THE EMAIL MISTAKE-REDUX

This blog has previously noted the importance of confirming that any proposal submitted by email has been received either through a return email or a telephone call to the intended recipient. See blog on this site “Protester Has Burden of Showing Timely Electronic Delivery” (Oct. 19, 2017). Follow this sequence from a recent Government Accountability Office (“GAO”) bid protest to see how strange the whole email process can get. This protest concerned an Air Force (“USAF”) cyber security/cloud migration contract, ManTech Adv. Sys. Int’l Inc., B-414985, Oct. 20, 2017. The solicitation stated that proposals must be submitted electronically via email to the contract specialist at CSIACTAT@us.af.mil no later than 1:00 pm Eastern time on July 17, 2017. 1:25 pm-ManTech sent its proposal via email to … Continue reading

GAO SUSTAINED PROTESTS DECREASE SIGNIFICANTLY IN 2017

The Government Accountability Office (“GAO”) released its annual bid protest report to the Congress for fiscal year 2017 on November 13, 2017 (B-158766). The GAO actually received 2,672 protests in FY2017, but dismissed or immediately denied nearly 80 percent of them, while actually considering and issuing decisions on only 581protests, known as “merit decisions.” The GAO sustain rate decreased six percent, from an unusually high 23 percent in 2016 to 17 percent in 2017. The actual number of sustained protests declined from 139 in 2016 to 99 in 2016. All of this took place while the number of actual bid protest decisions decided on the merits remained about the same (616 in 2016 and 581 in 2017). The GAO bid protest statistics for fiscal years … Continue reading

HOW TO SIGN YOUR CLAIM AND CERTIFICATION

The Contract Disputes Act of 1978 (“CDA”) contains a few simple requirements for claims over $100,000, including certification. Yet to this day contractors have consistently violated the certification requirements and, as a result, had their claims dismissed by the Boards and Courts. This happened most recently in NileCo Gen’l Contracting, LLC, ASBCA No. 60912, Sept. 22, 2017. It seems as if a technology-crazed world sometimes refuses to use the most low-tech machine of all—the pen—because the pen is just not electronically convenient. Hopefully, government contractors will read this blog. The CDA states that each claim for more than $100,000 must be certified to state that: The claim is made in good faith; The supporting data are accurate and complete to the best of the contractor’s … Continue reading

AFTER THE AFTERTHOUGHTS: REAs VERSUS CLAIMS

On November 14, 2017, a PCI Consultant posted a blog article about Requests for Equitable Adjustments (“REA”) versus claims. It seems to me that the original discussion and the blog overlooked an important problem in contract administration today—the failure of contracting officers (“CO”) to do their duty to review and engage in negotiations on both REAs and claims. The blog said: On September 28, 2017, Professor Ralph Nash and Tim Sullivan hosted a virtual classroom on the topic of Requests for Equitable Adjustments and Claims. Following the virtual classroom, I interviewed Professor Nash to ask questions related to the discussion during the training. Question: I would assert that if examined just from the perspective of reading case law on the issue, the difference between an … Continue reading

GAO DISMISSES PROTESTS IF YOU DON’T FILE TIMELY COMMENTS ON THE AGENCY REPORT

The Government Accountability Office (“GAO”) adheres strictly to its own rules, even if they result in a dismissal of a protest where the protester has made a procedural error. In two recent cases, the GAO dismissed protests where the protesters failed to timely file comments on the agency reports, and never requested an extension of time to file those comments. In two cases, GAO confirmed its strict adherence to the bid protest rules. In PennaGroup, LLC, B-41480.2 et al, August 25, 2017, the GAO dismissed a protest where the protester did not file comments or request an extension of time to file comments by the due date established in the GAO “development letter” (the letter GAO sends out scheduling the agency report, protester comments, and … Continue reading

SUBCONTRACTOR COSTS: CAN THE PRIME BILL FOR VACATION COSTS, EVEN IF INVOICED SEPARATELY?

Is a prime contractor entitled to bill for vacation costs incurred by and owed to its subcontractor on a time and materials contract, even if they were invoiced separately from the subcontractor’s salary cost? The Armed Services Board of Contract Appeals (“ASBCA”) answered “yes,” explaining that the application of the clause at Federal Acquisition Regulation (“FAR”) 52.232-7, “Payments Under Time and Materials and Labor Hour Contracts” so mandates. Access Personnel Servs, Inc., ASBCA No. 59900, September 7, 2017. Access used a subcontractor to perform a portion of its Navy contract for personnel support services. The subcontractor, Professional Services of America, invoiced Access separately for its personnel’s vacation pay, instead of incorporating the vacation pay into the hourly rates that it billed Access. Access advised the … Continue reading

CHANGES CLAUSE CAN’T BE USED TO CHANGE TERMS AND CONDITIONS, INCLUDING PAYMENT TERMS

The Federal Acquisition Regulation (“FAR”) defines “change order” to mean “a written order, signed by the contracting officer, directing the contractor to make a change that the Changes clause authorizes the contracting officer to order without the contractor’s consent.” FAR 2.101. The question is, what types of changes are authorized by the Changes clause? The answer is found in the Changes clause and the caselaw. The simple answer is: only limited types of changes, and generally, the terms and conditions in the contract cannot be changed by a change order. And in particular, payment methods or amounts cannot be changed, as demonstrated in a recent case. CH2M-WG Idaho, LLC, CBCA 3876, Sept. 7, 2017. FAR 52.243-1, Changes—Fixed-Price (AUG 1987), states The Contracting Officer may at … Continue reading

BE CAREFUL WHAT YOU SIGN

Now comes two cases decided on the same day by the Armed Services Board of Contract Appeals that demonstrate how important it is for a contractor to understand what he/she signs. Arab Shah Const. Co., ASBCA No. 60813, September 7, 2017 and Central Texas Expr. Metalwork LLC,, ASBCA No. 61109, September 7, 2017. In both cases, the contractors signed away rights to potential claims they could have reserved. Case 1: In Arab Shah, the Air Force contract was for construction of two metal pole barns in Afghanistan. Before being built, one of the pole barns was no longer needed and the Contracting Officer (“CO”) emailed Arab Shah stating that he wanted the barn built at another location, and would modify the contract, if the contractor … Continue reading

PROTESTER HAS BURDEN OF SHOWING TIMELY ELECTRONIC DELIVERY

E-mail is a very useful tool, especially in government contracting. But the Government Accountability Office (“GAO”) recently confirmed a long line of cases where an offeror contended that it had sent in its proposal by e-mail, but the agency did not receive it and could find no evidence in its email servers of receipt. Ghazanfar Neft Gas LTD, B-414636, July 21, 2017. In this and similar cases, the GAO concluded that the protester had failed to satisfy its burden of showing that it timely delivered its proposal to the agency by email. Two sections of the FAR are important here: FAR 15.208(a) which states “[o]fferors are responsible for submitting proposals, and any revisions, and modifications, so as to reach the Government office designated in the … Continue reading

HOW TO GET PAID FOR WAGE DETERMINATION INCREASES IN OPTIONS AND EXTENSIONS UNDER THE SERVICE CONTRACT ACT

Contractors know that most contracts for services are subject to the Service Contract Act, 41 U.S.C. § 351(a) (the “SCA”). The SCA was designed to protect wages and fringe benefits of service workers employed on U.S. Government contracts. It directs the Department of Labor (“DOL”) to issue minimum wage orders applicable to fixed-price services contracts, called “Wage Determinations,” which are developed to reflect “prevailing wages.” Through Federal Acquisition Regulation (“FAR”)-mandated contract clauses, contractors are forbidden from paying less than the wages and fringe benefits contained in a Wage Determination. Furthermore, the FAR clauses permit a contractor to recover increases in wages and benefits mandated by future Wage Determinations when they impact on options and extensions. A recent Board case demonstrates the entitlement. Hallmark-Phoenix 3, LLC, … Continue reading