Have Contingency Plans in Place for Your Proposal Submissions

Although a contractor in one recent case had a contingency plan that covered a variety of unforeseen events that would delay the delivery of its proposal to the Government, its plan did not account for the possibility that local flights could be grounded by severe weather. The result was that the contractor’s proposal was not submitted on time, and the Government rejected the proposal as untimely.

Global Military Marketing, Inc. (“Global”) protested the Defense Commissary Agency’s (“DeCA”) rejection of its offer in response to a solicitation for the supply of fresh pork products. The solicitation made proposals due at the Government facility in Fort Lee, Virginia, by 3:00 p.m. on April 30, 2014. Although Global made two attempts to submit its proposal on time, both attempts failed.

Global first provided its proposal to Federal Express in Pensacola, Florida on April 29, 2014, to be delivered before the 3:00 p.m. deadline the next day. However, on April 29th, there was severe rainfall, and due to the extreme weather, FedEx rerouted Global’s proposal package via ground to Mobile, Alabama, where it was to be put on a courier plane. Mobile also was under a flood emergency, and the FAA restricted aircraft ground operations in Mobile due to the extreme weather. As a result, FedEx did not deliver Global’s proposal until May 1, 2014 – the day after the deadline.

Global’s normal contingency plan was to fly an employee by commercial airlines to deliver the proposal, but the weather prevented this. Due to flooded roads, Global’s employees were not able to reach their offices in Pensacola until two hours before the proposal deadline, at which time Global arranged for a Kinko’s near Fort Lee print, prepare, and deliver the proposal to the Agency. Kinko’s delivered the proposal just forty minutes after the 3:00 p.m. deadline.

The solicitation included FAR 52.212-1, which provides that untimely proposals would not be considered. Global cited FAR 52.212-1(f)(4), which provides a limited exception to this “late is late” rule, where “an emergency or unanticipated event interrupts normal Government processes so that offers cannot be received at the Government office designated for receipt of offers by the exact time specified in the solicitation[.]”
Global argued that the delay in the delivery of its proposals “was caused by the FAA’s restriction of aircraft ground operations at Mobile and Pensacola due to the flood emergency in the extreme weather.” According to Global, the delay was due to an interruption of normal Government processes – i.e., the FAA restricted aircraft ground operations at Mobile and Pensacola – which was naturally not Global’s fault.

The Court of Federal Claims rejected this argument, because the exception applies only to the Government operations at the Government offices designated for receipt of offers, not for any Government operations at the bidder’s location. Quoting the Federal Circuit, the Court of Federal Claims noted that “the FAR provision focuses upon whether unforeseen events prevent the Government from receiving proposals at the site designated, not on whether unforeseen events prevent the offeror from transmitting the proposal.”

Because Fort Lee, Virginia was operating under normal Government processes, FAR 52.212-1(f)(4) did not apply, and the court agreed with the Government that Global had not submitted a timely proposal. This case provides a hard lesson that adequate contingency plans for delivery of a proposal should always be kept in mind.

Global Military Marketing, Inc. v. United States, No. 140622C, Sept. 29, 2014 available at https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2014cv0622-21-0.

Stephanie Wilson is an attorney at the Washington, DC business law firm, Berenzweig Leonard, LLP. She can be reached at SWilson@BerenzweigLaw.com.

New Executive Order Will Require Contractors to Report Labor Law Violations

On July 31, 2014, President Obama signed the “Fair Pay and Safe Workplaces Executive Order.” The primary purpose of this Executive Order ‒ which is expected to be implemented beginning in 2016 ‒ is to encourage federal contractors receiving taxpayer dollars to maintain lawful working conditions for their employees. It imposes significant new requirements for federal contractors to ensure their compliance with fourteen federal statutes, executive orders, and equivalent state laws, including the FLSA, FMLA, ADA, Age Discrimination in Employment Act, Title VII of the Civil Rights Act, the Davis Bacon and Service Contract Acts, and recent Executive Order 13658 – “Establishing a Minimum Wage for Contractors.”

MANDEL NGAN/AFP/Getty Images

The Executive Order requires contractors bidding on procurement contracts valued at $500,000 or more to disclose “whether there has been any administrative merits determination, arbitral award or decision, or civil judgment” issued against the contractor during the preceding three years for violations of the federal and state labor laws covered under the Executive Order. It also requires federal agencies to appoint a “Labor Compliance Advisor” to help contracting officers review contractors’ disclosures during the procurement process and contract performance, and requires contracting officers to consider this information in determining whether an offeror has a satisfactory record of compliance, integrity, and business ethics.

The Executive Order directs the FAR Council to propose to amend the FAR to identify considerations for determining whether serious, repeated, willful, or pervasive labor law violations demonstrate a lack of integrity or business ethics. It also directs the Secretary of Labor to develop guidance to assist agencies in determining whether adverse rulings were issued for serious, repeated, willful, or pervasive violations.

It is too soon to tell how the FAR Council, Department of Labor, and federal agencies will implement this Executive Order, and what the Order’s ultimate effect will be. Compliance with labor laws and maintenance of lawful working conditions should always be an important goal of all employers, including federal government contractors receiving taxpayer dollars. The Executive Order’s goals ‒ to protect employees and crack down on unethical and irresponsible contractors ‒ are admirable. However, the Executive Order introduces additional complexity to an already complicated process that, if not implemented correctly, could result in delays in the contracting process, place additional burdens on contracting officers, and potentially insert a subjective element into the process that opens the door to abuse by federal agency officials.

The White House has stated that contractors will be able to participate in “listening sessions” to provide input on how to ensure the policies and practices associated with the Executive Order will be fair and effective, and that the draft regulations and guidance will be subject to public comment before being finalized. Contractors should take advantage of these opportunities to make their concerns known to the government when the time comes.

Stephanie Wilson is an attorney at the Washington, DC business law firm, Berenzweig Leonard, LLP. She can be reached at SWilson@BerenzweigLaw.com. 

Do Not Read All FAR Clauses Literally

A literal reading of some FAR clauses can cost you money. One such clause is the Changes clause (FAR 52.243-4) requiring the contractor to give the contracting officer written notice of suspected government changes within 30 days. Although a contracting officer or COTR might want to demand strict compliance with the clause, all government contractors need to know that courts do not require strict compliance. A contractor may be entitled to an equitable adjustment for a contract change even though the contractor notifies a government employee other than the contracting officer of a suspected change long after 30 days have passed and even if the notice is oral. A recent court decision shows how broadly courts construe the Changes clause notice provision.

A construction contractor claimed that it was entitled to an equitable adjustment for design changes that the government imposed in the comments it made to the contractor’s design plans. But the first time the contractor raised the issue was in court pleadings three years after the government had made its design comments and long after the building was built. The contractor should have given the contracting officer notice of its disagreement immediately after receiving the government comments.  

Although the court concluded that this contractor’s notice was too late, its decision discusses precedents that established the defining issue in “notice” disputes. It is not whether 30 days have passed, nor whether the notice was oral, or even whether the contracting officer was the government employee who got notice. The issue is what harm has the government suffered by a contractor’s failure to give 30 days written notice? In this recent case, the harm was that timely notice would have given the parties a chance to resolve the issue years ago, making litigation unnecessary.

But in many situations, the lack of 30 days written notice to the contracting officer may not harm the government. For example, the contractor had complained orally to the COTR immediately after being told to do extra work.

Of course, the best policy is to rigidly follow the rules in the clause. However, a government contractor needs to know that all FAR clauses should not be taken literally. Nor should a government contractor be deterred from filing a request for an equitable adjustment by a contracting officer’s rigid interpretation of a notice provision.

If you believe the government has made costly change to your contract without modifying it to add money, let the Government Contracts Team at Berenzweig Leonard help you make sure you give the government proper notice. A small investment in legal advice can have a large return for you.


Terrence M. O'Connor is the Director of Government Contracts at Berenzweig Leonard LLP. He can be reached at TOConnor@BerenzweigLaw.com. 

DOL Debars Contractor for Wage and Hour Violations

The Department of Labor (“DOL”) recently debarred Garcia Forest Service LLC (“Garcia”) and its president for three years for violating the McNamara-O’Hara Service Contract Act (“SCA”) and the Contract Work Hours and Safety Standards Act (“CWHSSA”).

The SCA requires that contractors performing services on covered federal contracts pay their service workers no less than the wages and fringe benefits prevailing in the locality. Garcia violated the law by paying its employees on a production-based wage, rather than the required hourly wages that were incorporated into its Forest Services contract. Garcia failed to pay its employees working on a reforestation project the required fringe benefits, minimum wage, overtime, and holiday way. The contractor also failed to maintain accurate pay and time records.

The president testified that he made the decision to pay one of his crews on a production basis to ensure that the work would be completed on time. The DOL investigation revealed that although the workers all traveled to and from the worksite together, they had “wildly inconsistent hours of work.” The DOL determined that “it was clear from this that the time sheets had been manipulated to make it appear that they were being paid on an hourly basis.”

Although it appeared that Garcia’s decision to switch the employees to a production-based wage was motivated by a good faith attempt to incentivize the workers to complete the contract on time, the SCA requires mandatory debarment for most violations absent “unusual circumstances.” The burden of establishing unusual circumstances lies with the contractor. DOL considers the seriousness of the violation; whether the violation was deliberate, willful, or the result of deliberate neglect; whether the contractor cooperated with the investigation, repaid amounts owed, and assured future compliance; and whether the contractor has previously been investigated for non-compliance.

In recent years, the DOL has increased the number of investigators in the Wage and Hour Division workforce. While SCA audits are often initiated as a result of an employee complaint, the DOL had recently started initiating audits on its own, conducting both random audits as well as following up on previous offenders. Now more than ever, contractors must make sure that their human resources department and back office are knowledgeable about the SCA and the requirements for compliance.

Stephanie Wilson is an attorney at the Washington, DC business law firm, Berenzweig Leonard, LLP. She can be reached at SWilson@BerenzweigLaw.com. 

SCA Contract Bids Must Account for Applicable CBA Wages and Benefits

Service employees working on a federal contract subject the Service Contract Act must be paid wages and fringe benefits not less than the prevailing wage determination or the wage rates and fringe benefits contained in a predecessor contractor’s Collective Bargaining Agreement (“CBA”). Because an existing CBA sets the floor for wages and benefits on follow-on contracts, offerors need a copy of the CBA to be able to adequately price their bid. A recent decision by the Armed Services Board of Contract Appeals confirmed that the agency is required to provide a complete copy of the CBA to offerors as part of the solicitation, so they can accurately bid for a contract.

In CAE USA Inc., ASBCA No. 58006 (Jan. 27, 2014), the Air Force posted a solicitation for services in support of the KC-135 Aircrew Training System at thirteen Air Force bases. The copy of the predecessor contractor’s CBA incorporated into the solicitation referred to but did not attach information regarding the fringe benefits the predecessor contractor provided to its employees on the current contract.

CAE USA, Inc. (CAE) was the successful bidder on the contract. During the solicitation process, CAE was aware that the copy of the CBA the agency provided to the bidders did not include details of the fringe benefits. Instead of bringing this to the attention of the contracting officer, CAE decided to base its bid on its estimate of what those benefits would cost. After award, CAE met with the Union and was provided with the missing information. CAE realized that the estimate used in its bid understated the actual fringe benefits provided in the CBA. As required by the Service Contract Act, CAE paid the higher fringe benefits. CAE then submitted a request for equitable adjustment to the contracting officer for the additional benefits that were not identified in the CBA provided during the solicitation process.

The contracting officer denied the request for equitable adjustment and CAE filed an appeal with the ASBCA. The Board addressed two questions: (1) does the Service Contract Act place an affirmative duty on the contracting officer to provide a complete copy of the CBA, including attachments, to bidders; and, (2) if so, does a bidder’s failure to advise the government of a CBA’s incompleteness and decision to formulate a bid on its own assumptions preclude it from recovery? The answer to both questions is yes.

The ASBCA held that “there can be no reasonable doubt that pursuant to FAR, it was the responsibility of the CO to provide a complete CBA.” Without the details of the fringe benefits included in the CBA, an offeror could not know the wage and fringe benefits it would be required to pay if it won the follow-on contract.

However, in this particular case, the offeror was aware that the CBA provided during the solicitation process was incomplete. Rather than asking the government to provide a complete copy, CAE chose to make assumptions about the fringe benefits in its offer. While the Service Contract Act imposes requirements on what the contractor must pay its employees, it does not dictate what an offeror must put in its offer. The Board held that “having chosen to submit an offer on the basis of its own assumptions, without notice to the government of the incompleteness of the CBA or what CAE’s assumptions were, it cannot now be heard to complain that its assumptions were not correct.

If an offeror becomes aware that an agency has not provided a complete copy of any applicable CBAs along with the solicitation, it should bring this to the attention of the contracting officer during the solicitation phase. If the offeror waits until it is awarded the contract, it will be stuck with any assumptions it made about applicable wages and benefits when submitting its bid and put at a big disadvantage.

Stephanie Wilson is an attorney at Berenzweig Leonard, LLP, a business law firm in the Washington metro area. She can be reached at swilson@berenzweiglaw.com.

What’s the Real Impact of the New Federal Contractor Minimum Wage Increase?

On February 12, 2014, President Obama signed an Executive Order raising the minimum wage to $10.10 per hour for federal contractors, starting January 1, 2015. Although the Administration has stated that the increase will apply only to new federal contracts, in reality it may end up applying to some existing federal contracts as well. The immediate impact of the minimum wage increase will vary depending on job and locality, but there are potential long-term implications of which companies should be aware. 

The Service Contract Act requires federal contractors performing service contracts to pay service employees no less than the wage rates set forth in Department of Labor wage determinations that are based upon local prevailing wages. The Service Contract Act recognizes that prevailing wages may change during the course of a service contract, and new wage determinations are incorporated into existing contracts when option years are exercised.

It is likely that, beginning no later than January 1, 2015, the prevailing wages set in the Department of Labor’s wage determinations will be at least $10.10, as that will be the new “prevailing wage” for the lowest-paid labor categories. If this happens, then when an option period on an existing service contract is exercised following the issuance of the new wage determination, these new minimum wages will apply. As with all increases in wage determinations, contractors will be entitled to a price adjustment to reflect any increases in wages and fringe benefits required by a new wage determination.

Because the majority of federal contractors are already being paid wages greater than $10.10 an hour, the immediate impact of the wage increase is minimal for most contractors in most areas of the country. The impact will be the greatest in the middle of the country where prevailing wages are lower, and for workers throughout the country working in lower-skilled service jobs, such as janitorial and food service positions. Raising the minimum wage of these traditionally lower-paid positions will likely cause a ripple effect eventually leading to an increase in the prevailing wages for other labor classifications and nearby regions, which will in time come to be reflected in the Department of Labor’s wage determinations.

Federal contractors should keep in mind both the immediate and long-term impact this minimum wage increase may have on their existing contracts and be aware of their right to request a price adjustment for any increases to the wages and fringe benefits required by a new wage determination.  The lawyers at Berenzweig Leonard have experience helping government contractors navigate the complexities of the Service Contract Act.

Stephanie Wilson is an attorney at Berenzweig Leonard, LLP, a business law firm in the Washington metro area. She can be reached at swilson@berenzweiglaw.com.

The President’s Minimum Wage Announcement Ignores Current Rates

President Obama recently announced his intent to sign an Executive Order which would unilaterally increase the minimum wage for certain workers on federal projects. The current federal minimum wage rate is $7.25 an hour, and President Obama is looking to raise it to $10.10 per hour. At first glance, one may think that such an increase will have a widespread impact on the Washington, DC metro area, given its large concentration of federal contractors.

This will not be the case. Such a change would only apply to new or revised federal contracts, and not to current federal contracts. More significantly, the majority of federal contractors are already being paid wages that are over the proposed minimum $10.10 rate, depending on their wage classification.

For example, a bulldozer operator on a federal project in Fairfax County can make a minimum rate of $20.40 per hour, and a court security officer in Washington, D.C. can make a minimum rate of $24.72 per hour. These rates are controlled by the Department of Labor through the Davis-Bacon Act and the Service Contract Act. Additionally, many federal contractors are union members, meaning that their wage rates and benefits are controlled by collective bargaining agreements. As a result, the President is targeting an issue that is already largely covered by federal law, wage determinations and collective bargaining.

President Obama plans to highlight his Executive Order in tonight’s State of the Union address. While the potential increase may derive from good intentions, it imposes a requirement on an already heavily-regulated industry, and many business owners know that they are already in compliance with the increase.

Katie Lipp is an attorney with the Washington, DC regional business law firm Berenzweig Leonard, LLP. Katie can be reached at klipp@berenzweiglaw.com.

Know How to Enforce Your Rights For Winning Task Orders

Although task order contracts are common, the rights contractors have to win one are complex and vary widely depending on whether the task orders are under FAR Part 8, the GSA Federal Supply Schedule (FSS) or FAR Part 16, Government-wide Acquisition Contracts (GWAC). It is important, therefore, to know exactly what your rights are under your specific contract – FSS contract or a GWAC – and  how to enforce them, as a recent decision of the Armed Services Board of Contract Appeals (ASBCA or Board) shows.

The decision deals with one significant difference between FAR Part 8 and FAR Part 16 task order competitions: the GWAC holder’s significantly limited right to challenge how an agency misuses the solicitation process.  Unlike FSS contract holders that have broad rights to protest to the Government Accountability Office (GAO) and the Court of Federal Claims (CFC), GWAC holders’ right to protest to GAO or the CFC is very limited. The Board’s decision is, therefore, significant because it shows that GWAC holders still can sue the government, not as a protest but as a claim under the contract’s Disputes clause.

PAW and Associates submitted a task order proposal under its GWAC with the National Guard, but the contracting officer refused to award a task order. PAW filed a claim under the contract’s Disputes clause arguing that the government did not evaluate PAW’s task order proposal fairly and honestly and, therefore, violated PAW’s right to a “fair opportunity” to be solicited and to be fairly evaluated. The Board agreed with PAW, and concluded that GWAC holders can file a claim to enforce their “fair opportunity” right.

This decision shows just one significant difference in the task order solicitation process. There are others that contractors must be aware of. For example, GWAC contract holders must be given a “fair opportunity” to be considered for ALL task orders over $3,000.  In contrast, not all contractors on a particular GSA Federal Supply Schedule have to be solicited; although FSS Requests for Quotations over $150,000 must be posted on e-Buy, a contracting officer has the alternative of simply trying to get quotes from at least three Schedule vendors seeking a FAR Part 8 task order.

These differing and complex rules affect significant contractor rights to future business. The lawyers at Berenzweig Leonard LLP have decades of experience working with these rules and helping government contractors understand and enforce their rights.

Terry O’Connor is the Director of  Government Contracts with Berenzweig Leonard, LLP, a DC region business law firm. Terry can be reached at toconnor@BerenzweigLaw.com.

A Contractor Makes a Dangerous Gamble When Its Bid Price Assumes the Approval of Local Permitting Authorities

Should a federal government construction contractor assume that its permit request for a construction project will be approved by local state authorities? Absolutely not, according to the United States Court of Appeals for the Federal Circuit. The Federal Circuit found that the plain language of FAR’s Permits and Responsibilities Clause, which was incorporated into a Federal Bureau of Prisons contract, allocated any financial cost associated with permitting solely on the contractor.

Bell/Heery was awarded a design-build construction contract to build a new federal prison in New Hampshire. The project specifications detailed a “cut-to-fill” site, meaning that the project land had to be leveled by excavating, or “cutting” materials from one area of the work site and using the same materials to fill lower areas. Bell/Heery’s proposal incorrectly assumed that the local environmental officials, the New Hampshire Department of Environmental Sciences (NHDES), would approve the cut-to-fill operations – and as an unfortunate result, Bell/Heery had to incur approximately $7.7 million in excess costs to perform, because NHDES did not approve the anticipated efficient cut-to-fill operations.

Bell/Heery attempted to recover the excess $7.7 million from the Federal Bureau of Prisons, arguing that the agency was contractually required to engage with NHDES about the cut-to-fill specifications and that the agency breached its duty of good faith and fair dealing by failing to engage with NHDES, among other allegations. The Federal Circuit did not agree, citing the FAR Permits and Responsibilities Clause, which made the contractor responsible for all permitting costs. Contractors putting together bids for federal government work should keep this decision in mind when pricing their bids, to ensure that they account for the possibility of permitting roadblocks and how these hurdles will impact their bottom line.

Katie Lipp is an attorney with the Washington, DC regional business law firm Berenweig Leonard, LLP. Katie can be reached at klipp@berenzweiglaw.com. 

Avoiding Careless Proposal Preparation Can Help Save Business

In a recent and instructive case, a company that had successfully performed contracts at Camp Pendleton for almost a decade lost a recent contract because it carelessly prepared its proposal. It failed to follow precisely the proposal instructions, relying instead on two wrong assumptions. First, it assumed that its good record would let the government overlook short-comings in its proposal. Second, these “short-comings” involved failing to fill in all the blanks the solicitation required; the company wrongly assumed that the government would blindly accept its explanation for the missing data. If the company had obtained an independent “second-view” of its draft proposal, these errors would have been corrected, leading to an acceptable proposal and more revenues.

A Navy solicitation for installation and repair of fencing warned offerors that any proposal that did not “clearly meet the minimum requirements of the solicitation” would be technically unacceptable.” Safety was to be evaluated in two ways. One way was an offeror’s “experience modification rate” (EMR) for the past three years; this compared a company’s annual losses in insurance claims against its policy premiums. The other way was the offeror’s “Days Away from Work, Restricted Duty, or Job Transfer” (DART) rate, as defined by the U.S. Department of Labor for the previous 3 years. If an offeror was not able to provide these, it had to “affirmatively state so, and explain why.”

The offer from Cherokee Chainlink and Construction provided nothing on either safety measure, although it did tell the Navy that its insurance “premiums were too low to generate an EMR.”  After Cherokee lost the contract because it failed to provide the required safety information, Cherokee protested to the Government Accountability Office (GAO). Cherokee argued that listing a “0” for its 2010 and 2012 DART rates was not necessary because “it was apparent that Cherokee had zeros for every year as the EMR was zero.” Perhaps Cherokee thought this was “apparent” based on its decade-long record of good performance.

GAO disagreed and the company lost the protest. Cherokee should have provided the DART rates required by the solicitation. “While Cherokee argued in its protest that the Navy should have otherwise known that the protester’s DART rates were zero based upon its statement in its proposal that its premiums were too low to generate an EMR, the Navy explained in its report that it could not presume Cherokee’s DART rates for 2010 and 2012 based upon this statement concerning the firm’s EMR.”

All Cherokee had to do to make its proposal acceptable for this factor was to fill in the blanks or at least explain clearly why there were blanks in its proposal. It should have assumed nothing, and unfortunately lost the work. Cherokee Chainlink & Construction Inc., B-408979, January 3, 2014.

The lawyers at Berenzweig Leonard have seen hundreds of technical proposals and can provide your company an independent “second-view” of your technical proposal prior to submitting it to the government. In previous blog articles, we have described a number of easily avoidable fatal mistakes that have unnecessarily cost offerors valuable contracts. With all the time and money a company spends on preparing a technical proposal, an inexpensive, independent second-view of your technical proposal is always a smart investment.

Terrence O'Connor is the Director of Government Contracts for Berenzweig Leonard, LLP, a DC regional business law firm. Terry can be reached at toconnor@berenzweiglaw.com. 

Decision 4. Bring an FSS Dispute to the One Contracting Officer Who Can Resolve It

Berenzweig Leonard is beginning the New Year with a summary of four important government contract legal decisions handed down in 2013. We began by describing in two blog articles the problems a government contractor can get into as a result of “apparent authority”, a one-sided legal concept that does not apply to the government but that does apply to a  government contractor and can be costly if not closely monitored. Later, we dealt with the two most fundamental, and most-ignored, rules in government contracting: an enforceable government contract decision can only come from the contracting officer and only if that decision is in writing.

We have saved THE most important decisions for last: decisions that dealt with disputes involving purchases under the GSA Federal Supply Schedule (FSS). Because a previous blog article on October 17, 2013 discussed these decisions in detail, we will only summarize their important conclusions here.

Decision 4. Bring an FSS Dispute to the One Contracting Officer Who Can Resolve It

In the GSA FSS process, two contracting officers are involved: the GSA contracting officer and the ordering agency contracting officer. Each has a different contract vehicle to deal with: the GSA contracting officer is responsible for the FSS contract with a vendor and the ordering agency contracting officer is responsible for the delivery or task order the agency uses to buy something off that vendor’s GSA FSS contract. When a schedule vendor has a dispute with the government over a delivery or task order, only one contracting officer is the correct one for a contractor to file a claim under the Contract Disputes Act. Which one is it?

According to the new rules developed by the U.S. Court of Appeals for the Federal Circuit (CAFC) and the Armed Services Board of Contract Appeals (ASBCA) in the decisions described in the earlier blog:

Contract interpretation issues: the GSA contracting officer is the only contracting officer to handle a dispute involves interpretation of the terms and conditions of the FSS schedule contract. However, when the dispute is over the terms and conditions of the FSS order, the ordering contracting officer must resolve the dispute.

Performance issues: the ordering agency contracting officer is the only contracting officer that can decide performance issues not involving interpretation of the FSS contract such as whether the contractor’s default was excusable.

Terry O'Connor is the Director of Government Contracts with Berenzweig Leonard, LLP, a DC regional business law firm. He can be reached at toconnor@BerenzweigLaw.com.

Decision 3. Deal with the Contracting Officer and Get the Decision in Writing

Berenzweig Leonard is beginning the New Year with a summary of four important government contract legal decisions handed down in 2013. We began by describing in two blog articles the problems a government contractor can get into as a result of “apparent authority”, a one-sided legal concept that does not apply to the government but that does apply to a government contractor and can be costly if not closely monitored.   Today we deal with the two most fundamental, and most-ignored, rules in government contracting: an enforceable government contract decision can only come from the contracting officer and only if that decision is in writing. 

Decision 3. Deal with the Contracting Officer and Get the Decision in Writing

Every year, decisions show that government contractors break the two most critical rules in government contracting: if an agreement is to be binding on the government, it must be in writing and signed by the contracting officer.

No written document. 

A contractor thought it had reached a settlement agreement with the government on a termination for convenience because the government had agreed to a $485,000 settlement in a telephone conference with the contracting officer who advised the contractor that written confirmation of the amount would be forthcoming. When that written confirmation came, however, it said that the last signature on the currently unsigned agreement would have to be the government’s. When the government failed to go through with the settlement, the contractor tried to force the government to honor the oral settlement but lost. FAR Part 49 explicitly requires termination for convenience settlement proposals to be a written contract modification and the parties had not reached that point in their settlement process. Sigma Construction Co. v. United States, CFC No. 12-865, September 30, 2013.

No contracting officer approval. 

Getting to the contracting officer can be a serious problem. Because a contractor typically works closely with an agency’s technical personnel, the agency’s contract administration personnel, in particular the contracting officer, often is only in the distant background. This can be especially true for Department of Defense agencies that have multiple layers of authority: a contracting officer whose identity may change over the course of a multi-year contract,  a contracting officer’s representative (COR) or technical representative (COTR), plus perhaps some other contractors providing support to a project. However, regardless of how distant the contracting officer may seem to a contractor, it’s essential that the contracting officer be kept in the loop, especially when a contract clause demands it and warns a contractor that lack of contracting officer approval may be fatal.

A contractor recently ended up working for the government for free because the contractor had failed to get the contracting officer’s approval to continue working as required by a contract clause.   Because the contractor’s task order would be funded in two to three month increments, the government wanted to carefully monitor how much money had been spent and how much remained in any increment.  Monitoring would be done via a DFARS clause, 252.232-7007, Limitation on Government Obligation (LOGO) that required the contractor to notify the contracting officer in writing at least 90 days before the date the contract work would reach 85 percent of the total amount then allotted. In addition, the clause prohibited the contractor from spending more than the allotted amount, stating expressly that the government “will not be obligated in any event to reimburse the contractor in excess of the amount allotted to the contract.”

Despite these clear requirements, the contractor did not comply with them. In fact, the contractor kept on working after 100 percent of the increment had been spent, believing what other government personnel were telling it: that the money was in the pipeline. The additional money, however, never came through and eventually the government issued a stop work order due to lack of funding. Although the government paid the contractor 100 percent of the funds allotted to the work, it refused to pay the contractor the additional $288,000 the contractor claimed it had spent based on assurances received from the government personnel other than the contracting officer. A board of contract appeals agreed with the government that the contractor was not entitled to payment so the contractor ended up working for free. Dynamics Research Corp., ASBCA No. 57830, March 26, 2013.

Terry O'Connor is the Director of Government Contracts with Berenzweig Leonard, LLP, a DC regional business law firm. He can be reached at toconnor@BerenzweigLaw.com.

Decision 2. Corporate Liability for Employee Kickbacks

Berenzweig Leonard is beginning the New Year with a summary of four important government contract legal decisions handed down in 2013. A previous blog article discussed the one-sided legal concept of “apparent authority” that applies to a government contractor but not to the government. Today we discuss another problem presented by “apparent authority”: how the management of a government contractor could be liable for kickbacks company employees receive.

Decision 2. Corporate Liability for Employee Kickbacks

Apparent authority can cost a contractor significant penalties under the Anti-Kickback Act (AKA). Regardless of whether a government contractor knew that its employees were violating the AKA), the company may be civilly liable – for each occurrence, double damages plus $11,000 – for kickbacks its employees received. Alternatively, regardless of what a government contractor knew, the contractor may be liable for the actual amount of the kickback. An appeals court held that the company could be liable for “double damages plus $11,000” for its employees’ violations of the AKA based on “apparent authority” if, later in the litigation, the government proved that the kickback-accepting employees had the apparent authority to implicate their employer. United States ex rel., David Vavra  v. Kellogg Brown and Root, U.S. Court of Appeals for the Fifth Circuit No. 12-40447, July 19, 2013.

Terry O'Connor is the Director of Government Contracts with Berenzweig Leonard, LLP, a DC regional business law firm. He can be reached at toconnor@BerenzweigLaw.com.

Decision 1. Do Not Create "Apparent Authority"

With so many government contract legal decisions handed down during any year, it’s helpful at the start of the New Year to summarize those handed down the previous year that impact a government contractor’s bottom line. Over the next four days, we will provide a summary of an important decision from last year, typically one that serves as a reminder of the costly consequences of ignoring the often-obscure rules of government contracting.  

Today, we describe “apparent authority”, a one-sided legal concept that does not apply to the government but does apply to a government contractor and can cost a government contractor dearly.   

Decision 1. Do Not Create "Apparent Authority"

If a contractor is not vigilant, it can be harmed by “apparent authority.”  This dangerous concept is best explained by the Seven Seas Shiphandlers, LLC.  Seven Seas had a contract for work with the U.S. government in Afghanistan.  For convenience, Seven Seas let one of its subcontractor’s employees deliver Seven Seas’ invoices to the government. Also, on several occasions, the government gave him Seven Seas’ payments in cash which he gave to Seven Seas. But in early June 2009, the government gave him over $240,000 as full payment for five Seven Seas contracts and he has not been seen since then. A board concluded that the government could avoid paying Seven Seas for those five contracts if the government could prove that Seven Seas had given the subcontractor’s employee “apparent authority” to receive Seven Seas’ payments. Seven Seas Shiphandlers LLC, ASBCA 57875-79, 26 November 2012.

Terry O'Connor is the Director of Government Contracts with Berenzweig Leonard, LLP, a DC regional business law firm. He can be reached at toconnor@BerenzweigLaw.com.