On March 31, 2017, the United States Civilian Board of Contract Appeals (CBCA) dismissed a contractor’s claims against the Department of Veterans Affairs (VA) for a lack of jurisdiction, stating that the contractor should have secured a final decision from the General Services Administration (GSA) prior to filing its claim. According to the CBCA, since the dispute was over the terms of a GSA Schedule contract and not over contract performance, proper procedures call for a decision from the GSA Schedule contracting officer before the CBCA can weigh in on the dispute.
An Update on Aftermath of GAO Jurisdiction Gap
By Richard Arnholt on
In an article published by Law360, I provided expanded insight on a U.S. Government Accountability Office (GAO) jurisdiction gap that occurred between October 1 and December 14, 2016, due to a legislative oversight. During this lapse, there was no venue with jurisdiction to hear protests of civilian agency task order awards. Congress has now given GAO permanent jurisdiction, but recent rulings dealing with the lapse have made clear that the legislation will not be applied retroactively. I suggest that now “that the GAO’s jurisdiction to hear protests of both civilian and DOD task order protests is permanent, albeit set at different thresholds, it is unlikely that such lapses will occur again anytime soon.”
The full article, “An Update On Aftermath Of GAO Jurisdiction Gap,” was published by Law360 on April 6, 2017, and is available online.
Additional insights can be found in my earlier blog post on the topic, “Timing is Everything – GAO Refuses to Apply Jurisdiction Retroactively,” published on March 20, 2017.
The Long Road: Boeing Continues the March into Iran
By Thad McBride on
Posted in International Trade, Sanctions (OFAC)
- Boeing announces deal to sell aircraft to Iran Aseman
- The deal was apparently authorized by the U.S. Treasury Department, but Congressional foes fight to block it
- If the deal goes through, further loosening of sanctions could follow
This story begins in July 2015, when the United States and its allies entered into a now-famous nuclear agreement with Iran which, among other things, paved the way for the United States to scale back economic sanctions on Iran – including those relating to commercial aircraft. Executing that deal, in January 2016, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) issued a new, favorable licensing policy for many transactions relating to the sale of commercial passenger aircraft and related parts and services to Iran.
Continue Reading The Long Road: Boeing Continues the March into Iran
Ding Dong the Regulation’s Dead! – Trump Finalizes Statutory Repeal of the Fair Pay and Safe Workplaces Rule
As we previously reported, Congress has taken its final steps in repealing Obama’s Fair Pay & Safe Workplaces rule, one of the most controversial rules enacted by the Federal Acquisition Regulatory (FAR) Council under President Obama. On February 6, the Senate gave the final vote of approval of the House Resolution overturning the rule, and on March 27, President Trump, unsurprisingly, signed the Resolution into law. At the same time, he also signed legislation overturning three other rules, including the U.S. Bureau of Land Management’s land use planning rule and two rules issued by the U.S. Department of Education. Though much of the Fair Pay rule had never been implemented due to a court injunction, this legislation formally revokes the rule and ensures that the FAR Council cannot enact a similar rule without Congressional approval.
Event: Florida GovCon Summit
By Todd Overman on
This week I will be in Tampa, Florida speaking at the two-day, interactive Florida GovCon Summit presented by Solvability. I will speak on the topic of, “Growing Your Business Through Joint Ventures” at 2 p.m. on Wednesday, March 29. Recent changes in federal regulations have presented businesses with options and strategies for growth, this session will consider how businesses should maximize those opportunities.
Additional program information is available here.
Lessons from the Historic ZTE Enforcement Action
By Thad McBride on
- One of largest export and sanctions penalties ever imposed
- Reminder of U.S. government’s broad jurisdiction over export and sanctions matters
- Cooperation could have helped ease the penalty significantly
On March 7, 2017, Chinese telecommunications company, Zhongxing Telecommunications Equipment Corp. (ZTE), signed on to three separate settlement agreements with the United States, agreeing to pay $892 million for violations of U.S. sanctions and export controls. Even more could be due if ZTE strays from the commitments it has made under the settlement agreements. This is one of the largest penalties ever imposed by the U.S. government for export and sanctions violations.
It is impossible in the space of this blog article to provide a detailed summary of this matter. In addition, while the details of the matter would make good copy, we think (hope!) that this is something of an isolated incident. At the same time, we think several lessons can be derived from this action.
Continue Reading Lessons from the Historic ZTE Enforcement Action
Timing is Everything – GAO Refuses to Apply Jurisdiction Retroactively
By Richard Arnholt on
Posted in Bid Protests
As we previously reported here and here, between October 1 and December 14, 2016, the Government Accountability Office (GAO) lacked jurisdiction to hear most civilian agency task order protests (its jurisdiction over protest of Department of Defense (DoD) task order awards was unaffected by the lapse). On December 14, President Obama signed legislation reinstating GAO’s jurisdiction over protests of civilian task orders greater than $10 million. He subsequently signed the National Defense Authorization Act (NDAA) of 2017, which raised the threshold for DoD task order protests from $10 to $25 million.
Continue Reading Timing is Everything – GAO Refuses to Apply Jurisdiction Retroactively
Event: Florida GovCon Summit
By Bass, Berry & Sims on
From March 29-30, I will be in Tampa, Florida taking part in the Florida GovCon Summit presented by Solvability. This two-day, interactive summit features speakers with deep and broad roots in federal contracting. The panel session I will be speaking on is titled, “Maximizing Your Value for Exit.” This panel will offer insight into how small businesses can plan their exit strategy, best practices to finding a buyer and the steps to take now to maximize company valuation. I will specifically delve into the major legal considerations and issues to be aware of in planning an exit strategy.
Visit the Florida GovCon Summit website for more information and registration.
Last Straw for the Fair Pay & Safe Workplaces Rule – Congress to Take Final Vote on Repeal
As we previously reported, following the start of the Trump Administration, Congress has moved aggressively to overturn regulations passed in the final days of the Obama Administration through the rarely-used powers in the Congressional Review Act (CRA). This focus on CRA actions, which is in keeping with the Trump Administration’s broader goal of eliminating costly regulations, has taken time and attention in the early days of the 115th Congress because the CRA gives Congress a limited amount of time to reverse regulations. One of the rules that has been targeted for elimination is the Fair Pay & Safe Workplaces rule, a rule subject to much debate and controversy since its enactment in August 2016. Recent Senate action makes it likely that the rule, which would have imposed billions of dollars in costs on taxpayers over the next decade, will be eliminated next week.
GAO Upholds Waiver(s) of OCI Allegations
By Todd Overman on
Posted in Bid Protests
On January 30, the U.S. Government Accountability Office (GAO) issued its decision denying Concurrent Technologies Corp.’s (CTC) protest of the U.S. Navy’s award of a support contract for the Navy Manufacturing Technology Metalworking Center of Excellence program to Advanced Technology International (ATI). CTC alleged that ATI had an organizational conflict of interest (OCI) which stemmed from ATI’s role as a contractor providing procurement support services for the Department of Defense. CTC argued that as part of ATI’s procurement support work, it had access to CTC’s proprietary information resulting in ATI having an unfair competitive advantage in the procurement.
GAO denied CTC’s protest, finding that the Navy’s actions were reasonable and the award to ATI was proper. However, it is the lengths taken by the Navy, and upheld by GAO, which makes this protest interesting and potentially dangerous to contractors.