UNREASONABLE LIMITATIONS ON PROPOSAL REVISIONS DURING THE CORRECTIVE ACTION PHASE OF PROTESTS






In what appears to be a first, the Government Accountability Office (“GAO”) sustained a protest because an agency imposed unreasonably restrictive limitations on the scope of proposal revisions. In this protest, Deloitte Consulting, LLP, B-412125.6, Nov. 28, 2016, GAO held that the restrictions prevented offerors from revising proposal information that had been materially impacted by the corrective action. Deloitte protested the corrective action of the Defense Health Agency (“DHA”), taken in response to Deloitte’s prior protest of the award of a contract to another vendor for DHA’s governance, requirements and architecture management support. In its earlier sustained protest of this procurement, Deloitte alleged that DHA had conducted an unreasonable evaluation of the key personnel resumes under the staffing approach subfactor, and had unreasonably evaluated past … Continue reading

CONSTRUCTIVE ACCELERATION






Constructive acceleration occurs when the government demands the contractor’s compliance with an original contract deadline even though there is excusable delay. This is precisely what happened in IAP Worldwide Svcs, ASBCA no. 59397 et al, May 17, 2017. A contractor is entitled to compensation for additional costs that result from the constructive acceleration. In IAP, the Army Corps of Engineers issued three delivery orders to provider power plants at forward military bases in Pakistan. The delivery orders incorporated IAP’s proposal which made it clear that IAP would ship the power plants via surface transportation, using what was called the “Pakistan route.” Before the shipments were due, in response to U.S. combat operations, Pakistan closed the Port of Karachi and the land routes from that city … Continue reading

CONTRACTOR CAN SEEK PAYMENT FOR WORK THAT WAS INVOICED AND ACCEPTED PRIOR TO DEFAULT TERMINATION






Claude Mayo Construction Company, Inc. (“Mayo”) had a contract with the General Services Administration (“GSA”) to renovate a U.S. Attorney’s Office in Syracuse, NY. Before Mayo completed the project, GSA terminated the contract for default. Mayo sought to overturn the default, which is not the subject of this appeal. However, Mayo also sought damages for a breach of contract because GSA, without basis, failed and refused to pay Mayo for work completed and accepted by GSA prior to the default termination. Claude Mayo Const. Co., Inc., No. 15-1263C (Fed. Cl. June 23, 2017). GSA sought to dismiss the breach of contract, asserting failure to state a claim. The government alleged that Mayo failed to identify a duty arising from the contract or a breach of … Continue reading

WRITTEN FINAL PROPOSAL REVISIONS ARE NOT REQUIRED IN COMPETITIONS FOR TASK ORDERS






In a recent bid protest decision, the Government Accountability Office (“GAO”) made clear that when agencies conduct competitions for task orders among holders of a multiple award contract, final proposal revisions (“FPR”) are not required, as they would be for a “normal” Federal Acquisition Regulation (“FAR”) Part 15 procurements. These task order competitions are held under the less stringent FAR Part 16 requirements. SSI, B-413486 et. al, Nov. 3, 2016. The protester here, Mid Atlantic Professionals, Inc., d/b/a SSI, was one of several multiple awardees for language, regional expertise and cultural instruction for Special Forces. The Agency (U.S. Special Operations Command) held discussions with both of the offerors. The agency found that SSI had adequately addressed the 11 issues that were identified in its proposal, … Continue reading

A COMMON SENSE ANALYSIS OF WHAT IS A CLAIM






How many contractor demands for payment make a claim? The Contract Disputes Act (“CDA”) requires that “each claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision.” 41 U.S.C. § 7103(a)(1). The Federal Acquisition Regulation (“FAR”) includes the same requirement at FAR 33.206. While the CDA itself does not define claim, the FAR does, as follows: “‘Claim’ means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. However, a written demand or written assertion by the contractor seeking the … Continue reading

RE-RECURRING AGENCY MISTAKES IN DISCUSSIONS






About a year ago, this blog published two articles on discussions, “Six Recurring Agency Mistakes in Discussions” and “Once Again: Recurring Agency Mistakes in Discussions.” (May 2016.) The “number 1” mistake was: Agencies must conduct meaningful discussions. When conducted, discussions must be meaningful. That is, discussions must identify deficiencies and significant weaknesses in an offeror’s proposal that could reasonably be addressed so as to materially enhance the offeror’s potential for receiving award. It seems that this mistake doesn’t just recur, it re-recurs frequently, most recently in Mevacon-NASCO JV; Encanto Facility Servs., LLC, B-414329 et al., May 11, 2017. Mevacon is a long and complex protest involving the evaluation of an Army Corps of Engineer contract for real property services at Fort Hood, Texas. The protesters … Continue reading

ANOTHER SAD STORY OF MISPLACED RELIANCE ON A CONTRACT SPECIALIST AND IMPROPER EXERCISE OF OPTIONS






This blog has frequently discussed cases supporting the strong principle that the federal government has given the authority to enter into and modify contracts to only a limited class of government employees: namely, contracting officers. Federal Acquisition Regulation (“FAR”) 1.601(a). This section grants to agency heads the authority to contract for supplies and services and requires that “[c]ontracts may be entered into and signed on behalf of the Government only by contracting officers”. Also note that FAR 43.102 states that “Only contracting officers acting within the scope of their authority are empowered to execute contract modifications on behalf of the Government.” Other Government personnel are prohibited from executing contract modifications. Id. See also Winter v. Cath-dr/Balti Joint Venture, 497 F.3d 1339, 1344 (Fed. Cir. 2007). … Continue reading

Afterthoughts: Evaluating Cost & Price Realism






By Nicole R. Best On February 23, 2017, Professor Ralph Nash and Tim Sullivan hosted a virtual classroom on the topic of Evaluating Cost and Price Realism. Following the virtual classroom, I interviewed Professor Nash to ask questions related to the discussion during the training. Why does the government, as a buyer, care about cost and price realism? Those are two different things. Cost realism is important because when we are running a competition for cost reimbursement contracts, we don’t want companies to win by proposing an estimate that is unreasonably low. If the government awards at an estimate that is low and the contractor runs out of money on the contract but hasn’t finished the job, either (1) you won’t be able get money … Continue reading

Afterthoughts: Discussions versus Clarifications






By Nicole R. Best On March 30, 2017, Professor Ralph Nash and Tim Sullivan hosted a virtual classroom on the topic of Clarifications versus Discussions during negotiated procurements. Following the virtual classroom, I interviewed Professor Nash to ask questions related to the discussion during the training. To some extent a theme of the webinar was a discussion of the narrowing scope of what constitutes a clarification during the negotiated procurement source selection process. What exchange currently constitutes a clarification and, as a practical matter, do you think clarifications still have a significant and useful role in the negotiated procurement process? First, the narrowness of the definition is to some extent in the vagueness of the language. If you look at FAR 15.306(a) it says “Clarifications … Continue reading

INCORPORATION BY REFERENCE






Black’s Law Dictionary (5th Ed. 1979) defines “incorporation by reference” as the “method of making one document …become a part of another separate document by referring to the former in the latter, and declaring that the former shall be taken and considered as a part of the latter the same as if it were fully set out therein.” Agencies, which are the writers of government contracts, would be hard pressed to draft contracts without this artifice of language, and government contractors must be careful to understand its implications. A misuse of incorporation by reference was explained in a bid protest, IBM Corp. v. United States, 119 Fed.Cl. 145 (2014). The Federal Acquisition Regulation (“FAR”) and Incorporation by Reference Almost every government contract incorporates contract clauses … Continue reading