Government Contracts Monitor

Dun & Bradstreet Reports Have Limited Utility When Challenging Responsibility Determinations at the GAO

May 24, 2018

Disappointed bidders seeking to challenge a contracting officer’s affirmative responsibility determination will attempt to rely on any information that appears even arguably relevant. One common source of information to which such offerors turn is the Dun & Bradstreet (D&B) report on the awardee, under the theory that its contents can help demonstrate a lack of financial wherewithal. As the…

A Contractor with a Novated Contract Is Still a Contractor

May 17, 2018

When an awardee novates it contract to another contractor, can the new contractor assert any claim that the original awardee could have pursued? That was the question in the recent Armed Services Board of Contract Appeals (ASBCA) decision in Cooper/Ports America, LLC, ASBCA No. 61461. According to the ASBCA, the answer depends on the terms of the novation agreement. In this case, the answer was…

FY2019 NDAA Seeks to Change Definition of "Subcontract"

May 10, 2018

On May 7th, the House Armed Services Committee (HASC) made public H.R. 5515, its version of the FY2019 National Defense Authorization Act (NDAA). One of the provisions that is already generating buzz is Section 832, which would create a “precise” definition of "subcontract" in title 41, United States Code, and incorporate the new definition in title 10, United States Code. As noted by the HASC,…

In the Absence of a Definition, the Agency's Reasonable Interpretation of Terms Controls

May 3, 2018

It’s essentially impossible to submit a winning proposal if you don’t understand what the procuring agency wants to buy. But understanding what a solicitation is saying is sometimes more difficult than it seems. Offerors pursuing a contract award are sometimes disappointed to learn that their understanding of a word or phrase does not match the meaning the procuring agency intended it to convey.…

If It's Not Equal or Comparable, It's Not Awardable

April 24, 2018

    When an agency issues a request for quotations (“RFQ”) for a product with certain technical specifications, but then awards a purchase order based on an allegedly equal or comparable product, the Government must ensure the quoted products are, in fact, equal and comparable. Otherwise, the RFQ must be amended to allow all bidders to provide quotes based on the less exacting technical…

44 Minutes Is Not Much Response Time, But It Can Be Enough

April 19, 2018

One of the first things offerors look for upon receipt of a new solicitation is the response due date. Given the critical importance of timing to the proposal preparation process, offerors are naturally disappointed when the amount of time allowed is shorter than they think necessary. In cases where an offeror believes the response time is so short that it robs them of the opportunity to…

GAO Mandates Bid Protest E-Filing and $350 Filing Fee Starting May 1, 2018

April 12, 2018

The Government Accountability Office (GAO) is requiring that all new bid protests filed starting May 1, 2018, be filed electronically, using GAO’s new Electronic Protest Docketing System (EPDS).  GAO also is requiring payment of a $350 filing fee at the time of filing as a condition to acceptance and processing of a new protest.  These new requirements apply to all new bid protests, except protests…

The Government May Have the Right to Remain Silent, But Anything It Says In the Solicitation May Be Used Against It To Find a Latent Ambiguity

April 5, 2018

If the Government chooses to remain silent regarding site conditions, then it has to be consistent throughout the Solicitation.  As the recent Armed Services Board of Contract Appeals (ASBCA) decision in R.L. Persons Construction, Inc., ASBCA 60121 (March 15, 2018), makes clear, where the government makes representations about site conditions in one place but is curiously silent in others, the…

DoD Enhances Post-Award Debriefing Rights

March 29, 2018

Last Monday, the Department of Defense (DoD) Director of Defense Pricing / Defense Procurement and Acquisition Policy issued a class deviation to implement paragraph (b) and (c) of Section 818 of the National Defense Authorization Act (NDAA) for Fiscal Year 2018. That Section of the NDAA amends 10 U.S.C. 2305(b)(5) and 31 U.S.C. 3553(d)(4) to provide enhanced post-award debriefing rights for…

Short Take: Hopewell Darneille to Present at DYNET 2018, Fairmont, WV -- April 5, 2018

March 22, 2018

Hopewell Darneille, of the Firm's Washington, DC office, will be a presenter at the annual Dynamic Networking for Small Business (DYNET) Conference, a federal and prime contracting event in Fairmont, West Virginia, on April 5, 2018 at the Robert H. Mollohan Research Center.

Mr. Darneille will co-present a workshop on "SBA's 2016 Joint Venture Rules Revisited," with Melissa Loder, the…

When Employees Are Involved, Contractor Fraud Is Harder to Hide

March 22, 2018

In Poor Richard’s Almanac, Ben Franklin famously advised, “Three may keep a secret, if two of them are dead.” As evidenced by a recently announced settlement of civil False Claims Act allegations by a whistleblower, this is particularly good counsel for government contractors. When employees and subcontractors know about questionable or fraudulent practices in connection with contract…

If You Think Some Corrective Action Is Overly Restrictive, You're Right

February 15, 2018

In general, when a procuring agency responds to a protest by taking corrective action, the Government Accountability Office (GAO) does not object to the specific corrective action, so long as it is appropriate to remedy the concern that caused the agency to opt for corrective action. The recent GAO decision in Castro & Company, LLC, B-415508.4 (February 13, 2018) reminds us, however, that…