The Granston memorandum released in early 2018 caused a stir amongst False Claims Act qui tam relators and defendants alike. The practical effects of the Granston memo, however, are not yet fully apparent. Defendants in FCA suits should nonetheless take note that following the release of the Granston memo, the Department of Justice has doubled-down on the importance of its dismissal power.

Leveraging the Government’s Position

One issue the Granston memo raises is whether defendants can leverage the government’s dismissal power in qui tam suits pursuant to seek dismissal pursuant to 31 U.S.C. § 3730(c)(2)(A). Two months after the Granston memo’s release there is some indication that it may have a positive effect on dismissals. Deputy Associate Attorney General Stephen Cox delivered confirming remarks at the Federal Bar Associations Qui Tam Conference on February 28, 2018:

Continue Reading Borrowing a Page from the USAO’s Playbook—Get Your FCA Suit Dismissed

Oles Morrison attorney, Jim Nagle, has been tapped to give the keynote presentation at the Alliance Northwest 2018 Conference on March 15.  Jim’s keynote, “Contracting in the age of Trump,” will cover President Trump’s impact on the regulatory process, the Buy American act, the role of contractors in fulfilling the work of the executive branch, and how budgetary priorities sets an array of challenges and opportunities for everyone involved in the contracting process. Any new administration, especially one of a different political party than its predecessor, involves different priorities and often total reversals from the previous president’s. The Trump administration is no exception but its impact on procurement both what is being purchased and the process is monumental.

The Alliance NW Conference is the premier government contracting event in the northwest, bringing together prime contractors, government agencies and small businesses for a full day of relationship building and educational opportunities.

A nationally recognized attorney and thought leader in government contract law, Jim Nagle is sought after for his valuable counsel as consultant, expert witness or arbitrator/mediator by the government and its federal contractors. He has unrivaled experience working on supply, services, international, major systems and construction contracts. Throughout his distinguished career, Jim has represented owners, contractors, subcontractors, sureties, architects, engineers and all parties in the contracting process. Prior to joining the firm, he served as chief of the Logistics and Contract Law Branch of the Department of the Army staff and as a trial team chief in the Army’s Contract Appeals Division.

Jim is committed to sharing his extensive knowledge of government contract law to advance the next generation of attorneys. He is the author of seven books on federal contracting and more than 100 articles that have appeared in publications such as Public Contract Law Journal, Military Law Review, National Contract Management Association (NCMA) Journal, and Contract Management. Jim is a coveted lecturer on federal government contracts and construction law. He regularly teaches a course on Government Contract Law for Educational Services Institute on behalf of George Washington University and has taught Government Contracts for the University of Washington and Seattle University.

Cooperative Agreements” are legal instruments that facilitate the transfer of something of value from federal executive agencies to states, local governments, and private recipients for a public purpose or benefit.

Cooperative Agreements are distinct from traditional procurement contracts and thus are not subject to the Federal Acquisition Regulation (FAR). Like Other Transaction Authority, this approach provides agencies greater freedom to craft the terms of an agreement around new or innovative endeavors. For example, the FDA uses this freedom to advance food safety with states by funding implementation of food safety rules. As the Federal contracting landscape becomes increasingly complex, Cooperative Agreements represent an opportunity for some contractors to pivot to a more streamlined federal funding mechanism. Continue Reading An Overview of Cooperative Agreements in Federal Contracting

In a recent decision, NOAA Maryland, LLC v. General Services Administration, the Civilian Board of Contract Appeals (“CBCA”) looked to “extrinsic” evidence outside the contract to interpret whether the government was required to pay real estate taxes.  This case provides a reminder to contractors that while the CBCA is reluctant to look beyond the four corners of a contract and prudent contractors should make their contract terms explicit, the CBCA will look beyond the contract if it is necessary to determine the objective intent of the parties.  NOAA Maryland appealed the denial of its claim under a lease with the General Services Administration (“GSA”).  The contractor moved for summary relief arguing certain charges were reimbursable under its lease with GSA as “real estate taxes.”  The Parties’ both agreed on the facts of the case, but asserted different interpretations of the contract.

In 2005, GSA executed a lease with NOAA Maryland.  As an element of the lease, the Government agreed to pay real estate taxes according to the lease’s Tax Adjustment Clause.  During the course of the lease, the contractor sought reimbursement for certain charges under the Tax Adjustment Clause. Following the contracting officer’s denial of two certified claims relating to disputed charges and the Tax Adjustment Clause, NOAA Maryland filed an appeal with the CBCA.

In order to resolve the dispute, the CBCA was forced to turn to its rules of contract interpretation.  The CBCA looked to (1) parties’ course of dealing; (2) contemporaneous intent of parties; and (3) whether the contract was “ambiguous.”

Contract Interpretation Using Extrinsic Evidence

The general rule is that the Board may not look to extrinsic evidence when interpreting the provisions of a contract absent an ambiguity in the contract.  However, extrinsic evidence may be used for the limited purpose of clarifying the parties’ objective intent when entering into the contract.  In this appeal, the Board used the following extrinsic evidence to determine the parties’ objective intent:

1. Parties’ Course of Dealing

Here, the Board found NOAA Maryland failed to show that GSA paid the specific charges at issue in the past, thus failing to establish that the Parties’ course of dealing mandated the charges be paid.

2. Contemporaneous Intent of Parties

This aspect refers to an examination of the Parties’ expectations and intent at the time the lease was entered into.  However, the contractor failed to show evidence that the disputed charges were a substitute or successor for the tax scheme at the time the lease was executed.  Because of this, the Board was unable to determine whether GSA’s payment of the disputed charges would uphold the Parties’ original bargain under the lease.

3. Contract’s Tax Clause “Carve-Out” Provision

The contractor’s final argument was that the carve-provision of the tax clause is ambiguous; as such, it should be entitled to recover damages for the disputed charges.  The Board rejected this argument by first finding that the clause is not ambiguous, but second, even if it was, the contractor must show it relied on its asserted interpretation of the ambiguous provision in submitting its bid, and NOAA Maryland failed to prove this here.


Ultimately, NOAA Maryland’s motion was denied after the CBCA found it failed to show the disputed charges were real estate taxes GSA agreed to pay in the lease.  This decision provides a strong example of contract interpretation principles that every contractor should know and understand when bidding a contract.

Image Courtesy of Flickr (licensed) by Blogtrepreneur.

Should a contractor find itself appealing a contracting officer’s denial of a claim to the Armed Services Board of Contract Appeals (ASBCA) or the Civilian Board of Contract Appeals (CBCA), they will likely engage in some sort of document discovery. In a world with seemingly limitless and inexpensive data storage, cell phone cameras, drone video, and ceaseless emails, even a small dispute can involve vast quantities of data subject to discovery. Combine this with the Board rules that instruct the parties to engage in “voluntary discovery procedures” (ASBCA, CBCA discovery rules) it is vitally important that a contractor and its attorney have an accurate understanding of how relevant data is stored. That understanding can help a contractor minimize litigation costs and facilitate resolution of the claim.

Often the government will insist that discovery be exchanged as processed documents that can be loaded into a document database for easy searching. This format is usually also helpful for the contractor and its counsel as it will allow for easy searching through both your and the government’s documents –this is how you’ll find that smoking gun. Since specialized software and databases are required for processing and hosting data, extra costs are usually incurred. As you can imagine, the more data that goes into the database, the more costs are incurred.

There are many options to minimize the volume of data to be exchanged or the cost of doing so, but this can only be accomplished with a full understanding of the universe of relevant information. Practically, this means that at the outset of the appeal, someone familiar with the dispute along with someone from IT and/or the contractor’s document management team should spend time with counsel to develop a “map” of the relevant data.

With a full understanding of their client’s data, the contractor’s attorney can work with the government to develop a discovery plan that facilitates the exchange of information at a cost proportionate to the needs of the case. For instance, the contractor can start by producing just the “low hanging fruit,” only exchanging the costly data sets if further information is necessary.  Or the contractor can produce the voluminous data sets in their unprocessed or “native” format. Most contractors would likely agree that the sooner the government has a better understanding of their claim and appeal, the sooner the dispute can be resolved. With preparation and communication, this exchange can be done efficiently and affordably.

For an in-depth guide on developing a “data map,” see EDRM’s Identification Guide.

Image Courtesy of Flickr (licensed) by jannekestaaks 

At times, a prime contractor can effectively be the middle man between the government and a subcontractor. The FAR directs that the prime contractor should always provide value to the overall procurement; however, many prime contractors require the assistance of subcontractors to fulfill this contract requirement. The recent CBCA case VSE Corporation v. Department of Justice spotlights that, even in fixed-price contracting, the prime contractor may or may not have bid with locked in subcontract rates.  If the government accepts the prime contractor’s offer and the subcontractor raises their rates, the prime contractor is liable for the additional costs, not the government.  In VSE, this led to fireworks for the prime contractor, literally.

VSE provided storage services to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to store seized property. The initial contract was a cost-reimbursement contract for which VSE was paid on a per pound basis.  ATF stored seized fireworks with VSE at a facility owned by VSE’s subcontractor Heritage Disposal & Storage and Heritage charged VSE $0.10 per pound to store the fireworks. Subsequently, the government asked VSE to reconfigure the fireworks for safety reasons. Despite VSE’s contract with Heritage, Heritage increased its storage billing rate from $0.10 per pound to $0.195 per pound based on the reconfiguration.

The government then issued a new solicitation for nationwide seized property to include fireworks. Rather than a cost-reimbursement contract, this contract was fixed-price. VSE submitted a bid where it identified the fireworks and proposed a base year price of $1.95 per square foot. However, this price would not be sufficient to cover the expenses for the fireworks storage as Heritage had been charging VSE approximately $170,000 per month to store the fireworks while the government had only been paying VSE approximately $77,000 per month for storage.   Continue Reading Boom: Fireworks between Subcontractor, Prime Contractor, and Government (Literally)

Despite the fact that the U.S. Court of Federal Claims (COFC) has concurrent jurisdiction with the U.S. Government Accountability Office (GAO) over the vast majority of federal bid protests, GAO is the primary forum utilized by protesters—and by a wide margin. GAO handles approximately twenty-five times as many protests per year as the COFC. While GAO does have certain advantages that attract protesters to that forum, this wide margin is likely less a result of the actual advantages provided to protesters in that forum and more a result of the misconceptions and lack of familiarity with the COFC protest process and the advantages of that forum. This article sheds light on the bid protest process at the COFC, providing a guide on protest practice and procedure at that forum.

Continue Reading Roadmap to Bid Protests at the U.S. Court of Federal Claims

Other Transaction Authority (“OTA”) describes the streamlined procedures that federal agencies may use to procure innovative research or prototypes, without the constraints of a typical contract, grant, or cooperative agreement. This flexibility has made OTA an increasingly popular choice for federal acquisitions in recent years. OTA helps open the door for contractors to partner with the Government in new and exciting areas. OTA allows for much greater speed, flexibility, and accessibility in performing research and prototype projects.

Who Qualifies for Agreements under OTA?

Congressional legislation has granted OTA to five federal departments: The Departments of Defense (DoD), Energy (DOE), Health and Human Services (HHS), Homeland Security (DHS), and Transportation (DOT), as well as the National Aeronautics and Space Administration (NASA). Congress has also specifically extended OTA to certain agencies and programs within these departments, such as the Federal Aviation Administration (FAA, within DOT), the Advanced Research Projects Agency–Energy (ARPA-E, within DOE), the Transportation Security Administration (TSA, within DHS), the Domestic Nuclear Detection Office (DNDO, also within DHS), and certain National Institute of Health research programs (within HHS).

This authority gives the agencies the opportunity to craft procurement arrangements specifically targeted to novel ideas and technologies, without having to shoehorn the process into the complex and often arcane world of traditional government contracting.       Continue Reading An Overview of “Other Transaction Authority”

The Armed Services Board of Contract Appeals (the “Board”) recently issued another reminder in [Redacted], ASBCA No. 61065, that government contractors need to specifically reserve their rights to Contract Disputes Act claims in modifications and releases for final payment. While its name doesn’t quite rival the best of those associated with civil forfeiture cases (for example, United States of America v. An Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls), [Redacted] does serve as a useful reminder to keep an eye out for any waiver language in payment requests, modifications, or (as here) an invoice for final payment.  Continue Reading Contractor Waives its Right to Pursue Claim Through its Invoice for Final Payment

It is a common principle of contract interpretation that a court will not set aside the clear intent of the parties particularly when it comes to assignments or releases of claims. However, the unique legislative history of the Contract Disputes Act (“CDA”) grants the agency boards of contract appeals the power to set aside an assignment of a claim, if that assignment would waive the contractor’s right to appeal a Contracting Officer’s decision to the boards. A recent Armed Services Board of Contract Appeals (ASBCA) decision highlights this power, which is of great importance to contractors because they keep their right to file affirmative monetary contractor claims against the government and appeal government claims, such as a termination for default.

In Ikhana, LLC, the Armed Services Board of Contract Appeals held that an assignment of all claims to a surety in an indemnity agreement for a performance and payment bond in the event of a default did not prevent the contractor from bringing claims and an appeal of that default to the Board.  ASBCA No. 60462.  Ikhana entered into a contract with the Army Corps of Engineers to provide secured access lanes and remote screening facilities at the Pentagon.  In October 2015, Ikhana filed four claims with the Contracting Officer.  In December 2015, the Contracting Officer terminated the contract for default.  On February 25, 2016, Ikhana appealed the termination for default as well as its four affirmative claims.  The government then made a claim against Ikhana’s performance bond. Continue Reading Assignment of Claims to a Surety Cannot Waive A Contractor’s CDA Appeal Rights