For federal construction contractors, payment and performance bond obligations in construction contracts with the federal government that exceed $150,000 should, typically, come as no surprise. However, what requirements should contractors expect from a contract that is ambiguous as to whether it is a construction contract, yet calls for construction-related services, but lacks explicit bonding requirement terms? Can bonding requirements be “read-in” to the contract? When should contractors raise such questions? This past November, the Federal Circuit addressed those questions in K-Con, Inc. v. Secretary of the Army, 908 F.3d 719 (Fed. Cir. 2018). This decision provides instrumental lessons contractors should keep in mind before submitting offers for projects that include construction-related services. Continue Reading No Bonding Requirements? Think Again, Instructs the Federal Circuit
Over the past couple of months, we have had several clients contact us to discuss issues involving Organizational Conflicts of Interest (OCIs). In each case, it seemed like there was some confusion either by the government, the contractor, or both, regarding what amounted to a conflict of interest and how having one could impact contract performance. In most cases, we were able to work with the contracting officer and develop a mitigation plan to avoid, neutralize, or mitigate each OCI successfully. This blog post will cover the basics about OCIs and discuss some ways that contractors can work with the government to mitigate them.
The Europe District of the U.S. Army Corps of Engineers is hosting an Industry Day on August 15, 2018 in Tel Aviv. The event begins at 09:00 at The Ritz-Carlton Herzlia.
This conference will present an overview of upcoming construction projects in Israel and provide U.S. firms with an opportunity to meet potential Israeli subcontractors or suppliers.
Although these construction projects are performed in Israel, the law requires that the prime contracts must be awarded to U.S. firms and they, in turn, are permitted to subcontract up to 75% of the work to Israeli companies. Given the millions of dollars that have been obligated to the program, there are many opportunities for American and Israeli firms to work together. Continue Reading Upcoming Industry Day in Tel Aviv
As I mentioned in a recent post, the Department of Defense (DoD) is using its “other transaction” authority with increased frequency to attract non-traditional defense contractors and to capitalize on the cutting-edge technological advancements found in the commercial marketplace. Other Transaction Agreements (OTAs) are not procurement contracts, grants, or cooperative agreements and, as such, many procurement laws and regulations do not apply, including the Competition in Contracting Act (CICA) and the Federal Acquisition Regulation (FAR). Continue Reading Bid Protests: Are Other Transaction Agreements (OTAs) Really Bulletproof?
If you gave me $17 million on the credit card, I could call Cabela’s tonight and outfit every soldier, sailor, airman and Marine, and I’d get a discount on it for a bulk buy. This is a pistol. The technology’s been around for five centuries, and arguably it’s the least important weapons system in the Department of Defense inventory.
Senior leaders within the Department of Defense (DoD) have grown increasingly frustrated with an acquisition system characterized by ever-increasing costs and significant delays in getting end items to customers. Their frustration has been heard by Congress and has resulted in recent Congressional action. The latest major acquisition reform effort started with the Fiscal Year (FY) 2016 National Defense Authorization Act (NDAA), with each subsequent NDAA containing various provisions that are meant to modernize and accelerate the antiquated and cumbersome federal acquisition system providing flexibility and allowing for the agile acquisition of next-generation technology. Continue Reading The Future of Acquisition in the Federal Government: Innovation and Rapid Procurement Through Other Transaction Authorities and Other Transaction Agreements
Earlier this month, my colleague, Michael Payne, and I attended Israel Industry Day sponsored by the Army Corps of Engineers (“USACE”) and the Israeli Ministry of Defense (“MOD”) in New York City. The purpose of the program was to present the Israel Foreign Military Sales (FMS) Construction Program and to introduce American and Israeli construction contractors and A/E firms to the upcoming construction opportunities in Israel. Information was provided on the general scope of USACE design build and design bid build projects within Israel; typical infrastructure and facilities being procured; potential repair, maintenance, and construction opportunities to support MOD facilities in Israel; as well as information on the solicitation and proposal process and various legal issues that apply to the Projects. Continue Reading Construction Opportunities in Israel for Federal Contractors
Last month, we outlined Congress’ plan to block the implementation of President Obama’s Fair Play and Safe Workplaces executive order. Today, we report that the prognosis has grown even more grim for the former President’s initiative, as both the House of Representatives and Senate have passed measures blocking the order from taking effect – now, the only remaining hurdle to a full repeal of the Fair Play and Safe Workplaces order is the signature of the President. Continue Reading The End is Near for “Fair Play and Safe Workplaces”
For the last few months, we have been following the troubled rollout of the “Fair Play and Safe Workplaces” rules, an Obama-era Executive Order that placed new requirements on contractors prohibiting certain labor practices. It is now becoming increasingly clear that the controversial act is likely to be a casualty of the new administration’s deregulatory agenda. Continue Reading Congress Strikes Blow to “Fair Play and Safe Workplaces”
- Report labor law “violations” of itself or any of its subcontractors (where the estimated value of the subcontract exceeds $500,000) under various federal employment and labor laws;
- Restrict the use of binding, pre-dispute arbitration provisions in non-collectively bargained employment contracts; and
- Establish “paycheck transparency” through the issuance of wage statements to all individuals performing work under a covered contract.
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.”)