Government Contracts Insider

Legal commentary in the area of Government Contracts Law

There is a tension in Government Contracting: How does a contractor adequately protect its rights given the day-to-day realities of working with its Government Customer? It is not uncommon for contracting officials to forgo certain formal procedures in their interaction with contractors. When this happens, Contractors may be inclined to follow the Government’s lead in order to move the project forward. This “going-along-to-get-along” can take many different forms. For example: (i) complying with the direction…
A recent case from the Court of Federal Claims provides us with a useful summary of several legal principles applicable to constructive changes and cardinal changes. The case arose out of a contract to supply mail processing machines to the U.S. Postal Service. In Northrop Grumman Systems Corporation v United States, 12-286C (October 31, 2018), the contractor alleged that the Postal Service had constructively changed the supply contract through several different actions. The contractor and…
The Court of Federal Claims directed judgment for the Government in a case where nearly thirty percent of the anticipated drilling elevations were incorrect, yet the geotechnical report was clear that the contractor should not rely on those elevations as final. In Walsh Construction Co, v. United States, — Fed. Cl. —, No. 16-845 C, 2018 WL 4770781, at *1 (Fed. Cl. Oct. 3, 2018), Walsh Construction won a contract with the Army Corps…
A recent decision by the Court of Federal Claims underscores the need to provide notice of potential claims as well as the effects of exculpatory language limiting the ability to rely upon information provided by the government. In CKY Inc. v. U.S., No. 16-948 C, 2018 WL 4956963 (Fed. Cl. Oct. 12, 2018), the Court of Federal Claims dismissed a differing site condition claim, in part, because: the contract had a provision that made reliance…
A recent decision by the Armed Services Board of Contract Appeals underscores the importance of timely filing a certified claim for excusable delay, and the risks of failing to do so. In ECC CENTCOM Constructors, Inc. (September 4, 2018), the ASBCA denied a construction contractor’s appeal from a termination for default. Critical to that ruling was the Board’s refusal to consider the contractor’s assertion that it had encountered excusable delays during the course of project…
Even though it sometimes seems otherwise, there are limits to the Government’s authority when it comes to enforcing a contractual release. As the following decision demonstrates, this is especially so when a contractor’s personal residence is on the line. In North American Landscaping, Construction, and Dredge, Co., Inc. (“NALCO”), ASBCA Nos. 60235 et al. (Aug. 9, 2018), a contractor, NALCO, won a contract with the Army Corps of Engineers to dredge portions of…
In another recently released bid protest sustained by the Court of Federal Claims, the Court addresses a protestor’s standing and an offeror’s ability to rely on the experience of its subcontractors in satisfying technical evaluation criteria. This question of when and how to rely on an affiliate’s experience recently came up at an industry event and this case provides a thorough discussion of when such reliance is acceptable and how offerors must structure their proposals…
A recent decision by the Armed Services Board of Contract Appeals reminds us of the importance of obtaining commitments from your key subcontractors after award. In CDM Constructors, Inc. (August 20, 2018), the ASBCA dismissed on summary judgment a construction contractor’s claim for increased costs arising out of a contract for the construction of dissolved oxygen injection systems at two locations in the Savannah River. On August 14, 2015, following award of the contract, the…
One of the most common, and challenging, arguments made in a post-award bid protest is that the contracting officer’s evaluation was arbitrary and capricious. The challenge with this argument is overcoming the substantial deference that the GAO and Courts grant to a contracting officer’s judgment. Because of this deference, it can be difficult to establish that the contracting officer’s assessment of strengths and weaknesses in an offeror’s proposal is arbitrary. In a recent decision by…
In a recent decision the Small Business Administration’s Office of Hearings and Appeals (“OHA”) affirmed a determination that a company was other than small based on the company’s failure to provide adequate information in response to a size protest. In Perry Johnson & Assoc., Inc., SBA No. SIZ-5943 (2018) OHA confirmed that a failure to respond to an SBA protest may result in an adverse size determination regardless of the company’s ignorance of size regulations.…