IS THE ENTIRE FEDERAL ACQUISITION REGULATION (FAR) INCORPORATED IN YOUR GOVERNMENT CONTRACT?

The Federal Acquisition Regulation (“FAR”) is found in Title 48 of the Code of Federal Regulations. It consists of 37 Chapters (Chapter 1, some 2,000+ pages, which applies to all agencies, and then various agency supplements plus the Cost Accounting Standards). In all, the FAR is thousands of pages long. Are all of the relevant parts of the FAR incorporated into your government contract? The simple answer is “NO,” but first a bit of background. A recent Court of Federal Claims Case, James M. Fogg Farms, Inc. v. United States, No. 17-188C (Fed. Cl. Sept. 27, 2017), considered a similar issue. The question in Fogg was whether federal statutes (specifically, an Agriculture Conservation Program in the Farm Bill, title 16 of the U.S. Code) was … Continue reading

DISMISSAL OF AN INCOMPLETE (IMPROPER) CLAIM OR APPEAL

A recent Armed Services Board of Contract Appeals (“ASBCA”) decision is a strong reminder that contractors must submit complete and proper claims, or they will be dismissed by either the Contracting Officer or a board or court, if appealed to one of those forums. Andrews Contracting Services, LLC, ASBCA No. 60808 (May 22, 2017). Andrews submitted to the Contracting Officer a “Request for Equitable Adjustment” for $292,797.51 in connection with its contract. The REA contained a certification required by the Defense Federal Acquisition Regulation Supplement (“DFARS”) 252.243-7702 where the contractor’s President certified that “the request is made in good faith and that the supporting data are accurate and complete to the best of my knowledge and belief.” The Contracting Officer denied the REA three months … Continue reading

AGENCY’S SHOCKING DISREGARD OF THE TRUTH AND MISCONDUCT AND THE EQUAL ACCESS TO JUSTICE ACT

In a precedent-setting case, the Court of Federal Claims found that there was a good reason to award more than the minimum $125 hourly rate for attorney fees under the Equal Access to Justice Act (“EAJA”). In Starry Associates, Inc. v. United States, (Fed. Cl. No. 16-44C), March 31, 2017, the court held that the numerous examples of agency misconduct during the procurement process as well as the “shocking disregard of the truth by the agency” warranted the application of a “special factor” award granting the protester the higher amount of actual attorney fees that were billed. The proceedings involved three protests at the Government Accountability Office (“GAO”) and one protest at the Court of Federal Claims, ultimately resulting in victory for Starry Associates. Starry … Continue reading

CONDUCT OF LITIGATION RESERVED TO DEPARTMENT OF JUSTICE

The Corps of Engineers learned the hard way that 28 U.S.C. § 516 means what it says, and that the Department of Justice has the right to conduct (and settle) litigation to which the United States is a party or is interested in. This section of the U.S. Code provides that: Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General. In U.S. Coating Specialties & Supplies, LLC, ASBCA No. 58145, 17-1 BCA ¶ 36710, the government sought to terminate U.S. Coating’s contract for default, and filed a motion … 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

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

“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

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

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

VOID AB INITIO

Government contractors must understand that there are certain times when a government contract is void ab initio¸ which means that the contract is null and void from the very beginning.  A recent case demonstrates that a contract that is tainted by fraud or wrongdoing is void ab initio. In Butte Timberlands, LLC v. Dept of Agriculture, CBCA 3232, Nov. 7, 2014, Butte claimed it was owed damages from lost profits that resulted from the Forest Service’s allegedly improper cancellation of a timber sales contract in which Butte asserted it had an interest.  Mr. Kevin Fiske, a past business associate of Butte’s owner (Rick Brewer) bid on and was awarded the Iron Reoffer timber sales contract.  Mr. Fiske used the Butte Timberlands name in his bid, … Continue reading