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Joseph A. Hackenbracht is a Partner in the Federal Contracting Group of Cohen Seglias Pallas Greenhall & Furman and practices in all phases of federal government contract and construction law. He is often called upon to advise clients concerning contract interpretation and to assist clients in the preparation of proposals for negotiated procurements. Joseph has extensive experience handling protests, contract claims, appeals to administrative boards of contract appeals, and litigation in various Federal courts. He has prepared and litigated claims involving the many issues which arise concerning construction, including defective design, defective specifications, differing site conditions, changes, suspensions, delays and contract terminations.

The Navy recently awarded three cost-plus-award-fee, indefinite-delivery/indefinite-quantity (ID/IQ) contracts to Fluor International, Inc., URS-IAP, LLC (a joint venture of URS Corporation and IAP Worldwide Services, Inc.) and Atlantic Contingency Constructors, LLC (a limited liability company managed by The Shaw Group) for global contingency construction. Each contract was for a base year with four one year options, and the value of each contract was approximately one billion dollars. The contractors were to provide construction and related engineering services in response to war fighting needs, global natural disasters, and humanitarian assistance.

The awards were made following a "best value" evaluation based on experience, past performance, contingency planning, management, small business utilization, and cost. Non-cost factors were considered more important than cost. A disappointed offeror, Kellogg Brown & Root Services, Inc. (“KBR”), filed a GAO protest asserting that the Navy misevaluated the proposals under technical and cost factors. The GAO agreed and issued a decision sustaining the protest.Continue Reading GAO Recommends Navy Return To Square One in Award of Billion Dollar Contracts

The U.S. Army Corps of Engineers awarded an $88 million contract for the construction of a fifty-three mile road around a tropical island in the North Pacific. During contract performance, the contractor submitted a certified claim contending that the contract clause, "Time Extensions for Unusually Severe Weather," was defective, resulting in a gross misrepresentation of the number of adverse weather days that could be anticipated during performance of the work.  The contractor also contended that reliance on the defective specification led to an increase in the cost to perform the work. The certified claim included costs incurred up to the date of the claim submission and costs estimated to be incurred in the future.

The United States Court of Federal Claims found that $50 million of the contractor’s certified claim of $63.4 million was clearly fraudulent. During the trial, witnesses, including the corporate officer who certified the claim, testified that the $50 million claim "was a means to get the Government’s attention, and to show the Government what would happen if it did not approve the new compaction method that plaintiff wanted."  The Court stated that this part of the certified claim was not submitted in good faith, and was not for an amount which the Plaintiff honestly believed it was entitled. Daewoo Engineering and Construction Co., LTD. v. U.S., No. 02-1914C, October 13, 2006.  Accordingly, the projected additional costs based on estimates, and not yet incurred, were found to be fraudulent.Continue Reading Contract Claim Designed to "Get the Government"s Attention" Found to be Fraudulent

Many contractors prepare bids on a computer, using either commercially prepared bid packages or “home grown” spreadsheets using Excel or similar programs, to automatically calculate their bids.  A recent decision by the Comptroller General, however, reveals some of the dangers that these “automatic” packages hold for a contractor.  A bidder on a sewer lagoon project for the Corps of Engineers recently utilized a computer program and contended that an erroneous entry resulted in its bid of $6,881,800 being 25 percent lower than the next competitor’s bid.  The low bidder alleged that it had made a “mistake” in preparing its bid and requested upward correction.  The Federal Acquisition Regulations (FAR) allow upward correction of a bid when the bidder provides clear and convincing evidence of both the existence of a mistake and the bid actually intended, but only where the correction would not result in displacing one or more lower bids. See FAR 14.407-3(a).  The low bidder alleged that a “mistake” occurred because it “overrode” the automatic calculations in the spreadsheet by manually entering a dollar amount in the “total” column for a bid item rather than allowing that total amount to be automatically calculated by the formula in that cell.
Continue Reading Upward Correction of Low Bid Disallowed

When the individual Corps of Engineers’ Districts used the Tri-Service Solicitation Network to provide access to electronic documents, not only were the solicitations, specifications, plans, and amendments available, other useful information that was also included.  However, with the deactivation of the Tri-Service Network and the Federal Government’s adoption of the Federal Technical Data Solutions (FedTeDS)

Strangely, the Department of Homeland Security’s Supplemental Federal Acquisition Regulations (HSAR) is not included on the official Code of Federal Regulations website. However, an unofficial online beta test site, the Electronic Code of Federal Regulations (e-CFR), does include the HSAR.  This beta test site is updated daily and also contains the Federal Acquisition Regulation, FAR, as