Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • This blog has frequently frowned on a government contractor taking oral advice from any government official, even a contracting officer. For the most part, unless confronted with an emergency or time sensitive situation, contractors should insist that contracting officers place advice or direction in writing, modifying a solicitation or an actual contract as necessary. (Even if a contractor accept...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • The Small Business Administration (“SBA”) Office of Hearings and Appeals (“OHA”) recently considered whether a business was a “Women-Owned Small Business” (“WOSB”). One section of the SBA rules on WOSBs is 13 CFR § 127.201, and this requires that one or more women must unconditionally and directly own at least 51 percent of the concern. In addition, the SBA rules require that the management and da...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • A Defense Logistics Agency (“DLA”) contracting officer (“CO”) terminated a contract to provide jet fuel to Bagram airfield in Afghanistan, (including construction of a pipeline). The termination, however, was so erroneous that the Armed Services Board of Contract Appeals (“ASBCA”) cited numerous reasons for converting the default to a termination for convenience of the government. Asia Commerce Ne...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • The Government Accountability Office (“GAO”) recently confirmed that it has no bid protest jurisdiction over procurements made by the United States Mint. A-Z Cleaning Solutions, B-415228, Nov. 6, 2017. GAO reiterated the fact that under the Competition in Contracting Act (“CICA”), it has jurisdiction to resolve bid protests, solicitations and contract awards that are issued by a “Federal Agency.” ...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • Do you think it is proper for an agency to eliminate a proposal from consideration under the following circumstances: Nothing in the evaluation criteria of the Request for Proposals (“RFP”) stated that proposals would be eliminated because they contained “informational deficiencies” (i.e., the proposal did not comply strictly with the solicitation’s proposal preparation instructions). The agency i...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • As readers of this blog know well, the general rule in the submission of proposals in a negotiated procurement is found in Federal Acquisition Regulation (“FAR”) 15.208, which states that “[a]ny proposal, modification or revision that is received at the designated Government office after the exact time specified for receipt of proposals is “late” and will not be considered [except for some very sp...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • This blog has previously noted the importance of confirming that any proposal submitted by email has been received either through a return email or a telephone call to the intended recipient. See blog on this site “Protester Has Burden of Showing Timely Electronic Delivery” (Oct. 19, 2017). Follow this sequence from a recent Government Accountability Office (“GAO”) bid protest to see how strange t...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • The Government Accountability Office (“GAO”) released its annual bid protest report to the Congress for fiscal year 2017 on November 13, 2017 (B-158766). The GAO actually received 2,672 protests in FY2017, but dismissed or immediately denied nearly 80 percent of them, while actually considering and issuing decisions on only 581protests, known as “merit decisions.” The GAO sustain rate decreased si...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • The Contract Disputes Act of 1978 (“CDA”) contains a few simple requirements for claims over $100,000, including certification. Yet to this day contractors have consistently violated the certification requirements and, as a result, had their claims dismissed by the Boards and Courts. This happened most recently in NileCo Gen’l Contracting, LLC, ASBCA No. 60912, Sept. 22, 2017. It seems as if a tec...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • On November 14, 2017, a PCI Consultant posted a blog article about Requests for Equitable Adjustments (“REA”) versus claims. It seems to me that the original discussion and the blog overlooked an important problem in contract administration today—the failure of contracting officers (“CO”) to do their duty to review and engage in negotiations on both REAs and claims. The blog said: On September 28,...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • The Government Accountability Office (“GAO”) adheres strictly to its own rules, even if they result in a dismissal of a protest where the protester has made a procedural error. In two recent cases, the GAO dismissed protests where the protesters failed to timely file comments on the agency reports, and never requested an extension of time to file those comments. In two cases, GAO confirmed its str...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • On September 28, 2017, Professor Ralph Nash and Tim Sullivan hosted a virtual classroom on the topic of Requests for Equitable Adjustments and Claims. Following the virtual classroom, I interviewed Professor Nash to ask questions related to the discussion during the training. I would assert that if examined just from the perspective of reading case law on the issue, the difference between an REA a...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • On April 25, 2017, Professor Ralph Nash and Tim Sullivan hosted a virtual classroom on the topic of Organizational Conflicts of Interest. Following the virtual classroom, I interviewed Professor Nash to ask questions related to the discussion during the training. Can you provide an overview of the respective obligations and responsibilities of contractors, with respect to monitoring, reporting and...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • Is a prime contractor entitled to bill for vacation costs incurred by and owed to its subcontractor on a time and materials contract, even if they were invoiced separately from the subcontractor’s salary cost? The Armed Services Board of Contract Appeals (“ASBCA”) answered “yes,” explaining that the application of the clause at Federal Acquisition Regulation (“FAR”) 52.232-7, “Payments Under Time ...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • The Federal Acquisition Regulation (“FAR”) defines “change order” to mean “a written order, signed by the contracting officer, directing the contractor to make a change that the Changes clause authorizes the contracting officer to order without the contractor’s consent.” FAR 2.101. The question is, what types of changes are authorized by the Changes clause? The answer is found in the Changes claus...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • Now comes two cases decided on the same day by the Armed Services Board of Contract Appeals that demonstrate how important it is for a contractor to understand what he/she signs. Arab Shah Const. Co., ASBCA No. 60813, September 7, 2017 and Central Texas Expr. Metalwork LLC,, ASBCA No. 61109, September 7, 2017. In both cases, the contractors signed away rights to potential claims they could have re...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • E-mail is a very useful tool, especially in government contracting. But the Government Accountability Office (“GAO”) recently confirmed a long line of cases where an offeror contended that it had sent in its proposal by e-mail, but the agency did not receive it and could find no evidence in its email servers of receipt. Ghazanfar Neft Gas LTD, B-414636, July 21, 2017. In this and similar cases, th...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • Contractors know that most contracts for services are subject to the Service Contract Act, 41 U.S.C. § 351(a) (the “SCA”). The SCA was designed to protect wages and fringe benefits of service workers employed on U.S. Government contracts. It directs the Department of Labor (“DOL”) to issue minimum wage orders applicable to fixed-price services contracts, called “Wage Determinations,” which are dev...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • The Federal Acquisition Regulation (“FAR”) is found in Title 48 of the Code of Federal Regulations. It consists of 37 Chapters (Chapter 1, some 2,000+ pages, which applies to all agencies, and then various agency supplements plus the Cost Accounting Standards). In all, the FAR is thousands of pages long. Are all of the relevant parts of the FAR incorporated into your government contract? The simpl...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • In a recent decision overruling the Court of Federal Claims, the Federal Circuit upheld a contractor’s claim of negligent estimates in a requirements contract, where the agency provided historical data in the solicitation, but failed to include information on anticipated troop movements and a surge of equipment and material that would become part of the contract as the units departed. Agility Defe...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • A recent Armed Services Board of Contract Appeals (“ASBCA”) decision is a strong reminder that contractors must submit complete and proper claims, or they will be dismissed by either the Contracting Officer or a board or court, if appealed to one of those forums. Andrews Contracting Services, LLC, ASBCA No. 60808 (May 22, 2017). Andrews submitted to the Contracting Officer a “Request for Equitable...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • In a precedent-setting case, the Court of Federal Claims found that there was a good reason to award more than the minimum $125 hourly rate for attorney fees under the Equal Access to Justice Act (“EAJA”). In Starry Associates, Inc. v. United States, (Fed. Cl. No. 16-44C), March 31, 2017, the court held that the numerous examples of agency misconduct during the procurement process as well as the “...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • The Corps of Engineers learned the hard way that 28 U.S.C. § 516 means what it says, and that the Department of Justice has the right to conduct (and settle) litigation to which the United States is a party or is interested in. This section of the U.S. Code provides that: Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • As of the last week in August 2017, there is no agreement in Washington, DC on a great budgetary trifecta: (1) a needed increase in the debt ceiling, which now stands at $19.86 trillion; (2) a budget for fiscal year 2018–the fiscal year that begins on October 1, 2017, without which the government will shut down; and (3) possible “sequestration,” or the automatic cancellation (cut) of agency budget...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • Most construction contractors understand that Federal Acquisition Regulation (“FAR”) 52.236-21, Specifications and Drawings for Construction, specifically states that “in case of difference between drawings and specifications, the specifications shall govern.” This clause is mandatory for use in fixed-price construction contracts over $150,000. FAR 36.521. A recent construction contract not only i...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • The Small Business Administration (“SBA”) size regulations include an “ostensible subcontractor” rule. This rule provides that when a subcontractor is actually performing the primary and vital requirements of the contract, or when the prime contractor is “unusually reliant” upon its subcontractor, the two firms are affiliated (and frequently are “not small”) for purposes of the procurement. 13 CFR...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • When a manufacturing or supply contract is set aside for small businesses, the Small Business Administration (“SBA”) size regulations require that the prime contractor either be the manufacturer of the end item being procured (and the end item must be manufactured or produced in the United States); or must comply with certain nonmanufacturer exceptions. 13 CFR § 121.406. A recent Size Appeal at th...

Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Post
  • The Truth in Negotiations Act (“TINA”) requires that contractors furnish cost or pricing data before an agreement on price for most negotiated procurements of more than $750,000. Cost or pricing data mean all facts that a prudent buyer or seller would reasonably expect to significantly affect price negotiations, and that were available at the time the contract price was agreed to. This data (which...

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