33625622256_9121ae6cdd_kImagine a scenario in which a solicitation, calling in part for certain vehicle storage by bidders, requires that “[t]he contractor shall provide evidence that it has complied with all laws and ordinances associated with vehicle storage.  Applicable permits shall be kept current throughout the terms of the contract.”  Imagine then that a bidder does not demonstrate in its proposal that its intended vehicle storage facility has the necessary permits and is in compliance with state law and local ordinances regarding vehicle storage.  Nevertheless, the Government awards the contract to that bidder after failing to consider whether the bidder has suitable property to satisfy the vehicle storage requirement of the solicitation.  This seems like a clear instance of error by the government justifying a protest, right?  This very scenario was recently addressed by the U.S. Court of Federal Claims (“COFC”) in Vintage Autoworks, Inc. v. United States, a decision that should remind bidders/protestors to pay careful attention to the difference between responsibility criteria and contract performance requirements (also known as “matters of contract administration”).  While the failure to demonstrate compliance with a responsibility criteria is protestable (with some limitations), the failure to demonstrate compliance with a contract performance requirements is a matter of contract administration and is not protestable.

Spotting the Difference

How can you tell the difference between a responsibility criteria and a performance requirement?  Responsibility criteria are those criteria that require the bidder to demonstrate, prior to award, its capability to perform the contract requirements. This does not necessarily mean that a bidder needs to have achieved contractual performance requirements at this point, it just means that a bidder must have the capability of doing so.  As the COFC has explained: Continue Reading Responsibility Criteria v. Contract Performance Requirements – When Can You Protest?

14287520378_7b26b29d20_kMaritime government contracting is a multi-billion dollar industry involving the Navy, Army, Coast Guard and other agencies. Most contractors are familiar with the Federal Acquisition Regulation (FAR) 33.211 provision at the end of each contracting officer’s (“CO’s”) decision on a Contract Disputes Act (“CDA”) claim stating: “Instead of appealing to the agency board of contract appeals, you may bring an action directly in the United States Court of Federal Claims (except as provided in 41 U.S.C. 7102(d), regarding Maritime Contracts) within 12 months of the date you receive this decision.” As a result of this language specifically referencing the U.S. Court of Federal Claims (“COFC”), some maritime contractors incorrectly appeal CO final decisions on maritime claims to the COFC.  Unfortunately these contractors do not understand that this language limits court appeals of a CO’s decision on a maritime contract claim to U.S. District Courts.  The question for the COFC then becomes whether to transfer to U.S. District Court or dismiss the case. Certainly, no contractor wants to find itself in this situation because their claim has appealed to the wrong court.

The CDA’s language establishes the alternative procedure for claims arising under maritime contracts, such as contracts for the repair of vessels, ship management, stevedoring, port facilities and dredging.  The effect of § 7102(d) is that contractors who are a party to a maritime contract may, after receiving a decision from the CO, (1) file an appeal at the board of contract appeals (“BCAs”) within 90 days of receipt of the decision, or (2) file an “action” appealing the decision directly in U.S. District Court within 12 months. Continue Reading Which Courts have Jurisdiction to Consider Appeals of Maritime CDA Claims?

8707585831_65f79c023d_kIn FY 2016, there were 2,789 bid protests filed at the Government Accountability Office (“GAO”) challenging federal procurement decisions.  In approximately 46% of these protests, the protester obtained some or all of the relief it was seeking, either through the protest being sustained by GAO, or through the federal agency taking voluntary corrective action in response to the protest.  However, many protests are not successful, and are either denied or dismissed by GAO.  Of all protests filed, approximately 19% were dismissed due to procedural or jurisdictional defects.  And, of the bid protests decided on their merits, approximately three-quarters were denied.

Why are so many protests dismissed or denied by GAO?  Frankly, in many cases a protest is lost because the protester, or its outside counsel, fails to take the fundamental steps necessary to enhance its chances of winning the protest.

This post is the first in a multi-part series discussing the fundamental steps that protesters (and their outside counsel) can take to enhance their chances of success at GAO.  Today, we discuss how contractors can use the debriefing process to enhance their chances of success at GAO.

Make Your Debriefing Count

If you are seriously considering a bid protest, you need to take full advantage of the debriefing process.  During the debriefing you should keep two main goals in mind.  Continue Reading Fundamentals to Winning Bid Protests at GAO — Part 1: Make Your Debriefing Count

13233537673_cd8705c3af_kA Request for Equitable Adjustment (REA) is not defined by the Federal Acquisition Regulation (FAR), but is only referenced therein.  What then, is an REA?

REAs are requests for additional monies or time based on contract clauses that provide for such relief, for instance the Changes clause of the contract or the Differing Site Conditions clause.  Historically, no less an authority than the Supreme Court has explained an REA is equal to a breach of contract:

With respect to claims arising under the typical government contract, the contractor has agreed in effect to convert what otherwise might be claims for breach of contract into claims for equitable adjustment.

Thus, an REA is a means for a contractor to get paid for additional costs as well as obtain a time extension to the contract.  A successful REA requires a clear factual narrative supported by documents, and a legal theory tying those facts to a basis of recovery. Continue Reading Key Ingredients for a Successful Request for Equitable Adjustment

Teaming JV Jun2017Join Howard Roth June 1st for “Teaming & Joint Venturing for Government Contracting Success” sponsored by Washington PTAC and Tri-City Regional Chamber of Commerce.  This seminar will be held at the Tri-Cities Business & Visitor Center Bechtel Board Room 7130 W. Grandridge Blvd., Kennewick WA 99338 from 10am to 12pm.  For more information and to register, go to http://washingtonptac.org/event/teaming-joint-venturing-for-government-contracting-success-june-1-2017-10-am-12-pm-tri-cities-kennewick/

 

 

On April 18, 2017, President Trump signed the “Buy American Hire American” Executive Order (“EO”).  The EO restates the policy of the government to buy American.  Federal agencies are required to make an assessment of what the EO calls the “Buy American Laws” aimed at maximum use of United States materials. The EO states that “it shall be the policy of the executive branch to maximize, consistent with law . . . the use of goods, products, and materials produced in the United States,” however, no measurable definition of “maximize” was provided in the EO.  The EO also requires the Secretary of Commerce and the United States Trade Representative “to assess the impacts of all United States free trade agreements and the World Trade Organization Agreement on Government Procurement on the operation of Buy American Laws, including their impacts on the implementation of domestic procurement preferences.”  These reviews are designed to ensure that American companies are treated equitably by assessing the impact of these agreements on the Buy American Laws.

Importantly, the EO reaffirms that in order for iron and steel products to be considered “Produced in the United States,” all manufacturing processes must take place in the United States.  The reaffirmation of Buy American Laws will undoubtedly assist U.S. manufacturing, especially if the review of trade agreements results in any curtailment of foreign manufactures’ ability to be exempt from the Buy American Act.  The EO also has the potential to limit companies who previously benefited from U.S. Government procurements and grants through waivers and exemptions to Buy American requirements.  The EO sets up the following timeline from the date of the EO: Continue Reading Executive Order Advocates For Strengthening Buy American Requirements   

272546436_4edcb4b3e0_bPresident Trump has signed Executive Order 13767 that directs a wall to be built on the Mexico-United States border.  The Department of Homeland Security has sought proposals to design and build a prototype of the border wall, and many contractors have submitted offers.  At the same time, several state and local governments (such as New York City, San Francisco, Berkeley, Oakland, New York, Illinois, and California) are considering or proposing legislation to prohibit contractors working on the border wall from contracting with that state/local government. These contractor “sanctions” are a complex, untested issue, and contractors bidding, or considering working, on the border wall project need to know that the issue is now in play. Such legislation, if adopted by a state/local government, will raise constitutional issues.  Aside from due process and equal protection issues, there are at least two relevant U.S. Constitution clauses both of which may ultimately doom any proposed state/local legislation to sanction border wall contractors: the Supremacy Clause and the Dormant Commerce Clause. Continue Reading Possible Constitutional Issues with Proposed State/Local Sanctions Against Contractors Working on President Trump’s Border Wall

16064264536_9c9caeb509_hWhen a government contractor is terminated for reasons other than default, the response from the contractor is often to evaluate the contracting officer’s decision and rationale for the termination and determine if an appeal is warranted.  Government contractors sometimes appeal a contracting officer’s decision to terminate their contract by alleging bad faith and an abuse of discretion.  While the contractor may legitimately believe that the contracting officer acted in bad faith or abused their discretion, proving its allegations and convincing the Court of Federal Claims or a Board of Contract Appeals to reverse the contracting officer’s decision is no simple task.  Even a contracting officer who terminated a contract based on a mistaken understanding of the facts and circumstances may not constitute bad faith or an abuse of discretion.

Recently the Postal Service Board of Contract Appeals (“PSBCA”) had the opportunity to address this situation in the consolidated appeals of Cook Mail Carriers, Inc. v. United States Postal Service and Patricia J. Sasnett v. United States Postal Service.  PSBCA No. 6583, 6584 (March 24, 2017).   In these appeals two government contractors – Cook Mail Carriers, Inc (“Cook”) and Patricia J. Sasnett (“Sasnett”) – who provide mail transportation services in Alabama for the US Postal Service were terminated due to revisions in the mail routes directed at simplifying the transportation network, pooling resources, managing workloads, and gaining contract administration efficiencies.  The contracting officer invoked the Postal Service’s “Termination with Notice” clause in order to terminate these contracts, a clause that allows either party to terminate the contract, without cost, provided proper notice (60 days) is given.

When the contracting officer decided to terminate the Cook and Sasnett contracts he believed that the need for revised routes was due to a mail processing plant in Gadsden, Alabama being closed and merged into a larger facility in Birmingham, Alabama.  However, after the termination, the contracting officer learned that the Gadsden facility had previously been closed and the reason for the revised routes was due to mail transportation hubs (as opposed to processing plants) being relocated to Fort Payne and Boaz, Alabama.

Cook and Sasnett appealed the contracting officer’s decision arguing, among other points, that the contracting officer’s decision to terminate the contracts on 60 days’ notice (as permitted by the Termination with Notice provisions of the respective contracts) was made in bad faith or constituted an abuse of his discretion.

While the contracting officer terminated the contracts under the Termination with Notice clause, which does not include any express limitation to its use, the contracting officer’s exercise of the clause is not truly unlimited.  A decision to exercise that clause can breach the contract if it was made in bad faith or as an abuse of discretion.  Continue Reading Does a Contracting Officer’s Mistake about the Reasons for a Termination Constitute Bad Faith or an Abuse of Discretion?

25927634816_d55644f384_kNearly 100 days into the new presidency, all eyes are on which of his campaign promises President Trump will implement next.  One such promise put into motion is the President’s estimated $1 trillion infrastructure plan.  Touted during his campaign as a means to stimulate job growth, the President’s plan may come with more federal deregulation than the construction and government contracting industries anticipated, including possible repeal or suspension of the Davis Bacon Act (DBA).

Introduced in the midst of the Great Depression, Congress enacted the DBA as a means to prevent failing wages.  Eighty years later, the DBA has become synonymous with federal contracting.  Also known as the federal prevailing wage statue, the DBA requires payment of prevailing wages on federally funded or assisted construction projects for contracts in excess of $2,000.  Critics of the DBA argue that the prevailing rates artificially and unreasonably increase project costs, and that the U.S. Department of Labor is unable to develop an efficient process for determining market-rate wages.  Proponents – particularly labor unions – argue the DBA prevents a “race to the bottom,” increasing productivity and improving local economies. Continue Reading President Trump’s Comments Stir Rumors of Possible Repeal or Suspension of the Davis Bacon Act

A federal judge in the Western District of Washington has ruled that tribal employees may still be liable in their individual capacities under the False Claims Act, even if Native American tribes themselves are protected from such suits by sovereign immunity. This interpretation could have important implications for Alaska Native-owned and Native American-owned businesses as federal courts across the country confront a range of tribal sovereignty issues in the coming months. Continue Reading Tribal Employees Potentially Liable Under False Claims Act, Washington Federal Court Finds