Federal Contracts: The Year In Review James F. Nagle Oles Morrison Rinker & Baker LLP ...

Federal Contracts:The Year In Review

James F. NagleOles Morrison Rinker & Baker LLP

[email protected]

FAC 2005-56 – March 2, 2012

• Finalize the Women-Owned Small Regulations• Finalize the Proper Use in Management of Cost

Reimbursement Contracts• Adopts as Final the Rule on Requirements for

Acquisition Pursuant to Multiple Award Contracts• Adopts as Final the Rule on Socio-Economic

Program Parity

Federal Contracts: The Year in Review 2

FAC 2005-55

• System for Award Management (SAM)• New Requirements on Brand Name

Specifications• T&M and LH Contracts for Commercial Services• FAPIIS Revisions


FAC 2005-54

• Notice for employees and their rights under Federal Labor Laws

• Steps to identify and prevent personal conflicts of interest

• SDBs to self-represent their status


FAC 2005-53

• Final Rules on Equal Opportunity for Veterans • Suspension and Debarment Requirement Flow

Down to All Subcontracts, Except COTS• Extends the Sunset Date for Protests Against

the Award of Task or Delivery Orders by DOD, NASA and the Coast Guard from May 27, 2011 to September 30, 2016

5Federal Contracts: The Year in Review

FAC 2005-52• Another “green initiative” Federal Agencies are required to

leverage Agency Acquisitions to foster markets for sustainable technologies, materials, products and services

• Agencies must implement high-performance sustainable practices

• Updates Final Closeout Procedures

• Finalize the Prohibition on Contracting with Inverted Domestic Corporations

• Finalize as an Exemption from the Buy American Act for Acquisition of a Commercial Technology that is a Commercial Item

• One Duty of Contract Administration is to Assure that Contractors Have Implemented FAR 52.203-13, Contractor Code of Business Ethics and Conduct


FAC 2005-51

• Implements Women-Owned Small Business Program

• New Subpart 19.15• New clauses

– 52.219-29, Notice of Total Set Aside for EDWOSBs– 52.219-30, Notice of Total Set Aside for WOSBs


FAC 2005-50

• Proper Use and Management of Cost Reimbursement Contracts

• Requirements for Acquisition Pursuant to Multiple Award Contracts

• Additional Requirements for Market Research• Socioeconomic Program Parity


FAC 2005-50, Justification and Approval of Sole Source 8(a)

Contracts• Implement Section 811 of the National Defense

Authorization Act for FY 2010• Prohibits the award of a sole source contract

over $20 million under the 8(a) Program without first obtaining a written J&A

• June 16, 2011 Memorandum from Director, Defense Procurement and Acquisition Policy emphasizes that interim rule only requires five elements, out of 12, to be completed by the contracting officer


FAC 2005-49

• Federal Awardee Performance and Integrity Information System (FAPIIS) Data, Excluding Past Performance Reviews, Will be Available to the Public

• New FAR Clause


Protests• Timeliness – Watterson Construction Company• Proposal properly e-mailed in time• Not received in the C.O.’s e-mail inbox in time

because of an unexplained “mail storm” at the Army Corps’ E-Mail Server

• Proposal not late because it is excused by the “Government Control Exception”

• Also C-T Construction JV – Agency failed to employ adequate procedures to receive a proposal delivered to designated address more than three hours before submission deadline


Conflict of Interest

• Disqualification for OCI must be based on hard evidence, not assumptions – VSE Corporation

• Agency’s review of OCI was inadequate – PCCP Constructors

• Agency’s mitigation efforts of an OCI were inadequate – NETSTAR-1 Government Consulting, Inc.


Unjustified Requirements

• Government must have rational basis for its requirements. Technosource Information Systems

• Government should include estimates that it believes are accurate. Global Computer Enterprises

• Brand Name Solicitation must include salient characteristics. California Industrial Facilities Resources


GAO Bashes the SBA

• SBA erroneously denies Certificate of Competency – Construct Solutions Inc.

• A valid obligation must reflect a bonafide need at the time the obligation is incurred – SBA IDIQ Contract Guaranteed Minimum


Standing

• The entity awarded the contract must be the entity who participated in the procurement. W. B. Construction and Sons, Inc.

• Only service-disabled, veteran-owned small businesses can protest service-disabled, veteran-owned small business procurements – MICCI Imaging


Terminations for Default• Advanced Construction Services, Inc. – no requirement

for the Government to conduct analysis as to whether terminating a contractor for default is more economical that allowing a contractor to continue and access liquidated damages

• Roger W. Holcombe – evidence discovered after the termination for default can be used to justify the termination for default

• Tawazuh Commercial – failure of government to perform an earlier inspection does not shift performance burden to the government


Terminations for Default (continued)

• If you are going to terminate for default, don’t wait too long. Environmental Safety Consultants, Inc.

• A contractor’s anticipatory repudiation may b excused due to the government’s material misrepresentation. Tzell Airtrak Travel Group Corp.


Standing

• HomeStar Services, Inc.• In order to file an appeal, a company must have

standing• A dissolved corporation under Florida law did not

have standing


Estimates

• Government estimates must be reasonably accurate. BECO Construction Co., Inc.


Interference

IN-FIN-ITY Geotech Services v. Department of the Interior

“Where the contract gives a contractor discretion to choose its method of performance, the Government’s rejection of the reasonable method, including a change of method after performance begins, entitles the contractor to an equitable adjustment.”


Claims

• Waiting fourteen years to file a claim is unreasonable. Marut Testing & Inspection Services

• A claim can be a claim even if it’s entitled an REA. Zafer Taahhut Insaat ve Ticaret A. S.


Only Take Direction From the Contracting Officer

• General Construction Services. Chief of the Logistics Division and Facility Manager is not the Contracting Officer


Federal Contracts: The Year In Review James F. Nagle Oles Morrison Rinker & Baker LLP ...

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