Government Contracts Monitor

The Ongoing Dispute between the GAO and the VA over Set-Asides and the Limitations of the GAO’s Authority

September 7, 2012

The GAO and the Department of Veterans Affairs (VA) have been at loggerheads since last October over whether the Veterans Benefits, Health Care, and Information Technology Act of 2006, 38 U.S.C. §§ 8127-8128 (2006), (the VA Act) requires set asides for service-disabled veteran-owned small business (SDVOSB) in Federal Supply Schedule (FSS) procurements.  This longstanding dispute highlights…

SBA’s New Joint Ventures and Contract Award Rules Clarified

September 4, 2012

We have found that many companies are confused by changes to SBA’s Joint Venture rules, particularly concerning the contracts for which each joint venture may bid and receive before the parties must establish a new, separate, joint venture.  Such confusion results in companies either losing bidding opportunities or incurring unnecessary costs to set-up successive new joint ventures…

The Proposed New FAR Rule Establishing Basic Requirements for Safeguarding Contractor Information Systems Is Finally Here

August 31, 2012

Last week, the Department of Defense (DoD), the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) proposed a long-awaited new rule establishing requirements for the safeguarding of contractor information systems that contain or process nonpublic Government information.  Basic Safeguarding of Contractor Information Systems, 77 Fed. Reg. 51496…

Proposed Change to FAR Will Clarify Requirements for Setting Aside R&D Contracts for Small Businesses

August 31, 2012

DoD, GSA, and NASA issued a proposed rule to amend the Federal Acquisition Regulation (FAR) to clarify that contracting officers should set aside research and development (R&D) contracts for small businesses when the market research indicates there are small businesses capable of providing the best scientific and technological approaches.  Small Business Set Asides for Research and…

Ask For a Debriefing Whether You\'re Happy or Sad

August 28, 2012

Too often successful offerors neglect to ask for a debriefing.  They are in the habit of requesting a debriefing only when they are a disappointed offeror.  This is a mistake.  It is always important to have as much information as possible about the award decision.

In a case decided earlier this month, a contractor learned the hard way how important it is to have a debriefing.…

Federal Employees are “People” Too Under the False Claims Act – Your Investigator May Also be Your Relator

August 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…

DoD Seeks to Change What It Means to “Produce” a Specialty Metal

August 23, 2012

Based on a comments process mandated by Section 823 of the FY 2011 National Defense Authorization Act (NDAA), the Department of Defense (DoD) recently proposed to modify the definition of “produce” as it applies to the production of “specialty metals” (certain steel, titanium and other metal alloys).  77 Fed. Reg. 43474 (July 24, 2012).  The proposed change is the latest development…

Understanding the Experience Factor – Another Losing Protest

August 20, 2012

A recent bid protest at the GAO, Sigmatech, Inc., B-406288.2 (Comp. Gen. July 20, 2012), reveals the importance of clearly and explicitly demonstrating that you meet the RFP criteria.  Sigmatech protested the Army’s conclusion that its competitor – CAS – had superior experience (CAS was rated outstanding; Sigmatech very good). The protest centered on Sigmatech’s allegations that: (i)…

No Contracting Authority Means No Contract With the Government

August 16, 2012

Recently the Civilian Board of Contract Appeals dismissed an appeal filed by a contractor that performed over a quarter million dollars of emergency restoration services to a Veterans Administration hospital in Philadelphia because the contract documents the contractor performed under were executed by an agency employee without contracting authority.

The case, CPR Restoration, LLC, v. Department…

The Army Corps Wrongly Rejected A Timely Proposal, But Was Not “Wrong Enough” To Have To Pay The Contractor’s Attorneys’ Fees

August 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 Award

August 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. …

Getting Paid By The Government For All Hours Actually Worked By Salaried Employees

August 10, 2012

Who says you cannot bill the government – and get paid - for all hours actually worked by salaried employees, including hours in excess of forty hours per week?  Under certain circumstances and using certain contract clauses, the Armed Services Board of Contract Appeals (“ASBCA”), in GaN Corporation, ASBCA No.  57834 (July 13, 2012), says this is perfectly acceptable.

The…