The GAO published two decisions sustaining protests.

In SeKON Enterprise, Inc.; Signature Consulting Group, the GAO found a  lack of meaningful discussions because, based on an incomplete analysis of the protester's proposal, the agency misled the protester during discussions by directing it to increase its proposed staffing (and thus its costs).

In The Argos Group, a protest against the terms of a solicitation, the GAO held that the GSA improperly failed to include the 10 percent price evaluation preference for HUBZone small business concerns mandated by the Historically Underutilized Business Zone Act of 1997, 15 U.S.C. § 657a(b)(3)(B), because the statute applies "in any case in which a contract is to be awarded on the basis of full and open competition," and (i) the lease that will result from this procurement is a contract; (ii) the agency is using full and open competition to award the contract; and (iii) there is no language in the statute suggesting that an exception is applicable for GSA lease procurements.

In The Boeing Co., the ASBCA dismissed a government claim against the contractor (for increased costs allegedly incurred by the Government as a result of a voluntary change in the contractor's accounting system) because the Contracting Officer's decision asserting the government claim was not issued within the CDA's six-year statute of limitations (41 U.S.C. § 7103(a)(4)(A), formerly 605(a)). The ASBCA (i) examined whether any of several recent appeals court (including Supreme Court) decisions had changed the conclusion that the CDA's is a jurisdictional statute of limitations and (ii) concluded they had not.

In Distributed Solutions, the ASBCA engaged in a good analysis of a contract interpretation issue and granted partial summary judgment to the Government because its interpretation of disputed language in a contract modification was the only reasonable one and was not in conflict with any other contractual language.

I've cleaned up a bunch of broken links on the Statutes page.

In Structural Concepts, the Court of Federal Claims denied cross motions for partial summary judgment as to the propriety of government counterclaims for liquidated damages because such damages cannot not be quantified until after resolution of delay claims that have been reserved by the parties for trial on the merits.

In Century Exploration New Orleans, Inc., And Champion Exploration, LLC, the court discussed (at length) the evolution of the case law on the subject before concluding that the contractor was not prohibited from asserting a Fifth Amendment "Takings" claim and a breach of contract claim as alternative theories in the same Complaint.

In South Fuels, a spent nuclear fuel case, the Court of Appeals for the Federal Circuit (a) affirmed (i) the CoFC's denial of a claim for the cost of borrowed funds and (ii) the CoFC's causation analysis and revised award of nominal damages; and (b) reversed the CoFC's denial of overhead costs. 

In CRAssociates, the Court of Federal Claims denied a protest asserting multiple grounds allegedly showing that the agency's second evaluation after a prior successful bid protest was a mere pretext to justify re-award to the original awardee:

In seeking to overturn this award, plaintiff attempts to pile a Pelion of conjecture upon an Ossa of speculation, literally raising dozens of alleged errors in contending that, from the outset, the Army intended to make a second award to Spectrum. But reminiscent of the Greeks of old, whose stone pile atop Mt. Olympus failed to reach the heavens, plaintiff ultimately fails to convince this court that the second set of evaluations performed by the Army was a pretext for giving the contract to its competitor.

In URS Federal Services, the court (i) denied the Government's request to reconsider a prior decision declaring an agency override of an automatic stay to have been improvidently issued and (ii) concluded that the court is not required to use the four-factor test for injunctive relief when analyzing the merits of an automatic override for purposes of issuing a declaratory judgment.

In Ceradyne, an unsuccessful protest, the court held that the Government's decision to modify one awardee's contract to add items that were supposed to have been produced by another contractor that had defaulted on its companion contract (i) was a type of modification contemplated by the original solicitation, (ii) was within the scope of the awardee's contract and (iii) was not an improper sole source award in violation of CICA. The court also held that the plaintiff's complaint about the Government's alleged failure to conduct a proper responsibility determination should be dismissed as moot because the same claim was previously settled as part of a prior GAO bid protest.

In SUFI Network Services, the court denied the Government's motion to dismiss a complaint in a direct appeal to the court from the Government's failure to issue a decision on the contractor's claim for attorneys' fees submitted after a prior successful ASBCA case on the merits (despite the fact that the 1979 version of the "Disputes" clause in this non-appropriated fund contract only provided for an appeal to the ASBCA) because the Government breached the "Disputes" clause by failing to issue a decision on the contractor's claim within a reasonable time--meaning the clause was no longer controlling on this issue. I'm not sure I agree with the reasoning here; perhaps there is a way to reach the same conclusion that is more compelling.

In Railway Logistics International, the court denied the contractor's $6 million in breach claims (on a contract worth less than $2.5 million) and granted the Government's counterclaims for forfeiture under a special plea in fraud based on a contractor spreadsheet concerning the claim quantum revealed during discovery. The court left little doubt how it felt about the spreadsheet and the contractor's claim in general:

          RailwayLogistics could not support its claim because of fraud and misrepresentation of fact. Every item on the spreadsheet that served as plaintiff’s support for its claim was overstated or imaginary. Contents of the spreadsheet alone provide clear and convincing evidence that RLI practiced fraud "against the United States in the proof, statement, establishment, or allowance" of its claim. 28 U.S.C. § 2514. 
          Trial of this case revealed that defendant’s business relationship with RLI had no redeeming aspect; it caused a grievous waste of limited resources and hindered the Government’s rebuilding efforts in Iraq. RLI was in obvious breach of both contracts, yet defendant terminated them for convenience of the Government. This would have allowed plaintiff to walk away with little or no cost to itself, yet it sued the Government for millions of dollars on a specious claim, thereby creating still more waste of valuable time and resources.
          The Government limited its counterclaims to the most obvious and outrageously inflated fraudulent claims. Given that restraint, the category of claims that RLI could not support because of "misrepresentation of fact or fraud by the contractor" totaled $1,175,160. See 41 U.S.C. § 7103(c)(2). . . .
          Any amount of RLI’s claim that might have been valid, or could have remained after applying statutory penalties would be forfeited pursuant to the special plea in fraud. 28 U.S.C. § 2514. Statements contained in the spreadsheet alone support a finding, by clear and convincing evidence, that plaintiff attempted to practice a fraud "against the United States in the proof, statement, establishment, or allowance" of its claims.

In Philip Emiabata d/b/a/ NOVA EXPRESS, the court held that the Government properly terminated a Postal Services contract for default after the contractor failed to provide the Contracting Officer with proof that it had obtained the contractually-required liability insurance that would enable it to begin performance.

DFARS Case 2011-D034: DoD has adopted as final, without change, an interim rule amending the DFARS to  establish a pilot program to assess the feasibility of acquiring military-purpose nondevelopmental items using streamlined procedures.

DFARS Case 2011-D040: DoD proposes to amend the DFARS to update text addressing the definition of cost or pricing data to make it consistent with the FAR. Comments are due by March 19.

DFARS Case 2011-D054: DoD proposes to amend the DFARS to update DoD’s voucher processing procedures and better accommodate the use of Wide Area WorkFlow. Comments are due by March 19.

DFARS Case 2012-D002: DoD proposes to amend the DFARS to establish an order for application of contract modifications to resolve any potential conflicts that may arise from multiple modifications with the same effective date. Comments are due by March 19.

In Size Appeal of Excalibur Laundries, Inc., the SBA's OHA held that the Area Office was not required to consider a specific allegation of affiliation first raised after the deadline for filing a size protest in a negotiated procurement had passed.

In Size Appeal of Rio Vista Management, LLC, the OHA found that the Area Office's size determination contained multiple errors, including (i) reliance on circumstances occurring more than three years before the date of the size determination; (ii) finding affiliation from assistance properly provided under an approved 8(a) mentor-protégé agreement; (iii) finding a violation of the newly-organized concern rule when the protested firm's founder was not in one of proscribed positions at the predecessor firm; and (iv) finding affiliation based on an identity of interest between two individuals when neither of them controlled the allegedly affiliated firm.

The GAO sustained a protest by Veterans Contracting Group after the agency improperly rejected a bid as nonresponsive for proposing a brand of chiller and refrigerant that the agency simply did not like, when the specifications neither prohibited those items nor required a different brand.

The Court of Federal Claims denied a protest by Brooks Range Contract Services, after concluding the plaintiff lacked standing (i) with respect to an argument it was required to, but did not, raise in its initial brief and (ii) because it did not establish it would have had a substantial chance for award if its protest had been sustained. The court also rejected the plaintiff's argument that the awardee's contractor teaming agreement should have been analyzed as a joint venture (although the court did concede that the agency's (and the solicitation's) guidance concerning the requirements for a teaming agreement were far from clear).

Science Applications International Corp. survived preliminary motions to dismiss its complaint for lack of standing based upon the evaluation of its management proposal as unacceptable (even though the court indicated this argument could be raised again in motions on the merits for judgment on the administrative record).

On a brighter note (at least for protesters), BayFirst Solutions won its protest at the Court of Federal Claims because the evaluators (i) irrationally awarded a strength to the awardee for inadequate resumes while declining to assign a strength to the protester for resumes that were deemed adequate; (ii) assessed weaknesses in the protester's Transition Plan that were irrational or not warranted under the solicitation's evaluation criteria; and (iii) treated offerors unequally in the Past Performance evaluation.

In USCS Chemical Chartering, the CBCA held that the successor-in-interest of a bankrupt firm lacked standing to prosecute a claim because the bankrupt firm failed to list the claim in its schedule of assets.

The SBA has published an interim rule amending its regulations (i) to make them consistent with the inflationary adjustments that are already codified in the FAR as they relate to the Women-Owned Small Business (WOSB) Program and the Simplified Acquisition Threshold and (ii) to make its WOSB Program protest procedures consistent with the protest procedures for SBA’s other government contracting programs. Comments are due by February 13.

FAR Case 2011-024: An extended comment period (to February 13) now applies to the previously-published, interim rule that (i) implements section 1331 of the Small Business Jobs Act of 2010 (addressing set-asides of task- and delivery-orders under multiple-award contracts, partial set-asides under multiple-award contracts, and the reserving of one or more multiple-award contracts that are awarded using full and open competition) and (ii) covers the coordination of the Federal Supply Schedules Program with the SBA.  

FAR Case 2010-016: A correction to the previously-published rule (see January 1 entry below) concerning the FAPIIS system notes that there will be a 14-calendar-day delay in the posting information submitted for the publicly available segment of FAPIIS. 

In Size Appeal of M1 Support Services, LP, the SBA's OHA affirmed the  Area Office's finding that a firm (i) was not the manufacturer of the contract items (its proposed subcontractor was) and (ii) was too large to qualify for the application of the nonmanufacturer rule.

In Size Appeal of Technibilt, LTD, the OHA affirmed the Area Office's finding that, under 13 C.F.R. 121.103(c)(2),  a contested firm was affiliated with two firms that each owned approximately 36% of the stock in the company that controlled the contested firm.

In Matter of Mission Essentials, LLC, the SBA's OHA held that a protest alleging that the challenged firm failed to comply with the joint venture regulations covering SDVOSBs at 13 C.F.R. 125.15(b) was sufficiently specific and should not have been dismissed.

In Size Appeal of The Associated Construction Co., the OHA held that the Area Office properly included a firm's interdivisional labor receipts in calculating its average annual receipts because the firm's division was not a separate legal entity and, therefore, not an affiliate within the meaning of 13 C.F.R. 121.104(a).

The GAO sustained a protest by W. B. Construction and Sons because both of the agency's grounds for rejecting a bid as nonresponsive were improper: (i) the bidder's failure to provide a price for one of many line items included in a bid schedule, where the omitted item was divisible from solicitation’s overall requirements, de minimis as to total cost, and would not affect the competitive standing of the bidders; and (ii) the bidder's submission of an unbalanced bid where the agency failed to conduct a FAR 15.404-1(g) risk analysis to determine whether the unbalanced bid posed an unacceptable risk to the Government.

The GSA has has adopted as final, with changes, an interim rule amending its acquisition regulation (the GSAR) to implement policy and guidelines to strengthen the security requirements for contracts and orders that include information technology (IT) supplies, services, and systems, by adding the following new paragraph (k) to the contract clause at 48 C.F.R. 552.239-71: 

GSA access. The Contractor shall afford GSA access to the Contractor’s and subcontractors’ facilities, installations, operations, documentation, databases, IT systems and devices, and personnel used in performance of the contract, regardless of the location. Access shall be provided to the extent required, in GSA’s judgment, to conduct an inspection, evaluation, investigation or audit, including vulnerability testing to safeguard against threats and hazards to the integrity, availability and confidentiality of GSA data or to the function of information technology systems operated on behalf of GSA, and to preserve evidence of computer crime. This information shall be available to GSA upon request.

Effective January 20, the EPA is amending its acquisition regulation (the EPAAR) by revising the contract clause at 48 C.F.R. 1552.211-79 (entitled "Compliance with EPA Policies for Information Resources Management") to include administrative changes and to update terminology and Web site links related to EPA policies for information resources management. 

In Digitalis Education Solutions, the Court of Appeals for the Federal Circuit affirmed a Court of Federal Claims decision that a company which did not file a statement of capabilities in response to a published notice of a proposed sole-source award lacked standing to protest that award. (The court also discussed, with something less than its most trenchant reasoning, the possibility that a firm might be able to protest that the time period an agency allowed for such submissions was too short.)

In Quimba Software , the ASBCA dismissed an appeal as untimely after determining that receipt of a Contracting Officer's decision by email does not extend the 90-day period for filing an appeal.

In Akal Security, an unsuccessful post-award protest, the Court of Federal Claims held that: (i) an awardee's failure to disclose a government investigation regarding wage payments that subsequently ripened into a civil action was not fatal to the Government's favorable  responsibility determination because the awardee did disclose a related class action lawsuit and because the size of the undisclosed matter was not great enough to affect the awardee's overall financial responsibility; (ii) there was no violation of FAR 15.308 where the SSA simply signed the CO's award recommendation in the blank beside the word "Approved" because there was no evidence in the record that the SSA did not exercise independent judgment in coming to its conclusion; and (iii) an evaluator's scoring error, even after being corrected, did not change the ultimate rankings of offerors.

In URS Federal Services, the court held that a "best interests" override of an automatic stay (pending the resolution of GAO protests) was improvidently issued because  the agency did not consider (i) any alternatives to the override, such as extending the incumbent's contract temporarily or (ii) the effect of an override on the integrity of the procurement system.

In Timber Products Co., the court held the Government breached its implied duties to cooperate with the contractor and not to hinder its performance by awarding (and later suspending) a timber sales contract without revealing to the contractor that the Government's interpretation of the law as permitting it to forego environmental surveys was unlikely to prevail in a pending district court suit.

Happy New Year! 

As usual, I am retaining the entries below for the last three months of 2011. To view the entire 2011 blog, please click here.

Federal Acquisition Circular (FAC) 2005-55 is being published and includes the following  six items:

FAR Case 2008-032 ("Preventing Abuse of Interagency Contracts"): A final rule, effective February 2, adopts (with changes) the prior interim rule amending FAR Subpart 17.5 to implement a section of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 to prevent abuse of interagency contracts by: (i) broadening the coverage to address all interagency acquisitions that result in a contract action (except FSS orders under $500,000); (ii) requiring agencies to support the decision to use an interagency acquisition with a determination that such action is the "best procurement approach"; and (iii) directing that assisted acquisitions be accompanied by written agreements between the requesting agency and the servicing agency documenting the roles and responsibilities of the respective parties. 

FAR Case 2011-021 ("Transition to the System for Award Management (SAM)"): A final rule, effective February 2, amends the FAR to update certain definitions and clauses pertaining to three procurement systems included in the Integrated Acquisition Environment (the CCR database, the Excluded Parties List System, and the Online Representations and Certifications Application) which (along with the Disaster Response Registry) will now be accessed through a single web site.

FAR Case 2005-037 ("Brand Name Specifications"): A final rule, effective February 2, adopts, with changes, a prior interim rule and amends the FAR to implement three previously published OMB memoranda on the use of brand-name specifications. 

FAR Case 2009-043 ("Time-and-Materials and Labor-Hour Contracts for Commercial Items"): A final rule, effective February 2, will implement various GAO recommendations: (i) to ensure that time-and-materials and labor-hour contracts are used to acquire commercial services only when no other contract type is suitable; and (ii) to instill discipline in the determination of contract type in order to minimize the risk to the Government.

FAR Case 2010-016 ("Public Access to the Federal Awardee Performance and Integrity Information System"): A final rule, effective January 3, adopts, with changes, the prior interim rule amending the FAR to implement a section of the Supplemental Appropriations Act, 2010, which requires that the information in the Federal Awardee Performance and Integrity Information System (FAPIIS), excluding past performance reviews, be made publicly available. 

FAR Case 2010-005 ("Updated Financial Accounting Standards Board Accounting References"): A final rule, effective February 2, amends the FAR to update references to authoritative accounting standards owing to FASB's Accounting Standards Codification of GAAP. 

The GAO sustained the protest of Commandeer Construction after the agency rejected its bid as the apparently successful offeror on an SDVOSB set-aside because it was not listed as an eligible SDVOSB on the VA's Vendor Information pages even though the solicitation indicated such businesses were entitled to expedited verification reviews.

DoD has published an interim rule, effective today, adding an extensive set of regulations at 32 C.F.R. Part 158, entitled Operational Contract Support, which reflect the sustained employment of a large number of contractors in the U.S. Central Command area of responsibility; the importance of contractor oversight in support of the counter-insurgency operation in Afghanistan; and the requirement to effectively manage contractors during the transition in Iraq. Comments are due by February 27, 2012.

The DOE proposes to revise existing regulations covering contractor legal management (and make conforming amendments the DOE's Acquisition Regulation (DEAR)) in order to provide rules for handling legal matters and associated costs by certain contractors whose contracts exceed $100,000,000, as well as legal counsel retained directly by the DOE for matters in which costs exceed $100,000. Comments are due by February 27, 2012.

As required by statute and effective January 1, 2012, DoD is removing DoD and Office of Personnel Management regulations concerning the National Security Personnel System (NSPS) from 5 C.F.R. Chapter XCIX.

In American General Trading & Contracting, the ASBCA denied cross motions for summary judgment on a claim based on negligent estimates and also held that, although it lacked jurisdiction over a claim for extraordinary contractual relief under FAR Part 50, it had jurisdiction over the alternative claim theory of breach of an implied-in-fact contract.

The State Department d Commerce Department each have proposed complementary regulation changes to implement portions of President Obama's Export Control Reform policy by moving items from the United States Munitions List ("USML") to the Commodity Control List ("CCL").

Specifically, the State Department has published a proposed rule that rule revises USML Category VI, covering surface vessels of war and special naval equipment, to establish a clear distinction between the USML and the CCL for the control of these articles by narrowing the types of surface vessels of war and special naval equipment controlled on the USML to only those that warrant control under the stringent requirements of the Arms Export Control Act and removing from control of the USML harbor entrance detection devices formerly controlled under Category VI(d) and transferring control of submarines to USML Category XX. 

A companion State Department proposed rule would revise USML Category XX, covering these submersible vessels and related articles, to consolidate the USML controls that will apply to all submersible vessels, as well as naval nuclear propulsion plants for such vessels (which will be covered in Category XX(b)). leaving all other parts, components, accessories, and attachments to be covered by the new 600 series controls in Category 8 of the CCL.  

In parallel with the above, the Commerce Department's Bureau of Industry and Security has published a proposed rule that describes (i) how submersible vessels, oceanographic equipment and related articles that the President determines no longer warrant control under Category VI or Category XX of the USML would be controlled under the CCL in new Export Control Classification Numbers (ECCNs) 8A620, 8B620, 8D620, and 8E620 and (ii) how closed and semi-closed circuit (rebreathing) apparatus, engines and propulsion systems for submersible vessels, and submarine and torpedo nets, which are currently controlled under ECCN 8A018 would be covered. With this proposed rule, BIS also would establish a new, unilateral control on submersibles "specially designed" for cargo transport that are not currently subject to USML or CCL controls. 

A companion BIS proposed rule applies to surface vessels.

Comments on any of the above four proposed rules are due by February 6, 2012.

Effective January 26, 2012, DoD is adding a new Part 222 to 32 C.F.R. that implements policy established in DoD Instruction 5200.01 and provides procedures for members of the public to request a declassification review of information classified under the provisions of Executive Order 13526 or predecessor orders. 

Effective February 27, 2012, the Cost Accounting Standards Board of OMB's OFPP is revising CAS 412, "Composition and Measurement of Pension Cost," and CAS 413, "Adjustment and Allocation of Pension Cost" in order (i) to harmonize the measurement and period assignment of the pension cost allocable to government contracts and the minimum required contribution under ERISA, as required by the Pension Protection Act (PPA) of 2006, which amended the minimum funding requirements for qualified defined benefit pension plans and (ii) to include the recognition of a "minimum actuarial liability" and "minimum normal cost," which are measured on a basis consistent with the liability measurement used to determine the PPA minimum required contribution, and accelerate the recognition of actuarial gains and losses. 

In W. B. Construction and Sons, the GAO decided it was improper to award an 8(a) contract to a business entity form (corporation) different from the one that submitted the proposal (LLC).

The OFPP's CAS Board has adopted, without change from the interim rule, a final rule revising the threshold for the application of CAS from "$650,000" to "the Truth in Negotiations Act (TINA) threshold, as adjusted for inflation." 

FAR Case 2011-022: A proposed rule would revise the FAR to implement the removal of Federal Information Processing Standard ("FIPS") 161 based on the notice posted in the Federal Register  on September 2, 2008 (73 FR 51276) by the Department of Commerce, withdrawing the  FIPS requirement because it was obsolete and had not been updated to adopt current voluntary industry standards, federal specifications, federal data standards, or current good practices for information security. The withdrawal of this standard created a gap in the FAR, which will be closed by the proposed rule by clarifying the use of American National Standards Institute X12, as the valid standard to use for computer-generated forms. FAR 53.105 is being amended; it will continue allowing agencies and the public to generate standard and optional forms on their computers. Comments are due by February 21, 2012.

In NCI Information Systems, Inc., the GAO sustained a protest and held that a proposal was late because it was submitted after the time stated in the FAR (4:30 pm) for application to solicitations that do not include a specific time by which proposals must be received. The GAO also sustained a protest by APEX-MBM, JV because the agency used an unstated evaluation criterion to evaluate an item the solicitation did not require to be submitted with the proposals (but instead suggested would be addressed after award).

In International Industrial Park, Inc., the Court of Federal Claims held on reconsideration that the plaintiff was entitled to recover attorneys fees regardless of the applicability of the EAJA because the contract at issue specifically provided for such recovery.

MORI Associates won its protest at the Court of Federal Claims because, in response to earlier protests at the GAO, the agency improperly canceled a solicitation that should have been set aside for small businesses and issued a task order solicitation under the FSS.

The GAO sustained a protest by Kingdomware Technologies because the procuring agency improperly used FSS procedures rather than setting the procurement aside for SDVOSBs as required by the Veterans Benefits, Health Care, and Information Technology Act of 2006.

In Martin Construction, Inc., the Court of Federal Claims held a termination for default was improper because the Government's defective design caused excusable delays well beyond the contract's stated completion date.

In Orion Technology, the court dismissed a protest for lack of standing because the bidder failed to comply with a solicitation requirement to submit cost or pricing data for each of its team members. In Joint Venture of Comint Systems Corp., et al., the court dismissed consolidated protests for lack of standing because the protesters did not have a substantial chance of receiving award even if the alleged errors in the procurement were corrected.

In Sharp Electronics Corp., the ASBCA held it lacked jurisdiction over an appeal because the original claim should have been submitted to the Contracting Officer for the GSA schedule contract rather than to the CO of the agency placing a delivery order under the schedule contract. In Harry Richardson, the same Board reached the same conclusion because no claim at all had been claim submitted to the Contracting Officer.

In Janssen Contracting, Inc., the CBCA held the contractor had failed to establish any of the elements required to justify reformation of its contract based on a mistake in bid.

DFARS Case 2011-D046: DoD is issuing an interim rule to implement a section of the National Defense Authorization Act for Fiscal Year 2011, which provides that photovoltaic devices to be utilized in performance of any covered contract must comply with the Buy American Act, subject to the exceptions provided in the Trade Agreements Act of 1979 or otherwise provided by law. Comments are due by February 21, 2012. 

DFARS Case 2012-D003: DoD is proposing to amend the DFARS to conform statutory titles to the new Positive Law Codification of Title 41, United States Code, "Public Contracts." Comments are due by February 21, 2012.

The GAO sustained a protest by The Ross Group Construction Corp. because the past performance evaluation lacked a rational basis: the awardee received a superior rating despite failing to comply with solicitation's stated requirements. 

The State Department is proposing to amend Part 129 of the ITAR relating to brokers and brokering activities in order to clarify registration requirements, the scope of brokering activities, prior approval requirements and exemptions,  procedures for obtaining prior approval and guidance, and reporting and recordkeeping of such activities. Comments are due by January 17, 2012.

In the NAICS Appeal of Millennium Engineering and Integration Co., SBA No. NAICS-5309 (Dec. 12, 2011), the SBA's OHA upheld the Contracting Officer's assignment (in a NASA procurement) of the exception for Military and Aerospace Equipment and Military Weapons under NAICS Code 541330 (Engineering Services).

In VSE Corp., the GAO sustained a protest against a Contracting Officer's termination of an awarded contract based on her belief that there was an appearance of impropriety (an OCI) in the contractor's employment of a former federal employee as a consultant. The GAO concluded that the Contracting Officer's decision was largely based on misunderstandings and unfounded assumptions as to both the facts and the applicable law.

By the way, the GAO has changed its website design so that the format for the web address of the VSE decision above is different from the address format of prior decisions. So far, all my links to prior GAO decisions still work, but, being a glass-half-empty kind of  person, I'm anticipating the GAO will soon switch all its old decisions to the new address system, which will mean I will have to modify all the links on my site. Ugh. 

The SBA has issued several new OHA size decisions. With the standard caveat that, under the SBA's new, goofy, user-unfriendly website design, you can no longer link directly from my site to these decisions (but must instead link here first and then search for each one individually), they are as follow:

In Size Appeal of TPG Consulting, LLC, SBA No. SIZ-5306 (Dec. 13, 2011), the OHA affirmed the Area Office's determination that a firm was affiliated with Toyota through economic dependence on Toyota as the firm's customer.

In Size Appeal of Garco Construction, Inc., SBA No. SIZ-5308 (Dec. 9, 2011), the OHA affirmed the Area Office's dismissal of a size protest as untimely because it was filed more than five business days after the Contracting Officer notified the protester of the identity of the prospective awardee.

In Size Appeal of National Sourcing, Inc., SBA No. SIZ-5303 (Dec. 7, 2011), the OHA reversed the Area Office's finding that a firm violated the "ostensible subcontractor" rule and held that the firm was not "unusually reliant" on the alleged affiliate.

In Size Appeal of GPA Technologies, Inc., SBA No. SIZ-5307 (Dec. 7, 2011), the OHA reversed the Area Office's findings of affiliation because there was no basis for finding  a lack of clear fracture or identity of interest based only on a limited number of shared employees.

In Size Appeal of Onopa Management Corp., SBA No. SIZ-5302 (Dec. 5, 2011), the OHA affirmed the Area Office's finding of affiliation based on the ostensible subcontractor rule through unusual reliance on a subcontractor for vital subcontract requirements.  

In SplashNote Systems, Inc., the ASBCA denied a contractor's appeal from a government claim for repayment of unallowable costs because (i) costs now claimed as deferred IR&D costs had not been specifically identified and authorized in the contract; (ii) the bonus paid to the contractor's owner/CEO was an unallowable distribution of profits; and (iii)  numerous local meals allegedly conducted to discuss recruiting were unallowable under several claimed costs principles, chiefly because the contractor had not presented sufficient documentation to establish their allowability. 

In DG²¹, LLC, the ASBCA denied a claim because, in advancing theories of misrepresentation and superior knowledge, the contractor did not establish that (i) it was misled by, or relied on, a misstatement in the solicitation that there was no historical information available, or (ii) it did not have independent knowledge of that historical information.

In order to facilitate compliance with the comprehensive sanctions on Syria, the Bureau of Industry and Security (BIS) has amended the Export Administration Regulations (EAR) by (i) moving the substantive provisions of those sanctions from General Order No. 2 in Supplement No. 1 to part 736 to a revised § 746.9 and (ii) making conforming changes to the EAR. 

In Metcalf Construction Co., the Court of Federal Claims denied multiple claims by a construction contractor for, inter alia, constructive changes, breach of the duty of good faith and fair dealing, and differing site conditions, but awarded the contractor more than a year in excusable delays due to (i) the Government's delayed notice to proceed and (ii) the Government's failure to promptly investigate soil conditions as required by the "Differing Site Conditions" clause.

The DOL's Office of Federal Contract Compliance Programs (OFCCP) is proposing to revise the regulations implementing the non-discrimination and affirmative action regulations of section 503 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination by covered federal contractors and subcontractors against individuals on the basis of disability and requires affirmative action on behalf of qualified individuals with disabilities. The proposed regulations would (i) strengthen the affirmative action provisions, detailing specific actions a contractor must take to satisfy its obligations; (ii) increase the contractor’s data collection obligations; and (iii) establish a utilization goal for individuals with disabilities to assist in measuring the effectiveness of the contractor’s affirmative action efforts. Revision of the non-discrimination provisions to implement changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008 is also proposed. Comments are due by February 7, 2012.

In Size Appeal of BR Construction, LLC, SBA No. SIZ-5303 (Nov. 21, 2011), the SBA's OHA affirmed the Area Office's finding that a minority owner had negative control of a firm where the firm's operating agreement required his approval for many types of actions. (Recall that, under the SBA's new website design, I can't link directly to the text of this decision. Instead, if you want to read it, link here and then do a search for it.) 

In Americom Government Services, the CBCA denied the Government motion to dismiss the appeal because the contractor's affidavit raised a factual question concerning the Government's contention that there was no contract between the appellant and the Government.

In Endless Gutter & Sheet Metal Co., the CBCA held it lacked jurisdiction over an appeal from a claim denial that was not issued by the Contracting Officer.  

The Department of Commerce's Bureau of Industry and Security (BIS) has published a proposed rule that describes how military gas turbine engines and related articles that the President determines no longer warrant control under Category VI, VII, or VIII of the United States Munitions List would be controlled under the Commerce Control List (CCL) in new Export Control Classification Numbers (ECCNs) 9A619, 9B619, 9C619, 9D619 and 9E619. In addition, this proposed rule would control military trainer aircraft turbo prop engines and related items, which are currently controlled under ECCN 9A018.a.2 or .a.3, 9D018 or 9E018, under new ECCN 9A619, 9D619 or 9E619. Comments are due by January 20, 2012.

The BIS has published another proposed rule that  describes how articles the President determines no longer warrant control under Category VII (military vehicles and related articles) of the Munitions List  would be controlled under the CCL. This proposed rule re-proposes, with certain changes, five new ECCNs on the CCL that were originally proposed in a proposed rule published on July 15, 2011 (76 Fed. Reg. 41958). The revised ECCNs in this proposed rule are the result of continued deliberations of the BIS, DoD and the State Department and recommendations of commenters on the July 15 proposed rule. This proposed rule is being published in conjunction with a proposed rule by the Department of State, Directorate of Defense Trade Controls, to remove from Category VII of the Munitions List (22 C.F.R. 121.1, Category VII) articles that the President determines no longer warrant control on that list. Comments are due by January 20, 2012.

The State Department has amended the ITAR to identify the Federal Reserve Wire Network (FedWire) as another method of electronic payment of registration fees, so as to provide a choice in and facilitate the submission of fees by registrants.

In Veridyne Corp., the Court of Federal Claims (i) granted the plaintiff's motion in limine to preclude the testimony of an SBA official (who had been hired after the facts involved in the dispute at bar) concerning the generally detrimental effect of fraud on the SBA's 8(a) program and (ii) held that, regardless whether it was considered expert testimony or lay opinion testimony, the SBA official's proffered testimony did not satisfy the standards for admissibility.

In Office Automation & Training Consultants, the ASBCA held, in part, that it lacked jurisdiction over a theory of recovery first presented to the Board as part of the contractor's motion for reconsideration of a prior decision and never presented to the Contracting Officer.

Adopting the "everything but the kitchen sink" approach, IBM Corp, U.S. Federal faulted numerous aspects of the agency's technical, past performance, and price evaluations, as well as the Source Selection Authority's comparative evaluation and the adequacy of the agency's discussions, but the Court of Federal Claims patiently waded through each protest ground and rejected them all.

Effective February 29, 2012, the Department of Agriculture is amending its Agriculture Acquisition Regulation (the "AGAR") to add a new contract clause at section 422.70, entitled "Labor Law Violations," which reads as follows: 

In accepting this contract award, the contractor certifies that it is in compliance with all applicable labor laws and that, to the best of its knowledge, its subcontractors of any tier, and suppliers, are also in compliance with all applicable labor laws. The Department of Agriculture will vigorously pursue corrective action against the contractor and/or any tier subcontractor (or supplier) in the event of a violation of labor law made in the provision of supplies and/or services under this or any other government contract. The contractor is responsible for promptly reporting to the contracting officer when formal allegations or formal findings of non-compliance of labor laws are determined. The Department of Agriculture considers certification under this clause to be a certification for purposes of the False Claims Act. The Department will cooperate as appropriate regarding labor laws applicable to the contract which are enforced by other agencies.

Comments on this new rule may be submitted by January 30, 2012.

The SBA is reopening the comment period for the proposed rule described in the October 5 entry below and extending that comment period through January 6, 2012.

DFARS Case 2011-D042: DoD is proposing the amend the DFARS to incorporate a proposal adequacy checklist for proposals in response to solicitations that require submission of certified cost or pricing data.

In Orion Technology, Inc., the Court of Federal Claims ruled on various motions to supplement the administrative record in a bid protest, including denying plaintiff's motion to supplement the record with the declaration of an expert opining as to the impropriety of the protested procurement action by the Government, which had been submitted to the GAO in connection with the original protest at that forum.

In Med Trends, the Court of Federal Claims held that (i) the protester had waived its claims against several alleged defects apparent on face of the solicitation because it had not protested before bids were due; and (ii) the court lacked  jurisdiction over the protester's claim that its suspension by the SBA (which applied governmentwide but was not the result of the protested procurement) improperly deprived the plaintiff of the right to compete on the instant procurement.

In denying two government motions in limine in Sikorsky Aircraft Corp., the Court of Federal Claims included an extensive interpretation and analysis of the coverage and and interplay of subsections 50(d) and (e) of CAS 418.

In CTI Global Solutions , the CBCA summarily dismissed most of contractor's claims for increased labor rates resulting from increases in DOL wage determinations because the contractor and the agency had agreed on the rates to be paid to the contractor after the revised wage determinations were issued.

In Vanguard Recovery Assistance, Joint Venture, the Court of Federal Claims denied a protest (even though it was clear the agency had violated procurement law in important respects by failing to prepare and obtain past performance information on the incumbent contractors and by failing to obtain relevant past performance information from competitors) because the protester did not meet its burden of establishing it was prejudiced by the agency's failures: "While it is evident that the agency violated the law, the consequences of that transgression insofar as this procurement are concerned remain obscured." This decision should be required reading for all firms considering incurring the expense of filing and pursuing a protest because it shows of how difficult it is to win a protest.

The ASBCA dismissed the appeal of Broadway Consolidated Companies because the company was in Chapter 7 bankruptcy and lacked standing to pursue the appeal.

FAR Case 2010-014: A proposed rule would amend the FAR to limit the use of generic substitutes instead of DUNS numbers, and update the policies and procedures associated with reporting in the Federal Procurement Data System. Additionally, changes are proposed for the clauses requiring contractor registration in the CCR database and DUNS number reporting. Comments are due by January 30, 2012.

In Survival Systems, USA, Inc., the Court of Federal Claims held that (i) even though the protester had complained about the technical evaluation in its complaint, it waived that objection by failing to raise it in its principal brief and arguing it only in the reply brief; and (ii) the agency's evaluation of price reasonableness and its evaluation for possible unbalanced pricing were both unobjectionable, even though the record did not include the specific steps the agency used to conclude the pricing was not unbalanced.

In Reliable Contracting Group, the CBCA discussed various quantum elements in a changes claim by the contractor on behalf of itself and its subcontractor.

In a protest by Standard Communications, Inc., the Court of Federal Claims held that, in its best-value, tradeoff analysis, the agency did not sufficiently explain or document its rationale for selecting lower-priced, lower technically-rated proposals over a higher-priced, higher technically-rated proposal in a solicitation where non-price factors were more important than price. Specifically, it was not sufficient for the SSA to write simply: "I hereby determine that this higher-priced proposal does not exhibit sufficient superiority in the non-Price factors to warrant an award."

In protests by North Wind, Inc., and Earth Resources Technology, Inc., the GAO determined that the agency improperly evaluated the awardee's proposal by, in effect, waiving the solicitation's 50-page proposal limit by allowing it to submit significant portions of its proposal in appendices without informing other offerors, who strictly complied with the page limit, that the approach taken by the awardee to provide additional information was acceptable.

NASA has adopted as final, without change, a proposed rule amending the NASA FAR Supplement to require contracting officers to notify prospective contractors if hey are found to be nonresponsible.

The State Department is proposing (i) to amend the ITAR to implement the Defense Trade Cooperation Treaty between the United States and Australia and the Defense Trade Cooperation Treaty between the United States and the United Kingdom, and identify via a supplement the defense articles and defense services that may not be exported pursuant to the Treaties; (ii) to amend the section pertaining to the Canadian exemption to reference the new supplement; and (iii) with regard to Congressional certification, to add Israel to the list of countries and entities that have a shorter certification time period and a higher dollar value reporting threshold. Comments are due by December 22. 

The ASBCA published several decisions on motions for reconsideration, including Red Sea Engineers & Constructors, in which the Board denied the contractor's motion for summary judgment on appeal from a default termination because two of the three alleged bases for complaining of the termination were invalid and the third involved issues of material fact. 

DFARS Case 2011-D027 (Updates to Wide Area WorkFlow): DoD proposes to update policy and procedures in the DFARS for electronic submission of payment requests and receiving reports through Wide Area WorkFlow and TRICARE Encounter Data System. Comments are due by January 20, 2012. 

DFARS Case 2011-D048 (Separation of Combined Provisions and Clauses): DoD is proposing to amend the DFARS to separate provisions and clauses that are currently combined, in order to be in compliance with DFARS drafting conventions. Comments are due by January 20, 2012.

DFARS Case 2011-D047 (Application of Hexavalent Chromium Policy to Commercial Items): DoD is proposing to amend the DFARS to clarify the applicability to commercial items of DoD policies relating to the use of materials containing hexavalent chromium.  Comments are due by January 20, 2012.

The GSA has amended the FTR to permit agencies to establish internal policies and procedures for storage of a privately owned vehicle when an employee is assigned a temporary change of station  in support of a contingency operation. 

The GSA is amending the FTR to establish policy for the transportation of the immediate family, household goods, personal effects, and one privately owned vehicle of a covered employee whose death occurred as a result of personal injury sustained while in the performance of the employee’s duty as defined by the agency.

The GAO published two decisions sustaining protests.

In Raytheon Technical Services Co., the GAO found that the agency (i) improperly relaxed an evaluation requirement for the awardee by ignoring its material failure to propose loaded labor rates for 20 labor categories; (ii) failed to provide a common cut-off date for receipt of proposals; and (iii) treated offerors unequally by giving the awardee credit under the management factor for a similar item to that proposed by the protester, who was not given that same credit.

In Raytheon Co., the GAO found (i) a lack of meaningful discussions and (ii) the improper evaluation of references under the experience evaluation factor.

The Court of Federal Claims issued a TRO (conditioned on the the posting of a $300,000 bond) in the bid protest by the incumbent contractor, Serco, because the protester established it had a reasonable chance of success on the merits, and the balance of equities weighed against displacing the incumbent's workforce for the short period of time required to resolve the protest.

DFARS Case 2011-D051 (Administering Trafficking in Persons Regulations): DoD is issuing a final rule amending the DFARS to add a requirement to maintain surveillance over contractor compliance with duties and responsibilities pertaining to trafficking in persons when those duties are incorporated in contracts. 

DFARS Case 2011-D021 (Fire-Resistant Fiber for Production of Military Uniforms): DoD  is adopting as final, with changes, an interim rule amending the DFARS to implement the section of the National Defense Authorization Act for Fiscal Year 2011 that prohibits specification of the use of fire-resistant rayon fiber in solicitations issued before January 1, 2015.

DFARS Case 2010-D020 (Representation Relating to Compensation of Former DoD Officials): DoD is amending the DFARS to require offerors to represent whether former DoD officials who are employees of the offeror are in compliance with post-employment restrictions.

DFARS Case 2010-D018 (Responsibility for Government Property): DoD is issuing a final rule amending the DFARS to extend the government self-insurance policy to government property provided under negotiated fixed-price contracts that are awarded on a basis other than submission of certified cost or pricing data. 

DFARS Case 2011-D032 (Simplified Acquisition Threshold for Humanitarian or Peacekeeping Operations): DoD is adopting as final, without change, an interim rule amending the DFARS to implement the statutory authority to invoke a simplified acquisition threshold that is two times the normal amount to support a humanitarian or peacekeeping operation. 

DFARS Case 2011-D008 (Accelerate Small Business Payments): DoD is adopting as final, without change, an interim rule amending the DFARS to accelerate payments to all small business concerns. 

DFARS Case 2011-D050 (Extension of Department of Defense Mentor-Protégé Program): DoD is issuing a final rule amending the DFARS to extend the date for submittal of applications under the DoD Mentor-Protégé Pilot Program for new mentor-protégé agreements and the date mentors may incur costs and/or receive credit towards fulfilling their small business subcontracting goals through an approved mentor-protégé agreement.

DFARS Case 2011-D031 (Management of Manufacturing Risk in Major Defense Acquisition Programs): DoD is adopting as final, without change, an interim rule amending the DFARS to implement a section of National Defense Authorization Act for Fiscal Year 2011 requiring appropriate consideration of the manufacturing readiness and manufacturing-readiness processes of potential contractors and subcontractors as a part of the source selection process for major defense acquisition programs

DFARS Case 2009-D036 (Notification Requirements for Awards of Single-Source Task- or Delivery-Order Contracts): DoD is adopting as final, with changes, an interim rule amending the DFARS to implement the National Defense Authorization Act for Fiscal Year 2010 regarding the notification requirements to Congress when awarding a single-award task- or delivery-order contract in excess of $103 million.

DFARS Case 2011-D053 (Transition to the System for Award Management): DoD is issuing a final rule amending the DFARS for the transition of the Integrated Acquisition Environment systems to the new System for Award Management architecture. 

The GAO sustained a protest by Shaka, Inc. because it was improper for the agency to reject a bid bond (and find the bidder nonresponsive) solely because the bidder disclosed that it had obtained the bond through its sub's relationship with the surety.

In Raytheon Co. (on remand from the Federal Circuit), the ASBCA held that interest on the interest due the Government for CAS 413 noncompliance continues to accrue until the date the interest is paid rather than only to the date the principal is repaid (as the contractor had argued). This seems strange to me. Am I alone? 

In TEKKON Engineering Co., the ASBCA decided several aspects of a government motion for partial summary judgment as to various categories of excess costs claimed by the contractor associated with (i) denial of its entry at the Iraqi border and (ii) the effects of an embargo on certain contract items from Jordan under a contract to supply water treatment chemicals and cylinders of chlorine gas to various locations in Iraq.

In W. G. Yates and Sons Construction Co., the CBCA denied the Government's motions to submit new evidence and to reconsider the Board's prior decision concerning the proper measure of an equitable adjustment after the retroactive correction of an erroneous Davis Bacon Act wage determination originally included in a contract.

Following are recently published NAICS decisions by the SBA's OHA. Please continue to note that, to read these decisions under the SBA's new website design, you must begin at the SBA's OHA search page, find any of the following decisions that you may be interested in using information from the cites below, and then link from that page to that/those decision(s). 

In NAICS Appeal of Ingenesis, Inc., SBA No. NAICS-5296 (Oct. 24, 2011), the OHA held that a solicitation for physicians' services  was properly classified under NAICS Code 621111 (Offices of Physicians, Except Mental Health Specialists) rather than 622110 (General Medical and Surgical Hospitals).

In another NAICS Appeal of  Ingenesis, Inc., SBA No. NAICS-5295 (Oct. 24, 2011), the OHA held that a solicitation for  nursing services  was properly classified under NAICS Code 621399 (Offices of All Other Miscellaneous Health Care Professionals) rather than NAICS Code  622110  (General Medical and Surgical Hospitals).

In NAICS Appeal of Allsource Global Management, LLC, SBA No. NAICS-5292 (October 12, 2011), the OHA held that a solicitation for administrative support services (including clerical, secretarial, logistical, and administrative services) to various health clinics  was properly classified under NAICS Code 561110 (Office Administrative Services) rather than 561210 (Facilities Support Services).

In NAICS Appeal of  Technica Corp., SBA No. NAICS-5248 (June 20, 2011), the OHA held that a solicitation for global information services grid management engineering, transition, and implementation was properly classified under NAICS Code 541512 (Computer Systems Design Services) rather than NAICS Code 517110 (Wired Telecommunications Carriers).

In NAICS Appeal of  Secure Network Systems, LLC, SBA No. NAICS-5246 (June 8 , 2011), the OHA held that a NAICS appeal filed based on a presolicitation (and before issuance of the actual solicitation) was premature. However, In NAICS Appeal of Quantum Research International, Inc., SBA No. NAICS-5206 (Feb. 23, 2011), the OHA dismissed an appeal filed more than 10 days after the issuance of the initial solicitation as untimely.

In NAICS Appeal of SD Titan Resources/SM&MM, SBA No. NAICS-5187 (Jan. 26, 2011), the OHA held that a solicitation for leased modular vehicles should be classified under NAICS Code 236220 (Commercial and Institutional Building Construction) rather than either NAICS Code 321992 (Prefabricated Wood building Manufacturing), which had been the code designated by the Contracting Officer, or NAICS Code 531120 (Lessors of Nonresidential Buildings (except miniwarehouses)), which was the code proposed by the appellant. 

SBA proposes to proposes to increase small business size standards for 20 industries and one sub-industry in NAICS Sector 53, Real Estate and Rental and Leasing, and for nine industries in NAICS Sector 61, Educational Services. Comments are due by January 17, 2012.

Following are recent SBA OHA VET and BDP decisions. As explained more fully in the November 11 and 14 entries below, to read these cases, use the citation information below to search for them on the SBA's new search page.

In Benetech, LLC, SBA No. VET-225 (Nov. 3, 2011), the OHA held that a service-disabled veteran who, under Louisiana law, shared management responsibilities with another member of the LLC, did not control the LLC as required by 13 C.F.R. 125.10.

In Ai Procurement LLC/JVS, SBA No. VET-223 (Oct. 31, 2011), the OHA held that two service-disabled veterans shared control of the contested firm and that the firm was not disqualified as an SDVOSB by the facts that a non-SDVOSB held a minority interest in the firm or that the SDVOSB was dependent on a non-SDVOSB for certain required licenses.

In Fidelis Design & Construction, LLC, SBA No. VET-221 (Sep. 30, 2011), the OHA held that a protest had been properly dismissed as insufficiently specific and that the fact that a firm was not listed in the VetBiz database was not grounds for protest in a non-VA procurement.

In Spectrum Contracting Services, Inc., SBA No. BDP-378 (Oct. 14, 2010), the OHA upheld the SBA's determination that an individual had not presented sufficient evidence to establish that his retinitis pigmentosa, which impaired his vision, had resulted in him being socially disadvantaged due to his physical disability. The OHA's decision includes a very detailed and skeptical analysis of the evidence the applicant had submitted. 

In Cybersoft International, Inc., SBA No. BDP-377 (Oct. 14, 2010), the OHA dismissed an appeal from a termination from the 8(a) program whose only grounds was the appellant's "unconditional apology" for failing to provide required documents in a timely manner.

In Alabasi Construction, Inc., SBA No. BDP-368 (Oct. 12, 2010), the OHA upheld the SBA's determination that the applicant's evidence presented with regard to his education, employment, and business history as an Arab American of Iraqi descent, who was sometimes suspected (without evidence) of being a terrorist was insufficient to establish negative impact upon his entrance into or advancement in the business world, which is one of the requirements for a finding of social disadvantage under 13 C.F.R. 124.103(c)(2)(iii). 

In Nurelm, Inc., SBA No. BDP-376 (Oct. 8, 2010), the OHA dismissed an appeal from termination from the 8(a) program which alleged only that its 8(a) annual update, although admittedly late, was complete when it was finally submitted.

In Secure Trendz, Inc., SBA No. BDP-371 (Sep. 29, 2010), the OHA dismissed as untimely an appeal filed more than 45 days after the firm received the SBA's decision terminating it from the 8(a) program. To the same effect is Indigo Spectrum, Inc., SBA No. BDP-360 (July 2, 2010).

In LCCCS, SBA No. BDP-373 (Sep. 29, 2010), the OHA dismissed an appeal from a termination from the 8(a) program because the petitioner alleged only that “[d]ue to staff turnovers and server crashes,” the firm was unable to retrieve information “which triggered a chain of delays to everyone that needed access to [the firm's] past and current tax information including SBA.” 

In Capitol Drywall Supply, Inc., SBA No. BDP-372 (Sep. 29, 2010), the OHA dismissed an appeal from termination from the 8(a) program because the petitioner alleged only that it had faced "challenges." 

In J. Millennium Enterprises, Inc., SBA No. BDP-370 (Sep. 23, 2010), the OHA dismissed an appeal from termination from the 8(a) program because the petitioner admitted it had not submitted required documents to the SBA.

In Royal Engineers & Consultants, LLC, SBA No. BDP-367 (Sep. 15, 2010), the OHA dismissed as untimely an appeal that had been filed at the wrong office.

In Hazzard's Excavating and Trucking Co., SBA No. BDP-364 (Aug. 3, 2010), the OHA held that an allegation of a lack of support from the SBA's district office was insufficient as an excuse for termination from the 8(a) program. 

In Dominican Services, Inc., SBA No. BDP-363 (July 26, 2010), the OHA denied a motion for reconsideration, which was based on the fact that the copy of the SBA's original motion to dismiss sent to the protesting firm was not signed, a defect the OHA concluded was an immaterial technical mistake, even though the protester claimed that was the reason it had not responded to the motion (which was the reason the OHA originally had dismissed its appeal).

In Gonzales-McCauley Investment Group, the Court of Federal Claims held that correspondence between the Government and the plaintiff concerning the plaintiff's quotation, which the Government ultimately decided not to pursue because of suspected plagiarism, was insufficient to establish a procurement contract based on offer and acceptance.

As noted in the November 11 entry below, the SBA's newly-designed website of OHA decisions is just a search page, which redirects you to a Westlaw site to read the actual decisions, and third party sites cannot post direct links to those Westlaw decisions (at least I haven't figured out a way to do it yet). Following are descriptions of the all the 2011 OHA size decisions that are listed under this new system. To read any of these decisions in which you may be interested, link to the SBA's search page, type in a search term from any one of the cites below (e.g., the decision number or the name of the protester) and then you will be linked to the text of the decision on the Westlaw site. Sorry about the extra step involved. If you want to complain to the SBA, you may email the SBA's webmaster. I'll be posting cites of other types of SBA 2011 decisions in this new system (e.g., NAICS decisions) in the next couple of days.

In Size Appeal of Hui O Aina, LLC, SBA No. SIZ-5262-PFR (July 29, 2011), the OHA granted a petition for reconsideration of SIZ-5245 and held that the contested firm was not a small business because the proper interpretation of footnote 1 to 13 C.F.R. 121.201 ("A firm is small if, including its affiliates, it is primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and its total electric output for the preceding fiscal year did not exceed 4 million megawatt hours") means (i) the majority to the receipts of the challenged concern, itself, must be derived from the generation, transmission, and/or distribution of electric energy, and (ii) the majority of the aggregated receipts of the challenged concern and its affiliates must be derived from the generation, transmission, and/or distribution of electric energy. 

In Bering Straits Logistics Services, LLC, SBA No. SIZ-5277 (Sep. 2, 2011), the OHA reversed the Area Office's finding that a firm violated the ostensible subcontractor rule by unusual reliance on a subcontractor, specifically rejecting the Area Office's conclusions regarding key employees, the importance of a subcontractor's qualifications to obtaining the job, the percentages of labor costs attributable to the contractor and subcontractor, respectively, and the division of work assigned to each.

In Size Appeal of Four Winds Services, Inc., SBA No. SIZ-5293 PFR (Oct. 13, 2011), the OHA denied a petition for reconsideration of SIZ-5260 (which found a violation of the ostensible subcontractor rule) because a firm's proposal did contain a firm commitment to perform the work at issue.

In Size Appeal of Accent Service Co., SBA No. SIZ-5237 (May 26, 2011), the OHA held that a Master Subcontracting Agreement did not establish a joint venture and did not establish that one firm was the ostensible subcontractor of the other; the fact that the contested firm often awarded subcontracts to another firm did not establish economic dependence, if anything it made the other firm dependent on the contested firm.

In Size Appeal of EarthCare Solutions, Inc., SBA No. SIZ-5183 (Jan. 12, 2011), the OHA affirmed the Area Office's  finding that the contested firm would be unusually reliant upon another firm under the ostensible subcontractor rule.

In Size Appeal of Alutiiq Education & Training, LLC, SBA No. SIZ-5182 (Jan. 10, 2011), the OHA dismissed an appeal based on an alleged violation of the ostensible subcontractor rule because the contract at issue already had been awarded.

In Size Appeal of IRA Green, Inc., SBA No. SIZ-5287 (Oct. 11, 2011), the OHA held it was clear error for the Area Office to determine a firm complied with the nonmanufacturer rule solely on the basis of the firm's bare assertions, without requiring any proof, that it normally sold the type of item in question and that it would supply the product of a U.S. small business manufacturer.

In Size Appeal of ETouch Federal Systems, LLC, SBA No. SIZ-5280 (Sep. 2, 2011), the OHA upheld the Area Office findings that firms were affiliated through the newly-organized concern rule (where there was no clear fracture) and by identity of interest due to economic dependence. Size Appeal of ETouch Federal Systems, LLC, SBA No. SIZ-5271 (Aug. 25, 2011) has the same holding.

In Size Appeal of CJW Construction, Inc., SBA No. SIZ-5254 (June 24, 2011), the OHA reversed the Area Office's size determination because the Area Office erroneously (i) looked behind a valid mentor-protégé agreement to find a violation of the newly-organized concern rule; (ii) found a violation of the newly-organized concern rule based on a key employee of the new firm who had not been an owner, officer, director, or key employee of the prior firm; and (iii) found affiliation based on the totality of the circumstances based on erroneous and inadequate considerations.

In Size Appeal of Grantco Pacific, Inc., SBA No. SIZ-5205 (Feb. 22, 2011), the OHA affirmed the Area Office's finding of affiliation through identity of interest of a firm owned by the son with another firm owned by his parents. 

In Innovative Resources, SBA No. SIZ-5238 (June 1, 2011), the OHA affirmed the Area Office's finding that the contested firm was not generally affiliated with its joint venture partners under 13 C.F.R. 121.103(h). 

In Size Appeal of Active Deployment Systems, Inc., SBA No. SIZ-5230 (May 3, 2011), the OHA held that a firm formed by four former employees of a bankrupt firm (none of whom were officers, directors, or owners of that firm) was not affiliated with the bankrupt firm through the newly-organized concern rule even though these personnel were employed by a bankruptcy trustee to assist in winding up the former firm.

In Size Appeal of Emerald Biostructures, Inc., SBA No. SIZ-5221 (Mar. 29, 2011), the OHA held that, under 13 C.F.R. 121.702(a)(1), a firm with multiple layers of corporate ownership above it is ineligible to participate in the SBIR program. 

In Size Appeal of NMA Architects Planners Leed Consultants, LLC, SBA No. SIZ-5215 (Mar. 15, 2011), the OHA held that,  despite the general rule at 13 C.F.R. 121.404(a) that size is determined as of the date of self-certification with a priced offer, the Area Office erred in dismissing a protest as premature, which was filed upon notification of the identity of the offeror chosen for negotiation (before submission of a price) in a formal two-step procurement for A/E services under the Brooks Act pursuant to FAR 36.6. 

In Size Appeal of Quantum Professional Services, Inc., SBA No. SIZ-5207 (Feb. 28, 2011), the OHA vacated a size determination because it was based on a task order award under ID/IQ contract absent a request for size recertification by the ordering agency); Size Appeal of Quantum Professional Services, Inc., SBA No. SIZ-5225 PFR (Apr. 13, 2011) affirmed this decision on reconsideration.

In Size Appeal of Hal Hays Construction, Inc., SBA No-SIZ-5234 (May 25, 2011), the OHA held that, under 13 C.F.R. 121.104(a)(1), the SBA must use tax returns filed before the date of self-certification to determine size, not amended returns filed after that date but before the initiation of the size determination.

In Size Appeal of Malouf Construction, LLC, SBA No. SIZ-5250 (June 16, 2011), the OHA affirmed the Area Office's  finding that the Mississippi Material Purchase Certificate tax must be included in a firm's gross receipts because the tax does not fall under the exception for taxes collected on behalf of a taxing authority at 13 C.F.R. 121.104(a).

In Size Appeal of Pugh Enterprises, SBA No. SIZ-5194 (Feb. 9, 2011), the OHA affirmed (i) a decision that a firm was not eligible for a disaster loan and (ii) the determination of its primary industry.

In Size Appeal of SoftConcept, Inc., SBA No. SIZ-5197 (Feb. 16, 2011), the OHA affirmed the Area Office's dismissal of protest as insufficiently specific.

In Size Appeal of SB Technologies, LLC, SBA No. SIZ-5298 (Nov. 8, 2011), the OHA dismissed appeal as insufficient because it did not allege any errors in two of three bases for the Area Office's original size determination.

In Size Appeal of Eagle Consulting Corp., SBA No. SIZ-5288 PFR (Oct. 6, 2011), the OHA denied a petition for reconsideration of SIZ-5267, which found a company was affiliated with another through economic dependence.

In Size Appeal of Mark Dunning Industries, Inc., SBA No. SIZ-5284 (Sep. 26, 2011), the OHA held the Area Office did not adequately investigate a firm's adequately specific allegations of affiliation.

In Size Appeal of Innovative Resources, SBA No. SIZ-5231 (May 24, 2011), the OHA remanded a case to the Area Office to explain (i) which regulatory provision it used in making its size determination and (ii) which firms' receipts it used in its calculations.

The SBA has revised its OHA decisions page yet again. The new page offers various search options, and the searches take you to a Westlaw site for the texts of the actual decisions. So far, it seems like all the old links I currently have on my OHA decisions page to OHA decisions since January 2007 still work, but, from now on, it appears the SBA will only be providing access to its new decisions via links to this Westlaw site. There may be another hurdle to overcome with this new system. It appears that, although you can navigate from the SBA'S search page to the Westlaw site, you cannot copy the Westlaw address for an individual decision and link directly to that decision from a website other than the SBA's website. So, it appears I may not be able to continue to publish links directly to new OHA decisions from my website. If I am right (and I am still getting to know this new set-up, so don't hold me to this), what I may be limited to doing from now on is giving you the case name, number, date, and summary of a decision's holding, and then have you link to the SBA's search page. Then, you may have to find the decision on that page and relink yourself from that page to the text of the decision on Westlaw, which is much more cumbersome that what we have now, but may be the only option left if SBA does not change its mind about publishing decisions on its own site. If anyone out there knows more about the new system than I have been able to figure out so far, please let me know. You may email me at the "Contact me" link on in the left column on this page.   

One other thought on this issue. Sometimes, readers send me copies of SBA OHA decisions for cases that they are involved in. Whenever you do that, I can upload those decisions to my website and link directly to them. I encourage you to spread the word that I'm willing to do this, and, that way, we can make decisions directly available to the community without the cumbersome process seemingly required by the SBA's new system.     

The CBCA issued two decisions.

In  Merchant's Automotive Group, the CBCA held a contractor's unilateral, unfounded error in judgment not communicated to the Government prior to award was not sufficient to entitle it to relief from the terms of a vehicle lease.

In Merlin International, the same board held that the Government did not breach a contract by failing to exercise an option.

The SBA is extending the comment period (to December 8) for the proposed rules to implement statutory provisions which provide that (i) there is a presumption of loss equal to the value of the contract or other instrument when a concern willfully seeks and receives an award by misrepresentation; (ii) the submission of an offer or application for an award intended for small business concerns will be deemed a size or status certification or representation in certain circumstances; (iii) an authorized official must sign in connection with a size or status certification or representation for a contract or other instrument; and (iv) concerns that fail to update their size or status in the ORCA database (or any successor thereto) at least annually shall no longer be identified in the database as small or some other socioeconomic status until the representation is updated. The proposed rules also clarify when size is determined for purposes of entry into the 8(a) Business Development and HUBZone programs.

In a spent nuclear fuel case (Entergy Nuclear Fitzpatrick), the Court of Federal Claims denied the Government's motion to reconsider the court's prior decision striking the Government's Unavoidable Delays defense. 

In Liberty Ammunition, the court refused to summarily dismiss the plaintiff's claim for the Government's breach of non-disclosure agreements (NDAs) because questions remain whether either the "waiver" or "operation of law" exceptions to the Anti-Assignment Act apply to the assignment of the NDAs.

The Commerce Department's Bureau of Industry and Security (BIS) has issued a proposed rule that (i) describes how articles the President determines no longer warrant control under Category VIII (aircraft and related items) of the United States Munitions List (USML) would be controlled under the Commerce Control List (CCL) in new Export Control Classification Numbers (ECCNs) 9A610, 9B610, 9C610, 9D610, and 9E610; (ii) would transfer control of military aircraft and related items now controlled under ECCNs 9A018, 9D018 and 9E018 to new ECCNs 9A610, 9D610 and 9E610; and (iii) addresses license exception availability for items controlled by the five new ECCNs that would be created.

In a parallel effort, the State Department proposes to amend the ITAR to revise Category VIII (aircraft and related articles) of the  USML to describe more precisely the military aircraft and related defense articles warranting control on the USML. Comments on both the Commerce and State Department's proposed rules are due by December 22. 

The GAO sustained a protest by MEDI-e-ImageData Corp. because the awardee's proposal did not comply with material requirements of an RFQ. 

The State Department is amending the ITAR to update the policy regarding Libya to reflect the additional modifications to the United Nations Security Council arms embargo of Libya adopted in September 2011.

The State Department also is amending the ITAR to reduce the administrative burden on applicants by eliminating the requirement to return certain expired DSP-5 licenses.

DoD is proposing to update policy, responsibilities, and procedures to conform with section 21(e)(1)(B) of Public Law 90–629, as amended, for calculating and assessing charges for recoupment of nonrecurring costs on sales to non U.S. government customers of items developed for or by DoD. Comments are due by January 3, 2012.

DoD's Per Diem, Travel and Transportation Allowance Committee published Civilian Personnel Per Diem Bulletin Number 278, which  lists revisions in the per diem rates prescribed for U.S. Government employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and Possessions of the United States.

The GAO just published a winning protest decision it originally issued in March of 2010--must have been a donneybrook over proposed redactions: Medical Development International, Inc., B-402198.2 (Mar. 28, 2010). 

FAC 2005-54 has been published and includes the following nine items plus technical amendments:

FAR Case 2010-006  ("Notification of Employee Rights Under the National Labor Relations Act"): A final rule adopts, without change, the interim rule amending the FAR to incorporate the DOL regulations that implemented  
E.O. 13496.

FAR Case 2008-025  ("Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions"): Effective December 2, a final rule adds a subpart 3.11 to the FAR to implement the policy on personal conflicts of interest by employees of government contractors as required by section 841(a) of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110–417) (41 U.S.C. 2303). 

FAR Case  2009-019 ("Small Disadvantaged Business Program Self-Certification"): This final rule adopts, without changes, the prior interim rule amending the FAR to incorporate revisions made by the SBA to its small disadvantaged business program, specifically to permit subcontractors to self-represent their SDB status to prime contractors in good 
faith when seeking federal subcontracting opportunities.  

FAR Case 2010-012  ("Certification Requirement and Procurement Prohibition Relating to Iran Sanctions"): A final rule adopts, with changes, the prior interim rule amending the FAR to to implement sections 102 and 106 of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, which, respectively, (i) require certification that each offeror, and any person owned or controlled by the offeror, does not engage in any activity for which sanctions may be imposed under section 5 of the Iran Sanctions Act of 1996 and (ii) impose a procurement prohibition relating to contracts with persons that export certain sensitive technology to Iran. 

FAR Case 2010-018  ("Representation Regarding Export of Sensitive Technology to Iran"): An interim rule amends the FAR to add a representation to implement section 106 of the Comprehensive Iran Sanctions, Accountability, and 
Divestment Act of 2010, which imposes a procurement prohibition relating to contracts with persons that export certain sensitive technology to Iran. 

FAR Case 2011-024  ("Set-Asides for Small Business"): An interim rule amends the FAR to implement section 1331 of the Small Business Jobs Act of 2010, which addresses set-asides of task- and delivery-orders under multiple-award contracts, partial set-asides under multiple-award contracts, and the reserving of one or more multiple-award contracts that are awarded using full and open competition. 

FAR Case 2009-041  ("Sudan Waiver Process"): Effective December 2, a final rule amends the FAR to revise the prohibition on contracting with entities that conduct restricted business operations in Sudan and to add specific criteria including foreign policy aspects that an agency must address when applying to the President or his appointed designee for a waiver of the prohibition on awarding a contract to a contractor that conducts restricted business operations in Sudan. The rule also describes the consultation process that will be used by the OFPP in support of the waiver request review. 

FAR Case  2011-014 ("Successor Entities to the Lesser Antilles"): A final rule amends the FAR to revise the definitions of "Caribbean Basin country" and "designated country"’ due to the change in status of the islands that comprised the Netherlands Antilles.

FAR Case  2009-006 ("Labor Relations Costs"): Effective December 2, a final rule amends the FAR to implement the E.O. on Economy in Government Contracting, issued on January 30, 2009, and amended on October 30, 2009, which treats as unallowable the costs of any activities undertaken to persuade employees, whether employees of the recipient of federal disbursements or of any other entity, to exercise or not to exercise, or concerning the manner of exercising, the right to organize and bargain collectively through representatives of the employee’s own choosing. 

Usually, a forum denies a motion for summary judgment because there are disputed facts that require further development in the record. In Trace Systems, however, the ASBCA denied the Government's motion after the Board found there were no disputed facts and held that (i) the contract contained a latent ambiguity concerning whether R&R travel expenses were reimbursable and (ii) the contractor's interpretation that they were reimbursable was reasonable. Looks a win on the merits for the contractor to me.

In Special Operative Group, the ASBCA dismissed an appeal based on a progress payment request in excess of $100,000 for lack of CDA jurisdiction because the request did not include the CDA certification and the progress payment certification it did include was not an adequate substitute.

On reconsideration, the ASBCA modified its original decision in Thomas Associates--see June 1 entry below for original decision. 

In Exxon Mobil Corp., the Court of Federal Claims held that certain World War II contracts for the production of avgas require the Government to bear the current cleanup costs for refineries that produced the gas.

In D&S Consultants, the Court of Federal Claims denied a post-award protest because (i) discussions were not misleading, inadequate, or unequal; (ii) the Government did not add an unstated evaluation criterion in analyzing the protester's proposal; (iii) there was a rational basis for the IGCE; and (iv) there was a rational basis for the evaluation of the protester's management proposal.

In another protest (by Survival Systems, USA), the court denied the Government's motion to supplement the administrative record with the declaration of the individual who conducted the price analysis because the declaration was prepared after the fact, and the information it purported to provide already was ascertainable from the record. 

In Friendship Dental Laboratories, the GAO recommended that the protester recover its costs because the agency filed the agency report disputing the protest after the agency knew a protest ground had merit.

The ASBCA published four decisions.

In D. J. Miller & Assocs., the Board denied a contractor's claim that the Government had breached a requirements contract by diverting work to other entities.

In Charles Mullens, the Board held that, concerning a non-CDA concession contract, the Board lacked jurisdiction over an appeal from a no-fault termination absent an underlying claim.

In Cooley Constructors, the Board denied a government motion for summary judgment because there were issues of fact regarding contract interpretation requiring further development in the record.

In Raytheon Missile Systems, the Board denied the contracting agency's motion for summary judgment because of material disputed facts over whether that agency's relationship with another government agency resulted in the increases in fuel prices for which contractor is seeking recovery under theories of constructive change and breach of the duty of non-interference with contractual performance.

Power Connector won its GAO protest against an agency's corrective action because, after the agency materially amended the  solicitation, it should have permitted offerors to revise all aspects of their proposals, including price.

In Impresa Construzioni Geom. Domenico Garufi, the Court of Federal Claims awarded EAJA fees after a partially successful bid protest and analyzed various quantum issues in such awards, including expenses of (i) foreign attorneys, (ii) translation, and (iii) travel, as well as the standard for determining whether an enhanced award is justified and the method of computing a COLA.

The GAO sustained a protest by EBA Ernest Bland Assocs. because the agency made its selection without consideration of the solicitation's evaluation factors.

In NetStar-1 Government Consulting, the Court of Federal Claims issued a permanent injunction against further performance of a contract because (i) the contractor had access to proprietary information concerning its competitors  from its work on a prior contract and (ii) this OCI was not adequately mitigated. 

DFARS Case 2012-D001: DoD (i) is proposing to amend the DFARS to revise and expand reporting requirements for government-furnished property to include items uniquely and non-uniquely identified and clarify policy for contractor access to Government supply sources; and (ii) is hosting a public meeting to discuss the proposed rule on November 17, 2011, at 1 p.m. EST in the Defense Acquisition Regulations Council  Conference Room, 241 18th Street South, Suite 200A, Arlington, VA 22202–3409. Comments are due by December 18.

On the Government's motion for reconsideration, the ASBCA held in SRI International  that the amount due the contractor for maintaining a standby letter of credit over two fiscal years under several contracts is to be determined by the procedures set forth in the "Allowable Cost and Payment" clause rather than being predetermined by the Board as suggested by its prior decision. 

In Technosource Information Systems, LLC; TrueTandem, LLC, the GAO sustained a protest because the agency failed to establish any legitimate government need for a solicitation requirement that any non-U.S.-based cloud computing data centers be located in Trade Agreements Act Designated Countries. 

In Moshe Safdie and Assocs., the CBCA denied the contractor's motion for summary relief because the remedy stated in "Design Within Funding Limitations" clause (FAR 52.236-22), requiring the contractor to re-design the work if construction bids come in over budget, does not per se bar the Government from also seeking consequential or actual damages.

In Living Tree Care, the CBCA denied various claims by a contractor performing storm clean-up work in a forest because the work was required by the contract and because the contractor was responsible for the costs associated with improper actions by its subcontractor.

In U.S. Foodservice, the Court of Federal Claims upheld a challenge to the agency's use of a Most Favored Customer clause in a solicitation because the terms of the clause were not a reasonable means of achieving the agency's objective.

In Seaborn Health Care, the court (i) dismissed one protest for lack of standing because resolution of the protest grounds would not place the protester in line for award; and (ii) denied the protests of a second protester against the solicitation's terms and the past performance evaluation.

The GAO sustained two protests--

In Aldevra, the GAO held that (i) the VA violated the Veterans Benefits, Health Care, and Information Technology Act of 2006 and its implementing regulations in the VAAR by using non-mandatory FSS procedures rather than setting aside an acquisition for  SDVOSBs; and (ii) FAR provisions implementing the separate Veterans Benefit Act of 2003 are not controlling in this situation.

In Construct Solutions, the GAO recommended that the agency terminate an award and award the contract to the SDVOSB protester after the SBA reversed its initial refusal to issue a COC to the protester because that decision had been based on the use of the wrong standard for determining the firm's compliance with the "Limitations on Subcontracting" clause.

FAR Case 2010-013: A proposed rule would amend the FAR to require contractors to complete training that addresses the protection of privacy, in accordance with the Privacy Act of 1974, and the handling and safeguarding of personally identifiable information. Comments are due by December 13.

FTR Case 2011-309: GSA has amended the FTR regarding (i) the reimbursement of lodging per diem expenses while on TDY and (ii) GSA’s policy concerning reimbursement for personally-owned residence and personally-owned recreational vehicle expenses while on TDY.

The SBA has issued a direct final rule that will be effective November 28 (unless significant adverse comments are received by November 14) making various amendments conforming SBA's regulations to changes made by the Small Business Jobs Act of 2010 to several SBA programs, including business lending, disaster lending, and contract bundling.

In Environmental Safety Consultants, the ASBCA converted a default termination to a termination for convenience because (i) the Government "dallied" for 11 months after the contract completion date before terminating, demonstrating that time was not the essence, and (ii) the Government, therefore, should have established a new completion date before terminating.  

As part of its comprehensive review of size standards, the SBA is proposing to increase its size standards for 37 industries in NAICS sector 56 (Administrative and Support, Waste Management and Remediation Services)  and to retain the current size standards for seven industries in that sector. The SBA also is proposing to increase its size standards for 15 industries in NAICS sector 51 (Information). Comments are due by December  12.

In International Industrial Park, the Court of Federal Claims (i) examined a non-CDA barter contract requiring the Government to make road improvements in exchange for an easement on the plaintiff's land to patrol the border and (ii) decided issues of contract interpretation, equitable estoppel, waiver, and rescission.

In Rockies Express Pipeline, the CBCA determined the damages flowing from the Government's breach of of a Precedent Agreement and a firm transportation service agreement and the Government's refusal (i) to execute another firm transportation service agreement and (ii) to pay required reservation charges.

The SBA is proposing to amend its regulations to implement provisions of the Small Business Jobs Act of 2010 pertaining to small business size and status integrity, specifically (i) to establish that there is a presumption of loss equal to the value of the contract or other instrument when a concern willfully seeks and receives an award by misrepresentation; (ii) to provide that the submission of an offer or application for an award intended for small business concerns will be deemed a size or status certification or representation in certain circumstances; (iii) to provide that an authorized official must sign in connection with a size or status certification or representation for a contract or other instrument; (iv) to provide that concerns that fail to update their size or status in the ORCA database at least annually shall no longer be identified in the database as small or some other socioeconomic status, until the representation is updated; and (v) to clarify when size is determined for purposes of entry into the 8(a) Business Development and HUBZone programs. Comments are due by November 7.

In Engage Learning, Inc., the CAFC reversed the CBCA's summary dismissal of an appeal for lack of subject matter jurisdiction because, after the contractor initially pled that its appeal involved a contract covered by the CDA, the CBCA made summary conclusions about the credibility of evidence as to the existence of a contract. The CAFC held the Board should have treated the situation as a motion to dismiss for failure to state a claim (where the factual allegations in the complaint must be accepted as true) as opposed to a motion to dismiss for lack of subject matter jurisdiction (where only the uncontroverted factual allegations are accepted for purposes of the motion). 

OFPP's CAS Board proposes to revise its regulations to clarify that the  exemption from CAS at 48 C.F.R. 9903.201–1(b)(15), the "(b)(15) FFP exemption," applies to firm-fixed-price contracts and subcontracts awarded on the basis of adequate price competition without submission of certified cost or pricing data. Comments are due by December 5.

To implement provisions of the Small Business Jobs Act of 2010, the SBA is proposing to amend its regulations (i) to provide that, for a "covered contract" (a contract for which a small business subcontracting plan is required, currently valued above $1.5 million for construction and $650,000 for all other contracts), a prime contractor must notify the Contracting Officer in writing whenever the prime contractor does not utilize a subcontractor used in preparing its bid or proposal during contract performance; (ii) to require a prime contractor to notify the Contracting Officer in writing whenever the prime contractor reduces payments to a subcontractor or when payments to a subcontractor are 90 days or more past due; (iii) to establish that the Contracting Officer is responsible for monitoring and evaluating small business subcontracting plan performance; (iv) to clarify which subcontracts must be included in subcontracting data reporting, which subcontracts should be excluded, and the way subcontracting data is reported; (iv) to make other changes to update its subcontracting regulations, including changing subcontracting plan thresholds and referencing the electronic subcontracting reporting system (eSRS), some of which changes would require the Contracting Officer to review subcontracting plan reports within 60 days of the report ending date; and (v) to address how subcontracting plan requirements and credit towards subcontracting goals can be implemented in connection with Multiagency, Federal Supply Schedule, Multiple Award Schedule and Government-wide Acquisition ID/IQ contracts. Comments are due by December 5.

DFARS 2007-D002: DoD is adopting as final, with changes, an interim rule amending the DFARS to comply with section 3504 of the National Defense Authorization Act for Fiscal Year 2009, which addresses requirements that apply to riding gang members and DoD-exempted individuals who perform work on U.S.-flag vessels under DoD contracts for transportation services.

DFARS 2011-D028: DoD is issuing a final rule amending the DFARS to revise the definition of "qualifying country end product" by eliminating the component test for qualifying country end products that are commercially available  off-the-shelf items.

DFARS 2011-D049: DoD is proposing to amend the DFARS to clarify the requirements for the Canadian Commercial Corporation to submit data other than certified cost or pricing data. Comments are due by December 5.

The DOL proposes to revise the list required by E. O. 13126 ("Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor") in accordance with the DOL's "Procedural Guidelines for the Maintenance of the List of Products Requiring Federal Contractor Certification as to Forced or Indentured Child Labor" by adding the following three products: bricks from Afghanistan and cassiterite and coltan from the Democratic Republic of the Congo. Comments are due by December 3.

The ASBCA published two decisions denying motions for summary judgment because the record was not yet sufficient to decide the issues.

The PSBCA has issued its 2011 decisions, including the following:

In Minute Man Properties, the PSBCA held that the Government, by holding over, did not constructively exercise a lease renewal option, which required written notice of its exercise.

In JM Carranza Trucking Co. , the PSBCA held it lacked jurisdiction to stay enforcement of a government claim.

In two cases, the Government was denied recovery of excess reprocurement costs after a valid default termination simply because it neglected to present any evidence on the subject of the similarity of the reprocurement contract to the terminated contract. In Odessa R. Brown, for example, the PSBCA wrote: "Respondent did not submit into the record a copy of the replacement contract or any other evidence which could establish the type, frequency or timing of the service required by the replacement contract." Similarly, in  Gordon T. Smart, the Board noted that the Government failed to present any evidence that the reprocurement contract was for the same, or similar, services.  

In Tip Top Construction , the PSBCA held that (i) the contractor could recover its consultant costs incurred up to, but not after, the Government's approval of substitute equipment associated with a change; and (ii) attorney fees incurred in trying to convince Contracting Officer of the amount claimed by contractor for the change were not recoverable.

In Roger W. Holcombe, the PSBCA held that a default termination was justified by a contractor's failure to disclose on a pre-award form negative employment history of prior bad acts, even though the Government did not discover this omission until after it had terminated the contract on other grounds.

In Janet L. Fox and Todd Fox, the PSBCA dismissed an untimely-filed application for attorneys fees under the EAJA.