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Federal Construction Contracting Blog

Federal Construction Contracting Blog
The purpose of this blog is to give the construction industry the benefit of our insights about the latest developments in federal construction contracting.

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Articles

Court Enjoins Awards of Government-wide Task Order Contracts Because of "Fa
2008-03-13 17:25:00
An important decision, Serco, Inc. v. United States was issued by the United States Court of Claims last week in a case involving a government-wide acquisition contract (“GWAC”) awarded by the General Services Administration (GSA) to provide technology products and services to the entire federal government. Sixty-two offerors competed for a chance to perform task orders under this GWAC. In ranking the technical proposals of these offerors, GSA teams assigned adjectival ratings to various subfactors and then converted them into whole numbers ( e.g., 3, 4, 5). Combining, averaging and weighting these figures, the agency ended up with technical scores that were carried out to three decimal points ( e.g., 3.817), and it made critical distinctions among the sixty-two offerors based upon the thousandths of a point. Based upon these technical scores, twenty-eight contractors were designated by the agency as “presumptive awardees.” GSA then pu...
More About: Government , Awards , Wide , Order

Bid Protests to GAO to be Allowed on Task Orders in Excess of $10 Million
2008-03-08 20:41:00
Effective May 23, 2008, there will be important changes that pertain to a contractor’s ability to protest task and delivery orders. These changes are embodied in Section 843 of the 2008 Defense Authorization Act, "Enhanced Competition Requirements for Task and Delivery Order Contracts," and legislators expect the new provisions to increase competition for task and delivery order contracts. Most notably, the new law allows a contractor to protest a task order in excess of $10 million to the GAO. Previously, the Federal Acquisition Streamlining Act of 1994 (“FASA”) prohibited task order protests, except in very limited circumstances. In addition, the new law requires that DOD task or delivery order contracts in excess of $100 million be awarded to multiple contractors, with certain exceptions, and the establishment of enhanced competition requirements, such as a requirement for debriefings on task or delivery orders in excess of...
More About: Million , Protests , Orders

Air Force General Suggests That "Unwarranted" Protesters Should Be Penalize
2008-02-17 19:03:00
The Commander of the Air Force Material Command, General Bruce Carlson, recently told reporters at a forum sponsored by Aviation Week that there should be some sort of penalty for protests that are found to be unwarranted. It was reported that the General said “that some losing bidders file protests with 20 or 30 elements when perhaps only one part has any foundation. In recent years, nearly every significant defense contract has been protested by the losers to the Government Accountability Office.” The comments, which were reported by GovernmentExecutive.com and the Congress Daily, demonstrate a total lack of understanding about the vital need for accountability on the part of federal agencies, contracting officers, and source selection authorities. I disagree with the General’s observations. Government contractors, and the taxpayers, are entitled to a procurement process that is fair and reasonably transparent, and they are enti...
More About: Protesters , Air Force

Unfair Contractor Performance Evaluations: "Stacking the Charges"
2008-02-14 05:43:00
The Federal Acquisition Regulation, at FAR 36.201, requires government personnel to be fair and accurate in the evaluation of a construction contractor’s performance, but there is the inherent potential for an unfair and overreaching evaluation. Government personnel are required to use DD Form 2626 for performance evaluations. This form lists five major factors to be evaluated: quality control, effectiveness of management, timely performance, compliance with labor standards and compliance with safety standards. If, for example, a contractor’s employee has an accident and sustains an injury, a government evaluator could rate the contractor as unsatisfactory for violation of the safety standards, marginal in effectiveness of management (jobsite supervision, compliance with regulations (safety), and marginal in the implementation of its quality control plan. All of this would stem from a single incident. In prosecutori...
More About: Performance , Unfair , Contractor

Federal Court Issues Decision Critical of the Corps of Engineers While Gran
2008-01-31 16:53:00
A decision has been issued in the United States District Court for the Eastern District of Louisiana, by Judge Stanwood R. Duval, Jr., dismissing the consolidated class action lawsuit against the United States Army Corps of Engineers for the failure of the Orleans Parish outfall canals and, in particular, the 17th Street Canal that allegedly accounted for approximately 80% of the flooding of downtown New Orleans in the wake of Hurricane Katrina (“In Re: Katrina Canal Breaches Consolidated Litigation, No. 05-4182 E.D. La.). The only remaining defendants are the Orleans Parish Levee Board and the New Orleans Sewerage and Water Board. Judge Duval ruled that the 17th Street, London and Orleans Avenue outfall canals were federal flood control projects and therefore statutorily immune from suit under the Flood Control Act of 1928. In an opinion that was very critical of the Corps of Engineers, Judge Duval stated the following:“While the United States government is ...
More About: Issues , Decision

Contractors Now Required to Prepare a Code of Business Ethics and Conduct a
2008-01-07 14:00:00
We published an article on March 5, 2007, reporting a proposed amendment to the FAR that would require government contractors to prepare a Code of Business Ethics and Conduct. On November 23, 2007, a final rule was published in the Federal Register and two new FAR clauses became effective on December 24, 2007. These new clauses are very important to all federal government contractors and they mandate the preparation of a Contractor Code of Business Ethics and Conduct (FAR 52.203-13) and the Display of Hotline Poster(s) (FAR 52.203-14) if a contractor receives an award in excess of $5 million with a period of performance of at least 120 days. This is yet another example of the unending criminalization of the federal procurement process that makes it very risky for any contractor to do business with the federal government unless the contractor keeps up-to-date on the rules. It is anticipated that suspension and debarment will be among the potential consequences ...
More About: Contractors , Pare

Protest Challenges Solicitation for Single Award Task Order Contract (SATOC
2007-12-05 21:46:00
A protest was filed recently in the United Stated Court of Federal Claims by our firm on behalf of a small business construction contractor challenging a solicitation issued by the Fort Worth District of the U.S. Army Corps of Engineers. The solicitation, No. W9126G-07-R-0123, is one of four similar solicitations for the construction of military projects described as Advanced Individual Training (AIT), Basic Training (BT) Barracks, and Warrior in Transition (WIT) facilities. The construction is being solicited through the use of a negotiated Indefinite Delivery/Indefinite Quantity (“IDIQ”) procurement on a Single Award Task Order (“SATOC”) basis. Under the terms of the solicitation a single contractor will be selected to perform task orders, without competition, amounting to as much as $330 million over the next three years in an eight state area. The other three similar solicitations contain similar dollar values and apply to similarly e...
More About: Contract , Protest

Federal Appeals Court Upholds Ruling that Contractor was Entitled to Damage
2007-11-29 05:28:00
In a case captioned as Ace Constructors, Inc. v. United States concerning a contract with the Corps of Engineers for the construction of a structure at Biggs Army Airfield, the Federal Circuit upheld a Court of Federal Claims ruling awarding an equitable adjustment to ACE Constructors (“ACE”) and the return of liquidated delay damages. The Court had ruled that, due to unforeseen conditions and defective specifications that were incorporated into the contract, ACE was entitled to additional relief beyond that which was provided by the contracting officer. In particular, the Court awarded ACE its additional costs for: 1) being required to use a more expensive concrete testing methodology than was required by the contract; 2) being required to use a more expensive method of concrete paving than was required by the contract; and, 3) a Type I differing site condition that required 129,000 additional cubic yards of fill dirt.On appeal, the government argued that th...
More About: Ruling , Damage , Contractor , Appeal

Corps of Engineers Conduct Found to be an "End Run" to a Judicial Order and
2007-11-27 22:30:00
The Corps of Engineers responded to the recent Order of the United States Court of Federal Claims dated November 1, 2007, granting a permanent injunction against the issuance of a MATOC solicitation for dredging, by taking four proposed task orders included in the MATOC solicitation and reissuing them as separate negotiated procurements. (See the article posted on November 5, 2007). The Plaintiff, Weeks Marine, Inc., filed a motion asking the Court to find that the Corps of Engineers had violated the November 1 Order. Weeks argued that the injunction of the MATOC solicitation was based upon a finding that there was no legal or rational basis for the Corps to employ contracting by negotiation instead of sealed bidding. The re-issuance of those same projects as individual RFPs violated the spirit, intent, and the letter of the Court’s Order.Weeks requested that the Court amend its November 1, 2007 Order to make it clear that the projects addressed by the ...
More About: Judicial , Dredging

Federal Court Rules that Negotiated IDIQ/MATOC Contracting Cannot be Used I
2007-11-05 19:53:00
In a recent prebid protest presented by our firm, Payne Hackenbracht & Sullivan, the United States Court of Federal Claims considered the protest of Weeks Marine, Inc. v. The United States (“Weeks”) challenging the decision of the United States Army Corps of Engineers, South Atlantic Division (“SAD”), to solicit proposals for maintenance dredging and shore protection projects using negotiated indefinite delivery indefinite quantity (“IDIQ”) multiple-award task order contracts (“MATOC”). The Court noted that the contemplated change to negotiated IDIQ task order contracting represented a significant departure from SAD’s prior practice of using sealed bidding, and further noted that the policy change had caused widespread industry criticism. As grounds for its protest, Weeks asserted that SAD’s proposed change to negotiated IDIQ/MATOC task order contracting was contrary to law, and was without any rational basis...
More About: Rules , Federal Court , Dredging

Federal Court Rules that Negotiated IDIQ/MATOC Contracting Cannot be Used I
2007-11-05 19:53:00
In a recent prebid protest presented by our firm, Payne Hackenbracht & Sullivan, the United States Court of Federal Claims considered the protest of Weeks Marine, Inc. (“Weeks”) challenging the decision of the United States Army Corps of Engineers, South Atlantic Division (“SAD”), to solicit proposals for maintenance dredging and shore protection projects using negotiated indefinite delivery indefinite quantity (“IDIQ”) multiple-award task order contracts (“MATOC”). The Court noted that the contemplated change to negotiated IDIQ task order contracting represented a significant departure from SAD’s prior practice of using sealed bidding, and further noted that the policy change had caused widespread industry criticism. (The decision was issued “Under Seal” and has not yet been released for publication. A copy will be made available on this blog as soon as the decision is made available to the public...
More About: Rules , Federal Court , Anno

Consulting Fees Deemed Excessive and Severely Limited by Armed Services Boa
2007-11-02 15:19:00
The Armed Services Board of Contract Appeals (“ASBCA”) recently decided a case involving the issue of whether a contractor could recover the fees charged by a consulting firm as a contract administration cost. Fru-Con Construction Corporation. Although the cost principles in the FAR, at 31.205-47(f), provide that "costs are unallowable if incurred in connection with the prosecution of claims or appeals against the Federal Government," FAR 31.205-33 provides that "professional and consultant services" are allowable in certain circumstances. One of those circumstances occurs when a consultant's preparation of a request for equitable adjustment was for the purposes of seeking a negotiated settlement of pending issues with the government. In such a case, a consultant’s costs may be allowable if otherwise found to be reasonable.The ASBCA addressed the issue of whether the consultant's fee of $612,000 was reasonable.&...
More About: Consulting , Fees , Limited

Method of Calculating Recovery Of Extended Home Office Overhead
2007-10-30 16:51:00
In a decision earlier this month, the Armed Services Board of Contract Appeals reiterated that the recovery of unabsorbed home office overhead, based on the Eichleay formula, is for "a stand-by of an uncertain duration." The Board held that where a contractor is entitled to a compensable contract time extension for additional work, the contractor is entitled to recover extended home office overhead. Extended home office overhead is calculated as a fixed percentage markup of costs incurred during the contract time extension. Fru-Con construction Corporation, ASBCA No. 55197, 55248, October 4, 2007. For a discussion on the Eichleay formula and the recovery of unabsorbed home office overhead, see our earlier article.
More About: Office , Recovery , Home , Home Office

GAO Deference to Agency Discretion in Accepting a "Short Statement" instead
2007-09-17 17:54:00
In a decision issued on April 20, 2007, but published today because of a protective order, the GAO denied a protest by Olympus Building Services, Inc., B-296741.14; B-296741.15 against the award of a contract to Rowe Contracting Services, Inc., issued by the Defense Intelligence Agency (DIA) for janitorial services at the DIA Analysis Center. Olympus challenged the proposal evaluation and best value determination.Among other things, Olympus asserted that Rowe’s proposal should not have been rated excellent under the technical factors because it did not include a required security awareness plan. In this regard, in evaluating Rowe’s initial proposal, the Technical Evaluation Board (TEB) noted that Rowe had not provided a security awareness plan; the agency pointed this out to Rowe as a weakness during discussions. In response, in its final proposal revision (FPR), Rowe provided a security awareness plan comprised of a short statement explaining, among oth...
More About: Short , Statement

Determination of the Relative Merit of Past Performance Evaluation is a Mat
2007-09-13 15:15:00
In a decision issued by the Government Accountability Office, S4, Inc., B-299817, August 23, 2007, the disappointed offer protested an award to Croop-LaFrance, Inc., a lower priced offeror, under a Request for Proposals (“RFP”) to procure information technology desktop information services. The RFP specified that award would be based on a “technically acceptable-risk/past performance/price tradeoff,” which the RFP explained as follows: For those Offerors who are determined to be technically acceptable, tradeoffs will be made between proposal risk, past performance and price. Proposal risk and past performance are of equal importance, and when combined, are considered significantly more important than price.The agency determined that the ratings of past performance of S4, Inc. and Croop-LaFrance were essentially equal and that it was therefore appropriate that price should be the discriminator in making the source selection. S4 contended that the ag...
More About: Performance , Evaluation , Past

Missing Information in Electronic Database Not Fatal To Offeror
2007-09-12 19:16:00
As Federal government contractors know all too well, Federal procurement has entered the electronic age in a big way. Not only are solicitations advertised solely through the internet at http://www.fedbizopps.gov, prospective contractors must be registered with another website, FedTeDS, www.fedteds.gov, in order to access plans, specifications and amendments electronically. Prospective contractors must also be registered with the Central Contractor Registration site, www.ccr.gov, to be eligible to access FedTeDS. The Federal Acquisition Regulation, at FAR 4.1201, now provides that "Prospective contractors shall complete electronic annual representations and certifications at http://orca.bpn.gov. Instead of submitting executed Representations and Certifications with bids and proposals, prospective contractors can choose to rely on their electronic versions, FAR 52.204-8, in order to comply with the requirements of any particular solicitation. However,...
More About: Information , Electronic , Database , Missing , Fatal

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