|
August 29 |
In
Thalle Constr. Co., the ASBCA was faced with the Government's
motions for summary judgment on various contractor claims
under an FFP contract for the consruction of an auxiliary dam reinforcing berm and left
rim stabilization at the Center Hill Reservoir in Dekalb County, Tennessee.
Several claims involved a situation where one of the
contractor's subs had gone out of business, requiring the
contractor to switch to another sub. Concerning these
claims, the Board held that: (i) there was no
constructive change because the contract only stated the
original supplier had an acceptable product, without requiring that
sub's use or guaranteeing that
it would remain in business; (ii) the contractor failed to prove that
the Government had superior
knowledge that the original supplier could not meet the quality requirements
because the Government had granted a variance to that supplier, and the contractor
switched to another sub because the original supplier went out of
business, not because the original sub was unable to meet the quality requirements;
(iii) the Government had not breached the implied duty of good faith
and fair dealing because the Government did not know ahead of time
that the supplier would go
out of business and there was no showing that the Government had forced
the contractor to
use another supplier; (iv) there was no showing of a defective specification regarding
the sub that went out of business because the specifications contained no
information promising that the sub would perform the contract. The
Board denied the Government's motions for summary judgment
in two other areas (topsoil claims and alleged weather
delays) because
genuine issues of material fact remained to be decided.
Percipient.AI, Inc's protest has a winding history.
Originally, the Court of Federal Claims bought the
plaintiff's argument that the court had bid protest
jurisdiction over
Percipient's protest, which alleged that, post award, the Government violated the requirement in 10 U.S.C. § 3453(b)(1)-(2) that defense agencies and their contractors
must acquire commercial products to the maximum extent practicable.
Subsequently, the same court
vacated its own decision and dismissed the case for lack of jurisdiction
(lack of standing).
Then, the CAFC weighed in and
reversed the CoFC,
holding that the protest did not allege the task order was, or
would be, wrongfully issued and, therefore, was not "in connection with"
a task order covered by FASA's bar on task order protests, and a protest
alleging a violation of 10 U.S.C. § 3453 and related regulations
(which establish a preference for commercial
services) falls within the CoFC's jurisdiction under the third prong of
the Tucker Act: "any alleged violation of statute or regulation in
connection with a procurement or a proposed procurement." 28 U.S.C. §
1491(b)(1). Now the CAFC, too, has had second thoughts and holds in
a decision labeled as
precedential that, in order to have standing as an
interested party, under 28 U.S.C. § 1491 a plaintiff
objecting to any alleged
violation of statute or regulation in connection with a procurement or a
proposed procurement must be an actual or prospective bidder
or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.
The court, therefore, upheld the CoFC's dismissal for lack
of jurisdiction. The upshot is that the standing requirement
is the same regardless of the type of allegations being
made. There is a dissent. |
|
August 28
| In
Samho Enterprise, the ASBCA held: (i) it lacked jurisdiction over the portion of
the appellant’s appeal seeking
specific performance compelling the exercise of a contractual option;
and (ii) the contractor's claim for
"no less than" a stated amount did not comply with the
requirement for a sum certain.
|
|
August 27 |
In
Jacobs Eng'g Group, Inc., which involved a Brooks Act procurement for
a multiple-award IDIQ contract for A-E
services pursuant to FAR subpart 36.6, in which the plaintiff
complained that it was not among
the offerors selected for final negotiations, the Court of Federal
Claims held, inter alia, that: (i) the agency's
evaluation of the qualifications of proposed personnel in the categories and
the priority of professional disciplines stated in the solicitation complied
with solicitation's evaluation scheme and did not rely exclusively or mechanically on
adjectival ratings; (ii) the agency did not utilize unstated evaluation
criteria or evaluate substantially identical proposals disparately;
and (iii) the protester's allegations of how it would have been evaluated had its
suggested methods of evaluation been utilized was speculative and was
not sufficient to establish prejudice.
|
|
August 26 |
In
Wave Digital Assets, LLC, an unsuccessful post-award protest of a contract to manage seized cryptocurrencies,
the Court of Federal Claims held that: (i) there was a
rational basis for the agency's disqualification of the plaintiff's proposal
for failure to comply with a solicitation requirement that it remain
capable of taking custody, and managing, all types and quantities of crypto
currency throughout the performance of the contract, even after the
agency gave it an opportunity to correct its proposed plan in this
area, and the plaintiff could not complain of the short turnaround time the
agency permitted for it to correct the plan, especially where
the plaintiff had refused to do so; (ii) the agency did not treat
the offerors unequally
in this area because the awardee's proposal was not indistinguishable
from the plaintiff's; and (iii) (although this portion of the decision
was heavily redacted) the court would not disturb the agency's conclusion that
the risk
of an OCI involving the awardee was minimal. |
|
August 25 |
DFARS Case
2024-D002: Effective October 1, a final rules amends multiple
DFARS parts to further implement 41
U.S.C. 1908, which requires an
adjustment every five years
of statutory acquisition-related
thresholds for inflation, using the
CPI for all urban
consumers, except for the Construction
Wage Rate Requirements statute (Davis-Bacon Act), Service Contract Labor
Standards statute, performance and
payment bonds, and trade agreements
thresholds. As a matter
of policy, DoD is also using the same
methodology to adjust nonstatutory
DFARS acquisition-related thresholds
on October 1, 2025. Federal Acquisition
Regulation (FAR) Case 2024–001
provides comparable changes to
acquisition-related thresholds in the
FAR.
DFARS Case
2024-D023: A final rule rule amends the DFARS to implement sections
1044 and 1045 of the
NDAA for
FY 2024, which, in turn, amend
section 1062 of the NDAA for FY 2021
that provides for the limitation of funds,
authorized to be appropriated or
otherwise made available for any fiscal
year for DoD, to be provided to an
institution of higher education that
hosts a Confucius Institute.
DFARS Case
2024-D007: Effective October 24, a final rule amends the
DFARS to implement
section 812 of the NDAA for FY 2024, which prohibits the award of contracts with
an assigned NAICS code
beginning with 5416 (e.g., management,
scientific, and technical consulting
services) to offerors who hold contracts
that involve consulting services with
certain covered foreign entities.
DFARS Case
2024-D003: A proposed rule would amend the DFARS
to implement section 212 of the
NDAA for FY 2021, which
adds 10 U.S.C. 4027, which requires
contractors to specify the amount of funds received from DoD under research
or development contracts that result in
a public document pertaining to such
activities. This requirement does not
apply to documents consisting of fewer
than 280 characters. Comments are due by October 24. |
|
August 24 |
In
NAICS Appeal of ITC Defense Corp., which
involved a total small business set-aside to provide contractor logistics support, program
management, training support, and materials in support of an anti-ballistic missile system,
the SBA's OHA rejected the Contracting Officer's designation
of NAICS code 541614 ("Process, Physical Distribution and
Logistics Consulting Services") with a corresponding $20
million annual receipts size standard in favor of the appellant's choice of
NAICS 541330 ("Engineering Services (Exception 1 for
Military and Aerospace Equipment and Military Weapons)") with a corresponding $47 million
annual receipts size standard. |
|
August 22 |
In SOFITC3, LLC,
an unsuccessful post-award protest of a firm fixed-price
contract for cyber-security services, the Court of Federal Claims held
that: (i) the plaintiff's and defendant's disparate interpretations of the
meaning of the word "engagements" in the solicitation were both within the zone of reasonableness, and the plaintiff had waived its right to protest based
on this patent ambiguity by failing to raise the issue until after award;
(ii) the court would not disturb the agency's discretionary evaluation that
the awardee's corporate experience (engagements totaling $30 million over 3 years)
was sufficiently close to the solicitation's statement of roughly $50 million over five years, especially where
the protester did not explain how it arrived at its alternate calculation;
(iii) the agency's evaluators did not engage in disparate treatment
of the competing proposals because, despite some similarities,
the proposals were not substantially indistinguishable; and
(iv) the agency was not required to reject the awardee's proposal that was found to have a "weakness" in
the staffing approach factor, especially where the agency had evaluated
the protester's proposal as "Low Confidence." |
|
August 21 |
In two decisions, the PSBCA held that a
"termination on notice" is a contract action rather than an appealable final decision,
and thus cannot be appealed absent a separate monetary claim
by the contractor, even when the Contracting Officer
erroneously labels it as a final decision and and advises the
contractor of its appeal rights: BAM Dart, LLC and
David F Grab. |
|
August 20 |
In
Size Appeal of Federated
Maritime, LLC, the SBA's OHA remanded the case to the Area
Office with a scathing rebuke because that office had failed (a) to consider multiple aspects of the
original protest filings, taking one party's allegations at face
value, and (b) to look behind the excessive redactions in a key document
(a limited partnership agreement), and, finally, (c) to investigate
the protester's
allegations concerning the ownership and alleged affiliations of the
challenged firm, which the protester had supported with
substantial evidence.
|
|
August 19 |
In GovCIO, LLC,
et al., although the Court of Federal Claims found that
the Administrative
Record did not contain an adequate justification for the agency's contention
that an urgent and
compelling need existed for a sole-source bridge
contract (task order) for scanning
and digitizing incoming tax filings and correspondence in order to meet the requirements of
Executive Order 14247 ("Modernizing Payments To
and From America’s Bank Account"), it also noted that the
Government had filled in the gaps in the record during the
briefing of the protest, so the court denied the
consolidated plaintiffs' request for an injunction and
remanded the case for 30 days to permit the Government the
opportunity to plug those holes in the Administrative
Record:
"On remand, the Agency shall, consistent with this ruling,
either provide (1) a fulsome explanation of the Agency’s
reasoning at the time of the agency action, or (2) render
a new agency decision regarding its justification to limit
competition of the . . . task order based on FAR 8.405-6."
In VSBC Appeal of Display Devices, Inc.,
the SBA's OHA held that although the D/GC had erred in concluding
the SDV's was not the most highly compensated position in the challenged firm,
the denial of the firm's application
for certification as an SDVOSB should be upheld because there was contradictory information whether
the SDV held the highest position in the firm, and there was
clear information that the SDV's son actually ran the firm's daily operations,
which showed a lack of control by the SDV. |
|
August 18 |
In JE Dunn
Constr. Co., which involved a contract to design and
construct the HVAC system for a medical clinic, the ASBCA held that:
(i) the 15% safety factor required
by the contract for the boiler design was clear, and even if it were
ambiguous, that ambiguity was patent, obligating the contractor to
inquire prior to bidding, which it did not do; (ii) the Government required
the contractor to redesign the boiler system only to meet that safety factor, not to
exceed it; (iii) similarly, the Government required the contractor
to
redesign the humidifier system only to the extent necessary to comply with
the contract requirement; (iv) the contractor's claim for compensable delay
caused by the allegedly improper rejection of three of the contractor's design
submittals must be denied because, inter alia, (a) the
contractor employed only a prospective, hypothetical delay analysis despite the fact that the
contract had been completed, (b) there were valid reasons for the
rejection of each submittal that the contractor's claim did not
address, and (c) the contractor presented inconsistent, and ultimately,
unsupported allegations of the length of the claimed delay; and (v) even
though the Government conceded the hydronic piping installation issue was
separate from the other claim issues and did delay the project's critical path,
the contractor had failed to establish the extent of any delay.
The ASBCA addressed 16 claimed areas
of allegedly extra costs in various way in
ECC Int'l Constructors, LLC, which involved a contract to design and construct a 20-building
military compound in Afghanistan. For example, although the Contracting
Officer was found (repeatedly) to have essentially directed contract changes by requiring the contractor to comply with the Government's
design reviewer's comments on its drawings, the Board denied claims
whenever the contractor failed to present evidence of the
Contracting Officer's involvement, e.g., the contractor's claim for being required to
install additional electrical outlets and rework others. The Board also denied
the
contractor's claim for having to install dedicated electrical panels in communications rooms
because that was already a clear, basic contract requirement. The
Board held it lacked jurisdiction over the contractor's
claim for additional spare rack capacity, which had not
previously been presented to the Contracting Officer for a
decision. The Board reduced other claimed amounts of damages
for lack of proof or incorrect calculations by the
contractor. |
|
August 14 |
In NARCORPS Specialties,
LLC, an unsuccessful
post-award protest involving a contract to provide role-playing support
services for a TSA training center, the Court of Federal Claims held
that: (i) despite the use of the word
"experience" in the Introduction to the SOW, the solicitation's
evaluation criteria clearly did not contemplate the evaluation of
experience under the Technical evaluation factor, but instead under
the Past Performance factor, where it had been, in fact,
properly evaluated; (ii) given
the high degree of deference afforded an agency's evaluation of Past Performance,
the court
would not disturb the agency's conclusions that the awardee's past performance
references included previous contracts that were similar in size, scope, and complexity to the
one contemplated by the current solicitation; and (iii) a statement in
an Appendix to
the solicitation that the "Government may reject any quote that is
evaluated to be non-compliant with the solicitation requirements or
reflects a failure to comprehend the complexity and risks of the work
performed" was distinguishable from statements that other court decisions
have found to imply a requirement for a price realism analysis (in part, because there
was no mention of the word
"price" in this statement).
|
|
August 13 |
In
Meltech Corp., which involved claims under a construction
contract, the ASBCA: (i) denied the contractor's constructive
change claim based upon a direction to replace some standard lighting
fixtures after a test by the fire inspector revealed inadequate emergency
egress lighting because, inter alia, the contract required adequate
lighting in those areas, and the contractor had immediately acquiesced in
the test results, without alleging any flaws in them until much later
in time; (ii) granted the contractor's Type I differing site condition claim
for the
added heat tracing it installed for relocated water piping due to unanticipated
overhead obstructions in the first-floor corridor ceiling because, inter alia,
the Government did not establish prejudice
from the contractor's alleged delay in the notifying Government of the claim,
and neither the pre-bid site visit nor the contract drawings put
the contractor
on notice of the condition; and (iii) the Government was not entitled to
a credit where
the contractor had installed shelving materials of the exact
type and quality stated in
the specifications even though the contractor had mistakenly included
higher quality materials in its approved design submittal after
contract award.
|
|
August 12 |
Federal Acquisition Circular ("FAC")
2025-05 has been published and includes the following
item:
FAR Case 2023-018: A final rule adopts the prior interim
rule, without changes, to amend FAR 52.204–7 ("System for Award Management") to
clarify that the SAM preaward registration
requirements in paragraph (b)(1) of the
provision mean that an offeror must be registered at time of
offer submission and at time of contract
award but would not be required to be
registered in between those two points
in time. |
|
August 11 |
In
Healtheon, Inc., which involved claims under a contract to
construct submersible electric pumps, diesel generators, fuel
tanks, a pre-engineered metal building, a concrete emergency
shelter building, and other
related work as part of a hurricane protection project, the ASBCA denied the contractor's claims
based on allegedly defective specifications, constructive change, and
breach of the implied duty of good faith and fair dealing related to the metal building work because
the contractor failed to comply with a specification requirement that
the contractor utilize a
professional engineer to review the contract and provide calculations and drawings to
support an enclosure classification for the building. The Board also held that: (i) the contractor had failed to
sustain its burden of proof that the compensation it had previously
received from the Government for directed changes was inadequate; (ii) the Board lacked
jurisdiction over a superior knowledge claim not previously presented to
the Contracting Officer; and (iii) the Government had sustained its burden to support the liquidated damages it assessed for the contractor's tardy performance.
|
|
August 10 |
In
The QED Group LLC d/b/a Q2 Impact, the Court of Federal Claims denied
an EAJA application after a successful protest because
the agency's position was substantially justified in both law and fact,
relying on a reasonable, if unsuccessful, statutory interpretation.
|
|
August 8 |
In The DaVinci Co., LLC,
a successful post-award protest, the Court of Federal Claims
held that in
a procurement for a prostate drug set aside for small businesses after
obtaining a waiver of the non-manufacturer rule, the agency had violated
the Trade Agreements
Act by awarding the contract for a drug manufactured in India after the Made in America Office
had granted a nonavailability
waiver. |
|
August 7 |
Although the protester did not win on all its protest
grounds, the GAO sustained a protest by emissary LLC
because: (i) the agency's evaluators admittedly
erred in crediting the awardee's technical proposal with an Outstanding
rating for fulfilling a solicitation requirement to propose the exact labor
mix stated in the PWS when it clearly did not do so; (ii) the agency ignored
a solicitation requirement to evaluate phase-in plans on a qualitative
basis, turning that evaluation into a pass/fail evaluation and,
thereby, ignoring
qualitative advantages of the protester's proposal in this area; (iii)
there was no basis in the record
or even in the agency's post-protest justifications for the
evaluators' conclusion that the awardee's proposed key person had the level of
experience credited to him by the agency; and (iv) there was no indication in
the record that the agency had considered the impact of the awardee's OCI mitigation plan
on its previously-evaluated technical approach, which was changed by that plan.
|
|
August 6 |
In Scot Cardillo dba Engineers Tooling Support,
the ASBCA held it lacked jurisdiction over the counts in the Complaint concerning claims not
encompassed by the contractor's notice of appeal and claims that repeated
those covered in an older, unappealed Contracting Officer's decision.
In Yul Lim Construction Co., Ltd,
a Rule 11 proceeding, the ASBCA held that: (i) a bilateral
modification and release unambiguously covered the entirety of
the contractor's delay claim, without any reservations; and
(ii) the contractor
failed to establish any special circumstances (e.g., duress, mistake,
or
misrepresentation) that would vitiate the release.
Similarly, in
Medical Receivables Solutions, Inc., the ASBCA held that a bilateral modification and
the contractor's acceptance of the payment it
called for unambiguously established both an unconditional release and
an accord and satisfaction.
In
Warfighter Defense Inc., the ASBCA granted the
Government's motion for summary judgment because the contractor never
accepted the Government's purchase order in response to an RFQ either by
signature or by performance, but instead repeatedly conditioned its
performance on the Government's agreement to waive a contract
requirement, which the Government never did. |
|
August 5 |
In
Troop Contracting, Inc.,
which involved the interpretation of a contract
to renovate a VA medical center, the CBCA held, inter alia,
that all of the contractor's various theories of recovery
(breach, constructive change, superior knowledge, etc.) for
allegedly extra work in discovering and remediating lead
based paint were based on the same set of allegations and
failed because the contractor's interpretation that the
contract had only very limited requirements for the disputed work was
unreasonable, and, even if the contractor's interpretation
were reasonable, the solicitation
put the contractor on clear notice of the Government's contrary,
reasonable
interpretation, creating a patent ambiguity which the contractor
was obligated to, but did not, attempt to resolve prior to bidding.
In Delta T Jr, LLC, the CBCA denied the Government's motion for summary judgment upholding
the default termination
of an FFP contract to expand a cemetery because issues of fact remained as to the cause
of the failure of a retaining wall and whether the contractor was
obligated to follow the Contracting Officer's directions to remedy the situation
or whether the
"Warranty of Construction" clause limited the contractor’s obligations.
In Tribal Health LLC,
which involved a bridge contract with the Indian Health Service to provide hospital
emergency room health care services, the CBCA held that the contractor was entitled to payment (in
quantum meruit) at its bridge contract rates for work it performed in
accordance with an email from the Contracting Officer directing it to continue
to perform beyond the expiration of the bridge contract, even though the
Contracting Officer's email identified rates lower than those in the
bridge contract. This case reminds me of one of the first things my
mentor told me as a baby government contracts lawyer more
than 45 years ago: the Contracting Officer can direct you to
change the contract work, but he cannot require you to
perform that change at a price he demands.
In
Missouri Higher Education Loan Authority, the CBCA granted the parties' joint motion to dismiss
the appeal as moot
after the Contracting Officer withdrew underlying decision on which it was
based. |
|
August 4 |
In
Size Appeal of C4CJV, LLC,
the SBA's OHA upheld
the Area Office's dismissal of the protest because: (i) on appeal, the appellant
did not re-raise its original allegations involving the ostensible
subcontractor rule and the totality of the circumstances, thus abandoning
them; (ii) the protester used the wrong fiscal years to support its
allegation of affiliation based on an identity of interest due to economic dependence under 13 C.F.R. § 121.103(f)(2); and (iii)
the allegation that the SBA should not
have approved a mentor-protégé agreement is not a proper ground for
a size
protest because the SBA's regulations prohibit any finding of affiliation or control based on such an agreement.
In
TISTA Science & Technology Corp., an unsuccessful post-award protest of
a contract for IT
services, the Court of Federal Claims held that: (i) under the deferential standard
the court must utilize in weighing
challenges to OCI investigations,
the plaintiff did not establish that the Contracting Officer (a) failed to consider certain facts
critical to the OCI issue, (b) relied on spurious factual findings (i.e., facts not
supported by the administrative record), or (c) reached conclusions that were
not supported by her factual findings; and (ii) the plaintiff's claims of disparate treatment in
the evaluations of various sections of competing proposals failed because
those allegations required the court to second guess evaluations left to the
discretion of the agency, and the proposals were not "substantially
indistinguishable" in any of the challenged areas.
In
Veteran Elevated Solutions, LLC, the court remanded the case to
the OHA because its
prior decision did not
adequately explain how the Administrative Judge had reached his conclusion
that an SDV had the requisite control of the challenged SDVOSB. |
|
August 1 |
In
Taino Constr. Group, LLC, which involved claims under a contract to demolish buildings
that was terminated for default, the Court of Federal Claims
held that: (i) it lacked
jurisdiction over a claim for breach of the implied duty of good faith and
fair dealing because the original claim to the Contracting Officer did
not provide any information beyond a request for payment, which does not suffice
as the "clear and unequivocal statement" of the claim required by the
CDA; and (ii) the contractor could not recover for work not accepted by the Government on
the defaulted contract.
|
|
July 31 |
In
CAN Softtech, Inc., the Court of Federal Claims dismissed (as
moot) the plaintiff's challenge to the agency's sole source extension of
a contract during a prior protest because that extension had expired and had been replaced by a
bridge task order for which the plaintiff was not eligible to compete and
which it had not challenged. However, the court also held that, while
the agency's notice to the GAO in the prior
protest that it would take corrective action by re-evaluating
quotations in accordance with the solicitation's stated evaluation
criteria had a rational basis in the record, nevertheless the
case should be remanded to
the agency for further explanation because the current record was not adequate to support the
agency's subsequent decision to go beyond the re-evaluation, cancel the award to the plaintiff, and resolicit.
In
Siemens Government Technologies, Inc., a suit for the recovery of
the plaintiff's bid preparation costs
in its unsuccessful bid for a task order award, which
contained counts alleging both a CDA claim and claims under the court's bid protest
jurisdiction, the court denied the Government's motion to dismiss the various counts.
Specifically, the court held that: (i) FASA did not bar the plaintiff's claims because
the plaintiff sought only to recoup
the money it spent in its failed bid and did not challenge the issuance or proposed
issuance of the task order; and (ii) the plaintiff adequately pled a count for breach
of contract by alleging that the contract at issue gave the
Contracting Officer the discretion to reimburse bid preparation
costs and that he had abused that discretion in failing to do so in
circumstances where the Contracting Officer had allegedly
failed to perform several actions that would have
facilitated an award to plaintiff.
In Brandt Development,
the court dismissed the plaintiff's protest allegations because
the plaintiff was
not prejudiced since it failed to contest the agency's preaward determination
that its bid was "not selectable" (beyond an unsupported allegation of
an "improper technicality") and it waived its right to object to that
preaward classification since it did not timely protest to the agency
(taking nearly two years after award to do so). The court also dismissed
the plaintiff's
other claims of fraud by the awardee and improper contract
administration after award because they were outside the court's bid
protest jurisdiction. |
|
July 29 |
In
Williams Bldg. Co., a decision labeled as nonprecedential, the
Court of Appeals for the Federal Circuit affirmed the
prior CBCA decision, holding that: (i) a bilateral modification covered only
the contractor's two breach of
contract claims and did not concede liability for the contractor's
separate cardinal change claim; and (ii) the Board did not err in granting
the Government's motion for
summary judgment on a claim involving cost elements first provided by
the contractor in
opposition to that motion and not previously identified by the
contractor in response to an earlier Board decision granting
the Government's request that the contractor provide a more definite statement
of its alleged costs during the discovery schedule set by the Board.
Catching up a bit below--
In
AAECON General Contracting, LLC, an unpublished decision, the
Court of Federal Claims held it lacked jurisdiction over a complaint in intervention filed by
the surety in a default termination case because there was no showing
the surety had a
claim for money damages against the Government, and there was no equitable subrogation
because the surety did not establish that it had either
entered into a takeover agreement with the Government or financed the completion
of the defaulted contract.
In BroadReach Healthcare Pty Ltd.,
the court held it lacked jurisdiction due to
mootness over the
Government's alleged wrongful use of a funding mechanism (in this case
a cooperative agreement) because during the pendency of the suit, the
Government had canceled the cooperative agreement and there was no possibility of it being reinstated,
such that the "voluntary-cessation
exception" to the mootness doctrine did not apply. In
The Suddath Cos., et al., the court denied two of the consolidated plaintiffs' requests that a
protest mooted by the termination of the protested contract "be resolved through an expanded published opinion," rather than
"by a
short-form docket entry."
In Delphinus
Eng'g, Inc.--Costs, the GAO recommended the reimbursement of
the protester's
costs attributable to its readily severable allegations concerning
the impropriety of
the best-value trade-off, which were clearly meritorious and
concerning which the agency had unduly delayed taking corrective
action, even though the protester had lost on several other
grounds.
In
Outside the Box, LLC, the appellant requested the CBCA to
dismiss an
appeal not filed within 90-day appeal limit "without prejudice."
However, because the contractor had already missed the
appeal window, a "without prejudice" dismissal would be
inapt, and the Board noted that a "with prejudice" dismissal
would be applicable only to appeals that had reached the
merits. The Board simply dismissed the appeal for lack
of jurisdiction, noting that the appellant still had
time to file suit in the CoFC.
DFARS Case 2024-D025: The proposed rule concerning
certain requirements with the 8(a) program has been
withdrawn because it was made to harmonize the DFARS with
changes to the FAR that may not survive the current
Executive Order 14275 ("Restoring
[or, more aptly, Abandoning] Common Sense to Federal Procurement").
In
American Tattoo Society LLC, the ASBCA dismissed an appeal for failure to prosecute after
the appellant ignored
multiple Board orders to file a Complaint. In
CKY, Inc., an
EAJA application case on remand from the CAFC, the ASBCA dismissed the
application because the applicant ignored
multiple Board orders to submit a required report.
The ASBCA
denied an EAJA application by
Michael M.. Tsontos, S.A. because
the Government's litigation position had a reasonable basis in law and
fact, so that it was substantially
justified. |
|
July 28 |
In Gemini Tech Services, LLC,
an unsuccessful post-award protest
concerning
a solicitation for contract to perform maintenance, supply, and transportation support services for
Fort Knox, the Court of Federal Claims held that: (i) under standard
dictionary definitions of the terms "committed" and "abide by,"
the agency reasonably concluded that statements in the protester's
proposal that it was "committed to" and would "abide by" its proposed
overhead and G&A rates (which were below its historical rates)
unambiguously violated the modified solicitation's prohibition against
capped rates; (ii) where the solicitation specifically permitted it,
the agency was
entitled to waive the results of the preliminary "strict compliance review" after having
conducted it; and (iii) the agency did not treat offerors disparately with regard to
the prohibition on capped rates because the record did not support the
protester's contention that the awardee had proposed such a cap.
In
Platinum Services, Inc., which involved a contract to transport shipments of household goods for military
service members, the court denied the plaintiff's claim that the Government had
breached an alleged contract to pay plaintiff's rates for accessorial services (i.e., additional
moving services beyond standard long-distance transportation) because there had
been no meeting of the minds concerning the price for such services,
but the
court allowed the plaintiff to recover in quantum meruit for the
accessorial services it had actually performed. |
|
July 25 |
In
Assured Consulting Solutions, LLC, an unsuccessful post-award protest involving
a solicitation to establish a Blanket Purchase Agreement
with a qualified small business to provide a range of IT capabilities, including cybersecurity and technical IT
consultation, the Court of Federal Claims held that: (i) during a remand to permit
the Government to recalculate its pricing analysis to
eliminate prior errors in that analysis, the Government was not required to (and,
appropriately did not) permit offerors to update their prices because
that would have allowed a revision of pricing after having seen
a competitor's pricing; (ii) the pricing re-evaluation corrected
the errors in
original analysis but did not change the competitors' relative price
standing (which favored the awardee); and (iii) especially under the relaxed evaluation standards applicable
to a FAR Part 8.4 solicitation and the broad discretion afforded
an agency's evaluators, the protester's challenges to the agency's technical evaluation
amounted to subjective disagreements, and the bases for that evaluation
were rationally supported in the record.
|
|
July 23 |
The SBA's OHA denied the
VSBC Protest of Stripes Global LLC
because: (i) the bulk of its allegations related to size,
which would be decided by the Area Office in a separate size
decision; and (ii) the portion of the protest alleging that
the protested firm was not controlled by an SDV owner because it would rely on its subcontractor's license to perform the contract
involved issues of contract administration, which are not grounds for an
VSBC protest, and in any event, a review of the state statute in question appeared to show
that a state license was not required for the performance of the contract
at issue.
Subsequently, the protester's petition for
reconsideration was
denied. |
|
July 22 |
In
GSI Constr. Corp., a Rule 11
procedure involving a contract for renovation services, the ASBCA held
that where the contract
provided for one price during an initial base period and a higher
set price in the event award was delayed, the contractor was entitled to
compensation (pursuant to the "Suspension of Work" clause) where
the contract had been awarded on time but notice to proceed and site access
had been
unreasonably delayed, even though the contractor failed to prove (a) that the
delayed notice to proceed was a result of a deliberate
misrepresentation by the Government and (b) that it should have received
the full set contract price for a delayed award.
In
Peraton, Inc., another Rule 11 proceeding, this one
concerning a CPFF task order for technical systems engineering support
services for the Navy’s Fleet Systems Engineering Team, the ASBCA held that a contract
provision requiring the Contracting Officer to issue
a contract modification if the Contracting Officer "determines, for any reason, to adjust the task order amount or the estimated
total hours," was intended to cover only situations where the level of
effort increased over the contract's estimated amount and did not entitle the contractor
to obtain its full fixed fee when the contract work turned out to be
below the estimated quantity because (i) the contractor's interpretation clashed
with another contract provision; (ii) the Board's interpretation
was consistent with the normal principles of cost reimbursement contracting: (iii)
the estimated quantity was just that and not a guaranteed minimum;
(iv) the fixed-fee was a maximum, not a guaranteed amount; and (v) the
contractor's negligent estimate breach theory was not
applicable to cost-plus contracts.
In
Peace Ambition Constr. Co., which involved a contract to
provide forklifts for the Government's use at an Air Force
base, the ASBCA denied the Government's motion to dismiss
the appeal for lack
of jurisdiction (based on the Government's contention that the dispute
was one between the contractor and its subcontractor on a
contract entered into after the T for C of the contract that
was the subject of the appeal) because an email accompanying
the contractor's notice of appeal to the Board which
characterized the dispute as one between the contractor and its subcontractor
was
irrelevant to the question of the Board's CDA jurisdiction, which depended
solely on the claim actually
submitted to the Contracting Officer.
In Al Muamroon Trading,
which involved a contract to provide heavy material handling equipment to Saudi
Arabia, the ASBCA held that: (i) it lacked jurisdiction over the contractor's claim alleging
a bad faith T
for C because that claim had not previously been submitted to the Contracting Officer
for a decision; (ii) the contractor was not entitled to any T for C
settlement costs associated with dump trucks that had been
rejected as nonconforming and never corrected; and (iii) the
contractor was not entitled to any recovery for costs
allegedly associated with other equipment because the contractor had
not
delivered any of it, and the contractor's recordkeeping system was inadequate
to establish it had incurred reasonable charges leasing that undelivered equipment that it
reasonably could not avoid (the pro se contractor did not even provide
a copy of the purported lease to the Board). |
|
July 21 |
FAR Case 2025-006: A proposed rule would amend the FAR
"to
ensure agencies procure straws with the
strength and durability of plastic in
accordance with the National Strategy to
End the Use of Paper Straws." Accordingly, a new solicitation provision
would
require each offeror "to represent that it
does not have policies promoting the
use of paper straws or penalizing the
use of plastic straws, that it will not
provide paper straws in performance of
the contract, and that any straws
provided by the offeror in performance
of this contract will have the strength
and durability of plastic straws." Comments are due by September 19. Words fail
me. |
|
July 18 |
In
Advanced Technology Systems Co., a partially successful post-award protest
involving a solicitation to provide Egypt with a
maritime surveillance system via a foreign military sale, the Court of
Federal Claims held that: (i) the protester was correct in
asserting that the definition
of a neutral past performance rating in the solicitation as neither favorable nor
unfavorable applied to the evaluation of an individual offer and did
not require the agency to consider a neutral rating
equal to a satisfactory rating when comparing multiple
offers in the best value trade-off
analysis; (ii) the agency's system for evaluating
the relevance of past performance references and the agency's actual explanation
for its evaluation of those references were both indecipherable;
and (iii) the agency engaged in an unequal evaluation by crediting one offeror with two
satisfactory past performance references when it and its sub both
worked the same contract but not doing so for the plaintiff in the
same situation. The court also held there were rationale bases for four other aspects of
the evaluation with which the protester disagreed. The court found
that national security concerns outweighed the protester's
request for an injunction, and, therefore, the court
remanded the case to the agency to provide clearer
explanations (if it could) to address the areas of concern
highlighted by the court in its decision. |
|
July 17 |
In BrightPoint, LLC, although the protester was unsuccessful on several of its
protest grounds, the GAO found that the agency failed to provide meaningful rebuttals to
the protester's
allegations of various flaws in the Source Selection Evaluation
Board's analyses, including allegations that the agency's positive findings
regarding aspects of the awardee's proposal lacked a rational basis
and that it treated offerors unequally. One would hope the
reason for the agency's failure to respond was that there
was no good response, and not just substandard advocacy. |
|
July 16 |
In Golden IT, LLC,
an unsuccessful post-award protest, after
a detailed analysis of the standards of review under the APA in various
sorts of protests (which I commend to you), the Court of Federal
Claims held that: (i) the Government reasonably
determined that there was a rational basis for the agency's conclusion that
the protester's proposed key personnel lacked required qualifications, and
the agency's determination was adequately explained in the administrative
record; and (ii) in any event, the protester had not demonstrated prejudice because: "This
the Court thus finds, as a matter of unrefuted fact, that [plaintiff's
key personnel's] experience is fatally
lacking, just as the [agency] found (notwithstanding that its stated rationale is not as fulsome
as it could have been). Simply put, [plaintiff] proposes no calculation of [plaintiff's
key personnel's] IT
experience to counter the [agency's] or intervenors’ calculations" that
the
experience was lacking.
|
|
July 15 |
In MVM, Inc. and
Trailboss Enterprises, Inc., a post-award protest, over the plaintiffs' and
the awardee's objections,
the Court of Federal Claims granted the Government's motion to dismiss
the case as moot because, after oral arguments in the underlying
protests, but before the court's decision was issued, the agency (GSA)
notified the court that it had canceled the solicitation (which the
GSA was conducting on behalf of a division of Homeland Security (the Office of Refugee Resettlement
or "ORR")) and
had represented that it had no intention (or ability) to resolicit in
the future in part because ORR had requested the return of its funding.
|
|
July 14 |
The ASBCA dismissed an appeal by
GE Renewables US, LLC (which sought a
declaration that FAR 52.216-4 was enforceable and, therefore, that the
contractor had a right to a price adjustment under the clause) because
the only result of a favorable ruling would be the price adjustment
as opposed to a change in contract performance or the avoidance of costs, so the claim
was
essentially monetary claim, but lacked a statement of a sum certain.
|
|
July 10 |
In Yona-Brixtel, LLC,
a post-award protest, the Court of Federal Claims denied a motion to complete or supplement
the administrative record
with documents concerning contract modifications generated during
contract performance well after contract award because (a) they were not created during the
evaluation process and (b) they are not "core documents" within the meaning of paragraph 22(s) of Appendix C
of the court's Rules, "which should not
be read as referring to 'any . . . performance pending resolution of the bid protest,'
but rather to 'any stay, suspension, or termination of award or performance.'"
|
|
July 9 |
The ASBCA dismissed two cases for failure to prosecute after
the contractor in each one (a) failed to make a required
filing and then (b) failed to respond to multiple Board
orders requiring it to do so. Specifically,
American Tattoo Society LLC failed to file its
Complaint, and
CKY, Inc.
failed to file a required report on remand
from the Federal Circuit concerning its EAJA award, which
the Government had appealed. |
|
July 4 |
In UnlimitComp, LLC,
the CBCA dismissed a direct appeal by a subcontractor for
lack of jurisdiction.
The
2025
Procurement Review is up (through July 1), and I will
continue to update it for the rest of the year. |
|
July 3 |
In NAICS Appeal of ARMADA, Ltd., where
the principal purpose of the contract was to obtain assistance with Personnel Security,
which, according to the SBA's OHA, was best described as involving administrative support services,
the Contracting Officer's choice of NAICS
561110 ("Office Administrative Services") was preferable to any of the appellant's suggestions, including NAICS 561611 ("Investigation and Personal Background Check Services"). |
|
July 2 |
In
HUBZone Appeal of CS Government Solutions, LLC,
the SBA's OHA noted that, in determining whether a
firm seeking HUBZone status has the requisite number of employees, OHA looks beyond payroll records to the totality of the circumstances, and here there was not sufficient work product to indicate that the challenged individuals had actually worked for forty hours in the four weeks preceding the date of review, as required by the regulations at 13 C.F.R. § 126.501(a)
in effect as of the date of this determination.
|
|
June 30 |
In
Starside Security & Investigation, Inc., the Court of Federal
Claims held that the rule that a protester is entitled to
CICA's automatic stay only if the Contracting Officer
receives notice of a GAO protest within 10 days of award can
be equitably tolled and should have been in this case because the
protester did not receive timely notice of award through no fault of
its own and despite its diligent efforts to obtain that information.
In Amatea/Grimberg JV,
a decision labeled as nonprecedential, the Court of Appeals
for the Federal Circuit affirmed the
prior ASBCA decision denying plaintiff's claims on a contract to
design and build a laboratory because a contractor is not entitled to
a presumption of excusable delay when a Contracting Officer issues a
time extension and there was substantial evidence supporting the
Board's determination that the contractor did not establish excusable
delay when it failed to present any expert testimony to rebut
the Government's expert's critical path analysis. The court also found
there were rational bases for
Contracting Officer's exercise of the discretion allowed by contract to
deny the contractor's requests to work outside of normal hours. |
|
June 29 |
In
Culmen Int'l, LLC, after the plaintiff had agreed to a dismissal without prejudice to permit
the Government to undertake corrective action, the Court of
Federal Claims denied
the plaintiff's
motion to keep the protective order in place to make protected materials
available in case the plaintiff had to challenge the results of corrective
action, holding that, on the particular facts of this case, such an
order was not necessary:
Finally, this Court agrees with the government that "Culmen fails to explain . . .
why protected materials obtained during this litigation might be necessary to
substantiate a future challenge, during which the same materials would be available to the
protestor to the extent relevant to the facts alleged." [citation omitted] Given
that concession by the government — and the Court appreciates the government’s candor
— the likelihood of any prejudice to Culmen is minimal. Depending on the contours of
any future protest claims, the government indeed will have to provide the same
materials, anyhow. |
|
June 28 |
In
VSBC Protest of Seventh Dimension LLC, an unsuccessful protest,
the SBA's OHA held that the fact that the challenged firm was not listed in
the VetCert database was irrelevant because it was certified in the SBA's new system (MySBA Certifications) and was listed
as SDVOSB-certified in the new DSBS database
(to which the SBA was transitioning). The OHA also held that the facts
belied the protester's unsupported and speculative
contentions (a) that the challenged firm was affiliated with
another firm or that a conflict of interest existed (neither
of which would be grounds for a status protest such as this
one anyway) and (b) that the challenged firm was unduly
reliant on a subcontractor.
In
NAICS Appeal of
MissionAnalytics, which involved a solicitation to procure
security cameras and related equipment for VA medical centers, the OHA rejected
the Contracting Officer's choice of NAICS-561621 ("Security Systems Services (Except Locksmiths)") because the contract was primarily for manufactured items, and chose
instead NAICS-334220 ("Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing"). |
|
June 27 |
In
Size Appeal of Veteran Elevated Solutions, LLC,
the SBA's OHA held that a firm was other than small for the
procurement because it did
not meet two of the four requirements of the statutory nonmanufacturer
rule (15 U.S.C. § 637(a)(17)(B)): (i) it did not qualify as a small business concern under the numerical size standard for the Standard Industrial Classification Code
expressly assigned to the solicitation
(in this case, 500 employees); and (ii) it would not supply the product of a domestic small business manufacturer
(in this case the items would come from the Korean parent company).
In Size Appeal of Osang, LLC,
the OHA held that although the Area Office had used wrong date
to assess a firm's compliance with the ostensible subcontractor rule, that was harmless error
because the firm fell under the safe harbor provision of 13 C.F.R. § 121.103(h)(3)(iii) by demonstrating that it would comply with the limitations on subcontracting provisions
set forth in 13 C.F.R. § 125.6. |
|
June 26 |
In
SLSCO, Ltd., the Court of Federal Claims was faced with the plaintiff's challenges
to CPARS involving a contract to build a section of
Southern border wall, which was terminated for convenience, and held
that: (i) the plaintiff
lacked standing concerning its allegations as to procedural defects in
the CPARS because, under the binding precedent of the CAFC's decision in
Todd Construction
(in which that plaintiff had alleged several of the same errors as the
current plaintiff did),
the plaintiff failed to show that it was "prejudiced
by a significant error"; (ii) dismissed the plaintiff's breach of contract claim
the because
the CPARS regulation (FAR 42.15) was not incorporated in the contract
and, therefore, the Government had no contractual duty to
the plaintiff to provide a CPAR; and (iii) dismissed the plaintiff's substantive
challenges to the "Marginal" performance ratings it received because
it failed to allege facts that would establish those ratings were
inconsistent with the definition of a Marginal rating in the
regulations or facts that would establish such ratings were inaccurate
or were arbitrary and capricious. Concerning these latter holdings,
the court spent considerable time analyzing what its
standard of review should be when reviewing de novo
a Contracting Officer's decision under the CDA concerning
the propriety of the underlying CPARS, which are reviewed
under an abuse of discretion standard.
I just
discovered that the Court of Appeals for the Federal Circuit
website has changed the addresses for many of its decisions,
which broke many of my links to CAFC decisions. . . .
I have fixed almost all the links, but if you spot one
that is still broken, please let me know about it. |
|
June 25 |
In
Langdon Eng'g and Management, the ASBCA upheld the default termination of
a firm, fixed-price contract to refurbish and deliver
eight bow thruster nozzles used to propel a type of hovercraft because the
contractor failed to deliver any of the contract items despite being
granted two significant time extensions to do so and failed to prove
its failure to deliver was excusable, relying instead on an
unreasonable interpretation of clear specifications and failing to
prove its allegations that the bow thruster nozzles (a) differed materially
from the OEM drawings, (b) contained manufacturing defects, and (c) could not
be refurbished. The contractor also failed to prove its contentions
that: (i) the fixed-price contract was commercially impracticable
to
perform (because an alleged cost overrun alone was not sufficient for
such a finding); (ii) the Government had withheld
superior knowledge (because the solicitation documents clearly stated
the bow thruster nozzles had reached the end of their useful lives, and
the contractor failed to prove that there was any knowledge that the Government
possessed but failed to share with the contractor); and (iii)
the Government breached the implied duty of good faith and fair
dealing in managing the contract or terminating it. The Board also
held that the contractor was not
entitled to recover money for allegedly out-of-scope repairs because
the Contracting Officer did not authorize any such repairs.
In
GSC Constr., Inc., a Rule 11
proceeding concerning a contract to design and renovate an Army barracks,
the ASBCA held that: (i) the contractor's
floor leveling claim was part of a prior request for equitable adjustment that
the contractor had released in a bilateral settlement agreement;
and (ii) the Government had
established by a preponderance of the evidence that the "most probable
cause" of one of two flooding events for which the contractor claimed
compensation was the contractor's defective "cross threading";
but (iii) the Government had failed to establish that a second flooding event was due to defective materials or workmanship
in the contractor's Roto-Rrooter.
In
Pontchartrain Partners, LLC, which also involved, as a preliminary
matter, the interpretation of the scope of a release in a
contract for repairs to the Corpus Christi Ship Channel, the
ASBCA granted the Government partial summary judgment on the contractor's commercial
impracticability claim. Both parties asked the Board to determine the issue of commercial
impracticability based solely on the percentage of the contractor's cost overrun.
The Board held that the
Government's methodology for calculating that percentage (comparing the total alleged cost
of contract performance to the total adjusted contract price) was the
correct one, and the resulting percentage (37%) was not enough, standing alone,
to establish commercial impracticability. |
|
June 24 |
In
Keyes Helium Co., LLC, a decision labeled as nonprecedential,
the Court of Appeals for the Federal Circuit held, inter
alia, that the Court of Federal Claims had erred
in granting the Government's motion to dismiss the plaintiff's breach of contract claim
in a contract for the storage of helium because the plaintiff had plausibly alleged, but
lower court's analysis had failed to consider,
that there was a contractual obligation that the Government had
breached.
|
|
June 23 |
The GAO sustained a protest by
DirectViz Solutions, LLC,
because the agency failed to
adequately consider an impaired objectivity OCI arising from the awardee's work under a previously
awarded task order, which would require the awardee to advise the agency on work
in which it had a competing interest because of its role in the protested award. |
|
June 20 |
In
A4 Constr. Co., which involved the Government's motion to dismiss
appeals of claims involving defaulted firm, fixed-price ("FFP") contracts to
design and construct training facilities for U.S. Special Forces in
Colorado, the ASBCA held that: (i) a bilateral modification was an accord and satisfaction that
clearly covered all the contractor's claims concerning delays from an
earthquake and also released the Government from liability for those
claims; (ii) a bilateral modification addressed (and released) claims for
delays during the month of a flooding event, but the contractor could continue to
pursue its claim for delays from that event in other months; (iii) a bilateral modification
covered a gas piping change and clearly released further claims
concerning that change; and (iv) although a mod exercising options did not
contain release language and was not an accord and satisfaction of
the contractor's claims for increased subcontractor costs due to
the COVID
pandemic, such costs are not recoverable in an FFP contract, but the
contractor's claim for delay days attributable to the pandemic
survived the Government's motion to dismiss.
The Postal Service
has published an entirely new set of
rules of practice for appeals before its board of
contract appeals (the PSBCA). The Postal Service has also
amended the
rules of the Equal Access to Justice Act
in Postal Service proceedings to clarify
the applicable rule for reconsideration
of a decision on a fee application in
PSBCA
proceedings. |
|
June 19 |
In
Red River Science & Technology, LLC, an unsuccessful preaward protest,
which, to me, stands for the proposition that it is not
sufficient to be justifiably upset with how a procurement
was conducted, the Court of Federal Claims held, inter
alia, that: (i) even if another offeror's GAO
protest were untimely, the agency was not precluded from declining to
assert that defense and instead could choose to take
corrective action by opening discussions based on that protester's
allegations in order to improve the procurement; and (ii) even though
the solicitation provided that "tak[ing]
exception" to a rate-capping process "will render the Offeror’s proposal
unacceptable" and that the proposal "will not be further considered for award,"
the agency was not precluded from including such an unacceptable proposal
when it decided to open discussions; and (iii) where the agency
already had
determined the plaintiff's indirect rates were sufficiently supported,
conducting discussions only with other offerors whose
proposals needed further support did not amount to unequal
discussions. |
|
June 18 |
In
Walsh Turner Joint Venture II, although the ASBCA denied the Government's motion to dismiss
the appeal for lack of jurisdiction
due to the omission of the "II" in the appellant's name
since that was a mere
misnomer that did not prejudice the Government, the Board granted the Government's
motion to dismiss the appeal for failure to state a claim because the issuance of
an RFP
for the inclusion of a COVID-related clause in the contract and then its rescission
before the contractor responded to it was not a constructive change
since that clause was never incorporated in the contract. |
|
June 17 |
In King
& George, LLC, which involved the interpretation of a firm,
fixed-price 8(a) contract for facilities operations and maintenance
services for nine federal buildings in Florida with performance-based specs and
also minimum required staffing levels, the CBCA held that
the plain meaning of the contract's
"Application of Criteria for Deductions (Non-Performance)" clause did not permit the Government to make unilateral deductions simply for staffing shortfalls,
even though the contractor seemingly had initially
acquiesced in that interpretation before finally refusing to
sign a bilateral mod memorializing those deductions.
One (actually, the only) good thing about the current
administration for me is a selfish one because my job of
keeping up with new procurement regulations will be
significantly easier for the next three and a half years--
FAR Case 2020-010: The proposed rule entitled "Small Business
Innovation Research and Technology
Transfer" has been withdrawn and the FAR Case is closed.
FAR
Case 2023-011: The proposed rule entitled "Small Business
Participation on Certain Multiple-
Award Contracts" has been withdrawn and the FAR Case is closed.
FAR Case
2024-007: The proposed rule entitled "Protests of Orders
Under Certain Multiple-Award Contracts" has been
withdrawn and the FAR Case is closed. |
|
June 16 |
In
Chizoma Onyems, the Court of Appeals for the Federal Circuit held
it lacked jurisdiction over a suit challenging a prior ASBCA decision
because it was filed in his own name by the non-attorney owner of
the sole proprietorship involved in the ASBCA case, which
meant that, pursuant to the CDA, he was not the "contractor" that was the
litigant before the Board and also had not retained counsel to appear
before the court as required by the court's rules. |
|
June 13 |
In
GSI Pacific, Inc., which involved
contract
interpretation in a contract to remediate (remove munitions and
explosives from) the Area M Munitions Response
Site in Hawaii, the ASBCA held, inter alia, that: (i) a statement in
the contract that "work is to be performed in
accordance with" a "Decision Document" was sufficient to incorporate that document
into the contract; (ii) a note in a section of the contract entitled "Background and
History" that a Feasibility Study had been conducted in the past
was
insufficient to incorporate that document into the contract; and (iii) alleged actions
by adjoining landowners limiting the contractor's access to the site
were not
compensable because contract did not shift the risk of delays caused by
third parties to the Government, which had obtained the necessary right-of-way forms from the landowners.
In KL3, LLC,
an unsuccessful protest of an agency's set-aside of two
contracts for the 8(a) program, the Court of Federal Claims
began its opinion with a lecture on the importance of
alleging and proving prejudice in any protest, the failure
of which doomed this one:
In order to successfully protest a government procurement, a protestor must demonstrate
that the government agency committed an error in conducting the procurement at issue and that
the error prejudiced the protestor. Although both of these requirements must be met, protestors
regularly focus (sometimes exclusively) their protest pleadings and briefing on the former
requirement, ignoring the equally important prejudice requirement. Many times, this strategy
works as the prejudice created by an agency’s error is readily apparent. Shinseki v. Sanders, 556
U.S. 396, 410 (2009) (“Often the circumstances of the case will make clear [that the error] . . .
was harmful and nothing further need be said.”). But in instances in which the alleged prejudice
caused by the error is not obvious, failure to allege in the complaint and then prove prejudice on
the merits is fatal to a protestor’s case. As will be explained in detail below, prejudice in the
instant protest falls into this non-obvious category and is fatal to the protestor’s case.
Despite the fatal ending to which failure to plead and prove prejudice in a bid protest
leads, this is by far not the first time a protestor has offered only conclusory allegations and
statements regarding prejudice in both its complaint and briefing on its motion for judgment on
the administrative record. The Court is not sure if this failure to plead and prove how an error is
harmful to the protestor is the result of protestors believing the errors they allege are so
obviously prejudicial (even if they are not) that there is no need to allege or prove them or
whether protestors simply think that prejudice is some technicality that a judge will fill in for
them if an error has been proved. But filling in allegations and proof of a necessary component
of a bid protest is neither a judge’s job nor even an appropriate task for a judge in our adversarial
system of justice. Simply put, a protestor bears the burden of plausibly alleging in its complaint
that an agency not only committed an error in the procurement process but that this error caused
the protestor harm. Then, on the merits, it must prove both of these allegations. |
|
June 12 |
In
Gideon Contracting, LLC, which involved a task
order to repair a dam, the ASBCA held that the order contemplated that suspensions of work would be
required to allow the release of water when lake elevations exceeded
a certain level, and, therefore, under the "Suspension of Work" clause,
the contractor could
recover only for the portions of the suspension periods where the Government
inexplicably continued releasing water after the lake had reached the required
level and, in another case, where the Government (again inexplicably)
did not permit the contractor to return to work for five days after
the required level had been reached. The Board also held that the Government waived its claim for
liquidated damages for late completion of the work by waiting more
than a year to assert that claim as a punitive response to the
contractor's claim. |
|
June 11 |
In
U.S. Aeroteam, Inc., the ASBCA upheld the default termination for failure to make progress of a contract
to furnish trailers used to transport aircraft
engines because the contractor demanded payment for its disputed claims as a
condition of continuing work, violating its duty to proceed pursuant to the "Disputes" clause. |
|
June 10 |
In
Chromalloy Component Services, Inc., which involved a contract to
refurbish a major module of the F108 engine
used on KC-135 aircraft, the ASBCA denied the incumbent contractor's claim for extra costs
associated with increased prices for turbine fan blades and the
Government's decision to change from contractor-acquired
blades to GFM because: (i) the contractor
did not properly allege, much less prove, that the Government possessed
superior knowledge concerning the pricing and availability of the blades or
that the contractor relied on any defective information from the
Government in pricing its bid, and any alleged promise by the
Contracting Officer concerning the issue came only after the contractor had submitted its bid;
(ii) the contractor's claim for the costs of blades it ordered before
the
Government switched to providing the blades as GFM would be denied because
the contract
explicitly allowed the Government do do so; (iii) the contractor did not establish
that a
prior course of dealing existed that precluded a large order being
placed
near the end of the base year rather than during the first option year
when it would have been performed and priced at higher option year rates,
and, at any rate, the contractor had signed bilateral modifications
memorializing the orders; and (iv) none of the above claims amounted to
a
constructive change. |
|
June 9 |
In
Size Appeal of Acacia 7, which has a lengthy procedural history, the SBA's OHA held that
a mentor-protégé joint venture agreement was deficient in terms of
control by the protégé because it created two entities in addition to
the small business Responsible Manager contemplated by the
regulations: a Program Manager with (almost) equal authority to the
Responsible Manager and an Executive Committee with oversight over
both the Responsible Manager and the Program Manage
and comprised of one member each of the mentor and protégé so that the
mentor had negative control.
|
|
June 6 |
In
Telestro Group, LLC, an unpublished decision on preliminary issues
in the case discussed in the June 3 entry below, the Court
of Federal Claims denied all the plaintiff's motions to supplement and complete
the administrative record because, inter alia: (i) declarations designed to
support allegations that the agency's conduct of the procurement was arbitrary
and capricious were not necessary where the court lacked jurisdiction in
this instance to review that conduct under an arbitrary and
capricious standard; (ii) a declarant's
understanding of the meaning of the 10 U.S.C. § 4022(d)(1)(A), which
requires that "at least one nontraditional defense contractor or nonprofit research institution participat[e]
to a significant extent" in the project [emphasis
added] was not necessary for effective judicial review; and (iii)
declarations and evidence related to the agency's decision to amend
the solicitation to lower the evaluation standards were unnecessary where
the plaintiff had waived that claim and has not shown prejudice.
In Size Appeal of Solvet Services, LLC,
the SBA's OHA held that the Area Office had erred in dismissing
a size protest as insufficiently
specific despite the fact that it provided specific evidence of
the protested firm's receipts, which exceeded those allowable by the
applicable size standard.
In
Size Appeal of Bowhead Enterprise, Science, and Technology,
the OHA noted that the recent revision to 13 C.F.R. §
121.103(h)(3)(iii) establishes that when a small business
together with all its small business subcontractors will
comply with the limitations on subcontracting provisions,
that is sufficient to avoid application of the ostensible
subcontractor rule:
To circle back to the revised rule, the standard is now that of a brightline rule, where in respect to a services, specialty trade construction, or supply contract:"SBA will find that a small business prime contractor is performing the primary and vital requirements of the contract or order, and is not unduly reliant on one or more subcontractors that are not small businesses, where the prime contractor can demonstrate that it, together with any subcontractors that qualify as small businesses, will meet the limitations on subcontracting provisions set forth in § 125.6 of this chapter.” 13 C.F.R. § 121.103(h)(3)(iii), (emphasis supplied). SBA itself also noted during the issuance of the rule that it “believe[d] that meeting the applicable limitation on subcontracting requirement is sufficient to overcome any claim of the existence of an ostensible subcontractor." 88 Fed. Reg. 26,164, 26,166 (Apr. 27, 2023), (emphasis supplied). |
|
June 5 |
In
TransOx, Inc., a proceeding conducted in accordance with CBCA Rule 52
(its small claims procedure), the CBCA was faced with appeal involving
the interpretation of a very poorly drafted contract line item providing for a "[o]ne time delivery fee for any purchased items . . .
each, per delivery, per patient" in a contract to provide home oxygen services to VA medical center outpatients.
The Board held, inter alia, that: (i) in
interpreting that provision,
the Board would not look for assistance to language in the solicitation that was not
incorporated into the contract; (ii) the VA's interpretation of the provision as
providing only for a one-time delivery fee no matter how many deliveries
were made would ignore all language in the line item after the words
"one time delivery fee"; (iii) although the contractor's
competing interpretation of that line
item was problematic, it was within the zone of reasonableness, and
since the VA
had not offered a reasonable counter-interpretation, the contractor's
interpretation would be adopted; and (iv) even if the language were ambiguous, it
would be interpreted against the VA as its drafter. |
|
June 4 |
In
Professional Analysis, Inc., an unsuccessful post-award protest
which involved interpreting a solicitation, the Court of
Federal Claims held that: (i) where the solicitation
expressly provided that minimum proposal requirements were identified
by the word "shall," a proposal instruction merely requesting a
certification was not a mandatory requirement; (ii) there was a rational basis for
the agency's conclusion that the awardee's proposal contained only assumptions
and reservations (which it adequately explained) but no
exceptions to any material solicitation terms; (iii) there was nothing improper
about a statement in
the awardee's proposal amounting to a reservation of the right to seek a price
adjustment, where the awardee did not state it had a right to receive such
an adjustment; and (iv) by omitting any argument concerning alleged prejudice in
its motion for judgment on the administrative record, the plaintiff
waived all such arguments, and, therefore, had not established
prejudice. |
|
June 3 |
In
Telesto Group, LLC an unsuccessful
protest of the prototype
phase of the Enterprise Business System-Convergence Program initiated under the Army’s “other transaction”
(OT) authority
pursuant to 10 U.S.C. § 4022 to develop a solution to consolidate five Army business systems and improve
their efficiency, the Court of Federal Claims held that this OT program became one in connection with a proposed
procurement (over which the court has Tucker Act jurisdiction pursuant
to 1491(b)(1)) when the Army completed the prototyping process
and determined both that the process was successful and that the Army would acquire the successful
prototype through a follow-on production contract. Having established
jurisdiction, the court: (i) denied the protester's claim that
the Army had violated 10 U.S.C. § 4022(d)(1)(A) (which allows a DoD component to use an OT when
"[t]here is at least one
nontraditional defense contractor [NDC] or nonprofit research institution participating to a significant
extent in the prototype project" [emphasis added]) because there was a
rational basis for the agency's conclusion that, in the aggregate,
numerous of the awardee's NDC subs would contribute significantly to
the project; and (ii) denied the plaintiff's challenge to agency's
amendment lowering the
standards in an evaluation criteria for one stage of the OT because
(a) the principles of Blue & Gold Fleet should extend to OTs,
and the plaintiff failed to challenge the amendments when they occurred,
and (b) the
amendments lowered the standards for both competitors and, thus, treated
the competitors equally, which meant the plaintiff could not show prejudice. |
|
June 2 |
In Comp Environmental, Inc.,
which involved a fixed-price contract to rehabilitate a parking area,
the CBCA denied the Government's motion to dismiss
the appeal for failure to state a claim, holding that the appellant
had plausibly alleged that
extra work to raise the elevation of a levee could not be discerned by a
reasonable bidder from the contract documents, which also required
the Government to obtain necessary permits so that the "Permits and
Responsibilities" clause did not shift responsibility for obtaining
permits or liability for permit conditions
to the contractor.
In
UnitedHealthcare Insurance Co., which involved a contractor's
(insurer's) dispute over money it had to pay out for an
insurance claim, the CBCA granted the agency's motion for summary judgment concerning
the contractor's
breach claim because the contractor failed to establish causation, i.e.,
what would have happened in the "non-breach world" if the alleged breach
had not occurred.
In 5
Stones Intelligence, Inc., the CBCA granted a
joint motion to dismiss an appeal because the stipulated facts established
that the
contractor (a) never submitted a certified claim, (b) made its
submission to someone other than the Contracting Officer, and (c) initiated
its appeal based on that other individual's response. |
|
May 29 |
In
Kropp Holdings, Inc., a successful post-award protest, the Court of Federal
Claims was faced with a situation where (over a significant
period of time during corrective actions) the agency repeatedly gave the awardee unwarranted chances to correct
deficiencies in its proposal. The court held, inter alia, that: (i) the agency
improperly accepted the awardee's
untimely proposal; (ii) the agency conducted misleading discussions with the protester and treated
the competing proposals unequally; and (iii) the agency
irrationally attributed the awardee's corporate experience
and past performance to a completely walled-off division
created by the awardee to compete for the contract and
relied on those flawed attributions in awarding the contract. |
|
May 28 |
The Court of Federal Claims held that,
as a debarred individual,
Dee Monbo,
lacked Article III and statutory standing to protest an agency's
refusal to consider her offer in response to a solicitation. |
|
May 27 |
In D-STAR Eng'g,
Corp.,
which involved a T for C of a CPFF R&D contract to build a fuel-to-power
generation system for an unmanned vehicle, the ASBCA held that the DCMA: (i) had provided specific support for
its finding that certain contractor-incurred costs after a partial stop
work order were not reasonable, and the contractor had failed to rebut that
evidence with anything more than generalizations; (ii) had correctly found
that certain material costs included in the contractor's engineering
overhead pool were unallowable because the contractor had been compensated
for them as direct costs on a prior contract; (iii) had
established that the contractor had
improperly included certain long-range
planning costs in its G&A expenses to calculate its G&A rate for one calendar year
because the costs were (a) unsupported or (b) included burden on top of G&A expenses;
(iv) had properly documented its reasons for determining that some of
the contractor's proposed termination settlement expenses were unreasonable,
and the contractor had failed to provide evidence in opposition; and (v) had
properly determined that the contractor's
claim for various settlement expenses should be reduced by the amount already credited by
the Government in its debt demand claim and by the costs of preparing the
contractor's certified CDA claim. The Board also held that there was
no evidence to support the contractor's claim of a verbal
contract for clean-up work. Finally, the Board that the Government
had improperly calculated the fee
due to the contractor on the terminated contract by misinterpreting the
phrase "the percentage of completion of work contemplated
under the contract" in FAR § 52.249-6(h)(4)(i). |
|
May 23 |
In
Sheffield Korte Joint Venture, a decision labeled as
nonprecedential, the Court of Appeals for the Federal
Circuit affirmed the
prior ASBCA decision, holding that a specification for a stormwater management
system was a performance spec, so the Spearin implied warranty of
a design
specification was not applicable. |
|
May 22 |
The Court of
Federal Claims dismissed a protest by American
Tech Solutions, LLC for failure to prosecute in a
decision that will not add anything to well-established law
but is a cautionary tale of the importance of following
procedural rules:
After filing its complaint, American Tech moved for entry of a protective order, which the
court granted. American Tech struggled to comply with the protective order, publicly filing documents that contained protected material several times. The court repeatedly warned American Tech
of its violations. Then, after further violations, the court issued a show-cause order directing American Tech to comply with the court’s rules and requiring American Tech’s counsel to show cause
for why he should not be sanctioned for earlier failures to comply.
While the show-cause order was pending, American Tech failed—three times—to timely
request an extension of time to file its motion for judgment on the administrative record. When it
belatedly requested those extensions, American Tech did not seek the defendants’ positions, in
violation of this court’s rules. American Tech’s counsel attributed his failures to file to his having
to address the problems with complying with the protective order and to computer failures. The
court ordered American Tech to file its motion for judgment on the administrative record by March
13, 2025, and stated that no further extensions of the deadline would be granted. American Tech
did not file its motion or request an extension of time to file the motion by the deadline. Thus, the
court sua sponte dismissed American Tech’s complaint without prejudice for failure to prosecute
under rule 41(b) of the Rules of the Court of Federal Claims.
Mercifully, the dismissal was without prejudice.
|
|
May 21 |
In
Top Level Constr. Co., the CBCA first decided that the contractor
had submitted four separate claims to the Contracting
Officer (three under
one PO and one
under a second) because they were based on different facts and theories of
recovery, and that only one of them had been addressed by
the Contracting Officer in his decision. The Board dismissed
the appeal of that claim as untimely filed. However, the
Board retained jurisdiction over the appeals of the other
three claims on the theory that they were deemed denied by
the Contracting Officer's inaction on them. |
|
May 20 |
In
Lessors of Abchakan Village, Logar
Province, Afghanistan, which concerned an
agency's alleged failure to pay property owners for use of property in
Afghanistan, the Court of Appeals for the Federal Circuit vacated the
prior ASBCA decision (granting
the agency a summary judgment) because the lessor had raised material issues of fact concerning ownership
of the property, and the Board had improperly ignored evidence supporting the
lessor's position and had erroneously concluded that the act of
state doctrine applied in this case. |
|
May 19 |
In AETC II Privatized Housing, LLC
et al., the Court of Federal Claims (noting it was
addressing discovery issues that have not yet been
consistently decided by the courts) held that, under CoFC
Rule 36, requests for admission concerning the meaning of
the contractual documents at issue do not involve pure
questions of law (and, therefore are appropriate) so long as
they connect the facts and circumstances of the case to
those documents. The same holds true for requests for
admission concerning the application of a federal statute to
the facts of the case. Finally, the court held that the fact
that a request for admission may relate to the "ultimate issue" of the case is not
a valid ground for refusing to respond.
In
Martin Bros. Constr., which involves CDA claims for breach of contract,
the court denied the Government's motion for
an extension of time to file its Answer (even with the plaintiff's consent)
because the court already had granted the Government four extensions totaling 242
days and had warned it would not grant another extension. The
Government's failure to adequately staff the case due to the demands of
separate
tariff-related cases was not an adequate excuse, especially where
Congress had allocated the appropriate personnel funds: "The government here has not established that the increase in
[its counsel's] workload and the
time-sensitive demands of other litigation are the result of anything more than the Department of
Justice’s failure to respond to a predictable increase in case volume and a decision to reduce or not
replace departing staff." |
|
May 16 |
In Broadway Gold, LLC,
the Court of Federal Claims denied the Government's motion to dismiss
a count in the Complaint seeking a declaratory judgment
because such a judgment would provide an early resolution of
the issue whether the Government could exercise an option in a lease to
purchase a property in light of the Government's alleged breach, and monetary damages
would be insufficient to address the harm the plaintiff alleged. The
court also denied the
Government's motion to dismiss counts in the Complaint plausibly alleging
a breach of contract because that alleged wrongdoing should be weighed
in determining whether the Government's affirmative defenses of equitable
conversion or merger bar the plaintiff’s claims. |
|
May 15 |
In
ECC Int'l Constructors, LLC,
one among a series of decisions involving a contract to design and construct a 20-building
military compound in Afghanistan (this one involving claims for delay and
remission of liquidated damages), the ASBCA held that: (i)
the contractor's expert's delay analysis was not
credible because he did not create a "fragnet" (fragmentary network)
to analyze the effect of one significant source of delay on the project;
(ii) the Government's
admissions against interest that its 100% design review delayed
the project could reasonably be interpreted to put that delay on the critical path,
but the contractor's concurrent delay exceeded the number of days of delay
caused by the Government, so the contractor was not entitled to any compensable delay;
and (iii) despite failing to prove compensable delay, the contractor
was entitled to
recoup liquidated damages assessed by the Government for delays in the approval
the 100% design submission because the contractor rightfully
interpreted the contract to require the 100% design submittal only to
incorporate the contractor's responses to the comments the Government had
made in response to the 95% design submittal. |
|
May 14 |
In
US Pan American Solutions, LLC, the ASBCA dismissed an appeal (that appellant conceded was filed one day late) of
a default termination notice, holding that the following language in the
notice was satisfactory: "Your company has the right to appeal this decision under the
Disputes clause at Federal Acquisition Regulation (FAR) 52.233-1."
In
Pinewood Inc. fka PNI Incorporation, a Rule 11 proceeding
concerning a fixed price contract for repair of
a contingency fuel delivery system at an air base in Korea,
the ASBCA upheld a default termination
for failure to make progress because the contractor had completed less than
4% of the work with more than half the time allotted for the job
having passed, and the contractor failed to present evidence that any of
its claimed excusable delays affected the critical path. The Board did
note that the contractor
was entitled to payment for demolition work it had performed prior to
the termination. |
|
May 13 |
In
Size Appeal of Tribologik Corp.,
the SBA's OHA affirmed the
dismissal of a size protest because it was initially filed five days
late (and the Contracting Officer's alleged advice could not override
the controlling regulation concerning timeliness), and it was insufficiently specific (alleging
only that the protested firm was related to another unnamed entity and
failing to provide evidence that the combined receipts of the firms
would exceed the applicable size standard).
|
|
May 12 |
In Matter of The CTS Group LLC,
relying on the holding in
Ultima Servs. Corp. v. U.S. Dep't of Agric., et al., 683 F. Supp. 3d 745 (E.D. Tenn. 2023),
which held that the rebuttable presumption at 13 C.F.R. § 124.103(b)
(that individuals who are members of certain minority groups
are presumed to be socially disadvantaged for purposes of the 8(a) program)
violates due process, the SBA's OHA upheld a firm's termination from
the program because,
in multiple submissions, rather than showing "chronic" social disadvantage, the firm provided only two examples of alleged discrimination towards
its owner, neither of which was clearly attributable to bias rather than legitimate, non-discriminatory reasons,
and the SBA was not required to provide the firm with additional opportunities to revise its submission. |
|
May 11 |
Federal Acquisition
Circular (FAC)
2025-04 has been published and includes the following item:
FAR Case 2020-009: Effective June 11, a final rule
amends the FAR to to revise the list of
domestically nonavailable articles at
FAR 25.104(a) by removing the following items from the list: acetylene, black; agar, bulk; anise;
asbestos, amosite, chrysotile, and
crocidolite; bauxite; beef, corned,
canned; beef extract; bephenium
hydroxynaphthoate; cadmium, ores and
flue dust; calcium cyanamide; castor
beans and castor oil; chalk, English;
chicle; cinchona bark; cobalt, in
cathodes, rondelles, or other primary
ore and metal forms; colchicine
alkaloid, raw; copra; crane rail (85-
pound per foot); cryolite, natural;
dammar gum; diamonds, industrial,
stones and abrasives; emetine, bulk;
ergot, crude; erythrityl tetranitrate; goat
hair canvas; goat and kidskins; graphite,
natural, crystalline, crucible grade; hand
file sets (Swiss pattern); handsewing
needles; ipecac, root; iodine, crude;
kaurigum; lac; lavender oil; leather,
sheepskin, hair type; manganese;
menthol, natural bulk; mica;
microprocessor chips (brought onto a
Government construction site as
separate units for incorporation into
building systems during construction or
repair and alteration of real property);
nickel, primary, in ingots, pigs, shots,
cathodes, or similar forms; nickel oxide
and nickel salts; nux vomica, crude;
oiticica oil; olive oil; olives (green),
pitted or unpitted, or stuffed, in bulk;
opium, crude; petroleum, crude oil,
unfinished oils, and finished products;
pine needle oil; platinum and related
group metals, refined, as sponge,
powder, ingots, or cast bars; pyrethrum
flowers; quebracho; quinidine; quinine;
rabbit fur felt; radium salts, source and
special nuclear materials; rosettes;
santonin, crude; secretin; shellac;
sugars, raw; talc, block, steatite;
tantalum; thread, metallic (gold); thyme
oil; triprolidine hydrochloride;
tungsten; wax, carnauba; wire glass;
woods, logs, veneer, and lumber of the
following species: Alaskan yellow
cedar, angelique, balsa, ekki, greenheart,
lignum vitae, mahogany, and teak; yarn,
50 Denier rayon; and yeast, active dry
and instant active dry. |
|
May 9 |
The GAO sustained a protest by Owl International Inc., d/b/a as Global, a 1st Flagship Co.
because the agency ignored the solicitation requirement to assess professional
compensation plans in accordance with FAR § 52.222-46. |
|
May 8 |
In MVL USA, Inc.,
et al., the Court of Federal Claims denied the
consolidated protesters' motion for a permanent injunction because
the Government's corrective action (in response to a
prior successful protest) followed the court's recommendation and
eliminated the requirement for a project labor agreement in all
the protested solicitations either by deleting the requirement or
by canceling the procurement, rendering the protests moot.
The protesters had essentially been asking the court to
enjoin the procuring agencies from making the same mistake
again on future procurements. |
|
May 7 |
In
Gemini Tech Services, LLC, a successful post-award protest of a task order award for logistics
support services, the Court of Federal Claims held that by establishing
the competitive range and opening discussions with all six offerors
absent any analysis in the record of how or why the
offerors were considered "the most highly rated" against the technical
acceptability factor, the agency violated FAR § 15.306(c)(1). |
|
May 6 |
In Stormwater Plans, LLC dba SWP Contracting & Paving,
which involved the appeal of the Government's affirmative
claim for liquidated damages in a contract for construction of an aircraft
hangar, the ASBCA denied the Government's motions to dismiss two of
the contractor's claims for their alleged failure to have previously been
presented to the Contracting Officer for a decision: (i) a claim for breach of
the implied duty
of good faith and fair dealing because it was based on the same allegations
of operative facts previously presented to the Contracting Officer
(specifically, numerous allegations that the agency's actions or inactions
interfered with the contractor's performance—including various design
issues, site conditions, and delays caused by the agency's failure to
timely review and approve the contractor's proposals); and (ii) a claim for
the
impact of defects in the Government's drawings because those allegations
would not require the Board
to consider evidence different from and unrelated to those presented in
the contractor's previous claim to the Contracting Officer.
The Board, however,
granted the Government's motion to dismiss a claim for the return of liquidated damages
for work pertaining to lightweight concrete because that claim had not
previously been presented to the Contracting Officer, even though the it
was an affirmative defense to the Government's liquidated
damages claim,
because it would involve an adjustment in contract terms and, therefore, must be
first presented as an affirmative claim to the Contracting Officer
under the CAFC's precedent in
M. Maropakis Carpentry, Inc.
In Logistics and Rental Car SARL,
the ASBCA granted the Government's motion to
dismiss an appeal as tardy because the appellant did not dispute the date it
had received the emailed decision from the Contracting Officer, and
the appellant's President's
illness and emergency operation did not excuse an appeal that was late
(by more than 400 days). |
|
May 4 |
In
Size Appeal of Kupono Government Services, LLC,
the SBA's OHA held that the Area Office was correct in
finding no violation of the ostensible subcontractor rule
because: (i) the primary
and vital contract requirements in a solicitation for management and operations of the DOE's National Training Center in Albuquerque, New Mexico
(issued prior to the "safe harbor" rule at 13 C.F.R. § 121.103(h)(3)(iii) became effective (which
would only have required the prime to agree to the "Limitations on
Subcontracting" provision)), were management services and
oversight duties rather than "training" as alleged by the appellant:
(ii) the challenged firm
would self-perform and control most of the contract's managerial
positions, most of the labor hours under the most
important of the three contract CLINs, and all of the work under the
other two; and (iii) none of the four requirements for a finding of
undue reliance on a subcontractor (the prime had two subs) was
satisfied. The OHA noted it was irrelevant that the agency had not
discussed the primary and vital requirements in detail in a
second size determination issued after corrective action
because the solicitation had not changed since the original
size determination, which had discussed those requirements.
|
|
May 2 |
In DevTech Systems, Inc.,
an unsuccessful, scattershot, post-award protest in a solicitation for a task order for technical
professional staffing,
the Court of Federal Claims held, inter alia, that
the agency
reasonably found that the awardee's proposal complied with the material
requirements of the solicitation in all the areas challenged by the plaintiff,
e.g.: (i) the awardee's reference to another section of
its proposal in
describing its approach to the Optional Tasks complied with the solicitation's
instructions to be concise and to avoid repetition; (ii) the agency's
evaluation of the awardee's pricing had a rational basis, especially where,
pursuant to Blue & Gold Fleet,
the plaintiff had waived its objection involving any patent
inconsistency between the
quantity of Optional Tasks listed in the Tasks Section versus the Payment Schedule
of the solicitation; (iii) the awardee's proposal did not reserve a right to re-price
the Optional Tasks at a later date, but merely recognized
that they would be better defined after contract award;
(iv) there was a rational basis for the agency's
determination that the awardee's proposal concerning one task was a
weakness, rather than a more serious deficiency, especially where the
task in question was an immaterial requirement, and the plaintiff was not
prejudiced by the agency's evaluation because the plaintiff's proposal
contained the same weakness as the awardee's; (v) similarly, the agency
rationally concluded that awardee's proposed project manager met
the solicitation's qualification requirements, and, in any event,
the plaintiff was not
prejudiced because its own proposed project manager had the same type
qualifications; and (vi) the awardee appropriately mapped its proposed
positions to categories in its underlying MAS price list,
and in any event, the plaintiff was not prejudiced because
its own proposal contained the same infirmity as it alleged
in the plaintiff's.
The court also held that the plaintiff could not
establish prejudice from the agency's alleged failure to
evaluate professional compensation in connection with
FAR § 52.222-46, and in any event, the plaintiff had waived that objection
under Blue & Gold Fleet because the omission of that
provision in the solicitation was a patent error. The court
also held that the agency had not been required to conduct
discussions and did not do so; and, even if the agency had
undertaken discussions, it would not have been obligated to
inform the plaintiff that its price was too high. |
|
May 1 |
In Zolon PCS II, LLC,
an unsuccessful protest of corrective action, the Court of
Federal Claims held that, during corrective action,
the agency's amendment of a solicitation to incorporate a recent revision of FAR § 52.204-7
(which eliminates the requirement that offerors have a continuous
SAM registration from the time of offer through award) was authorized by FAR 1.108(d)(2)
because the agency intended to make new awards after the amendment,
and the amendment was not "impermissibly retroactive."
The protester had won
an earlier protest against the agency's first try, which
was to incorporate a deviation of the prior FAR rule in
order to permit offerors that otherwise would have been
disqualified by a lapse in their registrations to continue
to compete.
In
22nd Technologies, Inc., a successful post-award protest against
the evaluation of
the plaintiff's proposal, the court held that: (i) in concluding that
the plaintiff had failed address one
item under the Management evaluation factor, the agency's evaluators "simply .
. . missed" the proposal's clear and properly placed discussion of that issue;
and (ii) in evaluating the Staffing factor, the agency
ascribed a weakness to the plaintiff's proposal language that was similar
to that of other offerors whose proposals the agency had not
faulted. |
|
April 30 |
In
Boyd Atlanta Rhodes, LLC, the CBCA denied the Government's motion to dismiss
a lessor's claim for damages resulting from
alleged government changes and/or breaches that delayed the date when rents would
commence under a building lease, including the lessor's assertion of a
"cardinal delay." The Board rejected the agency’s interpretation of
the lease
as giving the agency
an unrestricted ability to make pre-occupancy changes without any cost.
|
|
April 29 |
In
Red Cedar Harmonia, LLC, et al., which involved
unsuccessful consolidated protests concerning a solicitation under FAR § 8.405-3 seeking quotations for a single-award blanket purchase agreement ("BPA")
for on-premises and cloud infrastructure support services,
the Court of Federal Claims (a) rejected the protesters'
allegations that the Past Performance evaluators should have treated one
of the awardee's references (an IDIQ contract) as a series of delivery orders
since only some orders were placed within the solicitation's five-year
recency window and (b) held that the protesters lacked standing to assert that only the
part of the contract within the recency window should be counted
because the protesters, themselves, submitted contracts only partially
within the window and the agency had evaluated those contracts as a whole.
The court also held that
although the protesters were correct that, in conducting the price evaluation,
it might have been wise for the agency to have done more than
simply recognize that the awardee's significantly lower price was due to its
stratagem of mapping less qualified workers to BPA roles, the agency
was not required to do so either by FAR § 8.405-3(b)(2)(vi) or
the solicitation because neither of them required a price realism analysis.
|
|
April 28 |
In
The Minesen Co., the ASBCA
dismissed an appeal with prejudice for failure to prosecute because
the appellant failed to respond to several orders from the Board after its
counsel was permitted to withdraw.
|
|
April 27 |
In
HD, Inc., the ASBCA determined the appropriate method for
calculating price adjustments for increased wages in covered
labor positions in the option years of a contract subject to
the Service Contract Act (SCA), which included the predecessor
contractor's collective bargaining agreement (CBA).
Specifically, the ASBCA held that the price adjustment for option year one
was the difference between the rates
in the revised CBA covering that option year and the the base
year's CBA rates (based on the predecessor contractor's CBA), and for option year two,
it was the difference between the CBA for
option year two and the CBA for option year one. The Board
specifically rejected the contractor's interpretation that
the adjustment should be the difference between the appropriate CBA and
the prices the contractor had originally proposed for the option
years, which were based on the SCA wage rate determination for the
locality, which also had been included in the solicitation (but only
for the purpose of determining wage rates for positions not covered by the
CBA) because the contractor's interpretation would lead to inconsistent and
illogical results, would undermine the purpose of the SCA,
and conflicted with (a) other
provisions of the solicitation, (b) the Price Adjustment
clause (FAR § 52.222-43(b)), and (c) the
Government's responses to bidders' questions during the solicitation process. |
|
April 26 |
In
Conrad Shipyard, LLC, the ASBCA held that: (i) the Government’s solicitation
(expressly promising to pay up to a $1,000,000 stipend to all offerors who competed in the
solicitation with an acceptable proposal and pricing that was to remain
firm until award, but did not receive the award) did not
create an implied-in-fact contract as the appellant claimed,
but rather amounted to an express offer by the
Government to enter a
unilateral contract in return for specified performance by offerors;
(ii) once
the appellant had submitted its proposal, the Government's offer became an irrevocable
option contract; (iii) the appellant, however, did not complete its performance
of the unilateral contract because it
withdrew its offer before the Government made an award, so the
appellant was not entitled to any of the stipend. The Board
also dismissed a count in the Complaint for
breach of the implied duty of good faith and fair dealing because that
claim had not previously been submitted to the Contracting Officer for
a decision. |
|
April 25 |
In
Vectrus Systems Corp., the ASBCA denied the contractor's changes,
breach, and negligent estimates claims, because the
"workload data" appended to a solicitation for a fixed-price contract for laundry services (and later revised in
a bilateral mod) did not establish
limits on the number of items that the contractor was obligated to
clean for the fixed prices and did not entitle the contractor to extra compensation for
certain categories of items where the work exceeded the corresponding
amount listed in that data, especially where the contractor
participated in deriving the workload data for the mod and
was paid the full contract price even in the areas where the
actual number of items cleaned was less than the number in
the workload data.
In KiewitPhelps,
the ASBCA denied the Government's motion to
dismiss an appeal for the alleged lack of a claim certification because
a signature by an authorized official on a claim letter where the actual
certification language is part of an attachment to that letter is
a defective certification that can be corrected. |
|
April 24 |
In
Parsons Government Services, Inc., the ASBCA held that the proper interpretation of FAR § 31.205-36(b)(2)
concerning the allowability of rental costs incurred by a
contractor following the sale and leaseback of a depreciable asset (in this case a
building) involves resort
to FAR § 31.205-16(d) which caps the recognized gain at the difference between
the acquisition cost of the asset and the undepreciated balance at the time of
the sale and leaseback "to
ensure that the recovery of costs [is] limited to those that would be
allowable had the contractor retained title (i.e., the costs of ownership) and neither the
government nor the contractor would be worse off because of a sale and leaseback than
they would have been had title been retained."
|
|
April 23 |
In
Frontline Support Solutions, LLC,
the ASBCA dismissed a subcontractor's appeal for lack of jurisdiction because the
sub lacked privity of contract with the Government in
a situation where the prime had neither sponsored the appeal nor acted as an
agent for the Government. The Board rejected the sub's argument that
there were extraordinary circumstances justifying its appeal
(the Government's continued payments to the prime despite
the Government's alleged knowledge of the prime's fraud and
insolvency).
In
Skanska USA Civil Southeast, Inc., which involved an FFP contract
with the Navy for the demolition of two existing piers and
construction of a new pier at the Norfolk Naval Shipyard, the ASBCA denied the contractor's
claims for extra costs associated with the difficult removal of interior timber bearing piles.
First, the Board held that the contractor failed to produce sufficient
evidence concerning three issues necessary to support its claim that it was
impossible to fully extract the interior bearing piles while complying with the dredge
limits: (i) whether any other contractor was able to comply with the specifications;
(ii) whether the specifications required performance beyond the state of the art;
and (iii) the
extent of the contractor’s efforts in meeting the specifications. In
connection with this claim, the Board held that, when read
in context, neither of two
communications from the Navy was an admission of impossibility.
Secondly, the Board held that, although a note in the solicitation that "[a]ll timber structure
including but not limited to piles, bent caps, relieving platform shall be assumed to be
creosote treated" was a representation concerning a site condition, the contractor's
Type 1 differing site condition claim failed because: (i) its own prior
work on the site in a contract mentioned in the solicitation gave it
as least constructive notice that the bearing piles were untreated,
which the contractor should have foreseen; and (ii) the as-built
drawings, which the contractor should have reviewed, indicated the
piles were not
treated. The Board also denied the contractor's Type 2 differing site condition
claim because the contractor should have reasonably anticipated
that the bearing piles would be degraded due to their prolonged exposure (for 70
to 90 years)
to the adverse conditions under the piers.
|
|
April 22 |
In
Sheffield Barbers, LLC (which involved a
contract to operate barber shops at AAFES locations) long after
contract award, the Contracting Officer directed the
contractor to stop charging extra for "fade" haircuts. The
contractor submitted alternative constructive change,
breach, and misleading estimate claims for the lost revenue
and appealed their denials. AAFES then filed two motions for
summary judgment. The first alleged that the contract
required that fade cuts be charged only as regular cuts. The
ASBCA denied that motion because the Contracting Officer (a) was aware that
the contractor was
charging extra for those fade cuts as "style" cuts, (b) acquiesced
in the
extra charges, and (c) did nothing to stop this practice for the first
15 months of the contract, which amounted to a waiver of AAFES'
interpretation of the contract. The second motion for
summary judgment was to dismiss the claim that the
Government's estimates in the solicitation about the amount
and type of cuts to be expected were misleading. The Board
held that those estimates were based on the Government
having allowed the predecessor contractor to charge extra for fades, and,
therefore, were neither inaccurate nor unreasonable (and
actually supported the contractor's breach and change claims).
|
|
April 21 |
The SBA's OHA dismissed the
NAICS Appeal of Veterans Command, LLC because
the
OHA lacks jurisdiction over a protest alleging that a solicitation should have been set aside
especially for SDVOSBs rather than just small businesses
generally, especially a protest styled as a NAICS appeal
that does not challenge the NAICS code assigned to the
solicitation. |
|
April 20 |
In
VSBC Appeal of Force99 Technologies, LLC, the SBA's OHA dismissed
an appeal of the denial of a firm's application for
certification as an SDVOSB because, inter alia, the appeal was filed a year later than the required 10 days from the date of the denial.
|
|
April 19 |
In
Direct Steel, LLC, the ASBCA denied the Government's motion to dismiss an appeal for failure to state a claim because, viewed in the light most favorable to the appellant, its Complaint alleged facts sufficient to satisfy all four elements of a superior knowledge claim.
In Size Appeal of BahFed Corp.,
the SBA's OHA affirmed the
Area Office's dismissal of a size protest as nonspecific because
the protester's allegation was that the number of "Associated Members" on
the challenged firm's LinkedIn page exceeded the number of employees in
the applicable size standard when, as the protester conceded, Associated
Members on LinkedIn are not necessarily limited to employees. More
recently, in HUBZone Appeal of BahFed Corp.,
which involved the same challenger, the same challenged
firm, and the same procurement, the OHA denied an appeal of
a determination that the challenged firm was a qualified HUBZone
firm for this procurement because the rule that a firm's HUBZone status is to be determined as of
the submission of its initial proposal in a two-step procurement is not limited
to certain types of two-step procurements or which section of the FAR
the solicitation is being conducted under and also is not limited to
the
submission of a priced proposal. The challenged firm's submission of
its initial proposal in this two-step procurement was within one year of its certification as a HUBZone firm, as required by the regulations. |
|
April 18 |
Executive Order 14271 establishes procedures to maximize
the procurement of commercial items, including instituting
special reviews and findings required before procuring
non-commercial items.
Executive Order 14275
requires (i) a comprehensive study of the FAR to eliminate
unnecessary provisions and (ii) studies of the FAR Supplements to
make certain they are aligned with the FAR, all with the
goal of reducing unnecessary procurement regulations.
In
VSBC Protest of Airborne Medical, LLC, the
SBA's OHA dismissed a protest of a firm's SDVSB status
because the protest failed to follow OHA's procedural
requirements in several respects (including its lack of
specificity), and the protester failed to respond the the
OHA's show cause notice concerning those defects.
|
|
April 17 |
In
Culmen Int'l, LLC, an unsuccessful post-award protest in a
solicitation for threat reduction logistics services, the
Court of Federal Claims held that the agency did not err:
(i) in assigning
the awardee a technical rating of "Outstanding" even though cost realism
analysis had determined its proposed prices were too low because
the solicitation required the cost and technical evaluations to be made
separately; (ii) in evaluating the awardee's Past Performance because, contrary to
the plaintiff/incumbent's allegation,
the solicitation did not require each individual past performance
reference to
demonstrate experience in every aspect of the PWS; (iii) in
assigning the plaintiff a weakness for failing to address replenishment
requirements (and the agency did not evaluate the competitors unequally in this
area because the awardee proposed a different approach than the plaintiff);
and (iv) in adjusting the plaintiff's proposed travel costs
upward during the price realism analysis because the plaintiff failed to include sufficient details of its
travel plans for effective evaluation and substantiation of the validity of those proposed travel costs
(especially given the significant variance between the plaintiff's proposed travel costs and the
IGCE). The court also held that the agency took appropriate steps to investigate
the plaintiff's claims of bias in
an evaluation board member, removing one board member from the evaluation for
the appearance of possible bias and retaining another member as a nonvoting
member of the board.
In Siemans Government Technologies, Inc.,
the court denied the Government's motion to
dismiss a protest seeking to recover the plaintiff's bid preparation costs
on two canceled procurements for lack of jurisdiction due to FASA's bar on task order protests in
the court because neither requirement in the statute (that the protest
be (i) in connection with (ii) a proposed or issued task order)
had been met: (i) the solicitation was redundant and could not be consummated
because the Government was aware it already had a contract in place
for the solicited services; and (ii) the plaintiff "has never sought to set aside or generally interfere with any pending or issued task
order [and] only wishes to be made whole after being led astray by the
[Government's] false
procurement needs--a claim FASA does not bar." |
|
April 16 |
In
Hydraulics Int'l, Inc.,
an unsuccessful preaward protest mainly alleging deficiencies
in the agency's market research, the Court of Federal Claims
declined to issue a preliminary
injunction against a proposed sole-source award for helicopter
aviation ground power units,
finding that the plaintiff
was unlikely to succeed on the merits
because it had failed to provide sufficient evidence that its units
could meet the solicitation's requirements or that it had
the production capability to provide compliant units within the required time frame.
Anika Systems,
Inc. won its protest because, although the GAO denied quite a few
of the protester's grounds for protest, it did find that the agency's
evaluators treated the protester and the awardee unequally (a) in assigning only
the awardee's proposal a positive finding for
identifying significant goals of standards, structure, relative tools for work, security, and
audit capabilities when the protester's proposal provided a similar approach, (b)
in concluding that the protester’s
proposal lacked "innovative visualizations," and (c) in assigning the protester's
proposal a lesser rating in its approach to data automation when the
awardee's proposal contained the same features. |
|
April 15 |
In Analysis, Studies, and Training International, LLC, and SOFIS-TRG, LLC
(unsuccessful consolidated protests by two firms eliminated from
a procurement set aside for women-owned small businesses (WOSBs)
pursuant to a DoD
class deviation, which required that offerors submit SAM certifications with their
offers showing that they were WOSBs), the Court of Federal Claims held
that: (i) the SAM registration and submission requirements
were material terms of the solicitation (based on a detailed
analysis of the meaning of the term "material") and, therefore, could be a basis for disqualifying an
offeror; (ii) one firm's SAM registration
mistakenly failed to identify it as a WOSB, and that firm's
explanation for the mistake could not cure the problem; and
(iii) the other firm's SAM
registration lapsed for a few days between the submission of its offer and
the
award, which violated FAR
§ 52.204-7(b)(1)'s requirement applicable
at that time that offerors
must "be registered in
SAM when submitting an offer or quotation, and . . . continue to be
registered until time of award." Concerning this latter issue, the court
held that a subsequent revision of the FAR provision was
not retroactive, and the plaintiff had not submitted a "final proposal
revision" even if such a revision could have cured the lapse in
SAM registration.
In Centerra Security Services GmbH and Continuity Global Solutions, LLC,
another case involving consolidated post-award protests,
this one with mixed results, the court held that: (i) the agency properly followed
the "late is
late" rule by rejecting the awardee's revised proposal for being
one minute late, without being required also to reject its initial,
timely proposal, and by allowing the eventual awardee to participate in
continued discussions and to submit further proposal revisions because
its
continued participation in the procurement would not prejudice other
offerors and did not result in unequal treatment since all offerors
had the opportunity to correct deficiencies in their
proposals; (ii) the agency used unstated
evaluation criteria (which its own evaluators stated were "in addition
to" the recency and relevancy criteria in the solicitation) to demote
one plaintiff's past performance rating; (iii) the agency did not
treat that same plaintiff and
the awardee disparately by giving the awardee a higher
evaluation under the technical factor regarding required licenses
and permits because, as the incumbent, the awardee would naturally
have the advantage of already having such licenses and required certifications for its instructors;
(iv) the source selection advisory committee had a rational explanation for
giving the other plaintiff a lower score in the technical area than the initial
evaluators had; and (v) the agency's evaluation of total proposed staffing
numbers was not arbitrary, and its overall evaluation of the second plaintiff's management
plan complied with the solicitation's evaluation scheme. |
|
April 13 |
In
Nanka Constr. Co., the ASBCA dismissed an
appeal that did not clearly indicate the person filing it was authorized
to do so under Board Rule 15(a) after the appellant failed to respond to
multiple Board orders to provide that explanation.
In Government Training LLC,
the ASBCA dismissed an appeal for failure to prosecute after
the appellant essentially ghosted both the Board and the
Government by failing to
respond to numerous communications and orders from them.
|
|
April 12 |
In
AICI-Archirodon JV, a decision limited to quantum, the ASBCA held
that the proper measure of
the downward price adjustment for shipping by means other than
the required U.S.
flag vessel was the difference between (i) the quote the contractor
had obtained for the only U.S. flag ship
available and (ii) the price the contractor paid for an alternate shipping
method. The Board rejected the contractor's assertion that
the calculation should be based on the "reasonable" cost of
a U.S. flag vessel. |
|
April 11 |
In
NAICS Appeal of Peerless Technologies Corp.,
which involved a solicitation for advisory services and assistance to
the Air Force Research Laboratory's RDT&E projects,
the Contracting Officer's choice of NAICS-541611 ("Administrative Management and General Management Consulting Services")
was more appropriate than the appellant's choice of NAICS-541715 ("Research and Development in the Physical, Engineering, and Life Sciences") because, inter alia, whether a particular code is superior for
maximizing competition is irrelevant in a NAICS
appeal.
As in the
SynergisT
JV LLC protest discussed in the
April 5 entry below, the GAO sustained a protest by VMD Systems Integrators, LLC dba VMD Corp.
because the agency improperly disqualified the protester for quoting based on its
underlying FSS labor categories rather than the special item number (SIN)
identified in the RFQ when the solicitation did not specifically limit
quotes to that SIN. |
|
April 10 |
In
Quality Trust, Inc., building on its
prior decision concerning a
contract for road and bridge repair, the CBCA held that the contractor could
not recover for
suspensions of work (including a recovery based on the Eichleay
formula) because: (i) the Government was not the sole cause of any delay
(e.g., one of the suspensions was to allow the contractor to address
a mistake in price, another to address a cure notice for
deficiencies in its performance); (ii) in entering the
contract, the contractor had agreed there would not be any masonry work on
the bridge during bird nesting season;
and (iii) the suspension periods were reasonable. |
|
April 9 |
In Loyal
Source Government Services, LLC, an unsuccessful preaward protest
by the incumbent in a solicitation for medical
services at the Border, the Court of Federal Claims held that in compliance with FAR §
3.104-7, the procuring agency (Customs and Border Protection or "CBP") took appropriate
steps to address an alleged Procurement Integrity Act violation by
quickly determining that the violation (improper disclosure of
evaluations of the offeror's proposal) had occurred, pausing
the procurement, and transferring the procurement from CBP to DHS, with entirely new personnel, which insured
that the disclosures would not taint the procurement. The court also
held that the CBP did not
have to conduct PIA investigations of letters sent to Congress that
the protester alleged showed bias by CBP officials against it because
the procurement already had been transferred to DHS and bias is not a
PIA violation.
In another unsuccessful preaward protest by
Loyal Source Government Services, LLC on the same procurement, the court held
that: (i) the agency's
removal of staffing estimates from the solicitation was an appropriate response to
a prior
protest and did not prevent offerors from formulating intelligent offers;
(ii) where there were different state licensing laws concerning
how many personnel a physician may supervise, the agency (a) was not
allowed to preempt
state laws by establishing a single requirement in the solicitation and
(b) could properly place the burden of determining choice-of-law questions concerning state licensing requirements on offerors;
(iii) contrary to the protester's contention, the solicitation
was not ambiguous as
to the required presence of regional supervisors at various medical units;
and (iv) although the solicitation's requirement that offerors provide wage and
health and welfare rates with their proposals violated the FAR, which
only requires such information from contractors (i.e., post
award), the plaintiff could not show prejudice because the solicitation made
clear that the data would not be used in the evaluation, and the
plaintiff's only grounds for its protest was is its speculation that the data
might be
improperly disclosed. |
|
April 8 |
In
David Boland, Inc., which involved a contractor's claim on behalf
of its sub in a contract for the replacement and construction of
floodwalls as part of a hurricane protection project in New Orleans, Louisiana,
the ASBCA held that the contractor had
failed to establish any of the four elements of a Type 1 differing site condition because: (i)
the solicitation warned of the possibility that conditions might vary from
those described in the solicitation; (ii) the contractor failed to
present adequate evidence that the conditions were unforeseeable,
especially where the solicitation indicated they might exist; (iii)
the contractor failed to present evidence of its contemporaneous
interpretation of the contract documents or that it had relied on its
alleged interpretation; and (iv) the contractor failed to establish
the site
conditions caused the alleged damages. The Board also denied a defective specification
claim because the specs were performance specs which meant the Spearin
doctrine (United States v. Spearin, 248 U.S. 132, 136 (1918)) was inapplicable.
|
|
April 7 |
In
Westwind Partners LLP, et al., the Court of Federal
Claims denied motions to supplement and to
complete the Administrative Record in a protest involving a solicitation with two functional
categories of awards in order to show disparate evaluations of identical
proposals in the two categories because the solicitation made it
plain that such a situation could occur, and the two categories were evaluated by
different evaluators.
|
|
April 6 |
In
Size Appeal of Hometown Veterans
Medical LLC, the SBA's OHA held that, pursuant to 13 C.F.R. § 121.103(h), the members of
a joint venture were affiliated by virtue of having submitted
an offer more than two years after the award of the first contract to the
joint venture even though the initial award was terminated for
convenience prior to performance (so that the JV did no work and received
no benefit).
|
|
April 5 |
The GAO sustained a protest by
SynergisT JV, LLC,
holding that the agency improperly
disqualified the protester for quoting based on its underlying FSS labor
categories rather than the special item number (SIN) identified in an RFQ
because the solicitation did not specifically limit quotes to that SIN.
|
|
April 4 |
In
Textron Aviation Defense LLC, the Court of Appeals for the Federal
Circuit affirmed the
prior CoFC decision granting summary judgment to the Government
and dismissing the contractor's Complaint because the
underlying claim was not
submitted within the six-year limitations period. Specifically, the
court held that: (i) the contractor failed to
present evidence that it did not have enough information to know or
have reason to know the claim's "sum certain" at the time the
court concluded the limitations
period began to run; (ii) the CoFC correctly concluded the contractor's request for
payment under CAS 413 was not "routine" because
the alleged amount owed had no connection to the expected or scheduled progression of contract performance,
but rather arose from an unanticipated bankruptcy and
associated segment closings; (iii) the contractor's predecessor-in-interest sustained
damage (which started the limitations period running) when the
terminations and curtailment of the pension plans triggered
its ability to request CAS 413-50(c)(12) pension-cost
adjustments, and not at the much later date when the
Government denied its CAS 413 payment request. |
|
April 3 |
In a decision involving statutory interpretation, the GAO sustained a protest by E.K.K. Investments, LLC,
holding that in a
solicitation (by means of an RFI) for fresh fruits and vegetables for resale at commissary stores
in Korea, the agency
could not establish a sole-source BPA without executing a J&A or soliciting offers from as many
sources as practicable.
In
Daniels Bldg. Co., an unsuccessful protest of a prior
SBA OHA decision, the Court of Federal Claims upheld the OHA's finding
that the challenged SDVOSB member of a team
performing a construction contract would not violate the ostensible
subcontractor rule because it would perform the primary and vital requirements of the contract,
which, in the case of construction contracts, are "the management,
supervision and oversight of the project, including coordinating the work of various
subcontractors, not the actual construction work performed." 13 C.F.R. § 121.103(h)(3)(iv).
The court also held that: (i)
the issue of whether the contractor was unduly reliant on its team
member/sub was properly before the OHA; and (ii) its analysis of that issue
was unobjectionable.
In Fuel Tank Maintenance
Co., LLC, over a
dissent concerning one aspect of the claim, the ASBCA held that, in a contract for
the construction of relief wells and various modifications to
a pump
station: (i) the contractor was not entitled to compensation for 21 days of delay
that the contractor's own expert
report stated was concurrent or for 9 non-federal holiday days during
an
extended holiday that the contractor took from the job without seeking
the Government's approval; (ii) an email from the COR to the contractor could not
vary any contract requirements regarding an electrical impact study
because the COR lacked authority to change the contract;
(iii) motor pump testing ordered by the Contracting Officer under
the "Inspection of
Construction" clause required the contractor to be compensated when it was
determined the motors functioned as contractually required; (iv) the contractor
was
entitled to compensation for delay caused when an issue with monorail
clearance that prevented a subcontractor's work was discovered while
that sub was on the way to the site; (v) the contractor was required to submit
a "variance" and obtain approval for a change to a water test, and
the length of suspension of work associated with this process was reasonable;
(vi) the contractor was not entitled to compensation for its second excavation of
a discharge pipe absent evidence the Government (or the contract) required
the first excavation, which occurred
before the installation of larger (changed) motors that the contractor
already knew would
require a separate excavation; (vii) the contractor could not change from
the method of charging for field office overhead
identified in its proposal by an employee with authority to do so, as it was directed to do by a special solicitation provision
that was not inconsistent with FAR 31.105(d)(3) or otherwise improper, despite arguments by
the dissent that the special provision was improper and
that, in the circumstances, the contract should have been
reformed due to a unilateral mistake by the contractor's
employee.
In
Maverick Constructors, LLC, the ASBCA denied all the contractor's claims in
a contract for the construction of water
resource area levees, canals, pumping stations, control structures, siphon, access
roadways, and appurtenant work on a water conservation restoration project.
Specifically, the Board held that: (i)
allegedly unsuitable material (rocks) in an excavation did not constitute
a Type I differing site condition because, inter alia,
the rocks were not materially different from the material clearly described in
several contract documents; (ii) the Government's provision of an additional
borrow area within seven days of notice from the contractor that
satisfactory material in the original area had been exhausted was
reasonable in the circumstances and did not breach the implied duty of
good faith and fair dealing where the contractor had failed to produce
evidence for its assertion that it had submitted multiple notices
prior to the one at the onset of the seven day period; (iii) the contractor
could not recover for its costs of reconstructing the original levee
it had built that
allegedly met all contract requirements because the Government's daily
inspection reports during that construction repeatedly had noted
deficiencies in its fill material; (iv) the Government's ACO's comments on
various submittals by the contractor were intended to assist it in
revising the submittals and could not properly be interpreted as
change orders; (v) the contractor was on notice from the Government of
a defective specification prior to undertaking the action that it
now claimed was compensable due to that defect; (vi) there
was insufficient evidence concerning the contractor's
allegations that it was required to create a 5-foot
vegetation-free zone and establish grass seed long after the
period during which the work was required
by the contract; (vii) the contractor was not entitled to almost two years of
excusable delay and a corresponding remission of liquidated damages because
the contractor failed to establish the extent of delay, the harm resulting from alleged delay, and that any delay days were solely attributable to
government actions (a complete failure of proof). |
|
April 2 |
The GAO sustained a protest by Trace Systems,
Inc. because the agency's
evaluation of the awardee did not comply with the specific criteria in
the PWS for evaluating
the relevance of
past performance.
In Size Appeal of Advanced Information Systems Group, Inc.,
the SBA's OHA held that a virtual business incorporated in
the United States that does not conduct business in a physical location but does business and delivers the services
it sells online, which is owned by Americans and employs Americans
residing in their homes from which the online services are delivered in the United States
has a "place of business located in the United States" pursuant to 13 C.F.R. § 121.105(a)(1). |
|
April 1 |
In
Size Appeal of Marathon Targets,
Inc., the SBA's OHA affirmed the dismissal of a protest for
lack of standing because the protester had been eliminated from
consideration for award for procurement-related reasons (here, an organizational conflict of
interest, an appearance of impropriety, and an unfair competitive
advantage), even though that determination had not been made
until well after the size protest was initially filed. The protester argued
that the following regulation meant that standing should be
determined as of the date of filing (and that is what the
language clearly seems to suggest), but the OHA rejected the
argument (probably because it would lead to an illogical result): "[T]he following entities
may file a size protest in connection with a particular procurement, sale or order: (i) Any offeror that the contracting officer has not eliminated from consideration any procurement-related reason.
. . ." 13 C.F.R. § 121.1001(a)(1)(i) (italics added).
In TPMC-EnergySolutions Environmental Services 2008, LLC,
which involved the interpretation of an ID/IQ contract
with an 8(A) mentor-protégé JV for remediation
services at nuclear waste site, the Court of Federal Claims
held in a lengthy opinion, inter alia, that: (i) under the doctrine of
contra proferentem, the plaintiff's interpretation of a task order as
firm fixed price (rather than fixed unit price) was reasonable and would be adopted;
(ii) disputed release
language in one task order would not be interpreted as a waiver of
the plaintiff's claim for a Type I Differing Site Condition under FAR 52.236-2 because
that language differed from the waiver language in other task orders
and modifications that did constitute a general release; (iii) a reasonable contractor reading the contract documents as a whole would
interpret
the statement that the "top five feet of overburden associated with each burial pit
is considered uncontaminated soil" as making an affirmative representation as to the site condition,
which turned out to be inaccurate; (iv) the contract documents indicated to
a reasonable contractor that certain contaminants would be found
underground in packaging and containers, and finding them dispersed
in, and not easily separated from, the soil was an unforeseeable
differing site condition; (v) the agency breached the contract by failing to
disclose its superior knowledge as to both these issues; (vi) the agency
breached the implied duty of good faith and fair dealing by (a) improperly
conditioning approval of an aspect of the contractor's work plan on its
agreement to rates advocated by Government in a separate billing
dispute, (b) insisting that the contractor accept language in a mod waiving its right
to an equitable adjustment, when the basic contract clearly gave it such
a right, and (c) threating the contractor with fines for breaching a supposed 90-day storage limit
that the agency failed to disclose actually had been waived by the EPA;
and (vii) the agency's actions rendered the task order mod
void and unenforceable
due to economic duress. |
|
March 31 |
In
Eagle Peak Rock & Paving, Inc.,
on
remand from the CAFC, which had reversed the
CBCA's prior decision (overturning a default termination) on the basis
that the Board had focused on the reasoning in the Contracting Officer's
termination decision rather than considering the
issues de novo, the CBCA
again holds the termination for failure to make progress was improper
because the schedules presented by the contractor complied with the
contract's requirements and showed it could have completed the work on
time considering that two construction seasons remained, and, in the
circumstances, the contractor had made adequate progress during the
first construction season.
|
|
March 30 |
Alares Constr.,
Inc. is an interesting CBCA case involving claims
for extra work and delays on a construction project at a VA medical center. The presiding judge died after the hearing, so a new judge read the briefs and issued
the decision. In connection with its post-hearing briefing, the contractor made several unsuccessful motions.
The contractor wanted
the CBCA to exclude documents impeaching one of the
contractor's
witnesses from the Appeal File because those documents were
not mentioned during the hearing. That request was denied
because, inter alia, the documents had been in the
appeal file for as long as for five years before the
hearing, and the deadline for objecting to documents in the
file had long since passed. The contractor wanted the Board
to overturn the trial judge's ruling that the contractor had
failed to qualify its witness as an expert on
delay claims and critical path analysis. That motion was
denied because the original ruling was correct and because
the trial judge (without objection from the agency) had
allowed the witness to present his opinions and his report
as lay opinion testimony. The contractor asked the Board to draw an
adverse inference (that the Contracting Officer's testimony
would have benefited the contractor) from the fact that the
Government had not called the Contracting Officer to testify at the hearing. The
Board gave several good and sufficient reasons for denying this motion, but
the only one it really needed, imo, was that the Contracting
Officer was also on the contractor's witness list, but the
contractor chose not to call him and also had declined the
new judge's offer to re-open the hearing to allow additional
testimony. On the merits, the Board found the contractor's
critical path report and analysis unpersuasive, but (to the
Government's apparent chagrin) instead of denying the delay
claim in its entirety, as the agency had requested, the
Board relied, to some extent, on the agency's
expert's critical path analysis, which had concluded the
contractor was entitled to some of its delay claim. The bulk
of this very long decision contains analyses of many issues
concerning the cause and extent of the delays, too many to
summarize here. Apart from its delay claim, the contractor presented no evidence beyond
speculation to support its claim that the Government had
breached its implied duty of good faith and fair dealing by
allegedly failing to reasonably review and approve the
contractor's change
order and delay requests out of fear of funding limitations. The Board denied
another claim because the contractor had failed the
requirement to coordinate the work of its subcontractors,
which resulted in one subcontractor removing some work
installed by another sub, which, in turn, necessitated the
reinstallation of that work. |
|
March 28 |
In
1102 Co., a case involving the CBCA's small claims procedure, the
Board held that in a contract to provide, inter alia, personnel
with security clearances at fixed monthly rates for full-time equivalent work days of eight hours each,
the contractor was not entitled to bill for individuals until their
security clearances were approved, and the agency did not unduly delay
approval of a security clearance, especially where the solicitation warned
that background checks could require more than 30 days.
In
Adapt Consulting, LLC, which involved a contractor's EAJA application,
the CBCA held that: (i) the agency's actions in terminating
a contract for
default and in denying almost all of the appellant's monetary claims were
not substantially justified; (ii) there were no defects in the attorney billing records
provided by the appellant; and (iii) absent any specific objections
presented by the Government, the Board on its own would
determine that the appellant's success on the default termination and
most of its claims merited an EAJA award of 75% of its attorneys' total billings.
In
Crystal Clear Maintenance, a Rule
19 proceeding solely on the written record, the CBCA denied the Government's
half-baked claim for flood
damage in a building after a storm (which allegedly resulted from the contractor's work
on its building maintenance
contract) because: (i) the proceeding was not bifurcated into quantum
and entitlement, and the Government failed to present any evidence
of quantum[!]; (ii) the Government did not establish that the
contractor's actions caused the flooding event; (iii) the Government's
allegation that the contractor was required to have personnel in the
building during the weather event that resulted in the flooding
conflicted with the clear language in the contract; and (iv) the
Government's allegation that the contractor should have notified that
Government that it had moved a sensor failed because the Government did
not even prove the contractor actually had moved it.
In JITA Contracting, Inc.,
the CBCA denied
cross-motions for summary judgment concerning the propriety of a default
termination. The Board held that the contractor did not establish that the Government had waived
its right to terminate by waiting approximately two months after the
required completion date because the contractor had not
presented any undisputed facts showing that it "could . . . reasonably have believed that time was not of the essence or that its
previous periods of delay had been excused." The Board denied two of the three grounds
the Government contended supported its decision to terminate because they were
not alleged in the Government's Complaint or any any time before reply
briefing in the the Government's motion for summary judgment
(this was an issue of lack of adequate notice to the
contractor, and these items could still be litigated at a
hearing on the merits). The Board
denied the remaining portion of the Government's motion alleging that
the default was
justified by the contractor's failure to complete the project on time because
the motion did not include any undisputed facts establishing
that the contractor did not have any excusable
delays. Finally, the Board granted the portion of the Government's motion alleging that
"disincentive deductions" could be taken by the Government for
the contractor's
delays beyond the completion date because, although the contract language
was not "ideally drafted," no other interpretation of the contract's language made
sense. |
|
March 27 |
In
B.L. Harbert Int'l, LLC, which involved a contract to replace
a taxiway at an Air Force base, the Court of Federal Claims granted
the Government's motion
for judgment on the pleadings based on general releases in
two bilateral modifications. The first release stated the modification "constitutes compensation in full on behalf of the Contractor and its Subcontractors
and Suppliers for all costs and markups directly or indirectly
attributable for the change ordered, for all delays related thereto, for all extended overhead costs, and for performance of the
change within the time frame stated." The second release covered all claims
except any for a time extension that might occur in the future, and
there was no such time extension.
The GAO sustained a protest by Perimeter Security
Partners, LLC, concluding that the agency unreasonably
found a technical quotation unacceptable after assigning two deficiencies
for pages from that allegedly exceeded a page count limit when the
solicitation was latently ambiguous as to whether the items in dispute
(charts) were among those that the solicitation indicated would be
excluded from the page count and where both the agency's and the
protester's interpretations were reasonable. |
|
March 26 |
The SBA's OHA dismissed the
Size Appeal of Fiber Business Solutions Group, Inc. d/b/a GForce
because neither an Area Office nor the OHA has jurisdiction
over a
challenge to an awardee's 8(a) eligibility, even when the appellant tries to
label it as a size protest.
|
|
March 25 |
In
Envistacom, LLC, the ASBCA denied the
Government's motion to dismiss based on contractor's alleged
conflation of claims from two different contracts and ambiguities in
its Complaint concerning that same alleged issue because,
inter alia, the Government's own
responses to the claim and the Complaint clearly indicated the Government was not
under any misapprehension at all concerning the contract to which the claim
related or the nature and amount of the claim. The Board also denied
the contractor's
motion for a default judgment based on the Government's allegedly
deficient Rule 4 filing and its frivolous motion to dismiss
because neither is grounds for the harsh sanction of default.
In
Marathon Targets, Inc., an unsuccessful (and unusual) post-award protest
at the Court of Federal Claims, the plaintiff requested a preliminary injunction,
claiming that
the agency's OCI investigation (which had resulted in its
post-award disqualification from the competition) was
procedurally and substantively flawed. That investigation
had resulted in the conclusion that the plaintiff (a) had used source selection sensitive information inadvertently
disclosed to it by the Contracting Officer to file an SBA protest and
(b) had failed to indicate it would
take all the mitigation steps requested by the Contracting Officer in using
that information in this CoFC protest. The court found that the
four-hour time limit the agency gave the plaintiff to
respond to the agency's final OCI report was not violative
of due process because, inter alia, (a) the
plaintiff had had plenty of time to respond to the agency's
concerns over the prior weeks (and had done so), (b) those
were the same concerns raised in the report, and (c) the
plaintiff did not establish what additional information it
could have provided had it been given additional time to
respond. Substantively, there were ample examples of conduct
by the plaintiff after it received the inadvertent
disclosure to support the OCI investigation's conclusion
that there was an appearance of impropriety.
Executive Order 14240 encourages consolidating
procurements of "common goods and services" in the GSA. |
|
March 23 |
In IVA’AL Solutions, LLC,
a decision on entitlement in a contract
with a tribally-owned participant in the
SBA's 8(a) business development program designed to
provide healthcare professionals to the Air Force, the ASBCA
held that: (i) in answering preaward questions
from bidders, the Government withheld superior knowledge concerning a
predecessor contractor's difficulties in maintaining adequate staffing
and its vacancy rates for unfilled positions; (ii) the disputed FFP
line items (with a
quantity of hours and a unit price per hour) formed a fixed-price,
level-of-effort term contract, under which the the contractor was entitled
only to recover for
work actually performed; (iii) a bilateral modification established
the contract's billing
method and superseded an allegedly contrary statement by the Contracting
Officer; and (iv) the Government did not breach the implied duty to
this contractor of good faith and fair
dealing by failing to enforce vacancy rates on a predecessor contract
with a different contractor.
In
Fluor Federal Solutions, LLC, which involved contract
interpretation in a fixed price regional base operations support contract for four Naval
facilities in Florida, the ASBCA held that: (i) preaward questions
(RFIs) and answers were incorporated in the contract; and (ii) based on
the contractor's proposal (to which the Government did not object and
which was incorporated into contract), the contract specifications,
and surrounding circumstances, the contract required the contractor to
"maintain" a previously populated database to be provided by the Government, and
the contractor was entitled to recover as a constructive change to the
extent the database provided by the Government was unusable, even
after the Government's efforts to scrub its data, which, in turn, required the contractor
to create the data in it (not as a volunteer). The Board denied the
contractor's claims for the following allegedly extra work
involved in maintaining and repairing equipment: (i) claims
based on the allegedly excessive age of the equipment and equipment with
pre-existing conditions (because the contract stated the equipment would be
made available "as is"); (ii) claims for allegedly having to make capital
improvements (because this work was within the contract's definition of
required "alterations"); (iii) claims based on work allegedly "not in
contract" (because (a) the contract work was described in terms of systems
rather than individual items, (b) the contract warned the list of items
in it was not
complete, and (c) the contractor's employees conceded that they developed this
claim category without reference to what the contract required); (iv)
various other categories of claims (e.g.,
negligence, incrementing, bundling, lack of access,
nuisance, and force majeure) (because the contractor failed to present adequate evidence to support
them or they involved work required by the contract); and
(v) claims for superior knowledge, breach of the "Government
Property" clause and breach of the implied duty of good faith and fair dealing, all based
on the Government's alleged misrepresentation of the condition of the equipment that
needed to be repaired (because, inter alia, of the multiple
statements in the fixed price contract that the equipment would be
provided "as is"). Finally, in part because the contractor
succeeded on one, but not all, of its claims, the record was not sufficient for
the Board to determine that
the agency's "marginal" and "unsatisfactory" CPAR ratings were justified,
so the Board returned the case to the agency to review its
CPAR ratings in light of
the Board's decision. |
|
March 21 |
In
Associated Energy Group, LLC, dba AEG Fuels, the Court of Appeals for the Federal
Circuit affirmed the
prior CoFC decision dismissing a protest against a bridge contract
because, although the expiration of the bridge contract did not render the
protest moot, the plaintiff lacked both Article III standing (because it
could not meet a material requirement of the solicitation) and
statutory (Tucker Act) standing (because even if all the alleged errors
in the procurement were remedied as requested by the protester, it still
would not have a substantial chance of award and, thus, did not have a
substantial economic interest in the procurement).
|
|
March 20 |
In
Size Appeal of MicroTechnologies,
LLC, the SBA's OHA dismissed (as premature) an appeal seeking
a firm's recertification as a small business because there was no
indication the firm previously had sought recertification from an Area Office or that
an Area Office had issued a decision on such a request. (The
firm had submitted a request to the GSA in conjunction with the VETS 2 Governmentwide Acquisition Contract asking that
it be "reinstated and be able to pursue VETS 2 opportunities"
and had assumed, incorrectly, that the GSA's denial of that
request was appealable to the OHA.)
|
|
March 19 |
In
CGS-Ace Security LLC, the CBCA denied the Government's motion for summary judgment
(based on the allegation that the appellant was not
the contractor) because (i)
the appellant's was the name entered into Box 15 (labeled "Name and
Address of Offeror") on the SF 33; (ii) the "Order of Precedence" clause
ranked the information in the SF 33 (part of the Schedule) over a conflicting
name in an exhibit to the contract; and (iii) there is no law stating that
awarding a contract to an entity different from the one named in the
proposal voids the contract: [The
Government] does not establish that a contract must be deemed awarded to the
entity whose name is on the proposal, regardless of the plain language of the contract itself.
Thus, even if the award of a contract to CGS-ACE Security LLC was found to be improper
as a matter of law, such a finding would not establish that [the agency] did not enter into a contract
with CGS-ACE Security LLC. |
|
March 18 |
In
Warrior Focused Solutions, LLC, an unsuccessful post-award protest,
the Court of Federal Claims held that: (i) under Blue & Gold
Fleet, the plaintiff had waived its objection to the agency's failure to
conduct discussions because it had not timely protested the unequivocal
statement in the solicitation that there would not be any discussions;
(ii) there were rational bases for assigning weaknesses in each of many areas
challenged by the plaintiff in the evaluation of Mission Capability;
(iii) there was a rational basis for rating the plaintiff's
Small Business Participation plan as Good rather than Outstanding because
the rating was based on a holistic evaluation rather than focusing
only on an allegedly unenforceable teaming agreement, and
according to the agency's evaluator who identified
discrepancies in its proposal, clarification concerning some
clerical errors among them should be sought only if the Government decided to enter discussions;
and (iv) the Cost Realism analysis was unobjectionable
because, inter alia, lacking any documentation, such as rate agreements or historical rates, to justify
the newly formed JV's proposed overhead and G&A rates, the agency was
justified in performing the cost realism analysis of the plaintiff by
comparing its proposed rates to those of the two other offerors, which
is an acceptable method under FAR § 15.404-1(c)(iii).
|
|
March 17 |
In
The QED Group LLC d/b/a Q2 Impact, a successful protest against the plaintiff's
disqualification from the OASIS+ competition, the Court of Federal Claims undertook a detailed
statutory analysis to conclude that section 889(d)(2) waivers issued by the Director
of National Intelligence (under his authority to waive the prohibition in Section 889 of the John S. McCain NDAA
for FY
2019 against using telecommunications equipment or services provided by Chinese-government-owned companies)
are not limited to a single contract or a single entity, as opposed to
waivers issued by agency heads under section 889(d)(1) of that statute, which are specific to the
requesting entity and are time-limited.
|
|
March 16 |
In
VSBC Protest of Veteran
Military Contracting, the SBA's OHA sustained a protest against
the SDVOSB status of a competitor in an SDVOSB set-aside because
the challenged firm conceded it was not a certified SDVOSB and claimed it had mistakenly checked the box indicating it was an SDVOSB on the solicitation form.
|
|
March 15 |
Both MicroTechnologies
LLC and SMS Data Products Group, Inc. won their GAO protests
against a task order award to Trace Systems Inc. The GAO
sustained the protest by SMS Data Products
Group, Inc. because: (i) in evaluating professional compensation, there was no explanation for the agency's adoption of a baseline of 8% below the incumbent's rates
before proposed rates would be flagged, and the agency did not evaluate whether the lower rates were sufficient to
"maintain program
continuity, uninterrupted high-quality work, and availability of required competent
professional service employees" as required by FAR § 52.222-4; and (ii)
the agency
failed to conduct the price risk analysis required by DFARS § 252.204-7024,
specifically "a measure of whether a proposed price for a product or service is consistent
with historical prices paid for that item or service." In MicroTechnologies LLC, in addition to finding the lack of the required price risk
analysis discussed in its SMS decision, the GAO held that:
(i) the agency unreasonably compared the awardee's proposed direct
labor rates for professional personnel only to market data instead of to the incumbent's direct labor
rates, as required by FAR § 52.222-4; (ii) the
record did not contain a comparison of proposed fringe benefits to the incumbent's fringe
benefits, as also required by FAR § 52.222-4; and (iii) in evaluating non-professional
compensation in the parties' revised proposals, the agency ignored
the solicitation
requirement that it compare proposed rates to the incumbent's rates. |
|
March 14 |
In
Balfour Beatty Constr., LLC, a decision
labeled as nonprecedential, the Court of Appeals for the
Federal Circuit vacated and remanded (in part) the
prior CBCA decision because a contract drawing indicating that the contractor should
“match existing building foundations” (which were
18 inches thick) was sufficiently definite to constitute a design
specification, creating an implied warranty, and the CBCA erred in construing it as a
performance specification.
|
|
March 13 |
In
THE CENTECH GROUP, Inc., the Court of Federal Claims held that:
(i) the Government had breached a task order for the contractor's acquisition and installation of
a communications infrastructure in a
building on Vandenberg Air Force Base by failing to pay for materials necessary
for that installation that had been ordered on the basis of Government's
approval of the bill of materials, even though the Government subsequently
paused the project after which the contractor switched subcontractors
and ordered different materials; (ii) the contractor's failure to invoice
precisely correctly for the parts was not a "material" breach that
would absolve the Government from having to pay for them; and (iii)
the Government could not avoid payment by noting that the items had never been
delivered because it was the Government that had prevented delivery by pausing
the project.
|
|
March 12 |
In
Size Appeal of Secise, LLC, the SBA's OHA held that the
180-day period at 13 C.F.R. § 125.12(e)(2)(i) (formerly, 13 C.F.R. § 121.404(g)(2)(iii)) for determining whether a small business has undergone a merger or
acquisition that renders it ineligible for award in a particular
procurement begins to run from the date of the initial offer and does not restart at the date of any
subsequent offers.
In BDPE Appeal of iZen ai Inc.,
the OHA upheld a decision denying admission to the 8(a) program due to lack of economic disadvantage because
the owner's tax returns showed income exceeding the $400,000 threshold, including funds withdrawn from
an IRA for personal use, and the allegation that those funds were
subsequently stolen was irrelevant.
In
Blue Water Thinking, LLC, an unsuccessful post-award protest, the
Court of Federal Claims held that: (i) given the Contracting
Officer's thorough (90+ page) trade-off analysis and the extended length of the
procurement, her timing in conducting a prior OCI investigation and in
seeking an OCI waiver and her prior reference to the eventual awardee
as the "apparent awardee" were not objectionable as "pre-selecting"
the eventual winner; (ii) the solicitation required only that unbalanced
pricing be considered and did not require a price realism analysis;
(iii) there was an adequate basis in the record for the Contracting Officer's
decision to maintain the technical
evaluation panel's rating of the awardee's proposal as "outstanding" in
the third and final evaluation, even though she had downgraded that rating to "good" in the
second evaluation; and (iv) the proposals were not sufficiently identical to support
the protester's claim of disparate treatment in the evaluation of technical
capability. |
|
March 11 |
In Sunrez Corp.,
interpreting, in detail, a Small Business Innovative Research
contract with the Air Force to design, develop, and build next-generation air-cargo
pallets, the Court of Federal Claims granted the Government's motion for summary
judgment concerning the plaintiff's claim for breach of the implied duty of good faith
and fair dealing because, read as a whole, the contract required the plaintiff
to initiate a draft technical data package at the beginning of Phase
II, develop that package during Phase II, and deliver it before
beginning Phase III with enough detail to accurately
depict the final product and to allow competitive re-procurement in Phase III, and
the plaintiff could not identify any specific promise in the contract that
the Government had breached in the various actions that the plaintiff
alleged constituted the breach.
In
Phylway Constr., LLC, a Rule 11 proceeding, the ASBCA held that under
the "Damage to Work" clause in a contract for clearing, grubbing, and vegetation removal, excavation for
a new drainage canal, and placement of uncompacted embankment and compacted embankment,
the contractor could not recover for its costs of clearing debris deposited on the work site by
hurricane storm surge during performance because that debris did not fall
within the definition of "damage" and did not require "repair" within
the meaning of the clause.
In
Relyant Global LLC, the ASBCA directed the
Contracting Officer to issue a decision on a claim two months faster than his proposed date because taking nine months to issue a decision on a seven-page claim with two
attachments was unreasonable. |
|
March 10 |
The GAO sustained a protest by TISTA Science and Technology Corp.
because the agency evaluated essentially equivalent quotations
disparately in three areas, including surge staffing, surge
staffing onboarding, and the use of a master schedule to
track projects. |
|
March 7 |
In
Thales USA, Inc., an unsuccessful post-award protest in a
solicitation for a firm fixed-price contract to replace the Air Force’s legacy
tactical air navigation systems with a new man-portable system, the Court of Federal
Claims held, inter alia, that: (i) the D&F
underlying the solicitation clearly stated the agency would
not evaluate past performance, and past performance was not
an evaluation criterion, so the protester's post-award
complaint in this area was waived (Blue & Gold Fleet);
(ii) the agency was not required to assign a weakness
to the awardee in an evaluation factor that the solicitation
clearly stated would be evaluated only as Acceptable or
Unacceptable; (iii) the agency did not evaluate offerors
unequally because the offers were not substantially
identical in the areas complained of by the plaintiff; and
(iv) the agency's price realism analysis was consistent with
the solicitation's evaluation scheme and utilized acceptable
methods of analysis.
|
|
March 6 |
In
Wise Developments, LLC, the CBCA overturned
the agency's default termination
of a building lease based on an alleged (sporadic) odor bothering the tenants that the lessor had
undertaken extraordinary steps to identify but that could
never be detected by third parties, much less traced to any
source in the building, itself, beyond, possibly, space
heaters used by the agency's employees in violation of their
lease because the allegedly offensive odor did not satisfy the
condition in the default clause cited by the agency to
justify the default, i.e., that the lessor had failed to maintain, repair, operate or service the premises as and when specified in the lease or
had failed to perform any other requirement of the lease as and when required
(especially when the lease did not have any requirements
concerning offensive odors). The Board also found that the
situation did not constitute a common law constructive eviction
because the intermittent alleged odors did not rise to the
level of "living or operating
conditions . . . so egregious as to constitute substantial interference with the tenant’s
beneficial use and enjoyment of the leased premises." |
|
March 5 |
In System Studies & Simulation, Inc.,
et al., which involved unsuccessful consolidated post-award protests
in an
acquisition of helicopter training support services, the Court of
Federal Claims held that: (i) pursuant to the CAFC's decision in
Oak Grove Technologies, the plaintiffs
had waived their right to object to the agency's failure to
conduct discussions as allegedly required by DFARS §
215.306(c), 10 U.S.C. § 3303(a)(2), or FAR § 15.306(a)(3)
because the solicitation had made it clear that the agency
did not intend to do so; and (ii) various weaknesses and
deficiencies assigned to the plaintiffs' proposals had a rational basis and complied with the solicitation's evaluation scheme or were not prejudicial. |
|
March 3 |
In FlightSafety International Inc.,
the Court of Appeals for the Federal Circuit affirmed the prior
ASBCA decision, holding that, pursuant to 10 U.S.C. § 2320 and DFARS § 252.227-7013,
the contractor's restrictive markings on
commercial data necessary for operation,
maintenance, installation, or training ("OMIT" data) and developed exclusively at private expense were improper
because the markings would have restricted the Government's rights to use
that particular type of data on
future procurements.
In
BES Design/Build, LLC, which involved claims
for delay damages, the Court of Federal Claims denied
the Government's motion for summary
judgment concerning two constructive change claims because there were
disputed issues of fact as to (a) whether the contract required the
contractor to provide designs for the replacement of all plumbing and electric panels
or only those that could not be reused and (b) causation, i.e.,
which party was responsible for the fact that the
contractor's design submissions were late. The court dismissed
(for lack of jurisdiction) the contractor's claim
for the replacement of steam heating with a gas-powered boiler because the
claim had not been previously submitted to
the Contracting Officer for a decision: "The words 'steam' and
'heating' never appear in the claim. . . . In fact, they do not even appear in [the plaintiff's]
complaint."
|
|
February 28 |
In GovWave, LLC, et al.,
the Court of Federal Claims dismissed a large group of consolidated preaward protests against
the elimination of
the plaintiffs in a preliminary stage of the evaluation process for
failure to comply with one of what the solicitation repeatedly labeled as "Strict Compliance
Requirements" (a statement on adverse
past performance, a complete price model, and a complete equipment list) because the solicitation
clearly and repeatedly (ad nauseum, actually) warned
that any such failures would result in disqualification from further consideration.
|
|
February 27 |
In
WP Health Consulting, LLP, an unsuccessful protest, the Court of
Federal Claims held that in eliminating the plaintiff from a competition by
finding its proposal was not ranked high enough to merit inclusion in
the competitive range in Phase II of the competition, the agency was not required by FAR § 19.601(c) and 13 C.F.R. § 125.5 to submit
the proposal to the SBA for a CoC determination because the agency did
not evaluate the offer on a
"non-comparative" (e.g., pass/fail, go/no go, acceptable/unacceptable)
basis, and, in any event, the plaintiff was not prejudiced because it was the lowest
ranked offer
among all those that had made it to Phase II before the agency
selected the competitive range, and it failed to explain how its
relative standing among the offerors would have improved had the
SBA issued a CoC.
In
VSBC Protest of Winergy, LLC,
the SBA's OHA held that, in a solicitation to inspect and
certify ventilation equipment at a VA facility, the challenged SDVOSB violated the
ostensible subcontractor rule because its proposal did not
reflect (a) that the firm would self-perform any portion of the work with its own employees,
(b) that any of its employees
would be involved with the contract, or (c) that its
employees possessed the certification required to perform
the contract work. |
|
February 26 |
In
Size Appeal of DecisionPoint-Agile Defense JV, LLC, the SBA's OHA held that,
in finding a joint venture other than small, the Area Office
had incorrectly limited its review to the firm's joint venture agreement (JVA) instead
of examining both the JVA and Operating Agreement together.
|
|
February 25 |
In
Raytheon Co., Court of Federal Claims Judge Bonilla (seeking
to provide some clarity on a jurisdictional issue courts
have confronted without a clear standard so far) held
that the court has exclusive Tucker Act bid protest jurisdiction over challenges to those "other
transactions" and "other transactional agreements" defined in 10 U.S.C. §§ 4021–22
that
involve "an acquisition instrument other than a traditional
procurement vehicle intended to provide the government with a direct benefit in the
form of products or services" [emphasis added] as opposed to those
intended only to facilitate "the creation or
expansion of a commercial market for the general public from which a federal agency
or instrumentality might someday purchase." The judge concluded that the court
had jurisdiction over the plaintiff's protest in this case
and invited the CAFC to examine his definition to settle
the issue once and for all.
In
Competitive Innovations LLC, the court denied the plaintiff's motion to supplement the Administrative Record,
holding that materials from a prior (allegedly identical) procurement (which
allegedly showed the agency applied a standard inconsistent with the one
used in the protested procurement) were irrelevant because each procurement stands on
its own, and the prior materials were not necessary for the court to
evaluate the current protest. The court also denied a request to complete the
Administrative Record with the same materials because the plaintiff failed to provide "clear evidence" that the current record was incomplete
when the plaintiff alleged only that "the record
is not complete because [it] does not contain an explanation for" how the agency evaluated the disputed element.
In
CAN Softtech, Inc., after an in camera review, the court required
the Government to complete the Administrative Record by filing a draft memorandum
(redacted to exclude portions protected by the
attorney-client or deliberative process privileges) referenced in a decisional document
already in the
Administrative Record regarding potential Procurement Integrity Act violations, even though the deliberations
concerning those violations were not issues in the protest, because those
deliberations might help explain the time the Government took to decide to
terminate the contract and issue a new solicitation. |
|
February 23 |
In
WSP USA Solutions, Inc., a decision labeled as nonprecedential,
the Court of Appeals for the Federal Circuit remanded the
case for further proceedings because the ASBCA had
erred in concluding
both that: (i)
the contract at issue was an IDIQ rather than a requirements contract; and (ii)
the contract unambiguously required that task orders should be priced at
the time they were issued rather than at the time of performance.
In
Cobeal Consulting Group, an
appeal from a default termination, the ASBCA held that it lacked jurisdiction over monetary claims
for increased costs, return of withheld liquidated damages, and time extensions
because they had not previously been properly submitted as
claims to the Contracting Officer for a
decision (the contractor had submitted two, uncertified REAs in excess
of $100,000 to the Contracting Officer, one of which
concerned matters not mentioned by the contractor on appeal
and the other containing no certification at all).
In
Sauer Constr., Inc., the ASBCA denied the
Government's motion for summary judgment that a release unambiguously barred the contractor's rust
remediation claims because the language of the release could be
interpreted to be limited to a specific change rather than to all
claims, including the claim in dispute. |
|
February 21 |
In Science and Technology
Corp., the Court of Federal Claims denied the
plaintiff's request for a stay of the court's
prior decision (see January 6 entry below) pending the
plaintiff's appeal to the CAFC, finding, inter alia,
that the plaintiff is unlikely to prevail on the merits of its argument that
the agency
should have decided to conduct discussions in this Part 15 procurement. |
|
February 19 |
In
Hawaiian Dredging Constr. Co., a decision labeled as
nonprecedential, the Court of Appeals for the Federal
Circuit held that the Court of Federal Claims should not
have granted the Government's preliminary Rule 12(b)(6) motion to dismiss
(for failure to state a claim) most of the contractor's claims alleging
that various Government actions or
inactions delayed and/or increased plaintiff's costs on a fixed-price
construction contract because, accepting the allegations in the
Complaint as true, as the lower court should have, there were open
issues that
could only be resolved by further proceedings, e.g., whether
the time the Government took to obtain rights of way and
approval of utility agreements was reasonable when the
contract was silent on the issue. |
|
February 18 |
In IntelliBridge, LLC,
an unsuccessful preaward protest, the Court of Federal
Claims held that the challenged solicitation did not violate 41 U.S.C. § 3307(b)'s requirement that
a federal agency, "to the
maximum extent practicable," define the products or services it is seeking in a manner that
allows for the procurement of "commercial services or commercial products or, to the extent that
commercial products . . . are not available, nondevelopmental items" because,
in this case, the agency was not soliciting a software product that would
replicate
the functionality of a specific existing product through a developmental solution, but
rather was soliciting an expansive set of cloud and IT services.
Subsequently, the court
denied the plaintiff's request for reconsideration. |
|
February 17 |
In
Size Appeal of Team CSI Joint Venture, LLC,
the SBA's OHA held that the Area Office had correctly dismissed (as untimely)
a size protest of a task order award under a long-term IDIQ MAC contract because
the Contracting Officer had not requested size recertification in connection
with the task order solicitation. |
|
February 13 |
In
Orion Government Services, LLC, an unsuccessful post-award protest, the Court of Federal Claims held that: (i) the agency's evaluation
of price
reasonableness by comparing offerors' prices to the IGE and to one another
complied with the FAR and was unobjectionable; and (ii) the Agency Record was
sufficient to establish that the agency also evaluated offers for unbalanced
pricing, even though the record did not include the details of that
evaluation.
|
|
February 12 |
In AcmeSolv, Inc.,
an unsuccessful post-award protest, the Court of Federal
Claims held that,
viewed as a whole, the agency's Past Performance evaluation was not
merely quantitative (which the plaintiff alleged violated the
solicitation), but was qualitative as well, and the plaintiff undermined
its allegation by offering its own quantitative analysis to argue that its
past performance should have been evaluated more highly. The court
also held that the plaintiff
failed to show prejudice because, even accepting the evaluation it
claimed its past performance deserved, it was only equal to the awardee
in the Past Performance and Technical evaluations, while its price was
significantly higher than the awardee's.
|
|
February 10 |
In
Size Appeal of Chenega Base and Logistics Services,
LLC, the SBA's OHA upheld the appeal in a size protest concerning an 8(a) set-aside procurement
because,
pursuant to 13 C.F.R. § 121.103(h)(2)(i), the Area Office should
have examined the protester's contention that an 8(a) joint venture agreement failed to
comply with the requirements for such agreements at 13 C.F.R. § 124.513(b)
and (c). |
|
February 8 |
In
Size Appeal of Acacia7 JV, although the appellant lost on many of its allegations of
affiliation, it ultimately prevailed when the SBA's OHA held
that a mentor-protégé joint venture
agreement (JVA) of the challenged firm did not comply with 13 C.F.R
§ 125.8 because the Responsible Manager
designated by the small business was subject to oversight and control
by an Executive Committee comprised of one member each from the
mentor
and the protégé whose decisions must be unanimous and
because the Responsible Manger shared authority with a Program Manager
that was an employee of the mentor. The OHA also found that the JVA did not comply with 13 C.F.R. § 125.8(b)(2)(viii), which
requires the JVA to have a provision obligating all parties to ensure performance of the contract
and to complete performance despite withdrawal of a member. |
|
February 7 |
In
AECOM Technical Services, Inc., the ASBCA decided the
contractor had no right to recover its considerable costs
associated with its preparation of a proposal, including a
feasibility study, in connection with a solicitation for a
task order award under its IDIQ contract because the
contract clearly and repeatedly stated such costs could not
be recovered if the Government decided not to award the task
order or proceed with the project "for any reason."
Specifically, the Board held that: (i) it lacked
jurisdiction over any claims based on an implied-in-law
contract; (ii) the contractor had not previously submitted
its superior knowledge claim to the Contracting Officer for a
decision; (iii) the implied duty of good faith and fair
dealing cannot be used to establish a contractual right
directly contradictory to the terms of a written contract;
and (iv) the fact that the Contracting Officer had not given
any reason for not proceeding with the project was
irrelevant because the contract did not require him to
provide a reason:
If the KO determines that the project is not feasible for
any reason including but not limited to financial,
technical, contractual, savings determination, installation
mission, or organizational issues, then the Government will
not be subject to any costs associated with the feasibility
study unless the Government exercises its option to obtain
ownership of the submitted documentation. |
|
February 6 |
In
Fort Fairfield BP, LLC, which involved the interpretation of two lease
terms ("real estate tax base" and "full assessment"), the CBCA held that the GSA had used the correct year for
the real estate tax base
because: (i) it was the first full tax year after the lease commenced; and
(ii) that
year's
taxes were based on a "full assessment" since all improvements contemplated in the lease
were complete before the
taxing authority’s assessment date.
|
|
February 5 |
I decided to quit whining and dig in, so I've fixed the
broken 2014 Court of Federal Claims links about 51 weeks
faster than my original prediction.
In
27-35 Jackson Ave. LLC, the Court of Appeals for the Federal
Circuit affirmed the
prior CoFC decision upholding the Government/lessee's decision to
terminate a building lease after finding the building untenantable following
extensive damage due to a burst sprinkler head because the lease
specifically gave the lessee the right to determine whether the
building was untenantable, which limited the court to deciding whether
the lessee's determination was arbitrary or capricious, and the lessee
had provided ample reasons for its decision. |
|
February 4 |
In
VSBC Protest of
Data Monitor Systems, Inc., the SBA's OHA denied a challenge to a
firm's SDVOSB status because: (i) two of the three members of
the LLC were SDVs whose "Voting Block" was required for (a)
a quorum and (b) all significant decisions pursuant to the Operating Agreement,
which established the requisite control by SDVs;
(ii) a qualifying veteran held the highest position in the firm;
(iii) the fact that a non-SDV was the company's registered agent did
not diminish the control by the two SDVs; (iv) the fact that
the SDVs worked at a subcontractor owned by the non-SDV member
was not disqualifying because the subcontractor's involvement
was not crucial to the SDVOSB's ability to conduct business, and, thus,
the SDVs could exercise independent business judgment without economic risk;
(v) the SDVs' employment at the sub did not violate the general rule that qualifying vets must work full-time during normal business hours at
the SDVOSB because the record established that the SDVs had ultimate managerial authority under the Operating Agreement; and
(vi) the protester failed to provide any credible evidence in support of its allegation of
a violation of the ostensible subcontractor rule, especially
where the protested firm established it would comply with the
"limitations on subcontracting" requirement.
I encourage you to read the decision and let me know
what you think. After reading the full recitation of the
facts, I'm not sure the decision passes the smell test. |
|
February 3 |
In
HDR Eng'g Inc., the ASBCA sustained an appeal by
an architect-engineer (A-E) of a government claim for professional negligence in
the design of a dam pursuant to FAR 52.236-23
because, under the three-pronged test established in
Parsons Main, Inc., the Government failed to establish that: (i) the construction contractor substantially complied with the
A-E's design in the manner intended by the A-E; and (ii) in its
design, the
A-E exercised its skill, ability and judgment negligently, instead of with
reasonable care.
GSAR Case 2024–G502:
In just one of many such situations by multiple agencies, the GSA is postponing the
effective date of amendments that appeared in the Federal Register on December
27, 2024,
in compliance with the Presidential
Memorandum titled "Regulatory Freeze
Pending Review," signed on January 20,
by President Trump. |
|
January 30 |
In
The Kennedy Collective, a case that involved contract
interpretation, the Court of Federal Claims dismissed the
contract suit, holding that a blanket purchase agreement (BPA) awarded by NOAA to
the plaintiff for PPE during COVID was not a
binding contract or a requirements contract or an indefinite quantity
contract because it was not based on mutuality of either consideration
or obligation, so the Government was not liable on the plaintiff's claim for
its inventory and disposal costs of PPE that
the plaintiff acquired in anticipation of receiving orders
that did not materialize, even though the BPA
contained some irregularities when compared to a normal BPA, e.g.,
referring to itself as a contract in several places.
In RELI Group, Inc., an unsuccessful
post-award protest against a task order award in response to an RFQ for
medical auditing services, the court held that the agency was not required to conduct
discussions with all offerors because (a) this was a FAR Subpart 8.4
procurement, (b) the solicitation specifically disclaimed the use of FAR
Part 15 procedures, and (c) the RFQ specifically contemplated
discussions with "at most" two offerors. In these circumstances,
the decision not to hold discussions with the plaintiff did not violate
"fundamental fairness" because the award was made on the basis of the evaluation of initial
proposals, and discussions were used only to confirm the initial
evaluation. |
|
January 29 |
In
NAICS Appeal of The Red Gate Group, LTD, the SBA's OHA held that the appellant lacked standing to appeal
the NAICS code for a task order solicitation limited to a pool of contractors of which
the appellant was not a member.
|
|
January 27 |
In Tiffany
Buford, the Court of Appeals for the Federal Circuit held it lacked jurisdiction over an appeal from a CBCA decision on a civilian employee federal travel
claim under 31 U.S.C. § 3702(a)(3) for reimbursement of relocation expenses.
|
|
January 23 |
In Tesla Liliana Reyes Ramirez, as in
the
John Blankson case discussed in the January 9 entry below, the CBCA
held it lacked jurisdiction over an appeal of the termination for
convenience of a personal services contract absent a monetary claim from the
contractor. |
|
January 22
| In
Size Appeal of The Povolny Group, Inc., the
SBA's OHA affirmed the Area Office's dismissal of a size protest against
a mentor-protégé JV as nonspecific because the protester acknowledged that
the protested firm was a joint venture between an SBA-approved mentor and protégé, and that
its protégé member was a certified SDVOSB, alleging only that
the firms were generally affiliated, due to the ratio between contracts awarded to three mentor-protégé ventures as compared with contracts awarded to
the protégé in its individual capacity, which is to be
expected because, in
accordance with 13 C.F.R. § 125.9(a), the mentor is supposed to
provide assistance to the protégé in performing prime contracts with the Government through joint venture arrangements.
Subsequently, the OHA
denied the appellant's petition for reconsideration
because it rehashed arguments the OHA already had rejected
and cited irrelevant case law.
|
|
January 21 |
In
MVL USA, Inc., which involved successful consolidated protests
by 12 construction companies, the Court of Federal Claims held that federal agencies'
automatic mandate that prospective contractors enter project labor agreements with unions
in order to be considered for federal construction projects exceeding $35 million based on E.O.
14063 is anticompetitive and arbitrary and capricious and violates the CICA directive that agencies must promote full and open competition in federal
procurements unless a statutory justification is properly invoked.
|
|
January 18 |
DFARS Case
2021-D006: A final rule amends the DFARS to implement
sections of the NDAA for 2021 concerning the Government's
evaluation of contractor business systems, specifically by replacing the term "significant
deficiency" with the term "material weakness," which is now
defined as follows: Material weakness means a deficiency
or combination of deficiencies in the
internal control over information in
contractor business systems, such that
there is a reasonable possibility that a
material misstatement of such
information will not be prevented, or
detected and corrected, on a timely
basis. A reasonable possibility exists
when the likelihood of an event
occurring is—
(1) Probable; or
(2) More than remote but less than
likely. . . .
DFARS Case 2022-D016: A final rule amends the DFARS to
implement section 815(b) of the NDAA for FY 2012, which, in turn, amended 10 U.S.C. 2321
(currently 10 U.S.C. 3782) by increasing
the validation period for asserted
restrictions on technical data and computer software from three years to six years and also amended 10 U.S.C.
2321 to provide an exception to the
prescribed time limit if the technical data
involved are the subject of a
fraudulently asserted use or release
restriction.
DFARS Case 2024-D002: A proposed rule would amend the
DFARS to amend multiple
DFARS parts to further implement 41
U.S.C. 1908, which requires an
adjustment every five years
of statutory acquisition-related
thresholds for inflation, using the
CPI for all urban
consumers, except for the Davis-
Bacon Act, Service Contract Labor
Standards statute, performance and
payment bonds, and trade agreements
thresholds. As a matter
of policy, DoD is also proposing to use
the same methodology to adjust
nonstatutory DFARS acquisition-related
thresholds. FAR Case
2024–001 proposes comparable changes
to acquisition-related thresholds in the
FAR. Comments are due by March 18. |
|
January 17 |
FAR Case
2023-011: A proposed rule would make several amendments
to the FAR to issue policy concerning market research, acquisition
planning, small business specialist
coordination, and to expand the use of set-asides,
during the award of, and placement of
orders against, certain multiple-award
contracts, all of this to implement the recommendations of the
OFPP in its memorandum entitled "Increasing Small Business Participation
on Multiple Award Contracts," dated
January 25, 2024. Comments are due by March 17.
FAR Case 2023-006:
A proposed rule would amend the FAR to implement the
Preventing Organizational Conflicts of
Interest in Federal Acquisition Act, which
directs the FAR Council to revise the FAR to
provide and update (a) definitions, including those related
to specific types of OCIs, including
unequal access to information, impaired
objectivity, and biased ground rules OCIs, (b) guidance and illustrative examples
related to relationships of contractors
with public, private, domestic, and
foreign entities that may result in OCIs, and
(c) illustrative examples of situations
related to the potential for OCIs.
The statute also requires that the FAR
be revised to provide agencies with tailorable solicitation provisions and
contract clauses to avoid or mitigate
organizational conflicts. Comments are due by March 17.
Similar to the UNICA-BPA JV,
LLC decision discussed in the January 14 entry below, the GAO sustained a protest by Metris LLC,
holding that it was improper for the agency to declare a firm ineligible
for award for a break in its SAM registration between time of its initial
proposal and its final proposal revision because the final proposal revision
extinguished the original proposal and the SAM registration was active at
the time
of the final proposal revision and from then through award. |
|
January 16 |
In
DecisionPoint Corp., an unsuccessful post-award protest of the
award in a SDVOSB set-aside procurement that permitted
teaming with large business subcontractors, the Court of Federal
Claims held that: (i) the respective functions of the
awardee's team members were clearly stated and were in line with the
solicitation's requirements, including the requirement that offerors demonstrate that they would
"successfully integrate and coordinate all [contract] activities" under the contract, especially where the SDVOSB/prime contractor would fill
all management positions, would comply with the limitations on
subcontracting requirement by incurring more than 50% of the labor
costs, and certified in its proposal that it agreed with all terms, conditions, and provisions in the solicitation, including
the small business qualifications; (ii) the agency gave a rational explanation for its adjectival
rating of the awardee's past work experience as "somewhat relevant"
under the Past Performance evaluation, especially where the plaintiff
conceded its own calculations of what the awardee's relevancy
rating should be were wrong; and (iii) the agency followed the solicitation's
requirement by evaluating the past performance of the awardee's
team members as
a whole, rather than separately, as advocated by the plaintiff.
br>
The GAO sustained a preaward protest by The Mission
Essential Group, LLC, finding that the use of lowest-priced-technically-acceptable
(LPTA) source selection procedures for the acquisition was improper
because the agency had not satisfied the following requirements of DFARS section 215.101-2-70:
(i) the solicitation did not reasonably define the minimum
requirements for the required services "clearly and comprehensively"
or
express the requirements "in terms of performance objectives, measures, and standards that would
be used to determine the acceptability" of an offer; (ii) the agency had
not established
that “[n]o, or minimal value will be realized from a proposal that exceeds the minimum
technical or performance requirements"; and (iii) there was no determination from the agency that the lowest price
would reflect full life-cycle costs. The GAO was unimpressed
and unpersuaded by the facts that the solicitation had been
recommended by the agency's complexity analysis tool (CAT)
or that the agency had used this model on other similar
solicitations, including those involving this protester.
FAR Case 2024-007: A proposed rule would amend the FAR to
clarify that a
contracting officer’s decision to set aside
or not set aside an order under a
multiple-award contract is not grounds
for protest. Specifically, the rule would add the
following paragraph (a)(10)(iv) to FAR 16.505:In accordance with 15 U.S.C.
644(r), a contracting officer’s decision to
set aside or not set aside an order for
small business concerns is an exercise
of discretion granted to agencies and not
a basis for protest. However, this does
not preclude the filing of a protest of
such an order if such a protest would
otherwise be authorized on a separate basis recognized in accordance with
paragraph (a)(10)(i) of this section.
Comments are due by March 17. |
|
January 15 |
In
Size Appeal of CC Software, Inc., the SBA's OHA
held that, even though the Area Office's analysis was deficient, its errors were
harmless because it reached the correct conclusion that the
challenged firm failed to comply with nonmanufacturer rule where,
analyzed in accordance with the requirements of 13 C.F.R. § 121.406(b),
the firm admitted it would subcontract the manufactured items to a
large business not located in the United States and where the
challenged firm was plainly not primarily engaged in the retail or wholesale trade
that normally sells the type of item being supplied
and did not claim that it would take ownership or possession of the equipment.
|
|
January 14 |
The GAO sustained a protest by UNICA-BPA JV,
LLC
because, although the agency could have declared the firm ineligible for award for lack of
a SAM
registration at the time of its initial offer, the agency allowed it
to remain in the competition and later to submit a revised
offer after discussions, at which time it had a valid SAM
registration.
|
|
January 12 |
In
VSBC Appeal of Elev8 Mobility Inc., the SBA's
OHA held that the SBA had erred in denying a firm's
application for certification as an SDVOSB because:
(i) the SBA misread the appellant's Stock Ledger, which showed that the Qualifying Veteran purchased
the required stock
shares, correctly issued the stock certificates, and was the 100% owner at the time of the firm's application; and (ii) the appellant's Bylaws superseded the provisions of
all the prior operating agreements which the SBA had faulted.
|
|
January 11 |
FAR Case
2021-015: The proposed rule to amend the FAR to
implement section 5(b)(i) of Executive
Order (E.O.) 14030 ("Climate-Related
Financial Risk") to consider requiring
major federal suppliers to publicly
disclose greenhouse gas
emissions and climate-related financial
risk and to set science-based reduction
targets has been withdrawn.
The Department of State has
withdrawn proposed
amendments to its acquisition regulation (DOSAR) prohibiting
discrimination against: (i) end-users of supplies or services
or in certain employment decisions
involving persons employed in the
performance of a covered contract and
funded in whole or in part with foreign
assistance funds; and (ii) beneficiaries or potential beneficiaries of such
funds. |
|
January 9 |
FAR Case
2023-021:
The proposed rule to
amend the FAR entitled "Pay Equity and
Transparency in Federal Contracting" and the proposed OFPP Policy on which it
was based have both been withdrawn.
In
John Blankson, the CBCA held it lacked CDA jurisdiction over an appeal from
a Contracting Officer's letter terminating a contract for
convenience even though that letter was labeled a COFD, notified the
contractor of its appeal rights, and explained that the termination was based
on certain contractor actions criticized by the Contracting Officer. |
|
January 8
| In
ITegrity, Inc.,
an unsuccessful post-award protest
by the incumbent, the Court of Federal Claims held that in accordance
with the solicitation's Past Performance evaluation scheme,
the agency (a) properly considered the two (of three) plaintiff's references
the agency found relevant, (b) did not penalize the plaintiff for the
reference found irrelevant, (c) evaluated the two relevant references as
a whole, including subcontracts, and (d) was not required to limit its
evaluation to the single most relevant reference submitted by
the plaintiff (its incumbent contract), especially where the current
solicitation exceeded the prior contract in scope
and complexity. The court found that, in any event, the plaintiff was not prejudiced by
the Past
Performance evaluation adjectival rating because the best value trade-off
specifically found the awardee's Past Performance submission to be
superior, and the plaintiff's lower price was evaluated (as the solicitation
required) as significantly less important than Past Performance: In reviewing an evaluation of past performance information in a negotiated procurement,
"the greatest deference possible is given to the agency – what our Court has called a
'triple
whammy of deference.'" Gulf Group Inc. v. United States, 61 Fed. Cl. 338, 351 (2004) (quoting
Overstreet Elec. Co. v. United States, 59 Fed. Cl 99, 117 (2003)) . |
|
January 6 |
In Science and Technology Corp.,
an unsuccessful post-award protest, the Court of Federal
Claims faulted the plaintiff for failing to provide required
information in multiple sections of its proposal.
Specifically, the court held: (i) there were rational bases for
the agency's
upward adjustment of the plaintiff's proposed costs in the cost realism
analysis because the plaintiff failed to provide sufficient information to
support them; (ii) the court would not accept the plaintiff's current explanations
for its costs because they had not been
included in its proposal; (iii) the agency was not required to hold discussions
concerning the missing information where the solicitation clearly stated
the agency did not intend to hold discussions and the
solicitation clearly required the explanatory data
the plaintiff failed to provide; (iv) the agency was not required to seek clarifications to allow
the plaintiff an opportunity to cure deficiencies in its proposal;
(v) there was a rational
basis for the agency's evaluation of the plaintiff's proposal for Mission Suitability
because, inter alia, the plaintiff's proposal lacked a clear
explanation of how it would perform the contract
requirements in this area; and (vi) there was a rational
basis for the differing Past Performance evaluations of the
plaintiff's and the awardee's proposals because the
plaintiff had failed to provide relevant explanatory
information in its proposal. |
|
January 3 |
In CAN Softtech,
Inc., which involved a bid protest, the Court of Federal Claims denied
the plaintiff's motion to reconsider the court's
earlier opinion largely
denying the plaintiff's motion to require the Government to provide
additional documents allegedly necessary to complete the Administrative
Record because, inter alia: (i) pre-decisional deliberative process records are
not properly part of the Administrative Record and, therefore, need
not be identified in a privilege log; and (ii) the plaintiff had not
provided sufficient evidence to overcome the presumption of regularity in
the Government's compilation of the Administrative Record. The
decision included cogent arguments by both sides concerning
the applicability of both CAFC precedent and precedent from
other jurisdictions, so I'm guessing eventually the CAFC
will have to weigh in to clarify the standards to be applied
in this area.
FAR Case 2019-014: A proposed rule would amend the FAR
to incorporate the
NICE Workforce Framework for Cybersecurity (NICE Framework) and additional tools
to implement it in order to describe the
workforce knowledge and skill
requirements used in contracts for
information technology support services
and cybersecurity support services in
line with E.O. 13870 ("America’s Cybersecurity Workforce"), which requires agencies to
incorporate the NICE Framework. Comments are due by March 4.
Federal Acquisition Circular (FAC)
2025-03 has
been published and includes the following three items:
FAR Case
2019-015: Effective January 17, a final rule amends the
FAR to improve consistency between
procurement and nonprocurement
procedures on suspension and
debarment, based on the
recommendations of the Interagency
Suspension and Debarment Committee. The procurement procedures on
suspension and debarment are covered
in the FAR. The nonprocurement
procedures on suspension and
debarment (i.e., Nonprocurement
Common Rule (NCR)) are covered in 2
CFR part 180 and agency implementing
regulations.
FAR Case
2020-016: Effective January 17, a final amends the FAR
to implement changes previously made by the SBA requiring small
business concerns to rerepresent their
size and/or socioeconomic status for
orders placed under multiple-award
contracts under certain circumstances.
FSS contracts are
exempt from this mandatory
requirement; however, the Contracting Officer continues to have the discretion
to require a rerepresentation for an
order. The SBA amended its regulations to
ensure that small businesses qualify for
the applicable size and/or
socioeconomic status associated with
orders placed under multiple-award contracts where size and/or
socioeconomic status were not relevant
to the award of the underlying multiple-award contract. Specifically, the SBA requires
the small
business concerns identified at FAR
19.000(a)(3) to rerepresent their size
and/or socioeconomic status for orders
set aside exclusively for small
businesses that are issued under an
unrestricted multiple-award contract,
except for those with reserves. In
addition, small business concerns must
rerepresent their socioeconomic status
for orders issued under a small business
set-aside multiple-award contract or the
set-aside part of a multiple-award
contract where the orders are further set
aside for a particular socioeconomic
category which differs from the
underlying multiple-award contract or
the set-aside part of the multiple-award
contract.
FAR Case
2023-001: Effective January 17, a final rule amends the
FAR to implement regulatory changes made by
the SBA to
add incentives for certain United States
territories under the SBA's mentor-protégé
program. Specifically, the rule implements paragraphs (a) and (d) of section 861 of the John S. McCain NDAA for FY 2019, which add Puerto Rico to the list of territories from which small businesses are eligible for preferential treatment under the mentor-protégé program. In addition, the rule implements paragraphs (a) and (c) of section 866 of the NDAA for FY 2021, which add the U.S. Virgin Islands, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (CNMI) to the list of territories from which small businesses are eligible for preferential treatment under the SBA's mentor-protégé programs. Section 866 also defines a "covered territory business" as a small business concern that has its principal office located in one of the following: (1) the U.S. Virgin Islands; (2) American Samoa; (3) Guam; or (4) CNMI. Sections 861 and 866 created two new incentives for
the mentor-protégé program for mentor-protégé pairs in which the protégé has its principal office located in the Commonwealth of Puerto Rico or is a covered territory business. Specifically, such a mentor that subcontracts to its protégé is able to receive positive consideration for the mentor’s past performance evaluation and is able to apply costs incurred for training provided to its protégé to its subcontracting plan goals. In addition, this rule implements changes
the SBA made to its regulations to clarify that: (i) subcontracting plans are not required from firms owned by an Alaska Native Corporation because they are treated as small business concerns according to statute; and (ii) prime contractors may rely on a subcontractor’s representations of its size and socioeconomic status unless the prime contractor has reason to doubt the representations. |
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January 1, 2025 |
Happy New Year! |
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