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

PROTESTER’S FAILURE TO REBUT OR SUBSTANTIVELY COMMENT






What happens when a protester submits a protest to the Government Accountability Office (“GAO”), the agency responds in its agency report with a detailed response to every assertion, but the protester fails to rebut or substantively address the agency’s arguments in its comments on the agency report? The simple answer is “protest denied.” See, e.g., Oakland Consulting Group, Inc., B-412054.2, September 19, 2016. Oakland Consulting protested its exclusion from the competitive range by the Defense Logistics Agency (“DLA”) on a procurement for information technology (“IT”) services. The DLA found one weakness, three significant weaknesses and two deficiencies which made Oakland Consulting’s proposal technically unacceptable. Oakland Consulting challenged the evaluation of all six areas in its protest. Following its usual procedure, GAO asked the agency to … Continue reading

OFFERS REMAIN OPEN EVEN IF “UNSUCCESSFUL”






Box 12 of Standard Form 33, “Solicitation, Offer and Award,” states that that the contractor agrees that if the agency accepts its offer within 60 calendar days, it will perform at the price offered. (The contractor may specify a different period for acceptance, but normally the 60 day period applies.) Recently, the Court of Federal Claims considered the question of whether the offer was no longer in effect after the agency had sent an “unsuccessful offeror” letter to a contractor. National Air Cargo Group, Inc. v. United States, No. 16-362C, (Fed. Cl. August 19, 2016). The simple answer is that the agency may accept an offer and form a contract at any time during the period of acceptance, unless the contractor withdraws its offer. National … Continue reading

The PCI Network – Three Keys to a Winning Proposal






The next episode of The PCI Network is all about putting together a winning proposal. Lou Chiarella, Director and Faculty at PCI, shares three tips to help you craft a winning proposal. Mr. Chiarella is an attorney in the Washington, D.C. area with 20 years of experience specializing in all aspects of Government contracting.  In addition to his current position, his previous experiences include: Professor of Contract and Fiscal Law, U.S. Army Judge Advocate General’s School, Charlottesville, Virginia; Chief of Administrative and Civil Law, Fort Carson, Colorado; and Trial Attorney, U.S. Army Contract Appeals Division, Arlington, Virginia.

NEW CONTRACTING OFFICER IS NO REASON TO DELAY DECISION ON CLAIM






The Contract Disputes Act (“CDA”) requires timely final decisions on claims, except when there is a reasonable basis for a delay. (See discussion below). Despite the statutory requirements, Contracting Officers (“CO”) frequently delay making a final decision on a contract claim. A recent Board case addressed a delay that was primarily due to a change in contracting officers, and concluded that “internal staffing matters are not one of the factors used to determine a reasonable time under the CDA.” Volmar Const., Inc., ASBCA No. 60710-910, October 7, 2016. What the CDA Requires: When a CO receives a claim under $100,000, the CDA requires the CO to issue a decision within 60 days “from the contracting officer’s receipt [of the claim].” 41 U.S.C. § 7103(f)(1). When … Continue reading

EVERYONE WISHES AGENCIES WOULD COMPLY, BUT…






On January 5, 2017, the Acting Administrator for Federal Procurement Policy issued a “Myth-Busting” memorandum on the importance of agencies giving good debriefings. As readers know, Federal Acquisition Regulation (“FAR”) 15.505 provides for pre-award debriefings and FAR 15.506 and 16.505 provides for post-award debriefings. These sections of the FAR explain when debriefings are required, who has a right to a debriefing, and what information may and may not be shared with contractors. The Administrator’s memorandum attempts to convince agencies that they should give first-class debriefings in order to help maximize the return on acquisition investment, which was $440 billion in fiscal 2015. It’s a commendable memo, and we can only hope that agencies will follow its advice, but that remains to be seen. The memorandum … Continue reading

POORLY WRITTEN PROPOSALS—WHAT HAPPENS?






Well-written proposals in response to government contract solicitations are important for any contractor who wants to obtain federal contracts. There is a flourishing industry on the internet and in the consulting world that provides contractors with assistance in proposal writing. Perhaps more contractors should avail themselves of those services? The problem is that many contractors are unable to write a readable, concise, convincing and responsive proposal. That’s what happened to MacAulay-Brown, Inc. in a proposal it submitted to the General Services Administration (“GSA”) for information technology (“IT”) services in support of intelligence activities for the U.S. Army. (GSA was procuring IT services on behalf of the Army). MacAulay-Brown, Inc., B-413311 et al, Sept. 29, 2016. One key problem in MacAulay-Brown’s proposal was that instead of … Continue reading

The PCI Network – Character Traits for a Great Government Contracts Professional






In this episode of The PCI Network, the head of our FUN with the FAR series, Stephen Daoust, discusses the four traits of a great government contracts professional. Throughout his 25-year career, Steve has worked as a Chief Government Contracts Counsel, Director of Contracts, and Chief Compliance Officer for both publicly traded companies like Iridium and Affiliated Computer Services and large accounting firms like PricewaterhouseCoopers, where he was asked on a daily basis to provide expert advice and counsel on the negotiation and administration of contracts with federal, state, and local Governments. Check out what he has to say below!

REMINDER: ALASKA NATIVE CORPORATIONS ARE EXEMPT FROM CERTAIN SIZE RULES






Before submitting a size protest, small businesses would be advised to consider that Alaska Native Corporations (“ANCs”) are exempted from a number of the Small Business Administration (“SBA”) size affiliation regulations. A recent protest urged the SBA Office of Hearings and Appeals to find that an ANC had a “substantial unfair competitive advantage,” but OHA dismissed the appeal because only the SBA Administrator could make such a finding. Size Appeal of The Emergence Group, SBA No. SIZ-5766, July 28, 2016. In Emergence Group, the protester asserted that Olgoonik Federal, LLC (“Olgoonik”), awardee in a total small business set-aside, was part of the Olgoonik family of “large” companies which, during 2015 received $200 million in federal contracting dollars. Even if the allegations were true, the SBA … Continue reading

The PCI Network – Ethics in Government Contracting






Understanding the difference between right and wrong isn’t always as easy as you may think. In the Federal Contracting industry, there are important ethical distinctions that can create confusion if you don’t know where to look. Join Fred Geldon, a PCI Director and Faculty, as he explains the importance of ethics in Government Contracting and how to minimize the confusion.