Procurement Information

The False Claims Act (“FCA”) is a law that contractors must take very seriously.  What many contractors fail to realize is that the reach of the FCA goes beyond the filing of fraudulent contract claims.  In fact, it seems as though the government is actually searching to find new and interesting theories of application.  This time, however, the Fourth Circuit might have pushed the expansion of the act a little too far, as the contractors damaged in a recent case are now attempting to appeal the Court’s decision to the Supreme Court.

On June 24, 2013, Halliburton and KBR, Inc. petitioned the Supreme Court, asking the Court to review the United States Court of Appeals for the Fourth Circuit’s March 18, 2013 opinion in United States ex rel. Carter v. Halliburton.  The Halliburton case involved an individual who was employed by a government contractor, which was engaged to build water purification units at two Iraqi camps.  This employee ultimately initiated a qui tam action, alleging that his government contractor-employer engaged in various forms of misconduct in violation of the FCA, including improper and fictitious billing of the government.  If true, the contractor could be subject to very substantial penalties.  However, because the employee-plaintiff filed his qui tam action after the six year limitations period imposed by the FCA (31 U.S.C. § 3731(b)) had run, the District Court dismissed the complaint as untimely.

In overturning the District Court ruling, the Fourth Circuit found that the Wartime Suspension of Limitations Act (“WLSA”) tolled the statute of limitations applicable to FCA qui tam actions while the Country is at war, and for an additional five years after.  The Court further held that the WLSA tolled the statute of limitations even when the government declined to intervene in a qui tam case.  Reasoning that the goal of the WLSA was to root out all fraud perpetrated against the United States during times of war, the Court concluded that WLSA served to toll the statute of limitations for “all offenses involving fraud against the United States.”

The take away lesson here is that, unless and until the Supreme Court overturns this decision, the statute of limitations for all FCA actions has been drastically extended.  Because the Halliburton holding states that the WLSA tolls the statute of limitations not only during wartime, but for five years after, contractors are looking at limitations periods that will not expire until long after the conflicts in Iraq and Afghanistan have concluded.  That is true even for those claims that arose in the first years of our overseas involvement.  In other words, contractors could remain vulnerable to potential FCA suits for many years into the future, even with respect to (mis)conduct that occurred at the beginning of the US’ Middle Eastern engagements, over 12 years ago.   Moreover, while the Halliburton case itself dealt with a qui tam claim, made in connection with a military-related contract, the broad language used in the opinion does not limit its holding to such cases.  Halliburton will likely be interpreted as suspending the statute of limitations period for all FCA claims brought during “wartime,” no matter the nature of the underlying contract.

In the wake of this decision, all contractors would be wise to take every possible precaution to avoid misconduct that is (or may become) actionable pursuant to the FCA. It is vital that contractors be aware of the FCA, and all of its expanding applications, and contractors should work with legal professionals to ensure that sufficient controls are in place to avoid any inadvertent FCA violations.

Michael H. Payne is the Chairman of the firm’s Federal Practice Group and, together with other experienced members of the group, frequently advises contractors on federal contracting matters including bid protests, claims and appeals, procurement issues, small business issues, and dispute resolution. 

Maria L. Panichelli is an Associate in the firm’s Federal Practice Group.

By: Michael H. Payne

The question of whether to submit a Request for an Equitable Adjustment, commonly referred to as an “REA,” or a claim, is one that clients ask on a frequent basis. It is not always an easy question to answer and our advice depends upon the history of the dispute, and the nature of the relationship with the Contracting Officer and his, or her, representatives. At the outset, however, it is necessary to clear up the confusion between the terms “REA” and “Claim.”

A claim is defined in FAR § 2.101 as “a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. However, a written demand or written assertion by the contractor seeking the payment of money exceeding $100,000 is not a claim under the Contract Disputes Act of 1978 until certified as required by the Act.” Although the term “equitable adjustment” appears in the FAR in 111 places, and the term “request for equitable adjustment” appears in 11 places, there is no official definition, in the FAR or anywhere else, of the terms “Request for Equitable Adjustment” or “REA.” Nevertheless, an REA is commonly understood to be a request for compensation (time, money, or both) that falls short of a claim in terms of its procedural requirements.

A “Claim” must be certified pursuant to FAR § 33.207(c) when the claim amount exceeds $100,000, and it must be submitted to the Contracting Officer in a manner that clearly provides the factual, technical, and legal basis for an equitable adjustment to the contract. Whether the claim exceeds $100,000 or not, the best practice is to identify the request as a claim under the Contract Disputes Act of 1978, 41 U.S.C. 601-613, together with a request for a Contracting Officer’s Decision. Those procedural steps will assure that the clock starts running on the 60 day time limit for the issuance of a decision (or longer under some circumstances), and it further assures that interest starts to run from the date the claim was submitted. An REA does not require a certification under the Contract Disputes Act, but REAs submitted to Department of Defense agencies require the certification found in DFARS 252.243-7002.

There are a number of clauses that allow an equitable adjustment to the contract if the government is responsible for additional costs, or time, and the most significant clauses are: Variation in Estimated Quantity, FAR 52.211-18, Differing Site Conditions, FAR 52.236-2, Suspension of Work, FAR 52.242-14, Changes – Fixed-Price, FAR 52.243-1, and Termination for Convenience, FAR 52.249-2. In general terms, an equitable adjustment means that the contractor is entitled to his actual costs, plus reasonable profit (except for suspensions), overhead, and bond. It is also important to note that the additional costs must be allowable, allocable, and reasonable.

With that brief background, there are some practical considerations about whether to file an REA or a claim. If the contractor has a good working relationship with the agency, and particularly with the government personnel assigned to the project at hand, an REA is usually the best way to begin. This is particularly true when the government has indicated flexibility on the issue and a willingness to reach an amicable resolution. On the other hand, if there is animosity, or a clear indication in prior discussions and correspondence, that the government does not believe that the contractor is entitled to an equitable adjustment, it is best to file a claim. Unlike an REA, a claim starts the clock ticking on the time when the Contacting Officer must issue a decision (there is no time limit on an REA), and interest begins to run. It should be noted, however, that in cases where there is doubt, there is no harm in starting out with an REA. If progress is not made within a reasonable time, an REA can easily be converted to a claim under the Contract Disputes Act.

Michael H. Payne is the Chairman of the firm’s Federal Practice Group and, together with other experienced members of the group, frequently advises contractors on federal contracting matters including bid protests, claims and appeals, procurement issues, small business issues, and dispute resolution.

Michael Payne & Ed DeLisle will be presenting at the National 8(a) Association 2013 Winter Conference in Orlando, FL on February 5th. They will be speaking on the topic How to Win Federal Contracts and Make a Profit. The conference is being held at the Disney World Yacht Club Resort and tickets are still available.  

For more information, or to register, please visit the National 8(a) Association website

Please join our Federal Contracting Practice Group for a Networking Cocktail Reception preceded by a precise presentation on Avoiding the Pitfalls in Federal Construction Contracting.

This networking event will facilitate interaction between large and small businesses that are looking to understand how to win federal construction contracts. The presentation, led by Federal Contracting Chair, Michael Payne, will provide an overview of the following topics:

• Top 10 list of pitfalls to avoid
• Tips on how to deal with the hazards
• Understanding how to protect your rights

The Federal construction market is accountable for over $100 billion worth of spending annually. If you are interested in learning more about federal contracting opportunities, this networking event is a great place to connect with other companies and learn inside tips from our Federal Contracting Partners, who boast years of experience working with Federal agencies.


Date:

November 8, 2012

Time:
4:00pm-4:30pm Registration
4:30pm-5:30pm Seminar
5:30pm-7:30pm Cocktail Reception

Location:
The Union League of Philadelphia
140 South Broad Street
Philadelphia, PA 19102

Cost:
$50 per person

Please register early as space is limited.

To register, please use this link. For questions, contact Rachel McNally at (215) 564-1700.

By: Edward T. DeLisle & Maria L. Panichelli

On August 27, 2012, FAR council issued a final rule entitled Reporting Executive Compensation and First-Tier Subcontract Awards (“the Rule”). Although this Final Rule was implemented just last month, it has been a topic of discussion on Capitol Hill for over six years.

In 2006, the Federal Funding Accountability & Transparency Act of 2006 (Pub. L. 109-282, 31 U.S.C. § 6101 note) (“FFATA”) was enacted, with a two fold purpose: (1) to reduce “wasteful and unnecessary spending;” and (2) to ensure that the public can access financial information on entities and organizations receiving federal funds, which included federal government contractors and their subcontractors. FFATA required all federal contractors to divulge, through the use of a website set up by the Office of Management and Budget (“OMB”), contract and subcontract award information for all contracts over $25,000. Contractors’ reporting responsibilities were further expanded by the Government Funding Transparency Act of 2008 (“GFTA”). GFTA amended the FFATA to provide that contractors report, in addition to contract and subcontract award information, the names and total compensation of the five most highly compensated officers of those entitities. On July 8, 2010 an interim rule was put in place, requiring Federal contractors to comply with the new reporting requirements.

It was this interim rule (with a few minor modifications) that was ultimately implemented on August 27, 2012. Under the Final Rule, prime contractors must report contract and first-tier subcontract awards, and the names and executive compensation of the five most highly compensated officers of both the prime contractor, and its first-tier subcontractors. The information must be reported by the end of the month following the month of a contract award, and annually thereafter, in the Central Contactor Registration system (“CCR”)(now the “System of Award Management” or “SAM”). All of the information is to be made accessible to the public through www.usaspending.gov.

Compliance with the rule requires that contractors fully understand the reporting requirements, which can be rather complicated. Accordingly, some guidance concerning the reporting requirements is set forth below.

Subcontract Award Reporting

This requirement is applicable to all Contracts with value of $25,000 or more, but there is no requirement to disclose classified information. This represents a change from the interim rule, which included language stating that it did not apply to classified contracts; the Final Rule expands this provision to state that nothing in the statute requires disclosure of “classified information.” The Final Rule deleted an additional exception that had been contained in the interim rule, namely that the rule did not apply to contracts with individuals. There is no such exemption in the Final Rule. There is also no exemption for COTS or commercial items.

A “First-Tier Subcontract” is defined as a subcontract “entered into by the [Prime] Contractor to furnish supplies or services for performance… It includes, but is not limited to, purchase orders and changes and modifications to purchase orders, but does not include contracts that provide supplies or services benefiting two or more contracts.” FAR 52.204-10(a). This too represents a change from the interim rule. The interim rule’s definition of “first-tier subcontracts” has been modified slightly, to clarify that the definition does not include long-term contracts for supplies and materials that are not solely related to a single, applicable contract. According to the preamble of the Final Rule, this change is meant to give contractors “greater flexibility” in determining what type of company qualifies as a “first-tier subcontractor.”

An extensive list of the information contractors must report regarding first-tier subcontract awards can be found at FAR 52.204-10(a).

Executive Compensation Reporting

Contractors and applicable Subcontractors must comply with this requirement only if that contractor or subcontractor, in the preceding fiscal year, received eighty percent (80%) or more of its annual gross revenues and twenty-five million or more in annual gross revenues from federal contract awards, AND if the public did not otherwise have access to this executive compensation information from other publically available sources (for example, through SEC or IRS filings).

The category of subcontractors required to report executive compensation is limited to “First-Tier Subcontractors,” which is defined in the same manner as set forth above. The Subcontractor is required to report to the prime contractor names and total compensation of each of the five most highly compensated executives for that subcontractor’s preceding completed fiscal year. The Prime Contractor, in turn, is required to report this information, along with its own executive compensation information to the extent that it falls within the parameters of the Rule.

For purposes of disclosure under the final Rule, both “executive” and “compensation” are defined broadly. Compensation includes not only salary, but also:

– (1) bonus;
– (2) awards of stock, stock options, and stock appreciation rights;
– (3) earnings for services under non-equity incentive plans;
– (4) change in pension value;
– (5) above-market earnings on deferred compensation which is not tax-qualified; and
– (6) other compensation, if the aggregate value of all such other compensation (e.g., severance, termination payments, value of life insurance paid on behalf of the employee, perquisites or property) for the executive exceeds $10,000.

“Executive” is defined as any officer, managing partner, or any employee in a management position.

The prime contractor must report executive compensation information in two different locations. For subcontractors, the information is entered into the FFATA Sub-award Reporting System (“FSRS”). For contractor information, primes must use the Federal Procurement Data System (“FPDS”), where certain required information will be pre-populated by the government. Prime Contractors must note two things here: First, as to first-tier subcontractors, the prime is responsible for notifying its subcontractors that the required information will be made public. Second, regarding its own information, under the Final Rule it is the prime’s responsibility to check and correct any inaccurate information pre-populated in FPDS.

This Rule places prime contractors in the precarious position of collecting and reporting not simply their own information, but information from others. How can a prime assure itself that it is collecting and reporting the full extent of the subcontractor information required? How can it ensure that the information it receives from its subcontractors is accurate? These are troubling issues and prime contractors will have to develop risk management systems to assist with compliance. Specifically, prime contractors should establish a mechanism, through their subcontracts, for example, to notify subcontractors of the reporting requirements and what information must be provided. However, since the reporting obligation applies to the prime contractor and not subcontractors, it will not be sufficient to merely “flow down” the actual reporting responsibilities. Having subcontractors certify the information provided may also assist prime contractors in protecting themselves from the risks associated with the Rule. And primes must not forget about reporting their own information. Systems for collecting, reporting and updating this information must be established to remain compliant. Oh, the joy of dealing with the federal government…

Edward T. DeLisle
Maria L. Panichelli has been closely following the development of this Rule since its inception, and has advised many contractors with regards to compliance. For further information, or for a short slide presentation concerning the Rule, please contact Mr. DeLisle at edelisle@cohenseglias.com.

By: Robert E. Little, Jr.

Several months ago, I was asked to present testimony before House Subcommittee on Courts, Commercial and Administrative Law on the subject of individual sureties. See http://judiciary.house.gov/hearings/Hearings%202012/Little%2003052012.pdf. In that testimony I warned that legal precedent had had little effect on policing individual sureties. Using the example in the Tip Top Construction case, I noted that despite being told by the Court of Appeals for the Federal Circuit that certain assets were unacceptable, the individual surety in that case proffered them again two years later to the Architect of the Capitol.

Now for the rest of the story. In that same transaction, the Architect of the Capitol had previously and properly rejected a proffered asset in the form of an Irrevocable Letter of Credit (ILOC). An ILOC (referred to in the Federal Acquisition Regulation (FAR) as an “ILC”) is a permissible asset for individual sureties provided it meets FAR-specified criteria. FAR 28.203-2(b)(5).

To provide some context, I first ran across the ILOC a few years ago as an advisor to the U.S. Special Trade Representative in connection with bilateral negotiations with Japan. I represented the U.S. side in explaining our federal bonding requirements to the Japanese. To prepare, I looked at the Japanese bonding system and discovered that they use the ILOC (ILC) almost exclusively for their public and private construction. In the Japanese system, the ILOC is typically 15% of the amount of the contract. By contrast, a bond for a U.S. project would be 100% of the contract price for each performance bond and payment bond. Consequently, your first due diligence step as a contractor would be to assure that you have two ILOCs at the face value of the contract price, each separately referencing the payment and performance bonds. In my experience, individual sureties seem to forget this point and provide only one ILOC in the amount of 100% the contract price.

If you surmount that hurdle, you must determine the validity of the ILOC for federal bonding purposes. In trying to figure this out, you will likely encounter circumstances characterized by Churchill’s description of the Soviet’s intentions in 1939. The ILOC will seem to be a “… riddle, wrapped in a mystery, inside an enigma.” In that regard, the ILOC is required to be issued by a federally-insured financial institution with the government as beneficiary and placed in a government-owned escrow account in a federally-insured financial institution. FAR 28.203-1. That essentially means that the individual named as the surety will at least have appeared to provide 200% of the contract price—essentially in cash—to secure a contractor’s performance and payments to suppliers. (This, as you may have guessed, is the enigma part. If you can get passed this enigmatic circumstance, you are ready to tackle the wrap of mystery.)

Unwrapping the mystery requires starting with the header of the document that you might receive. The name of the ILOC-issuing entity will be something like 2nd Trustee Assurance, LLC. (There are seemingly an infinite number of possible names based on roots, such as, “first,” “1st,” “trust,” “bank,” banc,” “assurance,” “fidelity,” and “surety.”) Were you to do an internet search of the issuer, you might find that such business name does not otherwise exist, or, if it does, it is not identified with the same location or phone number on the submitted document. You must confirm the entity’s existence in the database of the active legal entities in the state where the entity is located, but you might not be able to.

If you can remove the wrap of mystery by determining the entity issuing the ILOC exists, you might find that the entity is neither a financial institution nor federally insured. If you cannot determine that the issuing entity is on the Federal Deposit Insurance Corporation’s list of FDIC-insured banks, there is a very good chance that the entity is neither a financial institution nor federally insured. (All federal and some state credit unions are federally insured by National Credit Union Administration. I doubt you’ll see a credit union, however. All entities will appear to be banks or savings and loans.) On occasion, you might see an issuing entity that holds itself out as providing financial advice and/or investment services, but those firms are not necessarily financial institutions. Such firm may tout Securities Investment Protection CorporationTM (SIPC) protection, but that is not federal insurance. If you cannot establish that the ILOC-issuing entity is a financial institution and federally insured, you cannot submit the bonds if you are a bidder or accept them if you are the federal agency.

But wait, there’s more.

You, as the bidder, contractor, or agency, might be misled by the fact that the ILOC (although not issued by a federally-insured financial institution) was placed in an escrow account in an FDIC-insured financial institution. And you, as the agency, might be further fooled into thinking that the agency-as-beneficiary gives you the ability to cash out any escrowed funds (assuming there are any).

The misleading occurs because, while the federal government would be named as the “beneficiary” of the ILOC, the government might not have been given any right title and interest in—much less ownership of—the escrow account holding the ILOC. The escrow account could belong to a third party, perhaps an attorney. If so, that would violate FAR 28.301-1(b)(1) which requires the ILOC be in the name of the Government agency and placed in an escrow account in the name of (i.e., owned by) the federal agency whereby the agency has the sole and unrestricted access to and right to present sight drafts on the ILOC to the issuing financial institution. You couldn’t access the “fund” unless the owner agreed, and the owner might not—if you can find the owner.

One final note on “unrestricted.” Unrestricted means what it says: unconditional, no restrictions, e.g., no requirement that the contractor be in default. The requirement is cash on presentment of a draft to the issuing financial institution. Accordingly, if the ILOC has language, such as, “the draft must be accompanied by a certified statement that an event of default has occurred and is continuing,” the right to payment of the fund is impermissibly restricted. This becomes critical where the issuer of a one-year ILOC gives appropriate notice that it will not be extended. In such case, the owner must have the right to convert the ILOC—or any similarly limited instrument—to cash in order to protect itself and/or subcontractors, suppliers, and materialmen. Such right obviously cannot be conditioned on the contractor’s being in default.

Normally, a riddle is like a puzzle with all of the pieces present (or at least knowable) but misarranged or obscured. With ILOCs, you might find that most of the pieces are missing or not what they seem. Good luck.

Robert E. Little, Jr. is of counsel to the firm and is the former Senior Associate Counsel for the Naval Facilities Engineering Command. He is a member of the firm’s Federal Contracting Practice Group.

By: Edward T. DeLisle & Maria L. Panichelli

We’ve warned you before: the False Claims Act should be taken seriously. In recent years, the government has been increasingly willing to wield the provisions of the FCA as weapons, zealously punishing offending federal contractors.

A recent opinion United States ex rel. Hooper v. Lockheed Martin Corp., No. 11-55278 (9th. Cir. 2012) reminds us once again that the government almost seems to be searching for ways expand the FCA’s application, finding new categories of conduct that are covered by, and punishable pursuant to, the Act.

In Hooper, the Court found that the practice known as “buying in” – i.e. deliberate underbidding of a job – was covered under the FCA. Hooper, a former employee of Lockheed Martin, brought a “qui tam” action against Lockheed, alleging that the company deliberately underbid at least one Air Force contract. The contract was cost-reimbursable with an award fee. As one might imagine, intentionally underbidding this type of contract could be quite lucrative. In apparent recognition of this fact, Hooper alleged that Lockheed knowingly underestimated its costs when submitting its bid.

In response, Lockheed moved to dismiss. The company argued that a false estimate could not create liability under the False Claims Act. The Court disagreed. After noting that both the First and Fourth Circuits had previously found the FCA applicable to similar “underbidding” situations, the Ninth Circuit stated as follows: “we conclude that false estimates, defined to include fraudulent underbidding in which the bid is not what the defendant actually intends to charge, can be a source of liability under the FCA, assuming that the other elements of an FCA claim are met.”

In the wake of this decision, all contractors would be wise to take every possible precaution to avoid underbidding – intentional or otherwise.

Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group. Maria L. Panichelli is an Associate in the firm’s Federal Practice Group.

By: Edward T. DeLisle & Maria L. Panichelli

The federal government’s much-anticipated new contractor registration system, “SAM” was launched on July 30, 2012. SAM (short for System for Award Management) replaces the former Central Contractor Registration (CCR) system, and will ultimately integrate eight federal procurement systems (CCR, FedReg, ORCA, EPLS, CFDA, eSRS, FBO, FPDS-NG, FSRS, PPIRS, WDOL), along with the Catalog of Federal Domestic Assistance, into a new, streamlined system.

Eventually, contractors will be able to use one set of log in information to access everything that was once spread out over eight sites. Once SAM reaches that stage, there should be more consistency in the information found on-line, as contractors will no longer have to keep track of, or update, information on several different websites – one update on SAM, and you are set. Contractors will be able to register, file certifications, and search for contracting opportunities, in one place.

Steps for registering your business on SAM can be found in the User Guide posted on the SAM website. A quick start guide is also available. If you have further questions, or experience any difficulties, you can contact the Federal Service Desk’s Answer Center. We do understand that contractors have been having difficulty accessing the system, which is not entirely surprising at this point. If we receive any information addressing these accessibility problems, or any other issues of import regarding SAM, we will pass along that information to you.

Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group. Maria L. Panichelli is an Associate in the firm’s Federal Practice Group.

By: Edward T. DeLisle & Maria L. Panichelli

Be careful what you ask for, or, in the context of federal government contracting, be careful how you ask and how the government responds. If you’re not careful, you may get what you ask for, but lose a contract. That’s the lesson learned in NCI Information Systems, Inc.

In NCI Information Systems, Inc., the Department of Defense, U.S. Transportation Command (“USTRANSCOM”) issued an RFP, seeking IT administrative and management support services. The RFP incorporated FAR § 52.215-1(c)(3)(i), which states that if no time is specified in the solicitation, the deadline for receipt is 4:30 p.m., local time on the date identified.

Following the initial submittal of proposals, discussions ensued. After three rounds of discussions, the agency requested that those companies remaining in contention for award submit final proposal revisions “by close of business on 31 August 2011.” It did not specify what time constituted “close of business.” The agency’s failure to specify a time created some confusion, because USTRANSCOM employees work flextime schedules, with different hours on different days. Because of this, its office would "close" at different times on different days.

Knowing this, on August 31, at 4:21 p.m., Harris IT Services (“Harris”), one of the prospective contractors, sent an e-mail to the Contracting Officer, asking whether the government would extend “close of business” until after 4:30 PM CST. The Contracting Officer responded to Harris stating: “[u]ntil 5:00 PM Central Time is acceptable as meeting the close of business deadline.” Harris’ final proposal revisions reached the agency’s central server at 4:57 p.m. CST and arrived at the Contracting Officer’s computer at 4:59 p.m. CST on August 31. Harris was ultimately awarded the contract.

Thereafter, a protest was initiated by a competitor, NCI Information Systems, Inc., which claimed that Harris was ineligible for award because its final proposal revisions were untimely. Specifically, NCI argued that the agency set the due date for Final proposal revisions as the close of business on August 31, and that because the Contracting Officer’s notice did not provide a specific time, the time for receipt of FPRs was 4:30 p.m. pursuant to FAR § 52.215-1(c)(3)(i). The GAO agreed.

Though Harris argued that “close of business” should be interpreted as “any time prior to when the office closed for the day . . . so long as an employee remained in the office during that employee’s regularly scheduled duty hours,” the GAO declined to adopt such a rule. It reasoned that “[a]doption of such a rule would result in confusion and a lack of uniformity." Instead, the GAO held that where an agency, such as USTRANSCOM, lacks official working hours, FAR § 52.215-1(c)(3)(i) will govern, and 4:30 p.m. local time will be considered to be the close of business. The GAO was not persuaded by Harris’ argument concerning the Contracting Officer’s extension of the time for submission, concluding that “an offeror acts unreasonably when it relies on the informal advice of a contracting officer rather than following the solicitation’s instructions.” Accordingly, the protest was sustained, and Harris was divested of its contract.

The lesson is not to rely on informal advice from a Contracting Officer, even if it is in writing. If the advice you receive was not given to all potential bidders, or incorporated into a formal modification of some kind, the terms of the most recent instructions provided to all will govern, despite what the Contracting Officer told you.

Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group. Maria L. Panichelli is an Associate in the firm’s Federal Practice Group.

 By: Joseph A. Hackenbracht

Federal contractors need to prepare for another change in the online environment. Currently scheduled to take place in late July of this year, the Central Contractor Registration (CCR) system will no longer exist. The Federal government is starting a new registration system called the System for Award Management, or SAM [Uncle, get it?] for short. In addition to replacing CCR, SAM will incorporate the Federal Agency Registration [FedReg], the Online Representations and Certifications Application [ORCA], and the Excluded Parties List System [EPLS]. For all those contractors already registered in CCR and ORCA, you can breathe a sigh of relief; the Federal government is going to transfer your information into the new system. Although some of the terminology is changing, enough has remained the same that SAM should be familiar, so when the time comes for a contractor to renew its registration, it will not have too much trouble. For more information, go to the website.  A quick introduction to the new system is attached.

The government, however, is not through with its centralization of procurement information. Contractors familiar with the FedBizOpps system for reviewing solicitations, amendments, and other procurement actions can look forward to it being incorporated into SAM, along with the PPIRS, Past Performance Information Retrieval System, and many other data sites.

That’s life in the digital age, changing so quickly that it is hard to know whether you’re coming or going.

Joseph A. Hackenbracht is a Partner in the firm and a member of the Federal Contracting Practice Group.