Georgia Tech Procurement Assistance Center

Contracting success in a changing government environment

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Behind many contracting issues today is the implied topic of who is or isn’t winning contract awards. In the private sector, it’s rare to attribute lack of business success to the customer. Certainly in a commercial market, industry success and failure is usually laid at the feet of company management and its ability to understand and meet market needs. Not so in government contracting.

Along with well-structured protest procedures, industry can and does appeal to government legislative representatives, investigatory bodies, contracting managers, trade groups, and agency leaders concerning any real or perceived unfair treatment before, during, or after contract performance. One regularly hears rationale that the buyer, not the seller, was at fault for lost business and revenue. It’s common practice, if not encouraged by government, for industry to openly critique customer policy, processes, strategy, requirements, and staff. These critiques include time of awards; market conditions; workforce training; communication; sensitivity to private sector concerns; selection methodology; risk mitigation; receipt of external advice (program, technical, incumbents, business, legal, trade groups, etc.); past performance criteria; and more. That’s the nature of an open and fair process.

Keep reading this article at: http://www.federaltimes.com/story/government/acquisition/blog/2015/02/25/contracting-success-changing-government-environment/23993719/

Federal Circuit’s Metcalf decision a big win for contractors

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In a recent decision, the U.S. Court of Appeals for the Federal Circuit (“CAFC”) the supervising court for the Court of Federal Claims and the Boards of Contract Appeals, among others) clarified important legal principles concerning the federal government’s duty of good faith and fair dealing and its responsibility for differing site conditions. Metcalf Construction Company, Inc. v. United States controls disputes with the federal government and also provides authority and rationale useful to contractors in disputes with any project owner, public or private.

In October 2002, Metcalf Construction, a small business based in Hawaii, was awarded a $48 million contract to design and build 212 housing units for the U.S. Navy on a Marine Corps base in Hawaii. Saying the project did not go smoothly is an understatement. Metcalf’s performance was hindered and delayed by unanticipated soil conditions and other issues made worse by the Navy’s failure to administer the contract fairly and according to its terms. By the time the Navy finally accepted the project as complete in March 2007, almost two full years after the original completion date, Metcalf had incurred costs in excess of $76 million — leaving the contractor with losses of approximately $27 million.

Keep reading this article at: http://www.mondaq.com/unitedstates/x/311802/Building+Construction/Federal+Circuits+Metcalf+Decision+a+Big+Win+for+Contractors&email_access=on

The government’s duty of good faith and fair dealing

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The long-standing principle that the federal government had the same implied duty of good faith and fair dealing as any commercial buyer was put in jeopardy by a 2010 decision of the U.S. Court of Appeals for the Federal Circuit, Precision Pine & Timber, Inc. v. U.S., 596 F.3d 817 (Fed. Cir. 2010).

There a panel of the court adopted a narrow rule seemingly limiting application of the principle to situations where a government action was “specifically targeted” at the contractor or had the effect of taking away one of the benefits that had been promised to the contractor.

Although the decision concerned a timber sales contract not a procurement contract, when I wrote it up in the May 2010 Nash & Cibinic Report (24 N&CR ¶ 22), I expressed the fear that the reasoning would be subsequently applied to procurement contracts.

My fear was realized in a construction contract case, Metcalf Construction Co. v. U. S., 102 Fed. Cl. 334 (2011). In that decision, the judge described eggregious conduct on the part of the government officials that would have been held to be a breach of the implied duty of good faith and fair dealing under many earlier cases.

Keep reading this article at: http://www.wifcon.com/discussion/index.php?/blog/47/entry-3042-the-governments-duty-of-good-faith-and-fair-dealing/ 

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