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As a follow-up to my earlier post about the need to develop a settlement strategy when a claim is headed for litigation, I reviewed the various decisions of the Armed Services Board of Contract Appeals (ASBCA) for the first five months of 2022. The Board entered 107 decisions, and 54 of those decisions were orders dismissing the appeals because the parties had reached a settlement. Some of those settlements resulted from Alternative Dispute Resolution (ADR), which the Board enthusiastically promotes, or simply reflected settlements achieved by the parties through negotiation. Interestingly, only two opinions sustained an appeal by a contractor, while most of the other appeals were denied on the merits or due to various pre-trial motions. These motions included Motions for Summary Judgment, Motions to Dismiss for lack of jurisdiction, or the failure to comply with the applicable Statute of Limitations. …
Continue Reading The Percentages Favor Settlement of Claims and Appeals

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Oftentimes, contractors find it difficult to differentiate between the government’s acts taken in its sovereign capacity as opposed to those taken in its contractual capacity. The government acts in its sovereign capacity when it takes actions that are general and public in nature and do not target any particular contractor; rather the impact of the government’s action on its contracts is merely incidental to the purpose of a broader governmental objective. As two recent Armed Services Board of Contract Appeals (the Board) decisions involving contractor claims for COVID-19-related costs illustrate, the distinction between these two roles can make or break a contractor’s claim. …
Continue Reading The Sovereign Acts Doctrine Strikes Back: COVID Costs Are Its Latest Victim

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The GAO’s recent decision in K&K Industries, Inc. reinforces for disappointed offerors that once the government unequivocally states that a debriefing has concluded, the clock has started ticking on the time to file a protest. Notably, this can be true even if the parties continue discussing the offeror’s proposal.

The Background

On September 28, 2021, the U.S. Army Corps of Engineers (USACE) notified K&K Industries, Inc. (K&K) that it had awarded Blinderman Construction, Co. (Blinderman) a contract involving the design and renovation of a historic barracks building in Fort Riley, Kansas. This notice also informed K&K that the company had a right to request a debriefing. K&K timely requested the debriefing and asked that the debriefing include a redacted copy of the Source Selection Decision Document (SSDD). …
Continue Reading When Exactly Did My Debriefing End?

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The SBA is proposing two new methods for small businesses to obtain the often elusive qualifying past performance commonly required when competing for federal contracts. The proposed rules implement new provisions of the National Defense Authorization Act (NDAA) Fiscal Year 2021 (FY 2021), which will permit a small business government contractor to use the past performance of a joint venture, of which it was a member, “provided that the small business worked on the joint venture’s contract or contracts.” The proposed rules will also authorize small businesses to use past performance as a first-tier subcontractor. …
Continue Reading Please Pass the Past Performance Rating: SBA’s Proposed New Rules to Help Small Businesses Become More Competitive

Covid-19 vaccination record card with vials and syringe.

In our last post, we detailed President Biden’s Executive Order 14042 regarding vaccination requirements for government contractors. The order made clear that a new clause requiring vaccinations would be included in new contracts in the near future, but questions remained about which employees would ultimately be subject to the requirements. On September 24, 2021, the Safer Federal Workforce Task Force (Task Force) issued guidance that answered many of those questions. …
Continue Reading New Guidance on the Vaccination Mandate for Federal Contractors

Covid-19 vaccination record card with vials and syringe.

Government contractors and subcontractors will need to learn—quickly–how to navigate new COVID-19 requirements. On September 9, 2021, President Biden issued an executive order (the order) imposing COVID-19 vaccine and testing requirements on government contractors and subcontractors. The new requirements will start appearing in contracts in a matter of weeks. Below are the key points that federal contractors need to know.

How will the vaccine requirement be implemented?

The order directs all executive departments and agencies to begin including a new and yet unwritten clause in solicitations, contracts, and contract-like instruments. The clause must state that the contractor will comply with all guidance issued by the Safer Federal Workforce Task Force (Task Force) that pertains to a contractor or subcontractor’s workplace locations.…

Continue Reading New COVID-19 Vaccination Requirements for Government Contractors

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In a typical bid protest, the protester argues that its proposal should have been evaluated more favorably or that its competitors should have received a less favorable evaluation. However, in a recent bid protest, the protester turned those arguments on their head, instead arguing that its proposal was so poor that the government owed the protester an opportunity to remedy its shortcomings.

The solicitation called for awards to be made on the basis of a best-value tradeoff. With regard to price, the solicitation called for consideration of both price realism (whether a price is too low) and price reasonableness (whether a price is too high). After proposals were submitted, the Army conducted multiple rounds of discussions with offerors to provide them an opportunity to clarify and improve the proposals. During those discussions, the Army issued more than 100 evaluation notices (EN) to the protester, DynCorp, noting issues with its proposal, including 39 related to price. Ultimately, DynCorp was not awarded a contract because its proposal received lower technical ratings than its competitors and its prices were the highest of all offerors. …
Continue Reading Recent Federal Circuit Decision Highlights the Limitations of Discussions

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The SBA made numerous changes to its regulations in the past year, but the FAR Council has largely failed to keep pace. Then, earlier this month, the FAR Council published three final rules to implement long-awaited changes to the FAR’s small business contracting requirements. While the changes concern small business contracting requirements, they will impact business contractors of all sizes. For example, one of the rules makes noteworthy changes to the FAR’s Limitations on Subcontracting, resulting in a more friendly regulatory landscape for small business prime contractors. Another of the rules provides clarity for large business contractors who seek to demonstrate “good faith efforts” to comply with a small business subcontracting plan. The new changes bring the FAR’s small business contracting requirements in line with the SBA’s regulations and will be incorporated into new contracts beginning on September 10, 2021. …
Continue Reading What FAR Council Updates to Small Business Contracting Requirements Mean for Large and Small Business Contractors

Made in USA

Elected officials in Washington, DC appear to have identified one topic that both parties can agree on—strengthening domestic content requirements on federal projects. In February 2021, we alerted contractors not only to Buy American Act changes previously implemented by the Trump administration but also to the potential changes addressed in a Biden administration executive order. Holding true to its word, the Biden administration recently issued a proposed rule that would make additional changes to an already complicated legal framework. Below are the key takeaways for contractors.
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Continue Reading Contractor’s Guide to Biden’s Buy American Act Changes: Buy More (and More and More) American

Made in USA

The Buy American Act includes a preference for “domestic end products” and “domestic construction materials” on federal projects absent a waiver. Prior to recent revisions, domestic end products and domestic construction materials were those that were: 1) manufactured in the U.S.; and 2) made up of at least 50% domestic components or, alternatively, were Commercially Available Off-The-Shelf (COTS) items.

The FAR Council recently issued a final rule that makes substantial changes to the FAR’s Buy American requirements (FAR 52.225-1, 52.225-3, 52.225-9 and 52.225-11) in accordance with Executive Order 13881, “Maximizing Use of American-Made Goods, Products, and Materials.” The revised FAR clauses became effective January 21, 2021, and are to be inserted in all new contracts beginning February 22, 2021. The final rule made three key changes to the FAR’s Buy American requirements: …
Continue Reading Important Changes to the Buy American Act – Key Updates for Contractors