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Developments in Government Contracting--2018

January 13 The GAO sustained a protest by Herman Construction Group, Inc. because the record did not support the agency's conclusion that the awardee had submitted sufficient evidence to permit the agency to allow it to correct an allegedly mistaken bid.

In Continental Service Group, Inc., et al., a decision labeled as nonprecedential, the Court of Appeals for the Federal Circuit: (i) upheld the portion of the Court of Federal Claims' prior bid protest ruling preliminarily enjoining the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proposing to amend and update its VA Acquisition Regulation (VAAR) in phased increments to revise or remove any policy superseded by changes in the FAR, to remove procedural guidance internal to VA into the VAAM, and to incorporate any new agency specific regulations or policies, all in order to streamline and align the VAAR with the FAR and remove outdated and duplicative requirements and reduce burdens on contractors.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

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

In Size Appeal of QuaLED Lighting, the SBA's OHA held that the Area Office had correctly found a protest untimely because it only mentioned the base contract award (which occurred more than a year before the protest was filed) rather than the subsequent award of a task order.
December 29, 2017 In Michael Johnson Logging, although the CBCA held that the contractor had presented sufficient evidence of its contention that the Government had violated its implied duty of good faith and fair dealing to survive the Government's motion to dismiss, the Board did dismiss the contractor's claim for "business devastation," holding that (similar to claims for consequential damages), it was too remote and speculative because there was no proof that the Government's actions on the current contract affected the contractor's profits on other work.
December 28 In Size Appeal of Equity Mortgage Solutions, the SBA's OHA overturned the Area Office's decision after finding that the challenged firm ran afoul of all four prongs of the ostensible subcontractor rule because: (i) the proposed subcontractors were the incumbent contractor and its subcontractor, both of which were ineligible to compete for the current procurement; (ii) the prime contractor planned to hire the large majority of its workforce from the subcontractors; (iii) the prime contractor's proposed management previously served with the subcontractor on the incumbent contract; and (iv) the prime contractor lacked relevant experience and seemed to be reliant on the experience of its proposed subcontractors to win the contract.

DFARS Case 2017-D037: A final rule amends the DFARS to add Latvia as a qualifying country.

DFARS Case 2018-D001: Effective January 1, 2018, a final rule amends the DFARS to incorporate revised thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements.
December 27 In American West Construction, LLC, the ASBCA held that the Government, by its actions, had waived its right to impose a deductive change on the contractor for failure to comply with a clear (albeit superfluous) contract requirement to construct temporary bridges.
December 26 In Size Appeal of Emergent, Inc., the SBA's OHA upheld the Area Office's finding that the small business prime's proposed use of the large business incumbent as its subcontractor did not violate the ostensible subcontractor rule because: (i) the small business would not hire its workforce en masse from the incumbent; (ii) the small business would not hire its management personnel (specifically its PM) from the incumbent; (iii) the small business prime had relevant experience of its own; and (iv) the small business prime would be perform the majority of the contract's primary and vital contract requirements.

In Size Appeal of Chenega Support Services, LLC, the OHA held that the Area Office had correctly dismissed a size protest as untimely because the procuring agency's decision to suspend the performance of (but not to cancel) the contract at issue in response to a GAO protest did not toll the requirement that any size protest must be filed within five days of the original notice of the identity of the apparent awardee.

In NAICS Appeal of SupplyCore, Inc., which involved an unrestricted solicitation for supply chain management in support of tires, the OHA held that the Contracting Officer properly chose NAICS code 493190 (Other Warehousing and Storage
) as opposed to either NAICS code 326211 (Tire Manufacturing, except Retreading) or 336390 (Other Motor Vehicle Parts Manufacturing).

In Pro Cleaners, the CBCA dismissed an appeal for lack of jurisdiction because (i) the claim was uncertified and (ii) the contractor had filed the appeal less than 60 days after the Contracting Officer had received the claim.
December 22 In another Veterans Contracting Group, Inc., decision (this one a preaward protest of VA set-asides for SDVOSBs, which is a continuation of an  earlier case that resulted in a preliminary injunction against the VA's decision to remove the protester from the VA's list of qualified SDVOSBs eligible for VA SDVOSB set-asides), the Court of Federal Claims held that it was irrational for the VA to remove the firm from the VA's qualified list based solely on an SBA determination of eligibility, without considering the differences in the VA's and SBA's definitions of unconditional ownership, but that the agency had a rational basis for canceling a solicitation because the protester was not on the qualified list at the time and the only two qualified bids exceeded the IGE. See also the December 21 entry concerning another court decision involving a non-VA set-aside.  As I noted yesterday, the upshot of all these decisions is that the differences in the SBA's and VA's rules are creating problems that the CAFC probably will have to resolve (or better still, that the agencies can address by harmonizing their regulations).
December 21 In Veterans Contracting Group, Inc., the Court of Federal Claims reluctantly affirmed an OHA decision that a firm did not qualify as an SDVOSB in a  non-VA procurement set aside for such firms because of a lack of unconditional ownership by the SDV (based on an earlier OHA precedent for interpreting "unconditional ownership," in light of the regulations' silence on the issue). What troubled the court was that the regulations for the 8(a) and WOSB programs do contain explanations of "unconditional ownership" that are less rigorous that the standard adopted by the OHA for the SBA's SDVOSB program. I'm guessing this one is heading for the CAFC.

In CliniComp International, Inc.
, the court denied the plaintiff's motion for an injunction pending its appeal of an earlier decision that the company lacked standing to protest because it did not have the capabilities required to perform the contract at issue.
December 20 In Intelligent Waves, LLC, and Missionist Group, Inc., which involved consolidated, unsuccessful post-award protests, the Court of Federal Claims denied requests for a TRO and preliminary injunction and held that: (i) there was a rational basis for the agency's determination that one of the protesters had an OCI issue, which the protester failed to address adequately despite multiple notices of the problem and opportunities to correct it, and, in any event, there was no  prejudice in this area because the awardee's proposal would still have had a higher evaluation even if the weaknesses  the evaluators assigned for the OCI were removed; and (ii) various challenges to other aspects of the evaluation were not likely to succeed on the merits because the agency followed the evaluation criteria and there were rational bases in the record for its conclusions.
December 19 In Burnham Assocs., the ASBCA: (i) sustained the contractor's appeal with regard to the payable quantity of dredging material, holding that the Government had misrepresented the levels of payable materials in its solicitation estimate because that estimate was based on an outdated survey even though the Government had performed all but an hour's worth of the work that would have been required to create an estimate based upon the latest survey; but (ii) denied the contractor's  claim for alleged delays caused by shipping traffic at the worksite because the contractor did not produce evidence that the traffic level was higher than the historical norm.

The ASBCA dismissed an appeal by UTi, United States, LLC because there is no CDA jurisdiction over bill of lading acquisitions governed by the ICA/Transportation Act.

The ASBCA dismissed (as untimely) an appeal by North Arizona Construction Co., which was not filed until almost four years after the contractor's receipt of the Contracting Officer's decision denying the claim (a decision that had clearly notified the contractor of its appeal rights and options).
December 18 In Size Appeal of Unissant, Inc., the SBA's OHA held that a protest of a size certification made in connection with the exercise of an option of a long term contract was untimely because it was filed at least four months after that recertification and, despite not having received a direct notice of the recertification, the protester had reason to know of it long before the protest was filed.

In Size Appeal of First Financial Assocs., the OHA held that the fact that the protested firm's parent company (with which it was affiliated) was a non-profit concern did not render the protested firm ineligible as a small business.
December 14 In Precision Asset Management Corp. (an interesting and successful post-award protest), the Court of Federal Claims held that: (i) the Government's failure to notify the protester of issues that ultimately were treated as significant weaknesses in the final award decision (even though they had only resulted in a "neutral" rating) constituted a lack of meaningful discussions; and (ii) the Government's evaluation of the awardee's proposal (based on the evaluators' mistaken assumption that a certain company was either a  joint venture partner or a mentor of the awardee) was irrational.

In Analytical Graphics, Inc., unsuccessful post-award protest (post-award because it followed an unsuccessful protest at the GAO, during the pendency of which the agency had continued the competition), the Court of Federal Claims held: (i) it could not find any clear direction in the controlling statutes that either (a) the Rule of Two or (b) the commercial availability analysis required of an agency must come first; (ii) therefore, the court would not not second-guess the agency's decision in this situation to conduct both analyses essentially simultaneously after the completion of market research; (iii) the agency properly concluded the Rule of Two requirement for a small business set-aside was met without having to consider the potential offerors' capabilities or price in the same detail as would be required in the actual evaluation of proposals after the set-aside; and (iv) the agency's market research was sufficient to support the agency's determination that its requirement as a whole could not be satisfied with commercial items even though certain individual elements could. The court's decision is lengthy and highly fact-dependent, and one can certainly understand
from the serpentine history of the procurement why the protester was frustrated with agency's Rule of Two and commerciality determinations.
December 13 In Bank of America, National Association, the CBCA: (i) discussed the meaning of a settlement agreement in detail (including the contractor's attempts to distinguish HUD from Ginnie Mae in analyzing the scope of the document) before ultimately determining that the release signed by the contractor barred its subsequent claim for breach; and (ii) held that the Board lacked jurisdiction over the contractor's claim for unjust enrichment.

In VSE Corp. v. DOJ, a decision involving a claim for the costs of allegedly extended storage of seized items, the CBCA held, inter alia, that: (i) it lacked jurisdiction over the portion of the contractor's claim related to a prior contract with a different agency because no claim had been submitted to that agency's Contracting Officer; (ii) the concept of "nonmutual defensive collateral estoppel" barred the contractor's arguments based on findings of fact in a prior district court litigation between the contractor and its subcontractor (to which the DOJ as the contracting agency was not a party) even though the contractor and the sub had settled that dispute after the district court decision but before an appeal of that decision); (iii) rejected the contractor's effort to apply collateral estoppel against the DOJ related to the prior district court decision because the DOJ had not been a party to that litigation; and (iv) held that the contract did not establish a limit on the amount of time the contractor was required to store seized property.
December 12 The GAO sustained a protest by ENSCO, Inc.; PAE National Security Solutions, LLC because: (i) the agency's evaluation of the awardee's proposal was not in accordance with the solicitation's evaluation criteria; (ii) the agency's cost realism analysis of the awardee's proposal was not adequately documented; (iii) the agency's assignment of significant weaknesses to a protester's proposal was not in accordance with the stated evaluation criteria; and (iv) the agency improperly allowed the awardee to exceed the page limitation for resumes. 

In Luna Innovations, Inc., although the ASBCA upheld the Contracting Officer's decision that employee stock option costs included in a publically-traded contractor's indirect cost proposal using the Black-Scholes model were unallowable pursuant to FAR 31.205-6(i), the Board held that given the complexities and uncertainties of the case and the fact that the issue was one of first impression, the costs were not "expressly unallowable" and, therefore, were not subject to a penalty.
December 11 Immersion Consulting, LLC won its GAO protest because the administrative record lacked a reasonable explanation for the SSA's decision to deviate from the SSEB's assessment of strengths and weaknesses in the competing proposals.

In XPO Logistics Worldwide Government Services, LLC, the Court of Federal Claims denied the contractor's motion to stay an earlier decision denying its protest pending appeal to the Court of Appeals for the Federal Circuit because, inter alia, the contractor did not establish its appeal was likely to succeed or that it would suffer irreparable harm absent a stay.
December 8 The CBCA denied consolidated appeals by Bob L. Walker arising out of timber sales contracts primarily because the contractor failed to present any significant evidence to support its various allegations of damages.
December 7 The GAO sustained a protest by Goodwill Industries of the Valleys; SourceAmerica because the procuring agency violated the Javits-Wagner-O’Day Act and its implementation under the AbilityOne program by failing to acquire custodial services for the leased premises from the mandatory source.
December 6 In Size Appeal of Woodlawn Mfg., LTD, the SBA's OHA affirmed the Area Office's finding of affiliation because the appellant did not dispute the basic findings of ownership and control and mistakenly argued that economic dependence was an additional requirement for a finding of affiliation.

In Size Appeal of Team Waste Gulf Coast, LLC, the OHA affirmed the Area Office's finding of affiliation because the Operating Agreement at issue granted one firm negative control through the power to block several types of actions (over certain dollar thresholds) that the OHA has deemed essential to operating a business, including the creation of debt and the payment of dividends.

In Size Appeal of Seaborn Professional Staffing, the OHA remanded the case to the Area Office for further review because it was unclear from the record whether the solicitation called for the award of a contract, a task order, or a BPA, and as a result, which size protest rules should be  applied to the dispute.
December 5 AdvanceMed Corp. won its GAO protest because: (i) the agency deviated from both FAR requirements and the express terms of the solicitation by failing to give meaningful consideration to an impaired objectivity OCI implicated by contracts held by the awardee's parent company; and (ii) the agency's determination that the awardee's proposal was acceptable under the "508 compliance" evaluation factor was unreasonable where the compliance officer had found that the awardee's system required remediation in order to be compliant and no such remediation had occurred.
December 4 The Court of Federal Claims published three decisions involving claims by Oasis International Waters, Inc., two of which were preliminary decisions issued in the past, but not previously published.

In the first decision, the court denied the Government's counterclaims involving the Special Plea in Fraud, False Claims Act, and the anti-fraud provisions of the CDA concerning alleged double-billing in the contractor's claims because the mere fact that the contractor's interpretation of the contract differed from the Government's did not amount to a fraudulent intent to deceive and, given the credibility of the witness who actually signed the claim certification, the fact that other company officials disagreed with his position was not sufficient to establish fraud or that the claim was submitted in an inflated amount merely as a negotiating tactic.

In the second decision, the court held that, although the Government's interpretation of the contract ultimately proved correct and the contractor's allegations that it signed two relevant modifications under duress were ultimately shown to be unsupported, the Government had not established that the contractor intended to defraud the Government by submitting its certified claim, especially when the  individual who signed the certification provided credible testimony that he did not intend to commit fraud and believed in his interpretation of the contract.

Finally, in the third decision, the court denied the plaintiff's claims for allegedly unsuitable site conditions and delays because the contract did not place responsibility for site conditions or site preparation on the Government. 
December 2 The GAO sustained a protest by Protection Strategies, Inc. because the agency did not have reasonable bases for: (i) evaluating the awardee's proposed personnel as a strength; and (ii) concluding that the  differences between the competitors' proposals in non-price factors were negligible.

Language Select, LLP, dba United Language Group won its GAO protest because: (i) the agency held unfair discussions by asking only the awardee about the role of its affiliated company in providing services; (ii) the agency lacked a reasonable basis for attributing its affiliate's corporate experience to the awardee; and (iii) the agency unreasonably minimized the significance for the awardee's proposal of a prior termination for cause of a similar contract.
December 1 In Dream Management, Inc., the CBCA denied the contractor's application for EAJA fees, finding the Government's litigation position had been substantially justified, in part because the contractor had rejected a settlement offer from the Government that was higher than the amount finally found due by the Board.
November 29 In Aegis Defense Services, LLC, f/k/a Aegis Defence Services, Ltd., which involved interpreting a contract to effectuate the parties' intentions, the ASBCA held that, by giving certain vehicles to the Government of Iraq at the conclusion of a contract, the Government had breached its contractual obligation to the contractor to negotiate the sale of those vehicles to the contractor if the Government had no further use for them.

In [Redacted], ASBCA No. 61065, the ASBCA held that the contractor's execution of a final release and its acceptance of final payment to close out a contract barred its subsequent claim for extra work that was not listed as an exception in the release.

In Black Bear Construction Co., the ASBCA granted the Government's motion for summary judgment and denied the appeal of a contractor that had not filed its termination settlement proposal (or requested an extension) within one year of its termination for convenience, as required by FAR 52.249-2(e).
November 27 In Size Appeal of The Frontline Group, the SBA's OHA held that the Area Office reasonably concluded that: (i) a proposed subcontractor was a small, similarly-situated entity, and, therefore, (ii) the ostensible subcontractor rule did not apply.

In Size Appeal of Global Native Services, Inc., the OHA: (i) dismissed several allegations raised for the first time on appeal; and (ii) held that the fact that the protested firm's owners were also employees of another concern did not establish that either firm had the power to control the other.

In Size Appeal of Johnson Development, LLC, the OHA held that: (i) non-profit charitable foundations are not exempt from the normal rules of affiliation; (ii) the Area Office correctly found affiliation through both (a) identity of interests among family members absent any showing of clear fracture between them and (b) common management; and (iii) the appellant was not entitled to exclude revenues from transactions between its affiliates to which it was not a party.

In Matter of Research Solutions, Group, Inc., the OHA held that a timely protest did not include any objection to the protested firm's SDVOSB status, and a subsequent protest of that status was untimely filed.
November 22 In J.R. Mannes Government Services Corp., the CBCA dismissed an appeal seeking damages for what the contractor alleged was an improper convenience termination because the contractor failed to produce any evidence that the termination was in any manner objectionable (in fact, given the evidence summarized by the Board, the contractor seems fortunate to have escaped without a default).
November 21 The GAO sustained a protest by Fluor Federal Solutions, LLC because (after prior corrective actions) the agency evaluated proposals disparately under the staffing and resources factor, criticizing the protester's proposed approach as possibly involving a risk that it would not be able to recruit the incumbent workforce, while at the same time failing to meaningfully consider whether the awardee's proposed approach of repeatedly replacing its exempt employee workforce over the life of the contract posed a significant risk.

In Philip Emiabata d/b/a Philema Brothers, the Court of Federal Claims held that, apart from the portion of the suit challenging a default termination by the Postal Service, the plaintiff's various contract claims for damages must be dismissed because they were not first presented to the Contracting Officer for a decision.

In Atlas Sahil Construction Co., a decision involving the proper amount of recovery following a convenience termination, the ASBCA, inter alia, rejected the contractor's arguments that: (i) the Christian doctrine should be used to read the basic version of FAR 52.249.2 into the contract (because the contract included Alternate I to that clause and there was no regulation requiring the basic version to be used); (ii) CLIN pricing should be used to determine the contractor's recovery (because costs, not prices, are the basis for T for C claims); and (iii) the jury verdict method should be utilized to determine quantum (because there was little or no evidence to support the contractor's contention that records of certain costs were unavailable to it).

The ASBCA sustained a default termination for failure to make progress on a construction contract because the contractor, MOQA-AQYOL JV, LTD.: (i) did not provide a credible analysis of government delays that would have excused its default; (ii) failed to overcome the release language in bilateral modifications that resolved three significant delays; and (iii) did not account for its own considerable delays, basically having assumed the risk of completing a complex project it was ill-equipped to undertake.
November 20 In XPO Logistics Worldwide Government Services, LLC, an unsuccessful post-award protest largely based on the facts that the protester's original scores were lowered during a reevaluation undertaken without additional discussions as part of corrective action after a prior protest, the Court of Federal Claims held that: (i) the protester waived its right to complain that the agency should have conducted discussions during corrective action (as well as its related argument that, absent re-opened discussions, the prior discussions had been unequal and misleading) because it was on notice no discussions were contemplated but did not protest until after award; (ii) the agency's evaluation of the magnitude of the protester's past contracts was unobjectionable because the agency used the values protester, itself, provided as part of its proposal; (iii) the agency had a rational basis for its rating of the relevance of one past contract; (iv) under the explicit terms of the solicitation, the agency was permitted to consider corporate experience in its  best value tradeoff decision; and (v) several other protest grounds already had been litigated and thus were precluded by the doctrine of res judicata.  
November 17 In Dyncorp International, LLC, a decision in which Judge Hodges repeatedly emphasizes the high burden of proof faced by protesters, the Court of Federal Claims: (i) rejected various challenges to the evaluation and (ii) held that, even though a former employee of the incumbent/protester had  given the awardee's senior management sensitive, proprietary information belonging to the protester that could have benefited the eventual awardee in the bidding process, there was a rational basis for the Contracting Officer's conclusion, after investigation, that there was no evidence the awardee had used this information in the competition and, in fact, all the available evidence suggested the awardee had not done so.
November 16 In Hanks, Hanks & Assocs., LLC, the CBCA dismissed an appeal for lack of jurisdiction because the original submission to the Contracting Officer was not certified, which: (i) rendered the subsequent Contracting Officer's decision a nullity, and (ii) could not be cured by a certification submitted after the Contracting Officer's "decision."

The CBCA also dismissed an appeal by Pros Cleaners for lack of jurisdiction because the contractor had not requested a decision from the Contracting Officer until after filing the appeal.

The Treasury Department has amended its acquisition regulation to permit agency officials to obtain taxpayer return information as part of responsibility determinations to check whether prospective awardees are in compliance with tax laws or have unpaid tax liabilities.
November 14 In Sterling Design, Inc., the ASBCA held that any delays by the Contracting Officer in responding to the contractor's questions about the meanings of the CLIN requirements did not entitle the contractor to delay damages because those questions were addressed by the PWS, which the contractor admittedly did not read.
November 10 In an unusually detailed decision, the GAO sustained a protest by Global SuperTanker Services, LLC, after concluding that the agency's numerous rationales for a restrictive specification were unsupported in the record and, therefore, were unduly restrictive of competition.
November 8 The Court of Federal Claims dismissed a protest by the State of Texas as premature because (i) being included in the competitive range did not automatically entitle the protester to an award, and the protester was still being considered and, thus, still had a chance to win. Edgar: "Ripeness is all." King Lear, Act V, Scene II.
November 7 In Straughan Environmental, Inc., the Court of Federal Claims agreed with the protester that the awardee was ineligible for award because it did not have the required annual written approval from the SBA extending its mentor-protégé agreement. While that holding will not have a significant precedential impact (because the SBA has since changed its rules so that annual written approvals of such agreements are not required), the case still includes two interesting holdings on standing issues, specifically that: (i) even though the plaintiff did not originally file a size protest within the SBA's time limit, it nevertheless had standing to sue because the Contracting Officer had requested a size determination, which eventually had came back in favor of the awardee (and, therefore, adverse to the protester's interests); and (ii) if the OHA erred in dismissing the protester's appeal to the OHA for lack of standing (because it was ineligible for award) the protester still had standing to sue because there was only one firm determined to be eligible for award, and, if that firm were actually ineligible, then the protester was adversely affected.

In Family Entertainment Services, Inc., the ASBCA held that:  (i) under the normal rules of contract interpretation, "day" meant "calendar day" rather than "work day" as advocated by the contractor;  and (ii) the inspections conducted by the Government were authorized by the contact, and the deductions taken by Government for substandard work were reasonable.
November 6 Federal Acquisition Circular (FAC) 2005-96 has been published and includes the following item:

FAR Case 2017-015: A final rule amends the FAR to remove the clauses associated with the prior Fair Pay and Safe Workplaces regulations (FAR Case 2014–025). Subsequently, a minor correction to the rule was issued.

In Size Appeal of LSINC Corp., after a lengthy litigation up and down through the appeals process, the SBA's OHA held that the appellant had not presented sufficient evidence to overcome the presumption of economic dependence when the small business in question had consistently derived more than 70% of its income from a large business for a prior period of several years and continued to do so even after the date of the size determination. For some of the litigation history see Veterans Technology, LLC and MDW Assocs., LLC v. United States, No. 16-1489 (Aug. 2, 2017) (prior SBA OHA decision affirming Area Office finding that firms were affiliated through economic dependence and contractual relationships was arbitrary and capricious because OHA did not adequately investigate or provide analysis of circumstances of contractual relationships).

In Size Appeal of Native Energy & Technology, Inc., the OHA held that: (i) a firm that had acquired only the small surviving portion of a former firm was affiliated only with that portion and not the entire predecessor firm; (ii) there was no affiliation of firms through common management because the challenged individuals did not hold management positions in the alleged affiliate; (iii) there was no additional affiliation through identity of interest because the challenged spouses did not control any companies not already included in the SBA's calculations supporting its size determination.
November 3 The GAO sustained a protest by AT&T Corp. because: (i) the discussions were misleading and unequal where the agency only advised the awardee of a proposal concern that agency also had with protester's proposal; (ii) the agency failed to adequately document aspects of the technical evaluation; and (iii) the SSA's source selection decision relied in significant part on issues not documented in the record.
November 2 In Loomacres, Inc., the Court of Federal Claims denied the Government's motion to dismiss and held that a prospective bidder had standing to challenge the Government's decision to insource services, even though the plaintiff did not have a current contract to provide the insourced services. The court, all but inviting an appeal, recognized its decision might vary from two earlier court decisions on a similar issue and noted that the Federal Circuit had yet to rule on the precise question.

In Magwood Services, Inc., the CBCA dismissed an appeal for lack of jurisdiction because the contractor's letter requesting the Contracting Officer to reconsider a default termination (the termination being the subject of a separate appeal to the Board) could not reasonably be construed as a CDA claim for money damages due to outstanding invoices, which was the issue in the dismissed appeal.

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