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Robert Marcus, the liquidating trustee of the Las Uvas Valley Dairies sued Dean L. Horton and Frances H. Horton in the U.S. Bankruptcy Court of New Mexico. Mr. Marcus sought declaration that the main assets in the bankruptcy estate at issue were held in constructive trust for the estate he represents. Dean and Frances Horton applied for motion for judgment on the pleadings requesting the proceedings be dismissed for failure to state a claim. Mr. Marcus asserted he had a valid claim for recognition of a constructive trust. View the full article

A report released by the Government Accountability Office regarding the testimony before the Subcommittee on Oversight and Investigations and the Women Veterans Task Force, Committee on Veterans’ Affairs before the House of Representatives was released in July 2020. The report evaluated the extent to which VA policies prevent and address sexual harassment of VA employees; how data informs VA concerning sexual harassment of its employees; and the extent to which the VA provides training to its employees to address sexual harassment. It includes a survey conducted by the Merit Systems Protection Board in 2016, which indicated approximately 22 percent of VA employees and 14 percent of federal employees experience some form of sexual harassment in the workplace. View the full article

On September 23, 2019, Senators Chuck Grassley, Tammy Baldwin, Joni Ernst, and Dick Durbin introduced the Whistleblower Programs Improvement Act (WPIA), which protects financial whistleblowers who report internally from retaliation. This law mirrors the Whistleblower Protection Reform Act of 2019, which passed in the House of Representatives last spring. It is aimed at clarifying that the Dodd-Frank Act’s anti-retaliation provision should apply equally to employees who report alleged misconduct directly to the U.S. Securities and Exchange Commission (SEC) and to employees who only report alleged misconduct internally to their employers. View the full article

The coronavirus (COVID-19) outbreak has caused business disruption across the globe and is having a direct impact on government contractors. The federal government and the medical community’s efforts to contain COVID-19 requires a broad-based commitment to social distancing and self-quarantines, which directly impacts contract completion times and employee productivity. Outside of vital projects related to public health and safety or national security, contract specialists should expect that over the next few weeks, many government contracts will be formally or informally suspended for the duration of the COVID-19 quarantine period. Below are some important factors for government contractors to consider in order to protect their rights during this unprecedented time. Force Majeure Government contracts contain Federal Acquisition Regulation (FAR) clauses that provide grounds for entitlement to excusable delays, and are frequently referred to as force majeure clauses. A force majeure event refers to the occurrence of an event which is beyond the reasonable control of a party and which prevents that party from performing its obligations under a contract. It’s fairly certain that a pandemic such as COVID-19 would qualify as force majeure under government contracts. The test for force majeure usually requires the satisfaction of three distinct criteria: 1) The event must be beyond the reasonable control of the affected party; 2) the affected party’s ability to perform its obligations under the contract must have been prevented,impeded or hindered by the event; 3) the affected party must have taken all reasonable steps to avoid or mitigate the event or its;consequences. Applicable Regulations Both Federal Acquisition Regulation FAR 52.249-14 Excusable Delays and FAR 52.212-4 Contract Terms and Conditions – Commercial Items explicitly provide that contractors shall not be considered in default as a result of delayed performance that arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of these causes are (1) acts of God or of the public enemy, (2) acts of the Government in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe weather. At the very least, all government contractors should be entitled to a no-cost time extension to cover the delays resulting from the coronavirus epidemic. While such a time extension will not compensate contractors for damages incurred as a result of the delay, it does offer protection against termination for default or the assessment of liquidated damages. Most contractors will be permitted to delay performance, but they still need to consider the costs that they incur as a result of the contracting officer’s suspension -of-work order. FAR 52.242-14 Suspension of Work states, “If the performance of all or any part of the work is, for an unreasonable period of time, suspended, delayed, or interrupted (1) by an act of the Contracting Officer in the administration of this contract . . . an adjustment shall be made for any increase in the cost of performance of this contract (excluding profit) necessarily caused by the unreasonable suspension, delay, or interruption, and the contract modified in writing accordingly.” There are three key points to address here: 1) First, the suspension must be ordered by the contracting officer. If you receive a suspension order from anyone else (e.g., a Contracting Officer’s Representative (COR), a Contracting Officer’s TechnicalRepresentative (COTR), or a contract specialist), request direction from the contracting officer in writing; 2) Second, the suspension of work must be for an “unreasonable period of time.” What constitutes an“unreasonable period of time” varies based on the nature of the contract and the duration of anyparticular suspension; and 3) Third, the clause limits contractors to damages “necessarily” caused by the unreasonable suspension.Again, the kind of damages that are “necessarily” caused by a suspension will vary based on the natureofa particular contract. Some examples of recoverable costs include: demobilization and remobilizationcosts, costs to maintain site security or an on-site trailer, and overhead costs that are reasonable,allowable and allocable to the delayed contract (see generally FAR Part 31). Final Thoughts With the exception of government contractors who are considered essential for national security reasons under COVID-19 stay-at-home orders, COVID-19 will cause unprecedented business disruption for government contractors. Government contractors need to be proactive in reviewing their contracts and understanding what actions they must take to protect their rights under delayed contracts. When a contractor attempts to assert the existence of an epidemic or pandemic as grounds for excusable delay, to have a chance of succeeding, the contractor must be able to present evidence of the existence of an epidemic, and that the epidemic was the cause of the delay that it experienced. To do this, the contractor must be able to identify when the impacts occurred, how long they lasted, and must explain to the contracting officer how the epidemic directly affected the company’s critical path of performance of the work. Finally, a contractor must also establish that it made reasonable efforts to mitigate the adverse effects of the epidemic on its performance, and explain how those efforts were ineffective. View the full article

WorldWide Language Resources, Inc. (WWLR) of North Carolina asked the Department of the Army to reimburse it for the reasonable costs of filing and pursuing its protest of the agency’s award of a task order to Valiant Government Services, LLC. WWLR’s contention was that the agency failed to take prompt corrective action to resolve meritorious grounds for a protest. Background In 2017, the Army issued a request for task order proposals (RTOP) under the Department of Defense’s Language Interpretation and Translation Enterprise II Indefinite Delivery Indefinite Quantity (IDIQ) contract (DLITE II). The RTOP was to acquire linguist support for the Combined Joint Task Force-Operation Inherent Resolve, the Department of State Office of Special Cooperation-Iraq, and the U.S. Army Central Command. In July 2019, the Army notified WWLR that it had awarded the task order to a different bidder, Valiant. WWLR timely filed a protest challenging the agency’s evaluation of Valiant’s cost and technical proposals, its failure to credit WWLR’s proposals with additional strengths, its discussions with WWLR, and its best-value tradeoff determination. A month later, WWLR filed a supplemental protest challenging the agency’s cost realism evaluation considering a reduction in Valiant’s proposed cost. WWLR later filed comments on a report the agency made in response to WWLR’s protest and submitted a second supplemental protest. It challenged aspects of the Army’s cost-realism evaluation and argued the agency unreasonably and disparately evaluated Valiant’s proposal and the Army’s best-value tradeoff was flawed due to these errors. On September 30, 2019, WWLR filed its third and final supplemental protest. This time it challenged additional elements of the cost-realism evaluation, discussions with offerors, and the “cross walk” process used by the Army to assess the impact of Valiant’s cost elements on its technical approach. On October 4, 2019, the Army announced it would take corrective action. It stated it would reevaluate proposals and make a new source selection decision. The agency reserved the right to reopen discussions and solicit revised proposals. GAO Opinion The GAO noted that the Army did not dispute three of the protest grounds, and that it took corrective action based on the errors that it identified. WWLR’S protests included arguments that the agency failed to conduct an adequate cost-realism evaluation, conducted misleading discussions with the protester, unreasonably and unequally evaluated the awardee’s proposal, and that the agency’s best-value determination was flawed. The Army argued that with the exception of these arguments, WWLR’s protest grounds were not meritorious and readily severable from these grounds. The GAO, however, noted that protests are meritorious “where a reasonable agency inquiry into the protest allegations would have shown facts disclosing the absence of a defensible legal position.” However, the GAO concluded the Army did not take corrective action based on the errors that it identified. The GAO found that the Army did not take prompt corrective action. GAO considers prompt corrective action to be if it is taken before the due date for the agency report responding to the protest. The due date for the agency report was September 18, 2019, but the agency didn’t take corrective action until nearly a month later on October 4, 2019. The agency argued that the remaining protest issues are severable because they are based on different facts and legal theories. The GAO disagreed. It found that the protester’s arguments shared a common set of facts and legal theory, and that these causes of action are not severable from each other. It noted the protests were grounded in errors made by the Army to identify and account for Valiant’s low costs in its evaluation. WWLR asserted that these errors impacted the evaluation of Valiant’s management and staffing plan, and that the agency should have taken Valiant’s low employee-compensation rates into account when it evaluated the strengths in Valiant’s proposal. One example is WWLR’s allegation that the Army conducted a “cross walk” analysis of the “impact of Valiant’s pricing …on its technical approach.” WWLR argued this inadequate evaluation allowed Valiant to “reap the reward of an ‘outstanding’ technical rating and multiple other strengths, without any consideration whether its [Valiant’s] cost approach would allow it to achieve those lofty promises.” The GAO said that when the protester’s challenges did not directly reference the agency’s cost-realism evaluation, it noted that they were intertwined with WWLR’s successful protest grounds. The GAO also noted that the agency conceded WWLR’s challenge to the evaluation of Valiant’s staffing plan was “that clearly meritorious.” It viewed this successful challenge as sharing a “common factual basis with the protester’s other technical evaluation challenges; both the meritorious and non-meritorious issues are intertwined and interrelated with the agency’s flawed evaluation of Valiant’s proposal.” Accordingly, the GAO ruled that the technical evaluation issues were not severable from WWLR’s other claims. Conclusion The GAO sustained WWLR’s protest. The GAO recommended that the Army reimburse WWLR for its reasonable costs of filing and pursuing its protest challenging the agency’s award decision. For more information on filing a protest before the Government Accountability Office, please contact Whitcomb, Selinsky PC at 866-476-4558. Your first consultation with one of our attorneys is always free. View the full article

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Breweries and other businesses are currently under quarantine restrictions related to the outbreak of COVID-19. Breweries in Colorado can sell beer to go but cannot have on-site consumption. Because on-site consumption represents such a significant revenue stream for most breweries, everyone is looking for ways to stay afloat. One brand new possibility for Colorado Breweries is home delivery. On Friday, Governor Jerad Polis issued an executive order temporarily allowing breweries with a wholesale license to deliver beer directly to consumers. That order also permits restaurants to deliver alcohol with food orders. The Colorado Liquor Enforcement Division immediately issued guidelines for home delivery of beer and alcohol under the order. Accordingly, a brewery must: View the full article

On March 4, 2020, Secretary of the Air Force Barbara Barrett announced that the service will restart the base selection process for the U.S. Space Command, tossing out a list of finalists that heavily favored Colorado. View the full article

VA’s Intent to Offer Contracts for VOSBs Leads to Contention Bayaud Enterprises, Inc. and SourceAmerica filed legal action against the U.S. Department of Veterans Affairs (VA) in 2017. Bayaud is a (JWOD) eligible service provider that had contracts to provide medical transportation services, mailroom operations, and switchboard services at VA facilities in Colorado. SourceAmerica, a “central nonprofit agency,” represents 450 JWOD-eligible suppliers by helping them obtain, comply, with, and resolve contract disputes with federal agencies. Bayaud and SourceAmerica filed a Complaint against the VA after it informed Bayaud and SourceAmerica’s client agencies that it would not renew its contracts after they expired. These contracts were instead renewed with veteran-owned businesses under the Veteran’s Benefits, health Care, and Information Technology Act (VBA) View the full article

The effects of the explosion from the Deepwater Horizon in the Gulf of Mexico on April 20, 2010 are still present today. The explosion killed 11 people and leaked 3.19 million barrels of oil into the Gulf of Mexico on the ocean floor 42 miles off the coast of Louisiana. It is likely that much of the oil spilled is still present in the Gulf today. As a result of the explosion and spill, a settlement agreement was made between BP and class action representatives that claimed damages from the disaster. The agreement included provisions for business economic-loss (BEL) claims for those companies that incurred damages resulting from the explosion and spill. BP challenged (BEL) awards made to Wal-Mart stores, East, L.P. Its challenge was based on Walmart changing its accounting system one month after the explosion on the Deepwater Horizon. The accounting change affected the amount of Walmart’s BEL claims, which are based upon the difference between expenses before and after the disaster. BP contended that the change resulted in “artificially inflated award amounts.” In June 2015, Walmart submitted BEL claims for each of its nine stores located along the Gulf Coast. BP questioned the validity of five of the claims. The United States Court of Appeals consolidated these claims in an appeal filed by BP. To facilitate reconciliation of the differences between the accounting systems, Walmart submitted supplemental documentation to the Claims Administrator for the claims in April 2017. After reviewing Walmart’s claims with PWC accountants, the Claims Administrator issued awards to Walmart in 2018 of over $17.4 million. BP Appeal BP appealed the Court Supervised Settlement Program (“CSSP”) awards. It argued the change in Walmart’s accounting system “made its profit and loss data for the pre-May 2010 period inconsistent with the subsequent period.” BP argued to the Appeal Panels that Walmart artificially inflated its awards by changing its accounting system. The change in accounting systems caused the pre-disaster period to appear more profitable compared to the later period following the Deepwater Horizon disaster. U.S. Court of Appeals Decision The U.S. Court of Appeals was tasked with determining whether it should reverse the district court’s decision not to review a final award under the CSSP settlement program. The Court applied the abuse-of-discretion standard to the district court’s refusal to review the final award. In applying the standard, the Appeals Court considered whether the final award “actually contradicted or misapplied the Settlement Agreement or had the clear potential to contradict or misapply the Settlement agreement.” The Appeals Court noted the district court would not abuse its discretion if it denied a request for review that “involves no pressing question of how the Settlement Agreement should be interpreted and implemented,” but instead raised questions as to whether the discretionary administrative decision is correct or not. Misapplication of Settlement Agreement BP argued that the case BP Expl. & Prod., Inc. v. Claimant ID 100094497, 910 F.3d 797 (5th Cir. 2018) demonstrated that a claimant that changes its accounting system during the relevant time period, as Walmart did, must provide information on how each expense was categorized before and after the change. Walmart responded by providing supplemental information to the Claims Administrator, which the court concluded was necessary for the change in its accounting system to be factored into the calculations. The court also noted that the Claim Administrator’s calculation notes indicate the accounting systems were reconciled. The U.S. Court of Appeals held BP did not show that the Claims Administrator or any Appeal Panel misapplied the Settlement Agreement, nor was there potential for any contradiction or misapplication. BP’s Request for Walmart Expenses BP argued that Walmart needed to provide additional information describing how each expense in Walmart’s pre-May 2010 accounting systems was classified in its post-May 2010 system. The U.S. Court of Appeals held it was “unconvinced by BP’S pleas for more information.” It stated it was presiding over an exercise of judgment by the district court, Appeal Panels and Claims Administrator whether there was enough evidence under the Settlement Agreement to make an award. The Court of Appeals found that BP’s challenge to the Appeal Panels’ decisions raised issues regarding the “correctness of a discretionary administrative decision in the facts of a single claimant’s case.” The U.S. Court of Appeals concluded that the district court’s denial of a request for discretionary review was not an abuse of discretion. Conclusion The U.S. Court of Appeals held that the district court’s denial of a request for discretionary review was not an abuse of discretion. This case demonstrates the lengthy amount of time it takes for legal issues to be resolved following a disaster. The events of the Deepwater Horizon disaster occurred nearly ten years ago, and the question of Walmart’s economic loss claims were not resolved until January 14, 2020. Environmental restoration will take even longer. If your company has sustained a casualty loss resulting from a disaster, or if you would like more information on this case, please contact Whitcomb Selinsky PC at 303-534-1958. View the full article

Contract Management friends in Government and Industry, If you had the opportunity to join a Community of Practice “CoP” or working group (basically a group of people who share a concern or a passion for contracting, and learn how to do it better as they interact regularly), what type of CoP or working group would you join? What topics or areas would you be interested in learning more about and sharing your knowledge of with your peers? Would it be hot topics or fundamentals, or both? What keeps you up at night? Essentially what would you want to get together to discuss? There’s no wrong answer. Let your voice be heard… comment below.

How hard is it to get into government contracting ? Let's say I somehow manage to get into an internship and then get a GS-05 position how hard is it to move up as a non-vet if I'm willing to relocate anywhere? How competitive are the jobs?

Sometimes multiple contractors earn spots on Indefinite Delivery, Indefinite Quantity (IDIQ) contracts, which allow for an undetermined quantity of supplies or services during a fixed period of time, as outlined in FAR. But what happens when winning contractors have reservations about the competitors who earn contracts alongside them? DaeKee Global Co. found itself in such a situation, and reacted by protesting the terms of the solicitation. Read on to learn how GAO and the COFC responded to such protests, and what this means for contractors concerned about their bedfellows in IDIQ contracts. To read the full article, visit Petrillo & Powell's Patterns of Procurement.