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Developments in Government Contracting--2018

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

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

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problem arose, i.e., the agency's subsequent decision to cancel the procurement (a decision the agency, still later, rescinded).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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