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Event Series Event Series: Case of the Month 2024

Case of the Month

February 13 @ 12:00 pm - 1:00 pm

Case of the Month Club Series 2024

Please join our Case of the Month Club, a program in which our expert instructors will take a deep dive into recent decisions involving issues that affect all of us on a regular basis.  This class, meant for contracting professionals, will focus on different cases, going beyond the mere holding into the history, tactics, and significance of the case as a whole.  Whether the cases are bid protests or contract claims, our instructors, all of whom are experienced professionals, will discuss the facts of the cases at hand, the reasons why the cases are important, the strategies that were used, and the lessons that can be learned from them. To maximize your experience, we will send you copies of the cases in advance so that you are primed for the discussion when our program begins.   Sound interesting?  We hope so, and we look forward to having you with us for the start of the series.

Because the Case of the Month Club will look at recent cases based on their importance to Government Contracting, we will set the class’s Topic several weeks prior to the program.  This will help keep the program fresh.

Case of the Month 2024
Second Tuesday of the Month, 12:00-1:00pm ET

  • January 9 Ben Holtz Consulting, Inc. dba California Avocados Direct v. Dept. of Agriculture, CBCA No. 7637 (Nov. 17, 2023); and, 4DD Holdings, LLC and T4 Data Group, LLC v. The United States, — Fed.Cl. —-, 2023 WL 8290926 (August 22, 2023)

    PCI’s Case of the Month Club will kick off the New Year with the discussion of two important recent Contract Disputes Act decisions. In the first case, Ben Holtz Consulting, Inc. dba California Avocados Direct v. Dept. of Agriculture, CBCA No. 7637 (Nov. 17, 2023), the Civilian Board of Contract Appeals sheds further light on the confusing question of how termination costs are to be calculated under a contract for commercial products.   In the second decision, 4DD Holdings, LLC and T4 Data Group, LLC v. The United States, — Fed.Cl. —-, 2023 WL 8290926 (August 22, 2023), the Court of Federal Claims deals with the calculation of damages flowing from the Government’s infringement of a contractor’s software copyright, a calculation heavily influenced by its finding that the Government tried to hide its infringement by destroying evidence and misrepresenting its actions.   In a world where the Government’s acquisition of commercial products continues to increase each year, and where it has exhibited a voracious appetite for commercial software, these decisions provide important guidance to Government agencies and contractors alike.  Join us on January 9 for PCI’s Case of the Month Club!
  • February 13
    Our February 13 Case of the Month Club session will focus on two timely, recent decisions, the first a bid protest, the second a CDA case.  In L3Harris Technologies, Inc., B-422006 et al., Dec. 20, 2023, 2023 CPD ¶ 290, the protester left no stone unturned as it challenged a NASA decision to award a nearly $1 billion contract. Its protest grounds included an improper evaluation, a faulty cost-realism analysis, and the existence of an unmitigable conflict of interest.  In a detailed decision, the GAO denied all of the protest grounds, showing great deference to the agency and its thorough and impressive agency report.   This decision is an excellent example of how an agency should conduct a procurement, even if that procurement has some unexpected twists and turns.   In Strategic Technologies Institute, Inc. v. Secretary of Defense, — F.4th —, 2024 WL 253316 (Fed. Cir. Jan. 24, 2024), the U.S. Court of Appeals for the Federal Circuit addressed a question that should be of great interest to anyone dealing with a cost-reimbursement contract:  When does a claim accrue?  In this case, the contractor had failed to submit its required indirect rate cost proposals after the first two completed years (2008 and 2009) of its Navy contract.  In 2014, when the Government realized it had never seen the proposals for 2008 and 2009, it requested the contractor to submit the proposals, which the contractor did.  In 2018, the Government demanded reimbursement of more than $1 million, including interest and penalties.  The contractor argued that the Government’s request was barred by the six-year statute of limitations, contending that the statute began to run at the time the contractor had missed its filing dates.  The court’s response to that argument is short and instructive, and serves as a reminder that contractors dealing with the U.S. Government must turn square corners.  Please join us on Feb. 13 to hear our experts discuss these two interesting cases!
  • March 12
    PCI’s March 12 Case of the Month Club program will feature one bid protest and one CDA case.  The bid protest, Deloitte Consulting, LLP, B-422094, 422094.2, Jan. 18, 2024, 2024 WL 402292, involves an RFQ issued pursuant to FAR Part 8 for a project worth more than $200 million. The protester alleged several violations in the procurement process, but was only sustained on one (which is all you need), the allegation that when the awardee had dropped a key subcontractor from its team to avoid a conflict of interest, the agency did not reevaluate its proposal to assess the impact that the elimination of the subcontractor would have on the proposal. It is difficult to prove that an agency performed an inadequate evaluation of an awardee’s proposal, as is made clear with respect to the protester’s other alleged grounds.  The GAO’s decision is a good case study, however, on just what it takes to win such a protest and, from the Government’s perspective, what will and will not be helpful in defending the agency’s position.    The CDA case, Amentum Services, Inc., ASBCA Nos. 63250, Feb. 6, 2024, 2024 WL 773339, is yet another in a line of cases involving a contractor seeking relief from extra costs incurred as a result of the Covid pandemic.  In a creative approach to the problem, the contractor sought its relief under two paths available under its service contract, several labor-related statutes such as the Service Contract Act and the Fair labor Standards Act, and, in the alternative, the constructive change doctrine.  Were they successful?  Yes and no.   Join our experts Tracye Howard and Brian Walsh as they dissect these two recent decisions—a very valuable program for anyone involved in Government contracting.
  • April 9
    PCI’s Case of the Month Club program for April will feature two CDA cases. The first case, MLB Transportation, Inc. v. United States, 2024 WL 1281078 (Fed. Cl. Mar. 25, 2024), involves the always-thorny issue of what a contractor should do when the Government’s estimates are significantly higher than actual needs under an IDIQ contract.  In this case, however, the contractor encounters serious headwinds at the U.S. Court of Federal Claims because of two pesky issues, the statute of limitations and the obligations imposed on a contractor by a patent ambiguity in the contract.  In the second case, JKB Solutions and Services, LLC. V. United States, 2024 WL 1131445 (Fed. Cl. Mar. 15, 2024), is a decision on remand following a Federal Circuit decision that we discussed in January 2022.  This time, the court spends a considerable amount of time attempting to decide whether the contract in question is a commercial item contract, ultimately concluding that it is.  It then focuses on the question of whether a constructive termination for convenience is appropriately used to resolve an alleged breach of contract. Despite the fact that the court concludes that summary judgment is not appropriate on all the issues, the reader is left to wonder whether the small-business contractor now rues the day it ever filed suit.  Join our expert instructors Tracye Howard and Brian Walsh as they discuss these two fascinating cases.   
  • May 14
    PCI’s May Case of the Month Club program will take a slight detour from our normal offering, focusing on two somewhat mundane issues that can at times come roaring to life—SAM registration and small business size status.  Our experts will first discuss the recent GAO decision in TLS Joint Venture, LLC, B-422275, Apr. 1, 2024, 2024 WL 1460853, where a disappointed offeror challenged the award to its competitor on the grounds that the competitor had let its SAM registration lapse between the time offers were submitted and the time award was made.  Despite the Navy arguing that the award was perfectly valid, the GAO ruled otherwise and it meant the loss of a $4 million contract.  The second case is a recent decision by the SBA’s Office of Hearings and Appeals (“OHA”), AERO-TEL Wire Harness Corp., SBA No. VSBC-344-P, Mar. 22, 2024, 2024 WL 1333719, in which a disappointed offeror challenged the announced award under a procurement set-aside for SDVOSB concerns. The OHA noted that the challenged firm, which had represented itself as an SDVOSB,  was not a certified SDVOSB and had submitted nothing to OHA to argue otherwise.  Under those circumstances, the OHA had little choice but to sustain the protest, thus knocking the awardee out.   While these cases are not earth-shattering, they are a good reminder of how important the seemingly innocuous representations and certifications can be, and why companies need to be vigilant in making sure they are both current and accurate.  Join us on May 14 for this important program!
  • June 11
    PCI’s June 11 edition of Case of the Month Club will feature two bid protests. The first case, Kearney & Company, P.C. v. United States, 2024 WL 2209767 (Apr. 30, 2024, Ct. Cl.), involves a fascinating contact interpretation issue, a challenge to an agency’s proposed corrective action, and an excellent example of how differently the same protest can be handled by the GAO and the U.S. Court of Federal Claims. In the second case, Insight Technology Solutions, LLC, B-421764.6; B-421764.7, Mar. 27, 2024, 2024 WL 2077421, the GAO reminds us of the need for filing timely protests, the failure to do so leading to serious consequences. Join us on June 11 for another wonderful episode of PCI’s Case of the Month Club!
  • September 10
    The fall semester of PCI’s Case of the Month Club is about to begin!  Join us on Tuesday, Sept. 10, as our experts discuss two recent decisions, one of which is going to have a significant impact on the procurement community.  Our first case will be the COFC’s decision in ASG Solutions Corp. v. United States, No. 23-1029, 2024 WL 3084021 (Fed. Cl., June 18, 2024), where the plaintiff unsuccessfully challenged its termination for default under the CDA, and when the agency later proposed the plaintiff for debarment, sought to stay judgment on the CDA action and to enjoin the proposed debarment. The second case is the decision of the U.S. Court of Appeals for the Federal Circuit in Percipient.ai, Inc. v. United States, 104 F.4th 839 (Fed. Cir. 2024), where, in a lengthy opinion reversing the COFC, the court expands protester standing and sets forth important limitations on the FASA bar on task order protests at the COFC.   This decision is going to have a significant impact on the procurement community, and is well worth reading before our session on Tuesday.  We look forward to seeing you on Sept. 10!
  • October 8
    In PCI’s October 8 Case of the Month Club, our experts will discuss two recent protest decisions of great interest.  The first case we will cover, Oak Grove Technologies, LLC v. United States, 2024 WL 4138392, (September 11, 2024, Fed. Cir.), is a tour of several issues that frequently arise in connection with negotiated procurements (e.g., improper evaluation, an alleged OCI, failure to conduct discussions), but, perhaps most importantly, it also involves the Government’s appeal of sanctions (rarely imposed) that the U.S. Court of Federal Claims imposed on the Government for failure to submit a full administrative record at the COFC.   A careful reading of this case also will serve as a reminder that the job of a Government contracting officer can be quite challenging, and that proper documentation remains a C.O.’s greatest weapon.  The second case, Knudsen Systems, Inc., B-422433.2, Aug. 9, 2024, 2024 CPD ¶ 190, serves as yet another reminder of the obligations agencies now have to conduct adequate market research in connection with every procurement.  In Knudsen, the Navy’s market research was based on a fatally-flawed assumption that the “non-manufacturer rule” had been waived.  When the Navy later learned that no such waiver applied, it failed to update its market research and simply plowed ahead.  As the GAO makes clear in its decision, that dog will not hunt.  As always, we strongly recommend that you read both cases before our program begins.  Join us on Oct. 8 for this fascinating discussion!
  • November 12
    PCI’s Nov. 12 Case of the Month Club will cover a recent CDA case and a recent GAO protest decision.  In the CDA case, Sage Acquisitions LLC v. Secretary of Housing and Urban Development, No. 2023-1907, 2024 WL 4522253 (Fed. Cir. Oct. 18, 2024), the U.S. Court of Appeals for the Federal Circuit dives deep into the key difference between IDIQ contracts and requirements contracts, and the result for the contractor is a denial of all its claims.  Despite clear contract language providing that the contracts in question were IDIQ contracts, the contractor attempted to argue that they were requirements contracts and that the Government’s convenience termination of the contracts should lead to significant financial recovery.  Both the Civilian Board of Contract Appeals and the Federal Circuit made short shrift of that argument, and it was all downhill for the contractor after that.  This case provides an important lesson to contractors regarding how a contract type can affect their right to recover costs under a termination for convenience clause.The protest decision, KBR Services, LLC; Vectrus Systems Corporation, B-422697.5, Oct. 4, 2024, 2024 CPD ¶ _, presents a very unusual situation.  In the course of evaluating task order final proposal revisions from four offerors, the Army noticed that one offeror had promised to comply with the solicitation’s small business subcontracting requirement but its technical proposal said it would self-perform all the requirements and it did not include any subcontractor costs in its cost proposal. The Army engaged in clarifications, asking the offeror if it intended to use small business subcontractors—to which the offeror responded that it did. The Army then found the proposal technically acceptable, even though the offeror’s technical approach still said it would self-perform the work. The Army also adjusted the offeror’s price to reflect subcontractor costs that had not been included in the proposal. The Army then awarded to that offeror, at a cost of nearly half the other proposed prices. Even though cost was the lowest weighted evaluation factor, and was significantly less important than all technical factors combined, it clearly was attractive to the Army. Two disappointed offerors protested, and the GAO makes it clear that the Army’s actions were unacceptable. The GAO’s recommendation, however, makes it clear that the Army might well be doing business with that contractor in the near future.Join us on November 12 for a fascinating discussion of these two unusual cases!
  • December 10
    PCI’s December 10 Case of the Month Club program will serve as a welcome respite from the hectic holiday season.  Join our experts as they discuss a recent GAO bid protest decision and a recent ASBCA decision that will be of interest to contractors and agency personnel alike.  In the bid protest, DecisionPoint Corporation—f/k/a Emesec Inc., B-422245.5, 2024 WL 4907924 (Nov. 13, 2024), the GAO grapples with yet another case involving corporate status and restructuring issues and their impact on an ongoing solicitation. Although many GAO decisions simply pave the way for the agency to correct its mistakes and award to the same company, this decision is one of those rare situations where it appears that the protester will actually get the contract—an $83 million Christmas present.

    In the ASBCA case, BR Group, ASBCA Nos. 63507, 63744, 2024 WL 4898695 (Nov. 6, 2024), the board sustains a Government motion for summary judgment concerning a surplus sales contract—something we have not dealt with before in the Case of the Month Club.  Moreover, the dispute involves an attempt at proving a mistake in bid, always a tall order, and the board makes clear that the appellant has failed to prove any of the five elements of such a claim.  The board also rejected a number of other arguments lodged by the contractor, finding that the board lacked jurisdiction because the arguments were untimely, outside the board’s authority to grant the relief requested, and/or were never submitted to the contracting officer.

    Join us on December 10 as our experts unwrap these interesting packages!

Organizer

John Plinke
Phone
202-775-7240
Email
seminars@publiccontractinginstitute.com

Other

Delivery Method
Live Virtual Training

Venue

Online