The Court of Federal Claims (COFC) recently has overruled a Competition in Contracting Act (CICA) override of the mandatory stay in a bid protest case. The stay may be overridden by a contracting agency if it demonstrates urgent and compelling reasons or if performance of the contract is in the best interests of the government.
Obviously, the court pointed out, performance of most contracts would be in the best interests of the government or the contract would not have been awarded in the first place. So, something more must be shown by the agency to justify the override. The exception to the automatic say rule which permits an override to the stay based on best interests should not be permitted to cancel the rule that the stay be automatic.
The COFC has addressed the best interests exception in only a few cases. If meeting a performance deadline is critical to the entire purpose of the contract, the court has permitted the override to stand.
The problem is the agency must show that the timing is so crucial that a continuation of the existing contract pending the outcome of the protest or a bridge contract to accomplish the same thing would not suffice. The government's argument that lapse in services is an unacceptable risk is insufficient.
In this recent case, Intelligent Waves, LLC v. United States, COFC No. 18-465 C, May 9, 2018, the court pointed out that the agency had ample time to consider how to take appropriate measures to avoid any lapse in services pending the conclusion of the protest. No claim was made by the government that the timing of the new contract performance, as opposed to continuation of the old contract or an interim bridge contract, would be crucial, in this case, to the health or safety of veterans.
The agency had waited to award the new contract until 6 days before the old contract expired. The court said the government essentially argued that the stay must be overridden to avoid a lapse in services because it waited too late to extent the existing contract or enter into a bridge contract.
The court concluded that it was in the best interest of the United States that the integrity of the competitive nature of the procurement process be upheld. In this case, the agency would not be allowed to manipulate the congressional mandate.
The court overruled the agency's override and reinstated the automatic stay.
bill@spriggsconsultingservices.com
Wednesday, May 30, 2018
Wednesday, May 23, 2018
MUST REQUEST CO'S DECISION ON CLAIM
We've written often on how to convert the request for equitable adjustment (REA) to a claim for purposes of appeal of the contracting officer's decision. Recently, the Armed Services Board of Contract Appeals (ASBCA) reminds us that the request for a contracting officer's decision is a prerequisite to an appeal in order for the ASBCA to have jurisdiction. Hejran Hejrat Co. LTD, ASBCA No. 61234, April 23, 2018.
The REA may be submitted in any form but the preferred form is set forth in our posts on how to write the REA. You must tell the story of what the contract required, what was changed, how the changes impacted performance, the theory of recovery upon which the REA is based and a calculation of the cost impact resulting directly from the changes enumerated in the REA.
The ASBCA reminds us that the claim, read REA if you wish, need not take any particular form or use any particular wording. "All that is required is that the contractor submit in writing to the contracting officer a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim." An REA can become a claim. But more is involved. "In addition to explaining the reason for the claim and the amount requested, a claim must also include a request for a final decision from the contracting officer and a certification if the amount sought is greater than $100,000."
Hejran Hejrat disavowed the notion that it was seeking a contracting officer's final decision. Perhaps the company was trying to be diplomatic in its approach.
Too bad. The ASBCA said that even the characterization of a submission by a contractor saying he would send a final decision cannot establish that a claim has been submitted.
"There can be no contracting officer's final decision on a claim if the contractor has not requested that the decision from the contracting officer." (Emphasis added.)
Postscript: The Court of Appeals for the Federal Circuit (CAFC) reversed this decision saying the facts indicated the contractor was asking for a final decision necessary for jurisdiction at the ASBCA. However, we recommend explicitly asking for the decision as required by the regulation. We suggest you do not rely on facts which may imply such a request.
bill@spriggsconsultingservices.com
The REA may be submitted in any form but the preferred form is set forth in our posts on how to write the REA. You must tell the story of what the contract required, what was changed, how the changes impacted performance, the theory of recovery upon which the REA is based and a calculation of the cost impact resulting directly from the changes enumerated in the REA.
The ASBCA reminds us that the claim, read REA if you wish, need not take any particular form or use any particular wording. "All that is required is that the contractor submit in writing to the contracting officer a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim." An REA can become a claim. But more is involved. "In addition to explaining the reason for the claim and the amount requested, a claim must also include a request for a final decision from the contracting officer and a certification if the amount sought is greater than $100,000."
Hejran Hejrat disavowed the notion that it was seeking a contracting officer's final decision. Perhaps the company was trying to be diplomatic in its approach.
Too bad. The ASBCA said that even the characterization of a submission by a contractor saying he would send a final decision cannot establish that a claim has been submitted.
"There can be no contracting officer's final decision on a claim if the contractor has not requested that the decision from the contracting officer." (Emphasis added.)
Postscript: The Court of Appeals for the Federal Circuit (CAFC) reversed this decision saying the facts indicated the contractor was asking for a final decision necessary for jurisdiction at the ASBCA. However, we recommend explicitly asking for the decision as required by the regulation. We suggest you do not rely on facts which may imply such a request.
bill@spriggsconsultingservices.com
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