Georgia Tech Procurement Assistance Center

Appeals board: Contractor wasn’t exempt from state tax

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They say that two things in life are guaranteed – death and taxes – and status as a federal contractor may not exempt one from the latter, according to a recent Armed Services Board of Contract Appeals (ASBCA) decision.

In Presentation Products, Inc. dba Spinitar, ASBCA No. 61066 (2017), the ASBCA held the contractor was liable to pay a state tax, and the government had no duty to reimburse the contractor. The problem arose from the fact that the contractor did not incorporate state tax costs into its proposed price, despite being required to pay the taxes under the terms of the contract and applicable state law.

Under the terms of the firm fixed-price contract, Presentation Products Inc. (doing business as Spinitar) was to provide the Army with installation of a video conferencing system in Fort Shafter Flats, Hawaii. The solicitation included FAR 52.212-4 (Instructions to Offerors–Commercial Items), which provides, in paragraph (k): “Taxes. The contract price includes all applicable Federal, State, and local taxes and duties.”

Hawaii places a general excise tax (or GET) on businesses rather than a sales tax on customers, which is not automatically waived when the customer is the federal government. The GET is an excise tax imposed on the gross revenues of businesses “derived from the privilege of doing business in Hawaii.” Under Hawaii’s GET, businesses are not required to collect GET from their customers, but may pass it on to customers upon agreement by the customer.

Keep reading this article at: http://smallgovcon.com/claims-and-appeals/asbca-says-contractor-wasnt-exempt-from-state-tax/

Lawmakers aim to restrict use of lowest-price contracts

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A contractors group has welcomed a bipartisan House bill placed in the hopper last month aimed at curbing agency use of lowest price technically acceptable contracts.

The Promoting Value Based Procurement Act (H.R. 3019), introduced by Reps. Mark Meadows, R-N.C., and Don Beyer, D-Va., would amend the Federal Acquisition Regulation to require civilian agencies to align themselves with the Defense Department and stiffen their rationales for resorting to lowest price technically acceptable (LPTA) contracts, which have grown in use in recent years but are controversial.

“Price should not be the sole deciding factor when the federal government is purchasing complex, innovative information technology and engineering systems, where the least expensive option often may not lead to the best long-term value,” Beyer said in a statement to Government Executive. “We can help spur innovation by allowing contractors for certain high-tech procurements to compete on the strengths of their products, not the cost.”

Keep reading this article at: http://www.govexec.com/contracting/2017/07/lawmakers-aim-restrict-use-lowest-price-contracts/139306

Contractor files lawsuit over DBE-related lost $77 million bridge contract

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Arkansas_State_Highway_and_Transportation_DepartmentA Texas-based contractor has filed a lawsuit against the Arkansas State Highway and Transportation Department over the department’s cancellation of a $77.6-million bridge contract for alleged failure to document disadvantaged business enterprise (DBE) involvement efforts. The department has made a claim against the contractor’s bid bond.

The contractor, Roanoke, Texas-based Johnson Bros. Corp., had in January submitted a very low bid to replace a bridge carrying highway I-40 over the White River between Little Rock and North Little Rock. The second-low bid came in about $40 million higher.

Filed in the Pulaski County circuit court of Arkansas in Little Rock on March 9, Johnson Bros. names as defendants the state’s highway commission, the commission members individually and the department’s chief engineer. The petition requests judicial review of February administrative decisions that found the contractor’s efforts to involve DBEs in the project insufficient, reject the bid, make a claim under the bid bond and ban the contractor from rebidding on the project.

The petition also claims that the highway commission took no action on a petition to review the department’s decision and request for injunctive relief.

State officials had conditionally awarded the contract to Johnson Bros. Corp. based on the company’s low bid.

Keep reading this article at: http://www.enr.com/articles/39253-arkansas-cites-dbe-rule-and-halts-bridge-contract

What does it take to be a ‘responsive bidder’?

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In a previous article we discussed the requirement that, if it awards a public works contract, a public entity in the State of Georgia must award the contract to the “lowest responsible and responsive bidder,” unless an exception to this requirement applies.

This article addresses what it means to be a “responsive bidder.”  While responsibleness focuses on the bidder or proposer, responsiveness focuses on the bid or proposal.  Specifically, responsiveness requires that a bid or proposal respond and conform to the requirements of the invitation for bids or request for proposals (the “Bid Documents”).

Any deviation from the requirements of the Bid Documents may be considered non-responsive.  But public entities have the discretion to waive minor deviations from the requirements of the Bid Documents.  Minor deviations are a matter of form and not of substance, or they pertain to some immaterial or inconsequential defect or variation from the exact requirement of the Bid Documents.  For example, a minor deviation may occur where a bidder fails to initial a price change, or to write the solicitation number, date, and time of bid opening on its bid envelope, or to provide incidental information requested in the bid documents, such as information about its affiliates, or to include a unit price where the unit price can be calculated by dividing the line item total by the estimated quantity.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=463746

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