Court of Federal Claims | The Contracting Education Academy

March 2, 2021 By cs

For government-furnished property, the government not granting an equitable adjustment may be a breach of contract

The Federal Circuit’s published decision in BGT Holdings LLC v. United States (Dec. 23, 2020) holds that the government’s refusal to adequately consider a contractor’s request for equitable adjustment (REA) could be considered a breach of contract.

In this case, BGT Holdings LLC (BGT) was appealing a dismissal of its claims by the Court of Federal Claims (COFC) in a dispute with the Navy.

BGT was performing a fixed-price contract to build and deliver a gas turbine generator for the Navy. As part of its performance, BGT was to receive and incorporate certain government-furnished equipment (GFE) into its deliverable. Well into performance, the Navy cancelled two of the GFE items, requiring BGT to purchase them on the open market. BGT filed an REA to recoup the costs to purchase the cancelled GFE, consistent with FAR § 52.245-1(d)(2)(i), Government Property and FAR § 52.243-1, Changes – Fixed-Price. The Navy rejected the REA.

On appeal, the Federal Circuit considered BGT’s five grounds for relief in its complaint:

The Navy’s withdrawal of the GFE was a constructive change, entitling BGT to an equitable adjustment;
The reduction of GFE was an official change to the contract for which BGT was entitled to an equitable adjustment;
The Navy breached its contractual duty to deliver the GFE, and therefore BGT was entitled to damages;
The Navy breached its contractual duty to provide an equitable adjustment after failing to deliver the GFE and obligating BGT to provide it; and
The Navy breached its implied duty of good faith and fair dealing by failing to deliver the GFE.

Keep reading this article at: https://www.mondaq.com/unitedstates/government-contracts-procurement-ppp/1040080/for-government-furnished-property-the-government-not-granting-an-equitable-adjustment-may-be-a-breach-of-contract

February 23, 2021 By cs

Size recertification prior to contract award – When is it required?

The U.S. Court of Federal Claims (COFC) decision in HWI Gear, Inc. v. United States highlights the importance of reviewing a solicitation to determine if the text of Federal Acquisition Regulation (FAR) 52.219-28 is included in it, as well as the risk of engaging in corporate transactions while a proposal to a procuring agency is pending.

In this case, the COFC held that an offeror was required to recertify its size status during a procurement, and the agency’s failure to enforce this requirement invalidated the award.

In HWI Gear, Mechanix Wear, Inc. (Mechanix) and HWI Gear, Inc. (HWI) submitted proposals in response to a solicitation set aside for small businesses. After proposal submission but before award, Mechanix informed the procuring agency that it had changed its corporate structure from a corporation to a limited liability company and changed its corporate name, but that all other terms and conditions in its proposal remained unchanged. Mechanix, however, did not inform the agency that its change in corporate structure was the result of a merger with a large business and that Mechanix no longer qualified as a small business under the size standard established for the procurement. The agency ultimately selected Mechanix as the awardee, and HWI filed a bid protest challenging the agency’s evaluation.

Keep reading this article at: https://www.jdsupra.com/legalnews/size-recertification-prior-to-award-4583775/

February 16, 2021 By cs

Bid protests: The what, who, when, and where

When thinking about bid protests, it is helpful to first look at the basics.

What is a bid protest,
Who can file a bid protest,
When is a bid protest filed, and
Where is a bid protest filed?

For anyone going through a bid protest, hiring a knowledgeable attorney who is experienced in this area can be beneficial in providing guidance through the process. But as a primer, here is an outline of the what, who, when and where of bid protests involving government contracts.

Keep reading this article at: https://www.jdsupra.com/legalnews/bid-protests-the-what-who-when-and-where-7486301/

January 14, 2021 By cs

COFC confirms ‘rule of two’ analysis applies before agency decides to utilize a multiple-award vehicle

The U.S. Court of Federal Claims (COFC) issued a decision on Nov. 30, 2020 that supported the Small Business Administration’s position regarding the Rule of Two analysis requirements for government acquisitions.

The central question surrounding the case was whether the U.S. Army could cancel a Federal Acquisition Regulation (FAR) Part 8 service-disabled veteran-owned small business (SDVOSB) set-aside procurement under the General Services Administration’s Federal Supply Schedule (FSS) and move the requirement to a multiple-award indefinite-delivery, indefinite-quantity (MAIDIQ) contract vehicle that the plaintiff, The Tolliver Group, Inc. (Tolliver), did not hold.

In its protest, Tolliver argued, in part, that the Army’s actions violated the Rule of Two because the agency was required to determine whether two or more small businesses were capable of performing the requirement prior to choosing to put the procurement on the MAIDIQ contract.

The COFC’s decision confirms that the Rule of Two analysis applies before an agency elects to procure a requirement from a multiple-award contract (MAC) vehicle under FAR Part 16.5.

The Rule of Two requires contracting officers to set aside any acquisition over the simplified acquisition threshold for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns and (2) the award will be made at fair market prices.

In Tolliver, the Army argued that a Rule of Two analysis was not required because—according the Small Business Jobs Act, as implemented in 15 U.S.C. § 644(r)—federal agencies have the discretion to issue MACs without first conducting a Rule of Two analysis to determine whether it should be set aside for small businesses.

Keep reading this article at: https://www.jdsupra.com/legalnews/cofc-confirms-rule-of-two-analysis-83418/

January 4, 2021 By cs

Judge sides with Navy in latest challenge to $7.7 billion NGEN contract

A federal court has ruled against Perspecta in a lawsuit that sought to overturn the Navy’s latest iteration of its Next Generation Enterprise Network contract, likely clearing the way for work to begin on one of the largest information technology contracts in government history.

The precise reasons behind Judge Loren Smith’s final judgement in the case aren’t yet known, because he filed his opinion under seal — a common practice at the Court of Federal Claims to protect sensitive acquisition information. A public version of the document is expected by early January.

The lawsuit was over the Navy’s award of the larger of two contracts that make up its latest recompetition of NGEN, known as Service Management, Integration and Transport. The Navy awarded SMIT, valued at up to $7.7 billion over eight years, to Leidos in February.

“The Department of the Navy is pleased to be able to move forward with this critical program in support of our Navy and Marine Corps warfighters,” Ruth Youngs-Lew, the Program Executive Officer for Digital and Enterprise Information Systems said in a statement. “This contract will enable the DON to accelerate digital modernization of our enterprise networks, which are the foundation for the Department of Navy business.”

Keep reading this article at: https://federalnewsnetwork.com/navy/2020/12/judge-sides-with-navy-in-latest-challenge-to-7-7-billion-ngen-contract/

The Federal Circuit’s published decision in BGT Holdings LLC v. United States (Dec. 23, 2020) holds that the government’s refusal to adequately consider a contractor’s request for equitable adjustment (REA) could be considered a breach of contract.

When thinking about bid protests, it is helpful to first look at the basics.

The U.S. Court of Federal Claims (COFC) issued a decision on Nov. 30, 2020 that supported the Small Business Administration’s position regarding the Rule of Two analysis requirements for government acquisitions.

A federal court has ruled against Perspecta in a lawsuit that sought to overturn the Navy’s latest iteration of its Next Generation Enterprise Network contract, likely clearing the way for work to begin on one of the largest information technology contracts in government history.

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