AFTERTHOUGHTS: PROPOSAL EVALUATIONS OF COST AND NON-COST FACTORS

Following each Professor’s Virtual class, we interview Professor Ralph Nash to get his thoughts on the topic following discussion.  On February 24th, 2016, Professor Ralph Nash and Tim Sullivan discussed proposal evaluations of cost and non-cost factors.   Background    Competitive procurements pursuant to FAR Part 15 gained notoriety and use after the enactment of the Competition in Contracting Act (“CICA”) in 1984.  Under competitively negotiated contract formation techniques, the Government prepares a solicitation, which contains a statement of work and contract terms, and requests potential offerors to propose a price and submit information on other designated evaluation factors.  Once proposals are submitted, the Government must evaluate the proposals and choose an awardee to perform to contract. Use of these competitive procedures raises concerns about … Continue reading

The Government’s Duty of Good Faith and Fair Dealing

The long-standing principle that the federal government had the same implied duty of good faith and fair dealing as any commercial buyer was put in jeopardy by a 2010 decision of the U.S. Court of Appeals for the Federal Circuit, Precision Pine & Timber, Inc. v. U.S., 596 F.3d 817 (Fed. Cir. 2010). There a panel of the court adopted a narrow rule seemingly limiting application of the principle to situations where a government action was “specifically targeted” at the contractor or had the effect of taking away one of the benefits that had been promised to the contractor. Although the decision concerned a timber sales contract not a procurement contract, when I wrote it up in the May 2010 Nash & Cibinic Report (24 … Continue reading

Afterthoughts: Contract Interpretation

If you are performing a contract and the terms of the contract become an issue, what are the key things that you should be concerned about? Is it different if you are a government procurement official or private contractor? Well I think the concerns are basically the same whichever party you are a part of. If you are having a disagreement, the parties need to step back and look at the positions they are each taking and ask themselves, if a judge read these words – without any help about how we performed this contract before or after we signed it – what would he or she objectively think the words meant. What is the plain meaning of these words? To do this sort of … Continue reading

Afterthoughts: Flowdown Clauses

What are the three most significant errors contractors make when dealing with flowdown clauses? 1) I think the first error is just having a blanket provision in the front;  a blanket clause that says wherever you see the term “Government” insert “prime contractor” and wherever you see the term “contractor” insert “subcontractor”  because a number of the clauses just don’t work well that way. 2) Incorrect drafting or not complete enough drafting of a disputes provision that gives both parties the opportunity to resolve disputes in a reasonably efficient way.   This entails drafting  two provisions.  One provision for when a subcontractor claims that the government has caused it to incur additional expenses and will need  the prime to sponsor the claim.  The other provision is for … Continue reading

Afterthoughts: Good Faith & Fair Dealing

What responsibilities are included in the duty of good faith and fair dealing/ what should be included? The Restatement of Contracts lists some examples but without trying to go into the specifics of that list, I always said that the duty of good faith and fair dealing was at the center a requirement that the two parties would reasonably respond to each other’s problems. If you go back to the Civil War and look at the case law, we talked about the duty of cooperation and the duty not to hinder contractor’s performance. Those were the original duties that our legal background is full of. When we started to talk about the broader duty of good faith and fair dealing, these two duties, the duty … Continue reading

Afterthoughts: Low Price Technically Acceptable (LPTA)

Following each Nash & Schooner Hot Topics Webinar event, we interview Professor Ralph Nash to get his thoughts on the topic following the panel discussion. On November 29th, Professors Ralph Nash and Steve Schooner and Dean Dan Gordon discussed LPTAs.   What is the difference between an LPTA competition versus a sealed bid competition? With sealed bidding of course you open the bids publicly whereas in LPTA you don’t get see other prices or the other bidders’ technical proposals.  In addition, in sealed bidding, a bid is responsive or non-responsive with no way to fix it except, of course, if you are using two step.  Whereas in LPTA you have the option of negotiation and using negotiation to get unacceptable bids to acceptable.  I don’t … Continue reading

Afterthoughts: Contract Implications of Sequestration

Following each Nash & Schooner Hot Topics Webinar event, we interview Professor Ralph Nash to get his thoughts on the topic following the panel discussion.  On October 25th, Professors Ralph Nash and Steven Schooner discussed the contract implications of potential sequestration.   Do you think sequestration will happen? I don’t think anybody knows whether it will happen or, if does happen, how long it will last.  My belief is whether it happens or not there are going to be significant cuts in procurement spending.  So people ought to be planning for sequestration without regard to whether it does or does not occur.   If you were a contractor looking at your company’s portfolio of government contracts, would there be particular contracts that you would be … Continue reading

Afterthoughts: FAPIIS

Following each Nash & Schooner Hot Topics Webinar event, we interview Professor Ralph Nash to get his thoughts on the topic following the panel discussion.  On September 27, Professors Ralph Nash and Steven Schooner hosted special guest James McCullough, Fried Frank, and Julia Wise, OFPP in a discussion of the Federal Awardee Performance and Integrity Information System (FAPIIS).   What are the key points that you think people should understand or know about FAPIIS? 1)      Contracting Officers have a responsibility to input data very quickly after making determinations; this includes issues covered under the Contracts Disputes Act. Contracting Officers then have the additional responsibility of updating the information as these issues go to litigation and settle. 2)      FAR 52.209-7 & 9, primarily, require contractors with … Continue reading