|
December 29 |
In
Size Appeal of Global Pacific Design Builders, LLC,
the SBA's OHA held that the Area Office had correctly
dismissed a protest as non-specific because it only alleged
facts concerning the protested firm's size after
the date on which it was required to self-certify.
In
Global K9 Protection Group, LLC, which involved
consolidated post-award protests by two firms competing on a
USPS procurement (and litigation that has lasted years), the
Court of Federal Claims held that: (i) it would allow
supplementation of the administrative record with written
declarations on the issue of whether the challenged firm
made material misrepresentations in its bid because those
documents were necessary for effective judicial review of
the protest allegations; (ii) the awardee intentionally made
materially false statements about its past performance that
the agency relied on in making its award decision; (iii) the
Contracting Officer's post hoc conclusion that
knowing of the misrepresentations would not have changed the
outcome of the evaluation was arbitrary and capricious for
failing to consider important aspects of the issue; and (iv)
an injunction disqualifying the awardee from further
performance would issue. The court concluded that the second
protester who already had been disqualified from the
competition due to an OCI had no standing to participate in
this protest, even though it had appealed its
disqualification to the CAFC and was awaiting a decision.
The court also denied the protest allegation that the agency
had not conducted meaningful discussions because the USPS'
vague regulations about discussions do not create the same
obligations as the FAR does. |
|
December 28 |
Great Lakes Dredge and Dock Co., LLC won its GAO protest
because bids exceeding available funding justified canceling
an IFB, but not its conversion to a negotiated procurement,
where the agency did not defend its decision to convert
based on an argument that the original bids were
unreasonable.
In
VSBC Protest of M Wilkinson Constr. Co., the SBA's
OHA held that the fact that the veteran owner of a VOSB (who
had the requisite control over the challenged firm) lived in
a different state was not disqualifying, especially where
the firm did business in multiple states, and the fact that
a minority owner provided building space rent free to the
firm was not grounds for disqualification either. |
|
December 27 |
In
Size Appeal of Forward Slope, Inc., the SBA's
OHA held that the Area Office had incorrectly
concluded that a firm which represented itself as small in
connection with an underlying MAC contract had to re-certify
for purposes of a task order solicitation that did not
require recertification when the firm had been acquired by
another firm (and, therefore, was no longer small) when it
submitted its proposal for the task order award.
In the Matter of WOOD Consulting Svcs., Inc., the
OHA held that the woman owner of a WOSB firm who worked
there from 7:30 am to 3:30 pm every weekday, and then worked
at another firm from 3:30 to 5:30 pm and from 7:30 to 10:30
pm plus weekends had control of the WOSB, and her other job
did not interfere, especially where the WOSB's business was
computer programming, which does not require that work be
conducted from 9 to 5. Moreover, the fact that she had the
power to remove anyone, including her husband, from their
position on the board showed that any alleged control he had
was illusory.
In
VSBC Appeal of
Divinely Elegant Vines LLC, the OHA dismissed an
appeal because it did not establish any error in the
original decision denying SDVOSB status. Specifically, the
unanimity provision in the firm's Operating Agreement meant
the SDV lacked the required control of the firm.
In
VSBC Protest of Blue Collar Ops, Inc., the OHA
dismissed a protest as moot after the challenged firm was
removed from consideration for award. |
|
December 26 |
GSAR Case 2022-G517: A proposed rule would amend the
GSAR to add a new provision and clause to identify
single-use plastic free packaging availability for products
under the FSS with the goal of reducing single-use plastic
packaging. Comments are due by February 26, 2024.
DFARS Case 2020-D029: Effective January 22, 2024, a
final rule amends the DFARS to consolidate existing contract
clauses for the management and reporting of Government
property into a single contract clause and to replace
references to legacy software applications used for
reporting Government property within the DoD enterprise-wide
eBusiness platform and convert existing form-based processes
into electronic processes within that platform.
DFARS Case 2023-D010: A proposed rule would amend the
DFARS to to implement section 803 of the James M. Inhofe
NDAA for FY 2023, which modifies 10 U.S.C. 3455 to provide
additional guidance regarding data requirements to support a
determination of commerciality and price reasonableness for
certain procurements associated with major weapon systems.
Comments are due by January 22, 2024.
Federal
Acquisition Circular (FAC)
2024-02 has been published and includes the following
item:
FAR Case 2022-003: Effective January 22, 2024, a final
rule amends the FAR to implement E.O. 14063 ("Use of Project
Labor Agreements for Federal Construction Projects"), which
mandates that federal government agencies require the use of
project labor agreements (PLAs) for large-scale federal
construction projects, where the total estimated cost to the
Government is $35 million or more, unless an exception
applies. Agencies still have the discretion to require PLAs
for federal construction projects that do not meet the $35
million threshold. The E.O. also directs the OMB to issue
implementation guidance to agencies on exceptions and
reporting.
In
NAICS Appeal of Brown Point Facility Management Solutions,
LLC, the SBA's OHA held that in a solicitation to
perform custodial services and to provide associated
management, supervision, labor, transportation, materials,
equipment, and supplies at a FEMA facility, the contractor's
choice of NAICS 561720 ("Janitorial Services") was
preferable to the Contracting Officer's choice of NAICS
561210 ("Facilities Support Services").
In NAICS
Appeal of Laredo Technical Svcs., Inc., which
involved a solicitation for medical coding services at a
hospital, the OHA chose NAICS code 561499 ("All Other
Business Support Services") over both the Contracting
Officer's choice of NAICS 541511 ("Custom Coding Services")
and the contractor's choice of NAICS 561410 ("Document
Preparation Services"). |
|
December 22 |
Chugach Logistics and Facility Services JV, LLC won its
GAO protest because: (i) nothing in the agency record
explained why the protester's management approach was
identified as having some level of risk, which limited its
overall technical rating to Good; and (ii) the past
performance rating was flawed because it was based on
evaluating one reference contract as relevant instead of
very relevant, and the agency did not refute the protester's
argument on this issue but, instead, advanced a post hoc
justification for the rating that was inconsistent with the
solicitation's evaluation scheme.
In
Washington Business Dynamics, LLC, the GAO spent most of
its decision discussing standing in the context of the SBA's
rules for determining when firms are required to re-certify
as to their status (here, for a BPA under an FSS contract).
After concluding that the protester had standing, the GAO
held that: (i) there was no basis for the agency's favorable
evaluation of the awardee's quotation where it failed to
address one of of the technical evaluation factors; and (ii)
the agency failed to conduct the required qualitative
evaluation of quotations. |
|
December 21 |
In
Syneren Technologies Corp., et al., which
involved unsuccessful protests of the agency's new awards
based on reevaluations of proposals following
the court's prior protest decision in Allicent, the
Court of Federal Claims held that: (i) the agency was not
required to seek remand from the court before undertaking
voluntary corrective action, especially where the plaintiffs
did not allege any prejudice from the remand and would have
the same complaints whether or not the corrective action
were the result of a remand; (ii) the corrective action was
not procedurally defective and is not objectionable merely
because it reached the same conclusions as the original
evaluation; (iii) three of the plaintiffs cannot establish
prejudice because flaws in their proposals (which court
already determined were rationally evaluated) made them
unawardable; (iv) the agency followed the court's prior
decision in conducting a rational reevaluation, and,
therefore, there was no breach of the implied duty of good
faith and fair dealing; and (v) challenges by individual
protesters to various parts of their individual
reevaluations fail because there were rational bases for the
agency's evaluations in each case. |
|
December 20 |
In
Fluor Federal Services, Inc., an unsuccessful post-award
protest, the Court of Federal Claims held that: (i) protests
that the agency should have utilized a multiple- versus a
single-award BPA and that the agency should have considered
past performance outside the period stated in the
solicitation were both untimely under Blue & Gold Fleet;
and (ii) the remainder of the protester's challenges to the
evaluation were "mere disagreements with the Agency’s
discretionary determinations."
In
Point Blank Enterprises, Inc., an unsuccessful
post-award protest seeking a preliminary injunction, the
court held that although the plaintiff was likely to succeed
on the merits of its OCI allegations due to the absence of
documents in the record showing any adequate investigation
of the issue by the Contracting Officer, no preliminary
injunction would issue because the protester had failed to
establish irreparable harm when the solicitation did not
guarantee that any awards would be made, especially "when
the harm facing the United States as a result of an
injunction is potential loss of life or serious injury to
law enforcement officials."
|
|
December 19 |
In
Togiak Management Services, LLC, a successful protest
against the rejection of the protester's bids as
nonresponsive due to the fact that the submitted bid bonds
were photocopies, although the Court of Federal Claims
rejected the protester's own arguments, it held that the
agency erred by relying on a line of GAO decisions holding
photocopied bid bonds were nonresponsive, which the court
concluded were erroneous. |
|
December 18 |
In
Eastern Shipbuilding Group, Inc., an unsuccessful
post-award protest challenging almost every aspect of the
agency's evaluation of the awardee's and the protester's
proposals in a solicitation for a contract to build ships,
the Court of Federal Claims held, inter alia, that:
(i) there were rational bases for the agency's (a)
assignment of a significant strength to the awardee's
proposed production facilities (despite the fact that they
had not yet been built) and (b) evaluation of the production
risk of its proposed production approach; (ii) the agency
could not have taken into account an alleged risk to the
awardee's proposed schedule caused by additional vessels the
awardee had been contracted to build by another agency
because the contract option awarding this work had not been
exercised at the time of the evaluation; (iii) the agency
was not required to assign schedule risk under multiple
evaluation factors and accounting for it as a production
risk was reasonable; (iv) the agency's decision to evaluate
the awardee's past performance as it improved over time
(rather than giving more weight to earlier problems) was
reasonable; (iv) the agency's evaluation of the awardee's
price proposal had a rational basis, including the agency's
decision to consider certain production line item prices as
a group rather than individually, which vitiated the
protester's argument that two individual line items suffered
from unbalanced pricing; (v) because the agency found no
unbalanced pricing, it was not required to conduct a pricing
risk analysis; (vi) there were rational bases for the
Government's evaluation of various and sundry aspects of the
protester's proposal (too numerous to include in this single
sentence without offending the ghosts of my high school
English teachers); (vii) the determination that the awardee
was responsible reasonably relied on, and was limited to,
standard sources of information for such reviews; (viii)
although the awardee's certification in compliance with FAR
52.209-5(a)(1)(C) was inaccurate in light of an Australian
judicial proceeding, the inaccuracy did not rise to the
level of a material misrepresentation, considering the
findings in that proceeding; and (ix) the agency conducted a
reasonable investigation of an allegation of an OCI
involving the awardee's employment of former agency
official, finding that no unauthorized person had access to
significant sensitive source selection information and that
even if the former employee had previously had access to
non-public proprietary information, it was unlikely he had
retained it or that it would still be competitively useful
in the contested solicitation, which was issued three years
later. |
|
December 15 |
In
LS3, LLC, an unsuccessful protest of the SBA OHA's
determination that a firm did not qualify as SDVOSB joint
venture because the non SDV member could exercise negative
control through its position on the joint venture's
management committee, the Court of Federal Claims spent much
of its time analyzing the degree of deference it owed the
OHA's decision in this situation--quite a bit as it turns
out because the court considered the OHA's holding to be
primarily on an issue of fact,
i.e., the amount of negative control that was
possible in this situation. |
|
December 14 |
In
Scott Technologies, Inc., an unsuccessful post-award
protest, the Court of Federal Claims held that: (i) the
agency record was sufficient to show the agency evaluated
self-identified risks of the awardee's proposal, and the
agency was not required to document its evaluation of
specific risk elements to the level of detail advocated by
the protester; (ii) interpreted in the context of the
solicitation as a whole, a protested evaluation subfactor
allowed the agency to reward the awardee for exceeding the
required production output (delivery requirements); (iii)
discussions should be individually tailored, so the fact
that discussions with the offerors were not identical does
not mean they were unequal or resulted in disparate
treatment; and (iv) the court would not substitute its
judgment for agency's and (merely on the basis of the
protester's highlighting its proposal's alleged merits to
the court) assign the protester a strength where the agency
did not do so, especially in an area where the awardee did
not receive a strength either. |
|
December 13 |
In
Restoration Specialists, LLC, the ASBCA dismissed all but
one of a slew of claims submitted by the contractor as
barred by the six year limitations period because,
inter alia: (i) for the purposes of claim accrual
analysis, there is no such thing in the law as a single
accrual date for all claims under the rubric of a global
claim; (ii) the contractor's claims that the Government
priced individual task orders in a way that violated the
formula stated in the contract accrued no later than when
the Government first paid the contractor utilizing pricing
that the contractor considered incorrect for each order;
(iii) a claim that the Government failed to exercise options
in bad faith accrued when the contractor learned the
Government would not exercise the first option year, and
claims for the remaining option years did not survive under
the continuing claim doctrine; and (iv) claims based on
government-caused delays accrued when the contractor became
aware of the alleged government acts that resulted in the
delays. Subsequently, the Board
denied the contractor's request for reconsideration. |
|
December 12 |
In Nova
Group/Tutor-Saliba, the Court of Appeals for the Federal
Circuit affirmed the
prior CoFC decision that the contractor had failed to
prove the existence of either a Type 1 or a Type 2 differing
site condition. Specifically the court held that: (i) the
CAFC reviews the CoFC's application of the parol evidence
rule de novo as a question of law rather than as a
rule of evidence; (ii) the evidence Government submitted
relating to a fully integrated agreement was not introduced
to vary that agreement, as would be prohibited by the parol
evidence rule, but to support the Government's contention
that the agreement settled the issue; and (iii) a reference
to a design-build contract in a footnote to the CoFC's
decision was not the basis for that court's reasoning or its
decision and, therefore, cannot be a basis to overturn it.
In
Shoreline Foundation, Inc., the ASBCA held that the
contractor's contention that it experienced delays caused by
another contractor's bid protest, which was only submitted
as an REA to the Contracting Officer, cannot now be appealed
to the Board in connection with an appeal of the Contracting
Officer's decision on the contractor's subsequent CDA claim
for weather related delays and remission of liquidated
damages.
In
Colony Constr., the ASBCA denied the Government's motion
to dismiss a pro se plaintiff's appeal or, in the
alternative, for a more definite statement because the
appellant's statement was a "vintage" claim for a wrongful
default termination:
[The contractor] claims that the Corps has wrongly
terminated contract #W912WJ-22P-0131 for ‘default’ and not
‘convenience.’ We pray that the Board will change the
designation accordingly. [The contractor] is asking for no
monetary damages. |
|
December 10
|
The SBA
has revised its white paper explaining how it
establishes, reviews, and modifies small business size
standards, including changes from the SBA’s
2019 Revised Size Standards Methodology, which guided
the SBA’s recently completed second five-year review of size
standards as required by the Small Business Jobs Act of
2010. SBA welcomes comments and feedback on the 2023 Revised
Methodology, which SBA intends to apply to the forthcoming
third five-year review of size standards. Comments are due
by February 9, 2024. |
|
December 8 |
In
Real Line Logistics Services Co., the CBCA denied a
claim for the costs of an attempted late delivery in
response to a unilateral purchase order for construction
supplies to the U.S. embassy in Kabul, Afghanistan, that was
closing and being evacuated because (i) the pro se
appellant did not specify a legal theory of recovery and did
not respond properly to the Government's motion for summary
judgment, and (ii) the purchase order was a unilateral offer
to contract that expired by its terms when the appellant did
not proffer delivery by the specified date.
In
BES Design/Build, LLC, the CBCA denied a motion for
reconsideration of its
earlier decision (see April 14 entry below)
because there was no "newly discovered evidence" as alleged
by the contractor.
In
Stellar J Corp., the CBCA denied cross motions for
summary judgment involving a construction contract because
they both failed to address two threshold issues of law
concerning the meaning of the contract and failed to resolve
a material issue of fact that would remain after those
issues were resolved. |
|
December 6 |
In
Greystones Consulting Group, LLC, an unsuccessful
post-award protest employing various theories to attack the
agency's interpretation that the evaluation criterion
requiring a "single integrated platform" impliedly called
for "a single user experience" in a solicitation for data
management software, the Court of Federal Claims held that:
(i) the agency did not utilize an unstated evaluation
criterion but reasonably relied on a common industry
definition of the evaluation term that other offerors
understood and took into account in preparing their
proposals; (ii) the plaintiff failed to provide substantial
evidence supporting its contention that solicitation
contained ambiguous terminology; and (iii) the agency did
not evaluate proposals disparately--it rejected three other
offers for providing the same solution the agency objected
to in the plaintiff's proposal. |
|
December 5 |
The GAO sustained a protest by
SecuriFense Inc.
because: (i) the agency treated offerors differently by
downgrading the protester for answers during its oral
presentation that were similar to the awardee's; and (ii)
the agency applied an unstated evaluation factor by
assessing decreased confidence to the protester's proposal
for failing to address items that were not among the
evaluation criteria.
The CBCA is hiring a new
judge. If you are interested in applying for the position,
here is the
website
concerning the opening. |
|
December 4 |
In
Eagle
Group Sportswear, Inc., the GAO's Contract Appeals
Board upheld a termination for default of a purchase order
by the Forest Service for baseballs with special printing
after the contractor failed to timely deliver conforming
items despite numerous chances to do so provided by the
Government.
In
Colonial
Press Int'l, Inc., the same Board upheld the
contractor's appeal involving the Government's recoupment of
payments to the contractor for an alleged breach of the
warranty in the delivered items because the Government
contributed to the breach by informing the contractor that
the products met the Government's specification, when, in
fact, the Government's own testing revealed they did not.
Thus, the Government induced the contractor to provide
products concerning which the Government later complained. |
|
November 29 |
In
Ben Holtz Consulting Inc. dba California Avocados Direct,
which involved cross motions for partial summary judgment,
the CBCA held that in a contract to provide boxes of produce
at a fixed price per box, even though there were other
contract requirements related to the required deliveries,
prong one of a convenience termination settlement recovery
was limited to the price for delivered boxes plus recovery
for any partially completed boxes at the time of termination
and did not include any of those other requirements, such as
the establishment of a distribution system.
The
Supreme Foodservice GmbH case involves a contract to
deliver food to bases in Afghanistan concerning which the
contractor had admitted (in federal District court) to major
fraud. The case has an extensive history at the ASBCA and
the CAFC. In this latest decision, the ASBCA held that: (i)
the contractor's fraud was not severable from the remainder
of its work on the contract (even if some of that work was
not directly tainted by the fraud) and amounted to a prior
material breach that relieved the Government of its
obligation to pay any of the contractor's claims for work
performed on the contract during the original contract term;
(ii) the Government had not justified its withholding of
payment on a separate contract because, inter alia,
the Government (a) over withheld on the current contract and
(b) has not established that fraud on the current contract
tainted a different contract; (iii) the contractor would not
be permitted to amend its pleadings to allege
quantum meruit recovery because inter alia, to
do so would decimate the prior material breach doctrine; and
(iv) the Government's prior material breach defense did not
waive or forfeit its claims that arose prior to the time of
the federal court plea (which was the time that the
Government had obtained its known right to assert the
defense). |
|
November 28 |
In
Michael Johnson Logging, an EAJA claim, the CBCA held
that the agency's decision to dispute the contractor's claim
of breach of the implied duty of good faith and fair dealing
was justified, and, because the contractor recovered only
9.8% of its claimed costs for a breach of contract claim,
its EAJA recovery was limited to that percentage of its
claimed EAJA fees and expenses.
In
The Kmask Group LLC, the CBCA upheld a default
termination because the contractor failed to timely provide
PPE gloves and failed to provide adequate assurances of
performance when requested by the Government, and the COVID
delays to PPE supplies that the contractor had offered as an
excuse began two years prior to the start of the contract
and, therefore, did not amount to an unforeseen event.
In
Optum Public Sector Solutions, Inc., the CBCA held it
lacked jurisdiction over an appeal from a Contracting
Officer's letter requesting reimbursement for certain
payments because the letter did not constitute a final
decision (no demand for payment, no sum certain, no
explanation of appeal rights, and no identification as a
final decision).
In
A. Prentice Ray and Assocs., LLC, an unsuccessful
post-award protest seeking a preliminary injunction, the
Court of Federal Claims held that: (i) the price realism
analysis could include (a) limited use of the IGCE and (b)
comparisons of one year of each offeror's unburdened labor
costs; and (ii) the agency's determination that two
offerors' unburdened labor costs were reasonable despite
being significantly lower than the average of those of other
offerors had a rational basis. |
|
November 24 |
The GAO sustained a protest by
RELX Inc. because the awardee's task order quotation in
an FSS competition (a) failed to meet several salient
characteristics of the brand name or equal solicitation and
(b) offered some open market items not included in its FSS
contract (as did the protester's quotation). |
|
November 22 |
In
Flatland Realty LLC, the ASBCA held that the Government's
default termination breached a lease to provide concession
services (which did not contain a T for C clause) because
the record did not support the Government's assertion that
lessee had failed to provide services for two years, and the
lessee was not required to provide a new Use and Development
Plan five years after the original five-year plan. The Board
also held that after the Government revoked the lease, a
building that the lessee failed to remove from the property
became government property, so the lessee was not entitled
to compensation for the building.
In
Granite Constr. Co., the ASBCA held that a 49 day
suspension period for part of the work due to extreme
weather conditions caused by Hurricane Harvey was
"reasonable" under the Suspension of Work clause (FAR
52-242-14), especially where the contractor had admitted as
much during performance. The Board also held that
compensating the contractor only for 30 days during that
period also was reasonable because, as the Contracting
Officer had stated: "19 of those days were anticipated
adverse weather delay days identified in [a section] of the
contract, for which [the contractor] accepted the risk."
In Gulf
Extreme Eng'g & Constr., the ASBCA upheld the default
termination of a construction contract for failure to
diligently prosecute the work after the contractor's
unsatisfactory response to a cure notice and its subsequent
failure to present evidence at the Board of any valid
excuses for its delays:
The government has amply shown that the record supports the
termination decision. Thus, the burden shifts to [the
contractor], and it has not, during the project or here,
shown that its many delays, scheduling errors, poor
management decisions, or work slowdowns and stoppage, were
beyond its control. In fact, [the contractor's] challenge to
the termination is almost entirely unsupported and consists
only of repetitive and conclusory characterizations of
select correspondence between the parties, without citations
to any substantive record evidence. |
|
November 21 |
In
Noble Supply & Logistics LLC, an unsuccessful preaward
protest, the Court of Federal Claims held that in a
solicitation for commercial items under FAR Part 12, the
agency had a rational basis for obtaining a waiver to depart
from ordinary commercial practice and require contractors to
pass on any prompt payment discounts they received to the
Government.
In
Myriddian, LLC, an unsuccessful post-award protest, the
court held, inter alia, that: (i) the awardee's
plan to employ a (key personnel) Medical Director part time,
supplemented by an Associate Medical Director working full
time, was permitted by the solicitation and, besides, the
agency had considered the risks associated with this
approach; (ii) the solicitation's vague requirement that the
undergraduate degree of the Program Director should be
relevant to the contract's purpose (Medicare related
services) was sufficiently broad that an undergraduate major
in psychology was acceptable; and (iii) the agency
adequately considered the differences in ratings between the
competing proposals in other areas of staffing and technical
merit.
NFS Case 2023-N022: Effective December 20, a final rule
amends the NASA acquisition regulation supplement (NFS) to
update the policy concerning the NASA Ombudsman Program.
DFARS Case 2012-D010: A final rule amends the DFARS to
partially implement section 874 of the NDAA for FY 2017 that
addresses the inapplicability of certain laws and
regulations to the acquisition of commercial products,
including commercially available off-the-shelf items, and
commercial services.
DFARS Case 2018-D053: The proposed rule concerning
export authorizations associated with this case is being
withdrawn.
DFARS Case 2018-D074: A proposed would amend the DFARS
to implement sections of the NDAA for FY 2018 and 2019
regarding the applicability of certain solicitation
provisions and contract clauses to contracts and
subcontracts for commercial products, commercial services,
and commercially available off-the-shelf items. Comments are
due by January 16, 2024.
DFARS Case 2021-D022: A proposed rule would amend the
DFARS to to implement two sections of the NDAA for FY 2021,
one section of the NDAA for FY 2022, one section of the NDAA
for FY 2023, and one section of the Consolidated
Appropriations Act, 2023. These statutes remove limitations
and restrictions on certain components that are no longer
required and add new limitations on other components,
subject to exceptions. Comments are due by January 16,
2024. |
|
November 20 |
The GAO sustained one of the protest grounds asserted by
Vertex Aerospace, LLC, finding that the evaluation of
the protester's past performance was unreasonable because
the agency simply tallied the ratings it received on various
contracts without considering the relevance of the contracts
on which they were received, i.e., the agency
unreasonably equalized the various ratings without regard to
relevance. |
|
November 17 |
GSAR Case 2020-G510: The GSA proposes to amend the GSAR
to to standardize and simplify the Multiple Award Schedule
clauses for economic price adjustments. This rule removes
certain economic price adjustment requirements within these
clauses to better align with commercial standards and
practices. Comments are due by January 16, 2024.
Federal Acquisition Circular (FAC)
2024-01 has been published and includes the following
item:
FAR 2023-019: A final rule amends the FAR to add North
Macedonia as a new designated country under the World Trade
Organization Government Procurement Agreement.
|
|
November 16 |
In
CeleraPro, LLC, an unsuccessful challenge to the proposed
award of sole-source task order to the holder of an existing
single-award, IDIQ contract contract as a modification to
that contract, the Court of Federal Claims held that: (i)
the plaintiff has standing to challenge the award to an 8(a)
firm even though was not, itself, 8(a) because an element of
the challenge was whether the solicitation was properly
limited to 8(a) firms, and it could compete for award if it
were not so limited; but (ii) the contract mod was within
the scope of the original contract because that contract
adequately advised offerors of the possibility of such a
change, and the mod did not substantially change the type of
work, performance period, and costs as between the original
contract and the modified contract, so CICA's competition
requirements were not implicated by the modification.
In VSBC
Appeal of Iron Shamrock, LLC, the SBA's OHA upheld
a decision denying VOSB status to a firm because multiple
provisions of its franchise agreement established that the
franchisor, rather than the veteran, had control of the
firm. |
|
November 15 |
In
Size Appeal of Portacool, LLC, the SBA's OHA
held that the Area Office correctly drew an adverse
inference from the challenged firm's failure to provide
relevant information requested by the office concerning
possible affiliates and the ownership of the company the
challenged firm claimed to be 100% owned by.
In
Size Appeal of Daniels Bldg. Co., the OHA held
that the Area Office had properly dismissed (as speculative)
a protest alleging only that two firms "have not fulfilled
their obligations as Mentor and Protégé and have no
intention or ability to fulfill those requirements on the
project at issue" without supporting evidence. |
|
November 14 |
The CBCA issued two, similar decisions concerning
applications for EAJA fees. In
GC Works, Inc., the CBCA awarded only part of the hours
claimed in an EAJA application because, although the
agency's position in the original litigation was not
substantially justified, the contractor had originally
claimed more delay hours than it was entitled to and did not
own up to its contribution to the delays. Likewise, in
SBC Archway Helena, LLC, the CBCA reduced the
appellant's EAJA claim because, although it was the
prevailing party in the underlying litigation, it had
claimed substantially more than it was ultimately found to
be entitled to. |
|
November 10 |
In
Navarre Corp., an unsuccessful post-award protest, the
Court of Federal Claims: (i) rejected the protester's
contention that the solicitation contained a definitive
responsibility criterion concerning financial
responsibility; (ii) found that the agency's conclusion that
the awardee was financially responsible had a rational
basis, and that bankruptcy materials not available to the
agency at the time it made that determination were not
relevant to the protest but were a matter of contract
administration; and (iii) held that the protester did not
provide evidence for its assertion that agency had
misevaluated quotes or treated competitors disparately. |
|
November 9 |
In
Amentum Services, Inc., f/k/a AECOM Management Services, Inc.,
which involved interpretation issues in a firm-fixed-price
contract for launch services, the ASBCA held that: (i) the
contract's minimum yearly ordering requirement in the final
year should include task orders issued near the end of the
year, but not performed until the next year, but the fact
that a task order was de-scoped in that next year reduced
its value in the year it was awarded, meaning the Government
breached the contract by ordering approximately $50,000 less
that the minimum guaranteed amount; (ii) the contractor
could not disavow new task order items added by way of
bilateral modifications made without any reservation of
rights; (iii) because individual line items did not have
minimum required values, the Government's decision to stop
purchasing jet fuel from contractor did not violate any
contractual provision and did not amount to a breach of the
implied duty of good faith and fair dealing; (iv) the
contractor was not entitled to recover its continuing costs
during shutdowns caused by hurricanes, and the clause relied
on by the contractor only noted the Contracting Officer
"may" consider such claims, which invoked an abuse of
discretion standard that the contractor had not met; (v)
there was no ambiguity in the task item for gaseous nitrogen
support, and, even if there were, it was patent; and (vi)
the contractor did not establish its claim for a bidding
error because its own evidence on its mistake was equivocal,
and it did not prove the Government was, or should have
been, aware of the error.
In
Korte Constr. Co., the ASBCA held that the Government was
entitled to a credit for a deductive change for work
ultimately not required of a subcontractor even though the
contractor established the subcontractor did not include
that work in its bid because the subcontractor assumed the
work would not be required. The Board's reasoning is that
the subcontractor knew of an ambiguity in the solicitation
but did not raised the issue, essentially betting its
interpretation would be the correct one (which it turned out
to be). I'm not sure I'm on board with this decision. If the
subcontractor had bet wrong, I could understand the Board
denying the contractor's claim for added work, but here, the
punishment does not seem to fit the crime since the bid
turned out to be for the right amount. I see a windfall for
the Government in the Board's decision.
In
Radmacher Bros. Excavating Co., Inc., the ASBCA denied the
Government's motion for summary judgment on a Type 2
Differing Site Conditions claim because, even though the
contractor had presented scant evidence in response to the
Government's motion, the record was not sufficient to decide
whether stationary trains on railroad tracks for extended
periods of time were an unknown or unexpected condition that
should allow recovery. |
|
November 7 |
In
Alfajer, Ltd., the ASBCA granted the Government's motion
for summary judgment because the contractor: (i) failed to
respond to several sections of the Government's motion
(including its defense to the contractor's breach of
contract claim, i.e., that a base closure and
evacuation undertaken for security reasons was a sovereign
act); (ii) abandoned several of its claims (e.g., a superior
knowledge claim); and (iii) failed to provide evidence of
any allegedly disputed issues of fact (or provided
"evidence" that did not support its contentions) in the case
of its claim of breach of the implied duty of good faith and
fair dealing.
In
MTS General Contracting, the ASBCA denied the Government's
motion for summary judgment because of material issues of
fact as to which, and how many, invoices were in dispute. |
|
November 6 |
In
Research Analysis & Maintenance, Inc., the ASBCA analyzed
whether each of various challenged allegations in the
Complaint were new claims or whether they were based on the
same operative facts previously presented to the Contracting
Officer (most were). The Board also held that parts of the
claim that Government contended should have included sums
certain were just descriptions of various acts of the
Government that the contractor considered to be the source
of the amount it was claiming, but the contractor clearly
was seeking only the costs it alleged it incurred to comply
with FAR 52.215-2, which it identified in a sum certain
amount.
In
AeroKool Aviation Corp., the ASBCA denied the Government's
motion to dismiss the appeal, holding that: (i) a breach
proposal that was originally submitted in the same document
as a termination settlement proposal (TSP) ripened into a
claim when the contractor certified it and requested a
Contracting Officer's decision; (ii) the breach claim was
independent of the TSP proposal because it was based on a
different theory of relief and sought different damages; and
(iii) the Government's dilatory processing of the TSP
created an impasse, converting the TSP into a CDA claim. The
Board directed the Government to issue a decision on the
TSP.
This website's
Recent ASBCA Decisions
page was getting so long that the program I use to edit the
site was starting to run slowly on that page. So, I have
moved some of the decisions that used to be on that page to
the page for older decisions, which now covers
decisions from
2006-2016. |
|
November 2 |
In
BWhit Infrastructure Solutions, LLC, an unsuccessful
protest against an agency's corrective action in response to
a prior GAO protest, the Court of Federal Claims held there
was a rational basis for the agency's decision to cancel an
award to plaintiff and amend the solicitation to eliminate
ambiguities and account for updated agency requirements
resulting from delays caused by the original GAO protest. |
|
October 31 |
In
Delfasco LLC, the ASBCA denied the contractor's claim
because the contract's EPA clause only allowed a price
adjustment for the increased costs of steel, and the gray
iron out of which the contract items (bombs) were made was
not steel.
In
Manitou Island Transit, LLC, the Court of Federal Claims:
(i) dismissed the contractor's claim of detrimental reliance
because it was essentially one for promissory estoppel under
an implied-in-law contract theory over which the court lacks
jurisdiction; and (ii) held that the contractor was entitled
to summary judgment that the National Park Service breached
its contractual obligation to ensure that the concession
contractor had access to the docks during the portion of the
year that the contractor was obligated to provide ferry
services, which meant the Government was responsible for the
upkeep required to maintain the dock area in useable
condition.
E & I Global Energy Services, Inc. involves a challenge to
a termination for default of a contract that the surety had
agreed to take over after the prior contractor had also been
terminated for default. The case turns in large part on the
issue whether the plaintiff was the Completion Contractor
and entitled to the protections afforded that entity. The
court held that it was not even though it was solely owned
by the same individual that owned the official Completion
Contractor, which was the party to the Completion Agreement,
even though the plaintiff was the entity finally awarded a
contract by the Government to complete the work. I don't
pretend to be able to unravel the court's holdings on that
issue. However, the court also upheld the termination for
default because, inter alia: (i) the contractor
admitted it did not attempt to find replacement
subcontractors for the ones who allegedly delayed its work
by refusing to proceed without pay; (ii) problems with the
subcontractors existed before the contract was entered into,
and there was no reasonable expectation those problems would
disappear after award, so the problems were foreseeable;
(iii) the contractor had waived an alleged excuse that the
contract required him to raise within 10 days of its
occurrence when the contractor had waited more than 2,000
days; and (iv) alleged unusually severe weather was only
claimed to have cut short the site inspection, not to have
delayed progress during contract performance. |
|
October 30 |
In ECC
Int'l Constructors/Metag (JV), the ASBCA held that where
the contractor's initial work did not comply with the
contract requirements, the agency's suspension of work and
requirement that the contractor remedy the problem did not
constitute a constructive change, and none of the specs,
documents, or course of dealing cited by the contractor
changed those basic facts.
In
SBA Contracting, LLC, the ASBCA upheld a termination for
cause because the contractor failed to timely deliver 120 of
121 required trucks in a non-severable contract in a
situation where the Government had not extended the delivery
date, and the contractor's excuses for nonperformance (a
tight supply market for trucks, COVID, an alleged course of
dealing on a previous contract, and the fact that the
Government had revised the specs for this contract) were not
valid. Subsequently, the contractor's motion for
reconsideration was
denied.
In
Incircle Management, Inc.,
the ASBCA upheld another termination for cause because the
contractor was aware that the SOW included in the underlying
RFQ, but not in the purchase order, nevertheless applied,
and the contractor failed to clean areas required by the SOW
without a valid excuse.
In
N.A.C.E. Inc., an appeal of a CPARS rating, the ASBCA
denied the contractor's motion to file an amended Complaint
because the proposed amendment would have amounted to an
untimely appeal of a default termination. |
|
October 27 |
In
Karthik Consulting, LLC, an unsuccessful post-award
protest, the Court of Federal Claims held that the agency's
determination that the plaintiff was ineligible for an 8(a)
task order award under a MAS contract had a rational basis
because: (i) the firm had already graduated from the 8(a)
program before the task order solicitation was issued; (ii)
its status as an 8(a) firm at the beginning of the MAS
contract was irrelevant because that contract was not set
aside for 8(a) firms; and (iii) the task order solicitation
was specifically limited to 8(a) firms.
In
Unison Software, Inc., an unsuccessful protest alleging
generally that the Government had made a
de facto decision to procure its needs for
government contracting software from a single source without
going through proper procedures, the court held it lacked
jurisdiction over the portions of the protest complaining of
the issuance of task or delivery orders under $25 million
that did not increase the scope, period, or maximum value of
the contract under which the orders were issued, and other
actions of which the plaintiff complained were not
procurements.
The DOE proposes a
comprehensive revision of its acquisition regulation
(DEAR) in order to update and streamline the policies,
procedures, provisions and clauses that are applicable to
its contracts, specifically to update or eliminate coverage
that is obsolete or that unnecessarily duplicates the FAR
and retain only that coverage which either implements or
supplements the FAR for the award and administration of the
DOE’s contracts. Comments are due by December 26. |
|
October 25 |
In
Wesley McBride, the CBCA held that: (i) the appellant's
claim for misdescription of an auto bought at a government
sale was untimely filed according to the terms of the sale;
(ii) the alleged misdescription was neither fraudulent nor
material, because the sale documents warned the car might
have defects not included in its description and encouraged
potential buyers to inspect it themselves, which the
appellant failed to do; and (iii) the appellant's own breach
(failure to pick up the car) did not entitle him to relief
because it was the GSA as the non-breaching party that could
choose to continue the contract or terminate it.
DFARS Case 2024-D001: Effective October 30, a final rule
amends the DFARS to to add North Macedonia as a new
designated country under the World Trade Organization
Government Procurement Agreement.
DFARS Case 2023-D015: Effective October 30, a final rule
adopts, without change, an interim rule amending the DFARS
to implement a section of the NDAA for FY 2023 that
prohibits the use of funds to knowingly procure any products
mined, produced, or manufactured wholly or in part by forced
labor from the Xinjiang Uyghur Autonomous Region of the
People’s Republic of China.
DFARS Case 2021-D021: Effective October 30, a final rule
amends the DFARS to implement section 1025 of the NDAA for
FY 2021 that restricts overhaul and repair of a naval vessel
in a shipyard outside the United States or Guam.
DFARS Case 2023-D011: A proposed rule would amend the
DFARS to implement section 856 of the NDAA for FY 2023 that
permanently authorizes and modifies the DoD Mentor-Protégé
Program. Comments are due by December 26. |
|
October 24 |
In
Platinum Services, Inc., the Court of Federal Claims held
there was no meeting of the minds concerning price because
the plaintiff had withdrawn its tenders before they were
memorialized in government bills of lading and, therefore,
no contract was formed, and the plaintiff was limited to a
quantum meruit recovery. |
|
October 23 |
In
NAICS Appeal of Aldevra, LLC, the SBA's OHA
held that in a solicitation to supply kitchen equipment to a
VA medical facility in Honolulu, the appellant's choice of
NAICS 333415 ("Air-Conditioning and Warm Air Heating
Equipment and Commercial and Industrial Refrigeration
Equipment Manufacturing") was preferable to the Contracting
Officer's choice of NAICS 335220 ("Major Household Appliance
Manufacturing"). |
|
October 18 |
In
VSBC Appeal of
Amenity Waste Solution, the SBA's OHA upheld the
denial of a firm's application for certification as an
SDVOSB because inconsistent information in the firm's
documentation did not conclusively establish the SDV had the
requisite authority and control. |
|
October 17 |
In
Framaco Int'l, Inc., the CBCA denied the contractor's
request for declaratory relief based on an alleged breach of
contract because it would not provide the appropriate remedy
for breach, i.e., money damages.
In
Size Appeal of Federal Performance Management Solutions,
LLC, the SBA's OHA upheld the Area Office's
determination that the members of a JV should be treated as
affiliates because the JV submitted its offer on the
contested procurement more than two years after the JV's
first award. |
|
October 14 |
In
SAGAM Securite Senegal, a decision labeled as
nonprecedential, the Court of Appeals for the Federal
Circuit upheld the CoFC's decision: (i) that cancellation of
a solicitation (based on disclosure of bidder's proprietary
information to competitor) lacked a rational basis; and (ii)
enjoining resolicitation (rather than ordering remand)
because the resolicitation plan did nothing to mitigate the
harm from the the improper disclosure. |
|
October 13 |
In
Bear Mountainside Realty LLC, an unsuccessful protest
against the cancellation of a solicitation, the Court of
Federal Claims held that, although the emails of some
individual agency employees evidenced animus towards the
protester, there was insufficient evidence to meet the high
burden of proof required to establish the agency's
bad faith motivation for the cancellation.
In
Sparksoft Corp., an unsuccessful, scattershot post-award
protest against an evaluation, the court held, inter
alia, that: (i) the Contracting Officer did not ignore
weaknesses identified by TEP in the awardee's proposal; (ii)
the agency properly considered the superior relevancy of the
incumbent's prior experience on the contract; and (iii) the
agency properly considered the awardee's proposed staff
under the appropriate evaluation factor and its staffing
plan under another.
In
Purpose Built Families Foundation, Inc., the court held
that the VA's Supportive Services for Veterans Families
program awards to non-profits were grant agreements over
which court lacks bid protest jurisdiction. |
|
October 12 |
Insight Technology Solutions, LLC won its GAO protest
because: (i) there was no basis for the agency's conclusion
that all four of the awardee's contract references were
"highly relevant" when one of them was not; (ii) the agency
evaluated proposals disparately by crediting experience
areas in the awardee's proposal without giving the protester
equal credit for same types of experience; and (iii) the
final best value tradeoff decision was infected with both
these errors. |
|
October 11 |
Effective November 13, the SBA is amending its regulations
to implement provisions of the NDAA for FY 2020 in order to
permit a prime contractor with an individual subcontracting
plan to apply credit for subcontracts to small businesses at
lower tiers toward its
subcontracting goals
by incorporating the lower-tier subcontracting performance
into the prime contractor's subcontracting-plan goals. |
|
October 10 |
NASA is issuing
a final rule revising its acquisition regulation (NFS)
to reflect updates to NASA’s Small Business Mentor Protégé
Program.
Effective October 19, NASA is issuing a
final rule amending the NFS to conform to changes in the FAR
that reflect an updated
"commercial item" definition pursuant to a section of
the John S. McCain NDAA for FY 2019.
FAR Case 2021-017: A proposed rule would amend the FAR
to partially implement an Executive Order on cyber threats
and incident reporting and information sharing for federal
contractors and to implement related cybersecurity policies.
Comments are due by December 4.
FAR Case 2021-019: A proposed rule would amend the FAR
to provide standardized cybersecurity contractual
requirements across federal agencies for federal information
systems by implementing recommendations received in
accordance with paragraph (i) of section 2 of Executive
Order 14028 ("Improving the Nation’s Cybersecurity") and
paragraphs (a) and (b)(1) of section 7 of the Internet of
Things Cybersecurity Improvement Act of 2020. Comments are
due by December 4.
FAR Case 2021-009: A proposed rule would amend the FAR
to implement regulatory changes made by the SBA to update
and clarify requirements associated with size and/or
socioeconomic status protests in connection with
multiple-award contract set-asides and reserves and orders
placed under multiple-award contracts. Comments are due by
December 4. |
|
October 8 |
In
Systems Dynamics Int'l, Inc., a successful post-award
protest, the Court of Federal Claims held that the awardee's
failure to meet the solicitation's material, minimum
education requirements for multiple proposed personnel was a
"deficiency" that rendered the proposal "ineligible" for
award under the definitions in the solicitation. |
|
October 6 |
Federal Acquisition Circular (FAC)
2023-06 has been published and includes the following
three items:
FAR Case 2020-011: Effective December 4, an interim rule
amends the FAR to implement supply chain risk information
sharing and exclusion or removal orders consistent with the
Federal Acquisition Supply Chain Security Act of 2018 and a
final rule issued by the Federal Acquisition Security
Council. Comments are due by December 4.
FAR Case 2017-005: A final rule amends the FAR to
implement Pub. L. 114–261 to enhance whistleblower
protection for contractor employees. The rule makes
permanent the protection for disclosure of certain
information. It also clarifies that the prohibition on
reimbursement for legal fees accrued in defense against
reprisal claims applies to subcontractors, as well as
contractors.
FAR Case 2021-012: A final rule amends the FAR to
implement regulatory changes made by the SBA in its final
rule published in the Federal Register at 85 FR 66146 on
October 16, 2020 to more clearly articulate the SBA’s intent
with regard to certain aspects of the 8(a) program and to
eliminate confusion and decrease burdens on procuring
activities and 8(a) participants. |
|
October 4 |
In
Rotair Aerospace Corp., the Court of Federal Claims denied
the protester's motion for a stay pending its appeal of the
court's
earlier order denying the protester's motion to supplement
the administrative record because that order was not a
"final decision" that could be appealed, did not include a
"controlling question of law," and was not final under the
collateral order doctrine.
In another
Rotair Aerospace Corp. decision involving the same
protest, the court denied: (i) the protester's motion to
complete the administrative record with documents not
considered by the agency in making the decision to conduct
the sole source procurement challenged by the protester; and
(ii) the protester's request to conduct depositions because
they were not necessary to decide the protest. |
|
October 2
|
NASA is proposing to amend the its acquisition supplement
(NFS) by
removing NFS 1831.205–671 and NFS 1852.231–71
("Determination of Compensation Reasonableness") because
they provisions exceed the requirements adequately covered
in FAR 52.222–46 ("Evaluation of Compensation for
Professional Employees"). Comments are due by December 1. |
|
September 30 |
DFARS Case 2021-D023: Effective October 1, an interim
rule amends the DFARS to implement section 1062 of the NDAA
for FY 2021, which provides that none of the funds
authorized to be appropriated or otherwise made available
for any fiscal year for DoD may be provided to an
institution of higher education that hosts a Confucius
Institute, defined as a cultural institute directly or
indirectly funded by the government of China. Comments are
due by November 28.
DFARS Case 2020-D011: Effective October 1, an interim
rule amends the DFARS to implement sections 322(b), (c), and
(d) of the NDAA for FY 2020, which prohibit the DoD's
procurement of fluorinated aqueous film-forming foam
("AFFF")containing in excess of one part per billion of
perfluoroalkyl and polyfluoroalkyl substances after October
1, 2023, unless an exemption applies. Section 322 also
requires publication not later than January 31, 2023, of a
military specification for a fluorine-free fire-fighting
agent for use at all military installations and availability
of such agent for use not later than October 1, 2023. After
October 1, 2024, fluorinated AFFF may not be used at any
military installation, unless the Secretary of Defense
waives the prohibition on use. Comments are due by November
28.
DFARS Case 2023-D009: DoD is proposing to revise the
DFARS to to implement section 808 of the NDAA for FY 2023,
which amends section 818 of Public Law 109–364 to limit the
number of low-rate initial production lots associated with a
major defense acquisition program to be procured to no more
than one when the milestone decision authority authorizes
the use of a fixed-price type contract at Milestone B and
the scope of the work includes both development and low-rate
initial production. This limitation may be waived. Comments
are due by November 28.
FAR Case 2020-016: A proposed rule would amend the FAR
to to implement regulatory changes made by the SBA in its
final rule published on October 16, 2020, at 85 FR 66146, to
order-level size and socioeconomic status rerepresentation
requirements. Comments are due by November 28. |
|
September 28 |
In VSBC Appeal
of The Old Breed Svcs., LLC, the SBA's OHA upheld
the SBA's denial of an appellant's application for
certification as an SDVOSB because, despite repeated
requests to do so, the appellant had failed to submit
documentation that demonstrated (a) its alleged
mentor-protégé agreement was still in force, and (b) its
relationships with other affiliated firms with which it was
co-located were not disqualifying. |
|
September 27 |
In
Cobra Acquisitions, LLC, the CBCA dismissed an appeal
because the appellant failed to allege the existence of a
federal procurement contract, which is necessary to
establish CDA jurisdiction. Specifically, (i) an agreement
for hurricane clean-up between the appellant and a Puerto
Rican government agency to be funded by FEMA (whose
representatives allegedly guaranteed to the appellant that
it would get paid from FEMA funds) was not an express or
implied-in-fact procurement contract between the appellant
and FEMA; (ii) under the Stafford Act, the Puerto Rican
agency did not meet the requirements to be considered as
purchasing on behalf of FEMA as its purchasing agent; and
(iii) even if the appellant were considered a third party
beneficiary of the contract between FEMA and Puerto Rico,
there is no CDA jurisdiction over third party beneficiary
claims. |
|
September 26 |
In
MVP Network Consulting, LLC, the ASBCA dismissed an appeal
filed more than 90 days after the date that all the
available evidence indicated the contractor had received the
Contracting Officer's decision.
Effective October 19,
a final rule amends the NASA Federal Acquisition Regulation
Supplement (NFS) to conform to changes in the FAR that
reflect an updated "commercial
item" definition pursuant to a section of the John S.
McCain National Defense Authorization Act (NDAA) for FY
2019.
DHS (finally)
withdrew a proposed rule originally published in August
2012 titled "Homeland Security Acquisition Regulation (HSAR)
Subcontractor Labor Hour Rates Under Time and Materials
Contracts (HSAR Case 2010–001)." The original notice of
proposed rulemaking proposed to amend HSAR parts 3016 and
3052 to require DHS contracts for time and material or labor
hours to include separate labor hour rates for
subcontractors and a description of the method that would be
used to record and bill for labor hours for both contractors
and subcontractors. DHS withdrew this proposed rule because
of differing agency priorities and the staleness of the
public comments.
DHS also
withdrew a proposed rule originally published in June
2010 titled "Limitations on Subcontracting in Emergency
Acquisitions (HSAR Case 2009–005)," which proposed to amend
the HSAR to limit the use of tiering subcontractors on
cost-reimbursement type contracts entered into by the
Department to facilitate the response to or recovery from a
natural disaster or act of terrorism or other man-made
disaster. |
|
September 25 |
In
Consolidated Safety Services, Inc., a successful
preaward protest against the NAICS code chosen by the
Contracting Officer for a procurement, which had been
affirmed by the
OHA, the Court of Federal Claims held there was no rational
basis for assigning NAICS Code 541620 ("Environmental
Consulting Services") as opposed to NAICS 541715 ("Research
and Development in the Physical, Engineering, and Life
Sciences (except Nanotechnology and Biotechnology)"), which
was the code proposed by the plaintiff, where the
solicitation contemplated research and development. The case
is interesting primarily because the court states that there
are limits to the deference to be accorded to the
Contracting Officer's choice and that the OHA had
overstepped those limits. See the end of this entry for two
other recent OHA NAICS decisions.
In
Size Appeal of VORAGO Technologies, Inc., the
SBA's OHA held that, in determining the appellant was other
than small, the Area Office had erroneously relied on (a)
ambiguous evidence on a website and (b) a letter not shown
to the appellant and to which it was not given an
opportunity to respond, rather than evidence submitted by
the appellant.
In
Size Appeal of Aldevra, LLC, the OHA: (i)
denied a request to submit new evidence because it was
available, but not submitted, at the time of the original
size determination; (ii) denied a request for a hearing
because it was unnecessary to the resolution of the protest;
and (iii) held that the Area Office had conducted a
reasonable investigation in determining that two firms had
taken adequate steps to disentangle themselves from a prior
affiliation.
In
Size Appeal of GC&V Constr., LLC, the OHA held
that the Area Office had correctly used its ownership
percentage to calculate an affiliated firm's share of the
receipts from joint ventures of which it was a member, which
rendered the affiliated firm (and, thus, the appellant)
other than small even after deducting amounts already
accounted for in the affiliated firm's tax returns in order
to avoid double-counting.
In
Size Appeal of LS3, LLC, the OHA dismissed a
protest as moot because the OHA had previously decided a
case involving the same protester, the same procurement, and
the same issue:
VSBC Protest of New Directions Technologies, Inc..
In Size Appeal of
Allegheny Science & Technology Corp., the OHA held
that the Area Office had correctly determined pursuant to 13
C.F.R. § 121.1004(a)(3) that a protest against the size of
a firm issued a BPA under a long-term GSA schedule contract
was untimely because such protests are treated as protests
on the underlying contract.
In VSBC
Protest of Arapaho Technical Svcs., LLC, a
successful protest against a firm's SDVOSB status, the OHA
held that: (i) the SDV owned only 50.1% rather than the
required 51% of the firm; and (ii) the firm admitted that a
non-veteran managed or supervised its day-to-day operations.
Subsequently, the OHA
denied the challenged firm's petition for
reconsideration.
In
VSBC Appeal of Murray and Treittel, Inc., the OHA
held that the SBA had erred in determining under 13 C.F.R. §
128.203(e)(2) that the appellant was not qualified as a VOSB
based on the fact that the veteran was only one of five
members of the Board, without first considering whether the
veteran controlled the Board under § 128.203(e)(2), which
identifies three situations in which the SBA will deem
qualifying veterans to control a Board, one of which is when
"[o]ne qualifying veteran owns at least 51% of all voting
stock, the qualifying veteran is on the Board of Directors,
and no supermajority voting requirements exist for
shareholders to approve corporation actions."
In
VSBC Appeal of Verndari, Inc., the OHA held
that the SBA had incorrectly found an SDVOSB ineligible due
to negative control where the SDV owned the majority
ownership interest, was Chairman of the Board, and,
according to firm's Bylaws, could convene a special meeting
of the shareholders, at which the shareholders could vote
to remove any or all directors, with or without cause, so
that the SDV, as the majority shareholder, would determine
the outcome, making the appearance of negative control
illusory, because the SDV could remove and replace any
directors attempting to block a quorum of the Board.
In VSBC
Appeal of Carleton Controls Corp., the OHA upheld
the denial of a firm's eligibility as a VOSB because the
Appellant did not demonstrate how its 93.79 % ownership by
its 401(k) plan as a trust structure complied with the
direct ownership requirements of 13 C.F.R. § 128.202(a),
i.e., that the trust was revocable and that all current
beneficiaries of the trust were veterans. The Appellant also
did support its application with copies of the actual trust
documents.
In NAICS
Appeal of Laredo Technical Svcs., Inc., the OHA
held that in a solicitation for registered nurse staffing
services, the Contracting Officer's choice of NAICS 561320
("Temporary Help Services") was a reasonable one, so there
was no need to reach the appellant's choice of NAICS 621399
("Offices of All Other Miscellaneous Health Practitioners").
In NAICS
Appeal of Gemini Tech Svcs. LLC, the OHA held that
in a solicitation for a wide range of personnel services to
Fort Knox personnel, but not including consultation and
advice on personnel matters, the Contracting Officer's
choice of NAICS 561110 ("Office Administrative Services) was
correct, in contrast to the appellant's choice of NAICS
541612 ("Human Resources Consulting Services"). |
|
September 22 |
The GAO sustained a protest by
Guidehouse, Inc., because the limited record the agency
provided to the GAO did not indicate that the agency had
adequately investigated or addressed an apparent conflict of
interest of the evaluation board's chairman, who was a
former employee of the awardee. |
|
September 21 |
In
Jita Contracting, Inc., over the Government's objection,
the CBCA permitted the contractor to file an amended answer
asserting two new affirmative defenses to a default
termination because they were closely related to defenses
already raised, and the Government did not show that it
lacked, or could not obtain, information that it would need
to rebut either new defense. |
|
September 19 |
GSAR Case 2020-G511: The GSA proposes to amend its
acquisition regulation (GSAR) to update and clarify the
requirements for the use of FSS contracts by eligible
non-federal entities, such as state and local governments.
Comments are due by November 17. |
|
September 18 |
In
MC2 Sabtech Holdings, Inc., an unsuccessful post-award
protest, the Court of Federal Claims dismissed the protest
because the agency had a rational basis for its
determination that the item being procured was a commercial
product under the definition in FAR 2.101. |
|
September 14 |
In
INQEM LLC v. DHS, the contractor's failure to respond to
the Government's motion for summary judgment meant: (a) the
CBCA adopted Government's statement of facts as undisputed;
(b) the contractor was in default for failure to deliver the
contract items (bottled water) on time; and (c) the
contractor presented no evidence in support of its excuse
that a Florida hurricane somehow delayed the delivery of
bottled water to locations in Arizona. |
|
September 12 |
In
J. Star Enterprises, Inc., the Court of Federal Claims
dismissed a suit for failure to state a claim because: (i)
the contractor had not filed its certified claim for
remission of liquidated damages until more than six years
(actually, six years and a bit more than a one month) after
the contractor had accepted final payment under the contract
reduced by the liquidated damages, which the court held was
the last date that the claim could have accrued; and (ii)
viewing the assessment of liquidated damages, itself, as the
Government's claim, the contractor also did not file suit
within one year of the date of that claim.
The DoD is contemplating negotiating and concluding a
new
Reciprocal Defense Procurement Agreement with Brazil and
is requesting industry feedback regarding its experience in
public defense procurements conducted by or on behalf of the
Brazilian Ministry of Defence or Armed Forces.
Comments are due by October 12.
GSAR Case 2019–G503: Effective October 12, the GSA is
amending the GSAR to clarify and streamline the clauses
contracting officers should reference in acquisitions for
commercial products and services.
|
|
September 11 |
In
PAE Applied Technologies LLC, the ASBCA denied the
Government's motion to dismiss based on the alleged lack of
a Contracting Officer's decision, holding that the
Contracting Officer's demand letter issued to break a
stalemate between the parties over the amount the contractor
should repay of payments previously made to it for allegedly
COVID-related costs adequately informed the contractor of
the nature of the Government's claim and contained
sufficient information so that the contractor could easily
calculate the amount claimed.
In
Derian, Inc., the ASBCA held, inter alia, that:
(i) the Government's partial termination for convenience
eliminated the contract's original substantial completion
date, and the Government failed to establish a new date, so
the assessment of liquidated damages based upon the original
date was improper; (ii) the contractor not entitled to
recover its own labor costs claimed for changed work because
its records lacked any explanation of the work performed
and showed only the amounts paid to various individuals by
check number and amount; (iii) the QAR did not direct the
contractor to perform changed work and did not have the
authority to do so; (iv) the ACO's silence when asked about
the extend of the QAR's authority could not reasonably be
interpreted by the contractor as a statement of that
authority; and (v) the Government's decision to withhold the
contractor's clearance to begin work until it had held a
required preparatory meeting was reasonable and not a basis
for compensable delay claim. Subsequently, the Board
denied the Government's motion for partial
reconsideration.
In
L.S. Black-Loeffel Civil Constructors JV, the ASBCA
granted the Government's motion for summary judgment on all
of the contractor's claims because: (i) the contract's
specifications regarding a thermal break were performance
rather than design specs and, therefore, were not amenable
to a defective specifications claim; (ii) the Government
responded to each of the contractor's multiple submissions
of its thermal control plan within the time required by the
contract and with a facially reasonable basis for rejecting
them and, thus, did not compensably delay the work; (iii)
delays associated with the installation of armor plate were
concurrent with delays in providing an acceptable thermal
control plan; (iv) the contractor's differing site
conditions claim should be rejected because the documents on
which it relied were not meant to represent the conditions
the contractor should be expected to encounter, and weather
is not a differing site condition; (v) there was no basis
for the contractor's repackaging of its other claims as one
of breach of the implied duty of good faith and fair
dealing; and (vi) because the specs were performance specs,
they could not give rise to a claim of failure to disclose
superior knowledge.
In
Superior Maritime Services, Inc., the ASBCA held that: (i)
the Government was responsible for the contractor's costs
incurred as a result of the Government's actions delaying
delivery of a fuel pod to the point for loading cargo and,
when read as a harmonious whole, the contract did not
preclude the contractor's recovery; and (ii) claimed delays
were not caused by the contractor's business decision to
follow instructions from an unauthorized shipper who was not
a party to the contract.
In
CB Portable Toilet Rental and Services, which involved
only entitlement to various claimed costs associated with a
termination for convenience, the ASBCA: (i) dismissed the
contractor's breach of warranty argument because it had not
previously been presented to the Contracting Officer for a
decision; (ii) held that the termination for convenience,
itself, which was specifically allowed by the contract, did
not breach the implied duty of good faith and fair dealing;
and (iii) found that, because the Government had changed the
contract to add work, the contractor's termination for
convenience claim amount was not limited to the items of
work stated in the original contract. |
|
September 7 |
In
Air Borealis Limited Partnership, an unsuccessful
post-award protest involving a solicitation for fixed-wing
airlift support services to transport personnel and cargo
across the North Warning System in the Canadian Arctic, the
Court of Federal Claims held, inter alia, that: (i)
the agency had a rational basis for concluding that,
although lengthy, the protester's transition plan lacked the
details required by the solicitation, and the agency had not
evaluated the transition plans of the protester and awardee
disparately; (ii) although the evaluation of the protester's
zone coverage proposal was flawed, the protester was not
prejudiced because there were valid reasons for
disqualifying the proposal due to deficiencies in its
transition plan; (iii) under Blue & Gold Fleet, the
protester failed to timely protest the role of Canadian
Commercial Corporation (CCC) in "endorsing" the apparently
successful Canadian offeror; and (iv) the agency's actions
in obtaining the CCC's endorsement and running contract
payments through the CCC complied with the applicable DFARS
regulation (225.870-3(b)). |
|
September 6 |
In
South Texas Health System, the CBCA decided what it
construed to be the Government's motion for summary
judgment, holding that: (i) the contractor's failure to
exhaust a permissive administrative remedy (which
had been added to the contract by a unilateral mod) before
appealing did not bar the contractor's claim; (ii) a
bilateral release of claims "which were or which
could have been asserted in [prior docketed CBCA appeal]"
limited the release in a way that did not apply to the
contractor's current claims despite very broad language
concerning coverage contained elsewhere in the release;
(iii) the Board would not opine whether the release
constituted an accord and satisfaction defense, which is
separate from a release argument, because the Government did
not raise it in its briefing, and, therefore, the contractor
did not have an opportunity to respond to it during
briefing; but (iv) certain individual claim items were
barred by the CDA's limitations period because, pursuant to
FAR 33.201, they had accrued more than six years before the
claim was filed. |
|
September 5 |
The DOL is proposing to revise its acquisition regulations
(DOLAR)
in their entirety to update and streamline agency
procurement regulations consistent with the Federal
Acquisition Reform Act and FASA in order to remove
provisions that are redundant or obsolete and codify the use
of certain contractual provisions that DOL has developed and
deployed in recent years in order to put potential
contractors on notice of these provisions and to formalize
their usage, including provisions relating to: government
property, continuity of operations, system requirements,
records management, telework policy for contractor
personnel, submission of invoices, mandatory training for
contractors, OCIs, and changing the scope of a contract. The
proposed revisions also remove provisions in the current
DOLAR that are DOL internal operating procedures, which need
not be published in the C.F.R. in order for them to take
effect. The current DOLAR supplements the FAR to address
matters specific to the DOL relating to its procurement of
goods and services. It also includes certain rules governing
private entities doing business with DOL. Comments are due
by November 6.
Effective October 1,
a final rule modifies the Department of Education
Acquisition Regulation (EDAR) to revise aspects of those
regulations that are out-of-date or redundant with other
Education Department policies and procedures and to
accurately implement the current FAR and Department
policies. |
|
September 4 |
In
Harmonia Holdings Group, LLC, an unsuccessful post-award
protest, the Court of Federal Claims held, inter alia,
that: (i) there was a rational basis for the agency's
decision to assign the protester a low confidence rating for
its technical approach and assign it risk for reduced
capacity because the protester
failed to explain why
its staffing proposal was less than the agency's staffing
estimate; (ii) it was arbitrary and capricious for the
agency to assign a separate "Decreases Confidence" rating
for protester's failure to include a QA role because the
agency failed to consider an important aspect of the problem
(the protester's substitution of a QA specialist with a
full-stack developer, which allowed the proposed team to
perform the required automated regression testing and other
QA tasks); (iii) although there was a rational basis to
assign "Decreases Confidence" to the protester's proposal
for failure to utilize current employees as key personnel,
the agency did not apply that same standard to other
proposals; but (iv) the latter two errors did not the
prejudice the protester (i.e., correcting them
would not change the final outcome).
In
Paradyme Management, Inc., another unsuccessful post-award
protest, the court held that: (i) there was a rational basis
for the agency's conclusion that the awardee's revised
mitigation plan for an alleged impaired objectivity OCI
related to a task to recommend test tools was adequate in
that it assigned evaluation work to firewalled
subcontractors and removed the awardee's own products from
those to be evaluated; and (ii) the Contracting Officer had
a rational basis for determining that the OCI (a) was not a
"significant" one under FAR 9.506(b), and, thus, (b) did not
require the Contracting Officer to jump through extra hoops
to address it. |
|
September 1 |
In
TekSynap Corp., an unsuccessful post-award protest, the
Court of Federal Claims allowed supplementation of the
record with depositions necessary for review of the
protester's claim of material misrepresentation and then
held that: (i) the use of the phrase "Proposal Manager"
rather than "Program Manager" in one of the awardee's key
personnel resumes was a typographical error, not a
misrepresentation; (ii) the statement that the awardee's
President would step down to perform as program manager once
the contract was awarded was not a misrepresentation but was
an accurate description of the awardee's plan; (iii) the
protester did not show that the methodology the agency used
to conduct the price realism evaluation failed to take
account of relevant information, relied on irrational
assumptions, or resulted in critical miscalculations; (iv)
the agency did not mislead the protester during discussions
by revealing that certain of its proposed rates appeared too
low; and (v) the agency did not conduct unequal discussions
with the competitors. |
|
August 31 |
In
DigiFlight, Inc., an unsuccessful, scattershot, post-award
protest of a task order awarded to a BPA holder, the Court
of Federal Claims held, inter alia, that: (i) the
protester offered no support for its contentions that the
agency failed to assign various strengths to its proposal,
beyond expecting the court to reevaluate on its own; (ii)
the DFARS debriefing requirement that the protester claimed
the agency violated was not adopted until well after the
solicitation was issued and was not made retroactive; (iii)
the evaluated technical differences between the competing
proposals were significant and had rational bases, which
left price as the least important evaluation factor; and
(iv) the regulations concerning BPAs did not render the
successful offeror ineligible for award. |
|
August 30 |
In
Syneren Technologies Corp., et al., the Court of
Federal Claims denied the applications of three consultants
working for one of the protesters for admission to the
protective order in the case because, inter alia,
the record and issues raised by the protester were not
sufficiently technical as to require review by expert
consultants in order to effectively represent the
protester's position, especially given the increased risk of
inadvertent disclosure of proprietary information raised by
the additional applications.
In
ECC CENTCOM Constructors, LLC, the court held that the
doctrine of claim preclusion entitled the Government to
summary judgment as to the contractor's claims that were
previously decided by the ASBCA (and affirmed by the CAFC)
as well as claims that could have presented to the
Contracting Officer and decided at the Board along with the
claims previously decided there. |
|
August 29 |
In
Paul Schmidt d/b/a Patco Realty, the PSBCA dismissed the
contractor's appeal as moot after the city refunded the Use
and Occupancy tax payments the contractor had made and then
had attempted to obtain reimbursement for from the Postal
Service.
Since the CDA was enacted, I've been fussing
about the fact that the CDA does not define a claim, which
meant it was left to the FAR to do so and which has resulted
in 40 years of litigation over various issues related to the
FAR's definition of a claim. Most recently, in
ECC Int'l Constructors, LLC, the Court of Appeals for the
Federal Circuit, in reversing a
prior ASBCA decision, held that the CDA's sum certain
requirement is not a jurisdictional issue because, inter
alia, that requirement was not mentioned in the statute
itself. It remains a nonjurisdictional requirement,
but the the Government may forfeit its right to object if
it waits too long to raise the lack of a sum certain as a
defense:
To summarize, it is mandatory for a party submitting a claim
under the CDA seeking monetary relief to include a sum
certain indicating for each distinct claim the specific
amount sought as relief. A claim that does not state a sum
certain has not sufficiently pleaded the elements of a claim
under the CDA and may be denied by the contracting officer
and dismissed on appeal to the boards or Court of Federal
Claims for failure to state a claim. If a party challenges a
deficient sum certain after litigation has far progressed,
however, that defense may be deemed forfeited. . . . For the
foregoing reasons, the requirement to state a sum certain in
submitting a claim under the CDA is a mandatory,
nonjurisdictional requirement subject to forfeiture.
|
|
August 28 |
In VSBC Protest
of Beshenich Muir & Associates, LLC & ELB Services LLC,
the SBA's OHA held that, although a member of a joint
venture had established that it was an SDVOSB, the joint
venture's operating agreement failed to comply with
applicable regulations in several respects: (i) it did not
name a specific individual as the responsible manager; (ii)
an attachment purporting to fulfill the requirement to
itemize all major equipment, facilities, and other resources
to be furnished by each party to the joint venture was not
made part of the record; and (iii) the agreement failed to
specify the responsibilities of the parties with respect to
the negotiation of the contract, source of labor, and
contract performance.
In VSBC
Protest of New Directions Technologies, Inc., the
OHA held that the non-SDV member of a JV had negative
control over the JV's daily management and operations.
In VSBC Protest
of U.S. Department of Veterans Affairs, the OHA
held that a JV agreement did not specify the
responsibilities of each member with regard to contract work
and gave the non-SDV member negative control through its
right to hire and fire employees and other HR
responsibilities.
In VSBC
Protest of Billet Industries, the OHA held that the
SDV partner of a firm did not control its operations because
the firm's agreement gave both partners an equal voice.
In VSBC Appeal of
Better Metal, LLC, the OHA held that a firm
initially failed to timely file its appeal petition to the
correct address, and its corrected filing was untimely.
In
VSBC Appeal of Vetted Medical Supply LLC, the
OHA dismissed an appeal because an email to the OHA did not
satisfy the requirements for an appeal petition, and the
appellant subsequently failed to respond to an order
directing it to correct the deficiencies and serve the
corrected document on all parties.
In
Size Appeal of Daniels Bldg. Co., the OHA held that
a typographical error in the agency's original written
notice of the apparently successful bidder did not excuse a
firm's failure to protest the winner's size within five days
of bid opening, especially where the firm had attended the
bid opening and could readily identify the low bidder.
In
Size Appeals of Apogee Group, LLC, and RPM Partners, LLC,
the OHA denied consolidated size protests because the
protested small business prime could delegate most
responsibilities in a construction contract so long
as it maintained management and portfolio oversight. |
|
August 27 |
In
StructSure Projects, Inc., the ASBCA held that, although
the Government's closing of a base to a construction
contractor due to COVID was a sovereign act, the Government
still had to reimburse the contractor for temporary
facilities that, pursuant to a separate CLIN in its
contract, the contractor had installed prior to the closing
and which the Government continued to use during the
shutdown.
In
Sheffield Korte Joint Venture, the ASBCA held that: (i)
under the "Permits and Responsibilities" clause, the
contractor not entitled to extra compensation for costs of
fulfilling permitting requirements imposed by third party
state and local governments where the contract contained
only performance specs; (ii) the contractor presented no
evidence that the Government had misrepresented the
permitting requirements; and (iii) unilateral mods that the
contractor had refused to accept did not operate as an
accord and satisfaction preventing the Government from
recouping amounts erroneously paid to the contractor under
those mods. |
|
August 24 |
In
The Kace Co., an unsuccessful preaward protest against the
rejection of the plaintiff's revised proposal submitted via
email minutes late during corrective action, the Court of
Federal Claims began its decision with this summary of its
rationale: "This case is governed by two maxims: 'Late is
Late' and 'Rules are Rules.'" The court held, inter alia,
that the "otherwise successful offer" exception to the late
is late rule did not apply because the agency had canceled
the original award to the plaintiff and then undertaken
corrective action, including modifying the solicitation
(this modification also being the reason why the agency did
not go back and accept the plaintiff's original offer when
its revised offer was late). |
|
August 23 |
In
Kloepfer Inc., which basically involved a poor job by
the contractor in pleading its case on appeal, the CBCA held
that the contractor had failed to allege the elements
required for either a type I or a type II differing site
condition and that the presence of rock at the site was not
unusual or unexpected and was foreseeable given specific
indications in the solicitation.
In
The GEO Group, Inc., which involved contract
interpretation, the CBCA held that a contract to provide and
operate prison facilities unambiguously required use of a
specified monthly ramp down price when inmates were being
transferred upon expiration of the contract, whenever that
occurred, and not, as the appellant contended, only at the
end of the last possible (5th) option year.
In
Compendium International, Inc., the CBCA held that the
contractor's execution of a release and final payment barred
subsequent claims that had not been submitted prior to that
time or reserved in the release.
In
F.H. Cann & Assocs., the CBCA dismissed the
Government's affirmative counterclaim for unjust enrichment
because it was contingent, alleging only what would happen
if the contractor's claim were sustained on appeal, but also
held that the Government could continue to allege unjust
enrichment as a defense to the contractor's claim.
In
OST, Inc., analyzing the Government's motion for summary
judgment, the CBCA held, inter alia, that: (i) a
statement of the amount of G&A that the contractor would
invoice for if the agency would approve its claim was
sufficient as a sum certain; (ii) the contractor was
reasonable in assuming invoices not in dispute when its
original claim was submitted had become disputed by the time
of its second claim due to the Government's failure to pay
them in the interim; (iii) the contractor's breach claim
should be limited to amounts stated in invoices that the
Government had refused to pay and could not include amounts
never submitted to, or rejected by, the Government; (iv) the
contractor failed to provide the required notice under the
"Limitation of Funds" clause for a three-year period and no
exceptions to that notice requirement applied in this case;
(v) for purposes of the CDA's six-year limitations period,
the contractor's claims accrued when the contractor should
reasonably have known that its subcontractor was under
billing; and (vi) the subcontract was an illegal
cost-plus-percentage-of-cost contract, limiting the
contractor to quantum meruit recovery. |
|
August 22 |
The GAO sustained a protest by
MANDEX, Inc., alleging OCIs because: (i) in evaluating
whether the awardee had an unequal access to information OCI
as a result of its work on another task order, the agency
concluded only that the awardee had not had time to obtain
such information rather than evaluating whether the
awardee's employees had access to such information; and (ii)
despite a post-award modification of the PWS to address the
issue, the awardee's work on a second task order included
the evaluation of its work on the challenged task order and,
therefore, created the potential for an impaired objectivity
OCI.
In
Piedmont Propulsion Systems, LLC, a successful preaward
protest, the Court of Federal Claims held that the
solicitation requirement that awardee be either the OEM or
licensed by the OEM to supply the contract items unduly
restricted competition because the agency did not know what
benefits licensing provided without relying on statements
from the OEM and did not obtain information from the OEM
clearly indicating that licensing was required to meet the
agency's minimum needs. |
|
August 21 |
In
Platinum Services, Inc., the Court of Federal Claims
denied cross motions for summary judgment because neither
party was entitled to utilize rates different from those
specified in the contract. |
|
August 17 |
In
Rotair Aerospace Corp., a preaward protest against a
proposed sole source contract, the Court of Federal Claims
denied the plaintiff's request to supplement the
administrative record with prior contracts and
specifications relating to the manufacture of the arm
assembly being procured for the Apache military helicopter
because those documents were not necessary for effective
judicial review of the protest grounds.
On the
other hand, in
Bear Mountainside Realty LLC, a protest challenging the
cancellation of a lease procurement, the court granted
portions of the plaintiff's request to further supplement
the administrative record because prior documents received
by the plaintiff in discovery could be evidence of the
agency's animus toward plaintiff and the pretextual basis
for the cancellation.
DFARS Case: 2022-D006: A final rule amends the DFARS to
implement section 803 of the NDAA for FY 2022, which
modifies 10 U.S.C. 2380c (redesignated as 10 U.S.C. 3458) to
give DoD the authority to acquire innovative commercial
products and commercial services through a competitive
selection of proposals resulting from a general solicitation
and the peer review of such proposals. Section 803 of the
NDAA for FY 2022 also repealed section 879 of the NDAA for
FY 2017, which authorized a pilot program providing the same
authority for a limited period of time. In addition, section
814 of the NDAA for FY 2023 amended 10 U.S.C. 3458 by
striking ‘‘fixed-price incentive fee contracts’’ and
inserting ‘‘fixed-price incentive contracts," and this
final rule incorporates this statutory amendment. |
|
August 15 |
In
MECTS Services Joint Venture, the ASBCA dismissed (as
untimely) an appeal filed by a joint venture more than 90
days after one of the contractor's representatives (the CEO
of one member of the joint venture) received the Contracting
Officer's decision by certified mail, even though copies of
the decision mailed to two other representatives of the
contractor were returned as undeliverable, and the agency
subsequently sent copies by email several weeks later, which
the contractor had appealed within 90 days of their receipt.
In
Allard Nazarian Group, Inc., dba Granite State Manufacturing,
the ASBCA held that (pursuant to FAR 16.307(g), the
Government's deductions from fixed hourly rate
labor charges under an IDIQ contract due to the
contractor's alleged failure to submit auditable final
indirect cost rate proposals for certain fiscal years as
required by FAR 52.216-7 (which allegedly left the
Government unable to verify amounts invoiced by the
contractor for those periods of time) were impermissible
because FAR 16.307(a), authorizes such deductions only from
material charges. Subsequently, the Board
denied the Government's motion for partial
reconsideration. |
|
August 14 |
In
AccelGov, LLC, the Court of Federal Claims held it had
jurisdiction over challenges to the Government's intended
corrective action without waiting to see the corrective
action's results.
In
THE CENTECH GROUP, Inc., the court denied the Government's
motion to dismiss a complaint alleging non-payment for
certain items purchased by sub with the Government's
approval because the alleged damages were fairly traceable
to the alleged breaches by the Government and were not so
remote as to lack a causal connection. |
|
August 11 |
The ASBCA held it lacked jurisdiction over the appeal of
LR General Solutions, LLC, because even if the
contractor's termination settlement proposal could be
considered a claim, there was no signature attached
to the otherwise correctable certification. |
|
August 10 |
In
OSC Solutions, Inc., the ASBCA held it lacked CDA
jurisdiction over issues arising under a BPA (and unrelated
to the underlying Schedule contract) because a BPA is not a
contract.
FAR Case 2020-005: A proposed rule would amend the FAR
to implement section 874 of the NDAA for FY 2020, which, for
task orders or delivery orders exceeding the simplified
acquisition threshold but not greater than $6 million,
requires contracting officers to provide, upon written
request from an unsuccessful offeror (aka unsuccessful
awardee), a brief explanation as to why the offeror was
unsuccessful, including the rationale for award and an
evaluation of the significant weak or deficient factors in
the offeror’s offer. Comments are due by October 10.
Federal Acquisition Circular (FAC)
2023-05 has been published and includes the following
items.
FAR Case 2017-014: Effective September 22, a final rule
amends the FAR to encourage use of voluntary feedback
mechanisms, where appropriate, to support continual
improvement of the acquisition process.
FAR Case 2023-004: Effective September 7, a final rule
amends the FAR,
inter alia, to implement regulatory changes made by
the SBA in its interim rule published on November 17, 2022
(at 87 FR 69118), which adjusted for inflation the net worth
threshold for an individual to be eligible as an owner of a
small disadvantaged business concern from $750,000 to
$850,000. To do so, this rule updates this threshold to
reflect a reference to SBA’s regulations at 13 CFR
124.104(c)(2), which is used in the definition of "small
disadvantaged business concern," in the FAR.
FAR Case 2022-008: Effective September 7, a final rule
amends the FAR to update the contact information, web
addresses, and office titles necessary to obtain federal and
Defense specifications and standards from the DoD
Acquisition Streamlining and Standardization Information
System (ASSIST) website or, for Defense documents not
available in ASSIST, the Defense Standardization Program
Office. This final rule also adds a reference in part 53,
Forms, to the American National Standards Institute (ANSI)
Z39.18, Scientific and Technical Reports—Preparation,
Presentation, and Preservation, with the prescription for
the Standard Form 298, Report Documentation Page. |
|
August 9 |
The GAO sustained a protest by Unico
Mechanical Corp. because: (i) the agency unreasonably
granted the awardee's request for a waiver of the Buy
America Act on the basis that the pricing of the allegedly
sole domestic supplier was unreasonable without including
the protester in the market survey or requesting pricing
information from the protester, when the agency, itself,
recognized that the protester was also a domestic supplier
of the items in question; and (ii) the agency's assignment
of weaknesses to the protester's work plan was unreasonable
because (a) the protester's proposal of a 30-day review
period for submittals exactly coincided with the time period
that the solicitation stated would be "adequate," and (b)
the protester's proposal described the required coordination
between its staff and the agency's staff, and there was no
evidence in the record that the agency had considered that
information. |
|
August 8 |
In NAICS Appeal
of Laredo Technical Services, Inc., the SBA's OHA
held it lacked jurisdiction over an appeal alleging that the
Contracting Officer had erred in conducting an RFQ for a BPA
under a MAC whose only NAICS code was not appropriate for
the BPA. |
|
August 7 |
In
VSBC Appeal of Horizon Marketing, Inc., the
SBA's OHA affirmed the SBA's denial of a firm's
certification as an SDVOSB because: (i) a non-veteran had
the power to exert negative control over the firm; and (ii)
the 51% ownership interest was held by a Trust rather than
by the SDV. |
|
August 5 |
In
Primary Rate, the CBCA dismissed an appeal for lack of
jurisdiction because a letter merely asking the Contracting
Officer to reevaluate the acceptability of certain rejected
items was not a claim, even though the Contracting Officer
had issued a decision denying the request. |
|
August 4 |
In
Beacon Point Assocs. LLC, noting that a quote in
response to an RFQ is not an offer that the Government may
accept (instead, the Government's order following an RFQ is
an offer that the quoter may accept), the CBCA dismissed an
appeal alleging the Government failed to comply with certain
terms in the appellant's quote because those terms were not
incorporated in the order. |
|
August 3 |
FAR Case 2022-006: A proposed rule would amend the FAR
to restructure and update the regulations to focus on
current environmental and sustainability matters and to
implement a requirement for agencies to procure sustainable
products and services to the maximum extent practicable.
Comments are due by October 2. |
|
August 1 |
In
HPM Corp., the CBCA held that: (i) it had jurisdiction
over nonmonetary contract interpretation claims whose
resolution could affect performance of the contract; but
(ii) the claims in this case must be dismissed because (a)
the contract did not mandate that the parties engage in
mediation if one party requested it, and (b) absent an
allegation that the Government had employed chicanery, the
fact that it had engaged in negotiations with plaintiff
satisfied the requirement for good faith negotiations, and
nothing in the contract compelled the Government to reach an
agreement with the contractor in those negotiations. |
|
July 31 |
In
Facility Defense Consultants, Inc. dba Hanke Constructors,
the CBCA held that a bilateral modification, including
release language and accompanying emails, clearly was
intended to resolve all the contractor's claims for "scope
creep," which were, therefore, denied.
In
Adventus Technologies, Inc., the CBCA held that: (i) the
contractor's execution of a release of contractor claims did
not cover government claims so the contractor was free to
continue to defend against a termination for cause; (ii) the
Government acted appropriately in applying FAR 52.212-4 to a
contract for commercial janitorial services; (iii) the
failure to provide required janitorial services for
significant periods of time constitutes default; and (iv)
the contractor failed to provide evidence that its default
was excused by its inability (due to COVID) to hire a
replacement worker for the one who quit; and (v) the failure
to respond to cure notice was alternate adequate grounds for
termination. |
|
July 29 |
The SBA proposes
to amend its small business size regulations to increase
the alternative size standard for its 7(a) Business and
Certified Development Company Loan Programs by 34.46% to
account for inflation that has occurred since the size
standard’s establishment in 2010. The inflation adjustment
would increase the size standard’s level for tangible net
worth to $20 million and for net income to $6.5 million. SBA
also is adjusting for inflation the applicable statutory
limits for contract size under the Surety Bond Guarantee
Program. The adjustment would increase the contract limit to
$9 million and to $14 million for Federal contracts if a
federal contracting officer certifies that such a guarantee
is necessary. Comments are due by September 26. |
|
July 28 |
In VSBC Appeal of
Tree Services, Inc., the SBA's OHA held that the
SBA had prematurely denied a firm's application for
certification as a VOSB before the deadline the SBA had
given the firm to provide additional documentation.
In
VSBC Appeal of Veterans Constr. Midwest Corp.,
the OHA held that pursuant to 13 C.F.R § 128.202(i)(2)(iii),
a firm was no longer eligible as an SDVOSB because it had
been 10 years since the SDV had died and his surviving
spouse had functioned as principal/President. |
|
July 26 |
In
Goodloe Marine, Inc., the ASBCA denied the agency's motion
to dismiss an appeal for failure to comply with the
requirement in FAR 52.214-2 (the "Suspension of Work"
clause) that claims be submitted as soon as practicable
after a suspension is lifted because, although a claim
submitted almost six years after a suspension was lifted was
clearly not within the time limit of the clause, there was
no evidence of prejudice to the Government from the delay.
The Board said it was saving for another day the argument
that FASA's six-year limitations period overrides any
shorter limitations periods in a contract.
In
Sungjee Constr. Co. Ltd., the ASBCA upheld a default
termination for failure to complete the contract by the last
of several extensions established by bilateral mods, finding
there was no excusable delay because: (i) the contractor
failed to timely request gate passes and often failed to
provide required information with its applications for
passes; (ii) the contract specialist who sent an email
requiring a suspension of work lacked the authority to do
so, and the contractor would not have completed the work on
time in any event; and (iii) there was no evidence that
changes in the Government's personnel delayed the contractor
or prevented it from working. |
|
July 25 |
In
Washington River Protection Solutions LLC, which
involved costs challenged by the Government under a CPFF
contract, the CBCA held that, under FAR 15.4041, the
contractor had established that the disputed costs for all
but one of thirteen "staff augmentation" (i.e., temporary)
workers were reasonable.
In
GC Works, Inc., an appeal processed under the small
claims procedure and, therefore, lacking precedential value,
the CBCA held that the contractor was entitled to some
compensable delay for a changed condition when the bolt
locations in the submerged portion of a gate did not match
those in contract drawings, but not to the extent: (i) such
work would still have been required if the bolts had been in
the correct locations; and (ii) the contractor was able to
continue other work during the period when the bolt issue
was being resolved or delayed the work, itself. |
|
July 24 |
In
Harmonia Holdings Group, LLC, an unsuccessful post-award
protest seeking a preliminary injunction, the Court of
Federal Claims held that: (i) the plaintiff filed suit
within a reasonable time after learning of its grounds so
the suit was not barred by laches; (ii) the agency properly
documented every step in its evaluation; (iii) the agency
applied evaluation criteria intrinsic to the announced
factors, not unstated factors; and (iv) there were rational
bases for the agency's assignments of weaknesses to the
protester's proposal.
In
PredictiveIQ LLC, an unsuccessful protest seeking a
preliminary injunction against the agency's decision to lift
the stay on awards not related to plaintiff's GAO protest in
an SBIR procurement contemplating multiple awards for
individual funding agreements, the court held that: (i) each
SBIR award is a separate procurement under the FAR, and,
thus, the agency did not violate CICA by staying only awards
that related to the GAO protest; (ii) the agency preserved
funding for the awards related to the GAO protest in case
plaintiff were to win there, thus eliminating the
possibility of irreparable injury to the plaintiff; and
(iii) the alleged competitive disadvantage to the plaintiff
from the agency's decision not to stay some of the awards
was too speculative to constitute irreparable harm.
Subsequently, the plaintiff's motion for consideration was
denied. |
|
July 21 |
In
KPMG LLP, a successful post-award protest, the Court of
Federal Claims held that when an offeror learned, after
proposal submission, but prior to award, that one of its
proposed key personnel intended to resign and notified the
agency of this fact while continuing to attempt to change
the employee's mind, the situation did not constitute the
unavailability of that individual that would render the
proposal unacceptable.
In
AccelGov, LLC and SI-Markon JV, LLC, the court denied
the Government's motion to dismiss consolidated protests
based on the Government's intention to take corrective
action because the proposed corrective action was only
vaguely described and did not clearly moot the plaintiff's
concerns with the procurement. |
|
July 20 |
In
CACI, Inc.--Federal, the Court of Federal Claims held that
there were rational bases for both (a) the agency's process
of investigating a conflict of interest, including notifying
the protester of the agency's concerns, and permitting the
protester to respond, and (b) the agency's decision to bar
the protester from a competition due to an unfair
competitive advantage stemming from the protester's use of
a former agency official involved with the program to help
prepare its offer.
DFARS CASE 2023-D005: A final rule amends the DFARS to
implement a section of the NDAA for FY 2023 that adds New
Zealand to the definition of the national technology and
industrial base.
DFARS Case 2017-D028: A final rule amends the DFARS to
implement section 846 of the NDAA for FY 2017 that repealed
provisions related to major automated information systems.
DFARS Case 2022-D009: A final rule adopts, with changes,
the prior interim rule amending the DFARS to implement
section 802 of the NDAA for FY 2022 that restricts the
acquisition of personal protective equipment and certain
other items from the Democratic People’s Republic of North
Korea, the People’s Republic of China, the Russian
Federation, and the Islamic Republic of Iran.
DFARS Case 2020-D017: A final rule amends the DFARS to
implement section 853 of the NDAA for FY 2020 that requires
certain auxiliary ship components to be procured from a
manufacturer in the national technology and industrial base. |
|
July 19 |
In
The Government of Greece Hellenic Air Force, where a claim
had accrued when the Government repeatedly gave the
contractor notice that an LOA on which the claim was based
had closed, there were no grounds for accrual suspension,
and the Court of Federal Claims lacked jurisdiction over a
suit on the claim filed more than six years later.
The SBA has issued
a final rule that adopts, without change, three interim
final actions dated November 17, 2022, that adjusted
monetary-based industry size standards (i.e., receipts- and
assets-based) for inflation: (i) an additional 13.65 %
inflation increase to the industry-based monetary small
business size standards to account for the inflation that
occurred since the last adjustment to size standards for
inflation in 2019; (ii) inflation adjustments to three
program-specific monetary size standards (the size standards
for sales or leases of government property, the size
standards for stockpile purchases, and the alternative size
standard based on tangible net worth and net income for the
SBIC program; and (iii) inflation adjustments to the
economic disadvantage thresholds applicable to the 8(a)
Business Development and Economically Disadvantaged
Women-Owned Small Business programs, and the dollar limit
for combined total 8(a) contracts. |
|
July 17 |
In
Slone Assocs., Inc., the Court of Federal Claims decided a
slew of issues concerning multiple claims by a contractor
employed to repair a concrete dock at a Navy shipyard,
holding, among many other things, that: (i) submerged piles
of timber and buried riprap did not constitute a Type 1
differing site condition (because the fact that they were
not mentioned in contract documents was not an affirmative
representation that they did not exist) or a Type 2
differing site condition (because the plaintiff did not
prove those items differed materially from conditions
ordinarily encountered and generally recognized as inhering
in work of the character provided in the contract, in this
case underwater construction tasks, including pile driving)
and, in any event, the plaintiff did not establish that
damages to its structures were caused by the submerged
items; (ii) the court lacked jurisdiction over a superior
knowledge claim not previously presented to the Contracting
Officer for a decision because it was materially different
from the differing site conditions claims; (iii) the
Government's change to the sequence of work was not shown to
have caused the contractor to incur costs beyond those it
would have incurred without the change; and (iv) the
Government's failure to compensate the contractor did not
breach the implied duty of good faith and fair dealing
because the Government had promised reimbursement only "if"
its actions caused the contractor's extra costs, which they
did not. The court also decided various quantum issues on
other claims brought by the contractor. |
|
July 14 |
Although
Federal Information Systems, Inc. lost on all but one of
its many GAO protest grounds, it only takes one to win, and
the GAO held that the agency's assignment of a "good" rating
to the awardee's technical proposal lacked a rational basis
because the agency, itself, had concluded that the awardee's
proposed labor categories did not meet the requirements of
the SOW.
Likewise,
MPZA, LLC, lost on two of its three protest grounds, but
came out a winner anyway because the GAO determined that
there was no documentation of the agency's price realism
analysis to enable the GAO to determine that it was
reasonable.
RTD Middleburg Heights, LLC won its GAO protest because:
(i) there was no explanation in the record for the agency's
failure to include relocation and replication costs in the
price evaluation despite the fact that the solicitation
contemplated the agency would do so; and (ii) there was no
evidence in record supporting the agency's bare contention
that an admitted error in evaluating certain costs would not
have affected outcome. |
|
July 13 |
In Gilbert
Solutions, LLC, a decision without precedential value
under Board Rule 12.2, the ASBCA held that it lacked
jurisdiction over an appeal from a termination for cause
because the contract was
void ab initio
due to the firm's material misrepresentation in its bid that
it could timely supply the brand of trailers it had bid.
In American
Technical Services, Inc., another decision under Board
Rule 12.2, the ASBCA: (i) dismissed an appeal of a
government claim because the Contracting Officer had
rescinded it; (ii) denied the contractor's claim for a fixed
fee because the contractor already had been paid more than
the fee allowed by the contract; and (iii) held that,
although the contractor's claim for overhead and G&A had
been adequately noticed in its submission to the Contracting
Officer, survived the Contracting Officer's rescission of
the Government's claim, and was not barred by the six-year
limitations period, it failed for a complete lack of proof
beyond its statement in a disputed invoice. |
|
July 11 |
In
Vectrus-J&J Facilities Support, LLC, an unsuccessful
protest of the agency's decision not to expand the scope of
corrective action in response to an agency protest, the
Court of Federal Claims held that: (i) the awardee did not
make misrepresentations concerning the contents of a
novation package and its status at the time the awardee
submitted its proposal; (ii) the agency properly credited
the awardee with the past performance and experience of a
predecessor firm that became awardee's subsidiary only after
the projects that were credited to the awardee had
transpired; (iii) nothing in the FAR prohibited the agency
from treating a firm as a predecessor of the awardee or from
considering its projects as "reasonably predictive" under
the solicitation's evaluation scheme; (iv) the conclusion
that the predecessor's contracts were reasonably predictive
of the awardee's ability to perform the current contract was
properly based on a finding that the predecessor had
transferred its assets and nearly all employees involved in
performing those contracts to the awardee; and (v) there was
no prejudice to the protester from the limited scope of the
second corrective action.
The GAO has published two
decisions, each involving consolidated protests, sustaining
a total of 91 (!) protests complaining of (a) the
elimination of proposals in Phase 1 of the CIO-SP4
competition and (b) the failure to advance those proposals
to phase 2. Basically, the GAO found that the agency did not
provide a rational explanation for how it validated the
competitors' self scores and how it established the cutoff
point for the self scores needed to advance in the
competition. Here are links to each of the decisions:
27
consolidated protests filed without outside counsel and
64
consolidated protests filed by attorneys. This
procurement is the biggest debacle I have seen in 45+ years
of practicing government contracts law. I've lost count of
how many times the agency has been sent back to the drawing
board on this one. What a mess.
TRAX Int'l Corp
won its GAO protest because: (i) the awardee was ineligible
for award because it failed to provide its own required
disclosure statement; (ii) the evaluation of the awardee's
proposed program management office contained an error of
fact concerning the escalation of labor rates; (iii) the
agency (a) failed to discuss with the protester certain
costs the agency considered unrealistic and (b) conducted a
final round of discussions with the awardee alone; and (iv)
the agency conducted a "fair and reasonable" price analysis
rather than the required cost realism analysis of direct
labor rates. |
|
July 10 |
In Bear
Mountainside Realty LLC, the Court of Federal Claims
allowed limited supplementation of the administrative record
with documents obtained through FOIA concerning the
protester's allegation that an IRS official acted with bad
faith and bias in influencing the GSA to cancel a lease
solicitation. |
|
July 7 |
GSAR Case 2023-G506: Effective August 7, a final rule
amends the GSAR to remove clause 552.232–77 ("Payment by
Government Charge Card"). |
|
July 6 |
In
Bitscopic, Inc., an unsuccessful preaward protest, the
Court of Federal Claims: (i) dismissed (as moot) the counts
in the complaint against the SOW and J&A for a proposed VA
procurement of a brand name item of clinical
surveillance software because the agency had decided to
discontinue the procurement; and (ii) dismissed (for lack of
standing) counts in the Complaint alleging that the VA
should be enjoined from ever procuring the brand
name software because such procurements for the software
will always be set-aside for VOSBs and SDVOSBs under the VA
Rule of Two since there are multiple VOSB and SDVOSB
resellers that can supply the software, and the plaintiff is
neither a VOSB nor an SDVOSB. |
|
July 5 |
In
Chugach Federal Solutions, Inc., the ASBCA held that in a
fixed-rice IDIQ contract requiring unlimited building
maintenance service calls, where, prior to award, the
parties had engaged in extensive discussions concerning
offerors' proposed staffing levels in relation to the IGE
and other offerors' proposed levels, the contractor could
not recover (under theories of superior knowledge, negligent
negotiations, mutual mistake, or constructive change) its
increased staffing costs after its proposed staffing turned
out to be insufficient to timely meet the contract
requirement, but, on the other hand, the contract permitted
the Government to deduct for unperformed work (or work that
could not be remedied), not for late work.
In
RLB Contracting, Inc., the ASBCA held that, in a contract
for dredging work, the assessment of liquidated damages was
proper because the contract permitted them and the
contractor conceded (a) it failed to meet the contract
completion date and (b) the period for which the damages
were assessed was accurate, while the contractor did not
prove excusable delay due to defective specifications,
differing site conditions, or breach of the implied duty of
good faith and fair dealing.
In
Size Appeal of YKJY, LLC, the SBA's OHA held that
an appeal filed at OHAFilings@sba.gov more than 15 calendar
days after the appellant had received its size determination
was untimely even though the appellant timely had
filed copies of the appeal with the other parties. |
|
July 4 |
The
2023 Procurement Review is up. I will, as usual, keep
updating it from now until the end of the year.
The
GAO sustained a protest by
BOF GA Lenox Park, LLC, holding that, in a solicitation
for leased office space in Atlanta: (i) the protester was an
interested party even if its proposal was unacceptable for
failure to comply with the solicitation requirement to
submit evidence of registration in the SAM database because
the agency did not evaluate any proposals besides the
awardee's for technical acceptability; (ii) the awardee did
not satisfy the solicitation requirement for proximity to a
"bus rapid transit stop" because no such stop exists in
Atlanta; but (iii) because the lease signed by the awardee
did not contain a termination for convenience clause, the
protester should only be reimbursed its proposal preparation
and bid protest costs. The GAO noted that none of the
offerors had objected to the rapid transit stop solicitation
requirement despite two rounds of offers in which to do so.
So the timeliness rule that a protester must object to a
flawed (or patently ambiguous) solicitation requirement
prior to submitting its proposal does not apply if none of
the offerors object? |
|
July 3 |
In Size Appeal of
Glacier Technologies, LLC, the SBA's OHA held that
a size protest filed more than five days after the original
announcement of the apparently successful offeror was
untimely even though the agency subsequently took corrective
action that merely suspended performance temporarily rather
than cancelling the award. |
|
July 1 |
Bad news (I think) from the Court of Federal Claims. The
court's
normal web page for listing its decisions has not been
updated in more than two weeks now. Apparently, the court is
replacing that page with a
new page that only lists decisions for the most recent
12 months on a rolling basis. According to the court's
website, court decisions from January 1, 2014 to the present
are now listed on the
GPO's GovInfo website. To make matters even more
complicated, decisions older than January 1, 2014 are listed
as
legacy opinions on the court's own website. Of course,
all I'm worried about is whether my links to the court's
decisions since 2005 will still work. They do at the moment,
but I fear at least some of them will break after this
transition is complete. We shall see. |
|
June 30 |
In
UnitedHealthcare Insurance Co., the CBCA held that: (i)
it had jurisdiction over an appeal involving a contract to
provide health care services to OPM employees because the
contract explicitly stated it was governed by the CDA; and
(ii) a claim for breach of the implied duty of good faith
and fair dealing would not be dismissed because it was based
on essentially the same operative facts as the claim for
breach previously presented to the Contracting Officer for a
decision. Subsequently, the Board
denied the Government's motion for reconsideration.
In
Groundbreaker Development Corp., the Court of Federal
Claims held it lacked jurisdiction over a contractor's
monetary claim arising out of a default termination because
it had not previously been presented to the Contracting
Officer for a decision. |
|
June 28 |
In
Samsara, Inc., an unsuccessful post-award protest, the
Court of Federal Claims held, inter alia, that: (i)
the awardee's participation in a prior pilot program was
like an incumbent's prior performance, which does not give
rise to an OCI and does not require the Government to
neutralize the advantages gained thereby; (ii) there was no
unequal access to information OCI because other competitors
had access to public information that was adequate to
address the solicitation requirement in question; (iii) the
agency took reasonable steps to mitigate any competitive
advantage resulting from participation in the pilot program;
(iv) the mere fact that some selection officials had
participated in the prior pilot program was insufficient to
establish that they were tainted by bias in the absence of
clear evidence of impaired objectivity that was sufficient
to overcome the presumption that government officials act in
good faith; (v) the assignment of a weakness to the
protester's proposal regarding a cable that was not required
until after award was not the use of an unstated evaluation
criterion because the agency could, and did, evaluate the
proposed approach for developing the cable; (vi) the agency
did not apply unstated evaluation criteria in assigning a
weakness for the lack of FedRAMP authorization because,
although such authorization was not required at the time of
award, the solicitation contemplated the agency would
compare an offeror's FedRAMP status against the SOW's
requirements; and (vii) according to the language particular
to this solicitation, the agency was not required to
disclose all weaknesses to an offeror, but any discussions
would only relate to additional information needed by the
agency. |
|
June 27 |
In
TC Port Ybor LLC, LIT Finance III LLC, the PSBCA denied
a motion to consolidate because the Board lacked CDA
jurisdiction over an appeal based on a claim filed by the
former lessor only after the lease had been assigned to
a different entity (albeit an entity closely affiliated with
the former lessor). After the assignment, the former lessor
no longer was a contractor with the Government. |
|
June 26 |
DFARS Case 2023-D006: A final rule implements section
842 of the NDAA for FY 2023, which amends 10 U.S.C.
4022(f)(2) to permit the award of a follow-on production
contract without the use of competitive procedures, even if
an explicit notification was not listed within the request
for proposal for the prototype project transaction.
DFARS Case 2017-D036: A final rule amends Parts 204,
232, and 252 of the DFARS to provide clarifying payment
instructions for certain contracts based on the type of item
acquired and the type of payment.
DFARS Case 2021-D003: A final rule amends the DFARS to
to refine the management of undefinitized contract actions
(UCAs) as recommended in the DoD Inspector General Audit of
Military Department Management of Undefinitized Contract
Actions (Report No. DODIG–2020–084). |
|
June 22 |
In
Amatea/Grimberg JV, which involved numerous construction
contract claims, the ASBCA held, inter alia, that:
(i) subsurface soil conditions encountered by the
contractor were not a differing site condition because the
boring logs in the solicitation did not constitute a
guarantee that all the soil at the site would be the same as
that encountered in the bore holes, and the contractor's own
consultant warned of the wet soil conditions the contractor
subsequently complained of; (ii) the Government did not
breach the implied duty of good faith and fair dealing by
failing to permit the contractor as much after hours and
weekend work as it requested because the contract gave the
Contracting Officer discretion in this area and there were
rational bases for the Contracting Officer's determinations
on this issue; (iii) the flow rate encountered at the site
was a differing site condition because it differed from the
rate identified in the solicitation, but the contractor was
still required to present adequate proof for each of various
impacts it claimed based upon that site condition; and (iv)
various delay and acceleration claims were hampered by fact
that the contractor did not present testimony from a
scheduling expert (while the Government did) and did not
present significant other evidence concerning the impact of
the alleged delays on the critical path.
In
Honeywell International, Inc., the ASBCA denied the
contractor's motion to dismiss (for failure to state a
claim) the Government's claim that, under CAS 410, it had
reimbursed the contractor for more than its fair share of
the contractor's G&A costs because, inter alia,
there were factual issues yet to be resolved, and the
Government had presented plausible arguments that the
contractor's discretion with regard to disputed costs it had
transferred was not as broad as the contractor alleged.
In
Crowley Government Services, Inc., the ASBCA denied the
Government's motion to dismiss the appeal for lack of
jurisdiction because the Contracting Officer's decision
purporting to rescind a disputed CPARS rating stated
that the Government stood by the accuracy of the factual
substance of the CPARS:
At least at this early stage of the litigation, we identify
in this appeal the following live issues: (1) whether, given
the reservation in the rescission decision of the "factual
substance" of the CPARS ratings, that "factual substance"
somehow survives the contracting officer’s rescission
decision, to the prejudice of [the appellant]; and (2)
whether, if so, the "factual substance" of the CPARS ratings
is fair, accurate, and consistent with [FAR] Subpart 42.15.
Consequently, we deny the motion to dismiss for lack of
jurisdiction, without prejudice.
Subsequently, the Government's motion for reconsideration
was
denied.
|
|
June 21 |
Effective today, a final rule amends the Department of
Homeland Security's ("DHS") acquisition regulation to
address requirements for the safeguarding of
Controlled Unclassified Information (CUI) by
implementing security and privacy measures to safeguard CUI
and facilitating improved incident reporting to DHS when
DHS contractors experience incidents with protected DHS
information.
A final rule amends the United States
Agency for International Development's ("USAID") Acquisition
Regulation ("AIDAR") regarding contractor requirements on
foreign tax reporting, conference planning, and trade and
investment activities in order to bring the AIDAR into
compliance with revised agency policies and procedures
and statutory requirements. |
|
June 16 |
In
IBM
Corp., IBM Consulting--Federal, although the GAO denied
or dismissed most of the protester's arguments, it did find
that the agency's method of price realism evaluation
(comparing bidders' prices to the IGE on a CLIN by CLIN
basis) failed to account for the fact that awardee's
proposed work structure for the pricing of two CLINs
incoporated work under another CLIN, which meant that the
awardee's pricing for those three CLINs as a group was lower
compared to the IGE than the agency's evaluation suggested. |
|
June 14 |
In
Aspire Therapy Services & Consultants, Inc., a successful
preaward protest against the protester's elimination from
the competition, the Court of Federal Claims held that the
agency should have asked for clarification under FAR
15.306(a) to resolve a clerical error when the labor hours
listed on two different spreadsheets in the protester's
proposal did not match, especially where the clarification
would not substantially affect the overall price or rating
of the proposal.
In
Eastern Shipbuilding Group, Inc., a post-award protest,
the court denied the protester's motion for additional
briefing and to supplement administrative record based on an
indictment of, and an SEC complaint against, former
executives of the awardee filed about six weeks after
briefing in the current protest was complete because a
protest is to be evaluated based on the administrative
record in existence at the time of the protest. |
|
June 13 |
In
Trident Eng'g & Procurement, P.C., the ASBCA upheld a
default termination because (a) the contractor's
representative prematurely retrieved five vehicles that were
supposed to be leased to the Government, (b) the contractor
failed to cure the default, and (c) the Government was not
responsible for the issue. The Board also held that although
it had jurisdiction over the contractor's claim that a CPARS
rating was unmerited, there was a rational basis for the
Contracting Officer's rating. Finally, the Board denied
various cross motions for summary judgment relating to costs
associated with past-due leasing, maintenance, and traffic
violations because there still were material facts in
dispute regarding all those issues.
In
Speedway Orion JV, which involved claims by the contractor
that it was delayed by periodic lack of access to the site
in part caused by the presence of other contractors, the
ASBCA held that: (i) where the contractor originally planned
to complete the project only by the contract completion
date, but then completed the project early, there was no
basis to recover delay damages; (ii) the contractor failed
to prove (e.g., with critical path analysis) that
the Government's actions caused delays to the project; and
(iii) the contractor did not present evidence concerning any
of the elements required to establish a constructive
suspension of the work.
In
Patricia I. Romero Inc. d/b/a Pacific West Builders, the
ASBCA held that: (i) it lacked jurisdiction over claims for
delay and impact costs not previously presented to the
Contracting Officer for review; (ii) other claims (faulty
modifications, superior knowledge, delays, equipment
failures allegedly caused by the Government, etc.)
were barred because the facts giving rise to them should
have been known to the contractor (which had incurred some
costs related to them) more than six years before the
contractor asserted the claims; (iii) there is no
requirement that all costs be known and incurred before a
claim can be submitted; and (iv) the contractor failed to
establish the elements of equitable tolling to avoid the
limitations period. The Board also held that the
contractor's delay claims based on the the alleged
unavailability of escorts into a contract facility and the
Government’s direction to re-locate a compliant restroom to
a different location were filed within the six year
limitations period and, therefore, would not be dismissed.
In
J&J Maintenance, Inc., d/b/a J&J Worldwide Services, the
ASBCA held that: (i) it lacked jurisdiction over a claim
for monetary relief presented for first time at Board where
the original claim to the Contracting Officer specifically
disclaimed any assertion of a right to monetary relief; and
(ii) the Board had jurisdiction over a claim for nonmonetary
declaratory relief seeking the interpretation of contract
terms where the claim was not masking a claim that could
only result in monetary relief--here a decision on the
the claim might affect performance methods the contractor
would choose to utilize under the contract going forward.
DFARS Case 2020-D022: A final rule amends the DFARS to
implement section 852 of the NDAA for FY 2020, which
transfers responsibilities for carrying out the procurement
technical assistance cooperative agreement program from the
Director of the Defense Logistics Agency to the Under
Secretary of Defense for Acquisition and Sustainment.
DFARS Case 2023-D015: An interim rule amends the DFARS
to implement section 855 of the NDAA for FY 2023, which
prohibits the use of funds to knowingly procure any products
mined, produced, or manufactured wholly or in part by forced
labor from the Xinjiang Uyghur Autonomous Region. Comments
are due by August 8.
DFARS Case 2022-D019: A proposed rule would amend the
DFARS to supplement the FAR implementation of Executive
Order (E.O.) 14005 ("Ensuring the Future Is Made in All of
America by All of America’s Workers") addressing domestic
preferences in DoD procurements. Comments are due by August
8. |
|
June 12 |
In
Brandon Staffing Solutions LLC, the CBCA: (i) noted that
the dismissal of an appeal for failure to prosecute operates
as adjudication on the merits, unless otherwise specifically
stated; and, therefore, (ii) held that a subsequent appeal
of the same matter was barred by res judicata.
In
Acuity Engineering & Technical Services, LLC fka Michael
Baker Global Services, LLC, the CBCA held that
allegations in the Complaint that liquidated damages as
assessed were punitive were sufficient to survive a motion
to dismiss for failure to state a claim. |
|
June 10 |
In
Thalin, LLC, an unsuccessful post-award protest, the Court
of Federal Claims held that: (i) the agency correctly found
that the protester failed to comply with a material
solicitation requirement to describe in a particular place,
inter alia, the percentage and type of work to be
provided by its mentor; (ii) although the agency failed to
document why the SSEB kept the protester's rating in the
Staffing subfactor of the Technical evaluation as Acceptable
despite deleting all four weaknesses the original evaluators
had found, the protester did not establish prejudice from
this error; and (iii) the SSA rationally evaluated the
competing proposals in making the final source selection
decision. |
|
June 9 |
In
NAICS Appeal of Laredo Technical Services, Inc.,
the SBA's OHA held that in a solicitation for 41 full time
equivalent radiologic technologists to perform services at
VA facilities, NAICS 621512 ("Diagnostic Imaging Centers")
was preferable to both the appellant's choice of NAICS
621399 ("Offices of All Other Miscellaneous Health
Practitioners") and the Contracting Officer's choice of
NAICS 561320 ("Temporary Health Services").
In NAICS
Appeal of Veterans First Health Care, the OHA held
that in a solicitation for home oxygen services, the
Contracting Officer's choice of NAICS 621610 ("Home Health
Care Services") was preferable to the appellant's choice of
NAICS 532283 ("Home Health Equipment Rental").
In
VSBC Appeal of Perrilliat Enterprises, the OHA
remanded the case to the SBA because the appellant
established that in denying its certification as an SDVOSB,
the SBA made certain assumptions concerning ownership and
control that were not compelled by the documents it reviewed
and that needed further examination.
In
Matter of Monbo Group Int'l, Ltd., the OHA
dismissed an appeal of a firm's suspension from the 8(a)
program because the firm did not file a timely appeal
petition that included a "clear and concise statement of the
factual basis of the case and applicable legal arguments" as
required by 13 C.F.R. § 134.203(a)(3).
In VSBC
Appeal of Secutors Consulting Services, LLC, the
OHA dismissed an appeal where the appellant failed to comply
with the OHA's order to file a new appeal petition to cure
deficiencies in the original petition.
In VSBC
Protest of Elevated Technologies, Inc., the OHA
dismissed a protest against an apparent awardee's SDVOSB
status because the agency had canceled the award in response
to a GAO protest. |
|
June 8 |
In
VSolvit, LLC, an unsuccessful post-award protest, the
Court of Federal Claims held that: (i) reading the
solicitation as a whole, a single reference to the
"offeror's team" in the solicitation did not mean the
Government was required to include subcontractors when
evaluating an offeror's experience; (ii) any ambiguity on
that point was patent, making a post-award protest untimely;
(iii) in any event, the protester could not establish
prejudice from the alleged ambiguity because the remedy
would have been to allow the protester to submit a revised
proposal, which would not be compliant because the protester
lacked the required experience absent its subcontractors;
(iv) there were rational bases for the agency's assignment
of four weaknesses to other aspects of the protester's
technical proposal; and (v) the price evaluation was
conducted in accordance with the procedures announced in the
solicitation and did not constitute an improper price
realism analysis.
In
Size Appeals of Master Boat Builders, Inc., Steiner
Construction Company, Inc., the SBA's OHA remanded
the case to the Area Office because it had (i) incorrectly
determined that the challenged firm was the manufacturer
under the nonmanufacturer rule absent any lease arrangement
establishing that the firm would manufacture the contract
items at its own facilities; and (ii) failed to investigate
the protesters' allegations regarding affiliation.
Subsequently, the challenged firm's petition for
reconsideration was
denied.
In
Maxway, Inc., the PSBCA denied the Postal Service's
offset claim against the contractor for allegedly missing
trips because the Postal Service failed to present
sufficient evidence to meet its burden of proof that trips
were missed, relying on broad, general assertions instead of
evidence of investigations of particular trips.
In
Angela Pugliese, the PSBCA denied the Postal Service's
claim for excess reprocurement costs following a default
termination because the Postal Service failed to present
evidence of the precise amount spent on reprocurement:
In sum, the Postal Service did not provide sufficient
evidence of its damages. To award any amount here would
require us to speculate about evidence that was not
produced, and we will not do that. While the Postal Service
presented evidence of payments made to the replacement
contractor for part of the period it seeks, it failed to
explain why the payments differed each month and why none of
those payments corresponded with either of the only two
annual rates provided for the replacement contracts. This
explanation was critical because the contracts, which were
fixed price with economic price adjustment, permitted
certain increased price adjustments that cannot be fairly
placed on [the defaulted contractor]. To show what it spent
in reprocurement, the Postal Service needed to explain the
variable payments to [the reprocurement contractor] and show
that they were for services or costs that would have applied
to either contractor. The Postal Service’s failure to do so
is fatal to its case.
|
|
June 7 |
The GAO sustained protests against corrective action by
Kupono Government Services, LLC; Akima Systems Engineering,
LLC, because the agency failed to justify limiting
corrective action only to revisions of cost proposals where
(a) the agency did not identify what errors led to the
corrective action and (b) the cost and technical proposals
were closely linked so that changes to one likely would
necessitate changes to the other.
Federal
Acquisition Circular (FAC)
2023-04 has been published and includes the following
item:
FAR Case 2023-010: An interim rule amends the FAR to
implement section 102 of Division R of the Consolidated
Appropriations Act of 2023 (the "No TikTok on Government
Devices Act") and its implementing guidance under OMB
Memorandum M–23–13 by adding FAR clause 52.204–27
("Prohibition on a ByteDance Covered Application"). The rule
and the clause ban the presence or use of TikTok on any
information technology owned or managed by the Government or
on any information technology used or provided by the
contractor under a contract, including equipment provided by
the contractor’s employees, unless an exception is granted
in accordance with OMB Memorandum M–23–13. Comments are due
by August 1. |
|
June 6 |
<
In
Allicent Technology, LLC, et al., which
involved consolidated post-award protests by nine
disappointed bidders against various aspects of the
evaluations that had resulted in 15 contract awards, the
Court of Federal Claims discussed each plaintiff's protest
grounds separately and found that four of the nine protests
merited requiring the agency to re-evaluate the successful
plaintiffs' technical proposals.
In
SEKRI, Inc., the court denied the protester's claim for
attorneys' fees pursuant to 28 U.S.C. § 2412(b) because the
plaintiff failed to demonstrate that the defendant acted in
bad faith and that a causal connection between the
defendant’s supposed misconduct and the plaintiff’s
requested fees and expenses existed. The court also held
that 28 U.S.C. § 2412(d) (the EAJA) unambiguously bars
tax-exempt organizations employing more than 500 people from
receiving attorney’s fees and expenses, and the plaintiff
had failed to offer any proof it met the employee test.
Finally, the court denied the plaintiff's requests for Rule
11 sanctions against the defendant's filings because the
requests were untimely (filed a month after case closed) and
lacking proof that the challenged filings were made for an
improper purpose or without factual support.
In
Dept. of Transportation v. Eagle Peak Rock & Paving, Inc.
the Court of Appeals for the Federal Circuit reversed the
prior CBCA decision overturning a default termination
because the CBCA had focused on whether the Contracting
Officer had considered the required FAR factors in making
the default decision rather than conducting a de novo
review of the propriety of the termination, which the CAFC
now orders the CBCA to do. |
|
June 5 |
Tyonek Eng'g & Agile Mfg., LLC, won its GAO protest
because: (i) the record of the price evaluation was was
internally inconsistent and inadequately documented; and
(ii) the agency engaged in misleading discussions where it
failed to lead the protester to the true area of concern
with its price. |
|
June 2 |
General Dynamics Information Technology, Inc. won its
GAO protest against the terms of a solicitation because: (i)
the use of a firm-fixed-price, level-of-effort task order
was inappropriate when the underlying work could be (and was
in the solicitation) clearly defined; and (ii) the
solicitation was patently ambiguous because it stated in one
place that its published work hour figure was for a fixed
level of effort, while the answers to bidders' questions
described that same figure as merely a yearly estimate.
In
Consorzio Stabile GMG S.c.ar.l., the ASBCA held that:
(i) on appeal, the Government may justify a default
termination on a different basis from the one cited in the
original default decision; and (ii) an appeal of the default
termination of a construction contractor for
failure to make progress must be sustained because the
Government waived the delivery date by waiting for more than
four months after the delivery date to issue a show cause
notice (and still longer before terminating) without once
(i) mentioning that the delivery date was still in effect or
that time was of the essence or (ii) threatening to assess
liquidated damages.
In
U. S. Bank National Ass'n, the ASBCA, in granting the
contractor's
motion for summary judgment that the Government had
breached a contract by failing to reimburse the contractor
for certain payments it had made, took the unusual step of
finding for the contractor on a crucial, disputed factual
issue because the contractor's proposed findings of fact on
that issue were properly supported with evidence while the
Government's responses to those proposed findings were not. |
|
June 1 |
In
Fidelity & Deposit Co. of Maryland, the ASBCA denied the
Government's motion to dismiss an appeal for alleged
failures to submit sums certain because the contractor's
"garden variety" delay claim was a single claim based upon a
common set of operative facts, not seven separate claims
that would each require its own statement of a sum certain.
The Board also found that even if the Government were
correct that one part of the claim was a separate Changes
claim, that claim had been stated as a sum certain.
In
JE Sinn Consulting, LLC, the ASBCA (under Board Rule 12.2,
Small Claims (Expedited) Procedure) held, inter alia,
that: (i) the proximate causes of the contractor's alleged
additional costs were (a) the late delivery of a truck, for
which the contractor admits it was responsible and (b) a
severe storm that, as a force majeure, cannot be
the basis for a claim of compensable delay; (ii) two
modifications with standard release language barred the
contractor's delay claims for issues covered by those
modifications; (iii) the fixed price contract did not
contain any mechanism for adjustment for an alleged increase
in material price caused by the pandemic; and (iv) the
Government did not intentionally delay its responses to REAs
and provided such responses within a reasonable time.
In
Valiant Integrated Services, LLC, the ASBCA dismissed an
appeal as moot after the Contracting Officer withdrew his
decision asserting a government claim for CAS noncompliance. |
|
May 30 |
The GAO sustained a protest by
Sparksoft Corp.
because: (i) the agency's evaluation of the awardee's
corporate experience was inconsistent with the
solicitation's evaluation scheme and lacked a rational basis
in the record; and (ii) the source selection authority
incorrectly concluded that a weakness noted by the evaluators
in the awardee's oral presentation was due to a lack of
clarity with the agency's challenge question to the awardee.
Veterans Management Services, Inc. won its GAO protest
because, in its evaluation of the compensation of
professional employees pursuant to FAR 52.222-46, the agency
(a) improperly used the vendors’ total evaluated prices and
fully burdened labor rates instead of evaluating the
vendors’ salary compensation for their employees and (b)
improperly considered labor categories that did not qualify
as professional employees under the provision.
In
American Ground Transportation, Inc., which involved many
issues of contract interpretation, the Court of Federal
Claims held, inter alia, that: (i) a concession
contract to operate shuttle buses on a military base had
consideration (space, advertising at cost, and coordination
with the Government) and did not grant the concession
contractor exclusivity (and was not ambiguous on this point)
and, thus, was not breached by the Government in allowing
another shuttle bus operator on the base; (ii) permitting
the contractor to continue to operate shuttle buses on base
after the contract expired did not establish an
implied-in-fact option extension of the contract because it
was not on the same terms as the expired contract and the
plaintiff did not have any obligation to the Government
after the contract expired, making any further purported
contract illusory; (iii) allegations regarding alleged
violations of the Government's duty of good faith and fair
dealing would not be dismissed because the concession
contractor was induced to pay a commission for the contract
on the promise that the agency would coordinate with it so
that the contractor could obtain the reasonably expected
benefits of contracting; and (iv) the court lacked
jurisdiction over claims for interference with prospective
economic relations and negligence because those were tort
claims. |
|
May 25 |
In
STG Int'l, Inc., which involved two consolidated protests,
the Court of Federal Claims sustained a protest against the
protester's elimination from a phased competition because
its Phase 1
proposal was not an offer, i.e., it could not be
accepted to form a contract, and, therefore, the requirement
for SAM registration did not apply until an offer
subsequently was submitted. The court rejected the other
protester's challenges to the price and past performance
evaluations and to the conduct of discussions, mainly
because the hurdles involved in such challenges are
substantial. |
|
May 24 |
In
Myriddian, LLC, a successful post-award protest, the
Court of Federal Claims held that the awardee's proposal
failed to comply with a material solicitation requirement
(FAR 52.204-7(b)(1)) because its SAM registration had lapsed
for a period of time after it submitted its proposal and
before award was made (even though its registration was
effective both on the date the proposal was submitted and
the date when award was made). |
|
May 23 |
In
M.R. Pittman Group, LLC, the Court of Appeals for the
Federal Circuit held that: (i) the Blue & Gold Fleet
waiver rule is not a jurisdictional issue; (ii) the CoFC did
not commit reversible error by dismissing the protest before
(a) the administrative report had been filed and (b) the
protester had filed a formal response to the Government's
motion to dismiss; and (iii) under Blue & Gold Fleet,
the plaintiff had waived its right to protest by failing to
timely object to a patent solicitation ambiguity created by
the incorporation by reference of a specific FAR clause that
contradicted other statements in the solicitation, thus
meriting dismissal of the protest under Court of Federal
Claims Rule 12(b)(6). |
|
May 18 |
IDEMIA National Security
Solutions, LLC, succeeded on one of its GAO protest
grounds because the agency admitted an error in evaluating
the protester's teaming agreement as part of its proposal
under the past performance demonstrating prior experience
factor, and the error was prejudicial. |
|
May 17 |
In
Konecranes Nuclear Equipment & Services, LLC, an
unsuccessful post-award protest, the Court of Federal Claims
held, inter alia, that: (i) requirements listed in
the statement of work but not among the evaluation factors
were not to be evaluated; (ii) there was a rational basis
for the agency's price reasonableness analysis (i.e.,
comparison of prices to the IGCE); and (iii) the agency's
responsibility determinations did not treat unfairly
offerors unequally because the offerors were situated
differently and thus could not have had identical procedures
followed in making the determinations.
In
Rockside 77 Properties LLC, the CBCA held that the GSA
was entitled to recoupment of erroneous overpayments for
electricity unambiguously made the responsibility of the
lessor to the extent the recoupments were not barred by the
statute of limitations. |
|
May 16 |
In
Baldi Bros., Inc., the Court of Federal Claims, inter
alia, partially granted the Government's motion for
summary judgment because: (i) the Government's responses to
the contractor's request for information regarding
contaminated soil and its earthwork submittals did not
require the contractor to suspend the work and thus did not
cause a delay; and (ii) the plain language of the contract
required the contractor to dispose of excess soil at an
offsite disposal facility and to pay for any additional
testing required by that facility |
|
May 15 |
In
Stephane Alrivy, the CBCA held that: (i) a vehicle sold
at auction had not been misdescribed; and (ii) the Board had
no authority to require the Government to pay for repairs to
the vehicle, which had been altered by the buyer.
The CBCA dismissed an appeal by
Knighto LLC dba Knight Solutions because it had been
filed outside of the 90-day window. |
|
May 11 |
In
CACI, Inc.-Federal, the Court of Appeals for the Federal
Circuit held that, although
the Court of Federal Claims had erred in concluding that
it lacked
jurisdiction due to an OCI not previously raised by the
Contracting Officer when that issue was merely one of
statutory standing, which should not have been determined
de novo by the Claims Court, the agency's evaluation
regarding a technical deficiency in the protester's proposal
rendering it ineligible for award had a rational basis. |
|
May 10 |
In
VSBC Appeal of Wigs Plus L.L.C., the SBA's OHA
upheld the denial of a firm's certification as an SDVOSB
because the contradictory evidence submitted by the firm did
not establish that the SDV held the company's highest office
and controlled its day-to-day operations.
The GAO
sustained one of the protest grounds of
Aptim-Amentum Alaska Decommissioning, LLC, because the
awardee's proposal failed to meet a material solicitation
requirement that it include a key personnel retention plan. |
|
May 8 |
In
Size Appeal of Computer World Services Corp.,
the SBA's OHA agreed with the Area Office that because the
CIO-SP3 vehicle is a long term contract, a size protest
filed in connection with an individual task order
solicitation that did not include a request for
recertification was untimely.
In NAICS
Appeal of Bridges Systems Integration, LLC, the OHA
held that an appeal of the NAICS code assigned to an order
under a multiple award contract (MAC) was untimely because,
as required by the regs, it was the same NAICS assigned to
the underlying MAC, which was not timely challenged. |
|
May 7 |
Catching up with one I overlooked . . . USAID placed in the
public docket a
standards document related to USAID’s proposed
Rulemaking that, in part, proposed to add a new section to
the USAID Acquisition Regulations (AIDAR). During the public
comment period, USAID received comments requesting public
access to the "USAID Digital Information Technical
Guidelines," which are referenced in the proposed regulatory
language. This document made those Guidelines available and
renamed the Guidelines: "USAID Digital Collection and
Submission Standards." Comment are due by May 15. |
|
May 5 |
In
CanPro Investments, Ltd., which includes decisions
(reissued on reconsideration) on various motions for partial
summary judgment involving a GSA lease, the Court of Federal
Claims held that: (i) the lessor lacked standing to complain
of alleged injuries caused by individual visitors to the
leased (SSA) offices but had standing to complain of the
unexpected volume of visitors (some whose attendance was
compelled by the Government) that allegedly violated the
limits in the lease; (ii) the court lacked jurisdiction over
an appeal of a claim for economic damages because the claim
originally presented to the Contracting Officer did not have
sufficient information for the amount being claimed to be
determined; (iii) certain individual elements of claims for
damages for which the lessor could not provide evidence of
causation must be dismissed; and (iv) the lessor had
adequately pled its claim based on the Government's alleged
superior knowledge. |
|
May 3 |
The GAO sustained a protest by
Life Science Logistics, LLC because the agency failed to
conduct meaningful discussions during corrective action in
response to a prior protest; specifically, the agency did
not disclose evaluated flaws the agency first identified in
its reevaluation of the protester’s materially unchanged
proposal.
In Flatiron/Dragados/Sukut
Joint Venture, the ASBCA denied the Government's motion
to dismiss for failure to state a claim, holding that where
the Contracting Officer had suspended the work during the
pendency of a bid protest, the contractor's claim for its
associated costs submitted under the "Protest After Award"
clause should not be dismissed merely because the
Contracting Officer had issued a suspension rather than a
stop-work order as provided for in the clause.
In
IMC Constr. Group, which involved contract interpretation,
the ASBCA sustained the contractor's appeal because: (i) the
most natural reading of the disputed task order specs was
that the Government would acquire the item at issue from a
different provider and that the contractor was forbidden
from supplying it; (ii) the Government's contrary
interpretation was less plausible; (iii) those conclusions
would not change even if the Board were to consider the
extrinsic evidence offered by the Government; and (iv) even
if the contract were ambiguous on the point, it was only
latently so, and, therefore, the contra proferentem
doctrine would construe the ambiguity against the Government
as the drafter of the disputed language. Subsequently, the
Government's motion for reconsideration was
denied except the Board permitted the Government to
challenge the quantum award since the prior appeal was only
supposed to cover entitlement.
In
Monbo Group, Int'l, the ASBCA dismissed a breach claim
on appeal seeking lost gross revenue from unexercised option
years two and three because (i) it was different from the
claim for lost profits for option years one through three
previously submitted to the Contracting Officer for a
decision; and (ii) there was no assertion of facts
indicating bad faith by the Government in declining to
exercise the options.
In
David Boland, Inc., the ASBCA partially granted the
contractor's motion for reconsideration of the Board's
prior decision because the Board had erroneously dismissed
two counts in the Complaint that alleged delay from
different causes than those the Board correctly held the
contractor had failed to argue in response to Government's
original motion for summary judgment as to the Complaint as
a whole. |
|
May 2 |
DFARS Case 2020-D029: A proposed rule would amend the
DFARS to consolidate existing contract clauses for the
management and reporting of Government property into a
single contract clause, to replace references to legacy
software applications used for reporting Government property
within the DoD enterprise-wide eBusiness platform, and to
convert existing form- based processes into electronic
processes within that platform. Comments are due by June 26.
DFARS Case 2021-D015: A proposed rule would amend the
DFARS to implement a section of the NDAA for FY 2021 that
provides restrictions on the acquisition of certain covered
materials from North Korea, the People’s Republic of China,
Russia, and Iran. Comments are due by June 26.
DFARS Case 2020-D021: A proposed rule would amend the
DFARS concerning contract clauses regarding the the care
and treatment of working dogs provided under the contract
after their retirement. Comments are due by June 26. |
|
May 1 |
In
SH Synergy, LLC and VCH Partners, LLC, successful
consolidated preaward protests, the Court of Federal Claims
held that a solicitation contemplating IDIQ contracts to be
awarded to various pools of types of small businesses: (i)
violated the SBA's regulation at 13 C.F.R. § 125.8(e) by
applying the same evaluation criteria to projects submitted
by protégé firms and other offerors alike; and (ii) violated
41 U.S.C 3306 (c)(3) because the solicitation excluded price
as an evaluation factor at the IDIQ level (and used it only
for individual task or delivery orders) when the
contemplated orders were not predominantly based on hourly
rates (i.e., time-and-materials or labor-hour
vehicles). |
|
April 29 |
Federal Acquisition Circular (FAC)
2023-03 has been published and includes the following
items:
FAR Case 2022-007: A final rule amends the FAR to
implement the statutory expiration of the Federal Helium
System in accordance with the Helium Stewardship Act of
2013.
FAR Case 2022-002: A final rule amends the FAR in
accordance with section 861 of the NDAA for FY 2022, which
provides for a statutory exception to the periodic inflation
adjustments of acquisition-related thresholds for certain
bond requirements under 41 U.S.C. 1908.
Effective May 30, the SBA is making
several changes to the ownership and control
requirements for the 8(a) Business Development program,
including recognizing a process for allowing a change of
ownership for a former Participant that is still performing
one or more 8(a) contracts and permitting an individual to
own an applicant or Participant where the individual can
demonstrate that financial obligations have been settled and
discharged by the Federal Government. The rule also makes
several changes relating to 8(a) contracts, including
clarifying that a contracting officer cannot limit an 8(a)
competition to Participants having more than one
certification and clarifying the rules pertaining to issuing
sole source 8(a) orders under an 8(a) multiple award
contract. The rule also makes several other revisions to
incorporate changes to SBA’s other government contracting
programs, including changes to implement a statutory
amendment from the NDAA for FY 2022, to include blanket
purchase agreements in the list of contracting vehicles that
are covered by the definitions of consolidation and
bundling, and to more clearly specify the requirements
relating to waivers of the nonmanufacturer rule. |
|
April 28 |
In
Williams Bldg. Co. (granting the Government's motion for
partial summary judgment), the CBCA held that although a
convenience termination did not moot earlier-filed monetary
claims, bilateral modifications and releases barred the
contractor's claims based on (a) an alleged cardinal change
stemming from changes needed to correct multiple defects in
the original specs and (b) the agency's alleged delays in
responding to the contractor's notices of changes arising
from those defects. The Board also held that the contractor
failed (was unable) to provide any evidence of damages from
other alleged delays occurring after the releases were
executed, despite having been directed to do so by Board. |
|
April 27 |
In
Golden IT, LLC, an unsuccessful post-award protest, the
Court of Federal Claims held that, although the protester
established the agency made several errors in both its
Phase 1 experience evaluation and Phase 2 technical
evaluation of the protester's submission, the protester was
not prejudiced because even if all the errors were
corrected, its price proposal still would be lower rated
than those of all offerors selected for award. |
|
April 25 |
In
Lockheed Martin Aeronautics Co., the Court of Appeals for
the Federal Circuit held that the Contracting Officer's
unilateral determination of the price of an Undefinitized
Contract Action is not a government claim under the CDA that
can be appealed by the contractor. |
|
April 21 |
In
Crystal Clear Maintenance, the CBCA held that the
Contracting Officer's initial decision asserting a
government "claim" failed to state a sum certain and
thus did not trigger the 90 day appeal period. |
|
April 20 |
In
DigiFlight, Inc., a successful post-award protest, the
Court of Federal Claims held that the agency failed to
conduct the rational price realism analysis required by the
solicitation because: (i) assuming that two offerors would
not both propose unrealistically low prices was irrational;
(ii) there was no documentation in the record of the use of
the price analysis tool the agency claimed to have employed;
(iii) there was no evidence in the record to support the
agency's conclusion that all three offerors' pricing
demonstrated a clear understanding of the requirements; and
(iv) the agency's conclusion that the level of effort and
labor mix proposed by all the offerors was realistic lacked
a rational basis because that conclusion did not involve any
analysis of proposed pricing. The court also held that by
failing to perform the required qualitative comparison of
technical proposals, the Government had improperly converted
a best value procurement into a lowest price technically
acceptable competition. |
|
April 18 |
In
CVE Protest of
Veteran Electric, LLC, the SBA's OHA denied a
challenge based mainly on allegations of violation of the
ostensible subcontractor rule because this was a
construction contract for which the challenged firm need
only, and did, establish it would manage the project and had
adequate managerial experience to do so.
In VSBC
Appeal of B.E. Scaife Plumbing Company, Inc. d/b/a TamCo
Services, Inc., the OHA dismissed (as untimely
filed) an appeal from a determination that a firm that had
failed to provide requested evidence that its SDV was its
highest compensated employee, resulting in an adverse
inference, was not a qualified SDVOSB. The OHA held that,
despite the appellant's arguments to establish timeliness,
the original adverse determination was not a "draft," and a
subsequent email to the appellant from the agency was not a
supplemental determination because it was neither denoted as
such nor signed by someone with authority to make such a
determination. |
|
April 14 |
In
BES Design/Build, LLC, the CBCA held that: (i) the
Government did not waive its right to terminate a
construction contract by permitting the contractor five
months beyond the original completion date before
terminating because during that time, the Contractor Officer
had communicated two new dates to the contractor and issued
a cure notice and a show cause letter to the contractor;
(ii) the contractor had offered no adequate excuses for the
delay in completing the project, specifically no proof that
(a) a damaged window was not caused by the contractor,
itself, (b) damage to structural beams was caused by a
subcontractor and were outside its scope of work; or (c)
there was a specific timeline in the contract by which the
Government was required to respond to submittals, that the
time it took to do so was unreasonable, or that the the
allegedly delayed submittal responses impacted the project
schedule; (iii) the time the Government took to pay two pay
progress payment requests was not unreasonable because the
Government had legitimate questions concerning the adequacy
of those requests; (v) the contractor's delay claim was not
sufficiently related to a prior settled claim for asbestos
abatement so as to be barred by
res judicata; (vi) there was a lack of evidence to support
claimed overhead costs during the alleged delay; and (vi)
the Government properly paid the surety rather than the
contractor for the accepted amount of completed work. |
|
April 11 |
In
Percipient.AI, Inc., the Court of Federal Claims held it
had bid protest jurisdiction over an allegation that, post
award, the Government had violated the requirement in 10
U.S.C. § 3453(b)(1)-(2) that defense agencies and their
contractors must acquire commercial products to the maximum
extent practicable. I wouldn't be surprised if the
Government appealed this one.
In
Toni and Vin Hooper Property Management, LLC dba Hoover
Properties, a successful post-award protest, the court
held that in a solicitation for leased property: (i) the
Government failed to document the basis for, and to
substantiate, its evaluation of tenant improvement costs for
the protester and the awardee; and (ii) the protester had
established prejudice from this deficiency in the
evaluation. |
|
April 10 |
In
Defense Integrated Solutions, LLC, the Court of Federal
Claims let stand the SBA OHA's decision,
on remand, reversing the OHA's
own prior decision and holding that under 13 C.F.R. §
125.18(b)(2)(ii)(A) an SDVOSB joint venture agreement may
provide that a non-managing partner must approve (or may
veto) claim and litigation decisions.
Effective May
10, the SBA is amending its regulations to provide
procedures for the SBA’s OHA to hear appeals from
protest determinations regarding the status of a concern as
a certified HUBZone small business concern. |
|
April 4 |
In
Triple Canopy,. Inc., a decision involving contract
interpretation on remand from the
CAFC, the ASBCA held that fees imposed as a penalty by
the Afghan Government on private security companies with
more than 500 employees were after-imposed taxes within the
meaning of FAR 52.229-6 for which the contractor was
entitled to be reimbursed. In
Frazier Investments Inc. d/b/a Optimum Construction, the
ASBCA held that a fixed-price bilateral modification for
added work, which its subcontractor had warned the
contractor would not cover all costs, operated as an accord
and satisfaction of the contractor's claim for increased
costs because the contractor did not enter into it under
duress (there being no evidence of the verbal threat alleged
by the contractor), and the modification was not
unconscionable (no evidence of overreach or bad faith by the
Government). In
Safaa Al-Rawaby Co., the ASBCA upheld the default
termination of a fixed-price contract because the
contractor, despite repeated warnings from the Government,
made it clear it could not and would not make additional
deliveries without an increase in price. Subsequently, the
contractor's motion for reconsideration was
denied. The Board then summarily denied a
second motion for reconsideration because the Board's
rules do not provide for it. |
|
April 3 |
In
Cahaba Safeguard Administrators, LLC, an unsuccessful
protest by the original awardee against the agency's
corrective action, the Court of Federal Claims held that,
upon remand from the court: (i) the agency's reconsideration
memorandum was a new decision (even though it reached the
same conclusion as the agency's original corrective action
decision) and, therefore, was not limited to the same
reasoning in the agency's original corrective action
decision; (ii) the new decision had a rational basis,
discussing multiple defects in the original solicitation and
evaluation; (iii) the decision to cancel the solicitation
and resolicit did not prejudice the original awardee because
there were rational bases for that decision, and the
original awardee would be permitted to compete in the new
competition; and (iv) the decision to open the new
solicitation to original and new offerors was not beyond the
scope of reasonable corrective action, which is within the
discretion of the agency, especially given the agency's
conclusions regarding multiple defects in the original
procurement.
In
H&M Assocs., LLC, which involved a default termination,
the court held that it lacked jurisdiction over claims for
breach of the implied duty of good faith and fair dealing,
prior material breach, the Contracting Officer's abuse of
discretion, and commercial impossibility/impracticability to
the extent they effectively requested a change in the
contract—whether that be an extension of time, a contractual
modification, or an equitable adjustment--because no such
claims had been first presented to the Contracting Officer
for a decision. The court also held it lacked jurisdiction
to grant the contractor's requests for declaratory relief
because this was a contract case. However, the court did
have jurisdiction over the prior material breach and abuse
of discretion issues to the extent they did not seek money
damages but were presented purely as affirmative defenses to
the default termination and had been pled adequately to
survive the Government's motion to dismiss.
FAR Case 2018-003: Because of a change in the underlying
statute, a proposed rule concerning credit for lower tier
small business subcontracting has been withdrawn. |
|
March 31 |
The GAO sustained a protest by
Spectrum Healthcare Resources, Inc., because the
agency's evaluation of the protester's proposal under the
technical capability factor, which was only supposed to
consider verifiable experience examples, improperly
conflated considerations from the staffing and management
approach evaluation factor.
The CBCA denied all of
the contractor's claims in
Sage Acquisitions LLC because: (i) the Government had
already met the minimum order requirements under three ID/IQ
contracts when it terminated those contracts for convenience
as a result of a successful bid protest, which meant it was
not liable to the contractor for (a) termination for
convenience costs, (b) equitable adjustments for alleged
negligent estimates, (c) any recovery based on the
Government's alleged superior knowledge, and (d) the
diversion of work to other contractors; (ii) the contractor
did not establish the Government's actions breached the
implied duty of good faith and fair dealing or were based on
a mutual mistake of fact; (iii) the issuance of a six-month
task order after the exercise of an option was proper since
the contract required the need for task orders to be
considered annually, not that they each be a year in length;
and (iv) the Government fulfilled the terms of a
(requirements) bridge contract by assigning the contractor
all of the work that the bridge contract contemplated during
its period of performance, and the contractor could not
complain of the agency's use of other vehicles for different
work, especially when the contractor knew of this situation
before entering bridge contract and did not object at that
time. |
|
March 29 |
In
J.E. McAmis, Inc., an unsuccessful post-award protest,
the Court of Federal Claims (reluctantly) held it lacked
jurisdiction to review the SBA's affirmative COC finding.
The court practically begged Congress to change the law
because in issuing the COC in this case, the SBA saddled the
agency with a contractor that did not meet the special
standards of responsibility in the solicitation. |
|
March 28 |
The GAO sustained a protest by
BC Site Services, LLC, holding that the agency's
discussions with the protester were not meaningful because
the agency failed to alert the protester to information
missing from its proposal in the most important evaluation
factor. |
|
March 27 |
In RLB
Contracting, Inc., the ASBCA held that the contractor's
out of time request (by two weeks) to extend the deadline
for responding to the Government's summary judgment motion
(after prior requests for extensions had been granted
without objection from the Government) did not constitute a
failure to prosecute and did not entitle the Government to
have its motion ruled on without a response. |
|
March 24 |
In
Size Appeal of Advant-Edge Solutions of Middle Atlantic,
Inc., the SBA's OHA held it lacked jurisdiction
over (a) an allegation that the awardee lacked necessary
licenses and permits to perform the contract and (b) an
allegation first raised on appeal.
In
Size Appeal of Rigid Constructors, LLC, the OHA
held that where, despite repeated requests, the appellant
had failed to provide completed, unredacted tax returns (or
"other relevant information") for certain of its and its
acknowledged affiliates' revenues for two of the required
five years, the Area Office was justified in drawing an
adverse inference.
In
Vanquish Worldwide, LLC, the Court of Federal Claims
granted summary judgment in favor of the Government, holding
that the plaintiff had come nowhere close to the high
standard of proof required to establish that the Government
had acted in "bad faith" by: (i) declining to exercise the
contract's second year option (when the Government's needs
had declined, and the plaintiff had the lowest ratings and
the highest prices of the contractors performing this work);
(ii) terminating for cause 12 shipments the contractor had
declared were "lost"; and (iii) issuing a negative CPAR. The
court also held that the contractor failed to present
evidence in support of its contention that the Government
had failed to follow correct procedures in making deductions
from payments otherwise due the contractor. |
|
March 23 |
In
Size Appeal of Ekagra Partners, LLC, the SBA's
OHA affirmed the Area Office's dismissal of a size protest
for lack of standing because the protester's proposal had
been eliminated from the competition as technically
unacceptable and unsatisfactory.
In
Size Appeal of
SysCom, Inc., the OHA reversed the Area Office
because the evidence clearly established that: (i) although
an 8(a) JV agreement properly designated the 8(a) as the
managing venturer, applicable Michigan law also required the
firm's Operating Agreement to make that designation, and the
JV did not have an Operating Agreement or any other similar
document, and (ii) the JV's bylaws required a "majority" of
a two-person board for a quorum, which allowed the non 8(a)
member to exert negative control.
DFARS Case 2022-D021: A final rule amends the DFARS to
clarify when a contract administration office has authority
to negotiate and settle direct costs questioned in incurred
cost audits by adding to section 242.302(b) an additional
contract administrative function delegable from a procuring
contracting office to a contract administration office.
DFARS Case 2020-D027: A final rule amends the DFARS to
to revise the requirements related to the assumption of risk
associated with aircraft under DoD contracts due to numerous
developments in aircraft contract situations and the
emergence of contracts for small, unmanned aircraft.
DFARS Case 2018-D018: A final rule amends the DFARS to
implement section 871 of the NDAA for FY 2018, which
requires that the DoD, as part of any negotiation for such
software, consider all noncommercial computer software and
related materials necessary to meet the needs of the agency
throughout the life cycle of the software. The new rule
provides direction to the DoD both to improve acquisition
planning and to identify and negotiate for software
deliverables and license rights at a fair and reasonable
price before contract award.
DFARS Case 2019-D009: A final rule amends the DFARS to
update the policy and procedures for use of the Supplier
Performance Risk System ("SPRS") and to require contracting
officers to consider SPRS risk assessments, if available,
(a) in the evaluation of a supplier’s quotation or offer and
(b) when determining contractor responsibility.
DFARS Case 2018-D053: A proposed rule would amend the
DFARS to to enable the Defense Contract Management Agency
(DCMA) to obtain export authorizations from contractors when
a contract requires government quality assurance
surveillance oversight and has delivery to, or production or
performance in, the following government quality assurance
countries: Australia, Belgium, Canada, Czech Republic,
Denmark, Finland, France, Germany, Greece, Israel, Italy,
Republic of Korea, Netherlands, Norway, Poland, Romania,
Slovakia, Spain, Sweden, Turkey, and the United Kingdom..
Comments are due by May 22.
DFARS Case 2021-D021: A proposed rule would amend the
DFARS to to implement section 1025 of the NDAA for FY 2021,
which amends 10 U.S.C. 8680(a) to restrict the overhaul or
repair of a naval vessel in a shipyard outside the United
States or Guam. Comments are due by May 22. |
|
March 21 |
In
Voxtel, Inc., which involved appeals of three categories
of costs disallowed by the Government, the ASBCA held: (i)
in large part because the Government disallowed certain
costs without conducting an audit, either before or after
the appeal was filed, the Government failed to prove that
(a) challenged IR&D costs were unallowable direct costs and
(b) unpaid salary paid to the contractor's President and
recorded as ordinary gain/loss on the contractor's tax
returns was unallowable profit;
but (ii) the documentation provided by the contractor
was inadequate to establish that certain claimed rental
fit-up costs were allowable. |
|
March 20 |
In
Trace Systems Inc., an unsuccessful protest against the
agency's decision to cancel a procurement (and resolicit)
after initially undertaking corrective action in response to
a prior protest, the Court of Federal Claims held that: (i)
the agency's decision had rational bases in the record,
especially when considered as a group, specifically (a) an
appearance of an OCI involving multiple offerors, including
the plaintiff, (b) redundant evaluation criteria that needed
to be revised, and (c) changes in the agency's requirements;
(ii) the plaintiff lacked standing to challenge the
extension of a bridge contract pending issuance of the new
solicitation because the plaintiff presented no evidence
that it was fully capable of performing the bridge contract
work as of the date that contract was awarded; and (iii)
there was no evidence of bad faith animus by the agency
toward the protester (especially considering that the agency
originally had awarded it the contract).
In
John Douglas Burke, the CBCA held that: (i) a contractor
that had been fully compensated at prescribed hourly rates
under purchase orders for professional services could not
have those orders invalidated (and be paid at the hourly
rates of a federal employee) where the documents did not
establish the purchase orders were, as he claimed,
proscribed contracts for personal services; (ii) since the
purchase orders were express contracts, the contractor could
not recover under an implied-in-fact contract theory; (iii)
the Board lacked jurisdiction over the contractor's claim
for unjust enrichment, and, even if there were jurisdiction,
unjust enrichment does not apply when there is a valid
contract; and (iv) the Board lacked CDA jurisdiction to
grant direct relief under the Fair Labor Standards
Act, the Back Pay Act, and the Service Contract Act.
Subsequently, the Board
denied the contractor's motion for reconsideration. |
|
March 17 |
ManTech Advanced Systems International, Inc. won on one
of its GAO protest grounds because there was no adequate
basis in the record to conclude that the agency's evaluation
of the awardee's proposed labor rates for positions that
were currently being filled by incumbent personnel complied
with the requirements of FAR 52.222-46 ("Evaluation of
Compensation for Professional Services").
My
computer is back up. Whew. |
|
March 16 |
In
BB Government Services srl, the ASBCA: (i) denied the
Government's motion to dismiss three counts of the Complaint
because all three arose from the same set of operative facts
as the constructive change claim originally presented to the
Contracting Officer for a decision; and (ii) denied the
Government's motion to dismiss two counts of the Complaint
as failing to state a claim upon which relief could be
granted because if the contractor's allegations proved to
be true, they would establish that the Government had a
design specification that was defective and that the
Government failed to disclose superior knowledge. |
|
March 15 |
n
Vectrus Services A/S, an unsuccessful protest which
involved complex questions of interpretation, the Court of
Federal Claims held that under applicable standards for
interpreting such documents, the terms of international
agreements, treaties, and diplomatic correspondence, as well
as practical construction and the course of conduct of the
signatory countries, required the agency to restrict the
competition in such a way that plaintiff was ineligible for
award, and, therefore, such restrictions did not violate
CICA.
My main computer is down at least through
Friday, and this back-up computer makes it much more
difficult to edit the site, so I will be limiting the
updates just to this blog page until the main computer is
repaired. |
|
March 14 |
In
Harmonia Holdings Group, LLC, on remand from the CAFC, the
Court of Federal Claims held that, where solicitation
amendments that were issued after offers were submitted
affected only staffing plans and corresponding sections of
the price proposals and did not materially affect the
offerors' technical proposals, the agency was not required
to permit amendments to those technical proposals,
especially because the procurement was not conducted
pursuant to FAR Part 15 procedures.
In
SEKRI, Inc., a successful preaward protest, the court held
that the agency would be enjoined from procuring less than
100% of its requirements from the sole qualified AbilityOne
provider of the contract items and from seeking a way to
procure 50% of its requirements from another source.
However, the court held that a claim seeking enforcement of
set price for the disputed AbilityOne items was not ripe for
review because the regulations established procedures for
AbilityOne to periodically adjust such prices and to resolve
disputes over them. |
|
March 13 |
General Dynamics Information Technology, Inc., won its
GAO protest because the agency's evaluators (a) did not
reasonably explain why the awardee’s past performance and
experience references were considered relevant and (b)
improperly assigned a strength to awardee's proposal
regarding experience.
Catching up on mail to this
website, I found a few emails thanking me for the site that
had gone straight to spam. To all--thanks for the nice
messages. |
|
March 10 |
In
Vigor Works, LLC, which involved contract interpretation,
the ASBCA held that the contract clearly contemplated that:
(i) a contractual document labeled the Integrated Program
Master Schedule was intended to be maintained, and updated,
by the contractor throughout the life of the contract to
reflect the contractor's current schedule planning; (ii) no
particular update of that document was intended to be an
enforceable schedule that could be used as the basis for a
constructive change claim against the Government; and (iii)
the contractor's interpretation to the contrary fell outside
the zone of reasonableness. |
|
March 09 |
In
True Excellence Group, LLC, the CBCA held that there was
sufficient information in the contract to characterize it as
an IDIQ contract with a guaranteed minimum, even absent
standard IDIQ provisions. The Board also: (i) dismissed the
claim that the Government failed to order the required
minimum because it had not previously been presented to the
Contracting Officer for a decision; (ii) held that the
exercise of options under the base contract did not result
in the exercise of task order options absent specific
language to that effect; and (iii) held the Government did
not breach the duty of good faith and fair dealing by
ordering only the required minimum quantity, so the risk
that providing only that quantity did not cover the
contractor's costs was on contractor. Subsequently, the
Board
denied the contractor's motion for reconsideration.
In
Hughes Group LLC, the CBCA converted a default
termination to a T for C because the Government waived its
right to terminate for deficient work by failing to
terminate for months after a cure notice while contractor
continued to work in a situation where the Government
initially refused to pay for the continued work but then did
so before issuing the default termination.
In
SBC Archway Helena, LLC, the CBCA held that a
builder/lessor was entitled to 138 days of compensable delay
in the Government's issuance of a notice to proceed (after
reducing the original claim by the number of delay days the
Board found to be attributable to the contractor). The Board
rejected the Government's contention that the claim was an
improper attempt to collect rent early.
In
Alares Constr., Inc., the CBCA denied the Government's
motion to dismiss a claim for lack of a sum certain because
the contractor did state a sum certain in the body of claim,
and claim attachments that included slightly different
amounts were submitted for the facts and information they
contained, not to establish the sum certain. The Board
denied the Government's motion for summary judgment that a
final release document signed by the contractor covered the
claim on appeal issue because factual issues remained on
that question.
In
Anglin Consulting Group, Inc., the CBCA held that: (i)
the contractor was not entitled to overhead and profit on
work deleted by a bilateral deductive change as a result of
a change in the agency's requirements; (ii) the Government's
decision not to exercise the final two yearly options was
unobjectionable due to a lack of proof of bad faith or
arbitrary and capricious conduct; (iii) the contractor
failed to prove the required elements of economic duress in
challenging the deductive mods; and (iv) the contractor
failed to prove the elements of breach of the implied duty
of good faith and fair dealing and bad faith in challenging
deductive mods and the decision not to exercise the options.
In
Brightwood Management Partners, the CBCA found no
evidence to support the contractor's contention that the
decision not to exercise an option resulted from the
Contracting Officer's unjustified animus toward the
contractor and his desire to replace it with one that the
Contracting Officer preferred. The Board also held that
deciding not to exercise an option does not breach the
implied duty of good faith and fair dealing, and delays in
issuing task orders did not breach that duty either because
(a) the delays were caused by outside funding issues and (b)
the contractor was not required to perform before the task
orders were issued. |
|
March 7 |
In
Vectrus Systems Corp., the ASBCA: (i) rejected the
parties' joint request that the Board issue an order (a)
recognizing entitlement and (b) remanding the case to the
parties for a determination of quantum; and, instead, (ii)
dismissed the appeal as moot because the Contracting Officer
had withdraw the decision that had been appealed and had
issued a new decision recognizing entitlement and inviting
the contractor to submit a quantum claim.
The CBCA
denied cross motions for summary judgment in
Management Technology, Inc. because the parties did not
produce (and apparently did not have) copies of the task
order or the underlying contract. Yep, sort of hard to
decide a contract dispute absent the contract.
mLINQS, LLC won some skirmishes but lost the war in its
protest. Specifically, the Court of Federal Claims held
that: (i) the protest challenging the cancellation of a
solicitation filed 10 months after the cancellation was
neither foreclosed by Blue & Gold Fleet
nor otherwise untimely because the reasons for the
cancellation were not apparent at the time, leaving the
protester with the impression that the solicitation could be
reinstated once a PIA investigation was concluded; (ii) the
FASA task order bar did not apply here because the protester
was not challenging the solicitation, itself, but rather the
adequacy of the agency's actions (a) in conducting market
research to determine the procurement vehicle and (b) in
complying with the standards for deciding whether to set
aside the procurement; (iii) after an appropriate Rule of
Two analysis concluded there were not two small businesses
capable of performing the requirement, the agency was not
required to conduct a new Rule of Two analysis before
changing procurement vehicles the very next year; (iv) the
agency conducted adequate market research to determine
whether a satisfactory commercial solution was available
(as opposed to a development approach); and (v) the
cancellation of the solicitation was within the Contracting
Officer's sound exercise of his discretion because of the
PIA investigation and the agency's decision to add licensing
requirements before bids had been received. |
|
March 6 |
In
Rice Solutions, LLC, the CBCA denied the contractor's
claim for on-call certified registered nursing anesthetist
hours because those services were included in the basic
contract rate. |
|
March 3 |
In
IXI Technology Electronic Warfare, LLC, dba IXI EW8, an
unsuccessful protest against an agency's decision to cancel
a solicitation made while taking corrective action on a
prior protest, the Court of Federal Claims held that, while
the cancellation decision was "triggered" by the prior
protest, that decision, nevertheless, had a rational basis
in the record based on the agency's requirements, presuming,
as the court must, that the agency acted in good faith. |
|
March 2 |
DFARS Case 2022-D010: DoD has adopted as final, without
change, an interim rule amending the DFARS to implement a
section of the NDAA for FY 2022 that requires a disclosure
from entities that employ one or more individuals who will
perform work in the People’s Republic of China.
DFARS Case 2021-D008: Effective March 16, a final rule
amends the DFARS to remove clause 252.232–7017
("Accelerating Payments to Small Business
Subcontractors—Prohibition on Fees and Consideration"),
which prohibits the contractor requiring any further
consideration from or charging fees to the small business
subcontractor in exchange for making accelerated payments,
because the clause and its proscription are no longer
necessary due to other provisions in the FAR.
DFARS Case 2021-D001: A final rule amends the DFARS to
implement a GAO recommendation regarding expediting quick
close out procedures. This rule states that the amount of
unsettled direct costs and indirect costs to be allocated to
the contract, task order, or delivery order will be
considered relatively insignificant when the total unsettled
direct costs or indirect costs to be allocated do not exceed
$2 million. Additionally, DCMA administrative contracting
officers may negotiate the settlement of direct and indirect
costs for a specific contract, task order, or delivery order
to be closed in advance of the determination of final direct
costs and indirect rates set forth in FAR 42.705 regardless
of the dollar value or percentage of unsettled direct or
indirect costs allocable to the contract. |
|
March 1 |
In
Angela Wilson, the PSBCA upheld a default termination
for (admitted) abusive behavior (threats and insults)
directed at the public by the carrier (who also had an
unauthorized rider in her vehicle). The Board noted alleged
provocation was no excuse. |
|
February 28 |
GSAR Case 2022-G513: The GSA is proposing to amend the
GSAR to remove GSAR Clause 552.232–1 ("Payments") and any
corresponding references to the clause because the GSA has
determined the existing FAR clause 52.232–1 ("Payments") is
sufficient. The GSAR clause requires, in certain
transactions, that the Government to pay a contractor
without the submission of a proper invoice for
non-commercial fixed price contracts for supplies or
services; whereas the FAR currently requires that the
Government pay a contractor only after receipt of the
contractor’s proper invoice or voucher. Comments are due by
May 1. |
|
February 27 |
In
Amalgamated Services, Inc., the CBCA held it lacked
jurisdiction over an appeal from the Contracting Officer's
denial of an uncertified claim in excess of $100,000.
In
Team Systems Int'l, LLC, the CBCA held the contractor
was not entitled to recover a restocking fee after the
Government decreased the number of bottled waters it ordered
because the contract unambiguously required the contractor
to incur costs before it could recover such fees, and it did
not require any actual restocking. |
|
February 24 |
In
Aries Constr. Corp., the Court of Federal Claims held it
had jurisdiction over a claim for breach of the implied duty
of good faith and fair dealing based on the Contracting
Officer's denial of the constructive change claim submitted
to him. In other words, the Contracting Officer's decision
on the original claim supplied a necessary element of the
breach claim (undermining a contractual promise by failing
to pay the contractor on its claim for extra work). I'm not
convinced by this reasoning. Are you? |
|
February 22 |
In
NAICS Appeal of Laredo Technical Services, Inc.,
the SBA's OHA held that in a solicitation for on site
Optometry Provider Services and Ophthalmology Health
Technician/Certified Ophthalmic Assistant (COA) services,
appellant's choice of NAICS code 621320 ("Office of
Optometrists") was preferable to the Contracting Officer's
designation of NAICS code 561320 ("Temporary Help
Services"). |
|
February 21 |
In
In the Matter of Partners In Energy, L.L.C.,
the SBA's OHA held that a franchise agreement gave the
franchisor the power to control the franchisee, which was,
therefore, ineligible for verified SDVOSB status. The
interesting thing about the decision is that the OHA (i)
recognized that the applicable regulations make it almost
impossible for a franchise agreement to survive the current
test for control and (ii) implied the regs need to be
revised.
In
CVE Appeal of LpM Supply Inc., the OHA upheld the
denial of a firm's application as a verified SDVOSB
because provisions in its bylaws requiring a majority of
directors to take certain actions did not establish the
requisite control by 51% owner/disabled veteran, and an
amendment to the bylaws made after CVE's denial decision was
late and did not cure the problem, despite multiple
opportunities provided by CVE for the appellant to address
the problem earlier.
In
AccelGov, LLC, an unsuccessful post-award protest, the
Court of Federal Claims held that: (i) it would not, as
suggested by the Government and intervenor, initially
address the protester's standing on each of its protest
grounds individually, but concluded it had standing on its
protest as a whole; (ii) there was a rational basis for the
evaluators' assignment of a weakness where the protester's
proposal either failed to address certain elements of the
PWS or merely parroted its provisions; (ii) the assignment
of a weakness to the protester's phase-in plan lacked a
rational basis; (iii) the agency treated offerors unequally
in only one of 10 areas complained of by the protester; and
(iv) even if the agency had not made the two errors noted
above and had disqualified the awardee for the material
misrepresentation alleged by the protester, the protester
still would have received its "marginal" rating, would not
have been selected for award over two higher-rated offerors,
and, therefore, could not show prejudice. |
|
February 20 |
In Size Appeal of
Focus Revision Partners, the SBA's OHA reversed the
Area Office's determination because the challenged
mentor-protégé JV agreement did not provide sufficient
detail to meet the requirements of 13 C.F.R. § 125.8(b)(2)
and (c). Specifically, the OHA noted that a JV Addendum was
not signed and was not created until after the date of final
proposal revisions. Moreover, had the Addendum been
considered, the JV agreement did not describe in sufficient
detail each party's duties with regard to the project, even
under the relaxed standards applicable to an indefinite
quantity contract. |
|
February 19 |
The SBA's OHA has issued four brief decisions dismissing
appeals for lack of jurisdiction because each of them
involved only a refusal to certify a firm as an SDVOSB
solely because its owner had not established he was a
veteran. I am publishing one of them as a representative
example:
VSBC Appeal of
Newport Hall, Inc.. |
|
February 17 |
In
Thalle/Nicholson Joint Venture, an unsuccessful post-award
protest, the Court of Federal Claims held that: (i) although
the JV/plaintiff had standing to challenge the Government's
determination that it was ineligible for award due to its
failure to register in the SAM database, the solicitation
clearly required the offeror to be registered in SAM, and
the plaintiff only supplied evidence that each of the JV
members was individually registered; and (ii) the fact that
the Government had not noticed the problem until after
discussions were concluded (and, therefore, had not raised
the issue during discussions) did not prejudice the
plaintiff because the registration requirement had to be
completed at the time of initial proposal submission.
In
Derian, Inc., the ASBCA granted the Government's motion to
dismiss an appeal based on the Contracting Officer's alleged
failure to issue a timely decision because the contractor
did not provide any evidence that a claim had ever been
submitted to the Contracting Officer.
In
ServFed, Inc., the ASBCA: (i) denied the Government's
motion to dismiss an appeal for lack of jurisdiction based
on the contractor's alleged request for specific performance
to correct an inaccurate CPAR; and (ii) permitted the
contractor to amend the Complaint to cure the alleged
jurisdictional defect because (a) that was fair to both
parties and did not prejudice the Government, and (b) the
amended Complaint was based on the same operative facts as
the original Complaint.
In
Beechcraft Defense Company, LLC, Beechcraft Corporation,
Textron Aviation Inc., and Textron Aviation Defense, LLC,
the ASBCA denied the contractor's motion for summary
judgment that the Government's CAS claims were barred by the
six-year limitations period because there was, as yet,
insufficient evidence in the record to make the
determination when the Government first should have known of
the basis of its claim. |
|
February 16 |
Effective March 17, the SBA is increasing 144 of its its
employee based size standards
(and retaining 268 others) for NAICS sectors related to
Mining, Quarrying, and Oil and Gas Extraction (Sector 21);
Utilities (Sector 22); Manufacturing (Sector 31–33);
Transportation and Warehousing (Sector 48–49); Information
(Section 51); Finance and Insurance (Sector 52);
Professional, Scientific and Technical Services (Sector 54);
and Administrative and Support, Waste Management and
Remediation Services (Sector 56). The SBA is also retaining
the current 500-employee size standard for federal
procurement of supplies under the nonmanufacturer rule.
The Department of Education is proposing an
extensive set of modifications to the its Acquisition
Regulation (EDAR) to revise aspects of those regulations
that are out-of-date or redundant with other Department of
Education policies and procedures and to accurately
implement the current FAR and Department policies. Comments
are due by April 3.
Effective March 17, DHS is
adopting as
final, with only minor changes, the proposed rule
amending the Homeland Security Acquisition Regulation (HSAR)
in order to implement a new subpart and new contract clause
(i) to establish contract termination policies for the
United States Coast Guard and (ii) to amend a clause to
address the applicability of the Coast Guard's contract
termination policy to commercial items. |
|
February 14 |
Federal Acquisition Circular (FAC)
2023-02 has been published and includes the following
two items plus technical amendments:
FAR Case 2020-007: Effective March 16, a final rule
amends the FAR by implementing section 873 of the NDAA for
FY 2020, which provides for accelerated payments to
contractors that are small businesses and to small business
subcontractors by accelerating payments to their prime
contractors.
FAR Case 2019-008:
Effective March 16, a final rule amends the FAR to conform
the FAR to changes the SBA made to its regulations in its
final rule
published on November 29, 2019, which implemented several
provisions of the NDAAs for FY 2016 and 2017 and the
Recovery Improvements for Small Entities After Disaster Act
of 2015 (RISE Act) and also clarified existing regulations.
NASA is
proposing to amend the NASA Federal Acquisition
Regulation Supplement (NFS) to reflect updates to NASA’s
Mentor Protege Program (MPP) including: the requirement of
Small Business Specialists’ concurrence on the signed letter
of endorsement; requirements associated with credit received
towards subcontracting goals; the change of the MPP
reporting requirement from semi-annually to annually;
identification of the NASA Mentor Protege Program Office;
and clerical, semantic improvements. NASA also proposes to
amend the NFS language to reflect the annual negotiation of
its small business percentage goals. Lastly, the NFS will be
amended to emphasize collaboration amongst representatives
from the Office of Small Business Programs, Office of
Procurement, and Program Offices to reduce barriers to entry
and to opportunities for all small business concerns and
Historically Black Colleges and Universities or Minority
Institutions. Comments are due by April 17. |
|
February 13 |
In
Abacus Technology Corp. and Valdez Int'l Corp., which
involved unsuccessful consolidated preaward protests against
the elimination of two firms from advancing to the next
phase in a multi-step competition, the Court of Federal
Claims held,
inter alia, that: (i) the incumbent/protester
lacked standing on its claims that the agency had
unauthorized communications with some offerors concerning
their past performance in a later stage of the procurement
and should have provided the protester with a more detailed
preaward debriefing because at the time each of these events
occurred, the protester had already been eliminated based
solely on its price and was no longer under consideration
for the award; (ii) the other protester's total evaluated
price was so much higher than any proposal taken to next
step of procurement and its ranking so much lower than those
who advanced, it did not have standing to maintain any
of its protest issues; (iii) the agency was not required to
advance any specific number of proposals to the next phase;
(iv) the agency was not required to evaluate additional
proposals when some of those that made the original cut were
found to have correctable errors; (v) communications with
some offerors concerning past performance in Step 2, even if
they constituted improper discussions, did not prejudice the
protester because it already had been eliminated from the
competition on the basis of price alone; (iv) the evaluation
of professional compensation packages had a rational basis
even though it was not exhaustively documented; (v) the
agency's erroneous disclosure of labor categories used by
incumbent/protester on its prior contract did not constitute
a Procurement Integrity Act violation because (a) it was the
agency that made the mistake, and (b) the information was
contract performance data, not contractor bid and proposal
information; and (vi) the amount of information provided by
the agency to the protester in the preaward debriefing
complied with the FAR's requirement. I suppose this latter
point is dicta since the court already ruled the plaintiff
lacked standing to make this claim.
In
KOAM Eng'g Systems, Inc., an unsuccessful post-award
protest involving allegations of the appearance of a
conflict of interest involving a married couple, one of whom
worked for the Government and the other for the awardee
(including preparing its proposal), the court held that: (i)
a Contracting Officer is not required to undertake a
separate investigation into the "appearance of a conflict of
interest" in addition to an investigation of an "actual
conflict of interest"; (ii) the multiple results of the
detailed investigation conducted by the Contracting Officer
into conflict of interest allegations established that there
was no personal conflict of interest involving the married
couple, as evidenced by (a) the concrete steps they took to
avoid it, (b) unrebutted declarations that no improper
disclosure of information had occurred, (c) the lack of
participation in the solicitation preparation and evaluation
process by the individual in question, and (d) the relative
insignificance of the data that the plaintiff alleged might
have been disclosed. |
|
February 10 |
AttainX, Inc.
won its GAO protest because: (i) the agency violated SBA
regulations for mentor-protégé JVs by failing to evaluate
the experience of individual members of the 8(a) JV awardee
when the JV, itself, lacked experience; and (ii) the agency
miscalculated the number of full-time equivalent staff in
the awardee’s price quotation and used this incorrect number
to determine that the awardee’s staffing level was
realistic. |
|
February 9 |
In
CanPro Investments, Ltd., which involved claims under a
lease, the Court of Federal Claims, inter alia: (i)
refused to strike the amended Complaint filed without leave
of court because there was no showing of prejudice to the
defendant; (ii) held that the contractor lacked standing to
complain of the behavior of third party visitors to an SSA
office (because these were not acts of the Government) but
also found the contractor had standing to complain of the
sheer volume of visitors because the 'normal and customary
use' of the leased premises did not contemplate a limitless
number of visitors, especially where the Government required
in person attendance by some of them; (iii) dismissed claims
for economic damages because adequate claims were not
previously presented to the Contracting Officer for a
decision and because the contractor could not use the
court's discovery process to remedy deficiencies in its
original presentation to the Contracting Officer; and (iv)
dismissed certain damages claims because the contractor
failed to present evidence of causation. The decision was
subsequently
reissued upon reconsideration See May 5 entry above. |
|
February 8 |
In
Betance Enterprises, Inc., the ASBCA held that, under the
"Permits and Responsibilities" clause, the contractor was
responsible for the cost of repairing roofs damaged by
hailstorms after the contractor began working on the roofs
but prior to project completion and issuance of the
requisite roof warranties, and prior to government
acceptance of the work.
In
Dynamic Systems Technology, Inc., the ASBCA held that
under the Service Contract Act, the contractor was
responsible for the increased costs after it knowingly
failed to utilize and price the proper labor category in its
offer, anticipating that it would submit a claim for an
equitable adjustment after award and that the claim would be
granted.
In
CJW Contractors, Inc., the ASBCA held that the
contractor's interpretation of the contract's requirements
(that pipe hanger support would be installed from the
existing steel W and S roof beams and that new roof beams
would not be required) was reasonable, and any ambiguities
in those requirements were latent. Subsequently, the
Government's motion for reconsideration was
denied.
In
Tantara Corp., the ASBCA held, inter alia, that:
(i) the limits on the number of interrogatories in the
Federal Rules of Civil Procedure do not apply in ASBCA
appeals; (ii) although the Board will not direct the
Government to adopt the contractor's definition of a term
for purposes of responding to interrogatories, the proper
course is for the Government to object to the disputed term
and then to answer the interrogatories as best as it can;
and (iii) contention interrogatories are permissible prior
to the conclusion of discovery to the extent that they aid
in narrowing the issues.
The CBCA sustained an
appeal by
Rooker Coweta LLC because the lease in question
unambiguously required that the parties calculate the Real
Estate Tax Base through the full assessment method rather
than by using a negotiated tax base.
The CBCA
dismissed the appeals in
Monbo Group Int'l because, inter alia: (i) the
Government not required to exercise any contract options
and, therefore, did not breach the contract by failing to do
so; and (ii) nothing prevented the Government from changing
Contracting Officers, and the new Contracting Officer had
the proper warrant. |
|
February 7 |
In its latest decision on the
Michael Stapleton Assocs., et al. preaward
protests, the Court of Federal Claims generally affirmed its
prior order pursuant to which the Postal Service would
phase out a company and prohibit its future performance as a
result of organizational conflicts of interest that tainted
solicitations. |
|
February 6 |
In
Next Phase Solutions and Services, Inc., an unsuccessful
post-award protest seeking a preliminary injunction, the
Court of Federal Claims held that: (i) the solicitation
required offerors to provide a specific approach to meeting
its requirements, rather than the "analysis of
alternatives" proposed by the protester (the "analysis of
alternatives" being a task for the contractor after award);
and (ii) the protester's proposed price was closest to the
IGCE only because the agency had made a mistake in
calculating its IGCE.
In
ARxIUM, Inc., the court determined the quantum of bid and
proposal costs owed to the contractor following its prior
protest, holding that the contractor could not recover its
employees' costs or attorneys' fees incurred after the
injunction was entered in the original protest when no new
proposal had thereafter been submitted. The court also held
the contractor could not recover for "lost opportunity"
costs. |
|
February 2 |
In NAICS Appeal
of Prime Physicians, the SBA's OHA held that in a
solicitation for "professional medical (i.e., clinical) and
medical support services to either supplement existing
medical staffs or provide full operational services on-site
or off-site in support of mission requirements within
federal hospitals, clinics, and dental facilities,"
appellant's choice of NAICS code 621111 ("Offices of
Physicians") was preferable to the Contracting Officer's
designation of NAICS code 622110 ("General Medical and
Surgical Hospitals").
DFARS Case 2018-D066: A final rule has been published
amending the DFARS by replacing all instances of "commercial
item"’ with "commercial product" and/or "commercial
service."
DFARS Case 2022-D009: An interim rule has been published
amending the DFARS to implement a section of the NDAA for FY
2022 that restricts the acquisition of personal protective
equipment and certain other items from the Democratic
People’s Republic of North Korea, the People’s Republic of
China, the Russian Federation, and the Islamic Republic of
Iran. Comments are due by April 3.
DFARS Case 2017-D018: A final rule has been published
amending the DFARS to implement a section of the NDAA for FY
2017 that makes amendments regarding the treatment of
independent research and development expenditures and
requires the DCAA to provide an annual report to Congress on
independent research and development and bid and proposal
expenditures associated with awarded DoD contracts for the
prior Government fiscal year.
DFARS Case 2022-D006: A proposed rule would amend the
DFARS to to implement a section of the NDAA for FY 2022 that
authorizes the DoD to acquire innovative commercial products
and commercial services using general solicitation
competitive procedures, as well as a section of the NDAA for
FY 2023 that makes an amendment to that authority. Comments
are due by April 3. |
|
February 1 |
In
OSC Solutions, Inc, the ASBCA held that, because the
appellant had made a non-frivolous allegation of an
implied-in-fact contract, the Board would not dismiss for
lack of jurisdiction but would save the issue of whether the
contract was valid for a decision on the merits. |
|
January 31 |
AT&T Corp.
won its GAO protest because there was no adequate
explanation in the contemporaneous record for why the SSA
had removed numerous strengths assigned to the protester's
proposal by the original evaluators.
The GAO also
sustained a protest by
RemedyBiz, Inc.
because there was no adequate explanation in the record for
the past experience evaluation. |
|
January 30 |
In
Matter of Strategic
Alliance Solutions LLC,
on remand from the CoFC overturning a
prior OHA decision, the
SBA's OHA held that an SDVOSB JV agreement provision
requiring the approval of non managing venture members for
(a) the initiation of any claim or litigation under the JV
contracts and (b) any final decision to continue prosecution
of, or settle, such litigation or claim was not
objectionable.
In
Size Appeal of VMJR Companies LLC, the OHA upheld
the Area Office's use of a negative inference to make its
size determination after the protested firm failed to timely
file clearly relevant documents (tax returns) requested by
the Area Office. |
|
January 27 |
Effective February 24, the VA is issuing
a final rule
amending the its Acquisition Regulation (VAAR) by adding a
part covering Acquisition of Information Technology and
revising coverage concerning Other Contracts for Goods and
Services involving mandatory information, privacy, and
security requirements to include policy concerning VA
sensitive personal information, information security, and
liquidated damages requirements for data breach. |
|
January 26 |
In
Heart & Core LLC, the ASBCA held that a fixed-price
contract placed the risk of increased
material/labor/shipping costs on the contractor, and the
pandemic did not change that calculus. Subsequently, the
Board
denied the contractor's motion for reconsideration. |
|
January 25 |
The GAO sustained a protest by
Sparksoft Corp.
because: (i) the agency unreasonably assigned a strength to
the awardee's proposal based upon an assumption rather than
anything stated in that proposal and then compounded that
problem by assigning a weakness to the protester's proposal
on the basis that the agency could not make any assumptions
concerning it; and (ii) there was no rationale in the record
to explain the agency's conclusion that the awardee would be
able to easily overcome evaluated weaknesses in its proposal
related to a lack of corporate experience. |
|
January 23 |
In
Alan E Fricke Memorials, Inc., the CBCA overturned a
termination for cause because the contractor was not late on
deliveries at the time of the termination, and the agency
failed to provide a proper cure notice requesting adequate
assurances of future performance.
In
Mather Enterprises, the CBCA denied the agency's motion
to dismiss an appeal for failure to state a claim for the
agency's (lessee's) alleged failure to maintain the leased
premises in good repair and condition because the agreement
between parties assigned the agency that responsibility.
In
SAL Logistics, the CBCA held that (contrary to the
Government's contention), the record indicated the
Contracting Officer's representative had the authority to
direct the contractor to perform the extra work in question,
and, therefore, the contractor was entitled to the portion
of its claimed costs that it substantiated with adequate
proof. |
|
January 18 |
In
Schneider Electric Buildings Americas, Inc., the Court of
Federal Claims, inter alia: (i) overturned a
default termination that had been based on an alleged
failure to make progress so as to endanger performance
because the Government's research efforts at the facility in
question (which the failure to make progress allegedly
hindered) were not among the performance goals stated in the
contract, i.e., the basis for the termination
lacked a "close nexus" to a clear violation of contract
terms; and (ii) held that the Government's unilateral
withholding of progress payments breached the contract
because no contract provision authorized withholding in the
circumstances cited by the Government to justify it. |
|
January 17 |
In
22nd Century Technologies, Inc., the Court of Appeals
for the Federal Circuit affirmed the
prior CoFC decision finding it lacked jurisdiction over
a protest contesting an SBA OHA decision because it related
to the award of a task order and was, therefore, barred by
FASA. |
|
January 16 |
In
Eagle Technologies, Inc., an unsuccessful post-award
protest, the Court of Federal Claims held that: (i) the
plaintiff's motion to amend its Complaint must be denied
because filing the motion was unduly delayed through the
plaintiff's own lack of diligence in discovering the basis
for its proposed amendment; (ii) the agency was not required
to evaluate a factor in awarding a BPA that was not
mentioned among the evaluation factors for award, and, if
there were an ambiguity concerning the evaluation factor, it
was a patent ambiguity that the plaintiff should have
protested prior to award; and (iii) the agency did not use
the disputed evaluation factor in evaluating the awardee
and, therefore, did not treat the competitors unequally.
In
Groundbreaker Development Corp., the court held that: (i)
it lacked jurisdiction over portions of a count in the
Complaint that asserted monetary claims (e.g. for
nonpayment of an invoice and for termination for convenience
costs) related to a default termination but
not previously presented to the Contracting Officer for a
decision; (ii) a corporation whose status previously had
been terminated in the incorporating state lacked standing
to sue; and (iii) the plaintiff's motion to amend the
Complaint to allege de facto incorporation status
as of the time of commencing suit would be granted, without
deciding the merits of that allegation. |
|
January 13 |
In
Garrett Electronics, Inc., an unsuccessful post-award
protest, the Court of Federal Claims held that: (i) under
the highly deferential standard that the CAFC's precedent in
Dell Federal Systems, L.P., required it to use to
evaluate corrective action, the agency's decisions to
solicit revised proposals rather than simply to reevaluate
and then to undertake additional corrective action had
rational bases in the record; (ii) the agency treated
offerors equally in conducting corrective action by
communicating to each the significant areas of weakness in
its proposal; and (iii) the protester offered no evidence to
support its contention that the awardee learned of the
protester's price during corrective action. |
|
January 12 |
In
SLS Federal Services, LLC, a successful protest against an
agency's implementation of corrective action, the Court of
Federal Claims held that: (i) where the agency had
undertaken corrective action in response to a GAO protest
instead of asserting a meritorious Blue & Gold Fleet
defense, the protester was not barred by
Blue & Gold Fleet from protesting the implementation of that
corrective action; (ii) the corrective action did not
address the problem that agency did not request any price
information and, therefore, did not conduct any price
reasonableness evaluation; (iii) the agency abused its
discretion by failing to conduct discussions pursuant to
DARS 215.306 without providing an adequate justification;
and (iv) Blue & Gold Fleet did not require the
protester to challenge the solicitation's statement that the
agency did not contemplate holding discussions where the
solicitation reserved the agency's right to do so. |
|
January 11 |
The ASBCA sustained an appeal by
KiewitPhelps because: (i) the agency's master
specification was a design specification; (ii) the
specification was defective because following it resulted in
mold growth; (iii) the defective specification was not
patent; (iv) nothing in the contractor's conduct caused the
mold; and (v) the Government constructively changed the
contract by mandating a change in a product in response to
the mold problem. The Board also, held, however, that agency
did not breach its duty of good faith and fair dealing in
responding to the mold issue.
The ASBCA denied an
appeal by Wright
Brothers, the Building Co.
mainly because: (i) the appellant failed to establish that
delays allegedly attributable to the Government affected the
critical path; (ii) mere delay without a change to the
essential nature of the construction project did not
constitute a cardinal change; and (iii) assertions of delay
without proof of an affect on the critical path did not
amount to a constructive change. |
|
January 8 |
The GAO sustained a protest by
Spatial Front, Inc. because there was no basis for the
agency's determination that the labor categories proposed by
the awardee for a task order award were within the scope of
the awardee's FSS contract. |
|
January 4 |
In
Secy. of Defense v. Raytheon Co, Raytheon Missile Systems
the Court of Appeals for the Federal Circuit reversed the
prior ASBCA decision and held that the contractor's
incurred-cost submissions accounted only for unallowable
costs incurred during regular hours and ignored after-hours
lobbying and, therefore, did not accurately reflect the
proportion of time that the contractor's employees spent on
after-hours unallowable lobbying activities. |
|
January 3 |
This one made my head spin a little. In
Size Appeal of Special Operations Group, Inc.,
the SBA's OHA dismissed an appeal filed by a parent company
contesting the dismissal of its subsidiary's size protest
against the recipient of a BPA. The original size protest
had been dismissed because the subsidiary had not bid on the
procurement and because its protest was untimely. The parent
company/appellant had bid on the procurement and had been
awarded one of the BPAs, which had subsequently been
terminated.
In
CVE Protest of NEIE Medical Waste Services, LLC,
the OHA dismissed an SDVOSB status protest because the
agency had undertaken corrective action and the protested
firm was no longer the awardee. |
|
January 1, 2023 |
Happy New Year!
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