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

Forest fires and Task orders exceeding the scope of the original IDIQ

When Task Orders Exceed Your Contract This bid protest, filed by Western Pilot Service (WPS) and three other contractors, protested the BLM’s issuance of a task order, which in the view of the protester exceeded the scope of the original IDIQ, and was therefore illegal. The back story to this protest is that the BLM originally issued to solicitations; one for on-call aircraft services for forest fire suppression and another solicitation for 100 day exclusive use aircraft services for the same

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

U.S. Law Dictates Spousal Support from Retirement Pay

Set Up an Appointment with one of our Attorneys In the recent US Supreme Court case of Howell v. Howell, 137 S.Ct. 1400 (2017), it was held that a state court may not order a veteran to pay more spousal support for the loss in the divorced spouse’s portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive service-related disability benefits. See the news report here. Background: Federal Law Preempts Unless Congress Says Otherwise Because the

The Rule of Two

Set Up an Appointment with one of our Attorneys It has been a little over a year now since the US Supreme Court issued its opinion in Kingdomware Technologies, Inc. v. United States, 136 S. Ct. 1969 (2016). We discussed the case here. In that case, the court held requirements and procedures in the Veterans Benefits Act of 2006 (“VBA”), 38 U.S.C. § 8127 were mandatory. The purpose of the VBA was to set annual goals for contracting with service-disabled and

Servicemembers Returning to Work: Know Your USERRA Rights

Congress has enacted many laws and statutes that protect servicemembers rights including rights related to employment. It is simply unacceptable to serve your country and then come back from duty and have no job. To remedy that problem, Congress passed the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301 et seq., which requires employers to reemploy service members in civilian jobs when these individuals return from a period of duty. Who is Protected? USERRA applies

Can the New Tax Bill Actually Affect Your Beer Choices?

The new tax reform bill will affect your brewery in a good way. The Tax Cuts and Jobs Act included the Craft Beer Modernization and Tax Reform Act (CBMTRA), which brings relief to breweries on several levels. The first and most immediate relief is financial: a reduction in federal excise taxes. Smaller breweries—producing less than 6 million barrels per year—will now pay $3.50 per barrel, down from $7 per barrel, on the first 60,000 barrels, and then $16, down from $18,