Contractors continue to be concerned about the impact that the filing of protests or claims will have on their past performance evaluations in negotiated procurements. While it is never a good idea to file a frivolous protest or claim, it is improper for procurement officials to downgrade past performance evaluations simply because a contractor has
Compulsory E-Verify Program for Federal Contractors Starts September 8, 2009
By: Michael H. Payne and Craig A. Schroeder
Effective September 8, 2009, federal contractors awarded new contracts of $100,000 or more with a performance period of longer than 120 days will be required to use E-Verify, an internet-based system that allows employers to electronically verify the employment eligibility of their newly hired employees. In addition,
Federal Green Construction and the Stimulus Act
By: Lane F. Kelman and Christopher Soper
As part of the American Recovery and Reinvestment Act of 2009 (the "Stimulus Act") the General Services Administration’s ("GSA") Public Building Service was authorized to invest 4.5 billion dollars to transform federal facilities into exemplary, high-performance green buildings. The allocated money is scheduled to be awarded in its
Government Held Responsible for "Utter Silence"
An Armed Services Board case, ADT Construction Group, Inc., involves an appeal from a contracting officer’s final decision denying a claim for $826,725.16 and a 278-day time extension. The contractor had filed a claim for pre-construction delays arising out of a contract for the design and construction of a munitions maintenance facility at Nellis
The American Recovery and Reinvestment Act of 2009: What it Means for Federal Construction Contractors
Co-authored by Michael H. Payne and Craig A. Schroeder
On February 17, 2009, the President signed Public Law 111-5, the American Recovery and Reinvestment Act of 2009 (also known as “ARRA,” the “Recovery Act,” and the “Stimulus Act”), including a number of provisions to be implemented in Federal Government contracts. The Recovery Act’s purposes are to stimulate the economy and to create and retain jobs. The Act gives preference to activities that can be started and completed expeditiously, including a goal of using at least 50 percent of the funds made available by it for activities that can be initiated not later than June 17, 2009.
An Interim Rule issued on March 31, 2009, implements section 1512, which is also known as the “Jobs Accountability Act.” Subsection (c) of section 1512 requires contractors that receive awards (or modifications to existing awards) funded, in whole or in part, by the Recovery Act to report quarterly on the use of the funds. The comment period on the interim rule expires on June 1, 2009. In addition, a new section was added to the FAR, subpart 4.15, “American Recovery and Reinvestment Act – Reporting Requirements,” and a new clause was added to implement the reporting requirements, FAR 52.204-11. Contracting Officers are now required to include the new clause in solicitations and contracts funded in whole or in part with Recovery Act funds, except classified solicitations and contracts. Commercial item contracts and Commercially Available Off-The-Shelf (COTS) item contracts are covered, as well as actions under the simplified acquisition threshold.
Effective March 31, 2009, five (5) interim Federal Acquisition Regulation (FAR) rules went into effect that implement several requirements of the Recovery Act. See Federal Acquisition Circular (FAC) 2005-32, published at 74 Fed. Reg. 14,639 (Mar. 31, 2009). These new rules only apply to federal procurement contracts funded with stimulus money. Their goal is increased transparency and accountability in the spending of Stimulus Act funds. The new rules include:
1. Reporting Requirements for Recipients of Recovery Funds (See 74 Federal Register 14639);
2. Publicizing Contract Actions (See 74 Federal Register 14636);
3. GAO and IG Access to Company Employees (See 74 Federal Register 14646);
4. Whistleblower Protections (See 74 Federal Register 14633); and
5. Buy American Requirements for Construction Materials (See 74 Federal Register 14623).
Each rule is discussed, in turn, below.
1. Reporting Requirements for Recipients of Recovery Funds
This is the most onerous of the new requirements and contractors must now file quarterly reports documenting their use of stimulus funds. See FAR Case 2009-009, Interim Rule, American Recovery and Reinvestment Act of 2009 (the Recovery Act)— Reporting Requirements, 74 Fed. Reg. 14,639 (Mar. 31, 2009). Information on the Recovery Act may be found on the Recovery Act website.
The new mandated contract clause, FAR 52.204-11, which must be included in all contracts receiving stimulus funds, requires the prime contractor, and first-tier subcontractors, to report the following information:
(i) Contract and order number;
(ii) Amount of stimulus funds invoiced by the contractor for the reporting period;
(iii) List of significant supplies delivered or services performed;
(iv) Assessment of the contractor’s progress on the contract;
(v) Employment impact of the contract (e.g., an estimate of the number of jobs created and retained);
(vi) The names and compensation of the five most highly compensated officers of the contractor for the calendar year in which the contract is awarded if the contractor receives 80 percent and $25 million or more of its annual gross revenues from federal awards and the public does not have access to the information through periodic reports filed with the Securities and Exchange Commission or the Internal Revenue Service; and
(vii) Detailed information on first-tier subcontracts.
Reporting on invoices submitted prior to June 30, 2009 are due no later than July 10, 2009. After those dates, contractor reports must be submitted no later than the 10th day after the end of each calendar quarter. The new reporting requirements apply to all solicitations and contracts funded in whole or in part with Recovery Act funds, except classified solicitations and contracts. This includes Government-wide Acquisition Contracts (GWACs), multi-agency contracts (MACs), Federal Supply Schedule (FSS) contracts, or agency indefinite-delivery indefinite-quantity (ID/IQ) contracts that will be funded with Recovery Act funds.Continue Reading The American Recovery and Reinvestment Act of 2009: What it Means for Federal Construction Contractors
Department of Defense Expenditure Plan Provides Tremendous Opportunities for Federal Construction Contractors
Although many aspects of our economy are suffering, the federal construction market will most certainly be booming. On Friday March 20, 2009, the Department of Defense issued a 191 page Report to Congress detailing how it plans to spend the money it has received as part of the American Recovery and Reinvestment Act of 2009,
Corps of Engineers Issues New Safety Manual
The U.S. Army Corps of Engineers, through its Office of Safety and Occupational Health, has released a new edition of the Corps’ Safety and Health Requirements Manual, EM 385-1-1, that streamlines information for easier access and quicker use. According to the Corps, “The safety manual is a major key to the success of the
The Importance of Proposal Preparation in Responding to an RFP
As the government has expanded its uses of Contracting by Negotiation through the issuance of RFPs ("Requests for Proposals"), as opposed to Sealed Bidding and the issuance of IFBs ("Invitations for Bid"), contractors have had to adapt to this new way of doing business. All too often, a perfectly capable contractor is not selected for
The Right of Contractors to Challenge Unfair Performance Evaluations is Further Expanded by the U.S Court of Federal Claims
We recently reported (see our earlier blog article) the decision of the United States Court of Federal Claims in BLR Group of America, Inc. v. United States, issued on November 25, 2008, in which the Court opened the door to contractor challenges of unfair or incorrect performance evaluations. Coming literally on the heels of
Court of Federal Claims Decision Paves the Way for Contractors to Challenge the Accuracy and Fairness of Performance Appraisals
In an interesting decision issued by the United States Court of Federal Claims on November 25, 2008, in a case entitled BLR Group of America, Inc. vs. United States, the Court ruled that it had jurisdiction to consider a contractor’s claim that a Contractor Performance Assessment Report (“CPAR”) was “false and highly prejudicial.” The case