I provided further analysis of my January 5, 2016 blog post in a Law360 article. Both the article and blog post outline some of the common mistakes contractors make in their proposal process that create issues preventing them from receiving an award.

In A-T Solutions Inc. (A-T) v. R3 Strategic Support Group Inc. (R3), a Virginia federal judge denied a preliminary injunction to prevent a contractor and former teaming partner from bidding on a bomb-disposal contract.

A-T and R3 entered into a teaming agreement to bid on a $50 million bomb-disposal contract in May 2015. The Government canceled the solicitation in July1. After it was reissued in December 2015, R3 notified A-T it no longer wanted to team for the acquisition. A-T subsequently accused R3 of treating the teaming agreement as void, including the provision to keep A-T’s proprietary information confidential. A-T filed suit in the U.S. District Court for the Eastern District of Virginia, filing a motion for preliminary injunction and specific performance to stop R3 from bidding on the contract and to specifically perform under the teaming agreement.

Continue Reading This Just In: Teaming Agreements are Still Unenforceable in Virginia

In a recent Armed Services Board of Contract Appeals (ASBCA) decision, Nelson, Inc., a Small Business Administration (SBA) certified HUBZone construction company based in Memphis, Tennessee, succeeded in reversing the termination for default of its $9.2 million contract with the U.S. Army Corps of Engineers (Corps). The decision highlights how important it is for contractors to maintain careful records of delays caused by factors outside of their control, not just to prove entitlement to additional time or damages, but also to protect against improper default terminations.

Nelson had a contract with Corps to build stone dikes on the Mississippi River. The project involved four sites, Loosahatchie, Robinson Crusoe, Friars Point and Cow Island, and spanned across three states, Tennessee, Mississippi and Arkansas. Nelson’s progress was significantly delayed at one of the sites, due to low water levels that precluded Nelson floating its equipment, then high water levels that prevented the contractor from working, as well as delayed guidance from the Corps regarding differing site conditions. When Nelson exceeded the 165 days allotted for the entire project, the Corps terminated the contract for default despite having not yet issued notices to proceed at two of the sites. Although extra days were supposed to be added to the schedule when river levels were too high or low for construction, the Corps ignored these days when calculating its timeline.

Continue Reading The Importance of Keeping Detailed Records of Delays on Construction Projects

Have you submitted your final proposal? If so, and you’ve bid on a small business set aside supply contract, then it is probably too late to cure a possible violation of the non-manufacturer rule. In a recent decision, the Small Business Administration’s Office of Hearings and Appeals (OHA) concluded that once a firm has submitted its final bid or final proposal revision, any subsequent changes in performance approach would be ignored for purposes of assessing the challenged firm’s size and compliance with the non-manufacturer rule.

Continue Reading Is It Too Late to Cure a Violation of the Non-manufacturer Rule?

I recently spoke on a panel in which we covered some of the common mistakes contractors make in their proposal process that create issues preventing them from receiving an award. One of the topics discussed was the importance of strictly following the instructions of a solicitation in preparing and submitting your proposal. Contractors are always seeking an edge to differentiate themselves from the competition. Differentiation in the form of a snazzy graphic, or some truly innovative solution will rarely get a contractor into trouble. However, this quest to stand out could sometimes result in a contractor trying so hard to be clever in its reading of the solicitation that it ends up only outsmarting itself, and potentially jeopardizing its opportunity to win the award.

This appears to have been the case in a recent decision issued by GAO in LOGMET LLC, B-412220.2, December 23, 2015. LOGMET LLC involved a solicitation issued by the Army for logistics services at Fort Rucker, Alabama and Eglin Air Force Base, Florida. The protest involved a challenge to the Army’s decision to eliminate the protester from the competition on the basis of a non-compliant proposal. At issue was the cost/price matrix submitted by the protester, and whether it conformed to the solicitation’s requirements.

Continue Reading Learning from Bid Protests: Deviate from Solicitation Instructions at Your Own Risk

On December 22, the Treasury Department’s Office of Foreign Assets Control (OFAC) designated more than 30 individuals and entities under the Ukraine-related sanctions. The designations were made under the auspices of several different executive orders, and thus there are different restrictions on transacting with these parties depending on the basis for each party’s designation. Roughly 72 hours before Christmas Day, when the spirit of giving is celebrated, OFAC showed its ability to taketh away, as follows:

  • Eight individuals and entities were designated because they are owned or controlled by, provide material support to, or act on behalf of Gennady Timchenko, a Russian businessman who is already a Specially Designated National (SDN)
  • Three entities were designated because they are owned or controlled by Arkady and Boris Rotenberg, Russian businessmen who are already designated as SDNs
  • Three individuals were designated because they act on behalf of Kalashnikov Concern and/or Izhevsky Mekhanichesky Zavod JSC, each of which is already designated as an SDN
  • Two individuals were designated for threatening the security and stability of Ukraine and misappropriating public assets. Each is a former official from the regime of former Ukrainian President Viktor Yanukovych, who is also designated as an SDN
  • Six Ukrainian separatists were designated for violating Ukraine’s sovereignty and territorial integrity
  • Twelve entities, ranging from banks to wineries (no fun allowed in Crimea!), that operate in the Crimea region of Ukraine were designated

In addition to these designations, a number of subsidiaries of previously sanctioned entities (VTB Bank, Sberbank and Rostec) were added to the Sectoral Sanctions Identification List, and thus made subject to targeted restrictions.

These measures suggest that the United States remains serious about pressuring Russia to reach an acceptable diplomatic resolution in Ukraine. In addition, and notably, these measures help to align US restrictions related to Ukraine with restrictions maintained by the European Union. In our view, US sanctions have the most impact when implemented in coordination with those adopted by its allies. We suspect these newly designated parties would presumably agree that being on multiple naughty lists is worse than just being on one.

The NDAA of 2015 not only authorized sole source awards to WOSBs and EDWOSBs, it also eliminated WOSB and EDWOSB self-certification. The SBA, however, chose not to implement this section of the law in its sole source rule issued September 14, 2015 (see our blog post on SBA’s rule here) due to the complexity of its implementation.

On December 18, 2015, the SBA issued an advanced notice of proposed rulemaking (ANPRM), inviting comments on the four methods of certification permitted by the NDAA: federal agency, state government, SBA, and national certifying entities approved by SBA. With regard to these methods, the SBA is seeking comments on the following:

(1) Whether each of the methods should be pursued;

(2) Concerns of feasibility regarding any of the methods;

(3) Possibility of a grace period for those who have self-certified to obtain approved certification; and

(4) What should become of the current WOSB repository.

Under SBA’s current rules, businesses may self-certify after submitting required documents to the SBA repository or get certified by a third party provider.  Currently, there are four third party entities that have been approved by the SBA to certify firms as WOSBs or EDWOSBs. The SBA is considering how many third party entities are necessary to process the certifications under the new rule and whether the cost to WOSBs and EDWOSBs should be taken into consideration in selecting third party certifiers.

Continue Reading WOSBs: Self-Certification Ending Soon

At the close of each fiscal year, the U.S. Government Accountability Office (GAO) is required by the Competition in Contracting Act of 1984 (CICA) to submit a report of the bid protests before the GAO. A significant number of protests filed do not reach a merit decision due to voluntary corrective action. Because agencies are not required to report any reasons for voluntary corrective action, these yearly reports are particularly helpful in analyzing trends and concerns for contractors. Highlights from the FY2015 report:

The sustain rate has been declining since the 18.6% reported in FY2012; in FY2015 there were only 68 sustains out of the 587 merit decisions (12%). In FY2014, there were 72 sustains out of 556 merit decisions (13%). However, the number of cases filed has steadily increased since the 2,429 cases filed in FY2013, with 2,639 filed in FY2015.

About 13% of the cases closed this year were task or delivery order protests under IDIQ contracts, of which GAO has exclusive bid protest jurisdiction for challenges to task or delivery orders greater than $10 million. Almost 12% of closed cases in FY2014 were attributed to task or delivery orders.

Continue Reading Failure to Follow Evaluation Criteria Remains Among Top Reasons for Sustained Protests

We’re headed back to Knoxville, Tennessee this week. On December 9th, Bryan King and I will speak on a panel at the 16th Annual Business Opportunities Conference hosted by the Energy, Technology and Environmental Business Association (ETEBA). Bryan will participate in “Protest Proof your Proposal,” and I’ll be a part of, “SBA Update: Women Owned Small Business Sole Source Opportunities.” The SBA Update workshop will discuss the new SBA rule that went into effect in October which helps level the playing field for woman-owned business vying for government contracts.

We’re proud to be sponsors at ETEBA and honored to be a part of the conference. If you are interested, there is still time to register. Hope to see you there.

Late in the night of October 5, 2015, twelve countries concluded negotiations on a groundbreaking free-trade agreement to liberalize trade. The Trans-Pacific Partnership (TPP) is a free-trade agreement between the United States, Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, Peru, Singapore, New Zealand and Vietnam.

The TPP, which still requires approval from Congress, is part of the Obama Administration’s efforts to gain market access in the growing economies of Asia and balancing out China’s increasing economic influence. While China, South Korea and other major players in Asia are not parties to the agreement, there is hope that they will choose to join. Several nations, including Indonesia and the Philippines, have already expressed interest in joining the agreement once it goes into effect.

Like all free-trade agreements, the TPP requires the countries involved to substantially reduce barriers to trade, including tariffs on goods and services. While some tariffs will be eliminated entirely, tariffs on politically sensitive goods such as automobiles, types of apparel and dairy products will drop more gradually.

Continue Reading The Trans-Pacific Partnership: Impact on Trade and Procurement

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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