Supreme Court Review of Bid Protest?

This Friday, May 1, 2015, the government is expected to submit its response to the petition for certiorari filed by Kingdomware Technologies, Inc., which seeks to reverse the Federal Circuit’s 2-1 ruling that the VA may use FSS without considering available VOSBs and/or SDVOSBs to fulfill the requirement.  Please click here for a fantastic summary of the issues drafted by  Duane Morris appellate counsel Luke McLoughlin and Kristina Caggiano.

Practical Considerations for Government Contract Claims: Avoiding Claim Denial and/or Appeal Dismissal

Every week, the boards and courts dismiss numerous contract appeals due to insufficient or otherwise defective contract claims (like the case we featured in February).  As a former U.S. Army contract trial attorney, I know this number is at least double taking into account unpublished decisions and contractor withdrawals.  However, I also recognize that many of the issues warranting dismissal are easily avoidable.

This post provides a few practical considerations that will help avoid a contracting officer’s denial and/or appeal dismissal.  Continue reading “Practical Considerations for Government Contract Claims: Avoiding Claim Denial and/or Appeal Dismissal”

First Steps In Implementation Of Fair Pay And Safe Workplaces Executive Order Are Underway

On March 5, 2015, the U.S. Department of Labor (DOL) and the Office of Management and Budget (OMB) issued a joint memorandum to the heads of executive departments and agencies. The joint memorandum directed agencies to start hiring Labor Compliance Advisors (LCA’s) as the first step in a much larger process of implementing EO 13673, Fair Pay and Safe Workplaces.

EO 13673 requires federal contractors responding to solicitations valued at more than $500,000 to disclose to contracting officers all administrative merits determinations, arbitral awards, or civil judgments in labor or employment matters. Subcontractors are also required to make similar disclosures to prime contractors, who then turn the disclosed information over to the contracting officer. Agency contracting officers, with the assistance of LCA’s, are then required to use the disclosed labor and employment information to make responsibility determinations for the contractors and subcontractors. Continue reading “First Steps In Implementation Of Fair Pay And Safe Workplaces Executive Order Are Underway”

Golden Rules of Fiscal Law: Purpose, Time & Amount

This week, the VA Inspector General reported that the certain government officials illegally used funds to develop a claims processing system that were intended to be used for  medical support and compliance.    This is what is called a “fiscal law” problem.

What is Fiscal Law?  Fiscal law is the body of law that governs how federal agencies may use the funds appropriated to it by congress that, believe it or not, are grounded in the U.S. Constitution.  This post highlights the golden rules of fiscal law:  Purpose, Time & Amount. Continue reading “Golden Rules of Fiscal Law: Purpose, Time & Amount”

Contractors Must Provide Sufficient Notice Of The Basis And Amount Of A CDA Claim

The U.S. Court of Appeals for the Federal Circuit recently decided the case of K-Con Building Systems, Inc. v. United States, No. 2014-5062 (Fed. Cir. Feb. 12, 2015). While this construction case reaffirms some relatively unremarkable concepts of liquidated damages and changes, it does provide some helpful guidance for all federal contractors regarding the required contents of claims against the government under the Contract Disputes Act (“CDA”) .

K-Con Building Systems, Inc. (“K-Con”) contracted with the U.S. Coast Guard to build a $582,641 cutter support team building in Port Huron, Michigan. The project was supposed to be completed by November 20, 2004. The Coast Guard accepted the building as substantially complete on May 23, 2005, and withheld payment of $109,554 in liquidated damages (“LD’s”) computed at the contractually determined level of $589 per day. On July 28, 2005, K-Con submitted a CDA claim to the contracting officer requesting remission of the LD’s, asserting that the LD’s constituted an impermissible penalty. The claim also obliquely mentioned that the Coast Guard had failed to issue extensions to the completion date as a result of changes to the contract, but K-Con never set out any more facts behind this extension issue. The Contracting Officer denied the claim, and K-Con filed suit in the US Court of Federal Claims. Continue reading “Contractors Must Provide Sufficient Notice Of The Basis And Amount Of A CDA Claim”

A New Protected Disclosure Venue Suggests Permanence For Demonstration Project Federal Contractor Employees’ Whistleblower Protections

In 2013, Congress enacted 41 U.S.C. § 4712 to provide whistleblower protections to employees of federal contractors who made disclosures concerning alleged “evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant.” 41 U.S.C. § 4712(a)(1). These new whistleblower protections were initially set up as a four year demonstration project, set to expire in 2017. See 41 U.S.C. § 4712(i).

In a sign that the current Administration may intend to make the demonstration project whistleblower protections permanent, the United States Office of Special Counsel (“OSC”) recently published proposed regulations establishing itself as “open for business” to receive federal contractor employees’ whistleblower allegations. 80 Fed. Reg. 3182. Upon receipt of an federal contractor employee’s allegations, OSC will review the allegations to determine if “there is a substantial likelihood that the information discloses a violation of any law, rule or regulation; gross mismanagement; gross waste of funds; abuse of authority; or a substantial and specific danger to public health or safety.” If OSC makes a “substantial likelihood determination,” then it shall prepare a written report and refer the matter to the contracting agency for appropriate action. Continue reading “A New Protected Disclosure Venue Suggests Permanence For Demonstration Project Federal Contractor Employees’ Whistleblower Protections”