Reminder: Requests for equitable adjustment are not claims

A request for equitable adjustment (REA) is not a “claim” under the Federal Acquisition Regulation (FAR).  Although a REA and a claim can look very similar, there are important legal distinctions.

And as one contractor recently learned, the distinction between a REA and a claim can make all the difference when it comes to a potential appeal.

First things first: what exactly is the difference between a REA and a claim?

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The Dispute Continuum

New regulations will change business for Government contractors

The Administration has been active in promulgating Executive Orders (E.O.) that affect the stakeholders in the Government contracting process.  On July 31, 2014, the President signed Executive Order 13673, “Fair Pay and Safe Workplaces.”  The E.O.states that it “improve[s] the federal contracting process.” But it will create a burden for prime contractors, subcontractors, and their agency customers. It will place increased importance on avoiding any type of adverse ruling involving an employment-related or safety-related claim.

Dept. of LaborAs all Government contractors are aware, a contract may be awarded only after a federal agency determines that the prospective contractor is “responsible” in accordance with Part 9 of the Federal Acquisition Regulation (FAR). Under this E.O., a company’s compliance with 14 federal labor statutes, as well as unnamed state labor statutes, will now be a factor that agencies and prime contractors must consider prior to awarding a contract or subcontract over $500,000.

The FAR Council issued a proposed rule (FAR Case 2014-025) on May 28, 2015, amending the FAR to implement E.O. 13673.  80 Fed. Reg. 30548. On that same day, the Department of Labor (DOL) issued extensive “guidance” on the E.O.  80 Fed. Reg. 30573.  Comments on the proposed regulations were originally requested by July 27, 2015, but that deadline has been extended twice and is now August 26, 2015. Your company, or an association representing your industry, may have already filed comments on the proposed regulation; regardless, it is very important that your company focus on the requirement and take immediate steps to prepare for its implementation.

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Proposed contract bundling changes aim to increase small business contracting

As required by the Small Business Jobs Act of 2010, on June 3, 2015, the FAR Council introduced a proposed change to the FAR contract bundling requirements. 80 Fed. Reg. 31,561-01. The proposed rule aims to improve small business participation in federal contracting by clarifying existing FAR regulations that discourage agency utilization of contracting bundling. The proposed rule would require increased reporting, parses the definitions of “bundling” and “consolidating” of contracts, and requires agencies to publicly justify their decisions to bundle requirements or consolidate contract vehicles. This definitional distinction between bundling of requirements and consolidation of contracts is intended to discourage agencies from combining unrelated requirements or contracts into a single award.

Under the proposed rule, agencies that bundle contracts or requirements in excess of $2 million will face greater notification and reporting requirements. If an agency wants to bundle two existing contracts, it must first notify small businesses at least 30 days beforehand of its intent to bundle its contracts. Agencies will also be required to provide public notice of the agency’s bundling policy and a list of and rationale for any bundled requirements for which the agency solicited offers or issued an award. If adopted, the proposal’s enhanced notification requirements may afford small business contractors an opportunity to protest an agency’s improperly bundled contracts.

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Actions foreshadow uniform cybersecurity regulations for federal contractors

Two recent Executive Agency actions lay the groundwork for a FAR cybersecurity clause in 2016.

  • Government contractors should expect an amendment to the Federal Acquisition Regulation in 2016 that mandates cybersecurity clauses and standards.
  • Companies can prepare now by comparing new government standards to their existing system protections.
  • As part of this process, companies should not just be reviewing the capabilities of their information systems, but also their written information assurance policies, training materials, and employment and third-party agreements.

cyber securityFederal government contractors handling Controlled Unclassified Information (CUI) should take notice of two recent executive agency actions. Combined, they lay the groundwork for a new cybersecurity clause to be added to the Federal Acquisition Regulation (FAR) in 2016.

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New proposal would alter FAR subcontracting plan requirements

The Federal Acquisition Regulation (FAR) requires most large business contractors to have a plan approved by the government to subcontract a certain amount of their work to the various types of small business contractors (i.e., SDB, WOSB, SDVOSB, etc.). In the last few years, we have seen a noticeable increase in activity related to these subcontracting plans.

The FARSBA changed its subcontracting rules in July 2013 and since then has stepped up its audits to determine how well contractors are complying with their subcontracting plans. The FAR, which has lagged behind the updated SBA regulations, is now poised to catch up in several respects based on proposed changes released on June 10, 2015.

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Interested parties may submit written comments on this proposed rule.  Comments must be received on or before August 10, 2015 by mail to the General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F. Street NW., 2nd Floor, Washington, DC 20405.  Cite FAR case 2014-003.  

Comments also may be sent via the Federal eRulemaking portal by searching “FAR Case 2014-003.”  Select the link “Comment Now” that corresponds with “FAR Case 2014-003.” Follow the instructions provided on the screen. Please include your name, company name (if any), and “FAR Case 2014-003” on your attached document.

Federal contractors to be burdened with additional disclosure requirements if Government has its say

The U.S. Labor Department (DOL) and three federal agencies (the Department of Defense, the General Services Administration and NASA) recently issued two proposed documents relating to the implementation of Executive Order 13673, better known as the Fair Pay and Safe Workplaces Executive Order.

If enacted, these proposals would be problematic and burdensome for federal contractors; those who wish to have their voices heard on the matter have a July 27, 2015 deadline to submit comments on both documents.

The FARThe three contracting agencies issued a proposed rule amending the Federal Acquisition Regulations (FAR) intending to ensure federal agencies contract with only those contractors that they find to be “responsible sources,” i.e. those with a satisfactory record of integrity and business ethics. Under the proposed rule, affected contractors and subcontractors will be required to:

  1. disclose labor law violations within the past three years;
  2. notify workers performing under the contract how their pay is being calculated each pay period;
  3. notify independent contractors that they are being treated as such; and
  4. refrain from entering into certain pre-dispute arbitration agreements with employees or independent contractors.

The document also outlines how contracting officers, in consultation with “agency labor compliance advisors” – new positions created by the Order – will determine whether a contractor is a “responsible source.” If not, the proposal provides rules on how they can become one (e.g., requiring certain remedial measures, including a compliance agreement) or whether the contractor will instead be referred for suspension and debarment.

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Protest deadline not met because debrief not required

Yet another unwary government contractor has been turned away by GAO because it failed to file its protest on time. Unsuccessful offerors that contest evaluation issues (rather than solicitation defects) have 10 days to file protests at GAO.

GAO-GovernmentAccountabilityOffice-SealThat generally applicable 10-day deadline is tolled when a “debriefing” is required in FAR Part 15 (and certain Part 16) procurements. But that tolling rule doesn’t apply when the FAR only requires that the agency provide an “explanation” to disappointed offerors (e.g., in FAR Parts 8, 12, and 13 procurements)—and does not mandate a “debriefing.” GAO’s decision in Gorod Shtor illustrates this rule by dismissing the protest of an offeror that fell into this bid protest trap.

Gorod Shtor wanted to sell drapery making and installation services for the U.S. embassy in Moscow. Gorod Shtor submitted a proposal for an IDIQ contract with the Department of State. Importantly, the RFQ was issued as a commercial item acquisition (under FAR Part 12) in which simplified acquisition procedures were applied under FAR Subpart 13.5. Award was to be made on a lowest-priced, technically acceptable basis.

The Agency’s award notice informed the disappointed offeror that the contract was awarded to a competitor, which Gorod Shtor believed did not meet certain RFQ requirements. The notice also stated “[i]f you desire a debriefing, please refer to FAR [] 52.212-1(l)” which lists the types of information to be provided by a debriefing but does not create a right to a debriefing. Gorod Shtor requested a debriefing and was informed of “the reasons why the agency had found the vendor to be technically unacceptable.”

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Administration moves ahead with federal contractor labor law guidance

The Obama administration proposed guidance that requires prospective contractors to disclose labor law violations from the past three years before they can get a contract. But a contractor advocacy group isn’t happy about it.

Dept. of LaborOn May 28, the Labor Department issued proposed guidance and the Federal Acquisition Regulation Council issued a proposed rule to help agencies implement an executive order signed by President Obama in July 2014.

The order is meant to ensure those contractors who “repeatedly violate the rights of their workers and put them in danger, don’t get contracts and thus can’t delay important projects and waste taxpayer money,” a fact sheet that was released with the order says.

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Georgia Tech’s June courses offer insights into federal contracting

The Contracting Education Academy at Georgia Tech is offering two courses in June 2015 that offer essential insights into the federal contracting process, from both a government and a contractor point-of-view.

  • Contract Planning in the FAR – CON 090-2 – covers how the federal government plans acquisitions, conducts market research, describes agency needs, and sets priorities for the acquisition of commercial and non-developmental items.  Students learn: the policies and procedures for acquisition planning; the policies pertaining to required and preferred sources of supplies and service; how to determine the appropriate type of contract, contracting technique, and terms and conditions; what socioeconomic programs apply; how to publicize a solicitation; and how to judge a contractor’s qualifications.  Details for registering for this June 1 – 5, 2015 course can be found here:
  • Contracting Officer Representative and the Contingency Contracting Environment – COR 206/222 –  provides a comprehensive review and instruction on the role and responsibilities of the Contracting Officer Representative (COR), including ethical situations and cultural differences a COR may experience while deployed in a contingency operation.  Students learn how to: review contract terms and conditions; understand each party’s role and responsibility in contract administration; document and obtain approval for contract changes and modifications; monitor contract expenditures; conduct contract close-outs; and manage ethical and legal issues in the contingency contracting environment.  Details for registering for this June 8 – 12, 2015 course can be found here:

DAU logoAcademy identifier - gold & black w-white bkgrndThe Contracting Education Academy at Georgia Tech is an approved equivalency training provider to the Defense Acquisition University (DAU) and provides continuing education training to acquisition and government contracting professionals as well as to business professionals working for government contractors or pursuing opportunities in federal contracting.


GSA ‘turns the lights on’ at

Web designers will tell you that it’s important for a website to look like someone lives there, that it’s not a smattering of links and pages that look as if no one is home. Well, here at GSA we have turned the lights on at

Since September, GSA has been working to transform into a more comprehensive, user-friendly hub for contracting officers (COs), one that allows them to electronically search past and present versions of the Federal Acquisition Regulation  (FAR) and GSA Acquisition Manual (GSAM), and stay-up-to-date on the latest developments in federal acquisition.  In addition, the new website organizes other acquisition resources (i.e. Supplemental Regulations, Acquisition Systems, Training) into clear, comprehensive categories – providing easy access to the resources that COs use most often. photo
The General Services Administration (GSA) re-launched the website on April 13, 2015.


Are you looking for every instance of the phrase “collective bargaining” in the FAR or GSAM? Just type those words in the search engine and you’ll get just that. Do you want to know what Part 25, Subpart 10, Section 8, and Subsection 2 said in 1996? No problem. Search the “Archives” by “FAC Number” (Federal Acquisition Circular) and “Effective Date.” Do you want to know about the latest change in federal acquisition? Check out the website’s snazzy new rotating feature block, multimedia library, and “News and Announcements” section. Transformation At A Glance:

Improved Searchability  

  • FAR/GSAM Current —  COs can now search the most current version of the FAR and GSAM using keywords and an electronic table of contents. To learn more about how to search the current version of the FAR, see the media section on the home page.
  • FAR/GSAM Archives — COs can now search past versions of the FAR and GSAM by “FAC Number” and “Effective Date.” The archives go back to 1996.

To learn more about how to search past versions of the FAR, see the media section on the home page.

Real-Time Updates  

  • News and Announcements — Includes the latest press releases and blogs about federal acquisition.
  • Rotating Feature Block — Features recent changes to the FAR.
  • Multimedia Library — Includes instructional videos, speeches, and other public commentary from leaders in federal acquisition.

Additional Resources

  • Supplemental Regulations — Includes links to supplemental federal regulations for all agencies.
  • Training — Features links to training and continuous learning institutes, as well as professional organizations connected to the federal acquisition process.
  • Acquisition Systems — Includes links to other frequently-used acquisition resources like FedBizOps and the Federal Procurement Data System.

Check out the transformation here. If you have questions about the transition or suggestions on how to further transform the site, email