provisions of the contracts at issue, award term extensions of FSS task orders were new task orders and, therefore, the propriety of the decision to issue such extensions was a matter within the CoFC's bid protest jurisdiction.
July 12 The Treasury Department proposes to amend its acquisition regulation (DTAR) to provide for the incremental funding of Fixed-Price, Time-and-Material or Labor-Hour contracts during a continuing resolution. Comments are due by September 12.
July 11 In ABB Enterprise Software , Inc., the ASBCA rejected the Government's argument to interpret the phrase "related to" narrowly and held it had CDA jurisdiction over a dispute involving a license agreement accompanying software that the Government was acquiring under a contract covered by the CDA because the license agreement was "related to," i.e. connected with, the performance of the covered contract.

In Government Services Corp., the ASBCA held it had jurisdiction over a contractor's claim for "$100,000" because it was stated as a sum certain even though, in response to the Contracting Officer's query regarding  how that amount was calculated, the contractor had stated it was a "good faith estimate . . . derived by a simple mathematical formula of estimating the future expense, both administrative and legal, that is expected to be required to counter the apparent bad faith libelous actions of" the Government's representatives.    Hmm.

In Black Tiger Co., because the appellant alleged the existence of a contract and provided some evidence of it, the Board refused to dismiss an appeal based on the Government's contention that it could find no evidence of the contract in its records.

In Per Aarsleff A/S, the Court of Appeals for the Federal Circuit reversed the CoFC's prior decision (i.e., that the awardee had failed to meet what the lower court considered to be a clear eligibility requirement in the solicitation) and held, instead, that the eligibility requirement in the solicitation was ambiguous but was clarified by the Government's answer to a bidder's question, which was formally published as an amendment to the solicitation, and, under that clarification, the winning bidder was, in fact, eligible.
July 7 In Bass Transportation Services, LLC, the CBCA dismissed an appeal of the denial of a contractor's certified claim for lack of jurisdiction because, although that appeal was timely filed, the contractor had failed to timely appeal the prior default termination, the overturning of which would be a prerequisite to considering the current appeal.
July 5 In Size Appeal of REO Solutions, LLC, the SBA's OHA found that the Area Office had incorrectly dismissed a size protest relating to a firm's small business status pursuant to a mentor-protégé joint-venture agreement because, even though the agreement already had been determined to be appropriate in a prior protest involving the same parties and the same procurement (but a different geographic area of award) under a multiple-award solicitation that involved separate contact awards for each geographical area, a separate analysis should have been undertaken for this award because certain requirements for an acceptable agreement could vary from one area to the next.
July 3 In Ultimate Concrete, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that: (i) although the awardee's original bid was unbalanced, it was not materially so because the base item was priced low and the option item (which not be awarded at all) high, and there was no risk of an advance payment or of default; and (ii) although it was improper to permit the awardee to modify its bid, the protester was not prejudiced because the awardee still would have won the contract with its original bid.
July 2 The 2016 Procurement Review is up (through June 30), and I will be updating it as the year goes on.
Phoenix Management, Inc., is an interesting, albeit unsuccessful, preaward protest of the terms of a solicitation, in which the Court of Federal Claims held that: (i) for well-defined fixed-price work, the Government is not required to disclose the incumbent's historical ODC data to all competitors; and (ii) in a low-price, technically acceptable evaluation, the agency may treat offerors with no past performance as "acceptable" because the regulations requiring such offers to be treated neither favorably nor unfavorably basically create a quandary in situations where past performance is not qualitatively evaluated as part of a trade-off analysis.

In SecTek, Inc., the CBCA held that the contractor was not entitled to a Service Contract Act price adjustment for higher wages it paid its employees beginning with the first day of the first option year pursuant to a new collective bargaining agreement because those wages were not incorporated in a wage determination applicable to the contract as of that date. This is one of those decisions where the regulations appear crystal clear, but the result feels wrong.

In Bluegrass Contracting Corp., the CBCA held that a notice of appeal with a Postal Service postmark within the 90-day limit was timely filed.

In John Lewinger, as Receiver for  Corban ABQ V, LLC, the CBCA allowed an appeal to proceed to develop the factual record as to whether the Government had waived the contractor's clear violations of the Anti-Assignment statutes.
June 30 DFARS Case 2015-D021: A final rule amends the DFARS  to consolidate all requirements for DoD contractors performing private security functions outside the United States and make changes regarding applicability and high-level quality assurance standards.

DFARS Case 2016-D007: A final rule amends the DFARS to delete the supplemental coverage for the definition "simplified acquisition threshold" because FAR Case 2015–020 added to the FAR the simplified acquisition threshold for contracts to be awarded and performed, or purchases to be made, outside the United States in support of a humanitarian or peacekeeping operation.
DFARS Case 2015-D026: A final rule amends the DFARS to add Ukraine as a new designated country under the World Trade Organization Government Procurement Agreement.

DFARS Case 2016-D009: A final rule amends the DFARS to implement another section of the 2016 NDAA entitled "Treatment of Interagency and State and Local Purchases," which provides that contracts executed by DoD as a result of the transfer of contracts from the GSA (or for which DoD serves as an item manager for products on behalf of the GSA) shall not be subject to certain domestic source restrictions, to the extent that such contracts are for the purchase of products by other federal agencies or state or local governments.

DFARS Case 2016-D014: An interim rule amends the DFARS to implement a section of the National Defense Authorization Act (NDAA) for Fiscal Year 2016 that changes the criteria for the pilot program on acquisition of military purpose nondevelopmental items. Comments are due by August 29.

DFARS Case 2016-D020: A proposed rule would amend the DFARS to revise the estimated administrative cost (from $500 to $1000) to award and administer a contract, for the purpose of evaluating bids for multiple awards. Comments are due by August 29.

DFARS Case 2015-D026: A proposed rule would amend DFARS provisions regarding the use of customary contact financing (other than loan guarantees and advance payments) on certain fixed-price contracts. Comments are due by August 29.
June 29 In BAE Systems San Francisco Ship Repair, which involved determining the appropriate equitable adjustment for extra work in a vessel overhaul contract, the ASBCA held, inter alia, that: (i) the contractor's advances to its subcontractor to perform extra work and its agreement to pursue additional costs on behalf of that sub were sufficient to satisfy the requirements of the Severin doctrine; (ii) although the contractor's initial claim submission was based on estimates, its accounting system was adequate to substantiate the actual costs incurred for the extra work; (iii) the Contracting Officer was on notice from the contractor's submissions that the contractor would require overtime to perform the changed work and, having failed to object, was bound by that interpretation; and (iv) the Contracting Officer's "benefit of the bargain" approach for determining the amount of the equitable adjustment was inappropriate in this situation where the Board had accepted the contractor's calculation of its actual costs. Moreover, if I am reading this lengthy and complicated decision correctly, the Board ended up awarding the contractor slightly more than it had requested.

In Kellogg Brown & Root Services, Inc., which involved the analysis of the date when a claim accrues, the ASBCA denied the contractor's motion for summary judgment alleging that the Government's nonmonetary and monetary claims were filed more than six years after the Government should have known of its claims.

In Maersk Line, Limited, the ASBCA denied: (i) the Government's motion to dismiss for lack of jurisdiction (because the claim presented by the contractor to the Board was based on the same operative facts as the claim originally submitted to the Contracting Officer); and (ii) cross motions for summary judgment (because of disputed material facts and the advisability of hearing extrinsic evidence as to an issue of contract interpretation).

In Access Personnel Services, Inc., the ASBCA denied the Government's motion to dismiss an appeal as untimely because the contractor showed detrimental reliance on the absence of notice of its appeal rights in the Contracting Officer's decision.
June 27 The GAO sustained a protest by Tempus Nova, Inc. because the Government issued a delivery order for an item not included in the underlying FSS blanket purchase agreement.
June 24 In Worldwide Language Resources, LLC, an unsuccessful preaward protest, the Court of Federal Claims rejected the protester's contentions that the solicitation was structured so that only the incumbent would have (i) sufficient information to bid intelligently and (ii) sufficient relevant past performance to merit a positive evaluation.  

Effective July 25, the EPA is revising its acquisition regulation (EPAAR) provisions regarding construction, architect-engineer, and key personnel requirements to remove the evaluation of contracting performance and to incorporate flexibility to identify the required number of days of key personnel commitment during the early stages of contractor performance under the "Key Personnel" clause.

Also effective July 25, a final rule amends the NASA Far Supplement NFS to remove references to NASA’s Grant and Cooperative Agreement Handbook, NASA Procedural Requirements (NPR) 5800.1, NASA Grant and Cooperative Agreement Handbook, and Office of Management and Budget (OMB) Circulars A–21 for educational institutions and A–122 for nonprofit organizations.  
June 23 GSAR Case 2013-G504: A final rule amends GSA's Acquisition Regulations (GSAR) to include clauses that require vendors to report transactional data from orders placed against certain FSS contracts, Governmentwide Acquisition Contracts (GWACs), and Governmentwide IDIQ contracts.
June 22 In BMC Contracting, LLC, the CBCA held that clear government disclaimers in a timber sales solicitation and contract placed all the risks as to the quality and quantity of available timber on the contractor and precluded the contractor's claims for negligent estimates or alleged government misrepresentations.
June 21 In Precision Standard, Inc., which involves the hoary principle of the contractor's duty to proceed pending resolution of a dispute, the ASBCA held that a default termination was justified by the contractor's refusal to perform in accordance with the Contracting Officer's directions and to properly respond to cure notices after the Government insisted on the use of what the contractor believed was the incorrect welding standard, especially where (prior to the termination) the contractor had not alleged that the Government's action was a breach. Subsequently, the contractor's motion for reconsideration was denied.

In Rhodes Research, the ASBCA held that, in light of the scant documentation submitted by the contractor to support its convenience termination settlement proposal, the Contracting Officer had fairly determined the percentage of completion of the contract and the amount due the contractor pursuant to FAR  52.212-4. Subsequently, the contractor's motion for reconsideration was denied.
June 18 FAR Case 2016-004: A proposed rule would amend the FAR to implement the National Defense Authorization Act for Fiscal Year 2016 by raising the simplified acquisition threshold for special emergency procurement authority from $300,000 to $750,000 (within the United States) and from $1 million to $1.5 million (outside the United States). Comments are due by August 19.

FAR Case 2015-015: A proposed rule would amend the FAR to implement a section of the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015. which provides that the contract file shall contain certain documentation if the Government makes a purchase of supplies and services offered under the Federal Strategic Sourcing Initiative (FSSI), but the FSSI is not used. Comments are due by August 19.
June 16 DFARS Case 2012-D022: DoD proposes to revise the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2012 that revises the sections of title 10 of the United States Code that address technical data rights and validation of proprietary data restrictions, specifically: (i) to add special provisions for handling technical data that are necessary for segregation and reintegration activities; (ii) to codify and revise the policies and procedures regarding deferred ordering of technical data necessary to support DoD major systems or subsystems, weapon systems, or noncommercial items or processes; (iii) to expand the period in which DoD can challenge an asserted restriction on technical data from 3 years to 6 years; (iv) to rescind changes to 10 U.S.C. 2320 from the NDAA for FY 2011; and (v) to  codify government-purpose rights as the default rights for technical data related to technology developed with mixed funding. Comments are due by September 14.
June 15 Effective August 15, the DOL's OFCCP is issuing a final rule to detail obligations that covered Federal Government contractors and subcontractors and federally assisted construction contractors and subcontractors must meet 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 and employees are treated without regard to their sex.

In Military Aircraft Parts, the ASBCA held that the contractor was entitled to the full contract price for a purchase order as damages for the Government's improper rejection of the First Article, which would have been acceptable but for damage to the item caused by the Government's inspection.

In another Military Aircraft Parts decision, the ASBCA held it lacked jurisdiction over a contractor's breach claims that implicitly were challenges to default terminations the contractor had not timely appealed. Subsequently, the contractor's motion for reconsideration was denied

In Mach I AREP Carlyle Center, LLC, the ASBCA reaffirmed the principle that "by law, no lease can compel the [Government] to exercise option years that were not yet funded at the time the lease was entered" and held that  the Government was not liable for the failure to exercise the remaining option years on a building lease that was terminated early in one option year due to a lack of funding brought about by a government shutdown over a budget dispute and, subsequently, was not reinstated.
June 14 In Size Appeal of Newport Materials, LLC, the SBA's OHA affirmed the Area Office's decision that, in calculating the total receipts of a firm and the companies affiliated with it through common ownership, the receipts of one of those affiliates did not satisfy any of the three requirements for exclusion as inter-affiliate transfers.

In Size Appeal of Social Solutions International, Inc., a dispute involving the determination of the primary and vital requirements of a particular contract and whether certain types of employees should be counted towards work on those requirements, the OHA affirmed the Area Office's decision that the small business prime would be performing the primary and vital requirements of the contract and, therefore, was not in violation of the ostensible subcontractor rule.

In Size Appeal of ARNC/Bridge Consulting, LLC, the OHA held it was harmless error for the Area Office to rescind a previous size determination after it had been appealed to OHA rather than requesting a remand from the OHA because, had it requested the remand, the OHA would have granted the request even if it had been opposed.   

In Size Appeal of CoSTAR Services, Inc., the OHA remanded the case to the Area Office because it had not adequately investigated the allegation that affiliation existed by virtue of common investments in entities that were not companies.

In NAICS Appeal of Noble Supply & Logistics, the OHA held that the Contracting Officer had improperly assigned a Retail Trade sector NAICS code to a solicitation for supplies, instead of the required manufacturing or supply NAICS code.
June 11 Patricio Enterprises, Inc., won another GAO protest (see also June 4 entry below) because material misrepresentations in the awardee's proposal concerning the availability of personnel tainted the evaluation.

In Fluor Energy Technology Services, LLC-Costs, the GAO recommended reimbursement of protest costs because the agency waited until after an ADR outcome prediction conference to undertake corrective action.

Similarly, in Chase Supply, Inc., the GAO recommended reimbursement of protest costs for a clearly meritorious protest because the agency waited until well after the agency report was filed (and almost to the expiration of the 100-day statutory period) before undertaking corrective action. Furthermore, in another Chase Supply, Inc.  decision involving the same master solicitation, the GAO recommended reimbursement of costs because, even though agency undertook corrective action before filing the agency report, that action was still tardy considering that the agency already knew of defects in the master solicitation prior to the protest filing, and prior protests were further evidence of agency delays in responding to the current protest.

In Debcon, Inc., the GAO found the protester was entitled to recover its costs only for the one severable protest ground that was clearly meritorious.

In Sheridan Transportation Systems, Inc., a decision labeled as nonprecedential, the Court of Appeals for the Federal Circuit held it lacked jurisdiction over an appeal from a CBCA decision concerning a dispute arising under the Transportation Act (31 U.S.C. 3726) rather than the CDA.
June 9 In Marine Metal, Inc., the CBCA held that, because both the solicitation and the contract for the sale of a ship contained clear "as is/where is" condition clauses, the contractor was precluded from recovering on a claim of an alleged misdescription of the ship's weight.

In Tokyo Co., the ASBCA dismissed an appeal for failure to prosecute after the contractor failed to explain its contention that its lack of communication with the Board was due to its inability to access its yahoo.com email account for five months.
June 7 DFARS Case 2015-D012: A proposed rule would amend the DFARS to provide policy and procedures for soliciting offers, evaluating proposals, and awarding contracts for the operation of a military dining facility pursuant to the Randolph-Sheppard Act; the National Defense Authorization Act (NDAA) for FY 2007; the Joint Report and Policy Statement issued pursuant to the NDAA for FY 2006; and the Committee for Purchase from People Who Are Blind or Severely Disabled statute. Comments are due by August 8.

The Commerce Department's Bureau of Industry and Security (BIS) has published a final rule amending the EAR  to implement the recommendations presented at the February 2015 Australia Group (AG) intersessional implementation meeting, and later adopted pursuant to the AG silent approval procedure, and the understandings reached at the June 2015 AG Plenary meeting. Specifically, this rule:  (i) amends the CCL entry that controls chemical precursors by adding the chemical diethylamine (C.A.S. 109– 89–7), which was not previously identified on the AG’s "Chemical Weapons Precursors" common control list; (ii) amends the CCL entry that controls certain human and zoonotic pathogens and toxins by adding two viruses that were not previously identified on the AG "List of Human and Animal Pathogens and Toxins for Export Control" and by updating the nomenclature of certain viruses that were already identified on this AG common control list; (iii) amends the CCL entry that controls equipment capable of handling biological materials to reflect the AG intersessional updates to the controls on biocontainment chambers, isolators, and biological safety cabinets and the controls on aerosol inhalation equipment described on the AG "Control List of Dual-Use Biological Equipment and Related Technology and Software": (iv) amends the CCL entry that controls equipment capable of handling biological materials by updating the controls on freeze-drying (lyophilization) equipment; (v) amends the EAR to reflect the addition of Angola and Burma as States Parties to the Chemical Weapons Convention (CWC);  and also (vi) amends the Chemical Weapons Convention Regulations (CWCR) to reflect the addition of these two countries as States Parties.

The BIS also proposes to amend the EAR to remove the Special Iraq Reconstruction License (SIRL).   Comments are due by July 7.
June 4 For any and all word processing geeks out there, DKW Communications, Inc. won its protest because, in the GAO's view at least, the awardee had violated the proposal preparation instructions requiring single spacing by using "compressed line spacing" (which apparently is even less than single spacing) in its technical proposal, which was subject to a 10-page limit.

That one makes me wonder whether the GAO was micromanaging, but, of course, there are also decisions that leave one perplexed as to the agency's thinking, such as Patricio Enterprises Inc. in which the GAO found that the agency's evaluation of past performance was unreasonable because it actually downgraded the protester for submitting three more (relevant) past performance references than the awardee did, especially when the additional references were judged to be either exceptional or very good in quality. 

FAR Case 2015-035: A proposal would amend the FAR: (i) to delete the use of "telegram," "telegraph," and related terms in recognition that they are obsolete technologies; and (ii) to make clear that termination notices and change orders may be sent by electronic means. Comments are due by August 5.

GSAR Case 2008-G506: Effective July 6, a final rule amends GSAR Part 515 (Contracting by Negotiation) by eliminating out of date references and reorganizing the text to align with the FAR.

GSAR Case 2010-G511: Also effective July 6, a final rule amends GSAR Parts 511 (Describing Agency Needs), 538 (Federal Supply Schedule Contracting), and 552 (Solicitation Provisions and Contract Provisions): (i) to implement the Federal Supply Schedules Usage Act of 2010, the Native American Housing Assistance and Self-Determination Reauthorization Act of 2008, the John Warner National Defense Authorization Act for Fiscal Year 2007, and the Local Preparedness Acquisition Act for Fiscal Year 2008; and (ii) to clarify the application of these laws and the access privileges of certain Non-Federal Entities purchasing off of Federal Supply Schedules.

GSAR 2007-G500: Also effective July 6, a final rule rewrites GSAR Part 517 (Special Contracting Methods) to update requirements for special contracting methods by eliminating out of date references and reorganizing the text to align with the FAR.
June 3 Effective September 1, the Commerce Department's Bureau of Industry and Security (BIS) and the State Department are publishing parallel revisions to their export regulations (the EAR and the ITAR, respectively) to conform several definitions with one another. In addition,  and the BIS revisions clarify the application of controls to electronically transmitted and stored technology and software, including by way of cloud computing, and the ITAR revisions: (i) create definitions of "release" and "retransfer" in order to clarify and support the interpretation of the revised definitions; (ii) publish new sections detailing the scope of licenses and the unauthorized releases of controlled information; (iii) update the section on "exports" of technical data to U.S. persons abroad; and (iii) consolidate regulatory provisions concerning the treatment of foreign dual and third country national employees within one exemption.
June 1 In Mansoor International Development Services, the ASBCA dismissed (as untimely) appeals filed more than 12 months after the contractor's receipt of the Contracting Officer's decisions that had failed to notify the contractor of its appeal rights because the record showed the contractor had received notice of its appeal rights by other means and was aware of them and, thus, could not show prejudice from the defects in the decisions.

The ASBCA upheld a partial default termination in Lean Construction and Engineering Co. because the contractor failed to complete the construction work despite two extensions to the contract schedule and several notices from the Government detailing the problems with the work.

In Wallace Asset Management, LLC, which involved unsuccessful post-award protests, the Court of Federal Claims held that the protester lacked standing because it would not have been next in line for award should the awardee have been disqualified; and, even if the protester had standing, the agency's past performance evaluation had a rational basis, and there was no evidence in the record of an OCI involving the awardee.
May 31 In Spectrum Comm, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that the Source Selection Authority's decision (both before and after corrective action) to award the contract to a different firm from the one  recommended by the agency's evaluation team had a rational basis in the record, did not violate the solicitation's evaluation scheme, and did not convert the solicitation from a best-value to a lowest-priced-technically-acceptable procurement.

In The Desa Group, Inc., the United States District Court for the District of Columbia held that, in terminating a company from the 8(a) program, the SBA concluded, without sufficient supporting evidence in the record, that existing business relationships between the company and non-disadvantaged individuals caused such dependence that the company could not exercise independent business judgment without great economic risk pursuant to 13 C.F.R. § 124.106(g)(4). Basically, the court determined that the SBA and the OHA were cavalier in their analysis and relied more on conjecture than on hard evidence.
May 28 Effective June 30, the SBA is issuing a very extensive set of revisions to its regulations, including, but not limited to, the following areas. Under 13 C.F.R. Part 121 (the SBA's size regulations), the SBA:  (i) notes that, in a solicitation for a bundled contract, a small business contractor may enter into a Small Business Teaming Arrangement with one or more small business subcontractors and submit an offer as a small business without regard to affiliation, so long as each team member is small for the size standard assigned to the contract or subcontract; (ii) makes it clear that a joint venture of two or more business concerns may submit an offer as a small business for a federal procurement, subcontract or sale so long as each concern is small under the size standard corresponding to the NAICS code assigned to the contract. The revisions also clarify: (i) the tests for a finding of affiliation by identity of interest and for the clear fracture required to avoid such a finding; (ii) the ostensible subcontractor rule; (iii) the methods SBA uses to calculate annual receipts for purposes of revenue-based size standards, (iv) the date when SBA determines a firm's size for architect-engineering contracts and in situations involving a merger, sale, or acquisition; (v) the requirements under 13 C.F.R. § 121.406 (entitled "How does a small business concern qualify to provide manufactured products or other supply items under a small business set-aside, service-disabled veteran-owned small business, HUBZone, WOSB or EDWOSB, or 8(a) contract?"); (vi) the procedures under 13 C.F.R § 121.408 for obtaining a Certificate of Competency; and (vii) the procedures for waiver of the nonmanufacturer rule. The revisions also attempt (not wholly successfully, imho) to eliminate the infamously confusing double negative in 13 C.F.R. 121.1001 concerning which offerors are eligible to file size protests. The new regulations also include revisions to 13 C.F.R. Parts 124 (the 8(a) program requirements), 125 (Government Contacting Programs), 126 (HUBZone requirements) and 127 (Women-Owned Small Business requirements). The changes are far too numerous to summarize here, so I encourage everyone with an interest in the SBA's regulations to read the new rules in their entirety.
May 27 In a decision that seems to herald another one soon to come with far-reaching implications, the Court of Federal Claims indicated in Tabetha Jennings that boilerplate clauses in standard Postal Service daily mail transportation services contracts likely are not supported by consideration and are unenforceable because they impose on contractors an open-ended and burdensome financial obligation in order to dispute Postal Service decisions concerning the contract.

In CAE USA, Inc., the CBCA rejected all the legal theories advanced by the contractor to support its contention that its IDIQ contract required the Government to permit it to retain (for the duration of the contract) government-furnished equipment relating to an aircraft program the Government had canceled after contract award.

In Asheville Jet Charter and Management, Inc., the CBCA held over for further proceedings the question of whether the departure of the contractor's key employees constituted a "strike" excusing its default under the contract's commercial items contract terms and conditions.

In Universal Home Health and Industrial Supplies, Inc., the CBCA: (i) dismissed the contractor's original appeals from terminations for default as moot because the Government had converted them to terminations for convenience; and (ii) denied a subsequently-filed appeal that the original terminations were made in bad faith, because the Government had a reasonable basis to terminate and the contractor had not responded adequately to the Government's request for assurances. Subsequently, the Board denied the contractor's motion for reconsideration.

May 26 Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, DoD is issuing an interim final rule that, inter alia, adjusts the maximum civil monetary penalty for a false claim under 31 U.S.C. 3802(a)(1) or a false statement under 31 U.S.C. 3802(a)(2) upward to $10,781, to account for inflation. Comments are due by July 25.
May 25 FAR Case 2015-024: A proposed rule would amend the FAR to create an annual representation within the System for Award Management for vendors to indicate if and where they publicly disclose greenhouse gas emissions and greenhouse gas reduction goals or targets. Comments are due by July 25.

In Northrop Grumman Computing Systems, Inc., the Court of Appeals for the Federal Circuit affirmed the CoFC's decision that the contractor had failed to establish any damages as a result of the Government's alleged breach of a delivery order (i.e., allegedly failing to use its best efforts to secure funding for the option years) because, without notice to the Government, the contractor had assigned all its rights under the order to a third party in exchange for a payment that equaled the contractor's expected profit from the full term of the order, including options.
May 24 The SBA has issued the following statement of policy to clarify how it analyses interaffiliate transfers in determining a firm's size under revenue-based size standards: "SBA will not restrict the exclusion for interaffiliate transactions to transactions between a concern and a firm with which it could file a consolidated tax return. The exclusion for interaffiliate transactions may be applied to interaffiliate transactions between a concern and a firm with which it is affiliated under the principles in 13 C.F.R 121.103. Where SBA is conducting a size determination, SBA requires that exclusions claimed under section 121.104(a) be specifically identified by the concern whose size is at issue and be properly documented. This policy is effective immediately."

In Leviathan Corp., the ASBCA held it had jurisdiction over a contractor's appeal, which was based on a written settlement offer (made and signed by a DCMA Contracting Officer in the form of a proposed contract modification), which the contractor had accepted by signing it, despite the fact that the original contracting entity (Iraq's CPA) was not one over which the Board normally has jurisdiction.
May 23 In Transatlantic Lines LLC, the Court of Federal Claims dismissed a protest for lack of jurisdiction because the contractor had signed a bridge contract, and, therefore, any  disputes it had regarding the rates to be paid by the Government under the contract were matters involving contract administration that must be handled under the CDA.

In Dellew Corp., despite the fact that the court had never issued a written opinion on the underlying protest, it held that the protester was a "prevailing party" entitled to attorneys' fees under the EAJA because the Government had undertaken corrective action after closing arguments in an oral hearing, during which the court had commented favorably on the merits of the protest.  Subsequently, the CAFC reversed this decision.
May 20 In Kellogg Brown & Root Services, Inc., an important decision concerning the CDA's six-year limitations period for submission of a claim, the Court of Appeals for the Federal Circuit reversed the ASBCA and held that a contractor's claim sponsoring its subcontractor's termination claim  did not "accrue" until it had developed sufficiently to be presented in a sum certain and, therefore, was not barred by the limitations period, even though the claim was not submitted to the Government until long after the termination, following a lengthy set of disputes between the sub and the prime and a false start in which the contractor had forwarded one iteration of the claim to the Government without certifying it.

Effective June 20, a final rule amends the EPA's Acquisition Regulation (the "EPAAR") to update the "Level of Effort—Cost Reimbursement Contract" clause.

FAR Case 2015-005: A proposed rule would amend the FAR to update the instructions for System for Award Management (SAM) registration requirements and to correct an inconsistency with offeror representation and certification requirements. Comments are due by July 19.
May 19 In Res Rei Development, Inc., an unsuccessful preaward protest against the protester's exclusion from the competitive range, the Court of Federal Claims held that: (i) the protester was responsible for errors it introduced in editing its original offer down in size after its initial offer was rejected by the Government's email server as too large, especially when the better course of action would have been simply to break down the original offer into several smaller emails; and (ii) the Government's evaluation of other aspects of the proposal was unobjectionable.
May 18 In Evie's Catering, Inc., the Court of Federal Claims held that an amount stated in a  task order to supply meals was, unambiguously, only an estimate rather than a guaranteed price.
May 17 The GAO sustained a protest by Deloitte Consulting, LLP because: (i) the agency improperly concluded that one of the awardee's proposed key personnel met the experience requirements of the solicitation; (ii) the contemporaneous record was insufficient for the GAO to assess the adequacy of the agency's evaluation of relevant past performance; and (iii) the agency engaged in unequal discussions with offerors regarding past performance.

In Size Appeal of Latvian Connection, LLC, the SBA's OHA dismissed a size protest filed initially with the OHA instead of the SBA.
May 16 In Public Warehousing Co., K.S.C., the ASBCA: (i) held that the Government's liability for Prompt Payment Act penalties accrues, for each invoice separately, when the Government pays the invoice without paying any required  Prompt Payment interest; and then (ii) denied the Government motion for summary judgment based on the contractor's alleged violation of the six-year limitations period for presenting its claim because the Government had not alleged when each invoice was paid, and, therefore, the claim accrual date could not be ascertained.

In Quality Trust Inc., the ASBCA upheld a default termination based upon the contractor's failure to obtain the required performance and payment bonds. Subsequently, the Board denied the contractor's motion for reconsideration.
May 14 Federal Acquisition Circular (FAC) 2005-88 has been published and includes the following four items plus technical amendments:

FAR Case 2014-026: Effective June 15, a final rule amends the FAR to implement Executive branch policy in the President’s Climate Action Plan to procure, when feasible, alternatives to high global warming potential  hydrofluorocarbons in order to allow agencies to better meet the greenhouse gas emission reduction goals and reporting requirements of the Executive Order on Planning for Sustainability in the Next Decade.

FAR Case 2015-020: Effective June 15, a final rule amends the FAR to establish a higher simplified acquisition threshold ($300,000) for overseas acquisitions in support of humanitarian or peacekeeping operations.

FAR Case 2011-020: Effective June 15, a final rule amends the FAR to add a new subpart and contract clause for the basic safeguarding of contractor information systems that process, store or transmit federal contract information, without relieving the contractor of any other specific safeguarding requirements that may be imposed by federal agencies or that may require more than the basic level of protection.

FAR Case 2015-018: Effective June 15, a final rule amends the FAR to to implement section 814 of the Carl Levin and Howard P. ‘Buck’ McKeon National Defense Authorization Act for FY 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.
May 12 FAR Case 2016-003: A proposed rule would amend the FAR to revise the estimated administrative cost to award and administer a contract, for the purpose of evaluating bids for multiple awards, from the current $500 to $1000. Comments are due by July 11.

In PricewaterhouseCoopers Public Sector, LLP, an unsuccessful protest of an agency's proposed corrective action (revising the solicitation and seeking new proposals) in response to a prior GAO decision, the Court of Federal Claims, although questioning one of the GAO's original conclusions concerning one alleged flaw in the procurement, held that: (i) the GAO was correct concerning a sufficient number of other flaws in the prior evaluation to justify the agency's decision to undertake corrective action; (ii) as part of the corrective action process, the agency was within its discretion to revise the solicitation to reflect the agency's changed needs between original proposal submission and the date of the revised solicitation, which, in turn, would require the submission of revised proposals (as opposed to simply reevaluating the original proposals); and (iii) the argument that one competitor has an OCI is premature before revised proposals have been submitted and the agency, itself, has the opportunity to examine that issue.
May 11 FAR Case 2015-017: A proposed rule would amend the FAR to provide a definition of "recruitment fees" in furtherance of the FAR policy on combating trafficking in persons, which prohibits contractors from charging employees recruitment fees, in accordance with the Executive Order entitled "Strengthening Protections Against Trafficking in Persons in Federal Contracts." Comments are due by July 11.
May 10 In DG21, LLC, the Court of Appeals for the Federal Circuit affirmed the ASBCA's prior decision denying a contractor's claim because the contractor, in agreeing to pay the prevailing rate for fuel in a fixed-price contract, had assumed the risk of rising fuel prices, and those rising prices were not a change to the contract.

Paragon Technology Group, Inc. won its GAO protest because: (i) the agency conducted misleading discussions by directing the protester to remove certain assumptions from its proposal, when those assumptions were not the agency's actual concern with the proposal; and (ii) the agency’s decision to assess the relevance of past performance using a value 200 percent larger than the value of the solicited effort was unreasonable and inconsistent with the requirements of the solicitation.

In Military Aircraft Parts, the ASBCA held that: (i) it lacked jurisdiction over the contractor's claim that a contract termination was a breach because the appeal had not been filed within 90 days of the contractor's receipt of the termination decision; (ii) because the cancellation of individual purchase orders orders issued under that contract was not a government claim, the Board did have jurisdiction over subsequent contractor claims challenging those cancellations; but (iii) those claims lacked merit because the contractor had not delivered the required first article items on time. Subsequently, the contractor's motion for reconsideration was denied.

DFARS Case 2015-D018: A final rule amends the DFARS to clarify that the permissible contract term for energy savings contracts awarded under 10 U.S.C. § 2913 is "a period not to exceed 25 years."

DFARS Case 2012-D029: This rule adopts as final, with changes, the prior interim rule amending the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2012 that provides DoD the authority to allow its litigation support contractors access to "sensitive information" subject to certain restrictions.

DFARS Case 2015-D036: A final rule amends the DFARS to increase the threshold for duty-free entry on foreign supplies that are not from qualifying countries from $200 to $300.

DFARS Case 2015-D009: A final rule amends the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2015 and a section of the Department of Defense Appropriations Act, 2015, which address various requirements for multiyear contracts.

DFARS Case 2015-D023: A final rule amends DFARS section 239.7401 to define "long-haul telecommunications" as "all general and special purpose long-distance telecommunications facilities and services (including commercial satellite services, terminal equipment and local circuitry supporting the long-haul service) to or from the post, camp, base, or station switch and/or main distribution frame (except for trunk lines to the first-serving commercial central office for local communications services)."

DFARS Case 2016-D018: A proposed rule would amend the DFARS to consolidate the multiple hotline posters into one poster that delineates multiple reportable offenses. Comments are due by July 11.

DFARS Case 2016-D008: A proposed rule would amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2016 that addresses rights in technical data relating to major weapon systems by expanding the application of the presumption that a commercial item has been developed entirely at private expense. Comments are due by July 11.
May 8 In an interesting decision, Optimum Services, Inc., the CBCA held that the GAO's conclusion in a bid protest under its CICA jurisdiction that the procuring agency had acted reasonably in terminating a contract for convenience was not res judicata with regard to the Board's ability to decide a CDA claim challenging the propriety of that termination.

Over a dissent, the CBCA held in José Gustavo Zeno that a broadly worded, general release of all the contractor's claims (which closely followed a default termination and was supported by consideration) did not preclude the contractor from challenging the termination because it did not specifically waive his right to challenge a government claim. I think I'm with the dissent on this one. It appears the release was intended to put a full stop to all issues between the parties, and it covered, inter alia, all "liabilities" and "obligations" of the Government.   

In AutoFlex, Inc., the CBCA held that the agency had fulfilled bilateral agreement for a 12-month vehicle lease at a stated monthly price and was not obligated beyond that term or price.

In MSC Industrial Direct Co., an unsuccessful post-award protest, the Court of Federal Claims held that: (i) the procuring agency had reasonably decided to take corrective action by revising a solicitation after discovering that a delivery requirement as stated in the original solicitation was in error; (ii) the agency reasonably decided to undertake further corrective action by allowing competitors to submit revised pricing because many prices had changed during the passage of time since the original price submissions; (iii) the subsequent award of BPAs to a firm was proper because the argument that that firm had manipulated pricing was speculative and the solicitation requirement that it not sell items equal to AbilityOne items was a matter to be determined during contract performance, not as part of the evaluation of its bid. 
May 5 In Size Appeal of WISS Joint Venture, the SBA's OHA affirmed the Area Office's decision that a joint venture was other than small for purposes of a particular procurement because the 8(a) mentor-protégé agreement that would have authorized an exception to the normal affiliation rules for joint ventures had expired and had not been renewed as of the date the proposal for the procurement was submitted.

In Matter of eKCG, LLC, the OHA affirmed the SBA's finding that an existing 8(a) mentor-protégé agreement did not obviate the need for a firm competing for an SDVO set-aside to comply with SDVO program-specific requirements, particularly 13 C.F.R. § 125.15(b).
May 4 In Bushra Co., the ASBCA dismissed an appeal filed more than 90 days after the contractor's receipt of a notice of termination, even though the notice merely referred the contractor to the applicable FAR provisions rather than directly stating its appeal rights, because the contractor did not allege any prejudice from the defect in the termination notice. Subsequently, the Board denied the contractor's motion for reconsideration.
May 3 The GAO sustained a protest by Crowley Logistics, Inc. because the agency failed to conduct meaningful discussions, having neglected to alert the protester to what the agency had evaluated as a significant performance risk. 
May 2 M7 Aerospace LLC won its protest because the GAO could find no evidence in the contemporaneous record that the procuring agency had complied with solicitation's evaluation scheme, which contemplated a qualitative comparison of the various approaches proposed by the offerors.
April 29 In Q Integrated Companies, LLC, a successful post-award protest, the Court of Federal Claims held that, although the Government's evaluations of the protester's and the awardee's Past Performance had a rational basis, the Government had failed to conduct meaningful discussions with the protester because the Government had failed to disclose that the protester's Past Performance proposal, including the completed questionnaires it had submitted, contained material weaknesses or deficiencies.

In Rex Systems Inc., the ASBCA discussed the proper analysis of recoverable convenience termination costs under  FAR 52.213-4(f) (the termination clause for simplified acquisitions for other than commercial items), which permits recovery of a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges that have resulted from the termination.

In Afghan Active Group (AAG), the ASBCA held that a contractor's emails to the Contracting Officer evidencing a desire to "appeal" the Contracting Officer's decision were sufficient to establish jurisdiction at the Board, even absent a direct appeal to the Board and any statement in those emails that the Board was where the contractor wanted its appeal filed because the Contracting Officer's decision had not advised the contractor of its option of filing suit at the Court of Federal Claims.
April 27 In Universal Protection Service, LP, an unsuccessful post-award protest, the Court of Federal Claims held that the firm that had purchased the original bidder/protester (which was one subsidiary of a much larger firm) during the pendency of the second round of corrective actions undertaken by agency following the original protest did not have standing to protest following the corrective action because the purchaser was not the complete successor-in-interest to the original protester since individuals and assets of the original protester's parent company, referenced and relied on in the original proposal and evaluated by the agency, were not included in the sale.
April 26 In Braseth Trucking, LLC, following a remand to the Contracting Officer, during which he further explained the basis for the award decision, the Court of Federal Claims held that the protester lacked standing because it would not have a substantial chance for award even if the errors in the procurement of which it originally had complained were corrected.

In Size Appeal of W. Harris, Government Services Contractor, Inc., the SBA's OHA held that the Area Office had correctly found affiliation through identity of interest of two individuals based on two common investments, each of which was of substantial value.

The DOE proposes to amend its Acquisition Regulation (the "DEAR"), inter alia, to clarify that FAR 22.12, Nondisplacement of Qualified Workers Under Service Contracts, and the associated DOL regulations apply to subcontracts under DOE’s management and operating contracts. Comments are due by May 26.

Effective June 27, unless the agency receives adverse comments by May 26, EPA is issuing a direct final rule to amend its Acquisition Regulation (the "EPAAR") to include a new solicitation provision and contract clause to implement the United States Government Policy for Institutional Oversight of Life Sciences Dual Use Research of Concern (iDURC Policy) by requiring both (i) domestic institutions that receive contract funding from EPA in order to conduct or sponsor life sciences research and (ii) institutions outside of the United States that receive contract funding from EPA to conduct or sponsor research with the agents or toxins listed in the iDURC Policy, to review and communicate their research responsibly in accordance with the iDURC Policy.

In Rodriguez Construction LLC, a case involving competing claims by the Government and the contractor on a contract for renovation work on a retention pond, the CBCA determined (i) the extent and quantum of a deductive change and (ii) the date of substantial completion for purposes of computing the number of days of liquidated damages the Government was entitled to assess for late completion.
April 25 In Size Appeal of Core Recoveries, LLC, the SBA's OHA held that the Area Office had correctly determined that, under the concept of economic dependence, a firm was affiliated with a company from which it derived more than 70% of its revenues via a multi-year subcontract.

In REO Solution, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that a firm whose offered price was substantially higher than the awardee's and several others' did not have standing because there was no substantial chance it would have received award even if its protest grounds had been upheld.

In GEO-Med, LLC, which involved unsuccessful preaward protests, the court held that: (i) OCI allegations involving one bidder became moot when the agency awarded the contract to a different firm; (ii) the agency was within its discretion not to seek a waiver of the  nonmanufacturer rule and set-aside the procurement for SDVOSBs;  and (iii) the solicitation did not constitute impermissible bundling and was not unduly restrictive of competition.

In Sigmatech, Inc., another protest, the court: (i) permitted the protester to take the Contracting Officer's deposition concerning the compilation of the Administrative Record and the potential inconsistencies in the documents produced because the Government had corrected the record after the protester had filed briefing materials based on the original record; and (ii) ordered the Government to reimburse the attorneys' fees incurred by the plaintiff in preparing briefs based on the original, uncorrected record.
April 22 NASA is proposing to amend the NASA FAR Supplement to clarify NASA’s award fee process by: (i) incorporating terms used in award fee contracting; (ii) revising guidance relative to final award fee evaluations; (iii) providing clarification concerning the release of source selection information included in the CPARS; and (iv) explaining the calculation of the provisional award fee payment percentage in NASA end-item award fee contracts. Comments are due by June 21.
April 20 In Wallace Asset Management, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that: (i) the protester lacked standing to challenge four of five disputed awards because it was not next in line for award; (ii) the agency's evaluation of past/present performance had a rational basis; and (iii) the agency had appropriately investigated, and cleared, OCI issues involving the awardee.
April 19 In Third Coast Fresh Distribution, L.L.C., the ASBCA upheld a termination for cause of a contract set-aside for small businesses after the SBA determined the contractor was not small because it was not compliant with the requirements of the nonmanufacturer rule.
April 15 The GAO is proposing fairly numerous and significant revisions to its bid protest regulations, including, among several other changes: (i) requiring all protests (except those containing classified material) to be filed by means of a soon-to-be-created Electronic Protest Docketing System (EPDS); (ii) requiring each protester to pay a filing fee (the amount of which is still to be determined, but currently estimated to be $350); (iii) clarifying under 4 C.F.R. 21.2(a)(1) that challenges to a solicitation where the basis for a protest becomes known when there is no solicitation closing date or when no further submissions in response to the solicitation are anticipated must be filed within 10 days of when the alleged impropriety was known or should have been known; and (iv) revising 4 C.F.R. 21.2(a)(2) to clarify that the 10-day "safe-harbor" provision in this paragraph (i.e., the provision establishing that protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required shall be filed not later than 10 days after the date on which the debriefing is held) does not apply to protests challenging alleged solicitation improprieties covered by 4 C.F.R. 21.2(a)(1). Comments on these proposed rules are due by May 16.

In M.K. Ferguson Co., a case involving a bankrupt subcontractor's claim being passed through by a bankrupt prime, the Court of Federal Claims held: (i) the prime's original certification of the subcontractor's claim ordered by the bankruptcy court was defective, but not fatally so, and was cured by the subsequent, proper CDA certification submitted by the prime after this action in the Court of Federal Claims had commenced; (ii) because the bankrupt prime was under orders from the bankruptcy court that covered its responsibilities to its subcontractor, the prime fulfilled the requirement of the Severin doctrine that it have obligations to its subcontractor permitting it to pass through the subcontractor's claim; and (iii) the case should be remanded to the DOE's Contracting Officer (who had yet to issue a decision because of the previously defective certification) because the dispute involved significant issues of DOE regulations and and contract documents, which should be addressed in the first instance by the DOE.

In Northrop Grumman Systems Corp., although (at least for the time being) the Court of Federal Claims denied the plaintiff's motion for sanctions for spoliation based on the Postal Service's tardy imposition of a litigation hold preserving documents for possible litigation after the contractor's submission of a comprehensive REA, the court did impose sanctions on the Postal Service (preclusion of the use of certain documents and reimbursement of a portion of the plaintiff's attorneys' fees) as a result of the Postal Service's unreasonable delays in the production of documents.
April 14 In System Fuels, Inc., et al., the Court of Appeals for the Federal Circuit reversed the Court of Federal Claims and held that the plaintiff-contractors were entitled to recover their costs of loading spent nuclear fuel into storage casks as one element of damages for the Government's partial breach of its spent nuclear fuel contracts.
April 12 In Size Appeal of OSG, Inc., the SBA's OHA held that the Area Office had correctly concluded that the contested firm was the "manufacturer" of the transparent armor assemblies required by the solicitation and that it was not unduly reliant on a subcontractor under the ostensible subcontractor rule.

In Global Engineering & Construction, LLC, the ASBCA held it lacked CDA jurisdiction over an appeal because: (i) the contractor's letters to the Government did not amount to a claim, especially where the amount at issue exceeded $100,000 but had not been certified; and (ii) the Government's message to the contractor did not contain sufficient indicia of finality to constitute a government claim.

In Highland Al Hujaz Co., Ltd, the ASBCA: (i) upheld a termination for default issued immediately after the contractor anticipatorily repudiated a material, non-severable requirement of a contract by "positively, definitely, unconditionally, and unequivocally refus[ing] to continue providing temporary power without additional fuel payments by the [G]overnment"; and (ii) held that the Government's justifiable withholding of progress payments was not an excuse for the contractor's refusal to perform.

In AeroVironment, Inc., the ASBCA held it lacked jurisdiction over proposed amendments to the Government's answers in an appeal because the amendments were actually new claims first raised by the Government's trial attorney that were beyond the scope of the Contracting Officer's original decision.

In Raytheon Co., the ASBCA denied the contractor's motion to strike certain testimony at the hearing that allegedly conflicted with a prior interrogatory answer by the Government because the fact that the answer was inadvertently incomplete did not make it a binding admission and did not merit the sanction requested by the contractor.
April 11 In Systems Management and Research Technologies Corp., a case involving contract interpretation and the parol evidence rule, the CBCA held that a contract was an unusual hybrid calling for (i) T&M payments of hourly rates loaded only with G&A and overhead and (ii) a separate, pre-established "fixed fee" in addition to the T&M payments.

In NAICS Appeal of Arrowhead Contracting, Inc., the SBA's OHA upheld the Contracting Officer's assignment of NAICS code 238990 (All Other Specialty Contractors) in a solicitation for Design-Build and Design-Bid-Build Repair and Alterations services at Land Ports of Entry, as opposed to the protester's suggestion of NAICS code 236220 (Commercial and Institutional Building Construction).
April 8 In Lawson Environmental Services, LLC, after a lengthy set of agency-level and GAO protests, the Court of Federal Claims held that, because the Key Personnel evaluation factor in a solicitation was a traditional responsibility issue: (i) the procuring agency had properly referred the issue to the SBA for a CoC once the agency had determined the apparent awardee, a small business, had failed that factor due to questions about the accuracy of the resume of one of its proposed key personnel; (ii) the agency had supplied the SBA with appropriate documentation concerning the issue; and (iii) the SBA had a rational basis for issuing a CoC to the protested firm.

In Matheson Postal Services, Inc., the PSBCA held that: (i) a bilateral amendment (negotiated under the "Changes" clause and revising rates as a result of service reductions) precluded the contractor's subsequent claims that the reductions constituted partial contract terminations; and (ii) a single instance in which the Postal Service had handled the issue differently on another contract was not sufficient to create a "course of dealing" on which the contractor was entitled to rely.

In Derrick V. Greene, the PSBCA upheld default terminations because the mail delivery contractor had refused to communicate with Postal Service employees concerning various performance issues and then, after he was denied access to the loading docks as a result of  those communication issues, failed to hire substitute drivers, which resulted in a failure of performance over an extended period of time.
April 7 In Starry Assocs., Inc., the Court of Federal Claims granted the protester's motion to supplement the administrative record by taking four depositions because the plaintiff had made credible allegations that the agency's decision to cancel a solicitation was tainted by bias.

In Prescient, Inc., an unsuccessful protest, the court held, inter alia, that: (i) the protester had failed to establish prejudicial disparate treatment by the evaluators concerning its proposal versus those of other offerors; and (ii) most of the deficiencies identified by the agency in the protester's proposal were "material," which justified its final rating.
April 6 In HK&S Construction Holding Corp., the ASBCA held that, in deciding whether an appeal was timely filed and absent any indication in either of the two copies of the Contracting Officer's decision sent to the contractor as to which of of them was  supposed to start the appeal clock running, the contractor was entitled to use the date of the copy that it received last.
April 5 In Size Appeal of W&T Travel Services, LLC, the SBA's OHA reversed and remanded a case because (i) the Area Office's analysis of identity of interest between family members was flawed,  and (ii) the Area Office failed to consider whether two firms were affiliated based on "a longstanding inter-relationship or contractual dependence between the same joint venture partners . . . ." 13 C.F.R. § 121.103(h).

In River Ridge Development Authority, the ASBCA found broad authority in a master lease agreement and an O&M plan for the lessee of an Army ammunition plant to offset some of its insurance costs against the annual fair market rental for the property.


The ASBCA dismissed two appeals for failure to prosecute after the contractors failed to respond to orders to propose a schedule for further proceedings at the Board: Ahjar Shat Alarab Albidhaa Co. and Suodor Al-Khair Co - SAKCO for General Trading.

In Joseph Sottolano, the ASBCA upheld the termination for cause  of the United States Military Academy's head baseball coach for, inter alia, having sexual relations with a  female staff assistant in his office during working hours. 
April 3 In NAICS Appeal of Active Deployment Systems, Inc., the SBA's OHA overturned the Contracting Officer's NAICS designation but also rejected both of the protester's suggestions in favor of NAICS code 532490 (Other Commercial and Industrial Machinery and Equipment Rental and Leasing) in a solicitation for Rotational Life Support Services.
April 2 Yesterday, the ASBCA's Executive Director advised me that the ASBCA's website is back up with a new url: http://www.asbca.mil  .   I have updated all the pages on this website to link to the correct urls for individual ASBCA decisions on the Board's new website. If you spot any remaining broken links, please let me know, and I will fix them.

In Lee's Ford Dock, Inc., the ASBCA held that: (i) the contractor had not established the elements for reformation based on either mistake or misrepresentation; and (ii) the contractor's argument that the Government had breached the agreement relied on an unreasonable interpretation of a clear provision in the agreement.

In Air Services, Inc., the ASBCA awarded a contractor its delay costs caused by the Government's "indecision and confusion" over a project requirement.

In Marshall's Electric, Inc., the ASBCA rejected all the contractor's excuses and upheld a default termination based on the contractor's failure to obtain the required bonding for the project.

In Orion Construction Corp., an unsuccessful protest, the Court of Federal Claims held that: (i) the procuring agency had not impliedly amended the solicitation to incorporate a new size standard issued between the submission of Phase One and Phase Two proposals; (ii) the agency's decision not to incorporate the new size standard was not improper; and (iii) the SBA's size determination regarding the protester's size had a rational basis.

In Americom Government Services, Inc., the CBCA discussed the requirements for the Government to be found to have ratified an otherwise unauthorized contractual commitment and held that the requirements for ratification were met in this case. Subsequently, the Government's motion for reconsideration was denied.


The Commerce Department's Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR): (i) to reflect changes to the Missile Technology Control Regime (MTCR) Annex that were agreed to by MTCR member countries at the October 2015 Plenary in Rotterdam, Netherlands, and the April 2015 Technical Experts Meeting (TEM) in Bern, Switzerland; (ii) to make conforming changes to correlate the Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR) and other EAR provisions with the current MTCR Annex; (iii) to revise six Export Control Classification Numbers (ECCNs) to implement the changes that were agreed to at the meetings and to better align the MT controls on the CCL with the MTCR Annex; (iv) to make a change to MT licensing policy to be consistent with the MTCR Annex General Minimum Software Note and the MTCR Annex General Technology Note that specify that a license for MT controlled items should also authorize certain minimum ‘‘software’’ and "technology"; and (v) to add a new paragraph to the section of the EAR that specifies which changes to a license are considered ‘‘non-material.’’ This amendment will facilitate this rule’s revised MT licensing policy, which will apply to all licenses for MT controlled items, except when excluded by a license condition.
April 1

In Remington Arms Co, LLC, a successful protest, the Court of Federal Claims held that the procuring agency's responsibility determination concerning the awardee lacked a reasonable basis because both the outcome of the awardee's pending bankruptcy case and its production capability were in serious doubt.

March 29 In what is probably the final chapter in the SUFI Network Services, Inc., dispute, the Court of Appeals for the Federal Circuit held that the Government had no right to appeal an ASBCA decision that the contractor had accepted in a case (one  of the last) governed by the Wunderlich Act, rather than the CDA.
March 28 In Moss Card Consulting, Inc., the CBCA dismissed an appeal for lack of CDA jurisdiction because the contractor had not submitted a claim to the Contracting Officer. In Richter Developments, Ltd., the CBCA dismissed another appeal for lack of CDA jurisdiction because the contractor had failed to certify a claim that exceeded $100,000.
March 26 In Constellation West, Inc. and Serv1Tech, Inc., unsuccessful post-award protests, the Court of Federal Claims held that: (i) the Government had not applied unstated evaluation criteria to its analysis of proposals; (ii) an error in evaluating one area under the wrong evaluation section had not prejudiced the protester; and (iii) the agency's refusal to evaluate one protester's price proposal that had omitted material, required information had a rational basis.

In Northwest Title Agency, Inc., the court dismissed a breach-of-contract action based on the allegedly improper disallowance of closing fees because the contract unambiguously prohibited such fees in the situation involved in this dispute.

The State Department proposes to amend its acquisition regulation (the DOSAR) to provide procedural changes relating to the suspension and debarment process. Comments are due by May 27.
March 25 DFARS Case 2015-D037: A final rule amends the DFARS to clarify when, in accordance with existing exceptions, it is appropriate to omit DFARS clause 252.225–7001  ("Buy American Act and Balance of Payments Program"), which applies to acquisitions at or below the simplified acquisition threshold and for commercial items, including commercially available off-the-shelf items.

DFARS Case 2015-D017: A final rule amends the DFARS to clarify clauses and their prescriptions for small business programs and to create basic and alternate clauses structured in a manner to facilitate use of automated contract writing systems.

DFARS Case 2015-D008: A final rule amends the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2015 that amended a section of the National Defense Authorization Act for Fiscal Year 2010, to extend and modify contract authority for advanced component development and prototype units.

DFARS Case 2016-D012: A final rule amends the DFARS to delete obsolete text requiring the use of fire-resistant rayon fiber.

DFARS Case 2014-D026: A final rule amends the DFARS to require use of the electronic contract attachments accessible via the Product Data Reporting and Evaluation Program to record and track warranty data and source of repair information for serialized items.

DFARS Case 2016-D010: A proposed rule would amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2016 that amends the allowability of costs of counterfeit electronic parts or suspect counterfeit electronic parts and the cost of rework or corrective action that may be required to remedy the use or inclusion of such parts. Comments are due by May 24

DFARS Case 2016-D004: A proposed rule would amend the DFARS to add instructions for utilizing the Wide Area WorkFlow Reparable Receiving Report.  Comments are due by May 24.

DFARS Case 2015-D040: A proposed rule would amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2012 that amended title 10 of the United States Code by prohibiting any form of cost-plus contracting for military construction projects or military family housing projects.   Comments are due by May 24.

DFARS Case 2016-D009: A proposed rule would amend the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2016 to provide that contracts executed by DoD as a result of the transfer of contracts from the GSA, or for which DoD serves as an item manager for products on behalf of the GSA, shall not be subject to certain domestic source restrictions, to the extent that such contracts are for the purchase of products by other federal agencies or state or local governments.  Comments are due by May 24.
March 24 Innovative Test Asset Solutions, LLC won on two of its protest grounds at the GAO because the agency had improperly "inverted" the evaluation scheme and used cost risks identified only in the cost realism analysis to assign technical risk in two areas of the technical evaluation of the protester's proposal despite the fact that the technical evaluators had not identified any technical weaknesses.

In Excelsior Ambulance Service, Inc., the Court of Federal Claims held that the original awardee, which had waited to attempt to intervene in a protest until a judgment had been entered in favor of the protester, was too late. (The awardee wanted to intervene only so that it could appeal the court's decision because the agency had decided not to.) There's clearly a lesson to be learned here by anyone considering whether to intervene in a protest or to let the agency carry the ball.
March 22 In Securiforce International America, LLC, the Court of Federal Claims held that, although a partial termination for convenience was improper because the Contracting Officer testified she had not exercised her own independent judgment in issuing it, the contractor had not established that the termination for convenience or any other alleged government actions or breaches excused its subsequent failures to perform or invalidated the subsequent default termination of the contract.

In ERKA Construction Co. Ltd., the ASBCA held that, even absent proof that the contractor's owners or upper management knew of the theft, the contractor was responsible for the actions of its employees who stole fuel, especially when it is likely that its project managers were aware of the situation.
March 21 In Olbeter Enterprises, Inc., the PSBCA held that the Postal Service was not entitled to recoup payments it had made to a contractor under a fixed-price contract for mail delivery services between two facilities after the Postal Service closed one of the facilities but inexplicably failed to terminate the contract.
March 18 In Nova Group/Tutor-Saliba, a Joint Venture, the Court of Federal Claims refused to dismiss a suit due to the plaintiff's alleged failure to comply with the 20-day written notice requirement regarding constructive changes in a construction contract because the contractor demonstrated that the Government had actual knowledge of the facts giving rise to the changes claims.

In Ameriserv Trust and Financial Services Co., the court held that the Government had breached the express warranties in a subordination agreement.

In Size Appeal of CodeLynx, LLC, the SBA's OHA held that the Area Office had correctly dismissed (as untimely) a protest involving a task order solicitation under a long-term contract  because the Contracting Officer had not requested offerors to re-certify their size in response to the task order solicitation.

In NAICS Appeal of Active Deployment Systems, Inc., the OHA overturned the Contracting Officer's NAICS designation but also rejected both of the protester's suggestions in favor of NAICS code 532490 (Other Commercial and Industrial Machinery and Equipment Rental and Leasing) in a solicitation for Rotational Life Support Services.


Effective April 14, HUD is amending its acquisition regulation (HUDAR): (i) to correct the designation of Source Selection Authorities, (ii) to make a limited delegation of Head of Contracting Activity authorities; (iii) to incorporate the HUDAR Matrix; (iv) to addition new clauses relating to labor categories, prices per hour, and post-award conferences; (v) to revised clauses related to payments and invoicing as part of transitioning to the Department of Treasury’s Bureau of Fiscal Services’ Invoice Platform Processing System (IPP) in order to take into account both the situations where invoicing and payment will not be made through the IPP and where invoices are required to be submitted electronically through the IPP; (vi) to clarify that, where funding has been made available for a contract and the limit of the funding has been reached or the necessary funding modification is not in place, the contractor must stop performing work and may not start again until notified through a contract funding modification that funds are available to continue work; and (vii) to modify the proposed provision on post-award conferences to limit the clause to cases where a conference is required and provides an alternate clause for attendance at such conferences via telephone or video conference.
March 17 The Department of Commerce's Bureau of Industry and Security has adopted a final rule that:  (i) allows vessels departing the United States on temporary sojourn to Cuba with cargo for other destinations to travel to Cuba under a license exception rather than having to obtain a license for the cargo bound for those other destinations to transit Cuba; (ii) authorizes exports of certain items to persons authorized by the Department of the Treasury to establish and maintain a physical or business presence in Cuba; and (iii) contemplates a case-by-case review for exports and reexports of items that would enable or facilitate export of items produced by the private sector in Cuba, subject to certain limitations.  
March 16 In KBJ, Inc., the ASBCA held that, although a release in a modification barred the contractor's subsequent claims for compensation and time due to delays occasioned by encountering asbestos, the contractor was entitled to 109 days of Eichleay overhead because the Government's suspension of work resulted in a delay to the critical path, which, in turn, resulted in the contractor's standby costs in a situation where any contractor delays were not on the critical path.
March 15 In Algese 2 s.c.a.r.l., a successful  post-award protest, the Court of Federal Claims held that an offeror had willfully failed to disclose in its offer an extensive history of public corruption and fraud by its parent and affiliates in government procurements and had falsely certified concerning those subjects, and, therefore, had made material misrepresentations rendering the firm ineligible for award.

In DynCorp International, LLC, an unsuccessful preaward protest, the court held that an incumbent contractor that had consistently failed to mark its cost data submissions as proprietary and that had not objected to the Government's announced plan to post life cycle cost management reports as part of the follow-on solicitation and then waited until five months after the solicitation was published to protest had waived its objections to such publication.
March 14 In Size Appeal of Financial & Realty Services, LLC, the SBA's OHA held that the Area Office had correctly based its decision on revenues as reported in federal income tax returns submitted by the protested firm and had correctly determined size as of the date the protested firm submitted its self-certification with its priced offer.

In Size Appeal of Modus Operandi, Inc., the OHA held that the Area Office had correctly determined that a firm that was unusually reliant on the incumbent (a large business) as a subcontractor on a new contract ran afoul of the ostensible subcontractor rule, and, in doing so, the OHA reaffirmed the precedential value of the reasoning in the DoverStaffing case. 

In an interesting decision involving timeliness, the Court of Federal Claims dismissed a protest by Phoenix Management, Inc. because the protester had failed to raise its protest against the terms of a solicitation before the original due date for proposals, and the time to protest was not extended by the Government's subsequent corrective action, which, although it permitted the submission of revised proposals, was related only to the evaluation of proposals and did not amend the terms of the solicitation.
March 11 In Jane Mobley Assocs, Inc., a decision based on principles of contract interpretation, the CBCA held that a bilateral task order modification clearly established that the modification work was to be based on labor-hour billing as opposed to the firm, fixed-price measure under the basic task order, especially in light of both: (i) the contractor's conduct in changing its accounting methods to comport with the labor-hour billing system after the mod was issued, and (ii) the contractor's failure to inquire about a patent ambiguity between the terms of the modification and an interpretative statement made by the Contracting Officer.
March 10 In Precision Asset Management Corp., an unsuccessful post-award protest, the Court of Federal Claims dismissed a protest for lack of standing because the protester would not have had a substantial chance for award even if the errors it alleged in the procurement had been corrected.

In Comter Systems, Inc., the CBCA denied an application for an EAJA recovery because, after the agency had paid the contractor without the need for a decision by the Board, the contractor had voluntarily withdrawn its appeal.
March 8 In Innovative Test Asset Solutions LLC, an unsuccessful post-award protest of the Government's alleged failure to consider the protester's proposal fairly and honestly during a reevaluation required as a result of the protester's prior, successful GAO protest, the Court of Federal Claims held that, although "the record provides enough evidence to raise skepticism about the [G]overnment’s treatment of [the protester's proposal] . . . [and] raises the possibility that the Air Force did not truly reevaluate the proposals, but instead made revisions only insofar as to provide further justification for its award to" the original awardee, the record as a whole shows the agency did conduct a satisfactory reevaluation.
March 6 In Stop  & Mail Etc., Inc., the PSBCA held that, although the Postal Service had legitimate concerns with the contractor's performance, it had failed to establish how a termination upon only one day's notice was necessary to protect the Postal Service's interests, which was the standard required by the termination clause in the contract.

FAC 2005-87 has been issued and includes the following item (plus  a technical amendment):

FAR Case 2013-020: Effective April 6, a final rule amends the FAR to implement section 852 of the National Defense Authorization Act for FY 2013 to include in the Federal Awardee Performance and Integrity Information System (to the extent practicable) identification of any immediate owner or subsidiary, and all predecessors of an offeror that held a federal contract or grant within the last three years, with the objective of providing a more comprehensive understanding of the performance and integrity of the corporation before awarding a federal contract.
March 5 The GAO sustained a protest by Sterling Medical Corp. because the agency's evaluators (i) improperly credited the awardee for offering features unrelated to the evaluation criteria and (ii) ignored instances where it failed to provide required information.
March 3 In CHE Consulting, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that consolidating requirements for hardware and software maintenance services into a solicitation for a single contract did not constitute "bundling" because the resulting contract was not "likely [to] be unsuitable for award to a small business," especially where three small businesses submitted offers in response to the solicitation and award was made to a small business. The court also dismissed other allegations because the protester lacked standing to raise them since it was ineligible to compete for award under the solicitation's requirements.
March 2 In SupplyCore, Inc., the ASBCA held that the Government had not breached a duty of good faith and fair dealing toward the contractor by allegedly delaying its notice to the contractor that an option would not be exercised because the contract did not require any earlier notice from the Government.

In Ralph Muhammad, the CBCA directed the Government to file the Complaint in an appeal from a default termination that did not provide the contractor with sufficient information as to the reason for the termination.

In Elite Quality Services, LLC, the CBCA dismissed an appeal for failure to prosecute after the contractor ignored repeated orders to respond to the Government's dispositive motion. 
March 1 In NAICS Appeal of Fortis Networks, Inc., the SBA's OHA  upheld the Contracting Officer's assignment of NAICS code 238990 (All Other Specialty Contractors) over the protester's proposal of NAICS code 236220 (Commercial and Institutional Building Construction) in a contract to provide "specialty trade construction services with minimal design requirements for new minor construction, facility repair, rehabilitation, and alterations for a broad range of renovation and construction work."

Effective March 31, a final rule adopts the prior proposed rule without change and revises 15 C.F.R. Part 701 to require reporting of offsets agreements in connection with sales of items controlled on the United States Munitions List (USML) and items controlled in "600 series" Export Control Classification Numbers (ECCNs) on the CCL except for certain submersible and semisubmersible cargo transport vessels and related items that are not on the control lists of any of the multilateral export control regimes of which the United States is a member.
February 27 SRA International, Inc. won its GAO protest because the agency conducted discussions only with the eventual awardee, after which only that firm was permitted to revise its proposal.

The GAO also sustained a protest by Arctic Slope Mission Services, LLC because the agency: (i) gave undue emphasis to one of the evaluation subfactors; (ii) treated offerors unequally by reading some offerors’ proposals expansively and giving them the benefit of the doubt, while applying a much stricter standard when evaluating other proposals; and (iii) failed to evaluate the relevance of past performance adequately.
February 26 In AvKARE, Inc., a "hybrid" contract dispute/protest, the Court of Federal Claims: (i) dismissed the contractor's challenges to the agency's responses to its requests for modification under its existing contract for lack of CDA jurisdiction because the contractor had not submitted claims to the Contracting Officer; and (ii) denied a protest against the agency's refusal to renew the contract because, after the agency reasonably concluded the protester was not a manufacturer, the protester repeatedly rebuffed the agency's requests to provide the additional information required from dealers. Subsequently, the court denied the protester's motion to stay the application of the decision pending the protester's appeal to the CAFC.

In Spur Design, LLC, the GAO held that the VA improperly interpreted the Rule of Two mandate of the Veterans Benefits, Health Care, and Information Technology Act of 2006 to require it to set-aside multiple-award ID/IQ solicitations for VOSBs or SDVOSBs only when there was a reasonable expectation that two qualified firms would compete for each of the contemplated number of awards (in this case 14). In overturning the agency's decision not to set this procurement aside, the GAO did not specify exactly what the agency was supposed to do to correct the situation.

DFARS Case 2015-D011: A final rule amends the DFARS to conform with the uniform procurement identification procedures implemented in the FAR.

The DOL's Wage and Hour Division proposes regulations to implement Executive Order 13706 (Establishing Paid Sick Leave for Federal Contractors), which requires certain parties that contract with the Federal Government to provide their employees with up to 7 days of paid sick leave annually, including paid leave allowing for family care.
February 25 In G2G, LLC, the CBCA held that: (i) an 8(a) contractor was not entitled to monetary damages for the Government's decision not to exercise its option to extend the term of a contract (even if the Government had failed to comply with certain procedural requirements of the 8(a) program); and (ii) the Board lacks CDA jurisdiction to compel specific performance of a contract.
February 24 In Shavers-Whittle Construction, LLC, the ASBCA held it lacked jurisdiction over a direct appeal by a subcontractor, especially where the letter that the subcontractor contended was its claim did not include a sum certain and was not certified and where the subcontractor requested a form of relief (to have the prime contract voided) beyond the Board's jurisdiction.

In Aetna Government Health Plans, the ASBCA refused to dismiss a timely appeal from a deemed denial because the Contracting Officer had failed to issue a decision within 60 days of the submission of a certified claim and had failed to specify a non-contingent date by which a decision could be expected.

In Brent Packer and Myrna Palasi, the CBCA held: (i) it lacked jurisdiction over appeals from terminations of BPAs absent any allegation of mutuality of obligation because BPAs are not contracts; (ii) the Board had jurisdiction over appeals  from terminations of individual call orders issued under the BPAs because those call orders were contracts; (iii) the termination of a commercial items contract for alleged failure to comply with contract terms requires a cure notice and an opportunity to cure; and (iv) terminations based on alleged conflicts of interest made without a prior cure notice were invalid.
February 23 In DekaTron Corp., the CBCA denied the Government's motion to dismiss an appeal for lack of CDA jurisdiction because, contrary to Government's allegations, the contractor's original claim was for a sum certain, the amount requested had not changed on appeal, and the contractor's allegation that its claim was based on a contract with the Government was all that was required to survive a motion to dismiss (arguments concerning the Government's contention that there was no contract would not be considered until a hearing on the merits).

In Size Appeal of OxyHeal Medical Systems, Inc., the SBA's OHA held that the Area Office had properly drawn an  adverse inference against the protested firm after the employee from whom the SBA had requested relevant information failed to respond. The OHA also sanctioned the intervenor's counsel (by striking all the intervenor's pleadings from the record and prohibiting its counsel from appearing before the OHA for one year) after he violated the protective order by distributing unredacted copies of pleadings (which included proprietary information concerning the protested firm) to the intervenor.

In Size Appeal of North Star Magnus Pacific Joint Venture, the OHA held that the Area Office had correctly considered members of a joint venture as affiliates because the term of the previous year's 8(a) mentor-protégé  agreement had expired, and the agreement had not yet been renewed.

In Size Appeal of Hamilton Alliance, Inc., the OHA held that the Area Office had correctly determined that the ostensible subcontractor rule applied because the prime contractor would only be responsible for management while the proposed subcontractor would provide all the primary and vital requirements of a refuse collection contract.
February 22 In Tucci and Sons, Inc., the CBCA addressed the proper way to calculate extra costs under the "Differing Site Conditions" clause and held that the fact that the contractor's costs of performance were less than its bid estimate was irrelevant in determining its excess costs attributable to a differing site condition.

Usually, if a protester at the Court of Federal Claims loses its motion for a preliminary injunction, it goes away. In Lockheed Martin Corp., however, it appears the protester may press on even after the court held that (on the basis of the limited record reviewed by the court in denying the motion for a preliminary injunction) the Government's discussions with the protester "likely" were meaningful and not misleading, and the evaluators probably did not treat offerors unequally. The court left open  the possibility it might reach different conclusions in reviewing the full record when it considers whether a permanent injunction is warranted.

In Johnson Controls Government Systems, LLC, the court held that the procuring agency had properly rejected a proposal as late because, although the protester had uploaded it to the proper FedConnect Responses web portal in a timely manner, the protester had failed to follow the instructions on the fedconnect.net website for completing the delivery of the proposal to the Government so that it was not actually received until five days after the deadline.

In MacAulay-Brown, Inc., the court held that the procuring agency's proposed corrective action (cancellation of a task order) was not supported in the record because it was based on alleged OCI issues that the agency had previously determined were not a problem and that the agency had not further investigated since that original determination.
February 21 In Military Aircraft Parts, the ASBCA held that a termination for convenience belatedly  issued  after the contractor already had submitted a breach claim based on a prior (erroneously issued) cancellation, did not deprive the Board of jurisdiction over an appeal involving the alleged breach.
February 19 The State Department proposes to amend the ITAR by: (i) revising Category XII (fire control, laser, imaging, and guidance and control equipment) of the U.S. Munitions List (USML) to describe more precisely the articles warranting control on the USML; and (ii) amending USML Categories VIII, XIII, and XV to reflect that items now described in those categories will be in the revised Category XII. Concurrently, the Commerce Department's Bureau of Industry and Security proposes to revise the CCL to reflect how items no longer warranting control under USML Category XII will be controlled under the EAR. Comments on either set of proposals are due by April 4.

In Caddell Construction Co., the Court of Federal Claims held that the administrative record was inadequate for it to rule on cross motions for judgment in a post-award protest and, therefore, remanded the case to the agency to provide its previously unarticulated reasons for finding the eventual awardee prequalified in the first phase of a staged procurement.
February 18 In RELI Group, Inc., a successful GAO protest, the GAO determined that a latent ambiguity in a solicitation's instructions concerning the submission of references for purposes of the evaluation of relevant experience, which was not discovered until proposals were evaluated, required the agency to issue a clarification and then permit offerors the opportunity to submit revised proposals.

In Federal Acquisition Services Team, LLC, a successful preaward protest, the Court of Federal Claims held that the procuring agency had improperly rejected a proposal as late even though the proposal met the solicitation's size limit when transmitted, had been timely sent to the email address specified in the solicitation, and had been received by the government server associated with that email address, because the Government's system had apparently added data to the original file, which took it over the size limit, in retransmitting the file to a second server within the Government's system. The important holding of the case is that the "government control" exception (FAR 52.215-1(c)(3)(ii)(A)(2)) to the "late is late" rule applies to electronic submissions.
February 17 In JDL Castle Corp., the CBCA denied the contractor's claims because the contractor had not provided evidence of damages caused by the Government's alleged delays, and because it was implicitly seeking compensation for lost (i.e., delayed commencement of) rental payments, which are not compensable costs of performance.

In PJB Jackson-American, LLC, the CBCA held that loss of expectancy damages (i.e., the gross rent of the lease had it been performed minus necessary expenses and then mitigated by what the contractor would recover through a replacement lessee) rather than damages based on the diminution in the future sale value of the leased premises was the proper measure of damages resulting from the Government's cancellation (repudiation) of a building lease.

FAR Case 2015-016: A proposed rule would amend FAR Part 31 to reflect the requirements of Section 857 of the Carl Levin and Howard P. ‘Buck’ McKeon National Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113–291), which amended 10 U.S.C. 2324(e)(1) to disallow costs incurred by a contractor in connection with a Congressional investigation or inquiry into an issue that is the subject matter of a proceeding resulting in a disposition as described in 10 U.S.C. 2324(k)(2).    Comments are due by April 18.
February 14 As of 9 a.m. Eastern this morning, the ASBCA's website is still down (for all non-DoD computers). I don't know about you, but I'm getting irritated.
February 13 DFARS Case 2016-D002: A proposed rule would revise DFARS 231.205–18 ("Independent Research and Development and Bid and Proposal Costs") to require that proposed new IR&D efforts be communicated to appropriate DoD personnel prior to the initiation of these investments and that results from these investments be shared with appropriate DoD personnel. Comments are due by April 18.
February 12 The GAO sustained a protest by ASM Research because the procuring agency had failed to reasonably consider a potential conflict of interest that would be created by the awardee evaluating under one task order the performance of items that would have been developed, implemented, and deployed by the awardee under another task order.

In NAICS Appeal of DCS Corp., the SBA's OHA upheld the Contracting Officer's selection of the exception for Space Vehicles and Guided Missiles, their Propulsion Units, their Propulsion Units Parts, and their Auxiliary Equipment and Parts (the SVGM exception) under NAICS code 541712 (Research and Development in the Physical, Engineering, and Life Sciences (except Biotechnology)) in a procurement for  SEEK EAGLE Modeling, Analysis, and Tools Support 2 (SEMATS 2).

In P.J. Dick Inc., the CBCA denied the Government's motion for partial summary judgment that two specifications were not defective (the contractor had alleged that they were) because, although the two specification requirements at issue were clear and unambiguous, material questions remained as to why the contractor had not inquired concerning a patent ambiguity before bidding and whether it was possible to comply with both specifications.

In Magwood Services, Inc., the CBCA: (i) denied a delay claim under the "Suspension of Work" clause because the Government's actions were not the "sole proximate cause" of the delay; and (ii) upheld the Contracting Officer's withholding of funds pursuant to "Inspection of Construction" clause for retesting and rework of work originally provided by the contractor.
February 11 In a very strange "victory" for the protester in Caddell Construction Co., the Court of Federal Claims issued a limited injunction against an award on the basis of misleading discussions because the awardee (i) had reduced its offered price after the Government had mistakenly informed it that its originally proposed price was higher than the IGE (when it was actually lower) and then (ii) won the award because its price was the lowest. The injunction will allow only the awardee the opportunity to revise its price after having been given the correct information by the Government. Of course, the awardee now knows what the IGE is and that its current bid is low (and it can guess from the redactions a great deal about the other offers), so what are the chances it will use the opportunity of additional discussions to price itself out of its victory? Pretty slim, I'd wager.  (The protester was one of the awardee's competitors, so I am sure it is not optimistic it will win the contract on the basis of the "remedy" fashioned by the court.)  
February 10 Intelsat General Corp. won its GAO protest because: (i) the agency engaged in misleading discussions by failing to inform the protester of a change in the agency's interpretation of the solicitation's requirements after the agency conducted discussions; (ii) the agency’s evaluation of the awardee’s proposal  was neither reasonable nor consistent with the terms of the solicitation regarding the requirements for (a) satellite coverage and capacity and (b) required documentation; and (iii) the agency’s price realism analysis was flawed because the awardee’s proposal did not meet the solicitation’s technical requirements for documentation and complete regional satellite coverage.

In Size Appeal of Government Contracting Resources, Inc., the SBA's OHA held that the Area Office had correctly determined that two firms were affiliated under the minority shareholder rule at 13 C.F.R. § 121.103(c)(2) where the protested firm was one of approximately 20 equal owners of the alleged affiliate.

In Size Appeal of International Filter Mfg. Corp., the OHA held that: (i) the Area Office had properly based its size determination on sworn statements in the protested firm's Form 355 rather than protester's general, unsupported allegations; and (ii) the OHA would not consider additional companies alleged to be affiliates when the protester had not previously identified those firms to the Area Office.

In Size Appeal of ProSouth Construction Services, LLC, the OHA held that: (i) the Area Office had correctly dismissed the original protest as insufficiently specific; and (ii) the appeal suffered from same type of infirmity.

In DynCorp International, LLC, the Court of Federal Claims permitted the plaintiff to supplement the administrative record in a preaward protest with an expert's report detailing the alleged prejudice resulting from the Government's disclosure of the plaintiff's proprietary data to its competitors.
February 9 The GAO sustained a protest by Cascadian American Enterprises because (i) the agency downgraded the protester's proposal in the Key Personnel area without giving it the same opportunity as the awardee had  to address weaknesses in the proposal through discussions; and (ii) the agency rated the small business protester's proposal as unacceptable in the Experience area, which is a responsibility-type factor, without referring the matter to the SBA for a CoC determination.
February 6 DFARS Case 2016-D017: DoD seeks information that will assist in the development of a revision to the DFARS to ensure that substantial future IR&D expenses are evaluated in a uniform way during competitive source selections. Comments are due by April 8.
February 5 In JR Services, LLC, the CBCA found the Government's one-page general denial in response to a 383-paragraph Complaint in an appeal from a default termination to be inadequate and ordered the Government to file responses to the detailed factual allegations in the Complaint.

In Patrick M. Murray, the PSBCA dismissed an appeal because the underlying claim did not state a sum certain, and, in one of its filings, the contractor wrote: "[r]egarding a total amount claimed, I would not know how to figure out how much damages I may be entitled to . . . ."

In VEER Right Management Group, Inc., the PSBCA held that a contractor's unreasonable delay in submitting its subcontractor's invoice to the Government breached the contract and left the contractor liable for payment.
February 4

In Andy Phillips, the ASBCA denied various breach claims because: (i) there was a lack of proof; (ii) the contract made the contractor responsible for the costs of the alleged issue; (iii) an isolated event did not rise to the level of a breach; (iv) an allegation of damages phrased as "[e]stimate loss of sales at 30%" did not meet the CDA requirement to state the claim as a sum certain; and (v) allegations that the Government failed to appoint a COR and invalidly extended the contract were not CDA claims because they did not include a demand for money or any other relief.

In The Life Eye Co., the ASBCA denied the claim primarily because the contractor submitted inadequate, inconsistent documentation, including some with forged signatures, to support it.

February 3 In Jacqueline R. Sims d/b/a JRS Staffing Services, an unsuccessful protest, the Court of Federal Claims held that an agency's nonresponsibility determination and the SBA's subsequent refusal to issue a CoC were rationally based, inter alia, on the protester's failure to accept other contracts for which it had been the successful offeror and the failure of an affiliated company (which was operated by the same individual from the same home office as the protester) to perform another contract.

The GAO issued a trifecta of decisions sustaining protests.

In ASRC Communications, Ltd., the GAO found no basis in the record to support the agency's decision that the awardee's revised proposal had cured a material deficiency in its original proposal, which would have precluded an award to it.

The GAO sustained a protest by Castro & Co., LLC because: (i) the evaluations of the protester's quotation under the Technical and Past Performance factors was  not supported in the record; and (ii) the source selection decision lacked a rational basis where the Contracting Officer selected the awardee’s quotation on the basis of its higher numerical score, without documenting any consideration of the basis for the score, the merits of competing quotations, or whether any advantages of the awardee’s quotation outweighed its higher price.

In Red River Waste Solutions, LP, the GAO held that, in a solicitation issued pursuant to FAR Part 12, the agency’s market research failed to reasonably support the agency’s determination that the solicitation’s pricing terms were consistent with customary commercial practice.
February 1 In AllWorld Language Consultants, Inc., a successful protest, the GAO held that a labor category proposed by the awardee in response to a solicitation for a task order award under an FSS contract did not meet the requirements of the solicitation.
January 28 In Nexagen Networks, Inc., a case involving both contract claims and bid protest allegations, the Court of Federal Claims held that: (i) it lacked jurisdiction over a CDA claim because the plaintiff had not submitted a certified claim to the Contracting Officer until after it had commenced its action in court; (ii) under FASA, the court lacked jurisdiction over the plaintiff's complaint against agency's corrective action in cancelling the plaintiff's task order award; and (iii) the plaintiff's challenge to a termination for default was moot because the agency already had converted it to a termination for convenience.

In BAE Systems San Francisco Ship Repair, the ASBCA held, inter alia, that: (i) neither the Government's estimate nor what similar work had cost other contractors would adequately measure what the contractor should recover for its costs of performing extra work unilaterally directed by the Government; (ii) the contractor's accounting system was adequate to capture its costs for the extra work; (iii) the contractor was obligated to suspend work on the original contract items only after it had received a written, unilateral order from the Contracting Officer directing it to perform the changed work; (iv) the contractor's hourly rate for the changed work was not limited by a contract clause establishing the rate to be utilized in "negotiating" changes because there were no such negotiations; (v) the contract did not prohibit the contractor from recovering overtime for performing the changed work; and (vi) a DCAA audit report, while accepted as evidence, was not dispositive on the issue of quantum--the responsibility for making that determination remained with the Board.

In Edinburgh International, a case involving contract interpretation, the ASBCA held that a fixed-price task order, which did not cover billeting services, did not shift the risk to (or impose an obligation on) the Government to pay for unexpected costs of billeting security personnel.

In Relyant, LLC, the ASBCA held that the interpretation that the contract allowed the parties to agree on lower prices for individual delivery orders than those stated in the price schedules of the overarching contract was the only reasonable reading of the contract documents as a whole and was consistent with the parties' actions  before the dispute arose.

In Vistas Construction of Illinois, Inc., a case too complicated to summarize adequately in one sentence and involving a post-Katrina construction contract to enlarge a levee, the ASBCA held, inter alia, that: (i) the contractor was not entitled to the retroactive use of a value-added base for calculating G&A when the contractor's normal approach for all other situations was a total cost input; (ii) the contractor failed to present sufficient, relevant, non-contradictory evidence to support its calculation of the profit it alleged it was owed for changed work; (iii) the Government was not obligated to pay PPA interest for alleged delays in payment on disputed amounts in excess of the original contract price; (iv) several other claims by the contractor were not adequately supported with evidence, e.g., some of its claims for its costs of responding to a DCAA audit report.
January 27 The GSA has issued a final rule amending its acquisition regulation's coverage on Construction and Architect-Engineer Contracts, including provisions and clauses for solicitations and resultant contracts, to remove unnecessary regulations.
January 26 Effective February 26, the SBA is modifying 36 employee-based small business size standards for industries and subindustries (i.e., "exceptions" in SBA’s table of size standards) that are not part of NAICS Sector 31–33 (Manufacturing), Sector 42 (Wholesale Trade), or Sector 44–45 (Retail Trade).

Also effective February 26, the SBA is (i) increasing small business size standards for 209 industries in NAICS Sector 31–33 (Manufacturing); (ii) modifying the size standard for NAICS 324110 (Petroleum Refiners) by increasing the refining capacity component of the size standard to 200,000 barrels per calendar day for businesses that are primarily engaged in petroleum refining and by eliminating the requirement that 90 percent of the output to be delivered be refined by the successful bidder from either crude oil or bona fide feedstocks; and (iii) updating Footnote 5 to NAICS 326211 to reflect the current Census Product Classification Codes 3262111 and 3262113.
January 25 While noting that the following revisions "primarily affect eligibility for SBA’s financial assistance programs, and have no impact on Federal procurement programs," the SBA:  (i) is increasing small business size standards based on a concern’s number of employees for 46 industries in NAICS Sector 42 (Wholesale Trade) and one industry in NAICS Sector 44–45 (Retail Trade), effective February 26;   and (ii) is retaining the size standards for the remaining industries in those sectors and the 500-employee size standard for the procurement of supplies under the nonmanufacturer rule.

The SBA also is adopting as final (and without changes) the prior interim final rule that adjusted monetary small business size standards (i.e., receipts, assets, net worth, and net income) for inflation that has occurred since the last inflation adjustment in 2008.
January 23 In Shafi Nasimi  Construction and Logistics Co., the ASBCA held that, absent any allegation from the contractor of  prejudice or detrimental reliance, the Contracting Officer's default termination letter, which notified the contractor of its right to appeal but not the time limits for such appeals, was valid and started the 90-day appeal clock running. The Board then dismissed the appeal as untimely because the Government's communications with the contractor during the appeal period could not reasonably be considered as a reconsideration of the Contracting Officer's decision. I am a little uncomfortable with this position--isn't the contractor's failure to appeal within 90 days, itself, evidence of detrimental reliance on the Contracting Officer's failure to notify it that there was any time limit for an appeal??

In Strobe Data, Inc., the ASBCA dismissed an appeal for lack of jurisdiction because a claim for a "minimum" of, and "likely more" than, a stated amount was not for a sum certain.
January 22 The GAO sustained a protest by Export 220Volt, Inc. because the awardee failed to comply with the solicitation’s stated evaluation criterion that required offerors to provide product literature to substantiate the acceptability of their proposed products.

In Dellew Corp., the Court of Federal Claims dismissed a protest as moot after the Government voluntarily undertook to accomplish corrective action that specifically addressed the grounds for the original protest.

In R.A. Glancy & Sons, Inc., the CBCA held that the contractor could recover for some extra work directed by government employees who lacked the authority to give such directions because the Contracting Officer knew or should have known what was happening, but simply stood by and let it continue.

FAR Case 2015-012: A proposed rule would amend the FAR to implement a section of the Consolidated and Further Continuing Appropriations Act, 2015, that prohibits the use of funds, appropriated or otherwise made available, for a contract with an entity that requires employees or subcontractors to sign an internal confidentiality agreement that restricts such employees or subcontractors from lawfully reporting waste, fraud, or abuse to a designated Government representative authorized to receive such information. Comments are due by March 22.
January 20 FAR Case 2014-004: A proposed rule would amend the FAR to implement a section of the Small Business Jobs Act of 2010 that requires contractors to notify the Contracting Officer in writing if the contractor pays a reduced price to a small business subcontractor, or if the contractor’s payment to a small business contractor is more than 90 days past due. Comments are due by March 21.

In Size Appeal of Tenax Aerospace, LLC, the SBA's OHA: (i) upheld the Area Office's finding of affiliation through identity of interest where firms had a significant number of common investments; (ii) upheld a finding of affiliation where multiple minority owners had approximately equal ownership interests in a firm; (iii) overruled the OHA's prior holding in Size Appeal of Mark Dunning Industries, Inc., SBA No. SIZ-5488 (2013),  that a finding of affiliation under 13 C.F.R. § 121.103(c)(2) may be rebutted by the existence of a quorum requirement; and (iv) held that, in calculating combined receipts, the Area Office was not required to exclude inter-affiliate transfers to which the challenged firm was not a party.

In NAICS Appeal of The Tolliver Group, Inc., which involved a procurement for programmatic support services, the OHA overturned the Contracting Officer's selection of NAICS code 541330 (Engineering Services) under the Military and Aerospace Equipment and Military Weapons (MAE&MW) exception, in favor of NAICS code 541611 (Administrative Management and General Management Consulting Services), which covers procurements for administrative and management services and contracts for advice and consulting services.
January 17 In Reliable Contracting Group, LLC, the CBCA denied a contractor's claim for certain extra costs. The Federal Circuit reversed and remanded, instructing the Board to consider an additional issue. While the Board was preparing its decision on remand, the parties engaged in settlement discussions and arrived at a "handshake" settlement that would have resulted in the contractor receiving some, but not all, of its originally claimed amount. Before the parties signed the final settlement agreement or notified the Board of it, however, the Board issued its decision on remand, again denying the contractor's claim (basically saying the record was inadequate for it to consider the additional issue identified by the court). The contractor then moved the Board to vacate its decision so that the parties could implement their settlement agreement. During a conference call concerning that motion, the Government stated that it would implement the settlement if the Board vacated its decision, but the Board has now issued a decision refusing to do so. The Board goes into some lengthy (and, to me, self-serving) reasoning to justify its latest decision and to compliment itself on the reasoning of its own prior decisions, and you do not have to read too much between the lines to see that the Board did not agree with the court's remand in the first place and wants the Board's reasoning for the original and remand decisions to stand (rather than being wiped off the books as they would be if it were to vacate its decision). Color me unimpressed. The Board concedes that its latest decision will likely result in another appeal to the Federal Circuit. If, for some reason, the parties cannot implement the settlement now without vacating the Board's decision, what is to prevent them from simply settling just as soon as the contractor files a new appeal with the Federal Circuit? And, of course, that solution will leave the Board's decisions intact for us to admire and marvel at, which seems to be the Board's principal aim. Win-win. ;)

In Pacific  Coast Community Services, Inc., the CBCA dismissed an appeal for lack of CDA jurisdiction because the underlying claim failed to state a sum certain. Subsequently, the Board denied the contractor's motion for reconsideration.
January 16 In Jay Hymas d/b/a Dosmen Farms, the Court of Appeals for the Federal Circuit reversed the Court of Federal Claims' decision and held that the Department of the Interior's Fish & Wildlife Service's cooperative farming agreements with farmers to grow crops on public lands are cooperative agreements rather than procurement contracts and, thus, are not subject to the CoFC's Tucker Act protest jurisdiction.
January 15 In Deloitte Consulting, LLP, et al., the GAO sustained protests by three firms against an award because: (i) the record did not show why the agency had credited the awardee with its parent company's experience under the Corporate Experience factor;  (ii) the awardee had taken exception to the solicitation's data rights requirements; (iii) the agency's evaluators had made unsupported assumptions concerning the awardee's proposed labor mix; and (iv) the agency had evaluated quotations from various competitors unequally where the record did not show the basis for distinguishing among them.
January 14 In Kansas City Power & Light Co., the Court of Federal Claims denied the Government's motion to dismiss for lack of jurisdiction because the counts in the contractor's Complaint were based upon the same operative facts and theory of the underlying certified claim to the Contracting Officer, i.e., that a contractual provision entitled the contractor to indemnification from the the Government for the contractor's costs associated with a wrongful death action against the contractor.

In U.S. Security Assocs., the court held that (i) a protester lacked standing because its bid was contingent and, therefore, nonresponsive to the solicitation's requirement for a firm, fixed-price bid; and (ii) the protester had not established that the court has jurisdiction over protests challenging decisions by the Administrative Office of the United States.
January 10 In Guardian Angels Medical Service Dogs, Inc., the Court of Appeals for the Federal Circuit (i) reversed the Court of Federal Claims' prior decision that an appeal from a default termination was untimely and (ii) held that the Contracting Officer's request for additional information from the contractor after the contractor had requested reconsideration of the Contracting Officer's prior decision terminating a contract for default meant the original decision was not final and did not become so (and, therefore did not start the appeal clock running) until the Contracting Officer subsequently informed the contractor she would not reconsider her decision after all.
January 8 In Amidon, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that, contrary to the protester's allegations, the awardee's technical proposal addressed the solicitation's requirements, and there was a rational basis for the best-value decision to award to the higher-rated, higher-priced proposal.

In ITility, LLC, the court dismissed an action styled as preaward protest because it challenged: (i) an agency's performance evaluation (a matter of contract administration requiring a prior CDA claim); and (ii) the assessment's possible use in upcoming competitive evaluations  (a matter that was not yet ripe for resolution).

In Mission Support Alliance, LLC, the CBCA denied the contractor's motion to strike the Government's Answer as nonresponsive because (i) only notice pleading is required, (ii) discovery is used to flesh out the parties' positions, and (iii) the Contracting Officer's original decision disallowing certain contractor costs contained a detailed explanation of the Government's position.

In JTD Logistics, LLC, the PSBCA upheld a default termination (because the contractor failed to start work within the time to which it had agreed before the dispute arose), but denied the Postal Service's claim for excess reprocurement costs because the Postal Service had presented no evidence of any efforts to minimize those costs.

In Glen Burnie Hauling, Inc. and Trojan Horse LTD., the PSBCA dismissed appeals for failure to prosecute after the companies failed to communicate with the Board or respond to its Show Cause Order.

January 6 In Jane Mobley Assocs., the CBCA held that various defenses asserted by a contractor in its complaint in response to the Government's claim to recover an alleged overpayment were not CDA claims and, therefore, were not required to be submitted to the  Contracting Officer before being asserted at the Board.
January 5 In Tribute Contracting, LLC, the GAO's Contract Appeals Board upheld a default termination because the contractor had delivered tote bags with the label printed only on one side, instead of two sides as required by the contract, and then had declined an opportunity to remedy the defect.
January 1, 2016 Happy New Year!

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