Covington Team

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COFC: Contractor Stuck With Bill For Substantially Higher Than Expected Costs Under Firm-Fixed Price Requirements Contract

A recent Court of Federal Claims decision serves as a reminder to contractors of the perils of firm-fixed-price contracts in unpredictable environments. The case, Agility Defense & Government Services, Inc. v. United States, involved an “unusually high-risk” firm-fixed-price requirements contract between Agility Defense & Government Services (“Agility”) and the Defense Reutilization Management Services (“DRMS”).  Under … Continue Reading

Contractors (Respectfully) Request that the President Stop Issuing Executive Orders Focused on Contractors

“[W]e respectfully request that no further presidential directives primarily focused on government contractors be issued for the foreseeable future,” wrote four government contractor associations in a letter to the White House dated August 3, 2015. The letter was released publicly on Tuesday, August 11, 2015, and signed by representatives of the Aerospace Industries Association, the … Continue Reading

DoD Issues Three Cloud Computing and Security Documents for Public Comment

On July 24, 2015, the Defense Information Security Agency (“DISA”) issued three draft documents (available here for download) concerning the adoption of secure cloud computing systems by the Department of Defense (“DoD”).  DISA is tasked with developing DoD’s security requirements guides for cybersecurity policies, standards, architectures, security controls, and validation procedures.  Here, the just-released, draft … Continue Reading

New Zealand to Join WTO Government Procurement Agreement, Will Become a “Designated Country” Under the TAA

Effective August 12, 2015, New Zealand will become the 45th country to join the World Trade Organization’s (“WTO”) Government Procurement Agreement (“GPA”).  As we have previously discussed, this plurilateral agreement promotes open, fair, and transparent competition in the government procurement markets of participating countries.  Importantly, the GPA requires member countries to treat suppliers of goods … Continue Reading

D.C. Circuit Creates Circuit Split Regarding Jurisdictional Nature of the False Claims Act’s First-to-File Rule

In the recently decided U.S. ex rel. Heath v. AT&T Inc., No. 14-7094 (June 23, 2015), the D.C. Circuit rejected the general consensus of the circuit courts and held that the False Claims Act’s (“FCA”) first-to-file rule is not jurisdictional.  This decisions creates a circuit split between the D.C. Circuit and the First, Fourth, Fifth, … Continue Reading

Supreme Court grants certiorari in VA procurement case

Last week the Supreme Court granted certiorari to hear arguments in Kingdomware Technologies, Inc. v. United States, Docket Number 14-916, an ongoing dispute over whether the Veterans Benefits, Health Care, and Information Technology Act (“the Act”), 38 U.S.C. § 8127, requires the Department of Veterans Affairs’ (“VA”) to set aside all of its procurements for … Continue Reading

CBCA Takes Pragmatic View When Finding Jurisdiction Over A Sponsored-Subcontractor CDA Appeal

In Cooley Constructors, Inc. v. GSA, CBCA No. 3905 (June 8, 2005), the Civilian Board of Contract Appeals (CBCA) found that the substance of an appeal – not the form – is the prevailing consideration when analyzing whether the CBCA has jurisdiction to hear a sponsored-subcontractor appeal under the Contract Disputes Act (CDA). Consistent with … Continue Reading

An Acceptable Proposal: Set Appropriately High, Clear Standards for DoD’s Auditors and LPTA Competitions

On April 30, 2015, the House Armed Services Committee passed H.R. 1735, the National Defense Authorization Act for Fiscal Year (“FY”) 2016, with an amendment (Log #325rl) that could shape how the Department of Defense (“DoD”) acquires audit and audit readiness services for its Financial Improvement and Audit Readiness (“FIAR”) Plan. Under the FIAR Plan, … Continue Reading

DLA Energy Plans to Make Utility Privatizations More Effective and Streamlined

Last week the Defense Logistics Agency (DLA) Energy issued a statement on DLA’s website about its plan to “increase the productivity, efficiency and effectiveness of [the] Air Force’s utility services contracts” – a plan that dovetails with the Department of Defense’s (DOD) Better Buying Power 3.0 initiative (BBP 3.0).  This should be good news for utility … Continue Reading

College’s Falsification of Grades and Attendance Records May Trigger FCA Liability

On Wednesday, April 29, the Eighth Circuit issued an opinion holding that evidence of a for-profit college’s falsification of grades and attendance records may support a claim that it “fraudulently induced the Department of Education [“DOE”] to provide [it] funds,” and was thus liable under the False Claims Act (“FCA”).  Specifically, the claim alleged that, … Continue Reading

Recent Application of “International Agreement” Exception Raises Questions Regarding Bid Protest Challenges to Foreign Military Sales

A recent opinion by the U.S. Court of Federal Claims (the “Court”)—Hyperion, Inc. v. United States, No. 14-870C, — Fed. Cl. — (Mar. 18, 2015)—is noteworthy for two reasons. First, it illustrates the “international agreement” exception to the Competition in Contracting Act (“CICA”). This exception permits the U.S. Government to award a contract to a … Continue Reading

Agency’s Continued Evaluation of Bids Does Not Violate CICA Stay

In a decision earlier this month, the Court of Federal Claims (“COFC”) found that an agency’s continued evaluation of bids during the pendency of a stay under the Competition in Contracting Act (“CICA”) neither violates CICA nor constitutes “a de facto override” of the stay.  The case is Caddell Construction Co. v. United States, Nos. … Continue Reading

GAO Sustains Protest Based On Improper Actions Of Acquisition Services Contractor

In an unusual case, the Government Accountability Office sustained a protest alleging that an acquisition services contractor had acted unilaterally to prevent an offeror from participating in a Department of State competition.  The decision serves as a reminder that procuring agencies bear responsibility for the actions of acquisition services contractors.… Continue Reading

GAO Upholds Restriction on Using Consultants to Develop a Proposed Technical Approach

The U.S. Government Accountability Office (GAO) recently denied a protest challenging as unduly restrictive an express prohibition on the use of consultants to develop a proposed technical approach. The GAO concluded that such a prohibition is similar to an agency’s decision when evaluating proposals to only consider the experience and past performance of an offeror. This conclusion, … Continue Reading

Another Proposal from GSA: a Class Deviation for Commercial Agreements

March has been a busy month for the GSA in its efforts to implement what it has touted as a “new vision for Federal purchasing.” On March 5, 2014, GSA announced a proposed rule to reform pricing practices and contractor reporting requirements under multiple award schedule contracts. In its latest move, on March 20, 2015, … Continue Reading

GAO Issues Report on Agency Response to Migration of Unaccompanied Children from Central America

The Government Accountability Office (“GAO”) recently published a report regarding the increased migration of unaccompanied alien children from El Salvador, Guatemala, and Honduras.  The report focused on the responses of officials from the Department of State (State), U.S. Agency for International Development (USAID), and the Department of Homeland Security (DHS).  These officials relied on first-hand … Continue Reading

COFC: Agency Not Obligated to Apply an Inflation Adjustment to Value of Bidder’s Previously Completed Project

The Court of Federal Claims recently rejected a bid protester’s argument that federal procurement law required the Department of State’s Bureau of Overseas Building Operations (“OBO”) to apply an inflation adjustment to the value of one of the protester’s previous projects, which would have enabled it to satisfy the notice of solicitation’s minimum value requirement. … Continue Reading

Increasing U.S. Sales of Defense Articles and Services to Jordan

Despite other areas of disagreement involving the defense budget and U.S. military strategy in the Middle East, the Obama Administration and Senate Republicans might be uniting to fast-track the sale of U.S. defense articles and services to U.S. allies fighting against the Islamic State of Iraq and Syria (“ISIS”). Consider three recent developments involving Jordan.… Continue Reading

Off the Mark?: Fourth Circuit Reverses FCA Dismissal Using Implied Certification Theory

In its January 8 decision in United States v. Triple Canopy, Inc., the Fourth Circuit reiterated its acceptance of the implied certification theory of False Claims Act (“FCA”) liability.  Under the FCA, a contractor can face steep financial penalties for knowingly making false statements in order to get fraudulent claims paid or approved by the … Continue Reading

The Defense Department Releases Updated Acquisition Guidance

Continuing its effort to reform military acquisitions, the Department of Defense (“DoD”) recently released an updated version of its acquisition guideline, DoD Instruction (“DoDI”) 5000.02, Operation of the Defense Acquisition System, available here.  The updated document incorporates the changes from an interim version of the Instruction released on November 26, 2013, and emphasizes tailoring acquisition … Continue Reading

Senator McCain Renews Focus on Ending Cost-Plus Contracts

A longtime and well-known proponent of defense acquisition reform, Senator John McCain assumed the chairmanship of the U.S. Senate Armed Services Committee (“SASC”) on January 6.  Sen. McCain has been particularly outspoken concerning cost overruns on major systems procurement projects.  He has characterized the “cost-plus” contract structure as among the key causes of these overruns, … Continue Reading

Federal Information Technology Reform Act Included in the House-Passed NDAA FY 15

A major piece of IT acquisition reform legislation called the Federal Information Technology Acquisition Reform Act (“FITARA”), on which we have previously reported, was included in version of the National Defense Authorization Act for Fiscal Year 2015 (“NDAA FY 15”) passed by the House on December 4, 2014, along with other significant IT reform provisions related to … Continue Reading

GAO Bid Protest Filings Increase in FY 2014 But Sustain Rate Declines

On November 18, the Government Accountability Office (GAO) released its annual bid protest report for FY 2014.  According to the report, 2,561 cases were filed at GAO in FY 2014, up 5% from last year.  The total of 2,561 includes 2,445 protests, 50 cost claims, and 66 requests for reconsideration.  GAO ruled on 556 cases … Continue Reading

Commerce and State Departments Implement a Number of Changes to U.S. Export Controls Regulations

This week the U.S. State Department’s Directorate of Defense Trade Controls (“DDTC”) and the U.S. Commerce Department’s Bureau of Industry and Security (“BIS”) published a number of final rules that significantly revise the controls that apply to companies exporting certain defense articles from the United States or re-exporting any such U.S. origin items located abroad. … Continue Reading
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