Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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  • UNREASONABLE LIMITATIONS ON PROPOSAL REVISIONS DURING THE CORRECTIVE ACTION PHASE OF PROTESTS
    In what appears to be a first, the Government Accountability Office (“GAO”) sustained a protest because an agency imposed unreasonably restrictive limitations on the scope of proposal revisions. In this protest, Deloitte Consulting, LLP, B-412125.6, Nov. 28, 2016, GAO held that the restrictions prevented offerors from revising proposal information that had been materially impacted by the correctiv...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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New blog articles detected.

  • CONSTRUCTIVE ACCELERATION
    Constructive acceleration occurs when the government demands the contractor’s compliance with an original contract deadline even though there is excusable delay. This is precisely what happened in IAP Worldwide Svcs, ASBCA no. 59397 et al, May 17, 2017. A contractor is entitled to compensation for additional costs that result from the constructive acceleration. In IAP, the Army Corps of Engineers ...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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  • CONTRACTOR CAN SEEK PAYMENT FOR WORK THAT WAS INVOICED AND ACCEPTED PRIOR TO DEFAULT TERMINATION
    Claude Mayo Construction Company, Inc. (“Mayo”) had a contract with the General Services Administration (“GSA”) to renovate a U.S. Attorney’s Office in Syracuse, NY. Before Mayo completed the project, GSA terminated the contract for default. Mayo sought to overturn the default, which is not the subject of this appeal. However, Mayo also sought damages for a breach of contract because GSA, without ...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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New blog articles detected.

  • WRITTEN FINAL PROPOSAL REVISIONS ARE NOT REQUIRED IN COMPETITIONS FOR TASK ORDERS
    In a recent bid protest decision, the Government Accountability Office (“GAO”) made clear that when agencies conduct competitions for task orders among holders of a multiple award contract, final proposal revisions (“FPR”) are not required, as they would be for a “normal” Federal Acquisition Regulation (“FAR”) Part 15 procurements. These task order competitions are held under the less stringent FA...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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  • A COMMON SENSE ANALYSIS OF WHAT IS A CLAIM
    How many contractor demands for payment make a claim? The Contract Disputes Act (“CDA”) requires that “each claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision.” 41 U.S.C. § 7103(a)(1). The Federal Acquisition Regulation (“FAR”) includes the same requirement at FAR 33.206. While the CDA itself does not define clai...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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  • RE-RECURRING AGENCY MISTAKES IN DISCUSSIONS
    About a year ago, this blog published two articles on discussions, “Six Recurring Agency Mistakes in Discussions” and “Once Again: Recurring Agency Mistakes in Discussions.” (May 2016.) The “number 1” mistake was: Agencies must conduct meaningful discussions. When conducted, discussions must be meaningful. That is, discussions must identify deficiencies and significant weaknesses in an offeror’s p...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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  • ANOTHER SAD STORY OF MISPLACED RELIANCE ON A CONTRACT SPECIALIST AND IMPROPER EXERCISE OF OPTIONS
    This blog has frequently discussed cases supporting the strong principle that the federal government has given the authority to enter into and modify contracts to only a limited class of government employees: namely, contracting officers. Federal Acquisition Regulation (“FAR”) 1.601(a). This section grants to agency heads the authority to contract for supplies and services and requires that “[c]on...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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  • INCORPORATION BY REFERENCE
    Black’s Law Dictionary (5th Ed. 1979) defines “incorporation by reference” as the “method of making one document …become a part of another separate document by referring to the former in the latter, and declaring that the former shall be taken and considered as a part of the latter the same as if it were fully set out therein.” Agencies, which are the writers of government contracts, would be hard...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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New blog articles detected.

  • Afterthoughts: Evaluating Cost & Price Realism
    By Nicole R. Best On February 23, 2017, Professor Ralph Nash and Tim Sullivan hosted a virtual classroom on the topic of Evaluating Cost and Price Realism. Following the virtual classroom, I interviewed Professor Nash to ask questions related to the discussion during the training. Why does the government, as a buyer, care about cost and price realism? Those are two different things. Cost realism i...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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New blog articles detected.

  • Afterthoughts: Discussions versus Clarifications
    By Nicole R. Best On March 30, 2017, Professor Ralph Nash and Tim Sullivan hosted a virtual classroom on the topic of Clarifications versus Discussions during negotiated procurements. Following the virtual classroom, I interviewed Professor Nash to ask questions related to the discussion during the training. To some extent a theme of the webinar was a discussion of the narrowing scope of what cons...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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  • DEPARTMENT OF JUSTICE EVALUATION OF CORPORATE COMPLIANCE PROGRAMS
    In early February 2017, the Fraud Section of the Department of Justice (“DOJ”) Criminal Division issued an eight page paper on how DOJ evaluates corporate compliance programs. Those programs are one of the factors used by DOJ in conducting investigations of corporations, determining whether to bring charges and negotiating pleas and other agreements. Although DOJ does not use any rigid formula to ...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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  • FIRST ARTICLE DOES NOT REDEFINE CONTRACT SPECIFICATIONS FOR ACCEPTANCE
    In a long and complex case, the Armed Services Board of Contract Appeals (“ASBCA”) recently explained that a First Article Test (“FAT”) does not add product specifications above those detailed in the contract, and that in order to reject production articles, the government must demonstrate that they are unacceptable because they do not meet specifications in the contract. Ensign-Bickford Aero. & D...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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  • “YOU’RE OUT OF LUCK BUDDY” (NO EXTRA-CONTRACTUAL RELIEF)
    In a timber sale contract (where the government contractor cuts down timber and sells it, presumably at a profit), the Civilian Board of Contract Appeals (“CBCA”) concluded that there was “no contractual provision that would relieve appellant of its obligations to pay the damages assessed [by the agency].” Translation: “You’re Out of Luck, Buddy.” Payne Enter. v. Dept of Agriculture, CBCA 2899, Ma...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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  • Gift-Giving Policies: Seven Ethics Checks in Light of OGE’s Updated Standards
    By Jayna Marie Rust If you have not updated your ethics and compliance program since November 18, 2016, dust it off and take a good look at it. November 18 was the day the U.S. Office of Government Ethics (“OGE”) issued a final rule that revised portions of the Standards of Ethical Conduct for Executive Branch Employees found at 5 C.F.R. 2635.[1]  The revisions modified and clarified the standards...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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  • SO YOU THINK YOU GOT A GOVERNMENT CONTRACT? THINK AGAIN!
    Many people think they have a valid government contract, but much of the litigation in the Courts and the Boards of Contract Appeals revolves around whether a contract was valid. To prove the existence of a contract with the government, a contractor must prove four basic elements: (1) mutuality of intent to contract; (2) offer and unequivocal acceptance; (3) consideration; and (4) a government rep...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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  • DISPARATE TREATMENT IN EVALUATION OF OFFERS
    It is a fundamental principle of government procurement that agencies must evaluate proposals on a common basis and in accordance with the terms of the solicitation. Agencies may not engage in disparate (unequal) treatment of offerors in their evaluation. On this subject, the Federal Acquisition Regulation (“FAR”) states that “[c]ontracting officers are responsible for ensuring performance of all ...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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New blog articles detected.

  • The PCI Network – Compliance, Suspension and Debarment
    This episode of The PCI Network focuses on Suspension and Debarment. David Drabkin, Director and Faculty at PCI discusses, how to maintain compliance and avoid suspension and debarment. Mr. Drabkin is currently the Director of Acquisition Policy with Northrop Grumman Corporation. There he works with Congress, Executive Agencies and Industry Associations to evaluate and promulgate acquisition polic...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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  • AFFIDAVITS ARE GENERALLY ACCEPTABLE IN SIZE APPEALS
    The following saga of two appeals demonstrates the importance of sworn affidavits in size protests and size appeals. In the first appeal, CoSTAR Services, Inc., SBA No. SIZ-5745 (2016), the Small Business Administration (“SBA”) Office of Hearings and Appeals (“OHA”) considered two protests that Mark Dunning Industries, Inc. was not small because of affiliation with 24 different entities. The prote...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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New blog articles detected.

  • WHAT IS A PREDECESSOR COMPANY FOR PAST PERFORMANCE PURPOSES?
    The Government Accountability Office (“GAO”) recently ruled that in negotiated procurement, a company cannot attribute to itself the past performance of asserted “predecessor” companies where those companies are separate and distinct companies from the offeror. Choctaw Staffing Sol., B-413434, Oct. 24, 2016. The GAO held that Choctaw’s assertion that two other companies were its predecessors was i...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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New blog articles detected.

  • CLAIMING COSTS OF PURSUING PROTESTS AT THE GOVERNMENT ACCOUNTABILITY OFFICE
    A successful protester at the Government Accountability Office (“GAO”) is entitled to a GAO recommendation that the agency conducting the procurement should pay the costs of filing and pursuing the protest, including reasonable attorneys’ fees and consultant and expert witness fees; and bid and proposal preparation. 31 U.S.C. § 3554(c)(1). The law places a limit or “cap” on the fees that may be pa...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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  • AGENCIES CANNOT PRO-RATE INVOICES UNLESS THE CONTRACT SO STATES
    Have you ever had a situation where a Government Agency advised you that it would reduce or pro-rate your monthly services invoice for days not worked, but your company objected and said “that procedure is not in our contract?” The Agency response is frequently: “so what, we’re doing it anyway, you didn’t work those days.” That’s exactly what happened to Amaratek during last year’s Government shut...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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  • PROTESTER’S FAILURE TO REBUT OR SUBSTANTIVELY COMMENT
    What happens when a protester submits a protest to the Government Accountability Office (“GAO”), the agency responds in its agency report with a detailed response to every assertion, but the protester fails to rebut or substantively address the agency’s arguments in its comments on the agency report? The simple answer is “protest denied.” See, e.g., Oakland Consulting Group, Inc., B-412054.2, Sept...
  • OFFERS REMAIN OPEN EVEN IF “UNSUCCESSFUL”
    Box 12 of Standard Form 33, “Solicitation, Offer and Award,” states that that the contractor agrees that if the agency accepts its offer within 60 calendar days, it will perform at the price offered. (The contractor may specify a different period for acceptance, but normally the 60 day period applies.) Recently, the Court of Federal Claims considered the question of whether the offer was no longer...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Article

New blog articles detected.

  • NEW CONTRACTING OFFICER IS NO REASON TO DELAY DECISION ON CLAIM
    The Contract Disputes Act (“CDA”) requires timely final decisions on claims, except when there is a reasonable basis for a delay. (See discussion below). Despite the statutory requirements, Contracting Officers (“CO”) frequently delay making a final decision on a contract claim. A recent Board case addressed a delay that was primarily due to a change in contracting officers, and concluded that “in...
  • EVERYONE WISHES AGENCIES WOULD COMPLY, BUT…
    On January 5, 2017, the Acting Administrator for Federal Procurement Policy issued a “Myth-Busting” memorandum on the importance of agencies giving good debriefings. As readers know, Federal Acquisition Regulation (“FAR”) 15.505 provides for pre-award debriefings and FAR 15.506 and 16.505 provides for post-award debriefings. These sections of the FAR explain when debriefings are required, who has ...
  • POORLY WRITTEN PROPOSALS—WHAT HAPPENS?
    Well-written proposals in response to government contract solicitations are important for any contractor who wants to obtain federal contracts. There is a flourishing industry on the internet and in the consulting world that provides contractors with assistance in proposal writing. Perhaps more contractors should avail themselves of those services? The problem is that many contractors are unable t...
  • The PCI Network – Character Traits for a Great Government Contracts Professional
    In this episode of The PCI Network, the head of our FUN with the FAR series, Stephen Daoust, discusses the four traits of a great government contracts professional. Throughout his 25-year career, Steve has worked as a Chief Government Contracts Counsel, Director of Contracts, and Chief Compliance Officer for both publicly traded companies like Iridium and Affiliated Computer Services and large acc...
  • REMINDER: ALASKA NATIVE CORPORATIONS ARE EXEMPT FROM CERTAIN SIZE RULES
    Before submitting a size protest, small businesses would be advised to consider that Alaska Native Corporations (“ANCs”) are exempted from a number of the Small Business Administration (“SBA”) size affiliation regulations. A recent protest urged the SBA Office of Hearings and Appeals to find that an ANC had a “substantial unfair competitive advantage,” but OHA dismissed the appeal because only the...
  • The PCI Network – Ethics in Government Contracting
    Understanding the difference between right and wrong isn’t always as easy as you may think. In the Federal Contracting industry, there are important ethical distinctions that can create confusion if you don’t know where to look. Join Fred Geldon, a PCI Director and Faculty, as he explains the importance of ethics in Government Contracting and how to minimize the confusion.
  • GAO SUSTAINS INCREASE IN 2016
    The Government Accountability Office (“GAO”) released its annual bid protest report to the congress for fiscal year 2016 on December 15, 2016 (B-158766).  The GAO actually received nearly 2,800 protests in FY2016, but dismissed or immediately denied nearly 80 percent of them, while actually considering and issuing decisions on only 616 protests, known as “merit decisions. The sustain rate increase...
  • KNOWINGLY MAKING FALSE STATEMENTS TO OBTAIN A CONTRACT-VOID AB INITIO REDUX
    In an earlier column, “Void Ab Initio” (May 3, 2016), this blog explained the basic principle that a contract that is tainted by fraud or wrongdoing is void ab initio, i.e, void from the very beginning. If a contractor knowingly makes a material false statement which the agency relies upon, the contract will be deemed void by the Boards or the courts. Another good example of this principle is in B...
  • WHERE DO ACTION OFFICERS DREAM UP THESE SCHEMES?
    In the Army, much of the staff work is performed by Action Officers (“AO”) whose job it is to “make things happen.” Unfortunately, some AO’s are so dedicated to making something happen that they skirt the procurement laws or regulations. That is what appeared to happen in Augustawestland North America, Inc. v. United States and Airbus Helicopters, Inc., No. 14-877C (Aug. 24, 2016). In the case, th...
  • The PCI Network – Three Keys to a Winning Proposal
    The next episode of The PCI Network is all about putting together a winning proposal. Lou Chiarella, Director and Faculty at PCI, shares three tips to help you craft a winning proposal. Mr. Chiarella is an attorney in the Washington, D.C. area with 20 years of experience specializing in all aspects of Government contracting.  In addition to his current position, his previous experiences include: P...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
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New blog articles detected.

  • DON’T MESS WITH PAGE AND SPACING LIMITATIONS
    Two recent Government Accountability Office (“GAO”) protests give a very clear picture that offerors must ensure that their proposals comply with and do not evade page or spacing limitations specified in a solicitation. Tetra Tech AMT, B-411934, May 17, 2016; DKW Communications, Inc., B-412652, May 2, 2016. In both cases, GAO held its standard position that when an agency establishes a page limit ...
Public Contracting Institute, LLC (PCI)
Public Contracting Institute, LLC (PCI)
Blog Article

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