Dan McAuliffe is an attorney and decorated combat veteran. He has more than 25-years of government contracting, legal, government contracts lawyersmilitary and complex management experience. He is licensed to practice law in Colorado and the District of Columbia.

Incomplete Novation = No Direct Economic Interest

Parties with an unapproved novation agreement aren’t eligible to protest agency award decisions. The GAO found that under the bid protest provisions of the Competition in Contracting Act of 1984 only an “interested party” may protest a federal procurement. The protester must be an actual or prospective offeror to have a direct economic interest in the award of a contract. In the Matter of: Wyle Laboratories, Inc., File:  B-416528, dated September 7, 2018 the GAO held Wyle did not

Successful GAO Price Realism Protest Requires the Right Solicitation

Small businesses are frustrated when underbid by competitors for federal task orders.  These businesses may challenge awards based on price realism.  They may even have evidence the contract cannot be performed at the offered price.  While the evidence may be compelling and change the outcome of an award decision, it will not be considered – unless the solicitation specifically requires an evaluation of the price realism. In the Matter of Earth Resources Technology This evaluation principle was reiterated on

Decision Two: Sovereign Acts, Agency Deference and Contract Disputes

A second key government contract case decided in 2017 involved court agency deference to an agency’s interpretation of its own regulations. The case decided a subcontractor’s Request for an Equitable Adjustment (REA) springing from what the subcontractor argued was a change in government regulation and policy. The case, Garco Construction Inc. v. Secretary of the Army (ASBCA 57796,15-1 BCA ¶ 36,135, motion for recon. denied, 16-1 BCA ¶ 36,278, aff’d, Garco Constr., Inc. v. Sec’y of the Army, 856 F.3d 938 (2017), petition

Six Important 2017 Government Contracting Decisions

The next six newsletters will contain articles regarding important government contracting decisions from 2017. The articles will include a review of the following: Technology Systems, Inc., ASBCA No. 59577, 17-1 BCA ¶ 36,631 (the DCAA disallowed expenses following an audit); Garco Construction, Inc. v. Secretary of the Army, 856 F. 3d 938 (Fed Cir 2017) (involving access to a military facility where the contract was to be performed); United States ex rel. Harman v. Trinity Industries, Inc., 872 F.3d 645 (5th

2017 Decision 1: DCAA Audits – Unapproved Subs and Unallowable Costs

Many clients have Department of Defense contracts and are subject to Defense Contracting Auditing Agency (DCAA) audits of incurred costs in accordance with FAR 52.216-7, “Allowable Cost and Payment.” An important 2017, 61-page decision by the Armed Services Board of Contract Appeals (ASBCA) addressed the following major government contracting issues: Overhead rates and supporting documentation; DCAA’s ability to change positions before the six-year statute of limitations expires; Depreciation; Bonuses; Accrued Costs crossing fiscal years; and, Unapproved subcontractor costs. The case was

Could Your Business Survive Debarment from Government Contracts?

Set Up an Appointment with one of our Attorneys Suspensions, Proposed Debarments and Debarments are used by agencies to protect themselves from irresponsible contractors. Federal Acquisition Regulation (FAR) Part 9.4 directs agencies to solicit offers, award contracts and consent to subcontracts only with responsible contractors.  The process for suspension and debarment is left to agency discretion.  The rule results from the efforts of the Office of Management and Budget to combat waste, fraud and abuse in the 1980s.  Suspension and debarment used

The HUBZone Unification and Business Stability Act of 2017

The federal government has never been able to achieved its goal of awarding 3% of government contracts to HUBZone-certified businesses. The program’s participation has dropped off since the redesignation of HUBZone areas by the 2010 decennial census. Some newly introduced legislation seeks to revitalize the U.S. Small Business Administration’s (SBA) Historically Underutilized Business Zone (HUBZone) Program. Click HERE for the SBA HUBZone Map The bill has been called “The HUBZone Unification and Business Stability Act of 2017”. It seeks “to clarify the definitions

De Facto Joint Ventures

Size Appeal of Olgoonik Diversified Services, LLC SBA No. SIZ-5825 (2017) This case concerns the Small Business Act of 1958. Recognizing the importance of free enterprise and competition, the Small Business Act requires the U.S. Government to assign a fair portion of contracts and purchases to small businesses. The Small Business Administration (SBA) and its Office of Hearings and Appeals (OHA) oversee the administration of the Small Business Act. The SBA uses size standards and the North American Industry Classification System (NAICS) to

Summary Judgment

Commerce Plaza Partners, LLC vs Department of Veterans Affairs, 2017 WL 3114025 The Civilian Board of Contract Appeals (CBCA) decided this case. As part of the General Services Administration (GSA), the CBCA hears various cases concerning federal agencies in the executive branch. Under the Contract Disputes Act (41 U.S.C. 7101-7109), the CBCA conducts dispute resolution between government contractors and agencies. Summary Judgment Background  Commerce Plaza Partners, LLC (CPP) entered into two leases with the Department of Veterans Affairs (DVA). Both leases concerned space in the

Bid Protest and the Alternative Dispute Resolution

Reagent World, Inc. vs Department of Agriculture, 2017 WL 3114026 The Civilian Board of Contract Appeals (CBCA) decided this case. As part of the General Services Administration (GSA), the CBCA hears various cases concerning federal agencies in the executive branch. Under the Contract Disputes Act(41 U.S.C. 7101-7109), the CBCA conducts dispute resolution between government contractors and agencies. The CBCA was established on January 6, 2007, in accordance with Section 847 of the National Defense Authorization Act for Fiscal Year 2006. After its formation, the CBCA