Oles Morrison Rinker & Baker, LLP, one of the West Coast’s most respected law firms, is pleased to announce that attorney David Yang has joined the firm as a partner.

Yang’s practice focuses on government contracts where he advises clients on all critical aspects of their business, whether the issues involve compliance, intellectual property, prime-subcontractor matters, cost accounting, claims, bid protests, false claims act or other disputes.

Yang has litigated on behalf of contractors before a diverse range of courts, boards and arbitration panels. He focuses on bid protests, where he has successfully protested and defended billions of dollars’ worth of some of the largest defense and civilian procurements in recent history before the U.S. Government Accountability Office and the U.S. Court of Federal Claims, where he served as a law clerk early on in his career.  In addition to his expansive protest work, Yang has recovered millions of dollars in Contract Disputes Act claims before the boards of contract appeals and also routinely defends contractors in False Claims Act cases in federal courts nationwide.  Yang has strategically obtained dismissal of several multimillion-dollar FCA lawsuits through the effective and efficient use of pre-trial motions.

Prior to joining Oles Morrison, Yang was a partner at an AmLaw 100 firm in Washington, D.C. He also served as a law clerk for the Honorable Mary Ellen Coster Williams at the U.S. Court of Federal Claims.

Yang received his law degree from George Washington University Law School, with high honers, and his bachelor’s degree from the University of Washington

The addition of David Yang expands Oles Morrison’s already skilled government contracts team, which, in addition to Yang, is led by Adam LaskyHoward Roth and Jim Nagle.

About Oles Morrison

With deep roots in the Pacific Northwest and Alaska, Oles Morrison Rinker & Baker LLP has built a legal practice with a focus on construction, government contracts, commercial litigation and real estate transactions. Our experienced team has been helping domestic and international companies of all sizes to resolve legal issues on a wide variety of complex public and private projects while protecting their business interests for 125 years.

Often times the most difficult part of the government contract claims process is checking all the procedural “boxes” of a certified claim.  Failure to file a claim within six years of accrual, request a contracting officer’s final decision, or include a wet ink signature are just a few of the procedural technicalities required by the Contract Disputes Act (“CDA”) that can get a claim kicked out before the Board ever has a chance to get to the merits.  Another significant procedural requirement under the CDA is that, for claims of more than $100,000, the claimant must provide a certification that certifies (among other things) that the claim is supported by accurate and complete data and the amount requested accurately reflects the contract adjustment for which the claimant believes the government is liable.

In Mayberry Enterprises, LLC v. Department of Energy, CBCA 5961 (March 13, 2018), the contractor appealed the denial of its uncertified claim seeking costs and excusable delay related to late payments, contract modifications and government-caused delays for a total of $529,895.59.  The contractor submitted three invoices to the government, each requesting a “category” of damages:

  • $87,990 – for suspension of work and late payment issues.
  • $41,000 – retained funds.
  • $400,905 – mobilization, prepatory, surfacing, design and other miscellaneous costs for extra work.

Continue Reading Contractor Escapes Total Dismissal For Failure To Certify $500,000 “Severable” Claim

When do agency Boards of Contract Appeals have jurisdiction to hear a federal contract dispute under the Contract Disputes Act (CDA) when the dispute is with a surety that issued a bond on the project?  Answering this question is key to avoiding a government motion to dismiss for lack of jurisdiction.

Typically, if a surety is forced to step in to take over for a contractor, both the terms of the bond and principles of equity allow the surety subrogation rights, which entitle the surety to the contract rights of the obligor (contractor). This includes the right to pursue payment from the government for work performed, and for overpayments to the contractor. Continue Reading When is a Surety a “Contractor” with the Government at the Boards Of Contract Appeals?

On May 1, 2018, Oles Morrison partner Adam Lasky will be on a panel discussing “Tips for Avoiding Litigation on Federal Construction Projects,” together with Paul Varela (Varela, Lee, Metz & Guarino), Neil O’Donnell (Rogers, Joseph O’Donnell, PC), and Jennifer Fiore (Dunlap Fiore, LLC), at the AGC Federal Contractors Conference 2018.  Adam and the panel will be discussing a number of topics relevant to construction contractors doing business with the federal governent, including false claims act liability, pass-through claims, and releases.

Click here for registration information.

In the RAND Corporations’s 2018 report on DoD bid protests, RAND highlighted some concerning statistics regarding bid protests filed by small businesses. RAND discovered that more than 50% of protests were being filed by small businesses (more than double the percentage of prime contract dollars going to small businesses), and at GAO protests filed by small businesses tended to have significantly lower sustained and effectiveness rates, and were 50% more likely to be dismissed as “legally insufficient.” As a result of these findings, and others, RAND recommended that Congress consider approaches to reduce and improve bid protests from small businesses.

Please join the ABA Section of Public Contract Law Small Business Committee’s panel for a broad discussion of RAND’s findings and recommendations specific to small business protests, and the feedback RAND received concerning these recommendations. In addition, the panel will examine other approaches under consideration that were not included in the report, and will open the floor to a discussion on ideas to reduce and improve bid protests from small businesses.

Moderator

Panelists

  • Brian PersonsSenior Management Scientist, RAND Corporation (Co-Author of the RAND Report)
  • Jessica TillipmanAssistant Dean for Field Placement and Professorial Lecturer in Law, The George Washington University Law School

This event will take place in-person (Morrison & Foerster LLP, 2000 Pennsylvania Ave NW, Suite 6000, Washington, DC) and by teleconference (Call-in: 855.890.6636 Participant Code: 7037607325), Noon – 1:00 pm EDT (9:00 am – Noon PDT) on Thursday May 3.  If you’re interested in attending, please RSVP to TFouch@mofo.com.

The case of Green Valley Company, ASBCA No. 61275, presents an interesting conundrum for contractors facing fraud allegations who also have a contract claim against the government.  In 2006, the contractor presented invoices for payment to the government.  In 2017, the contractor converted those invoices into a certified claim requesting payment.  Under the CDA, the contractor had clearly exceeded the 6-year statute of limitations.  However, the contractor requested the ASBCA equitably toll the CDA for what appeared to be sensible grounds.  From 2009 until 2016, the contractor had been defending a lawsuit the government filed against it alleging false claims act violations and breach of contract among other causes of action. The government had simultaneously been considering the contractor for debarment, the death penalty of government contracts.

The contractor argued it could not have submitted its claim to the contracting officer while the lawsuit was pending because the government would have alleged the contractor had made yet another false claim thus further potentially exposing the contractor to additional treble damages.  The ASBCA rejected the contractor’s argument stating “[n]or does [the contractor] explain why the possibility that the government might respond to its claim with fraud based defenses or causes of action would block it from submitting a claim.  The mere fact that such a response from the government might be undesirable to [the contractor] is irrelevant.”  Thus, the contractor’s claim was held to be outside the statute of limitations and the appeal was considered time-barred. Continue Reading Threat of Contractor Death Penalty Does Not Toll the CDA Statute of Limitations

Oles Morrison partner Adam Lasky will co-present with Shene Commodore, president of Commodore Consulting, LLC during National Contract Management Association’s “Maximizing Teaming Under SBA’s Joint Venture Rules” webinar.

Hear about new rules and major changes the U.S. Small Business Administration (SBA) has made to its joint venture programs.

Learn:

  • SBA’s teaming regulations,
  • Joint venture requirements,
  • Principles for establishing joint venture programs, and
  • How to draft agreements that comply with SBA regulations

Click here to register for the webinar.

As we were reviewing the regulatory agendas of various federal agencies for upcoming regulations that might impact federal contractors, we noticed that the U.S. Small Business Administration’s (“SBA”) most recent regulatory agenda included an upcoming proposed regulation entitled “Consolidation of Mentor Protégé Programs and Other Government Contracting Amendments.”  Specifically, SBA’s regulatory agenda states that:

SBA proposes to consolidate the All Small Mentor Protégé Program and the 8(a) Business Development Mentor Protégé Program into one program.  This rule will also make other revisions in the Government Contracting programs, including the process for approving management changes in entity owned concerns.

According to SBA’s regulatory agenda, this proposed rule was estimated for release in March 2018.  While that obviously did not happen, it is not uncommon for SBA (or other agencies) to issue proposed regulations months (or even years) after originally estimated.

For an 8(a) contractor, there is little (or arguably no) benefit to applying to the 8(a) Mentor-Protege Program (8(a) MPP) instead of the All-Small Mentor-Protege Program (ASMPP), and SBA reviews and approves mentor-protege agreements at a much faster rate if one applies to the ASMPP.  While the ASMPP has been around for over a year now, many 8(a) contractors are still under the misconception that they need to be in the 8(a) MPP in order to bid as a joint venture on 8(a) set-asides.  This is simply not the case, as the ASMPP provides the same advantages to an 8(a) protege as the 8(a) MPP.  Consolidation of these two program should streamline the mentor-protege approval process, and result in the elimination of duplicative and confusing regulations.  We eagerly anticipate the issuance of this proposed regulation to consolidate SBA’s two mentor-protege programs, and hopefully SBA will at the same time address some of the other problems with the mentor-protege regulations (such as eliminating the requirement for SBA to approve a joint venture agreement before award of an 8(a) contract).

 

For years bid protest filings at the Government Accountability Office (GAO) have been done by e-mail (or even fax, mail or hand delivery).  In January 2014, Congress directed GAO to establish a electronic filing and document dissemination system (not unlike the PACER system used by federal courts), and authorized GAO to charge a filing fee to those filing bid protests.  Since that time, GAO has been working on developing an electronic filing system, which GAO calls “EPDS.”  The process has taken longer than most expected, but in February 2018 GAO announced EPDS was almost ready and started handling some protests on EPDS as part of a pilot program.  Today, GAO issued the final rule for EPDS, and announced that rule would take effect on May 1, 2018.  This means that starting in May all bid protest at GAO must be filed through EPDS (protesters will no longer be able to file protests by email) and GAO will charge a $350 fee for filing a protest.

Given the short and strictly enforced time limits for filing protests at GAO, those who file bid protests should consider signing up for an account immediately at https://epds.gao.gov/, and familiarize themselves with the new rules well before they take effect May 1st.  GAO has provided handy instruction manuals and videos for EPDS at https://www.gao.gov/legal/bid-protests/file-a-bid-protest.

As we previously discussed, when Congress passed the FY 2018 NDAA it required the Department of Defense (“DoD”) to issue regulations providing for enhanced post-award debriefing rights on certain DoD procurements.  Specifically, Congress mandated enhanced content requirements, a follow-up question process, and corresponding changes to the time to file a bid protest at GAO with a suspension of performance of the protested contract (a “CICA stay“):

  • Enhanced Content Requirements:  While protecting the confidential and proprietary information of other offerors, the debriefing shall include, at a minimum, the agency’s written source selection award determination, redacted to protect the confidential and proprietary information of other offerors.  These enhanced content requirements apply to “required” debriefings if (1) the contract award exceeds $100M, or (2) the contract award exceeds $10M and the contractor requesting the debriefing is a small business or nontraditional contractor who request such disclosure.
  • Follow-up Question Process:  Disappointed offeror would be allowed the opportunity for follow-up questions within two business days of receiving a post-award debriefing to be answered in writing by the agency within five business days.
  • Time to file protest at GAO and obtain a CICA stay:  The debriefing would not be considered concluded, and the five day post-debriefing period pertaining to when a protest needs to be filed to invoke a CICA stay would not commence, until the day the agency delivers its written responses to the disappointed offeror’s follow-up questions.

The enhanced content requirements were to be implemented through DFARS regulatory changes, which DoD has until June 2018 to issue.  On the other hand, the follow-up question process, and corresponding changes to the time to file a bid protest at GAO with a CICA stay, are already reflected in statutory changes (10 U.S.C. 2305(a)(5) and 31 U.S.C. 3553(d)(4)).  Still, changes to the DFARS were expected to implement the follow-up question process.  But this week, in advance of changes to the DFARS, DoD issued Class Deviation 2018-O0011 – Enhanced Postaward Debriefing Rights, which provides for the immediate implementation of the follow-up question process (and corresponding changes to the time to file a protest at GAO and obtain a CICA stay): Continue Reading DoD Begins Implementation of Enhanced Post-Award Debriefing Rights