Defense contractors seeking to protect their incumbent contracts by filing protests with the Government Accountability Office (GAO) may need to think twice if Congress enacts protest reform provisions included in the Senate Armed Services Committee’s recently released version of the National Defense Authorization Act (NDAA) for Fiscal Year 2017 (S. 2943). Under Sec.
Hunter Bennett focuses his practice on contract formation and disputes issues, with a particular emphasis on bid protests. Mr. Bennett worked with the U.S. Department of Justice (DOJ), Civil Division, Commercial Litigation Branch, National Courts Section. During his time with the DOJ, Mr. Bennett primarily focused on defending the United States against bid protests filed in the U.S. Court of Federal Claims. In addition, he successfully briefed and argued multiple cases in the United States Court of Appeals for the Federal Circuit.
Ever since the Federal Circuit held in M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1331 (Fed. Cir. 2010) that “a contractor seeking an adjustment of contract terms must meet the jurisdictional requirements and procedural prerequisites of the [Contract Disputes Act], whether asserting the claim against the government as an affirmative claim or as a defense to a government action[,]” contractors appealing a government claim or counterclaim have agonized over whether to incur the administrative burden and expense of submitting their potential defenses as a claim under the CDA or risk losing the ability to assert those defenses on appeal. The Civilian Board of Contract Appeals’ (the “Board” or “CBCA”) recent decision in Jane Mobley Assocs., Inc. v. General Servs. Admin., offers some much needed clarity as to what types of defenses must first be raised as claims. CBCA 2878, 2016 WL 73878 (Jan. 5, 2016).
Continue Reading Take it To the Limit: CBCA Limits Application of Maropakis Requirement to Initially Submit Certain Defenses to Government Actions as CDA Claims
On December 30, 2015, the Department of Defense (DoD) issued a Final Rule intended to clarify that U.S. defense contractors and subcontractors performing work in Afghanistan, including work on contracts below the simplified acquisition threshold and for commercial items, are not subject to Afghan taxes. The rule updates the tax provisions of the DFARS…
Following an 8-2 en banc decision issued by the United States Court of Appeals for the Eighth Circuit earlier this month, potential relators may think twice before bringing their False Claims Act (“FCA”) qui tam suits in the Eighth Circuit. In Rille v. PricewaterhouseCoopers LLP, No. 11-3514 (8th Cir. Oct. 5, 2015), the Court vacated a district court order awarding two relators a percentage of the Government’s settlement of an FCA qui tam suit in which it had intervened, holding that when the government intervenes in an FCA action brought by a relator, and then settles both the claim brought by the relator and a different claim that does not overlap factually with the relator’s claim, the relator is entitled only to a share of the settlement of the claim that he brought. The Court remanded the case to the district court to analyze whether there was factual overlap between the claims settled by the Government and the claims brought by the relators.
Continue Reading No Money for Nothing — Eighth Circuit Limits Relators’ Ability to Recover a Share of Government Settlements of Qui Tam Suits
On October 8, 2015, the U.S. Department of Defense (“DoD”), National Aeronautics and Space Administration (“NASA”), and the U.S. General Services Administration (“GSA”) jointly proposed a change to the Federal Acquisition Regulation (“FAR”) that would make it more difficult for agencies to bypass the existing five-bidder limitation in two-phase procurements for design-build projects worth more…
By sending a letter to the contracting officer, did I unwittingly file a pre-award, agency-level bid protest? That is a question a contractor might ask after reading Coulson Aviation (USA), Inc., B-411525 (Aug. 14, 2015), which reiterates the U.S. Government Accountability Office’s (“GAO”) view that a contractor’s subjective intent is not determinative as to whether its written correspondence with a contracting officer constitutes an agency-level protest. Instead, the pertinent inquiry is whether the correspondence expresses dissatisfaction with the agency’s actions and requests relief. Thus, even an informal, non-confrontational letter could potentially amount to an agency-level protest.
Continue Reading GAO Holds That Contractor’s Letters Are, In Fact, Agency-Level Protests