Government Contracts Legal Forum

Claims Practice Bulletin: What the Newly Interpreted “Non-Jurisdictional” CDA Statute of Limitations Means for Contractors

Posted in Claims, Legal Developments
Steve McBradySkye Mathieson

As we discussed during Crowell & Moring’s webinar last week Top Headlines, Headaches, and Developments for Government Contractors to Watch in 2015, the CDA’s six-year statute of limitations has been a hot topic for both contractor and Government claims over the past several years.

Until recently, the case law at the Federal Circuit, the Boards, and the Court of Federal Claims was unanimous that the statute of limitations was jurisdictional. That meant that claims that accrued more than six years prior to their assertion would be null and void – contractors and the Government could not waive or toll the statutory deadline, and the tribunals had no jurisdiction to hear cases based on untimely claims.  Continue Reading

Significant Changes on the Horizon to Key SBA Regulations, Including the Limitations on Subcontracting

Posted in Small Business
Amy Laderberg O'SullivanOlivia Lynch

On December 29, 2014, the Small Business Administration issued long overdue proposed amendments to its regulations (with 60 days for comments) to implement many of the provisions of the National Defense Authorization Act of 2013 relevant to small business contracting.

Most notable is the complete overhaul of the calculation of the limitations on subcontracting requirement. The amendment proposes a major shift in the way the calculation is performed. The current method requires the prime contractor to be responsible for the specified percentage of cost of performing the contract (with variations depending on whether it is a contract for services, supplies, construction, or specialty trade construction). The amendment proposes shifting the calculation from this cost-based approach to the amount paid to the prime, which must be more than the specified percentage paid to other than “similarly situated” subcontractors. The proposed revision is intended to be easier to calculate, but complexities remain. Continue Reading

C&M Lawyers Conduct Live Webinar on OCIs and PCIs on Thursday, January 15

Posted in Organizational Conflict of Interest
Peter J. EyreJames G. Peyster

On Thursday, January 15 at 2 PM Eastern, join our Crowell & Moring attorneys for a webinar entitled: “Organizational and Personal Conflicts of Interest: New and Pending Rules.” During this 90-minute webinar, our experts will clarify key principles, including a review of 2014 proposed amendments to the 2011 FAR conflict of interest rules. From the regulatory framework, to best practices to identify, avoid, mitigate and manage actual or potential conflicts of interest, you’ll learn how best to protect your business from bid protests and even prosecution under the False Claims Act.

Please note that Thompson Information Services charges a fee for this webinar. Registration information can be found here.

Government Contracts Cases To Watch In 2015

Posted in Legal Developments
Steve McBrady

In December, I had the pleasure of speaking with Law360 regarding “Government Contracts Cases To Watch In 2015.” To no one’s surprise, the continuing DCAA audit backlog, and the Contract Disputes Act statute of limitations, are among the topics that contractors will be following with interest in 2015. In an upcoming post, we will discuss in greater detail the Federal Circuit’s recent decision in Sikorsky, and its impact with respect to the CDA statute of limitations. Stay tuned. (Full article linked here).

Claims Practice Bulletin: Performance Fraud, Imputed Liability, and Antecedent Breach

Posted in Claims
Steve McBradySkye Mathieson

As we discussed during Crowell & Moring’s webinar last week Top Headlines, Headaches, and Developments for Government Contractors to Watch in 2015, the recent ASBCA decision in Laguna Construction is likely to reverberate in 2015 and beyond. This case introduced the doctrine of “antecedent breach” in the ASBCA as a means of denying legitimate contractor claims.

In Laguna, after the completion of the contract, the contractor submitted a $3 million claim based on a dozen separate task orders under a large IDIQ contract. Mid-way through litigation, two contractor employees pled guilty to receiving kickbacks from subcontractors on some, but not all, of the Task Orders at issue in the litigation. The Government then added Fraud as an affirmative defense at the Board, arguing that Laguna’s entire claim should be denied because Laguna’s employees had pled to Fraud on some of the Task Orders. Continue Reading

Webinar: What Will The New Year Bring For Government Contractors?

Posted in Legal Developments
Peter J. Eyre

Tight budgets, increased oversight, new executive orders, complex regulatory environment, and intense competition remain atop the list of issues facing government contractors. Should you expect anything different in 2015? Please join us on Wednesday, January 7, 2015 at 1:00 pm Eastern to hear our Crowell & Moring team discuss predictions for the coming year. Topics will include likely trends and issues in costs, disputes, cybersecurity, balance of power between Congress and the Executive Branch, procurement fraud, bid protests, suspension and debarment, data rights, mergers & acquisitions, international issues, labor and employment, small business, and a whole lot more.

Presenters include some of the most experienced attorneys in the field and we hope you can join us for this free webinar.

Please click here to register. Shortly after registering, you will receive log-on and dial-in information.

 

OFCCP Issues New Rule Prohibiting Discrimination On Basis of Sexual Orientation and Gender Identity, More Guidance to Come

Posted in Labor
Peter J. Eyre

On December 9, 2014, the Office of Federal Contract Compliance Programs (OFCCP) within the Department of Labor (DOL) issued a final rule implementing the President’s July 2014 Executive Order 13672, which prohibits federal contractors from discriminating on the basis of sexual orientation or gender identity. The rule requires contractors and subcontractors to add “gender identity” and “sexual orientation” to the Equal Opportunity Clause and to their solicitations or advertisements for employment, but it does not require them to solicit such information from applicants or employees, to set placement goals, or to maintain or analyze any data on those categories. Companies that wish to learn more about this rule might be interested in a December 5 open forum hosted by DOL and DOL’s Frequently Asked Questions regarding this rule. In response to questions from industry about the rule, a DOL spokesperson indicated additional meetings with stakeholders will be scheduled and further guidance will be issued.

C&M Lawyers Conduct Live Webinar on Government Contract IP Rules on Thursday, December 11

Posted in Intellectual Property
John E. McCarthy Jr.Jonathan M. BakerJoelle Sires

On Thursday, December 11 at 1 PM Eastern, join our Crowell & Moring attorneys for a webinar entitled: “Intellectual Property Rules in Government Contracts Legal Update: Know Your Technical Data and Patent Rights.” During this 90-minute webinar, we will provide an overview of the key principles governing the rules and regulations relating to rights in technical data, computer software, and patents. Participants will also pick up practical pointers to help contractors avoid traps for the unwary that could inadvertently compromise their intellectual property rights.

Please note that Thompson Information Services charges a fee for this webinar. Registration information can be found here.

GAO Releases Bid Protest Statistics for FY 2014

Posted in Bid Protest
John E. McCarthy Jr.Mary Gilbert

On November 18, GAO released its annual report to Congress under the Competition in Contracting Act of 1984, 31 U.S.C. § 3554(e)(2), disclosing the following bid protest statistics for FYs 2010-2014:

The number of total cases filed was up 5% from the previous year to 2,561. FY 2013 had seen a slight decrease in the number of cases filed for the first time since FY 2006. This year’s increase suggests that the dip in FY 2013 may have been anomalous, possibly a result of sequestration and the resulting furloughs of employees with acquisition responsibilities.

The sustain rate for FY 2014 dropped to 13%, a 4% decrease from the previous year. However, the effectiveness rate – which captures all instances in which the protestor obtained some form of relief – remained constant at 43%. Thus, while GAO sustained fewer protests in FY 2014, agencies were more apt to take voluntary corrective action. Ultimately, nearly half of all protestors achieved some form of relief.

By contrast, GAO employed alternative dispute resolution (“ADR”) techniques in only 96 cases in FY 2014, a 33% drop off from the prior year and the least in five years. However, this could be explained by agencies’ increased propensity to take corrective action early on in the protest process, and is consistent with the steady effectiveness rate described above. But it is difficult to draw conclusions about why ADR proceedings were comparatively rare this year.

In addition, the number of cases in which GAO conducted a hearing ticked up by 35% to 42, or 4.7% of cases filed. This represents a reversal of the steady decrease in the number of GAO hearings held over the last decade.

For just the second year, GAO was also required to report on the most prevalent grounds for sustaining protests, which this year included: 1) failure to follow the evaluation criteria, 2) flawed selection decision, 3) unreasonable technical evaluation, and 4) unequal treatment. Notably, this is a change from last year (FY 2013) in which the most prevalent reasons for sustaining protests were: (1) failure to follow solicitation criteria; (2) inadequate documentation; (3) unequal treatment; and (4) unreasonable price/cost evaluation. It is important to remember that this data includes only cases decided on the merits, not those in which agencies took corrective action. Agencies are not required to and do not report on the reasons why they decide to take voluntary corrective action.

Finally, the FY 2014 report also addresses the effect of the October 2013 government shutdown on GAO’s proceedings. Remarkably, GAO survived the shutdown without a significant impact on its performance. There were 280 active bid protest cases pending at GAO when the agency – like the rest of the federal government – shut down for 16 days in October 2013. As a result, the standard 100-day deadline for resolving those 280 cases was extended by 16 calendar days. GAO was able, however, to resolve all but 39 cases within the typical 100-day timeframe, and only used the maximum 16-day extension in 5 cases. Thus, the numbers reflect that GAO recovered quickly and the shutdown did not result in major delays for pending protests.

Army Office of Energy Initiatives Releases RFP for New Renewable Energy Project at Fort Hood

Posted in Legal Developments
David J. GinsbergSteve McBradyCameron PrellMatthew B. Welling

On October 17, 2014, the U.S. Defense Logistics Agency (DLA) issued a solicitation for the construction and operation of large-scale solar and wind projects at the Fort Hood military base. Fort Hood is the largest active military duty post in the U.S., located approximately 60 miles north of Austin, Texas.

The RFP, which is the latest renewable energy project under the landmark $7 billion Multiple-Award Task Order Contract overseen by the U.S. Army Office of Energy Initiatives (previously discussed here), seeks one or more energy development firms to build, own and operate renewable energy capacity capable of servicing 100% of Fort Hood electrical energy requirements – where peak energy demand is approximately 110 MW. The RFP contemplates a fixed price contract for up to 29 years with minimum annual production of 30 GWh from on-site solar resources and 200 GWh from off-site wind resources, with excess generation from off-site resources available for contractor use (subject to the government’s first right of refusal to purchase). All necessary facilities will be constructed, owned, operated, and maintained by the contractor for the duration of the contract, and the government will retain a purchase option at its expiration or early termination. The scale of the project demonstrates the Federal Government’s continued emphasis on expanded onsite use and development of renewable energy resources (discussed here, here, and here).

For a list of additional projects and opportunities under the MATOC, follow the link.