Government Contracts Monitor

Jackson Kelly attorney authors West Virginia Chapter of the “Guide to State Procurement”

Jackson Kelly attorney J. Eric Whytsell recently authored the West Virginia chapter of the American Bar Association’s “Guide to State Procurement: A 50 State Primer on Purchasing Laws, Processes and Procedures.” The publication includes information on purchasing laws at the state level along with information about procurement statutes and regulations, bid processes, bid protest procedures and administrative and judicial remedies.

J. Eric Whytsell is an attorney in the Washington, D.C., office of Jackson Kelly PLLC who represents a wide variety of clients on federal, state and local procurement matters, including bid and proposal development, risk assessment, teaming and subcontracting arrangements, contract negotiation and performance, protests, contractor and government claims, and suspension and debarment issues.  He regularly works with government contractors and subcontractors to ensure compliance with requirements concerning business ethics and conduct, labor standards, security clearances, export controls and sourcing restrictions. He is a member of the American Bar Association, Section of Public Contract Law and Vice-Chair of its Committees on Cybersecurity, Privacy and Data Protection and Strategic Alliances, Teaming and Subcontracting.

Jackson Kelly PLLC represents leading global corporations, national companies, entrepreneurs and individuals in areas of law such as environmental, business, labor and employment, federal and state workers' compensation, civil litigation and occupational safety and health. The firm has offices in Colorado, Kentucky, Pennsylvania, the District of Columbia and West Virginia.

“Do Not Pay” List Coming in a Few Months

Contractors who are not current on their federal taxes may not get paid by the Federal Government, once the new “Do Not Pay” List is up and online.   The Treasury Department is expected to release its full “Do Not Pay” List within the next few months, according to a recent internet posting  from the Office of Management and Budget.

COFC Enjoins Corrective Action Based on GAO Attorney’s Pre-Decisional E-Mail that COFC Determines Was Wrong and Without a Rational Basis

In a recent case at the U.S. Court of Federal Claims (“COFC”) a protestor successfully challenged the procuring agency’s proposed corrective action terminating the protestor’s contract and re-opening the competition. 

COFC Issues TRO Enjoining Contract Start-Up in Postal Service Reverse Auction Case

In a recent case at the U.S. Court of Federal Claims Judge Hodges considered what happens when an on-line electronic reverse auction goes wrong and one of only two bidders is unable to see the other’s later low bid, and thus believed it was the winning bidder, only to later learn of the lower bid.

SBA District Office Reviews and Reverses 8(a) Joint Venture Eligibility Determination Based on New Evidence

The SBA Washington Metropolitan Area District Office recently reconsidered and reversed an earlier favorable eligibility determination on behalf of an 8(a) joint venture where newly-obtained information during a size protest indicated that the joint venture did not comply with SBA’s 8(a) joint venture regulations at 13 C.F.R. 124.513.

Agencies Rush to Obligate Federal Dollars Before September 30th - Sole Sources Abound

In a rush to obligate federal dollars before the end of the fiscal year, there have been a rash of solicitations issued using the simplified acquisition procedures brand name, sole or limited source authority.  FAR 13.106-1(b).

The Perils of Claims by Sureties against the United States

The United States Court of Appeals for the Federal Circuit recently ruled on a variety of legal issues in Lumbermens Mutual Casualty Co. v. United States, Nos. 2010-5086, -5087 (Fed. Cir. Aug. 3, 2011) involving a Miller Act surety’s claims against the United States.  The Federal Circuit’s ruling highlights (i) the need to comply with Contract Disputes Act requirements; (ii) the limited waiver of sovereign immunity under the Tucker Act; and (iii) the perils of suretyship on federal construction projects.

Contractors ignoring the SCA and misusing the 8(a) program beware …

On July 25, 2011, the United States District Court for the District of Columbia ruled that the plaintiffs in a qui tam action brought against The Kane Company (“the Company”) under the False Claims Act (“FCA”) could proceed with their suit, holding they had adequately stated a claim under the FCA and for fraud. 

The Revolving Door Continues to Create OCI Problems

During the procurement under protest in PCCP Constructors, JV; Bechtel Infrastructure Corporation, B-405036(August 4, 2011), a U.S. Army Corps of Engineers (Corps) Chief retired and began employment with the company ultimately selected for the award – CBY.  At the time of his retirement, the Chief held the most senior civilian position within the Corps’ Hurricane Program – the program with authority for decisions related to major elements of the hurricane protection program including the permanent pumps project under protest.   

Organizational Conflicts of Interests Cannot be Based on “Suspicion and Innuendo”

The U.S. Court of Appeals for the Federal Circuit recently affirmed the Court of Federal Claims’  (CFC’s) decision regarding an organizational conflict of interest (OCI).  In Turner Construction Co., Inc. v. United States, 2010-5146 (July 14, 2011), Turner had been awarded a construction contract by the Army that was protested based on alleged OCIs arising from merger discussions between Turner’s design partner, EB,  and the parent of the Army’s design company for the project, AECOM.