In the latest Todd Construction decision, the Court of Federal Claims held that, although contractors may have CDA claims against government performance evaluations that do not comply with FAR 36.201, Todd failed to allege a causal connection between the Government's alleged procedural flaws in conducting the evaluation and any injury to Todd (i.e., an error in the final evaluation rating). The court also concluded there was no abuse of discretion by the Government in its ultimate finding that plaintiff's performance was unsatisfactory.

A mere two and a half weeks after I revised all the case links on my CAFC contract disputes and bid protest pages to reflect the web address changes on the court's re-designed website, I finally realized that I also needed to change all the affected links in my 2007-present blogs and my 2007-present procurement reviews. I've now done that. (I've never claimed to be the quickest draw in the West).  

Two Court of Federal Claims decisions on bid protests were published. In Infiniti Information Solutions, the court denied a government motion for relief from the court's prior decision sustaining a bid protest and directing the Government to set-aside an improper contract award (the Government apparently having ignored that prior decision and having failed to request reconsideration or to appeal within the required time periods). In Diversified Maintenance Systems, a protest of an award on a HUBZone set-aside, the court discussed the standards for allowing discovery in a bid protest and permitted limited discovery concerning the issue whether the awardee qualified as a HUBZone business.

The SBA's OHA published three size decisions. In Silver Enterprises Assocs., the OHA affirmed an Area Office size determination because the probative value of signed statements provided under penalty of perjury by the challenged firm outweighed the general allegations of the protester.  In Incisive Technology, the OHA found that a firm's almost total dependence on subcontracts with one large firm for  revenues created affiliation through economic dependence. In  Condor Reliability Services, the OHA concluded the Area Office was correct in finding affiliation by identity of interest among family members absent evidence of a clear line of fracture.

The OHA also decided in United Medical Design Builders, LLC, that a firm was not qualified as an SDVOSB because, under its operating agreement, the service-disabled veteran could not be considered the managing member of the LLC and did not control its management and daily business operations.

In denying the Government's motion for summary judgment in ALK Services, the CBCA noted that ordering the minimum quantity in an ID/IQ contract does not automatically insulate the Government from a claim of breach of the covenant of good faith and fair dealing for failure to  consider the contractor  for additional work.

In Scott Timber, the Court of Federal Claims decided to allow testimony from a remote site via videoconference from a witness who was too far from Washington to travel easily to the hearing. The court also granted a motion to exclude all other persons from the room from which the witness would be testifying to avoid any possible prejudice from having representatives of one party, but not the other, present during the testimony.

AMEC Earth & Environmental won its GAO protest because the agency failed to conduct meaningful discussions and treated offerors unequally in its evaluation. Specifically, the agency failed to apprise the protester of weaknesses in its proposal to the same extent the agency did so with all other offerors and failed to evaluate other offerors' neglect to identify an issue required by the solicitation that the protester had reasonably identified based on publicly available information.

In G & R Service Co. , the CBCA dismissed an appeal for lack of jurisdiction because the underlying demands for "not-to-exceed" amounts did not constitute a CDA claim for a sum certain.

The GAO sustained a protest by System Engineering International because the agency only included two higher-rated, higher-priced quotations in its price/technical tradeoff analysis when lower-priced, lower-rated quotations were technically acceptable. 

The Office of Federal Contract Compliance Programs (OFCCP) is inviting the public to provide input on how OFCCP can strengthen the affirmative action requirements of the regulations implementing section 503 of the Rehabilitation Act of 1973, as amended in order to help increase the employment opportunities of people with disabilities in the federal contracting sector. Comments are due by September 21.

The SBA's OHA published five size decisions. In Judson Builders, it affirmed the decision of the Area Office because, as required by the applicable regulation, the Area Office relied on tax returns filed by a firm before it self-certified, instead of amended returns filed after the initiation of a size determination. In PMTech, the OHA remanded a case to Area Office for additional findings because it had not included sufficient information in its original size determination to enable the OHA to evaluate the Area Office's conclusions concerning the total average employee count of the protested firm and its affiliates. In Specialized Veterans, the OHA upheld a finding of affiliation through the totality of circumstances, including the provision of technical and financial assistance, e.g., enabling the protested firm to obtain required bonding. In Glen/Mar Construction, the OHA found a firm whose offer had been eliminated from competition as technically unacceptable lacked standing to protest the awardee's size. Similarly, in Reams Enterprises , a firm whose offer had been eliminated from competition for reasons unrelated to size lacked standing to protest the awardee's size.

In Office Design Group, the SBA's OHA upheld an SBA decision that a firm was not eligible for the 8(a) business development program because the disadvantaged individual on whom it based its claimed status did not hold its highest officer position and a non-disadvantaged officer received higher compensation than did the disadvantaged individual.

The SBA's OHA issued one size decision and three VET decisions. In Forterra Systems, the OHA found affiliation based on the presumption of ownership and control by two shareholders holding 28.74% and 17.32% of voting stock (pursuant to 13 C.F.R. 121.103(c)(2)). In the belatedly published, but still interesting, NEIE Medical Waste Services, the SBA had dismissed an SDVOSB eligibility protest as untimely because it was not submitted within five days of bid opening in a sealed bid procurement. The OHA remanded the case for a determination whether the protester was correct in its allegation that, regardless how the acquisition was labeled, it was not conducted according to sealed bid procedures. The OHA noted that, if the protester's allegations were correct, the timeliness rule would not apply. On the other hand, in Excelsior Defense, the OHA affirmed a dismissal (as untimely) of a protest  in a negotiated procurement filed more than five days after receipt of notice from the Contracting Officer of the apparently successful offeror.

Effective August 4, the SBA is granting a class waiver of the nonmanufacturer rule for Configured Tape Library Storage Equipment, Product Service Code (PSC) 7025 Automated Data Processing (ADP) Input/Output and Storage Devices, PSC 7035 ADP Support Equipment, and PSC 7045 ADP Supplies, under the North American Industry Classification System (NAICS) code 334112 (Computer Storage Device Manufacturing).

The Bureau of International Labor Affairs in the Department of Labor has updated the list required by Executive Order No. 13126, entitled "Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor,"  in accordance with the "Procedural Guidelines for the Maintenance of the List of Products Requiring Federal Contractor Certification as to Forced or Indentured Child Labor," to set forth the latest list of products, by country of origin, which the Departments of Labor, State and Homeland Security have a reasonable basis to believe might have been mined, produced, or manufactured by forced or indentured child labor. Federal contractors who supply products on this list are required to certify, among other things, that they have made a good faith effort to determine whether forced or indentured child labor was used to produce the item.

In the important Turner Construction Co. bid protest decision, the Court of Federal Claims held that the agency lacked a rational basis for following a GAO recommendation that the court considered irrational. The GAO had concluded that an awardee should have been disqualified for an organizational conflict of interest, and the agency decided to follow that recommendation. The awardee then filed suit, and the court found that the GAO had impermissibly substituted its judgment for the agency's original judgment concerning the absence of a conflict of interest. The court's decision is instructive for its discussion of the various types of OCIs and for its analysis of the standard of review the GAO should use in assessing an agency's determination concerning an OCI and the court's standard of review in assessing both a GAO recommendation and an agency's decision to follow that recommendation. This one may be headed to the Court of Appeals for the Federal Circuit.

The Court of Appeals for the Federal Circuit has re-designed its website, including the web addresses for its imbedded pages and for the decisions to which it links, which meant I had to do some tedious revisions to most of the links to cases on my Federal Circuit bid protest and contract disputes pages, as well as my Courts page--ugh. I think the updated links are correct, but, if you spot any link errors, please let me know. 

When NASA complied with the Court of Federal Claims' decision in the original Wackenhut protest and corrected errors in the evaluation, it awarded the contract to Wackenhut. The original awardee, Coastal International Security, then protested, but failed to convince the court (i) that the agency's use of a staffing benchmark instead of an independent government staffing estimate for part of the technical evaluation was improper or (ii) that the SSA was required to follow the details of the SEB's findings.

Effective August 16, the GSA is revising Part 516 ("Types of Contracts") of the GSAR to clarify the requirements for the use of each type of contract.

HSAR Case 2009-003 ("Lead System Integrators") is an interim rule amending the Homeland Security Acquisition Regulation (HSAR) to implement section 6405 of the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, which restricts contractors from acting as lead system integrators in the acquisition of DHS major systems if they have direct financial interests in the development or construction of any individual system or element of any system of systems they integrate (subject to stated exceptions). Comments are due by August 16.

The Bureau of Industry and Security is issuing a final rule that (i) updates and clarifies export and reexport license requirements on striking weapons, restraint devices, shotguns and parts, optical sighting devices, and electric shock devices and (ii) adds equipment designed for the execution of humans to the Commerce Control List.

Effective July 29, the SBA is granting a waiver of the nonmanufacturer rule for Herbicides, Insecticides, and Fungicides (PSC 6840, under NAICS code 325320).

The GSA has issued a proposed rule revising Part 102-38 of the Federal Management Regulation (FMR) by amending the provisions for the sale of personal property through Federal Asset Sales (FAS) Sales Centers. Comments are due by August 13.

The State Department's Bureau of Verification, Compliance, and Implementation has published a list of foreign persons and firms banned from selling to the Government, receiving FMS items or services, or obtaining items on the Munitions Control List because of violations involving the Iran, North Korea, and Syria Nonproliferation Act.

DFARS Case 2009-D020 is an interim rule amending the DFARS to bring DoD into compliance with the OMB's implementation of the Prompt Payment Act by exempting military contingencies, and certain payments related to emergencies and the release or threatened release of hazardous substances. Comments are due by September 13.

DFARS Case 2009-D036 is an interim rule amending the DFARS  to implement section 814 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84), which requires agency heads to notify the congressional defense committees within 30 days after making any determination to award a task or delivery order exceeding $100 million to a single source. In addition, if the task or delivery order concerns DOD intelligence activities, the agency head also is required to provide notification within 30 days of the determination to the Permanent Select Committee on Intelligence of the House of Representatives if the order relates to tactical intelligence and intelligence related activities, and to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives if the order relates to intelligence and intelligence-related activities other than those activities previously mentioned. Comments are due by September 13.

DFARS Case 2009-D033 is an interim rule amending the DFARS to implement section 820 of the National Defense Authorization Act for Fiscal Year 2010, entitled ‘‘Publication of Notification of Bundling of Contracts of the Department of Defense,’’ which requires DoD contracting officers (i) to publish a notification consistent with the requirements of FAR 10.001(c)(2) on FedBizOpps.gov, or any successor site, at least 30 days prior to the release of a solicitation for a bundled acquisition and (ii) if the DoD agency has determined that measurably substantial benefits are expected to be derived as a result of bundling, to include within the notification a brief description of those benefits. The acquisitions covered by section 820 are defined at 820(b) as those that are funded entirely by DoD funds and covered by FAR 7.107. Comments are due by September 13.

Three CBCA decisions were published. In Walsh/Davis Joint Venture, the CBCA denied the Government's motion to reconsider the Board's earlier decision refusing to dismiss a claim for lack of jurisdiction. The Government argued that it had not been presented to the Contracting Officer for a decision. The Board concluded it was based on the same operative facts as a claim that had been. In Pearson E. Dubar, which the Board described as nonprecedential, the CBCA dismissed an appeal for lack of jurisdiction because there was no underlying contract--oral assurances by a government official who was not a Contracting Officer did not create a contract. In Global Ship Systems, the Board dismissed an appeal because the Government fulfilled terms of a settlement agreement even though it applied amount owed to contractor to offset the contractor's debt on another contract.

In Lasmer Industries, the ASBCA held that the Government's rescission of a claim, which resulted in the Board's dismissal of the contractor's appeal, did not make the contractor a "prevailing party" entitled to and EAJA award.

In Colonna's Shipyard, the ASBCA distinguished what it cannot do (grant a request for specific performance or injunctive relief, e.g., by ordering the Government to change a contractor's performance rating) from what it can do (determine whether a particular performance rating breached a contract requirement or provision).

In ALKAI Consultants, the ASBCA determined some of the types of costs that are recoverable under the commercial items "Termination for Convenience" clause (FAR 52.212-4).

FAC 2005-44 has been published. It includes one item:

FAR Case 2008-039, entitled "Reporting Executive Compensation and First-Tier Subcontract Awards," is an interim rule (whose reporting requirements will be implemented in phases) that amends the FAR to implement section 2 of Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109-82), as amended by section 6202 of the Government Funding Transparency Act of 2008 (Pub. L. 110-252), which requires the OMB to establish a free, public, website containing full disclosure of all federal contract award information. This interim rule eventually will require contractors to report executive compensation and first-tier subcontract awards on contracts and orders expected to be $25,000 or more (including all options), except classified contracts and contracts with individuals. This information will be available to the public. The phased reporting requirements are as follow. Until September 30, 2010, any newly awarded subcontract must be reported if the prime contract award amount was $20,000,000 or more. From October 1, 2010, until February 28, 2011, any newly awarded subcontract must be reported if the prime contract award amount was $550,000 or more.  Starting March 1, 2011, any newly awarded subcontract must be reported if the prime contract award amount was $25,000 or more. Comments are due by September 7.

Allied Technology Group won a preliminary skirmish in its protest at the Court of Federal Claims, but lost the war. The court rejected the Government's argument that the protester lacked standing because its proposal had been evaluated as technically disqualified. However, the company lost on the merits because it was not prejudiced by any of the alleged errors in the procurement (i.e., it would not have been in line for award because of its huge price disadvantage).

I have added a page providing an introduction to GAO protests, including links to successful protests of each of the most common grounds for protest. 

FAC 2005-43 has been published. It includes the following five items:

Item I (FAR Case 2008-011) entitled "Government Property" is a final rule effective August 2 amending FAR Part 45 (Government Property) and its associated contract clauses.

Item II (FAR Case 2008-035) entitled "Registry of Disaster Response Contractors" is a final rule effective August 2 adopting, without changes, the prior interim rule amending the FAR to implement the Department of Homeland Security Appropriations Act, 2007, section 697, which requires the establishment and maintenance of a registry of disaster response contractors.

Item III (FAR Case 2010-008) entitled "Recovery Act Subcontract Reporting Procedures" is an interim rule revising the FAR clause at 52.204-11 to (i) to require first-tier subcontractors with Recovery Act funded awards of $25,000 or more, to report jobs information to the prime contractor for reporting into http://FederalReporting.gov and (ii) to require the prime contractor to submit its first report on or before the 10th day after the end of the calendar quarter in which the prime contractor received the award, and quarterly thereafter. Comments are due by August 31.

Item IV (FAR Case2008-023) entitled "Clarification of Criteria for Sole Source Awards to Service-disabled Veteran-owned Small Businesses" is a final rule effective August 2 that revises the language in FAR 19.1306(a)(1), which deals with sole source awards to HUBZone small business concerns based on 15 U.S.C. 657a(b), to match the language in FAR 19.1406(a)(1) to alleviate confusion on the appropriate use of the criteria needed to conduct a sole source SDVOSB concern acquisition.

Item V (FAR Case 2009-040) entitled "Trade Agreements Thresholds" is an interim rule amending the FAR to incorporate increased thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative. Comments are due by August 31.

The SBA is considering granting a class waiver of the Nonmanufacturer Rule for Liquid Chromatography Mass Spectrometry Systems (CS–MS), High Performance Liquid Chromatography (HPLC) Systems, Gas Chromatography Mass Spectrometry (GC–MS) Systems, and Inductively Coupled Plasma Mass Spectrometry (ICP–MS) Systems under Product Service Code (PSC) 6640 (Laboratory Equipment and Supplies), under NAICS code 334516 (Analytical Laboratory Instrument Manufacturing). Comments are due by July 16.

The DOE is proposing to (i) remove its Contract Appeals regulation, which implements DOE’s contract appeals procedures and (ii) amend the DEAR Subchapters A--General, B--Acquisition Planning, and C--Contracting Methods and Contract Types, to make changes to conform to the FAR, remove out-of-date coverage, and update references. Comments are due by August 2.

The BIS proposes to amend the EAR by adding ECCN 6A981 to the CCL to control passive infrasound sensors because of their military and commercial utility. Items under this new ECCN will be controlled for Regional Stability (RS) and Anti-Terrorism (AT) reasons. In addition, BIS proposes to control technology and software for the development, production, or use of these items for RS and AT reasons under revised ECCNs 6D991 and 6E991, respectively. Comments are due by August 30.

For the period July 1 through December 31, the Prompt Payment Act interest rate is 3 1/8%.

The ASBCA denied the request for reconsideration by American Renovation and Construction Co. concerning the Board's earlier decision upholding the Government's revocation of acceptance of the contractor's work despite its claims of defective specifications.

The Bureau of Industry and Security has made more changes to the EAR as a result of its comprehensive review of the CCL.

The Information Security Oversight Office of the National Archives and Records Administration has published a Directive as a final rule implementing E.O. 13526 regarding classifying, safeguarding, and declassifying national security information. 

In Ron Anderson Construction Co., the CBCA denied the Government's motion to dismiss the contractor's appeals for lack of subject matter jurisdiction. The Board concluded from the "totality of the circumstances" that a request for a decision by the Contracting Officer was implied in the contractor's original cost proposals.

Three ASBCA decisions were published. In Qatar International Trading Co., the Board denied the contractor's claim for fraudulent phone charges on illegal clones of satellite phones the contractor had provided to the Government. In DWBH Services, the Board denied a claim that maintaining lawns in areas where housing was demolished during contract performance was outside the scope of the contract. The Board also rejected a contractor's request for a mistrial based on its contention that the Government, inter alia, had tampered with the hearing transcript.

DFARS Case 2010-D010: DoD has issued an interim rule implementing revisions to DoD Directive-Type Memorandum 09–019, entitled "Policy Guidance for Foreign Ownership, Control, or Influence (FOCI)," which revises the description of communications security material that is "proscribed information."

The GAO sustained two protests. Contrack International won its protest because the agency knew of adverse past performance information concerning the awardee but failed to consider it. The GAO also sustained a protest by  Brican Inc. because the agency failed to credit it in the areas of past performance and experience for proposing the same subcontractor that the awardee had been rewarded for proposing.

The CBCA was unpersuaded by a contractor's contentions that its change of counsel and its counsel's illness excused its failure to file a timely request to reconsider an order dismissing an appeal for failure to prosecute. 

DFARS Case 2008-D024: DoD is adopting as final, with changes, an interim rule amending the DFARS to implement determinations made by the Under Secretary of Defense for Acquisition, Technology, and Logistics with regard to the acquisition of items containing para-aramid fibers and yarns manufactured in foreign countries that have entered into a reciprocal defense procurement memorandum of understanding with the United States.

DFARS Case 2008-D006 is an interim rule implementing section 828 of the National Defense Authorization Act for Fiscal Year 2008, which authorizes the Secretary of Defense to enter into a contract for a period not to exceed 10 years for the purchase of electricity from sources of renewable energy. Comments are due by August 20.

In M. Maropakis Carpentry, the Court of Appeals for the Federal Circuit, over a vigorous dissent, affirmed the Court of Federal Claims and held "that a contractor seeking an adjustment of contract terms must meet the jurisdictional requirements and procedural prerequisites of the CDA, whether asserting the claim against the government as an affirmative claim or as a defense to a government action." More than 30 years after the effective date of the CDA, we still are embroiled in disputes like this because the CDA's authors neglected to define its key term, i.e., a "claim."

In Paradigm Learning, the Court of Federal Claims held it had CDA jurisdiction over a claim that the Government breached a schedule contract by disclosing proprietary information included in delivered items under the contract in violation of the contract and a related nondisclosure agreement. In Allstar Mayflower , the court held that a claim for reimbursement of PowerTrack Fees under transportation services contracts was governed by the three-year statute of limitations of the Interstate Commerce Act rather than by the six-year statute of the CDA.

Federal Acquisition Circular (FAC) 2005-42 has been published. It includes the following 11 items plus technical amendments:

Item I (FAR Case 2009-012) entitled "American Recovery and Reinvestment Act of 2009--Whistleblower Protections" is a final rule adopting (with changes) the interim rule amending the FAR to implement section 1553 of Division A of the Recovery Act ("Protecting State and Local Government and Contractor Whistleblowers") by prohibiting non-Federal employers from discharging, demoting, or discriminating against an employee as a reprisal for disclosing information.

Item II (FAR Case 2005-040) entitled "Electronic Subcontract Reporting System (eSRS)" is a final rule amending the FAR to require that contractors’ small business subcontract reports be submitted using the Electronic Subcontracting Reporting System (eSRS), rather than Standard Form 294 - Subcontract Report for Individual Contracts and Standard Form 295 - Summary Subcontract Report.

Item III (FAR Case 2009-010) entitled "American Recovery and Reinvestment Act of 2009--Publicizing Contract Actions" is a final rule adopting (with changes) an interim rule amending the FAR to implement OMB Memorandum M-09-10, entitled "Initial Implementing Guidance for the American Recovery and Reinvestment Act of 2009," (the Recovery Act) with respect to publicizing contract actions, which has since been supplemented, amended, and clarified by Memorandum M-09-15.

Item IV (FAR Case 2008-003) entitled "Public Disclosure of Justification and Approval Documents for Noncompetitive Contracts--Section 844 of the National Defense Authorization Act for Fiscal Year 2008" is a final rule adopting (with changes) an interim rule amending the FAR to implement section 844 of the 2008 National Defense Authorization Act, which details the requirements for the public availability of justifications and approvals after the award of of a federal contract.

Item V (FAR Case 2008-007) entitled "Additional Requirements for Market Research" is an interim rule amending the FAR to implement section 826 of the National Defense Authorization Act for Fiscal Year 2008, which established additional requirements in subsection (c) of 10 U.S.C. 2377 that, as a matter of policy, are extended to all executive agencies. Specifically, the head of the agency must conduct market research before issuing an ID/IQ task or delivery order for a noncommercial item in excess of the simplified acquisition threshold, and a prime contractor with a contract in excess of $5 million for the procurement of items other than commercial items is required to conduct market research before making purchases that exceed the simplified acquisition threshold for or on behalf of the Government. Comments are due by August 16.

Item VI (FAR Case 2009-011) entitled "American Recovery and Reinvestment Act of 2009--GAO/IG Access" is a final rule adopting (with changes) an interim rule amending the FAR to implement sections 902, 1514, and 1515 of the Recovery Act.

Item VII (FAR Case 2009-014) entitled "New Designated Country--Taiwan" is a final rule adopting (without change) an interim rule amending the FAR to add Taiwan as a designated country, due to the its accession to membership in the World Trade Organization Agreement on Government Procurement.

Item VIII (FAR Case 2009-013) entitled "Nonavailable Articles" is a final rule amending the FAR to revise the list of articles determined to be domestically nonavailable.

Item IX (FAR Case 2009-025) entitled "Disclosure and Consistency of Cost Accounting Practices for Contracts Awarded to Foreign Firms" is an interim rule amending the FAR to align it with the revised CAR Board clause entitled "Disclosure and Consistency of Cost Accounting Practices--Foreign Firms." Comments are due by August 16.

Item X (FAR Case 2009-026) entitled "Compensation for Personal Services" is an interim rule amending the FAR to align it with revised CAS 412 ("Cost Accounting Standard for composition and measurement of pension cost") and 415 ("Accounting for the cost of deferred compensation"). Comments are due by August 16.

Item XI (FAR Case 2009-018) entitled "Payrolls and Basic Records" is an interim rule revising the FAR "Payrolls and Basic Records" clause to implement a DOL rule to protect the privacy of workers. Comments are due by August 16.

In Northrop Grumman Computing Systems, the Court of Federal Claims denied cross motions for summary judgment in a dispute involving an alleged government breach of a contract to lease surveillance software to the Department of Homeland Security.

The DOE is proposing to amend the DEAR to (i) make changes to conform to the FAR, (ii) remove out-of-date coverage, and (iii) update references. Comments are due by July 15.

DoD is extending the comment period to July 21 on its proposed rule to amend the DFARS to implement section 207 of the Weapons System Acquisition Reform Act of 2009.

The Bureau of Industry and Security (BIS) has issued a final rule making technical amendments to the EAR to  delete references concerning federal court jurisdiction for judicial review of final decisions and orders issued in BIS export control administrative enforcement proceedings and in administrative appeals of BIS temporary denial orders.

Pursuant to President Obama's April 26 Memorandum regarding enhancing the use of small businesses in federal contracting (see entry at April 29 below), interested parties are invited to offer their views concerning (i) removing barriers to small business participation in federal contracting; (ii) using innovative strategies and technologies to increase opportunities for small business contractors; and (iii) identifying successful agency and private sector outreach practices for matching small businesses with contracting and subcontracting opportunities. A public meeting on these issues will be held on June 28 in the auditorium of the Department of Commerce at 1401 Constitution Avenue NW, Washington, D.C.

DFARS Case 2009-D010: The DoD has adopted, as final, an interim rule amending the DFARS to add Taiwan as a designated country, due to the accession of Taiwan to membership in the WTO's Government Procurement Agreement.

DFARS Case 2009-D025: The DoD proposes to relocate the requirements for conducting a Contractor Insurance/Pension Review from Procedures, Guidance, and Information to the DFARS. Comments are due by August 10.

The Navy is withdrawing the notice it previously published announcing a Preferred Supplier Program. See entry at May 25 below.

The Air Force lost its appeal to the Federal Circuit of the ASBCA's decision in the Lockheed Martin case concerning whether the F-22 contract was an "affected CAS-covered contract" within the meaning of FAR 30.602(3)(1993) concerning a change in cost accounting practices.

Pitney Bowes Government Solutions convinced the Court of Federal Claims to allow additional discovery in its protest because the court was satisfied Pitney Bowes had shown there were indicia of bias and favoritism by the head of the TEP and because the Government had violated FAR Subpart 4.8 by destroying the individual TEP evaluators' worksheets.

The SBA's OHA has published numerous decisions, including seven new size decisions, five of which reverse decisions by the Area Office. For example, in PRO SERVICES--Teltara Joint Venture, the OHA decided the Area Office did not adequately investigate indicia of affiliation.

The SBA also issued two VET decisions, in one of which it decided that a protest alleging that an owner was not a service-disabled veteran should not have been dismissed as insufficiently specific. In another, the OHA concluded an Operating Agreement did not establish 51% unconditional and direct ownership by a service-disabled veteran. The SBA also issued two BDP decisions and a NAICS decision.

JER 370 Third Street won its GAO protest because the agency lacked rational basis for canceling the solicitation.

The DOE proposes to amend the DEAR on Management and Operating Contracts to make changes to conform to the FAR, remove out-of-date coverage, and update references. Comments are due by July 9.

The DHS adopted the amendments to its Homeland Security Acquisition Regulation that were issued under an interim rule on August 17, 2009, as final, without change, to implement a statute limiting the acquisition of products containing textiles from sources outside the United States.

In HSAR Case 2009-005, entitled "Limitations on Subcontracting in Emergency Acquisitions," the DHS proposes a rule to implement a statutory requirement limiting the use of subcontractors on cost-reimbursement type contracts entered into by the Department to facilitate the response to or recovery from a natural disaster or act of terrorism or other man-made disaster. Comments are due by August 9.

Several interim, final, and proposed DFARS regulations have been published--

DFARS Case 2009-D040, entitled "Trade Agreements Thresholds," is an interim rule to incorporate increased thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative. Comments are due by August 9. 

DFARS Case 2009-D034, entitled "Contract Authority for Advanced Component Development or Prototype Units," is an interim rule to implement section 819 of the National Defense Authorization Act for Fiscal Year 2010, which places limitations on certain types of line items and contract options that may be included in contracts initially awarded pursuant to competitive solicitations and, in certain circumstances, limits the dollar value, period of performance, and time for exercise of such contract line items or contract options. Comments are due by August 9.

DFARS Case 2009-D027, entitled "Limitations on Procurements with Non-Defense Agencies," is an interim rule to implement section 806 of the National Defense Authorization Act for Fiscal Year 2010 authorizing the placing of contracts for property and services in excess of the simplified acquisition threshold by certain non-DoD agencies for the performance of a joint program conducted to meet the needs of DoD and the non-DoD agency. Comments are due by August 9.

DFARS Case 2009-D022, entitled "Finland--Public Interest Exception to the Buy American Act," is a final rule issued to reflect a determination by the Secretary of Defense that it is inconsistent with the public interest to apply the restrictions of the Buy American Act to the acquisition of articles, materials, and supplies produced or manufactured in Finland.

DFARS Case  2007-D011, entitled "Letter Contract Definitization Schedule," is a final rule adopting, without changes, a proposed rule amending the DFARS to to clarify requirements regarding definitization of letter contracts and to specify that DoD letter contracts will be definitized using the DFARS procedures applicable to all other undefinitized contract actions.

DFARS Case 2007-D009, entitled "Ground and Flight Risk Clause," is a final rule amending the DFARS to revise and combine contract clauses addressing assumption of risk of loss under contracts that furnish aircraft to the Government so that the requirements will apply consistently to all contract types.

DFARS Case 2009-D041, entitled "Balance of Payments Program Exemption for Commercial Information Technology," is a proposed rule that would amend the DFARS to implement the exemption from the Balance of Payments Program for construction material that is commercial information technology. Comments are due by August 9.

The SBA has granted a waiver of the nonmanufacturer rule for Liquid Propane Gas, NAICS Code 325120, PSC 6830. 

The SBA is considering granting a class waiver of the nonmanufacturer rule for Configured Tape Library Storage Equipment, PSC 7025 ADP Input/Output and Storage Devices, 7035 ADP Support Equipment, and 7045 ADP Supplies, under NAICS code 334112 (Computer Storage Device Manufacturing). Comments are due by June 22.

The Bureau of Industry and Security has proposed various changes to the DPAS regulations. Comments are due by July 7.

Effective July 6, the Bureau of Indian Affairs in the Interior Department and the Indian Health Service in HHS are making belated technical amendments to their joint regulations governing contracts and annual funding agreements under the Indian Self-Determination and Education Assistance Act to reflect, among other things, the dissolution of the Interior Board of Contract Appeals in favor of the CBCA.

In Shell Oil, the Court of Federal Claims held that neither the Anti-Deficiency Act nor settlement agreements closing out certain WWII gas production contracts in the late 1940s insulated the Government from liability for CERCLA clean-up costs. The court based its finding on the contracts' "Taxes" clause, which required the Government to reimburse the contractors for "any new or additional taxes, fees, or charges, other than income, excess profits, or corporate franchise taxes, which Seller may be required to pay by any municipal, state, or federal law in the United States or any foreign country to collect or pay by reason of the production, manufacture, sale or delivery of the [avgas]." The court concluded CERCLA clean-up costs were a "charge" within the meaning of that clause. The court concluded that the CERCLA costs could not have been within the contemplation of the close-out settlement agreements because CERCLA costs did not exist at the time those agreements were executed. If that's valid reasoning, then how could CERCLA costs have been within the contemplation of the "Taxes" clause? If they didn't exist for purposes of one provision, they weren't within the contemplation of the other either, were they? ;)

The fortuitously named (and successful) Magnum Opus protest involves a passel of fascinating issues. The Court of Federal Claims granted a tailored injunction to the protesters after it decided it had bid protest jurisdiction to hear a protest that the Government's decision to exercise options in only four of six ID/IQ contracts was improper because, by eliminating the contracts' NTE pricing from the option awards, the Government did not evaluate the options as exercised as part of the original evaluation, as required by CICA and FAR 17.207(f) (which the court found confers a cause of action upon potential competitors). The court addressed a variety of other issues, including, inter alia, the standing of a firm to proceed with a protest absent its joint venture partner; timeliness and waiver issues; and the parameters for a limited  injunction.

The court awarded plaintiffs approximately $9,000,000 in the Fireman's Fund case, which concerned construction at the Montgomery Point Lock and Dam Project on the White River in eastern Arkansas and various claims involving defective specifications, breach of the covenant of good faith and fair dealing, the responsibility for labor shortages and resulting increased wages, critical path analyses, delay claims, and government counterclaims.

I have added the protests for 2005 to the Recent Court of Federal Claims Bid Protests page so that it now covers January 2005 to the present. 

USfalcon lost its post-award protest at the Court of Federal Claims because the court concluded there was a rational basis for the agency's decision to eliminate the firm from the competitive range on the ground that the firm's response to a sample task was unacceptable. The court stressed it would not second guess the technical evaluation, itself.

In Technical Innovation, the agency decided to take corrective action after which the original awardee tried to convince the court to keep the protest on the docket so that it might review that corrective action. The Court of Federal Claims, however, dismissed the original action as moot and concluded the awardee, who was not the original protester, had no standing to keep it alive.

In Benefits Consulting Associates, another post-award protest, the court found that the agency did not engage in misleading discussions with the protester or fail to adequately apprise it of the weaknesses in its proposal.

In Retirement Communities, the court held that a firm's "hope" as to how a lease would be interpreted was not sufficient to vary its plain meaning.

The SBA's OHA published several size decisions, the most interesting one of which is CWU, Inc., in which the OHA upheld the Area Office's determination that a firm violated the ostensible subcontractor rule because, inter alia, it "(1) hired the incumbent contractor; (2) proposed giving the incumbent 49% of the work; (3) did not delineate tasks it would perform or that [the incumbent] would perform on either a task or a cost basis; and (4) proposed to keep all of the incumbent‘s on-site management employees in the same positions as under the previous contract." The OHA concluded "there is little evidence that Appellant planned to contribute anything to the contract other than its size." Ouch.

Busy day. Apparently the Government did not want me to start my holiday weekend early.

The CBCA published two decisions, one of which merits inclusion here.

In Sigal Construction Corp. , the CBCA granted the contractor's motion for summary judgment only as to entitlement, finding the contractor entitled to recover lost profits when, after award, Government did not provide it with all the contractually-required, unit-priced work but, instead, sought a better price from another contractor. The Board wrote in part: "The parties agree that by precluding Sigal from performing some of the unit price work, GSA constructively terminated for convenience a portion of the contract. One of the few limitations on the Government’s right to terminate for convenience is that the Government may not terminate simply to get a better price for performing needed work. [citation omitted] That is what GSA did here. It was a breach of the contract."

The GAO sustained the protest of Ewing Construction Co. because, in taking corrective action on Ewing's prior protest by reevaluating proposals without further discussions, the agency improperly determined that part of Ewing proposal rendered the firm ineligible for award when, under the solicitation's evaluation scheme, such a deficiency should only have resulted in the proposal being downgraded. 

Effective June 25, the DOE is amending the DEAR Subchapters E (General Contracting Requirements), F (Special Categories of Contracting), and G (Contract Management) to make changes to conform to the FAR, remove out-of-date coverage, and update references.

The Deputy Assistant Secretary of the Navy, Acquisition and Logistics Management,  is soliciting comments that the Department of the Navy may use in drafting a policy that will establish a Preferred Supplier Program (PSP) under which contractors that have demonstrated exemplary performance at the corporate level, in the areas of cost, schedule, performance, quality, and business relations would be granted Preferred Supplier Status and would, thereby, receive more favorable contract terms and conditions in DON contracts. Comments are due by July 15.

FAR Case 2009-027 ("Personal Identity Verification of Contractor Personnel"): A proposed rule would revise the FAR to provide additional regulatory coverage in Subpart 4.13 and in clause 52.204–9 to reinforce the requirement of collecting from contractors all forms of government-provided identification once they are no longer needed to support a contract. Comments are due by July 23.

The DOE is proposing to amend the DEAR to (i) revise the applicability and the policies and procedures involving the access to and ownership of records; (ii) to amend various contract clauses for consistent inclusion in all applicable contracts (not just M&O contracts) based on the type of work being performed, to ensure preservation and Government ownership of records; and (iii) to address inconsistencies relating to DOE contractor and subcontractor efforts in managing records in accordance with DOE retention requirements. Comments are due by June 23..

The GAO published a report entitled "Service-Disabled Veteran-Owned Small Business Program: Fraud Prevention Controls Needed to Improve Program Integrity."

FAR Case 2009-031 ("Terminating Contracts"):   A proposed rule would amend the FAR to, inter alia, clarify the FAR 49.502(a) prescription for the "Termination for Convenience of the Government (Fixed Price) (Short Form)" clause to apprise contracting officers that there are alternative clauses that can be used for terminations up to the simplified acquisition threshold. 

The SBA's OHA published three size decisions and two VET decisions. ONS21 Security Services succeeded in its size protest because the Area Office had no authority to change the NAICS code assigned to a procurement in response to a size protest, at least absent a NAICS code protest, and the protested firm's receipts clearly exceeded the limit established by the NAICS code in the solicitation.  It appears the Area Office really dropped the ball in the size appeal of DynaLantic Corp. because the OHA vacated the Area Office's denial of the size protest and remanded for further investigation of a host of possible violations of the clear fracture and ostensible subcontractor rules and other matters related to possible affiliation. In Corners Construction, the OHA affirmed the determination a firm was not an eligible SDVOSB because its General Partnership Agreement was ambiguous on relevant points, and its service-disabled veteran was not shown to have sufficient experience to control the firm.

The SBA is considering waiving the nonmanufacturer rule for herbicides, insecticides, and fungicides, under PSC 6840, under NAICS code 325120. Comments are due by June 3.

The SBA has decided not to issue a class waiver for Improved Outer Tactical Vests and related accessories under Product Service Code (PSC) 8470 (Armor Personal) under North American Industry Classification System (NAICS) code 339113 (Surgical Appliance and Supplies Manufacturing).

DFARS Case 2010-D004: The DoD has issued an interim rule to implement Section 8116 of the FY 2010 DoD Appropriations Act (Pub. L. 111–118), which  prohibits the use of funds appropriated or otherwise made available by the Act for any contract (including task or delivery orders and bilateral modifications adding new work) in excess of $1 million, if the contractor restricts its employees to arbitration for claims under title VII of the Civil Rights Act of 1964, or torts related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention. The interim rule does not apply to the acquisition of commercial items, including commercially available off-the-shelf items.

The ASBCA issued three decisions:

In Inchcape Shipping Services, the Board denied the Government's  motion to remove a set of nine appeals from the Rule 12.3 accelerated docket because the choice to use accelerated procedures under the CDA is exclusively the contractor's.

In Versar, Inc., the Board held it (i) lacked jurisdiction to decide the contractor's request that Board order specific performance (i.e., that the Government rescind a "red" performance rating) but (ii) had jurisdiction to decide whether the rating was appropriate.

In Whiting-Turner Contracting Co., which principally involved questions of accord and satisfaction and the interpretation of releases in bilateral modifications, the Board held that the contractor was not entitled to interest on claims because its contract was with a nonappropriated fund instrumentality. 

DGR Associates won its GAO protest against the terms of a solicitation because the procuring agency failed to consider whether the conditions for a HUBZone set-aside existed before proceeding with an 8(a) set-aside.

In Electronic Data Systems, the Court of Federal Claims found that the agency (i) made a clear and significant error in allowing a pricing proposal from the awardee that was not compliant with the solicitation's requirements and (ii) failed to notify all offerors that such an approach was acceptable. Nevertheless, the court found the protester had not established that it was prejudiced by this error because the source selection authority (i) attempted to adjust for it in the final evaluation and (ii) concluded that, even if all the costs at issue were eliminated from the protester's offer, it still would have been significantly higher than the awardee's. Maybe so, but decisions like this make me nervous. Instead of permitting the agency to make a self-serving, after-the-fact guesstimate of what the bids would have been had the error not occurred, it would seem preferable to require the agency to correct it and then find out for certain by requiring the submission of revised proposals. 

The GAO sustained the protest of J2A²JV  because the  awardee failed to meet the solicitation's definitive responsibility criterion of five years relevant experience as a general contractor.

OMB is soliciting public comments (by July 12) on the advisability of adopting the Economic Classification Policy Committee’s recommendations for NAICS updates for 2012.

The SBA's OHA has published two size decisions, one belatedly.

The ASBCA published two new decisions.  The Board found AST Anlagen-und Sanierungstechnik GmbH entitled to an EAJA recovery and remanded for a determination of quantum. In Lasmer Industries, the Board refused to dismiss an appeal from a deemed denial of a claim for a "no cost" termination based on allegedly impossible specifications. 

The DoD is proposing revisions to the FAR 52.219-7 class deviation regarding partial small business set-asides for DLA DESC bulk fuel solicitations in order to, inter alia, clarify that a small business will not be awarded a set-aside portion at a price higher than its offer price under the non-set-aside portion. Comments are due by July 9.

The OFPP  CAS Board is proposing to harmonize CAS 412 and 413 with the Pension Protection Act (PPA) of 2006 (which amended the minimum funding requirements for defined benefit pension plans) by, inter alia, recognizing a "minimum actuarial liability" consistent with the PPA minimum required contribution, which should lessen the difference between the amount of pension cost reimbursable to the contractor in accordance with CAS and the amount of pension contribution required to be made by the contractor as the plan sponsor. Comments are due by July 9.

The DOT proposes to improve administration of the Disadvantaged Business Enterprise Program by increasing accountability for recipients with respect to good faith efforts to meet overall goals, modifying and updating certification requirements, adjusting the personal net worth threshold for inflation, providing for expedited interstate certification, and adding provisions to foster small business participation and improve post-award oversight. Comments are due by July 9.

The ASBCA published three decisions.

In Hanley Industries, the Board decided that a letter from the Contracting Officer revoking acceptance of items under the "Inspection" clause and reserving the Government's right to quantify the amount it associated with this action at a later date was not a CDA claim and, therefore, could not be appealed by the contractor.

In PGDC/Teng, Joint Venture, the Board granted the Government's motion to dismiss the contractor's claim for contract reformation because there was no basis for its theories of (i) breach of a duty to disclose superior knowledge, (ii) mutual mistake, or (iii) unilateral mistake.

In Starwin Industries, the Board decided it lacked jurisdiction over the quantum portion of an appeal from a default termination because no quantum claim had been submitted to the Contracting Officer for a decision.

Five proposed DFARS revisions have been published. Comments on each of the following proposals are due by July 6.

DFARS Case 2008-D042 ("Preservation of Tooling for Major Defense Acquisition Programs") would amend the DFARS to implement section 815 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, which requires acquisition plans for major weapons systems to include a plan for the preservation and storage of special tooling associated with the production of hardware for major defense acquisition programs through the end of the service life of the related weapons system.

DFARS Case 2008-D050 ("Marking of Government-Furnished Property") would require contractors to tag, label, or mark items of government-furnished property identified in the contract when the government-furnished material and government-furnished property are subject to serialized item management.

DFARS Case 2007-D003 ("Presumption of Development at Private Expense") would amend the DFARS to implement section 802(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2007 and section 815(a)(2) of the NDAA for FY 2008 by establishing special requirements and procedures related to the validation of a contractor’s or subcontractor’s asserted restrictions on technical data and computer software.

DFARS Case 2008-D027 ("Cost and Software Data Reporting System") would add a new subpart 234.71 to the DFARS to set forth DoD Cost and Software Data Reporting system requirements for major defense acquisition programs and major automated information system programs.

DFARS Case 2006-D029 ("Restriction on Ball and Roller Bearings") would amend the DFARS to revise the domestic source restriction on acquisition of ball and roller bearings from the current rule (which requires that the bearings and the main bearing components be manufactured in the U.S. or Canada and is based on 10 U.S.C. 2534(a)(5), which expired on October 1, 2005) to a rule that interprets the annual defense appropriations act domestic source restriction on the acquisition of these items in a manner similar to the domestic source restriction of the Buy American Act.

In the latest decisions in the Raytheon and General Electric segment closing cases, the Court of Federal Claims granted the Government's motions for partial summary judgment and held that (i) Raytheon's post retirement benefit costs are not pension costs under CAS 412 and cannot be included in segment closing adjustments under CAS 413 and (ii) General Electric's Pay-As-You-Go post-retirement benefit costs are not covered by CAS 413 and cannot be included in segment closing adjustments.

FTR Case 2010-302: Effective June 4, the GSA is amending the FTR by (i) adding new terms and definitions for "official travel" and "transit system"; (ii) clarifying reimbursement for transportation at an official station while en route to and/or from an authorized TDY location; (iii) clarifying reimbursement for transportation expenses within the surrounding area of a TDY location and provisions for payment under the FTR; and (iv) specifying when the government contractor-issued travel charge card must be used while on official travel.

Civilian Personnel Per Diem Bulletin 267: The DoD has published revisions in the per diem rates prescribed for government employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and Possessions of the United States.

The SBA's OHA has issued eight VET decisions and a cautionary size decision, dismissing an appeal alleging a lack of specificity in another size protest because the appellant had not raised that argument until it filed its appeal with the OHA.

In the PlanetSpace protest, the Court of Federal Claims gave up trying to figure out what, if any, trade-off analysis the SSA had conducted and stayed the case to give the SSA an opportunity to submit a sworn statement articulating the trade-off evaluation.  One of the Government's arguments was that the protest was barred by laches because the protester had waited for three months before filing its suit after it had lost its GAO protest. The court said that laches cannot shorten a statute of limitations absent extraordinary circumstances, and that the statutory period for bid protests at the court is the Tucker Act's six-year statute of limitations. Anybody out there have a protest you wish you had filed a few years ago? Maybe it's not too late. ;) The courts have not hesitated to adopt the GAO's rule that protests against solicitation requirements must be filed before proposals are due. I wonder why the six-year statute of limitations governs only one type of bid protest.   

I have posted the 2010 Procurement Review (through May 1),  and I will continue to update it throughout the remainder of the year.

DFARS Case 2008-D032 ("Service Contract Surveillance") is a final rule amending the DFARS to ensure that (i) the requirement for a quality assurance surveillance plan is addressed for each contract with a dollar value above the simplified acquisition threshold and (ii) contracts for services have appropriate performance management or surveillance plans prepared for the work being performed under the contracts.

DFARS Case 2008-D047 ("Government-Assigned Serial Number Marking") is a proposed rule that would require contractors to apply government-assigned serial numbers in human-readable format on major end items, when required by law, regulation, or military operational necessity. Comments are due by June 29.

DFARS Case 2008-D049 ("Reporting of Government Property Lost, Stolen, Damaged, or Destroyed") is a proposed rule to amend the DFARS to require contractors to report loss, theft, damage, and destruction of government property to the DCMA "eTools" application. Comments are due by June 20.

DFARS Case 2006-D021 ("Award Fee Contracts") is a proposed rule to amend the DFARS to address award-fee contracts, including eliminating the use of provisional award-fee payments. Comments are due by June 29.

The President has issued memoranda establishing interagency task forces to increase federal contracting opportunities for (i) small businesses and (ii) veteran-owned and service disabled veteran-owned small businesses.

The Court of Federal Claims held Shamrock Foods lacked standing because it had not bid on the protested solicitation and had waited until after bids were submitted (long after award, actually) to file a protest.

In Jones Automation, the Court of Federal Claims came within a whisker of holding that it lacked jurisdiction over a protest that a bridge contract should be extended, especially absent any showing that the plaintiff would be excluded from the follow-on competition. However, the court contented itself with concluding the plaintiff had not established the requisite elements for a TRO and invited it (dared it, actually) to let the court know whether it was still interested in pursuing injunctive relief. 

I hesitate to quarrel with a decision again so soon after fussing about Milani Construction, but the ASBCA's decision in the Dixie Construction Co. case seems flat out wrong to me. The contractor had a requirements contract, which included the standard "Order Limitations" clause (FAR 52.216-19). That clause provided, inter alia, that the contractor was not required to accept an order in excess of $500,000 (paragraph (b)) and that the Government was not required to order part of a requirement from the contractor if the whole requirement was more than $500,000 (paragraph (c)). The Government had placed several orders in excess of $500,000 with the contractor under both the predecessor contract and the current contract (and the contractor routinely had accepted such orders). The contractor filed a breach claim when the Government ordered one such large job from another firm without giving the contractor a chance to at accept  it. The Board granted summary judgment in favor of the Government, reasoning that paragraph (c) of the "Order Limitations" clause meant the Government was free to bypass the contractor for any order exceeding $500,000. Au contraire! Read together (and in the contexts of (i) a requirements contract and (ii) the course of dealing between these parties), paragraphs (b) and (c) meant that the Government should have offered the contractor a shot at the above-$500,000 order and, then, if the contractor had refused the order, the Government would not have been bound to break the order into smaller pieces for him.  It is the Board's interpretation of the clause that is unreasonable, not the contractor's.  I bet this dispute is headed for the CAFC.

Two Court of Federal Claims decisions on protests conclude the Government's evaluators had rational bases for excluding the protesters' offers from the competitive range: ManTech (which discusses, inter alia, the permissible methods of conducting a price realism evaluation) and Hyperion.

In U. S. Home, the same court held it had jurisdiction over claims for breach of contracts for the sale of real property but lacked jurisdiction over various claims based on CERCLA because it is not a money-mandating statute.   

The SBA's OHA has published several 8(a) BDP decisions. For example, in Matter of Hazzard's Environmental and Trucking Co., the OHA granted the SBA's request to dismiss an appeal of a termination from the 8(a) program because of the protester's pattern of failing to provide required documentation to the SBA to establish its continued eligibility for the 8(a) program.

The CBCA has published two decisions, dismissing one appeal for failure to prosecute and a portion of another for lack of jurisdiction.

The GAO sustained the protest of Milani Construction because the agency concluded the protester's offered price for a fixed-price contract was unrealistically low even though the solicitation did not specifically notify offerors that price realism would be an evaluation factor. This decision highlights one of my pet peeves. Specifically, the GAO's oft-repeated axiom (that price realism is not normally to be evaluated on a fixed-price contract) is bootstrapped. Anybody interested in testing that assertion need only trace back the GAO's citations for this proposition from case to case further and further back in time until finally you reach a point where the case cited in support of it does not so hold. As I recall, you have to trace it back through about six degrees of separation to reach that point, so the original mis-citation has become firmly entrenched as the established rule by now. Someday before I die, I'm going to write an article instead of just whining about the issue.  Of course, a company can make a conscious decision to "buy in" below cost on a fixed-price contract, but there should always be an analysis by every procuring agency as to whether the price being offered is so far below cost that the offeror clearly hasn't the foggiest idea of the magnitude of work involved in performing the contract and will only get itself and the Government in trouble if it is awarded the contract.

DFARS Case No. 2009-D015: The DoD is proposing to amend the DFARS  to implement section 207 of the Weapons Systems Acquisition Reform Act of 2009 (Pub. L. 111–23), which requires the DoD to provide uniform guidance and tighten existing requirements for organizational conflicts of interest (OCIs) by contractors in major defense acquisition programs. Comments are due by June 21.

The ASBCA published three decisions. Several claims by Guy W. Parker d/b/a Parker International were dismissed/denied for various reasons: res judicata on a claim related to the Contracting Officer's authority; the fact that another claim had not been submitted to the Contracting Officer for a decision; and a lack of evidence or any contractual basis for claims related to government property. SUFI Network Services, Inc., squeezed even more money out of the Board after the contractor already had seen its recovery double as a result of the Board's prior decision on its request for reconsideration. In Yonir Technologies Inc. , the Board upheld a default termination based on the contractor's failure of first article testing.

The SBA is considering granting a waiver of the Nonmanufacturer Rule for Improved Outer Tactical Vests. Comments are due by May 6.

The Bureau of Industry and Security (BIS) has amended the Export Administration Regulations (EAR) to reflect changes to the Missile Technology Control Regime (MTCR) Annex that were agreed to by MTCR member countries at the November 2009 Plenary in Rio de Janeiro, Brazil, including clarifying the meaning of the term "production facilities."

In accordance with 10 U.S.C. 2330a as amended by section 807 of the National Defense Authorization Act for Fiscal Year 2008,  within 60 days, the Defense Threat Reduction Agency will make available to the public (at this website) the first inventory of activities performed pursuant to contracts for services .

The SBA's OHA published a size decision and three "VET" decisions. In the Size Appeal of A1 Procurement, the OHA upheld the Area Office's determination  that a firm ran afoul of ostensible subcontractor rule because the firm had no experience in the type of work required by the contract and planned to use a large business as a subcontractor to perform an undefined portion of work.  In Jordan-Reses Supply Co., the VA had extended blanket purchase agreements with several companies, two of which were SDVOSBs, one a small business, and another a large business. In doing so, the Contracting Officer indicated that any orders placed during the extended period should give preferential status to the SDVOSBs. The small business protested, but the OHA affirmed the dismissal of the protest on the grounds that it was speculative (since no contract actions had yet occurred and) that it raised a non-protestable issue (since it did not involve an SDVOSB set-aside).

Infiniti Information Solutions won its protest at the Court of Federal Claims against a direct 8(a) award because HUD ran afoul of (i) 13 C.F.R. 124.503(e) (by going beyond informal market assessments, which are permissible, and performing actual technical evaluations before making the award) and (ii) 13 C.F.R. 504 (by expressing a clear intent to make the procurement a SDVOSB set-aside prior to offering the procurement to the SBA for award as an 8(a) contract).

In Nycal Offshore Development Corp.,  the Court of Federal Claims allowed a claim for lost profits by a lessee (based on a government breach) to proceed despite the fact that plaintiff's co-lessees had previously elected restitution as their remedy.

Effective May 17, the Department of the Interior is issuing an interim final rule making various administrative changes to its acquisition regulation to harmonize it with the FAR and to make other corrections. Comments are due by June 14.

FAR Case 2009-006 ("Labor Relations Costs"): A proposed rule would amend FAR 31.205-21 to implement Executive Order 13494, Economy in Government Contracting (issued on January 30, 2009, and amended on October 30, 2009) by designating as unallowable the costs of any activities undertaken to persuade employees of the recipient of federal disbursements or of any other entity to exercise or not to exercise, or concerning the manner of exercising, the right to organize and bargain collectively through representatives of the employee’s own choosing. Comments are due by June 14.

FAC 2005-41 has been published. It contains FAR Case 2009-005 ("Use of Project Labor Agreements for Federal Construction Projects"), a final rule that implements Executive Order 13502 by amending the the FAR  (i) to provide that an agency may, if appropriate, require that every contractor and subcontractor engaged in construction on a federal construction project agree, for that project, to negotiate or become a party to a project labor agreement with one or more labor organizations, (ii) to identify factors that agencies may consider to help them decide, on a case-by-case basis, whether the use of a project labor agreement is likely to promote economy and efficiency in the performance of a specific construction project, and (iii) to identify multiple strategies for timing the Federal Government’s receipt of project labor agreements.

Several DFARS regulations have been issued:

DFARS Case No. 2004-D010--The DoD is adopting as final, with changes, an interim rule (i) amending the DFARS (Subpart 204.73) to address  contractor responsibilities to comply with existing Department of Commerce and Department of State export control laws and regulations and (ii) prescribing  a contract clause (DFARS 252.204-7008) to address those responsibilities.

DFARS Case No. 2006-D053--The DoD is adopting as final, without change, an interim rule that requires the Milestone Decision Authority  for a major defense acquisition program to select the contract type for a development program that is consistent with the level of program risk in accordance with section 818 of the National Defense Authorization Act  for Fiscal Year 2007.

DFARS Case No. 2008-D002--The DoD is adopting as final, with minor changes, an interim rule amending the DFARS to implement sections 886 and 892 of the National Defense Authorization Act for Fiscal Year 2008, which (i)  provide authority for the DoD to limit competition when acquiring products or services in support of operations in Iraq or Afghanistan and (ii) address competition requirements for the procurement of small arms for assistance to Iraq or Afghanistan.

DFARS Case No. 2009-D004--The DoD is proposing to amend the DFARS to address requirements for minimizing the use of hexavalent chromium in defense weapon systems, subsystems, components, and other items by prohibiting the delivery of items containing hexavalent chromium under DoD contracts unless an exception applies. Comments are due by June 7.

In the Allied Technology Group post-award bid protest, the Court of Federal Claims denied motions by both the protester and the intervenor to supplement the administrative record with affidavits essentially arguing the case and not available to the Contracting Officer at the time the selection decision was made. The court did allow supplementation with certain other factual materials.

The GAO sustained the protest of Irving Burton Associates  because there was no rational basis for the agency's evaluation of (i) the awardee's proposal with regard to a transition plan and the requirement to present program milestones and (ii) the protester's alleged lack of proposal detail.

The Information Security Oversight Office of the National Archives and Records Administration has amended National Industrial Security Program Directive No. 1 to provide guidance to agencies concerning the release of certain classified information (specifically, "proscribed information") to contractors that are owned or under the control of a foreign interest and have had the foreign ownership or control mitigated by a Special Security Agreement. The amendment is effective May 6.

In Paul & Partners, the GAO Contract Appeals Board (yes, there is such an animal) upheld the Government's assessment of the postage costs of re-mailing items a printing contractor had misprinted even though those costs greatly exceeded the total value of the misprinted order.  

I prefer to use e-CFR in researching current regulations, and I link to that site at the beginning of my Regulations webpage. However, on that same page, I also provide a link to the FAR at acquisition.gov. The web addresses for that main FAR page and for the individual FAR sections to which it links have changed (replacing the word "arnet" with "acquisition"), so I have updated all the corresponding links on my website. See my pages: FAR 1-15; FAR 16-30; FAR 31-45; FAR 46-53.

The SBA has just published  four "new" size decisions by the OHA. In Precision Lift (which is dated December 17, 2007, and that's not a typo), the OHA reversed the Area Office's determination that an offeror would not be supplying the product of a small domestic manufacturer. In Jenn-Kans, the OHA discussed affiliation in the context of identity-of-interest and clear fracture analysis.

In BioFunction, the Court of Federal Claims denied the plaintiff's claim because (i) the government employee who allegedly entered a "side agreement" to a Postal Service contract lacked contracting authority and, in any event, (ii) the plaintiff did not establish that the side agreement provided for any monetary compensation.

I couldn't resist quoting the following introduction by Judge Allegra to the decision in the Schortmann case, which involved allegations that the IRS breached a settlement agreement:

"To every complicated problem there is a simple solution, which turns out to be wrong.”

Various temporal limitations are interwoven into the Federal income tax system. The warp of that system is the annual accounting principle, famously described in Burnet v. Sanford & Brooks . . ., which vertically limits the calculation of income to events occurring within a given taxable year. Then, there are the wefts supplied by the limitation provisions in the Internal Revenue Code . . ., which introduce into the weave finality principles that horizontally limit, to a prescribed set of years, the ability of taxpayers and government alike to modify the computation of income. Meshed together, these concepts form a tough fabric that resists efforts to reach back and remedy even the most patent of errors. The necessity for this resistance makes sense in the broader state of affairs, based, inter alia, on the paramount need "to produce revenue ascertainable and payable at regular intervals," Hillsboro Nat’l Bank v. Comm’r of Internal Revenue . . . . Yet, as attractive as this rationale might be from a tax policy perspective, it offers little solace to the individual taxpayer who finds himself on the wrong side of these limitations. Often he or she perceives the warp and wefts not as a cohesive body of law, but as an entangling web of inequity – and sometimes that perception is reality. [Introductory quotation attributed to H. L. Mencken; full citations omitted]

I don't have the slightest idea what that means, but I am mightily impressed, nonetheless.  

The DOD has issued Phase III Final-Draft Business Rules for the Defense Personal Property Program (DP3) in the Defense Transportation Regulation (DTR) Part IV (DTR 4500.9R). Comments are due by June 1.

The Department of Transportation is removing the sunset provision from its rule governing the airport concessions disadvantaged business enterprise (ACDBE) program.

In the Eskridge Research Corp. bid protest, the Court of Federal Claims denied a firm's request for an injunction against the Government's decision to continue to employ the services of a contract awardee during the period in which the Government is accomplishing corrective action in response to the plaintiff's earlier filed GAO protest. In balancing the equities for an injunction, the court found that interests of national defense and security and the plaintiff's lack of urgency in the timing of both its original GAO protest and its subsequent court case weighed against granting an injunction. Specifically, the court noted, inter alia, that the plaintiff had not filed its GAO protest in time to obtain the automatic stay (even  though the GAO protest had subsequently been dismissed as moot when the agency undertook corrective action): "By sitting on its rights and failing to secure an automatic stay before the GAO or seeking timely relief in this court, the plaintiff created or exacerbated the harm it now claims can only be avoided by preliminary injunction. [The awardee] is performing the current contract because [the plaintiff] did not timely seek to stop this performance. In such circumstances, the equities do not favor the plaintiff." The case is worth a read for several other issues as well, including the concept of mootness.

In response to the March 4, 2009, Presidential Memorandum on Government Contracting, the OMB's OFPP has issued a proposed policy letter to clarify the circumstances when work must be reserved for performance by federal government employees consistent with section 321 of the National Defense Authorization Act for FY 2009, which requires OMB to (i) create a single definition for the term "inherently governmental function" that addresses any deficiencies in the existing definitions and reasonably applies to all agencies; (ii) establish criteria to be used by agencies to identify "critical" functions and positions that should only be performed by federal employees; and (iii) provide guidance to improve internal agency management of functions that are inherently governmental or critical. Comments are due by June 1.

In  Eagle Home Medical Corp., the GAO sustained a protest because the Contracting Officer failed to amend a solicitation to comply with an SBA OHA decision that the NAICS code assigned to the procurement was improper.

The Department of State is proposing to amend the ITAR by removing the requirement for prior approval or prior notification before proposals for foreign sales of significant military equipment or defense services to foreign persons may be made. Comments are due buy May 28.

In Madison Services, Inc., the Court of Federal Claims denied a protest after finding that FEMA's cancellation of solicitation had a rational basis and was not a mere pretext. Moreover, the protester's allegations of bad faith did not come close to the standard of clear and convincing evidence needed to overcome the strong presumption of good faith accorded to agency decisions.

In DataMill, the court held that, under FASA, it lacked jurisdiction over protest against an agency's decision to conduct a noncompetitive, sole source procurement via the issuance of a delivery order under a competitor's contract. In another decision in the same case, the court declined the protester's request to supplement the administrative record and struck an affidavit relied on by the protester in its arguments to the court because the affidavit contained many irrelevant statements, some statements repeating evidence already in the administrative record, and arguments against the protested agency decision. 

The ASBCA has published several new decisions. In Solid State Electronics Corp., the Board denied a contractor's claim for costs of expedited delivery because the government employee who requested it did not have the authority to change the contract. In the latest States Roofing  decision, the Board determined the quantum owed the contractor after the Court of Appeals for the Federal Circuit reversed and remanded the Board's prior decision.

The GAO sustained the protest of Shaw-Parsons Infrastructure Recovery Consultants because the agency's evaluators failure to adequately consider narrative responses in past performance questionnaires.

In IMS Engineers-Architects , the Court of Federal Claims held that a contractor knew about Government's improper contract administration and termination prior to the time it signed a release, which was, therefore, knowing, valid, and enforceable.

The Bureau of Industry and Security has published a final rule amending the Export Administration Regulations (EAR) to clarify coverage of concealed object detection equipment.

The GSA has published Per Diem Bulletin 10-03 concerning revised FTR per diem rates for certain locations in the States of Kansas, New Mexico, New York, Rhode Island and Texas.

I have removed the temporary entries that were below for the last three months of 2009, but the entire 2009 blog can still be found and searched here.

The GAO sustained two, companion protests (B. L. Harbert-Brasfield & Gorrie, JV,  and McCarthy/Hunt, JV) because the GAO found two types of organizational conflicts of interest: one based on "unequal access to information" and the other on "biased ground rules."

The DoD has published the updated charter of the ASBCA as Appendix A, Part 1 of the DFARS.

The ASBCA has issued several new decisions. In ^HMRTECH2, LLC, the Board held that a contractor's graduation from the 8(a) program did not give the Government the right to deny the contractor a fair opportunity to continue to compete for further task orders for the duration of a multiple-award schedule contract. In Al-Dhiyaa Bureau for General Contracting, the Board held that the Government had established its affirmative defense to the contractor's claims by proving that payments had been made to contractor's authorized representatives.

Federal Acquisition Circular (FAC) 2005-40 has been published. It consists of one item, FAR Case 2008-027, entitled "Federal Awardee Performance and Integrity Information System," a final rule (effective April 22) to implement the Federal Awardee Performance and Integrity Information System (FAPIIS), as required by section 872 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, which is designed to improve the Government’s ability to evaluate the business ethics and expected performance quality of prospective contractors and protect the Government from awarding contracts to contractors that are not responsible sources.

The SBA is considering waiving the nonmanufacturer rule for  Liquid Propane Gas.  Comments are due by April 7.

The Bureau of Industry and Security (BIS) has issued corrections to a previously published final rule affecting Export Control Classification Numbers 1A004 and 5A001. The BIS has also published a final rule to amend the Export Administration Regulations (EAR) to implement the understandings reached at the September 2009 plenary meeting of the Australia Group (AG) and to implement a decision recommended at the 2009 AG Plenary, specifically (i) to add  technical notes to the AG ‘‘Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology and Software’’ in order to clarify (a) the term "alloys,"’ as used in reference to the types of materials from which such equipment is made and (b) "nominal size,"’ as used in reference to the valves described on this AG control list and (ii) to amend the EAR to reflect the AG decision  to remove "white pox" virus from the AG List of Biological Agents for Export Control.

The SBA's OHA has issued several new decisions on size and NAICS appeals. For example, in Diverse Construction Group, the OHA overturned an Area Office finding of affiliation because there was not enough evidence to establish such affiliation either under the "totality of the circumstances" or  an "identity of interest" analysis. The remainder of the decisions can be found here.

In the important ATK Thiokol decision, the Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims and held that, for purposes of determining whether costs qualify as IR&D costs, the phrase "required in the performance of a contract" in the definition of IR&D costs means the same thing as it does in the definition of B&P costs, i.e. "costs that are specifically required by the contract," not  "costs that are necessary in order to perform the contract."

In the Rapiscan Systems protest, the GAO found that issuance of a purchase order for items not included in a vendor's FSS contract was improper where the underlying solicitation had limited competition to vendors holding FSS contracts.

Federal Acquisition Circular (FAC) 2005-39 has been published. It includes the following six items, plus a technical amendment:

Item I (FAR Case 2009-035), entitled "Extend Use of Simplified Acquisition Procedures for Certain Commercial Items," is a final rule revising FAR subpart 13.5, ‘‘Test Program for Certain Commercial Items,’’ to implement section 816 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84) by extending the program for two more years.

Item II (FAR Case 2008-012), entitled "Clarification of Submission of Cost or Pricing Data on Non-Commercial Modifications of Commercial Items ," is a final rule (adopting the prior interim rule with few changes) to implement section 814 of the National Defense Authorization Act for Fiscal Year  2008,  which requires alignment of the threshold for cost or pricing data on noncommercial modifications of commercial items with the Truth In Negotiation Act (TINA) threshold for cost or pricing data.

Item III (FAR Case 2008-040), entitled "Use of Standard Form 26 -- Award/Contract," is a final rule effective April 19 (i) revising  FAR parts 15 and 53 instructions for use of the Standard Form (SF) 26 to strengthen the prohibition against using block 18 of the form when awarding a negotiated procurement and  to emphasize that block 18 should only be checked when awarding a sealed bid contract and (ii) revising the final sentence of the current FAR 53.214 because the updated SF 26, which was issued in April 2008, makes the sentence unnecessary.

Item IV (FAR Case 2008-006), entitled "Enhanced Competition for Task- and Delivery- Order Contracts--Section 843 of the Fiscal Year 2008 National Defense Authorization Act," is a final rule effective April 19, adopting the prior interim rule with changes and  amending the FAR to implement Section 843, Enhanced Competition for Task and Delivery Order Contracts, of the National Defense Authorization Act for Fiscal Year 2008. which contains several requirements regarding enhancing competition within federal contracting, including: (i) limitation on single-award task and delivery-order contracts greater than $100 million; (2) enhanced competition for task and delivery orders in excess of $5 million; and (3)restrictions on protests in connection with issuance or proposed issuance of a task- or delivery-order except for a protest on the grounds that the order increases the scope, period, or maximum value of the contract under which the order is issued, or a protest of an order valued in excess of $10 million.

Item V (FAR Case 2008-036), entitled "Trade Agreements--Costa Rica, Oman, and Peru," is a final rule adopting the interim rule without changes amending the FAR to implement the Dominican Republic--Central America--United States Free Trade Agreement with respect to Costa Rica, the United States-Oman Free Trade Agreement, and the United States-Peru Trade Promotion Agreement.

Item VI (FAR Case 2008-015), entitled "Payments under Fixed-Price Architect-Engineer Contracts," is a final rule effective April 19 amending the FAR to revise the withholding of payment requirements under FAR 52.232–10, a change that was initiated by the SBA's Advocacy Office, a part of the SBA Office of Advocacy’s Regulatory Review and Reform Initiative, or r3 initiative, which was established to help small businesses address the cumulative federal regulatory burden.

Item VII is a technical amendment to FAR 14.202-4.

The DOL has issued a proposed rule which, in its final form, will implement Executive Order 13495 regarding the nondisplacement of qualified workers on service contracts. Comments on the proposed rule are due by May 18.

FTR Bulletin 10-02: The GSA has published a revised Standard Mileage Rate for moves within the continental United States, reducing the prior rate of 24 cents per mile to 16.5 cents. The revised rate is effective for travel during calendar year 2010.

In C. R. Pittman Construction Co., the Court of Federal Claims held that the contract's  Damage to Work clause unambiguously assigned to the contractor the responsibility for damage to equipment caused by Hurricane Katrina, and, therefore, the contractor's efforts to rely on various "course of dealing" arguments to interpret the clause differently were unavailing.

The GAO sustained the protest of DynCorp International LLC because task order solicitations were outside the scope of the underlying multiple-award contracts.

The DoD has issued revised non-foreign overseas per diem rates for travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and Possessions of the United States.

Three ASBCA decisions have been published.  In Laser Manufacturing, the Board denied a claim for alleged changes in inspection and acceptance criteria. In Bernard Cap Co., the Board dismissed several claims as time barred by CDA's  statute of limitations. In American Ordnance, the Board found the Government responsible for excusable and compensable delays resulting from (i) defective specifications; (ii) withholding of superior knowledge; and (iii) breach of the implied duties of cooperation and noninterference. The Board found that the Government's technical data package was seriously defective, that the Government failed to communicate its superior knowledge of the problems to the contractor; that the contractor did not assume the risk of these issues by, inter alia, entering a fixed-price contract, and that the Government compounded the problem by its improper administration of contract performance as these issues came to light.

Meanwhile, the SBA's OHA published five decisions in size determination appeals: (i) dismissing as premature an appeal that a size determination "might" affect a firm's 8(a) eligibility; (ii) returning another to the Area Office and requiring it to explain its rationale for a finding of affiliation; (iii) concluding there is no exception for 481(a) income adjustments that counters the general rule that total income plus cost of goods sold as stated on a firm's tax return is the basis for calculating annual receipts for purposes of size determinations;   (iv) denying a petition for reconsideration of its decision in SIZ-5090 regarding the inclusion of inclusion of conference management revenues in annual receipts as amounts collected for another pursuant to 13 C.F.R. § 121.104(a); and (v) dismissing an appeal both regard to the current procurement (because it was untimely for that purpose) and for future procurements (because it lacked the requisite specificity as to the alleged errors in the Area Office's determination.  

In Bell BCI, the Court of Federal Claims held that, when there is no just reason for a delay, a contractor may obtain immediate recovery in the form of partial summary judgment on claims affirmed on appeal without waiting for its remaining claims to be resolved.

In The Dallas Irrigation District, the Court of Federal Claims had occasion to address many elements of EAJA awards including, inter alia, attorney fees, a request for an enhanced award, COLA, paralegal fees, legal research expenses, attorney travel expenses, deposition, hearing, and trial transcript costs.

The CBCA upheld the default termination of (and subsequent government claims for liquidated damages and excess reprocurement costs against)  C-Shore International, rejecting the contractor's contention that the Government's claims were untimely and dismissing the contractor's cross complaint for lack of jurisdiction because that claim had not been submitted to the Contracting Officer for a decision.  

Effective April 7, the Commerce Department is updating the entire Commerce Acquisition Regulation to bring it in line with the FAR.

DFARS Case 2009-D017: The DoD has issued an interim rule  to add policy and a contract clause requiring that contractors providing essential contractor services must be prepared to continue such services during periods of crisis. Comments are due by May 4.

DFARS Case 2009-D035: The DoD has issued another interim rule to implement section 812 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84, enacted October 28, 2009). Section 812 (entitled "Revision of Defense Supplement Relating to Payment of Costs Prior to Definitization") makes the limitations on payment of costs prior to definitization of unpriced change orders applicable to all categories of undefinitized contractual actions, "including undefinitized task orders and delivery orders"  and already has been partially implemented in DFARS Case 2008–D034. The current case implements the balance of the section by specifically including the category of "task orders and delivery orders" in the definition of "contract action" at DFARS 217.7401. Comments are due by May 4.

Mission Critical Solutions won its bid protest at the Court of Federal Claims. As you may recall, the company originally won its protest at the GAO against a sole source award because  the agency made the award without considering whether it could obtain competition from two or more HUBZone small businesses as required by the HUBZone statute, the provisions of which the GAO recognized as "mandatory." The SBA and the Army fought the protester's position in the protest (but the GAO rejected the SBA's interpretation). On the SBA's request for reconsideration, the GAO reaffirmed its decision and emphasized that HUBZone program set-asides are mandatory when the statutory conditions are met. However, shortly thereafter, the OMB issued a memorandum and then the Office of Legal Counsel of the Department of Justice issued its own memorandum concluding the GAO's position was incorrect and directing executive agencies to disregard it. Mission Critical Solutions took the fight to the Court of Federal Claims, which has just held for the company. Why do I think this one ain't over?

The bid protest by White Hawk Group was dismissed by the Court of Federal Claims because the offeror had such inferior overall evaluation scores that any errors by the SBA or procuring agency in regard to its small business size or joint venture status were irrelevant and nonprejudicial since it would not have received award anyway.

The SBA is proposing changes to 13 C.F.R. Part 127 (entitled "Women-Owned Small Business Federal Contract Assistance Procedures"), including eliminating the requirement for an agency-by-agency determination of discrimination, adopting both ‘‘numbers’’ and ‘‘dollars’’ measures of under-representation, and using the Fiscal Year 2006 CCR database as the data source for determining eligible industries under the WOSB Program. 

The DoD has proposed adding a new part 157 to 32 C.F.R. to reduce the use of social security numbers in forms and systems generated or maintained by DoD personnel and contractors. Comments are due by May 3.

DFARS Case 2008-D028: The DoD is seeking comments on potential changes to the DFARS to add a new subpart and associated contract clauses for the safeguarding, proper handling, and cyber intrusion reporting of unclassified DoD information.

The Court of Appeals for the Federal Circuit cleared up some important jurisdictional issues in Resource Conservation Group, holding that the Court of Federal Claims does not have jurisdiction over nonprocurement protests under 28 U.S.C. 1491(b)(1), but continues to have jurisdiction over claims for breach of an implied-in-fact contract under 1491(a)(1) for claims where the Administrative Dispute Resolution Act (ADRA) does not provide a remedy. Thus, according to the court, the ADRA did not repeal the Court of Federal Claims pre-existing jurisdiction over implied-in-fact contracts in nonprocurement cases.

The SBA's Office of Hearings and Appeals has published a slew of VET decisions (regarding the eligibility of service disabled veteran-owned small businesses). The most interesting of the bunch is Cooper-Glory LLC, in which the SBA's OHA determined that a joint venture owned by two other companies was not qualified as a SDVOSB and, in doing so, rejected the protester's attempt to rely on rules from other sections of the SBA's regulations that encourage joint ventures. In International Logistics, the OHA found that an ownership interest was not unconditional because it could not be sold at fair market value to anyone of the owner's choosing. Two other decisions (Teracore  and Advanced Environmental Solutions) involved the question whether the service disabled owner's ownership or work in another firm impeded his ability to full time manage and operate the SDVOSB in question.

DFARS Case No. 2008-D023: Effective March 1, the DoD is promulgating an interim rule adding several requirements to the DFARS related to the authority and funding requirements for multiyear contracts for major weapons systems, in order to implement section 811 of the National Defense Authorization Act for Fiscal Year 2008 and section 8008 of the Fiscal Year 2007 Defense Appropriations Act, and the same language in subsequent DoD appropriations acts. Comments are due by April 30.

The SBA is proposing numerous amendments to its small business size regulations to (i) clarify the effect, across all small business programs, of initial and appeal eligibility decisions on the procurement in question; (ii) increase the amount of time that SBA has to render formal size determinations; (iii) require that SBA’s Office of Hearings and Appeals (OHA) issue a size appeal decision within 60 calendar days of the close of the record, if possible; (iv) increase the amount of time that SBA has to file North American Industry Classification System (NAICS) code appeals; (v) alter the NAICS code appeal procedures to comply with a federal court decision; (vi) clarify that contracting officers must reflect final agency eligibility decisions in federal procurement databases and goal statistics; (vii) clarify how a contracting officer assigns a NAICS code and size standard to a multiple award procurement; and (viii) make other changes to size status protest and appeal rules. The proposed rule changes would affect 13 C.F.R. Parts 121, 124, 125, 126, and 134. Comments are due by March 31.

General Dynamics and Unisys won their GAO protest against the TSA's issuance of a task order to Computer Sciences Corp. because the agency's price realism evaluation re staffing was flawed and because the agency credited CSC for proposing an incentive fee lower than the one the solicitation suggested to other offerors was mandatory.

There are a couple of new CBCA decisions out, both dealing with contract interpretation issues.

The DoD has published an interim rule amending the DFARS to implement the provisions of Section 202 of the Weapons Systems Acquisition Reform Act of 2009, entitled "Acquisition Strategies to Ensure Competition throughout the Lifecycle of Major Defense Acquisition Programs," which:  (i)  requires that the acquisition strategy for each Major Defense Acquisition Program (MDAP) include measures to ensure competition at both the prime contract and subcontract level of the MDAP throughout its life cycle as a means to improve contractor performance and adequate documentation of the rationale for selection of the subcontractor at any tier; and (ii) requires specified actions to ensure fair and objective ‘‘make-buy’’ decisions by prime contractors on MDAPs and (whenever a decision regarding the source of repair results in a plan to award a contract for performance of maintenance and sustainment of a major weapon system) actions to ensure that the contract is awarded on a competitive basis with full consideration of all sources. The interim rule is effective today, and comments on it are due by April 26.

In Savantage Financial Services, the Court of Appeals for the Federal Circuit affirmed the finding of the Court of Federal Claims that the agency had a rational basis for the requirements stated in the solicitation, which were not shown by the protester to be merely a pretext for ordering the brand of one particular offeror. 

The latest procedural decision by the Court of Federal Claims in L-3 Communications Integrated Systems (a bid protest based on the Druyun fiasco) concluded, inter alia, that the standard to be applied in deciding whether a plaintiff (who is alleging bad faith by government procurement officials) should be allowed to supplement the administrative record is not the "irrefragable proof" required to actually prove the bad faith on the merits, but rather only that the bad faith allegations "appear to be sufficiently well-grounded" to support supplementation.  The court also rejected most of the evidentiary objections raised by the Government, permitting the supplementation requested by the plaintiff except as to rough drafts of a final report that was to be admitted and documents that had not been adequately identified or authenticated. Stay tuned.

The SBA has published two WBC decisions and several 8(a) BDP decisions.

Both the WBC decisions continue the battle regarding the Women's Venture Fund. The OHA originally held that the SBA's suspension of the firm from the program was improper because the suspension had been imposed without affording the firm a hearing. Subsequently, the SBA tried unsuccessfully to convince the OHA to reconsider its decision or to decide sua sponte that the insistence on the requirement for a hearing was misplaced, both of which the OHA refused to do. However, unfortunately for the Fund, the SBA found a way to prevail in the end. It sent the firm reinstatement papers that included unacceptable terms and, when the firm did not sign and return them in the time required, it in effect "relinquished" its awards. Unfortunately, the OHA had no jurisdiction to hear an appeal from this situation because the SBA had not terminated the firm from the program.

In Precision Pine & Timber, the Court of Appeals for the Federal Circuit reversed the Court of Federal Claims and held that the Forest Service did not breach either (i) an express warranty (because none existed) or (ii) the duty of good faith and fair dealing (because the Government's actions did not specifically target the plaintiff) in suspending timber harvesting contracts in 1996 while the Forest Service reluctantly engaged in consultations with the Fish & Wildlife Service (regarding an endangered species--the spotted owl) that were required by another court in separate litigation. 

The Federal Circuit reversed the Court of Federal Claims in the Agredano case and held the "as is, where is" warnings at a federal vehicle auction meant the Government bore no responsibility on a theory of an implied warranty when the purchasers had to spend a year in a Mexican prison after hidden marijuana was discovered in the vehicle.

There are several ASBCA decisions just out:

Todd Pacific Shipyards discusses (i) the standards for CDA jurisdiction over "new" and revised claims not yet presented to a Contracting Officer for decision and (ii) the time when a claim accrues for purposes of the CDA's statute of limitations.

On reconsideration in Wimberly, Allison, Tong & Goo, the Board affirmed its decision to dismiss a government claim when the Contracting Officer rescinded his decision after an appeal had been filed. The Board reasoned that the government claim was not for a sum certain and, therefore, that the Board lacked CDA jurisdiction.

In Symbion Ozdil Joint Venture, the Board decided that claims for extra work on a contract that was subsequently terminated for convenience should be priced at the unit price stated in the contract specifications rather than at cost pursuant to the "Changes" clause.  

Medtek lost its appeal at the CBCA because it failed to offer evidence to prove any of its three areas of claimed costs: extra construction costs; lost profits; and attorneys fees.

DFARS Case 2008-D005: Effective March 15, the DoD is modifying Part 217 of the DFARS by adopting as final, with several changes, the current interim rule (i) to address statutory provisions relating to interagency procurements on behalf of DoD, and (ii) to add new policy (a) to cover the requirements of Section 801(b) of the National Defense Authorization Act for Fiscal Year 2005 regarding the circumstances under which property and services in excess of the simplified acquisition threshold can be acquired through civilian agencies and (b) to expand existing DFARS definitions.

The Department of Agriculture is proposing (i) to amend the Guidelines for Designating Biobased Products for Federal Procurement to designate the following items within which biobased products would be afforded Federal procurement preference: disposable tableware; expanded polystyrene foam recycling products; heat transfer fluids; ink removers and cleaners; mulch and compost materials; multipurpose lubricants; office paper; topical pain relief products; and turbine drip oils; and (ii) to establish minimum required biobased contents for each of these items. Comments are due by April 12.

The VA has adopted as final, without changes, an interim final rule that implements portions of the Veterans Benefits, Health Care, and Information Technology Act of 2006, which requires the VA to verify ownership and control of veteran-owned small businesses, including service-disabled veteran-owned small businesses. The final rule defines the eligibility requirements for businesses to obtain ‘‘verified’’ status, explains examination procedures, and establishes records retention and review processes. In the same document, the VA also has implemented new interim final requirements, that eligible owners work full-time in the business for which they have applied for acceptance in the Verification Program, changes the time period for issuance of reconsideration decisions from 30 to 60 days, and changes the distribution of profits for limited liability companies and employee stock ownership plans and solicits comments on these regulatory amendments only. Comments on the interim portions of these new rules are due by March 10.

Esterhill Boat Service Corp. lost its protest at the Court of Federal Claims because the firm waited until after offers were submitted to claim a solicitation requirement unduly restricted competition.

The GAO published decisions sustaining three protests. AINS, Inc., won its protest because of a lack of meaningful discussions; specifically, the agency's request for a new project schedule did not adequately apprise the firm that the agency's evaluators considered its original project schedule too short. You ought to make a note of this unusual decision because there are hundreds of prior decisions where the GAO has said that meaningful discussions only require the agency to alert offerors to the general areas in which their proposals are found wanting.  C2C and Cahaba Safeguards won companion protests because the GAO was not satisfied with the agency's evaluation of a mitigation plan for a possible organizational conflict of interest submitted by the successful offeror.

The GAO published two decisions sustaining protests by Velos, Inc. Velos won the first protest because, during discussions, the agency misled it into believing its proposed terms for a software license were acceptable, when the agency subsequently found them unacceptable. Then, after the GAO's original decision had forced the agency to reevaluate, the GAO found the reevaluation unreasonable because the Source Selection Official had (i) ignored the technical evaluation panel on one issue in favor of the opinion of a consultant who had reviewed only the response to one discussion question rather than evaluating the proposals as a whole and (ii) downgraded Velos' performance risk solely on the basis of the date of the D&B report it had submitted.  

A proposed rule would (i) amend the FAR to implement Section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, which requires an adjustment every 5 years of acquisition-related thresholds for inflation using the Consumer Price Index for all urban consumers (except for Davis-Bacon Act, Service Contract Act, and trade agreements thresholds) and (ii) use the same methodology to change nonstatutory FAR acquisition-related thresholds for adjustment in 2010. Comments are due by April 5.

GSAR Case 2008-G504: Effective March 4, the GSA is revising Part 512 of the GSAR regarding the "Acquisition of Commercial Items."

In Rahil Exports, the ASBCA dismissed an appeal by a subcontractor for lack of jurisdiction because the subcontractor had no privity of contract with the Government either through an alleged agency relationship (with the prime allegedly acting on behalf of the Government) or through a quantum meruit recovery via an implied-in-fact contract.

In Mach II, the standard procedure under an ID/IQ contract was for the Contracting Officer to send the contractor an unsigned, proposed delivery order, which the contractor would sign and return, after which the Contracting Officer was to sign and formally issue it. The contractor claimed the Contracting Officer was often late in this second step, which was just a formality. The Government refused to pay for some orders which the contractor shipped without the Contracting Officer having signed the delivery orders. The ASBCA denied the contractor's subsequent appeal. Make sure all the "i's" are dotted when you deal with the Government.

Somebody's not getting the message. In Free & Ben, Inc., the ASBCA denied the contractor's second motion to reconsider the Board's denial of the contractor's first motion for reconsideration of the Board's denial of the contractor's motion for summary judgment.

On the other hand, some victories on dispositive motions can only be seen as temporary. In UniTech Services Group, the ASBCA denied the Government's motion for judgment on the pleadings after the contractor's complaint alleged the Government had breached (or, at least, had terminated for convenience) an implied-in-fact requirements contract for laundry services, after the Government declined to extend the last in a series of such contracts going back 35 years, because the Government had finally decided to opt for disposable uniforms for work involving radiation. Something tells me the contractor should not get its hopes up on this one.

The CBCA upheld a default termination because, after the contract's original completion date had passed, the contractor did not submit a new schedule, forcing the Contracting Officer to issue one unilaterally, after which she terminated the contractor because she reasonably determined (after issuing show cause and cure notices) that the contractor could not complete the work within the remaining time.

I have added cases for 2006 to the Court of Federal Claims Contracts Disputes and Bid Protest pages, and I have divided the former page into subject areas. Towards the end, I was bleary-eyed, so if you spot mistakes, please let me know. 

In K-Mar Industries, the Court of Federal Claims held that the agency did not act irrationally in giving the awardee's staffing plan a technically-acceptable rating (despite the plaintiff's contention the awardee misclassified workers in violation of Service Contract Act) because (i) the awardee did not manifest an affirmative intention not to be bound by that Act and (ii) the specific SCA evaluation advocated by the protester was not in the solicitation evaluation plan.

In DMS All-Star Joint Venture, the same court held that the price discussions with offerors were fair, were not unequal, and did not improperly alert one offeror that it must lower its price in a particular area.

The GAO sustained two protests: one by American Security Programs against a task order outside the scope of an FSS contract; and another by LIS, Inc. against a flawed best value analysis lacking in a documented rationale for its conclusions. 

The ASBCA issued three decisions. It upheld a default termination in ZIOS Corporation. It held the Government did not unreasonably delay consideration or improperly reject a subcontractor's submittals in a construction contract in Clark Construction. Finally, in Smoke Blotter, it found it lacked CDA jurisdiction over a contractor's protest of the issuance of a delivery order to its competitor.  

In companion decisions, the GAO sustained protests by McKissack+Delcan JV II and PMO Partnership Joint Venture after the DOT had found the accounting systems proposed by two joint ventures for a cost reimbursable contract unacceptable simply because each proposal was based on using the individual indirect rates of the JV partners. The GAO thought this was a matter of responsibility rather than responsiveness, rejected the agency's unsupported conclusion that CAS 401 demanded a single overhead rate for the JV, and found no other rational basis for the agency's conclusion. 

The President has issued a Memorandum that begins the process of collecting information to assess the extent of, and then to address, the problem of firms who are delinquent in paying federal taxes being allowed to bid on government contracts. 

Although this is not exactly on topic, pursuant to one of President Obama's initiatives,  various government agencies are posting a  bunch of previously unavailable data to the internet. The new data collections will be available at data.gov.

DFARS Case 2009-D003: The DoD is proposing (i) to amend the DFARS to implement Section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (which provides for adjustment every 5 years of statutory acquisition-related thresholds) and (ii) to review nonstatutory acquisition thresholds. Comments are due by March 22.

DFARS Case 2008-D046: The DoD is converting the interim rule issued July 29, 2009, to a final rule without any changes. The rule amends the DFARS to implement the Dominican Republic—Central America—United States Free Trade Agreement with respect to Costa Rica, and the United States-Peru Trade Promotion Agreement by waiving the applicability of the Buy American Act for some foreign supplies and construction materials and specify procurement procedures designed to ensure fairness.

DFARS Case 2006-D051: The DoD also is converting the interim rule issued January 10, 2008, to final without change. The rule implements Section 802 of the National Defense Authorization Act for Fiscal Year 2008, which places limitations on the award of new contracts for lead system integrator functions in the acquisition of major DoD systems.

I'm gradually adding more decisions to the Court of Federal Claims Contract Disputes page and the Court of Federal Claims Bid Protest page. This morning, I noticed the following conclusion of a 2006 decision in which Judge Allegra held against the Government on a suretyship issue. Enjoy--

"The refrain of a 15th century English ditty, known as the 'Riddle Song,' goes –

I have four brothers over the sea,

Perry merry dictum domine,

They each sent a present unto me,

Perry merry dictum domine,

Perry merry dictum, domine.

One supposing that these lyrics say something profound about the power (domine) of dictum would be disappointed, as the rhyming 'Latin' employed is prattle. While it might be too harsh to say the same of defendant’s dictum-driven attempt to reinvent the law of subrogation, the fact of the matter is that its theory lacks not only precedential support, but a doctrinal foundation (with the latter undoubtedly contributing to the former). With this theory now having been rejected by a sextet of decisions, a prolonged fermata perhaps is in order."

The DoD is contemplating a Reciprocal Defense Procurement Memorandum of Understanding with the Czech Republic. Comments are due by February 18.

The Army Corps of Engineers is proposing an interim "Continuing Contracts" funding clause for use only on specially designated civil works projects, which is designed (i) to provide options for funding contracts spanning more than one fiscal year after the enactment of statutory restrictions to the Corps’ continuing contract authority and (ii) to allow Congress more oversight over continuing contracts and better control over the rate at which funds are spent on projects so that contracts will obligate funds in close alignment with prerogatives reflected in budget documents and appropriations acts. Comments are due by March 16.

DFARS Case No. 2009-D038: The DoD is proposing to amend the DFARS to improve the effectiveness of DoD oversight of contractor business systems by (i) defining contractor business systems as accounting systems, estimating systems, purchasing systems, earned value management systems (EVMS), material management and accounting systems (MMAS), and property management systems, and (ii) implementing a business systems clause which includes payment withholding that allows administrative contracting officers to withhold a percentage of payments, under certain conditions, when a contractor’s business system contains deficiencies, including (a) interim payments under cost reimbursement contracts, incentive type contracts, time-and-materials contracts, or labor-hour contracts; (b) progress payments; or (c) performance-based payments. Comments are due by March 16.

There are a couple of new ASBCA decisions out. After the Government did not seek to extend a stay covering a fraud investigation, Unconventional Concepts won most of its claims on summary judgment, and the Board dismissed several government claims because they were not the subject of a Contracting Officer's decision.  COSTAR lost its claims on a host of bases: the lack of authority of the government official allegedly requiring changes; extra work covered by bilateral modifications; performance of work as a volunteer; and a failure of proof as to alleged damages. 

The SBA is considering granting a waiver of the Nonmanufacturer Rule for Compressed and Liquefied Gases, PSC 6830, NAICS code 325120. Comments are due by January 27.

Off topic rant: One of the items that appears likely to be included in the final version of the new health care reform act is a 40% tax on so-called "Cadillac" health insurance plans. It is intended to target those individuals who have plans that include such things as no (or extremely low) deductibles and concierge doctor service. The problem is that the way the current bill identifies those plans is simply by including all plans that cost over a certain amount (more than $8500 per year for individuals). That amount might buy a 24-year-old person working for a large company a Cadillac plan. I can tell you from painful and ongoing personal experience that it does not buy anything close to a Cadillac plan for a 62-year-old, self-employed lawyer who gets his insurance through the State Bar of Texas Insurance Trust. People like me pay an astronomical amount just for basic insurance with a very high deductible and large co-payments. Adding a 40% tax on top of that is not what I would call health care "reform." :) 

The SBA has announced additional public meetings in Miami (January 14) and Los Angeles (January 19) as part of its consideration of proposed revisions to its 8(a) and size regulations the agency first announced October 28, 2009.

In Government Technical Services, the Court of Federal Claims held that the Government's failure to exercise an option under an ID/IQ contract did not establish bid protest jurisdiction in the court.

There are seven new size decisions listed at the top of the size decisions on the SBA OHA web page. The most interesting of the bunch is Alutiiq International Solutions, which overturned the Area Office's  finding that a firm violated the ostensible subcontractor rule. The OHA noted that the firm's associations to which the Area Office objected were with its parent rather than a subcontractor and also fell within the ANC exemption to the SBA's affiliation rules.

I have redone the SBA OHA Recent Decisions page so that the size decisions are now organized by general subject matter to help you search them more easily. Clicking on either the general headings at the top of the page or the specific headings in the table underneath the Size Appeals section will take you to the appropriate part of the page.

While working on revising that web page, I belatedly noticed something. The SBA's published decision re a NAICS appeal by Inklings Media instructs us (mistakenly, I assume)  to cite it as: NAICS Appeal of Inklings Media Company, LLC, SBA No. SIZ-4850 (2007). See the very top of the first page of the decision. However, it is a NAICS decision, and, in the actual case caption (on that same page, just below the previously-quoted instruction), the citation is "SBA No. NAICS-4850," instead of SBA No. SIZ-4850. I assume the second is the correct title of the case, but the SBA's url address for it also identifies it as SIZ-4850. Confusing enough for you? My only point is that, if you are looking for SIZ-4850, you will actually find a NAICS decision.  

The Department of Energy (DOE) is proposing to amend the DOE Acquisition Regulation (DEAR) Subchapters E (General Contracting Requirements), F (Special Categories of Contracting), and G (Contract Management), to conform to the FAR, remove out-of-date coverage, and  update references. Comments are due by February 8.

I have reorganized the Recent Successful GAO Protests (2005-Present) page into subject areas, so that it matches the Successful GAO Protests (2000-2004) page.

While we're on the subject of the GAO, it sustained a protest by C&B Construction because the agency did not adequately document its rationale for selecting a higher-priced quote in response to a solicitation for the award of a task order under a BPA.

Effective today and applicable to official travel performed on or after January 1, the GSA's FTR per-mile reimbursement rates for official travel are as follows: privately-owned automobiles ($.50); privately-owned motorcycles ($.47); and privately-owned airplanes ($1.29).

DFARS Case 2009-D012: The DoD is proposing to amend the DFARS to implement (i) the July 9, 2009 waiver (issued by the Deputy Secretary of Defense) of the section 302(a) of the Trade Agreements Act of 1979, as amended (which generally prohibits acquisitions of products or services from nondesignated countries) in order to allow acquisition from the nine South Caucasus/Central and South Asian (SC/CASA) states; and (ii) the Deputy Secretary's determination of inapplicability of the Balance of Payments Program evaluation factor to offers of products (other than arms, ammunition, or war materials) from those SC/CASA states to support operations in Afghanistan. Comments are due by March 9.

Executive Order 13256 (dated Dec. 29, 2009, but published today) "prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism." It is accompanied by a memorandum to agencies containing directions for implementing the E. O., as well as a document listing those officials who are authorized to classify items as SECRET or TOP SECRET.

Happy New Year!

You may access the complete 2009 blog here.

I've also made what I hope you will agree are a few improvements to the website:

First, I have added a page that lists successful GAO protests (by general subject areas) from 2000-2004. Of course, the website still includes the page listing successful GAO protests from 2005-present.

I have also added more, earlier cases to both the Federal Circuit protest decisions page and the Federal Circuit contract disputes decisions page, so that each page now covers decisions from the beginning of 2000 to the present.

I have reorganized the cases on the recent ASBCA decisions page into subject areas to help you search those decisions more easily.

Finally, to eliminate some clutter, I have broken out all the Winstar-related decisions and put them on their own, separate page.

I hope to gradually extend the decisions listed on other pages back to 2000, but that probably will take awhile now that the Christmas season is over, and I don't have nearly as much time on my hands. Maybe next Christmas. . . .

At any rate, I hope the changes help you find information that may be useful to you.