Government Contracts MonitorProcurement News and AnalysisContractors Need More Than A Mere Factual Coincidence To Win A Breach Of Contract Case Against The GovernmentSeptember 28, 2012 You are a subcontractor on a federal prime contract. You complain about the prime contractor to the federal agency under an alleged promise of confidentiality. You then get terminated by the prime contractor within hours of complaining to the federal agency. What do you do? You sue the federal government for breach of contract, of course. And with nothing more… The Government Cannot Hide Three Boxes of Discovery Under a Desk and Say It Is HarmlessSeptember 26, 2012 When you litigate against the Government in civil cases, you generally presume that there is an element of good faith and fair dealing when it comes to things like due process and the discovery of relevant documents. A recent case at the Court of Federal Claims demonstrated that Government attorneys are not always on their best behavior in litigation. In K-Con Building… DLA Declares: Reverse Auctions Mandatory For Competitive Contracts Over $150,000September 14, 2012 In a memo from the Defense Logistics Agency (DLA), Director Navy Vice Admiral Mark Harnitchek recently directed all field activities to award new contracts using DLA's online reverse auction tool. Over the past two years DLA has saved over $34 million through reverse auctions. Their goal is to save $8.6 billion in material costs by the end of fiscal year 2018. Noting that DLA, like other… Watch Out for Flying Pigs! GAO Permits and Grants Untimely ProtestSeptember 13, 2012 In a very rare move, GAO allowed an untimely protest under the “significant issue” exception to its timeliness rules. Cyberdata Technologies, Inc., B-406692 (Comp. Gen. Aug. 8, 2012). Generally, a protest challenging the solicitation terms must be made prior to bid closing and a protest challenging the evaluation must be made within 10 days of learning of the basis for the protest. 4… Agency Cannot Use Common Law Offsets To Recoup Overpayments When Not Authorized By StatuteSeptember 10, 2012 In Lummi Tribe Of The Lummi Reservation v. United States, No. 08-848C (Ct. Cl. Aug. 21, 2012), the U.S. Court of Federal Claims ruled that a federal agency was required to use available statutory remedies and could not use federal common law remedies of offset to recoup alleged overpayments. This case, placing limits on federal agency self-help, arises in a rather arcane context: … Federal Employees are “People” Too Under the False Claims Act – Your Investigator May Also be Your RelatorAugust 27, 2012 A federal appeals court recently asked: “Is a federal employee, even one whose job it is to investigate fraud, a ‘person’ under the False Claims Act such that he may maintain a qui tam action?” The case, See Little v. Shell Exploration & Production Company, No. 11-20320 (5th Cir. 2012), answered the question with a “yes,” holding that two government auditors whose job it was to… The Army Corps Wrongly Rejected A Timely Proposal, But Was Not “Wrong Enough” To Have To Pay The Contractor’s Attorneys’ FeesAugust 15, 2012 A recent U.S. Court of Federal Claims decision highlights the perils and absurdity associated with submitting proposals via e-mail. Watterson Construction Company responded to an RFP by the Army Corps of Engineers (“Army Corps”) to design and build “a standard barracks to house 294 persons in Fort Wainwright, Alaska.” The RFP required final, second-phase proposals to be submitted by… No Harm, No Foul - Agency’s Violation of the FAR Not Enough to Overturn AwardAugust 13, 2012 In Omniplex World Services v. United States, No. 12-249 C (Aug. 1, 2012), the Court of Federal Claims denied a bid protest even though the Court determined that the agency violated the Federal Acquisition Regulation (FAR). The Court found that the agency’s violation of the FAR did not prejudice (i.e., harm) the protestor because the protestor would have lost the contract anyway. … Energy Security for U.S. Military BasesAugust 7, 2012 In April 2012, the Obama Administration set a goal of building green energy capacity on U.S. military bases by 2025 – three gigawatts of solar, wind and geothermal power. These efforts could require as much as $20B in private funding and will create opportunities for contractors and lenders alike. Private financing may the only way to fund these kinds of projects. Why? Because… A “Spicy” Decision by the CBCA Clarifies the Role of a Contracting OfficerAugust 2, 2012 A recent food service industry decision from the Civilian Board of Contract Appeals provides some guidance regarding how a Contracting Officer should deal with potential mistakes in the bid process. In Red Gold, Inc. v. Dep’t of Agriculture, CBCA 2639 (July 6, 2012), the Board held that a unilateral mistake by the contractor was excusable and awarded $253,608. In connection with a… SBA Proposes Changes to Small Business Size Standards for NAICS Sectors 22, “Utilities,” and 23, “Construction.”July 30, 2012 The U.S. Small Business Administration (“SBA”) recently issued one Proposed Rule seeking to revise the small business size standards for 9 industries in NAICS Sector 22, “Utilities,” Small Business Size Standards: Utilities, 77 Fed. Reg. 42,441 (July 19, 2012), and another proposing the revision of size standards for 1 industry and 1 sub-industry in NAICS Sector 22,… Recent IG Report Could Lead to Much Stricter Process for SDVOSBs at DODJuly 11, 2012 Service-disabled, veteran-owned small businesses (SDVOSBs) should not be surprised if the Department of Defense (“DoD”) adopts a robust verification program for SDVOSB contractors similar to that in place at the Department of Veteran Affairs (“VA”). This Spring, the DoD Inspector General (“IG”) found that DoD had made hundreds of millions of dollars of SDVOSB set-aside and sole-source awards to… |
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