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Developments in Government Contracting--2025



 
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 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.
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 18In 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.  
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.   
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.  
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.
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.
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)).
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.  
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.
January 1, 2025 Happy New Year!

This website links to resources on the web concerning government contracting. It is not intended to provide legal advice. Moreover, I do not vouch for the completeness, currency, or accuracy of the sites to which it links. If you have comments, suggestions, or corrections, please email me. Stan Hinton. Law practice limited to federal government contracts. Tel. (720) 772-1754

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