Government Contracts Monitor

The Proposed New FAR Rule Establishing Basic Requirements for Safeguarding Contractor Information Systems Is Finally Here

Last week, the Department of Defense (DoD), the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) proposed a long-awaited new rule establishing requirements for the safeguarding of contractor information systems that contain or process nonpublic Government information.  Basic Safeguarding of Contractor Information Systems, 77 Fed. Reg. 51496 (Aug. 24, 2012) (to be codified at 48 C.F.R. pts. 4, 7, 12, 42, and 52).

Proposed Change to FAR Will Clarify Requirements for Setting Aside R&D Contracts for Small Businesses

DoD, GSA, and NASA issued a proposed rule to amend the Federal Acquisition Regulation (FAR) to clarify that contracting officers should set aside research and development (R&D) contracts for small businesses when the market research indicates there are small businesses capable of providing the best scientific and technological approaches.  Small Business Set Asides for Research and Development Contracts, 77 Fed. Reg. 47797 (Aug. 10, 2012) (to be codified at 48 C.F.R. pts. 19 and 35). 

Ask For a Debriefing Whether You're Happy or Sad

Too often successful offerors neglect to ask for a debriefing.  They are in the habit of requesting a debriefing only when they are a disappointed offeror.  This is a mistake.  It is always important to have as much information as possible about the award decision.

Federal Employees are “People” Too Under the False Claims Act – Your Investigator May Also be Your Relator

A federal appeals court recently asked:  “Is a federal employee, even one whose job it is to investigate fraud, a ‘person’ under the False Claims Act such that he may maintain a qui tam action?”  The case, See Little v. Shell Exploration & Production Company, No. 11-20320 (5th Cir. 2012), answered the question with a “yes,” holding that two government auditors whose job it was to detect fraud could be qui tam relators in connection with the fraud they investigated.

DoD Seeks to Change What It Means to “Produce” a Specialty Metal

Based on a comments process mandated by Section 823 of the FY 2011 National Defense Authorization Act (NDAA), the Department of Defense (DoD) recently proposed to modify the definition of “produce” as it applies to the production of “specialty metals” (certain steel, titanium and other metal alloys).  77 Fed. Reg. 43474 (July 24, 2012).  The proposed change is the latest development in the long evolution of sourcing restrictions on specialty metals.

Understanding the Experience Factor – Another Losing Protest

A recent bid protest at the GAO, Sigmatech, Inc., B-406288.2 (Comp. Gen. July 20, 2012), reveals the importance of clearly and explicitly demonstrating that you meet the RFP criteria.  Sigmatech protested the Army’s conclusion that its competitor – CAS – had superior experience (CAS was rated outstanding; Sigmatech very good). The protest centered on Sigmatech’s allegations that: (i) although it did not expressly demonstrate it could meet every requirement, its proposal nevertheless addressed all the requirements; and (ii) although it did not have direct experience with the PATRIOT missile program, its team members did – facts the Army allegedly ignored.

No Contracting Authority Means No Contract With the Government

Recently the Civilian Board of Contract Appeals dismissed an appeal filed by a contractor that performed over a quarter million dollars of emergency restoration services to a Veterans Administration hospital in Philadelphia because the contract documents the contractor performed under were executed by an agency employee without contracting authority.

The Army Corps Wrongly Rejected A Timely Proposal, But Was Not “Wrong Enough” To Have To Pay The Contractor’s Attorneys’ Fees

A recent U.S. Court of Federal Claims decision highlights the perils and absurdity associated with submitting proposals via e-mail.  Watterson Construction Company responded to an RFP by the Army Corps of Engineers (“Army Corps”) to design and build “a standard barracks to house 294 persons in Fort Wainwright, Alaska.”  The RFP required final, second-phase proposals to be submitted by March 16, 2010 at 12:00 p.m.

No Harm, No Foul - Agency’s Violation of the FAR Not Enough to Overturn Award

In Omniplex World Services v. United States, No. 12-249 C (Aug. 1, 2012), the Court of Federal Claims denied a bid protest even though the Court determined that the agency violated the Federal Acquisition Regulation (FAR).  The Court found that the agency’s violation of the FAR did not prejudice (i.e., harm) the protestor because the protestor would have lost the contract anyway.  While the prejudice requirement is nothing new, this case serves as an important reminder that an agency’s improper conduct is not enough to win a protest – a protestor must also be able to demonstrate that it would have had a chance of winning the award absent the agency’s improper actions.

Getting Paid By The Government For All Hours Actually Worked By Salaried Employees

Who says you cannot bill the government – and get paid - for all hours actually worked by salaried employees, including hours in excess of forty hours per week?  Under certain circumstances and using certain contract clauses, the Armed Services Board of Contract Appeals (“ASBCA”), in GaN Corporation, ASBCA No.  57834 (July 13, 2012), says this is perfectly acceptable.