The Commerce Department's Bureau of Industry and Security (BIS) is proposing (i) to delineate how auxiliary and miscellaneous military equipment and related articles the President determines no longer warrant control under Category XIII (Auxiliary Military Equipment) of the United States Munitions List (USML) would be controlled under the Commerce Control List (CCL) in new Export Control Classification Numbers (ECCNs) 0A617, 0B617, 0C617, 0D617, and 0E617 as part of the proposed new "600 series" of ECCNs; (ii) to integrate into these five new ECCNs those items within the scope of Wassenaar Arrangement Munitions List (WAML) Category 17 that would be removed from the USML, or that are not specifically identified on the USML or CCL but that are currently subject to USML jurisdiction; and (iii) to control some items now classified under ECCNs 0A018, 0A918 and 0E018 under new ECCNs 0A617 and 0E617, in order to consolidate auxiliary and miscellaneous military equipment and related articles on the CCL in the proposed new "600 series." Comments are due by July 2.

The State Department proposes to amend the ITAR to revise Category XIII (materials and miscellaneous articles) of the USML to describe more precisely the materials warranting control on the USML. Comments are due by July 2.

FAR Case 2011-019: A proposed FAR revision would remove references to specific paragraphs in superseded Financial Accounting Standard 106  from FAR 31.205-6 (Compensation for Personal Services) because they are obsolete. Comments are due by July 16.

The SBA is proposing extensive revisions to its regulations at 13 C.F.R. Parts 121 and 124-127 to reflect the provisions of the Small Business Jobs Act of 2010 that concern multiple-award schedule contracts (and orders placed against such contracts) and the consolidation of contracts, including proposed revisions to the following sections (among many others): 121.103 (how the SBA determines affiliation); 121.402 (what size standards are applicable to federal procurements); 121.404 (the date the size of a business concern is determined); 121.1001 (who may initiate a size protest); 121.1004 (the time limits for filing size protests); 121.1103 (the procedures for NAICS or size standard designations); and 125.1 (definitions governing SBA's government contracting programs). Comments are due by July 16.

The SBA has issued corrections to several errors in its previously published rule concerning 8(a) business development/small disadvantaged business status determinations at 13 C.F.R. Part 124.

In order to implement provisions of the National Defense Authorization Act for Fiscal Year 2012, the SBA is proposing to amend its regulations governing size and eligibility for the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) Programs  by addressing ownership, control and affiliation for program participants, including those that are majority owned by multiple venture capital operating companies, private equity firms, or hedge funds. Comments are due by July 16.

[T]he Court recognizes that not all cooperative agreements are procurements under the Tucker Act. Where an agency, pursuant to a statutory directive, is distributing funds or providing assistance to service providers to ensure a service’s availability, it is not conducting a procurement. However, where an agency has a statutory mandate to provide a service, and the agency decides to use a cooperative agreement to obtain the provision of that service, that agency has engaged in a procurement process under the Tucker Act and this Court has jurisdiction over protests in connection with that process. 

The SBA's OHA published two size decisions.

In Size Appeal of Hardie's Fruit & Vegetable Company South, LP (the latest decision in the epic battle between that firm and M&S Foods Co.), the OHA vacated the Area Office's determination and remanded the case for further analysis because (i) it was not clear which NAICS codes were used for the procurements, which in turn, might have affected which protest allegations the Area Office should have considered; and (ii) the Area Office improperly applied the simplified acquisition exemption to its analysis of the procurements. 

In Size Appeal of RGB Group, Inc., the OHA upheld the Area Office's finding of affiliation through identity of interest with no clear fracture between a husband and wife who had numerous ties to one another in operation of various firms.

DoD has published an interim final rule to establish a voluntary cyber security information sharing program between DoD and eligible Defense Industrial Base companies in order to enhance participants’ capabilities to safeguard DoD information that resides on, or transits, unclassified information systems. Comments are due by July 10.

Federal Acquisition Circular (FAC) 2005-59 has been published and includes the following three items:

FAR Case 2012-013 (Prohibition on Contracting With Inverted Domestic Corporations): An interim rule amends the FAR to implement a section of the Consolidated Appropriations Act, 2012, which prohibits the award of contracts using appropriated funds to any foreign incorporated entity that is treated as an inverted domestic corporation or to any subsidiary of such an entity. Comments are due by July 9.

FAR Case 2012-012 (Free Trade Agreement--Columbia): Effective May 15, another interim rule amends the FAR to implement the United States-Colombia Trade Promotion Agreement, which provides for mutually non-discriminatory treatment of eligible products and services from Colombia. Comments are due by July 9.

FAR Case 2012-003 (Revision of Cost Accounting Standards Threshold): A final rule amends the FAR to revise the threshold for the applicability of cost accounting standards (by substituting "$700,000" for "$650,000" in several FAR sections and clauses) in order to implement a recent rule of the Cost Accounting Standards Board and statutory requirements. 

In CPR Restoration, LLC, the CBCA dismissed an appeal for lack of jurisdiction because the appellant did not have a contract with the agency and appeared to have been only a subcontractor, with no right of direct appeal.

In Terex Corp., a post-award protest, although the Court of Federal Claims could not determine which party's interpretation of test data (concerning whether or not a test vehicle improperly stalled) was correct, it denied the protest because (i) the agency had thoroughly analyzed the data as part of a rational evaluation of the relevant factors (and the court was not in a position to substitute its judgment for that of the agency's evaluators); and (ii) the solicitation did not require offerors to build and test an actual production vehicle, but only to present test data from similar vehicles to the one it planned to provide, which would be predictive, rather than conclusive.

In California Industrial Facilities Resources, Inc., the court held that an RFQ and the proposed award of the resulting task order were unobjectionable because they did not exceed the scope of the underlying ID/IQ contracts.

In Kellogg Brown & Root Services, Inc., the Court of Federal Claims ruled on a very complex factual situation involving the contractor's burden of proving the reasonableness of its claimed costs in connection with a contract to provide dining facility services to troops in Iraq, in a situation that was further complicated by the fact that two of the contractor's managerial employees accepted kickbacks from a subcontractor, which, in turn, resulted in government counterclaims for (i) violations of Anti-Kickback Act and (ii) common law fraud (with the court ultimately deciding that the contractor was liable only for the return of the amount of the kickbacks accepted by those employees).

In Distributed Solutions, Inc. and STR, L.L.C. (after the CAFC reversed the Court of Federal Claims' prior decision that it did not have jurisdiction over this type of protest), the Court of Federal Claims held that the procuring agency had not provided a rational basis for switching from proposed direct procurements of two types of software to having its prime contractor to procure the software.

In Pew Forest Products, the plaintiff argued (unsuccessfully, in both cases) that (i) its timber logging contracts came into existence at the time bids were opened and its bid was declared to be the best bid (as opposed to when the Government later signed the contracts), and (ii) its logging operations were compensably delayed by contingencies that the solicitation and contract documents clearly stated might occur. 

In Versar, Inc., the ASBCA denied both parties' delay claims against the other because neither party presented evidence (i) concerning concurrent delay or (ii) segregating its own and its opponent's delays.

The ASBCA denied an appeal by Hartman Walsh Painting Co. because, in connection with its misrepresentation claim, the contractor failed to prove that the Government made an erroneous representation of material fact.

In CACI, International, Inc., the ASBCA held it had jurisdiction over the contractor's appeal from a government finding of noncompliance with CAS 403 even though there was no allegation of a monetary impact due to the alleged noncompliance.

In Waterstone Environmental Hydrology and Engineering, Inc., the ASBCA dismissed an appeal not filed at the Board within 90 days of receipt of the Contracting Officer's decision (the contractor, without the assistance of counsel, had initially appealed to the wrong forum).

In Size Appeal of Bosco Constructors, Inc., the SBA's OHA held that, even though the Area Office erroneously concluded that the protester had been eliminated from the competition (and lacked standing), the appeal should be dismissed as moot because the agency was in the process of making a new award decision, which might result in an award to a different firm from the one whose size had been protested.

The Commerce Department's Bureau of Industry and Security (BIS) has published a proposed rule (i) describing how energetic materials and related articles that the President determines no longer warrant control under Category V (Explosives and Energetic Materials, Propellants, Incendiary Agents and Their Constituents) of the United States Munitions List (USML) would be controlled under the Commerce Control List (CCL) in new Export Control Classification Numbers (ECCNs) 1B608, 1C608, 1D608, and 1E608; (ii) controlling (under ECCN 1C111) some of the aluminum powder and hydrazine and derivatives thereof that are now controlled under Category V of the USML; (iii) placing  control equipment for the "production" of explosives and solid propellants, currently controlled under ECCN 1B018.a, and related "software," currently controlled under ECCN 1D018, under new ECCNs 1B608 and 1D608, respectively; and (iv) placing commercial charges and devices containing energetic materials, which are currently controlled under ECCN 1C018, under new ECCN 1C608. Comments are due by June 18.

FAR Case 2011-028: A proposed rule would amend the FAR to implement Executive Order  13495 and the related DOL regulations concerning the nondisplacement of qualified workers on successor service contracts. Comments are due by July 2. 

In Englewood Terrace Limited Partnership, a nonprecedential decision, the Court of Appeals for the Federal Circuit remanded the case to the CoFC for a recalculation of a lost profit award following a breach because the lower court had not subtracted the costs saved by reason of the breach.

Effective June 1, the State Department is amending section 123.17 of the ITAR, inter alia, (i) to add an exemption for the temporary export of chemical agent protective gear for personal use; (ii) to revise the exemption for body armor to also cover helmets when they are included with the body armor; and (iii) to clarify the exemption for firearms and ammunition by removing certain extraneous language that does not change the meaning of the exemption.

The State Department also is proposing to amend the ITAR in order to revise Category V (explosives and energetic materials, propellants, incendiary agents, and their constituents) of the U.S. Munitions List to describe more precisely the articles warranting control thereunder. Comments are due by June 18. 

The Department of Agriculture is proposing extensive amendments to nine sections of 7 C.F.R. Part 3201: "Guidelines for Designating Biobased Products for Federal Procurement." Comments are due by July 2.

In 5860 Chicago Ridge, LLC, the Court of Federal Claims (i) upheld the Government's default termination of a building lease due to numerous, longstanding water leak problems even though the Government failed to strictly comply with lease's cure period requirements because the contractor indicated it could not have fixed all the leaks within the full cure period, but (ii) denied the Government's claims for relocation costs (because the Government failed to meet its burden of proof to show which of those costs were necessary) and excess reprocurement costs of substitute rental space (because the Government's witness failed to compare the relocated space with the original space to establish they were similar). 

In BayFirst Solutions, LLC, the Government cancelled an 8(a) set-aside solicitation and awarded a task order to a firm under its already existing ID/IQ contract as a bridge to tide the Government over until it could issue a new solicitation. BayFirst protested that task order (and the cancellation of the original solicitation) because BayFirst claimed that transferring the incumbent's employees to the bridge contractor during the interim period would deprive BayFirst of the advantage it would have had bidding on the original solicitation since it had planned to offer to use the incumbent's employees (by utilizing the incumbent as its subcontractor). Although the court found it had jurisdiction over significant portions of the protest, which were not affected by the limits on task order protests, the court denied the protest because BayFirst failed to prove that the cancellation was unfair or unjustified or that the task order was beyond the scope of the ID/IQ contract. (BayFirst had won an earlier protest on this competition; see January 14 entry below.)

In Three S Consulting, the court held that (i) the protester lacked standing to challenge the original contract award because it was not a qualified offeror and (ii) the alleged actions of a government employee (who was not authorized to enter into government contracts) in facilitating agreements between private parties to complete work on a cancelled contract were not within the court's bid protest jurisdiction.

In Top Painting Co., the ASBCA granted the Government's motion for summary judgment and rejected the contractor's claim for Differing Site Conditions because (i) the contractor had failed to conduct a pre-award site visit; (ii) the conditions encountered by the contractor were visible (neither subsurface nor latent); and (iii) the contract required the contractor to deal with conditions of that type.

In Midwest Tube Fabricators, Inc., the Court of Federal Claims granted the protester's motion to supplement the administrative record by deposing the Contracting Officer (whose declaration had already been filed by the Government) and by filing declarations of its own relating to a simplified acquisition procurement under FAR Part 13 because of gaps in the record attributable to the informal procedures used in the procurement.

The CBCA upheld the default termination of a roadway vegetation maintenance contract held by D&M Grading, Inc., because the conditions encountered by contractor (which it claimed excused its failure to complete the work) did not amount to either a Type I or Type II Differing Site Condition.

The CBCA also granted in part a motion for reconsideration by Bannum, Inc., of a prior decision (which had dismissed its claim as time barred) because the contractor had complained of many acts by the Government that occurred more recently than six years in the past.

In Triad Mechanical, Inc., the ASBCA dismissed an appeal for lack of CDA jurisdiction because (i) the contractor's termination for convenience settlement proposal was not a claim despite the fact that contractor had labeled it as such,  and (ii) a government request for additional documentation before completing its audit of the proposal did not signify an impasse over it.

In Valley Apparel, LLC, the ASBCA denied an appeal because one statement in a footnote to a solicitation for an indefinite quantity contract to supply parkas regarding the percentage of each size parka the Government "anticipated" ordering was not a guarantee that the Government would order those percentages, especially when read in connection with numerous other solicitation provisions indicating the amounts to be ordered were uncertain.

In Size Appeal of Williams Adley & Company -- DC, LLP, the SBA's OHA upheld the Area Office's use (in a size determination) of a firm's most recent tax return, which had not been filed until after the firm's self-certification but which was available at the time of the SBA's size review. 

Aldevra won another GAO protest because, once again, the VA failed to consider whether an acquisition should be set aside for SDVOSBs before proceeding with FSS requirements. Why does this remind me of Jeff Probst's signature redundancy: "Once again, immunity is back up for grabs"?

In Parsons Global Services, Inc., the Court of Appeals for the Federal Circuit affirmed an ASBCA decision dismissing an appeal for lack of CDA jurisdiction because a prime contractor's request for payment of its subcontractor's overhead and G&A costs (at a rate specified in the subcontract) submitted two years after a termination for convenience was "routine" and, therefore, not a claim within the meaning of the CDA. It's hard to argue with the court's reasoning, but read the dissent to get a feel for the frustration (shared by many in the government contracting community) with the procedural hassles still being engendered by a statute that was intended to be much simpler in its application than it has turned out to be.

In an elliptical, qualified, and verbose opinion, the Court of Federal Claims held that Triad Logistics Services Corp., the incumbent contractor, lacked standing to challenge the DoD's insourcing decision because its contract had been completed before it filed its second complaint. The protester had begun challenging the DoD's decision at the GAO before its contract expired and filed its first complaint in the court the day the contract expired, after which the court dismissed that complaint without prejudice because the agency voluntarily undertook corrective action, which the plaintiff promptly challenged when it learned of the results. Because the timing of the second complaint was dictated by the actions of the Government, the court's reasoning is suspect. 

The State Department announced that on April 13, 2012, (i) the treaty between the United States, Great Britain, and Northern Ireland concerning defense trade cooperation (Treaty Doc. 110–7) came into force; and (ii) the rule previously announced at 77 Fed. Reg. 16592 implementing the treaty and making other updates to the ITAR (see March 22 entry below) became effective. 

Federal Acquisition Circular (FAC) 2005-58 has been published and includes the following three items (plus technical amendments):

FAR Case 2010-004 (Biobased Procurements): Effective May 18, a final rule amends the FAR to implement changes (due to the Farm Security and Rural Investment Act) that require contractors to report the biobased products purchased under service and construction contracts, which will enable agencies to monitor compliance with the federal preference for purchasing biobased products. 

FAR Case 2010-018 (Representation Regarding Export of Sensitive Technology to Iran): Effective May 18, a final rule adopts, with changes, the prior interim rule amending the FAR to add a representation to implement section 106 of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, which imposes a procurement prohibition relating to contracts with persons that export certain sensitive technology to Iran.

FAR Case 2009-038 (Justification and Approval of Sole-Source 8(a) Contracts): A final rule adopts (without change) the prior interim rule amending the FAR to implement a section of the National Defense Authorization Act for Fiscal Year 2010, which  requires the head of an agency to execute (and make public prior to award) the justification for an 8(a) sole-source contract in an amount exceeding $20 million.

The VA is proposing to amend its acquisition regulations to require contractors to submit payment requests in electronic format. Comments are due by June 18.

Effective May 17, the State Department is amending the ITAR to to remove references to the International Import Certificate (Form BIS–645P/ATF–4522/DSP–53), which will end the Department’s current practice of accepting DSP–53 submissions. Instead, the DSP–61 is to be used by importers when necessary.

The Commerce Department's Bureau of Industry and Security (BIS) proposes to amend the Export Administration Regulations (EAR) (i) by adding a requirement for persons shipping under Authorization Validated End-User (Authorization VEU) to send written notice of such shipments to the recipient VEU and (ii) to clarify that when items subject to item-specific conditions under Authorization VEU no longer require a license for export or reexport or become eligible for shipment under a license exception, as set forth in the EAR, VEUs are no longer bound by the conditions associated with such items. Comments are due by June 18.

Contracting, Consulting, Engineering, LLC, won its post-award protest at the Court of Federal Claims because the agency's evaluators irrationally supplied required information missing from the awardee's proposal by assuming that the experience of the awardee's proposed employees was consistent with the evaluators' knowledge of the length of typical agency tours of duty.

The same court found a post-award protest by Contract Services, Inc., untimely because, prior to submitting its proposal, the protester had not objected to a solicitation requirement that it appear on the list of HUBZone certified firms at the time of proposal submission, even though it had been aware it was not on the list and had asked the SBA to speed up the process of including its name.  

The ASBCA published several decisions.

In A-1 Horton's Moving Service, Inc., the Board denied the Government's motion to dismiss for lack of CDA jurisdiction and held that a claim for breach of a transportation services contract when no services have been provided (as opposed to a claim for monies due once services under such an agreement have been provided) is governed by the CDA rather than section 3726 of the Transportation Act. 

In Ironhorse Ltd., the Board held that a reminder letter sent by the contractor three months after its submission of the original REAs to the Contracting Officer converted those REAs into claims filed within the CDA's six-year statute of limitations.

In Kellogg Brown & Root Services, Inc., the Board denied both parties' dispositive motions because there remained material issues of fact even after the Board concluded that the contract contained no categorical prohibition on the use of armed private security companies (without the express permission of the Theater Commander) to supplement the government force protection where necessary to accomplish the logistical support mission.

In SplashNote Systems, Inc., the Board denied the contractor's motion for reconsideration of the Board's prior decision disallowing (i) deferred IR&D costs and (ii) a large bonus which the Board had concluded was a distribution of profit.

The CBCA published two decisions.

In ASP Denver, LLC, the Board denied the Government's motion to dismiss for lack of CDA jurisdiction because the fact that the real estate tax assessment in dispute was under appeal to the taxing authority (and, therefore, ultimately might be reduced) did not change the fact that the contractor had claimed a definite amount as a sum certain in its claim.

In Singleton Enterprises, the Board upheld a default termination after  a contract had been reinstated following an earlier default because there was no reasonable prospect the contractor could meet newly agreed upon completion date and because the contractor had not shown performance was impossible due to an allegedly defective spec. 

The Commerce Department's Bureau of Industry and Security (BIS) has published a final rule amending the Export Administration Regulations (EAR) by adding a new a new Export Control Classification Number (ECCN) series, 0Y521, to the Commodity Control List (CCL) to cover items that warrant control on the CCL but are not yet identified in an existing ECCN. 

The GAO published two decisions sustaining protests by The Emergence Group on the same solicitation. In the first, the GAO found that the agency (i) did not  meaningfully evaluate the relevance of prior contracts in the past performance evaluation and (ii) did not evaluate the protester's proposal consistently with evaluation of other offeror's proposals. Dissatisfied with the results of the corrective action undertaken by the agency in response to the first protest, the protester filed a supplemental protest against the revised past performance evaluation, which the GAO subsequently found to be unreasonable and not in accordance with the solicitation's evaluation criteria.

The GAO sustained a protest by DNO, Inc., because the procuring agency did not properly investigate whether the solicitation should have been set aside for small businesses.

In HP Enterprise Services, LLC, a successful post-award protest, the Court of Federal Claims held that the agency wrongfully awarded a contract to a higher-priced offeror on the basis of an unstated evaluation criterion improperly used to disqualify the protester's proposal.

The CBCA has published several decisions.

Fluor Intercontinental, Inc. lost on every one of its many construction contract claims because (i) the Government did not warrant that infrastructure would be in place at the construction site; (ii) the contract included only a  performance specification and placed the onus of performing a site investigation and the risk of a faulty design on the contractor; (iii) changes in contractor's design for a perimeter wall were its own responsibility; and (iv) the contractor failed to give proper notice to the Contracting Officer concerning its claim for constructive acceleration and did not receive directions to accelerate from the Contracting Officer.

In CDA, Inc., the CBCA upheld both (i) a termination for cause of a commercial items contract on the basis of late delivery (despite the lack of cure notice) because the contractor failed to meet numerous schedules and reported it could not timely meet other contract requirements, and (ii) the Government's subsequent assessment of excess reprocurement costs because the Government showed (a) the reprocured supplies or services were the same as or similar to those involved in the termination; (b) the Government actually incurred excess costs; and (c) the Government acted reasonably to minimize excess costs.

In The Timber Harvester, Inc., which involved primarily issues of contract interpretation, the CBCA denied the Government's claim for allegedly uncut timber under a scaled salvage timber sale contract because the Government did not prove that any remaining timber met the contract's utilization standards, as defined by its sawtimber and merchantability descriptions.

In The Carrington Group, Inc., the CBCA concluded that a contract stating it was an indefinite delivery/indefinite quantity contract, but lacking any minimum quantity, was defective and that, therefore, the contractor was entitled  "only to the compensation agreed upon in the contract attributable to the work performed, with the reasonable value of the work measured by the contract prices." The Board also denied the contractor's claim submitted long after the conclusion of contract performance for services not listed in contract schedule absent proof Government actually ordered the services. My favorite part of the decision, however, is the following lament by the Board:

The terms of this contract, Carrington’s performance and billing, and the VA’s administration and payments were presented to the Board in a jumble of facts with notable gaps that took significant time to unravel. The VA appears to have used numbers for funding mechanisms and obligations interchangeably with contract numbers, making the tracking of payments, contracts, and obligations very difficult to sort out. Whatever system the VA had was understood, at best, only by the VA, or, possibly, not at all. The confusion caused by funding issues complicated what should have been a very simple procurement. 

Even construing the board filings by the pro se claimant liberally, the CBCA denied  various payment, termination, and harassment claims by House of Joy Transitional Programs as entirely unsupported.

DFARS Case 2011-D056: DoD is proposing an extensive set of changes to many parts of the the DFARS in order (i) to clarify the clauses required in commercial item contracts and the flowdowns applicable to subcontracts under such contracts and (ii) to simplify the prescriptions for such clauses. Comments are due by June 4.  

In SWR, Inc., the ASBCA denied the Government's motion to dismiss a claim for lack of jurisdiction and held that the contractor took sufficient steps under 11 U.S.C. 1123 to preserve its claim in bankruptcy by adequately disclosing the claim in its reorganization plan and disclosure statement.

In Raytheon Co., the Court of Federal Claims held that  the CDA's six-year statute of limitations barred a Contracting Officer's decision on a  government claim issued ten years after the advance agreement on allowable costs that the decision purported to challenge and  that (i) the continuing claims doctrine, (ii) equitable tolling under the FAR "Credits" clause, and (iii) the accrual suspension doctrine did not apply in this situation. The Government's claim had been based on an audit conducted after the expiration of the six-year period, apparently motivated by criticism of the original audit conducted within that period. 

In Clinton Reilly, the court held that a bid protest filed more than nine months after the plaintiff learned of the facts forming the basis of the protest was barred by the doctrine of laches.

In The Electronic On-Ramp, Inc., a successful pre-award protest, the plaintiff convinced the court that the Government's rejection of a proposal as late was unreasonable because the electronic copy had been delivered on time and the only problem with delivery of the hard copy was the Government's delay after the plaintiff's courier made it to the security checkpoint on time.

In Size Appeal of Ma-Chis Lower Creek Indian Tribe Enterprises, Inc., the SBA's OHA held that a firm lacked standing to appeal statements about its own size included in another firm's size determination (but was free to raise those issues if its own size were ever challenged).

DFARS Case 2012-D018: Effective April 30, the DFARS is being amended to reduce the threshold for DoD peer reviews of noncompetitive contracts from the current level of $1 billion to $500 million. 

DFARS Case 2012-D016: An interim rule amends the DFARS to implement a section of the National Defense Authorization Act for Fiscal Year 2012, which requires that the statutory limitation on the acquisition of right-hand drive passenger sedans be included on the list of dollar thresholds subject to inflation adjustment. Comments are due by May 29.

DFARS Case 2011-D048: A final rule amends the DFARS to separate provisions and clauses that are currently combined in order to comply with DFARS drafting conventions concerning the distinction between (i) solicitation provisions that are not part of the resulting contract and (ii) contract clauses.

DFARS Case 2012-D020: A final rule amends the DFARS to remove a congressional notification requirement for single source task-order or delivery-order contract awards over $103 million. 

A technical amendment to the DFARS adds a section 203.806 to provide an address for reporting suspected lobbying violations.

The Guzar Mirbachakot Transportation protest is an example of the closer review a protester may receive at the Court of Federal Claims as opposed to the GAO. In this case, the GAO had dismissed a protest based on (i) the agency's assertion that the solicitation prohibited the submission of proposals via "zip" files and (ii) a message sent to by the agency's contract specialist to the protester just a few hours before the proposal deadline stating that such files were prohibited. The Court of Federal Claims, however, allowed expert testimony and determined (i) that the solicitation contained a latent ambiguity on the issue, (ii) that the protester's interpretation was reasonable, and (iii) that the last-minute email from the contract specialist was not enough to change the court's opinion, especially because the agency had waived other responsiveness requirements for other offerors. Of course, a protest at the court is generally much more expensive than one at the GAO, but you get what you pay for.

The Court of Federal Claims held that, pursuant to 10 U.S.C. 2304c(e)(1), it lacked subject matter jurisdiction over a protest filed by Mission Essential Personnel, LLC against corrective action undertaken by the agency as a result of a prior GAO protest because Mission Essential's complaint was filed "in connection with" the issuance of a task order.

The CBCA did not buy National Fruit Product Co.'s arguments that its late deliveries were excused by a stinkbug outbreak, but concluded the Government had vastly overstated the amount of liquidated damages that were due. The contractor and the Government each interpreted the liquidated damages provision in an equally preposterous manner: the contractor claimed only $33.53 were due, and the Government had assessed more than $500,000. The Board concluded that the proper interpretation of the clause resulted in an assessment of $9,650. 

The GAO sustained a protest by Y&K Maintenance, Inc., because the agency did not evaluate the protester's key personnel in accordance with the solicitation's stated evaluation criteria.

Effective April 26, NASA is adopting, without change, a final rule amending the NASA FAR Supplement (NFS) to update the "Award Fee for Service Contracts" clause (NFS 1852.216–76) in order to clarify that the amount of award fee held in reserve, if any, shall not exceed $100,000 for the contract, and add similar language to the "Award Fee for End-Item Contracts" clause (NFS 1852.216–77) to allow the Contracting Officer to hold in reserve fee payments at a not-to-exceed amount of $100,000 in order to protect the Government’s interests relative to an orderly and timely closeout of the contract. 

In InGenesis, Inc., a bid protest based on the plaintiff's disagreement with a NAICS decision by the SBA's OHA, the Court of Federal Claims, like the OHA before it, upheld the Contracting Officer's choice of NAICS code 621111 (Physician's Services) as opposed to 622110 for the solicitation at issue.

In Maggie's Landscaping, Inc., the ASBCA denied an EAJA application, in part because the Government's litigation position, though incorrect, was substantially justified and also because it was the Board, on its own initiative, which had to search the record to come up with evidence to support one of the contractor's original claims.

In Weigel Hochdrucktechnik GmbH & Co. KG, which involved a contract performed in Spain, the ASBCA (i) held that the Government had failed to prove that the water testing it required the contractor to perform was required by either the contract or Spanish law and (ii) denied the contractor's claim for waterproofing certain containers because the Government merely acquiesced in contractor's (ultimately unsuccessful) suggested method for doing so, without waiving the contract requirement that they be waterproof. 

Numerous corrections have been issued to the original Federal Register pages (see March 2 entry below) concerning the changes to FAR Part 52 related to FAR Case 2010-015 (Women-Owned Small Business (WOSB) Program) and FAR Case 2011-030 (New Designated Country (Armenia) and other Trade Agreements Updates).

In NAICS Appeal of Hummingbird Solutions, the SBA's OHA dismissed, as untimely, a NAICS appeal filed more than 10 days after issuance of the solicitation.

I've fixed quite a few broken links to Federal Circuit decisions (and have corrected a few additional citations) on the Winstar decisions page. 

In Crosstown Courier Service, Inc., the GAO held that the VA violated the requirement of the Veterans Benefits, Health Care, and Information Technology Act of 2006 by issuing an FSS acquisition without having first determined whether two or more SDVOSBs could meet the agency's requirements at a reasonable price. 

In Boston Harbor Development Partners, LLC, the Court of Federal Claims held that the protester lacked standing because its complaint (that a lease should be terminated to allow the procuring agency to complete corrective action in response to a prior protest without possible bias towards the current awardee in the reevaluation) was purely speculative.

In Contracting Consulting Engineering LLC, the court included a good discussion of the standards for permitting supplementation of the administrative record and (tongue-in-cheek, I hope, since it works so well on that level) responded to the plaintiff's proffer of a set of procurement regulations:

Defendant is correct that Army regulations are legal authorities and not a matter for supplementation. They can be cited as authorities in plaintiff’s brief, and the court will regard them as authorities in support of plaintiff’s moving brief. The court is grateful nonetheless that plaintiff provided the court with a copy of the 700 pages of regulations.  

Leaving the effective date to be announced in the future, the State Department has issued a final rule that will (i) amend the ITAR to implement the Defense Trade Cooperation Treaty between the United States and the United Kingdom and (ii) identify (via a supplement) the defense articles and defense services that may not be exported pursuant to the Treaty. 

The GAO sustained a protest by Sea Box, Inc., and held that (i) the failure of the protester's quotation in response to an RFQ to include the 90-day acceptance period stated in the solicitation did not render it unacceptable because quotations are not offers, and (ii) the awardee's failure to comply with the RFQ's requirements to submit technical information concerning its quotation meant the record did not support the agency's decision that its quotation was acceptable.

In Size Appeal of Fuel Cell Energy, Inc., the SBA's OHA held that (i) the Area Office correctly dismissed a protest as insufficiently specific, and (ii) allegations regarding an alleged violation of the ostensible subcontractor rule raised for first time on appeal would not be considered.

In Matter of RUSH-LINK ONE Joint Venture, the OHA upheld the determination that the protested firm was not a properly constituted SDVOSB joint venture because (i) the SDV did not (a) own and control the SDVOSB member (having received commercially irregular loans from the minority owners) or (b) control the board of directors of the joint venture; and (ii) the proposed project manager for the contract at issue was not an employee of the SDVOSB.

The ASBCA has published four decisions denying various motions for summary judgment and for reconsideration, which you can find here.  

In denying Veleta Corp.'s claim under the "Changes" clause, the CBCA held that the contractor failed to present any evidence of  either (i) work beyond that required by the specifications specs or (ii) increased costs caused by this allegedly extra work.

In Walsh/Davis Joint Venture, the CBCA held that an unambiguous sentence in various contract modifications barred the contractor from passing through its construction subcontractor's subsequent claims for cumulative labor inefficiencies.

In Communication Construction Services, the Court of Federal Claims ordered additional briefing on the issues of what type of (i) record (standard administrative record or something broader) and (ii) procedural vehicle (cross motions (a) for judgment on the administrative record or (b) for summary judgment) are to be used in the relatively rare bid protests brought under 28 U.S.C. 1491(a) (for breach of the implied contract of fair dealing) as opposed to the more common 1491(b) protests.  

The same court dismissed two contract claims for lack of subject matter jurisdiction.

In L-3 Services, Inc., Aerospace Electronics Division, the court noted it lacked jurisdiction over claims under maritime contracts and that allegations of violations of the FAR and the Antideficiency Act were not sufficient to establish jurisdiction.

In Township of Saddle Brook, the court dismissed a claim based on an implied-in-fact contract (because the allegations in the complaint were not adequate to establish either the mutual intent to contract or an exchange of consideration) and held there is no jurisdiction in the court over claims for promissory estoppel.

Aldevra won its GAO protest because the VA failed to consider whether the FSS acquisition should have been set aside for SDVOSBs.

Proposed rule changes would amend HUD's acquisition regulation (HUDAR) to (i) remove provisions that are now obsolete, (ii) refine provisions for approving requests for deviation from the HUDAR, (iii) update provisions that address the organizational structure of HUD, and (iv) add provisions on contractor record retention. Comments are due by May 15.

Digital Technologies won its GAO protest because the price realism analysis lacked a rational basis: the agency failed to follow the solicitation's clear requirement to consider the proposed prices of all offerors in determining whether the  protester's price was realistic.

The GAO sustained a protest by ERIE Strayer Co. because the agency conducted discussions only with the awardee and downgraded the protester's proposal in an area concerning which the agency could have, but did not, request clarifications.

In  Solute Consulting, the Court of Federal Claims held it lacked jurisdiction over a post-award protest of an agency's evaluation of task order proposals (and rejected the protester's definition of the term "scope" in its attempt to fit its protest into the exception for protests of task order awards beyond the scope of the underlying contracts).

In Mission Critical Solutions, the Court of Federal Claims denied the plaintiff's claim that the agency had violated the court's injunction against a contract award because (i) the new award was not for the same contract covered by the injunction, and (ii) the Government had a good faith basis to interpret the injunction as applying only to the initial procurement, given significant intervening changes in the applicable statute occurring after the date of that procurement.

In Contracting Consulting Engineering LLC, the court denied the protester's motion for a preliminary injunction in a post-award protest even though the protester raised "troubling" allegations concerning the agency's evaluations of the experience of the awardee's and protester's key employees (but still set a briefing schedule for a decision on a permanent injunction).

In JRS Management, the CBCA dismissed an appeal for lack of jurisdiction (no contract) because the contractor had responded to a government order for services by announcing it was substituting a different individual from the one specified in the order, thus making a counteroffer the Government then rejected.

In Bannum, Inc., the CBCA dismissed an appeal involving a claim barred by the CDA's six-year statute of limitations because it was filed more than six years after it originally accrued.

The SBA's OHA has published several decisions. 

In Matter of HANA-JV, the OHA affirmed a finding that a JV failed to meet multiple requirements at 13 C.F.R. 125.15 for qualified SDVOSB JVs, including the requirement to designate an SDVO SBC as the managing venturer of the joint venture.

In Size Appeal of Advent Environmental, Inc., the OHA affirmed the Area Office's finding of affiliation through common ownership and control and held that, pursuant to 13 C.F.R. 121.103(c)(2), one of the four owners of 25% shares in a company (who also served on its board of managers) had the power to control it and was not merely a passive investor.

In Size Appeal of BR Construction, LLC, the OHA held that an appellant was barred by the doctrine of issue preclusion from raising the same issues decided against it in an earlier appeal.  

DFARS Case 2011-D041: A final rule amends the DFARS (i) to require higher-level approval for commercial item determinations for acquisitions exceeding $1 million when the determination is based on "of a type" or "offered for sale" language contained in the definition of commercial item and (ii) to clarify approval requirements for determinations for acquisitions of services exceeding $1 million, which utilize Part 12 procedures but which do not meet the definition of "commercial item." 

DFARS Case 2012-D006: A proposed rule would revise the DFARS clause at 252.225–7040 ("Contractor Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside the United States" to expand coverage on contractor requirements and responsibilities regarding alleged crimes by or against contractor personnel to apply to contingency operations, humanitarian or peacekeeping operations, or other military operations when the latter are designated by the combatant commander at any location worldwide (these requirements currently apply only to DoD contracts performed in Iraq and Afghanistan). Expanding the coverage worldwide will provide contractors the guidance they need to take actions if such alleged offenses occur.  Comments are due by May 11. 

In Joyce Terry d/b/a Shirt Shack, the Court of Federal Claims dismissed (i) a discrimination claim for lack of jurisdiction, (ii) a  promissory estoppel claim because it was based on a contract implied in law, for which the Government has not waived sovereign immunity, and (iii) breach claims for failure to allege facts that establish any breach.

Numerous corrections have been issued to the original publications of the final rules related to (i) FAR Case 2010-015 (Women-Owned Small Business (WOSB) Program) and (ii) FAR Case 2011-030 (New Designated Country (Armenia) and Other Trade Agreements Updates). See March 2 entry below for the original publications.

FAC  2005-56 has been published and includes only the following item:

FAR Case 2012-004 ("United States-Korea Free Trade Agreement"): Effective March 15, an interim rule amends FAR Part 25 (and corresponding clauses in Part 52) to implement the United States-Korea Free Trade Agreement (see the United States-Korea Free Trade Agreement Implementation Act (Pub. L. 112–41) (19 U.S.C. 3805 note)). Comments are due by May 7.

In M.E.S., Inc., the ASBCA decided several claims by a construction contractor for alleged changes and compensable delays (including claims for extended field and home office overheads) opposed by various government defenses, including the sovereign acts doctrine, concurrent delays, and lack of proof of quantum.

In Delta Industries, Inc., the ASBCA held that a purchase order was an offer that lapsed when Delta failed to deliver within the required time.

The award for zaniest judicial reasoning of the year goes to the Court of Appeals for the Federal Circuit's majority opinion in The Minesen Co. v. McHugh, enforcing a provision in the "Disputes" clause of a NAFI contract that stated the ASBCA's decision on any appeal would be final and unreviewable. Following are just a few of the lapses in logic that permeate the opinion. 

First, the court declines to rule whether (post Slattery v. United States, 635 F.3d 1298 (Fed. Cir. 2011)) the CDA even applies to NAFI contracts, but then proceeds to base its decision largely on its interpretation of the CDA. 

Secondly, the court repeatedly refers to the parties' 'mutual agreement' in the contract that the ASBCA's decision would be final, as if a government contractor ever has a say in the language of a "Disputes" clause. 

Third, the court tries to avoid the clear language of 41 U.S.C 7107(1) (which specifically provides that "[t]he decision of an agency board is final, except that . . . a contractor may appeal the decision to the United States Court of Appeals for the Federal Circuit within 120 days from the date the contractor receives a copy of the decision. . . .") by noting that the provision does not state it cannot be waived, while 41 U.S.C. 7104 (which the court suggests is the analogous provision that applies to disputes at the Court of Federal Claims) can be. The latter provision states that a contract provision may not waive the contractor's option to appeal a Contracting Officer's decision to the Court of Federal Claims--it says nothing at all about whether the parties could agree that the decision of the Court of Federal Claims would be unreviewable. In fact, nothing in the CDA, itself, states that a decision of the Court of Federal Claims can be appealed to the Court of Appeals for the Federal Circuit. So, the court disregards the only language in the CDA that gives contractor the right to appeal to the  court (without qualification). 

Finally, the court includes several passages from the legislative history of the CDA that allegedly support its position, not one of which really does. Here is an example:

Nor does anything in the CDA’s legislative history demonstrate that Congress did not intend for parties to be able to agree to the finality of ASBCA decisions. On the contrary, Congress recognized first among the express purposes of the CDA “induc[ing] resolution of more contract disputes by negotiation prior to litigation,” S. Rep. No. 95-1118, at 1 (1978), and “encourag[ing] the informal, quick resolution of disputes before they can develop into expensive and time-consuming administrative tangles or litigation,” 124 Cong. Rec. 31,645 (1978).   [Emphases added] 

Those statements reflect one aim of the CDA: to encourage resolution of claims before they are appealed to either a board or the Court of Federal Claims. They say nothing about whether the parties may agree a board's decision will be final and unreviewable.

There probably was a way to reach the same result using logic--the court opted for gibberish. 

In Size Appeal of Hummingbird Data Systems, LLC, the SBA's OHA held that the Area Office was correct in dismissing a size protest because the protester had been eliminated from the competition for reasons unrelated to size and, therefore, lacked standing. 

Federal Acquisition Circular (FAC) 2005-56 has been published and includes the following seven items plus technical amendments:

FAR Case 2010-015 ("Women-Owned Small Business (WOSB) Program"): Effective April 2, a final rule adopts, with changes, the interim rule amending the FAR to implement the SBA's regulations establishing the WOSB program, specifically to authorize the restriction of competition for federal contracts in certain industries to economically disadvantaged women-owned small business (EDWOSB) concerns or WOSB concerns eligible under the WOSB program. 

FAR Case 2008-030 ("Proper Use and Management of Cost-Reimbursement Contracts"): Also effective April 2, a final rule adopts, with changes, the interim rule amending the FAR to implement a section of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 that addresses the use and management of cost-reimbursement contracts, including ensuring that a properly certified and trained Contracting Officer's Representative (COR) be appointed to assist the Contracting Officer in the administration of such contracts, unless agency procedures require the Contracting Officer to perform all such duties.

FAR Case 2007-012 ("Requirements for Acquisitions Pursuant to Multiple-award Contracts"): Effective April 2, a final rule adopts, with changes, the interim rule amending the FAR to implement a section of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 to enhance competition in the purchase of supplies and services by all executive agencies under multiple-award contracts. Specifically, the threshold amount in FAR 8.405-3(a)(7)(v) is changed to read $103 million, and the following language has been added as FAR 8.405-3(c)(3): "‘The ordering activity is responsible for considering the level of effort and the mix of labor proposed to perform a specific task being ordered, and for determining that the total price is reasonable through appropriate analysis techniques, and documenting the file accordingly."

FAR Case 2011-004  ("Socioeconomic Program Parity"): Effective April 2, a final rule adopts, with changes, the interim rule amending the FAR to implement a section of the Small Business Jobs Act of 2010 that clarifies that there is no order of precedence among the small business socioeconomic contracting programs and that contracting officers may exercise discretion when determining whether an acquisition will be restricted to small businesses participating in the 8(a) Business Development Program (8(a)), Historically Underutilized Business Zones (HUBZone) Program, Service-Disabled Veteran-Owned Small Business (SDVOSB) Program, or the WOSB Program. 

FAR Case 2012-002  ("Trade Agreements Thresholds"): Effective today, a final rule amends the FAR to incorporate adjusted thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative.

FAR Case 2011-030  ("New Designated Country (Armenia) and Other Trade Agreements Updates"): Effective today, a final rule amends the FAR (i) to add Armenia as a designated country, due to the accession of Armenia to membership in the World Trade Organization Government Procurement Agreement and (ii) to update the lists of countries that are parties to the Agreement on Trade in Civil Aircraft. 

FAR Case 2010-009 ("Government Property"): Effective April 2, a final rule amends the FAR to clarify requirements concerning reporting, reutilization, and disposal of government property, by, inter alia, (i) adding a definition of "surplus property" at FAR 2.101; (ii) defining "loss of Government property" at FAR 45.101; (iii) using the term "loss" consistently in lieu of "loss, damage, destruction, or theft"; (iv) clarifying, and distinguished among, the responsibilities and authorities of the contracting officer, property administrator, plant clearance officer, and contractor; (v) reorganized and clarifying procedures and responsibilities for disposal of government property (see FAR subpart 45.6); and (vi) clarifying and updating the government property clause at FAR 52.245–1 to conform with revisions to FAR part 45.

The Department of Energy has extended (to March 16) the period for providing comments in response to its proposed rule to revise existing regulations covering contractor legal management requirements and make conforming amendments to the Department of Energy Acquisition Regulation (DEAR) (76 FR 81408). 

The Court of Federal Claims published two decisions concerning government motions to dismiss various aspects of claims for alleged government breaches of a settlement agreement (Kenney Orthopedic) and non-disclosure and CRADA agreements (Demodulation, Inc.).  

In Muhtesem Co., the ASBCA granted the Government's motion to dismiss (for lack of jurisdiction) the following elements of damages claimed to result from Government's late final payment under a contract: interest on borrowing; loss of reputation; and loss of anticipatory profits on other business opportunities.

In Southern Defense Systems, Inc., the ASBCA held that the contractor was not entitled to receive the same (higher) pass-through mark-up on a particular delivery order as stated in the basic contract (rather than the lower rate negotiated for the delivery order) because the contractor did not demonstrate there was a patent or latent ambiguity, a violation of the FAR, a mistake, or bad faith, coercion, or misrepresentation by the Government.

In Hartman Walsh Painting Co., the Board denied the contractor's claim for extra work on a painting contract and held that the Government's approval of one of the contractor's submittals did not preclude the Government from later enforcing compliance with specification.

The GAO has published two more decisions sustaining  protests.  

In InfraMap Corp., the GAO held that the agency's estimate of future underground utility relocation work in a solicitation lacked a rational basis and likely was significantly understated. 

In Wisconsin Physician Service Insurance Corp. (which was originally decided in May 2009), the GAO found flaws in the cost realism, technical, and past performance evaluations, as well as a lack of meaningful discussions regarding the protester's past performance. 

In Furniture by Thurston, the Court of Federal Claims held that, although the protester demonstrated that the winning offer failed to comply with a material requirement of the solicitation, the protester's remedy was limited to the recovery of bid and proposal costs because the contract at issue already had been substantially performed. (The court also held that the protester's reorganization in bankruptcy did not affect its standing to protest.)

In Side Bar and Assocs., the CBCA held that the Contracting Officer's belated issuance of a decision on a a claim that already had been properly appealed to the Board from a deemed denial could not affect the Board's jurisdiction over the entire appeal.

In Lawrence Jackson, the CBCA dismissed an appeal (with prejudice) for failure to prosecute after the appellant repeatedly ignored the Board's orders to file a Complaint or to designate its notice of appeal as its Complaint.

DFARS Case 2011-D033: DoD is adopting as final, without change, an interim rule amending the DFARS (i) to implement those sections of the National Defense Authorization Acts for Fiscal Years 2010 and 2011, providing increased authorities to reduce or deny award fees to companies found to jeopardize the health or safety of Government personnel and (ii) to modify the requirement that information on the final determination of award fee be entered into the Federal Awardee Performance and Integrity Information System (FAPIIS).

DFARS Case 2009-D038: DoD is adopting as final, with changes, an interim rule amending the DFARS to improve the effectiveness of DoD oversight of contractor business systems. 

DFARS Case 2012-D024: DoD is amending the DFARS to extend the date for submittal of applications under the DoD Mentor-Protégé Pilot Program for new mentor-protégé agreements to September 30, 2015 and the date mentors may incur costs and/or receive credit towards fulfilling their small business subcontracting goals through an approved mentor-protégé agreement to September 30, 2018.

DFARS Case 2012-D026: DoD is amending the DFARS extend the program period for the DoD Test Program for Negotiation of Comprehensive Small Business Subcontracting Plans through December 31, 2014. 

DoD's Per Diem, Travel and Transportation Allowance Committee has published Civilian Personnel Per Diem Bulletin Number 280, which lists revisions in the per diem rates prescribed for U.S. Government employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and Possessions of the United States. 

In a Memorandum of February 21, 2012, the President has directed federal agencies to take various steps to increase federal government procurement of biobased and sustainable products.  

Effective March 26, the SBA is increasing the small business size standards for 22 industries in NAICS Sector 48–49, Transportation and Warehousing, while retaining the current standards for the remaining 37 industries in that Sector. 

SBA is proposing to increase small business size standards for 28 industries in NAICS Sector 62, Health Care and Social Assistance. Comments are due by April 24.

Effective March 26, the GSA is amending its acquisition regulation (the GSAR) to  modify acquisition-related thresholds as follows: (i) the GSAR clause at 552.219–71, Notice to Offerors of Subcontracting Plan Requirements, is revised by removing "$500,000" and "$1,000,000" and replacing the GSAR text with "$650,000" and "$1,500,000," respectively; and (ii) the GSAR clause at 552.219–72, Preparation, Submission, and Negotiation of Subcontracting Plans, is revised by removing "$500,000" and "$1,000,000" and replacing the GSAR text with "$650,000" and "$1,500,000," respectively.

The Department of the Treasury is proposing to amend its acquisition regulation (DTAR) to implement use of the Internet Payment Platform, a centralized electronic invoicing and payment information system, and to change the definition of bureau to reflect the consolidation on July 21, 2011 of the Office of Thrift Supervision with the Office of the Comptroller of the Currency. Comments are due by April 23.

The Court of Federal Claims' latest opinion in the GTA Containers, Inc., post-award protest replaces its prior decision but just amplifies on the reasoning in the prior case and reaches same result in favor of the protester. See February 7 entry below. 

In Diversified Maintenance Systems, Inc., the court (i) rejected a contractor's argument that the court had jurisdiction over its claim for breach of contract monetary damages under 28 U.S.C. 1491(b) (because such bid protest jurisdiction does not cover claims by contractors involving contract administration after a contract has been awarded) and then (ii) dismissed the suit for lack of  jurisdiction because the contractor did not first submit a certified claim to Contracting Officer, as required by the CDA.

FAR Case 2011-011: A proposed rule would amend the FAR to implement the requirements of the James Zadroga 9/11 Health and Compensation Act of 2010 regarding the imposition of a 2 percent tax on certain foreign procurements. Comments are due by April 23.

In Pacific Gas & Electric Co., a spent nuclear fuel case, the Court of Appeals for the Federal Circuit affirmed the damages award by the Court of Federal Claims in a prior decision favor of the plaintiff.

Somebody must have slipped some happy juice into the GAO's punchbowl because all three of the decisions it published yesterday sustained protests.

In Standard Communications, Inc., the GAO found the agency treated the eventual awardee and the protester differently by permitting only the former to make material changes in its quotation, which rendered its technically unacceptable quote acceptable.

In ITT Systems Corp., the GAO could not locate any explanation in the record for apparent discrepancies (and the lack of a logical connection) between the results of the cost and technical evaluations.

In the long-delayed, published version of its decision in IBM Global Business Services, B-404498, .2 (Feb. 23, 2011), the GAO concluded that the agency had rewarded the awardee's proposal on the basis of an unstated evaluation criterion and that the agency had misled offerors by evaluating on basis of much different quantities than those suggested in the solicitation.

The SBA's OHA has published several size decisions.

In Size Appeal of Nuclear Fuel Services, Inc. , the OHA reversed the Area Office and held that (i) the "present effect" rule did not require a finding of affiliation where discussions between two firms concerning merger or acquisition had not reached the status of an agreement in principle at the time of self-certification (although agreement was reached very shortly thereafter) and (ii) the NAICS code under which size should have been assessed was the one the prime contractor had assigned to the RFP in question rather than the NAICS code for the contested firm's primary industry.

In Size Appeal of Tyler Construction Group, the OHA affirmed the Area Office's dismissal of an untimely protest against a firm's size status for task order award where the Contracting Officer had not requested recertification in connection with the award.

In Size Appeal of Santa Fe Protective Services, Inc., the OHA affirmed the Area Office's finding that a firm did not run afoul of the ostensible subcontractor rule because it would be providing the large majority of what the Area Office had determined were the primary requirements of the solicitation, even though that area of work barely qualified as the primary requirement.

In TriCenturion, Inc.; SafeGuard Services, LLC, the GAO concluded that the cost realism, technical, and past performance evaluations all were insufficiently documented in the record to uphold the agency's award decision. 

Effective March 15, USAID is amending the USAID Acquisitions Regulations (AIDAR) to implement a pilot program for a Partner Vetting System for USAID assistance and acquisition awards, the purpose of which is to help ensure that USAID funds and other resources do not inadvertently benefit individuals or entities that are terrorists, supporters of terrorists or affiliated with terrorists, while also minimizing the impact on USAID's programs and its implementing partners.

Effective February 29, EPA will amend the prescription in the EPAAR for the work assignment clause in order to provide clearer and more detailed instructions for the use of the clause. 

The ASBCA published several decisions, including the following:

In Space Gateway Support, LLC, the ASBCA held that (i) the costs of accrued sick leave hours paid to employees in cash at the termination of their employment in accordance with the terms of applicable collective bargaining agreements were allowable fringe benefits under FAR 31.205-6, and (ii) the Government's contrary interpretation of the contract would have required a deviation from the FAR that the agency had not obtained.

In ACR Machine, Inc., the ASBCA held that a contractor's email to the Contracting Officer requesting an extension of 120 days to a purchase order was a " request for an adjustment in contract terms" under the definition of a "claim" in the "Disputes" clause  (FAR 52-233.1) and, thus, was a claim under the CDA.

In General Dynamics Ordnance and Tactical Systems, Inc. (a dispute involving unanticipated costs associated with the Government's allegedly inadequate estimates concerning ammunition quantities required by the contract), the ASBCA held that the Government's willful failure to comply with the Board's orders to turn over documents to the contractor during discovery merited the sanction of an adverse inference that the documents, i f disclosed, would have shown that there was relevant information available to the Government that it failed to consider when developing the estimates in question, thereby causing the estimates to be inadequately or negligently prepared. 

The GAO has adopted the FAR's debarment and suspension procedures.

The GAO sustained a protest by MANCON because the acceptability of the offeror's small business subcontracting plan should have been a responsibility issue, not a pass/fail reason for evaluating the proposal as technically unacceptable.

Effective March 12, the SBA is (i) increasing 37 small business size standards for 34 industries and three sub-industries ("exceptions" in SBA’s table of small business size standards) in NAICS Sector 54 (Professional, Technical, and Scientific Services), (ii) retaining the current standards for the remaining industries in NAICS Sector 54, (iii) increasing one size standard in NAICS Sector 81 (Other Services), and (iv) removing "Map Drafting" as the "exception" to NAICS 541340 (Drafting Services). 

In Hillcrest Aircraft Co., the CBCA denied the contractor's claim for reimbursement of federal excise taxes in a contract containing the unique commercial item tax clause at FAR 52.212-4(k).

In Whiteriver Construction, Inc., the CBCA held that a letter submitted to Contracting Officer labeled as "final certified claim" and including a CDA certification (submitted to correct a prior letter that did not include a certification) constituted a CDA claim even though it did not specifically request a decision.

In TKC Aerospace, Inc., the CBCA interpreted the contract as making the contractor responsible for the costs of repairing corrosion in an aircraft it was leasing to the Government and for the costs of "downtime" during such repairs.

In J.F. Taylor, Inc., the ASBCA determined that the executive compensation paid by a contractor was reasonable because the DCAA's method for challenging that compensation suffered from unrebutted statistical flaws.

In Lan-Cay, Inc., the ASBCA upheld a termination for default, rejecting the contractor's contentions that the Government had (i) wrongfully withheld progress payments and (ii) audited and inspected the contractor's work excessively.

In GTA Containers, Inc., the Court of Federal Claims issued a permanent injunction against performance of a delivery order based on the fact that the awardee's submission to the SBA for purposes of a post-award size determination indicated the awardee did not really intend to subcontract with a firm it had identified in its bid as a subcontractor, a representation the agency's evaluators had relied on in favorably evaluating the awardee's proposal. Also interesting is the court's refusal to acquiesce in the corrective action undertaken voluntarily by the procuring agency during the pendancy of the protest, i.e., terminating all but what the agency regarded as the essential portions of the original delivery order. 

In Size Appeal of DoverStaffing, Inc., the SBA's OHA affirmed the Area Office's finding of affiliation under the ostensible subcontractor rule due to unusual reliance on a subcontractor because, inter alia, the protested firm intended to hire its key employees from the sub and relied almost entirely on the sub's past performance for the past experience part of the proposal.  

In Sharp Electronics Corp., the CBCA held that a purchase order provision establishing a cancellation charge if the Government did not extend a 48-month, lease-to-own term beyond the first 12-month period was valid and enforceable against the Government.

In its latest CRAssociates decision, the Court of Federal Claims denied the protester's request for a stay pending its appeal of the court's prior decision denying the protest (see January 24 entry below).

In a final rule effective today, the Department of Commerce's Bureau of Industry and Security (BIS) has amended the Export Administration Regulations (EAR) to add a reference to the Iran Sanctions Act of 1996 (ISA), which states BIS’s licensing policy for export and reexport transactions that involve persons sanctioned pursuant to certain enumerated statutes, including its general policy of denying export and reexport license applications in which a person sanctioned by the State Department under the ISA is a party to the transaction.

In an interesting reverse twist on the typical mistake-in-bid case, the Court of Federal Claims held, in the Virgin Islands Paving bid protest, that the agency lacked a rational, post-award, basis to reject the awardee's bid (and then award to the second-low bidder) on the basis of "mistakes" in the awardee's bid after the agency originally had determined (preaward) that neither the awardee's nor the second-low bidder's bids were mistaken, in part because they were comparable to one another. 

DoD's e Per Diem, Travel and Transportation Allowance Committee has published Civilian Personnel Per Diem Bulletin Number 279, which lists revisions in the per diem rates prescribed for U.S. Government employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and Possessions of the United States.

DFARS 2010-D011: DoD is publishing a final rule, effective January 30, requiring "major contractors" (i.e., those whose covered segments allocated a total of more than $11,000,000 in IR&D/Bid and Proposal (B&P) costs to covered contracts during the preceding fiscal year) to report IR&D projects to the Defense Technical Information Center (DTIC) using the DTIC’s on-line input form and instructions at this site. 

DFARS 2011-D057: Another final rule, also effective January 30, amends the DFARS to add Armenia as a World Trade Organization Government Procurement Agreement country and a designated country, due to the accession of Armenia to membership in the World Trade Organization Government Procurement Agreement.

DFARS Case 2012-D005: DoD is amending the DFARS to to incorporate adjusted thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative. Additionally, this rule includes language in prescriptions for use of contract clauses intended to clarify their applicability to commercial items.

DFARS Case 2011-D045: DoD proposes to amend the FAR to provide detailed guidance and instructions on the use of the performance-based payments analysis tool. Comments are due by March 30.

DFARS Case 2011-D052: DoD is proposing to amend the FAR to update the form used by contractors to request shipping instructions and the associated contract clause and clause prescription to cover both commercial and Government bills of lading, and to relocate the coverage within the DFARS. Comments are due by March 30.

In The DIRECTV Group, the Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims' decision concerning the appropriate segment closing adjustments under CAS 413 when the sale of two segments involved the transfer of defined benefit pension plans.

In Travelers Casualty & Security Co. of America, the Court of Federal Claims held that, given the Anti-Assignment Act, a general liability insurer (as opposed to a surety) does not have standing to sue Government for breach of contract to recover amounts it paid to its insured, even under a theory of equitable subrogation. 

In Simulation Technology, a CDA jurisdictional decision, the court dismissed an excusable delay claim that was not sufficiently similar to the claim that had been previously presented to the Contracting Officer to have put him on notice of it.

In Parsons-UXB, Joint Venture, the ASBCA granted the contractor's motion to exclude an export report and testimony based on that report because nothing in the proffered evidence required expert testimony: "[The proffered] opinion is not based upon any 'scientific, technical, or other specialized knowledge' and does not 'help the trier of fact.' None of the facts described by [the proffered expert] require any expertise to decide them. All of them are within our competence to determine as the trier of fact. Accordingly, his opinion about them is of no help. Additionally, [the proffered expert's] opinion of the meaning of the word 'foreseeable' relates to an issue of law, and in particular attempts to interpret specialized legal terminology." 

In Singleton Enterprises, the CBCA denied a post-award unilateral mistake-in-bid claim due to a lack of evidence in two areas:  (i) what the bid would have been absent the alleged mistake; and (ii) that government knew, or should have known, of the mistake prior to award.

In Rafael Portillo, the CBCA held that the Government complied with an unambiguous lease provision that permitted it to terminate a lease with 60-days advance notice.

In Dr. Lewis J. Goldfine , the CBCA dismissed (for lack of CDA jurisdiction) a claim for money damages that had not first been submitted to the Contracting Officer for a decision and a claim for cancellation of a BPA (because a BPA is not a contract) even though the BPA repeatedly referred to itself as a contract: "The fact that the BPA which SSA issued to Dr. Goldfine calls itself a contract brings to mind a quotation attributed to President Lincoln: 'If you call a tail a leg, how many legs does a dog have? Four. Calling a tail a leg doesn’t make it a leg.' "

The SBA's OHA has published several decisions--

In Matter of Major Contracting Services, the OHA affirmed the dismissal of an untimely protest of a firm's SDVOSB status because the time period to protest started from the day notice was received by email at 4:43 p.m., which was prior to the 5 p.m. close of business.

In Size Appeal of Trident³, LLC, the OHA overturned the Area Office's size determination because an 8(a) firm's joint venture agreement was approved prior to the award of an 8(a) contract and Area Office lacked the authority to review the underlying, approved mentor-protégé agreement in context of an 8(a) procurement.

In SP Technologies, LLC, the OHA overturned the Area Office's finding of affiliation through identify of interest because there was a clear fracture between the allegedly affiliated firms, and the individual with the alleged identity of interest was only a minority shareholder who did not control the allegedly related firm.

In Alutiiq Diversified Services, LLC, the OHA held that, where the parties to an approved mentor-protégé agreement also had an approved JV agreement for a particular procurement, the Area Office's decision that it did not have the authority to examine whether the members of the joint venture had formed too many such ventures together over the years was correct (because the SBA already had determined that the JV was approved for this particular procurement). 

The GAO published two decisions sustaining protests.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Happy New Year! 

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

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

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

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

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

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

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