Legal Blogs

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

Posted by Joseph Whitcomb on March 27, 2018

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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 purpose. The Department of interior originally awarded six contracts for 33 aircraft for the “exclusive use” solicitation. Evergreen, one of the protesters to the solicitation, which is the subject of this article, protested that award. The DUI took quick corrective action and quickly awarded to the same six contractors. Evergreen protested again and this time the DOI opted to cancel the solicitation.

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Topics: Government Contracting, Bid Protest

Decision Two: Sovereign Acts, Agency Deference and Contract Disputes

Posted by Dan McAuliffe on March 19, 2018

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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.

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Topics: Government Contracting

Six Important 2017 Government Contracting Decisions

Posted by Dan McAuliffe on February 22, 2018

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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 Cir. 2017) (a False Claim Act case);
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Topics: Government Contracting

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

Posted by Dan McAuliffe on February 19, 2018

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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:

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Topics: Government Contracting

U.S. Law Dictates Spousal Support from Retirement Pay

Posted by Ken Enright on January 26, 2018

Veteran Divorce Law: 

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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.

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Topics: Estate Planning

The Rule of Two

Posted by Joseph Whitcomb on January 25, 2018

 

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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 other veteran-owned small businesses. To help reach those goals, a provision known as the "Rule of Two" provided that the VA "shall award contracts" by restricting competition to veteran-owned small businesses if the VA reasonably expects that at least two of such businesses will submit offers and that "the award can be made at a fair and reasonable price that offers best value to the United States." 38 U.S.C. § 8127(d).

In Kingdomware Technologies, the Supreme Court held that the Rule of Two analysis was mandatory. The VA was not allowed to make procurement decisions with respect to VA goods and services without making a Rule of Two assessment. Further, the Rule applied to all VA procurements. It was a big win for VOSB and SDVOSB. We called it a "game changer for SDVOSB and VOSB companies."

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Topics: Veterans Disability Benefits, Government Contracting

Servicemembers Returning to Work: Know Your USERRA Rights

Posted by Joseph Whitcomb on January 25, 2018

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.

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Topics: Veterans Disability Benefits, Government Contracting

Can the New Tax Bill Actually Affect Your Beer Choices?

Posted by Brandon Selinsky on January 18, 2018

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, on barrels 60,001 to 2 million. Larger breweries will pay $16, down from $18, per barrel across the board.

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Topics: Tax Law

Could Your Business Survive Debarment from Government Contracts?

Posted by Dan McAuliffe on January 18, 2018

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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 to be referred to as “blacklisting.”  The   rule follows court decisions laying a constitutional foundation for a debarment process and contains procedural and substantive requirements for initiating action and issuing decisions. 

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Topics: Government Contracting

Can the IRS Take Your Passport for Unpaid Taxes?

Posted by Joseph Whitcomb on January 15, 2018

On December 4th, 2015, the United States Congress passed the Fixing America’s Surface Transportation (FAST) Act. Soon after, the legislation was signed into law by President Barack Obama. As is the case with many large transportation bills, this bill contained provisions that affected many unrelated areas of law.

Most notably, the FAST Act contained a tax provision that has major consequences for those who owe a lot money to the Internal Revenue Service (IRS): If you have seriously delinquent tax debt, the United States federal government may now be able confiscate your passport. Here, our top-rated Colorado tax law attorneys explain when tax debt can cost you your U.S. passport.

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Topics: Tax Law