Recent Developments In Federal Procurement

2007-2008

Ed KinbergFellow, NCMA

Kinberg & Associates, LLCMelbourne, Florida

6/11/2008 2

Today’s Discussion

Good Sources

Upcoming Challenges

Interesting Cases

6/11/083

Good Sources  

Government Contracts Alert & FraudMail Alert (Fried Frank Law Firm) (http://www.ffhsj.com/govtcon/ffgalert/altcurr.htm)

Rumbaugh Regulatory Update (rumbaugh.net) Where in Federal Contracting (Wifcon.com)

Government Contracts Update (Wolters Kluwer/CCH) (www.business.cch./updates/govContracts/)

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Upcoming Challenges

Changing political landscape

IDIQ Contracting

Increasing Regulation

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The Election Senator McCain: “must work aggressively to reform the

defense budget process”

Web Site Issue: National Security Increased emphasis on ethics Contentious relations with Congress

Senator Obama “the current administration has abused its power by handing out contracts without competition to politically connected friends and supporters”

Web Site Issue: Homeland Security Shift resources to increase focus on domestic issue Contentious relations with Congress

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IDIQ ContractingCompetition

NDAA Sec. 843, “Enhanced Competition Requirements For Task And Delivery Order Contracts”

Task/Delivery Orders Over $5M: requirement for task/delivery order in excess of $5M, to provide all contractors a “fair opportunity” to be considered for award is not met unless all contractors are provided—

Notice of task/delivery order, including a clear statement of requirements;

A reasonable period of time to provide a proposal;

Disclosure of significant evaluation factors and subfactors (including cost or price), and relative importance;

A written statement documenting basis for award and relative importance of quality and price/cost factors; and

An opportunity for a post-award debriefing.

Applies to both DoD and civilian agency contracts

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IDIQ ContractingProtests

Task/Delivery Order Protests

Current law prohibits protest of a task/delivery order except for protests based on the ground “that the order increases the scope, period, or maximum value of the contract under which the order is issued.”2008 NDAA expands this existing exception by allowing GAO to exercise exclusive jurisdiction over any protest of an order valued in excess of $10MTakes effect 120 days after enactment of the NDAA, and continues for a period of three years

Applies to both DoD and civilian agencies

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Justification and Approval

Agencies are required to make justification and approval documents available on an agency website.

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Lead System IntegratorsPart 1: DoD is prohibited from awarding a new contract for lead systems integrator functions in the acquisition of a major weapons system to any entity that was not performing lead systems integrator functions prior to January 28, 2008. (eff 10/1/2010)

Part II: DoD may only award a new contract for lead system integrator functions in the acquisition of a major weapon system if:

- The major weapon system has not proceeded past LRIP; or

- SecDef determines in writing that it would not be practicable to carry out the acquisition without continuing to use a contractor to perform lead system integrator functions and that doing so is in the best interest of DoD

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Executive Compensation

OMP limits allowable compensation for executives to $614,196.

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Lawyer Protection

In Affourtit v. United States, the Court of Federal Claims ruled that a corporation appearing before the Court must be represented by an attorney: no pro se appeals

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OK to Do What You Are Told

In the appeal of General Dynamics C4 Systems, (08-1 BCA 33,779) the Agency claimed the contractor had waived its rights to an equitable adjustment by performing disputed delivery orders. The Board rejected this defense because:

1. The disputes clause required the contractor to continue performance of disputed orders and

2. The Contracting Officer sent the Contractor a letter requesting reasonable assurance that it would perform, which the Contractor reasonably interpreted as a demand for performance

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Compensation for Out of Control Changes

In Bell BCI Co. v. U.S. (COFC, 52 CCF 78,926) the Court found that a construction contractor was entitled to be paid for extended performance due to “hundreds” of change orders made by Agency

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Conclusion Lots of big changes coming Courts & Boards seem to be

more accepting of unique issues

IDIQ’s Orders are the next battleground.