Government Contracts

GAO Sustains Protest for Agency’s Improper Cost Adjustment

GAO Sustains Protest for Agency’s Improper Cost Adjustment

The Government Accountability Office (“GAO”) recently sustained a protest in the matter of Vectrus Mission Solutions Corporation; Vanquish Worldwide, LLC where an agency improperly adjusted an offeror’s proposal price upward when the offeror expressly had agreed to absorb any costs above a cap in its proposal.  The GAO’s decision provides insight into cost realism evaluations such as when they should be undertaken and when they ...
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In Split Decision, Federal Circuit Affirms Agency Exclusion of Proposals

In Split Decision, Federal Circuit Affirms Agency Exclusion of Proposals

In U.S. Government procurements, most solicitations specify that noncompliance with its terms and conditions may cause a proposal to be determined unacceptable or be deemed non-responsive and excluded from consideration.  However, in some cases, the agency may alter the terms and conditions through pre-award discussions.  In Safeguard Base Operations v. United States, the Federal Circuit considered the latitude an agency has to make such alterations ...
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GAO Sustains Protest Due to Unreasonable Agency Evaluation

GAO Sustains Protest Due to Unreasonable Agency Evaluation

The Government Accountability Office (“GAO”) recently sustained a protest in the matter of TekSynap Corporation for the agency’s failure to reasonably evaluate proposals.  While the decision is not a novel area of law, it does provide contractors insight into what facts can be sufficient for the GAO to find that an agency conducted an unreasonable evaluation. The GAO has repeatedly stated that its role is ...
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In Uninteresting Result, Federal Circuit Leaves Offeror Standing Outside the Courtroom

In Uninteresting Result, Federal Circuit Leaves Offeror Standing Outside the Courtroom

In order to bring an action in any United States tribunal, a party must have “standing.”  “The doctrine [of standing] limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.”  Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).  To establish constitutional standing a “plaintiff must have (1) suffered an injury in fact, (2) ...
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Federal Circuit Holds CICA Stay Clock Begins at Time of Debriefing When  Disappointed Offeror does not Avail Itself of Right to Ask Additional Questions

Federal Circuit Holds CICA Stay Clock Begins at Time of Debriefing When Disappointed Offeror does not Avail Itself of Right to Ask Additional Questions

No questions, no stay. The United States Court of Appeals for the Federal Circuit recently ruled on the interplay of debriefings and automatic stays.[1]  In NIKA Technologies v. United States, the Federal Circuit reversed a Court of Federal Claims (“COFC”) decision requiring an automatic stay of contract performance pursuant to the Competition in Contract Act (“CICA”) that had been previously denied by the Government Accountability ...
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Don’t be a victim of an ADA drive-by!

Don’t be a victim of an ADA drive-by!

This past year marked the 30th Anniversary of the Americans with Disabilities Act (ADA). The Act was signed into law on July 26, 1990. The Act is a civil rights law that promotes the inclusion of people with disabilities in every aspect of life, including existing buildings and facilities.  Under Title III, the Act defines “Public Accommodations” as a private entity that owns, leases, or ...
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Federal Circuit Adopts Narrow Definition of “Printing” to Avoid Constitutional Separation of Powers Question

The U.S. Court of Appeals for the Federal Circuit recently reversed a bid protest decision appealed from the Court of Federal Claims after the protester raised a constitutional question.  In Veterans4You LLC v. United States, the Department of Veterans Affairs (“VA”), an executive branch entity of the United State government (“USG”), sought to procure cable gun locks with information on the VA’s suicide prevention hotline ...
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GAO Finds SAM Registration Requirement to be Minor Informality

GAO Finds SAM Registration Requirement to be Minor Informality

FAR 4.1102 requires offerors to register in the System for Award Management (“SAM”) at the time an offer is submitted to the government, with limited exceptions such as micro-purchases, classified contracts, emergency contacts, and some others.  However, the Government Accountability Office (“GAO”) recently found that an offeror’s failure to renew its SAM registration was not so vital that such an oversight merited excluding the proposal ...
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Agency Requirement that Past Performance Occur at Specific Contracting Tier Found Unduly Restrictive

Agency Requirement that Past Performance Occur at Specific Contracting Tier Found Unduly Restrictive

Procuring agencies have wide latitude in developing requirements for their solicitations.  When provisions are challenged, the U.S. Government Accountability Office (“GAO”) merely evaluates whether the agency’s justification for the requirement at issue is rational and can withstand logical scrutiny.  However, there are limits to the agency’s discretion.  Agencies may not include requirements in solicitations that are unduly restrictive.  Specifically, 10 U.S.C. § 2305(a)(1)(B)(ii) provides that ...
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Timely Protest Following Required Debrief or Explanation Letter

Timely Protest Following Required Debrief or Explanation Letter

Under 4 CFR § 21.2, disappointed offerors protesting the award of a contract must file their protest within "10 days after the basis of the protest is known or should have been known." Notwithstanding the seemingly clear language, this is the subject of regular dispute, particularly with respect to procurements that require a debrief or explanatory letter to the party not receiving award. Additionally, there ...
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Justice law legal concept. statue of justice or lady justice with law books background.

Bid Protests On The Basis Of Cardinal Change: The Fine Line Between Solicitations And Contract Administration

The Government Accountability Office’s (“GAO”) Comptroller General and the U.S. Court of Federal Claims (“COFC”) regularly consider bid protests.  Bid protests are challenges to the terms of a solicitation or to the award of a federal contract.  Post-award protests are generally the result of an interested, but unsuccessful, offeror challenging the agency determination that another offeror provided the best value to the Government per the ...
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GAO Rejects Contractor’s Use of AIA Bid Bond for Federal Project

GAO Rejects Contractor’s Use of AIA Bid Bond for Federal Project

As all construction contractors know, the American Institute of Architects (AIA) provides a series of nearly 200 industry-standard consensus forms that define the relationships and terms involved in design and construction projects.  While these forms are appropriate for commercial projects, contractors that perform a mix of commercial and government projects should use caution when using them in a government contract context. In a decision published ...
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Virginia’s Proposed Permanent Standard for Infectious Disease Prevention Regulations: A reminder that the opportunity for public comment closes September 25, 2020

Virginia’s Proposed Permanent Standard for Infectious Disease Prevention Regulations: A reminder that the opportunity for public comment closes September 25, 2020

As previously publicized, the Virginia Department of Labor’s (DOL) Safety and Health Codes Board (Board) Emergency Temporary Standard (ETS) for Infectious Disease Prevention became effective on July 27, 2020, but because of their nature would expire unless they or alternatively proposed regulations were made into permanent standards. When the ETS were published, DOL included its notice of intention to adopt them as a permanent standard, ...
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Update on Section 889 restriction on government contractors use of Chinese-made telecommunications equipment and services

Update on Section 889 restriction on government contractors use of Chinese-made telecommunications equipment and services

Last week, we advised government contractors in this article about the new restrictions imposed by an interim rule and revised Federal Acquisition Regulation clauses that require contractors doing business with DoD, GSA, and NASA to certify they do not use “covered telecommunications and services” from Huawei and other Chinese companies.  We’ve learned that the Director of National Intelligence has responded to a request from DoD ...
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New FAR provisions will have far reaching impact for government contractors: Government imposes restrictions on contractors’ telecommunication equipment

New FAR provisions will have far reaching impact for government contractors: Government imposes restrictions on contractors’ telecommunication equipment

Prime contractors can expect to be asked for a new round of certifications as the result of a FAR provision that takes effect on August 13, 2020.  The provision was announced by an Interim Rule published in the Federal Register on July 14, 2020.  The rule is applicable to all contractors doing business with the Department of Defense (DoD), General Services Administration (GSA), and National ...
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Emergency Temporary Safety Rules Effective July 27 in Virginia

Emergency Temporary Safety Rules Effective July 27 in Virginia

This article is the third and final in a three-part series discussing the New Emergency Temporary Standards for Employers in Virginia. Click here to read Part 1 and Part 2. On July 27, 2020, the Virginia Occupational Safety and Health (VOSH) program published the Virginia Safety and Health Codes Board’s (the Board) Emergency Temporary Standard (ETS) for Infectious Disease Prevention: SARSCoV-2 Virus That Causes COVID-19, ...
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government contracts

Subpoena Power of Arbitrators Over Non-Party Documents

Arbitration is a means for parties to resolve disputes in a more efficient and less costly manner than seeking recourse through the judicial system.  The Federal Arbitration Act empowers the arbitrator to subpoena non-parties and their documents to an arbitration proceeding.  However, there is disagreement among the courts regarding the arbitrator’s power to compel pre-hearing document production from non-parties.  The federal circuits have approached this ...
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“Zone of Reasonableness” Test Prerequisite Addressed by the Federal Circuit

“Zone of Reasonableness” Test Prerequisite Addressed by the Federal Circuit

The so-called “zone of reasonableness” standard has been long applied by federal courts and boards of contract appeals in evaluating contract interpretation when the contract is deemed ambiguous – meaning that it is susceptible to more than one reasonable interpretation. Ambiguity does not exist merely because the parties differ in their respective interpretations of the contract; rather, the parties’ interpretation must be reasonable, with that ...
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government contracts

When Coming In First May Not Be Such A Good Thing?

When parties enter into a contract, they generally intend to follow the terms of a contract. However, sometimes, whether unintentionally or by mistake, inevitably, a party to a contract may breach a term of their contract by failing to follow through on a contractual obligation. Some breaches may be inconsequential and easily remedied, while some may rise to the level of a material breach and ...
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Joint Check Agreement Causes Big Trouble in Virginia

Joint Check Agreement Causes Big Trouble in Virginia

Many general contractors manage the risk of a subcontractor’s financial instability by issuing joint checks to the subcontractor and its suppliers on a project. These arrangements are usually governed by a separate agreement that sets forth the roles and rights of the parties, and limits the general contractor’s liability to sub-subcontractors and suppliers with whom the general contractor does not have a contract. A recent ...
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