Archives: Government Contracts

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Clear As Mud: The Murky Waters of Past Affiliate Performance as Part of Evaluation Criteria

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

The Importance of Modifications and Schedule Updates When Faced with a Termination for Default

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

Get It in Writing: Contractor Must Comply With Contract Specifications Despite Government Accepting Nonconforming Goods and Goods Passing Applicable Testing

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

Relief for Contractors Facing an Unreasonable Delay in Receiving a Contracting Officer’s Final Decision

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

Overturning a Termination for Cause

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

Time is Money—Recent Decisions on Liquidated Damages (Part II)

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

GAO Decisions Remind Us: Timely Filing of a Protest is Strictly Construed

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

ASBCA Rejects Government’s Attempt to Dismiss Pre-Novation Claim by Successor-In-Interest

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

Board Allows Government to Add Powerful “Unclean Hands” Affirmative Defense on Eve of Hearing

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

OHA Confirms Competitors Cannot Protest 8(a) Sole Source Awards

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

VA Obtains $685 Million for Construction and Renovation Projects

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

General Release Cuts Off Subcontractor Pass-Through Claim

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

Government Contractor May Proceed With Delay Claim Notwithstanding Incomplete Project

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

Feds Charge Alleged Sham Small Businesses Owners

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

Contractor’s Inferior Knowledge and Mistakes Are No Excuse for Avoiding the Preclusive Effect of a Contractual Release

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

DoD Announces Enhanced Debriefing (and Extension to Deadline for Securing CICA Stay)

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

2017 Government Contracts Year in Review

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
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