Contract Disputes Act (CDA) claims offer Government Contractors the opportunity to recover costs incurred due to Government-caused changes or delays. While the initial focus often rests on proving liability, a recent Court of Federal Claims (COFC) decision highlights the danger of failing to prove entitlement to damages.
In other words, claims can present the danger of winning the battle . . . only to lose the war.
Continue reading at: Fox Rothschild
The Court of Federal Claims’ decision in Panther Brands, LLC v. United States reminds us that (1) only contracting officers (COs), not their representatives (CORs), have authority to bind the government in contract, and (2) at-risk work is risky! Although simple in theory, in practice these principles can be complicated.
CO authority can be split between a “contracting office” and a “contract administration office.” COR authority may be clearly limited under one contract, yet indeterminate and expansive under another. Further muddying the waters, personnel titles can mean different things at different agencies: the “contract specialist” might be the full-fledged CO at one agency, but just an assistant at another. And while a COR’s – or even a three-star general’s – oral directive might have reliably represented the Government’s position in the past, as Panther shows, that doesn’t mean it will be contractually binding next time around.
Continue reading at: Kelley Drye
In its recent decision in Criterion Systems, Inc. v. U.S., , the U.S. Court of Federal Claims (COFC) denied protester’s pre-award protest challenging the Agency’s rejection of its late submission of a revised quote in response to a solicitation amendment and request for revised quotations. In this case, the solicitation provided that “[f]ailure to follow procedures or provide any of the documents or information may be considered a material omission and may adversely affect a Vendor’s evaluation or result in elimination of the Vendor from the competition.” It also provided that “LATE QUOTES WILL NOT BE ACCEPTED.” Criterion timely submitted its initial proposal and was in the competition. The Agency issued subsequent amendments to the solicitation and sought submission of revised quotes through a government portal, FedConnect, “no later than 5:00pm ET on November 21, 2018.” Each amendment and the request for revised quotes stated that “LATE QUOTES WILL NOT BE ACCEPTED.”
Criterion “created” its revised quote on the designated electronic portal at 2:36:54 PM on November 21, 2018, but it did not “submit” it until 5:01:30 PM ET, 90 seconds after the deadline for quote submission. When asked for an explanation by the Agency, Criterion indicated it may have had “latency” issues and that this was its first time submitting documents using the portal. Criterion did not provide any evidence to justify or further explain its late submission. The Agency rejected Criterion’s quote as untimely.
Criterion brought its protest alleging that the Agency’s actions in rejecting its quote were arbitrary and capricious. The Court held that protester failed to establish that there was a “significant error” in the procurement process:
“Ninety seconds late may appear to be a minimal infraction, but deadlines are set for a reason, and an agency’s strict adherence to a deadline places all bidders on an equal footing and avoids the sorts of issues Criterion is seeking to raise here. Further, Criterion’s failure to submit a timely bid was entirely within its own control. The Agency’s refusal to deviate from the express RFQ terms is not arbitrary, capricious, or contrary to law.”
Criterion makes clear that all those who compete in procurements must comply with the express terms of the solicitation. This is an essential truth in government procurement. A bidder’s or offeror’s failure to comply with such terms can result in its loss of the opportunity to be considered for award.
Read more at: Government Contracting Matters
The Boeing Company v. United States, Civil No. 17-1969C (May 29, 2019) reveals the Court of Federal Claims’ (COFC) interpretation of the Cost Accounting Standards (CAS) statute as primarily benefiting the government, and directs contractors challenging the Federal Acquisition Regulation (FAR) 30.606(a)(3)(ii) prohibition on offsetting the impact of simultaneous cost accounting practice changes to raise those challenges in a pre-award protest or risk waiver. Importantly, the court’s decision could have broad implications, requiring contractors to protest the applicability and interpretation of any extra-contractual FAR provisions—not just those involving the CAS statute—that expound upon a FAR Part 52 contract clause.
Adopting a novel theory rooted in the US Constitution, The Boeing Company (Boeing) filed an action under the Contract Disputes Act (CDA) alleging that the FAR 30.606 offset prohibition is an “illegal exaction” in violation of the CAS statute, which specifically prohibits windfalls to the government resulting from changes to a contractor’s cost accounting practices. Boeing also claimed that FAR 30.606 was “extra-contractual” and therefore, should not preclude Boeing from offsetting changes that increase costs to the government from those that decrease costs. The COFC dismissed Boeing’s constitutional claim for lack of subject matter jurisdiction and concluded that Boeing had effectively waived its contract claims upon failing to raise them in a pre-award protest or during negotiations with the government.
Continue reading at: Arnold & Porter
The government rescinded all awards made in the $15B Alliant 2 Small Business governmentwide acquisition contract for IT services procurement last week.
The move follows an order from the Court of Federal Claims that the General Services Administration must rescore every submission it received to address errors raised in protest from Virginia-based technology company, Citizant Inc.
The Alliant 2 SB is part of one of the largest federal IT opportunities of the decade. In February 2018, GSA announced its award to 81 small business, which federal agencies would be able to access for integrated IT solutions around their “current and evolving needs.” After the announcement, protests from dissatisfied bidders ensued.
In March 2018, Citizant, Inc. protested the bid to the Government Accountability Office. GAO dismissed the file in May 2018, but Citizant took complaints to court and won this week, resulting in the rescission.
Keep reading this article at: https://www.nextgov.com/cio-briefing/2019/03/gsa-rescinds-all-awards-made-15b-alliant-2-small-business-contract/155869/
Protesters remained active and fairly successful in their challenges to agencies’ procurement actions at the Government Accountability Office (GAO) in 2018, while protests at the Court of Federal Claims spiked.
According to Ralph White, Managing Associate General Counsel for Procurement Law at GAO, presenting at West’s Government Contracts Year In Review Conference, the number of protests at GAO held steady, despite the mid-year implementation of a $350 filing fee. A previous blog post with GAO statistics can be found here. White credited a number of competing factors with the steady numbers. The filing fee, enhanced Defense Department debriefings and the suspension of one particularly active “nuisance protester” likely worked to reduce the number of protests, while the highly competitive procurement environment, increased DoD spending, an increase in the dollar threshold for GAO’s task order jurisdiction and the steady but significant success rate for protesters worked to increase the number of protests.
That success rate – the number of protests where the protester sees some kind of remedy, whether from a sustain decision or agency corrective action – remains around 44 percent, similar to previous years, White said. For the third consecutive year, not a single agency refused to follow a recommendation issued by GAO.
The Court of Federal Claims saw a marked increase in protests in 2018 – 179, compared to 129 in 2017, a 40 percent increase.
Keep reading this article at: http://www.mondaq.com/article.asp?articleid=785248
The perception that bid protests are mucking up the federal procurement process is one of those urban myths that will not die, like how Paul McCartney died in a car crash in 1966 or that the Air Force hides away UFOs in the desert.
Despite the fact that these “theories” are continually disproven, the myths just will not go away. Plenty of people swear they hear “Paul is dead” when you play “Revolution No. 9” backward.
For instance the most recent attempt to limit bid protests to improve acquisition is from the Section 809 panel. It recommended making substantial changes to the federal bid protest process by limiting vendors to filing before the Government Accountability Office or the Court of Federal Claims, but not both, as well as prohibiting protests of contracts for “readily available” products or services of less than $15 million.
The Senate Armed Services Committee a few years ago tried to “restrain” bid protests by making it harder on contractors to bring complaints before the GAO.
Despite the well-known fact that protests impact less than 1 percent of all procurement actions a year, there is this ever-present concern that bid protests are fouling up the system and a major part of the reason why federal contracting takes so long.
Keep reading this article at: https://federalnewsnetwork.com/reporters-notebook-jason-miller/2019/02/gsa-launches-an-enhanced-debriefing-pilot-but-why-not-just-make-it-permanent/
As the Senate Armed Services Committee last week began its markup of the fiscal 2019 National Defense Authorization Act, a contractors group was pushing committee leaders to reject a Pentagon proposal to curb time-consuming bid protests.
Seeking to eliminate what some senators call “frivolous” protests and what acquisition officials call “forum shopping,” the Defense Department this spring pressed for limiting the ability of contractors who unsuccessfully sought an award and are rejected by the Government Accountability Office to then continue their protest at the Court of Federal Claims. The plan would limit the so-called “second bite at the apple” in the court to within 10 days of knowing (or when they should have known) they had the basis for a protest.
Keep reading this article at: https://www.govexec.com/contracting/2018/05/contractors-oppose-proposed-limit-federal-bid-protests/148368/
The Defense Department is proposing legislation to impose new constraints on government contractors’ ability to protest federal agencies’ award decisions, including by rolling back their rights to file bid protests in federal court.
Currently, companies who believe an agency mishandled a contract award have two independent forums to file protests: the Government Accountability Office and the U.S. Court of Federal Claims (COFC). But some firms opt to take their cases to both.
If, for example, GAO denies or dismisses their protest, they still have the right to file a new claim at the COFC.
DoD’s proposal would essentially eliminate that option by requiring contractors to bring cases to COFC within 10 days of the agency’s award decision: the same deadline used by GAO. Since GAO has up to 100 days to sustain or deny a protest, a company could not wait and use the court as a backstop if it loses its case at GAO.
Keep reading this article at: https://federalnewsradio.com/defense-main/2018/05/pentagon-seeks-to-limit-bid-protests-in-federal-court/
The SBA’s strict SDVOSB ownership rules can produce “draconian and perverse” results, but are nonetheless legal, according to a federal judge.
In a recent decision, the U.S. Court of Federal Claims condemned the SBA’s SDVOSB unconditional ownership requirements, while holding that the SBA was within its legal rights to impose those requirements on the company in question.
The Court’s decision emphasizes the important differences between the SBA and VA SDVOSB programs, because the Court held that although the company in question didn’t qualify as an SDVOSB under the SBA’s strict rules, it was eligible for VA SDVOSB verification under the VA’s separate eligibility rules.
The Court’s decision in Veterans Contracting Group, Inc. v. United States, No. 17-1188C (2017), is the third in a series of ongoing battles between the SBA and a self-certified SDVOSB. The cases involved an Army Corps of Engineers IFB for the removal of hazardous materials and the demolition of buildings at the St. Albans Community Living Center in New York. The Corps set aside the IFB for SDVOSBs under NAICS code 238910 (Site Preparation Contractors).
Keep reading this article at: http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/court-upholds-draconian-and-perverse-sba-sdvosb-ownership-rules/
Breaking News: On Jan. 30, 2018, the SBA released its proposed consolidated rule for SDVOSB eligibility. See details here: http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/sba-proposes-consolidated-sdvosb-eligibility-rules/
