CAN A RUBBER STAMPED SIGNATURE BIND A CONTRACTOR?

Is a rubber stamped signature of the President of a company on a release of claims valid? The Civilian Board of Contract Appeals, under the facts in Penna Group, LLC v. Dept of Justice, CBCA 6155, Sept. 27, 2018, held that it was a valid release after completion of a roofing contract. The Federal Bureau of Prisons (part of the Department of Justice) awarded a roofing contract to Penna Group. Upon completion of the work, the agency provided Penna with a completed release of claims form that released the United States from any and all claims arising under the contract or any modification or change, with the word “NONE” to identify the claims excluded by the contractor. Penna returned the document with the stamped signature … Continue reading

FEDERAL CIRCUIT WARNS CONTRACTING OFFICERS: MEET YOUR NEEDS WITH COMMERCIAL ITEMS FIRST

In 1994, Congress passed the Federal Acquisition Streamlining Act (“FASA”), Pub. L. No. 103-355, and included, codified as amended at 10 U.S.C. § 2377, a requirement that federal agencies, to the maximum extent practical, procure commercially available items and technology to meet their needs. A recent case, Palantir USG, Inc. v. United States, No. 2017-1465 (Fed. Cir. 2018), 2018 WL 4356686 emphasizes the importance of agency adherence to this strong preference for the consideration of commercial items, if they are available. Palantir concludes that even though the Army was on notice that Palantir’s product might be a commercial item that could satisfy its requirements for software for a “Distributed Common Ground System,” the Army did not use its market research results rationally, and excluded commercial … Continue reading

SIZE PROTEST DEADLINES DO NOT APPLY IF AGENCY FLOUTS SEALED BIDDING PROCEDURES

Agencies must strictly adhere to the procurement method as set forth in the Federal Acquisition Regulation (“FAR”). Failure to do so may result in a sustained protest. The FAR provides two principal methods of procurement, sealed bidding (Part 14 of the FAR) and contracting by negotiation (Part 15 of the FAR). Although the majority of the contract dollars awarded by the government are through negotiated procurement, sealed bidding is still quite important. The elements of sealed bidding leave very little room for discretion on the part of a contracting officer making an award, and are as follows: Agency prepares the solicitation, an Invitation for Bids (“IFB”), that describes the requirements clearly, accurately and completely Agency publicizes the IFB Offerors submit sealed bids to the agency … Continue reading

GAO JURISDICTION EXTENDS TO PROCUREMENT LAWS AND REGULATIONS BUT NOT QUESTIONS OF FISCAL LAW OR THE ANTI-DEFICIENCY ACT

In an Army procurement for web-based postage, Pitney Bowes, Inc., B-416220, July 11, 2018, the Government Accountability Office (“GAO”) recently made clear that its bid protest jurisdiction extends to violations of procurement laws and regulations, and does not generally extend to questions of fiscal law or regulation. Indeed, 31 U.S.C. § 3552, which provides GAO with its authority to consider and make recommendations on bid protests, states as follows: “A protest concerning an alleged violation of a procurement statute or regulation shall be decided by the Comptroller General [GAO] if filed in accordance with this subchapter.” (Emphasis added). In its protest, Pitney-Bowes had argued that the proposal submitted by the awardee of the contract, Stamps.com, violated fiscal law and regulation by proposing to purchase postage … Continue reading

AGENCY VIOLATIONS OF THE COVENANT OF GOOD FAITH AND FAIR DEALING

Two recent cases at the Armed Services Board of Contract Appeals (“Board”) demonstrate the importance and reach of the covenant (implied duty) of good faith and fair dealing.” This duty has been described by the Court of Appeals for the Federal Circuit as follows: “The covenant prevents parties from “act[ing] so as to destroy the reasonable expectations of the other party regarding the fruits of the contract.” Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005). The covenant “‘imposes on a party … the duty … to do everything that the contract presupposes should be done by a party to accomplish the contract’s purpose.’” Stockton E. Water Dist. v. United States, 583 F.3d 1344, 1365 (Fed. Cir. 2009) The Restatement (Second) of … Continue reading

GAO: AGENCY MISTAKES IN BID PROTESTS

For nearly a century, the Government Accountability Office (“GAO”) and its predecessor, the General Accounting Office, have provided an independent, impartial, and objective forum for bid protests on federal government solicitations and contracts. A bid protest is a written objection by an interested party to: A solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services; The cancellation of such a solicitation or other request; An award or proposed award of a contract; A termination or cancellation of an award of a contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract; or Conversion of a function … Continue reading

ALLEGED “FINAL CONTRACTING OFFICER DECISION” DOES NOT CURE ABSENCE OF REQUIRED CERTIFICATION

The Armed Services Board of Contract Appeals recently considered a contractor’s claim for $381,000 for the return of liquidated damages as well as a time extension. Areyana Group of Const. Co., ASBCA No. 60648, May 11, 2018. The Board held that even though a project manager had sent Areyana a document which was described as “the final decision of the Contracting Officer” and notified the company of its appeal rights, there was no claim to appeal, and the appeal was dismissed. Areyana was awarded a contract to design and construct barracks for the Afghan National Police. It did not complete the project in a timely manner. The government withheld $381,000 for liquidated damages, and Areyana submitted two “requests for equitable adjustment” for time extensions and … Continue reading

ALLOWING ONLY 44 MINUTES TO RESPOND TO A SOLICITATION?

You may think that allowing offerors only 44 minutes to respond to a solicitation for quotations is too short a time, but the Government Accountability Office (“GAO”) held that it was acceptable where emergency circumstances in connection with inclement weather warranted the short response time. AeroSage, LLC, B-415893, 4, April 17, 2018. The Defense Logistics Agency (“DLA”) was procuring diesel fuel to meet Department of Veterans Affairs (“VA”) fuel requirements for a VA Medical Center. After issuing a “sources sought” email on January 4, 2018, the VA assessed whether the diesel heating fuel could be placed under a long-term DLA contract for another VA medical center, but concluded that it could not. However, VA and DLA concluded that DLA could place the order as a … Continue reading

ONE YEAR IS THE DEADLINE FOR SUBMITTING TERMINATION FOR CONVENIENCE SETTLEMENT PROPOSALS

During the Civil War, at the famous Andersonville Prison, on the inside of the stockade and twenty feet from it, there was a deadline established, over which no prisoner was allowed to go, day or night, under penalty of being shot. By the 1900s, the word “deadline” was being used to describe any line that shouldn’t be crossed, not just where the offender would be shot. In the 1920s, deadline was being used as a synonym for “time limit” and was primarily associated with newspaper jargon. In the newspaper business, to have the latest news and still get a newspaper printed and distributed on time requires strict time limits for those who write it. Why are deadlines important for government contractors? Because there are numerous … Continue reading

FINAL DECISION MUST SOLELY ASSERT FRAUD TO DEFEAT BOARD JURISDICTION

The Armed Services Board of Contract Appeals refused to dismiss appeals for lack of jurisdiction where the government had argued that the final decisions of the contracting officer were invalid because the decision’s basis for denying the claims purportedly was a suspicion of fraud. PROTEC, GmbH, ASBCA Nos. 61161 et al., March 20, 2018. The Board found that a suspicion of fraud was not the basis of the final decisions, that there were other bases for denying the claims, and therefore the Board had jurisdiction to consider the appeals. PROTEC submitted a certified claim regarding its Contractor Performance Assessment Reporting System (“CPARS”) evaluation, which rated its performance as unsatisfactory. The government also refused to pay certain PROTEC invoices, and PROTEC submitted a second and third … Continue reading