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

WHEN SHOULD THE GOVERNMENT BE REQUIRED TO FILE A COMPLAINT AT THE BOARDS OF CONTRACT APPEALS?

The rules of the Armed Services Board of Contract Appeals (“ASBCA”) and the Civilian Board of Contract Appeals (“CBCA”) require that within 30 days after the docketing of an appeal, the appellant [contractor] must file a complaint setting forth its claims in simple, concise and direct terms. ASBCA Rule 6(a); CBCA Rule 6(b). A recent case discussed the situation when the Board reversed the rule, and required the Government to file the complaint. Transworld Systems, Inc. v. Dep’t of Education, CBCA 6049, March 1, 2018. Transworld concerned a government claim made by the Department of Education (“ED”) demanding that Transworld repay $1.3 million in alleged overpayments that ED had made. The Board explained that Transworld was appealing ED’s claim, not its own, and it is … Continue reading

WHEN WILL BOARDS HAVE JURISDICTION TO ADJUDICATE MATTERS THAT RELATE TO SERVICE CONTRACT ACT ISSUES?

There is an interesting question of whether or not the Boards of Contract Appeals (as opposed to the Department of Labor, or DOL) have jurisdiction over certain matters involving the Service Contract Act, 41 U.S.C. Chapter 67. A recent case, Alcazar Trades, Inc., CBCA 5837, Feb. 27, 2018, is a case where the Civilian Board found that the dispute was solely within DOL’s jurisdiction, and dismissed an appeal involving a wage determination. There are other cases which are distinguishable, as explained below, where the BCA’s will accept jurisdiction under certain circumstances. Alcazar negotiated a new collective bargaining agreement (“CBA”) under a GSA schedule contract, and submitted the new CBA to the agency (Nuclear Regulatory Commission) contracting officer, requesting upward wage adjustments in the contract option … Continue reading

UNTIMELY CLAIMS: EQUITABLE TOLLING OR EXCUSABLE NEGLECT?

A recent Armed Services Board Case gave some insight on the 6-year statute of limitations for filing claims under the Contract Disputes Act (“CDA”), explaining the circumstances under which equitable tolling could operate to extend the 6 years. Unfortunately, it did not apply to the appellant in this case. Khenj Logistics Group, ASBCA No. 61178, Feb. 15, 2018. Khenj was awarded a construction contract by the Army for barracks, bunkers and support buildings in Afghanistan in May 2009. When the facility location changed, the Army terminated the contract for convenience, and subsequently agreed to pay Khenj the cost of its Defense Base Act insurance and the cost of its materials. When Khenj soon thereafter (June 2009) attempted to contact the contracting officer by phone and … Continue reading

WHEN IS A TASK ORDER OUT OF SCOPE?

Two recent Government Accountability Office (“GAO”) bid protest decisions are interesting because in both cases, the GAO held that a task order issued by the agency was outside the scope of either the underlying Indefinite Delivery, Indefinite Quantity (“IDIQ”) contract, or outside the scope of the task order itself. The cases are Western Pilot Service et al, B-415732 et al, March 6, 2018, involving an air tanker procurement by the Department of Interior Bureau of Land Management (“BLM”), and Alliant Solutions, LLC, B-415994, May 14, 2018, involving a General Services Administration (“GSA”) Government Wide Acquisition Contract. When an agency seeks to procure something using an underlying contract or a task order, the product or service sought must be within the scope of the contract or … Continue reading

EXTEND YOUR OFFER OR PROTEST

An offer on a government contract is normally subject to a specified offer (bid or proposal) acceptance period. Standard Form (“SF”) 33, Solicitation, Offer and Award, includes a block 12 which states that either a minimum offer acceptance period is specified in FAR 52.214-16 (which is included in the solicitation), or if not so included, then the acceptance period to maintain the offeror’s prices is 60 calendar days, unless the offeror inserts a different period in block 12. For commercial contracts using SF 1449, Solicitation-Contract Order for Commercial Items, the minimum offer acceptance period is 30 calendar days, unless a different period is specified in an addendum to the solicitation. This is provided for in FAR 52.212-1, which is incorporated by reference in the SF … Continue reading

TERMINATION OF AN 8(A) CONTRACTOR FOR FAILURE TO PAY A SUBCONTRACTOR

A recent decision by the Small Business Administration’s (“SBA”) Office of Hearings and Appeals (“OHA”) sustained the SBA’s termination of an 8(a) contractor for failing to pay a subcontractor $68,688.53, citing this failure as a lack of business integrity. Corporate Portfolio Management Solutions, SBA No. BDPT-567, Feb. 15, 2018. OHA noted that the failure to pay the subcontractor, Procon, and failure to comply with either an arbitration agreement or a civil judgment entered against Corporate Portfolio, amounted to conduct indicating a lack of business integrity. Because there was no basis for determining that the SBA’s decision was arbitrary, capricious or contrary to law, OHA dismissed Corporate Portfolio’s appeal and declined jurisdiction. By regulation, SBA accepts a business into the 8(a) program for 9 years, so … Continue reading

THE GAO HAS NO BID PROTEST JURISDICTION OVER FANNIE MAE AND FREDDIE MAC

Even though the Federal National Mortgage Association (FNMA or “Fannie Mae”) and the Federal Home Loan Mortgage Corporation (FHLMC or “Freddie Mac”) were in receivership, they are not “federal agencies” and are not subject to the bid protest jurisdiction of the Government Accountability Office (“GAO”). S.E. James & Co., B-415733, Feb. 7, 2018. S.E. James protested actions by Fannie and Freddie not to include their company on a list of approved insurance agencies. GAO noted that both Fannie and Freddie are chartered as for-profit, shareholder-owned corporations, and seek to enhance the liquidity, stability and affordability of mortgage credit. Because of their deteriorating financial condition, which threatened the stability of the financial market, Fannie and Freddie were placed into conservatorships. The GAO dismissed the protest because … Continue reading

UNREASONABLE RESTRICTIONS ON QUOTATION OR PROPOSAL REVISIONS

Federal Acquisition Regulation (“FAR”) 15.307 states that “[a]t the conclusion of discussions, each offeror still in the competitive range shall be given an opportunity to submit a final proposal revision….” This same requirement for fairness applies to negotiated procurements that seek proposals as well as quotations from offerors. Recently, the Government Accountability Office (“GAO”) reminded agencies that when they seek a final offer, they cannot restrict a contractor’s ability to make amendments in areas where there have been amendments that materially impact those areas. In Castro & Co., B-415508.4, Feb. 13, 2018, the Department of Homeland Security (“DHS”) issued an amendment to a solicitation for financial statement audit and internal control support services. After DHS selected the awardee, it received post-award protests, and decided to … Continue reading