Engineering News Record has posted an interesting podcast of a conversation with the recently appointed Chief of the U.S. Army Corps of Engineers, Lt. General Robert S. Van Antwerp. The General responds to questions about the on-going construction efforts in Iraq, and the completion of the flood protection systems in New Orleans. The recorded conversation (podcast) may
Electronic Subcontracting Reporting System (eSRS)
As part of the President’s Management Agenda for Electronic Government, the Small Business Administration (SBA), the Integrated Acquisition Environment (IAE), and a number of Agency partners collaborated to develop the next generation of tools to collect subcontracting accomplishments. This government-wide tool is known as the eSRS. This Internet-based tool will streamline the
SAME Reports that the DoD Mentor-Protege Program is Growing
The Society of American Military Engineers (SAME) reports, in its latest issue of the SAME Government & Industry e-News, that since the Department of Defense (DOD) Mentor-Protégé program began 16 years ago with one agreement, industry participants have formed nearly 1,000 more agreements. The scope of the program also has grown to include women-owned,
Determination of Suitability of Service-Disabled Veteran-Owned Small Business Set-Aside
In what we regard as a somewhat unusual decision by the GAO, given its reluctance to interfere with matters of agency discretion, the GAO has concluded that the Air Force failed to make reasonable efforts to ascertain whether an acquisition was suitable for an SDVOSBC set-aside. The GAO ruled that a procuring agency is required to make reasonable efforts to ascertain whether an acquisition is suitable for a set-aside for service-disabled veteran-owned small business concerns (SDVOSBC) before it can proceed with a small business set-aside. Under the circumstances presented in a decision issued on March 28, 2007, MCS Portable Restroom Service, B-299291, the GAO concluded that the Air Force failed to make reasonable efforts to ascertain whether this acquisition was suitable for an SDVOSBC set-aside and the protest was sustained.
The GAO reiterated that, generally, a procurement set-aside determination is a matter of business judgment within the contracting officer’s discretion, which “our Office will not disturb absent a showing that it was unreasonable.” The GAO further commented that although the use of any particular method of assessing the availability of firms for a set-aside is not required, measures such as prior procurement history, market surveys, and advice from the agency’s small business specialist may all constitute adequate grounds for a contracting officer’s decision to set aside, or not to set aside, a procurement. The assessment must be based on sufficient evidence so as to establish its reasonableness. Continue Reading Determination of Suitability of Service-Disabled Veteran-Owned Small Business Set-Aside
Code of Ethics and Internal Training Program May Soon be Required for Contractors Receiving Awards in Excess of $5 Million
A proposed amendment to the FAR was published in the Federal Register on February 16, 2007 to address Contractor Code of Ethics and Business Conduct. FAR 3.101, Standards of Conduct, provides that “Government business shall be conducted in a manner above reproach and, except as authorized by statute or regulation, with complete impartiality and
New DFARS Provision Has a "Chilling Effect" on Claims
One of the byproducts of the recent use of negotiated procurements under FAR, Part 15, has been the concern, on the part of contractors, that the submission of claims will be a negative factor during the evaluation process on a Request for Proposals. While we can certainly understand that a contractor who has a history of filing frivolous claims might deserve to be downgraded, we see no valid reason for the government to assign a lower rating to a contractor who has filed meritorious, or good faith, claims in the past.
On February 12, 2006, a provision was added to the Defense Federal Acquisition Regulation Supplement (DFARS) dealing with the review of claims that we find very disturbing. Under DFARS Subpart 233.2, Disputes and Appeals, Paragraph 233.10, “Contracting Officer’s Authority,” there is a reference to a new “PGI” (Procedures. Guidance and Information). The new guidance states that “When it would be helpful in reviewing the current claim, the contracting officer should get information on claims previously filed by the contractor. Such information may provide a historical perspective of the nature and accuracy of the claims submitted by the contractor and how they were settled. Potential sources for the information include the contracting activity’s office of legal counsel, other contracting activities, and the Defense Contract Audit Agency.”
We believe that each claim should stand on its own merits. Each claim is different and is the result of a different contract, a different set of facts, and is ultimately decided by a different set of legal principles. In addition, the Contract Disputes Act of 1978 gives contractors the right to file claims. It seems to us that “guidance” that could potentially penalize contractors for filing claims is most inappropriate.Continue Reading New DFARS Provision Has a "Chilling Effect" on Claims
Upcoming Seminar in New Orleans to Highlight Expanded Use of Negotiated IDIQ and MATOC Contracting
We have recently presented a series of very well-received and well attended seminars on “The New World of Federal Government Construction Contracting." It is evident from the questions raised by many of the attendees that contractors are concerned about the decline in contracting opportunities as the federal government shifts from sealed bidding to the
AGC Appeals Ruling that EPA Must Set Limits on Sediment in Construction Runoff
In an a press release issued by Construction News, a publication of the Associated General Contractors of America (AGC), it was reported that the U.S. Environmental Protection Agency (EPA) and the AGC had both filed an appeal with the U.S. Court of Appeals for the Ninth Circuit to contest a recent California district court ruling that requires the EPA to issue an “effluent limitation guideline” (ELG) for the “Construction and Development” (C&D) industry.
Such an ELG would set uniform, nationwide limits on the sediment that stormwater can lawfully discharge from construction sites. After years of analysis and outreach, EPA concluded that additional rules are unnecessary, given the evolution of the existing stormwater program.
“EPA recognizes that there is no ‘one-size-fits-all’ approach to stormwater runoff,” said AGC CEO Stephen E. Sandherr. “The better way to protect the environment is to allow state and local authorities to tailor the details of their construction runoff programs to state and local conditions, and not to impose a rigid and inflexible federal standard.” Continue Reading AGC Appeals Ruling that EPA Must Set Limits on Sediment in Construction Runoff
Paul Perkins – A Valuable Resource for Federal Construction Contractors
There are many resources available to federal construction contractors, but there a few as useful as the services provided by Paul Perkins and his company, Construction Contract Specialists. We have had the privilege of working with Paul on a number of construction cases, and we continue to be impressed by his tireless efforts on
The Variation in Estimated Quantity Clause and Requirements Contracts
After a hiatus in the posting of new decisions on its website dating back to October 2006, the Armed Services Board of Contract Appeals recently posted a series of new decisions. We will review and comment on the most interesting ones in upcoming articles and we begin today with the decision in Emerson Construction Co.