joel hoffman

Eleven, What does your job description say your duties are? If your job description includes being a KO, then you are performing your assigned duties. Maybe everyone else is working below their pay grade as described in their job description.

Carl, I didn't say that. Besides, the past performance ratings are only used for certain time periods, which vary according to the contract type (service or supply, construction, etc.). Carl, Seeker's second of four (Seeker asked FOUR, not "two" - questions) asked "If a contractor would come out better by breaching the contract and then making the Government whole by paying damages, would it be wrong for the contractor to deliberately walk away from the contract? " I suggested that it would be much better not to "walk away from the contract" but to help find someone to take it over or to subcontract it in order to minimize the impacts to both Seeker and the Government. Seeker rejected that scenario, as they know what they are going to do and know their business better than us (obviously). If Seeker "walks away from the contract", we would have to figure out how to get the service performed or the product that Seeker contracted to provide. We would have to terminate for default, reprocure, then go back to Seeker for reimbursement of delay costs, our labor costs, the excess costs to finish the contract, if any, etc. It is sometimes very difficult and usually time consuming to reimburse the various cost accounts or appropriations that the various government impact costs are charged to. It is technically "wrong" to breach a contract. I'm not inclined to rate a firm neutrally or favorably, if they "walk away from a contract", leaving us to incur the above outlined efforts, delays, impact time/costs. The firm apparently created its own problem, then decides not to help minimize the time and cost impacts to the buyer. The performance rating is used by contracting offices looking for firms willing and hopefully capable of performing related work during the next several years. Carl, Seeker's fourth question asked "Should the Government recognize deliberate breach to be a reasonable course of conduct in some circumstances?" While I agree that there can be factors that have to be weighed in order to decide whether or not to breach one's contract responsibilities, the firm can certainly help everyone by cooperating in getting the job finished and we might well reflect that in the performance rating accompanying comments. I've been involved in several TFD's, the reprocurements and the settlements. The defaulting firm and/or bonding company has either made things easier or tougher on both us and them.

Of course, I am somewhat thick. However, if Seeker's firm "walked away" from one of my contracts, we would have to reprocure and endure the delay of reprocuring whatever Seeker had promised to perform or provide. Then we'd have to go to the extra trouble, expense and effort of having to obtain reimbursement and to apply those funds to the proper accounts to cover my added costs (difficult), my customer's delay costs (very difficult) and the additional procurement costs, (less difficult but labor intensive). Why would I want to rate Seeker's performance as though I'd be interested in hiring him again? Why would I want to rate the firm's performance in a manner that could be used as a recommendation to other government contracting officials to hire Seeker's firm?

nevermind

___________________ Obviously you know your business and the customer better than I or we do . You asked us "What if completing the contract would cause the contractor to take a loss so great as to require it to fire workers, but the excess cost of reprocurement and other damages to the Government would be slight and significantly less than the cost of finishing the job?" You are correct in saying that you weren't clear. I don't understand what you mean by "...but the excess cost of reprocurement and other damages to the Government would be slight and significantly less than the cost of finishing the job?" Do you mean that you won't be responsible for the excess cost, if any over what you'd get paid, for somebody else to finish the job? I believe that assumption would probably be incorrect. Or, perhaps it would be cheaper for someone else to finish the job? That assumption invites a question from me. If it wont cost much if anything, why not get someone else to finish the job for you, then and avoid the termination or other consequences? You have to decide what is most important to you. If the latter assumption above is correct, perhaps it wouldn't be wrong to just walk and let them bill you, if someone can finish the job for minimal extra cost. But it would be darned dumb in my opinion, when you could probably mitigate your monetary and reputation loss and still save your employees' jobs by finding somebody to finish the job cheaper than you could and working out a solution with the government. But - you know what you want to do and you're doing it. Glad you learned something and good luck to you!

Refer to FAR 49.4 when the Contractor anticipates breaching the contract ("walking away"). The Government has the right to terminate the contract for default (see 49.402-1) in such a situation and probably will if the Contractor just decides to walk away, leaving the Government to find a way to get the contract completed. However, the Contracting Officer may also consider other courses of action in lieu of terminating for default, which is what I was discussing as a possible alternative. See 49.402-4 for example procedures in lieu of TFD. If the Contractor knows it is going to be responsible for excess costs to reprocure and complete the work, it might be in its best interests to find someone or to help find someone to finish the job, whether as a replacement or as a subcontractor. That speeds up the process, which may very well reduce the re-procurement and/or impact costs. I'd advise a contractor to discuss its predicament and find better alternative than just walking off, facing a TFD, leaving the government to re-procure, then ZAP the guy.

In my opinion, in contrast to some others, I think it would be beneficial to discuss your problem with the KO and offer to help mitigate the effort, time and cost to arrange for someone else to complete the contract, as opposed to just walking off and saying goodbye, get somebody else to do this and send me the bill. Contrary to some peoples's opinion, there are actually some competent and reasonable contracting officers and support staff out there. Win-win or least mitigating the hassle and impacts for both parties surely beats lose-lose.

How about another alternative similar to one that we used in Saudi Arabia in the early 1980's. Contractor was failing and losing money on a large construction contract. It was more convenient for us and better for the contractor to not default and for us to have to start over on the reprocurement. So, we allowed the contractor to subcontract completion of the project to another firm. The firm came in, took over the project and finished it, although the failing firm was still offcially the prime. The prime bore the cost to complete and the government got a very good job. In addition, the prime paid liquidated damages up front based upon a new (later)completion date as consideration for subbing out the entire performance. The contractor would have had to pay the government all these costs and much more had it defaulted and it would have taken much longer to reprocure. This was an Indonesian prime who got in over their head on what would now be about a $500 million contract. It was a win win for both parties. Yes, the contractor's performance evaluation did reflect the situation but it saved a lot of excess reprocurement and delay time and costs.

Do you agree with this AAP advice? Assume that it is being conducted pursuant to FAR 14.5 "Two-Step Sealed Bidding" Procedures. QUESTION: "What is the process for going from a competitive requirement (three vendors) to a sole source requirement (one vendor remaining)? Posted to Contracting on 10/23/2009 12:00:00 AM The Scenario? We are in the middle of a 2-Step Acquisition process. Step I, vendors provided bid samples for evaluation and testing. If vendors pass Step I they will proceed to Step II where an IFB is issued only to those vendors who particiapted and passed Step I. Only two vendors are in Step I, one of the vendors failed the testing and therefore will not proceed to Step II. The Question? Based upon the above information, do we continue with the process and issue the IFB to the remaining vendor? Or, do switch from this competitive requirement and award as a sole source to the remaining vendor?" ANSWER: "For clarification purposes -- your Subject line mentions three vendors while the Background information states that only two vendors participated in Step 1 of the bidding process. It doesn't really matter for purposes of this response, but I wanted to point that out in case there was some other issue you meant to pass along. Now to the main issue: The competitive process depends not only on actual competition (i.e., two or more offerors actually offering on a requirement), but also on apparent competition. For example, FAR 15.403-1©(1)(ii) states that there is adequate price competition if there ...was a reasonable expectation, based on market research or other assessment, that two or more responsible offerors, competing independently, would submit priced offers in response to the solicitation's expressed requirement, even though only one offer is received from a responsible offeror... Although that is from FAR Part 15 rather than Part 14, it is still relevant to this discussion. In addition, the FAR 6.301 policy on full and open competition revolves around whether the contracting officer provides for full and open competition. In your situation, there is no indication that full and open competition was not provided for. Thus, it remains a competitive requirement. As long as your procurement met the conditions required for use of two-step sealed bidding at FAR 14.502 (also see FAR 6.102(), you should be able to issue the IFB to the remaining vendor without treating it as a sole source procurement." Do you think that the advice to continue with an "IFB" conforms to FAR 14.5 or to common sense? See 14.503 (f) (1) "The contracting officer may proceed directly with step two if there are sufficient acceptable proposals to ensure adequate price competition under step two, and if further time, effort and delay to make additional proposals acceptable and thereby increase competition would not be in the Government?s interest. If this is not the case, the contracting officer shall request bidders whose proposals may be made acceptable to submit additional clarifying or supplementing information. The contracting office shall identify the nature of the deficiencies in the proposal or the nature of the additional information required. The contracting officer may also arrange discussions for this purpose. No proposal shall be discussed with any offeror other than the submitter." See also 14.503 (i) "If it is necessary to discontinue two-step sealed bidding, the contracting officer shall include a statement of the facts and circumstances in the contract file. Each offeror shall be notified in writing. When step one results in no acceptable technical proposal or only one acceptable technical proposal, the acquisition may be continued by negotiation. " I don't necessarily disagree with the advice to continue the acquisition but why would one continue with an "IFB", considering the above procedures called out in 14.503?

I agree with Vern. By the way, many public entities (states and cities) routinely disclose the names of competing firms after award and sometimes during competitions for design contracts, construction and design-build projects. Why is the Federal Government so different that this must remain a secret after award? What public interest is served by not revealing who competed? Back in the days of IFB's, everything was open, including bid prices. I have been involved in several service contract source selections during the past 20 years or so, but many or most all of those would probably have been bid "back in the day" before competitive negotiations were allowed on a relatively routine basis. So competitors would have routinely been named for service contract competition, too. The conditions for the requirement to conduct sealed bidding in paragraph 6.401 (a) don't mention the necessity nor the lack thereof to keep the names of the competitors secret after award. So, you cant just say that you are going to use competitive negotiations to avoid naming the competitors afterwards, if the conditions in 6.401 (a) are otherwise applicable. I'm sure there are ways to be able to do that on truly secret competitions. In other words, the reasons in FAR for using RFP in lieu of IFB don't include keeping the competitors' identities confidential. Keeping names and stuff like line item prices confidential after the competition is over seems to have morphed from the originally stated reasons for doing RFP's instead of IFB's.

FAR 15 section on debriefings prohibits point by point comparisons between the offeror and successful proposal. Would full ratings or scores constitute such? Plus the rating or scoring matrix is pre-decisional material in my opinion.

AlAL, FAR 24.202 prohibits release of proposals. I don't think it mentions release of the identity of offerors. I am on road today, but if you read the FAR procurement integrity regulations, I think that you will find that protection of offeror identity and number of firms involved applies during the source selection process, not afterward. I can't read FAR on my Blackberry but I have previously researched FAR for this and couldn't find a prohibition on releasing the number of firms or their identities after the SS was over. Now, I don't know when the source selection process is officially "over". I would think that after the debriefing and after the protest period is over should qualify as the "end" of the source selection.

I didn't totally understand your initial description of the ordering limits. Is the overall limit on the "new ID/IQ contract" within the individual per task order ordering limit on the original contract (amounting to a "contract" within a task order)?

Smells fishy to me.

Have been away at the hunting camp since last week. Here to Help, unless things have changed over the past couple of years, contractors weren't guaranteed every dollar of G&A originally allocated to a contract when the contract was terminated for convenience (or for delete changes). Nash and Cibinic, at least through the 3rd edition of "Administration of Government Contracts" explain that, for deductive changes, the government is due a credit for overhead and profit on delete changes. Thus, they weren't "guaranteed" all the costs that they originally contemplated or allocated to a job when they priced it. Beyond the case law, my logic argument, at least for construction TFC's, has been that many or most contractors have backlogs that they can redirect their resources to when there is a TFC. They don't automatically "underabsorb" G&A when there is a TFC or partial TFC. If that were true, then when we add work by change order to a contract, why should we allow any additional G&A? Using your logic, the contractor has supposedly already allocated its expected overhead to the contract. I agree that there may well be differences between service contracts and construction. Its interesting how Here to Help jumped on me when I said that contractors might adjust G&A rates to reflect differences between the past accounting period and the current business expectations. I also said that the DCAA may look to see that the rates are reflective of current business load. In his/her last post above, Here has said the same thing. Hmmm, it seems that the concept of "unabsorbed overhead" that was created to handle government caused suspension of work delays of indeterminate periods which prevented a contractor from seeking or obtaining replacement work has somehow morphed into an entitlement for any situation where the expected amount of work doesn't materialize. Termination for Convenience was not set up to "make the contractor whole" had it performed the contract. I'm not at home to read about it in N&C, but I believe TFC was developed to avoid breach of contract claims when the government had to terminate contracts due to changes in requirements. The TFC is intended to allow the contractor to recoup its costs invested in the performed and unperformed work, (unless it was in a loss position to begin with). If G&A is typically charged to a contract in the accounting system as a percentage of costs, then we should be consistent in a TFC settlement, an increase or deductive change. The US Court of Claims didn't state in Victory or in Foley, that the VEQ clause was set up to "make the contractor whole", either.

Let me simplify my point. I need a large area to be excavated. I know the overall quantities but don't know how much rock will be encountered. I negotiate a contract with a contractor. We agree to use unit prices for common and for rock excavation. I establish estimated quantities based upon local experience. In negotiating the unit rates, we agree on productivity rates and all the associated costs,such as rock drill rental, bringing in a dynamiter, site supervision, a job trailer, etc. To all these direct costs the contractor adds 10% for home office overhead or G&A and adds a profit percentage. The contractor charges every job 10% for G&A, based upon last year's accounting period. In the end, the unit price for rock excavation is ten times the unit price for common excavation. Then, the contractor performs the work but only 10% of the estimated rock excavation was encountered. We have the FAR VEQ clause in the contract. I agree to allow an adjustment to recover 85% of the contractor's one time and fixed costs associated with the rock excavation effort that weren't recovered during performance. No problem so far. Now, the contractor requests to be paid 85% the G&A that was included in the estimated quantity of the rock excavation bid item. I say, wait a minute - we priced G&A at 10% of the other costs based on your practice of charging all jobs 10%. Now you say - "no, I want the "unearned" overhead that I thought I was going to get, even though we both knew that rock excavation was a best guess. Now, don't pay any attention to the fact either that since there was less rock there was more common excavation than expected, so I recovered additional G&A for that overrun". But if it really bothers you, I will give you a credit for the extra G&A on common if you pay me the G&a I "lost" on the unperformed rock excavation." "Oh- also don't pay any attention to the fact that we finished the job sooner beca_se of the lower rock quantity and went on to another job - where I also charged 10% for G&A." My reaction would be BULL. I have paid you the agreed 10% rate on all quantities performed, including the overrun of common excavation. Plus, I will pay you 10% on every dollar included in our VEQ adjustment.I never guaranteed you 10% of the original contract price." The contractor replies - "Nope. There is a new Board decision that says you owe me 10% on every yard of rock excavation that wasn't necessary up to 85% of the estimated quantity. I'm guaranteed to be paid G&A on 85% of the original estimated quantity..." Sorry - that is a ridiculous conclusion to me.

Here, I don't disagree with you about how G&A rates are established. I have dealing with them for years. My explanation was probably not very clear and was generalized. By "future rates" rates I meant the next time they are updated, they will reflect what occurred during the latest accounting period. I didn't mean to infer that the contractor arbitrarily increases them to make up for past losses. However, I do know that DCAA and our auditors also looked at the proposed G&A rates to see if they track how the company is doing during the period of performance. For instance if the rate was based on last year's base and nUmerator, but this year the company's business doubles with little increas in the G&A pool, the auditors would question the proposed G&A rate. The Contractor could also ask for an adjustment if the calculated rate is not representative of conditions in the next accounting period. I don't know whether CAS allows these practices or not. At any rate, actual events during the last accounting period that provide the numbers for the cost pool and for the base in the G&A calculation will reflect, for example, the underrun. The next calculated rate will, in effect, reflect the underruns. That's what I was trying to say. Of course, the costs within the G&A pool will be a mix of fix and variable costs, duh. Depending upon the company's accounting system, some home office costs may be direct charged to contracts and with other companies, they are charged to the G& a pool. However, when the method of allocating or recovering, absorbing or whatever term used to charge G&A costs to contracts is to charge X percent to the contract costs or revenues, etc., you are recovering G&A on a variable basis, not on a fixed or lump sum basis. My choice of terms might not match yours but I generally know how G& A is applied to contracts - it isn't applied as a lump sum. Companies treat various costs in different ways. Some don't distinguish between G&A and "home office overhead". Some have several layers of indirects for branch offices, etc. Many companIes have field overhead or job overhead while others don't. One large contractor I work with, for instance, considers all costs charged at the project or contract level to be "direct costs", including site supervision and admin, safety, job trailers, inspectors, admin staff, as well as many home office personnel who direct charge to the contract rather than charge as G&A.

Vern, my problem is with HOOH and/or G&A, which have traditionally been "absorbed", "earned" or whatever, based on some formula such as a percentage of sales or cost of sales, etc. I explained earlier how these costs are charged to all the firm's jobs over the year, then periodically adjusted, as necessary to reflect past performance or projected future performance. These have been treated as "variable costs". This decision seems to say that G&A/HOOH is guaranteed as a lump sum or fixed amount, similar to job overhead expenses, whether or not the estimated amount of work is actually there. G&A has been traditionally charged as a variable cost to a project (percentage), not as a lump sum cost allocated to a project (fixed $). Traditional job costs, such as mobilization, management, supervision, etc. are the type costs that get "underabsorbed" when there are overall underruns in the estimated unit priced work. I have no problem with an adjustment for them, when it can be shown that they weren't recovered to the extent that they would have been had (75%) (85%) of the units priced work have been realized. I do have a huge problem with treating a cost that is generally "absorbed" by a project based upon the cost or amount of sales and overall calculated to be "absorbed" over the accounting year from all projects, is traditionally charged to jobs as a percentage (variable cost). This Board just seems to not understand how such business costs have traditionally been charged and simplistically treats such costs as fixed or lump sum costs. The Contractor will eventually "absorb" G&A costs, because they will often adjust future rates on past period cost of sales and/or adjust for future sales projections. Bigger firms are more sophisticated and make more adjustments. Small firms may or may not make interim adjustments of their rates. At any rate, that is how G&A/HOOH has traditionally been "absorbed" in the lines that I've been familiar with over the years (A-E and Construction). Maybe the service contract industry treats general business expense differently than construction and A-E world. I doubt it though. For gosh sakes, though - estimated quantities of work are just that - estimated or variable quantities, based upon actual needs or circumstances. The VEQ clauses have been there to help alleiviate the problem under recovery of certain costs that have traditionally been spread over some or all of the estimated quantity, not for costs that are charged as a percentage of costs, like G&A/HOOH. Even if a contractor only has one contract and it is unit-priced, it may probably establish the next G&A/HOOH rate based upon the previous accounting period's sales or cost of sales, etc. Am I making any sense in my distinction between how various indirects have been charged and/or treated over the years, some being fixed or one-time, while others are recovered as a percentage of all sales or cost of sales?

Having reread the CBCA Decision, I'm confused as to what the Board considers to be "overhead costs". That is a broad term. My organization has long recognized unrecovered fixed and job type indirect costs as allowable to the extent that they would have been recovered had the "minimum" quantity been encountered (here 75%). However, "home office overhead" and "G&A" has been generally charged to the job as a percentage applied to the job costs. Thus, we would have allowed G&A to be marked up on the other costs. The Board seems to be saying here that the contractor is entitled to charge G&A/HOOH to the unearned quantities, which I disagree with - of course they are the Board, not me. "Brink’s is entitled to be reimbursed for the indirect costs associated with the number of hours below the range that were not ordered." Using that logic, it should follow then that every time there is an overrun beyond the range of the estimated quantities, the contractor has "over-recovered" its G&A/Home office type overhead and the government is entitled to a credit for the excess. The logic is correct for certain one-time or fixed job type costs, which don't involve additional time. But recovery of G&A/HOOH has traditionally been proportional to the amount of work done, not some guaranteed range of income. And - I maintain that the CBCA is citing rejected case law and the incorrect premise for adjustments for variations in estimated quantity. "Adjustment to the unit prices or the total contract price is intended “to prevent either windfalls or losses, potentially even immense windfalls or ruinous losses, to the contract. The object is to retain a fair price for the contract as a whole in the face of unexpectedly large variations from the estimated quantities on which bids are based.” Burnett, 26 Cl. Ct. at 303 (quoting from the concurring opinion in Bean Dredging Corp., ENG BCA 5507, 89-3 BCA ? 22,034, at 110,824.). The Court of Appeals rejected that reasoning and those cases over 16 years ago in Foley Company v. US, "11 F. 3d 1032.

I haven't seen the term "unabsorbed overhead" applied to other than home office, G&A and other similar costs. Job specific "indirects", such as job supervision and other fixed costs have been referred to as "unrecovered costs" in my experience. Of course, I haven't read lots of cases where somebody may have applied the term "unabsorbed overhead" to such costs. For the last ten years of my regular duties, our Chem-Demil contractors accounted for all job specific expenses as "direct costs" in their accounting systems.

Vern, sorry - I edited my post above to be more specific. I am referring to unabsorbed home office overhead, not other types, such as job or field "overheads", which are often recoverable to a certain extent on underruns. By the way, such costs are not always classified as "indirect" or "overhead", either. Many companies charge all on-site costs as well as some home office costs as direct costs to a contract, not as indirect costs. Regarding "unabsorbed home office overhead", I believe that the Courts have said that the exclusive method for recovering such costs is to use Eichleay formula. Thus, there are certain circumstances that must be applicable in order to recover "unabsorbed home office overhead using the prescribed Eichleay method. At any rate, the CBCA was explaining the purpose of variation in estimated quantity clauses, referring to obsolete cases. The "Victory" principle didn't maintain that either party was entitled to get out of a bad deal (reprice the CLIN for original work outside the range) just because the limits were exceeded. That is the premise of Bean Dredging and the Burnett case. Victory was based upon the premise that both parties agreed to the unit price and were to abide by it, absent a change to the work, unless the over or underrun of estimated quantities of the originally contemplated work caused a change in the unit cost to the contractor.the adjustment is only for the difference in cost (plus applicable markups), not re-priced for actual costs.

Nope. But application of the Eichleay method of determining "unabsorbed overhead" (home office overhead) has been pretty much limited to govt caused delays of undeterminable duration, primarily under the Suspension of Work clause. The delay causes the contractor to standby ready to work, thus preventing it from taking on replacement work. Underruns don't normally fit those circumstances. G&A rates are often developed based upon using the overhead pool in the numerator and cost of sales in the denominator, based upon the past full accounting period, and perhaps adjusted for predicted changes in volume for the year that the rates will be applicable to.thus, overhead rates may reflect actual delays that occurred during the past year, anyway. Plus, the G&A rate is really an approximation anyway, adjusted when necessary to reflect business conditions. At any rate, if the contractor can claim "unabsorbed overhead" on underrun CLINs, shouldn't the government be similarly entitled to claim a reduction for "overabsorbed overhead" on overrun CLINS?

Good luck, Boof.ill have to reread the case and the wording of the clause, but I think the idea of unabsorbed home office overhead on underruns is a stretch of the original and current application of the concept. Then, the Civilian Agency BCA has, in my opinion, also gone down the wrong road as to the intent of VEQ clauses. The Court of Appeals rejected the Bean Dredging/Burnett approach in 1993.

I agree that the contractor is probably due an adjustment of some sort, but the decision appears to be based on obsolete law, refers to unabsorbed overhead, and refers to an incorrect interpretation of the standard Variation in Estimated Quantities Clause. In the instant case, the State Department used a custom Variation in Quantity clause. The CBCA referred to the FAR Variation in Estimated Quantities Clause (52.212-11) in its analysis. The Court mentioned the purpose of the VEQ Clause was to prevent windfalls or losses due to excess quantities or underruns. It cited the language in Burnett v. US ("26 Cl. Ct. at 303") and the Corps of Engineers Board of Contract Appeals' Bean Dredging Corp. Decision, "ENGBCA 5507, 89-3 BCA, 22,034, at 110,824". Those cases essentially involved the principle of re-pricing overruns, based upon actual costs. Those cases were rejected by the US Court of Appeals back in 1993. US Court of Appeals rejected the holding in Burnett in the Nov 4, 1993 Decision of Foley Company v. US, "11 F. 3d 1032". Instead, it reaffirmed what I term the "Victory Principle" (Victory Const. v. US, 510 F. 2d 1379, 206 Ct. Cl. 274 (1975)). The Victory Principle doesn't allow re-pricing. Instead, the party seeking an adjustment has to show that the cost to the contractor per unit outside of the estimated band (85-115%) was increased or decreased solely as a result of the variation in estimated quantities. It doesn't seem to matter whether or not there was a windfall or loss on the work, so the excess or underrun isn't priced at actual costs plus markup. We have traditionally looked at recovery of 85% (75% in the instant State Department case) of certain fixed and one-time costs for underruns, as well as anything else that the contractor can justify as an increased cost due to the underrun. Examples include higher unit costs due to the "learning curve", waste materials, mob and demob costs, fixed field office costs, etc. We haven't looked at paying "underabsorbed" or "unabsorbed" home office overhead on the un-earned quantities, instead added HOOH onto the additional unabsorbed direct and other indirect costs. This Court seemed to extend the application of unabsorbed or unearned home office overhead to underruns. There may be some discussion of this new case in Nash and Cibinic Reports or elsewhere - I don't have access to those type reports anymore. However, I thought it was strange that the CBCA would refer to case law that has been since rejected. With the Foley Decision, we got away from the Bean Dredging and Burnett logic way back in 1993. The pendulum may be swinging back, but I don't think that a Board of Contract Appeals can overrule Appeals Courts. Of course - I'm not a lawyer or a paralegal. My last Business Law course was in night school in 1983.