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Developments in Government Contracting--2018



May 22 In Auxilio FPM JC, LLC--Costs, where the agency delayed taking corrective action until after the outcome prediction conference, the GAO recommended  reimbursement not only of the costs specifically associated with the clearly meritorious protest grounds identified in the conference, but also of the protester's challenges to the technical evaluation that shared common factual and legal bases with the clearly meritorious protest grounds.
May 18 In NAICS Appeal of Rollout Systems, LLC, which involved a Naval Air Systems Command, Naval Air Warfare Center Aircraft Division (NAWCAD) solicitation seeking a contractor to provide "full spectrum" IT engineering and management support services for the RDT&E Infrastructure Division of NAWCAD's Integrated Battlespace Simulation and Test Department, the SBA's OHA rejected both (i) the Contracting Officer's designation of NAICS code  541715 (Research and Development in the Physical, Engineering, and Life Sciences (except Nanotechnology and Biotechnology)--exception for Aircraft Engine and Engine Parts), with a 1,500 employee size standard, and (ii) Appellant's suggestion of NAICS code 541330 (Engineering Services), in favor of NAICS code 541513 (Computer Facilities Management Services), with a corresponding  size standard of $27.5 million average annual receipts.

In NAICS Appeal of K2 Aerial Application, LLC, the OHA dismissed a NAICS appeal filed 13 days after the issuance of the solicitation as untimely and also as moot because the contract already had been awarded.

In NAICS Appeal of U. S. Small Business Administration, which involved a solicitation for the expansion of the parking garage at a VA hospital, the OHA rejected the Contracting Officer's designation of NAICS 238120 (Structural Steel and Precast Concrete), with a corresponding $15 million average annual receipts size standard,  in favor of NAICS 246220 (Commercial and Institutional Building Construction), with a corresponding $36.5 million annual receipts size standard.

In another case involving the construction of a parking garage at a VA medical center (Mare Solutions, Inc.), which consolidated two different appeals, each involving contract interpretation, the CBCA held, inter alia, that: (i) the testimony by the contractor's two experts as to where expansion couplings were required to be installed was persuasive; and (ii) a conflict between the specifications and drawings was resolved by the order of precedence provision stating that the specifications would take precedence and, therefore, the contractor was required to provide the head-end equipment for the video surveillance system.
May 17 The GAO sustained a protest by ARES Technical Services Corp. because there was no evidence in the record that, in evaluating the awardee's proposal, the agency had considered the effects of the awardee's OCI mitigation strategy on its proposed technical approach.

In Senter, LLC, an unsuccessful protest, the Court of Federal Claims held that there was a rational basis in the record for the SBA's determination that the protester was not eligible for an 8(a) set-aside award because its joint venture was not unpopulated, as it was required to be by 13 C.F.R. 121.103(h).
May 16 In Size Appeal of Arrow Moving & Storage -- Mayflower Transit, the SBA's OHA held that the Area Office was correct in dismissing a protest as insufficiently specific because it provided no evidence to support its allegation of affiliation through common financial and administrative control and no evidence that, even if there were affiliation, the combined receipts of the allegedly affiliated firms exceeded the applicable size standard.

In Size Appeal of ILKA Technologies, Inc., the OHA dismissed a size protest for lack of standing under 13 C.F.R. 121.1001(a)(1)(i) because the protester's proposal had been determined to be technically unacceptable by the Contracting Officer.

In Size Appeal of AWA Business Corp., the OHA held that the Area Office correctly applied the adverse inference rule in a size protest because the protested firm failed to provide specific documents requested by the Area Office that related to the firm's size and were necessary for a decision on the protest.
May 15 The ASBCA denied an appeal by Black Tiger Co. because the Government presented credible, unrebutted evidence that no contract existed between the parties and that no equipment had been delivered by the appellant.

In Cooper/Ports America, LLC, the ASBCA denied the Government's motion to dismiss for lack of jurisdiction, holding that a valid novation agreement making the appellant the successor in interest entitled it to pursue a claim that had accrued prior to execution of the novation.
May 14 In PJP Building Six, LC, a decision involving contract interpretation, the CBCA held that: (i) a building lease permitted VA to terminate only at the end of its first 60 months, not at any time thereafter; and, therefore, (ii) the VA was liable for early termination of the lease after eight years of its ten year term. The Board rejected the VA's proffer of extrinsic evidence because the lease provision at issue was not ambiguous (the parties having marked-up the original lease document to essentially rule out the VA's current interpretation).
May 11 In Acetris Health, LLC, the Court of Federal Claims denied the Government's motion to dismiss a preaward protest under Rules 12(b)(1) and 12(b)(6) and held it had jurisdiction over the plaintiff's allegations that, in conducting a solicitation to purchase Entecavir Tablets, the VA improperly: (i) interpreted the solicitation’s Trade Agreements clause; (ii) included a provision in the solicitation that was contrary to the Trade Agreements clause; and/or (iii) relied on Customs and Border Protection's country-of-origin determination concerning the acceptability of tablets offered by the plaintiff rather than independently interpreting the solicitation’s Trade Agreements clause.
May 10 In Intelligent Waves, LLC, a successful protest against a "best interest" override of an automatic CICA stay during a GAO protest of the award of a new task order, the Court of Federal Claims held that the agency's rationales for the override were insufficient:

To allow an override based merely on the fact that to work towards a bridge contract, or to have acted timely and negotiated an extension are more difficult to accomplish than continuing to have the incumbent perform the new contract, would allow agency manipulation of a congressional mandate.

In Tetra Tech, Inc., an unsuccessful post-award protest, the court rejected the protester's challenges to the evaluations of its own and the awardee's proposals in the areas of Key Personnel (e.g., the ratings of the programs managers proposed by both parties based, in large part, on their ability to "innovate"), Past Performance (the past contracts of the awardee that the agency chose to evaluate), and Corporate Experience (the contracts the agency chose to examine to evaluate both the awardee's and the protester's experience). To me, the closest call was the court's determination that the evaluators' focus on the ability of the proposed program managers to innovate did not constitute an unstated evaluation criterion. The solicitation did not use the term "innovation" with regard to the program manager's required qualifications so I'm not sure how the offerors were supposed to know it was to be (such an especially large) part of their evaluation. 

In Veterans Technology, LLC, a successful protest with a complicated history, the court reversed and vacated a prior decision by the SBA's OHA (which, itself, had reversed an Area Office determination finding no affiliation based on economic dependence between firms) because the OHA had applied the wrong legal standards in reviewing the Area Office's determination and in carrying out the court's prior order as to the steps to be taken by the Area Office on remand, i.e., "to conduct a new size determination specifically to ascertain whether the actions of [the Government] were the cause of [two firms] entering into a subcontracting relationship . . . , as well as to consider evidence proffered by" one of those firms that it was not dependent on the other.
May 9 In National Government Services, Inc., an unsuccessful preaward protest, the Court of Federal Claims held that CMS' Contract Awards Limitations policy  in Medicare Administrator Contractor ("MAC") procurements is neither contrary to law (e.g., the requirement for full and open competition) nor lacking a rational basis.
May 8 In Technik, Inc., an unsuccessful post-award protest, the Court of Federal Claims held that: (i) the agency's Marginal rating of the protester's proposal was rational because the proposal did not clearly commit to meeting one of solicitation's staffing requirements; and (ii) no tradeoff analysis was required because the awardee's proposal was both higher rated and lower priced than the protester's.
May 7 In Dynaxys LLC, the GAO sustained the protest because: (i) the agency's technical evaluators unreasonably assigned "minor strengths" to two aspects of the awardee's proposal that merely met the solicitation's minimum requirements, which adversely affected the conclusion in the final trade-off analysis that the awardee's and protester's proposals were essentially equal under the Technical Approach factor; and (ii) the agency failed to conduct a meaningful comparison of the proposals during the trade-off analysis.
May 4 In Management & Training Corp., an unsuccessful post-award protest, the Court of Federal Claims held that the plaintiff/incumbent lacked standing to challenge the award of an interim DOL task order to operate a Job Corps center pending the resolution of a prior GAO protest because, under DOL rules and a clause in the incumbent's contract (which the incumbent did not timely protest), the incumbent contractor is ineligible to compete for such interim "Contingency Contract Vehicles." The court also found lack of standing under the test for standing in the CAFC's Distributed Solutions case, whose analysis of standing the lower court finds to be murky and largely unhelpful.

DFARS Case 2015-D030: A final rule amends the DFARS to state that, in the interest of promoting voluntary contractor disclosure of defective pricing identified by the contractor after contract award, DoD contracting officers have discretion to request a limited-scope or full-scope audit, as appropriate for the circumstances.

DFARS Case 2018-D005: A final rule amends the DFARS to provide a statement of purpose at section 201.101, as required by the National Defense Authorization Act for Fiscal Year 2018.

DFARS Case 2016-D013: A final rule amends the DFARS to make contractor and subcontractors subject to approval (as well as review and audit) by appropriate DoD officials when identifying a contractor-approved supplier of electronic parts.

DFARS Case 2017-D016: A proposed rule would amend the DFARS rules regarding the DoD's Pilot Mentor-Protégé Program: (i) to revise the definition and requirements associated with affiliation between mentor firms and their protege ́ firms; and (ii) to add new types of assistance for mentor firms to provide to their protege ́ firms. Comments are due by July 3.
May 2 The GAO's new E-filing system for protests is now live. You can find GAO tutorials for how to use the new system by following this link. One of the requirements of the new system is that you be officially registered in the system, and, if you ever participate in GAO protests, you might as well go ahead and register now. I did. That's one less chore you will have when you do become involved in a particular protest as either a protester or an intervenor. 

In SupplyCore, Inc., an unsuccessful protest involving a solicitation for the acquisition, warehousing, and distribution of aircraft and ground transportation tires to the military, the Court of Federal Claims held that the Contracting Officer's designation of NAICS services code 493190 (Other Warehousing and Storage) for the procurement, which was subsequently affirmed by the SBA's OHA, was rational because, even though the cost of purchasing the tires was the major cost of the procurement overall, the contractor's purchases were just pass-throughs at set prices that were immediately reimbursed by the Government, and, therefore, the "principal purpose" of the contract was not the procurement of supplies)

In Global Dynamics, LLC , a successful protest against the agency's award of a fifth sole-source bridge contract pending the completion of corrective action, the court held that the agency's proffered excuses (lack of adequate staffing, presence of other matters requiring attention, informal indications of increased requirements) failed to justify the agency's delays in completing its corrective action.
May 1 In Progressive Industries, Inc., the Court of Appeals for the Federal Circuit affirmed the CoFC's decision (i) finding that appellant's motion under Rule 59(e) to alter or amend a prior judgment was untimely filed and (ii) denying appellant's request for relief from judgment under Rule 60(b)(6) because the appellant could have raised its concerns before the original judgment was issued.

In Anis Avasta Construction Co., the ASBCA held that, absent contemporary evidence that there was a contract or that the appellant had performed any work under it, the doctrine of laches barred  a claim for the alleged work because the contractor waited five years to submit the claim.

In Precision Metals Corp., the ASBCA dismissed an appeal for lack of jurisdiction because: (i) the appeal was filed more than 90 days after the contractor's receipt of a termination notice; and (ii) the Contracting Officer had not reconsidered the termination decision.

Federal Acquisition Circular (FAC) 2005-98 has been published and includes the following four items:

FAR Case 2017-007: Effective May 31, a final rule amends the FAR (i) to implement a section of the National Defense Authorization Act for Fiscal Year 2017 to raise the threshold for task and delivery-order protests from $10 million to $25 million (applicable to DoD, NASA, and the Coast Guard) and (ii) to repeal the sunset date for the authority to protest the placement of an order (for the other civilian agencies), which was also previously repealed by the GAO Civilian Task and Delivery Order Protest Authority Act of 2016. After the change takes effect, FAR 16.505(a)(10) will read as follows:

No protest under subpart 33.1 is authorized in connection with the issuance or proposed issuance of an order under a task-order contract or delivery-order contract, except— (A) A protest on the grounds that the order increases the scope, period, or maximum value of the contract; or (B)(1) For agencies other than DoD, NASA, and the Coast Guard, a protest of an order valued in excess of $10 million (41 U.S.C. 4106(f)); or (2) For DoD, NASA, or the Coast Guard, a protest of an order valued in excess of $25 million (10 U.S.C. 2304c(e)).


FAR Case 2017-008: Effective May 31, a final rule amends the FAR to reflect sections of the National Defense Authorization Act for Fiscal Year 2017, which amend section 15(k) of the Small Business Act to provide additional duties for agencies’ Office of Small and Disadvantaged Business Utilization (OSDBU), and for DoD’s Office of Small Business Programs (OSBP).

FAR Case 2017-004: Effective May 31, a final rule amends the FAR to adjust for inflation the rate of liquidated damages assessed for violations of the overtime provisions of the Contract Work Hours and Safety Standards Act.

FAR Case 2015-039: Effective May 31, a final rule amends the FAR to raise the dollar threshold requirement for the audit of prime contract settlement proposals and subcontract settlements from $100,000 to align with the threshold for obtaining certified cost or pricing data.
April 30 In a decision that seems to me to set the bar for an EAJA recovery a bit too high, the CBCA denied the contractor's EAJA application in Belle Isle Investment Co. Limited Partnership because it found that the Government's overall litigation position regarding a disputed lease interpretation had a reasonable basis in fact and law--even though the Board, in finding in favor of the contractor on the merits of the original appeal, had ultimately decided the disputed lease provision was not even ambiguous.
April 27 The SBA has revised its white paper explaining how it determines small business size standards.

In DNC Parks & Resorts at Yosemite, Inc., the Court of Federal Claims denied the Government's requests for extensive discovery from a third party concerning its valuation report, which was already in the Government's possession and which would not be utilized or relied upon by the plaintiff in the current litigation.
April 26 In its Court of Federal Claims protest, Kiewit Infrastructure West Co. utilized the scattergun strategy of contesting almost every aspect of the evaluation and lost on all of them when the court held, inter alia, that: (i) the SSA's consideration of unit prices and cost risks in its tradeoff analysis was not inconsistent with the solicitation's requirements; (ii) the SSA's mention of the cost savings associated with the awardee's proposal was inconsequential in relation to its principal determination that the awardee's "vastly superior" technical proposal was worth its slight price premium; (iii) the agency adequately explained the protester's "Good" rating in a technical factor and was not required to explain why the protester's responses to discussion questions had not raised its rating to "Outstanding"; (iv) the agency adequately explained the ratings of the awardee's proposal in several areas; and (v) the protester had failed to establish that the agency had evaluated the proposals disparately.
April 25 As part of its continuing, phased efforts to update the VAAR and to align it with the FAR, the VA proposes revisions to VAAR Parts 829 (Taxes), 846 (Quality Assurance), and 847 (Transportation), as well as affected Parts 852 (Solicitation Provisions and Contract Clauses) and 870 (Special Procurement Controls).  Comments are due by June 25.

In Green Bay Logistic Services Co., the ASBCA denied a convenience termination claim because the contractor had not performed any percentage of the contract work prior to the termination, i.e., it had failed to deliver any leased vehicles that met the contract requirements.

In Western Trading Co., the ASBCA dismissed an appeal for lack of jurisdiction because it was not filed within 90 days of the default termination at issue (actually four years had passed).
April 24 In Size Appeal of Jacob's Eye, LLC, despite the apparent (and confusing) typos in the first two sentence of its Conclusion, the SBA's OHA remanded the case to the Area Office for further development of the record because, without a full copy of the appellant's proposal, the record was insufficient to support the Area Office's conclusion that the appellant had violated the ostensible subcontractor rule.

In Matter of ASIRTek Federal Services, LLC, the OHA upheld the  SBA's determination that a firm was not an eligible SDVOSB for a procurement primarily because its joint venture agreement did not specify the members' responsibilities with respect to the SDVO contract at issue, or, indeed, any SDVO contract at all, but rather only for an  unrelated 8(a) procurement.
April 23 In Size Appeal of Melton Sales & Service, Inc., the SBA's OHA held that, although the Area Office had made significant errors in evaluating one alleged affiliate under the minority shareholder rule, those errors were harmless because the appellant had failed to establish the existence of additional affiliated firms under the totality of circumstances and common management tests, and, after aggregating the employees of the affiliated firms, the protested firm was still small under the employee-based size standard applicable to the procurement.

In Size Appeal of GovSmart, Inc., the OHA held that the Area Office had correctly dismissed a size protest involving a proposed 8(a) sole source award of a purchase order for lack of standing because the protester was not an 8(a) firm nominated for the award.
April 20 The CBCA has changed the urls for all its addresses from www.cbca.gsa.gov. . .   to www.cbca.gov. . . . I think I have made the changes to all my affected pages, but let me know if I overlooked any. You may have to refresh a page to get to my latest version.
April 19 In American Correctional Healthcare, Inc., a successful post-award protest, even though the protester lost on, or waived, most of its protest grounds, the Court of Federal Claims held that the agency had failed to evaluate the diversity of services offered by the competitors on an equal basis because it credited the awardee with offering a specific type of service that the protester's proposal clearly stated was not available in this situation without investigating whether the protester's position was correct.
April 18 In John Shaw LLC d/b/a Shaw Building Maintenance, after having previously denied the contractor's motion to amend its complaint to include a count for punitive damages, the ASBCA denied the contractor's motion for leave to amend its complaint to include a count for exemplary damages.

The ASBCA dismissed an appeal by Abdul Khabir Construction Co. because the contractor failed to submit its termination settlement proposal within one year of its termination for convenience.

The ASBCA dismissed an appeal by Bellal Aziz Construction Co. for failure to prosecute because the contractor did not respond to several orders from the Board requiring the contractor to address the question of whether it had submitted a timely claim certification to the Contracting Officer.
April 17 In Agility Logistics Services Co. KSC, the Court of Appeals for the Federal Circuit (CAFC): (i) affirmed the ASBCA's prior decision that it lacked CDA jurisdiction over the appeals because neither the underlying contract nor the task orders at issue were made by an executive agency of the United States and no subsequent action had made the Government a party to either the contract or the task orders; and (ii) held that the CAFC has no appellate jurisdiction over the ASBCA's other determination that its Charter did not provide it with jurisdiction over the appeals.

In K.O.O. Construction, Inc., which involved an appeal of a deemed denial of the claim, the CBCA permitted the contractor to designate its original, detailed claim as the Complaint and will allow the Government, if it chooses, to designate the forthcoming Contracting Officer's decision on the claim as its Answer.

In The Hanover Insurance Co., et al., the Court of Federal Claims denied the defendant's motion to strike a portion of the plaintiff's rebuttal expert's report because, even though it was untimely (disclosed late to the defendant), the late disclosure was substantially justified and harmless (the contents of the report still could be addressed by the defendant during depositions and the defendant also could file a motion to submit a surrebuttal).
April 16 In Pinnacle Solutions, Inc., an unsuccessful protest primarily against the protester's exclusion from the competitive range but also against the evaluation of the successful offeror's proposal, the Court of Federal Claims held that, overall, the protester had failed to establish prejudice because, inter alia: (i) there were reasonable bases for the numerous weaknesses assigned to the protester's proposal under the Mission Suitability subfactors; (ii) the agency's decision not to assign strengths to the protester's Management Approach was reasonable; (iii) the evaluations of the protester's proposal under the (a) Technical Approach and (b) Safety and Health subfactors and under the Past Performance factor were reasonable; (iv) the agency's evaluation of the successful offeror's proposal was reasonable; and (v) the protester failed to establish unequal treatment in the evaluation  of proposals.

Continuing its initiative to revise and streamline the VAAR to comport with FAR principles, the VA has published a final rule that, inter alia, (i) amends six clauses or provisions and removes one clause which duplicates current FAR coverage and is not needed, (ii) provides updated policy on variations, tolerances and exemptions regarding overtime in contracts providing nursing home care for veterans, (iii) removes an information collection burden associated with an outdated practice of using bid envelopes; (iv) clarifies language regarding the prohibition of contractors from making reference in their commercial advertising to anything that would suggest the VA endorses their products services or considers them superior to other products and services, and (v) revises definitions relating to the D&S Committee, Debarring Official, and Suspending Official currently contained in the VAAR. The affected parts of the VAAR include Part 802 (Definitions), 803 (Improper Business Practices and Personal Conflicts of Interest), 812 (Acquisition of Commercial Items), 814 (Sealed Bidding), and 822 (Application of Labor Laws to Government Acquisitions), as well as resulting changes to 852 (Solicitations Provisions and Contract Clauses).
April 13 DFARS Case 2016-D015: A final rule amends the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2016, clarifying the competition requirements for the acquisition of religious-related services contracts on a United States military installation.

DFARS Case 2017-D004: A final rule amends the DFARS to remove outdated coverage of consolidation of contract requirements that implemented 10 U.S.C. 2382, which was repealed by section 1671 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112–239).

DFARS Case 2017-D033: A final rule amends the DFARS to relocate the definition of information technology within the DFARS from DFARS 202.101 to DFARS 239.7301.

DFARS Case 2017-D039: A final rule amends the DFARS to remove limiting language related to educational service agreements in order to allow DoD to make agreements that permit payment for Masters of Laws degrees and other legal training programs, in accordance with applicable law, regulation, and policy.

DFARS Case 2017-D032: A final rule amends the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2017 that prohibits use of funds for certain programs and projects of the Department of Defense in Afghanistan that cannot be safely accessed by United States Government personnel.

DFARS Case 2015-D013: A final rule amends the DFARS to implement sections of the National Defense Authorization Acts for Fiscal Years 2015, 2016, and 2017 to provide revisions to the Test Program for Negotiation of Comprehensive Small Business Subcontracting Plans.
April 12 In Duke Univ., following the CAFC's recent precedent in Securiforce International America, the CBCA held it lacked jurisdiction over a unquantified, uncertified claim purportedly for contract interpretation, which, if granted, would entitle the contractor to costs already incurred when the claim was submitted--costs that could (and, therefore, should) have been quantified in the original claim letter.
April 11 In General Dynamics Mission Systems, Inc. an unsuccessful post-award protest, the Court of Federal Claims reluctantly held, inter alia, that it must follow binding CAFC precedent requiring deference to an agency's technical evaluation and, therefore, must let stand the agency's tradeoff evaluation that the awardee's lower price outweighed a technical flaw in the awardee's proposal which, if it materialized during performance, would result in a safety issue, described by the evaluators as follows:  "the impact of a failure would be devastating, throwing hundreds of TSE offline and delaying the screening operations for the checkpoints." The court practically begged the CAFC to take the case on appeal and review its standard in this area:

The . . . Court of Appeals for the Federal Circuit has held that 'technical ratings . . . involve discretionary determinations of procurement officials that the court will not second guess.' E.W. Bliss Co. v. United States, 77 F.3d 445, 448 (Fed. Cir. 1996) (emphasis added)[Footnote omitted]. Adherence to this precedent, however, requires the court to exempt technical evaluations from traditional Administrative Procedure Act review. Therefore, if the United States Court of Appeals for the Federal Circuit has an occasion to reconsider that directive, either on appeal of this or another case, it is suggested that the Court clarify that technical ratings, particularly in cases where a mistake in agency judgment could jeopardize the safety of the public, are not entitled to absolute deference, even where the agency conducts a “best value” tradeoff in awarding a contract.

April 10 Unless significant adverse comment is received by April 25, effective May 25, the SBA is amending its regulations, inter alia: (i) to comply with a provision of the National Defense Authorization Act of 2018 that amended the Small Business Act by replacing fixed dollar amount thresholds with references to the micro-purchase and simplified acquisition thresholds; (ii) to update the sole-source dollar amounts for the SDVO and HUBZone small business regulations; and (iii) to allow indirect ownership by United States citizens in the HUBZone program in order to more accurately align the regulations with the underlying statutory authority.

As part of its phased efforts to revise its acquisition regulation (VAAR) (i) to revise or remove any policy superseded by changes in the FAR, (ii) to remove any procedural guidance internal to VA into the VA Acquisition Manual (VAAM), and (iii) to incorporate any new agency specific regulations or policies, the VA is proposing revisions to Parts 831 (Contract Cost Principles and Procedures) and 833 (Protests, Disputes, and Appeals) as well as to affected sections of Parts 852 (Solicitation Provisions and Contract Clauses) and 871 (Loan Guaranty and Vocational Rehabilitation and Employment Programs). Comments are due by June 5.  

In DynCorp International LLC, the ASBCA denied the Government's motion for partial summary judgment based on alleged collateral estoppel because the issue  in a prior appeal on which the Government's motion was based (data incompleteness) differed from the issue in the current appeal (data inaccuracy). 

In Devin Richardson, the CBCA dismissed an appeal not based on a CDA procurement contract for lack of jurisdiction. In Hill-Rom Co., the Board dismissed an appeal signed by the contractor's credit department supervisor, because she was not an "authorized representative" of the company.
April 9 In JBG/Federal Center, L.L.C., the CBCA held: (i) it was appropriate to consolidate appeals involving separate contracts but the same issue; (ii) the plain language of a building lease precluded the lessor's recovery of real estate taxes on the parking garage except for the parking spaces specifically leased to the Government; and (iii) the portion of the Government's claim for repayment of excess real estate taxes reimbursed to the contractor prior to September 2010 was barred by CDA's six-year limitations period.
April 6 In Veterans Contracting Group, Inc., an unsuccessful preaward protest, the Court of Federal Claims: (i) dismissed the protester's challenge to the cancellation of a solicitation because the protester already had lost on that issue in a prior case at the court; and (ii) held that the protester had not alleged sufficient facts to call into question the Contracting Officer's Rule of Two analysis, which had resulted in broadening the resolicitation from an SDVOSB set-aside to a competition open to all small businesses.
April 4 In Bechtel National, Inc., the Court of Federal Claims held that the Government did not breach a contract for the operation of a nuclear waste treatment plant by disallowing the contractor's defense costs associated with suits by former employees of the company for sexual and racial harassment and discrimination, which were ultimately settled, even though the contract contained a specific provision that obligated the Government to reimburse the contractor for third party litigation costs, except those which "are otherwise unallowable by law or the provisions of this contract," that exception being triggered, in the court's view, by the contract's "Equal Opportunity" clause, which forbids the discrimination for which the contractor was sued.
April 3 In J.R. Mannes Government Services Corp., the CBCA denied an appeal because the contractor failed present anywhere near enough evidence to support its allegation that the Government's bad faith motivated a termination for convenience.

In Merrick Construction, LLC, the ASBCA held that the general release signed by the contractor, without any reservations or exceptions, as part of contract close-out in order to obtain final payment barred the contractor's subsequent claim, despite the contractor's attempts to raise various excuses (e.g., superior knowledge, unilateral mistake, mutual mistake) to avoid that result.

In PROTEC GmbH, the ASBCA held it had jurisdiction over appeals from Contracting Officer's decisions that were not based on the suspicion of fraud even though the contractor was under investigation for possible fraud.

In Afghan Washington Construction Co., the ASBCA dismissed an appeal filed from a fake email address by an individual who apparently was impersonating the contractor's President.
April 2 Two years after it first announced the contemplated system, the GAO finally has published a final rule, effective May 1, establishing its new mandatory electronic filing and document dissemination system for GAO bid protests, including a new, required $350 filing fee. The rule also incorporates other significant revisions to the GAO's bid protest regulations, including, among many others, clarifications of: (i) the time for filing protests if the basis for a protest of a solicitation impropriety becomes known when no closing time has been established or when no further solicitation submissions are anticipated; (ii) when the agency is required to respond to a protester's request for documents; (iii) the ability of a party to request relevant documents not in the agency's possession;  and (iv) the generation and handling of protected and redacted documents. These are significant changes, and I encourage everyone to become familiar with them before the effective date because, as we all know, it is difficult enough meeting the tight time frames of a protest without having to learn a new system at the same time.

In Matter of Island Creek, Assocs., LLC, the SBA's OHA held that, because the Contracting Officer did not request recertification of WOSB status for a particular order, a protest not filed within five days of notification of the apparently successful offeror on the underlying multiple award contract was untimely. In NAICS Appeal of AMEL Technologies, Inc., the OHA dismissed, as untimely, a NAICS appeal filed 40 calendar days after issuance of the RFP and 18 calendar days after issuance of most recent RFP amendment.

In NAICS Appeal of Noble Supply & Logistics, which involved a solicitation for a Contractor Operated Civil Engineering Supply Store at Andersen Air Force Base in Guam, the OHA rejected both the Contracting Officer's designation of NAICS code 561110 (Office Administrative Services), with a corresponding $7.5 million annual receipts size standard, and the Appellant's suggestion of NAICS code 332722 (Bolt, Nut, Screw, Rivet and Washer Manufacturing), with a corresponding 500 employee size standard, before settling on NAICS 332510 (Hardware Manufacturing), with a corresponding 750 employee size standard.
March 30 Effective October 1 and in accordance with sections 1832 and 1833 of the National Defense Authorization Act for Fiscal Year 2017, the SBA is amending the rules of practice of its OHA to implement (i) procedures for protests of eligibility for inclusion in the VA's Center for Verification and Evaluation (CVE) database and (ii) procedures for appeals of denials and cancellations of inclusion in the CVE database.

In DZSP 21, LLC, a successful post-award protest by the incumbent/original awardee (after a five-year history including four successful GAO protests by a challenger to the award and three rounds of corrective action by the agency, the first two of which confirmed the original award and the final one switching the award to the challenger), the Court of Federal Claims held that: (i) the Government had improperly adopted the GAO's (erroneous) interpretation of the challenger's proposal to assign it a strength not merited by the language of the proposal; and (ii) in the most recent round of corrective actions, which finally overturned the original award, the Government lacked a rational basis for its upward adjustment of the incumbent's proposed cost. The upshot was that the court set aside the award to the company that had prevailed repeatedly at the GAO and directed the agency to conduct a new evaluation or, at its option, to conduct a new solicitation. So, five years likely will become six or seven before this one is over.

In FMS Investment Corp., et al., upon a motion by one of the intervenor/awardees, the court disqualified the law firm representing one of plaintiffs in a post-award protest due to a conflict of interest involving that plaintiff and the intervenor.


In R.L. Persons Construction, Inc., the ASBCA denied the Government's motion for summary judgment that the contract lacked the positive indications of conditions at the site (which would be necessary for a finding of the Type I differing site condition alleged by the contractor) because the contract contained a latent ambiguity on this issue.
March 29 Savannah Cleaning Systems, Inc. won its GAO protest because it was improper for the agency to have issued an FSS purchase order where the quoted item (i) did not meet the specifications, (ii) was not shown to be equivalent to the specified brand name item, and (iii) was not listed on the vendor's FSS contract.

In Acetris Health, LLC, an unsuccessful preaward protest, the Court of Federal Claims held: (i) it lacked bid protest jurisdiction over allegations involving disputes concerning the acceptability of products (medicine) supplied during the performance of the incumbent's contract; and (ii) the solicitation provision requiring offerors to certify that the proposed end product was "Trade Agreements Act compliant" did not conflict with either the Trade Agreements Act or its implementing regulations.
March 28 In Kellogg Brown & Root Services, Inc., the ASBCA denied the contractor's appeal of a Contracting Officer's decision denying the contractor's claim for subcontractor costs and asserting a government claim for subcontractor costs basically because the contractor had failed to implement an ACO's letter of technical direction (LOTD), which the Board determined was a type of document that the parties routinely treated as a directive that was to be followed by the contractor.

In Shams Walizada Construction Co., the ASBCA denied a claim for an allegedly "late payment" because the contractor failed to show it submitted a request for the original payment and because the claim was barred by a bilateral modification operating as a release and an accord and satisfaction.

The GSA is proposing quite a few revisions to its rules of procedure for handling CDA cases at the CBCA. Comments are due by May 29.

In BCPeabody Construction Services, Inc., the CBCA held, inter alia, that: (i) the Government had delayed the contractor's work on a firm, fixed-price design build task order for an "unreasonably" long period (179 days) under the "Suspension of Work" clause, entitling the contractor to delay damages, including (a) general conditions and (b) some, but not all, of claimed personnel costs for its project managers, but (c) none of its claimed costs for unabsorbed home office overhead (because the suspension was for a definite period known in advance and the contractor did not prove that it incurred "standby" costs; (ii) the contractor was not entitled to recover for a Type II differing site condition (mainly because the Government was prejudiced by the contractor's failure to give timely notice of the alleged condition); (iii) the contractor was not entitled to recover for several alleged changes that actually were for items included in the fixed-price contract; (iv) the jury verdict method should be used to determine a reasonable approximation of the amount owed the contractor for another changes claim whose quantum was not susceptible of exact calculation; (v) the fixed-price nature of the contract precluded the agency from recovering for the contractor having to deliver less equipment than originally estimated in the task order; and (vi) the agency's claims for deficient work must be denied (because the agency did not prove the work it claimed was defective failed to meet the specification requirements and, even if it did not, the agency failed to provide the contractor with the opportunity to correct the work).

The GAO sustained part of a protest by Scope Infotech, Inc., because, in a competition among FSS vendors, the agency improperly issued a task order to one vendor that included non-FSS items.

In Iron Bow Technologies, LLC, an unsuccessful preaward protest, the Court of Federal Claims held that the agency's decision to eliminate the protester from a competition was based on a risk assessment conducted in accordance with the terms of the RFQ, from which the agency reasonably concluded that the protester's quotation presented an unacceptable supply chain risk to the Government.
March 27 In Size Appeal of Nordstrom Contracting & Consulting Corp., the SBA's OHA held that, in computing the challenged firm's size for a receipts-based size standard, the Area Office correctly declined to consider: (i) a tax return for a fiscal year that had not been completed at the time of self-certification; and (ii) data from USASpending.gov, because "there is no authority for an area office to consider any evidence apart from tax returns (when they have been filed) when calculating a firm's average annual receipts."

In Size Appeal of Elliott Aviation, Inc., the OHA, inter alia, refused to consider the appellant's allegation that the challenged firm was not a manufacturer of the items being procured because the protester had not made that allegation in its original size protest.

Effective April 26, NASA is amending its FAR Supplement (NFS) to implement revisions to the voucher and invoice submittal and payment process in order to transition to an electronic invoicing system.
March 23 DFARS Case 2016-D011: DoD is amending the DFARS to to implement section 861 of the National Defense Authorization Act (NDAA) for FY 2016, which provides amendments to the DoD Pilot Mentor Protégé Program, inter alia: (i) to establish new reporting requirements for mentor firms that will provide information to DoD’s Office of Small Business Programs to support decisions regarding continuation of particular mentor protégé agreements; (ii) to add new (a) eligibility criteria; (b) limitations on a protégé firm’s participation in the Program; and (c) elements to mentor-protégé agreements; (iii) to extend the Program for three additional years; and (iv) to amend requirements for business development assistance provided by a mentor firm and for reimbursement of fees assessed by the mentor firm.
March 21 In Meridian Engineering Co., an appeal from two prior Court of Federal Claims decisions (Meridian 1 and Meridian 2), the Court of Appeals for the Federal Circuit affirmed the CoFC's prior holdings that: (i) only the contractor's breach-of-contract and breach-of-good-faith-and-fair-dealing claims presented viable causes of action; (ii) the contractor failed to establish the necessary elements of a Type I Differing Site Conditions claim (because the subsurface conditions of which it complained were reasonably foreseeable); and (iii) the contractor's defective specification claim was essentially the same as its differing site conditions claim. The appellate court, however, reversed the CoFC's prior findings that: (i)  the contractor's flood control event claim was barred by an accord and satisfaction (because the CoFC had not considered all the evidence that might have precluded such a finding);  and (ii)  the Government was entitled to withhold payments for unsatisfactory progress under FAR 52.232-5, barring the contractor's claim for unpaid contract quantities (because (a) the cited clause only applies to progress payments, (b) there was no proof of unsatisfactory progress, and (c) there was no analysis of the parties' conflicting calculations of the appropriate amount of any set-off).
March 20 In IAN, Evan & Alexander Corp., a successful post-award protest, the Court of Federal Claims issued a permanent injunction against performance under a contract modification it found to be outside the scope of the original competition and, therefore, in violation of CICA's competition requirements.

In John Shaw LLC d/b/a Shaw Building Maintenance, the ASBCA dismissed the contractor's claims for punitive damages (because the Board lacks authority to award them) and for "missed opportunities" (because these are consequential damages that are too remote and speculative to be recovered against the Government).
March 19 In Size Appeal of Hendall, Inc., the SBA's OHA upheld the Area Office's determination that the protester had failed to demonstrate any deficiencies in the challenged firm's approved mentor-protégé agreement or in its joint venture agreement.

HAL-PE Assocs. Engineering Services, Inc. won its appeal at the CBCA after the Government failed to identify any contract requirement for the extra work it had directed the contractor to perform.
March 16 In SKC, LLC, an unsuccessful protest by the incumbent small business contractor against the agency's decision to designate what would  appear (to lay eyes at least) to be a follow-on procurement as sole-source under the SBA's 8(a) program, the Court of Federal Claims held that: (i) the agency had not previously expressed publicly a clear intent to award the contract as a small business set-aside under 13 C.F.R. 124.504(a), even though it had come awfully close to doing so; and (ii) the agency's interpretation that the procurement was a "new" requirement that did not require an adverse impact analysis under 13 C.F.R. 124.504(c)(ii)(C) was not clearly erroneous, even though the agency had cycled through several interpretations of the regulations in the course of the dispute before finally settling on one that would justify its position.

In ORBIS Sibro, Inc., although the GAO found no fault with some challenged aspects of the evaluation, it did conclude that the agency had unreasonably adjusted the protester's total price upward in its cost realism analysis, essentially double counting adjustments the evaluators already had made in their analysis.
March 15 The GAO sustained protests by Western Pilot Service, et al., against the terms of a solicitation because the flight services sought by a task order request for proposals for exclusive-use, extended, guaranteed periods of performance were beyond the scope of the protesters' underlying IDIQ contracts for on-call services.

In Global Dynamics, LLC, which arose after multiple GAO protests on a procurement and multiple attempts at corrective action by the agency, the Court of Federal Claims held that: (i) the agency had not adequately explained why it was necessary to award a fifth sole-source bridge contract after the agency's unexplained delays in meeting its own projected timeline for conducting corrective action (and, therefore, the court gave the agency only 30 days to provide such an explanation, if it could); and (ii) the doctrine of laches barred the plaintiff's challenge to the prior GAO decision on the underlying protest that had been adverse to plaintiff, because the plaintiff had decided not to challenge that GAO decision until after another problem arose, i.e., the agency's subsequent decision to cancel the procurement (a decision the agency, still later, rescinded).

In Coast Professional, Inc., et al., the court granted the agency's motion to dismiss the plaintiff's complaints in consolidated post-award protests because the agency's voluntary corrective action was rationally related to the alleged defect in the procurement, adequately addressed that defect, and, therefore, rendered the plaintiffs' complaints moot.
March 14 In Mayberry Enterprises, LLC, the CBCA dismissed, for lack of jurisdiction, the contractor's uncertified monetary claims in excess of $100,000, but retained jurisdiction over individual, segregable claims that were less than that amount.
March 13 In ACI SCC, JV, et al., a case even the court admitted it found confusing, the Court of Federal Claims dismissed a subcontractor's suit to collect an amount owed, but unpaid, by the prime as moot because the ASBCA had already dismissed the case (which involved the same allegations as the current case) with prejudice almost two years earlier and any remaining efforts to collect the judgment by the subcontractor were state court issues, the court reasoning, in part, as follows: "While [the subcontractor] has been unable to collect [on] its . . . judgment, . . . this unfortunate reality does not give [it] an unfettered right to walk into any court it pleases to make further attempts at recovering . . . . This case has been settled for almost two years and [the subcontractor] has no right to relitigate it."
March 12 Pet peeve time (and I realize I have carped about this in the past, to no avail, which goes to show that my two cents are not worth even that much). Pursuant to an Interagency Agreement, administrative law judges from the Department of Housing and Urban Development's Office of Hearings and Appeals ("HUD OHA") are authorized to hear certain cases at the SBA's OHA (I'm guessing the purpose is to distribute the workload more evenly between the two agencies). HUD's OHA and the SBA's OHA are offices of their respective agencies. Neither is a court within the judicial branch of government. Yet, whenever one of HUD's administrative law judges authors a decision purporting to be issued by the SBA's OHA, he insists on referring to it (erroneously, and to my constant chagrin) as a "court," and, often, as "this Court."

As one example (out of multitudes), here is an excerpt from the latest SBA OHA 8(a) decision issued by a HUD administrative law judge: "The SBA contends that the Court should reject jurisdiction over this appeal and dismiss the Petition pursuant to 13 C.F.R. § 134.405(a)(1). The cited regulation mandates that this Court shall decline to accept jurisdiction over any appeal of an SBA determination if '[t]he appeal does not, on its face, allege facts that, if proven to be true, would warrant reversal or modification of the determination.' 13 C.F.R. § 134.405(a)(1)." Matter of Corporate Portfolio Management Solutions, SBA No. BDPT-567 (2018) [emphasis added] Actually, the applicable regulations are very clear that all their requirements apply to the SBA's "office" of hearings and appeals, not to "the Court" or to any court at all. So, if you ever have an 8(a) dispute at the SBA's OHA, you are not in court, no matter what the decision states. 

In this same Matter of Corporate Portfolio Management Solutions case, the SBA's OHA dismissed an appeal of the SBA's decision to terminate a firm from the 8(a) program due to conduct indicating a lack of business integrity for (a) its failure to pay money it owed to another company and (b) its failure to comply with an arbitration agreement (which had resulted in the entry of a civil judgment against it) because the OHA concluded that the terminated firm failed to raise any evidence at the OHA that the SBA's decision was arbitrary, capricious, or in violation of any law.
March 8 In General Dynamics Mission Systems, Inc., the Court of Federal Claims "reluctantly" entered a TRO (without requiring any bond) against permitting further performance by the awardee for a brief period to allow the court time to review the parties' submissions on the merits, the court acknowledging that, because of its heavy workload, it had not yet determined whether the plaintiff was likely to succeed on the merits but had concluded the the Government would be harmed more by the TRO than the plaintiff would be without it.

Effective April 6, The U.S. Agency for International Development (USAID) is issuing a final rule to amend the USAID Acquisition Regulation (AIDAR) in order to clarify the requirements for accountability for all mobile information technology equipment.
March 7 In Corbin's Trucking, Inc., the PSBCA dismissed an appeal for lack of jurisdiction because a letter terminating a contract pursuant to the Postal Service's "Termination with Notice" clause (which provides for termination by either party on 60 days’ notice without cost) is not an appealable Contracting Officer's decision (as opposed to a termination for default).

In FMS Investment Corp., et al., the Court of Federal Claims issued a preliminary injunction against the Government's recall of the incumbents' work pending the resolution of the protest. Interestingly, the court simply stated that it had determined the plaintiffs were likely to succeed on the merits (one of the prerequisites for an injunction) without detailing any of the facts or analysis that led it to that conclusion.  
March 6 In Ernst & Young, LLP, a successful post-award protest, the Court of Federal Claims held that the VA's conduct of a procurement was seriously flawed in several ways, including: (i) the Contracting Officer's violation of FAR 9.504(a) by failing to identify, evaluate, and mitigate a significant unequal access to information OCI involving the eventual awardee;  (ii) the VA's improper assignment of weaknesses to areas of the protester's proposal that complied with the solicitation's stated requirements; (iii) the evaluators' improper decision to credit the awardee with the corporate experience and past performance of a proposed subcontractor that it did not list as a major subcontractor, which was a solicitation requirement for receiving such credit; and (iv) the Contracting Officer's decision not to conduct discussions, which violated FAR 1.102-2(c)(3), because, inter alia, the proposals of four offerors demonstrated a lack of understanding of key parts of the solicitation, which should have alerted the Contracting Officer to the possibility of problems with the solicitation and the need for clarifications through discussions.

In MW Builders, Inc. f/n/a MW Builders of Texas, the court denied the plaintiff's motion to reconsider that portion of the court's prior decision finding the plaintiff's subcontractor had waived its claims because the release was clear and unconditional and the court does not have jurisdiction to reform an agreement between a prime and a sub.
March 5 In Cleveland Assets, LLC, the Court of Appeals for the Federal Circuit affirmed the COFC's prior decision (i) dismissing one count of a preaward protest because it was based on an appropriations act and not a procurement statute, and (ii) determining that the rental cap in a solicitation for lease proposals had a rational basis in the record.

Because all three pages had gotten too large, I have split the ASBCA Decisions, the SBA OHA Decisions, and the CBCA Decisions pages in half.  The current link on the website to the ASBCA Decisions page will now take you to a page that shows decisions from 2013 to the Present, and that page includes a further link to a new page that will show ASBCA decisions from 2006-2012. The current website link to the SBA OHA Decisions page will now take you to a page that links to decisions from 2013 to the Present, and that page now contains a link to a new page that shows SBA OHA Decisions from 2007-2012. The link to the Recent CBCA Decisions page will take you to a page that shows CBCA decisions from 2013 to the Present, and that page will contain a link to another page showing CBCA decisions from 2007-2012

In Transworld Systems Inc., the CBCA ordered the Government to file the Complaint on the Government's claim involving an alleged overpayment to the contractor, but the Board's reasoning wraps around the axle at least three times and lacks any clear analysis that would guide future litigants in determining when such orders will be appropriate.

In Alcazar Trades, Inc., the CBCA dismissed an appeal for lack of jurisdiction because the DOL has exclusive jurisdiction to decide whether a new collective bargaining agreement should form the basis for a revised wage determination in a contract.
March 1 In Harmonia Holdings Group, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that: (i) the agency's conclusion that the protester's price was unrealistically low had a rational basis in the record; (ii) the protester's unbalanced pricing was not the fault of any error in the information provided with the solicitation, and the evaluators had a rational basis for assessing the protester's expertise and apparent understanding of the contract (or lack thereof) in light of the unbalanced pricing; (iii) there were rational bases for the agency's assignment of weaknesses to several aspects of the protester's technical proposal; and (iv) various "assumptions" listed in awardee's proposal were not exceptions to the solicitation's requirements, but were intended to illustrate the awardee's understanding of the solicitation.

In A Squared Joint Venture, an unsuccessful protest against disqualification from a competition due to an unequal access to information OCI, the court held that: (i) the Contracting Officer did not delay in identifying and investigating the potential OCI; (ii) the Contracting Officer's OCI findings were based on "hard facts," e.g., the protester's employees' access to the sensitive competitive information of a competitor; and (iii) FAR 9.504(e) does not apply in this case because it only covers the disqualification of the apparently successful offeror, and this disqualification occurred before the awardee was selected.

In Sigmatech, Inc., the court denied the protester's motion for an injunction pending its appeal of the court's earlier decision that there was a rational basis for the agency's Rule of Two analysis supporting its decision to set aside the procurement for small businesses.
February 28 In Horton Construction Co., the ASBCA held that: (i) a firm that had been decertified by the State of Louisiana, but then reinstated retroactive to the date of decertification, had the legal capacity to maintain its appeal at Board; and (ii) even in the unlikely event that the individual who had signed the CDA claim certification (as the company's vice president and as the executrix of its deceased owner's estate) were ultimately proven to have lacked authority to do so, the Board would not be deprived of jurisdiction because the problem would be a curable defect in the certification. 

In Pro-Built Construction Firm, the ASBCA denied the contractor's EAJA application because the Government's position that the contractor's claimed costs were not reasonable involved often close questions of fact and determinations as to witness credibility, and the Government had prevailed on a significant number of these issues; thus, its position was substantially justified.

In UNIT Co., the ASBCA denied the Government's motion for summary judgment that the contractor had failed to provide timely, contractually-required notice of a discrepancy in the specifications or drawings under clause 52.236.21(a) because: (i) nothing precludes such notice from being found in an RFI; (ii) whether the RFIs at issue were sufficient to convey the notice was a disputed question of fact; and (iii) the Government had provided no evidence of prejudice from the alleged lack of notice, which is a requirement for resolving such issues.

Effective March 30, the OMB's OFPP is adding the word "certified" to 48 C.F.R. 9903-201(1), which exempts from CAS coverage "[f]irm-fixed-price contracts or subcontracts awarded on the basis of adequate price competition without submission of certified cost or pricing data." [emphasis added]

In ASW Assocs., the CBCA denied an appeal without analyzing entitlement because the contractor provided no explanation for its calculation of quantum despite having been directed by the Board to do so. 
February 27 In Securityhunter, Inc., the ASBCA held that paragraph (d) of FAR 52.216-22 (the "Indefinite Quantity" clause), which states in part that "the Contractor shall not be required to make deliveries under this contract after 365 days after contract award,"  did not relieve the contractor of its obligation to complete a fixed-price task order, whose original performance period was within the contract's term, simply because the contractor had not completed the work when the contract's term ended, noting: "Relieving [the contractor] of its contractual obligations to complete [the] work merely because it failed to perform on time would render the contract illusory and void [because the contractor] could simply decline to perform without any consequences." The Board also rejected the contractor's attempt to blame its performance delay on the Government because that delay claim had not previously been presented to the Contracting Officer for a decision.

In Khenj Logistics Group, the ASBCA dismissed an appeal because the contractor neglected to submit its claim for more than six years after the Contracting Officer failed to honor a commitment to pay for materials. 

In Green Valley Co., the ASBCA held that the contractor's failure to submit its claim within the six year limitations period was not excused by the pendency of the Government's suit against the contractor in District Court or by the contractor's fear that the Government would respond to the claim by asserting a fraud-based defense. Subsequently, the ASBCA denied the contractor's motion for reconsideration.

In Great America Construction Co., the ASBCA held that the contractor had failed to prove that (i) it had performed one month of extra services and (ii) an authorized government representative had ordered the work (especially in light of a credible affidavit from the individual who had purportedly sent an email supporting the contractor's contentions denying she had sent the email and noting she had not even been employed by the Government at the time).

In John C. Grimberg Co., the ASBCA held: (i) it had jurisdiction over a count for superior knowledge added in an amended Complaint because that new count was based on the same operative facts as the original claim; and (ii) any prejudice that might otherwise be attributed to the tardy submission of the amended Complaint on the eve of the original hearing date was mitigated by fact that the hearing had since been postponed and the Government, therefore, had time to respond to the amended Complaint, e.g., by deposing additional witnesses.
February 26 Savannah River Technology & Remediation LLC won its GAO protest because the record did not show that the agency had evaluated the viability of the awardee's proposed technical approach as required by the solicitation.
February 22 ManTech Advanced Systems International, Inc. won its GAO protest because the final source selection decision document did not include any comparison of proposals sufficient to explain the agency's conclusion that the awardee's proposal was superior to the protester's.

In Transworld Systems, Inc.,  the GAO sustained another protest because the agency did not evaluate quotations equally when it assigned a weakness to the protester's proposal for an omission shared by the awardees' quotations, which were not assigned a weakness.

In Matter of  Analytic Strategies, Inc. (which involved some contortions to interpret at least dense, if not conflicting, SBA regs), the SBA's OHA vacated the SBA's determination (and rejected the SBA's interpretation of its own regulations) and held that a firm that initially was qualified as an SDVOSB for a multiple-award, task-order contract was eligible for the award of a task order issued under that contract that was set-aside for SDVOSBs, even though it no longer qualified as such, because the Contracting Officer had not required recertification in connection with the solicitation for the task order award.

In Loomacres, Inc., an unsuccessful protest against an insourcing decision, the Court of Federal Claims held that OMB Circular A-76 does not govern procurements of services that are necessary for the implementation or enforcement of an Integrated Natural Resources Management Plan, and the Air Force was required to give priority to a federal conservation or wildlife agency to perform such services.

GSAR Case 2015-G512: GSA is amending the General Services Administration Acquisition Regulation (GSAR) to address common commercial supplier agreement terms that are inconsistent with or create ambiguity with federal Law, e.g., terms that would call for dispute resolution inconsistent with the CDA and terms that would violate the Anti-Deficiency Act.

There are always plenty of decisions reminding us that it is crucial to follow the regulations for filing, appealing, and prosecuting claims. In Westlake Farms, Inc., the CBCA dismissed an appeal for lack of jurisdiction because it was filed more than 90 days after the contractor's receipt of the Contracting Officer's decision. In Rover Construction Co., the ASBCA dismissed an appeal for failure to prosecute due to the contractor's unexplained failure to file a brief by scheduled date set by the Board. The ASBCA dismissed an appeal by Hill Contracting Co., because the contractor failed to respond to an order to show that it was represented by a person meeting the requirements of Board Rule 15(a). In [Redacted], ASBCA No. 60783 (Feb. 8, 2018), the ASBCA dismissed an appeal because the contractor failed to rebut the Government's contention that the issue had been released in a settlement agreement.   
February 21 Effective March 23, the VA adopts as final the proposed rules revising the VA's acquisition regulations: (i) to prescribe five new Economic Price Adjustment clauses for firm, fixed-price contracts; (ii) to identify the VA's task-order and delivery-order ombudsman; (iii) to clarify the nature and use of consignment agreements; (iv) to add policy coverage on bond premium adjustments and insurance on fixed-price contracts; and (v) to provide for indemnification of contractors for medical research and development contracts.
February 18 In ARxIUM, Inc., a successful post-award protest, the Court of Federal Claims held that it was improper for the agency to remove the protester from the competitive range during corrective action following a GAO protest, because the agency retroactively adopted the GAO's interpretation of a latently ambiguous solicitation term without conducting discussions or allowing revised proposals.
February 16 In J.R. Mannes Government Services Corp., the CBCA denied the contractor's motion to compel the deposition of a high-level agency official who had no personal knowledge of the facts involved in an appeal of allegedly improper terminations for convenience because the contractor offered no reason why the deposition was necessary beyond its desire to obtain a "birds-eye view" of the agency's actions.

In VXL Enterprises, LLC, the CBCA denied the contractor's petition to require the Contracting Officer to issue a decision on a certified claim within five business days of the date of the petition because that period of time was too short to provide the Government time to respond to, or the Board to consider, the petition, especially absent a showing of any exigent circumstance that would require action so quickly.

The CBCA denied a motion by Yates-Desbuild Joint Venture: (i) to vacate the Board's prior decision on reconsideration and (ii) to have the issue decided by the full Board.
February 15 The GAO sustained a protest by Castro & Co., LLC., because the agency's limitations on the scope of proposal revisions following corrective action unreasonably prohibited the protester from revising some aspects of its proposal that had been materially impacted by the corrective action.

BAE Systems Technology Solutions & Services, Inc., won its GAO protest because the awardee's proposal did not include sufficient information for the agency to assess whether its proposed personnel met the solicitation's minimum experience requirements.

In Strategic Business Solutions, Inc., a decision labeled as nonprecedential, the Court of Appeals for the Federal Circuit affirmed the prior decision by the Court of Federal Claims that the procuring agency had a rational basis for rejecting a proposal because the protester failed in multiple instances to comply with a solicitation requirement to submit redacted copies of certain portions of its proposal.
February 13 In Walden Security, an unsuccessful post-award protest, the Court of Federal Claims held that, after multiple rounds of corrective action following prior GAO protests, the agency: (i) had carefully considered all past performance information concerning the protester and the awardee and had reasonably concluded the proposals were essentially equal in this evaluation factor; and (ii) had reasonably concluded that, while both proposals had earned a technical rating of "Good," the awardee's proposal included discriminators that rendered it superior to the protester's proposal and that justified paying a slight premium for the additional benefits of the awardee's proposal.
February 12 In Size Appeal of AeroSage, LLC, the SBA's OHA held that the Area Office had correctly dismissed a size protest for lack of standing because, by refusing the Contracting Officer's request to extend its offer acceptance period, the firm had removed itself from the competition.

In Size Appeal of Cliffdale Mfg., LLC, the OHA held that a firm lacked standing to appeal a size determination adverse to its wholly-owned subsidiary.
February 8 The GAO sustained a protest by Harper Construction Co., holding that: (i) the protester had based its proposal submission on a reasonable interpretation of latently ambiguous solicitation language,  and (ii) the agency's rejection of the proposal based on the agency's contrary interpretation had prejudiced the protester.
February 7 In Size Appeal of AeroSage, LLC, the SBA's OHA dismissed, as untimely, an appeal filed more than 15 days after appellant's receipt of the Area Office's size determination because "OHA has no discretion to extend or waive the deadline."
February 6 In Office Design Group, the GAO (i) interpreted an email from the offeror to the Contracting Officer (expressing confusion regarding whether an amendment to the solicitation had changed its status as an SDVOSB set-aside and requesting clarification) as an agency-level protest, giving the firm 10 days from receipt of the Contracting Officer's response to file a timely GAO protest; and (ii) held that the amendment, which eliminated certain requirements for an SDVOSB set-aside while retaining other language indicating the procurement was still set aside, created a patent ambiguity.
February 5 In Size  Appeal of Conrad Shipyard, LLC, the SBA's OHA held that the Area Office had correctly: (i) dismissed (for lack of standing) a protest filed in the name of an entity that was not an offeror for the subject procurement; and (ii) rejected a subsequent (untimely) attempt to amend the protest because the size protest regulations do not permit such amendments.

In Size Appeal of Mistral, Inc., the OHA held that the Area Office had correctly concluded that a firm on a small business set-aside was a manufacturer of the end items (CATVs) because the firm would have to do extensive work to bring the supplied items up to the procuring agency's requirements, without which work the supplied items would be useless to the agency, and (especially since the solicitation did not require ownership of the manufacturing facilities), the fact that the firm would lease the manufacturing facilities did not mean it was not the manufacturer.
February 2 In First Nationwide Holdings LLC, the PSBCA held that the Debt Collection Act does not give the Board the authority to order a delay in the Government's collection of offsets pending the outcome of proceedings at the Board.  
February 1 Beginning today, the GAO is implementing a pilot program for electronic filing of certain selected protests as a preliminary step toward full implementation of the electronic filing system projected for sometime later this year. Details of the pilot program and the new system can be found here.

In Northrop Grumman Corp., the ASBCA denied the Government's request for reconsideration of the Board's prior quantum decision because the Board rejected the Government's "novel, extraordinary, unique, and unprecedented" theory that the contractor had incurred Post-Retirement Benefit costs "by operation of law" when, in fact, the contractor had underfunded the benefit plan at issue and, thus, neither incurred the costs nor charged them to its contracts with the Government, resulting in the Government's inability to show any damages.

In Austin Logistic Services Co., the ASBCA denied a claim for the alleged lease expenses of housing the contractor's employees who were performing maintenance duties at Bagram Airfield in Afghanistan because, inter alia, the purported lease document did not state the beginning and ending dates of the lease (and a subsequent document that allegedly  included the dates was not submitted in English or translated) and the contract provided that the contractor's workers could be billeted at the base.

The ASBCA dismissed a claim by Tawhid Afzali Construction Co. for lack of jurisdiction because (i) the evidence indicated the contract at issue had been awarded to a different contractor altogether, and (ii) the claim did not state the amount of money the purported contractor was claiming.

The ASBCA denied a convenience termination claim by American Boys Construction Co. because the contractor failed to submit its termination settlement proposal within one year of the termination.

In Buck Town Contractors & Co., the ASBCA denied the contractor's motion for partial summary judgment because the plain meaning of the contract was at variance with the contractor's proposed interpretation. The contractor had supported its argument with a dictionary definition of the disputed term, and the Board had to interpret the dictionary definition, itself, in order to evaluate the contractor's position.
January 31 DFARS Case 2016-D006: DoD has published a final rule to implement sections of the  National Defense Authorization Acts for Fiscal Years 2013, 2016, and 2018 relating to acquisitions of commercial items, including guidance on analyzing cost and price reasonableness for such acquisitions.

DFARS 2018-D004: Another final rule designates North Korea as a state sponsor of terrorism.

In Level 3 Communications, LLC., the Court of Appeals for the Federal Circuit reversed the prior decision by the Court of Federal Claims that had sanctioned the Government's attorney for violations of the duty of candor to the lower court.
January 30 In HESCO Bastion Ltd., an unsuccessful protest, the Court of Federal Claims held that an agency's decision to undertake corrective action to eliminate unduly restrictive requirements that could be met only by the protester's product was "eminently reasonable."
January 27 The SBA proposes to amend its regulations to comply with the requirements of the National Defense Authorization Act for 2017, specifically to establish a single set of regulations relating to the ownership and control of SDVOSBs and to define the circumstances in which a firm can qualify as VO or SDVO when there is a surviving spouse or an ESOP. Comments are due by March 30. See also January 10 entry below.
January 25 In Zeidman Technologies, Inc., the Court of Federal Claims denied most of the application by the protester's CEO/founder/President for access to protected material  because: (i) the application omitted several important representations as to his status and role in competitive decision making; and (ii) the protester failed to establish that his access to the protected materials was necessary to its case.
January 24 In AgustaWestland North America, Inc., the Court of Appeals for the Federal Circuit vacated a preliminary injunction previously issued by the CoFC and reversed the CoFC's protest  decision because, contrary to the lower court's findings: (i) Army Order 109-14 was not a procurement decision subject to review; (ii) the administrative record had not required supplementation, especially not sua sponte by the lower court (because the original record was sufficient for a decision); and (iii) the sole source J&A for the purchase of helicopters from a specified vendor was not arbitrary and capricious, but had a rational basis.

Federal Acquisition Circular (FAC)  2005-97 has been published and includes the following item:

FAR Case 2018-001: A final rule amends the FAR to incorporate revised thresholds for application of the World Trade Organization Government Procurement    Agreement and the Free Trade Agreements, as determined by the United States Trade Representative.
January 19 In Centerra Group, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that: (i) a solicitation did not require offerors to base their proposed staffing plan levels on those of the incumbent, and there was a rational basis in the record for the Government's evaluation of the awardee's "leaner" staffing plan; (ii) the solicitation required the price analysis only to determine whether the offered prices were reasonable and balanced and did not require the additional analysis of the performance risk associated with price as advocated by the protester; and (iii) the conclusion in the tradeoff analysis that the protester's technical superiority was not sufficient to justify its higher price was consistent with the evaluation criteria.
January 18 The GAO published two decisions, each sustaining a part of an underlying protest. In East Cost Utility Contractors, Ltd., the GAO found that, where the solicitation provided for the consideration of the past performance of the offerors' proposed management teams, the agency had improperly failed to consider the past performance of one of the protester's managers. The GAO also sustained part of a protest by Red River Computer Co. because one of the awardees failed to provide price discounts at the BPA level as required by the solicitation.

In Securiforce International America, LLC, the Court of Appeals for the Federal Circuit: (i) affirmed the Court of Federal Claims' prior decisions (a) upholding a partial termination for default and (b) denying plaintiff's motions for discovery sanctions; but (ii) vacated the portion of the lower court's decision finding jurisdiction over plaintiff's request for declaratory relief that a partial termination for convenience had breached the contract (because the proper remedy to have sought for that breach claim would have been breach damages, not the equitable relief of a declaratory judgment).
January 17 In United States Enrichment Corp., the Court of Federal Claims held that: (i) for purposes of calculating the segment-closing adjustment for pension costs under CAS 413, the contractor must use data from the earliest date for which it has complete data regarding the Government's contributions to the pension obligations for past and present plan participants; (ii) post-retirement health and welfare benefits (PRBs) mandated only until the expiration of a collective bargaining agreement are not vested or integral to the underlying pension plan, and, therefore are not to be included in a segment closing adjustment, except for special, continued PRBs guaranteed to certain eligible retirees by the Privatization Act; and (iii) the contractor was not entitled to additional PRB costs under FAR cost principles because the Government's obligation under these principles ended with the end of the contract.
January 13 The GAO sustained a protest by Herman Construction Group, Inc. because the record did not support the agency's conclusion that the awardee had submitted sufficient evidence to permit the agency to allow it to correct an allegedly mistaken bid.

In Continental Service Group, Inc., et al., a decision labeled as nonprecedential, the Court of Appeals for the Federal Circuit: (i) upheld the portion of the Court of Federal Claims' prior bid protest ruling preliminarily enjoining the awardees from performing; but (ii) reversed the portion of the same ruling enjoining the agency from transferring the work to be performed under the protested contract to other contracting vehicles in order to circumvent or moot the protest.
January 11 The VA is proposing to amend and update its VA Acquisition Regulation (VAAR) in phased increments to revise or remove any policy superseded by changes in the FAR, to remove procedural guidance internal to VA into the VAAM, and to incorporate any new agency specific regulations or policies, all in order to streamline and align the VAAR with the FAR and remove outdated and duplicative requirements and reduce burdens on contractors. Comments are due by March 12.

In Geo-Med, LLC, an unsuccessful preaward protest, in addition to finding that the small business plaintiff had standing to protest, the Court of Federal Claims held that the administrative record, including a detailed Market Research Report, demonstrated that there was a rational basis for the Contracting Officer's decision to bundle the contract requirements, even though that decision would likely prejudice small businesses.
January 10 In part to comply with the provisions of the National Defense Authorization Act of 2017 (NDAA) that place responsibility in the SBA to issue regulations regarding ownership and control of VOSBs and SBVOSBs, the VA proposes to amend its regulations governing such firms: (i) to remove all references to ownership and control for purposes of determining VOSB and SDVOSB status; and (ii) to recognize (again in compliance with the NDAA) that, in certain circumstances, a firm can qualify as VO or SDVO when there is a surviving spouse or an employee stock ownership plan. Comments are due by March 12.
January 8 In Sigmatech, Inc., an unsuccessful protest against the decision to set aside a procurement for small businesses, the Court of Federal Claims held that: (i)  the Rule of Two analysis does not require a Contracting Officer to determine the responsibility of particular firms before a solicitation is issued; and (ii) multiple responses to a market research RFI provided the Contracting Officer with sufficient facts to form a reasonable expectation that offers would be obtained from at least two responsible small business concerns and that award would be made at a fair market price.
January 5 In Team Waste Gulf Coast, LLC, an unsuccessful post-award protest challenging the SBA OHA's prior decision upholding a size determination finding affiliation through negative control, the Court of Federal Claims held that: (i) the plaintiff had waived its right to raise an argument in court not first presented at the OHA; and (ii) an Operating Agreement contained several provisions that gave one firm the power to exercise negative control over another and, therefore, the firms were affiliated for size determination purposes.
January 3 In Fluor Federal Solutions, LLC, the ASBCA directed the Contracting Officer to issue a decision on the claim that had been submitted more than two years earlier, following which, the Government, through the DCAA, had done nothing except continue to request more information than was required to constitute a cognizable claim.
January 1, 2018 In Size Appeal of QuaLED Lighting, the SBA's OHA held that the Area Office had correctly found a protest untimely because it only mentioned the base contract award (which occurred more than a year before the protest was filed) rather than the subsequent award of a task order.

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