PubKLaw
Legal news and insights for the government contracts community.

Latest Developments

12/09/2016

Low Price Alone Not Dispositive of Awardee’s Intent to Violate Berry Amendment; GAO B-413798, Inspire International

Protest that an awardee’s price is so low that it evidences an intent to violate the Berry Amendment is denied where the awardee’s quotation included the required certification of compliance; the agency received additional information confirming the awardee’s intent; and…
12/09/2016

Agency Unreasonably Overlooked Serious Design Flaw in Awardee’s Proposal; GAO B-413389, Jacobs Technology Inc.

Protest challenging the agency’s past performance evaluation of the awardee is denied, where the agency was not required to consider work elements in past performance references separately to determine whether the discrete effort could be considered recent; and protest challenging…
12/09/2016

FPR Should Have Incorporated Information Provided in Response to Discussions; GAO B-412998, Ultra Electronics – 3 Phoenix, Inc.

Protest challenging the agency’s evaluation of the protester’s past performance is denied, where the agency reasonably considered information submitted by the protester acknowledging technical issues and cost overruns on its reference projects, and found its past performance provided low confidence…
12/08/2016

Contracting Office Has Discretion to Disagree with Findings of Technical Evaluation Panel; COFC No. 16-236C, Tiber Creek Consulting Inc.

Protest challenging the agency’s technical evaluation is denied, where the contracting officer had the discretion to disagree with the evaluation panel’s assignment of weaknesses to the awardee’s proposal; and protest challenging the agency’s price realism evaluation is denied, where the…
12/08/2016

Government Cannot Argue Affirmative Defense of Fraud to Stay Contractor’s Appeal Where Fraud Has Not Been Proven in Court; ASBCA No. 57530, Kellogg Brown & Root Services Inc.

Government’s request for reconsideration of its motion to dismiss or stay a contractor’s appeal is denied, where its affirmative defense of fraud has not been proven. The government asked the Armed Services Board of Contract Appeals to reconsider its denial…
12/08/2016

Agency’s Discussions Addressed One Discrete Task Area, Not Overall Area of Concern; GAO B-412608, EFW Inc.

Protest alleging that the agency engaged in misleading discussions is sustained where the agency raised concerns about the protester’s proposed level of effort for development work, but did not address issues with the total proposed level of effort for development,…
12/07/2016

Eighth Circuit Considers Materiality Under the FCA Following the Supreme Court’s Escobar Decision

In a recent decision, the Eighth Circuit addressed materiality under the False Claims Act. In United States ex rel. Miller v. Weston Educational, Inc, the court considered a fraud in the inducement claim arising from a college’s allegedly false promise…
12/07/2016

Supreme Court Rules that Violation of FCA Seal Requirement Does Not Require Dismissal

In a unanimous decision, the Supreme Court ruled that a violation of the False Claims Act’s seal requirement does not mandate the dismissal of a relator’s claim, and instead held that the district court has the discretion to determine a…
12/07/2016

Counsel’s Earlier Knowledge of Protest Grounds Does Not Automatically Render Challenge Untimely; GAO B-409705.6, Department of Veterans Affairs—Reconsideration

Agency’s request for reconsideration of a sustained protest is denied, where the initial protest was not untimely, because it was filed within 10 days of the protest grounds being known to the protester, notwithstanding information provided to protester’s counsel during…
12/07/2016

Proposal’s Discussion of Subcontractor Management Does Not Satisfy Requirement to Address Team Member Management; B-413390.3, Zavda Technologies LLC

Protest challenging the agency’s evaluation of the protester’s proposal as unacceptable is denied, where the solicitation required offerors to address their management of team members, but the protester’s proposal addressed subcontractors, without any indication the protester used the terms interchangeably.…
12/07/2016

Agency Reasonably Raised Concerns About Staffing During Discussions, Though Technical Approach was Considered Acceptable; GAO B-413064, CSC Government Solutions LLC

Protest that the agency conducted misleading discussions is denied, where the agency reasonably concluded the protester’s proposed engineering hours were insufficient for the required tasks, even though the protester’s technical approach was considered acceptable, and protest that the agency conducted…
12/06/2016

Fourth Circuit Clarifies Applicability of FCA Public Disclosure Bar to Amended Complaints

In its decision in United States ex rel. Lyle Beauchamp v. Academi Training Center, LLC, the Fourth Circuit held that a determination as to whether the False Claims Act’s public disclosure bar applies should be made based on the date…
12/06/2016

DPAP Issues Guidance on Evaluation of Risk in Negotiating Contract Profit or Fee

Defense Procurement and Acquisition Policy director Claire Grady has issued guidance on evaluating risks when negotiating contract profit or fees. The Department of Defense Office of Inspector General has performed several audits related to profits paid to prime contractors for…
12/06/2016

Déjà Vu: Continuing Resolution Raises Potential Pitfalls for Contractors

Congress has again signaled that it will pass a continuing resolution to fund the government through spring—despite vocal opposition from the Pentagon. As a result of this short-term funding mechanism, contractors face a number of potential pitfalls: contract options are…
12/06/2016

Protester Responsible for Ensuring Customers Submit Past Performance Questionnaires; GAO B-413614.3, Veteran Technologists Corporation

Protest challenging the agency’s evaluation of the protester’s corporate experience is denied, where the protester did not submit the required number of relevant projects performed within the past three years; and protest challenging the agency’s past performance evaluation is denied,…
12/06/2016

Unreliable IGCE Resulted in Misleading Discussions; GAO B-412949, Vencore Services and Solutions Inc.

Protest arguing the agency engaged in misleading discussions is sustained, where the agency’s discussions concerning price relied on a significantly inflated independent government cost estimate of the work, which led the protester to revise its pricing upwards, and the agency…
12/06/2016

Weaknesses in Technical Proposal Justify Protester’s Exclusion from Competitive Range, Despite Lower Price; GAO B-413210, 22nd Century Technologies Inc.

Protest challenging the agency’s evaluation of the protester’s proposal and exclusion from the competitive range is denied, where the protester’s proposal provided only a blanket offer to comply with the requirements without describing its approach for supplying the deliverables; and…
12/06/2016

Restrictions on Subcontracting in European Government Contracts

A ruling in the European Court of Justice has confirmed that public entities across the EU cannot impose volume limits on subcontracting by requiring a government contractor to perform a specified percentage of the works itself under a public contract.…

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