Covington Team

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Time Stops for No One: COFC Reminds Indemnified Contractors to Mind the CDA Statute of Limitations

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 ─ … Continue Reading

CBCA Issues Rare Decision Addressing Government Claim Accrual

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 … Continue Reading

CBCA Rules Overhaul Finalized: Effective September 17, 2018

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 … Continue Reading

CBCA Proposes Changes to its Rules

[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 … Continue Reading

Left Holding the Bag: Release Provision Precludes Recovery for Costs Incurred Post-Release

Over the last year, we have reported extensively on various government contract decisions regarding contract releases. In Sylvan B. Orr v. Department of Agriculture, CBCA 5299 (Sep. 29, 2017), the Civilian Board of Contract Appeals (“CBCA” or “Board”) published yet another notable opinion on this topic. This decision demonstrates why it is critical to reserve … Continue Reading

CIA Torture Case Is A Cautionary Tale for Contractors on The Battlefield

By Alex L. Sarria and Marianne F. Kies The recent settlement of a noteworthy “contractor-on-the-battlefield” case should serve as a cautionary tale to government contractors that perform high-risk work in support of military operations. In Suleiman Abdullah Salim v. James E. Mitchell and John Jessen, No. CV-15-0286, three foreign plaintiffs filed Alien Tort Statute (“ATS”) claims … Continue Reading

NIST Releases Fifth Revision of Special Publication 800-53

The National Institute of Standards and Technology (“NIST”) released on August 15, 2017 its proposed update to Special Publication (“SP”) 800-53. NIST SP 800-53, which was last revised in 2014, provides information security standards and guidelines, including baseline control requirements, for implementation on federal information systems under the Federal Information Systems Management Act of 2002 … Continue Reading

A Summary of the Recently Introduced “Internet of Things (IoT) Cybersecurity Improvement Act of 2017”

On August 1, 2017, a bipartisan group of Senators introduced legislation (fact sheet) that would establish minimum cybersecurity standards for Internet of Things (“IoT”) devices sold to the U.S. Government. As Internet-connected devices become increasingly ubiquitous and susceptible to evolving and complex cyber threats, the proposed bill attempts to safeguard the security of executive agencies’ … Continue Reading

Predictability of Outcomes in Discovery Disputes at CBCA Improves During its First Ten Years

In recognition of the decennial anniversary of the U.S. Civilian Board of Contract Appeals (“Civilian Board”), we set out to determine notable trends in Civilian Board practice. Among other things, we identified a recent marked increase in the number of published decisions containing substantial discussions of discovery issues – more than half of the 24 … Continue Reading

ASBCA Issues Important Ruling in “Contractor-on-the-Battlefield” Dispute

Earlier this month, the Armed Services Board of Contract Appeals held that the U.S. Army breached its contractual obligation to provide physical security to its principal logistical support contractor, KBR, during the height of the Iraq War.  As a consequence, the Board found that KBR was entitled to be reimbursed for $44 million, plus interest, … Continue Reading

Long Live Reasonableness: Reinforcing the Implied Duty of Good Faith and Fair Dealing in Government Contracts

Last month, in CanPro Investments Ltd. v. United States, COFC No. 16-268C (April 2017), the Court of Federal Claims (“COFC” or “Court”) denied the Government’s motion for reconsideration and reaffirmed its prior decision that CanPro Investments Ltd. (“CanPro”) may continue to litigate its claim for breach of the implied duty of good faith and fair … Continue Reading

Common Sense Prevails: “Tougher” To Satisfy Rule 9(b) Standard in “Implied Certification” FCA Case Arising from GSA Schedule Contractors’ Alleged TAA Non-Compliance

A U.S. District Court recently dismissed a False Claims Act (FCA) qui tam action alleging that numerous GSA Schedule contractors violated their obligations under the Trade Agreements Act (TAA), resulting in the submission of false claims under the “implied certification” theory of FCA liability.  As discussed further below, the court’s decision — United States ex rel. Berkowitz … Continue Reading

CBCA Narrows Scope of Implied Duty of Good Faith and Fair Dealing in IDIQ Contracts

In TranBen, Ltd. v. Department of Transportation, CBCA 5448 (Jan. 26, 2017), the Civilian Board of Contract Appeals (“Board”) recently applied a restrictive view of the implied duty of good faith and fair dealing under an indefinite delivery/indefinite quantity (“IDIQ”) contract.  In its appeal seeking almost $14 million, TranBen, Ltd. (“TranBen”) alleged that the Department … Continue Reading

ASBCA Shoots Down DCAA Overreach on Responsibility to Manage Subcontractors

A prime contractor is responsible for managing its subcontractors, but what exactly does that require? In a recent decision, the answer of the Armed Services Board of Contract Appeals was: not nearly as much as DCAA claimed. In Lockheed Martin Integrated Sys., Inc., ASBCA Nos. 59508, 59509, the Board ruled on a Government claim seeking … Continue Reading

A self-effectuating deemed release of claims? Say it ain’t so.

A few weeks ago, we provided a few tips for negotiating and assessing a release contained in a contract modification, and discussed why the Civilian Board of Contract Appeals (CBCA) found that a global release contained in one of many contract modification was ambiguous. Now, we consider a different scenario: what happens when a final … Continue Reading

Updated OMB Breach Response Policy Includes Required Breach-Related Provisions for Federal Agency Contracts

On Monday, our colleague Caleb Skeath posted on Inside Privacy an engaging article that discusses the new Office of Management and Budget policy setting forth minimum standards for federal agencies in preparing for and responding to breaches of personally identifiable information (PII) and the expected contractual changes that agencies will impose on contractors whose systems … Continue Reading

New FAR Rule Encourages “Constructive Exchanges” between Federal Agencies and Contractors

On November 29, 2016, the Department of Defense, General Services Administration, and the National Aeronautics and Space Administration proposed an amendment to the Federal Acquisition Regulation (“FAR”) aiming to encourage pre-acquisition communications between industry professionals and federal agencies.  This amendment is part of a five-year long effort by the Obama Administration to clarify that communications … Continue Reading

GSA Leaves Many Questions Unanswered, As Industry Assesses The New Transactional Data Reporting Rule

We recently wrote about GSA’s new Transactional Data Reporting (“TDR”) pilot program, which requires participating Federal Supply Schedule (“FSS”) contractors to report 11 items of transactional data to GSA each month. The TDR rule also eliminates the requirement to provide a Commercial Sales Practices (“CSP”) format as well as the Price Reductions Clause.  As we … Continue Reading

Take Two: Proposed DFARS Commercial Item Rule Still Fails to Rein in Contracting Officer Discretion

On August 11, 2016, the Department of Defense (“DoD”) published a revised proposed rule to amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) to implement sections of the National Defense Authorization Acts for Fiscal Years 2013 and 2016 relating to commercial item acquisitions. This proposed rule replaces the rule that DoD proposed last August and … Continue Reading

ASBCA Addresses CDA Jurisdiction Over Claims Involving Contractor Fraud

The Armed Services Board of Contract Appeals (“ASBCA” or the “Board”) recently issued an opinion addressing several important, and controversial, topics of interest to government contractors.  The lengthy opinion addressed key issues related to the Board’s jurisdiction over government claims and affirmative defenses based on alleged contractor fraud, the Contract Disputes Act (“CDA”) statute of limitations, … Continue Reading

The CBCA Chews Up Agency’s Erroneous Allegation that Contractor Is Getting a ‘Second Bite at the Apple’

At the intersection of bid protests and claims, in Optimum Services, Inc. v. Department of the Interior, CBCA 4968 (May 2, 2016), the Civilian Board of Contract Appeals (“CBCA” or “Board”) recently encountered the question of whether a decision by the Government Accountability Office (“GAO”) can preclude a contractor from later maintaining an appeal of … Continue Reading

DoD Rule Would Help Contractors Protect Their Technical Data Rights in Commercial Items Used in Major Systems

The Department of Defense (DoD) is considering a proposed rule that would help contractors protect their technical data rights in privately-developed commercial items that are incorporated into major systems, including major weapons systems. The proposed rule likely will be welcomed news to the defense industry, which has long sought to defend contractors’ intellectual property rights … Continue Reading

Contractor’s Timely Notice to the CO of an ‘Intent to Appeal’ is Good Enough for the ASBCA

A recent decision from the Armed Services Board of Contract Appeals (ASBCA) serves as an important reminder that a contractor’s timely notification to the contracting officer (CO) of its intent to appeal a CO’s final decision will satisfy the Board’s 90-day deadline for filing appeals under the Contract Disputes Act (CDA). Although the facts of … Continue Reading

FTC and DoJ Question DoD’s Proposed National Security Trump Card

In an apparent reaction to recent efforts by the Department of Defense to obtain authority to approve mergers in the defense industry on national security grounds, the Department of Justice and the Federal Trade Commission today issued a Joint Statement explaining the standard of review that the antitrust agencies use when evaluating proposed transactions in … Continue Reading
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