HDR farblog

Additional supporting arguments for timely protests v. new protest grounds in GAO litigation

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.

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Certified claims are sometimes required when asserting affirmative defenses

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?

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GAO decision underscores importance of taking notes during negotiations

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).

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Incorporation of Terms in a Contract by Reference

Courts and boards have narrowly construed when a contract will incorporate extrinsic terms by reference. A good example of this practice occurred in a recent decision of the U.S. Court of Federal Claims, Peterson Industrial Depot, Inc. v. U.S., 140 Fed. Cl. 485 (2018), where the court denied a contractor’s breach-of-contract claim because the contract lacked the specificity to make outside documents part of the agreement.

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2018 National Defense Authorization Act opens up opportunities for more small and large businesses

On December 12, 2017, President Donald Trump signed the 2018 National Defense Authorization Act (NDAA). A number of the provisions increase opportunities for large and small businesses and open the Government contracting market to a number of vendors who otherwise might not be interested.

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