An SBA Public Service Announcement: If You See Something, Say Something
Federal Construction Contracting Blog
by Stephen D. Tobin
1M ago
Sanford Federal, Inc., the selected awardee for a U.S. Department of Veterans Affairs (the VA) contract, learned the hard way that a contractor simply cannot ignore a size protest, regardless of its actual merit. On August 8, 2023, the VA issued an RFQ for boiler plant safety device testing, calibration and inspection for one of its facilities in Arizona. The RFQ was set aside entirely for Service-Disabled Veteran-Owned Small Businesses and assigned NAICS code 238290, Other Building Equipment. The corresponding size standard for this code was $22 million in average annual receipts. The VA rece ..read more
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It’s No Big Deal: How a Non-Small Business Won a Small Business Set-Aside Contract
Federal Construction Contracting Blog
by Stephen D. Tobin
2M ago
In Steiner Construction Co., Inc., the Government Accountability Office (GAO) upheld the U.S. Coast Guard’s (USCG) award of a $1.19 billion small business set-aside shipbuilding contract to a business concern that was later determined to be other than a small business. The protestor argued that the Small Business Administration (SBA) Office of Hearing and Appeals (OHA) decision to vacate an earlier SBA Area Office’s size determination that found the awardee to be an eligible small business concern required that the USCG terminate the award. On October 4, 2022, the SBA issued a size determinati ..read more
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Happy New Year From DoD – The Proposed CMMC Rule Is Here
Federal Construction Contracting Blog
by Stephen D. Tobin
2M ago
On December 26, 2023, the U.S. Department of Defense (DoD) published the much anticipated proposed rule for the revamped Cybersecurity Maturity Model Certification (CMMC) 2.0 Program. Following growing concerns within DoD that contractors were not consistently implementing the cybersecurity requirements of DFARS 252.204-2012, DoD responded with the creation of the CMMC Program in 2019 to move away from a “self-attestation” model of security. The CMMC Program’s purpose is for contractors and subcontractors to demonstrate that Federal Contract Information (FCI) and Controlled Unclassified Inform ..read more
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New Proposed Cybersecurity Rules Mean Big Changes for Federal Contractors
Federal Construction Contracting Blog
by Michael H. Payne and Christopher Ouellette
4M ago
On October 3, 2023, the FAR Council released two proposed rules for federal contractor cybersecurity requirements that relate to cyber threat and incident reporting and information sharing (case 2021-017) and standardizing cybersecurity requirements for unclassified federal information systems (case 2021-019). Both proposed rules not only provide new requirements for federal contractors to follow but also provide new definitions and contract provisions for information and contract technology and federal information systems contracts. Cyber Threat and Incident Reporting and Information Sharing ..read more
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ASBCA Says “Not So Fast” to Contractors Seeking Relief from Pandemic Impacts
Federal Construction Contracting Blog
by Stephen D. Tobin
1y ago
The Armed Services Board of Contract Appeals (ASBCA) recently issued a decision regarding a contractor’s claim for increased performance costs due to the economic impact of the COVID-19 pandemic. Notable about this case is the contractor’s invocation of a July 2, 2020 Department of Defense (DoD) memorandum concerning the financial consequences on contractors with firm-fixed-price contracts lacking an economic price adjustment clause during “historic and unprecedented challenges” in the wake of the pandemic’s onset. In Ace Electronics Defense Systems, LLC (Ace), the Navy issued a delivery order ..read more
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Don’t You Forget About Me: DOL’s Proposed Rule on the Right of First Refusal in Service Contracts
Federal Construction Contracting Blog
by Stephen D. Tobin
1y ago
On July 14, 2022, the Department of Labor (DOL) issued a proposed rule that would require contractors and subcontractors performing covered service contracts to offer, in good faith, service employees employed under the predecessor contract the right of first refusal of employment under the successor contract. The proposed rule implements President Biden’s November 18, 2021 Executive Order 14055, Nondisplacement of Qualified Workers Under Service Contracts (the order). In sum, the order establishes a general policy for the federal government that “service contracts which succeed contracts for ..read more
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Recovering Field Overhead Expenses
Federal Construction Contracting Blog
by David C. Petrone
1y ago
In a recent Armed Services Board of Contract Appeals (ASBCA) decision, Pave-Tech, Inc., the ASBCA found that the decisions a construction contractor makes, even from the very beginning of a project, have consequences. In another recent article, we warned about signing contract modifications that contain release language which could thereafter preclude recovery of costs to which a contractor thought it was entitled later in a project. The decision in Pave-Tech reinforces the importance of considering all aspects of a contract from the onset of a project. One such decision a government contracto ..read more
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The Percentages Favor Settlement of Claims and Appeals
Federal Construction Contracting Blog
by Michael H. Payne
1y ago
As a follow-up to my earlier post about the need to develop a settlement strategy when a claim is headed for litigation, I reviewed the various decisions of the Armed Services Board of Contract Appeals (ASBCA) for the first five months of 2022. The Board entered 107 decisions, and 54 of those decisions were orders dismissing the appeals because the parties had reached a settlement. Some of those settlements resulted from Alternative Dispute Resolution (ADR), which the Board enthusiastically promotes, or simply reflected settlements achieved by the parties through negotiation. Interestingly, on ..read more
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Recent Decision Highlights the Potential Pitfalls in General Releases
Federal Construction Contracting Blog
by Stephen D. Tobin
1y ago
In its recent decision in T.H.R. Enterprises, Inc., the Court of Federal Claims reminds contractors to read claim release language carefully before executing any agreement or modification. T.H.R. Enterprises, Inc. involved an IDIQ contract for renovation work at Langley Air Force Base. The government issued various task orders (TOs) under the overarching IDIQ, and disputes arose between T.H.R. and the government under three of these orders: TOs 22, 25, and 26. Claims under TOs 22 and 25 were the subject of a contracting officer’s final decision, the denials of which T.H.R. appealed to the Arme ..read more
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The Sovereign Acts Doctrine Strikes Back: COVID Costs Are Its Latest Victim
Federal Construction Contracting Blog
by Stephen D. Tobin
1y ago
Oftentimes, contractors find it difficult to differentiate between the government’s acts taken in its sovereign capacity as opposed to those taken in its contractual capacity. The government acts in its sovereign capacity when it takes actions that are general and public in nature and do not target any particular contractor; rather the impact of the government’s action on its contracts is merely incidental to the purpose of a broader governmental objective. As two recent Armed Services Board of Contract Appeals (the Board) decisions involving contractor claims for COVID-19-related costs illust ..read more
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