Government Contracts Update
News for the Week of February 18, 2019

Hot Topic:
House Passes Small Business Contracting Bills
The House of Representative has passed, with overwhelming support, four bills addressing small business contracting. H.R. 190, which would create the Expanding Contracting Opportunities for Small Businesses Act of 2019, passed by a vote of 415 to 6 on January 16. The bill would amend the Small Business Act (15 USC 14A) to eliminate the inclusion of option years in the award price for sole source contracts.

A contracting officer would be allowed to award sole source contracts to any qualified small business concern if the small business concern is determined to be a responsible contractor with respect to performance of the contract opportunity, and the CO does not have a reasonable expectation that two or more qualified small business concerns will submit offers for the contracting opportunity.

H.R. 206, which proposes the Encouraging Small Business Innovation Act, passed by a voice vote on January 14. This bill would create requirements with respect to the Small Business Innovation Research Program and the Small Business Technology Transfer Program. The bill includes small business investment companies in the SBIR and STTR programs, and encourages participation in the Mentor-Protégé Program.
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Legal News:
Empty Excel Cells Warranted Elimination of Proposal
It was not arbitrary or an abuse of discretion for the government to eliminate a protester from a competition for information technology support services, according to the Court of Federal Claims, because by leaving Excel spreadsheet cells blank instead of showing $0.00, the protester's proposal omitted mandatory prices, which was a material defect. Excel's automatic function calculations did not supersede the RFP's clear directives to provide values in dollar and cents, and the government reasonably read the protester's proposal as failing to include a price for one of the mandatory contract line items. (ManTech Advanced Systems Int'l, Inc. v. U.S., FedCl, 63 CCF ¶81,569)
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Government Knowingly Provided Defective Specifications
The contractor was entitled to summary judgment on a defective specifications claim, according to the Court of Federal Claims, because it was undisputed the government knowingly provided defective survey data and failed to correct the error in a timely manner. In addition, when the contractor identified the defects after it began performance, the government deliberately withheld more accurate survey data. Finally, it was undisputed that the government's initial process for resolving survey discrepancies was ineffective. (Ultimate Concrete, LLC v. U.S., FedCl, 63 CCF ¶81,565).
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Contractor's Claim Time-Barred, Subcontractor's Claim Timely
Cross-motions for summary judgment on the timeliness of the contractor's appeal were granted in part and denied in part by the Armed Services Board of Contract Appeals because the contractor's claim was time-barred under the Contract Dispute Act's six-year statute of limitations, but the contractor's claim on behalf of its subcontractor was timely filed. In December 2004, the Occupational Safety and Health Administration issued a regulation requiring the contractor and its subcontractor to post a fire watch during "hot work" in the assembly of the submarines. In February 2005, the contractor submitted a contract change memorandum to the government stating it was entitled to a price adjustment for increased costs resulting from the regulation. (Electronic Boat Corp., ASBCA, ¶95,667)
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Unclear if Awardee Met RFQ's Schedule and Testing Requirements
The Comptroller General sustained a protest of a Federal Supply Schedule order for lift deck beds because the government did not reasonably consider whether the awardee's bed met a solicitation requirement for quoted items to be listed on the vendor's schedule contract and comply with the contract's testing requirements. The government maintained the quoted beds were permissible "customized versions" under language in the FSS solicitation. However, there was no indication the government meaningfully considered whether the vendors' modified bed designs qualified as customized versions of their schedule items. (Hi-Tech Bed Systems Corp., 34 CGEN ¶116,256)
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Major Contract Awards:
Shipbuilding — $15.2 Billion
Huntington Ingalls Industries - Newport News Shipbuilding, Newport News, Virginia, was awarded the detail design and construction efforts for nuclear-powered aircraft carriers Enterprise (CVN 80) and unnamed CVN 81 under three contract actions. The Naval Sea Systems Command, Washington, District of Columbia, is the contracting activity.
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Aviation Logistics Services — $12.6 Billion
Multiple contractors were awarded indefinite-delivery/indefinite-quantity contracts for logistics services for the Contracted Maintenance, Modification, Aircrew and Related Services Program in support of aviation platforms of various Navy and Air Force type/model/series aircraft, inter-related systems, subsystems, and services. The Naval Air Warfare Center Training Systems Division, Orlando, Florida, is the contracting activity.
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Enterprise Ground Services Support— $655 Million
Engility Corp., Andover, Massachusetts, has been awarded a $655,000,000 firm-fixed-price, cost-reimbursement contract for engineering, development, integration, and sustainment services supporting the current Ground System Enterprise. Space and Missile Systems Center Kirtland Air Force Base, New Mexico, is the contracting activity.
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Missile Production — $560 Million
Lockheed Martin Space, Sunnyvale, California, was awarded $559,622,074 for a cost-plus-incentive-fee, fixed-price-incentive, cost-plus-fixed-fee modification to a previously awarded contract for Trident II (D5) missile production and deployed system support. Strategic Systems Programs, Washington, District of Columbia, is the contracting activity.
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Ancillary Mission Equipment — $542 Million
Lockheed Martin Aeronautics Co., Fort Worth, Texas, is being awarded a $542,225,679 firm-fixed-price indefinite-delivery/indefinite-quantity contract for ancillary mission equipment and associated AME initial spares in support of Lot 13 F-35 Lightning II aircraft. The Naval Air Systems Command, Patuxent River, Maryland, is the contracting activity.
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Engine Development — $517 Million
General Electric Aviation, Lynn, Massachusetts, was awarded a $517,375,800 cost-plus-incentive-fee and firm-fixed-price contract for the engineering and manufacturing development phase of the Improved Turbine Engine Program. U.S. Army Contracting Command, Redstone Arsenal, Alabama, is the contracting activity.
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From Wolters Kluwer Legal & Regulatory's Government Contracts editors, here are summaries of the important recent developments in this practice area. Complete coverage of these issues, and more, appears in Government Contracts Reports, the Government Contracts Reporter, and related CCH products.

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