Contractors often seek to recover attorney’s fees if they successfully present and resolve a claim, either through a negotiated settlement or litigation. In reality, of course, the government usually requires a waiver of Equal Access to Justice Act (EAJA) fees as part of a settlement. When winning or partially winning a case before a board or court, a contractor has the right to file an Application for Attorney’s Fees to recover attorney’s fees subject to the statutory limit of $125/hour and various upward adjustments for inflation. Unfortunately, winning is not always enough. Continue Reading The Hidden Hurdle: Why Recovering Legal Fees Under EAJA Is Not a Guarantee for Contractors
Contractor Information Sources
What in the SAM Hill Happened to My Contract?
The System for Award Management (SAM) is the official website for registering to do business with the U.S. government, such as competing for federal procurement contracts. Under FAR 52.204-7, “an Offeror is required to be registered in SAM when submitting an offer or quotation, and shall be registered until time of award, during performance, and through final payment of any contract …resulting from the solicitation.” In the recent GAO protest of TLS Joint Venture, LLC (TLS), the awardee of a Navy contract for custodial services learned the hard way that maintaining active registration in SAM from the time of its initial offer until the agency’s award of the contract is a strict requirement, and that non-compliance can produce harsh results. Continue Reading What in the SAM Hill Happened to My Contract?
Navigating the Waters Beyond Construction Law: Unveiling the Ties Between Construction and Maritime Liens
Construction law is a complex field that intersects with various other industries and legal fields, one being the maritime industry. In nearly twenty years of practicing construction law, I have often experienced the connection between these sophisticated areas of law and the implications of each on various projects, such as the construction of docks, breakwaters, piers, bridges, dredging and beach nourishment projects. In this blog post, we will explore the intricate relationship between these two legal realms by diving into a primer on maritime liens. Continue Reading Navigating the Waters Beyond Construction Law: Unveiling the Ties Between Construction and Maritime Liens
New Proposed Cybersecurity Rules Mean Big Changes for Federal Contractors
On October 3, 2023, the FAR Council released two proposed rules for federal contractor cybersecurity requirements that relate to cyber threat and incident reporting and information sharing (case 2021-017) and standardizing cybersecurity requirements for unclassified federal information systems (case 2021-019). Both proposed rules not only provide new requirements for federal contractors to follow but also provide new definitions and contract provisions for information and contract technology and federal information systems contracts. Continue Reading New Proposed Cybersecurity Rules Mean Big Changes for Federal Contractors
ASBCA Says “Not So Fast” to Contractors Seeking Relief from Pandemic Impacts
The Armed Services Board of Contract Appeals (ASBCA) recently issued a decision regarding a contractor’s claim for increased performance costs due to the economic impact of the COVID-19 pandemic. Notable about this case is the contractor’s invocation of a July 2, 2020 Department of Defense (DoD) memorandum concerning the financial consequences on contractors with firm-fixed-price contracts lacking an economic price adjustment clause during “historic and unprecedented challenges” in the wake of the pandemic’s onset.
Continue Reading ASBCA Says “Not So Fast” to Contractors Seeking Relief from Pandemic Impacts
The Percentages Favor Settlement of Claims and Appeals
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
The Sovereign Acts Doctrine Strikes Back: COVID Costs Are Its Latest Victim
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
When Exactly Did My Debriefing End?
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?
Please Pass the Past Performance Rating: SBA’s Proposed New Rules to Help Small Businesses Become More Competitive
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
New Guidance on the Vaccination Mandate for Federal Contractors
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