Government Contracts MonitorPick Your Forum Carefully, Subcontractors: The CBCA May Not Hear Your ClaimOctober 5, 2012 In a short opinion highlighting the Civilian Board of Contract Appeals’ (CBCA) limited jurisdiction, the Board held that it had does not have jurisdiction to hear a claim brought by a subcontractor against the Government for the prime contractor’s failure to pay. Eagle Peak Rock & Paving, Inc. v. Dep’t of Interior, CBCA 2770 (Sept. 19, 2012). The prime contractor in this case,… Be Careful Out There: Contractor Suspensions and Debarments Are on the RiseOctober 2, 2012 The Government’s continued emphasis on rooting out fraud, waste and abuse appears to be paying off, at least in terms of the increased number of contractors being identified as ineligible for federal government contracts. According to a new report touted by Office of Federal Procurement Policy Administrator Joe Jordan, suspensions and debarments of contractors that violate federal contracting… Contractors Need More Than A Mere Factual Coincidence To Win A Breach Of Contract Case Against The GovernmentSeptember 28, 2012 You are a subcontractor on a federal prime contract. You complain about the prime contractor to the federal agency under an alleged promise of confidentiality. You then get terminated by the prime contractor within hours of complaining to the federal agency. What do you do? You sue the federal government for breach of contract, of course. And with nothing more… The Government Cannot Hide Three Boxes of Discovery Under a Desk and Say It Is HarmlessSeptember 26, 2012 When you litigate against the Government in civil cases, you generally presume that there is an element of good faith and fair dealing when it comes to things like due process and the discovery of relevant documents. A recent case at the Court of Federal Claims demonstrated that Government attorneys are not always on their best behavior in litigation. In K-Con Building… Effective Immediately: Prime Contractors Must Accelerate Payments to Small Business SubcontractorsSeptember 25, 2012 A new FAR clause at 52.232-99 requires prime contractors, upon receipt of accelerated payments from the Government, to pay small business subcontractors on an accelerated timetable to the maximum extent practicable. This clause is effective immediately, and Contracting Officers are instructed to insert this clause in all new solicitations and resultant contracts and, to the extent feasible,… Cornell University Loses False Claim Act Case Involving Federal Research GrantsSeptember 21, 2012 The U.S. Court of Appeals for the Second Circuit recently issued an important decision concerning (1) how to compute damages under the False Claims Act against grant recipients; (2) materiality of allegedly false claims; and (3) whether federal agency inaction after receipt of allegations of False Claims Act violations is “relevant.” The case, United States of America ex rel. Daniel… Recent Decision Reiterates Rule: Only One NAICS Code Per Set-AsideSeptember 20, 2012 A recent case provides a helpful reminder that small business set-asides generally must be tied to a single NAICS code. In NAICS Appeals of: edCount, LLC, SBA No. NAICS-5396 (Aug. 31, 2012), the Department of Education had published a synopsis of a small business set-aside citing two NAICS codes: “Codes of 541720 - Research and Development in the Social Sciences and Humanities [$7 million]… A Government Contractor Gets “Snowed” at the CBCA for $100,000September 18, 2012 We all know it is very difficult to predict the weather. A government contractor learned that lesson the hard way -- the Civilian Board of Contract Appeals (CBCA) recently decided that even though a government contractor performed over $100,000 in snow removal from a government facility, in a year in which the snow fell at three times the average rate, the Government would not pay for it because… DLA Declares: Reverse Auctions Mandatory For Competitive Contracts Over $150,000September 14, 2012 In a memo from the Defense Logistics Agency (DLA), Director Navy Vice Admiral Mark Harnitchek recently directed all field activities to award new contracts using DLA's online reverse auction tool. Over the past two years DLA has saved over $34 million through reverse auctions. Their goal is to save $8.6 billion in material costs by the end of fiscal year 2018. Noting that DLA, like other… Watch Out for Flying Pigs! GAO Permits and Grants Untimely ProtestSeptember 13, 2012 In a very rare move, GAO allowed an untimely protest under the “significant issue” exception to its timeliness rules. Cyberdata Technologies, Inc., B-406692 (Comp. Gen. Aug. 8, 2012). Generally, a protest challenging the solicitation terms must be made prior to bid closing and a protest challenging the evaluation must be made within 10 days of learning of the basis for the protest. 4… Is The Higher Price Justified? GAO Again Weighs In On Price/Technical TradeoffsSeptember 11, 2012 A recent GAO case confirms the Government’s obligation to perform proper price/technical tradeoffs in best value procurements. In J.R. Conkey & Associates, Inc. dba Solar Power Integrators, B-406024.4 (Comp. Gen. Aug. 22, 2012), the Government’s price/technical tradeoff analysis included only the three proposals with the highest technical scores. The Government did not consider… Agency Cannot Use Common Law Offsets To Recoup Overpayments When Not Authorized By StatuteSeptember 10, 2012 In Lummi Tribe Of The Lummi Reservation v. United States, No. 08-848C (Ct. Cl. Aug. 21, 2012), the U.S. Court of Federal Claims ruled that a federal agency was required to use available statutory remedies and could not use federal common law remedies of offset to recoup alleged overpayments. This case, placing limits on federal agency self-help, arises in a rather arcane context: … |
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