In a decision issued on April 20, 2007, but published today because of a protective order, the GAO denied a protest by Olympus Building Services, Inc., B-296741.14; B-296741.15 against the award of a contract to Rowe Contracting Services, Inc., issued by the Defense Intelligence Agency (DIA) for janitorial services at the DIA Analysis Center. Olympus challenged
Missing Information in Electronic Database Not Fatal To Offeror
As Federal government contractors know all too well, Federal procurement has entered the electronic age in a big way. The Federal Acquisition Regulation, at FAR 4.1201, now provides that “Prospective contractors shall complete electronic annual representations and certifications at http://orca.bpn.gov. Instead of submitting executed Representations and Certifications with bids and proposals, prospective contractors can
Equal Access to Justice Act Attorney’s Fees Denied to a Prevailing Party
The Equal Access to Justice Act (“EAJA”) allows the recovery of attorney’s and expert witness fees provided that the applicant submits a timely application “which shows that the party is a prevailing party and is eligible to receive an award under this section. . . .” The applicant “shall also allege that the position of
GSA Streamlines Local Small Business Contracting on the Gulf Coast
As recently reported by Elise Castelli in the Federal Times, “The long slog to rebuild the Gulf Coast devastated by Hurricane Katrina might be gaining some speed.” A new order signed by GSA Administrator Lurita Doan will make it simpler and faster for the U.S. General Services Administration to award millions of dollars in
Court Overrules a Federal Agency Override of an Automatic Stay in a Bid Protest Case
Under the federal Competition in Contracting Act, an automatic stay of a federal procurement goes into effect if an unsuccessful bidder files a bid protest with the GAO either within ten days after a contract award is made or within five days of an agency debriefing to the bidder, whichever is later. During the stay, “the contracting officer may not authorize performance of the contract to begin while the protest is pending.” Nonetheless, the agency may override the automatic stay under certain conditions:
The head of the procuring activity may authorize the performance of the contract (notwithstanding a protest of which the Federal agency has notice under this section) –
(i) upon a written finding that –
(I) performance of the contract is in the best interests of the United States; or
(II) urgent and compelling circumstancesthat significantly affect interests of the United States will not permit waiting for the decision of the Comptroller General concerning the protest; and (ii) after the Comptroller General is notified of that finding. 31 U.S.C. § 3553(d)(3)(C).
Proesters offen fear that an agency will seek to override the automatic stay because of national security or other exigent circumstances, but an override rarely occurs because of the need to obtain higher authority approval. (The Army Acuisition Corps actually published a manual in 2004 entitled the "The Competition in Contracting Act Automatic Stay Override Guide.") Recently, in a case decided by the United States Court of Federal Claims, Superior Helicopter LLC and Ranier Heli-Lift, Inc. v. United States, three unsuccessful bidders protested a solicitation issued by the Forest Service (the “Service”), a component of the United States Department of Agriculture, for exclusive-use contracts for helicopter services to support firefighting efforts. The three unsuccessful bidders for awards – Superior Helicopter LLC (“Superior”), Ranier Heli-Lift, Inc. (“Ranier”), and Erickson Air-Crane, Inc. (“Erickson”) – filed bid protests with the Government Accountability Office (“GAO”), triggering an automatic stay under the Competition in Contracting Act, 31 U.S.C. §§ 3551-56, of the contracts awarded in the procurement. After the Forest Service acted on July 9, 2007 under 31 U.S.C. § 3553(d)(3)(C) to override the stay based on findings of exigent circumstances and the best interests of the government, the three helicopter operators filed suit in the United States Court of Federal Claims on July 11, 2007, seeking a temporary restraining order, a declaratory judgment, and preliminary and permanent injunctive relief from the Forest Service’s decision to override the stay.
The Court found that the Forest Service’s assertion that exclusive-use contracts were needed to face the significant risks posed by the 2007 fire season was misleading. No one doubted that the risks of fire this season were significant, but exclusive-use contracts would not have added more resources to combat that risk. The Forest Service’s overarching justification as to why the override was in the “best interests” of the United States and based on “urgent and compelling circumstances” was that the exclusive-use contracts were better than the CWN contracts at guaranteeing helicopter availability. But, the Service provided no data showing that more resources would be made available than were otherwise at the Federal Service’s disposal under the pre-existing exclusive-use contracts and the CWN contracts upon which the Forest Service had previously relied in the immediately prior firefighting seasons. Continue Reading Court Overrules a Federal Agency Override of an Automatic Stay in a Bid Protest Case
New Rule Allows Subcontracts to Companies Owned by American Indian Tribes to Count Toward Small Business Subcontracting Goals
A new federal rule allows federal contractors to count subcontracts given to companies owned by American Indian tribes and Alaskan communities toward small business contracting goals. The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to implement section 702 of the
The Difficulty a Protester Faces When Attempting to Overcome the GAO's Deference to Agency Discretion
The Government Accountability Office (“GAO”) posted five protest decisions today and, not surprisingly, each protest was denied. One of those decisions, Metson Marine Services, Inc., B-299705, involved Metson’s protest of the award of a contract to Seaward Services, Inc. under a Request for Proposals (RFP) issued by the Department of the Navy, Military Sealift
Deal Reached on $21 Billion Water Resources Bill
Engineering New Record reports that House and Senate conferees have reached a deal on a long–delayed bill that would authorize about $21 billion for hundreds of Army Corps of Engineers water projects and require more review by outside experts of work the Corps plans to do. Funding would provide for projects to restore the Louisiana
GAO Awards Recovery of Protest Costs
In a decision issued on July 24, 2007, Matter of Panacea Consulting, Inc., the GAO ruled that protest costs should be awarded to the protester because the GAO attorney had indicated, during an Alternative Dispute Resolution proceeding, that the protest would be sustained if a GAO decision was issued. The protester alleged that the
Termination for Default Sustained in Barracks Renovation Case
In a recent decision issued on July 6, 2007, Appeals of FFR-Bauelemente + Bausanierung GmbH, ASBCA Nos. 52152, 54563, 54808, 54809, 55017, the Armed Services Board of Contract Appeals held that the government had shown that the Contracting Officer was “justifiably insecure about the contract’s timely completion” and that a termination for default was justified. The CO and COR (Contracting Officer’s Representative) believed, based on experience with other Corps of Engineers barracks renovations, that nine months was needed for a contractor to perform the barracks renovation work. After 113 days of the 290 day revised performance period (or almost 40% of the period) expired with little or no work accomplished by FFR (i.e., clearly less than 5% of contract work completed), the CO terminated FFR’s contract for default. While over 40% of the original performance period had passed, FFR had not yet obtained necessary approvals to commence the initial item of renovation work under the contract, the performance of asbestos abatement. The lack of activity by FFR with respect to the contract obviously made the CO insecure about FFR’s timely completion of the barracks renovation work.
The contractor appeared to be having difficulty procuring a subcontractor to perform asbestos abatement work, failed to meet numerous contract progress milestones (timely submission of a BLG, mobilization within 15 days of issuance of NTP, and timely submission of its asbestos training certificates and other contract submittals), and apparently did not possess a contract performance history with respect to the barracks renovation that instilled confidence in the Contracting Officer. These facts constituted further tangible, direct evidence that the CO was “justifiably insecure about the contract’s timely completion.” Thus, the Board concluded that the government has met its prima facie burden of proving it was justified in terminating FFR’s contract for default.
A default termination is a drastic sanction, which should be imposed and sustained only on “good grounds and on solid evidence.” E.g., Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987). Government contract provisions authorizing termination of a contract for default are a species of “forfeiture” and are to be strictly construed. Forfeitures are not favored, and one who asserts that there has been a forfeiture is held to the letter of its authority.Continue Reading Termination for Default Sustained in Barracks Renovation Case