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Stephen D. Tobin

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Steve brings considerable government experience to the firm’s clients, having served as an associate counsel for litigation and senior trial attorney in the Department of the Navy’s Office of General Counsel. As a result of his work with the Navy, Steve helps clients strategize the best approaches for negotiation and litigation involving complex federal contracts. He also advises companies and individuals facing government investigations under the False Claims Act.

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On July 14, 2022, the Department of Labor (DOL) issued a proposed rule that would require contractors and subcontractors performing covered service contracts to offer, in good faith, service employees employed under the predecessor contract the right of first refusal of employment under the successor contract. The proposed rule implements President Biden’s November 18, 2021 Executive Order 14055, Nondisplacement of Qualified Workers Under Service Contracts (the order). In sum, the order establishes a general policy for the federal government that “service contracts which succeed contracts for the same or similar services, and solicitations for such contracts, shall include a non-displacement clause.”
Continue Reading Don’t You Forget About Me: DOL’s Proposed Rule on the Right of First Refusal in Service Contracts

Contract and Gavel Illustration

In its recent decision in T.H.R. Enterprises, Inc., the Court of Federal Claims reminds contractors to read claim release language carefully before executing any agreement or modification. T.H.R. Enterprises, Inc. involved an IDIQ contract for renovation work at Langley Air Force Base. The government issued various task orders (TOs) under the overarching IDIQ, and disputes arose between T.H.R. and the government under three of these orders: TOs 22, 25, and 26.
Continue Reading Recent Decision Highlights the Potential Pitfalls in General Releases

Contract and magnifier

Oftentimes, contractors find it difficult to differentiate between the government’s acts taken in its sovereign capacity as opposed to those taken in its contractual capacity. The government acts in its sovereign capacity when it takes actions that are general and public in nature and do not target any particular contractor; rather the impact of the government’s action on its contracts is merely incidental to the purpose of a broader governmental objective. As two recent Armed Services Board of Contract Appeals (the Board) decisions involving contractor claims for COVID-19-related costs illustrate, the distinction between these two roles can make or break a contractor’s claim.
Continue Reading The Sovereign Acts Doctrine Strikes Back: COVID Costs Are Its Latest Victim

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The GAO’s recent decision in K&K Industries, Inc. reinforces for disappointed offerors that once the government unequivocally states that a debriefing has concluded, the clock has started ticking on the time to file a protest. Notably, this can be true even if the parties continue discussing the offeror’s proposal.

The Background

On September 28, 2021, the U.S. Army Corps of Engineers (USACE) notified K&K Industries, Inc. (K&K) that it had awarded Blinderman Construction, Co. (Blinderman) a contract involving the design and renovation of a historic barracks building in Fort Riley, Kansas. This notice also informed K&K that the company had a right to request a debriefing. K&K timely requested the debriefing and asked that the debriefing include a redacted copy of the Source Selection Decision Document (SSDD).
Continue Reading When Exactly Did My Debriefing End?

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The SBA is proposing two new methods for small businesses to obtain the often elusive qualifying past performance commonly required when competing for federal contracts. The proposed rules implement new provisions of the National Defense Authorization Act (NDAA) Fiscal Year 2021 (FY 2021), which will permit a small business government contractor to use the past performance of a joint venture, of which it was a member, “provided that the small business worked on the joint venture’s contract or contracts.” The proposed rules will also authorize small businesses to use past performance as a first-tier subcontractor.
Continue Reading Please Pass the Past Performance Rating: SBA’s Proposed New Rules to Help Small Businesses Become More Competitive

Contract and Gavel Illustration

The Armed Services Board of Contract Appeals’ (ASBCA) recent decision in Odyssey International, Inc. provides contractors with yet another cautionary tale when executing modifications with the government: make sure you fully understand the consequences of what you are gaining (and possibly losing).

In Odyssey, the U.S. Army Corps of Engineers (the government) contracted for the construction of a building at an Army depot in Pennsylvania. A micropile system, which involves drilling small-diameter holes into bedrock and inserting grout into any voids before inserting a metal pole and casing, was to be used in the building’s foundation. Although potential offerors were to assume the need for 60 micropiles, the solicitation also noted that the contractor bore responsibility for the micropile foundation system’s design. After a series of discussions on the topic, the government informed Odyssey to submit its micropile design independent of the bidding criteria. As a result, Odyssey’s design, which the government approved, proposed using 80 micropiles instead of 60.
Continue Reading Bilateral Modifications: Read, Re-Read, and Read Again Before You Sign