|
April 4 |
In
Textron Aviation Defense LLC, the Court of Appeals for the Federal
Circuit affirmed the
prior CoFC decision granting summary judgment to the Government
and dismissing the contractor's Complaint because the
underlying claim was not
submitted within the six-year limitations period. Specifically, the
court held that: (i) the contractor failed to
present evidence that it did not have enough information to know or
have reason to know the claim's "sum certain" at the time the
court concluded the limitations
period began to run; (ii) the CoFC correctly concluded the contractor's request for
payment under CAS 413 was not "routine" because
the alleged amount owed had no connection to the expected or scheduled progression of contract performance,
but rather arose from an unanticipated bankruptcy and
associated segment closings; (iii) the contractor's predecessor-in-interest sustained
damage (which started the limitations period running) when the
terminations and curtailment of the pension plans triggered
its ability to request CAS 413-50(c)(12) pension-cost
adjustments, and not at the much later date when the
Government denied its CAS 413 payment request. |
|
April 3 |
In a decision involving statutory interpretation, the GAO sustained a protest by E.K.K. Investments, LLC,
holding that in a
solicitation (by means of an RFI) for fresh fruits and vegetables for resale at commissary stores
in Korea, the agency
could not establish a sole-source BPA without executing a J&A or soliciting offers from as many
sources as practicable.
In
Daniels Bldg. Co., an unsuccessful protest of a prior
SBA OHA decision, the Court of Federal Claims upheld the OHA's finding
that the challenged SDVOSB member of a team
performing a construction contract would not violate the ostensible
subcontractor rule because it would perform the primary and vital requirements of the contract,
which, in the case of construction contracts, are "the management,
supervision and oversight of the project, including coordinating the work of various
subcontractors, not the actual construction work performed." 13 C.F.R. § 121.103(h)(3)(iv).
The court also held that: (i)
the issue of whether the contractor was unduly reliant on its team
member/sub was properly before the OHA; and (ii) its analysis of that issue
was unobjectionable.
In Fuel Tank Maintenance
Co., LLC, over a
dissent concerning one aspect of the claim, the ASBCA held that, in a contract for
the construction of relief wells and various modifications to
a pump
station: (i) the contractor was not entitled to compensation for 21 days of delay
that the contractor's own expert
report stated was concurrent or for 9 non-federal holiday days during
an
extended holiday that the contractor took from the job without seeking
the Government's approval; (ii) an email from the COR to the contractor could not
vary any contract requirements regarding an electrical impact study
because the COR lacked authority to change the contract;
(iii) motor pump testing ordered by the Contracting Officer under
the "Inspection of
Construction" clause required the contractor to be compensated when it was
determined the motors functioned as contractually required; (iv) the contractor
was
entitled to compensation for delay caused when an issue with monorail
clearance that prevented a subcontractor's work was discovered while
that sub was on the way to the site; (v) the contractor was required to submit
a "variance" and obtain approval for a change to a water test, and
the length of suspension of work associated with this process was reasonable;
(vi) the contractor was not entitled to compensation for its second excavation of
a discharge pipe absent evidence the Government (or the contract) required
the first excavation, which occurred
before the installation of larger (changed) motors that the contractor
already knew would
require a separate excavation; (vii) the contractor could not change from
the method of charging for field office overhead
identified in its proposal by an employee with authority to do so, as it was directed to do by a special solicitation provision
that was not inconsistent with FAR 31.105(d)(3) or otherwise improper, despite arguments by
the dissent that the special provision was improper and
that, in the circumstances, the contract should have been
reformed due to a unilateral mistake by the contractor's
employee.
In
Maverick Constructors, LLC, the ASBCA denied all the contractor's claims in
a contract for the construction of water
resource area levees, canals, pumping stations, control structures, siphon, access
roadways, and appurtenant work on a water conservation restoration project.
Specifically, the Board held that: (i)
allegedly unsuitable material (rocks) in an excavation did not constitute
a Type I differing site condition because, inter alia,
the rocks were not materially different from the material clearly described in
several contract documents; (ii) the Government's provision of an additional
borrow area within seven days of notice from the contractor that
satisfactory material in the original area had been exhausted was
reasonable in the circumstances and did not breach the implied duty of
good faith and fair dealing where the contractor had failed to produce
evidence for its assertion that it had submitted multiple notices
prior to the one at the onset of the seven day period; (iii) the contractor
could not recover for its costs of reconstructing the original levee
it had built that
allegedly met all contract requirements because the Government's daily
inspection reports during that construction repeatedly had noted
deficiencies in its fill material; (iv) the Government's ACO's comments on
various submittals by the contractor were intended to assist it in
revising the submittals and could not properly be interpreted as
change orders; (v) the contractor was on notice from the Government of
a defective specification prior to undertaking the action that it
now claimed was compensable due to that defect; (vi) there
was insufficient evidence concerning the contractor's
allegations that it was required to create a 5-foot
vegetation-free zone and establish grass seed long after the
period during which the work was required
by the contract; (vii) the contractor was not entitled to almost two years of
excusable delay and a corresponding remission of liquidated damages because
the contractor failed to establish the extent of delay, the harm resulting from alleged delay, and that any delay days were solely attributable to
government actions (a complete failure of proof). |
|
April 2 |
The GAO sustained a protest by Trace Systems,
Inc. because the agency's
evaluation of the awardee did not comply with the specific criteria in
the PWS for evaluating
the relevance of
past performance.
In Size Appeal of Advanced Information Systems Group, Inc.,
the SBA's OHA held that a virtual business incorporated in
the United States that does not conduct business in a physical location but does business and delivers the services
it sells online, which is owned by Americans and employs Americans
residing in their homes from which the online services are delivered in the United States
has a "place of business located in the United States" pursuant to 13 C.F.R. § 121.105(a)(1). |
|
April 1 |
In
Size Appeal of Marathon Targets,
Inc., the SBA's OHA affirmed the dismissal of a protest for
lack of standing because the protester had been eliminated from
consideration for award for procurement-related reasons (here, an organizational conflict of
interest, an appearance of impropriety, and an unfair competitive
advantage), even though that determination had not been made
until well after the size protest was initially filed. The protester argued
that the following regulation meant that standing should be
determined as of the date of filing (and that is what the
language clearly seems to suggest), but the OHA rejected the
argument (probably because it would lead to an illogical result): "[T]he following entities
may file a size protest in connection with a particular procurement, sale or order: (i) Any offeror that the contracting officer has not eliminated from consideration any procurement-related reason.
. . ." 13 C.F.R. § 121.1001(a)(1)(i) (italics added).
In TPMC-EnergySolutions Environmental Services 2008, LLC,
which involved the interpretation of an ID/IQ contract
with an 8(A) mentor-protégé JV for remediation
services at nuclear waste site, the Court of Federal Claims
held in a lengthy opinion, inter alia, that: (i) under the doctrine of
contra proferentem, the plaintiff's interpretation of a task order as
firm fixed price (rather than fixed unit price) was reasonable and would be adopted;
(ii) disputed release
language in one task order would not be interpreted as a waiver of
the plaintiff's claim for a Type I Differing Site Condition under FAR 52.236-2 because
that language differed from the waiver language in other task orders
and modifications that did constitute a general release; (iii) a reasonable contractor reading the contract documents as a whole would
interpret
the statement that the "top five feet of overburden associated with each burial pit
is considered uncontaminated soil" as making an affirmative representation as to the site condition,
which turned out to be inaccurate; (iv) the contract documents indicated to
a reasonable contractor that certain contaminants would be found
underground in packaging and containers, and finding them dispersed
in, and not easily separated from, the soil was an unforeseeable
differing site condition; (v) the agency breached the contract by failing to
disclose its superior knowledge as to both these issues; (vi) the agency
breached the implied duty of good faith and fair dealing by (a) improperly
conditioning approval of an aspect of the contractor's work plan on its
agreement to rates advocated by Government in a separate billing
dispute, (b) insisting that the contractor accept language in a mod waiving its right
to an equitable adjustment, when the basic contract clearly gave it such
a right, and (c) threating the contractor with fines for breaching a supposed 90-day storage limit
that the agency failed to disclose actually had been waived by the EPA;
and (vii) the agency's actions rendered the task order mod
void and unenforceable
due to economic duress. |
|
March 31 |
In
Eagle Peak Rock & Paving, Inc.,
on
remand from the CAFC, which had reversed the
CBCA's prior decision (overturning a default termination) on the basis
that the Board had focused on the reasoning in the Contracting Officer's
termination decision rather than considering the
issues de novo, the CBCA
again holds the termination for failure to make progress was improper
because the schedules presented by the contractor complied with the
contract's requirements and showed it could have completed the work on
time considering that two construction seasons remained, and, in the
circumstances, the contractor had made adequate progress during the
first construction season.
|
|
March 30 |
Alares Constr.,
Inc. is an interesting case involving claims
for extra work and delays on a construction project at a VA medical center. The presiding judge died after the hearing, so a new judge read the briefs and issued
the decision. In connection with its post-hearing briefing, the contractor made several unsuccessful motions.
The contractor wanted
the CBCA to exclude documents impeaching one of the
contractor's
witnesses from the Appeal File because those documents were
not mentioned during the hearing. That request was denied
because, inter alia, the documents had been in the
appeal file for as long as for five years before the
hearing, and the deadline for objecting to documents in the
file had long since passed. The contractor wanted the Board
to overturn the trial judge's ruling that the contractor had
failed to qualify its witness as an expert on
delay claims and critical path analysis. That motion was
denied because the original ruling was correct and because
the trial judge (without objection from the agency) had
allowed the witness to present his opinions and his report
as lay opinion testimony. The contractor asked the Board to draw an
adverse inference (that the Contracting Officer's testimony
would have benefited the contractor) from the fact that the
Government had not called the Contracting Officer to testify at the hearing. The
Board gave several good and sufficient reasons for denying this motion, but
the only one it really needed, imo, was that the Contracting
Officer was also on the contractor's witness list, but the
contractor chose not to call him and also had declined the
new judge's offer to re-open the hearing to allow additional
testimony. On the merits, the Board found the contractor's
critical path report and analysis unpersuasive, but (to the
Government's apparent chagrin) instead of denying the delay
claim in its entirety, as the agency had requested, the
Board relied, to some extent, on the agency's
expert's critical path analysis, which had concluded the
contractor was entitled to some of its delay claim. The bulk
of this very long decision contains analyses of many issues
concerning the cause and extent of the delays, too many to
summarize here. Apart from its delay claim, the contractor presented no evidence beyond
speculation to support its claim that the Government had
breached its implied duty of good faith and fair dealing by
allegedly failing to reasonably review and approve the
contractor's change
order and delay requests out of fear of funding limitations. The Board denied
another claim because the contractor had failed the
requirement to coordinate the work of its subcontractors,
which resulted in one subcontractor removing some work
installed by another sub, which, in turn, necessitated the
reinstallation of that work. |
|
March 28 |
In
1102 Co., a case involving the CBCA's small claims procedure, the
Board held that in a contract to provide, inter alia, personnel
with security clearances at fixed monthly rates for full-time equivalent work days of eight hours each,
the contractor was not entitled to bill for individuals until their
security clearances were approved, and the agency did not unduly delay
approval of a security clearance, especially where the solicitation warned
that background checks could require more than 30 days.
In
Adapt Consulting, LLC, which involved a contractor's EAJA application,
the CBCA held that: (i) the agency's actions in terminating
a contract for
default and in denying almost all of the appellant's monetary claims were
not substantially justified; (ii) there were no defects in the attorney billing records
provided by the appellant; and (iii) absent any specific objections
presented by the Government, the Board on its own would
determine that the appellant's success on the default termination and
most of its claims merited an EAJA award of 75% of its attorneys' total billings.
In
Crystal Clear Maintenance, a Rule
19 proceeding solely on the written record, the CBCA denied the Government's
half-baked claim for flood
damage in a building after a storm (which allegedly resulted from the contractor's work
on its building maintenance
contract) because: (i) the proceeding was not bifurcated into quantum
and entitlement, and the Government failed to present any evidence
of quantum[!]; (ii) the Government did not establish that the
contractor's actions caused the flooding event; (iii) the Government's
allegation that the contractor was required to have personnel in the
building during the weather event that resulted in the flooding
conflicted with the clear language in the contract; and (iv) the
Government's allegation that the contractor should have notified that
Government that it had moved a sensor failed because the Government did
not even prove the contractor actually had moved it.
In JITA Contracting, Inc.,
the CBCA denied
cross-motions for summary judgment concerning the propriety of a default
termination. The Board held that the contractor did not establish that the Government had waived
its right to terminate by waiting approximately two months after the
required completion date because the contractor had not
presented any undisputed facts showing that it "could . . . reasonably have believed that time was not of the essence or that its
previous periods of delay had been excused." The Board denied two of the three grounds
the Government contended supported its decision to terminate because they were
not alleged in the Government's Complaint or any any time before reply
briefing in the the Government's motion for summary judgment
(this was an issue of lack of adequate notice to the
contractor, and these items could still be litigated at a
hearing on the merits). The Board
denied the remaining portion of the Government's motion alleging that
the default was
justified by the contractor's failure to complete the project on time because
the motion did not include any undisputed facts establishing
that the contractor did not have any excusable
delays. Finally, the Board granted the portion of the Government's motion alleging that
"disincentive deductions" could be taken by the Government for
the contractor's
delays beyond the completion date because, although the contract language
was not "ideally drafted," no other interpretation of the contract's language made
sense. |
|
March 27 |
In
B.L. Harbert Int'l, LLC, which involved a contract to replace
a taxiway at an Air Force base, the Court of Federal Claims granted
the Government's motion
for judgment on the pleadings based on general releases in
two bilateral modifications. The first release stated the modification "constitutes compensation in full on behalf of the Contractor and its Subcontractors
and Suppliers for all costs and markups directly or indirectly
attributable for the change ordered, for all delays related thereto, for all extended overhead costs, and for performance of the
change within the time frame stated." The second release covered all claims
except any for a time extension that might occur in the future, and
there was no such time extension.
The GAO sustained a protest by Perimeter Security
Partners, LLC, concluding that the agency unreasonably
found a technical quotation unacceptable after assigning two deficiencies
for pages from that allegedly exceeded a page count limit when the
solicitation was latently ambiguous as to whether the items in dispute
(charts) were among those that the solicitation indicated would be
excluded from the page count and where both the agency's and the
protester's interpretations were reasonable. |
|
March 26 |
The SBA's OHA dismissed the
Size Appeal of Fiber Business Solutions Group, Inc. d/b/a GForce
because neither an Area Office nor the OHA has jurisdiction
over a
challenge to an awardee's 8(a) eligibility, even when the appellant tries to
label it as a size protest.
|
|
March 25 |
In
Envistacom, LLC, the ASBCA denied the
Government's motion to dismiss based on contractor's alleged
conflation of claims from two different contracts and ambiguities in
its Complaint concerning that same alleged issue because,
inter alia, the Government's own
responses to the claim and the Complaint clearly indicated the Government was not
under any misapprehension at all concerning the contract to which the claim
related or the nature and amount of the claim. The Board also denied
the contractor's
motion for a default judgment based on the Government's allegedly
deficient Rule 4 filing and its frivolous motion to dismiss
because neither is grounds for the harsh sanction of default.
In
Marathon Targets, Inc., an unsuccessful (and unusual) post-award protest
at the Court of Federal Claims, the plaintiff requested a preliminary injunction,
claiming that
the agency's OCI investigation (which had resulted in its
post-award disqualification from the competition) was
procedurally and substantively flawed. That investigation
had resulted in the conclusion that the plaintiff (a) had used source selection sensitive information inadvertently
disclosed to it by the Contracting Officer to file an SBA protest and
(b) had failed to indicate it would
take all the mitigation steps requested by the Contracting Officer in using
that information in this CoFC protest. The court found that the
four-hour time limit the agency gave the plaintiff to
respond to the agency's final OCI report was not violative
of due process because, inter alia, (a) the
plaintiff had had plenty of time to respond to the agency's
concerns over the prior weeks (and had done so), (b) those
were the same concerns raised in the report, and (c) the
plaintiff did not establish what additional information it
could have provided had it been given additional time to
respond. Substantively, there were ample examples of conduct
by the plaintiff after it received the inadvertent
disclosure to support the OCI investigation's conclusion
that there was an appearance of impropriety.
Executive Order 14240 encourages consolidating
procurements of "common goods and services" in the GSA. |
|
March 23 |
In IVA’AL Solutions, LLC,
a decision on entitlement in a contract
with a tribally-owned participant in the
SBA's 8(a) business development program designed to
provide healthcare professionals to the Air Force, the ASBCA
held that: (i) in answering preaward questions
from bidders, the Government withheld superior knowledge concerning a
predecessor contractor's difficulties in maintaining adequate staffing
and its vacancy rates for unfilled positions; (ii) the disputed FFP
line items (with a
quantity of hours and a unit price per hour) formed a fixed-price,
level-of-effort term contract, under which the the contractor was entitled
only to recover for
work actually performed; (iii) a bilateral modification established
the contract's billing
method and superseded an allegedly contrary statement by the Contracting
Officer; and (iv) the Government did not breach the implied duty to
this contractor of good faith and fair
dealing by failing to enforce vacancy rates on a predecessor contract
with a different contractor.
In
Fluor Federal Solutions, LLC, which involved contract
interpretation in a fixed price regional base operations support contract for four Naval
facilities in Florida, the ASBCA held that: (i) preaward questions
(RFIs) and answers were incorporated in the contract; and (ii) based on
the contractor's proposal (to which the Government did not object and
which was incorporated into contract), the contract specifications,
and surrounding circumstances, the contract required the contractor to
"maintain" a previously populated database to be provided by the Government, and
the contractor was entitled to recover as a constructive change to the
extent the database provided by the Government was unusable, even
after the Government's efforts to scrub its data, which, in turn, required the contractor
to create the data in it (not as a volunteer). The Board denied the
contractor's claims for the following allegedly extra work
involved in maintaining and repairing equipment: (i) claims
based on the allegedly excessive age of the equipment and equipment with
pre-existing conditions (because the contract stated the equipment would be
made available "as is"); (ii) claims for allegedly having to make capital
improvements (because this work was within the contract's definition of
required "alterations"); (iii) claims based on work allegedly "not in
contract" (because (a) the contract work was described in terms of systems
rather than individual items, (b) the contract warned the list of items
in it was not
complete, and (c) the contractor's employees conceded that they developed this
claim category without reference to what the contract required); (iv)
various other categories of claims (e.g.,
negligence, incrementing, bundling, lack of access,
nuisance, and force majeure) (because the contractor failed to present adequate evidence to support
them or they involved work required by the contract); and
(v) claims for superior knowledge, breach of the "Government
Property" clause and breach of the implied duty of good faith and fair dealing, all based
on the Government's alleged misrepresentation of the condition of the equipment that
needed to be repaired (because, inter alia, of the multiple
statements in the fixed price contract that the equipment would be
provided "as is"). Finally, in part because the contractor
succeeded on one, but not all, of its claims, the record was not sufficient for
the Board to determine that
the agency's "marginal" and "unsatisfactory" CPAR ratings were justified,
so the Board returned the case to the agency to review its
CPAR ratings in light of
the Board's decision. |
|
March 21 |
In
Associated Energy Group, LLC, dba AEG Fuels, the Court of Appeals for the Federal
Circuit affirmed the
prior CoFC decision dismissing a protest against a bridge contract
because, although the expiration of the bridge contract did not render the
protest moot, the plaintiff lacked both Article III standing (because it
could not meet a material requirement of the solicitation) and
statutory (Tucker Act) standing (because even if all the alleged errors
in the procurement were remedied as requested by the protester, it still
would not have a substantial chance of award and, thus, did not have a
substantial economic interest in the procurement).
|
|
March 20 |
In
Size Appeal of MicroTechnologies,
LLC, the SBA's OHA dismissed (as premature) an appeal seeking
a firm's recertification as a small business because there was no
indication the firm previously had sought recertification from an Area Office or that
an Area Office had issued a decision on such a request. (The
firm had submitted a request to the GSA in conjunction with the VETS 2 Governmentwide Acquisition Contract asking that
it be "reinstated and be able to pursue VETS 2 opportunities"
and had assumed, incorrectly, that the GSA's denial of that
request was appealable to the OHA.)
|
|
March 19 |
In
CGS-Ace Security LLC, the CBCA denied the Government's motion for summary judgment
(based on the allegation that the appellant was not
the contractor) because (i)
the appellant's was the name entered into Box 15 (labeled "Name and
Address of Offeror") on the SF 33; (ii) the "Order of Precedence" clause
ranked the information in the SF 33 (part of the Schedule) over a conflicting
name in an exhibit to the contract; and (iii) there is no law stating that
awarding a contract to an entity different from the one named in the
proposal voids the contract: [The
Government] does not establish that a contract must be deemed awarded to the
entity whose name is on the proposal, regardless of the plain language of the contract itself.
Thus, even if the award of a contract to CGS-ACE Security LLC was found to be improper
as a matter of law, such a finding would not establish that [the agency] did not enter into a contract
with CGS-ACE Security LLC. |
|
March 18 |
In
Warrior Focused Solutions, LLC, an unsuccessful post-award protest,
the Court of Federal Claims held that: (i) under Blue & Gold
Fleet, the plaintiff had waived its objection to the agency's failure to
conduct discussions because it had not timely protested the unequivocal
statement in the solicitation that there would not be any discussions;
(ii) there were rational bases for assigning weaknesses in each of many areas
challenged by the plaintiff in the evaluation of Mission Capability;
(iii) there was a rational basis for rating the plaintiff's
Small Business Participation plan as Good rather than Outstanding because
the rating was based on a holistic evaluation rather than focusing
only on an allegedly unenforceable teaming agreement, and
according to the agency's evaluator who identified
discrepancies in its proposal, clarification concerning some
clerical errors among them should be sought only if the Government decided to enter discussions;
and (iv) the Cost Realism analysis was unobjectionable
because, inter alia, lacking any documentation, such as rate agreements or historical rates, to justify
the newly formed JV's proposed overhead and G&A rates, the agency was
justified in performing the cost realism analysis of the plaintiff by
comparing its proposed rates to those of the two other offerors, which
is an acceptable method under FAR § 15.404-1(c)(iii).
|
|
March 17 |
In
The QED Group LLC d/b/a Q2 Impact, a successful protest against the plaintiff's
disqualification from the OASIS+ competition, the Court of Federal Claims undertook a detailed
statutory analysis to conclude that section 889(d)(2) waivers issued by the Director
of National Intelligence (under his authority to waive the prohibition in Section 889 of the John S. McCain NDAA
for FY
2019 against using telecommunications equipment or services provided by Chinese-government-owned companies)
are not limited to a single contract or a single entity, as opposed to
waivers issued by agency heads under section 889(d)(1) of that statute, which are specific to the
requesting entity and are time-limited.
|
|
March 16 |
In
VSBC Protest of Veteran
Military Contracting, the SBA's OHA sustained a protest against
the SDVOSB status of a competitor in an SDVOSB set-aside because
the challenged firm conceded it was not a certified SDVOSB and claimed it had mistakenly checked the box indicating it was an SDVOSB on the solicitation form.
|
|
March 15 |
Both MicroTechnologies
LLC and SMS Data Products Group, Inc. won their GAO protests
against a task order award to Trace Systems Inc. The GAO
sustained the protest by SMS Data Products
Group, Inc. because: (i) in evaluating professional compensation, there was no explanation for the agency's adoption of a baseline of 8% below the incumbent's rates
before proposed rates would be flagged, and the agency did not evaluate whether the lower rates were sufficient to
"maintain program
continuity, uninterrupted high-quality work, and availability of required competent
professional service employees" as required by FAR § 52.222-4; and (ii)
the agency
failed to conduct the price risk analysis required by DFARS § 252.204-7024,
specifically "a measure of whether a proposed price for a product or service is consistent
with historical prices paid for that item or service." In MicroTechnologies LLC, in addition to finding the lack of the required price risk
analysis discussed in its SMS decision, the GAO held that:
(i) the agency unreasonably compared the awardee's proposed direct
labor rates for professional personnel only to market data instead of to the incumbent's direct labor
rates, as required by FAR § 52.222-4; (ii) the
record did not contain a comparison of proposed fringe benefits to the incumbent's fringe
benefits, as also required by FAR § 52.222-4; and (iii) in evaluating non-professional
compensation in the parties' revised proposals, the agency ignored
the solicitation
requirement that it compare proposed rates to the incumbent's rates. |
|
March 14 |
In
Balfour Beatty Constr., LLC, a decision
labeled as nonprecedential, the Court of Appeals for the
Federal Circuit vacated and remanded (in part) the
prior CBCA decision because a contract drawing indicating that the contractor should
“match existing building foundations” (which were
18 inches thick) was sufficiently definite to constitute a design
specification, creating an implied warranty, and the CBCA erred in construing it as a
performance specification.
|
|
March 13 |
In
THE CENTECH GROUP, Inc., the Court of Federal Claims held that:
(i) the Government had breached a task order for the contractor's acquisition and installation of
a communications infrastructure in a
building on Vandenberg Air Force Base by failing to pay for materials necessary
for that installation that had been ordered on the basis of Government's
approval of the bill of materials, even though the Government subsequently
paused the project after which the contractor switched subcontractors
and ordered different materials; (ii) the contractor's failure to invoice
precisely correctly for the parts was not a "material" breach that
would absolve the Government from having to pay for them; and (iii)
the Government could not avoid payment by noting that the items had never been
delivered because it was the Government that had prevented delivery by pausing
the project.
|
|
March 12 |
In
Size Appeal of Secise, LLC, the SBA's OHA held that the
180-day period at 13 C.F.R. § 125.12(e)(2)(i) (formerly, 13 C.F.R. § 121.404(g)(2)(iii)) for determining whether a small business has undergone a merger or
acquisition that renders it ineligible for award in a particular
procurement begins to run from the date of the initial offer and does not restart at the date of any
subsequent offers.
In BDPE Appeal of iZen ai Inc.,
the OHA upheld a decision denying admission to the 8(a) program due to lack of economic disadvantage because
the owner's tax returns showed income exceeding the $400,000 threshold, including funds withdrawn from
an IRA for personal use, and the allegation that those funds were
subsequently stolen was irrelevant.
In
Blue Water Thinking, LLC, an unsuccessful post-award protest, the
Court of Federal Claims held that: (i) given the Contracting
Officer's thorough (90+ page) trade-off analysis and the extended length of the
procurement, her timing in conducting a prior OCI investigation and in
seeking an OCI waiver and her prior reference to the eventual awardee
as the "apparent awardee" were not objectionable as "pre-selecting"
the eventual winner; (ii) the solicitation required only that unbalanced
pricing be considered and did not require a price realism analysis;
(iii) there was an adequate basis in the record for the Contracting Officer's
decision to maintain the technical
evaluation panel's rating of the awardee's proposal as "outstanding" in
the third and final evaluation, even though she had downgraded that rating to "good" in the
second evaluation; and (iv) the proposals were not sufficiently identical to support
the protester's claim of disparate treatment in the evaluation of technical
capability. |
|
March 11 |
In Sunrez Corp.,
interpreting, in detail, a Small Business Innovative Research
contract with the Air Force to design, develop, and build next-generation air-cargo
pallets, the Court of Federal Claims granted the Government's motion for summary
judgment concerning the plaintiff's claim for breach of the implied duty of good faith
and fair dealing because, read as a whole, the contract required the plaintiff
to initiate a draft technical data package at the beginning of Phase
II, develop that package during Phase II, and deliver it before
beginning Phase III with enough detail to accurately
depict the final product and to allow competitive re-procurement in Phase III, and
the plaintiff could not identify any specific promise in the contract that
the Government had breached in the various actions that the plaintiff
alleged constituted the breach.
In
Phylway Constr., LLC, a Rule 11 proceeding, the ASBCA held that under
the "Damage to Work" clause in a contract for clearing, grubbing, and vegetation removal, excavation for
a new drainage canal, and placement of uncompacted embankment and compacted embankment,
the contractor could not recover for its costs of clearing debris deposited on the work site by
hurricane storm surge during performance because that debris did not fall
within the definition of "damage" and did not require "repair" within
the meaning of the clause.
In
Relyant Global LLC, the ASBCA directed the
Contracting Officer to issue a decision on a claim two months faster than his proposed date because taking nine months to issue a decision on a seven-page claim with two
attachments was unreasonable. |
|
March 10 |
The GAO sustained a protest by TISTA Science and Technology Corp.
because the agency evaluated essentially equivalent quotations
disparately in three areas, including surge staffing, surge
staffing onboarding, and the use of a master schedule to
track projects. |
|
March 7 |
In
Thales USA, Inc., an unsuccessful post-award protest in a
solicitation for a firm fixed-price contract to replace the Air Force’s legacy
tactical air navigation systems with a new man-portable system, the Court of Federal
Claims held, inter alia, that: (i) the D&F
underlying the solicitation clearly stated the agency would
not evaluate past performance, and past performance was not
an evaluation criterion, so the protester's post-award
complaint in this area was waived (Blue & Gold Fleet);
(ii) the agency was not required to assign a weakness
to the awardee in an evaluation factor that the solicitation
clearly stated would be evaluated only as Acceptable or
Unacceptable; (iii) the agency did not evaluate offerors
unequally because the offers were not substantially
identical in the areas complained of by the plaintiff; and
(iv) the agency's price realism analysis was consistent with
the solicitation's evaluation scheme and utilized acceptable
methods of analysis.
|
|
March 6 |
In
Wise Developments, LLC, the CBCA overturned
the agency's default termination
of a building lease based on an alleged (sporadic) odor bothering the tenants that the lessor had
undertaken extraordinary steps to identify but that could
never be detected by third parties, much less traced to any
source in the building, itself, beyond, possibly, space
heaters used by the agency's employees in violation of their
lease because the allegedly offensive odor did not satisfy the
condition in the default clause cited by the agency to
justify the default, i.e., that the lessor had failed to maintain, repair, operate or service the premises as and when specified in the lease or
had failed to perform any other requirement of the lease as and when required
(especially when the lease did not have any requirements
concerning offensive odors). The Board also found that the
situation did not constitute a common law constructive eviction
because the intermittent alleged odors did not rise to the
level of "living or operating
conditions . . . so egregious as to constitute substantial interference with the tenant’s
beneficial use and enjoyment of the leased premises." |
|
March 5 |
In System Studies & Simulation, Inc.,
et al., which involved unsuccessful consolidated post-award protests
in an
acquisition of helicopter training support services, the Court of
Federal Claims held that: (i) pursuant to the CAFC's decision in
Oak Grove Technologies, the plaintiffs
had waived their right to object to the agency's failure to
conduct discussions as allegedly required by DFARS §
215.306(c), 10 U.S.C. § 3303(a)(2), or FAR § 15.306(a)(3)
because the solicitation had made it clear that the agency
did not intend to do so; and (ii) various weaknesses and
deficiencies assigned to the plaintiffs' proposals had a rational basis and complied with the solicitation's evaluation scheme or were not prejudicial. |
|
March 3 |
In FlightSafety International Inc.,
the Court of Appeals for the Federal Circuit affirmed the prior
ASBCA decision, holding that, pursuant to 10 U.S.C. § 2320 and DFARS § 252.227-7013,
the contractor's restrictive markings on
commercial data necessary for operation,
maintenance, installation, or training ("OMIT" data) and developed exclusively at private expense were improper
because the markings would have restricted the Government's rights to use
that particular type of data on
future procurements.
In
BES Design/Build, LLC, which involved claims
for delay damages, the Court of Federal Claims denied
the Government's motion for summary
judgment concerning two constructive change claims because there were
disputed issues of fact as to (a) whether the contract required the
contractor to provide designs for the replacement of all plumbing and electric panels
or only those that could not be reused and (b) causation, i.e.,
which party was responsible for the fact that the
contractor's design submissions were late. The court dismissed
(for lack of jurisdiction) the contractor's claim
for the replacement of steam heating with a gas-powered boiler because the
claim had not been previously submitted to
the Contracting Officer for a decision: "The words 'steam' and
'heating' never appear in the claim. . . . In fact, they do not even appear in [the plaintiff's]
complaint."
|
|
February 28 |
In GovWave, LLC, et al.,
the Court of Federal Claims dismissed a large group of consolidated preaward protests against
the elimination of
the plaintiffs in a preliminary stage of the evaluation process for
failure to comply with one of what the solicitation repeatedly labeled as "Strict Compliance
Requirements" (a statement on adverse
past performance, a complete price model, and a complete equipment list) because the solicitation
clearly and repeatedly (ad nauseum, actually) warned
that any such failures would result in disqualification from further consideration.
|
|
February 27 |
In
WP Health Consulting, LLP, an unsuccessful protest, the Court of
Federal Claims held that in eliminating the plaintiff from a competition by
finding its proposal was not ranked high enough to merit inclusion in
the competitive range in Phase II of the competition, the agency was not required by FAR § 19.601(c) and 13 C.F.R. § 125.5 to submit
the proposal to the SBA for a CoC determination because the agency did
not evaluate the offer on a
"non-comparative" (e.g., pass/fail, go/no go, acceptable/unacceptable)
basis, and, in any event, the plaintiff was not prejudiced because it was the lowest
ranked offer
among all those that had made it to Phase II before the agency
selected the competitive range, and it failed to explain how its
relative standing among the offerors would have improved had the
SBA issued a CoC.
In
VSBC Protest of Winergy, LLC,
the SBA's OHA held that, in a solicitation to inspect and
certify ventilation equipment at a VA facility, the challenged SDVOSB violated the
ostensible subcontractor rule because its proposal did not
reflect (a) that the firm would self-perform any portion of the work with its own employees,
(b) that any of its employees
would be involved with the contract, or (c) that its
employees possessed the certification required to perform
the contract work. |
|
February 26 |
In
Size Appeal of DecisionPoint-Agile Defense JV, LLC, the SBA's OHA held that,
in finding a joint venture other than small, the Area Office
had incorrectly limited its review to the firm's joint venture agreement (JVA) instead
of examining both the JVA and Operating Agreement together.
|
|
February 25 |
In
Raytheon Co., Court of Federal Claims Judge Bonilla (seeking
to provide some clarity on a jurisdictional issue courts
have confronted without a clear standard so far) held
that the court has exclusive Tucker Act bid protest jurisdiction over challenges to those "other
transactions" and "other transactional agreements" defined in 10 U.S.C. §§ 4021–22
that
involve "an acquisition instrument other than a traditional
procurement vehicle intended to provide the government with a direct benefit in the
form of products or services" [emphasis added] as opposed to those
intended only to facilitate "the creation or
expansion of a commercial market for the general public from which a federal agency
or instrumentality might someday purchase." The judge concluded that the court
had jurisdiction over the plaintiff's protest in this case
and invited the CAFC to examine his definition to settle
the issue once and for all.
In
Competitive Innovations LLC, the court denied the plaintiff's motion to supplement the Administrative Record,
holding that materials from a prior (allegedly identical) procurement (which
allegedly showed the agency applied a standard inconsistent with the one
used in the protested procurement) were irrelevant because each procurement stands on
its own, and the prior materials were not necessary for the court to
evaluate the current protest. The court also denied a request to complete the
Administrative Record with the same materials because the plaintiff failed to provide "clear evidence" that the current record was incomplete
when the plaintiff alleged only that "the record
is not complete because [it] does not contain an explanation for" how the agency evaluated the disputed element.
In
CAN Softtech, Inc., after an in camera review, the court required
the Government to complete the Administrative Record by filing a draft memorandum
(redacted to exclude portions protected by the
attorney-client or deliberative process privileges) referenced in a decisional document
already in the
Administrative Record regarding potential Procurement Integrity Act violations, even though the deliberations
concerning those violations were not issues in the protest, because those
deliberations might help explain the time the Government took to decide to
terminate the contract and issue a new solicitation. |
|
February 23 |
In
WSP USA Solutions, Inc., a decision labeled as nonprecedential,
the Court of Appeals for the Federal Circuit remanded the
case for further proceedings because the ASBCA had
erred in concluding
both that: (i)
the contract at issue was an IDIQ rather than a requirements contract; and (ii)
the contract unambiguously required that task orders should be priced at
the time they were issued rather than at the time of performance.
In
Cobeal Consulting Group, an
appeal from a default termination, the ASBCA held that it lacked jurisdiction over monetary claims
for increased costs, return of withheld liquidated damages, and time extensions
because they had not previously been properly submitted as
claims to the Contracting Officer for a
decision (the contractor had submitted two, uncertified REAs in excess
of $100,000 to the Contracting Officer, one of which
concerned matters not mentioned by the contractor on appeal
and the other containing no certification at all).
In
Sauer Constr., Inc., the ASBCA denied the
Government's motion for summary judgment that a release unambiguously barred the contractor's rust
remediation claims because the language of the release could be
interpreted to be limited to a specific change rather than to all
claims, including the claim in dispute. |
|
February 21 |
In Science and Technology
Corp., the Court of Federal Claims denied the
plaintiff's request for a stay of the court's
prior decision (see January 6 entry below) pending the
plaintiff's appeal to the CAFC, finding, inter alia,
that the plaintiff is unlikely to prevail on the merits of its argument that
the agency
should have decided to conduct discussions in this Part 15 procurement. |
|
February 19 |
In
Hawaiian Dredging Constr. Co., a decision labeled as
nonprecedential, the Court of Appeals for the Federal
Circuit held that the Court of Federal Claims should not
have granted the Government's preliminary Rule 12(b)(6) motion to dismiss
(for failure to state a claim) most of the contractor's claims alleging
that various Government actions or
inactions delayed and/or increased plaintiff's costs on a fixed-price
construction contract because, accepting the allegations in the
Complaint as true, as the lower court should have, there were open
issues that
could only be resolved by further proceedings, e.g., whether
the time the Government took to obtain rights of way and
approval of utility agreements was reasonable when the
contract was silent on the issue. |
|
February 18 |
In IntelliBridge, LLC,
an unsuccessful preaward protest, the Court of Federal
Claims held that the challenged solicitation did not violate 41 U.S.C. § 3307(b)'s requirement that
a federal agency, "to the
maximum extent practicable," define the products or services it is seeking in a manner that
allows for the procurement of "commercial services or commercial products or, to the extent that
commercial products . . . are not available, nondevelopmental items" because,
in this case, the agency was not soliciting a software product that would
replicate
the functionality of a specific existing product through a developmental solution, but
rather was soliciting an expansive set of cloud and IT services.
|
|
February 17 |
In
Size Appeal of Team CSI Joint Venture, LLC,
the SBA's OHA held that the Area Office had correctly dismissed (as untimely)
a size protest of a task order award under a long-term IDIQ MAC contract because
the Contracting Officer had not requested size recertification in connection
with the task order solicitation. |
|
February 13 |
In
Orion Government Services, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that: (i) the agency's evaluation
of price
reasonableness by comparing offerors' prices to the IGE and to one another
complied with the FAR and was unobjectionable; and (ii) the Agency Record was
sufficient to establish that the agency also evaluated offers for unbalanced
pricing, even though the record did not include the details of that
evaluation.
|
|
February 12 |
In AcmeSolv, Inc.,
an unsuccessful post-award protest, the Court of Federal
Claims held that,
viewed as a whole, the agency's Past Performance evaluation was not
merely quantitative (which the plaintiff alleged violated the
solicitation), but was qualitative as well, and the plaintiff undermined
its allegation by offering its own quantitative analysis to argue that its
past performance should have been evaluated more highly. The court
also held that the plaintiff
failed to show prejudice because, even accepting the evaluation it
claimed its past performance deserved, it was only equal to the awardee
in the Past Performance and Technical evaluations, while its price was
significantly higher than the awardee's.
|
|
February 10 |
In
Size Appeal of Chenega Base and Logistics Services,
LLC, the SBA's OHA upheld the appeal in a size protest concerning an 8(a) set-aside procurement
because,
pursuant to 13 C.F.R. § 121.103(h)(2)(i), the Area Office should
have examined the protester's contention that an 8(a) joint venture agreement failed to
comply with the requirements for such agreements at 13 C.F.R. § 124.513(b)
and (c). |
|
February 8 |
In
Size Appeal of Acacia7 JV, although the appellant lost on many of its allegations of
affiliation, it ultimately prevailed when the SBA's OHA held
that a mentor-protégé joint venture
agreement (JVA) of the challenged firm did not comply with 13 C.F.R
§ 125.8 because the Responsible Manager
designated by the small business was subject to oversight and control
by an Executive Committee comprised of one member each from the
mentor
and the protégé whose decisions must be unanimous and
because the Responsible Manger shared authority with a Program Manager
that was an employee of the mentor. The OHA also found that the JVA did not comply with 13 C.F.R. § 125.8(b)(2)(viii), which
requires the JVA to have a provision obligating all parties to ensure performance of the contract
and to complete performance despite withdrawal of a member. |
|
February 7 |
In
AECOM Technical Services, Inc., the ASBCA decided the
contractor had no right to recover its considerable costs
associated with its preparation of a proposal, including a
feasibility study, in connection with a solicitation for a
task order award under its IDIQ contract because the
contract clearly and repeatedly stated such costs could not
be recovered if the Government decided not to award the task
order or proceed with the project "for any reason."
Specifically, the Board held that: (i) it lacked
jurisdiction over any claims based on an implied-in-law
contract; (ii) the contractor had not previously submitted
its superior knowledge claim to the Contracting Officer for a
decision; (iii) the implied duty of good faith and fair
dealing cannot be used to establish a contractual right
directly contradictory to the terms of a written contract;
and (iv) the fact that the Contracting Officer had not given
any reason for not proceeding with the project was
irrelevant because the contract did not require him to
provide a reason:
If the KO determines that the project is not feasible for
any reason including but not limited to financial,
technical, contractual, savings determination, installation
mission, or organizational issues, then the Government will
not be subject to any costs associated with the feasibility
study unless the Government exercises its option to obtain
ownership of the submitted documentation. |
|
February 6 |
In
Fort Fairfield BP, LLC, which involved the interpretation of two lease
terms ("real estate tax base" and "full assessment"), the CBCA held that the GSA had used the correct year for
the real estate tax base
because: (i) it was the first full tax year after the lease commenced; and
(ii) that
year's
taxes were based on a "full assessment" since all improvements contemplated in the lease
were complete before the
taxing authority’s assessment date.
|
|
February 5 |
I decided to quit whining and dig in, so I've fixed the
broken 2014 Court of Federal Claims links about 51 weeks
faster than my original prediction.
In
27-35 Jackson Ave. LLC, the Court of Appeals for the Federal
Circuit affirmed the
prior CoFC decision upholding the Government/lessee's decision to
terminate a building lease after finding the building untenantable following
extensive damage due to a burst sprinkler head because the lease
specifically gave the lessee the right to determine whether the
building was untenantable, which limited the court to deciding whether
the lessee's determination was arbitrary or capricious, and the lessee
had provided ample reasons for its decision. |
|
February 4 |
In
VSBC Protest of
Data Monitor Systems, Inc., the SBA's OHA denied a challenge to a
firm's SDVOSB status because: (i) two of the three members of
the LLC were SDVs whose "Voting Block" was required for (a)
a quorum and (b) all significant decisions pursuant to the Operating Agreement,
which established the requisite control by SDVs;
(ii) a qualifying veteran held the highest position in the firm;
(iii) the fact that a non-SDV was the company's registered agent did
not diminish the control by the two SDVs; (iv) the fact that
the SDVs worked at a subcontractor owned by the non-SDV member
was not disqualifying because the subcontractor's involvement
was not crucial to the SDVOSB's ability to conduct business, and, thus,
the SDVs could exercise independent business judgment without economic risk;
(v) the SDVs' employment at the sub did not violate the general rule that qualifying vets must work full-time during normal business hours at
the SDVOSB because the record established that the SDVs had ultimate managerial authority under the Operating Agreement; and
(vi) the protester failed to provide any credible evidence in support of its allegation of
a violation of the ostensible subcontractor rule, especially
where the protested firm established it would comply with the
"limitations on subcontracting" requirement.
I encourage you to read the decision and let me know
what you think. After reading the full recitation of the
facts, I'm not sure the decision passes the smell test. |
|
February 3 |
In
HDR Eng'g Inc., the ASBCA sustained an appeal by
an architect-engineer (A-E) of a government claim for professional negligence in
the design of a dam pursuant to FAR 52.236-23
because, under the three-pronged test established in
Parsons Main, Inc., the Government failed to establish that: (i) the construction contractor substantially complied with the
A-E's design in the manner intended by the A-E; and (ii) in its
design, the
A-E exercised its skill, ability and judgment negligently, instead of with
reasonable care.
GSAR Case 2024–G502:
In just one of many such situations by multiple agencies, the GSA is postponing the
effective date of amendments that appeared in the Federal Register on December
27, 2024,
in compliance with the Presidential
Memorandum titled "Regulatory Freeze
Pending Review," signed on January 20,
by President Trump. |
|
January 30 |
In
The Kennedy Collective, a case that involved contract
interpretation, the Court of Federal Claims dismissed the
contract suit, holding that a blanket purchase agreement (BPA) awarded by NOAA to
the plaintiff for PPE during COVID was not a
binding contract or a requirements contract or an indefinite quantity
contract because it was not based on mutuality of either consideration
or obligation, so the Government was not liable on the plaintiff's claim for
its inventory and disposal costs of PPE that
the plaintiff acquired in anticipation of receiving orders
that did not materialize, even though the BPA
contained some irregularities when compared to a normal BPA, e.g.,
referring to itself as a contract in several places.
In RELI Group, Inc., an unsuccessful
post-award protest against a task order award in response to an RFQ for
medical auditing services, the court held that the agency was not required to conduct
discussions with all offerors because (a) this was a FAR Subpart 8.4
procurement, (b) the solicitation specifically disclaimed the use of FAR
Part 15 procedures, and (c) the RFQ specifically contemplated
discussions with "at most" two offerors. In these circumstances,
the decision not to hold discussions with the plaintiff did not violate
"fundamental fairness" because the award was made on the basis of the evaluation of initial
proposals, and discussions were used only to confirm the initial
evaluation. |
|
January 29 |
In
NAICS Appeal of The Red Gate Group, LTD, the SBA's OHA held that the appellant lacked standing to appeal
the NAICS code for a task order solicitation limited to a pool of contractors of which
the appellant was not a member.
|
|
January 27 |
In Tiffany
Buford, the Court of Appeals for the Federal Circuit held it lacked jurisdiction over an appeal from a CBCA decision on a civilian employee federal travel
claim under 31 U.S.C. § 3702(a)(3) for reimbursement of relocation expenses.
|
|
January 23 |
In Tesla Liliana Reyes Ramirez, as in
the
John Blankson case discussed in the January 9 entry below, the CBCA
held it lacked jurisdiction over an appeal of the termination for
convenience of a personal services contract absent a monetary claim from the
contractor. |
|
January 22
| In
Size Appeal of The Povolny Group, Inc., the
SBA's OHA affirmed the Area Office's dismissal of a size protest against
a mentor-protégé JV as nonspecific because the protester acknowledged that
the protested firm was a joint venture between an SBA-approved mentor and protégé, and that
its protégé member was a certified SDVOSB, alleging only that
the firms were generally affiliated, due to the ratio between contracts awarded to three mentor-protégé ventures as compared with contracts awarded to
the protégé in its individual capacity, which is to be
expected because, in
accordance with 13 C.F.R. § 125.9(a), the mentor is supposed to
provide assistance to the protégé in performing prime contracts with the Government through joint venture arrangements.
|
|
January 21 |
In
MVL USA, Inc., which involved successful consolidated protests
by 12 construction companies, the Court of Federal Claims held that federal agencies'
automatic mandate that prospective contractors enter project labor agreements with unions
in order to be considered for federal construction projects exceeding $35 million based on E.O.
14063 is anticompetitive and arbitrary and capricious and violates the CICA directive that agencies must promote full and open competition in federal
procurements unless a statutory justification is properly invoked.
|
|
January 18 |
DFARS Case
2021-D006: A final rule amends the DFARS to implement
sections of the NDAA for 2021 concerning the Government's
evaluation of contractor business systems, specifically by replacing the term "significant
deficiency" with the term "material weakness," which is now
defined as follows: Material weakness means a deficiency
or combination of deficiencies in the
internal control over information in
contractor business systems, such that
there is a reasonable possibility that a
material misstatement of such
information will not be prevented, or
detected and corrected, on a timely
basis. A reasonable possibility exists
when the likelihood of an event
occurring is—
(1) Probable; or
(2) More than remote but less than
likely. . . .
DFARS Case 2022-D016: A final rule amends the DFARS to
implement section 815(b) of the NDAA for FY 2012, which, in turn, amended 10 U.S.C. 2321
(currently 10 U.S.C. 3782) by increasing
the validation period for asserted
restrictions on technical data and computer software from three years to six years and also amended 10 U.S.C.
2321 to provide an exception to the
prescribed time limit if the technical data
involved are the subject of a
fraudulently asserted use or release
restriction.
DFARS Case 2024-D002: A proposed rule would amend the
DFARS to amend multiple
DFARS parts to further implement 41
U.S.C. 1908, which requires an
adjustment every five years
of statutory acquisition-related
thresholds for inflation, using the
CPI for all urban
consumers, except for the Davis-
Bacon Act, Service Contract Labor
Standards statute, performance and
payment bonds, and trade agreements
thresholds. As a matter
of policy, DoD is also proposing to use
the same methodology to adjust
nonstatutory DFARS acquisition-related
thresholds. FAR Case
2024–001 proposes comparable changes
to acquisition-related thresholds in the
FAR. Comments are due by March 18. |
|
January 17 |
FAR Case
2023-011: A proposed rule would make several amendments
to the FAR to issue policy concerning market research, acquisition
planning, small business specialist
coordination, and to expand the use of set-asides,
during the award of, and placement of
orders against, certain multiple-award
contracts, all of this to implement the recommendations of the
OFPP in its memorandum entitled "Increasing Small Business Participation
on Multiple Award Contracts," dated
January 25, 2024. Comments are due by March 17.
FAR Case 2023-006:
A proposed rule would amend the FAR to implement the
Preventing Organizational Conflicts of
Interest in Federal Acquisition Act, which
directs the FAR Council to revise the FAR to
provide and update (a) definitions, including those related
to specific types of OCIs, including
unequal access to information, impaired
objectivity, and biased ground rules OCIs, (b) guidance and illustrative examples
related to relationships of contractors
with public, private, domestic, and
foreign entities that may result in OCIs, and
(c) illustrative examples of situations
related to the potential for OCIs.
The statute also requires that the FAR
be revised to provide agencies with tailorable solicitation provisions and
contract clauses to avoid or mitigate
organizational conflicts. Comments are due by March 17.
Similar to the UNICA-BPA JV,
LLC decision discussed in the January 14 entry below, the GAO sustained a protest by Metris LLC,
holding that it was improper for the agency to declare a firm ineligible
for award for a break in its SAM registration between time of its initial
proposal and its final proposal revision because the final proposal revision
extinguished the original proposal and the SAM registration was active at
the time
of the final proposal revision and from then through award. |
|
January 16 |
In
DecisionPoint Corp., an unsuccessful post-award protest of the
award in a SDVOSB set-aside procurement that permitted
teaming with large business subcontractors, the Court of Federal
Claims held that: (i) the respective functions of the
awardee's team members were clearly stated and were in line with the
solicitation's requirements, including the requirement that offerors demonstrate that they would
"successfully integrate and coordinate all [contract] activities" under the contract, especially where the SDVOSB/prime contractor would fill
all management positions, would comply with the limitations on
subcontracting requirement by incurring more than 50% of the labor
costs, and certified in its proposal that it agreed with all terms, conditions, and provisions in the solicitation, including
the small business qualifications; (ii) the agency gave a rational explanation for its adjectival
rating of the awardee's past work experience as "somewhat relevant"
under the Past Performance evaluation, especially where the plaintiff
conceded its own calculations of what the awardee's relevancy
rating should be were wrong; and (iii) the agency followed the solicitation's
requirement by evaluating the past performance of the awardee's
team members as
a whole, rather than separately, as advocated by the plaintiff.
br>
The GAO sustained a preaward protest by The Mission
Essential Group, LLC, finding that the use of lowest-priced-technically-acceptable
(LPTA) source selection procedures for the acquisition was improper
because the agency had not satisfied the following requirements of DFARS section 215.101-2-70:
(i) the solicitation did not reasonably define the minimum
requirements for the required services "clearly and comprehensively"
or
express the requirements "in terms of performance objectives, measures, and standards that would
be used to determine the acceptability" of an offer; (ii) the agency had
not established
that “[n]o, or minimal value will be realized from a proposal that exceeds the minimum
technical or performance requirements"; and (iii) there was no determination from the agency that the lowest price
would reflect full life-cycle costs. The GAO was unimpressed
and unpersuaded by the facts that the solicitation had been
recommended by the agency's complexity analysis tool (CAT)
or that the agency had used this model on other similar
solicitations, including those involving this protester.
FAR Case 2024-007: A proposed rule would amend the FAR to
clarify that a
contracting officer’s decision to set aside
or not set aside an order under a
multiple-award contract is not grounds
for protest. Specifically, the rule would add the
following paragraph (a)(10)(iv) to FAR 16.505:In accordance with 15 U.S.C.
644(r), a contracting officer’s decision to
set aside or not set aside an order for
small business concerns is an exercise
of discretion granted to agencies and not
a basis for protest. However, this does
not preclude the filing of a protest of
such an order if such a protest would
otherwise be authorized on a separate basis recognized in accordance with
paragraph (a)(10)(i) of this section.
Comments are due by March 17. |
|
January 15 |
In
Size Appeal of CC Software, Inc., the SBA's OHA
held that, even though the Area Office's analysis was deficient, its errors were
harmless because it reached the correct conclusion that the
challenged firm failed to comply with nonmanufacturer rule where,
analyzed in accordance with the requirements of 13 C.F.R. § 121.406(b),
the firm admitted it would subcontract the manufactured items to a
large business not located in the United States and where the
challenged firm was plainly not primarily engaged in the retail or wholesale trade
that normally sells the type of item being supplied
and did not claim that it would take ownership or possession of the equipment.
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January 14 |
The GAO sustained a protest by UNICA-BPA JV,
LLC
because, although the agency could have declared the firm ineligible for award for lack of
a SAM
registration at the time of its initial offer, the agency allowed it
to remain in the competition and later to submit a revised
offer after discussions, at which time it had a valid SAM
registration.
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January 12 |
In
VSBC Appeal of Elev8 Mobility Inc., the SBA's
OHA held that the SBA had erred in denying a firm's
application for certification as an SDVOSB because:
(i) the SBA misread the appellant's Stock Ledger, which showed that the Qualifying Veteran purchased
the required stock
shares, correctly issued the stock certificates, and was the 100% owner at the time of the firm's application; and (ii) the appellant's Bylaws superseded the provisions of
all the prior operating agreements which the SBA had faulted.
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January 11 |
FAR Case
2021-015: The proposed rule to amend the FAR to
implement section 5(b)(i) of Executive
Order (E.O.) 14030 ("Climate-Related
Financial Risk") to consider requiring
major federal suppliers to publicly
disclose greenhouse gas
emissions and climate-related financial
risk and to set science-based reduction
targets has been withdrawn.
The Department of State has
withdrawn proposed
amendments to its acquisition regulation (DOSAR) prohibiting
discrimination against: (i) end-users of supplies or services
or in certain employment decisions
involving persons employed in the
performance of a covered contract and
funded in whole or in part with foreign
assistance funds; and (ii) beneficiaries or potential beneficiaries of such
funds. |
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January 9 |
FAR Case
2023-021:
The proposed rule to
amend the FAR entitled "Pay Equity and
Transparency in Federal Contracting" and the proposed OFPP Policy on which it
was based have both been withdrawn.
In
John Blankson, the CBCA held it lacked CDA jurisdiction over an appeal from
a Contracting Officer's letter terminating a contract for
convenience even though that letter was labeled a COFD, notified the
contractor of its appeal rights, and explained that the termination was based
on certain contractor actions criticized by the Contracting Officer. |
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January 8
| In
ITegrity, Inc.,
an unsuccessful post-award protest
by the incumbent, the Court of Federal Claims held that in accordance
with the solicitation's Past Performance evaluation scheme,
the agency (a) properly considered the two (of three) plaintiff's references
the agency found relevant, (b) did not penalize the plaintiff for the
reference found irrelevant, (c) evaluated the two relevant references as
a whole, including subcontracts, and (d) was not required to limit its
evaluation to the single most relevant reference submitted by
the plaintiff (its incumbent contract), especially where the current
solicitation exceeded the prior contract in scope
and complexity. The court found that, in any event, the plaintiff was not prejudiced by
the Past
Performance evaluation adjectival rating because the best value trade-off
specifically found the awardee's Past Performance submission to be
superior, and the plaintiff's lower price was evaluated (as the solicitation
required) as significantly less important than Past Performance:p align="justify" style="margin-left: 40; margin-right: 40">In reviewing an evaluation of past performance information in a negotiated procurement,
"the greatest deference possible is given to the agency – what our Court has called a
'triple
whammy of deference.'" Gulf Group Inc. v. United States, 61 Fed. Cl. 338, 351 (2004) (quoting
Overstreet Elec. Co. v. United States, 59 Fed. Cl 99, 117 (2003)). |
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January 6 |
In Science and Technology Corp.,
an unsuccessful post-award protest, the Court of Federal
Claims faulted the plaintiff for failing to provide required
information in multiple sections of its proposal.
Specifically, the court held: (i) there were rational bases for
the agency's
upward adjustment of the plaintiff's proposed costs in the cost realism
analysis because the plaintiff failed to provide sufficient information to
support them; (ii) the court would not accept the plaintiff's current explanations
for its costs because they had not been
included in its proposal; (iii) the agency was not required to hold discussions
concerning the missing information where the solicitation clearly stated
the agency did not intend to hold discussions and the
solicitation clearly required the explanatory data
the plaintiff failed to provide; (iv) the agency was not required to seek clarifications to allow
the plaintiff an opportunity to cure deficiencies in its proposal;
(v) there was a rational
basis for the agency's evaluation of the plaintiff's proposal for Mission Suitability
because, inter alia, the plaintiff's proposal lacked a clear
explanation of how it would perform the contract
requirements in this area; and (vi) there was a rational
basis for the differing Past Performance evaluations of the
plaintiff's and the awardee's proposals because the
plaintiff had failed to provide relevant explanatory
information in its proposal. |
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January 3 |
In CAN Softtech,
Inc., which involved a bid protest, the Court of Federal Claims denied
the plaintiff's motion to reconsider the court's
earlier opinion largely
denying the plaintiff's motion to require the Government to provide
additional documents allegedly necessary to complete the Administrative
Record because, inter alia: (i) pre-decisional deliberative process records are
not properly part of the Administrative Record and, therefore, need
not be identified in a privilege log; and (ii) the plaintiff had not
provided sufficient evidence to overcome the presumption of regularity in
the Government's compilation of the Administrative Record. The
decision included cogent arguments by both sides concerning
the applicability of both CAFC precedent and precedent from
other jurisdictions, so I'm guessing eventually the CAFC
will have to weigh in to clarify the standards to be applied
in this area.
FAR Case 2019-014: A proposed rule would amend the FAR
to incorporate the
NICE Workforce Framework for Cybersecurity (NICE Framework) and additional tools
to implement it in order to describe the
workforce knowledge and skill
requirements used in contracts for
information technology support services
and cybersecurity support services in
line with E.O. 13870 ("America’s Cybersecurity Workforce"), which requires agencies to
incorporate the NICE Framework. Comments are due by March 4.
Federal Acquisition Circular (FAC)
2025-03 has
been published and includes the following three items:
FAR Case
2019-015: Effective January 17, a final rule amends the
FAR to improve consistency between
procurement and nonprocurement
procedures on suspension and
debarment, based on the
recommendations of the Interagency
Suspension and Debarment Committee. The procurement procedures on
suspension and debarment are covered
in the FAR. The nonprocurement
procedures on suspension and
debarment (i.e., Nonprocurement
Common Rule (NCR)) are covered in 2
CFR part 180 and agency implementing
regulations.
FAR Case
2020-016: Effective January 17, a final amends the FAR
to implement changes previously made by the SBA requiring small
business concerns to rerepresent their
size and/or socioeconomic status for
orders placed under multiple-award
contracts under certain circumstances.
FSS contracts are
exempt from this mandatory
requirement; however, the Contracting Officer continues to have the discretion
to require a rerepresentation for an
order. The SBA amended its regulations to
ensure that small businesses qualify for
the applicable size and/or
socioeconomic status associated with
orders placed under multiple-award contracts where size and/or
socioeconomic status were not relevant
to the award of the underlying multiple-award contract. Specifically, the SBA requires
the small
business concerns identified at FAR
19.000(a)(3) to rerepresent their size
and/or socioeconomic status for orders
set aside exclusively for small
businesses that are issued under an
unrestricted multiple-award contract,
except for those with reserves. In
addition, small business concerns must
rerepresent their socioeconomic status
for orders issued under a small business
set-aside multiple-award contract or the
set-aside part of a multiple-award
contract where the orders are further set
aside for a particular socioeconomic
category which differs from the
underlying multiple-award contract or
the set-aside part of the multiple-award
contract.
FAR Case
2023-001: Effective January 17, a final rule amends the
FAR to implement regulatory changes made by
the SBA to
add incentives for certain United States
territories under the SBA's mentor-protégé
program. Specifically, the rule implements paragraphs (a) and (d) of section 861 of the John S. McCain NDAA for FY 2019, which add Puerto Rico to the list of territories from which small businesses are eligible for preferential treatment under the mentor-protégé program. In addition, the rule implements paragraphs (a) and (c) of section 866 of the NDAA for FY 2021, which add the U.S. Virgin Islands, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (CNMI) to the list of territories from which small businesses are eligible for preferential treatment under the SBA's mentor-protégé programs. Section 866 also defines a "covered territory business" as a small business concern that has its principal office located in one of the following: (1) the U.S. Virgin Islands; (2) American Samoa; (3) Guam; or (4) CNMI. Sections 861 and 866 created two new incentives for
the mentor-protégé program for mentor-protégé pairs in which the protégé has its principal office located in the Commonwealth of Puerto Rico or is a covered territory business. Specifically, such a mentor that subcontracts to its protégé is able to receive positive consideration for the mentor’s past performance evaluation and is able to apply costs incurred for training provided to its protégé to its subcontracting plan goals. In addition, this rule implements changes
the SBA made to its regulations to clarify that: (i) subcontracting plans are not required from firms owned by an Alaska Native Corporation because they are treated as small business concerns according to statute; and (ii) prime contractors may rely on a subcontractor’s representations of its size and socioeconomic status unless the prime contractor has reason to doubt the representations. |
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January 1, 2025 |
Happy New Year! |
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