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Evan Sherwood advises government contractors on a wide range of matters, including claims and disputes, government investigations, suspension and debarment, bid protests, and regulatory counseling. In addition, Evan counsels clients on risk mitigation strategies, including the process of obtaining SAFETY Act protection.

On Friday, the General Services Administration (“GSA”) announced that it had awarded three contracts to develop online shopping portals for commercially-available off-the-shelf (“COTS”) items.  The awardees are Amazon Business, Fisher Scientific, and Overstock.com.

Continue Reading GSA Awards First Contracts to Develop an Online Shopping Platform, and the White House Seems to Be Paying Attention

Late last year, a spokesman for the Department of Defense announced without fanfare that the agency would increase audits of certified cost or pricing data under the Truth in Negotiations Act (“TINA”).  While the full effect of that enhanced focus on TINA compliance remains to be seen, a recent decision by the Armed Services Board of Contract Appeals (“ASBCA”) provides helpful guidance for navigating upcoming TINA audits and defending against defective pricing claims, particularly in situations involving an on-going program where documents contain both facts and judgmental estimates.

Continue Reading With Potential New TINA Audits on the Horizon, the ASBCA Provides a Helpful Primer on Defending Against Defective Pricing Claims

As the fallout from COVID-19 continues, federal contractors in every industry are seeing significant impacts on their ability to perform, ranging from scheduling delays to supply chain interruptions and increased costs of performance.  We previously addressed the rules and regulations governing excusable delays, which permit a contractor to avoid default if a failure to perform arises from causes beyond its control.  This next post addresses key FAR provisions that may entitle a contractor to a price adjustment or other recovery due to changes in contract requirements as a result of the pandemic.

Continue Reading Can I Recover the Added Costs of Work Caused by COVID-19?

The global spread of the COVID-19 virus may put many federal contractors at risk of missing contractual deadlines. In a growing number of cases, supply chains may become cut off, work spaces may be closed, or employees may need to stay home, all of which could impact a contractor’s ability to perform in a timely manner. This is the first in a series of blog posts aimed at helping contractors navigate performance delays, changes, and other complications caused by the coronavirus outbreak.

When confronting challenges caused by the coronavirus, contractors should know that their contracts may contain clauses that would excuse these delays such as FAR 52.249-14 (cost reimbursement and time and material contracts), FAR 52.249-8 (fixed price supply and service contracts), and FAR 52.212-4 (commercial contracts). All of these clauses share a common thread – a contractor should not be in default because of a failure to perform the contract if the failure arises from causes beyond the control and without the fault or negligence of the contractor.
Continue Reading “Excuse Me, My Performance Has been Interrupted”– How Excusable Delay Provisions in the FAR May Help Federal Contractors Affected by the Coronavirus

The government has released its long-awaited annual report on federal suspension and debarment activities, and the data reflect a number of trends and developments that should be of keen interest to federal contractors and grantees.  The report, which is published by the Interagency Suspension and Debarment Committee (“ISDC”), shows that suspension and debarment remain potent tools that are used frequently across the executive branch, even if the total number of exclusion actions dipped slightly from the previous year.  But more importantly, the report also demonstrates that federal agencies are adopting increasingly sophisticated approaches to managing suspension and debarment actions, a trend that presents both opportunities and potential pitfalls for the contracting community.  Below we highlight the five biggest takeaways from this year’s ISDC report.

Continue Reading Suspension & Debarment Update: Five Takeaways from the ISDC’s Annual Report

After nearly two years of planning, GSA has released an RFP seeking prototypes of online shopping portals that would allow federal customers to buy COTS items from their computers.

GSA’s plan implements Section 846 of the NDAA for FY 2018, which instructed the agency to create an internet marketplace exempt from many standard procurement regulations.  As we have previously discussed in this blog, GSA began planning in 2017, sought input from industry in 2018 and 2019, and the announced earlier this year that it would proceed with proofs of concept. But while the new solicitation was a long time coming, GSA clearly is ready to move quickly: contractors will have less than a month before the proposal deadline to digest the solicitation and assess how its terms might affect their business approach, data rights, and competitive standing.

Continue Reading GSA’s E-Commerce Portal Program Is Here: What the New Solicitation Means for Government Contractors

The False Claims Act has long protected relators from retaliation for preparing a qui tam complaint.  But what if an employee “blows the whistle” on a garden-variety problem — for instance, a laboratory that she believes is falling short of standards in a federal funding agreement?

Continue Reading Blowing the Whistle on a Breach of Contract? D.C. Circuit Addresses Scope of FCA’s Anti-Retaliation Rules

On the eve of deciding an $82 billion dollar protest dispute, GAO dismissed a string of protests without reaching the merits because another contractor filed a protest of the same procurement at the Court of Federal Claims.  AECOM Management Services, Inc., B-417506.2 et al., Aug. 7, 2019.

Continue Reading Hit the Road, Jack: GAO Dismisses Multiple LOGCAP V Bid Protests Just Two Days Before the Statutory Deadline for Decision, Highlighting the Perils and Breadth of the “Court of Competent Jurisdiction” Rule

In the latest step towards delivering on the long-promised “Procurement Through Commercial e-Commerce Portals” program, the General Services Administration has announced plans to build a proof-of-concept for federal online shopping, aiming to issue an RFP by the end of the year for web-based acquisition platforms.

Continue Reading Federal Online Shopping Platform Coming Soon — GSA to Issue Prototype RFP Within the Year

As the old adage goes, you can’t unring a bell.  But GAO recently concluded that it was rational of an agency to do just that when taking corrective action in a bid protest.

Continue Reading Turns Out You Really Can Unring a Bell — GAO Upholds Agency Decision to Ignore Vendors’ Updated Quotations and Evaluate Their Original Submissions Instead