Stan Hinton

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Developments in Government Contracting--2017



May 26 In Horn & Assocs., the Court of Federal Claims held that, viewing the work on a contract for the performance of recovery audits as a whole, the Government severely impeded and failed to cooperate with the contractor in its work, which prevented the contractor from completing the totality of the contract requirements and constituted a breach by the Government of its duty of good faith and fair dealing.
May 24 The GAO sustained portions of consolidated protests by Mevacon NASCO JV; Encanto Facility Services, LLC, because: (i) the agency failed to conduct meaningful discussions with one protester by neglecting to alert it to weaknesses in its technical proposal that the agency evaluated as creating a high risk of unsuccessful performance; and (ii) the award decision failed to explain why the agency selected the higher-rated, but also higher-priced, proposal for award.

In Harmonia Holdings Group, LLC, an unsuccessful preaward protest of the scope of the agency's corrective action in response to a prior protest, the Court of Federal Claims held that the agency was not required to limit the corrective action to a reevaluation and could also revise the solicitation to address issues the agency saw in the original solicitation that were not specifically raised in the prior protest.
May 23 The ASBCA dismissed an appeal by American Green Land Construction Co. for lack of jurisdiction because there was no evidence the contractor had submitted its claim to the Contracting Officer prior to filing the appeal.
May 22 In Government Services Corp., the ASBCA denied the Government's motion to dismiss for failure to prosecute because the contractor had not "repeatedly" missed filing deadlines, and there was no showing of prejudice to the Government from the deadline the contractor had missed.

In CTA I, LLC, the CBCA denied the contractor's petition to require the Contracting Officer to issue a decision by specified date that was only 17 days from the date of the filing of the petition because the contractor did not identify any circumstances that would require such a rushed decision.
May 19 In Vintage Autoworks, Inc., an unsuccessful post-award protest, the Court of Federal Claims rejected the protester's objections to the agency's responsibility determination concerning the awardee because the requirements the protester alleged the awardee failed to meet were contract requirements, and, thus, were matters of contract administration, not solicitation requirements.
May 17 The VA continues to propose revisions to its acquisition regulation (the "VAAR") to update it and harmonize it with the FAR, with the latest proposed revisions focusing on Parts 801-803, 812, 814, 822, and 852. Comments on the proposed changes are due by July 17.
May 16 In Parsons Government Services, Inc., a dispute stemming from the contractor's contention that the Government had violated statutory requirements for the source of contract funding (thereby allegedly rendering the contract void ab initio, entitling the contractor to recover in quantum meruit), the ASBCA dismissed the appeal for failure to state a claim upon which relief could be granted because the statutes at issue provided no private cause of action.

In Public Warehousing Co., K.S.C., the ASBCA denied the contractor's motion: (i) to lift the Board's earlier order imposing a one-year stay of an appeal involving the contractor's affirmative claims; and (ii) to certify that earlier order for interlocutory appeal to the CAFC.
May 15 In Savannah River Nuclear Solutions, LLC, the CBCA denied the contractor's "petition" requesting the Board either to direct the Contracting Officer to issue a decision within 30 days or to treat his failure to have issued a decision prior to the submission of the petition as a deemed denial. The Board found that the contractor's various submissions (claim, petition, and briefs) were inconsistent and confused the procedural requirements applicable to claims for less than $100,000 with those for claims in excess of $100,000. More than 35 years after the deceptively simple appearing CDA became law, litigants still are getting bogged down in its procedural quagmires.

In a related Savannah River Nuclear Solutions, LLC, decision issued the same day as the one above, the CBCA dismissed an appeal for lack of jurisdiction because the Contracting Officer lacked authority to issue a decision on a claim where the matter had been referred to the DOJ due to suspected fraud, and, therefore, his failure to issue a decision could not be treated as a deemed denial.

I don't know why I failed to report on the following decision when it first appeared, but the ASBCA just denied the Government's motion for partial reconsideration of that decision, so I am catching up now. In Supreme Foodservice, GmbH, on various dispositive motions submitted by both parties, the ASBCA originally held, inter alia, that: (i) the Board had jurisdiction to entertain the DLA's claim and affirmative defense that the contract at issue was void ab initio due to fraud in the inducement; (ii) the Board had jurisdiction to entertain the DLA's claim and affirmative defense that the contract was void ab initio due to a conflict of interest; (iii) the DLA's affirmative defenses were not claims and, thus, were not subject to the contractor's untimeliness (limitations) contentions; (iv) the DLA's conflict-of-interest claims under 18 U.S.C. §§ 207(a)(l), 207(a)(2), and 208(a) were barred by the CDA's limitations period because the DLA knew or should have known of a post-employment conflict of interest issue at the time of contract award; (v) a bilateral settlement agreement released, and, therefore, barred the DLA's subsequent fraud in the inducement claims pertaining to an affiliated subcontractor of the contractor, but not the DLA's affirmative defenses based on this same ground; (vi) genuine issues of fact precluded summary judgment in favor of the Government on its affirmative defense of first material breach. Now, the Board has denied the Government's motion for partial reconsideration of the original denial of the Government's motion for summary judgment on the issue of first material breach.
May 12 In Jonathan Noeldner, the CBCA denied the contractor's claim on a timber sales contract because the Government did not require the contractor to cut smaller diameter trees than he was contractually responsible for harvesting, and statements by the Government's sale administrator erroneously interpreting the contract were irrelevant.

In T. K. Hughes Auto Sales, Inc., the CBCA denied the contractor's claims for rust on the undercarriages of two automobiles  bought at a government auction because the vehicles were not misdescribed, there was no warranty against such rust, and the buyer had an opportunity to inspect the vehicles prior to bidding.
May 10 In IT Enterprise Solutions JV, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that: (i) under a standard dictionary definition of the word "count," the Government had complied with the terms of the solicitation by giving the protester's joint venture as a whole credit for the relevant experience of its minority member, but was not required to give that experience the same weight as that of the majority member who would be performing more of the required effort; (ii) under the standard dictionary definition of the verb "address," the Government had correctly evaluated the relevancy of the past performance of a proposed subcontractor, especially where the protester offered no alternative definition for the term, and, in any event, the protester was not prejudiced by any errors in this aspect of the evaluation; (iv) the Government followed the solicitation's requirements in evaluating the "recency" of a proposed subcontractor's past performance;  and (v) in its tradeoff analysis, the agency could distinguish between offerors that had the same general adjectival rating. Concerning the "recency" issue, the court held that the agency correctly determined one proposed subcontractor failed to meet the criteria for recency because its ongoing contract had been ongoing one week short of the six months required by the solicitation, even where that work was a continuation of work that had been ongoing for several prior years, because the protester had not identified that prior work as part of its proposal submission.  

In Gazpromneft-Aero Kyrgystan LLC, the court denied the contractor's claim for reimbursement of back taxes assessed by the Kyrgyz Republic because the contractor failed to give timely notice of the assessment pursuant to the requirement of FAR 52.229-6(j), which prejudiced the DoD's ability to address the issue.

In Turner Construction Co., an unusual, non-CDA case decided by the CBCA under the construction contract's Disputes clause, the Board summarized its holding as follows:

The Board’s role in this matter is to find a reasonable price for the construction services that Turner provided in the renovation of the American History Museum. We are tasked with this assignment because, despite Smithsonian’s promises both in the original contract and during contract performance, Smithsonian never negotiated a firm fixed price for much of the work Turner performed. Smithsonian has a renovated museum, and the Board is deciding herein what additional sums are owed to Turner for that building. The difficulty in this case was principally of Smithsonian’s own making. If Smithsonian had agreed to a firm fixed price for the construction, Turner would have been bound to that price, subject to adjustment for changes and other increases. Having failed to execute the bargain prior to the provision of services, Smithsonian cannot reap the benefits of a bargain it wishes it had struck.

The Board finds that Turner and its subcontractors incurred costs to address problems for which Smithsonian is responsible—hazardous waste abatement, mechanical, electrical and plumbing (MEP) interferences, and continuing design changes. On this record, Turner may recover based upon a quantum meruit theory. Turner’s subcontractors used more conventional methods to attempt to prove their disruption claims arising from these same issues, and some succeeded. However, none of Turner’s subcontractors proved their claims for extended overhead flowing from contract delays.

Regarding Smithsonian’s claim for overpayment based upon its audit of Turner’s project costs, the Board finds that Smithsonian has not met its burden. While the audit exposed areas that merited further investigation, Smithsonian did not undertake those necessary steps. Instead, it simply demanded repayment and has failed to establish a proper basis for that demand.

May 9 In Size Appeal of Aerosage, LLC, the SBA's OHA held that the Area Office correctly found that a firm offering only to use its "best efforts" to comply with the nonmanufacturer rule did not meet that rule's requirements.

In Tetra Tech, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that, "[w]hile it is a close question," a particular work assignment was within the scope of (i.e., "did not materially depart from") the Performance Work Statement of the underlying contract and, therefore, was not issued in violation of CICA.

In First Division Design, LLC, the ASBCA held that, after a convenience termination, the contractor was entitled to recover the portion of the contract price that the Government had withheld because the Government did not dispute the contractor's contention on appeal that it had completed the work; however, in this situation, the contractor was not entitled to recover home office overhead because it was not a cost "resulting from" the termination under FAR 52.212-4(l).

In Swinerton Builders Northwest, a decision that includes 230 pages of factual findings alone in a complex construction contract dispute, the ASBCA held, inter alia, that: (i) although there were many disagreements and inopportune comments by both sides during the project, neither side's positions rose to the level of a bad faith desire to harm the other; (ii) the contractor's proposal did not clearly apprise the Government that it included an alternative or deviation from the solicitation's HVAC/mechanical requirements, and the contractor failed to prove the Government approved any such deviation or otherwise waived the contract requirements in this area at the time of award; (iii) the Government's later approval of an alternative design was only done to avoid further delays to the project caused by the contractor's stubborn insistence on the use of an alternative design and was not a basis for a constructive change or delay claim by contractor (the Government not being required "to exercise the patience of Job"); (iv) the contractor released certain aspects of a Differing Site Conditions claim in a bilateral modification, but was entitled to 14 days of compensable delay damages; and (v) although the Government breached the contract by denying access to the worksite to a Project Manager, the contractor failed to prove damages from the breach.
May 8 In Size Appeal of Gregory Landscape Services, Inc., the SBA's OHA affirmed the Area Office's finding that a firm owned 51% and 49% by a wife and husband, respectively, was affiliated, though identity of interest, with a firm owned by the husband's parents and siblings, in which the husband was a major employee.

In what the OHA noted was the fifth appearance before it of an epic battle involving a joint venture's qualifications, the OHA held in Size Appeal of Alpine/First Preston JV II, LLC, that the protester's joint venture agreement met the requirement in 13 C.F.R. § 124.513(c)(6) that it contain a provision "[i]temizing all major equipment, facilities, and other resources to be furnished by each party to the joint venture, with a detailed schedule of cost or value of each. . . ."


In Size Appeal of Olgoonik Diversified Services, LLC, the OHA held that the Area Office erred in several ways, e.g.: (i) in finding appellant was in a joint venture with two sister companies (because the Area Office had been misled by the firm's use of the term "joint venture" in its proposal for a Department of State procurement, where that department has a different definition of joint venture from the one used by the SBA to determine eligibility); and (ii)  in finding appellant affiliated with sister companies under the ostensible subcontractor rule because they were not subcontractors and because appellant is a business concern owned and controlled by an ANC and, therefore, is not considered affiliated with other concerns owned by that ANC because of common ownership, common management, or performance of common administrative services. 13 C.F.R. § 121.103(b)(2)(ii))
May 5 In SecTek, Inc., the CBCA held that the Government was not liable for the successor contractor's underestimation of the costs for vacation time of the predecessor contractor's employees the successor had retained in a contract covered by the Service Contract Act because the Government was not required to furnish the successor with a seniority list (which would have helped it estimate such costs) until after award, and the successor did not effectively object to the terms of the solicitation (or reserve its rights) regarding this issue in submitting its offer.

The GAO sustained a protest by Verdi Consulting, Inc., holding that: (i) the protester was an interested party because it showed a "reasonable possibility" of prejudice by successfully challenging the Past Performance, Price, and tradeoff evaluations, even where several technical proposals were rated higher; (ii) the agency waived its right to object at the GAO to the fact that the protester failed to submit a revised price proposal because the agency evaluated the protester's final proposal (and that of another offeror) without objection; (iii) the agency improperly downgraded the protester's Past Performance proposal based on an unstated evaluation factor, and the agency's Past Performance evaluation was insufficiently documented; (iv) nothing in the record indicated the agency evaluated option year pricing, as was required by the solicitation;  and (v) the agency's best-value tradeoff analysis was inadequately documented and showed the agency failed to take into account option year pricing. 
May 4 In Size Appeal of NuGate Group, LLC, the SBA's OHA upheld the Area Office's dismissal of a protest as insufficiently specific because it failed to include any evidence or documentation to support its allegations.

In Enhanced Veterans Solutions, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that: (i) there was a rational basis for the agency's assignment of a Marginal rating to the protester's proposed staffing reductions under the Operational Approach subfactor in the Technical evaluation, and the protester's counter-arguments relied on an unreasonable interpretation of the solicitation documents; (ii) the agency's methodology of assigning a Marginal rating to the Technical factor as a whole if an offeror received a Marginal rating in any one of the equally-weighted subfactors was not objectionable; and (iii) the agency's decision not to include the protester's low-priced proposal in the best value tradeoff analysis was not objectionable in the circumstances of this procurement, especially when the SSA's decision clearly explained why the proposal would not have been successful even if it had been included. This is a good example of how difficult it is to win a protest because the court was obviously working hard to find a justification for the agency's actions in each of the three areas summarized above.

In Idaho Stage LLC, the court held that the plain meaning of a contract as a whole favored the contractor's interpretation, and, even if the contract were ambiguous, that ambiguity was latent and, therefore, should be construed against the Government as the drafter.

In Continental Services Group, Inc., et al., the court issued a preliminary injunction in a complex case involving multiple parties to preserve the status quo until the Government announced its corrective action in response to a prior GAO decision on a protest.
May 3 In Size Appeal of Veterans Construction Coalition, LLC, the SBA's OHA remanded the protest to the Area Office for further investigation because, based on its mistaken view of the scope of the former exception to affiliation found at 13 C.F.R. § 121.103(h)(3)(ii), the Area Office had failed to consider the protester's allegations that two firms were generally affiliated.
May 2 In Senate Builders and Construction Managers, Inc., the Court of Federal Claims denied the construction contractor's claim for recovery of its costs of importing backfill material because all the contractor's theories of recovery relied on an unreasonable interpretation of the Government's answer to a pre-bid question, which was included in an amendment to the solicitation prior to bidding.

In Dellew Corp., the Court of Appeals for the Federal Circuit reversed the prior CoFC decision awarding EAJA costs to a protester, because comments by a CoFC judge from the bench during a hearing favoring the protester's position, but not memorialized in a court order or opinion, did not confer "prevailing party" status on the protester. The appeals court also criticized the lower court's reliance on its own precedent rather than that of higher courts: "We reaffirm a well -known principle that the Court of Federal Claims failed to follow here: the Court of Federal Claims must follow relevant decisions of the Supreme Court and the Federal Circuit, not the other way around."  Ouch.
May 1 In Raytheon Co., the ASBCA held, inter alia, that: (i) the burden on the Government to prove that challenged costs are expressly unallowable and subject to a penalty is to show that it would be unreasonable under all the circumstances for a person in the contractor's position to conclude that the costs were allowable; (ii) the burden on the contractor to prove that the Contracting Officer's decision not to waive the penalty for expressly unallowable costs is to show that the decision constitutes an arbitrary and capricious abuse of discretion; (iii) neither the contractor's aircraft fractional lease costs nor its Challenger 604 aircraft lease costs are expressly unallowable costs under a FAR cost principle or executive agency FAR supplement  and, therefore, are not subject to a penalty on expressly unallowable costs; (iv) the salary expenses of employees who engage in activities that generate unallowable lobbying costs are expressly unallowable costs, and the contractor did not meet its burden to prove that the Contracting Officer abused his discretion in declining to waive the penalty for such costs; and (v) the costs of the design and build of its M&A application, which was a proposed database intended to be used both for general planning and specific M&A purposes when ultimately configured, but which was terminated before it was completed and was never used in connection with any M&A target, were allowable economic and market planning costs and, thus, were not expressly unallowable and were not subject to penalty.

In Northwest Title Agency, Inc., the Court of Appeals for the Federal Circuit affirmed the CoFC's prior decision that the contracts at issue unambiguously precluded the contractor (who was providing closing services) from charging closing fees to homebuyers and, therefore, extrinsic evidence of trade practice could not be used to vary the plain meaning of the contract.

The ASBCA shut out MULE Engineering, Inc. on all of its construction contract claims, finding, inter alia, that:  (i) the contractor's inability to perform certain contract work with its own personnel and its delays in employing a subcontractor for that effort constituted concurrent delays that barred one of its claims under the "Suspension of Work" clause;  (ii) the Army's alleged delays were not the cause of the allegedly higher-than-anticipated cost of the contractor's subcontract with its metal building and concrete subcontractor; (iii) the contract required installation of a disputed building column, and the Board was not bound by Contracting Officer's decision granting the contractor certain of its claimed costs for installing the column; (iv) the contractor not entitled to its costs  of replacing a unit it ordered with a duct on the wrong side because the contract drawings contained a patent ambiguity about which the contractor had failed to inquire prior to bidding; (v) any government-caused delay in delivery of a dehumidifier was not on the critical path and, therefore, did not entitle the contractor to extra compensation; and (vi) the Board not bound by part of the Contracting Officer's decision erroneously granting part of the contractor's claim for allegedly excess curb pours, because the contract contained a patent ambiguity on this issue about which the contractor, again, had failed to inquire. 

In Campus Management Corp., the ASBCA:  (i) denied several of the contractor's claimed termination for convenience costs because they were not supported by evidence in the form of contractor's standard business records; and (ii) held that the contractor was entitled to CDA interest beginning from the time it submitted its CDA claim for invoices that Government had unreasonably delayed in paying (in addition to Prompt Payment Act interest accruing prior to the date of the claim).
April 30 In Open Spirit, LLC, an unsuccessful preaward protest, the Court of Federal Claims held that legitimate environmental contamination concerns of which the Government became aware near end of a lease competition, not bad faith or bias, caused the Government to cancel the competition.

In The Concourse Group, LLC, an unsuccessful post-award protest, the court held that: (i) the technical evaluation did not employ any unstated evaluation criteria regarding relevant experience; and (ii) the agency's discussions with the protester were meaningful and fair.
April 28 Competitive Range Solutions, LLC, won its GAO protest because the agency’s exclusion of the company's proposal from the competition based on its failure to have sufficient capabilities in health-related missions amounted to a nonresponsibility determination that should have been referred to the SBA under its COC procedures.

The CBCA dismissed an appeal by JDM, LLC for failure to prosecute because, after the company's original counsel withdrew from the representation in favor of its President, the President failed to respond to the next several orders and communications from the Board.
April 26 The GAO sustained a protest by A-P-T Research, Inc. because: (a) in a situation where the non-incumbent awardee had proposed a high retention rate for incumbent employees and the agency had determined that the awardee’s proposed professional compensation was at the low end of the experience and compensation scales used for evaluation, the contemporaneous record lacked a reasoned basis for finding the awardee’s professional compensation or proposed costs to be acceptable or realistic; and (b) there was no indication in the contemporaneous record that, during the evaluation process, the agency (i) had assessed a potential impaired objectivity OCI posed by the awardee’s major subcontractor or (ii) had found the awardee’s proposed mitigation plan to be sufficient.

In Gallup, Inc., the Government undertook corrective action and paid the protester's attorneys fees as a self-imposed sanction after it discovered and reported to the court that the Contracting Officer had prepared a Memorandum for the Record justifying a small business set-aside after the protest against the set-aside had been filed but had back-dated it to make it appear as if it were a part of the contemporaneous record.
April 25 Walden Security won its GAO protest because the procuring agency violated the terms of the solicitation by failing to permit the offeror to address adverse past performance information to which it was not previously allowed to respond.

In Islands Mechanical Contractor, Inc., the ASBCA dismissed an appeal for lack of jurisdiction because a significant portion of the contractor's "claim" was actually just a proposal for additional work, and, therefore, did not satisfy the CDA requirement that it demand a sum certain as a matter of right.
April 24 In Size Appeal of Lost Creek Holdings, LLC d/b/a ALL-STAR Health Solutions, the SBA's OHA vacated the Area Office's decision to dismiss a protest for lack of standing because the OHA found there was no clear evidence to support the Area Office's finding that the size protester's proposal in response to the solicitation at issue was technically unacceptable.
April 21 In Suffolk Construction Co., the CBCA issued a public reprimand to the contractor's attorney because, without the agency's consent, he removed the agency's contract drawings from its counsel table in a courtroom during a break in hearing proceedings, had them scanned by a third party vendor before returning them, and gave contradictory explanations/justifications for his actions.

In Dream Management, Inc., a decision under the small claims procedure that the CBCA, therefore, labels as nonprecedential, the Board held that: (i) the plain language of a task order under an FSS contract established it was a time-and-materials, rather than an IDIQ, order; (ii) a significant government error in estimating the quantity of work involved was not a breach because there is no basis for a negligent estimate claim in a T&M contract; (iii) a bilateral modification purporting to end the order was not a valid method of terminating it and, therefore, the cancellation should be treated as a termination for convenience; and (iv) as part of its T for C claim, the contractor was entitled to some of the subcontract costs it incurred as a result of the agency's erroneous estimate for the work. It's a shame the decision is nonprecedential because these were all significant legal issues that were addressed.
April 19 In its latest decision in K-Con Building Systems, Inc., which is interesting in part because the court previously held that the default termination underlying these disputes was invalid, the Court of Federal Claims (i) denied the contractor's motion to amend its Complaint to include an appeal of a deemed denial of a claim for convenience termination costs because that claim, having been submitted to the Contracting Officer more than six years after it accrued, was untimely, and (ii) held that (a) the contractor had abandoned certain claims and had not established excusable delay because the Government's review of its drawings complied with the contractual requirements; (b) the contractor had failed to establish that any government-caused delays affected the critical path of performance; and (c) the Government had established its entitlement to liquidated damages in part because the contractor had failed to establish any affirmative defenses to the assessment of those damages.

In TKC International LLC, the ASBCA dismissed the appeal because the individual filing the appeal failed to present any evidence that he was currently an "officer" of the company entitled to represent it in accordance with Board Rule 15.

In [Redacted], ASBCA No. 60841 (Apr. 3, 2017), the ASBCA dismissed another appeal because the underlying claim was in excess of $100,000 and, therefore, required a signed certification, but included only a typed signature block without an actual signature.

In Brittishan Enterprises Corp., the CBCA dismissed an appeal for failure to prosecute because, after the original corporate representative died, the contractor's counsel was unable to locate any corporate representative who was willing to prosecute the appeal.
April 18 SBA proposes to amend its small business size regulations by incorporating the OMB's NAICS revision for 2017 ("NAICS 2017") into its table of small business size standards, effective October 1. NAICS 2017 created 21 new industries by reclassifying, combining, or splitting 29 existing industries under changes made to NAICS in 2012 ("NAICS 2012"). SBA’s proposed size standards for these 21 new industries have resulted in an increase to size standards for six NAICS 2012 industries and part of one industry, a decrease to size standards for two, a change in the size standards measure from average annual receipts to number of employees for one, and no change in size standards for twenty industries and part of one industry. Comments on the proposed rule are due by June 19.
April 14 In the consolidated appeals of Cook Mail Carriers, Inc. and Patricia J. Sasnett, the PSBCA, inter alia, upheld the termination of two contracts under the Termination with Notice clause because, even though the Contracting Officer was mistaken about why changes in mail routes were needed, he had a right to terminate on 60 days notice with or without cause,  and he would still have terminated the contracts and consolidated the routes if he had known the correct facts, so he did not act in bad faith.

In William Finley, although the PSBCA held it had jurisdiction over an appeal involving a monetary claim that the Postal Service declined to renew a contract due to racial discrimination, the Board granted summary judgment in favor of the Government because there was no evidence (beyond the contractor's speculations) that the Postal Service abused its discretion or acted in bad faith or from discriminatory motives in declining to renew a contract so that mail routes could be consolidated.

In MBD Maintenance, LLC, the PSBCA held that a release signed by the contractor after the contractor was aware of the facts giving rise to a mistake in bid claim barred that claim.
April 13 In Kevin Diaz, the Court of Appeals for the Federal Circuit affirmed the prior CoFC decision and held that the protester lacked standing to complain that the Government improperly rejected his unsolicited proposal because the proposal failed to fulfill the requirements of FAR 15.603(c) and, thus, the protester did not have a direct economic interest in the procurement, i.e., did not have a substantial chance of receiving a contract.

In Greenland Contractors I/S, an unsuccessful post-award protest, after the CAFC had vacated the court's earlier decision, the Court of Federal Claims decided two issues that had not been addressed in the prior litigation and held that: (i) the procuring agency had not conducted misleading discussions with the protester by failing to advise it of each individual CLIN price that was significantly higher than its competitors' prices because the solicitation required the agency only to evaluate the total price and the prices for two specific CLINs; and (ii) the solicitation language advising offerors to "show justification for unique practices that significantly lower pricing" did not require offerors to show justification for all lower prices but only for unique practices that lowered prices significantly.

In By Light Professional IT Services, Inc., an unsuccessful post-award protest, the court held that: (i) the protest of a solicitation requirement not raised before the submission of final offers was untimely, especially where the agency had specifically warned the offeror of the requirement during discussions prior to the submission of final offers; (ii) the agency reasonably assigned a deficiency to the protester's proposal for failing to provide a required task order number for one of the contracts it was submitting to satisfy the Experience sub-factor; (iii) there no prejudice to the protester from the agency's decision to raise a competitor's score under the Past Performance factor because the agency did the same with the protester; and (iv) the procuring agency's trade-off analysis (which recognized that one offer had more strengths in the Technical Capability factor despite the fact that both offers received the same overall rating) had a rational basis.

In General Revenue Corp., et al., a decision involving consolidated protests by 15 protesters that defies a brief summary, the GAO (i) held that the agency's evaluation failed to comply with solicitation's evaluation scheme in multiple areas and lacked rational bases, but (ii) sustained the protests only of those protesters who demonstrated prejudice from the evaluation errors.
April 11 In a blistering opinion highly critical of the agency's conduct, the Court of Federal Claims held in Starry Assocs., Inc., that the procuring agency's repeated misconduct and misrepresentations, which had forced the protester to file multiple protests to vindicate its rights, constituted a "special factor" under the EAJA, entitling the protester to recover its attorneys fees at the actual rates charged, rather than at the normal statutory cap of $125 per hour.

In Exelis Inc., the ASBCA held that: (i) the contractor's executive compensation costs were unallowable under FAR 31.205-6(i) because they were based on securities price changes and dividend payments rather than on the employee's individual performance;  and (ii) the Contracting Officer was justified in imposing a penalty on the disallowed costs because they were expressly unallowable.

In [Redacted], ASBCA Nos. 60300, 600302 (Mar. 29, 2017), the ASBCA upheld default terminations after the contractor lost access to its work areas due to a vendor vetting process, which determined that it was a Force Protection Threat to United States and Coalition forces at Kandahar Airfield.

In Military Aircraft Parts, the ASBCA upheld the cancellation of a purchase order because the contractor failed to deliver conforming items in a timely manner.
April 10 In Jacobs Technology, Inc., the Court of Federal Claims rejected challenges by both the awardee and its competitor to the proposed scope of the agency's third round of corrective actions, after the agency had repeatedly chosen the same awardee after the earlier rounds of corrective action.
April 5 In Agility Public Warehousing Co. KSCP, FKA Public Warehousing Co. K.S.C., the Court of Appeals for the Federal Circuit affirmed the part of the  ASBCA's prior decision concluding that the Government had not breached the express terms of a contract, but remanded the case to the ASBCA to consider two claims that the Board had simply stated, without explanation, that it need not consider: "We need not decide whether the government constructively changed contract performance or whether it breached its implied duty of cooperation. At its core, whether the government breached the contract comes down to contract interpretation."  
April 4 The CBCA dismissed an appeal by Consultis of San Antonio, Inc., for lack of jurisdiction because the issue on appeal (which involved the interpretation of the terms of the underlying GSA Schedule contract) should have been decided by the GSA Schedule contract Contracting Officer rather than by the VA's task order Contracting Officer.

In Public Warehousing Co. K.S.C., the ASBCA granted the Government's motion to amend its answer to include additional affirmative defenses, except laches, and stayed the appeal for one year to permit parallel criminal proceedings in district court to proceed.
April 1 In Continental Services Group, Inc., after the Government declined to commit to continuing a previous stay triggered by a prior GAO protest and the protester alleged the Government was diverting work to other contractors to circumvent the protest, the Court of Federal Claims issued a TRO, even though the record was not sufficiently developed yet for the court to determine the protester's likelihood of success on the merits, because the other three factors the court weighs in deciding such motions favored the protester.

In Rivada Mercury, LLC, an unsuccessful challenge to the protester's elimination from the competitive range, the court held that: (i) extensive communications and exchanges between the Government and the offerors prior to establishing the competitive range were specifically contemplated by the solicitation's selection plan for this complex procurement and did not constitute discussions because offerors were neither requested nor permitted to revise their proposals prior to establishment of the competitive range; and (ii) the protester's quarrels with numerous aspects of the agency's technical evaluation all lacked merit.

In Matter of Redhorse Corp., the SBA's OHA reconciled the interpretations of 13 C.F.R. §§  125.18(e) and .25(d) and held that a protest against a firm's SDVOSB status, filed after issuance of an order set aside for SDVOSBs in an option year of a GSA Schedule contract, was untimely because the Contracting Officer had not requested recertification of the offerors' SDVO status in connection with the solicitation for the order. 
March 31 In Tidewater Contractors, Inc., the Court of Federal Claims issued a summary judgment dismissing the contractor's breach of contract claim because: (i) although an FHWA Manual established trade practice applicable to certain of the disputed issues, it could not be used to vary the contract's terms; and (ii) none of the contractor's multiple assertions of alleged improprieties in various aspects of the Government's selection and testing of the contractor's concrete density core samples established that it was improper for the Government to reject them.

In Seneca Sawmill Co., the court denied the Government's motion to dismiss a suit for failure to state a claim because the contractor's allegation (i.e., that the Government improperly reduced the acreage to be harvested under a timber sales contract in violation of the contract's termination provision and as a result of the Government's mishandling of issues concerning the protection of northern spotted owls in the area) was sufficient to state a claim for breach of contract.
March 29 In ASW Assocs., a case involving contract interpretation, the CBCA held that, because the contract lacked a guaranteed minimum quantity or any clause requiring the Government to order all its requirements from the contractor, the contract was neither an ID/IQ nor a requirements contract, and, thus, the contractor was entitled to be paid only for the actual work it performed.
March 28 In Kansas City Power & Light Co., the Court of Federal Claims denied the plaintiff/contractor's motion to strike the Government's affirmative defense of "offset" because that affirmative defense is not a CDA "claim" that requires a Contracting Officer's decision prior to being raised in court.

In Q Integrated Companies, LLC, the court denied the Government's motion for relief from a prior judgment in favor of a bid protester because the SBA's post-judgment finding that the protester was not an eligible small business for contracts in geographic areas different from those at issue in the protest did not necessarily mean it would not be able to compete under a reopened competition for the area under dispute in the current protest.

In Pyrotechnic Specialties, Inc., the ASBCA upheld a default termination (and denied related claims), holding, inter alia, that: (i) discussions concerning extending the contract schedule did not result in an agreement to do so; (ii) the contractor failed to present sufficient evidence that production defects were caused by the Government's allegedly defective specification rather than by the contractor's own production problems; (iii) the Government was not required to approve the contractor's requests for deviations; (iv) even if the Government had tightened the test acceptance requirements in one area, the contractor's failures on another test would still have justified the rejection of its units; (v) a government email suggesting a default termination but not addressed to the Contracting Officer and not directing Contracting Officer to terminate was not evidence the Contracting Officer had failed to exercise independent judgment in terminating the contract; and (vi) there was no evidence of a bad faith termination.

In USAC Aerospace Group dba USAC Aerospace Group Ordnance Division, the ASBCA dismissed an appeal because the alleged corporate appellant failed to provide evidence of (i) its legal capacity to bring its appeal or (ii) the authority of its alleged representative under Board Rule 15.

In DCX-CHOL Enterprises, Inc., the ASBCA dismissed an appeal as moot because the Contracting Officer had rescinded the underlying demand for payment that was being appealed.
March 27 In CB&I AREVA MOX Services, LLC, the CBCA held that the clear language of a bilateral contract modification precluded the contractor's claim for an increase in its fee percentage based on an option that was never exercised.
March 22 The GAO sustained a protest by XPO Logistics Worldwide Government Services, LLC because the solicitation required an assessment of the magnitude of the offerors’ past efforts relative to the solicited requirement, but the record failed to show how the awardee’s comparatively low-value past efforts reasonably could have been assessed as somewhat relevant.

In Progressive Industries, Inc., after a prior bid protest judgment in favor of the plaintiff,  the Court of Federal Claims denied the plaintiff's motion to alter the prior judgment (because the plaintiff's motion was untimely) and  denied the plaintiff's alternative motion for relief from that final judgment because the plaintiff did not show entitlement to that relief under Rule 60(b). (Basically, the plaintiff objected to the corrective action the Government undertook in response to the prior protest.)
March 21 In Industrial Consultants, Inc. dba W. Fortune & Co., the ASBCA upheld a default termination because the contractor's failure to perform was due to its disagreement with the Government's project design rather than any excusable causes.

In Public Warehousing Co., K.S.C., the ASBCA held it lacked jurisdiction to certify its prior decisions (staying an appeal the during pendency of a related district court fraud case and allowing the Government to amend its answer to assert affirmative defenses) for interlocutory review by the CAFC.

In Shippers Stevedoring Co., the ASBCA dismissed an appeal because neither the appellant nor its representative responded to numerous board communications inquiring whether the representative met the requirements of Board rule 15(a).
March 20 In Mercom, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that there was a rational basis for the agency's assignment of an "Unacceptable" rating to one aspect of the protester's technical proposal, reasoning as follows: "[The protester] failed to submit satisfactory evidence of qualifying experience related to sub-factor B2. Mercom’s proposal does not describe its work under the contracts it cited in sufficient detail to enable the agency to reasonably conclude that Mercom performed all of the work stated and had the requisite depth and breadth of experience to be awarded the contract. The contract references provided by Mercom frame the company’s work pursuant to sub-factor B2 hypothetically, i.e., in terms of work that Mercom could perform rather than work it actually did perform."

In Level 3 Communications, LLC, the Court of Federal Claims held that the Government's counsel had repeatedly violated his duty of candor to the court by leading the court to believe performance on a protested contract had not begun when, in fact, it had.

In Size Appeal of INV Technologies, Inc., the SBA's OHA reversed the Area Office's finding of affiliation under the totality of circumstances because the Area Office's findings of fact did not support the conclusion that either allegedly affiliated firm could control the other or that an individual was a key employee of the allegedly affiliated firm, based solely on his job title.

In Size Appeal of Coulson Aviation USA, Inc., the OHA held that: (i) the Area Office had correctly determined from the firm's original proposal that the firm clearly was not the manufacturer of the contract items; and (ii) the firm's wholesale revisions to its proposal in response to the size protest were irrelevant.
March 16 In Foxy Construction, LLC, the CBCA held it lacked jurisdiction over an appeal because, for various reasons (lack of certification, no request for Contracting Officer's decision), none of the contractor's three letters to the Contracting Officer satisfied the requirements for a CDA claim.
March 15 In Supply & Service Team GmbH, the ASBCA held that the (perhaps broader-than-necessary) waiver language in a valid bilateral modification, which was supported by consideration, precluded the Government from subsequently challenging the costs of a Technical Order previously paid to the contractor. Subsequently, the Board denied the Government's motion for reconsideration.

In Military Aircraft Parts, the Board: (i) rejected the contractor's argument that the CAFC's holding in Sikorsky Aircraft (i.e., that the six-year limit for submitting claims is not a jurisdictional statute of limitations) should be extended to apply to the CDA's 90-day limit for appealing Contracting Officer's decisions; and (ii) held that, absent evidence of when the contractor had received a government email transmitting another Contracting Officer's decision, there was no basis to dismiss an appeal from that decision as untimely.

In Rover Construction Co., the ASBCA denied the Government's motion to dismiss an appeal for lack of jurisdiction because, viewed as a whole, numerous emails between the contractor and the Government sufficed to convert a routine invoice into a claim.

In [Redacted], ASBCA No. 60597 (Mar. 3, 2017), the Board held that, despite several questionable government actions that might otherwise have converted a settlement proposal into a disputed claim, there was no jurisdiction because the proposal exceeded $100,000, but was uncertified.
March 14 In The Concourse Group, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that the plaintiff had waived its OCI objections because it had not raised them prior to the close of the bidding process even though they were based on facts that were easily recognizable or obvious before that time.
March 12 The VA is proposing to amend and update its acquisition regulation (the "VAAR") to revise or remove any policy that has been superseded by changes in the FAR, to remove any procedural guidance that is internal to the VA, and to incorporate any new regulations or policies. These proposals are being made in increments, and the current proposal covers the sections of the VAAR concerning "Types of Contracts"  and "Bonds and Insurance." Comments are due by May 12.
March 9 In Size Appeal of Technology Assocs, Inc., the SBA's OHA held that the Area Office had correctly determined that the challenged firm was not the manufacturer because it would not utilize its “own facilities” to manufacture the contract item (an ice-breaking tugboat), as required by 13 C.F.R. § 121.406(b)(2).

In Size Appeal of CTSI-FM, LLC, the OHA held that, although the Area Office had correctly found affiliation among three firms based upon identity of interest between two brothers, the Office had erred in finding affiliation with another firm through common management because the challenged individual held no management position in the allegedly affiliated firm.
March 8 The ASBCA's website is back up, but all the links to individual cases (and to the main website itself) have been changed from the form "http://asbca.azurewebsites.net. . ." to "http://www.asbca.mil. . . ." So, I'm having to change all the links in my website to match. I have already corrected the links on my ASBCA decisions page, in this 2017 blog, and in the past years' blogs and in the contract disputes sections of the past procurement reviews. There are probably some scattered links on other pages that still need correcting, and I will try to get to them soon.

In A-T Solutions, Inc., the ASBCA rejected the Government's attempt to disallow certain charges for items that had been part of interdivisional transfers, (i) holding that such transfers were "at  price" and, thus, the contractor was entitled to charge the Government at price under FAR 31.205-26(e), and (ii) rejecting the DCAA's attempt to establish a requirement that such transfers must have "economic substance" (whatever that means--the Board could not figure it out either).

In Carter Safety Consultants, Inc., the ASBCA held it lacked jurisdiction over an appeal filed more than 90 days after receipt of the Contracting Officer's decision, noting that a possible attempt to file the appeal within 90 days at the wrong forum (in this case, the GAO) was unavailing.

In Military Aircraft Parts, the ASBCA held that the contractor's failure to appeal a default termination decision within 90 days was not excused by the fact that the contract did not include a "Default" clause.

In Thorington Electrical and Construction Co., the ASBCA held that a claim submitted more than six years after it accrued was time-barred, and there was no provision in the CDA to cure this problem by allowing the claim to "relate back" to an earlier claim concerning which the Contracting Officer already had issued a decision and which already had been disposed of on appeal. 

In Astro Systems, Inc., the ASBCA held that the contractor not entitled to recover profit on the cost of repairing damages to a vehicle it had leased to the Government.

In Agility Services Logistics Co., on remand from the CAFC, which had ordered the Board to determine the identity of the real party in interest in the appeal, the ASBCA held that such a determination was irrelevant to its original decision that it lacked jurisdiction over contracts with the Coalition Provisional Authority of Iraq, regardless of the identity of the real party in interest, and that, in any event, the parties had not provided the Board with the information necessary to determine the real party in interest, and the Board lacked the expertise to answer question under Iraqi law on its own. In other words, the Board politely thumbed its nose at the court.

In [Redacted], ASBCA No. 60652, the Board dismissed an appeal for lack of jurisdiction absent evidence the contractor had submitted a claim to the Contracting Officer.

In Sigmatech, Inc., the Court of Federal Claims denied the Government's request to seek an advisory opinion from the GAO because the record before the court includes several hundred pages of documents not originally available to the GAO and waiting for a GAO review would delay the proceedings unnecessarily.
March 7 Harmonia Holdings Group, LLC, won its GAO protest because nothing in the record showed the agency had conducted a required best-value tradeoff analysis between the awardee's  higher-priced, higher technically-rated proposal and protester's lower-priced, lower technically-rated proposal.

In Quality Control International, the CBCA granted the contractor's request to amend its complaint to add a constructive change theory of recovery to its original claim for relief under the Price Adjustment clause because both theories arose from same operative facts, even though the constructive change theory added overhead and profit as elements of claimed damages not previously submitted to the Contracting Officer for decision.

In 1441 L Assocs., LLC, the CBCA held that the plain language of the extension agreement in a lease resolved the question of the quantum of the cumulative operating costs to be paid by the agency. 

In ServiTodo, LLC, the CBCA held that the clear release language of a bilateral settlement agreement barred the current claim.

In Eastco Building Services, the CBCA refused to dismiss an appeal brought under a "dba" name because both the agency and relevant documents recognized that the assumed name entity and the real entity were one and the same.
March 3 In CSR, Inc., the GAO sustained the protest because: (i) the agency engaged in disparate treatment of offerors in its past performance evaluation by limiting its review of the protester's CPARs to projects specifically identified in its proposal, without imposing such a restriction on the review of the awardee's CPARs; and (ii) the best-value tradeoff analysis offered no explanation for finding the awardee's corporate experience superior to that of the protester when the two firms had been rated equally in this area by the evaluators.

Similarly, the GAO sustained a protest by Tribalco, LLC, because the agency had engaged in disparate treatment of offerors by overlooking the same type of flaws and omissions in the awardee's Integrated Master Schedule for which agency had downgraded the protester's proposal.

In CompuCraft, Inc., the CBCA held: (i) it lacked jurisdiction over the portion of the contractor's appeal requesting the Board to order the Government to change a performance evaluation; and (ii) the Board's review was not limited by any findings of fact in the Contracting Officer's underlying decision.
March 1 In Pitney Bowes, Inc., a successful protest, the GAO found that the agency's specifications were unduly restrictive of competition because the agency failed to establish that they were required to meet its needs.
February 27 In Size Appeal of K2 Group, Inc., the SBA's OHA held that the Area Office had correctly determined a size protest was untimely because the agency's delay in awarding the contract did not toll the normal requirement that size protests must be filed within five days after receipt of the pre-award notice of the identity of the prospective awardee.

In Size Appeal of Platinum Business Services, LLC, the OHA held that the Area Office had correctly determined a size protest involving the award of a task order under a multiple-award schedule contract was untimely because task order solicitation did not require recertification of size status.

In Size Appeal of ProSol Assocs., LLC, the OHA held that the Area Office had correctly found affiliation based on identity of interest among family members because the appellant failed to establish a clear fracture between father and son.

In Size Appeal of Quadrant Training Solutions, LLC, after remand from the CoFC, the OHA affirmed its prior decision's finding of affiliation because the document court directed the OHA to consider did not support the conclusion that SBA had extended approval of a mentor-protégé relationship for another year. As noted in the decision, the regulations governing such extensions have since been revised to relax the requirements.
February 21 I just called the ASBCA and was told that their website is down for "administrative reasons" and that, although they will try to have it back online soon, they do not have an estimate as to when that will be. UPDATE--Received the following only slightly more definitive explanation in response to an email I sent the recorder's office: "The Board's website is currently down due to server issues. We are working feverishly to correct the problem. We hope to have the website publically available within a week. In the meantime, if there is a specific document you require, please make a request to the ASBCA Recorder's email address . . . and we will do our best to accommodate."
February 20 The VA has issued an interim final rule requiring reverification of SDVOSB/VOSB status only every three years rather than biennially.
February 18 I apologize if the blog has been a bit spottier than normal recently, but I've been in the process of moving from Texas to Colorado. All finished now, so things should be back to normal.

I still have not heard why the ASBCA's website is down. If any one of you knows, please let me know, too.

In H.C. Beck, Ltd., the CBCA denied the Government's motion to dismiss the appeal for failure to state a claim and held that the contractor's references to the "Differing Site Conditions" and "Request for Equitable Adjustments" clauses were sufficient to proceed with an appeal involving a claim for removing significantly more asbestos-containing materials than the contract originally contemplated.
February 16 In Limco Airepair, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that: (i) the Government conducted an adequate price realism analysis simply by comparing the prices of the only two offers received in response to the solicitation; and (ii) the protester failed to establish prejudice from the Government's ex parte communication with the awardee. I'm not persuaded by the former holding and believe the Government's approach was only (barely) adequate to establish price reasonableness, as in the next decision below.

In Munilla Construction Management, LLC, another unsuccessful protest, the court held that: (i) comparing the prices of four offerors satisfied the requirement to evaluate price reasonableness, without any obligation to determine whether an offered price was too low; and (ii) the  Government appropriately examined individual CLIN pricing to determine whether unbalanced pricing had occurred.
February 15 In Active Network, LLC, a successful post-award protest, the Court of Federal Claims remanded the case to the procuring agency to conduct a price realism analysis because there was scant, if any, evidence in the administrative record that the agency had evaluated price realism in accordance with the clear requirements of the solicitation.
February 14 In Size Appeal of First Nation Group d/b/a Jordan Reses Supply Co., LLC, the SBA's OHA held that the Area Office erred in finding affiliation under the totality of the circumstances based mainly on a subordinated, unsecured note that did not give one firm the power to control the other.

In Size Appeal of Charitar Realty, the OHA held that the Area Office correctly found affiliation under the ostensible subcontractor rule because the proposed subcontractor was the incumbent contractor and prime's proposed personnel were former employees of the subcontractor.
February 13 If any one of you knows why the ASBCA's website is down, please email me and I will share that information with the rest of our visitors.
February 8 In KWR Construction, Inc.--Costs, the GAO recommended the protester be reimbursed its costs of pursuing a protest ground raised in response to the agency report because: (i) the protest was clearly meritorious even though the GAO required further development of the record to demonstrate that the agency's response to the protest was not meritorious; and (ii) the agency unduly delayed taking corrective action when it put the protester to the further expense of replying to the agency's response to the protester's meritorious protest ground.

In Systems Dynamics International, Inc., an unsuccessful protest against elimination from the competitive range, the Court of Federal Claims held that: (i) the protester had waived its rights to object to patent omissions in the solicitation of (a) data required to comply with a solicitation requirement and (b) historical staffing mix and levels, because it had not protested prior to the submission of proposals (even though it had suggested the latter data be added to the solicitation); and (ii) the Government's price evaluation had a reasonable basis.
February 7 In Ecosystem Investment Partners, the Court of Federal Claims dismissed a protest because: (i) the plaintiff neither submitted a bid nor timely protested the issuance of a solicitation, and, thus, lacked standing; (ii) the letter the plaintiff sent providing comments on the proposed solicitation did not fulfill the requirements for an agency-level protest; and (iii) the Government's decision that ultimately led to the solicitation was not a procurement decision and, thus, was not within the court's protest jurisdiction.

In Agility Defense & Government Services, Inc., the Court of Appeals for the Federal Circuit reversed the CoFC and held that, contrary to the lower court's findings, the evidence supported the contractor's contentions that: (i) the Government had provided inadequate or negligent estimates of the anticipated workload, and (ii) the contractor had detrimentally relied on the faulty estimates.

In Truckla Services, Inc., the ASBCA upheld a  default termination because: (i) the contractor had completed only 13% of the work within the contractual performance period, and the Contracting Officer's conclusion that the contractor's plan to complete the work was not reasonably certain nor finalized was supported by the evidence and not an abuse of discretion; and (ii) the BP oil spill, while complicating the contractor's efforts to find barges, did not excuse its failure to perform because the contractor had located two subcontractors capable of performing the work.

In Niking Corp., noting that such motions are not favored, the ASBCA denied the contractor's motions to strike (as insufficiently vague) the Government's affirmative defenses or require more definite statements, holding that the Board's rules require only notice pleading and that there was already a detailed record in the claim and the Contracting Officer's decision, which established the Government's positions on the claims.
February 5

In Size Appeal of Global Submit, Inc., the SBA's OHA held that the Area Office had properly declined to publish the protested firm's proprietary information in a size decision and that the  Area Office had correctly applied the OHA's longstanding interpretation that 13 C.F.R. § 121.105(a)(1) does not bar foreign-owned small businesses from participating in small business set asides, provided that the small business is based in the U.S. and contributes to the U.S. economy.

In Size Appeals of MPC Containment Systems, LLC, and GTA Containers, Inc., the OHA held that (on remand after a prior OHA decision) the Area Office had correctly found that the protested firm was a manufacturer and that there was no affiliation through identity of interest because the firm was widely held by entities who had competing interests)

In Size Appeal of Precision Asset Management Corp. and Q Integrated Companies, LLC, the OHA denied a Petition for Reconsideration because, in deciding issues involving a mentor-protégé agreement, there was no reason to deviate from the normal rule that size is determined as of the date of the initial offer.

In Size Appeal of A-P-T Research, Inc., the OHA held that the Area Office had correctly found there was no affiliation under the ostensible subcontractor rule because although the Area Office misidentified the contract's primary and vital requirements, the challenged firm will perform the bulk of the actual primary and vital requirements and is not unduly reliant on its subcontractors.

February 2 In Paradise Pillow, Inc., the CBCA held that a contractor who had fully performed the required work under a bilateral contract modification, which required it to retrieve blankets it had previously delivered to Government, was entitled to the compensation stated in that modification after the Board found the Government's subsequent attempt to terminate the contract for cause was invalid and should be converted to a T for C.

In BES Design/Build LLC, the CBCA dismissed (for lack of jurisdiction and as premature) an appeal filed before the date the Contracting Officer had timely set for issuance of a decision on the contractor's claim.
February 1 In an interesting case about the limits of the implied duty of good faith and fair dealing, the CBCA held, in TranBen, Ltd., that, where the Government had ordered the minimum required quantity in an IDIQ contract to supply travel vouchers and where the contractor alleged the Government had misled the IRS into approving the use of debit cards as a substitute for vouchers by inaccurately apprising the IRS that vouchers were not readily available, which in turn, allegedly breached the duty of good faith and fair dealing and resulted in fewer orders for vouchers under the contract, the contractor had failed to state a claim upon which relief could be granted in the form of monetary damages because the alleged breach by the Government was not sufficiently related to its duty to the contractor under this particular contract to be actionable. I said it was an interesting case; I did not promise it would not leave you scratching your head.
January 31 In South Bay Boiler Repair, Inc., the ASBCA held that the plain language of a ship repair contract satisfied the requirements of 10 U.S.C. 7311 to notify the contractor of "the types and amounts of hazardous wastes that are required to be removed by the contractor from the vessel, or that are expected to be generated, during the performance of work under the contract" so that the contractor was not entitled to extra compensation for removing what it claimed were unanticipated quantities of hazardous materials.
January 27 In CanPro Investments, Ltd., the Court of Federal Claims:  (i) dismissed (for lack of jurisdiction) the counts of the complaint based on allegations of superior knowledge, impossibility of performance, and entitlement to rescission of the lease because they were not first presented to the Contracting Officer; (ii) dismissed other parts of the complaint because the plaintiff failed to allege plausible grounds for its claims of mutual mistake, misrepresentation and concealment, impracticability of performance, and frustration of purpose; and (iii) held that the plaintiff had sufficiently pled a plausible breach-of-contract claim based on the implied duty of good faith and fair dealing for conduct occurring after execution of the disputed lease. Subsequently, the court denied the Government's motion for reconsideration of the portion of the decision allowing the claim for breach to proceed.
January 26 Threat Management Group, LLC won its GAO protest because the limited information made available by the agency supported the protester's contention that the agency had issued an out-of-scope task order rather than competing the requirement.

In Global Dynamics, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that, where the agency's discussion questions created a patent ambiguity as to whether the agency was conducting a price realism analysis, the protester had a duty to inquire about their meaning and, not having done so, could not later complain about the effect of its decision to raise its prices based upon its (mistaken) assumptions about the agency's intentions.

In EnergX, LLC, the CBCA dismissed an appeal (from an agency's decision to reject a VECP) for lack of jurisdiction because there was no certified claim underlying the original appeal, even though the prior judge had granted the parties extensions of time to allow the Contracting Officer to issue a decision on a certified claim.
January 25 In First Crystal Park Associates Limited Partnership, the Court of Federal Claims held that: (i) where a lease option contemplated renewal of the entire leased space, the Government's alleged attempt to renew only a portion of the space was not an effective option exercise; (ii) the Government official who allegedly reached an oral agreement with the plaintiff to exercise an option for only a portion of the space lacked the authority to modify the  lease or create a new one; and (iii) an alleged verbal agreement concerning the partial option exercise was not binding because it was not reduced to writing as the parties apparently had contemplated it would be.
January 24 In Technology Systems, Inc., over a dissent, the ASBCA held, inter alia, that: (i) the doctrine of retroactive disallowance of costs (under which the Government is estopped from challenging the same type of costs it has allowed in the past) requires a showing of affirmative misconduct by the Government (which was not present in this case); (ii) DCAA's failure to object to costs in past audits, without more, is not sufficient to prevent the Government from questioning those same types of costs in subsequent audits under either a retroactive-disallowance or course- of-dealing theory; and (iii) FAR 31.205-33 (covering professional and consultant service costs) does not establish a blanket requirement for the generation and provision of "work product" in order to recover such costs. The Board also ruled on several other specific types of costs in dispute between the parties.

In K-Con, Inc., the ASBCA denied the contractor's claim for the Government's delays in issuing notices to proceed, holding that, in contracts for the construction of public buildings, the bonding requirements of FAR 52.228-15 are mandatory and represent a significant component of public procurement policy and, therefore, are deemed to be incorporated in those contracts by operation of law under the Christian doctrine, even when mistakenly omitted from the contract documents. Subsequently, the contractor's motion for reconsideration was denied.
January 23 In Kirk Ringgold, the CBCA held that, under a lease, the Government was liable for holdover rent for the period the agency took to restore the property after vacating it. To reach the merits, the Board found that the lessor had submitted a CDA claim when, after the Contracting Officer had disputed the contractor's right to holdover rent, the contractor's wife  "emailed the contracting officer a final invoice with the note, 'An add’l 15 days rent, $6,000, is owed through 10/09/15 when SFS contractors were gone and rock removed. Please process this invoice for prompt payment of this agreed on amount for . . . helibase use.'"
January 20 The Bureau of Industry and Security (BIS) has issued a final rule amending the Export Administration Regulations (EAR) to implement the India-U.S. Joint Statement of June 7, 2016 (which recognized the United States and India as Major Defense Partners) and, specifically: (i) to establish a licensing policy of general approval for exports or reexports to, or transfers within, India of items subject to the EAR and controlled only for National Security or Regional Stability reasons; and (ii) to amend the end use and end user provisions of the Validated End User (VEU) authorization to state that items obtained under authorization VEU in India may be used for either civil or military end uses other than those that are for use in nuclear, "missile," or chemical or biological weapons activities.

The BIS has issued another final rule, to be effective April 19, which: (i) requires persons intending to export or reexport to Hong Kong any item subject to the EAR and controlled on the Commerce Control List (CCL) for national security (NS), missile technology (MT), nuclear nonproliferation (NP column 1), or chemical and biological weapons (CB) reasons to obtain, prior to such export or reexport, a copy of a Hong Kong import license or a written statement from the Hong Kong government that such a license is not required; and (ii) requires persons intending to reexport from Hong Kong any item subject to the EAR and controlled for NS, MT, NP column 1, or CB reasons to obtain a Hong Kong export license or a statement from the Hong Kong government that such a license is not required.
January 18 In Size Appeal of DataSavers of Jacksonville, Inc., the SBA's OHA held that the Area Office had correctly dismissed the following protest allegation as speculative and insufficiently specific: "One of the basis for my pending protest to the GAO is that the award of this contract would clearly violate the Ostensible Subcontractor Rule if in fact the subcontractor is not a small business. If the subcontractor is a small business, then, there is a possibility the Ostensible Subcontractor Rule would not be violated if the affiliation between the prime and sub does not exceed the size standard . . . ."

In IT Shows, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that: (i) the awardee's plan to dedicate a project management office and its staff exclusively to the contract and to bill them as direct rather than overhead costs did not violate the solicitation's requirements or the FAR; (ii) the procuring agency was not required to inform the protester during discussions that it could do the same because its billing of these items as overhead costs was not a deficiency in its proposal; and (iii) the protester waived its right to the protest agency's intention to use ceiling rates in its cost realism analysis because that intention was clearly stated in the solicitation and, therefore, should have been protested before the close of the bidding process.

In A.T.I TACOSE S.C.a.R.L., the ASBCA granted the Government's motion for summary judgment and held that: (i) the contractor's reliance on a single drawing that did not depict speakers in sleeping rooms was unreasonable because the specifications clearly stated that requirement and took precedence over the drawings pursuant to the Order of Precedence clause; and (ii) the firm, fixed-price design-build contract required the contractor to comply with European and Italian building code requirements and, therefore, the contractor was not entitled to extra compensation for complying with elements of those requirements it discovered only after award.

In Military Aircraft Parts, the ASBCA granted the Government's motion for summary judgment because a bilateral modification was clear and unambiguous and constituted a release and an accord and satisfaction of the contractor's claims.

In Ahtna Environmental, Inc., the CBCA used its discretion to stay an appeal to permit the Contracting Officer to issue a decision on the merits of the contractor's claim after a prior Board decision had rejected the basis for the Contracting Officer's original decision, which had addressed only the issue of whether a release barred the claim.

FAR Case 2015-033: A proposed rule would amend the FAR to implement Executive Order 13693 (Planning for Federal Sustainability in the Next Decade) and the biobased product acquisition provisions of the Agricultural Act of 2014 (also known as the 2014 Farm Bill). Comments are due by March 20.
January 17 In York Telecom Corp., an unsuccessful post-award protest, the Court of Federal Claims held that a protest of the agency's determination that the plaintiff was not an eligible small business under the solicitation's size standard was untimely because the protest had not been raised until after the notice of award in a situation where the questions and answers issued during the solicitation process had created a patent ambiguity as to the applicable size standard for the competition (and, indeed, the solicitation was poorly drafted, imposing a size standard with a 150 employee limit and, in the same breath, specifying the nonmanufacturer rule, which has a 500-employee limit for nonmanufacturers).
January 14 Walker Development & Trading Group, Inc., won its GAO protest because, despite having been given numerous opportunities to do so, the procuring agency failed to provide a consistent, rational explanation for canceling a solicitation and extending the incumbent's contract.
January 13 Federal Acquisition Circular (FAC)  2005-95 has been published and includes the following five final rules:

FAR Case 2013-014: A final rule amends the FAR to establish the uniform use of line items in federal procurements.

FAR Case 2016-004: A final rule amends the FAR to implement a section of the National Defense Authorization Act for Fiscal Year 2016 to raise the simplified acquisition thresholds for special emergency procurement authority from $300,000 to $750,000 within the United States and from $1 million to $1.5 million outside the United States.

FAR Case 2015-012: Effective January 19, a final rule amends the FAR to implement a section of the Consolidated and Further Continuing Appropriations Act, 2015, that prohibits the use of funds, appropriated or otherwise made available, for a contract with an entity that requires employees or subcontractors to sign an internal confidentiality agreement that restricts such employees or subcontractors from lawfully reporting waste, fraud, or abuse to a designated government representative authorized to receive such information.

FAR Case 2012-022: A final rule amends the FAR to implement regulatory clarifications made by the Small Business Administration regarding the 8(a) program, including, inter alia: (i) revisions to the language at FAR 19.804–6(a) to clarify that offers and acceptances are required for individual orders under multiple-award contracts that were not set aside for competition among 8(a) contractors; (ii) revisions to the language at FAR 19.814(a) to indicate that the SBA Inspector General can request a formal size determination; and (iii) revisions to the language at FAR 19.815 regarding the release of requirements from the 8(a) program, in order to clarify that any follow-on 8(a) requirement shall remain in the 8(a) program unless there is a mandatory source for the requirement pursuant to FAR 8.002 or 8.003 or the SBA agrees to release the requirement for procurement outside the 8(a) program. 

FAR Case 2015-016: A final rule amends the FAR to implement section 857 of the Carl Levin and Howard P. ‘Buck’ McKeon National Defense Authorization Act for Fiscal Year 2015, which includes additional requirements relative to the allowability of costs incurred by a contractor in connection with a Congressional investigation or inquiry.

The Department of Agriculture is proposing to amend the Guidelines for Designating Biobased Products for Federal Procurement (Guidelines) to add 12 sections that will designate 12 product categories composed of intermediate ingredient and feedstock materials within which biobased products would be afforded procurement preference by Federal agencies and their contractors. USDA is also proposing minimum biobased contents for each of these product categories.  Comments are due by March 14.

The State Department requests comments from the public by March 14 regarding recent revisions to Category XII of the United States Munitions List (USML). In light of the ongoing transition of the USML to a more "positive list" pursuant to the President’s Export Control Reform initiative, the Department requests that the public comment on (1) alternatives to controls on certain items when "specially designed for a military end user," (2) the scope of the control in paragraph (b)(1), and (3) certain technical parameters that the Department is evaluating to replace "specially designed" controls.
January 11 In Munilla Construction Management, LLC, the Court of Federal Claims denied the protester's request for a TRO because: (i) it might lack standing since it was not next-in-line for award; and (ii) it did not show irreparable harm because, inter alia, the court had established an aggressive schedule for full consideration of its protest.
January 10 In Astro Systems, Inc., the ASBCA held that the contract did not require the Government to pay the lessor profit on the cost to repair damage to leased vehicles caused by government personnel.

In Sparton DeLeon Springs, LLC, the ASBCA held that the Contracting Officer's decision demanding reimbursement of direct costs was a government claim and was time-barred because it was issued more than six years after the Government knew or should have known of the claim.

Effective January 15, the State Department is issuing a final rule revising Category XV (Spacecraft and Related Articles) of the U.S. Munitions List to describe more precisely the articles warranting control in that category. The Commerce Department's Bureau of Industry and Security is making corresponding changes to the Commodity Control List.
January 6 In RQ Squared, LLC, after permitting limited discovery, the Court of Federal Claims granted the Government's renewed motion for summary judgment and dismissed the plaintiff's suit for breach of an alleged implied-in-fact contract (under which the Postal Service was allegedly to protect plaintiff's proprietary information from disclosure and use) because, inter alia: (i) the court could not discern from the plaintiff's pleadings and submissions exactly what proprietary information the Postal Service allegedly misappropriated; (ii) the Postal Service was using the disputed technology before the plaintiff disclosed it to the Postal Service; and (iii) UPS developed certain disputed technology independently without unauthorized disclosure from the Postal Service.
January 5 In a case that I would bet originated with some overly zealous DCAA auditor, the ASBCA spanked the Government and simply dismissed two government claims out of hand in Lockheed Martin Integrated Systems, Inc., reasoning that: (i) the Government's attempt to disallow certain subcontract costs was based only on vague, conclusory assist audit reports on subcontractors and did not establish any logical liability on the part of the prime; and (ii) the Government's claim that the prime contractor breached some duty to the Government by failing to monitor its subcontractors adequately to avoid billing the Government for certain subcontractor costs questioned in various assist audits did not even allege several of the elements required to establish a breach.
January 4 In Strategic Business Solutions, Inc., an unsuccessful preaward protest, the Court of Federal Claims held that the procuring agency did not err in rejecting a proposal for failure to comply with a mandatory solicitation requirement to provide a redacted copy of its proposal because the failure was not a minor informality or irregularity that could be waived.

In Parcel 49C Limited Partnership, another unsuccessful preaward protest, the court held that: (i) the procuring agency had twice investigated allegations of an organizational conflict of interest involving the protester's competitor and had properly found that any conflict, even if it existed, had been mitigated; (ii) the challenged firm had committed to meet the solicitation's single-owner requirement if awarded the contract, which was all the solicitation required of it; and (iii) the solicitation's requirements were necessary to meet the agency's minimum needs and, therefore, were not unduly restrictive of competition.
January 3 GSAR Case 2016-G508: The GSA is amending the General Services Administration Acquisition Regulation (GSAR) (i) to remove the section regarding internal procedures used by GSA personnel to monitor contractual actions entered into the Federal Procurement Data System and (ii) to add a nonregulatory section in the General Services Acquisition Manual (GSAM) covering this subject.

The Department of State has amended the ITAR to enable U.S. Customs and Border Protection (CBP) to implement the International Trade Data System (ITDS), which will allow businesses to electronically submit the data required to import or export cargo, as provided by Executive Order 13659 and the Security and Accountability for Every Port Act of 2006 (SAFE Port Act).
January 2 In Meridian Engineering Co., the Court of Federal Claims held that, because the Government's actions, including suspending the work, were addressable under the Suspension of Work and Changes clauses, the contractor was entitled only to an equitable adjustment, not breach damages, and the court then made extensive factual findings and legal conclusions concerning various specific elements of the claimed equitable adjustment, e.g., home office overhead, interest, and tool costs.
January 1, 2017 Happy New Year! Today marks the start of this site's eleventh year. Time flies when regardless whether you're having fun.

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