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A contractor performed a project involving the construction of stone dike extensions and other work at four sites on the Mississippi River.  Nelson, Inc.  ASBCA No.  57201 (December 15, 2015).  One of the issues was whether the four distinct sites were separable for purposes of applying the Termination for Default clause (FAR 52.249-10).  In other words, the question was whether the contractor could be terminated for failing to diligently prosecute the work on one of the four work sites, even though the overall contract allowed 165 days for completion.  The Board stated that “Where a contract is separable (sometimes also referred to as severable, or divisible) and a contractor is delinquent only as to a separable part of the contract work, it is improper for the contracting officer to terminate for default the entire contract.”  The contractor would not be prohibited from continuing performance on any of the sites where work was being performed in a timely manner.


Continue Reading Termination for Default Held Improper

This article was originally published by Law360 on December 16, 2015.

In the past year, the Small Business Administration has issued proposed rules that will likely result in major regulatory changes. Some of the most important changes are those relating to its mentor-protege program, and the performance of work requirements for prime contractors. The proposed rules affecting these areas have the potential to substantially alter the landscape of small business contracting in 2016.


Continue Reading Small Business Contracting May Be Very Different in 2016

In a recent decision by the Armed Services Board of Contract Appeals, Dick Pacific Construction Co., Ltd., ASBCA No. 57675 et. al., decided on December 15, 2015, the Board repeated something that has been said many times before:

We consider daily logs to be the most reliable evidence of what actually happened during construction. Technocratica, ASBCA No. 46567 et al., 99-2 BCA ¶ 30,391 (“Daily inspection reports have been held to be prima facie evidence of the daily conditions as they existed at the time of performance.”)


Continue Reading Timely Documentation is Critical

WeOnviaLegalLandscapelcome to the third edition of Legal Landscape, a series we have developed with Onvia’s blog to provide government contractors with a quick, but thorough, summary of important legal developments and regulations in government contracting, as well as a plain-English explanation of how those developments may affect contractors at all levels of government. In this issue, we discuss recent trends in federal, state and local government contracting. Contractors should keep in mind that state and local agencies often look to changes in federal regulations as a guide for future changes at their respective levels. Changes recently made in the federal arena are likely to trickle down to state and local governments soon.

Continue Reading Legal Landscape: Top News in the Mentor-Protégé Program, Bond Claims & DBE Fraud

In a post publisConstruction Sitehed in 2013, we addressed the use of termination for default as a weapon. Unfortunately, construction contractors who fall behind schedule are automatically on the defensive and they rarely find that contracting officers are willing to concede government responsibility. The government, of course, is in a difficult position when it must explain to its customer – the end-user – that the scheduled completion date will not be met. All too often, instead of admitting that the contractor is not responsible, the threat of a termination for default is held over the contractor’s head because it is easier to blame the contractor than to admit that the government made a mistake.
Continue Reading Defenses to a Termination for Default

It’s been an eventfulNovember wooden blocks with many-coloured pumpkins and decor against an old wood background November for the Federal Government’s VOSB/SDVOSB programs.  First, the Department of Veterans Affairs (“VA”) issued a proposed rule outlining changes that would drastically change the manner in which eligibility requirements are analyzed (you can read about it here). Now, Congress is proposing additional changes to the VOSB and SDVOSB verification process. 
Continue Reading Additional Changes Concerning VOSB/SDVOSB Verification?

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Listen up, VOSBs and SDVOSBs!  Major changes are in store for the Department of Veterans Affairs’ VOSB/SDVOSB program.

On November 6, 2015, the VA issued a proposed rule, which could drastically change the way the two eligibility requirements for VOSBs and SDVOSBs are interpreted.  The VA explained the changes as follows: 
Continue Reading VA Proposes Changes to VOSB/SDVOSB Regulations, Aims for Consistency with COFC Ruling in Cohen Seglias’ Miles Construction Case

Please join us on NoveNVSBE logomber 18th and 19th for Maria Panichelli’s three seminars at the 2015 National Veterans Small Business Engagement in Pittsburgh, PA. To view the dates and times of Maria’s seminars, and to register, visit the NVSBE website. 
Continue Reading The 2015 National Veterans Small Business Engagement

Please joinContractor's Agreement us for Maria Panichelli and Amy Kirby’s seminar, “Avoiding Common Pitfalls in Small Business Government Contracting,” for the District of Columbia Procurement Technical Assistance Center (DC PTAC) on November 5th in Washington, D.C. 
Continue Reading Avoiding Common Pitfalls in Small Business Government Contracting

fraudIn United States v. Nagle, the Third Circuit provided instruction on how to calculate the amount of “loss” defendants are attributed when being sentenced in a Disadvantaged Business Enterprise (“DBE”) fraud case.  Going forward, in a DBE fraud case, the loss calculation must include consideration of the fair market value of the services rendered to the government under the affected contract, or contracts. 
Continue Reading Third Circuit Allows for Offset when Calculating Loss in DBE Fraud Cases