Government Contracts Update
News for the Week of August 6, 2018


Regulatory News:
Rule Clarifies Exemption of Commercial Contracts from CAS
The Office of Federal Procurement Policy, Cost Accounting Standards Board, has issued a final rule amending the Cost Accounting Standards regulations at CAS 9903.201-1. The rule clarifies the types of contracts that are exempt from the application of CAS when acquiring commercial items.
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Class Deviations Address Foreign Military Sales, Commercial Items
Department of Defense Class Deviation 2018-O0017 outlines requirements, exceptions, and waiver authority for the use of firm-fixed-price foreign military sales contracts contracts. Class Deviation 2018-O0016 authorizes COs to acquire innovative commercial items, technologies, or services using a competitive procedure called a commercial solutions opening.
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FAR Proposed Rule Encourages Vendor Feedback
The proposed rule associated with FAR Case 2017-014 would amend the Federal Acquisition Regulation to establish a standard survey for obtaining voluntary feedback from actual and potential offerors on government contracts and solicitations. Pursuant to a proposed solicitation provision, all actual or prospective offerors would be encouraged to provide feedback on the pre-award process, including debriefings. Feedback would be made anonymously by going to https://www.acquisition.gov/360.
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USDA Finalizes Changes to Biobased Procurement Guidelines
The Department of Agriculture has finalized a proposed rule amending the guidelines for designating biobased products for federal procurement (7 CFR Part 3201). The final rule adds 12 product categories composed of intermediate ingredient and feedstock materials within which biobased products will be afforded procurement preference by agencies and contractors.
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Legal News:
Government Did Not Breach Implied Duties under Software License
Claims the government breached a single user software licensing agreement were granted and denied in part by the Armed Services Board of Contract Appeals because, although the government breached two express duties and the government had an implied duty not to unnecessarily the software's value, the contractor did not prove the government breached the contract's implied duties. The contractor contended the government breached a contract and licensing agreement for 20 single user bi-directional English/Dari translation software licenses. (CiyaSoft Corp., ASBCA, ¶95,518)
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Terminations for Cause Were Improper
Appeals from terminations for cause were sustained in part by the Armed Services Board of Contract Appeals because the government waived the delivery dates for some deliverables. The board further concluded the contractor relied on the government's waiver to its detriment. In particular, as a result of the contractor's reliance on the government's assent to more expensive United States ammunition and slower shipment by sea, the contractor lost the opportunity to buy less expensive ammunition that met the contract specifications. (AEY, Inc., ASBCA, ¶95,510)
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Enhanced Debriefing Didn't Shorten Time for Filing Protest
The Comptroller General dismissed a protest of a contract award for the design and construction of a consolidated morgue and visitation center at a military hospital in Afghanistan because the protester failed to file its challenge within 10 days of the conclusion of the debriefing. The government maintained the deviation established that "timely protests must be submitted ... not later than '[f]ive days after the [g]overnment delivers its written response to additional questions submitted by the unsuccessful offeror...,'" but the deviation and its underlying statutory basis did not alter or impact the Government Accountability Office's timeliness rules. (State Women Corp., 33 CGEN ¶116,018)
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Reprocurement Protester Waited Too Long to Commit to Quote
A protest of a reprocurement award for diesel fuel was denied because the award to the third-lowest priced vendor was reasonable under the circumstances. Only two days had elapsed since the government received the quotations, so the government acted reasonably in attempting to reprocure the requirement from the protester. However, when the protester responded to the government's first email, it indicated that the government could not rely on the price that was previously quoted. (AeroSage, LLC, 33 CGEN ¶116,028)
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Major Contract Awards:
Training Devices and Systems — $980 Million
Multiple contractors were awarded cost-plus-fixed-fee, firm-fixed-price, cost-plus-incentive-fee, fixed-price-incentive-fee indefinite-delivery/indefinite-quantity contracts to provide training device and training systems design, development, production, test and evaluation, delivery, modification, and support. The estimated aggregate ceiling for all contracts is $980,000,000, with the companies having an opportunity to compete for individual orders. The Naval Air Warfare Center Training Systems Division, Orlando, Florida, is the contracting activity.
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Avionics — $620 Million
Leidos Inc., Reston, Virginia, has been awarded a $620,000,000 firm-fixed-price requirements contract, with a cost reimbursement line for travel, for the avionics intermediate shop product support integration program. Air Force Sustainment Center, Hill AFB, Utah, is the contracting activity.
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Ship Construction — $451 Million
Lockheed Martin Corp., Baltimore, Maryland, is awarded a $450,744,723 not-to-exceed undefinitized contract action modification to a previously awarded contract for long-lead-time material and detail design in support of the construction of four Multi Mission Surface Combatant ships. The Naval Sea Systems Command, Washington, District of Columbia, is the contracting activity.
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Aircraft Program Support — $403 Million
Aero-Glen International LLC, Dallas/Fort Worth International Airport, Texas, has been awarded a $403,000,000 firm-fixed-price, indefinite-delivery/indefinite-quantity contract for F-16 Systems Program Office support at Hill Air Force Base, Utah. Air Force Life Cycle Management Center, Hill AFB, Utah, 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.



Complimentary Whitepaper:
Summary of various agency government contracts-related rules issued since January 1, 2018


Complimentary Whitepaper!


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