The Government Accountability Office (“GAO”) expects offerors to bear the burden of submitting the past performance information they wish an agency to consider in evaluating their proposals. In the recently decided protest FN Manufacturing LLC (“FNM”), B-407936 (Comp. Gen. April 19, 2013), the GAO stated it sees “no basis for concluding” that an agency is “required to search for information that [the offeror] does not refer to in its proposal.”
In a recent case in Texas, a federal jury convicted Donald Brewer, his wife Sherri Brewer, and James McKinney on multiple fraud counts for submitting false invoices under information technology contracts with the Air Force. The Air Force Medical Support Agency purchased information technology systems for Air Force hospitals and medical treatment facilities through its Medical Systems Infrastructure Modernization (MSIM) program. In 2002, while working for a company as an MSIM manager, Defendant Donald Brewer and the other defendants formed Enterprise and Deployment, LLC (“E&D”). E&D signed an exclusive teaming agreement with Ark Systems, Inc. (“Ark”), a subcontractor that installed electronic cabling for information and telephone systems, including cabling work funded by the MSIM program. During this time, defendant James McKinney also worked for Ark as the Vice President of Government Systems and managed all of Ark’s government subcontracts.
As noted in last week’s article discussing the new “ChallengeHER” Program for Women-Owned Small Businesses recently announced by the Small Business Administration (“SBA”), Congress has eliminated the statutory caps on the value of contracts that can be set-aside for competition among Women-Owned Small Businesses (“WOSBs”) and Economically Disadvantaged Women-Owned Small Businesses (“EDWOSBs”). This means that contracts of any dollar value size may now be set aside, provided that the Contracting Officer has a reasonable expectation that (i) at least two qualifying companies will submit offers, and (ii) award will be made at a fair and reasonable price.
When faced with a $95,115 Contract Disputes Act certified claim for improper cancellation of a purchase order for printed circuit cards, the United States Government didn’t just defend the claim – it went on the offensive by filing a False Claims Act (FCA) claim against the contractor. In Ulysses, Inc. v. United States, No. 06-436C (Fed. Cl. April 30, 2013), the Court of Federal Claims found the government’s counterclaims to have no merit, after a lengthy trial on liability.
A recent case in federal court in Maryland provides an additional reminder (if any were needed) that fraud in connection with small business activities does not pay. In United States v. Oh, No. 11-CR-00600 (D. Md.), a Virginia attorney plead guilty to conspiracy to commit bank fraud and money laundering in connection with her role in falsifying records to secure loans from the Small Business Administration 7(a) program. Seung Oh, a real estate attorney, helped her clients by doctoring documents so that individuals could obtain loans under Section 7(a) of the Small Business Act. Section 7(a) provides guaranteed financing of 75-90% for qualified loans administrated by designated commercial lending institutions. According to the plea agreement, Oh “helped conceal the fact that none of the buyers/borrowers had injected sufficient equity into the deals to qualify for Section 7(a) loans.”
Last Fall, we reported on a case in which the ASBCA adopted the Federal Circuit’s interpretation of FAR 52-217-8 and FAR 52.217-9 and the difference between the two clauses. That article stressed the importance of knowing which clause is implicated by the contract extensions at issue and understanding the clauses’ separate purposes. The recent case of Glasgow Investigative Solutions, Inc., ASBCA No. 58111 (April 9, 2013) clarifying the use of FAR 52.217-8 by making clear that the Government need not wait until the end of all option years to invoke the clause to extend the contract.
As part of the Obama Administration’s efforts to promote small businesses in federal contracting, the Small Business Administration (SBA) recently announced the ChallengeHER Campaign. The purpose of the campaign is to educate women business owners about federal procurement opportunities and introduce business owners to acquisition decision-makers in order to increase the percentage of federal contracting dollars awarded to women-owned small businesses (WOSBs).
With the winding down of operations in Iraq and Afghanistan, active duty military units are returning from overseas to their U.S. bases. One such military base is Fort Bragg. The Army, however, does not know exactly how many soldiers from the drawdown will be stationed at Fort Bragg. As a result, the Court of Federal Claims explained, “[I]t is unclear how much food will need to be requisitioned, received, stored, prepared, and served [at Fort Bragg] in the next few years.” In a recent pre-award bid protest, the Court supported the Army’s desire to shift all of the business risk, inherent in still undetermined troop levels at Fort Bragg, to the food service contractor. State of North Carolina Business Enterprises Program v. United States, No. 12-459C (Fed. Cl. Apr. 17, 2013).
We've all known for a long time now that institutions of higher education are exposed to lawsuits, including those brought by whistleblowers and the Department of Justice (DOJ) under the False Claims Act (FCA). The upward trend in these cases that began a few years ago is continuing. While healthcare related claims continue to lead the way, representing more than half of the FCA cases involving colleges and universities that were settled from 2004 through 2012, grant and procurement cases are not far behind.
In a recent case in federal court in California, a self-described “Godfather” of Camp Pendleton has been charged with accepting bribes on a flooring contract at the Camp. In United States v. Cervantes, No. 13-CR-01345 (C.D. Cal. filed Mar. 29, 2013) (see copy of Complaint here), the Defendant allegedly accepted a $40,000 bribe in connection with a $4 million flooring contract.
Government Contracts Monitor
