Government Contracts Update
News for the Week of April 16, 2018


Hot Topic:
GAO Issues Regulations for Electronic Filing System
The Government Accountability Office has amended its bid protest regulations at GAO 21.0 through GAO 21.14 to implement an electronic filing and document dissemination system. The system created by this final rule is called the Electronic Protest Docketing System.

As of May 1, 2018, EPDS will be the sole means for filing a bid protest at GAO (except for protests containing classified information). Also, EPDS will enable parties to a bid protest and GAO to file and receive documents.

Additional guidance for the use of EPDS is available in the EPDS instructions, at https://epds.gao.gov/login. The EPDS instructions address how persons filing a protest must pay the filing fee, and the circumstances under which the fee will apply. The proposed fee is $350.
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Legal News:
No Explanation for Failure to Anticipate End of Bridge Contract
The government's decision to award a sole-source bridge contract for nursing services was remanded to the procuring agency by the Court of Federal Claims because the record did not provide sufficient facts to determine whether the award had a rational basis. The government relied on the justification there was "only one responsible source" and "no other type of ... services" would meet its needs (10 USC 2304(c)(1)). However, "[f]ailure to account for transition periods between an incumbent contractor and a new contractor is ... a form of lack of advanced planning," and the government may not justify noncompetitive procedures on the basis of lack of advanced planning (Global Dynamics, LLC v. U.S., et al., FedCl, 62 CCF ¶81,346)
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Out-of-Scope Modification Violated CICA
The government violated the Competition in Contracting Act's competitive procedures requirement when it issued a modification to a personnel security management contract, according to the Court of Federal Claims, because the modification was a substantial change not contemplated by the original contract. The protester, which was awarded a task order to validate alerts generated by a government program to continuously evaluate security clearance holders, contended the modification exceeded the contract's scope. The modification was for analytical and policy development support for the CE program. (Ian, Evan & Alexander Corp. v. U.S., et al., FedCl, 62 CCF ¶81,349)
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Disallowance of Costs for Failure to Follow Direction Upheld
An appeal from a government claim for disallowed subcontractor costs was denied by the Armed Services Board of Contract Appeals because a letter of technical direction was binding on the contractor and the contractor did not exercise reasonable business judgment in failing to comply with it. There was no contemporary justification supporting the reasonableness of the contractor's claimed costs, and the contractor did not demonstrate that its failure to follow the LOTD was an exercise in reasonable business judgment or a mistake. (Kellogg Brown & Root Services, Inc., ASBCA, ¶95,440)
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Upward Cost Adjustment Was Unreasonable
The Comptroller General sustained a protest of a cost realism analysis because one of the upward cost adjustments to the protester's proposal was unreasonable. The request for proposals for information technology, cybersecurity, configuration, logistics, and technical data support services contemplated the award of a cost-plus-incentive-fee task order. According to the protester, the adjustment was arbitrary and double-counted costs already included in upward cost adjustments to its labor costs. (ORBIS Sibro, Inc., 33 CGEN ¶115,887)
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Regulatory News:
Rule Updates DoD Pilot Mentor-Protégé Program
A Department of Defense final rule amends the Defense Federal Acquisition Supplement to make amendments to the Department's Pilot Mentor-Protégé Program. The rule implements section 861 of the National Defense Authorization Act for Fiscal Year 2016 (PL 114-92), which provided several amendments to the Program, including new eligibility criteria, limitations on a protégé firm's participation in the Program, and elements to mentor-protégé agreements. The NDAA also extended the Program for three years to September 30, 2021, and amended requirements for business development assistance.
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NASA Finalizes Revisions to Payment Process
A final rule amends the National Aeronautics and Space Administration Federal Acquisition Regulation Supplement to implement revisions to NASA's voucher and invoice submittal and payment process. The rule removes the outdated NFS voucher and invoice submittal and payment process clause (and associated prescription), and replaces it with a new clause that revamps the process to ensure continued prompt payment to suppliers.
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SBA Amends Office of Hearings and Appeals Rules
A final rule amends the Small Business Administration's rules of practice for the Office of Hearings and Appeals. The rule implements procedures for protests involving the Department of Veterans Affairs Center for Verification and Evaluation database. This rule amends OHA's jurisdiction, as specified in SBA 134.102 and SBA 134.201, to add protests of eligibility for inclusion in the CVE database, and appeals of denials and cancellations of inclusion in the CVE database.
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Amendments to CBCA Rules Proposed
The Civilian Board of Contract Appeals proposes to amend its rules of procedure at 48 CFR Parts 6101 and 6102 for cases arising under the Contract Disputes Act, and for disputes between insurance companies and the Department of Agriculture's Risk Management Agency arising under the Federal Crop Insurance Act. The rule would simplify and modernize access to the board by establishing a preference for electronic filing, increase conformity between the board's rules and the Federal Rules of Civil Procedure, streamline text, and clarify current rules and practices.
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Major Contract Awards:
Equipment Maintenance — $26 Billion
L3 Communications Vertex Aerospace LLC, Madison, Mississippi; AAR Supply Chain Inc., Wood Dale, Illinois; DynCorp International LLC, Fort Worth, Texas; Arma Aviation Corp., Tampa, Florida; North American Surveillance Systems Inc., Titusville, Florida; and Pinnacle Solutions Inc., Huntsville, Alabama, will share in a $25,500,000,000 hybrid (cost-plus-fixed-fee, and firm-fixed-price) contract for aircraft and support equipment maintenance, minor modification, and supply chain management primarily for performance outside the continental U.S. U.S. Army Contracting Command, Redstone Arsenal, Alabama, is the contracting activity.
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Aircraft Engineering — $1.2 Billion
The Boeing Co., St. Louis, Missouri, is being awarded an undefinitized contract action with a not-to-exceed value of $1,165,068,022 for long-lead non-recurring engineering required to develop a baseline configuration for the production and delivery of 22 F/A-18E and 6 F/A-18F Super Hornets in support of the government of Kuwait. The Naval Air Systems Command, Patuxent River, Maryland, is the contracting activity.
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Test and Evaluation Program — $900 Million
American Systems Corp., Chantilly, Virginia; Cubic Global Defense Inc., San Diego, California; Booz Allen Hamilton, McLean, Virginia; DCS Corp., Alexandria, Virginia; Wyle Laboratories Inc., Huntsville, Alabama; and Scientific Research Corp., Atlanta, Georgia, will share in a $900,000,000 cost-plus-fixed-fee contract for the Joint Test and Evaluation Program. U.S. Army Corps of Engineers Engineering Research and Development Center, Vicksburg, Mississippi, is the contracting activity.
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Camouflage Net System — $480 Million
HDT Expeditionary Systems Inc., Solon, Ohio; Saab Barracuda LLC, Lillington, North Carolina; and Fibrotex USA Inc., Washington, District of Columbia, will share in a $480,000,000 firm-fixed-price contract for development and procurement of the Ultra-Lightweight Camouflage Net System Increment 1. U.S. Army Contracting Command, Aberdeen Proving Ground, Maryland, is the contracting activity.
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About this Newsletter

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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Recent Developments in Government Contracts: Regulations and Legislation


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Federal Acquisition Regulation (FAR) & Department of Defense FAR Supplement (DFARS), January 2018 Combo