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Although Congress averted a Government shutdown on October 1 by passing a temporary spending bill, we may be headed toward a shutdown next month.  As many Federal Government contractors have experienced during prior Government shutdowns, some portions of the Government — primarily those not funded through annual appropriations bills or that provide “essential services” — may continue to operate (often without pay or access to certain resources), while others shut down immediately, leaving contractors with a customer that often is unable to provide funding, authorize contract actions or respond to inquiries until the Government reopens its doors.  Faced with these challenges, contractors would be well advised to ensure their shutdown plans position them to navigate the potential challenges.  Each agency and contract can offer unique challenges, but we offer a few key considerations below to guide contractors in assessing their approaches to potential shutdowns:Continue Reading Key Steps Contractors Should Consider When Facing a Government Shutdown

The U.S. Court of Federal Claims recently overturned an agency’s decision to terminate a government contractor for default ─ finding that the government allowed a series of contract disputes, poor practices, conflicting personalities, and a lack of effective communication to cloud its termination analysis.  The case serves as an important reminder that, when reviewing a termination for default, the Court gives little credence to the government’s “subjective beliefs” regarding the contractor’s ability to perform.  Rather, the Court conducts an objective inquiry and scrutinizes the events, actions, and communications that led to the agency’s termination decision. 
Continue Reading Back to Basics: Government’s Subjective Views About Contractor’s Performance Do Not Justify Termination for Default

The Contract Disputes Act (“CDA”) is probably not the first law that comes to mind when a government contractor is named as a defendant in a personal injury or wrongful death suit. But a recent decision from the U.S. Court of Federal Claims illustrates why the CDA ─ and its six-year statute of limitations ─ should be top of mind for any contractor that is sued in tort and wants the government to take over its defense or to reimburse its uninsured legal fees or settlement/judgment costs. The Court’s decision, which is the latest opinion in a long-running dispute, is an important reminder for contractors that are indemnified by the government for liabilities to third persons, including under clauses such as FAR 52.228-7, Insurance ─ Liability to Third Persons (MAR. 1996) and FAR 52.250-1, Indemnification under Public Law 85-804 (APR. 1984).
Continue Reading Time Stops for No One: COFC Reminds Indemnified Contractors to Mind the CDA Statute of Limitations

While you might not be able to fight City Hall, you can fight your CPARS rating. In a short opinion published last week, the ASBCA confirmed it has jurisdiction to annul an inaccurate and unfair government evaluation of a contractor’s performance. Cameron Bell Corporation d/b/a Government Solutions Group, ASBCA No. 61856 (May 1, 2019).  Though the ASBCA cannot require the government to issue a specific rating, it can remand the matter to the contracting officer with instructions to redo the evaluation ─ a perhaps imperfect, yet still potent form of relief available to contractors who believe the government has improperly rated their contract performance.
Continue Reading ASBCA Confirms Contractors May Challenge Unfavorable CPARS Ratings

The Civilian Board of Contract Appeals (“CBCA” or “Board”) recently published a decision on accrual of government claims for overpayment under the Contract Disputes Act (“CDA”). In the case, United Liquid Gas Co. d/b/a United Pacific Energy v. Gen. Servs. Admin., CBCA 5846, United Pacific Energy (“UPE”) appeals a General Services Administration (“GSA”) final decision seeking overpayments arising under four task orders that were issued under UPE’s GSA schedule contract to provide propane gas.

In its motion for partial summary relief, UPE argued that GSA’s claims for some of those overpayments were time-barred by the CDA’s six-year statute of limitations. The Board sided with UPE, finding that the discrete overpayment claims at issue in the motion accrued when the Government overpaid each corresponding invoice — each of which occurred more than six years before GSA issued its final decision. In doing so, the Board rejected GSA’s argument that the claims did not accrue until the Government issued an audit report discussing the overpayment issue, which occurred less than six years before GSA issued its final decision.

This decision is important because it adds to the limited number of opinions that the Board has published on claim accrual and reinforces established precedent. Our takeaways are below.Continue Reading CBCA Issues Rare Decision Addressing Government Claim Accrual

On August 17, 2018, the Civilian Board of Contract Appeals (“Board” or “CBCA”) published in the Federal Register its amended Rules of Procedure governing appeals under the Contract Disputes Act (“CDA”).  These amended rules: simplify and modernize access to the Board, clarify obligations under certain prior rules, and increase conformity between its rules and the Federal Rules of Civil Procedure (“Federal Rules”).  Furthermore, as reflected in the proposed changes issued in the Federal Register in March 2018, the amended rules are intended to “allow the Board to adopt and apply case law applying the relevant Federal Rules, as well as any future amendments to those Federal Rules, without revising the Board’s rules again.”

Our key takeaways are provided below, and a comparison of the Board’s prior and current rules can be found here.Continue Reading CBCA Rules Overhaul Finalized: Effective September 17, 2018

Contractors that must comply with the government’s domestic preference laws should take note of United States ex rel. Folliard v. Comstor Corp., __ F. Supp. 3d __, 2018 WL 1567620 (D.D.C. 2018) — a recent decision dismissing a country-of-origin fraud lawsuit initiated by serial relator Brady Folliard.
Continue Reading Alleged TAA Non-Compliance Is Not “Material” Under The False Claims Act, Federal Court Holds

[Update: The CBCA’s amended rules will become effective on September 17, 2018.  Click here for additional information and our analysis.]  

On March 28, 2018, the Federal Register published proposed changes to the Civilian Board of Contract Appeals’ (“Board”) Rules of Procedure regarding appeals under the Contract Disputes Act (“CDA”).  These proposed rules indicate that the Board wishes to: simplify and modernize access to the Board, clarify certain rules, and increase conformity between its rules and the Federal Rules of Civil Procedure (“Federal Rules”).  Our key takeaways are below, and a side-by-side comparison between the Board’s current and proposed rules can be found here.  Interested parties may submit comments by May 29, 2018.
Continue Reading CBCA Proposes Changes to its Rules

On February 22, 2018, the General Services Administration (GSA) issued a Final Rule to address common commercial supplier agreement terms that it contends are inconsistent with federal law. The purpose of this rule is to streamline negotiations over commercial supplier agreements (“CSAs”), end-user license agreements (“EULAs”), Terms of Sale (“TOSs”) or similar sets of standard terms and conditions. Significantly, the rule reverses several controversial provisions from the Proposed Rule and an earlier class deviation by reverting the order of precedence and eliminating the burdensome requirement of providing the full text of all provisions. Less controversially, but nonetheless important, the Final Rule also formalizes GSA’s longstanding position that certain terms and conditions are unenforceable under federal law.
Continue Reading GSA Issues Final Rule Governing Negotiations of Common Commercial Terms

Few issues have bedeviled the GSA Schedules program as much as the provision of incidental supplies and services under Schedule orders.  For years, it has been unclear how such supplies and services are to be purchased and priced, since they are not themselves on Schedule.

But now, with GSA’s new Order-Level Materials (“OLM”) rule, GSA has resolved this issue by expressly permitting the government to easily and quickly obtain incidental supplies and services through the Schedules program.Continue Reading At Long Last – GSA Issues Final Rule on Purchasing “Order-Level Materials” on Schedule Orders