federal contracts: the year in review
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Federal Contracts: The Year In Review. James F. Nagle Oles Morrison Rinker & Baker LLP www.oles.com [email protected]. FAC 2005-56 – March 2, 2012. Finalize the Women-Owned Small Regulations Finalize the Proper Use in Management of Cost Reimbursement Contracts - PowerPoint PPT PresentationTRANSCRIPT
Federal Contracts:The Year In Review
James F. NagleOles Morrison Rinker & Baker LLP
FAC 2005-56 – March 2, 2012
• Finalize the Women-Owned Small Regulations• Finalize the Proper Use in Management of Cost
Reimbursement Contracts• Adopts as Final the Rule on Requirements for
Acquisition Pursuant to Multiple Award Contracts• Adopts as Final the Rule on Socio-Economic
Program Parity
Federal Contracts: The Year in Review 2
FAC 2005-55
• System for Award Management (SAM)• New Requirements on Brand Name
Specifications• T&M and LH Contracts for Commercial Services• FAPIIS Revisions
Federal Contracts: The Year in Review 3
FAC 2005-54
• Notice for employees and their rights under Federal Labor Laws
• Steps to identify and prevent personal conflicts of interest
• SDBs to self-represent their status
Federal Contracts: The Year in Review 4
FAC 2005-53
• Final Rules on Equal Opportunity for Veterans • Suspension and Debarment Requirement Flow
Down to All Subcontracts, Except COTS• Extends the Sunset Date for Protests Against
the Award of Task or Delivery Orders by DOD, NASA and the Coast Guard from May 27, 2011 to September 30, 2016
5Federal Contracts: The Year in Review
FAC 2005-52• Another “green initiative” Federal Agencies are required to
leverage Agency Acquisitions to foster markets for sustainable technologies, materials, products and services
• Agencies must implement high-performance sustainable practices
• Updates Final Closeout Procedures
• Finalize the Prohibition on Contracting with Inverted Domestic Corporations
• Finalize as an Exemption from the Buy American Act for Acquisition of a Commercial Technology that is a Commercial Item
• One Duty of Contract Administration is to Assure that Contractors Have Implemented FAR 52.203-13, Contractor Code of Business Ethics and Conduct
6Federal Contracts: The Year in Review
FAC 2005-51
• Implements Women-Owned Small Business Program
• New Subpart 19.15• New clauses
– 52.219-29, Notice of Total Set Aside for EDWOSBs– 52.219-30, Notice of Total Set Aside for WOSBs
7Federal Contracts: The Year in Review
FAC 2005-50
• Proper Use and Management of Cost Reimbursement Contracts
• Requirements for Acquisition Pursuant to Multiple Award Contracts
• Additional Requirements for Market Research• Socioeconomic Program Parity
8Federal Contracts: The Year in Review
FAC 2005-50, Justification and Approval of Sole Source 8(a)
Contracts• Implement Section 811 of the National Defense
Authorization Act for FY 2010• Prohibits the award of a sole source contract
over $20 million under the 8(a) Program without first obtaining a written J&A
• June 16, 2011 Memorandum from Director, Defense Procurement and Acquisition Policy emphasizes that interim rule only requires five elements, out of 12, to be completed by the contracting officer
9Federal Contracts: The Year in Review
FAC 2005-49
• Federal Awardee Performance and Integrity Information System (FAPIIS) Data, Excluding Past Performance Reviews, Will be Available to the Public
• New FAR Clause
10Federal Contracts: The Year in Review
Protests• Timeliness – Watterson Construction Company• Proposal properly e-mailed in time• Not received in the C.O.’s e-mail inbox in time
because of an unexplained “mail storm” at the Army Corps’ E-Mail Server
• Proposal not late because it is excused by the “Government Control Exception”
• Also C-T Construction JV – Agency failed to employ adequate procedures to receive a proposal delivered to designated address more than three hours before submission deadline
11Federal Contracts: The Year in Review
Conflict of Interest
• Disqualification for OCI must be based on hard evidence, not assumptions – VSE Corporation
• Agency’s review of OCI was inadequate – PCCP Constructors
• Agency’s mitigation efforts of an OCI were inadequate – NETSTAR-1 Government Consulting, Inc.
Federal Contracts: The Year in Review 12
Unjustified Requirements
• Government must have rational basis for its requirements. Technosource Information Systems
• Government should include estimates that it believes are accurate. Global Computer Enterprises
• Brand Name Solicitation must include salient characteristics. California Industrial Facilities Resources
Federal Contracts: The Year in Review 13
GAO Bashes the SBA
• SBA erroneously denies Certificate of Competency – Construct Solutions Inc.
• A valid obligation must reflect a bonafide need at the time the obligation is incurred – SBA IDIQ Contract Guaranteed Minimum
Federal Contracts: The Year in Review 14
Standing
• The entity awarded the contract must be the entity who participated in the procurement. W. B. Construction and Sons, Inc.
• Only service-disabled, veteran-owned small businesses can protest service-disabled, veteran-owned small business procurements – MICCI Imaging
Federal Contracts: The Year in Review 15
Terminations for Default• Advanced Construction Services, Inc. – no requirement
for the Government to conduct analysis as to whether terminating a contractor for default is more economical that allowing a contractor to continue and access liquidated damages
• Roger W. Holcombe – evidence discovered after the termination for default can be used to justify the termination for default
• Tawazuh Commercial – failure of government to perform an earlier inspection does not shift performance burden to the government
16Federal Contracts: The Year in Review
Terminations for Default (continued)
• If you are going to terminate for default, don’t wait too long. Environmental Safety Consultants, Inc.
• A contractor’s anticipatory repudiation may b excused due to the government’s material misrepresentation. Tzell Airtrak Travel Group Corp.
Federal Contracts: The Year in Review 17
Standing
• HomeStar Services, Inc.• In order to file an appeal, a company must have
standing• A dissolved corporation under Florida law did not
have standing
18Federal Contracts: The Year in Review
Estimates
• Government estimates must be reasonably accurate. BECO Construction Co., Inc.
Federal Contracts: The Year in Review 19
Interference
IN-FIN-ITY Geotech Services v. Department of the Interior
“Where the contract gives a contractor discretion to choose its method of performance, the Government’s rejection of the reasonable method, including a change of method after performance begins, entitles the contractor to an equitable adjustment.”
20Federal Contracts: The Year in Review
Claims
• Waiting fourteen years to file a claim is unreasonable. Marut Testing & Inspection Services
• A claim can be a claim even if it’s entitled an REA. Zafer Taahhut Insaat ve Ticaret A. S.
Federal Contracts: The Year in Review 21
Only Take Direction From the Contracting Officer
• General Construction Services. Chief of the Logistics Division and Facility Manager is not the Contracting Officer
Federal Contracts: The Year in Review 22