Jackson Kelly PLLC

Government Contracts Monitor

In the Absence of a Definition, the Agency's Reasonable Interpretation of Terms Controls

It’s essentially impossible to submit a winning proposal if you don’t understand what the procuring agency wants to buy. But understanding what a solicitation is saying is sometimes more difficult than it seems. Offerors pursuing a contract award are sometimes disappointed to learn that their understanding of a word or phrase does not match the meaning the procuring agency intended it to convey.…

If It's Not Equal or Comparable, It's Not Awardable

    When an agency issues a request for quotations (“RFQ”) for a product with certain technical specifications, but then awards a purchase order based on an allegedly equal or comparable product, the Government must ensure the quoted products are, in fact, equal and comparable. Otherwise, the RFQ must be amended to allow all bidders to provide quotes based on the less exacting technical…

44 Minutes Is Not Much Response Time, But It Can Be Enough

One of the first things offerors look for upon receipt of a new solicitation is the response due date. Given the critical importance of timing to the proposal preparation process, offerors are naturally disappointed when the amount of time allowed is shorter than they think necessary. In cases where an offeror believes the response time is so short that it robs them of the opportunity to…

GAO Mandates Bid Protest E-Filing and $350 Filing Fee Starting May 1, 2018

The Government Accountability Office (GAO) is requiring that all new bid protests filed starting May 1, 2018, be filed electronically, using GAO’s new Electronic Protest Docketing System (EPDS).  GAO also is requiring payment of a $350 filing fee at the time of filing as a condition to acceptance and processing of a new protest.  These new requirements apply to all new bid protests, except protests…

The Government May Have the Right to Remain Silent, But Anything It Says In the Solicitation May Be Used Against It To Find a Latent Ambiguity

If the Government chooses to remain silent regarding site conditions, then it has to be consistent throughout the Solicitation.  As the recent Armed Services Board of Contract Appeals (ASBCA) decision in R.L. Persons Construction, Inc., ASBCA 60121 (March 15, 2018), makes clear, where the government makes representations about site conditions in one place but is curiously silent in others, the…

DoD Enhances Post-Award Debriefing Rights

Last Monday, the Department of Defense (DoD) Director of Defense Pricing / Defense Procurement and Acquisition Policy issued a class deviation to implement paragraph (b) and (c) of Section 818 of the National Defense Authorization Act (NDAA) for Fiscal Year 2018. That Section of the NDAA amends 10 U.S.C. 2305(b)(5) and 31 U.S.C. 3553(d)(4) to provide enhanced post-award debriefing rights for…

Short Take: Hopewell Darneille to Present at DYNET 2018, Fairmont, WV -- April 5, 2018

Hopewell Darneille, of the Firm's Washington, DC office, will be a presenter at the annual Dynamic Networking for Small Business (DYNET) Conference, a federal and prime contracting event in Fairmont, West Virginia, on April 5, 2018 at the Robert H. Mollohan Research Center.

Mr. Darneille will co-present a workshop on "SBA's 2016 Joint Venture Rules Revisited," with Melissa Loder, the…

When Employees Are Involved, Contractor Fraud Is Harder to Hide

In Poor Richard’s Almanac, Ben Franklin famously advised, “Three may keep a secret, if two of them are dead.” As evidenced by a recently announced settlement of civil False Claims Act allegations by a whistleblower, this is particularly good counsel for government contractors. When employees and subcontractors know about questionable or fraudulent practices in connection with contract…

If You Think Some Corrective Action Is Overly Restrictive, You're Right

In general, when a procuring agency responds to a protest by taking corrective action, the Government Accountability Office (GAO) does not object to the specific corrective action, so long as it is appropriate to remedy the concern that caused the agency to opt for corrective action. The recent GAO decision in Castro & Company, LLC, B-415508.4 (February 13, 2018) reminds us, however, that…

Department of Justice Gives False Claims Act Defendants New Hope

Two recently-issued Department of Justice (DOJ) memoranda spell significant changes in the enforcement – that is, lighter enforcement – of the False Claims Act (FCA). Specifically,

  • First, on January 10, 2018, DOJ issued an internal memorandum encouraging all U.S. Attorneys’ offices to dismiss frivolous FCA qui tam lawsuits.
     
  • This memo lists seven factors for U.S. Attorneys to consider in…

Short Take: Some Government Contracts Business Models Should Be Avoided

Earlier this week, the Department of Justice unsealed charges against a government contractor for his role in allegedly carrying out a multi-year, $2.6 million scheme to defraud at least 35 subcontractors located across the United States. The indictment, filed on January 30, 2018 in the Eastern District of California, charges Chester L. Neal Jr., 43, of Fresno, California, with two counts of mail…

Short Take: Treasury Increases Prompt Payment & Contract Disputes Act Interest Rates, Effective 1/1/18

The Treasury Department has announced that the Prompt Payment Act (“PPA”) interest rate is being increased to 2.625% per annum for the period of January 1, 2018 through June 30, 2018.  This interest rate is used to calculate the interest penalty paid by the Government when it fails to timely pay contractors for goods and services, as well as interest due under the Contract Disputes Act (“CDA”).…

 

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