During the performance of a contract, unanticipated circumstances can arise which increase a contractor’s costs. Sometimes, the contract allocates the risk of the unexpected event as, for example, when a contract provides that the agency will bear the risk if a contractor encounters a differing site condition that increases the contractor’s costs. In other circumstances, a principle of common law establishes which party will bear the risk of an unexpected occurrence. For example, case law provides that an agency’s failure to disclose facts to a contractor can, in some circumstances, result in the agency’s bearing the risk of unanticipated performance difficulties that increase the contractor’s costs.
Professional employee compensation under the Federal Acquisition Regulation
Issue 19-12 (November 2019) of “Briefing Papers” has published my article entitled “Professional Employee Compensation Under FAR 52.222-46." Published monthly by Thomson Reuters, “Briefing Papers” provides advice and guidelines on topics about contra
New rules limit lowest price, technically acceptable selection procedures
The Department of Defense (DOD) has issued a final rule to prohibit the use of lowest price, technically acceptable (LPTA) source-selection procedures unless the circumstances satisfy eight criteria. The procedures direct contracting officers to avoi
Procuring agency’s corrective action may turn a bid protest into “academic exercise”
A common occurrence in Government Accountability Office (GAO) bid-protest practice is for the procuring agency to announce it will take corrective action in response to a complaint against the award and the agency requests that GAO dismiss the protes
Inexperience is no excuse
Protesters will not be excused from abiding by the bid protest regulations of the Government Accountability Office (GAO) because of their inexperience with protests or their lack of understanding of the GAO protest procedures.[1] Thus, the GAO’s bid
Successful bid protests require evidence and explanation, not mere allegations and speculation
In BNL, Inc., B-409450, B-409450.3, 2014 CPD ¶ 138, 2014 WL 1818046, the protester in a procurement for management, acquisition, and financial support to the Department of Veterans Affairs (VA) argued that the agency improperly evaluated the proposal
Sep
10
Sep
06
In Safeguard Base Operations, LLC v. United States, 2019 WL 3789887 (July 2, 2019), a protest to the U.S. Court of Federal Claims (COFC), the procurement was for dormitory services for the Federal Law Enforcement Training Center, U.S. Department of Homeland Security. The agency rejected an initial proposal because the submitter (and eventual protestor) failed to include in its price proposal several government-supplied “plug numbers”—i.e., pre-priced items for two contract line items (CLINs) X007AA and X007AB from the solicitation schedule.
Aug
12
Frequently, protesters will seek to supplement their complaints after the initial GAO protest submission. When protesters raise multiple rounds for complaint, the Government Accountability Office (GAO) will be guided by its bid protest regulations on timeliness under 4 C.F.R. § 21.2. These regulations do not contemplate “[t]he piecemeal presentation or development of protest issues.” Curtis Center Ltd. Partnership—Reconsideration, Comp. Gen. Dec. B-257863.3, 95-1 CPD 147.
Jul
26
The books are filled with decisions where a contractor filed a certified claim under the Contract Disputes Act (CDA), 41 U.S.C. chapter 71, for an equitable adjustment or other relief arising under or related to the contract. But is there ever a requirement for a contractor to file a certified claim in support of an affirmative defense to a government claim?
Jun
11
In June 2018, CACI, Inc., challenged the award of a $56 million task order to another offeror. CACI argued in part that the procuring agency, the General Services Administration (GSA), had engaged in unfair and misleading oral discussions with the protestor as compared with the eventual awardee, Digital Management, Inc. (DMI).