|
July 3 |
In
Associated Energy Group, LLC, an unsuccessful protest, the Court
of Federal Claims held that the plaintiff lacked standing to protest
a second sole-source
bridge contract extension because: (i) it failed to express interest
in the bridge contract by submitting a capability statement; and
(ii) it admittedly did not have the capability to timely perform the
bridge contract work.
|
|
July 2 |
In
Size Appeal of RBVetCo, LLC d/b/a Rocky Bleier Construction Group,
the SBA's OHA affirmed the
dismissal of all eight grounds of a size protest because six of them
questioned the conduct of the procurement and were outside the OHA's
jurisdiction and the remaining two were insufficiently specific.
|
|
July 1 |
The GAO sustained a protest by Sparksoft Corp.
because the agency conceded it had treated offerors
disparately in the evaluation of one key personnel position, and the GAO
concluded (despite the agency's denial) that the
error prejudiced the protester.
In
Tri Vet Contracting Co., the CBCA dismissed
an appeal for failure to state a claim because the FFP contract placed the risk of
material price increases (including those allegedly caused by the COVID
pandemic) on the contractor.
In
VSBC Appeal of Acorn Science & Innovation, Inc.,
the SBA's OHA held that the Director of the Veteran Small Business Certification
Program improperly added a requirement for a showing of control not in the
governing regulations in denying a firm's application for SDVOOSB status.
In VSBC Protest of In and Out Valet Co.,
the OHA denied the protest because: (i) despite having outside employment,
the SDV spent the requisite the number of hours each day controlling
the operations of the challenged firm; (ii) the firm established it would contract only 40% of
the work to a subcontractor, which complied with "Limitations on Subcontracting" clause; and (iii) other protest grounds alleging improprieties in
the conduct of the procurement (e.g., misevaluation of proposals) were outside
the OHA's jurisdiction.
In
VSBC Appeal of JBELL LLC,
the OHA upheld the denial of a firm's certification as an SDVOSB because
the applicant submitted contradictory information concerning whether
the SDV controlled the firm, and a revised version of the Operating Agreement not submitted until the appeal was too late. |
|
June 28 |
DFARS Case 2024-D019: Effective August 26, a final rule
amends the DFARS to implement section 2881 of the NDAA for FY 2024,
which increases the statutory fee
limitation at 10 U.S.C. 7540, 8612, and
9540 from six to 10 percent that may be
earned by contractors providing certain
architect and engineering services under
contracts with the Departments of the
Army, Navy, and Air Force.
DFARS Case 2021-D006: A proposed rule would amend
the DFARS to implement section 806 of the NDAA for FY 2021, which amends section 893
of the NDAA for FY 2011. Section 893 of the NDAA for FY
2011 requires a program for the
improvement of contractor business
systems and provides for DoD approval
or disapproval of contractor business
systems. In connection with those evaluations, section 806 of the NDAA for
FY 2021 defines the term "material
weakness," which replaces the term
"significant deficiency."
The OFPP's CAS
Board has released an
advanced notice of proposed
rulemaking to elicit public comments on proposed changes to
conform CAS 408 ("Accounting for costs of
compensated personal absence") and
CAS 409 ("Depreciation of tangible capital assets") to GAAP. Comments are due by August 26.
The CAS
Board has also released a
notice of proposed rulemaking
to elicit public comments on proposed
changes to CAS related
to operating revenue and lease
accounting to conform them with changes in GAAP. Comments are due by August
26. |
|
June 27 |
In BAE Systems Technology Solutions & Services Inc.,
although the protester's OCI allegations were dismissed as
late and its protest that the awardee's revised proposal violated
the corrective action ground rules was denied, the GAO held
that the agency misevaluated
professional compensation by failing to follow the solicitation
requirement that the evaluators compare the costs proposed in the cost proposal with the
approach set forth in the management approach proposal.
In
International Development Solutions, LLC, the Court of Appeals for
the Federal Circuit affirmed the
prior CBCA decision, holding that there was no evidence that the taxes for which contractor
sought reimbursement were actually assessed against, or
paid by, it (as opposed to entities higher up in its business
structure) or were allocable to the task orders at issue. |
|
June 26 |
In PMCG CollaborateUp JV LLC,
the Court of Federal Claims held that the Contracting Officer
had erred in concluding a JV was ineligible for award based on
the preliminary
suspension of one of its members without investigating further when
the firm had challenged the suspension and it was lifted before any task order
awards were made.
|
|
June 25 |
In Accura Eng'g and Consulting Services, Inc.,
the Court of Federal Claims granted the protester's motion
for the award of EAJA attorneys' fees after a successful
bid protest because: (i) the Government's litigation position was based on an
interpretation of the controlling statute that was contrary to its plain
language; (ii) a prior GAO decision favoring the Government was irrelevant,
especially when the GAO's decision did not address the argument that
ultimately prevailed; and
(iii) the fact that only one of several arguments prevailed was irrelevant
to the size of the award because there was a clear win and all the arguments had been
interrelated and directed
at the same result. |
|
June 24 |
The GAO sustained a protest by A Square Group,
LLC because:
(i) the agency's conclusion that the awardee's mitigation plan (a firewall)
adequately mitigated an impaired objectivity OCI was unreasonable because
the plan failed to cover a significant aspect of the work subject to
the OCI; and (ii) the agency failed to evaluate the effect of the mitigation plan on
the awardee's proposed technical approach.
|
|
June 21 |
In
GSI Constr. Corp., the ASBCA denied the
Government's motion for summary judgment because the Government failed
to mention controlling precedent contradicting its position that the
contractor could not recover for a delayed notice to proceed when
there was no date set in the contract by which the notice must be
issued. The rule is that when there is no set date for the notice to proceed,
the Government
still is required to issue the notice within a reasonable time.
In
Lacy Mechanical, Inc., however, the ASBCA granted the Government's
motion for summary
judgment concerning a subcontractor's pass-through claim in a task
order for removal and replacement of anchor cables because:
(i) a bilateral contract modification
that included a release operated as an accord and satisfaction of
the contractor's claim for late
delivery of, or faulty, GFE, and none of the Government's actions after
the modification indicated the Government was continuing to consider
the claim; and (ii) the contractor's alternate theory of recovery
based on an alleged implied-in-fact contract must be denied
because an implied-in-fact contract cannot exist where there is an
express contract covering the same subject matter. |
|
June 19 |
In
HealthRev, LLC, an unsuccessful post-award protest, the Court of
Federal Claims held that: (i) the agency properly evaluated
the offer by a
mentor-protégé joint venture under 13 C.F.R. § 125.8(e) by evaluating each member's
strengths and weaknesses in order to determine the capability of the
joint venture as a whole ("in the aggregate"); and (ii) the agency did not evaluate
proposals disparately or apply unstated evaluation criteria.
|
|
June 18 |
In
Size Appeal of Prak-Integrity JV,
the SBA's OHA held that the appellant lacked standing to protest
another offeror's size because the protester's offer was nonresponsive for
failure to comply with
the solicitation requirement to be registered in SAM, even if the
Contracting Officer had not notified it of its nonresponsiveness.
|
|
June 17 |
In
HELF Investments and Los Portales Assocs., LP, the CBCA denied appeals
from the agency's refusal to reimburse two lessors for
increases in real estate taxes because
the appellants/lessors failed to comply
with lease provisions stating that increases in annual property taxes would be
reimbursed by the agency/lessee only if the lessors submitted invoices and evidence of
payment of the taxes within the times specified in the leases.
In
Size Appeal of Red Orange LLC,
the SBA's OHA upheld the Area Office's application of
an adverse inference to establish affiliation after the challenged firm
failed to provide any information requested by Area Office to respond
to a size protest. The challenged firm argued unsuccessfully that the
emails from the agency requesting information from it had been sent to the
wrong department (accounts receivable). However, the OHA
noted that the emails had been sent to the address of the
firm's President who was listed on the firm's SAM website as
the firm's primary point of
contact.
In Size Appeal of LinTech Global,
Inc., the OHA held that a firm could compete for a small
business set-aside task order
solicitation that did not contain a specific request for size recertification
issued under an FSS unrestricted MAC
contract, despite the fact that, as a result of a merger, the firm had
become other than small between the award of the MAC contract and the
task order solicitation because 13 C.F.R. 121.404(g) only restricts
the agency's ability to count an award to the firm in the agency's small
business contracting goals. |
|
June 13 |
In
Trumble Constr., Inc., an unsuccessful post-award protest, the
Court of Federal Claims held, inter alia, that: (i) under the key management evaluation factor,
the evaluators reasonably assigned deficiencies to the protester's proposal
for failing to demonstrate adequate experience of its proposed managers
after the agency had
communicated those deficiencies to the protester and had given it a
chance to revise its proposal, and the agency was under no
obligation to discuss the deficiencies with the protester further after it failed to
adequately address the deficiencies in its revised proposal; (ii)
similarly, the agency
reasonably assigned a deficiency to the protester for failing to list
its proposed subcontractors, as required by the solicitation, even after
being given a second chance to do so following discussions; (iii) the agency reasonably assigned
the protester a weakness for having only a vague schedule;
(iv) the agency
had a rational basis in the record for amending the solicitation to extend
the performance period; and (v) the agency rationally evaluated
the awardee's price as
fair and reasonable and was not required to compare it to the protester's
lower price because the protester's proposal was unawardable and,
therefore, the agency had no basis to determine that the protester's price was
fair and reasonable.
Catching up on a May decision, in
MPG West, LLC, a decision labeled as nonprecedential, the Court of
Appeals for the Federal Circuit generally affirmed the prior
ASBCA decision, holding that in a contract for the provision of fresh fruits and
vegetables to commissaries in Korea and Japan: (i) the contract gave
the contractor the discretion whether to use local
sources or to import produce and (if contractor chose to import) it
was required to follow applicable regulations; (ii) the Government was not
required to examine the possible price consequences of the new contract model
used in the solicitation and did not undertake to do so; and
(iii) the DCAA did not act in bad faith in
the weekly pricing meetings. However, the court remanded case for further proceedings to determine
whether the Government's requirement to use a specified vendor for bagged salads
followed by the determination that its imported prices were
too high could be a breach because
there was allegedly no local sourcing available for its products. |
|
June 12 |
In
Safal Partners LLC, an unsuccessful post-award protest, the Court
of Federal Claims held that, although the protest was timely
under Blue & Gold Fleet and stated a sufficiently
plausible claim to survive a 12(b)(6) motion to dismiss, the agency did not mislead the protester
by allegedly changing the definition of "strength" from the list of
strengths provided to the protester in an initial debriefing to the
strengths found by the agency after a subsequent evaluation because
"strength" was never a defined term in any version of the solicitation
and the information regarding strengths initially provided to the
protester was too nebulous to have a definition inferred from it.
|
|
June 11 |
In
Percipient.ai, Inc., the Court of Federal Claims initially held
it had bid protest jurisdiction over an allegation that the Government had violated the requirement in 10
U.S.C. § 3453 that defense agencies and their
contractors must acquire commercial products to the maximum
extent practicable. Subsequently, however, the court
vacated its own opinion in an unpublished order and held
it lacked jurisdiction.
Now, the Court of Appeals for the Federal Circuit has
reversed, holding that: (i) FASA's task order bar does
not apply to a protest that does not challenge the issuance
or proposed issuance of a task order and, therefore, is not
"in connection with"
a task order; and (ii) the CoFC has jurisdiction under the
third prong of the Tucker Act 28 U.S.C. § 1491(b)(1) because
the protest was "in connection with" a procurement or
proposed procurement. So, the protest was not "in connection
with" a task order but was "in connection with" a
procurement. I don't know why, exactly, but putting it that
way tickles my funny bone. |
|
June 10 |
Effective August 5, unless significant adverse comments are
received by July 8, a
direct final rule amends
the SBA's regulations to implement section 864 of the NDAA for FY 2024,
which (a)
amends the SDVOSB requirements so
that, effective October 1, 2024, each
prime contract award and subcontract
award counted for the purpose of
meeting the goals for participation by
SDVOSBs in procurement contracts for
federal agencies or federal prime
contractors shall be entered into with
firms certified by VetCert, and (b) creates a grace
period so that firms that file an
application for certification with SBA
by December 22, 2024, may continue to
self-certify for such Federal Government
contracts and subcontracts until SBA
makes a final decision. SDVOSBs that
do not file an application for
certification with SBA by December 22,
2024, or are not certified by SBA’s VetCert program and do not file an
application by the deadline, will not be eligible to
self-certify for such Federal Government contracts or
subcontracts after December 22, 2024.
GSAR Case 2022-G517: Effective July 8, a final rule
amends the GSA's acquisition regulation (GSAR) to add a new provision and
clause to identify single-use plastic free
packaging availability for products
under the Federal Supply Schedules
with the goal of reducing single-use
plastic waste.
FAR Case 2023-001: A proposed rule would amend the FAR to implement
regulatory changes made by the SBA in its
final rule published on October 16,
2020, at 85 FR 66146, to implement
paragraphs (a) and (d) of section 861 of
the John S. McCain NDAA for FY 2019, which add Puerto Rico to the
list of territories from which small
businesses are eligible for preferential
treatment under the SBA mentor-protégé program.
In addition, this rule implements
SBA’s final rule published on August
19, 2022, at 87 FR 50925, to implement
paragraphs (a) and (c) of section 866 of
the NDAA for FY 2021, which add the U.S. Virgin
Islands, American Samoa, Guam, and
the Commonwealth of the Northern
Mariana Islands (CNMI) to the list of
territories from which small businesses
are eligible for preferential treatment
under the SBA mentor-protégé
programs. Section 866 also defines a
"covered territory business" as a small
business concern that has its principal
office located in one of the following: (1)
the U.S. Virgin Islands; (2) American
Samoa; (3) Guam; or (4) CNMI. Sections 861 and 866 created two new
incentives for SBA’s small business
mentor-protégé program for mentor-protégé pairs in which the protégé has its principal office located in the
Commonwealth of Puerto Rico or is a
covered territory business. Specifically,
such a mentor that subcontracts to its
protégé is able to receive positive
consideration for the mentor’s past
performance evaluation and is able to
apply costs incurred for training
provided to its protégé to its
subcontracting plan goals.
In addition, this rule implements
changes SBA made to its regulations to
clarify that: (i) subcontracting plans are not
required from firms owned by an Alaska
Native Corporation because they
are treated as small business concerns
according to statute; and (ii)
prime contractors may rely on a
subcontractor’s representations of its
size and socioeconomic status unless
the prime contractor has reason to doubt
the representations. Comments are due by August 6.
FAR Case 2023-013: A proposed rule would amend the FAR
to implement
regulatory changes made by the SBA in
its final rule published on April 10,
2023 (88 FR 21086) to implement
section 864 of the NDAA FY 2022 (Pub. L. 117–81), which authorizes the SBA's OHA to decide
all appeals from formal status protest
determinations in connection with the status of a HUBZone concern.
Prior to section 864 and SBA’s final
rule, appeals of HUBZone status
determinations were decided by the
SBA’s Associate Administrator, Office
of Government Contracting and
Business Development. This rulemaking proposes to implement SBA’s final rule,
dated April 10, 2023 (a) to specify in the FAR that the OHA is responsible for deciding all
appeals of status protest determinations
for a HUBZone concern, (b) to identify the
information that must be included in an
appeal of a HUBZone status protest
determination, and (c) to remove the
requirement for a HUBZone concern to
represent its status in the SAM, as it is no
longer necessary since HUBZone
concerns are certified by the SBA. Comments are due by August 6. |
|
June 7 |
In
Red Bobtail Transportation, which involves more interesting issues
and analyses than one typically finds in an appeal under the
ASBCA's small claims (expedited) procedure, the Board held,
inter alia, that: (i) the
Government's contention that two claims were actually one was
erroneous because "they were based on different sets of invoices for different missions in different
suites, and therefore involve an examination of different operative facts";
(ii) the limitations period on the claim for improper deductions did not begin to
run before they were actually taken against the invoices being
appealed here; and (iii) the agency's "negative incentives"
taken as deductions in this FFP contract were improper
liquidated damages because they were meant to penalize the contractor
rather than to compensate the Government's for its losses. |
|
June 4 |
In
Fox Logistics & Constr. Co., the Court of Federal Claims held,
inter alia, that: (i) a subcontractor did not have
an implied-in-fact contract with
the Government to be paid directly when the prime encountered financial
difficulties because there was no mutuality of intent since the
Government never accepted any of the subcontractor's proposals and
specifically rejected two of them (e.g., the subcontractor's
demand that it be paid before it returned to work); and (ii) the
sub was
not a third party beneficiary because the Government's letter to the prime
requiring it to, inter alia, agree to a payment plan to get its subs paid
and to establish a special bank account to receive payments intended for
subcontractors, which the Government had a right to view, did not
establish a mechanism for the subcontractor to receive the funds directly.
I have just a hint of heartburn with the second holding
because it seems to me the Government's ultimate aim in of
all the interactions with the prime after it began having
problems paying subs was to get the subs paid, i.e.,
to benefit the subs, which is supposed to be the crucial
element in establishing third party beneficiary status.
In
US Pan American Solutions LLC, the ASBCA found a contractor's notice of appeal from
a default termination was untimely
because: (i) there was sufficient evidence (including its President's admission)
to establish when the contractor received the decision; and
(ii) the Contracting Officer's failure to
include the standard appeal rights language in the decision was not fatal
because the circumstances showed the contractor was aware of its appeal rights,
and the contractor did not allege prejudice from the absence of the standard
language. |
|
June 2 |
In
Size Appeal of Diversified
Elevator Service and Equipment Co., the SBA's OHA held,
inter alia, that an undated, unaddressed letter from a large
firm touting its abilities to perform all the contract work and included in the challenged
firm's proposal was not sufficient to establish the two firms had an
actual relationship at the time that the proposal was submitted
whereby the large firm would perform the primary and
vital contract requirements in violation of the ostensible subcontractor
rule. The protester also had presented other suggestive and plausible arguments in support of its contention, and I read the OHA's decision to mean it does not subscribe to the adage--where there's smoke, there's fire--even when there is a whole bunch of very
ominous smoke.
In Size Appeal of FRM Socks, LLC,
the OHA held that, in determining affiliation, a Term
Sheet setting out the elements of an upcoming merger fell under the "present effect" rule (13 C.F.R. § 121.103(d))
because it was an agreement in
principle that included all significant details of the merger and did not
leave substantive steps to be accomplished.
In
Size Appeal of Radiant Infotech,
LLC, the OHA denied the appeal because private parties lack standing to bring
size protests against sole-source 8(a) awardees, and neither the Contracting
Officer nor the SBA was obligated to initiate a size protest after being
alerted of the alleged size issue by the appellant.
In Size Appeal of Colt-Sunbelt
Rentals JV, LLC, the OHA held that a mentor-protégé joint
venture agreement that failed to identify the respective
responsibilities of the parties for the contract at issue was
defective and could not be cured by an unsigned addendum (where the
agreement stated addendums must be signed) that was not shown to be in
effect at the time of final proposal revisions.
In
Size Appeals of Tech-Marine
Business, Inc., the OHA held that, consistent with its recent
holdings in McLaughlin Research,
Imagine One Technology &
Management, Ltd., and
Saalex
Corp., a firm was not required to recertify its size for
a set-aside
task order award under an unpriced MAC pursuant to the former version of
the applicable SBA reg that was in effect at the time.
In Matter of Irby Spine Care Professional Corp.,
the OHA upheld a firm's termination from the 8(a) program for repeated failures to submit required documentation.
The OHA dismissed the appeal in
In the Matter of Decision Frameworks, LP
because the OHA lacks jurisdiction over an appeal from the denial of
a firm's certification as a WOSB.
In
VSBC Protest of NEIE Medical Waste Services, LLC, the OHA dismissed the portion of a combined size and SDVOSB status protest related to status as untimely because
the protester failed to file it by the close of business on the fifth business day after notification by the Contracting Officer of the apparent successful offeror)
In NAICS Appeal of Cynergy Professional Systems,
LLC, the OHA held that in a solicitation to provide weapons detection system services to VA medical centers,
one of the contractor's choices (NAICS
334290 ("Other Communications Equipment Manufacturing")) with
a size standard of 800 employees was preferable to the Contracting Officer's choice of NAICS
561621 ("Security Systems Services (except Locksmiths)").
DFARS Case
2023-D010: A final rule amends the DFARS to implement section 803 of the James M. Inhofe
NDAA for FY 2023, which modifies 10
U.S.C. 3455 to provide additional
guidance regarding data requirements to
support a determination of
commerciality and price reasonableness
for certain procurements associated
with major weapon systems.
DFARS Case
2021-D022: A final rule amends the DFARS to implement
sections 845 and 1603 of the NDAA for FY 2021,
section 816 of the NDAA for FY 2022, section 853 of the
NDAA for FY 2023,
and section 8016 of the Consolidated
Appropriations Act of 2023, which amend 10
U.S.C. 2534 (now 10 U.S.C. 4864) to
require acquisition of certain items and
components from the national
technology and industrial base. The
national technology and industrial base
is defined at 10 U.S.C. 4801 as the
United States, Australia, Canada, New
Zealand, or the United Kingdom.
DFARS Case
2021-D015: A final rule amends the DFARS to implement section
844 of the NDAA for FY 2021, which amends 10 U.S.C. 2533c
(redesignated 10 U.S.C. 4872) and
removes from the restriction "material
melted" and replaces it with "material
mined, refined, separated, melted," and also removes the reference to "tungsten" replaces
it with "covered
material" in the exception for
COTS items to the restriction of 50
percent or more by weight. The final
rule also implements section 854 of the NDAA for FY 2024 that
amends the effective date in section
844(b), extending the effective date of
the restriction from 5 years to 6 years.
DFARS Case
2024-D004: A proposed rule would revise the DFARS
to implement section 874 of the
NDAA for FY 2022 (as
amended by section 872 of the NDAA
for FY 2024), which authorizes DoD to establish a pilot
program that allows for the
noncompetitive award of certain follow-on contracts to employee-owned
businesses that meet the definition of a
qualified business.
Comments are due by July 29.
DFARS Case
2024-D006: A proposed rule would revise the DFARS to implement section 853 of the
NDAA for FY 2024, which
amends the definitions of nonprofit
organization and business entities at 10
U.S.C. 4951 for the Procurement
Technical Assistance Program. DoD
implements the requirements at 10
U.S.C. 4951 through its APEX
Accelerators (formerly known as
Procurement Technical Assistance
Centers), which are managed by the DoD
Office of Small Business Programs.
Comments are due by July 29. |
|
May 31 |
Spatial Front,
Inc., won its GAO protest after the agency conceded it had not
contemporaneously examined the awardee's proposed labor categories from its
FSS contract to determine whether they encompassed the geospatial
services work required by the solicitation.
|
|
May 30 |
In
Size Appeal of
Colossal Contracting, LLC, the SBA's OHA held that, contrary to 13 C.F.R. § 121.104(a),
the Area Office improperly used evidence
beyond a firm's tax returns to calculate its receipts for purposes of
determining its size.
|
|
May 28 |
In
Crowley Government Services, Inc., an unsuccessful preaward protest,
the Court of Federal Claims held, inter alia, that: (i) the contractor's
argument
(that provisions in a United States Transportation Command ("TRANSCOM") solicitation
permitting the GSA to audit the transportation
bills of the contract carriers under pursuant to the Transportation Act
(31 U.S.C. § 3726(b)) are improper) has
already been preclusively decided against the contractor by the D.C. District Court
(even though that decision is currently on appeal); (ii) TRANSCOM has
the authority to designate that the firms performing under the contract are
"carriers"; and (iii) this suit is not in the proper forum for addressing
the contractor's
argument that there is an OCI in the manner in which the GSA, as a
separate agency, employs firms to conduct its audits under GSA contracts
separate from this one. This is one of those cases involving
issues that I'm almost sure I will never face, but, if I'm
unlucky enough to have to, I'll know where to look. ;)
In
A4 Constr. Co., the ASBCA struck the portions of the Complaint related to allegations involving separate and distinct subclaims,
each arising from materially different and unrelated operative facts,
for which the contractor failed to identify sums certain in its original
claim to the Contracting Officer.
In
GLJ, Inc., the ASBCA granted summary judgment for
the Government in dismissing an appeal pursuant to the
fulfillment of a bilateral settlement
agreement reached as a result of ADR and held that it lacked jurisdiction over an alleged verbal agreement
reached during ADR for an issue not previously presented to the Contracting
Officer for a decision and concerning a different agreement from the one
that was the subject of the appeal.
In Konecranes Nuclear Equipment & Services,
LLC, the ASBCA held that: (i) contrary to the Government's contention
on appeal that
the specifications were patently ambiguous, they were clear, and
the contractor's units (cranes) met them (as the Government's engineers and
Contracting Officer had conceded in internal communications before the
dispute arose); (ii) the Government's compensably delayed the project
by its refusal to take delivery of the
cranes
based on (a) a defect in the first unit that the contractor had
quickly identified
and corrected and (b) the Government's desire for a unit that
exceeded the specifications;
(iii) absent a "Suspension of Work,"
"Government Delay of Work," or "Stop Work Order" clause (which the Board would
not
impute to this commercial items contract), the Government breached its implied duty not to interfere by unreasonably inspecting the
equipment; and (iv) the contractor did not concurrently delay the work by refusing
to accept Government's terms for a modification upgrading the disputed
equipment: "We discern no impropriety by [the contractor] in
its negotiating the potential contract modification, but [sic] refusing to take a bad deal, and,
thus, we reject the Navy’s assertion of a prior material breach of the implied duty of
good faith and fair dealing."In
Herman JCG Co. JV, the ASBCA held that, almost
immediately after rejecting it, the Government constructively accepted
the contractor's VECP phasing plan by executing a contract modification that
basically incorporated its features:
Here, the government made
[the contractor's] phasing plan part of the contract when
the contracting officer unilaterally modified the contract to incorporate the Final
Design. . . . This modification adopted the substance of [the contractor's] VECP—its
phasing plan and trailer reduction. . . . When the contracting officer executed
Modification No. P00002 just one day after rejecting the VECP, she did so with full
knowledge that [the contractor] considered its phasing plan to be a VECP. . . .
Through this action, the government constructively accepted [the contractor's] VECP. Thus,
we conclude that the government rejected [the contractor's] VECP, in form, but accepted it, in fact. |
|
May 24 |
In
Reliability and Performance Technologies, LLC,
which involved the Government's motion for summary
judgment as to all three counts in a suit for nonpayment of indirect
costs in a CPFF IDIQ contract, the Court of Federal Claims held that:
(i) the contractor's failure to provide notice of
future costs was not a reason to bar its claim under the "Limitation of
Funds" clause because the contract was for "emergent" work that the
Government would identify and that the contractor could not predict,
especially when the facts could establish that the Government
breached its own obligations under the "Allowable Cost and Payment" clause;
(ii) a release that the Government claimed barred the
contractor's claim was at least ambiguous,
especially where the Government's interpretation of the release language was
inconsistent with the remainder of the document in which it appeared;
but (iii) the contractor's claim for breach of the implied duty of good faith and fair
dealing should be dismissed because it was for the same damages as the
contractor's claim that the Government had breached the
"Allowable Cost and Payment" clause, and the Government did not act in a way inconsistent
with the contract's express purpose.
|
|
May 23 |
In
Anders Constr., Inc., a successful protest leading to a permanent
injunction, the Court of Federal Claims held that there was no rational basis for any of
the five reasons
advanced by the agency to justify finding the plaintiff's proposal
technically unacceptable following corrective action after
finding it acceptable originally, e.g., (i) the protester's alleged failure to provide a
"sample" completion report with its offer when the solicitation only
required a completion report during contract
performance, (ii) the protester's alleged failure to label certain documents
submitted with its proposal in a certain way when the solicitation did not require them to
be labeled, and (iii) the protester's alleged failure to provide a
diver's certificate for a proposed employee when its
proposal unambiguously labeled that
individual as a Supervisor, rather than a diver. The court also held
that it lacked jurisdiction over the protester's
alternative claim under the Declaratory Judgment Act.
In Triumph Financial Services LLC,
the court dismissed a count in the Complaint by the assignee of
payments to Postal Service freight motor carrier transportation
services contractors alleging violation of the Anti-Assignment Act (31 U.S.C. § 3727(c) and 41 U.S.C. § 6305(b)) because the statute does not apply to
the Postal Service. |
|
May 21 |
In Michael Stapleton Assocs., Ltd.,
the Court of Appeals for the Federal Circuit upheld the prior
CoFC decision finding that the procuring agency had rational bases for (a)
revising the solicitation to separate it into two procurements and (b)
shortening the prior look-back period for evaluating past performance,
but reversed the CoFC's conclusion that the agency had not taken adequate steps to
mitigate the incumbent's conflict of interest in order to permit it to participate in
the revised procurement.
|
|
May 17 |
In
Gilead Sciences, Inc., which involved a discovery dispute,
the Court of Federal Claims held that in seeking to recover attorneys fees as damages after prior findings
of the Government's breaches of contracts, the contractor waived
the attorney-client privilege over the contents of its attorneys' billing statements and must
produce unredacted versions of those records sufficient
for a determination of the reasonableness of the fees.
In Kearney & Co., P.C., et al.,
a successful protest by the original awardee, the court held
that the agency's corrective
action, based on a GAO attorney's erroneous statements in a predictive outcome
conference, lacked a rational basis because the solicitation did not, as
the GAO attorney had claimed, require an exact match between the PWS requirements
for the key personnel position of Statistician-Senior and a labor
category in the contractor's GSA Schedule contract. |
|
May 16 |
In
Parsons Government Services, Inc., the CBCA denied the agency's motion to dismiss for failure to state a claim because
the contractor adequately pled the elements to support its claims of superior
knowledge, breach of the implied duty of good faith and fair dealing, and
impracticability of performance, and the challenges raised by the agency
to those allegations would have to await development of the
record.
The SBA proposes to
make several changes to the
Women-Owned Small Business
Federal Contract (WOSB) Program
regulations, including adding
definitions that are not currently
included in the regulations and
conforming the regulations to current
statutes that have not yet been
integrated. The rule would also adopt
similar language to that used in SBA’s
other government contracting program
regulations regarding the length of time
that a firm that has been declined three
times must wait before reapplying to the
WOSB Program. Basically, the rule would align
the language of the restrictions in 8(a)
BD and WOSB programs to the current
restriction in the VetCert Program. Comments are due by July 15. |
|
May 15 |
In
Ecology Mir Group, LLC, a case involving contract interpretation,
the ASBCA held that: (i) in a fixed-price IDIQ task-order contract for tree
removal and pruning services, the agency did not misclassify services that
allegedly should have been under tree removal as tree pruning because
the definition of tree pruning in the contract covered the type of work the
contractor was required to perform; and (ii) the fact that the agency had deleted
the pruning CLIN in another task order under the same contract did not
establish a course of dealing and did not affect the Board's conclusion as to
the meaning of the contract.
|
|
May 14 |
I think there is more bad news on the ASBCA's new system for
addressing its decisions. Originally, I had been able to
substitute the new addresses for the old addresses using a
"find a replace" function that simply added Portals/143 at
the appropriate spot in the old addresses. However, there
were some new addresses in a form that could not be derived
from the old addresses. Here is an example:
https://www.asbca.mil/LinkClick.aspx?fileticket=y8wtppTBIrc%3d&portalid=143
As I type this, many of my links still work, but it appears
that they are gradually replacing the old addresses with
this new form. If that trend continues, I would have to
manually change close to 2,000 links one link at a time in
order to keep up. Frankly, I'm just too effing old. So,
unless somebody with more internet savvy than I have can
send me a solution, it looks like more and more of my old
ASBCA links will be broken. I should note that the ASBCA's
own new list of links contains a significant number of
errors, especially for older cases, so they obviously still
have bugs in the new system. |
|
May 13 |
In
Peraton, Inc., the Court of Federal Claims denied the
Government's motion to dismiss a suit for breach of contract due to the plaintiff's failure to name
in the Complaint the specific individual with authority who bound the
Government to the alleged contract, such identification not being
necessary to survive a motion to dismiss prior to the development of
the record.
In
FedResults, Inc., the CBCA denied both: (i) the
Government's motion to dismiss an appeal on the basis that the contractor did not state
a sum certain in the notice of appeal (which it designated as its Complaint)
since the sum certain requirement applies to the claim submitted to the Contracting Officer, not
the notice of appeal; and (ii) the Government's
motion to dismiss the appeal based on the contractor's alleged failure to establish
compliance with Severin doctrine, i.e., being liable
to its sub on a pass-through claim, because the motion was based on
evidence outside the Complaint which the plaintiff had not yet had an opportunity to
address, the motion, therefore, being premature.
In
Omran, Inc., the ASBCA granted summary judgment in favor of the
Government because the undisputed facts established that the breach damages sought by
the contractor as a result of actions by the Taliban were not foreseeable
at the original time of contracting.
In
Enfield Enterprises, Inc., the ASBCA held that the contractor had no right to
claim material escalation costs in a firm fixed-price contract without
an "Economic Price
Adjustment" clause, and the Board lacked jurisdiction over the
contractor's attempt to restyle that claim on appeal as a constructive change claim based on
a delayed notice to proceed because it was materially different from
the material escalation claim previously
presented to the Contracting Officer for a decision. |
|
May 10 |
ITility, LLC
won its GAO protest because: (i) the agency failed to respond to
the supplemental protest allegation that the agency
unreasonably assigned a positive rating to the awardee's proposal,
thereby effectively conceding that allegation; and (ii) the agency
failed to conduct the required qualitative evaluation of proposals in two
areas.
|
|
May 9 |
In
Siemens Government Technologies, Inc., a decision labeled as nonprecedential,
the Court of Appeals for the Federal Circuit affirmed the
prior ASBCA decision denying the contractor's claims because: (i)
the claimed costs were not incurred in
connection with the actual task order award (rejecting the argument
that because the Government issued a task order authorizing energy conservation work at some sites, it thereby became liable for the proposal development costs
the contractor incurred
at all sites mentioned in the underlying contract); (ii) there can be no claim for breach of
the implied
duty of good faith and fair dealing in the absence of a contract; and
(iii) there was valid no claim
based on superior knowledge where the claimed actions did not result in
a task order award.
|
|
May 8 |
In
Avant Assessment, LLC, the Court of Federal Claims held that
it lacked jurisdiction over claims the contractor discovered during prior ASBCA
litigation but never presented to the Contracting Officer for a decision,
which, according to the court, remains a jurisdictional requirement despite recent CAFC decisions. |
|
May 7 |
Effective June 5,
the United States Agency for
International Development (USAID)
is issuing a final rule amending its
Acquisition Regulation (AIDAR) to
implement USAID requirements for
managing digital information as a
strategic asset to inform the planning,
design, implementation, monitoring,
and evaluation of the agency’s foreign
assistance programs. This final rule
incorporates a new policy on Digital
Information Planning, Collection, and
Submission Requirements and the
corresponding clause as well as a new
clause entitled "Activity Monitoring,
Evaluation, and Learning Plan
Requirements" into the AIDAR.
FAR Case 2023-008: A proposed rule would amend the FAR
to implement paragraphs (a), (b), and (h) in
section 5949 of the James M. Inhofe
NDAA for
FY 2023 that prohibits
executive agencies from procuring or
obtaining certain products and services
that include covered semiconductor
products or services effective December
23, 2027. Comments are due by July 2. |
|
May 6 |
In
VSBC Protest of Aldevra LLC, the SBA's OHA held
that a solicitation was small business set-aside, as stated on
its cover sheet,
and the inclusion of two clauses associated with an SDVOSB set-aside was
merely an administrative error.
Thus, the SDVOSB status of the protested firm was
irrelevant.
In
VSBC Appeal of Dank Blossom, Inc., the OHA dismissed
the appeal because the firm challenging the denial of its SDVOSB status
failed to allege any errors in that decision and failed to respond to
an OHA
show cause letter, essentially conceding its appeal was deficient.
Similarly, in VSBC Protest of MicroTechnologies,
LLC, the OHA held that a firm that failed to respond to an OHA show cause notice essentially admitted its protest was
fatally nonspecific.
In VSBC Protest of DataCom Solutions, Inc.,
the OHA dismissed an unsigned, untimely "protest" that lacked specific allegations, but was characterized by
its author as an "inquiry." |
|
May 4 |
Catching up with a few earlier cases . . .
In
Sikorsky Aircraft Corp., the Court of Federal Claims held that:
(i) the contractor's motion to dismiss claims the Government had not yet asserted
on the basis of suspicions raised by the Government's discovery requests
was not proper; but (ii) a protective order was appropriate to
limit the Government's discovery requests to
issues raised in the Contracting Officer's decision. Subsequently, the
court
denied the Government's motion to reconsider the
limitation on its discovery requests.
In
Highway and Safety Services, Inc., the court transferred a case to
the CBCA that was originally
untimely filed there in order to consolidate it with a related appeal
that had been timely filed.
In
Superior Optical Labs, Inc., the court granted a competitor's motion to intervene in
a preaward protest alleging that if the protester were disqualified as
the agency
intended, award would be made essentially on sole-source basis to the intervenor,
about which protester made disparaging allegations. |
|
May 3 |
In
Eagle Hill Consulting, LLC, an unsuccessful post-award protest,
the Court of Federal Claims held, inter alia, that:
(i) an erroneous spreadsheet initially
filed by the Government in the administrative record was not the spreadsheet
actually provided to offerors, and thus was not the basis for a
protest; (ii) the solicitation was not ambiguous
concerning the method the agency would use to conduct the price analysis;
(iii) the solicitation contained a patent ambiguity concerning
the information the
offerors were to include on the pricing worksheet, which the protester failed
to timely challenge under the Blue & Gold Fleet standard;
(iv) the solicitation did not require the awardee to provide a "crosswalk" between
the labor categories in its offer and those in its GSA schedule contract, and
the agency did review the two sets of information, which was all that was required;
and (v) there was an adequate explanation in
the record for the agency's evaluation of Corporate Experience, which court
would not second-guess. |
|
May 2 |
In
Anderson Contracting, LLC, which involved contract interpretation,
the ASBCA rejected the contractor's claim that it had been
underpaid for compacted fill material it had provided in
order to construct a berm as a result of the Government surveying the work before the
contractor had finished clearing the site, finding that a contract provision requiring
"removal to within 6-inches of the ground surface
of all trees, brush and vegetation" meant removal above ground rather than to a
depth of six inches underground as the contractor contended.
In
Enfield Enterprises, Inc., the CBCA held that a bilateral release of "any and all claims and liability under or by
virtue of this contract or any modification," which did not include
any exceptions, barred the contractor's claim
that the Government's modifications and errors pushed its performance into
a period of adverse weather, even though the release did not mention
weather delays, because the contractor's claim was based on the Government's
alleged actions, not weather delays.
In
Didlake, Inc., the CBCA held that the local
county's increased minimum wage did not take precedence over the contract's
wage requirement established set by the incorporated DOL wage determination, so
the contractor was not entitled to a price adjustment to reflect the county's
rate.
In
Lusk Mechanical Contractors, Inc., the CBCA denied an appeal seeking
compensation under the "Suspension of Work" clause,
holding that a
stay at home order issued by the Governor of the Virgin Islands during
the COVID pandemic meant that the Contracting Officer's own suspension
of work order was not the "sole proximate cause" of the
suspension, and the seldom-invoked contract interpretation rule of "the last antecedent"
did not change the meaning of the Governor's order or the
Board's conclusion.
In
Honeywell Int'l, Inc., the CBCA denied the
contractor's motion for summary judgment that a bilateral release barred
the Government's claim because the Board found there were disputed issues of fact concerning the
scope of the release, specifically whether it covered all the findings in
an audit or only one of them. |
|
May 1 |
I'm
going to crow a little bit. I hope it's not premature.
As you remember, the ASBCA has changed all the addresses for its decisions, which broke all my past links. At first glance, the new addresses looked like they would require me to change each one individually, which would have taken months, because most of the new addresses look like the following, with a unique
(different) set of gobbledegook characters at the end of each
after "pdf":
https://www.asbca.mil/Portals/143/Decisions/2022/63296%20Global%20Technical%20Systems%2012.21.22%20Dismissal.pdf?ver=IS5HXDuBtlS92MlooxnTWg%3d%3d
However, I have figured out that if I add "Portals/143/"
to all the old addresses and ignore all the characters after
".pdf," many of the links will work, which means I can just
do a mass "find and replace" to correct many of the old
addresses at once.
This will not work for every new
address because there are some that are in a completely
different form, e.g.:
https://www.asbca.mil/LinkClick.aspx?fileticket=wBZjC9pSuAw%3d&portalid=143
However, I think it will cut down the job of revamping
the site from months to less than a month.
This
morning I made the "find and replace" changes for all 17 of
the yearly procurement reviews. I then spot checked each
review, and all the links I checked worked. However, I'm
sure there are some that won't, so if you come across a bad
link, please let me know. There are about 100 ASBCA links on
each of those procurement review pages, so just clicking on
all 1500+ links would take me a long time. . . . I've now
also made the changes on the two ASBCA decisions pages and
on the CAFC contract disputes page (because some of the CAFC
case descriptions contain links to the ASBCA decisions being
appealed). |
|
April 30 |
In
Supreme Foodservice Gmbh, which involved contract interpretation,
the ASBCA held that: (i) the Government had released its
claim because the term "Covered Conduct" in a
bilateral False Claims Act
settlement document included the funds the Government was attempting to
recoup in this appeal; and (ii) the Government's claim was not among
the exceptions listed in the settlement agreement.
In VSBC Protest of Panakeia, LLC,
the SBA's OHA dismissed a protest that the challenged firm
would be unusually reliant on a non-SDVOSB subcontractor because: (i)
the protester failed to respond to the motion to dismiss; and (ii) in a contract for services, the challenged firm
need only meet the "Limitations on Subcontracting" provision, and, here, the challenged firm's proposal indicated that it would self-perform a majority of the work and would subcontract less than 50% of
the contract value to its two subcontractors. |
|
April 29 |
In
North Wind Constr. Services., LLC, the ASBCA denied the Government's motions to dismiss two appeals
brought before the Contracting Officer issued decisions as premature
because: (i) in one instance, the Government offered no evidence that
the time the Contracting Officer had established to issue his decision was reasonable; and
(ii) in the other case, by the time the motion to dismiss had been
filed, an unreasonable amount of time had passed without a decision.
In The Sithe Group, LLC dba
TSG Industries, the ASBCA dismissed, as
untimely, an appeal filed almost two and a half years after
the Contracting Officer's decision because: (i) the contractor offered no evidence
that the Contracting Officer had led it to believe the Contracting Officer was
reconsidering his decision; (ii) a later unilateral mod that made no demand for
payment on the contractor was not a government claim and did not vitiate
the Contracting Officer's decision; and (iii) there was no equitable tolling because
there was nothing
to show that the contractor had diligently pursued its rights or that any extraordinary circumstance
had prevented it from filing its appeal. |
|
April 26 |
In
L3Harris Technologies, Inc., an unsuccessful scattershot post-award protest,
the Court of Federal Claims held, inter alia, that:
(i) the agency properly evaluated
the awardee's proposal in accordance with the stated evaluation criteria
rather than the proposal preparation instructions; (ii) the plaintiff
misinterpreted an evaluation criterion that applied to one subfactor as if it
should be the standard for them all; (iii) the agency assigned a weakness to
the awardee's proposal under the correct subfactor rather than the one
espoused by the plaintiff; (iv) there was a rational basis for the
weakness (rather than deficiency) assigned to one aspect of the
awardee's proposal; (v) the allegation that the agency should have assigned multiple
weaknesses, rather than a single weakness, to the awardee's proposal
was mere quibbling with the agency's judgment, to which court owed deference;
(vi) there was a rational basis for the agency's cost realism
analysis, including the spare parts cost analysis; (vii) there
was a reasonable basis
for the agency's evaluation of the awardee's costs associated with exercising
options; (viii) the agency did not treat proposals unequally because
the sections of the competing proposals in question were not substantially identical;
(ix) the agency's
evaluation was adequately documented; and (x) the plaintiff failed to allege
the necessary hard
facts demonstrating any agency impropriety in handling a possible issue of
conflict of interest or unfair advantage.
DFARS Case
2023-D009: A final rule amends the DFARS to implement section
808 of the
NDAA
FY 2023, which limits the number
of low-rate initial production lots
associated with a major defense
acquisition program under certain
circumstances.
DFARS Case
2022-D014: A proposed rule would amend the DFARS to implement section
822 of the NDAA for FY 2022, which provides procedures and
approval and reporting requirements for
contracts awarded as prizes for
advanced technology achievements. Comments are due by June 24.
DFARS Case
2021-D020: A proposed rule would amend the DFARS implement section
1024 of the William M.
(Mac) Thornberry NDAA FY 2021, which is
intended to increase compliance with
military cargo preference requirements.
Comments are due by June 24.
DFARS Case
2022-D016: A proposed rule would amend the DFARS to
implement section 815(b) of the NDAA for FY 2012, which addresses the
validation of proprietary data
restrictions, specifically by increasing the validation period for
asserted restrictions from three years to
six years and to provide an exception
to the prescribed time limit for
the validation of asserted restrictions if the
technical data involved are the subject
of a fraudulently asserted use or release
restriction.
Comments are due by June 24. |
|
April 24 |
The GAO sustained a protest by Criterion Corp.
because the agency's price realism analysis, which concluded
the protester's price was unreasonably high, did not take into account its
proposed technical approach, including its proposed labor mix or labor
utilization strategy.
|
|
April 23 |
Federal Acquisition Circular (FAC)
2024-05 has been published and includes the following item:
FAR Case 2022-006: A final rule amends the FAR to
focus on current environmental and
sustainability matters and to implement
a requirement for agencies to procure
sustainable products and services to the
maximum extent practicable.
|
|
April 22 |
In
Jacqueline R. Sims d/b/a JRS Staffing Services, an unsuccessful preaward protest,
the Court of Federal Claims held that the
solicitation's terms relating to how the agency would check the credit
reports of proposed contractor employees were sufficiently clear to
comply with all applicable FAR requirements. The court
reached the same conclusion in a
companion case.
In
Jemison & Partners, Inc., the Court of Appeals for the Federal Circuit affirmed the
prior ASBCA decision that the contractor was to be paid
only for actual
quantity of topsoil placed as opposed to a lump sum based upon an estimate
of how much would be required.
In Framaco Int'l, Inc., the CBCA denied the contractor's claims involving
(i) patent ambiguities in the solicitation concerning which
the contractor had failed failed to timely inquire and (ii) conditions at site that it should have, but did not, investigate or
bring to the Government's attention prior to bidding. The Board also noted
that the contractor's reliance on statements from a COR who
lacked the authority to change the contract was ill-advised and unavailing.
In
Independence Constr., Inc., which involved a contract whose default
had not been challenged on appeal, the CBCA held that: (i)
the contractor was not entitled to payment for
excavation work that did not meet the contract specifications, especially
where the amount the contractor sought was dwarfed by the amount the Government had to
spend on a reprocurement contractor to fix the defective work;
(ii) the contractor was not entitled to the cost of a survey that it voluntarily undertook
to perform absent direction from the Contracting Officer; and (iii) the
Board lacked
jurisdiction over a claim for the costs of a second survey because
that claim had not previously been presented to
the Contracting Officer for a decision. |
|
April 19 |
In
GBA Associates Limited Partnership, although expressing sympathy
with a firm that had not been paid for providing security services to
the Afghanistan
government under an Afghan contract that utilized funds provided by
the
United States to Afghanistan and that was approved by the United
States, the Court of Federal Claims dismissed the suit because the
firm did not allege facts sufficient to prove that it had
an implied-in-fact contract with the United States to compensate it for
the shortfall in funds owed by Afghanistan. Specifically, the
firm did not
allege facts sufficient to establish that the United States had the intent to
contract with it as a guarantor.
|
|
April 18 |
In
FYI - For Your Information, Inc., an unsuccessful protest, the
Court of Federal Claims held that: (i) under FASA, it lacked jurisdiction over
a protest of the agency's determination that the plaintiff was not eligible to
compete for a task order procurement set aside for WOSBs because the
plaintiff was not a certified WOSB under the new regulations
requiring such a certification; and (ii) the plaintiff had waived its objections to clear
provisions in two solicitations requiring WOSB certification by failing to object prior to submitting its proposals
(such a protest would have been fruitless even if it had
been timely raised). |
|
April 16 |
In Size Appeal of Saalex Corp. d/b/a Saalex Solutions, Inc.,
which I should have discussed along with the
McLaughlin
decision in the April 11 entry below, the SBA's OHA once
again held that, for an unrestricted, unpriced MAC, the
previous version of 13 C.F.R. § 121.404(a)(1)(iv)
applicable at the time stated that size was to be determined as of the date of
the original award.
In
VSBC Protest of
Marathon Industrial Equipment, LLC, a successful protest, the
OHA held that the challenged firm failed to provide requested information concerning
whether its SDV's continued employment with
an outside firm would allow him time to exercise the required control over
the challenged firm.
In SSI Claimsnet, LLC, and Availity,
LLC, which involved unsuccessful consolidated post-award protests,
the Court of Federal Claims
denied the protesters' motions to supplement the administrative record with
the results of evaluations from
a similar, but separate, procurement that allegedly would have shown evaluation results
inconsistent with the challenged evaluation in the current
protests and then held that: (i) under the agency's reasonable
interpretation of the protester's less that perfectly clear proposal
on this point, the evaluators' finding that the protester's proposed
approach was "infeasible" had a rational basis; (ii) the agency treated one
aspect of the protester's proposal unequally with a substantially
indistinguishable aspect of the awardee's proposal but there was no
prejudice because correcting that error would not have overcome the
other technical advantages of the awardee's proposal; (iii) the agency's price
reasonableness analysis had a rational basis, as did its finding that
the protester's price was "unreasonable," making it ineligible for award,
especially given that the protester's price was more than a standard
deviation higher than the average; (iv) the agency's conclusion that
the protester's pricing was unbalanced had a rational basis and was
consistent with all applicable regs; and (v) the agency was not required to
consider each of the awardee's CLINs separately in evaluating whether
its pricing was unbalanced. |
|
April 13 |
In
Global K9 Protection Group LLC and Michael Stapleton Assocs. LTD. v.
United States, after an amazingly detailed recitation of the
lengthy history of the underlying protests and a scathing
condemnation of the Postal Service's inadequate procurement
guidelines, the Court of Federal Claims held that: (i) an
awardee's
long belated motion to intervene in a bid protest was mooted by the fact
that it had been terminated for default by the time of its attempted
intervention; and (ii) that party had waited far too long (11 months) to attempt to
intervene after it was aware or should have been aware of its right to
do so. The motion to intervene was in essence a motion for
reconsideration of an injunction the court already had
issued. |
|
April 11 |
In
Size Appeal of McLaughlin Research Corp., the SBA's OHA held that although
the arguments raised by the appellant, itself, on appeal
were meritless, the prior version of 13 C.F.R. § 121.404(a)(1)(iv) effective at the relevant time for this appeal stated that size
for an unpriced IDIQ MAC was to be determined at the time of initial award rather than at time of
an order, so the OHA remanded the case to the SBA to examine
the issue under the correct version of the reg.
|
|
April 9 |
In Hughes Group LLC,
the CBCA reduced an
EAJA award to the extent the successful contractor/litigant had unduly and unreasonably protracted
the final resolution of the dispute
by rejecting settlement offers and mediation.
|
|
April 7 |
In
Associated Energy Group, LLC, an unsuccessful preaward protest alleging
that the agency failed to
adequately mitigate an inadvertent disclosure of competitively useful information to
the plaintiff's competitor/incumbent, the Court of Federal
Claims: (i) refused to consider a lengthy declaration by
the plaintiff's CEO consisting largely of post hoc speculations
as to how a competitor might use the information at issue; and (ii)
held that the agency's
investigation of the situation was reasonable, as were its conclusion that
the information was not competitively useful and that further mitigation
was unnecessary.
In
AccelGov, LLC, an unsuccessful post-award protest, the court held
that: (i) in a procurement conducted under FAR Part 8.4, the
agency was not required to hold FAR Part 15 discussions
before determining proposals were unacceptable, especially
where the solicitation clearly stated the agency intended to
award without discussions; (ii) the agency's evaluation of
the protester's technical proposal was reasonable and would
not be second-guessed by the court; and (iii) the protester
had waived its right to object to the solicitation's
personnel experience requirement by waiting until after
proposals were submitted. Concerning the second holding, the
court noted:
This Court routinely holds that contracting officers enjoy "broad discretion with respect
to evaluation of technical proposals," and the Court typically does not “second-guess the
technical ratings that the source selection committee gave to each offeror.”
[citations omitted] However, unsuccessful
offerors repeatedly ignore this. To again emphasize this important point, agencies exercise broad
discretion when determining the scope of an evaluation factor. [Emphasis added] |
|
April 4 |
TLS Joint Venture,
LLC, won its GAO protest because the awardee’s required registration in
the SAM pursuant to FAR 52,204-7 lapsed between the close of the solicitation period and
the award of the contract.
GSAR Case 2022-G505: Effective May 2, a final rule
revises GSAR clause 519.870–2, which contains lists of the
clauses that should (and should not) be used in solicitations, contracts, and orders in
accordance with the provisions of
Section 8(a) of the U.S. Small Business
Administration Act as implemented by
FAR subpart 19.8 and GSA’s 8(a)
Partnership Agreement.
The ASBCA's website is still messed up (and thus
almost all of my links to ASBCA decisions are still broken
as described in the March 26 entry below). Until they finish
fixing their own website errors, I'm not going to start the
process of correcting my links. |
|
April 3 |
In
Clean Team Janitorial Service, Inc., an unsuccessful protest by
the incumbent contractor against the award of
a follow-on set-aside 8(a) contract, the Court of Federal
Claims held that: (i) although the plaintiff's reporting of alleged PIA violations
was timely (because informal statements to its on-site janitorial staff
would not be immediately imputed to the business owners), the agency's two independent
investigations finding no merit to the allegations were "more than sufficient";
(ii) even after
correcting for admitted ministerial errors, the value of procurement fell below
the amount that would require competition among eligible 8(a) firms;
and (iii) regardless of its status at the beginning of this process,
the awardee was
an 8(a) certified joint venture by the time of the latest award to it after
series of corrective actions undertaken by the agency in response to
earlier protests.
|
|
April 1 |
In
Raytheon Co., an unsuccessful protest against
the protester's elimination from
a competition due to the "appearance of impropriety" in its hiring of
a retired
agency technical expert, the Court of Federal Claims noted the
broad discretion given Contracting Officers in making
such a determination, requiring only that the determination
be supported by reasonable evidence in the administrative
record, with no requirement that there be a showing of an
adverse effect on the challenged competition. In other
words, you have next to no chance of successfully
challenging such a determination.
In
ASG Solutions Corp., dba American Systems Group, a case
relying on contract interpretation principles, the court held that: (i) reading all
its provisions together, a service contract task order required the contractor
to assemble a team of 20 qualified professionals at a fixed monthly
rate as described in its proposal and was not an illegal personal
services contract because the contractor maintained control over its
team member employees even though the Government reviewed resumes and
approved hires; (ii) the contractor's failure to provide the required fully
staffed team was grounds for a default termination despite the contractor's
argument that it had not failed to perform the actual requirements of any
assignment; and (iii) the Contracting Officer considered the factors in FAR 49.402-3(f)
prior to the termination.
In
Size Appeal of Imagine One Technology & Management, Ltd., the SBA's OHA held that: (i) the challenged
firm was not required to recertify its size for a set-aside task order
award under the former version of the SBA's regs applicable at that time;
and (ii) there was no change in controlling ownership necessitating a recertification because
the owner retained a majority interest.
In
NAICS Appeal of CueBid Technologies, Inc., the OHA held that
in a solicitation to provide sludge dewatering/drying technology or alternatives for reducing the weight and volume of daily sludge production with maximum drying efficiency through additional equipment installation in
a waste treatment plant, the appropriate choice was NAICS code 541330
("Engineering Services") as opposed to the Contracting Officer's choice of
NAICS 562211 ("Hazardous Waste Treatment and Disposal").
In NAICS Appeal of Salvadorini Consulting, LLC,
the OHA held that in
a solicitation to lease an MRI machine and accompanying trailer, the Contracting
Officer's designation of NAICS code 532490 ("Other Commercial and Industrial Machinery and Equipment Rental and Leasing")
was preferable to the appellant's choice of NAICS 621512 ("Diagnostic Imaging Centers").
In VSBC Appeal of NIJI, LLC,
the OHA denied an appeal of a decision rejecting a firm's
application for certification as an SDVOSB because
conflicting and ambiguous provisions in the firm's Operating Agreement
and other documentation did not clearly establish that the
SDV exercised full discretion and decision-making authority over the
firm's day-to-day operations.
In
VSBC Protest of Systematic Innovations, LLC, the OHA denied
a protest of a firm's SDVOSB status because the challenged SDVOSB
JV
included a certified SDVOSB as its managing venturer, and the JV agreement was
sufficiently detailed as to the parties' respective responsibilities
considering the
indefinite nature of the contract contemplated by the solicitation.
In VSBC Protest of Aero-Tel Wire Harness Corp., the OHA upheld a
protest of a firm's SDVOSB status because the challenged firm was not
a certified SDVOSB for purposes of the current solicitation
and had not completed the process of re-establishing an
expired certification.
Federal Acquisition Circular (FAC)
2024-04 has been published and includes the following
item:
FAR Case 2022-010: Effective May 1, a final rule amends
the FAR to add the framework for a new FAR Part 40, which will contain the
policies and procedures for managing
information security and supply chain
security when acquiring products and
services. The guts of the new Part are still to come in future rulemaking. (Was
this really worth a whole FAC before the contents of the new
Part were
promulgated?)
In
Gardner Construction & Industrial Services, Inc., the CBCA denied the Government's preliminary motion to dismiss for lack of jurisdiction based on the fact that the contractor's new owner (who filed the appeal) had bought all the stock of the original contractor. The Board reasoned that the CAFC's precedent in
Engage Learning, Inc., established that all that is required for an initial determination of jurisdiction is a non-frivolous allegation of a contract with Government, which was made here, so any motion to dismiss will have to be decided on the merits.
In
MLU Services, Inc., the CBCA denied (as frivolous and without requiring a reply) the Government's motion to dismiss a portion of an appeal for failure to timely comply with the Board's order for the contractor to file a response within 15 days to the portion of the Government's answer asserting a counterclaim. The Board noted that the Government had filed its motion only four days after the missed deadline and that dismissal for failure to prosecute is a harsh sanction which should not be applied to a single failure to comply with an order from the Board.
In
Quality Trust, Inc., the CBCA dismissed allegations in
the Complaint regarding reformation of the contract for mutual mistake, partial termination of the contract, and the amount of final payment due because they were not tied to the amount in the claim previously presented to the Contracting Officer. The Board, however, denied the Government's motion to dismiss for failure to prosecute because the contractor's failure to comply with the Board's directions
could not yet be considered "egregious." |
|
March 29 |
Pernix Federal,
LLC won its GAO protest because the State Department's determination upon
voluntary corrective action that the original awardee was not properly
qualified under The Omnibus Diplomatic Security and
Antiterrorism Act of 1986 and SAM registration requirements
to submit a proposal in a multi-phase solicitation for an
overseas construction project was based on an impossible requirement for a
de facto joint venture to
register in SAM, which could not be harmonized with the phase 1 and 2
prequalification notices and the Department of State’s current regulations that permit a
de facto joint venture to qualify under the Security Act, and specifically, for the offeror to
be awarded a contract and provide performance guarantees from its affiliates.
The interesting part of the decision is that the GAO relied
on the "significant issue" exception (4 C.F.R. § 21.2(c)) to its timeliness rules
to permit an untimely protest of an unambiguous requirement
in the original solicitation language, something the GAO
almost never does.
The SBA has corrected a
technical error in the definition of
substantial bundling that appeared in
a final rule entitled "Ownership and
Control and Contractual Assistance
Requirements for the 8(a) Business
Development Program," which improperly limited substantial bundling
to BPAs entered against a GSA
Schedule Contract. The correction removes
that limitation so that the definition of
substantial bundling applies to all BPAs.
GSAR Case 2020-G512: The GSA proposes to
remove the requirement for lease
offerors to have an active SAM registration
when submitting offers and instead
allow offers up until the time of award
to obtain an active SAM registration. Comments are due by May 28. |
|
March 28 |
The ASBCA's website's list of cases is still largely
unusable with broken links. Somebody should have done some
bug checking before the new site went live.
In
Kandahar Mahali Transit & Forwarding LTD.,
the ASBCA held that: (i) it lacked jurisdiction over decisions that
the contractor failed to timely
appeal because the Contracting Officer's willingness to reconsider
certain decisions did not imply he was reconsidering all of them, and
for six decisions denying payment where the Contracting Officer offered
the contractor the opportunity to submit invoices but the contractor failed to do
so, there was no dispute for the Board to adjudicate; (ii) despite some less
than stellar word choice, the release language in a mod was a general
release of the contractor's claims; and (iii) the contractor's lack of appreciation
of the ramifications of what it was signing was not an excuse,
plus the contractor did not establish it signed the release under
duress: "[The contractor] has not identified any evidence showing that it accepted the terms of the
settlement involuntarily, that it had no alternative to acceptance, or that the
government engaged in coercive acts."
In
Woolpert, Inc., the ASBCA held it lacked jurisdiction
over an untimely appeal because the contractor had no reasonable basis to conclude
the Contracting Officer was reconsidering the decision at a meeting held between
the parties after the decision was issued: Based on our review of the record, including the video of the December 8, 2022
meeting, the Board concludes that Woolpert did not have a reasonable basis to believe
that the contracting officer was reconsidering her final decision. Rather, the record
demonstrates that Woolpert simply refused to accept “no” for an answer. . . . At the December 8, 2022 meeting, the contracting officer and another USACE
official informed Woolpert at least four times that the decision was final and that
Woolpert could appeal the decision if it disagreed. The contracting officer also made
it clear that she had agreed to the meeting only as a courtesy due to their past
relationship and to assure Woolpert that USACE had thoroughly vetted the decision.
While it is true that the contracting officer stated at the end of the meeting that she
would speak with other USACE officials, she said this only after Woolpert continued
to badger her. She never stated that she would reconsider the decision, and a Woolpert
official acknowledged that the decision was final. In BCC-UIProjects-ZAAZTC Team JV,
the Court of Appeals for the Federal Circuit affirmed the prior ASBCA decision
dismissing an appeal for lack of jurisdiction because the person who
submitted the claims was not authorized to do so on behalf of the
contractor. Of course, I cannot link to the prior ASBCA decision while
the Board's website is messed up.
In
PGB Hanger, LLC, the Court of Federal Claims dismissed a suit filed
as a Fifth Amendment takings claim because it was actually a contract
dispute involving property rights allegedly taken under plaintiff's contract
with the Government: "Although [plaintiff] is the master of its own complaint, it may not create
Fifth Amendment liability by artfully pleading around its contract claims. It is represented by
attorneys, not alchemists."
In
Wolf Creek Railroad, LLC, the court dismissed the
suit because: (i) the plaintiff failed to prove that it had submitted a certified claim letter for a
decision or that such a letter had been received; and (ii) where
a BOA specifically stated that the Government was not a party to
tenant use agreements (TUA) that might be executed under it, the
plaintiff/party
to a TUA was not in privity with Government even though Government had
specifically authorized a TUA with it:A middleman is not automatically an agent. While the Army did provide direction and
authorization to [its contractor] in discrete situations, it also apparently intended to use
[its contractor] "as a buffer
between it and the claims of the subcontractors." [citation omitted]
Thus, the agreements here have not created an agency relationship between [the
contractor] and the Army,
and [plaintiff] is not in privity of contract with the Government.
In
MLB Transportation, Inc., the court: (i) denied the Government's motion for summary judgment that
the contract was void
ab initio due to the contractor's allegedly false representation
as an SDVOSB because factual issues remain concerning that allegation;
(ii) held that the contractor's claims based on allegedly faulty trip volume estimates
were
time barred because they accrued more than six years before they were
submitted, and the letter contractor relied on to avoid that result was
not sufficient to constitute a claim; (iii) held that the contract was patently ambiguous
as to whether it was a requirements contract, and, therefore, contractor, by
failing to timely inquire, lost its ability to make a claim for breach
of requirements contract; and (iv) noted that material issues of fact precluded summary
judgment on the contractor's changes claim. |
|
March 27 |
The ASBCA's modified website list of cases is still messed
up, including broken links for older cases. I'm hoping they
get their act together soon.
In
The Haskell Co., the ASBCA denied the
Government's motion for summary judgment that a bilateral release barred
the contractor's claims
because there were material disputed facts as to whether there was a meeting of the
minds between the parties that "the delays and disruptions arising out of . . . the work
as herein revised” in Mod 1 included the contractor's costs incurred due to unusually severe
weather and seasonal differences allegedly resulting from the Government's project
design changes that pushed construction into adverse weather periods.
DFARS Case 2023-D011: A final rule amends the DFARS to to implement section
856 of the James M. Inhofe NDAA for
FY 2023, which (i) transfers section 831 of
the NDAA for FY 1991 to 10 U.S.C. 4902 and authorizes
the DoD Mentor-Protégé Program on a
permanent basis and (ii)
extends the term for program participation and removes the term
limitation for mentors to incur costs
under mentor-protégé agreements
entered into after December 23, 2022.
DFARS Case
2020-D011: A final rule adopts with changes the prior interim rule amending the
DFARS to implement a
section of the NDAA for FY 2020
that prohibits DoD procurement of
fluorinated aqueous film-forming foam
containing in excess of one part per
billion of perfluoroalkyl and
polyfluoroalkyl substances after October
1, 2023, unless an exemption applies.
DFARS Case
2023-D023: A final rule amends the DFARS to to incorporate revised
thresholds for application of the World
Trade Organization Government
Procurement Agreement and the Free
Trade Agreements, as determined by the
United States Trade Representative.
DFARS Case
2020-D026: A proposed rule would amend the DFARS to remove a DFARS solicitation provision
and modify the text of an existing
DFARS contract clause (both of which related to the transportation of supplies
by sea) to include the
operative text of that former DFARS solicitation provision. |
|
March 26 |
The ASBCA has changed its website addresses for its decisions.
The changes break all my past links to their cases. This may be a real mess to correct because so far it does not look like there is a common change that I can make by way of a universal "find and replace" command. Yuck.
This is a work in progress even on the ASBCA's website
because when you click on the names of their older cases,
you get an error. So, they've broken their own links, as
well as mine. I will wait to start making corrections until
they get their own site in order. It seems that some of their own
new links may be a work in progress because, in addition to
the fact that many of their own new links do not work, the
format looks weird, e.g.,
https://www.asbca.mil/LinkClick.aspx?fileticket=a00H_jMI-8M%3d&portalid=143.
In
Patricia I Romero, Inc., dba Pacific West Builders,
the ASBCA denied the contractor's defective specification claim because
the Spearin doctrine does not apply if contractor does not comply with
the specs. However, the ASBCA denied the Government's motion for summary judgment on other matters (e.g.,
the contractor's standby costs claim) due to disputed material issues of fact.
In
Heffler Contracting Group, the ASBCA denied the
Government's motion to dismiss an appeal of a default termination for lack
of jurisdiction. The Board held that the fact that the contractor had raised
the affirmative defense of
excusable delay in its Complaint without having previously submitted
a claim for a time extension to the Contracting Officer did not deprive Board
of jurisdiction over the basic appeal of the termination because it is a government
claim, and the Board could have required the Government to file the
Complaint. Reading this case along with those that require the
contractor to present its time-extension claim to the
Contracting Officer, I suppose what the Board is saying is
that it can proceed to hear and decide whether the
Government has met its burden of initially establishing the
propriety of the default, but, if the contractor wants to
raise the affirmative defense, it will have to present that
claim to the Contracting Officer while this appeal from the
default is ongoing and then, once its time extension claim
is denied, appeal that to the Board and have it consolidated
with this appeal. I would question whether that process
makes sense. |
|
March 25 |
MVM, Inc.
won its GAO protest because: (i) the record did not establish how
the agency concluded one of the awardee's key personnel met all
the solicitation's
experience requirements; and (ii) the record did not explain whether,
or how, the Contracting
Officer, who should have been aware of the awardee's prior False Claims
Act settlement, took that into account in making his updated affirmative
responsibility determination.
|
|
March 22 |
In
Alexander CPA PLLC, the CBCA held, inter alia, that: (i)
even if the Government has fulfilled its ordering
obligation by ordering the minimum quantity in an IDIQ
contract, the Government
can still breach that contract's implied duty of good faith and
fair dealing arising out of other express obligations; and (ii) a reference to
an "applicable" VA Financial Policy in the PWS, without
more, did not "incorporate" that policy and thus did not impose a
contractual duty on the Government to follow it.
In
Rock Supremacy LLC, the CBCA held that it lacked
jurisdiction over an appeal filed by a subcontractor of the prime contractor
to which the Contracting Officer's decision had been
addressed.
In
Woirhaye Logging Co., the CBCA denied the Government's motion to dismiss
an appeal allegedly sounding in tort
because alleging that the Government negligently failed to fulfill its
contractual duties is sufficient to establish the Board's jurisdiction. |
|
March 20 |
In
Williams Bldg. Co. (a decision difficult to summarize because, as
the Board notes, both parties went off on tangents in their
pleadings and arguments), the CBCA denied the contractor's
motion to strike the Government's "affirmative defense" to
the contractor's T for
C claim. Specifically, the Government alleged that the contractor had
progress billed the Government for certain subcontractor
costs that it "falsely certified" it had reimbursed them
for, which was a prior material breach. The contractor
maintained this was an allegation of fraud over which the
Board lacks jurisdiction. The Board reasoned that because
the T for C turned the fixed-price construction contract
into a cost-reimbursable one, the Government's defense was not really an
affirmative defense and did not require the Board to
determine an issue of fraud since all the Board would have
to do would be to determine the quantum of costs incurred to
the date of termination.
|
|
March 18 |
In JKB Solutions and Services, LLC,
on cross motions for summary judgment concerning the
Government's alleged liability for breach
of contract for failure to order the required number of
instructional courses, the Court of Federal Claims held that: (i) the contract to provide all instructors, transportation,
supervision, and non-personal services necessary to perform instructor services
was a commercial items contract because it was on SF 1449 for commercial
items, explicitly incorporated the standard clauses for commercial
items, was for the provision of generic instructional services rather than services
unique to the Government, and resulted from market research that
determined commercial services for this work were available, especially where the contractor failed to
object to that designation prior to award; (ii) because the contract
was a
commercial item contract, the termination clause in incorporated clause FAR 52.212-4
was applicable, and the
Government could use the presence of that clause to support
its constructive termination for convenience defense; (iii) even if FAR 52.212-4 were not applicable,
the normal fixed-price convenience termination clause (FAR 52.249-2)
would be incorporated via the Christian doctrine; and (iv) material
issues of fact remain whether the Government breached the contract
and, if so, whether it acted in bad faith or abused its discretion,
which would render the constructive termination for convenience
doctrine inapplicable.
|
|
March 15 |
In
Size Appeal of BC Technical Center, LLC d/b/a BC Engineered Products,
the SBA's OHA held that the Area Office erred in finding affiliation via the newly organized
concern rule because the challenged firm was not spun off from the
alleged affiliate.
In NAICS Appeal of First Nation
Group, LLC, the OHA held that the proper NAICS code in a solicitation to procure Medical Emergency Alert Devices for
the agency's Prosthetics Sensory Aid Service was the
Contracting Officer's choice of 334220 ("Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing") as opposed to
the appellant's choice of NAICS
334510 ("Electromedical and Electrotherapeutic Apparatus Manufacturing").
In VSBC Protest of JBL System Solutions, LLC, the OHA
dismissed a protest alleging (without any evidence) only that the challenged firm
was not a certified SDVOSB, especially where the record showed
the
challenged firm was certified. |
|
March 14 |
In
VSBC Protest of Systematic Innovations, LLC,
the SBA's OHA held that the challenged firm was a qualified SDVOSB JV
because: (i) the joint venture agreement (as supplemented by
the joint venture operating agreement and addendum)
adequately described the equipment and services to be provided by each member of
the JV, especially for this indefinite procurement; (ii) references to "collaboration"
between the members in the agreements did not give the non-managing member of
the JV negative control where the agreements did not give that firm any decision-making authority or the power to block actions or decisions of the managing venturer, which retained the exclusive power and authority to manage the business and
the affairs of the JV; and (iii) the JV's recordkeeping requirements did not violate SBA regulations.
In Size Appeal of HealthVerity,
Inc., the OHA granted the appeal in part and remanded the
case to
the Area Office to investigate further whether the CEO and several co-founders
of the challenged firm were former officers or key employees of Microsoft,
which would create affiliation under under the newly organized concern
rule. The OHA also held, however, that the Area Office was not required to further investigate
an identity of
interest allegation that the protester made only generally and without
specific evidence. |
|
March 13 |
In
Samsara, Inc., an unsuccessful request for an injunction against
contract performance pending resolution of a protest, the
Court of Federal Claims held that: (i) exhaustion of the USPS' two-step agency dispute
resolution procedure (including review by the agency's Supplier
Disagreement Resolution Officer) is not required for CoFC
jurisdiction; (ii) the agency's decision to reaffirm a contested award
constituted final agency action, rendering the current suit ripe for
review by the court; but (iii) the protester was not entitled to injunctive relief because
the court "has consistently found
unpersuasive arguments [that] seek to base a showing of irreparable harm on the possibility that
the successful offeror would gain advantages" during the pendency of a bid protest.
|
|
March 12 |
In
United Facility Services Corp., the CBCA granted the Government's
motion for summary judgment that the O&M contractor breached
its contract by
failing to respond within the required time to a notice of a burst frozen water
pipe in a courthouse. The decision was based, in part, on the fact that
the contractor failed to provide any
evidence of a force majeure excuse in its response to the summary
judgment motion.
In
First Place Auto Sales, Inc., the CBCA held that the purchaser of an auto
sold at public auction failed to establish that agency
misdescribed the condition of its paint because: (i) the agency did not
make any representations concerning the paint; (ii) prior to the sale,
the agency disclaimed any warranty; (iii) the purchaser failed to take
advantage of its opportunity to inspect the vehicle prior to the
purchase; and (iv) the remedy sought by the purchaser (the cost of painting
the vehicle) was barred by the purchase agreement. The CBCA also noted
it lacked jurisdiction over a claim involving another
vehicle purchased during the pendency of the current appeal
because that claim had never been the subject of a
Contracting Officer's decision.
In
King Rox LLC, the CBCA granted the agency's motion for
summary judgment related to its rejection of non-conforming
fuel tanks because they violated
clear PO requirements that they be double-walled and UL-142 compliant,
reasoning that: (i) the
contractor's argument that it supplied a drawing before award showing
single-walled tanks was contradicted by the record (including
the contractor's own witness); (ii) the contractor's argument that it notified the
Government after award that its proposed tanks would not be
double-walled was also not supported by the record (the contractor's post-award drawings did not
specifically indicate the tanks would not be compliant and their silence on
the subject could not be construed as an affirmative disclaimer,
especially when, after accepting the PO, the contractor had
become bound by its terms); and (iii) the four
days the Government took to inspect and reject the tanks after they were delivered
was a reasonable amount of time, so the Government could not be deemed
to have accepted them.
In
BCI Constr. USA, Inc., on cross motions for summary judgment, the
ASBCA held, inter alia, that: (i) the contractor
was not
foreclosed by Blue & Gold Fleet from challenging
the reasonableness of the liquidated damages assessed in the contract because there
was
no allegation that the contractor was aware of the problem with the
rate prior to
bidding; (ii) regardless how the liquidated damages rate was derived, an
amount equal to 0.01% of the contract price per day was reasonable;
(iii) factual issues concerning the date of substantial completion precluded
summary judgment on this issue; (iv) the contractor failed to provide any
evidence that the contract's concrete mix specification was defective,
establishing only that its supplier did not manufacture the type of
concrete specified, was unwilling to make changes to its batch plant to provide the
concrete required by the contract, and ultimately was unwilling to provide the type of
concrete required by the contract specifications; (v) the contractor failed to establish
that the contract made any representations as to the contractor's excessive seepage
Type I differing site condition claim; (vi) a factual issue of whether
and to what extent the condition that eventually caused seepage was
present at the time of award precluded summary judgment on the
contractor's Type II
differing site condition claim; (vii) issues of lack of notice and superior
knowledge also depended on unresolved factual issues; and (viii) the contractor
was not entitled to additional
labor and material costs allegedly caused by the COVID epidemic that
was not
anticipated when the contract was formed. |
|
March 10 |
In
Ekagra Partners, LLC, et al., which involved unsuccessful post-award,
consolidated protests
of awards in each of two tracks in a solicitation for the award of multiple BPAs,
the Court of Federal Claims held, inter alia, that:
(i) the
agency (a) had properly determined from looking at available information in public
databases that certain proposed subcontractors were not small
businesses under the only NAICS code assigned to the
small-business-set-aside solicitation and (b) had not, thereby, conducted a "size
determination" within the jurisdiction of the SBA; (ii) the agency
correctly determined that it was not free to rely solely on
the offerors' proposed small businesses' self-certification
as small businesses under allegedly similar NAICS codes because the definition (scope) of a
particular NAICS code is different from the size standard under that
code; (iii) under Blue & Gold Fleet, the plaintiffs waived their argument that
the solicitation was unclear as to how the NAICS code requirement
would be verified by failing to protest until after award; (iv) the agency did not engage in disparate treatment by not
reducing one awardee's self-score for using a large business subcontractor
because awardee had properly scored it as a large business (while the
protester had incorrectly scored it as a small business);
(v) the agency had
a rational basis for using the Federal Procurement Data System to verify
whether an offeror's past performance references met the minimum required
dollar value; (vi) even if the agency made mistakes in evaluating some of
these references, only one failure was required and, therefore,
the plaintiffs were not prejudiced by any mistakes; (vii) one of the plaintiffs lacked standing
to complain that one awardee should have been declared ineligible
because that plaintiff did not show it would have had a substantial
chance of award had that ineligibility determination been made; (viii)
the agency
had a rational basis for finding a protester did not follow the solicitation requirement to propose labor categories "appropriate" for
the required tasks; (ix) in most of the numerous cases alleged by the
protesters, the agency did not apply unstated
evaluation criteria and where there were errors, they were not
prejudicial because there were other valid reasons the protesters were found
ineligible for award; and (x) the agency's explanations for its findings of
ineligibility were either adequate in the circumstances or, in the
cases where they were not adequate, were non-prejudicial because there were
other adequate reasons for finding the proposals ineligible for award.
|
|
March 7 |
In
PDS Consultants, Inc., an unsuccessful protest of corrective action,
the Court of Federal Claims held that: (i) the plaintiff waived its right
to seek reinstatement of its contract award by agreeing to the broad release language
in a
bilateral settlement agreement terminating its contract for convenience;
and (ii) the agency had a rational basis to "go back to the
drawing board" and undertake corrective action to correct
errors in the procurement.
The SBA has issued an interim final rule
concerning the Women-Owned Small
Business (WOSB) program to specifically
recognize that the SBA Administrator
may extend the date of
WOSB
recertification where appropriate. Comments are due by May 6. |
|
March 6 |
The GAO sustained a protest by Life Science
Logistics, LLC because: (i) the awardee's facility
availability letter did not comply with the solicitation's requirements; and (ii) the
agency failed to engage in meaningful discussions because it did not
mention a significant weakness in its discussions with the protester.
|
|
March 5 |
In Nauset Constr. Corp.,
the Court of Appeals for the Federal Circuit affirmed the
prior ASBCA decision that:
(i) the contractor was not prejudiced by the lack of notice of specific appeal rights in
the Contracting Officer's letter terminating the contract
for default where the letter directed the contractor to the FAR clause
that contained those appeal times; and (ii) the Government's conduct after
issuing the default termination did not vitiate it because the contractor
could not have reasonably concluded the Contracting Officer was
reconsidering the termination decision. The court did note that the
Board had made a harmless error by stating that events after
the 90-day appeal had expired can never be considered in
deciding whether the Contracting Officer has reconsidered
the decision.
|
|
March 4 |
In
Thalle
Constr. Co., an unsuccessful post-award protest, the Court of
Federal Claims held that: (i) the alleged inadequacy of a commitment letter from
the awardee's proposed subcontractor was irrelevant because, in
its revised
offer, the awardee proposed to self-perform the work; and (ii) the
awardee's revised proposal included the correct duration for
its construction schedule. The court, however, found that
the agency had not followed "best practices" in its
imprecise description of its evaluations in both these
areas, which had given the protester grist for its arguments
and had made the court's job of assessing their validity
more difficult.
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March 1 |
In The
District Communications Group, LLC and CruxDGC, LLC, a successful protest, the Court of Federal Claims held that the
Contracting Officer's determination of an impaired objectivity OCI was
irrational, in part because the solicitation contained a provision
that eliminated the possibility of such an OCI in the circumstances
posited by the Contracting Officer in attempting to justify the
finding.
LOGMET LLC
won its GAO protest because there was no indication in the agency's price evaluation in a FAR Part 8.4
procurement that the agency had considered
whether several labor
categories contained in the PWS were within the scope of the supposedly
corresponding labor categories
contained in the awardee's underlying FSS contract. |
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February 29 |
The GAO sustained a protest by
Global Patent Solutions, LLC, because: (i) although the Patent and
Trademark Office's (PTO) ability to use the unique alternative competition method
authorized by The Patent and Trademark Office
Efficiency Act (PTOEA) and implemented through section 6.1.1
1 of the PTO Acquisition Guidelines (PTAG) exempts the agency from most
requirements of standard procurement statutes, the PTO is not free to award without regard to the factors stated in the solicitation;
and (ii) the awardee's proposal
did not comply with the solicitation's requirements regarding small
business participation.
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February 28 |
USAID
seeks public comments by April 29 on a proposed
rule revising its acquisition regulation (AIDAR) to incorporate new
requirements for Protection from Sexual
Exploitation and Abuse (PSEA) and
update existing child safeguarding
requirements. This proposed rule
consolidates new PSEA and updated
child safeguarding compliance and
reporting requirements with existing
requirements for Counter Trafficking in
Persons.
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February 26 |
The State Department proposes to amend its
acquisition regulation (DOSAR) to include a
new contract clause entitled
"Nondiscrimination in Foreign
Assistance," which states that contractors and
subcontractors receiving department-funded foreign assistance funds must
not discriminate oc specified bases
against end-users of supplies or services
(also referred to in this rule as
beneficiaries and potential beneficiaries)
or in certain employment decisions
involving persons employed in the
performance of this contract and funded
in whole or in part with foreign
assistance funds except where target
populations are specified in the relevant
SOW or as
otherwise required by U.S. law. Comments are due by
March 19.
Effective March 18, a final rule adopts, without change, the
SBA's prior proposed rule to utilize the
current statutory alternative size
standard for its 7(a) Business and
Certified Development Company Loan Programs, subject to a
34.46 % adjustment for inflation
that has occurred since the
establishment of the statutory
alternative size standard in 2010. The
inflation adjustment would increase the
size standard’s level for tangible net
worth to $20 million and for net income
to $6.5 million. SBA also is adjusting for inflation the applicable statutory limits
for contract size under the Surety Bond
Guarantee Program. The
adjustment increases the contract limit
to $9 million and the contract limit for
federal contracts if a federal
contracting officer certifies that such a
guarantee is necessary to $14 million.
GSAR Case 2020-G511: Effective March 25, a final rule
amends the GSA's acquisition regulation
(GSAR) to update and clarify the
requirements for use of FSS contracts by eligible
non-federal entities, such as state and
local governments.
In
KUNJ Constr. Corp., the ASBCA denied cross
motions for summary judgment because disputed facts existed as to,
inter alia: (i) the Government's accord and satisfaction and release defenses
based on bilateral mods in that (a) the reasons for
the modifications’ time extensions were unknown, (b) the connections between the work in
the areas addressed by the modifications and the claims are not clear, and (c) the
releases drafted and inserted by the Government did not indisputably reveal the parties’
intentions; and (ii) whether the contractor's claims were barred by the contract provisions
cited by the Government.
In
StraCon Services Group, LLC, over the protester's objection, the
Court of Federal Claims dismissed a protest as moot (which
the protester conceded) after the Government agreed to undertake corrective
action based on its conclusion that an OCI existed with regard to
the original awardee. The protester basically wanted to keep
the protest open so that it could argue the original awardee
should not be allowed to compete on the revised solicitation
after the corrective action. |
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February 23 |
Federal Acquisition Circular (FAC)
2024-03 has been published and includes the following
two items:
FAR Case 2022-009: An interim rule amends the FAR to
implement regulatory changes made by
the SBA to implement
section 862 of the William M. (Mac)
Thornberry NDAA for FY 2021, which transfers the
verification of small business concerns
owned and controlled by veterans or
service-disabled veterans from the
VA to
SBA and creates
a certification requirement for SDVOSB concerns seeking sole-source
and set-aside awards under the SDVOSB
Program across the Federal Government.
Section 862 provides for a one-year
grace period after the transfer date for SDVOSBs to submit an application for
certification to SBA, during which SDVOSBs may continue to self-represent their
socioeconomic status in SAM.
Comments are due by April 23.
FAR Case
2023-012: A final rule amends the FAR to incorporate revised thresholds for
application of the World Trade
Organization Government Procurement
Agreement and the Free Trade
Agreements, as determined by the
United States Trade Representative. |
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February 22 |
In Rita
R. Wadel Revocable Living Trust and 229 Jebavy Road, LLC dba Ludington
Industries, the CBCA: (i) denied the Government's allegation that
the assignee of a lease lacked
standing under the Anti-Assignment Act, 41 U.S.C. § 6305(a)
(2018), and the Assignment of Claims Act, 31 U.S.C. § 3727, because (a) the Contracting Officer's recognition of
the assignee in the final decisions
established an implied-in-fact novation and (b) the assignment was just a reorganization of trust assets between the same parties and, therefore,
was a transfer by operation of law, exempted from the
Anti-Assignment statues; (ii) held that the Government/lessee breached
the implied
covenant not to commit waste by contaminating the building with lampricide
during the lease term;
but (iii) held that the lessor's recovery for breach of the implied covenant not to commit waste
was limited to the diminution in the building's fair market value and
could not
extend to the costs of demolishing the damaged building and constructing
a new one.
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February 20 |
In
Amentum Svcs., Inc., which involved claims for extra costs related
to the COVID epidemic, the ASBCA held that: (i) pursuant to FAR 52.222-43(d) and
the contractor's collective bargaining
agreement (CBA) for one contract location, which was specifically made
dependent on California law, the contractor was entitled to an adjustment to reflect its
actual increase in applicable fringe benefits in the form of COVID related sick leave
mandated by California law and the Navy's 14-day quarantine policy,
especially where the Government failed to allege prejudice from the contractor's alleged failure to provide timely notice;
(ii) the contractor was not entitled to the same
result where another CBA did not provide for the applicability of
California law; (iii) the Navy's 14 day quarantine requirement was a sovereign
act not directed only at the contractor, which made performance of each party’s
contractual obligations impossible during the particular 14-day quarantine periods at issue,
thereby establishing a defense by the Government to liability under the
"Changes" clause for any increase in costs that the contractor suffered as a result of the
quarantine policy; and (iv) COVID and the resultant, associated federal actions were not
anticipated when the contract was formed and, therefore, could not be the
basis of a claim by the contractor for mutual mistake. |
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February 16 |
In
VSBC Protest of
McKenna Brytan Industries LLC, the SBA's OHA sustained the protest because
there was no evidence the challenged firm had applied for SDVOSB certification prior to
the date of its self-certification, and
during the protest, the challenged firm produced no evidence to substantiate its claimed SDVOSB status
or even argued that it was at least 51% owned, and fully controlled, by one or more
SDVs.
In VSBC Protest of Thunderyard Liberty JV II, LLC,
the OHA denied challenges to the effective date of an SDVOSB JV agreement and to various
of its provisions, including the requirement for two signatures
on a bank account and descriptions of the division of responsibilities
by the JV members and the resources required to perform the
contract, both of which
were only generally described due to the nonspecific nature of the solicitation. |
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February 15 |
The GAO sustained a protest by Conti Federal
Services, LLC due to a flawed cost
realism analysis. Specifically, after concluding the protester's proposed labor rates
were too low in
two categories, the agency adjusted them upward to equal the protester's own
proposed rate for another labor category (superintendent) requiring higher
qualifications rather than just to the IGE, which resulted in the
protester's offer not being the lowest offer.
In
Hamp's Constr. LLC, the ASBCA denied a Type I differing site condition
claim because there were no
representations in the contract documents concerning the admittedly
unexpected conditions the contractor encountered at one point in the site.
In
NetCentrics Corp., the Court of Federal Claims denied the Government's motion to remand
the case to permit limited
corrective action because the proposed corrective action would not moot
all the challenges raised by the protester and would likely only delay
the resolution of the protest. (I wish the GAO would take this
approach instead of automatically dismissing protests as
soon as the agency says the magic words "corrective
action.")
DFARS Case 2022-D019: A final rule amends the DFARS to
supplement the FAR's implementation of
E.O. 14005 ("Ensuring
the Future Is Made in All of America by
All of America’s Workers").
DFARS Case 2020-D021: A final rule amends the DFARS to
implement section 372(f) of the NDAA for FY 2020, which requires DoD contracting officers to
include a clause in contracts when
contract working dogs are provided
under the contract.
DFARS Case 2022-D013: A proposed rule would amend the
DFARS to implement section 843 of the NDAA for FY 2022, which requires offerors
to certify that fuel to be provided for a
contract in support of an overseas
contingency operation is not sourced
from a prohibited nation or region and
to furnish such records as are necessary
to verify their compliance with
applicable export control and
anticorruption regulations and statutes. Comments are due by April 15.
DFARS Case 2021-D002: A proposed rule would amend the
DFARS to to
introduce coverage of trademarks and
similar designations, such as popular
names and program names. Comments are due by April 15.
GSAR Case 2022-G519: A final rule amends the GSA's
acquisition regulation (GSAR) to remove Small Disadvantaged
Business Program requirements
references to align with the FAR for consistency. |
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February 14 |
In
denying the Government's motion for partial reconsideration of the ASBCA's
prior opinion in Allard Nazarian Group, Inc. dba Granite
State Manufacturing, the Board held, inter alia, that FAR 52.216-7(g), does
not give the Contracting Officer an
unfettered right to reduce the costs paid to a contractor
without conducting an audit.
In
Dashti Sanat Logistics and General Contracting,
the ASBCA dismissed an appeal because it could not establish
there had been an underlying
claim to the Contracting Officer (the contractor alleged it had
submitted a claim but
acknowledged the Contracting Officer had never received it). |
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February 13 |
The GAO
published two decisions sustaining protests, each one on
multiple grounds.
In Kauffman and
Assocs., Inc., the GAO held that (i) the agency's assignment of a weakness to
the protester's quotation in the Technical evaluation area for lack
of experience was based on the agency's interpretation of a solicitation
provision that the GAO determined to be latently ambiguous; (ii) the agency did not evaluate the quotations on an equal basis where it
assessed a significant weakness to the protester's quotation for failing to outline a plan to
track and deploy CEUs, while not assessing a similar significant weakness to
the awardee's
quotation, which proposed a similar plan in this area; (iii) it was unreasonable for
the agency
to assign the awardee an Excellent rating in the Personnel evaluation factor when
its quotation failed to meet the solicitation's requirements; (iv) the agency
erroneously concluded the awardee had met the solicitation requirements in
the Management factor; (v) the Past Performance evaluation of
the awardee was flawed
because it was based in significant part on the experience of its proposed
project director described in the Technical volume of the quotation rather
than the past performance examples included in the Administrative volume,
which was supposed to be the source of the past performance evaluation;
and (vi) there was no basis
for agency's conclusion that the awardee's pricing was fair and reasonable
where it did not comply with the solicitation requirement that its
pricing be in line with its underlying GSA Schedule pricing.
In Deloitte
Consulting, LLP; Softrams, LLC, the GAO held that: (i) the agency conceded it treated
the protesters' proposals
disparately from the awardees' in several areas where the agency had assigned
strengths only to the awardees' proposals even though the protesters' proposals were
not meaningfully different, and such disparate treatment was
prejudicial given the closeness in rankings of the proposals; (ii) the agency's
evaluation failed to take into account that an awardee took exception to
a material solicitation requirement; (iii) where the solicitation
specifically stated that price would be evaluated
on the basis of an estimated number of hours per labor category, the agency could
not choose a different method of price evaluation (even though that method would have been acceptable had it been specified in the solicitation) and decline to estimate hours for
the majority of labor categories; (iv) the agency failed to conduct the required qualitative
Past Performance evaluation of proposals, and record did not support
its conclusion that all offerors were equal in this area; (v) the best value
tradeoff was flawed because it determined a preliminary group of
awardees based solely on price, the lowest ranked evaluation factor,
and then compared the protesters' proposals only in relation to the
lowest ranked (i.e. highest priced) proposal in that initial group,
based primarily on just counting strengths rather than any real
qualitative comparison.
In
Rockwell Collins, Inc., a successful protest, the Court of Federal
Claims held that the agency's cancellation of a solicitation for proposals to refresh the center
console Fuel System and Flight Display System on the KC-135 aircraft
lacked a rational basis because the agency relied exclusively on FAR 15.206(e) but did not identify a proposed amendment to the
Government’s requirements or
terms and conditions as required by that provision. |
|
February 12 |
In CSI Aviation,
Inc. (on remand
from the CAFC), although the CBCA
denied cross motions for summary judgment due to disputed issues of fact, it held that
the contractor's
standard commercial terms and conditions (which the CAFC had held were incorporated in
the underlying schedule contract) could not be disregarded entirely just
because some of them were inconsistent with federal statutes and
regulations when the contractor did not rely on the disputed provisions
in submitting its claims and the provisions were not contrary to any rights that
Government
must assert to defend against the claims. The Board also noted there were other issues related to the Order of Precedence clause
that had not yet been argued by the parties, and, therefore,
would not be addressed at this time by the Board.
|
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February 8 |
In
Thomas Creek Lumber and Log Co., which involved a claim for breach of
a timber-sales contract related to its termination, the Court of Federal Claims first rejected
the Government's contention that the claim had not
previously been presented to the Contracting Officer because his decision,
itself, signaled his awareness of the amount and basis of the claim. The court then (i) dismissed two counts of the Complaint based on contract interpretation
because the Government clearly terminated the contract using a
provision different from the one on which the plaintiff's claim relied (i.e., due to an environmental disaster, namely a fire, rather than merely environmental considerations); (ii) dismissed another count because the plaintiff failed to cite any contract
provision that the Government had allegedly breached; but then (iii) declined to
dismiss a count alleging that the Government had failed to follow required
rate redetermination provisions because there were disputed issues of
fact that would require further development in the record.
|
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February 7 |
In
Health Net Federal Services, LLC, an unsuccessful post-award protest
following corrective action, the protester attacked the
evaluation of the awardee's proposed small business
participation in multiple ways, but the Court of Federal
Claims held that: (i) the agency's evaluation of
the awardee's revised subcontracting plan, including goals and
participation by proposed subcontractors, had a
rational basis; (ii) the awardee's revised proposal did not include material
misrepresentations as to its planned subcontract participation and
commitments; (iii) during discussions, the agency adequately investigated various aspects of
the awardee's proposal concerning its small business
participation; (iv) the solicitation's
subcontracting percentage was a goal rather than a requirement;
and (v) there were rational bases for the agency's past performance evaluation
related to small business participation and the agency's
responsibility determination related to the awardee.
|
|
February 6 |
In Edgewater
Construction Services, LLC, which involved contract interpretation,
the CBCA held that: (i) a contract requirement to "REUSE EXISTING [PNEUMATIC] TUBE TRANSFER STATION
LOCATION TO EXTEND SERVICE” to new structural additions required the pneumatic tube systems installed
in the new additions to connect to the existing Swisslog system; (ii) the tube system desired
by the contractor would not connect to the existing Swisslog system;
(iii) the agency
did not change the contract by rejecting the use of the system proposed by
the contractor and requiring the Swisslog system, which was only one that would
connect to existing system; and, therefore, (iv) the contractor was not entitled to its extra costs
of installing the Swisslog system.
In Alexander Tyler Corp.,
the CBCA held it lacked
jurisdiction over an appeal from the denial of an agency-level bid protest.
In
MTS General Trading & Constr., the ASBCA denied the Government's motion to dismiss an appeal because, as is common practice in Iraq, the
various names for the Iraqi company performing orders under a BPA referred
to a single legal entity, and the various names for the
company's officer on the BPA, individual orders, and the claim certification referred to
the same individual, so the entity identified as the contractor in the
claim and the individual who certified the claim were both
unobjectionable. |
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February 3 |
In
ASRC Federal Technology Solutions, LLC, an unsuccessful post-award protest,
the Court of Federal Claims denied
challenges to multiple aspects of the evaluation, holding: (i) where
the solicitation
explicitly informed offerors to base staffing levels on current
requirements rather than historical levels, the agency's assignment of
a weakness to the plaintiff's proposal in this area would not be
second-guessed where the plaintiff's proposal was based on historical
levels; (ii) there were rational bases for the assignment of a weakness to
the protester's
management proposal based on a perceived inconsistency between its
proposed key personnel and that proposed approach; (iii) the agency
rationally concluded the protester's proposal lacked
sufficient information regarding its proposed labor categories to perform
the work; and (iv) there was a rational basis for the agency's assignment of
a strength to
the awardee's organizational structure.
In NAICS Appeal of Elevated
Technologies, Inc., the SBA's OHA held that in a solicitation to
replace an elevator system, the Contracting Officer's choice of NAICS 238290 ("Other Building Equipment Contractors") was preferable to
the contractor's choice of NAICS 236220 ("Commercial and Institutional Building Construction")
because the former code specifically covers elevator installation and repair according the the NAICS Manual.
|
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February 2 |
Deloitte
Consulting, LLP won its GAO protest because the record did not
show that the agency had
considered the impact on contract performance of the awardee's elimination of
a proposed team partner in order to mitigate an OCI.
|
|
February 1 |
In Size Appeal of Sanford Federal,
Inc., the SBA's OHA held that, even if (as the challenged
firm contented) the original size protest was
non-specific, the challenged firm did not
(i) raise this argument to the Area Office, (ii) respond to the protest allegations,
or (iii) submit requested information, and, therefore, failed to meet its burden of establishing that it
was a small business.
FAR Case
2023-021: A proposed rule would amend the FAR to
implement a proposed governmentwide policy that would
prohibit contractors and subcontractors
from seeking and considering
information about job applicants’
compensation history when making
employment decisions for certain
positions. Under the proposed policy
and the proposed regulatory
amendments, contractors and
subcontractors would also be required
to disclose the compensation to be
offered to the hired applicant in job
announcements for certain positions. Comments are due by April 1.
The DOT proposes
to update the regulations governing the
procurement, management, and
administration of engineering and
design related services directly related
to a highway construction project that is
funded through a discretionary grant
administered by FHWA involving recipients other than state transportation
agencies. Comments are due by
April 1.
Effective May 22 unless significant adverse
comments are received by February 22, USAID proposes a
direct final rule amending its acquisition regulation (AIDAR) to
maintain consistency with federal and
agency regulations, remove obsolete
material and internal agency
procedures, and make editorial
amendments to clarify the regulation. |
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January 31 |
In
REV, LLC, the Court of Appeals for the Federal Circuit reversed the prior CoFC decision that
the protester lacked
standing and held that, assuming (for purposes of deciding standing) the protester were
to prevail on its allegations of
errors in the evaluations of six of the nine offerors that were ranked
ahead of it, the protester would have had a substantial chance of being
selected as one of the awardees in a solicitation that contemplated at least
seven awardees. |
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January 30 |
NFS Case
2023-N002: Effective February 23, NASA is finalizing a rule
to amend its acquisition regulation supplement (the NFS) by removing
NFS 1831.205–671 (Solicitation
provision) and NFS 1852.231–71 (Determination of Compensation
Reasonableness) from the NFS and to rely on similar provisions in the FAR. |
|
January 29 |
In
Oxford Federal, LLC, over
the Government's objections, the Court of Federal Claims granted
the plaintiff's motion to amend its
Complaint filed after oral arguments on the Government's motion to
dismiss the original Complaint because there was not undue delay and
the amendments would not be futile (i.e., it was possible they would
survive another motion to dismiss).
In
BES Design/Build LLC, which involved contract interpretation, where
a task order was ambiguous on the question
whether the contractor was to be paid on a per person/per day basis,
the court
looked to extrinsic evidence, specifically the parties' conduct before the
dispute arose, and found the parties clearly acted as if they agreed that
was the basis of payment. The court also, inter alia, denied the contractor's claim
for unabsorbed overhead under Eichleay because the contractor did not prove it was ever on standby, much less that it was
for an indefinite duration.
In
Royal Hawaiian Movers, Inc., the CBCA held it lacked
jurisdiction over a claim not presented to the Contracting Officer before
the appeal was filed.
In
Aviation Training Consulting, LLC, the ASBCA denied the Government's motion to dismiss
the appeal of a claim for equitable
adjustment for lack of jurisdiction
because there was no indication in the legislative history that Congress intended to exclude
claims involving Section 3610 of the CARES Act from the operation of
the CDA. |
|
January 26 |
In
Safal Partners, LLC, a protest being dismissed as moot upon the
agency's undertaking of corrective action, the Court of Federal Claims denied the plaintiff's motion to modify the protective order to permit it to use protected materials in
other protests at the GAO or the agency related to the same procurement.
In
GoodEarth Distribution, LLC, the court: (i) denied the
Government's motion to dismiss the contractor's claim for breach of
contract due to nonpayment because the fact that the Government remitted
payment to a fraudster account did not alleviate it from its duty to pay
the contractor; (ii) held that the contractor did not allege facts that would support
its contention that the Government's actions in investigating
the possible source
of the fraud (including the plaintiff) or denying its CDA claim breached
the implied duty of good faith and fair dealing; and (iii)
held it lacked jurisdiction over
the contractor's claim for a declaratory judgment that the Government's actions amount
to de facto debarment because the declaratory judgment was not sought in a bid
protest or as "incident of and collateral to" a monetary judgment. |
|
January 25 |
The GAO sustained a protest by
American Material Handling, Inc.
because in a solicitation for a brand name or equal Caterpillar
980 wheel loader, the agency rejected a quote for failure to comply
with certain salient characteristics of the loader mentioned on the
manufacturer's website but nowhere listed as required in the
solicitation.
|
|
January 24 |
In
ECC Int'l Constructors, LLC, based
on the CAFC's
recent holding on appeal that the CDA's sum certain requirement is
not jurisdictional, the ASBCA held that the Government had forfeited its right to request
dismissal of a claim for lack of a sum certain because it waited until
after the hearing on the merits to do so.
The Board reached reached the same conclusion in a
companion case decided the same day. |
|
January 23 |
In
Samsara, Inc., a successful post-award protest, the Court of
Federal Claims held that although the agency was not required to
level the playing field by ignoring a capability obtained by the
awardee on a prior contract and properly downgraded the protester's
proposal for failing to address one required area in the solicitation,
the agency improperly used an unstated evaluation criterion to downgrade
the protester's proposal for lacking a capability at award that
it was not required to have until 180 days after award.
The
ASBCA's website is back up (at last).
|
|
January 22 |
In
Abdul Mutakaber, the CBCA
(interpreting a lease) held that the withdrawal of U.S. forces from Afghanistan did not result from
the "destruction" of the leased premises under the "Destruction of Premises"
provision, and, therefore, did not give the Government the right to immediate
termination under that provision. Therefore, the agency's abandonment of
the premises
would be considered a constructive termination for convenience under
the separate termination provision, but the termination clause did not contain any
requirement that the Government formally "return" the terminated
properties to the lessor (or protect them) following the termination.
See also subsequent
decision setting
quantum. |
|
January 18 |
In
VSBC Protest of MicroTechnologies LLC, the
SBA's OHA dismissed a
protest as nonspecific because, even after being ordered to do so, the protester did not provide any credible
evidence that the challenged firm failed to meet any of VOSB or SDVOSB
requirements listed at 13 C.F.R. Part 128 or the joint venture
requirements at 13 C.F.R. § 128.402.
The ASBCA's website is still down today. |
|
January 17 |
FAR Case 2021-020: A proposed rule would amend the FAR to implement regulatory changes made by
the SBA to
update and clarify requirements
associated with the limitations on
subcontracting and the
nonmanufacturer rule. Comments are due by March 18.
The ASBCA's website is still down as I type this. |
|
January 16 |
In United
Communities, LLC, the Court of Appeals for the Federal Circuit affirmed
the prior Court of Federal Claims decision denying the plaintiff's motion for
an enlargement of time to file a late notice of appeal to the CAFC because there was no
showing of excusable neglect
by the plaintiff, just a "garden variety" attorney
miscalculation of the time limit for the notice of appeal.
GSAR Case 2022-G514: Effective February 12, a final rule
amends the GSAR to clarify when GSAR clauses
apply to FSS
contracts.
I'm sure it's just temporary, but the ASBCA's own website and
the decisions linked there are down at the moment. |
|
January 11 |
The GAO sustained a protest by SierTeK-Peerless JV LLC
because the agency failed to
adequately document its evaluation of the awardee's proposal under the prior experience
factor, specifically what led the agency to conclude that the size of the prior
experience projects submitted by the awardee was comparable to the
work to be performed under the task order resulting from the current
solicitation.
In
Sonabend Co., the ASBCA denied the
Government's motion for summary judgment due to material issues of
fact. Specifically, the Government claimed that broad,
unqualified release language in two
mods meant they constituted a release and accord and satisfaction of all
the contractor's claims on all task orders, but the fact that a separate mod
was signed for each one of two of the task orders suggested that the
release in either mod was not intended to cover all task orders (else
there would not have been a need for two mods).
In McCarthy HITT – Next NGA West JV,
the ASBCA denied the Government's motion to dismiss the appeals on
the grounds that
Complaint failed to state any claim upon which relief could be granted.
Specifically, the Board held that: (i) the contractor sufficiently alleged
the elements required for (a) at least one
constructive change claim, i.e., that the Government required it to
perform in a manner different from the contract requirements, (b) a constructive suspension of the work, and (c)
a finding of at
least one breach of the implied duty of good faith and fair dealing; and
(ii) the Government's sovereign acts defense was not conclusively
established by the pleadings alone as an affirmative defense to the entirety of all
the claims,
as it must be for the Government's motion to dismiss to succeed.
In
Windamir Development, Inc., the ASBCA held it had jurisdiction over
the contractor's appeal from a default termination,
but not over: (i) its claim of government-caused delay not previously
presented to the Contracting Officer for a decision; (ii) its request
for a declaratory judgment that its interpretation of certain contract
specifications was correct (because in the terminated contract, this
was
no longer a live dispute); and (iii) its claims for monetary relief
because no monetary claim had previously been presented to the Contracting Officer. |
|
January 10 |
In
Central Environmental, Inc., the ASBCA held that the
Government had breached the contract by failing to comply with a contract
requirement that it notify contractor that access to site
would be periodically unavailable or delayed due to internal road
closures during missile testing.
In Daniels Building Co.,
the CBCA denied the contractor's claim for
reformation based on an alleged mistake in its bid that it discovered after
award because the mistake was not apparent to
the Contracting Officer prior to award, especially where the bidder had
reconfirmed its bid upon request for verification by the Contracting Officer
before award.
In Clean Harbors Environmental Services, Inc.,
which involved contract interpretation, the CBCA held that
the contractor's standard
services agreement form, which it submitted with its quote in response
to an RFQ for the award of a purchase order, but which was not incorporated
(or referenced) in the final purchase order, did not become part of the
order, especially where (a) the RFQ specifically stated that terms and
conditions other than those stated in the RFQ would not be accepted and
(b) some of the terms in the standard services agreement actually conflicted
with those in the RFQ. |
|
January 9 |
Reading yesterday's publication of the Court of Federal
Claims' decision in
Superior Waste Management LLC, I was at first perplexed as to why the court was spending the first 30 pages of the decision discussing in such great detail the differences among jurisdiction and standing,
and the different types of standing, and prejudice, until I finally read far enough to realize this was a
judge
as interested in strongly criticizing the Federal Circuit's
2023 decision in
CACI, Inc.-Federal
as in deciding the merits of the protest.
The Court of Federal Claims described what it viewed as the
questionable part of the
CACI holding as follows: On appeal, the Federal Circuit — not sitting en banc, but in a panel decision —
concluded that the "interested party" issue "presents a question of statutory standing
rather than Article III standing," which is not a controversial statement per
se. CACI, 67
F.4th at 1151.19 But the Federal Circuit then swept away decades of its own jurisprudence
in holding that: (1) "[o]ur prior caselaw treating the interested party issue as a
jurisdictional issue . . . is no longer good law[,]" id.; and (2) "the issue of prejudice is no
longer jurisdictional unless it implicates Article III considerations, and our cases to the
contrary are no longer good law[,]" id. at 1153 (emphasis added). With respect to the
latter point, the Federal Circuit further explained that "[t]he issue of prejudice can
properly be resolved by the Claims Court initially only if . . . the issue need
not be remanded to the agency, for example, if the issue is a purely legal question." Id. at
1153-54 (emphasis added). Otherwise, "if the issue has not been addressed in the first
instance by the contracting officer, a remand is necessary for the contracting officer to
address the issue of prejudice." Id. at 1154.
The Court of Federal Claims then goes on to discuss at
length the what it perceives as the many problems with CACI,
including procedural problems (e.g., overruling prior CAFC
precedent without an en banc decision) and practical ones
(the ambiguities it creates for courts trying to analyze
particular cases). Just when I thought the court had
finished venting and was into the merits of the case, it
returned (beginning on page 36 and continuing to page 43) to
discussing CACI and the problems it created for courts
determining whether prejudice on the merits exists. Finally,
beginning on page 48 (!), the court gets down to the
business of discussing the merits of the protest, concluding
that: (i) the protester did not establish prejudicial errors in
the Government's allegedly flawed unbalanced pricing
analysis; (ii) the
mathematical method the protester advocated the Government should
have used in conducting the unbalanced pricing analysis
actually would have diminished any unbalancing in the
awardee's pricing while not diminishing the protester's own
(admittedly) unbalanced pricing; (iii) the description of the
unbalancing
analysis in the solicitation was patently
ambiguous, the Government's interpretation was a reasonable
one, and the protester failed under Blue & Gold Fleet
to raise the issue prior to bidding; (iv) the solicitation did
not prohibit the Government from comparing total prices to
the IGE as part of its pricing analysis; and (v) although the
agency's unbalanced pricing analysis deviated from the FAR's
requirements and was arbitrary and capricious, the protester
did not show it was prejudiced because the solicitation did
not mandate rejection of an unbalanced bid and the source
selection official documented his assessment of the risk
associated with the awardee's out-of-line pricing, even
though the agency did not label it unbalanced.
I come away from the case thinking
that little, if anything, will change for protesters, who
will still have to be careful to allege and establish the
elements for jurisdiction, both types of standing, and
prejudice. The court may very well be correct to fuss about
all the extra work for the court created by the CACI decision, but
that is not something protesters can change.
FAR Case 2019-015: A proposed rule would amend the FAR
to improve consistency between the
procurement and nonprocurement
procedures on suspension and
debarment, based on the
recommendations of the Interagency
Suspension and Debarment Committee. Comments are due by March 11. |
|
January 8 |
In Aegis-KK/GardaWorld Federal Africa, a Joint Venture,
a partially successful post-award protest, the Court of
Federal Claims held that: (i) the
agency's evaluation of the awardee's pricing was not objectionable because
the solicitation did not require the level of granularity in pricing proposals
alleged by the protester; (ii) although the solicitation did not require that
a joint
venture offeror have been in existence for a year, joint venture
partners existing under the same corporate umbrella did not
satisfy the solicitation requirement that the partners have experience
working together with one another for a year; (iii) letters from proposed
key personnel expressing their interest in the contract and referring
to their "agreement" with the awardee did not satisfy the solicitation
requirement that offerors provide the actual employment agreements
with key personnel, and the agency failed to explain why it
waived this requirement for the awardee, which requires the court to
remand the matter to the agency for further explanation; (iv) the agency had
a rational basis for accepting the awardee's explanation that it would meet
the solicitation's licensing requirements within six months and the steps
it would undertake to do so, especially given the nine-month period
between the submission of offers and award; and (v) to the extent the awardee
failed to provide sufficient information required by the solicitation
concerning affiliates and officers, the failure was not prejudicial to
the protester.
|
|
January 4 |
In Federal Performance Management Solutions, LLC,
an unsuccessful protest, the Court of Federal Claims upheld
the OHA's
decision that a mentor-protégé JV was not small for the procurement in
question because its bid was submitted years after the JV's two-year
limit for submitting offers pursuant to 13 C.F.R.
121.103(h).
In
Construction Helicopters, Inc., a decision interesting only for
its thorough discussion of the standards the court uses to
evaluate requests for additional discovery in bid protests,
the court held that some discovery requested by the plaintiff would
be permitted as
the court could not effectively review the protest allegations without
it, but most of what the protester was seeking was not necessary
for the court's review. |
|
January 3 |
In
B.H. Aircraft Co., the Court of Appeals for the Federal Circuit affirmed
the
prior CoFC decision without reaching some of the grounds advanced by
the lower court (i.e., lack of standing due to the bidder's
lack of qualifications). The CAFC held the case should be
dismissed for failure to state a claim for improper bundling
because the protester had not alleged that two or more
smaller contracts had been bundled to form the protested solicitation.
|
|
January 2 |
In
VSBC
Protest of Tomahawk Sourcing, LLC, the SBA's OHA dismissed a protest that failed to timely and effectively respond to OHA order to show cause why the protest should not be dismissed as nonspecific.
|
|
January 1, 2024 |
Happy New Year! As usual, I will temporarily retain the last couple of months of the 2023 blog below, but you can find the entire 2023
blog here.
In
JE Dunn Constr. Co., the ASBCA denied the
Government's request to dismiss the appeal due to the alleged failure
by the contractor to
state a sum certain for each separate item in its claim because the CAFC's
recent
decision in
ECC Int'l Constructors was that the sum certain requirement is
not jurisdictional so that challenges to it can be forfeited if raised too
late, and here, the Government did not raise the issue until after the
hearing on the merits (even though the Board had sua sponte raised the
question before the CAFC issued its
ECC Int'l Constructors decision). Subsequently, the Board
denied the Government's motion for reconsideration.
In
Kellogg Brown & Root Services, Inc., the ASBCA, over the
contractor's objections, permitted the Government to amend
its answer to add
the affirmative defense of material misrepresentations because: (i)
although the Government delayed for years in asserting the defense, it did not
unduly delay after the litigation on the contractor's claims
commenced, and, given that the Board is granting the contractor extra
discovery time to prepare for the defense, the delay did not prejudice
the contractor; (ii) a common law affirmative defense need not be
raised in a Contracting Officer's decision before it can be asserted
at the Board; (iii) the defense does not fall within the CDA's
prohibition on the "agency head to settle,
compromise, pay, or otherwise adjust any claim involving fraud"; and (iv)
it is too
early in the proceedings for the Board to decide whether the affirmative defense will make
the contract void
ab initio (in which case defense cannot be waived)
or merely voidable, which would allow the contractor to
raise the defense of waiver. |
|
December 29, 2023
| In
Size Appeal of Global
Pacific Design
Builders, LLC, the SBA's OHA held that the Area Office had correctly dismissed
a protest as non-specific because it only alleged facts concerning
the protested firm's size after the date on which it was required
to self-certify.
In
Global K9 Protection Group, LLC, which involved consolidated
post-award protests by two firms competing on a USPS
procurement (and litigation that has lasted years), the
Court of Federal Claims held that: (i) it would allow supplementation of the administrative
record with written declarations on the issue of whether the challenged firm
made material misrepresentations in its bid because those documents
were necessary for effective judicial review of the protest
allegations; (ii) the awardee intentionally made materially false statements about its past
performance that the agency relied on in making its award decision;
(iii) the Contracting Officer's post hoc conclusion that knowing of the
misrepresentations would not have changed the outcome of the
evaluation was arbitrary and capricious for failing to consider
important aspects of the issue; and (iv) an injunction disqualifying
the awardee from
further performance would issue. The court concluded that the second protester
who already had been
disqualified from the competition due to an OCI had no standing to
participate in this protest, even though it had appealed its
disqualification to the CAFC and was awaiting a decision. The court
also denied the protest allegation that the agency had not
conducted meaningful discussions because the USPS' vague
regulations about discussions do not create the same
obligations as the FAR does. |
|
December 28 |
Great Lakes Dredge and Dock
Co., LLC won its GAO protest because bids exceeding available
funding justified canceling an IFB, but not its conversion to a
negotiated procurement, where the agency did not defend its decision
to convert based on an argument that the original bids were unreasonable.
In VSBC Protest of M Wilkinson Constr. Co.,
the SBA's OHA held that the fact
that the veteran owner of a VOSB (who had the requisite control over
the challenged firm) lived in a different state was not disqualifying, especially where
the firm did business in multiple states, and the fact that
a minority owner provided building space rent free to the firm was not grounds for disqualification either. |
|
December 27 |
In
Size Appeal of Forward Slope,
Inc., the SBA's OHA held that the Area Office had incorrectly concluded
that a firm which represented itself as small in connection with
an underlying MAC contract had to re-certify for purposes of a
task order solicitation that did not require recertification when the
firm had been acquired by another firm (and, therefore, was
no longer small) when it submitted its proposal for the task
order award.
In the Matter of WOOD Consulting Svcs., Inc.,
the OHA held that the woman owner of a WOSB firm who worked there from 7:30 am to 3:30 pm every weekday, and then worked at another firm from 3:30 to 5:30 pm and from 7:30 to 10:30 pm
plus weekends had control of the WOSB, and her other job did not interfere, especially where the WOSB's business was computer programming, which does not require that work be conducted from 9 to 5.
Moreover, the fact that
she had the power to remove anyone, including her husband, from their position on the board showed that any alleged control he had was illusory.
In
VSBC Appeal of Divinely Elegant Vines LLC, the OHA dismissed an appeal because it did not establish any
error in the original decision denying SDVOSB status. Specifically, the unanimity provision in the firm's Operating Agreement meant the SDV lacked the required control of the firm.
In VSBC Protest of
Blue Collar Ops, Inc., the OHA dismissed a protest as moot after
the challenged firm was removed from consideration for award. |
|
December 26 |
GSAR Case 2022-G517: A proposed rule would amend the GSAR to add a
new provision and clause to identify
single-use plastic free
packaging availability for products
under the FSS
with the goal of reducing single-use
plastic packaging. Comments are due by February
26, 2024.
DFARS Case 2020-D029: Effective January 22, 2024, a
final rule amends the DFARS to consolidate existing contract
clauses for the management and
reporting of Government property into a
single contract clause and to replace references to legacy
software applications used for reporting
Government property within the DoD
enterprise-wide eBusiness platform and
convert existing form-based processes
into electronic processes within that
platform.
DFARS Case 2023-D010: A proposed rule would amend the
DFARS to to implement section 803 of the James
M. Inhofe NDAA for FY 2023, which modifies 10 U.S.C. 3455 to provide additional guidance regarding
data requirements to support a
determination of commerciality and
price reasonableness for certain
procurements associated with major
weapon systems. Comments are due by January 22, 2024.
Federal Acquisition
Circular (FAC)
2024-02 has been published and includes the following
item:
FAR Case 2022-003: Effective January 22, 2024, a final
rule amends the FAR to implement E.O. 14063 ("Use of Project Labor
Agreements for Federal Construction
Projects"), which
mandates that federal government
agencies require the use of project labor
agreements (PLAs) for large-scale federal construction projects, where the
total estimated cost to the Government
is $35 million or more, unless an
exception applies. Agencies still have
the discretion to require PLAs for
federal construction projects that do not
meet the $35 million threshold. The
E.O. also directs the OMB to issue
implementation guidance to agencies on
exceptions and reporting.
In NAICS Appeal of Brown Point
Facility Management Solutions, LLC, the SBA's OHA held that in
a solicitation
to perform custodial services and to provide associated management, supervision, labor, transportation, materials, equipment, and supplies at a FEMA facility,
the contractor's choice of NAICS 561720 ("Janitorial Services") was preferable to
the Contracting Officer's choice of NAICS 561210 ("Facilities Support Services").
In NAICS Appeal of Laredo
Technical Svcs., Inc., which involved a solicitation
for medical coding services at a hospital, the OHA chose NAICS code
561499 ("All Other Business Support Services") over both the Contracting
Officer's choice of NAICS 541511 ("Custom Coding Services") and
the contractor's choice of NAICS 561410 ("Document Preparation Services"). |
|
December 22 |
Chugach Logistics
and Facility Services JV, LLC won its GAO protest because: (i) nothing in the agency record explained why
the protester's management approach was
identified as having some level of risk, which limited its overall
technical rating to Good; and (ii) the past performance rating was flawed because
it was based on evaluating one reference contract as relevant instead
of very relevant, and the agency did not refute the protester's argument
on this issue but, instead,
advanced a post hoc justification for the rating that was
inconsistent with the solicitation's evaluation scheme.
In Washington
Business Dynamics, LLC, the GAO spent most of its decision
discussing standing in the context of the SBA's rules for
determining when firms are required to re-certify as to
their status (here, for a BPA under an FSS contract). After
concluding that the protester had standing, the GAO held
that: (i) there was no basis for the agency's
favorable evaluation of the awardee's quotation where it failed to address
one of of the technical evaluation factors; and (ii) the agency failed to conduct
the required qualitative evaluation of quotations. |
|
December 21 |
In
Syneren Technologies Corp., et al., which involved unsuccessful protests of
the agency's new awards based on reevaluations of proposals following
the court's prior protest decision in Allicent, the Court of Federal Claims held that:
(i) the agency was not required to seek
remand from the court before undertaking voluntary corrective action,
especially where the plaintiffs did not allege any prejudice from the
remand and would have the same complaints whether or not the
corrective action were the result of a remand; (ii) the corrective action was
not procedurally defective and is not objectionable merely because it
reached the same conclusions as the original evaluation; (iii) three of the
plaintiffs cannot establish prejudice because flaws in their proposals
(which court already determined were rationally evaluated) made them
unawardable; (iv) the agency followed the court's prior decision in
conducting a rational reevaluation, and, therefore, there was no breach
of the implied duty of good faith and fair dealing; and (v) challenges by
individual protesters to various parts of their individual
reevaluations fail because there were rational bases for the agency's
evaluations in each case.
|
|
December 20 |
In
Fluor Federal Services, Inc., an unsuccessful post-award protest,
the Court of Federal Claims held that: (i) protests that the agency should have utilized a
multiple- versus a single-award BPA and that the agency should have
considered past performance outside the period stated in the
solicitation were both untimely under Blue & Gold Fleet;
and (ii) the remainder of the protester's challenges to the evaluation
were "mere disagreements with the Agency’s discretionary determinations."
In Point Blank Enterprises, Inc.,
an unsuccessful post-award protest seeking
a preliminary injunction, the court held that although the plaintiff
was likely to succeed on
the merits of its OCI allegations due to the absence of documents in
the record showing any adequate investigation of the issue by the
Contracting Officer, no preliminary injunction would issue because the protester had
failed to establish irreparable harm when the solicitation did not
guarantee that any awards would be made, especially "when the harm facing the United States as a result of an injunction is potential
loss of life or serious injury to law enforcement officials."
|
|
December 19 |
In
Togiak Management Services, LLC, a successful protest against the rejection of
the protester's bids as
nonresponsive due to the fact that the submitted bid bonds were photocopies,
although the Court of Federal Claims rejected the
protester's own arguments, it held that the agency erred by
relying on a line of GAO decisions holding photocopied bid
bonds were nonresponsive, which the court concluded were
erroneous.
|
|
December 18 |
In
Eastern Shipbuilding Group, Inc., an unsuccessful post-award protest
challenging almost every aspect of the agency's evaluation
of the awardee's and the protester's proposals in a
solicitation for a contract to build ships, the Court of
Federal Claims held, inter alia, that: (i) there
were rational bases for the agency's (a) assignment of a significant strength to
the awardee's proposed
production facilities (despite the fact that they had not yet been
built) and (b) evaluation of the production risk of its proposed
production approach; (ii) the agency could not have taken into account
an alleged risk to
the awardee's proposed schedule caused by additional vessels
the awardee had been contracted to build by
another agency because the contract option awarding this work had not
been exercised at the time of the evaluation; (iii) the agency was not required
to assign schedule risk under multiple evaluation factors and
accounting for it as a production risk was reasonable; (iv) the agency's
decision to evaluate the awardee's past performance as it improved over
time (rather than giving more weight to earlier problems) was
reasonable; (iv) the agency's evaluation of the awardee's price proposal
had a rational basis, including the agency's
decision to consider certain production line item prices as a group rather
than individually, which vitiated the protester's
argument that two individual line items suffered from unbalanced
pricing; (v) because the agency found no unbalanced pricing, it was not
required to conduct a pricing risk analysis; (vi) there were rational bases for
the Government's evaluation of various and sundry aspects of
the protester's
proposal (too numerous to include in this single sentence without
offending the ghosts of my high school English teachers);
(vii) the determination that the awardee was responsible reasonably relied
on, and was limited to, standard sources of information for such
reviews; (viii) although the awardee's certification in compliance with FAR 52.209-5(a)(1)(C) was
inaccurate
in light of an Australian judicial proceeding, the
inaccuracy did not rise to the level of a material misrepresentation,
considering the findings in that proceeding; and (ix) the agency conducted
a reasonable investigation of an allegation of an OCI involving the
awardee's employment of former agency official, finding that no
unauthorized person had access to significant sensitive source
selection information and that even if the former employee had
previously had access to non-public proprietary information, it
was unlikely he had retained it or that it would still be
competitively useful in the contested solicitation, which was issued
three years later.
|
|
December 15 |
In
LS3, LLC, an unsuccessful protest of the SBA OHA's determination that a firm did not
qualify as SDVOSB joint venture because the non SDV member could
exercise negative control through its position on the joint venture's
management committee, the Court of Federal Claims spent much of its time analyzing the degree of deference it owed the OHA's
decision in this situation--quite a bit as it turns out because the court considered the OHA's holding to be primarily on an issue of fact,
i.e., the amount of negative control that was possible in this situation.
|
|
December 14 |
In
Scott Technologies, Inc., an unsuccessful post-award protest, the
Court of Federal Claims held that: (i) the agency record was sufficient to show
the agency evaluated self-identified risks of the awardee's proposal, and
the agency was not required to document its evaluation of specific risk
elements to the level of detail advocated by the protester; (ii) interpreted in
the context of the solicitation as a whole, a protested evaluation subfactor
allowed the agency to reward the awardee for exceeding the required production
output (delivery requirements); (iii) discussions should be individually
tailored, so the fact that discussions with the offerors were not identical
does not mean they were unequal or resulted in disparate treatment;
and (iv) the court would not substitute its judgment for agency's and
(merely on the
basis of the protester's highlighting its proposal's alleged merits to
the court) assign the protester a strength where the agency did not do
so, especially in an area where the awardee did not receive a strength
either.
|
|
December 13 |
In
Restoration Specialists, LLC, the ASBCA dismissed all but one of a slew of claims submitted by the contractor as barred by the six year limitations period because,
inter alia: (i) for the purposes of claim accrual analysis, there is no such thing in the
law as a single accrual date for all claims under the rubric of a
global claim; (ii) the contractor's claims that the Government priced individual
task orders in a way that violated the formula stated in the contract
accrued no later than when the Government first paid the contractor
utilizing pricing that the contractor considered incorrect for each order; (iii) a claim that the
Government failed to exercise options in bad faith accrued when the
contractor learned the Government would not exercise the first option year, and claims for the
remaining option years did not survive under the continuing claim
doctrine; and (iv) claims based on government-caused delays accrued when the
contractor became aware of the alleged government acts that resulted in
the delays. Subsequently, the Board
denied the contractor's request for reconsideration.
|
|
December 12 |
In Nova Group/Tutor-Saliba, the Court of Appeals for the Federal
Circuit affirmed the
prior CoFC decision that the contractor had failed to prove the existence of
either a Type 1 or a Type 2 differing site condition. Specifically the
court held that: (i) the CAFC reviews the CoFC's
application of the parol evidence rule de novo as a question of
law rather than as a rule of evidence; (ii) the evidence Government submitted
relating to a fully integrated agreement was not introduced to vary that
agreement, as would be prohibited by the parol evidence rule, but to
support the Government's contention that the agreement settled the issue;
and (iii) a reference to a design-build contract in a
footnote to the CoFC's decision was not the basis for that
court's
reasoning or its decision and, therefore, cannot be a basis to overturn it.
In
Shoreline Foundation, Inc., the ASBCA held that the contractor's contention that it experienced delays caused by another
contractor's bid protest, which was only submitted as an REA to the
Contracting Officer, cannot now be appealed to the Board in
connection with an appeal of the Contracting Officer's decision on the
contractor's subsequent CDA claim for weather related delays and
remission of liquidated damages.
In
Colony Constr., the ASBCA denied the
Government's motion to dismiss a pro se plaintiff's appeal or,
in the alternative,
for a more definite statement because the appellant's statement was a
"vintage" claim for a wrongful default termination:
[The contractor] claims that the Corps has wrongly terminated contract
#W912WJ-22P-0131 for ‘default’ and not ‘convenience.’ We pray that the Board will
change the designation accordingly. [The contractor] is asking for no monetary damages. |
|
December 10
| The SBA
has revised its white
paper explaining how it establishes,
reviews, and modifies small business
size standards, including
changes from the SBA’s 2019 Revised Size
Standards Methodology, which guided the SBA’s recently
completed second five-year review of
size standards as required by the Small
Business Jobs Act of 2010.
SBA welcomes comments and feedback
on the 2023 Revised Methodology,
which SBA intends to apply to the
forthcoming third five-year review of
size standards. Comments are due by February 9, 2024.
|
|
December 8 |
In Real Line Logistics Services Co., the CBCA denied a claim for the costs
of an attempted late delivery in response to a unilateral purchase order for construction
supplies to the U.S. embassy in Kabul, Afghanistan, that was closing and being
evacuated because (i) the pro se appellant did not specify a legal
theory of recovery and did not respond properly to the Government's motion
for summary judgment, and (ii) the purchase order was a unilateral
offer to contract that expired by its terms when the appellant did not
proffer delivery by the specified date.
In BES Design/Build, LLC,
the CBCA denied a motion for
reconsideration of its
earlier decision (see April 14 entry below) because there was no "newly discovered evidence" as
alleged by the contractor.
In Stellar J Corp.,
the CBCA denied cross motions for
summary judgment involving a construction contract because they both failed
to address two threshold issues of law concerning the meaning of the
contract and failed to resolve a material issue of fact that would
remain after those issues were resolved. |
|
December 6 |
In
Greystones Consulting Group, LLC, an unsuccessful post-award protest
employing various theories to attack the agency's
interpretation that the evaluation criterion requiring a
"single integrated platform" impliedly called for "a single
user experience" in a solicitation for data management
software, the Court of Federal Claims held that: (i) the agency did not utilize
an unstated evaluation criterion but
reasonably relied on a common industry definition of the evaluation term that other
offerors understood and took into account in preparing their
proposals; (ii) the plaintiff failed to provide substantial evidence supporting
its contention that solicitation contained ambiguous terminology;
and (iii) the agency did not evaluate proposals disparately--it rejected three other
offers for providing the same solution the agency objected to in
the plaintiff's proposal. |
|
December 5 |
The
GAO sustained a protest by SecuriFense Inc.
because: (i) the agency treated offerors
differently by downgrading the protester for answers during its oral
presentation that were similar to the awardee's; and (ii) the agency applied
an unstated
evaluation factor by assessing decreased confidence to the protester's
proposal for failing to address items that were not among the
evaluation criteria.
The CBCA is hiring a new judge. If you are
interested in applying for the position, here is the
website
concerning the opening. |
|
December 4 |
In
Eagle Group Sportswear, Inc.,
the GAO's Contract Appeals Board upheld a termination
for default of a purchase order by the Forest Service for
baseballs with special printing after the contractor failed
to timely deliver conforming items despite numerous chances
to do so provided by the Government.
In
Colonial
Press Int'l, Inc., the same Board upheld the
contractor's appeal involving the Government's recoupment of
payments to the contractor for an alleged breach of the
warranty in the delivered items because the Government
contributed to the breach by informing the contractor that
the products met the Government's specification, when, in
fact, the Government's own testing revealed they did not.
Thus, the Government induced the contractor to provide
products concerning which the Government later complained. |
|
November 29 |
In
Ben Holtz Consulting Inc. dba California Avocados Direct, which
involved cross motions for partial summary judgment, the
CBCA held that in a contract to provide boxes of produce
at a fixed price per box, even though there were other contract
requirements related to the required deliveries, prong one of
a convenience termination settlement recovery was limited to
the price for
delivered boxes plus recovery for any partially completed boxes at the time
of termination and did not include any of those other requirements, such
as the establishment of a distribution system.
The
Supreme Foodservice GmbH case involves a contract to deliver food to
bases in Afghanistan concerning which the contractor had
admitted (in federal District court) to major fraud. The
case has an extensive history at the ASBCA and the CAFC. In
this latest decision, the ASBCA held that: (i)
the contractor's fraud was not severable
from the remainder of its work on the contract (even if some of that work was not
directly tainted by the fraud) and amounted to a prior material breach
that relieved the Government of its obligation to pay any of the contractor's claims for
work performed on the contract during the original contract term; (ii) the
Government had not justified its withholding of payment on a separate
contract because, inter alia, the Government (a) over withheld on the current contract
and (b) has not established that fraud on the current contract tainted a different
contract; (iii) the contractor would not be permitted to amend its pleadings to allege
quantum meruit recovery because inter alia, to do so would decimate the
prior material breach doctrine; and (iv) the Government's prior material breach
defense did not waive or forfeit its claims that arose prior to the
time of the federal court plea (which was the time that the
Government had obtained its known right to assert the
defense). |
|
November 28 |
In
Michael Johnson Logging, an EAJA claim, the CBCA held that the agency's
decision to dispute the contractor's claim of breach of the implied duty of good faith and
fair dealing was justified, and, because the contractor recovered only 9.8% of its claimed
costs for a breach of contract claim, its EAJA recovery was limited to that percentage of
its claimed EAJA fees and expenses.
In
The Kmask Group LLC, the CBCA upheld a default termination because
the contractor failed to timely
provide PPE gloves and failed to provide adequate assurances of performance
when requested by the Government, and the COVID delays to PPE supplies
that the contractor had offered as an excuse began two years prior to
the start of the contract and, therefore, did not amount to an
unforeseen event.
In
Optum Public Sector Solutions, Inc., the CBCA held it lacked jurisdiction over
an appeal from a Contracting Officer's letter requesting
reimbursement for certain payments because the letter did not constitute
a final
decision (no demand for payment, no sum certain, no explanation of
appeal rights, and no identification as a final decision).
In A. Prentice Ray
and Assocs., LLC, an unsuccessful
post-award protest seeking a preliminary injunction, the Court of
Federal Claims held that: (i) the price realism analysis
could include (a) limited use of the IGCE and (b) comparisons of one year of each offeror's unburdened labor
costs; and (ii) the agency's determination that two offerors' unburdened labor costs
were reasonable despite being significantly lower than the average of those of other offerors had
a rational basis. |
|
November 24 |
The GAO sustained a protest by RELX
Inc. because the awardee's task order
quotation in an FSS competition (a) failed to meet several salient characteristics
of the brand name
or equal solicitation and (b) offered some open market items not included
in its FSS contract (as did the protester's quotation).
|
|
November 22 |
In
Flatland Realty LLC, the ASBCA held that the Government's
default termination breached a lease to provide concession services
(which did not contain a T for C clause) because the record did not support
the Government's assertion that lessee had failed to provide services for
two years, and the lessee was not required to provide a new Use and
Development Plan five years after the original five-year plan. The
Board also held that after the Government
revoked the lease, a building that the lessee failed to remove from the
property became
government property, so the lessee was not entitled to compensation
for the
building.
In
Granite Constr. Co., the ASBCA held that a 49 day
suspension period for part of the work due to extreme weather
conditions caused by Hurricane Harvey was "reasonable" under
the Suspension of
Work clause (FAR 52-242-14), especially where the contractor had admitted
as much during performance. The Board also held that compensating the contractor only for
30 days during that period also was reasonable because, as the
Contracting Officer had stated: "19 of those days were
anticipated adverse weather delay days identified in [a section] of the
contract, for which
[the contractor] accepted the risk."
In Gulf Extreme Eng'g & Constr., the ASBCA upheld the default termination of
a construction contract for failure to
diligently prosecute the work after the contractor's unsatisfactory
response to a cure notice and its subsequent failure to present evidence
at the Board of any
valid excuses for its delays:
The government has
amply shown that the record supports the termination decision. Thus, the burden shifts
to [the contractor], and it has not, during the project or here, shown that its many delays,
scheduling errors, poor management decisions, or work slowdowns and stoppage,
were beyond its control. In fact, [the contractor's] challenge to the termination is almost
entirely unsupported and consists only of repetitive and conclusory characterizations
of select correspondence between the parties, without citations to any substantive
record evidence.
|
|
November 21 |
In
Noble Supply & Logistics LLC, an unsuccessful preaward protest,
the Court of Federal Claims held that in a solicitation for
commercial items under FAR Part 12, the agency had a rational basis for
obtaining a waiver to depart from ordinary commercial practice and
require contractors to pass on any prompt payment discounts they
received to the Government.
In
Myriddian, LLC, an unsuccessful post-award protest, the court
held, inter alia, that: (i) the awardee's plan to
employ a (key
personnel) Medical Director part time, supplemented by an Associate
Medical Director working full time, was permitted by the solicitation
and, besides, the agency had considered the risks associated with this
approach; (ii) the solicitation's vague requirement that the undergraduate
degree of the Program Director should be relevant to the contract's purpose
(Medicare related services) was
sufficiently broad that an undergraduate major in psychology was
acceptable; and (iii) the agency adequately considered the differences in ratings
between the competing
proposals in other areas of staffing and technical merit.
NFS Case 2023-N022: Effective December 20, a final
rule amends the NASA acquisition regulation supplement (NFS) to update the policy concerning
the NASA Ombudsman Program.
DFARS Case
2012-D010: A final rule amends the DFARS to
partially implement section 874 of the
NDAA for
FY 2017 that addresses the
inapplicability of certain laws and
regulations to the acquisition of
commercial products, including
commercially available off-the-shelf
items, and commercial services.
DFARS Case
2018-D053: The proposed rule concerning export
authorizations associated with this case is being withdrawn.
DFARS Case
2018-D074: A proposed would amend the DFARS to
implement sections of the NDAA for FY 2018 and 2019 regarding
the applicability of certain solicitation
provisions and contract clauses to
contracts and subcontracts for
commercial products, commercial
services, and commercially available
off-the-shelf items. Comments are due by January 16, 2024.
DFARS
Case 2021-D022: A proposed rule would amend the DFARS to to
implement two sections of the NDAA for FY 2021, one section of the NDAA for FY 2022, one section of the NDAA for FY 2023, and one section of the
Consolidated Appropriations Act, 2023.
These statutes remove limitations and
restrictions on certain components that
are no longer required and add new
limitations on other components,
subject to exceptions. Comments are due by January 16, 2024. |
|
November 20 |
The GAO sustained one of the protest grounds asserted by Vertex Aerospace,
LLC, finding that the evaluation of the protester's
past performance was unreasonable because the agency simply tallied
the ratings it received on various contracts without considering the relevance of the contracts on
which they were received, i.e., the agency unreasonably equalized the
various ratings without regard to relevance.
|
|
November 17 |
GSAR Case
2020-G510: The GSA proposes to amend the GSAR to to standardize
and simplify the Multiple Award
Schedule clauses for
economic price adjustments. This rule
removes certain economic price
adjustment requirements within these
clauses to better align with commercial
standards and practices.
Comments are due by January 16, 2024.
Federal Acquisition Circular (FAC)
2024-01 has been published and includes the following item:
FAR 2023-019: A final rule amends the FAR to add North Macedonia as a new
designated country under the World
Trade Organization Government
Procurement Agreement.
|
|
November 16 |
In
CeleraPro, LLC, an unsuccessful challenge to the proposed award of sole-source task order to the holder of an existing single-award, IDIQ contract
contract as a modification to that contract, the Court of Federal
Claims held that: (i) the plaintiff has standing to challenge
the award to an 8(a) firm even though was not, itself, 8(a) because
an element of the challenge was whether
the solicitation was properly limited to 8(a) firms, and it could compete
for award if it were not so limited; but (ii) the contract mod was within
the scope of
the original contract because that contract adequately advised offerors of
the possibility of such a change, and the mod did not substantially change the type of
work, performance period, and costs as between the original contract and the modified contract, so CICA's
competition requirements were not implicated by
the modification.
In VSBC Appeal of Iron Shamrock, LLC, the SBA's OHA upheld a decision denying VOSB status to a
firm because
multiple provisions of its franchise agreement established that the franchisor, rather than
the veteran, had control of the firm.
|
|
November 15 |
In
Size Appeal of Portacool, LLC,
the SBA's OHA held that the Area Office correctly drew an adverse
inference from the challenged firm's failure to provide relevant
information requested by the office concerning possible affiliates and the
ownership of the company the challenged firm claimed to be 100% owned by.
In Size Appeal
of Daniels Bldg. Co., the OHA held that the Area Office had properly dismissed
(as
speculative) a protest alleging only that two firms "have not fulfilled their obligations as Mentor and Protégé and have no intention or ability to fulfill those requirements on the project at issue"
without supporting evidence. |
|
November 14 |
The CBCA issued two, similar decisions concerning applications for EAJA fees.
In
GC Works, Inc., the CBCA awarded only part of the hours claimed in
an EAJA application because, although
the agency's position in the original litigation was not substantially justified, the
contractor had originally claimed
more delay hours than it was entitled to and did not own up to its
contribution to the delays. Likewise, in SBC Archway Helena, LLC,
the CBCA reduced the appellant's EAJA claim because, although it was the prevailing
party in the underlying litigation, it had claimed substantially more than it was
ultimately found to be entitled to. |
|
November 10 |
In Navarre Corp.,
an unsuccessful post-award protest, the Court of Federal
Claims: (i) rejected the
protester's contention that the solicitation contained a definitive
responsibility criterion concerning financial responsibility; (ii)
found that the agency's
conclusion that the awardee was financially responsible had a rational
basis, and that bankruptcy materials not available to the agency at the time it
made that determination were not relevant to the protest but were a
matter of contract administration; and (iii) held that the protester did not provide evidence
for its assertion that agency had misevaluated quotes or treated
competitors disparately.
|
|
November 9 |
In
Amentum Services, Inc., f/k/a AECOM Management Services, Inc.,
which involved interpretation issues in a firm-fixed-price contract for
launch services, the ASBCA held that: (i) the contract's minimum yearly
ordering requirement in the final year should include task orders issued near the
end of the year, but not performed until the next year,
but the fact that a task order was de-scoped in that next year reduced
its value in the year it was awarded, meaning the Government breached
the contract by ordering approximately $50,000 less that the minimum
guaranteed amount; (ii) the contractor could not disavow new task order items
added by way of bilateral modifications made without any reservation
of rights; (iii) because individual line items did not have minimum
required values, the Government's decision to stop purchasing jet fuel
from contractor did not violate any contractual provision and did not
amount to a breach of the implied duty of good faith and fair dealing; (iv)
the contractor was not entitled to recover its continuing costs during shutdowns
caused by
hurricanes, and the clause relied on by the contractor only noted the Contracting
Officer "may" consider such claims, which invoked an abuse of
discretion standard that the contractor had not met; (v) there was no ambiguity in
the task item for gaseous nitrogen support, and, even if there were, it was
patent; and (vi) the contractor did not establish its claim for a bidding error
because its own evidence on its mistake was equivocal, and it did not prove
the Government was, or should have been, aware of
the error.
In
Korte Constr. Co., the ASBCA held that the Government was
entitled to a credit for a deductive change for work ultimately not
required of a subcontractor even though the contractor established the
subcontractor did not include that work in its bid because the
subcontractor assumed the work would not be required. The Board's
reasoning is that the subcontractor knew of an ambiguity in
the solicitation but did not raised the issue, essentially
betting its interpretation would be the correct one (which
it turned out to be). I'm not sure I'm on board with this
decision. If the subcontractor had bet wrong, I could
understand the Board denying the contractor's claim for
added work, but here, the punishment does not seem to fit
the crime since the bid turned out to be for the right
amount. I see a windfall for the Government in the Board's
decision.
In
Radmacher Bros. Excavating Co., Inc., the ASBCA denied the Government's motion for summary judgment on
a Type
2 Differing Site Conditions claim because, even though the contractor
had presented scant evidence in response to the Government's
motion, the record was not sufficient to
decide whether stationary trains on railroad tracks for extended
periods of time were an unknown or unexpected condition that should allow recovery. |
|
November 7 |
In
Alfajer, Ltd., the ASBCA granted the
Government's motion for summary judgment because the contractor: (i) failed
to respond to several sections of the Government's motion (including its defense to the contractor's breach of contract
claim, i.e., that a base closure and evacuation undertaken for
security reasons was a sovereign act); (ii) abandoned several of its claims
(e.g., a superior knowledge claim); and (iii) failed to provide evidence of
any allegedly disputed issues of fact (or provided "evidence" that did
not support its contentions) in the case of its claim of breach of the
implied duty of good faith and fair dealing.
In
MTS General Contracting, the ASBCA denied the Government's motion for summary judgment because of
material issues of fact as to which, and how many, invoices were in dispute. |
|
November 6 |
In
Research Analysis & Maintenance, Inc., the ASBCA analyzed whether
each of various challenged allegations in the Complaint were new claims or
whether they were based on the same operative facts previously presented
to the Contracting Officer (most were). The Board also held that parts of
the claim that Government contended
should have included sums certain were just descriptions of
various acts of the Government that the contractor considered to be the
source of the amount it was claiming, but
the contractor clearly was seeking only the costs it alleged it incurred
to comply with FAR 52.215-2, which it identified in a sum certain
amount.
In
AeroKool Aviation Corp., the ASBCA denied the Government's motion to dismiss
the appeal, holding that: (i) a breach proposal that
was originally submitted in the same document as a termination
settlement proposal (TSP) ripened into a claim when the contractor
certified it and requested a Contracting Officer's decision; (ii) the breach
claim was independent of the TSP proposal because it was based on
a different theory of relief and sought different damages; and
(iii) the Government's
dilatory processing of the TSP created an
impasse, converting the TSP into a CDA claim. The Board directed the
Government to issue a decision on the TSP.
This website's
Recent ASBCA Decisions
page was getting so long that the program I use to edit the
site was starting to run slowly on that page. So, I have
moved some of the decisions that used to be on that page to
the page for older decisions, which now covers
decisions from
2006-2016. |
|
November 2 |
In
BWhit Infrastructure Solutions, LLC, an unsuccessful protest against an agency's corrective action in response to a
prior GAO protest, the Court of Federal Claims held there was a rational basis for the agency's decision to cancel an award to plaintiff and amend the solicitation
to eliminate ambiguities and account for updated agency requirements
resulting from delays caused by the original GAO protest.
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