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

Seminar: Bidding Public Works and Construction Contracts

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

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
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