Government Contracts Monitor

ASBCA Allows Tolling of Appeal Period Where Contracting Officer Fails to Advise Of Right to Appeal

July 18, 2016

Under the Contract Disputes Act (CDA), a contractor who receives a negative decision from a contracting officer may appeal the decision to the Armed Services Board of Contract Appeals (ASBCA). ASBCA’s jurisdiction over appeals is predicated upon the proper submission of a claim by a contractor to a contracting officer for decision, the issuance of an adverse decision on the claim by the…

Perilously Pricey Protests – Which Way Will Congress Go?

July 17, 2016

On June 14, 2016, the Senate passed the National Defense Authorization Act for Fiscal Year 2017, S. 2943 (NDAA). The bill includes what Senator Harry Reid characterizes as “several needed reforms” notably, for our readers, bid protest reforms. The bill includes language that would amend statutes related to bid protests filed with the Government Accountability Office (GAO) to require a “loser…

Short Take: Treasury Decreases Prompt Payment & Contract Disputes Interest Rates, Effective 7/1/16

July 11, 2016

The Treasury Department has announced in the Federal Register Notice  that the Prompt Payment Act interest rate is being decreased to 1-7/8% per annum for the period of July 1, 2016 through December 31, 2016.  This interest rate is used to calculate the interest penalty paid by the Government when it fails to timely pay contractors for goods and services, as well as interest due under the Contract…

As FOIA Turns 50, President Obama Signs Reform Bill

July 11, 2016

The Freedom of Information Act (FOIA) was signed into law by President Lyndon Johnson half a century ago. On June 30, the President signed the FOIA Improvement Act of 2016, amending the law in any effort to increase government transparency and public access to government records.  Under the Act, federal agencies must now make disclosable records available in an electronic format.  Where records…

Timing Is Everything When Considering Service Contract Act Price Adjustments Based on CBAs

July 5, 2016

Although it may seem unusual, when an agency exercises an option on a contract incorporating the Service Contract Act (SCA), the option is considered a successor contract for the purposes of applying the SCA provisions. In other words, the contractor becomes its own successor, which in some cases may entitle it to a contract price adjustment for increased wages and fringe benefits. As the CBCA…

Short Take: FCA Civil Penalties Adjusted Upward for Inflation

July 5, 2016

The US Department of Justice (DOJ) recently issued an interim final rule increasing the range of penalties for violations of the False Claims Act, 31 U.S.C. §3729 et seq. (FCA). In accordance with the Bipartisan Budget Act of 2015, DOJ has adjusted for inflation the civil monetary penalties assesssed or enforced by DOJ components.

As a result, the penalty range for FCA violations has changed from…

Short Take: BIS Revises Administrative Enforcement Guidance to Improve Predictability

June 29, 2016

Last week, the Department of Commerce Bureau of Industrial Security (BIS) issued a final rule amending the Export Administration Regulations (EAR) to update its Guidance on Charging and Penalty Determinations in Settlement of Administrative Enforcement Cases (the ‘‘BIS Guidelines’’).

The new rule rewrites the BIS Guidelines, which are found in Supplement No. 1 to part 766 of the EAR and identify…

Affiliation and Size: What Revenues Count in a Size Determination?

June 27, 2016

As most federal contractors are well aware, significant contracting opportunities are routinely set aside for small businesses, to the exclusion of large businesses. Confusion remains, however, concerning the concept of affiliation -- and how it can impact whether a given company is eligble for small business set-asides. The Small Business Administration (SBA) Office of Hearings and Appeals (OHA)…

Sometimes the Facts Revealed During a Protest Demonstrate a Lack of Government “Monkey Business”

June 21, 2016

Disappointed bidders always have to decide whether or not to protest based on a limited set of facts – those known at the time to decision is made. Of course, this means that even protest grounds that appear objectively sound at the time of protest can later be undercut by facts revealed during the protest process. This appears to be precisely what happened in the recent Government Accountability…

Short Take: Annual Report on the Status of Federal Suspension and Debarment

June 19, 2016

Every year, the Interagency Suspension and Debarment Committee (ISDC) reports to Congress concerning statistics on federal suspension and debarment. The ISDC released 2016’s annual report on June 15. The 10 page release shows that federal agencies completed a total of 918 suspension actions and 1,873 debarments in FY 2015.  These figures are somewhat lower than those reported in 2014, when 1,009…

Short Take: New Rule on Paid Sick Leave for Federal Contractors

June 13, 2016

The Seminannual Agenda of Regulations issued by the Department of Labor (DoL) describes the DoL’s plans for implementing the terms of Executive Order (EO) 13706, Establishing Paid Sick Leave for Federal Contractors, which the President issued on September 7, 2015.  According to the Agenda, the DoL’s final rule should be issued in September, and will require executive departments and agencies to…

Don’t Get Eliminated on a Technicality - But Don’t Play Games in an Attempt to Meet Solicitation Requirements

June 12, 2016

A recent decision by the Government Accountability Office (GAO) illustrates the importance of properly meeting a solicitation’s requirements in full, to include page limits and font sizes. While these may seem like insignificant details, failure to follow the instructions to the letter can mean the difference between a proposal being evaluated on its technical merits and being eliminated from…