Government Contracts Monitor

Court Sanctions Agency for Falsifying Documents, but Allows It to Cancel Procurement Without Explanation

September 30, 2014

The Court of Federal Claims (COFC) recently issued two decisions on the same day in Coastal Environmental Group, Inc. v. United States, COFC No. 13-71C, which graphically demonstrate the heavy burdens a bid protestor has in making its case and overcoming (i) the discretion afforded the Government in procurement matters, and (ii) the presumption that Government officials act in good faith and in…

Short Take: Don’t Claim Status You Don’t Have – It Can Land You in Jail

September 30, 2014

A federal grand jury in Greeneville, Tennessee recently returned an indictment against four individuals for fraud against the United States.  If convicted, they each face potential terms of over 50 years. The indictment also seeks forfeitures (that is, the return) of between $5 and $15 million in funds fraudulently obtained by three of the individuals. 

Details of the alleged crimes…

Clarify Ambiguities or Face the Consequences

September 30, 2014

Crafting winning proposals can be a tricky business, even when you think you understand the requirements set forth in the solicitation.  The recent decision by the Government Accountability Office (GAO) in VSE Corporation, B-408936.5 (August 25, 2014), serves as a reminder that, if there is any ambiguity at all, it’s always better to ask questions and clarify your understanding than to pick…

If a Prime Contractually Agrees to Sponsor a Sub’s Claims or Protests – Does it End There?

September 23, 2014

The recent decision of the Armed Services Board of Contract Appeals (ASBCA) in Binghamton Simulator Co., ASBCA No. 59117, provides an interesting twist on a frequent issue in drafting subcontracts and teaming agreements – namely, how to enable the subcontractor to pursue an appeal of an adverse contracting officer final decision, or file a bid protest, and particularly in the event that the prime…

Include Original Bid Guarantees with Your Bid or be Excluded

September 23, 2014

In the recent case of Hamilton Pacific Chamberlain, LLC,  B-409795  (August 11, 2014), interesting facts concerning a bid guarantee resulted in a robust analysis by the Government Accountability Office (GAO). But in the end the GAO reiterated a long-standing rule: Where an invitation for bids (IFB) requires submission of a bid guarantee, a bidder’s failure to submit an original bid…

Short Take: What Should Contractors Be Paid?

September 23, 2014

The Bipartisan Budget Act of 2013 (the Act), enacted Dec 26, 2013, sets a ceiling of $487,000 per year on the amount the Government will reimburse a contractor for employee compensation on both defense and civilian agency contracts. This ceiling is to be adjusted each year to reflect the change in the Employment Cost Index for all workers, as calculated by the Bureau of Labor Statistics (BLS).…

Short Take: Should the Government Collect all this Cost and Pricing Data?

September 16, 2014

The Truth in Negotiations Act requires the Government to obtain certified cost or pricing data under certain circumstances. Although contractors may request an exemption from this requirement, exemptions are only available under certain limited conditions and even then other information must be provided instead. 

The requirement for certified cost and pricing data has resulted in over…

RFP Requirements Can Restrict Competition as Long as They Are Reasonable

September 16, 2014

Contractors often want to argue – sometimes with good reason – that restrictive RFP requirements are unwise and ill-conceived and should be modified so that competition is not unduly constrained. The recent decision in AAR Airlift Group, Inc., B-409770  (July 29, 2014) serves as a reminder, however, that no matter how righteous a contractor believes its challenge to RFP requirements to be,…

Department of Defense’s Confession: Declining Competition

September 16, 2014

The Under Secretary of the Department of Defense recently issued a memorandum admitting what many of us have long suspected:  “Over the past four years, the Department has not met its competition goals. In fact, we have experienced a declining competition rate, and we must take action to reverse this trend.” acq.osd.mil/USA004313-14-ATL.

The memo leads by recognizing that “[c]ompetition is…

Don’t Let Your Award Be Protested Without You – Intervene and Participate

September 8, 2014

A recent protest saga began when Motorola Solutions, Inc. (Motorola) challenged the U.S. Army’s award of a land mobile radio contract to Harris Corporation (Harris).  Motorola claimed that Harris did not propose a radio approved by the Michigan Public Safety Communications System (MPSCS), a requirement of the Army’s Request for Proposals (RFP).  Harris did not intervene in the…

Short Take: Challenging a Default Termination – Be Timely or Be Out

September 8, 2014

A recent decision highlights the importance of understanding how and when a contractor can challenge a termination for default. In Guardian Angels Medical Service Dogs, Inc. v. The United States, COFC No. 14-20C, decided August 29, 2014, the contractor did not appeal the Contracting Officer’s (CO’s) default termination to the Court of Federal Claims (COFC) within the required 12 month period and,…

Indefinite Quantity Contracts -- Risks and Realism

September 8, 2014

Two recent decisions by the Armed Services Board of Contract Appeals (ASBCA) reinforce the importance of understanding both the limitations and risks of indefinite quantity (IQ) or indefinite delivery/indefinite quantity (IDIQ) contracts, and not being blinded by the large dollar numbers frequently contained in the maximum order provision of such contracts. 

By way of background, and as the…