Federal Contracts: The Year In Review James F. Nagle Oles Morrison Rinker & Baker LLP

FAC – March 2, 2012 Finalize the Women-Owned Small Regulations Finalize the Proper Use in Management of Cost Reimbursement Contracts Adopts as Final the Rule on Requirements for Acquisition Pursuant to Multiple Award Contracts Adopts as Final the Rule on Socio-Economic Program Parity Federal Contracts: The Year in Review 2

FAC System for Award Management (SAM) New Requirements on Brand Name Specifications T&M and LH Contracts for Commercial Services FAPIIS Revisions Federal Contracts: The Year in Review 3

FAC Notice for employees and their rights under Federal Labor Laws Steps to identify and prevent personal conflicts of interest SDBs to self-represent their status Federal Contracts: The Year in Review 4

FAC Final Rules on Equal Opportunity for Veterans Suspension and Debarment Requirement Flow Down to All Subcontracts, Except COTS Extends the Sunset Date for Protests Against the Award of Task or Delivery Orders by DOD, NASA and the Coast Guard from May 27, 2011 to September 30, Federal Contracts: The Year in Review

FAC Another “green initiative” Federal Agencies are required to leverage Agency Acquisitions to foster markets for sustainable technologies, materials, products and services Agencies must implement high-performance sustainable practices Updates Final Closeout Procedures Finalize the Prohibition on Contracting with Inverted Domestic Corporations Finalize as an Exemption from the Buy American Act for Acquisition of a Commercial Technology that is a Commercial Item One Duty of Contract Administration is to Assure that Contractors Have Implemented FAR , Contractor Code of Business Ethics and Conduct 6 Federal Contracts: The Year in Review

FAC Implements Women-Owned Small Business Program New Subpart New clauses – , Notice of Total Set Aside for EDWOSBs – , Notice of Total Set Aside for WOSBs 7 Federal Contracts: The Year in Review

FAC Proper Use and Management of Cost Reimbursement Contracts Requirements for Acquisition Pursuant to Multiple Award Contracts Additional Requirements for Market Research Socioeconomic Program Parity 8 Federal Contracts: The Year in Review

FAC , Justification and Approval of Sole Source 8(a) Contracts Implement Section 811 of the National Defense Authorization Act for FY 2010 Prohibits the award of a sole source contract over $20 million under the 8(a) Program without first obtaining a written J&A June 16, 2011 Memorandum from Director, Defense Procurement and Acquisition Policy emphasizes that interim rule only requires five elements, out of 12, to be completed by the contracting officer 9 Federal Contracts: The Year in Review

FAC Federal Awardee Performance and Integrity Information System (FAPIIS) Data, Excluding Past Performance Reviews, Will be Available to the Public New FAR Clause 10 Federal Contracts: The Year in Review

Protests Timeliness – Watterson Construction Company Proposal properly ed in time Not received in the C.O.’s inbox in time because of an unexplained “mail storm” at the Army Corps’ Server Proposal not late because it is excused by the “Government Control Exception” Also C-T Construction JV – Agency failed to employ adequate procedures to receive a proposal delivered to designated address more than three hours before submission deadline 11 Federal Contracts: The Year in Review

Conflict of Interest Disqualification for OCI must be based on hard evidence, not assumptions – VSE Corporation Agency’s review of OCI was inadequate – PCCP Constructors Agency’s mitigation efforts of an OCI were inadequate – NETSTAR-1 Government Consulting, Inc. Federal Contracts: The Year in Review 12

Unjustified Requirements Government must have rational basis for its requirements. Technosource Information Systems Government should include estimates that it believes are accurate. Global Computer Enterprises Brand Name Solicitation must include salient characteristics. California Industrial Facilities Resources Federal Contracts: The Year in Review 13

GAO Bashes the SBA SBA erroneously denies Certificate of Competency – Construct Solutions Inc. A valid obligation must reflect a bonafide need at the time the obligation is incurred – SBA IDIQ Contract Guaranteed Minimum Federal Contracts: The Year in Review 14

Standing The entity awarded the contract must be the entity who participated in the procurement. W. B. Construction and Sons, Inc. Only service-disabled, veteran-owned small businesses can protest service-disabled, veteran-owned small business procurements – MICCI Imaging Federal Contracts: The Year in Review 15

Terminations for Default Advanced Construction Services, Inc. – no requirement for the Government to conduct analysis as to whether terminating a contractor for default is more economical that allowing a contractor to continue and access liquidated damages Roger W. Holcombe – evidence discovered after the termination for default can be used to justify the termination for default Tawazuh Commercial – failure of government to perform an earlier inspection does not shift performance burden to the government 16 Federal Contracts: The Year in Review

Terminations for Default (continued) If you are going to terminate for default, don’t wait too long. Environmental Safety Consultants, Inc. A contractor’s anticipatory repudiation may b excused due to the government’s material misrepresentation. Tzell Airtrak Travel Group Corp. Federal Contracts: The Year in Review 17

Standing HomeStar Services, Inc. In order to file an appeal, a company must have standing A dissolved corporation under Florida law did not have standing 18 Federal Contracts: The Year in Review

Estimates Government estimates must be reasonably accurate. BECO Construction Co., Inc. Federal Contracts: The Year in Review 19

Interference IN-FIN-ITY Geotech Services v. Department of the Interior “Where the contract gives a contractor discretion to choose its method of performance, the Government’s rejection of the reasonable method, including a change of method after performance begins, entitles the contractor to an equitable adjustment.” 20 Federal Contracts: The Year in Review

Claims Waiting fourteen years to file a claim is unreasonable. Marut Testing & Inspection Services A claim can be a claim even if it’s entitled an REA. Zafer Taahhut Insaat ve Ticaret A. S. Federal Contracts: The Year in Review 21

Only Take Direction From the Contracting Officer General Construction Services. Chief of the Logistics Division and Facility Manager is not the Contracting Officer Federal Contracts: The Year in Review 22