FIRST ARTICLE DOES NOT REDEFINE CONTRACT SPECIFICATIONS FOR ACCEPTANCE






In a long and complex case, the Armed Services Board of Contract Appeals (“ASBCA”) recently explained that a First Article Test (“FAT”) does not add product specifications above those detailed in the contract, and that in order to reject production articles, the government must demonstrate that they are unacceptable because they do not meet specifications in the contract. Ensign-Bickford Aero. & Def. Co., ASBCA No. 57929, Oct. 20, 2016. The case involved MK 154 detonators procured by the Naval Surface Warfare Center. The MK 154 is used to explode charges from a safe distance. Explosive ordnance disposal personnel use the MK 154 to blow up improvised explosive devices (“IEDs”), suspect items, or unserviceable ammunition under controlled conditions. Ensign’s contract contained a detailed Technical Data Package … Continue reading

“YOU’RE OUT OF LUCK BUDDY” (NO EXTRA-CONTRACTUAL RELIEF)






In a timber sale contract (where the government contractor cuts down timber and sells it, presumably at a profit), the Civilian Board of Contract Appeals (“CBCA”) concluded that there was “no contractual provision that would relieve appellant of its obligations to pay the damages assessed [by the agency].” Translation: “You’re Out of Luck, Buddy.” Payne Enter. v. Dept of Agriculture, CBCA 2899, March 19, 2013. It was a bit of a heartbreaker, as you will see from the court filings, below. Payne was awarded the Sheriff West Timber Sale Contact by the Department of Agriculture in June 2001, and completed 92% of the contract, but couldn’t complete the remainder because of declining prices for the timber associated with the contract, overall economic decline, and a … Continue reading

Gift-Giving Policies: Seven Ethics Checks in Light of OGE’s Updated Standards






By Jayna Marie Rust If you have not updated your ethics and compliance program since November 18, 2016, dust it off and take a good look at it. November 18 was the day the U.S. Office of Government Ethics (“OGE”) issued a final rule that revised portions of the Standards of Ethical Conduct for Executive Branch Employees found at 5 C.F.R. 2635.[1]  The revisions modified and clarified the standards regarding Gifts from Outside Sources (“Standards”), which prohibit Executive Branch employees from soliciting and accepting gifts from “prohibited sources” as well as gifts given because of a Government employee’s official position. Because Government contractors and other regulated companies are almost always “prohibited sources,”[2] they should become familiar with the changes, which took effect on January 1.  … Continue reading

SO YOU THINK YOU GOT A GOVERNMENT CONTRACT? THINK AGAIN!






Many people think they have a valid government contract, but much of the litigation in the Courts and the Boards of Contract Appeals revolves around whether a contract was valid. To prove the existence of a contract with the government, a contractor must prove four basic elements: (1) mutuality of intent to contract; (2) offer and unequivocal acceptance; (3) consideration; and (4) a government representative having actual authority to bind the United States. See Cal. Fed. Bank, FSB v. United States, 245 F.3d 1342, 1346 (Fed.Cir.2001). In 1200 Sixth Street, LLC v. United States, No. 12-388C (Fed. Cl. Feb. 14, 2013), the Plaintiff (1200 Sixth) alleged that the Government breached a contract for purchase of real property in Detroit, but the Court found that the … Continue reading

DISPARATE TREATMENT IN EVALUATION OF OFFERS






It is a fundamental principle of government procurement that agencies must evaluate proposals on a common basis and in accordance with the terms of the solicitation. Agencies may not engage in disparate (unequal) treatment of offerors in their evaluation. On this subject, the Federal Acquisition Regulation (“FAR”) states that “[c]ontracting officers are responsible for ensuring performance of all necessary actions for effective contracting [and] shall [] [e]nsure that contractors receive impartial, fair, and equitable treatment. FAR 1.602-2. In a recent decision, the Government Accountability Office (“GAO”) again held that an agency engaged in disparate treatment of offerors’ past performance and sustained the protest. CSR, Inc., B-413973, Jan. 13, 2017, 2017 WL 816541. Before discussing CSR, the following are a few examples of how agencies have … Continue reading

The PCI Network – Compliance, Suspension and Debarment






This episode of The PCI Network focuses on Suspension and Debarment. David Drabkin, Director and Faculty at PCI discusses, how to maintain compliance and avoid suspension and debarment. Mr. Drabkin is currently the Director of Acquisition Policy with Northrop Grumman Corporation. There he works with Congress, Executive Agencies and Industry Associations to evaluate and promulgate acquisition policy for Federal programs ensuring the interests of the Northrop Grumman are represented in the process.

AFFIDAVITS ARE GENERALLY ACCEPTABLE IN SIZE APPEALS






The following saga of two appeals demonstrates the importance of sworn affidavits in size protests and size appeals. In the first appeal, CoSTAR Services, Inc., SBA No. SIZ-5745 (2016), the Small Business Administration (“SBA”) Office of Hearings and Appeals (“OHA”) considered two protests that Mark Dunning Industries, Inc. was not small because of affiliation with 24 different entities. The protesters (CoSTAR and Inuit) alleged that affiliation was based on family identity of interest, common investments, common ownership and common management. OHA held that there was no affiliation based on most of the allegations, but remanded the case to the Area Office to render a more complete analysis on whether there was affiliation between two individuals (Mr. Dunning and Mr. White) based on common investment. On … Continue reading

WHAT IS A PREDECESSOR COMPANY FOR PAST PERFORMANCE PURPOSES?






The Government Accountability Office (“GAO”) recently ruled that in negotiated procurement, a company cannot attribute to itself the past performance of asserted “predecessor” companies where those companies are separate and distinct companies from the offeror. Choctaw Staffing Sol., B-413434, Oct. 24, 2016. The GAO held that Choctaw’s assertion that two other companies were its predecessors was inconsistent with usage of that term in the Federal Acquisition Regulation (“FAR”). Choctaw submitted a proposal to support the Domestic Abuse Victim Advocate Program at various Air Force Military Treatment Facilities. The Request for Proposals (“RFP”) stated that in the evaluation, the Government would “take into account past performance information regarding predecessor companies and key personnel who have relevant experience.” Choctaw protested that the agency failed to properly attribute … Continue reading

CLAIMING COSTS OF PURSUING PROTESTS AT THE GOVERNMENT ACCOUNTABILITY OFFICE






A successful protester at the Government Accountability Office (“GAO”) is entitled to a GAO recommendation that the agency conducting the procurement should pay the costs of filing and pursuing the protest, including reasonable attorneys’ fees and consultant and expert witness fees; and bid and proposal preparation. 31 U.S.C. § 3554(c)(1). The law places a limit or “cap” on the fees that may be paid to attorneys of $150 per hour, except where the protester is a small business concern. Even this hourly rate may be increased where “on a case by case basis, [GAO] determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 31 U.S.C. … Continue reading

AGENCIES CANNOT PRO-RATE INVOICES UNLESS THE CONTRACT SO STATES






Have you ever had a situation where a Government Agency advised you that it would reduce or pro-rate your monthly services invoice for days not worked, but your company objected and said “that procedure is not in our contract?” The Agency response is frequently: “so what, we’re doing it anyway, you didn’t work those days.” That’s exactly what happened to Amaratek during last year’s Government shutdown. The Armed Services Board of Contract Appeals ruled the Army’s invoice adjustment to be improper, and allowed Amaratek’s claim for a full monthly invoice amount even though only six days were worked. Amaratek, ASBCA No. 59149, 15-1 BCA ¶35808. In Amaratek, the Army awarded the company a contract for laboratory services at the Yuma Proving Ground in Arizona. There … Continue reading