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  1. Today
  2. I would like to know once the assigned Biomedical Engineer initiates Clauses to a Contract who has the authority to make changes and remove such clauses after they were negotiated with the vendor.
  3. Corduroy Frog, yes that happens often. And it’s not just the incumbent but lots of other offerors. Companies make pretty solid guesses on who their competition is. Then they ask questions that bring out weaknesses in others. These can include questions on needed corporate experience, qualifications of key personnel, corporate certifications, methodologies and tools, etc. The best companies hope for is the agency amending the RFP to tighten things up. The minimum is it raises doubts for the evaluators and selection officials.
  4. I don’t completely agree with the decision but the Court does make compelling arguments. I think it will be difficult to overturn. The decision could be stated better but I think the crux is establishing CAPS at 26% across the board is arbitrary. CMS didn’t show how it applies uniformly in all instances. As an example if an offeror is at 27% and otherwise the most favorable, how can they be excluded, especially in some area where CMS data may not show harm? That supports the notion that it may violate CICA. Also, If CMS’s position is weakened by not being clear in the solicitation how CAPS applies in section M. It seeks like the government may not have argued the right points. A better approach is establishing a factor in section M on achieving that objective and allowing a trade off process to occur using all factors and the Policy’s relative importance disclosed. I don’t see the Court having an issue with that.
  5. My original idea for to look for a conflict between the MAC Statute and CICA that the Department of Justice could use in any appeal to the U. S. Supreme Court. That was dashed by the following agreement--I guess. No back-up plan. I have a date with my dentist who is going to maul one of my teeth so I'm short of time. You have to read the Federal Circuit's opinion. I think it may be saying that the CAPS policy's relative importance was not disclosed in the solicitation. I think the Circuit is also concerned with the exception to full and open used and if one can be used. Read pages 19 and 20. The Claims Court is going to have a good time with this. Rarely does a plaintiff's argument force me to see its attorney. This one did. It's off to the dentist now and the cruel and unusual treatment I anticipate.
  6. By David Warner Last month, the U.S. Supreme Court resolved a split between the federal circuit courts of appeal concerning the statute of limitations for False Claims Act (FCA) suits in which the government does not intervene. Unfortunately for contractors, the Court held that a ten-year (as opposed to six-year) limitations period can apply. As a result, contractors face the expanded prospect of defending FCA matters that are already a decade old at the time of filing. “Good luck” locating your documents and refreshing witness recollections!! The Court’s May 13, 2019 decision came in the matter of Cochise Consultancy Inc. v. U.S. ex rel. Hunt. The decision turned on the interpretation of the FCA’s statute of limitations provisions, which require that a relator file their civil lawsuit within six (6) years from when the violation occurred but also provide for an alternative three-year limitations period running from the time the government knew, or should have known of the violation. In no event can suit be filed more than ten (10) years after the alleged violation. Prior to Cochise, there was a split among the 4th, 9th, 10th and 11th circuits as to the interpretation of the 3-year “knew or should have known” standard and its applicability to matters in which the government does not intervene in the case. The Cochise suit was initially filed in 2013 by relator, Billy Joe Hunt. Suffice to say that Billy Joe is not what one would describe as a stereotypical relator. He was purportedly aware of the alleged fraudulent scheme in Cochise since 2006 but never reported it until 2010. Notably, he first reported the Cochise fraud to the FBI while being interviewed by the Bureau regarding his involvement in a different, illicit federal contracting scheme. According to the lower court’s description, Billy Joe served ten months in federal detention due to that otherwise unrelated kickback scheme and did not file his FCA lawsuit until “after his release from prison”. As one does. Given the timing, the question for the Supreme Court in Cochise was whether a relator can bring a claim in 2013 more than six years after an alleged violation in 2006 but still within three years of the government learning of that violation in 2010 despite the fact the government does not intervene in the suit. Unfortunately for the contractor community, the Court agreed with Billy Joe, holding that the three years “knew or should have known” statute of limitations provision applies regardless of whether or not the government intervenes, and his FCA suit was therefore timely. So our Billy Joe has smoothly transitioned from federal inmate to protector of the public treasury via qui tam suit in which his relator status might pay him twenty-five to thirty percent (25-30%) of the several million dollars at issue in Cochise if he’s ultimately successful. Who said, “There are no second acts in American lives”?? [Ed., F. Scott Fitzgerald.]. Oh stuff it, Editor! And “Go get’em, Billy Joe!!” About the Author: David Warner Partner David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices. View the full article
  7. Thanks Bob. This is really interesting. So I suppose CMS is left with only a couple approaches. Do an analysis and necessary justifications to exclude offerors prior to issuing a solicitation or make market share and associated impact to CMS’s needs part of the evaluation/selection process.
  8. Last night, I read a Crowell & Moring LLP entry entitled: Federal Circuit Clarifies Meaning of “Full and Open,” Limits on Government Ability to Manipulate the Competitive Marketplace, and Contours of FAR Part 6. Because of the title, I searched and found the 3 decision of the Court of Appeals for the Federal Circuit, the Court of Federal Claims, and GAO. I copied a highlight from each decision and placed it in a quote box. I thought this might be of some value to you. In the Court of Appeals for the Federal Circuit. National Government Services, Inc. (“NGS”) v. United States (Reversed and Remanded to the Court of Federal Claims) (5/2/19) (p, 24) National Government Services, Inc. at Court Of Federal Claims (pps. 27, 29, 35) Denied (5/8/18) National Government Services, Inc. at GAO Denied (1/29/18)
  9. It’s no secret that the VA has tried to find ways around the statutorily-mandated rule of two–i.e. VA must set aside procurements for VOSBS if it has a reasonable expectation that it will receive fair and reasonable offers from two or more veteran-owned small businesses. Although the U.S. Supreme Court has already told VA, in Kingdomware, that it cannot circumvent the rule of two, VA apparently is still seeking ways to avoid it. Recently, VA tried to go around the rule of two by using GPO as its buying agent. This tactic was protested and GAO confirmed that the rule of two still applies. In Veterans4You, Inc., B-417340 et al. (June 3, 2019), VA wanted to buy suicide prevention gun locks for distribution through its Veterans Crisis Line. The gun locks consisted of a cable and keyed padlock that can be used on essentially any handgun, rifle, or shotgun. In addition to the device itself, the solicitation required that: 1) the padlock to be coated in vinyl and printed with the Veterans Crisis logo and contact information; 2) a wrap-around sticker be attached to the cable, also printed with the Veterans Crisis logo and contact information; and that 3) the package include a wallet card printed with the Veterans Crisis logo and contact information and information about identifying suicide risks. VA designated the procurements as a “printing requirement” instead of a acquisition of suicide prevention gun locks; so it sent a requisition to GPO requesting that it procure the gun locks on VA’s behalf. GPO issued the solicitation under 44 U.S.C. § 501-502, which provides GPO with unique authority to provide and procure printing services for the Government. Veterans4You protested the terms of the solicitation, arguing that VA was not giving priority to veteran-owned small businesses–contrary to the Rule of Two statutory mandate in 38 U.S.C. § 8127(d). VA and GPO countered that the Rule of Two did not apply because the procurement was being fulfilled under GPO’s independent acquisition authority–and GPO did not have to apply the Rule of Two. GAO agreed with Veterans4You. After discussing the rule of two generally, GAO explained that 38 U.S.C. § 8128(a) requires VA to observe the Rule of Two even where other statutes apply. It outlined a recent case from the Federal Circuit (which we’ve blogged on before) where the Court held that “the terms of 38 U.S.C. § 8128(a) required that the VA procure all goods and services from SDVOSBs or VOSBs where the VA’s research shows that the rule of two is satisfied, even where the procurement in question would otherwise be governed by the mandatory requirements of [another statute].” GAO then summarized its holding this way: As the discussion above demonstrates, the requirement for VA to determine whether there are at least two eligible concerns capable of meeting its requirements at a fair and reasonable price consistently has been interpreted by both our Office and the courts as both mandatory, and of universal application. We reach that same conclusion here with respect to the applicability of the [Rule of Two statute] to all VA printing acquisitions, especially in view of the express provisions of 38 U.S.C. § 8128(a), which states in no uncertain terms that: “In procuring goods and services pursuant to . . . any other provision of law, the Secretary shall give priority to a small business concern owned and controlled by veterans.” Simply stated, any time the VA is acquiring goods or services–without limitation–it is required to determine whether there are at least two SDVOSBs or VOSBs capable of meeting the agency’s requirements at a fair and reasonable price. As noted by GAO, this latest decision reaffirms several GAO and court decisions recognizing the rule of two’s extremely broad reach. VA simply can’t escape the rule–even if it desperately wants to. And because GAO and courts are hyper-sensitive to VA’s rule of two, any deviation from the rule in a VA procurement likely provides fertile grounds for a pre-bid protest. View the full article
  10. If the estimate was reasonable and the de-ob mod is to revise the quantity accordingly, then you are not changing the terms or conditions of the order and bilateral concurrence isn’t required. There are multiple “authorities” you could cite but I would cite FAR 1.602-1. That was a recent topic of discussion on Wifcon not long ago. If the estimate wasn’t reasonable, you could do a partial termination for the government’s convenience. Your authority would be 52.212-4(l) or one of the 52.249-x clauses. “Reasonable” depends on what you’re buying and how volatile that market normally is.
  11. Yesterday
  12. Kelly, your situation is not clear. You say you have a requirements contract and that you issue a task order to obtain services for a complete year. You say the SOW states that the quantity of services is an estimate. By this do you mean the SOW for the contract or the SOW for the task order? If it is for the TO, what is the contractor's performance obligation under the TO and what is the basis for payment? Also, I have heard of de-obligating funds, but never de-obligating services. If what you want to do is the latter, can you explain how that works?
  13. If that's what you did, that's what you did.
  14. Look for the Changes or Termination clauses. Are you a contracting officer or a contract specialist?
  15. I don't see a problem because we are talking about expressly unallowable costs that cannot be charged to the government. A credit or non-credit to an expressly unallowable cost will have no impact on the costs that are billed to the government.
  16. I have a firm fixed price contract that is a requirements contract. Each year we issue a task order for services. The SOW states estimated quantities, and I need to de-obligate some of the services because of the unusual weather experienced in the midwest. The contractor is refusing to sign the modification, what authority do I have to issue a unilateral de-obligation modification?
  17. I am happy to announce that Gregory Weber has joined the great team of attorney-authors here at SmallGovCon. Greg is an associate attorney with Koprince Law LLC, where his practice focuses on federal government contracts law. Before joining the team, Greg worked on federal and state regulatory compliance as a corporate officer for the nation’s largest home health and hospice company. Check out Greg’s full biography to learn more about our newest author, and don’t miss his first SmallGovCon post on size protests of task orders. View the full article
  18. So, your company has made it past the first big hurdle and got on a GSA schedule. You see a small business task order pop up that you believe your company would be perfect for, but another company gets the award. Based on information you have heard or read, you believe something fishy may be going on and the awarded company may be a big fish that found its way into the small pond. But can you timely protest the task order award? Just last month, OHA reiterated the general rule that size protests on task orders are not timely in Tic Security, LLC, SBA No. SIZ-6007, 2019 (May 31, 2019). This matter arises from a task order issued in response to a US Navy Request for Quotations issue October 2, 2018. The contracting officer set aside a task order under GSA schedule 84 exclusively for small businesses with a size standard of $11 million in average annual receipts. It is important to note that the contracting officer did not request recertifications of size with this task order. SigNet was awarded the task order on February 25, 2019. After the award of the task order, TIC Security filed a size protest alleging that that task order awardee, SigNet, was acquired by a “nearly billion-dollar entity” in July 2017, consequently no longer meeting the size standard at the time of its quotation for the task order. On March 26, 2019, the SBA Area Office dismissed the size protest as untimely. In the Area office’s decision, they reiterated that the US Navy request for quotations sought a task order on a long-term GSA Schedule contract. In this circumstance, a protestor may only protest size at three instances: 1) Upon long-term contract award; 2) When an option is exercised; and 3) When the contracting officer requests a size rectification for an individual order. 13 C.F.R. § 121.1004. The task order at issue did not fall into one of those three categories. TIC Security then appealed this decision to OHA. OHA affirmed the area office. The contracting officer for this task order did not request a recertification of size for the task order, no contract option was exercised, and an award of a task order is not a long-term contract award. Therefore, the size protest was untimely and properly dismissed. OHA went on to address the size evidence presented by TIC Security. Regardless of how strong TIC Security’s evidence of SigNet’s size may have been, OHA would not consider the evidence of it because “the underlying protest was untimely.” If the protest doesn’t meet one of the three occasions to file a size protest on a long-term contract, none of your other arguments or evidence matter, and your size protest will be dismissed. Size protest for task orders have come before OHA repeatedly and the result is generally same, the protests are untimely. This case is a good reminder that if you believe a rival company may be violating size limits, the options for protesting size for a task order are limited to three specific instances. A protest outside outside of these three instances might be dismissed. View the full article
  19. In my position I do: 10% #1 90% #2 I should be doing more file management...but the squeaky wheel gets the grease in my fast-moving department.
  20. Last week
  21. Pepe, roger that. Do you know of any precedent of accepting claims after the 60 window? The word "may" IAW FAR 33.104 (h)(2) (also 4 CFR 21.8 (f)(1)) seems like there is some flexibility.
  22. PepeTheFrog does not know whether the GAO or the agency will recommend or agree to pay the indirect costs of the protest. There is an opportunity for the agency to accept, deny, or negotiate the costs that the successful protestor submits. There is also an "appeals" process back to the GAO if you can't come to an agreement. See below. It seems like the regulations are focused on the direct (hourly) costs of attorneys, consultants, and expert witnesses. PepeTheFrog does not know if there is any precedent on such indirect costs, but you could create or add to such precedent by "giving it the old Harvard try." https://www.gao.gov/legal/bid-protests/reference-materials From 4 CFR 21.8 (Title 4 of the Code of Federal Regulations, Section 21.8): "(d) If GAO determines that a solicitation, proposed award, or award does not comply with statute or regulation, it may recommend that the agency pay the protester the costs of: (1) Filing and pursuing the protest, including attorneys’ fees and consultant and expert witness fees; and (2) Bid and proposal preparation. (e) Recommendation for reimbursement of costs. If the agency decides to take corrective action in response to a protest, GAO may recommend that the agency pay the protester the reasonable costs of filing and pursuing the protest, including attorneys’ fees and consultant and expert witness fees. The protester shall file any request that GAO recommend that costs be paid not later than 15 days after the date on which the protester learned (or should have learned, if that is earlier) that GAO had closed the protest based on the agency’s decision to take corrective action. The agency shall file a response within 15 days after the request is filed. The protester shall file comments on the agency response within 10 days of receipt of the response. GAO shall dismiss the request unless the protester files comments within the 10-day period, except where GAO has granted an extension or established a shorter period. (f) Recommendation on the amount of costs. (1) If GAO recommends that the agency pay the protester the costs of filing and pursuing the protest and/or of bid or proposal preparation, the protester and the agency shall attempt to reach agreement on the amount of costs. The protester shall file its claim for costs, detailing and certifying the time expended and costs incurred, with the agency within 60 days after receipt of GAO’s recommendation that the agency pay the protester its costs. Failure to file the claim within that time may result in forfeiture of the protester’s right to recover its costs. (2) The agency shall issue a decision on the claim for costs as soon as practicable after the claim is filed. (3) If the protester and the agency cannot reach agreement regarding the amount of costs within a reasonable time, the protester may file a request that GAO recommend the amount of costs to be paid, but such request shall be filed within 10 days of when the agency advises the protester that the agency will not participate in further discussions regarding the amount of costs. (4) Within 15 days after receipt of the request that GAO recommend the amount of costs to be paid, the agency shall file a response. The protester shall file comments on the agency response within 10 days of receipt of the response. GAO shall dismiss the request unless the protester files comments within the 10-day period, except where GAO has granted an extension or established a shorter period. (5) In accordance with 31 U.S.C. 3554(c), GAO may recommend the amount of costs the agency should pay. In such cases, GAO may also recommend that the agency pay the protester the costs of pursuing the claim for costs before GAO. (6) Within 60 days after GAO recommends the amount of costs the agency should pay the protester, the agency shall file a notification of the action the agency took in response to the recommendation."
  23. The time contractor personnel spend with the outside attorney should be charged to the protest account. Because it relates to the protest, the cost of the time spent by contractor personnel working on the protest is unallowable. Thus, it has to be segregated from allowable G&A. It is recoverable as protest costs, not as G&A if the GAO recommends reimbursement of the cost of filing and pursuing the protest. H2H, when you are asking about timing differences, are you talking about the situation where protest costs may be incurred in one accounting period and recovered in another? If not, what did you have in mind?
  24. Retread, thank you for your input. Why would you not burden the outside attorney fees? Isn't there G&A costs associated with using an outside attorney such as time with the CEO, AR, AP, etc? Hypothetically, if the contractor made a time card with a task code for working on the project and documented their hours on it, would that be the way to get back the G&A expenses? (Assuming you bill the wrap rate for the employee.)
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