We've proposed for several years that the government should improve the debriefing process. There are too many "blind" protests, frivolous protests and far too many disappointed competitors thinking about leaving the government marketplace. Transparency is the answer. Thus, we have suggested that the government should release redacted versions of the written source selection award decision in response to a debriefing request. We also have counseled clients to recite the requirements of FAR 15.505 and 506 in their debriefing request letters and propound questions they want answered.
Finally, we have a giant step in the right direction. The National Defense Authorization Act (NDAA) for FY 2018 requires revisions to DFARS that require release of a redacted source selection award decision for awards exceeding $100 million ($10 million for small businesses). It's called a pilot program but it still is a big step forward. Contractors can ask questions within two business days of receiving the redacted award decision and the debriefing. The government must respond to the questions within five business days. When the answers are submitted, the five day requirement for a CICA stay begins.
There is nothing wrong with asking for the redacted source selection award decision in every case. We've been suggesting that for years. And there is no need for an aggressive redaction. Information relating to other competitors should be protected, but that's it. The government should not be ashamed of its decision and should stand behind it. We have the utmost confidence that enhanced disclosure of the reasons for the decision will head off "blind" protests (protests really based on lack of information) and frivolous protests (based on misguided notions of what happened).
You can use the word search application in the upper right hand of this post to search other posts on debriefings and protests.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
Sunday, December 24, 2017
Saturday, December 23, 2017
WHAT IF THE GOVERNMENT SHUTS DOWN?
When the government shuts down or restricts spending, some of all of the following things may take place: solicitations may be canceled; options may not be exercised; limitation of funds clauses will be used by agencies; payments may be delayed; only minimum orders may be placed under Indefinite Delivery/Indefinite Quantity (IDIQ) contracts; the changes clause may be used with greater frequency; the level of work may be reduced; the period of performance may be revised; the stop work order clause may be used; the suspension of work clause may be used; acceleration of performance may be ordered; and contracts may be terminated for default or convenience..
This is quite a list and most commentators believe government agencies will use any or all of these actions. So what should contractors do? The preparations guide is simple but difficult.
Any interference in the contractor's performance gives rise to a constructive change for the breach of the government's obligation to cooperate with the contractor and not interfere in its performance. Explicit contract clauses may be implicated. So, contractors should set up separate charge accounts for the financial effects of a government shutdown. The immediate effect may be a failure to pay or the inability to reach the contracting officer for direction. The contracting officer may issue a suspension or stop work order because she is concerned about the Anti-deficiency Act (discussed elsewhere in these blog posts).
There is no question that a government shutdown is a government act in its sovereign capacity and therefore an excusable delay. There should be no trouble extending schedules for delays caused by the government shutdown. However, with regard to claims arising under the Changes, Suspension or Stop Work clauses, the government may assert the sovereign act defense. We've written about this elsewhere in these blog posts. Simply put, the government can defend itself by showing the action was not undertaken to benefit it in its contractual capacity but rather was undertaken for the broad benefit of the public at large. There are arguments on both sides. The government will argue the shutdown was necessary for the public good. Contractors may argue the action was in part self serving and designed to further the government's interests in its contractual capacity.
So, what should a contractor do? Document the effects of the shutdown. Treat it as any other potential claim for equitable adjustment. Set up a separate charge account to collect the financial impact of the shutdown. Consider submitting a request for equitable adjustment or claim. But most importantly, try to keep in touch with the contracting officer and request direction. If she is unavailable, put in writing what you intend to do in response to the shutdown and ask for confirmation from the contracting officer.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
This is quite a list and most commentators believe government agencies will use any or all of these actions. So what should contractors do? The preparations guide is simple but difficult.
Any interference in the contractor's performance gives rise to a constructive change for the breach of the government's obligation to cooperate with the contractor and not interfere in its performance. Explicit contract clauses may be implicated. So, contractors should set up separate charge accounts for the financial effects of a government shutdown. The immediate effect may be a failure to pay or the inability to reach the contracting officer for direction. The contracting officer may issue a suspension or stop work order because she is concerned about the Anti-deficiency Act (discussed elsewhere in these blog posts).
There is no question that a government shutdown is a government act in its sovereign capacity and therefore an excusable delay. There should be no trouble extending schedules for delays caused by the government shutdown. However, with regard to claims arising under the Changes, Suspension or Stop Work clauses, the government may assert the sovereign act defense. We've written about this elsewhere in these blog posts. Simply put, the government can defend itself by showing the action was not undertaken to benefit it in its contractual capacity but rather was undertaken for the broad benefit of the public at large. There are arguments on both sides. The government will argue the shutdown was necessary for the public good. Contractors may argue the action was in part self serving and designed to further the government's interests in its contractual capacity.
So, what should a contractor do? Document the effects of the shutdown. Treat it as any other potential claim for equitable adjustment. Set up a separate charge account to collect the financial impact of the shutdown. Consider submitting a request for equitable adjustment or claim. But most importantly, try to keep in touch with the contracting officer and request direction. If she is unavailable, put in writing what you intend to do in response to the shutdown and ask for confirmation from the contracting officer.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
Friday, December 22, 2017
GET RID OF LPTA?
We never thought we would ever say this but forget FAR on best value and LPTA. Listen to the Government Accountability Office (GAO) and the Court of Federal Claims (COFC). As we have written over and over again, GAO and COFC have said it is illegal to turn a solicitation announcing a best value tradeoff analysis into a lowest price technically acceptable (LPTA) procurement without amending the solicitation to announce the change to the prospective competitors.
And we also have written about the confusing language in the regulation which apparently suggests to some contracting officers that there is a continuum along which they can slide in the source selection process which results in awarding on the basis of LPTA when the agency has stated in the solicitation that a tradeoff analysis will be performed. Again, and hopefully for the last time, best value, in the real world use of the language, means a tradeoff analysis will be performed. Best value and tradeoffs are synonymous. LPTA proscribes tradeoffs. They are two different animals. Read our prior discussions.
What often happens in the real world is that best value technical evaluations have been scored as equal (everybody gets a good) and then the award goes to the lowest priced proposal. No, there is nothing wrong with that if in fact the evaluations really are valid and defensible. However, equalization that is forced by a desire to get to the lowest price, is wrong. And we believe LPTA, whether properly announced or not, is no way to seek best value, to say nothing of the way in which LPTA inhibits innovation and competition for excellence.
If the government specifies in detail what it wants (the old detailed specification approach), LPTA, and for that matter FAR Part 14 sealed bidding, are appropriate. But if the government issues a performance specification and wants innovative solutions, best value tradeoffs should be used. Once that decision is made, it is improper to change the rules in the middle of the game without amending the solicitation and starting over. You'd think by now everyone would have this message. We'd like to see LPTA go. Best value is tradeoffs. LPTA is FAR Part 14.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
And we also have written about the confusing language in the regulation which apparently suggests to some contracting officers that there is a continuum along which they can slide in the source selection process which results in awarding on the basis of LPTA when the agency has stated in the solicitation that a tradeoff analysis will be performed. Again, and hopefully for the last time, best value, in the real world use of the language, means a tradeoff analysis will be performed. Best value and tradeoffs are synonymous. LPTA proscribes tradeoffs. They are two different animals. Read our prior discussions.
What often happens in the real world is that best value technical evaluations have been scored as equal (everybody gets a good) and then the award goes to the lowest priced proposal. No, there is nothing wrong with that if in fact the evaluations really are valid and defensible. However, equalization that is forced by a desire to get to the lowest price, is wrong. And we believe LPTA, whether properly announced or not, is no way to seek best value, to say nothing of the way in which LPTA inhibits innovation and competition for excellence.
If the government specifies in detail what it wants (the old detailed specification approach), LPTA, and for that matter FAR Part 14 sealed bidding, are appropriate. But if the government issues a performance specification and wants innovative solutions, best value tradeoffs should be used. Once that decision is made, it is improper to change the rules in the middle of the game without amending the solicitation and starting over. You'd think by now everyone would have this message. We'd like to see LPTA go. Best value is tradeoffs. LPTA is FAR Part 14.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
BEST VALUE TRADEOFFS VERSUS LPTA
We posted our brief comment on a Judge Bush opinion on September 28, 2011. We also referred to it when we wrote about another Judge Bush opinion on January 15, 2012. We now remind you to reread the best treatise published to date on best value procurements and it is found at http://www.uscfc.uscourts.gov/sites/default/files/opinions/firstline.pdf. This is the 79 page published opinion of Judge Bush in FirstLine Transportation Security, Inc. v. United States, U.S. Court of Federal Claims No. 11-375 C (September 27, 2011). Judge Bush covers everything you need to know about best value tradeoffs, proper source selection evaluations and decisions, proper use of evaluation factors, the impropriety of turning best value tradeoff procurements into lowest price, technically acceptable awards, and how best value decisions must be made and documented.
The price of the successful awardee was 16% lower than the protester FirstLine’s price. FirstLine’s technical ratings included 33 strengths and no weaknesses whereas the successful awardee had 1 strength and 1 weakness. Yet the SSEB concluded that the higher technical merit offered by FirstLine did not justify the price differential because the successful awardee offered "an acceptable level of technical competence". Judge Bush said this "had the effect of converting the best-value procurement contemplated under the RFP into one based on low price and mere technical acceptability." Essentially, the SSEB converted best value into LPTA. She went on to show that FAR 15.101-1 and 15.101-2(b)(1) contain entirely different procurement methods. Judge Bush then pointed out the SSEB was required under FAR 15.308 to properly document its tradeoff analysis, which it did not do. Although FAR 15.308 applies to the SSA, not the SSEB, since the SSA merely adopted the SSEB’s conclusion, the SSEB was obliged to meet the documentation requirements of FAR 15.308.
In documenting the tradeoff analysis, she said the SSEB report contained nothing more than conclusions based on flawed premises. The report did not compare the competing proposals in any meaningful way. It did not address the relative benefits and disadvantages of the competing proposals and it did not explain why a higher-priced, but technically superior proposal does not merit its higher price. "The government cannot simply declare that a price premium is not justified by a superior technical proposal without some substantive discussion of why that is so."
"Thus, when selecting a low-price technically inferior proposal in a best-value procurement where non price factors are more important than price, it is not sufficient for the government to simply state that a proposal’s technical superiority is not worth the payment of a price premium. Instead, the government must explain specifically why it does not warrant a premium."
Judge Bush also noted that, with only one minor exception, there is no evidence the SSEB even considered the relative weight of the evaluation factors which had been stated in descending order of importance with all other factors more important than price. The
successful awardee and the government argued the government was free to disregard the evaluation factors as long as the evaluation of the proposals was reasonable. We can almost hear her banging her gavel: "That is not the law."
Judge Bush then takes on the SSA’s decision. The decision making requirement is in FAR 15.308, which she quotes. First the SSA must reach an independent award decision based on a comparative assessment of the proposals against all of the criteria set forth in the solicitation. Then, the SSA must document an independent award decision. "Here, the SSA’s documentation is limited to her adoption of the SSEB report and her otherwise unsupported statement that [the successful awardee’s] proposal represents the best value to the government." Again, you can almost hear the gavel. The SSA must document the rationale for any business judgments and tradeoffs made or relied on by the SSA. The express language of FAR requires the SSA to exercise independent judgment and document that judgment. "Here, the SSA should have explained why the FirstLine proposal was not worth its higher price, notwithstanding its substantial technical superiority."
The remedy? Do it over and do it right. Injunction issued.
The lessons?
· Scrub the evaluation factors. Make sure they comply with FAR 15.304.
· Scrutinize the SSEB’s report to make sure it complies with FAR 15.305
· Scrutinize the SSA’s decision to make sure it complies with FAR 15.308.
· It’s against the law to take a best value tradeoff procurement and turn it into a LPTA.
We urge you to read Judge Bush’s opinion in FirstLine. It will tell you everything you need to know about how best value tradeoff procurements are supposed to work and it will tell you they are a far cry from LPTA’s.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
The price of the successful awardee was 16% lower than the protester FirstLine’s price. FirstLine’s technical ratings included 33 strengths and no weaknesses whereas the successful awardee had 1 strength and 1 weakness. Yet the SSEB concluded that the higher technical merit offered by FirstLine did not justify the price differential because the successful awardee offered "an acceptable level of technical competence". Judge Bush said this "had the effect of converting the best-value procurement contemplated under the RFP into one based on low price and mere technical acceptability." Essentially, the SSEB converted best value into LPTA. She went on to show that FAR 15.101-1 and 15.101-2(b)(1) contain entirely different procurement methods. Judge Bush then pointed out the SSEB was required under FAR 15.308 to properly document its tradeoff analysis, which it did not do. Although FAR 15.308 applies to the SSA, not the SSEB, since the SSA merely adopted the SSEB’s conclusion, the SSEB was obliged to meet the documentation requirements of FAR 15.308.
In documenting the tradeoff analysis, she said the SSEB report contained nothing more than conclusions based on flawed premises. The report did not compare the competing proposals in any meaningful way. It did not address the relative benefits and disadvantages of the competing proposals and it did not explain why a higher-priced, but technically superior proposal does not merit its higher price. "The government cannot simply declare that a price premium is not justified by a superior technical proposal without some substantive discussion of why that is so."
"Thus, when selecting a low-price technically inferior proposal in a best-value procurement where non price factors are more important than price, it is not sufficient for the government to simply state that a proposal’s technical superiority is not worth the payment of a price premium. Instead, the government must explain specifically why it does not warrant a premium."
Judge Bush also noted that, with only one minor exception, there is no evidence the SSEB even considered the relative weight of the evaluation factors which had been stated in descending order of importance with all other factors more important than price. The
successful awardee and the government argued the government was free to disregard the evaluation factors as long as the evaluation of the proposals was reasonable. We can almost hear her banging her gavel: "That is not the law."
Judge Bush then takes on the SSA’s decision. The decision making requirement is in FAR 15.308, which she quotes. First the SSA must reach an independent award decision based on a comparative assessment of the proposals against all of the criteria set forth in the solicitation. Then, the SSA must document an independent award decision. "Here, the SSA’s documentation is limited to her adoption of the SSEB report and her otherwise unsupported statement that [the successful awardee’s] proposal represents the best value to the government." Again, you can almost hear the gavel. The SSA must document the rationale for any business judgments and tradeoffs made or relied on by the SSA. The express language of FAR requires the SSA to exercise independent judgment and document that judgment. "Here, the SSA should have explained why the FirstLine proposal was not worth its higher price, notwithstanding its substantial technical superiority."
The remedy? Do it over and do it right. Injunction issued.
The lessons?
· Scrub the evaluation factors. Make sure they comply with FAR 15.304.
· Scrutinize the SSEB’s report to make sure it complies with FAR 15.305
· Scrutinize the SSA’s decision to make sure it complies with FAR 15.308.
· It’s against the law to take a best value tradeoff procurement and turn it into a LPTA.
We urge you to read Judge Bush’s opinion in FirstLine. It will tell you everything you need to know about how best value tradeoff procurements are supposed to work and it will tell you they are a far cry from LPTA’s.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
Thursday, December 21, 2017
THE PROPER USE OF LPTA
Many commentators have noticed an abuse of lowest price technically acceptable (LPTA) source selection. In fact, there is growing concern that a solicitation is called best value, the evaluation criteria actually say there will be a cost/technical tradeoff analysis, but in practice, the source selection becomes LPTA. We'd like to set the record straight on the proper use of LPTA and call upon contracting officers to pay close attention to FAR Part 15 in writing evaluation criteria and in source selection practices.
Look carefully at FAR 15.101. There is a best value "continuum". The relative importance of cost or price may vary. May vary. Today's environment of budget austerity does not change the rule. If requirements are clearly definable and the risk of unsuccessful performance is minimal, cost or price may properly become the predominant source selection discriminator (LPTA okay). Conversely, the less definitive the requirement, the more development work is required or the greater the performance risk, the more technical excellence or past performance should come into play (LPTA not an option).
Then look very carefully at the language in FAR 15.101-2(a) dealing with LPTA. LPTA should only be used when best value is expected to result from choosing the lowest priced technically acceptable proposal. So harken back to the best value continuum. Is the risk of successful performance minimal? Will you get "best value" by ignoring the tradeoff process? If not, LPTA is proscribed. We'll wager that careful and close attention to this language in FAR 15.101 will result is fewer LPTA procurements. Again, budget constraints have not amended FAR. We believe that rules are necessary in public acquisition actions. The rules are there for a purpose and they should not be ignored.
Finally, and equally importantly, read FAR 15.304 and 305 carefully. The evaluation criteria must be clearly stated. Clearly. Too often we have seen evaluation criteria which are patently unclear. Even more importantly, they are to be rigorously adhered to in the source selection process. No deviations. That means, source selection officials are not permitted - not permitted - to change best value tradeoff criteria to LPTA (without a redo). In a recent example, LPTA was used, in our opinion, to include risky companies in what turned into a bidding war.
Contractors aggrieved by the government's failure to follow the regulation are not without remedy. The rules are meant to be enforced. Austerity does not waive procurement regulations. Cutting corners to achieve cost savings is not permitted. Unless or until Congress changes the system of rules and regulations, everyone - no exceptions - must follow them.
bill@spriggsconsultingservices.com. www.spriggsconsultingservices.com bill@spriggslawgroup.com
Look carefully at FAR 15.101. There is a best value "continuum". The relative importance of cost or price may vary. May vary. Today's environment of budget austerity does not change the rule. If requirements are clearly definable and the risk of unsuccessful performance is minimal, cost or price may properly become the predominant source selection discriminator (LPTA okay). Conversely, the less definitive the requirement, the more development work is required or the greater the performance risk, the more technical excellence or past performance should come into play (LPTA not an option).
Then look very carefully at the language in FAR 15.101-2(a) dealing with LPTA. LPTA should only be used when best value is expected to result from choosing the lowest priced technically acceptable proposal. So harken back to the best value continuum. Is the risk of successful performance minimal? Will you get "best value" by ignoring the tradeoff process? If not, LPTA is proscribed. We'll wager that careful and close attention to this language in FAR 15.101 will result is fewer LPTA procurements. Again, budget constraints have not amended FAR. We believe that rules are necessary in public acquisition actions. The rules are there for a purpose and they should not be ignored.
Finally, and equally importantly, read FAR 15.304 and 305 carefully. The evaluation criteria must be clearly stated. Clearly. Too often we have seen evaluation criteria which are patently unclear. Even more importantly, they are to be rigorously adhered to in the source selection process. No deviations. That means, source selection officials are not permitted - not permitted - to change best value tradeoff criteria to LPTA (without a redo). In a recent example, LPTA was used, in our opinion, to include risky companies in what turned into a bidding war.
Contractors aggrieved by the government's failure to follow the regulation are not without remedy. The rules are meant to be enforced. Austerity does not waive procurement regulations. Cutting corners to achieve cost savings is not permitted. Unless or until Congress changes the system of rules and regulations, everyone - no exceptions - must follow them.
bill@spriggsconsultingservices.com. www.spriggsconsultingservices.com bill@spriggslawgroup.com
THE ALMOST EQUAL ACCESS TO JUSTICE ACT
You may be familiar with the Equal Access to Justice Act. It is specifically designed to help small businesses. Actually, its more descriptive name would be the Almost Equal Access to Justice Act. Here is why.
The Act says the "prevailing party" may recover its fees and expense in an action against the United States unless the position of the United States was substantially justified or special circumstances make an award unjust. The applicant must be eligible for an award based on its net worth ($2M for individuals and $7M for companies). The applicant is the prevailing party if it succeeds on any significant issue in litigation which achieves some of the benefit it sought in bringing the action in the first place. Once the applicant crosses that threshold, the amount of recovery may be reduced depending on the degree of success.
Fees and expenses under the Act may be denied totally if the position of the United States was "substantially justified". The tribunal deciding the application must make a judgment call whether the government's position throughout the dispute had a reasonable basis in both law and fact. The determination is made on a case by case basis. Thus, since the decision is based on subjective judgment, it really is another test of what is seen by the eyes of the beholder.
Finally, under the Act, a $125 per hour cap applies to attorneys' fees unless the applicant can show an increase in the cost of living or a special factor, such as where the limited availability of qualified attorneys for the proceeding involved justifies a higher fee. Good luck with that one. Special factors are very rarely applied and one tribunal recently applied the cost of living formulas to arrive at a whopping $155 per hour. (The $125 rate was set in 1996). How many experienced lawyers charge $155 per hour?
The Act needs to be amended to remove the "substantially justified" takeaway and the hourly rate needs to be increased. Pure and simple. Either that or it should be renamed, perhaps, the Almost Equal Access to Justice Act.
The Act says the "prevailing party" may recover its fees and expense in an action against the United States unless the position of the United States was substantially justified or special circumstances make an award unjust. The applicant must be eligible for an award based on its net worth ($2M for individuals and $7M for companies). The applicant is the prevailing party if it succeeds on any significant issue in litigation which achieves some of the benefit it sought in bringing the action in the first place. Once the applicant crosses that threshold, the amount of recovery may be reduced depending on the degree of success.
Fees and expenses under the Act may be denied totally if the position of the United States was "substantially justified". The tribunal deciding the application must make a judgment call whether the government's position throughout the dispute had a reasonable basis in both law and fact. The determination is made on a case by case basis. Thus, since the decision is based on subjective judgment, it really is another test of what is seen by the eyes of the beholder.
Finally, under the Act, a $125 per hour cap applies to attorneys' fees unless the applicant can show an increase in the cost of living or a special factor, such as where the limited availability of qualified attorneys for the proceeding involved justifies a higher fee. Good luck with that one. Special factors are very rarely applied and one tribunal recently applied the cost of living formulas to arrive at a whopping $155 per hour. (The $125 rate was set in 1996). How many experienced lawyers charge $155 per hour?
The Act needs to be amended to remove the "substantially justified" takeaway and the hourly rate needs to be increased. Pure and simple. Either that or it should be renamed, perhaps, the Almost Equal Access to Justice Act.
Wednesday, December 20, 2017
WHAT A CONTRACT MANAGER DOES
In a 2011 post we asked who is your contract manager? We explained why you need one and listed most of the things a contract manager does. You are in the most highly regulated industry in the world. The procurement regulations are more voluminous and complicated than the U.S. Tax Code. What does that tell you?
Not all contract managers are lawyers. But in government contracting and subcontracting, your contract manager should be a lawyer well schooled in public contract law. You need someone who can navigate the rigorous labyrinth of laws and regulations. Or, be sure to hire a contract manager who has a contract management lawyer at her fingertips. Yes, a contract management lawyer, not just any lawyer. Your team needs contract management with legal expertise and talent steeped in government contracts and subcontracts experience. Whether it's getting a contract, keeping it, or making a profit on it, you need complete contract management coverage.
What does a contract manager do? Here's a list (not all inclusive):
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
Not all contract managers are lawyers. But in government contracting and subcontracting, your contract manager should be a lawyer well schooled in public contract law. You need someone who can navigate the rigorous labyrinth of laws and regulations. Or, be sure to hire a contract manager who has a contract management lawyer at her fingertips. Yes, a contract management lawyer, not just any lawyer. Your team needs contract management with legal expertise and talent steeped in government contracts and subcontracts experience. Whether it's getting a contract, keeping it, or making a profit on it, you need complete contract management coverage.
What does a contract manager do? Here's a list (not all inclusive):
- Knows the statutes, regulations and case law thoroughly and in depth;
- Know, writes and speaks the English language clearly and concisely;
- Reviews solicitation documents for clarity and legal sufficiency;
- Assures proposals are well written and meet solicitation and regulation requirements;
- Handles discussions, clarifications and negotiations of proposals;
- Handles debriefings and protests;
- Monitors performance and assures compliance with all contract terms and conditions and regulation requirements;
- Handles all contract interpretation issues and questions about contract requirements and procurement regulations;
- Investigates, identifies, analyzes and solves all contractual performance issues;
- Keeps a daily diary of contract performance issues and communications with the contracting officer;
- Handles all requests for equitable adjustment, claims, cure notices, terminations and disputes;
- Handles all communications with the contracting officer;
- Prepares, reviews and signs all contractual documents;
- Reads all publications relating to acquisition news and keep current on all statutes, regulations and case law; and
- Handles contract closeout.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
Tuesday, December 19, 2017
MODEL REA SPONSORSHIP CLAUSE
SPONSORSHIP OF
REQUESTS FOR EQUITABLE ADJUSTMENT (REA)
Subcontractor will give Contractor a fully supported
written REA within five (5) years after the REA accrues but in no event later
than final payment under this Agreement or Subcontractor shall be barred from
any remedy for such REA.
Subcontractor will cooperate fully with Contractor in
prosecuting the REA against the Owner and will be bound by the outcome unless
Contractor does not afford Subcontractor a reasonable opportunity to
participate in the resolution of the REA or Contractor, having determined to
discontinue its own prosecution of the REA, does not afford Subcontractor an
opportunity to continue to prosecute the REA in Contractor’s name.
Contractor shall cooperate with Subcontractor in
prosecuting the REA against the Owner but Contractor shall have the sole right
to make final decisions on prosecution and settlement of the REA.
Subcontractor shall submit with the REA a certification
to Contractor, signed by an authorized representative of the Subcontractor that
the claim is made in good faith, the supporting date are accurate and complete
to the best of the signatory’s knowledge and belief, the amount requested
accurately reflects the contract adjustment for which Subcontractor believes
the U.S. Government is liable and the signatory is authorized to certify the
REA on behalf of Subcontractor.
Subcontractor indemnifies and holds Contractor harmless from damages,
costs (including attorney fees) and other liabilities arising from any breach
of such certification or any violation of law against misrepresentation, fraud
or false statements.
Contractor and Subcontractor will each bear its own costs
of prosecuting the REA.
Subcontractor shall proceed diligently with performance
of this Agreement pending final resolution of any REA arising under this
agreement.
This clause applies to any REA, claim or appeal arising
under or related to this subcontract agreement.
MODEL SUBCONTRACT DISPUTES CLAUSE
Disputes
(a) Any dispute that arises under or is
related to this Agreement and which relates to a matter that gives the Prime
Contractor recourse against the U.S. Government under the Prime Contract or
applicable law shall be resolved in accordance with the Disputes clause of the
prime contract as follows:
(1) Subcontractor will give Prime
Contractor a fully supported written claim concerning any such dispute within
five (5) years after the claim accrues, but in no event later than final
payment under this Agreement, or Subcontractor shall be barred from any remedy
for such claim.
(2) Subcontractor will cooperate fully
with Prime Contractor in prosecuting any such dispute and will be bound by the
outcome unless: (i) Prime Contractor does not afford Subcontractor a reasonable
opportunity to participate in the resolution of the dispute, (ii) without
Subcontractor's written consent, Prime Contractor settles or takes other action
to prejudice Subcontractor's rights concerning the dispute, or (iii) Prime Contractor,
having determined to discontinue its own prosecution of the dispute, does not afford
Subcontractor an opportunity to continue to prosecute the dispute in Prime
Contractor's name;
(3) If Prime Contractor and
Subcontractor agree to prosecute Subcontractor's claim under this subparagraph
(a), for any such claim for more than $100,000, Subcontractor shall submit with
the claim a certification to Prime Contractor and to the contracting officer
for the prime contract, signed by an authorized representative of the Subcontractor
that: (i) the claim is made in good faith; (ii) the supporting data are
accurate and complete to the best of the signatory's knowledge and belief;
(iii) the amount requested accurately reflects the contract adjustment for
which Subcontractor believes the U.S. Government is liable; and (iv) the
signatory is duly authorized to certify the claim on behalf of Subcontractor.
Furthermore, Subcontractor shall indemnify and hold Prime Contractor harmless
from damages, judgments, (including reasonable attorney's fees), and other
liabilities arising from any breach of such certification or any violation of
Section 5 of the Contracts Disputes Act of 1978 (4I U.S.C. 604) or any
violation of costs common law or statutory prohibitions against
misrepresentations, fraud or false statements;
(4) Prime Contractor and Subcontractor
will each bear their own costs of prosecuting any such dispute;
(5) If the parties do not agree to
proceed in accordance with this paragraph (a), the dispute will be decided in
accordance with subparagraph (b) hereof;
(6) Nothing in this Agreement Grants Subcontractor
a direct right of action against the United States under the Disputes clause of
the prime contract, except insofar as certain intellectual property clauses
flowed down from the prime contract may so state or be construed to so provide.
(b) Any other dispute that arises under
or is related to this Agreement, as well as any dispute that the parties to do
agree to resolve according to the procedures set forth in the foregoing
subparagraph (a), may be decided by a court of competent agree that
jurisdiction and venue lies exclusively in the courts of the Commonwealth of Virginia.
(c) The Subcontractor shall proceed
diligently with performance of this Agreement, pending final resolution of any
request for relief, claim, appeal, or action arising under or relating to the Agreement.
Friday, December 15, 2017
SUSPENSION VERSUS CHANGES CLAUSE
The Suspension clause
says in pertinent part: “However, no
adjustment shall be made under this clause . . . for which an equitable
adjustment is provided for or excluded under any other term or condition of
this contract.” FAR 52.243-4, Changes,
says the contracting officer may make changes in the work including changes in
the method or manner of performance of the work.
In addition, any
other order shall be treated as a change provided proper notice is given by the
contractor to the contracting officer.
The Changes clause
provides for an equitable adjustment in the cost of or the time required for
performance of any part of the work under the contract, whether changed or
not. The contracting officer is obliged
to make the equitable adjustment and modify the contract in writing.
Moreover, there is a
time-honored constructive change based on the duty of the government of good
faith and fair dealing. Under this
constructive change theory, the government may breach its duty to cooperate and
to not interfere in the contractor’s performance. Interference in performance thus is
compensable under the Changes clause.
In conclusion, the
Changes clause takes precedence over the Suspension clause based on the clear
language in the Suspension clause which precludes action under the Suspension
clause when the Changes clause is also present in the contract.
Thursday, November 16, 2017
THE GOVERNMENT'S DUTY TO COOPERATE
It's time we reminded ourselves of the government's duty to cooperate. The government bears a specific duty to cooperate with the contractor when some action by the government is necessary for contract performance. This duty is implied in every government contract. We addressed this duty briefly in our post recently on the costs of delay in construction contracts. The government's obligation, however, applies to all government contracts.
Perhaps the duty is articulated best in a old case from the Armed Services Board of Contract Appeals (ASBCA). In G.W. Galloway, ASBCA Nos. 16656, 16975, 73-2 BCA paragraph 10,207, the Board said:
The duty to cooperate includes the duty to communicate and disclose information vital to contract performance.
Good contract management requires the contractor to importune the government, if necessary, to obtain clear directions when problems arise such as government caused delays and constructive changes. The duty works both ways. The contractor has the duty to notify the government of the performance restricting occurrence and the government has the duty to "do whatever is reasonably necessary on its part to enable the contractor to perform."
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
Perhaps the duty is articulated best in a old case from the Armed Services Board of Contract Appeals (ASBCA). In G.W. Galloway, ASBCA Nos. 16656, 16975, 73-2 BCA paragraph 10,207, the Board said:
This requirement is an integral segment of the broadly recognized rule applicable to all government contracts which imposes an implied obligation on the government that it must do nothing that will interfere with the contractor in the performance of the contract. [citation omitted] In addition to the negative obligation of noninterference, this board has recognized an implied affirmative obligation on the part of the government that it will do whatever is reasonably necessary on its part to enable the contractor to perform.73-2 BCA at 48,499,
The duty to cooperate includes the duty to communicate and disclose information vital to contract performance.
Good contract management requires the contractor to importune the government, if necessary, to obtain clear directions when problems arise such as government caused delays and constructive changes. The duty works both ways. The contractor has the duty to notify the government of the performance restricting occurrence and the government has the duty to "do whatever is reasonably necessary on its part to enable the contractor to perform."
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
Wednesday, November 15, 2017
DELAY COSTS ON CONSTRUCTION CONTRACTS
In the October 2017 case of MW Builders v. United States, the Court of Federal Claims held that the government's attempt to shift its contractual responsibility to execute utility agreements breached the government's implied duty of good faith and fair dealing and gave rise to a compensable delay claim under the Changes clause. The court said:
"The duty of good faith and fair dealing includes 'the duty not to interfere with the other party's performance and not to destroy the reasonable expectations of the other party regarding the fruits of the contract.' Centrex Corp. f. United States, 395 F.3d 1285, 1304 (Fed. Cir. 2005). 'Both the duty not to hinder and the duty to cooperate are aspects of the duty of good faith and fair dealing.' Metcalf Construction Co. v. United States, 742 F.3d 984, 991 (Fed. Cir. 2014)."
Suspension of performance for time to execute utility agreements for which the government is responsible is a change under the Changes clause in that it changes the manner of performance of the work. FAR 52.243-4(a)(2). It also is a government caused delay of work and an admission the government has failed in its implied by law duty not to interfere with the contractor's performance.
The contractor should prepare a request for equitable adjustment (REA) for reasonable costs associated with demobilization, standby, remobilization and acceleration costs and profit on those costs as a result of the suspension and resumption of performance after the period of suspension. Notice should be given under FAR 52.243-4(b) of the change and the right to the REA should be asserted as required by FAR 52-243-4(e). Cost projections should be included and additional time to further refine the cost estimate should be requested. FAR 52-243-4(e).
Among the types of costs allowed are unabsorbed overhead and G & A. Calculating these costs requires the services of an expert. However, the formula used for government contracts, know as the Eichleay formula, can be summarized as follows:
Divide total contract billings by total company billings times total overhead or G &A (fixed) for the period of contract performance to arrive at allocable overhead for the project. Then, arrive at daily allocable overhead or G & A by dividing allocable overhead by the number of days of actual contract performance including delay days. Then multiply the daily allocable overhead or G & A costs by the number of compensable delay days to arrive at the unabsorbed overhead or G & A cost for the period of delay and include the calculation in the REA.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
"The duty of good faith and fair dealing includes 'the duty not to interfere with the other party's performance and not to destroy the reasonable expectations of the other party regarding the fruits of the contract.' Centrex Corp. f. United States, 395 F.3d 1285, 1304 (Fed. Cir. 2005). 'Both the duty not to hinder and the duty to cooperate are aspects of the duty of good faith and fair dealing.' Metcalf Construction Co. v. United States, 742 F.3d 984, 991 (Fed. Cir. 2014)."
Suspension of performance for time to execute utility agreements for which the government is responsible is a change under the Changes clause in that it changes the manner of performance of the work. FAR 52.243-4(a)(2). It also is a government caused delay of work and an admission the government has failed in its implied by law duty not to interfere with the contractor's performance.
The contractor should prepare a request for equitable adjustment (REA) for reasonable costs associated with demobilization, standby, remobilization and acceleration costs and profit on those costs as a result of the suspension and resumption of performance after the period of suspension. Notice should be given under FAR 52.243-4(b) of the change and the right to the REA should be asserted as required by FAR 52-243-4(e). Cost projections should be included and additional time to further refine the cost estimate should be requested. FAR 52-243-4(e).
Among the types of costs allowed are unabsorbed overhead and G & A. Calculating these costs requires the services of an expert. However, the formula used for government contracts, know as the Eichleay formula, can be summarized as follows:
Divide total contract billings by total company billings times total overhead or G &A (fixed) for the period of contract performance to arrive at allocable overhead for the project. Then, arrive at daily allocable overhead or G & A by dividing allocable overhead by the number of days of actual contract performance including delay days. Then multiply the daily allocable overhead or G & A costs by the number of compensable delay days to arrive at the unabsorbed overhead or G & A cost for the period of delay and include the calculation in the REA.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
Tuesday, October 17, 2017
HOW TO PREPARE FOR A DEBRIEFING
First, read FAR 15.505 and 15.506 carefully. You must submit a written request for a debriefing within 3 days after receipt of notice of exclusion from the competition or after the date on which you have been notified of contract award.
Next, be aware that the regulations list what, at a minimum, must be covered at or in (the debriefing can be done in writing) the debriefing. For pre-award debriefings, the list is short but includes reasonable responses to relevant questions about whether the source selection procedures in the solicitation, the regulations and "applicable authorities" (case law) were followed. Information about other offerors is prohibited in pre-award debriefings.
Post award debriefings require the government to provide the contractor the following information:
What are the questions you should ask? Put them in your written request for the debriefing. Many, if not most debriefings these days are in writing (an unfortunate development). So, you must include the questions up front. In fact, remind the government in your written request that it is mandatory that the government follow the list of required items in its debriefing.
The evaluation factors are of paramount importance. Fashion your questions around the evaluation criteria to elicit responses which address whether the evaluation criteria were in fact followed. Failure to follow those factors is a primary ground for protest. Ask questions about whether the procedures in FAR 15.304, 305, 306, 307 and 308 were followed. Tailor your questions and be as specific as possible based on your best intelligence regarding what apparently happened during the pre-award process.
Above all, treat the debriefing as seriously as you did your proposal. Press for a full and fair debriefing including, most importantly, answers to your well thought out questions.
We've written several articles about debriefings, mostly suggesting improvements in the process. You can find them by entering "debriefing" in the Google search box in the upper left hand corner. One thing we feel strongly about is the need for the government to release the source selection decision to the contractor requesting the debriefing, preferably before the debriefing. We continue to believe this would make the debriefing meaningful and probably reduce frivolous or "blind" protests.
This just in:
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
Next, be aware that the regulations list what, at a minimum, must be covered at or in (the debriefing can be done in writing) the debriefing. For pre-award debriefings, the list is short but includes reasonable responses to relevant questions about whether the source selection procedures in the solicitation, the regulations and "applicable authorities" (case law) were followed. Information about other offerors is prohibited in pre-award debriefings.
Post award debriefings require the government to provide the contractor the following information:
- The government's evaluation of the significant weaknesses or deficiencies in your proposal;
- The overall evaluated price (including unit prices) and technical rating of the successful offeror and your proposal and your past performance information;
- The overall ranking of all offerors;
- A summary of the rationale for award;
- For commercial buys, the make and model of the item proposed by the successful offeror;
- Reasonable responses to relevant questions about whether the source selection procedures in the solicitation, the regulations and relevant case law were followed.
What are the questions you should ask? Put them in your written request for the debriefing. Many, if not most debriefings these days are in writing (an unfortunate development). So, you must include the questions up front. In fact, remind the government in your written request that it is mandatory that the government follow the list of required items in its debriefing.
The evaluation factors are of paramount importance. Fashion your questions around the evaluation criteria to elicit responses which address whether the evaluation criteria were in fact followed. Failure to follow those factors is a primary ground for protest. Ask questions about whether the procedures in FAR 15.304, 305, 306, 307 and 308 were followed. Tailor your questions and be as specific as possible based on your best intelligence regarding what apparently happened during the pre-award process.
Above all, treat the debriefing as seriously as you did your proposal. Press for a full and fair debriefing including, most importantly, answers to your well thought out questions.
We've written several articles about debriefings, mostly suggesting improvements in the process. You can find them by entering "debriefing" in the Google search box in the upper left hand corner. One thing we feel strongly about is the need for the government to release the source selection decision to the contractor requesting the debriefing, preferably before the debriefing. We continue to believe this would make the debriefing meaningful and probably reduce frivolous or "blind" protests.
This just in:
The Senate
version of the National Defense Authorization Act imposes new requirements for
debriefings for unsuccessful offerors. If enacted, the bill would direct DoD to
issue new regulations requiring contracting offices to:
·
Disclose the agency’s written source selection award
determination, redacted as necessary
·
Provide a combined written and oral debriefing for all contract
awards and task or delivery orders valued at $10 million or higher
·
Provide outside counsel the option to access an unredacted copy of
the source selection award determination and the supporting agency record for
contract awards and task or delivery orders valued at $10 million or higher
·
Allow unsuccessful offerors to submit additional, follow-up
questions related to the debriefing
The bill also
would require GAO to issue DoD-related protest decisions within 65 days,
instead of the current 100 days.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
Tuesday, June 20, 2017
HOW TO CONVERT THE REA TO A CLAIM
HOW TO CONVERT
A REQUEST FOR EQUITABLE ADJUSTMENT (REA) TO A CLAIM
1.
Send a letter to the contracting officer which either
attaches the REA or refers to it and incorporates it by reference.
2.
In the letter, refer to the REA and state it is
incorporated by reference as part of the letter.
3.
In the letter say that you are converting the REA to a
claim pursuant to the Contract Disputes Act of 1978 and FAR Parts 2.101 and
33.201 through 214.
4.
In the letter, state that you request a final decision
of the contracting officer as required by the Contract Disputes Act of 1978 and
FAR 33.211.
5.
Certify the claim (if it exceeds $100,000.00) as
follows: I certify that the claim is made
in good faith, that the supporting data are accurate and complete to the best
of my knowledge and belief; that the amount requested accurately reflects the
contract adjustment for which the contractor believes the government is liable;
and that I am duly authorized to certify the claim on behalf of the
contractor. Do not deviate from this
language found in FAR 33.207(c).
6.
Be sure to state a sum certain as the amount of the
claim.
7.
Point out that interest runs on the claim from the time
of its receipt. FAR 33.208.
8.
Be sure to request a final decision as required by FAR
33.211.
9.
If represented by counsel, ask the contracting officer
to advise you of the contact information for the contracting officer’s legal
representative so your counsel may make contact.
10.
Indicate a willingness to participate in Alternative
Dispute Resolution (ADR) such as mediation to resolve the dispute.
11. Appeal the decision (or the failure to render one) to the appropriate Board.
Sunday, April 30, 2017
THE REAL ART OF NEGOTIATION
There is a lot of fiction about how to negotiate settlements of government contract claims. In reality, there are a few principles which are immutable, unassailable and nearly universal in application. Here are my favorite few.
Bargaining position. Know your bargaining position and enhance it. Don't enhance it by bluffing (see below). Know the opposing party's strengths and weaknesses and be equally circumspect about your own. Get outside help. Listen to others about the relative positions. Set a realistic goal based on your position. Don't negotiate if your position is demonstrably weaker than that of the other side.
Preparation. Prepare, prepare, prepare. Hire experts to help. You can significantly increase your bargaining position by intensive preparation. Exhaust this one. The side that is the best prepared will always come out with a good result. To win the battle of the experts, document, document, document. Rehearse, do mock negotiations and hire a mediator to critique your approach.
Bluffing. Don't. Two problems. You probably are lying and the other side most likely will think so. And, the other side may well call your bluff or completely ignore it as if you have not made it. Taking an extreme position is nonsense. A reasonable person on the other side will just ignore you. You must have integrity and nothing kills that like bluffing.
Splitting the difference. This is time honored. But there is a time and a place for it. Always split the difference when the positions are close. Never even think about it when the positions are far apart. This is always the last resort. Offering to split the difference must be made when the negotiations have been exhausted.
Honesty and sincerity. At the foundation of the real art of the deal is a negotiator who has a reputation for honesty and sincerity. You have to be believable. The other side must know that you tell the truth and that you are candid and forthcoming. This also means you are not given to game playing and tricks commonly associated with used car salesmen.
In the end, success may well include other factors. But you are unlikely to succeed without following these five fundamental principles.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
Bargaining position. Know your bargaining position and enhance it. Don't enhance it by bluffing (see below). Know the opposing party's strengths and weaknesses and be equally circumspect about your own. Get outside help. Listen to others about the relative positions. Set a realistic goal based on your position. Don't negotiate if your position is demonstrably weaker than that of the other side.
Preparation. Prepare, prepare, prepare. Hire experts to help. You can significantly increase your bargaining position by intensive preparation. Exhaust this one. The side that is the best prepared will always come out with a good result. To win the battle of the experts, document, document, document. Rehearse, do mock negotiations and hire a mediator to critique your approach.
Bluffing. Don't. Two problems. You probably are lying and the other side most likely will think so. And, the other side may well call your bluff or completely ignore it as if you have not made it. Taking an extreme position is nonsense. A reasonable person on the other side will just ignore you. You must have integrity and nothing kills that like bluffing.
Splitting the difference. This is time honored. But there is a time and a place for it. Always split the difference when the positions are close. Never even think about it when the positions are far apart. This is always the last resort. Offering to split the difference must be made when the negotiations have been exhausted.
Honesty and sincerity. At the foundation of the real art of the deal is a negotiator who has a reputation for honesty and sincerity. You have to be believable. The other side must know that you tell the truth and that you are candid and forthcoming. This also means you are not given to game playing and tricks commonly associated with used car salesmen.
In the end, success may well include other factors. But you are unlikely to succeed without following these five fundamental principles.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
Monday, April 24, 2017
RULES OF CONTRACT INTERPRETATION
The first rule of contract interpretation is to examine the
plain meaning of contract language giving reasonable meaning to all parts of
the contract. LAI Services, Inc. v. Gates, 573 F.3d 1306, 1314 (Fed. Cir.
2009). See also, Coast Fed. Bank, FSB v. United States, 323 F.3d 1035 (Fed. Cir.
2003); Philadelphia Authority for
Industrial Development v. United States, 114 Fed. Cl. 519 (2014).
A contract must be construed in its entirety “so as to
harmonize and give meaning to all its provisions.” Thanet
Corp. v. United States, 219 Ct. Cl. 75, 82, 591 F.2d 629, 633 (1979). The entire contract clause, not just a
portion of it, must be analyzed to ascertain the clear meaning of the
clause. See, e.g., Tri-O, Inc. v. United States, 28 Fed. Cl. 463 (1993).
When construing a contract, the rule is to read the contract
as a whole so as to give meaning to each of its provisions. Hol-Gar
Mfg. Corp v. United States, 351 F.2d 972 (Ct. Cl. 1965). Proper contract interpretation gives meaning
to all provisions and makes sense. McAbee Constr. Inc. v. United States, 97
F.3d 1431, 1435 (Fed. Cir. 1996). Proper
contract interpretation requires a review of all relevant language in a
contract schedule to resolve the meaning of language in the specification. Boyajian
v. United States, 423 F.2d 1231 (Ct. Cl. 1970). The rules on contract interpretation seek to
avoid ambiguity. C. Sanchez and Son, Inc. v. United States, 6 F.3d 1539, 1543 (Fed
Cir. 1993); Beta Systems, Inc. v. United
States, 838 F.2d 1179, 1185 (Fed. Cir. 1988).
If the words are ambiguous, the second step in contract
interpretation is to examine the conduct of the parties at the time to
determine if that conduct resolves the ambiguity. If so, the ambiguity is resolved in favor of
the party arguing for that meaning. KDI Development, Inc. v. Johnson, 495
Fed. Appx. 84 (Fed. Cir. 2012). The
intended interpretation of the parties often can be gleaned from their actions
prior to the time the dispute arose.
Evidence of this behavior has been given controlling weight. Macke
Co. v. United States, 467 F.2d 1323 (Ct. Cl. 1972).
If the language is latently ambiguous, and the contractor’s
interpretation is reasonable, the contractor’s interpretation will prevail over
the one advanced by the government. Input/Output Tech, Inc. v. United States,
Fed. Cl. 65, 72-73 (Ct. Cl. 1999). A
latent ambiguity usually becomes evident when two conflicting interpretations
appear reasonable. Id. The contractor is not
required to prove the ambiguity. If the contractor’s interpretation is
reasonable, the government’s reasonable alternative interpretation demonstrates
the ambiguity which results in interpretation against the government. United
States v. Turner Constr. Co., 819 F.2d 283 (Fed. Cir. 1987).bill@spriggsconsultingservices.com
Monday, April 17, 2017
HOW TO WRITE A REQUEST FOR EQUITABLE ADJUSTMENT REVISITED
Since we wrote How to Write a Request for Equitable adjustment, June 24, 2012, the note has received 7,427 page views. There is no regulatory guidance on what needs to go into this document. There is, however, a 6 page outline of what can be called the anatomy of a request for equitable adjustment.
I have offered to send this outline to anyone who asks. Sadly, I must apologize to those of you who have asked and I have not responded. The best way to contact me is to send an email to bill@spriggsconsultingservices.com and I will send you the outline.
Do not make your presentation a long discussion of legal theories in search of the facts. Also, do not tell a long story in search of a theory. Keep the legal theories in mind, but concentrate on a logical, detailed statement of facts with supporting documentation.
And I again say I am sorry for those who missed getting the outline. Send me an email and I will respond with the anatomy of a request for equitable adjustment.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
I have offered to send this outline to anyone who asks. Sadly, I must apologize to those of you who have asked and I have not responded. The best way to contact me is to send an email to bill@spriggsconsultingservices.com and I will send you the outline.
Do not make your presentation a long discussion of legal theories in search of the facts. Also, do not tell a long story in search of a theory. Keep the legal theories in mind, but concentrate on a logical, detailed statement of facts with supporting documentation.
And I again say I am sorry for those who missed getting the outline. Send me an email and I will respond with the anatomy of a request for equitable adjustment.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
LPTA AND PAST PERFORMANCE EVALUATIONS
Past performance need not be evaluated in lowest price, technically acceptable (LPTA) procurements if the contracting officer documents the reason past performance is not an appropriate evaluation factor. If the contracting officer decides to use past performance as an evaluation factor in LPTA selection, a comparative assessment does not apply. FAR 15.101-2(b)(1).
If the contracting officer determines that a small business' past performance is not acceptable the issue must be referred to the Small Business Administration for a Certificate of Competency in accordance with FAR subpart 19.6.
In our experience, technical acceptability in LPTA procurements have been pass/fail determinations. A comparative analysis means the proposals will be rated on some type of scale, relative to each other. However, LPTA most often is used to determine whether the proposal is acceptable or not and part of the technical evaluation includes past performance acceptability.
Past performance has been considered by GAO to be a responsibility factor. GAO views past performance as the ability of the contractor to perform the contract. Responsibility factors may be used as technical evaluation factors only when comparative evaluation is used. GAO has cautioned an agency that it cannot disqualify a small business under the guise of using relative assessment of responsibility technical factors.
If there is no real comparative evaluation, and the assessment is based on pass/fail, the decision really is one of nonresponsibility. An "unacceptable" rating on a technical criterion involving past performance really is a determination of nonresponsibility. If a small business' past performance is not acceptable, then under FAR 15.101-2(b)(1), the matter must be referred to the Small Business Administration for a Certificate of Competency. GAO consistently views past performance as a responsibility criterion where it is used as pass/fail.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
If the contracting officer determines that a small business' past performance is not acceptable the issue must be referred to the Small Business Administration for a Certificate of Competency in accordance with FAR subpart 19.6.
In our experience, technical acceptability in LPTA procurements have been pass/fail determinations. A comparative analysis means the proposals will be rated on some type of scale, relative to each other. However, LPTA most often is used to determine whether the proposal is acceptable or not and part of the technical evaluation includes past performance acceptability.
Past performance has been considered by GAO to be a responsibility factor. GAO views past performance as the ability of the contractor to perform the contract. Responsibility factors may be used as technical evaluation factors only when comparative evaluation is used. GAO has cautioned an agency that it cannot disqualify a small business under the guise of using relative assessment of responsibility technical factors.
If there is no real comparative evaluation, and the assessment is based on pass/fail, the decision really is one of nonresponsibility. An "unacceptable" rating on a technical criterion involving past performance really is a determination of nonresponsibility. If a small business' past performance is not acceptable, then under FAR 15.101-2(b)(1), the matter must be referred to the Small Business Administration for a Certificate of Competency. GAO consistently views past performance as a responsibility criterion where it is used as pass/fail.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
Sunday, April 9, 2017
T FOR D DEFENSE: ABUSE OF DISCRETION
There are, of course, many defenses to a termination for default. Acts or omissions of the government in its contractual capacity are among them.
One of the more esoteric defenses is known as abuse of discretion and involves failure to respond to requests for equitable adjustment (REA's).
In a case known as Ryste & Ricas, Inc., the Armed Services Board of Contract Appeals (ASBCA) reiterated the rule that a termination for default could not be based on materially erroneous information as to the contractor's responsibility for delay or materially erroneous information as to the effort and time required to finish the work. The government owes the contractor an assessment of all of the relevant circumstances when it exercises its discretion to terminate for default.
In Ryste, the contracting officer did not adequately consider whether time extensions were appropriate. The contractor had requested time extensions as part of REA's. These requests were not adequately addressed by the contracting officer. The contracting officer did not analyze the contractor's problems and did not consider whether the contract could have been substantially completed if the time extensions had been granted. In the end, the ASBCA determined the contracting officer abused his discretion by terminating the contract for default.
The ASBCA concluded the government had not met its burden of proof.
The lesson to be learned is that REA's must be fully considered. FAR 49.402-3(f) requires contracting officers to consider, among other things, the terms of the contract and applicable law and regulations in determining whether to terminate for default. The terms of the contract usually include the changes clause. The changes clause permits the contractor to submit an REA for equitable adjustment in price and schedule. FAR 43.204(b) states that contracting officers shall negotiate equitable adjustments resulting from change orders in the shortest practicable time.
If a contractor believes the contract has been changed, constructively or otherwise, and submits its REA, the contracting officer is obliged to consider it. It would seem, from a fair reading of Ryste, and the regulations, that the contracting officer also is obliged to adequately respond to the contractors REA before terminating for default. The contracting officer owes the contractor an assessment of the REA. Failure to respond altogether could well be argued as a breach of contract.
The defense to a termination for default which can be characterized as an abuse of discretion is hardly in the mainstream of defenses. However, one of the main defenses to a termination for default is acts of the government in its contractual capacity (constructive changes, breaches, etc.). Therefore, many of the defenses involve an abuse of discretion to one degree or another.
bill@spriggsconsultingservices.com
One of the more esoteric defenses is known as abuse of discretion and involves failure to respond to requests for equitable adjustment (REA's).
In a case known as Ryste & Ricas, Inc., the Armed Services Board of Contract Appeals (ASBCA) reiterated the rule that a termination for default could not be based on materially erroneous information as to the contractor's responsibility for delay or materially erroneous information as to the effort and time required to finish the work. The government owes the contractor an assessment of all of the relevant circumstances when it exercises its discretion to terminate for default.
In Ryste, the contracting officer did not adequately consider whether time extensions were appropriate. The contractor had requested time extensions as part of REA's. These requests were not adequately addressed by the contracting officer. The contracting officer did not analyze the contractor's problems and did not consider whether the contract could have been substantially completed if the time extensions had been granted. In the end, the ASBCA determined the contracting officer abused his discretion by terminating the contract for default.
The ASBCA concluded the government had not met its burden of proof.
The lesson to be learned is that REA's must be fully considered. FAR 49.402-3(f) requires contracting officers to consider, among other things, the terms of the contract and applicable law and regulations in determining whether to terminate for default. The terms of the contract usually include the changes clause. The changes clause permits the contractor to submit an REA for equitable adjustment in price and schedule. FAR 43.204(b) states that contracting officers shall negotiate equitable adjustments resulting from change orders in the shortest practicable time.
If a contractor believes the contract has been changed, constructively or otherwise, and submits its REA, the contracting officer is obliged to consider it. It would seem, from a fair reading of Ryste, and the regulations, that the contracting officer also is obliged to adequately respond to the contractors REA before terminating for default. The contracting officer owes the contractor an assessment of the REA. Failure to respond altogether could well be argued as a breach of contract.
The defense to a termination for default which can be characterized as an abuse of discretion is hardly in the mainstream of defenses. However, one of the main defenses to a termination for default is acts of the government in its contractual capacity (constructive changes, breaches, etc.). Therefore, many of the defenses involve an abuse of discretion to one degree or another.
bill@spriggsconsultingservices.com
Saturday, April 8, 2017
THE JUDICIAL ROLE OF THE CONTRACTING OFFICER
It's time we reminded ourselves of the judicial role of the contracting officer in government contracts. Contracting officers are required by law to act impartially and function in a judicial role when resolving disputes. The history is clear but very often overlooked.
Abraham Lincoln once said: "It is as much the duty of the government to render prompt justice against itself, in favor of citizens, as it is to administer the same between private individuals." In 1912, the United States Supreme Court, in addressing the duties of the contracting officer, said: "But the very extent of the power and the conclusive character of his decision raised a corresponding duty that the agent's judgment should be exercised not capriciously or fraudulently, but reasonably, and with due regard to the rights of both contracting parties."
The most resounding pronouncement, however, was made by the Court of Claims in a 1950 opinion when, after referring to the 1912 Supreme Court opinion, the Court of Claims said the contracting officer must not represent either side but must "act as an impartial, unbiased judge." The Court of Claims went on to say the contracting officer's function was "to act impartially, weighing with an even hand the rights of the parties on the one hand and on the other." The court recognized the obligation of the contracting officer to represent the government's interests in procurement matters, but it went on to state clearly that "in settling disputes this is not his function."
This is pretty clear. So why are there so many complaints about contracting officers failing to act judicially when disputes arise?
It's time to get back to basics and take heed of judicial precedent. And just to bring all this up to date, read FAR 1.602-2(b) again. "Contracting officers shall ensure that contractors receive impartial, fair and equitable treatment." It's mandatory. Impartial, fair and equitable treatment. Sounds like something Abraham Lincoln might say.
bill@spriggslawgroup.com
Abraham Lincoln once said: "It is as much the duty of the government to render prompt justice against itself, in favor of citizens, as it is to administer the same between private individuals." In 1912, the United States Supreme Court, in addressing the duties of the contracting officer, said: "But the very extent of the power and the conclusive character of his decision raised a corresponding duty that the agent's judgment should be exercised not capriciously or fraudulently, but reasonably, and with due regard to the rights of both contracting parties."
The most resounding pronouncement, however, was made by the Court of Claims in a 1950 opinion when, after referring to the 1912 Supreme Court opinion, the Court of Claims said the contracting officer must not represent either side but must "act as an impartial, unbiased judge." The Court of Claims went on to say the contracting officer's function was "to act impartially, weighing with an even hand the rights of the parties on the one hand and on the other." The court recognized the obligation of the contracting officer to represent the government's interests in procurement matters, but it went on to state clearly that "in settling disputes this is not his function."
This is pretty clear. So why are there so many complaints about contracting officers failing to act judicially when disputes arise?
It's time to get back to basics and take heed of judicial precedent. And just to bring all this up to date, read FAR 1.602-2(b) again. "Contracting officers shall ensure that contractors receive impartial, fair and equitable treatment." It's mandatory. Impartial, fair and equitable treatment. Sounds like something Abraham Lincoln might say.
bill@spriggslawgroup.com
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