ONLY A CONTRACTOR, NOT AN IMPOSTOR, MAY SUBMIT A CLAIM

An Air Force contracting officer (“CO”) receives an email referencing Contract No. H92237-13-C-5002 (the “Contract”) for general labor services for a base in Afghanistan. The General Director of Tawhid Afzali Construction Company (“TACC”), Mr. Muhmmad Nazeer, states in the email that his company did not receive payment for the three year old Contract, enclosing a purported copy of the Contract which was dated three years prior and showed a face amount of $72,400. The information on the face of the Contract contradicted the original award determination in the contract file which stated that “it is determined that Najibullah Rahmal, in the amount of $94,240, is most advantageous to the government.” The CO has no copy of the Contract in the file, and no record of … Continue reading

THE LATE OFFER RULE DOES NOT APPLY TO QUOTATIONS

The general rule in government procurement is that when a contractor submits an offer, it must be on time as stated in the solicitation. With very limited exceptions, “late is late” and the offer generally may not be considered. This is reflected in the three Federal Acquisition Regulation (“FAR”) sections dealing with instructions to offerors: FAR 52.212-1(2), Instructors to Offerors-Commercial Items (for use in Commercial Item procurements); FAR 52.214-7(b), Late Submissions, Modifications, and Withdrawals of Bids (for use in Sealed Bidding); and FAR 52.215-1(c)(3), Instructions to Offerors, Competitive Acquisition (for use in Negotiated Procurement). All three FAR sections contain virtually identical language that “[A]ny offer, [bid or proposal], modification, revision, or withdrawal of an offer received at the Government office designated in the solicitation after … Continue reading

POTENTIAL IMPACT OF NEW GUIDANCE ON FALSE CLAIMS ACT CASES

Two new Department of Justice (“DOJ”) Memoranda could have a potential impact on Civil False Act Claims cases, as well as other civil enforcement cases. The two memos are: Memorandum from Michael D. Granston, Director, Commercial Litigation Branch, Fraud Section, “Factors for Evaluating Dismissal Pursuant to 31 U.S.C. § 3730(c)(2)(A),” issued Jan. 10, 2018 (apparently leaked from DOJ and now available on the internet); and Memorandum from Associate Attorney General Rachel Brand, “Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases,” issued Jan. 25, 2018. First Memorandum Effect on Quit Tam Actions in False Claims Act Cases The first memo deals with factors that the DOJ will consider in determining whether or not to seek dismissal in qui tam suits where the DOJ … Continue reading

CAUTION ON “REFRESHES” OF YOUR MULTIPLE AWARD SCHEDULE CONTRACT

The General Services Administration (“GSA”) announced on April 26, 2018 that it will require that multiple award schedule contractors accept the bilateral Commercial Supplier Agreements (“CSA”) modification through a “refresh” of the contract. This change is described in 83 Fed. Reg. 7631 (Feb. 22, 2018) and will add or update add/update clause 552.212-4 Contract Terms and Conditions Commercial Items (JAN 2017) (DEVIATION – FEB 2018) (ALTERNATE I – JAN 2017) (DEVIATION – FEB 2007). The inclusion of this new clause involving Commercial Supplier Agreements makes certain common commercial license terms unenforceable, and invalidates them, even if they are included in your contract. These clauses often conflict with the Appropriations language in the U.S. Code. The new clause also addresses liability and assignments as well as … Continue reading

FINAL SIGNED RELEASE BARS FUTURE CLAIMS

Once again, a contractor was barred from raising future claims on a contract where the same contractor had executed a final release that included no reservations or exceptions, the government had made final payment, and none of the limited situations for re-opening the contract to a claim applied. “Unnamed” (Redacted name) Contractor, ASBCA No. 61065, Nov. 14, 2017. The Unnamed contractor was awarded a $1.9 million contract to construct and provide building upgrades for the Afghan Police Headquarters. The construction was inspected, accepted and deemed complete by the Government on November 4, 2013. On the same day, Unnamed submitted an invoice that specifically released and discharged the Government from all liabilities, obligations, and claims arising out of or by virtue of the contract, except specified … Continue reading

NEW RULE PERMITS SCHEDULE CONTRACTORS TO PROVIDE OFF-SCHEDULE ITEMS WITHOUT USING THE PREVIOUS “OPEN MARKET” PROCEDURES

The General Services Administration (“GSA”) issued a new rule that makes it considerably easier for GSA Schedule contractors to supply “non-schedule” materials and services, which are now referred to as “Order-Level Materials” or “OLM”. 83 Fed. Reg 3275 (Jan. 24, 2018). GSA states that this rule provides the same flexibility for the schedules (Federal Supply Schedules, or FSS) program that is currently authorized for other indefinite delivery, indefinite quantity (“IDIQ”) vehicles, which should help reduce administrative costs. The rule modifies the GSA Acquisition Regulation (“GSAR”) by adding a new Section, GSAR 552.238-82, “Special Ordering Procedures for the Acquisition of Order-Level Materials” and by making changes in GSAR subpart 515.408 and 538.72. Prior to this regulatory change, agencies could only purchase through a Schedule contract non-schedule … Continue reading

UNILATERAL MODIFICATION OF FUNDING CLAUSE BY AGENCY IS A BREACH OF CONTRACT, NOT A PROPER CHANGE ORDER

This blog recently discussed the limits of the use of the Changes Clause in a contract, noting that the clauses at Federal Acquisition Regulation (“FAR”) 52.243-1 through FAR 52.243-7 (Changes) are limited to the specific changed situations described in each clause, and cannot be used to change terms and conditions, including the payment clause of the contract. See “Changes Clause Can’t Be Used To Change terms and Conditions, Including Payment Clause” (Nov. 6, 2017). Now comes a later case where the Armed Services Board of Contract Appeals (“ASBCA” or “Board”) clearly states that an agency’s unilateral modification of a contract’s funding clause constitutes a breach of the contract. Kelly-Ryan, Inc., ASBCA No. 57168, Dec. 5, 2017. Kelly-Ryan was awarded a contract by the U.S. Army … Continue reading

GOVERNMENT WAIVER OF CONTRACT SPECIFICATIONS: WHEN AND HOW?

Waiver: The voluntary relinquishment or abandonment—express or implied—of a legal right or advantage. Black’s Law Dict. (10th Ed. 2014) This blog has discussed situations where the government has waived a delivery schedule in a contract. See “How Many Mistakes Can A Defense Logistics Agency Contracting Officer Make?” (January 2, 2018) and “Was Your Delivery Date Waived? Was Your Default Termination Improper?” (April 25, 2016). But there is another important waiver—when the Government waives contract specifications or requirements. How does that occur? A good example is found in American West Construction, LLC, ASBCA No. 61094, Dec. 19, 2017. The Army Corps of Engineers awarded a contract to American West to construct bridges over irrigation canals in Texas, near the border with Mexico. To access the site … Continue reading

IMPROPER DISCUSSIONS: AGENCY TREATED NEUTRAL PAST PERFORMANCE AS “INCREASED RISK” WITHOUT MENTIONING IT IN DISCUSSIONS

In a recent bid protest case, the Court of Federal Claims included two important conclusions: (1) in determining whether a deficiency or weakness exists in a proposal, an agency must use a fact-centered, materiality or competitive impact analysis, not a categorical statement that an offeror has received a “neutral” past performance rating; and (2) although a neutral past performance rating (described in FAR 15.305(a)(2)(iv)) may have been given to a proposal, the agency may not choose to treat the proposal as having an increased risk of unacceptable performance, unless it identifies it to the offeror as a significant weakness in discussions. Precision Asset Management Corp. v. United States, No. 16-261C (Fed. Cl. Dec. 13, 2017). The Federal Housing Authority issued a solicitation for asset management … Continue reading

NO ACCEPTANCE MEANS NO CONTRACT

The U.S. Forest Service manages our national forests, which includes organizing and administering timber sales. These sales result in government contracts—but in reverse—the timber companies bid a price they will pay the government for the right to remove (and presumably sell) the timber. Generally, the high responsible bidder in a timber sale is the awardee. This case address when a timber contract is formed. After reviewing two prospectuses for timber sales in two areas of the Plumas National Forest in California, Pew Forest Products submitted two bids. See Pew Forest Products v. U.S., COFC No. 09-814C (May 7, 2012). On June 26, 2007, the contracting officer opened the bids and declared Pew the high bidder on both. Because of negotiations with environmental groups, the Forest … Continue reading