A recent decision by the Armed Services Board of Contract Appeals underscores the importance of timely filing a certified claim for excusable delay, and the risks of failing to do so. In ECC CENTCOM Constructors, Inc. (September 4, 2018), the ASBCA denied a construction contractor’s appeal from a termination for default. Critical to that ruling… Continue Reading
In another recently released bid protest sustained by the Court of Federal Claims, the Court addresses a protestor’s standing and an offeror’s ability to rely on the experience of its subcontractors in satisfying technical evaluation criteria. This question of when and how to rely on an affiliate’s experience recently came up at an industry event… Continue Reading
A recent decision by the Armed Services Board of Contract Appeals reminds us of the importance of obtaining commitments from your key subcontractors after award. In CDM Constructors, Inc. (August 20, 2018), the ASBCA dismissed on summary judgment a construction contractor’s claim for increased costs arising out of a contract for the construction of dissolved… Continue Reading
One of the most common, and challenging, arguments made in a post-award bid protest is that the contracting officer’s evaluation was arbitrary and capricious. The challenge with this argument is overcoming the substantial deference that the GAO and Courts grant to a contracting officer’s judgment. Because of this deference, it can be difficult to establish… Continue Reading
In a recent decision the Small Business Administration’s Office of Hearings and Appeals (“OHA”) affirmed a determination that a company was other than small based on the company’s failure to provide adequate information in response to a size protest.
In Perry Johnson & Assoc., Inc., SBA No. SIZ-5943 (2018) OHA confirmed that a failure to… Continue Reading
As restated in a recent GAO decision: “The evaluation of past performance is a matter of agency discretion, and we will review the evaluation only to ensure that it was reasonable and consistent with the solicitation’s stated evaluation criteria and applicable statutes and regulations.” Matter of: C2g Ltd. Co., B-415938.2 (June 26, 2018). In this… Continue Reading
A recent decision by the Armed Services Board of Contract Appeals reminds us of the significance of release language in a modification, this time in the context of a contractor seeking to overturn a termination for default of a construction contract. The decision also underscores the importance of keeping the Government advised of how you… Continue Reading
In yet another warning to contractors regarding the unforgiving bid protest timelines, the GAO recently issued a decision granting an agency’s request to dismiss a protest on the basis that the contractor failed to timely request a debriefing and therefore was not eligible to the extended deadline for filing its protest. Exceptional Software Strategies, Inc., … Continue Reading
A recent decision from the Armed Services Board of Contract Appeals highlights the importance of memorializing changes to contract specifications in writing from the contracting officer, even if the Government’s actions suggest that it has accepted the changes.
On June 27, 2018, the Board issued a decision in the appeal of Relyant, LLC (ASBCA No.… Continue Reading
The ASBCA recently issued a decision that provides contractors with relief and a viable option for progressing their claim when a contracting officer unreasonably delays issuance of a final decision. The critical triggering event, the Contracting Officer’s Final Decision (“COFD”), which allows a contractor to commence a lawsuit against the Government before the ASBCA and… Continue Reading
A recent decision by the Armed Services Board of Contract Appeals provides guidance on overturning a termination for cause of a supply contract. In AEY, Inc. (June 22, 2018), the ASBCA in large part overturned the Government’s termination for cause of a Government contractor who had missed several of the original contract deadlines for supplying… Continue Reading
The second significant recent ASBCA decision on liquidated damages is American International Contractors, Inc. (May 29, 2018). In that case, the contractor did not complete the original contract work on time and was assessed liquidated damages. After the contractor completed the base contract work and demobilized from the site, and following unsuccessful negotiation of a… Continue Reading
Recent GAO decisions serve as important reminders that timely filing of a protest is strictly construed. As Department of Defense contractors and agencies are adopting the enhanced debriefing rules, there has been some confusion—by agencies and contractors—as to what constitutes a timely protest. In a recent protest, the GAO addressed these timing issues and clarified… Continue Reading
A recent decision by the Armed Services Board of Contract Appeals reminds us how important it is to remember to ask for time as well as money when pursuing claims against the government. In OCCI, Inc. (May 29, 2018), the ASBCA upheld the Government’s imposition of liquidated damages against the contractor notwithstanding two prior Requests… Continue Reading
Novations are not uncommon in Government contracting. FAR Subpart 42.12 contains standard novation language, in which the Government recognizes in part: “The Transferee by this Agreement becomes entitled to all rights, titles, and interests of the Transferor in and to the contracts as if the Transferee were the original party to the contracts.”
Government contractors… Continue Reading
This Thursday at 2:45 p.m. pacific time, DWT partner Jonathan DeMella will join Colm Nelson of Foster Pepper PLLC and James Niemer, Sr. Legal Counsel for Sound Transit to speak on a panel about key risk shifting provisions for owners and contractors. The discussion will cover issues including differing site conditions clauses, indemnity, liquidated damages,… Continue Reading
Last month, the Armed Services Board of Contract Appeals allowed the Government to amend its answer to add an “unclean hands” affirmative defense, a mere two months before the scheduled hearing date.
Raytheon appealed from a Contracting Officer’s Final Decision denying its $48,195,191 claim for extra Systems Engineering and Program Management (SEPM) services under the… Continue Reading
In a decision issued on April 3, 2018, the SBA Office of Hearings and Appeals (“OHA”) confirmed competitors do not have standing to file size protests relating to 8(a) sole source awards. In Size Appeal of GovSmart, Inc., SBA No. SIZ-5894, 2018, OHA stated such protests may only be filed by contracting officers or the… Continue Reading
The U.S. Department of Veterans Affairs has set aside $685 million in congressional funding for several State Veterans Home construction projects.
The projects will be funded through the VA State Veterans Home Construction Grant Program and will be used for repairs, renovation, or new construction. This is the largest appropriation to the grant program in… Continue Reading
Last month, the Court of Federal Claims issued a decision reaffirming the importance of considering carefully subcontract release and waiver language in Government procurement.
MW Builders, Inc. v. United States involved a subcontract between MW Builders, Inc., the prime contractor, and Bergelectric, a subcontractor, in which Bergelectric agreed to provide a complete electrical system in… Continue Reading
A recent decision by the Civilian Board of Contract Appeals rejected the Government’s attempt to stay an appeal seeking recovery for delay damages “until the project is complete.” In CTA I, LLC v. Department of Veterans Affairs (March 9, 2018), the Civilian Board of Contract Appeals denied the Government’s motion to stay the appeal.
The… Continue Reading
On April 3, 2018, a federal grand jury indicted two Wisconsin residents and a construction business of fraud and other charges accusing them of wrongfully obtaining $200 million in contracts set aside for small businesses by misrepresenting the companies’ ownership status.
Brian Ganos and Mark Spindler are accused of falsely certifying businesses owned and controlled… Continue Reading
As the following decision demonstrates, careful recordkeeping can be critical to avoid forfeiting a claim upon the completion of a project with the government. Appeal of Merrick Construction, LLC, ASBCA No. 60906 (March 22, 2018). In Merrick, the Armed Services Board of Contract Appeals (“ASBCA”) found that a contractor forfeited a claim against the Army… Continue Reading
Earlier this week, the GAO announced the final version of its amended bid protest regulations, which take effect May 1, 2018. Significant changes to the regulations include
the implementation of an electronic docketing system,
imposition of a filing fee,
possible reduction in the time within which the agency must respond to a protest’s specific document… Continue Reading
The SBA issued a final rule on March 26, 2018, implementing changes flowing from the National Defense Authorization Act of 2018 (“NDAA 2018”). The rule takes effect on May 25, 2018. One of the major changes relates to the ownership requirements for HUBZone businesses and amends the HUBZone regulations to allow indirect ownership by United… Continue Reading
The traditional debriefing process, by which unsuccessful offerors can obtain information on the basis of the Government’s selection and contract award, was just improved to the benefit of contractors. Under the revised debriefing process, contractors will now have the opportunity to submit written questions and receive written responses from the procuring agency. Only after receipt… Continue Reading
At the end of last year, the Small Business Administration Office of Hearings and Appeals (“OHA”) issued a decision that further clarified the “ostensible subcontractor” rule. This rule may result in affiliation when a small prime contractor is unduly reliant on its subcontractor.
In Emergent, Inc. v. Kapsuun Group, LLC, SBA No. SIZ-5875 (Dec. 19,… Continue Reading
On January 29, 2018, the SBA issued a proposed rule to address and resolve the existing conflicts between the current eligibility requirements in the SBA and VA regulations. This action comes after specific direction in the 2017 National Defense Authorization Act for the SBA and VA to work together on a consolidated rule. Following this… Continue Reading
It is no secret that the Defense Contract Audit Agency (DCAA) has been plagued by a significant backlog in processing incurred cost (electronically) proposals (“ICE proposals”). In 2011, there were approximately 31,000 ICE proposals awaiting audit. While reduced, the current estimate is still a staggering 14,000. While DCAA has implemented policies to reduce this backlog,… Continue Reading
In December 2017, the Court of Federal Claims ruled in favor of protestor Precision Asset Management Corp. after finding the agency failed to inform Precision that the agency assessed Precision’s “Neutral” past performance rating negatively.
In 2014, Precision submitted its proposal for a Department of Housing and Urban Development property management contract. After the agency… Continue Reading
Last week, Kate Kennedy and I presented a 1-hour webinar to the members of the Pacific Northwest Defense Coalition titled “2017 Government Contracts Year in Review and Regulatory Update.” This was a fast-paced, high level review of topics such as the current Administration’s regulatory reform agenda, cybersecurity, the 2018 National Defense Authorization Act, bid protest… Continue Reading
A recent decision by the Civilian Board of Contract Appeals reminds us that all findings of fact made by a court are not created equal, at least insofar as they are applied in a subsequent proceeding. In VSE Corporation v Department of Justice (December 8, 2017) the CBCA had occasion to address how findings of… Continue Reading
In late December, the Court of Federal Claims upheld an SBA decision revoking a Service Disabled Veteran Owned Small Business’ (“SDVOSB”) status on the basis the business failed in the unconditional ownership requirement set forth in the SBA’s SDVOSB regulations. In Veterans Contracting Group, Inc. v. United Sates, No. 17-1188C, the SDVOSB was determined not… Continue Reading
Last month, we discussed Agility Defense & Government Services, Inc. v. United States, No. 13-55C, 13-97C (consolidated) (Fed. Cl.) (October 18, 1997), in which the Court of Federal Claims held that a contractor was entitled to an adjustment of its contract price as a result of the Government’s negligent estimated quantities. On December 13, 2017,… Continue Reading
Last month, the Armed Services Board of Contract Appeals issued two decisions involving terminations for convenience. Both decisions are instructive regarding how contractors should anticipate contractual and regulatory requirements regarding termination for convenience, in order to maximize likelihood for a full recovery of incurred costs.
The first case, Black Bear Construction Co., ASBCA No. 61181,… Continue Reading
As we near the end of the year and look back on 2017, both the number of data breaches and magnitude of these breaches stand out. There have been over forty very significant breaches of data stored on cloud computing systems in the past year – and it is safe to assume that we will… Continue Reading
A recent decision by the United States Court of Federal Claims reminds us how important the Government’s estimated quantities are, even in a fixed price contract. In Agility Defense & Government Services, Inc. v United States (October 18, 2017), the Court of Federal Claims awarded Agility $6,906,339.20, plus interest, representing the cost of additional, unanticipated… Continue Reading
This past summer, the Alaska Department of Transportation and Public Facilities (“DOTPF”) rescinded a bid award after determining that the awardee was not a responsible contractor within the meaning of DOTPF’s bid specifications.
The primary basis for this determination? An unresolved dispute over the contractor’s performance on a separate project.
On April 20, 2017, DOTPF… Continue Reading
This past Thursday, I attended an all-day Federal Government Contracts seminar at the Seattle, WA office of AGC titled, “How to Navigate the New Administration.” Among the speakers were my friends and former colleagues Jim Nagle and Adam Lasky of Oles Morrison Rinker and Baker. Adam spoke about bid protests, and Jim offered his insights… Continue Reading
A recent bid protest decision confirmed that the ostensible subcontractor rule cannot apply to similarly situated entities. The rule can result in a finding of affiliation if a small business prime contractor is determined to be unusually reliant on its subcontractor. However, on October 20, 2017, the GAO denied a protest that was partially based… Continue Reading
Last week, I spoke in Portland, Oregon about cybersecurity requirements for federal contractors at an all-day seminar hosted by the Pacific Northwest Defense Coalition. Speakers from the Department of Defense, the FBI, and consultants specializing in cybersecurity compliance offered interesting and (sometimes different) perspectives on compliance, which led to candid and robust discussion. Many thanks… Continue Reading
When the performance of a federal contract runs into trouble, the contractor may face a variety of issues including threats of default, delays and acceleration, cost overruns, etc. During this time, worrying about the government’s evaluation of its performance is often not the contractor’s main focus. However, ensuring that the contractor responds timely and addresses… Continue Reading
Recent case law affirms an Agency’s duty to prepare a complete and accurate Administrative Record (“AR”) when responding to a bid protest. It also reinforces the value and importance of careful and detailed analysis of the AR by the protestor. Filed after the initial submission of the protest, the AR is required to contain the… Continue Reading
On December 7, 2016, President-elect Donald Trump announced he will nominate former professional wrestling executive Linda McMahon as the head of the Small Business Administration. McMahon, 68, is the former CEO of the WWE, who also unsuccessfully ran for Senate in 2010.
Trump’s announcement stated that McMahon will assist his administration with generating stronger job … Continue Reading
On Tuesday, Dec. 6, 2016, the Federal Acquisition Regulatory Council published a proposed rule aimed at finalizing regulations for small business set aside contracts in multiple award procurements. The new rule allows more flexibility to set aside contracts for small businesses in multiple award procurements.
The proposed rule provides additional guidance to contracting officials on… Continue Reading
The Trade Agreement Act (“TAA”) utilizes a “substantial transformation” test in determining the country of origin of an end product composed of various parts from various countries. Substantial transformation is assessed and determined on a case-by-case basis, examining the totality of the circumstances. Therefore, no one factor is determinative. TAA as well as “Buy American”… Continue Reading
This past Tuesday, Margaret Cho, an Officer of Far East Construction Company, pleaded guilty to conspiring to commit wire fraud. Ms. Cho also agreed to pay a forfeiture in the amount of $169,166 and a criminal fine in the amount of $35,000.
Ms. Cho had allowed a large business to use her company as a… Continue Reading
During his presidential campaign, President-elect Donald Trump made clear his misgivings over Lockheed Martin’s F-35 program. During an interview on the Hugh Hewitt radio show, Mr. Trump asked “[w]hen they say that [the F-35] cannot perform as well as the planes we already have, what are [we] doing, and spending so much money?” Mr. Trump… Continue Reading
Small and large businesses seeking to take advantage of the Small Business Administration’s (SBA) new All Small Mentor-Protégé Program will now have to jump through an extra hurdle as part of the application process.
The SBA began accepting applications for the new program on Oct.1, 2016. The program allows any qualifying small business to partner … Continue Reading
One of, if not the most often-discussed issue facing Government contractors over the past few months has been the impending implementation of the Fair Pay and Safe Workplaces rule.
In brief, this rule, which was to come into effect Oct. 25, 2016, would have required contractors bidding on federal contracts to report “violations” of 14… Continue Reading
Last week, the Department of Defense adopted as final, with several changes, its interim rule amending the DFARS on “Network Penetration Reporting and Contracting for Cloud Services.” The changes went into effect immediately, as of October 21, 2016.
Among the changes in the final rule, DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident… Continue Reading
On June 14, 2016, the Senate passed the National Defense Authorization Act for Fiscal Year 2017 (NDAA). The Senate bill would change two important aspects of bid protests filed with the Government Accountability Office (GAO).
First, the Senate NDAA would impose a “loser pays” scheme on bid protests. Specifically, the new language would require… Continue Reading
Recently, the Washington Court of Appeals potentially expanded the scope of tort duties owed by design professionals. In a May decision, the court held that an engineer’s duty of care to developers and property owners encompasses “the prevention of safety risks” even when no personal injury or property damage has resulted from claimed deficiencies. See… Continue Reading
A recent Armed Services Board of Contract Appeals (ASBCA) decision discusses the Severin doctrine and its impact on subcontractor pass-through claims, confirming that this defense to liability may only be used in very limited circumstances by the Government. As a refresher, in a 1943 decision, Severin v. United States, the Court of Claims… Continue Reading
In 2015, the Alaska Department of Transportation and Public Facilities significantly amended the claims provision of its Standard Specifications—105-1.17. The amendments incorporate language from the standard conditions which had previously been utilized for public facilities construction and which had previously been upheld by the Alaska Supreme Court in North Pacific Erectors, Inc. v State Department… Continue Reading
The Armed Services Board of Contract Appeals recently denied a contractor’s application for attorney fees and expenses under the Equal Access to Justice Act
Although denial of a petition for attorney fees under EAJA is not necessarily remarkable, this case serves as a stark reminder that a contractor may not qualify as a “prevailing party”… Continue Reading
This week, Law360 profiles our very own Lisa Marchese, a partner in our Government Contracts Counseling and Litigation Group.
Lisa joined Davis Wright Tremaine in January, 2015, having spent the previous seven years as the Trial Department Head for the Seattle and Anchorage offices of Dorsey & Whitney. Since earning her J.D. from Georgetown… Continue Reading
On Wednesday, February 11, 2016, DWT Partner Jonathan DeMella presented on a number of recent regulatory changes and judicial decisions that significantly affect those that are small business government contractors as well as large business in joint ventures or teaming agreements with a small businesses.
These changes and developments involve:
Small Business Mentor Protégé Program… Continue Reading