News for the Week of April 10, 2017

Hot Topic: Legal News: Regulatory News: Major Contract Awards:
Hot Topic:

Fair Pay and Safe Workplaces FAR Rule Is Void
President Trump on March 27 signed into law (PL 115-11) a resolution disapproving the final Fair Pay and Safe Workplaces rule (FAR Case 2014-025) issued in Federal Acquisition Circular 2005-90.

House Joint Resolution 37, which declared the rule "shall have no force or effect," exercised Congress's authority under the Congressional Review Act (5 USC 801 and following) to nullify regulations. A future rule that is "substantially the same" as a rule disapproved under the CRA cannot be issued unless authorized by enacted legislation.

The FAR Case 2014-025 rule implemented Executive Order 13673, issued in 2014 with the aim of improving contractor compliance with basic labor standards.

After the District Court for the Eastern District of Texas enjoined implementation of portions of the EO in October, FAC 2005-93 added caveats to affected FAR sections related to labor law violation reporting requirements and limitation on use of pre-dispute arbitration clauses in employment agreements.

The injunction did not apply to implementation of paycheck transparency requirements, but HJ Res 37 did not parse the provisions of FAR Case 2014-025, which is voided in its entirety.

Legal News:

Waiver Rule Applied to OCI Claims
A protester waived its organizational conflict of interest claims, according to the Court of Federal Claims, because the protester knew or should have known of the incumbent's role in the procurement before the contract award. There was no merit to the protester's contention it was unaware of the incumbent's "unusually close" relationship with the government. The public documents and the incumbent's interest in the procurement were "easily recognizable or obvious" facts that made them subject to the Blue & Gold patent ambiguity test. (Concourse Group, LLC v. U.S., et al., FedCl, 61 CCF ¶81,071)

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Email Communications Indicated Contractor Submitted Claim
A motion to dismiss an appeal for lack of jurisdiction was denied by the Armed Services Board of Contract Appeals because email communications between the contractor and the government supported a finding the contractor presented the requisite claim to the contracting officer. The totality of the of the parties' correspondence indicated that the contractor consistently and repeatedly informed the government that it was still awaiting payment under the contract. (Rover Construction Co., ASBCA, ¶95,116)

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SSA Didn't Conduct Price/Technical Best-Value Tradeoff
A protest of a best-value award decision was sustained because there was no evidence the source selection authority performed a price/technical best-value tradeoff before concluding the awardee's quotation offered the best value to the government. The government's procurement summary documented the selection of the awardee, but it contained no price/technical tradeoff analysis comparing the awardee's quotation to the protester's quotation. The record also contained a technical recommendation memorandum comparing the technical merit of the two quotations, but it did not include a comparison of the vendors' proposed prices. (Harmonia Holdings Group, LLC, 32 CGEN ¶115,485)

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Record Did Not Support Past Performance Rating
A protest of a freight services contract award was sustained in part because the record failed to show how the government reasonably could have assessed the awardee's comparatively low-value past efforts as "somewhat relevant." The government defended its evaluation on grounds the average annual value of 12 of the awardee's efforts exceeded the maximum value for the transportation contract line item for the two-year base period. However, there was no evidence the government employed this methodology. (XPO Logistics Worldwide Government Services, LLC, 32 CGEN ¶115,490)

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Regulatory News:

NASA Revises NFS Subpart on Labor Laws
The National Aeronautics and Space Administration has issued Procurement Notice 17-03, which revises NFS Part 1822, Application of Labor Laws to Government Acquisitions. The notice removes NFS 1822.810 because it is not specifically required by statute or regulation, conflicts with Department of Labor duties, and lacks guidance for the contracting officer. Also, the notice removes NFS 1822.404-3 because it is redundant with guidance already provided in FAR 22.404-3.

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Major Contract Awards:

Foreign Language Services — $9.9 Billion
Eleven awardees have been added to the list of contractors previously announced on March 3, 2017, and will now all share in a $9,864,000,000 cost contract to procure foreign language services in support of the Defense Language Interpretation Translation Enterprise program. U.S. Army Intelligence and Security Command, Fort Belvoir, Virginia, is the contracting activity.

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Radiology Systems, Accessories and Training — $4.1 Billion
Siemens Medical Solutions USA Inc., Malvern, Pennsylvania, has been awarded a maximum $4,128,000,000 firm-fixed-price, indefinite-delivery/indefinite-quantity contract for radiology systems, accessories and training. The contracting activity is the Defense Logistics Agency Troop Support, Philadelphia, Pennsylvania.

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P-8A Aircraft — $2.2 Billion
The Boeing Co., Seattle, Washington, is being awarded a $2,196,638,752 modification to a previously awarded fixed-price, cost-plus-fixed-fee contract for the manufacture and delivery of 17 Lot 8 full-rate production P-8A aircraft, and long lead parts associated with the manufacture of 10 Lot 9 P-8A aircraft. The Naval Air Systems Command, Patuxent River, Maryland, is the contracting activity.

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Radar System — $1.9 Billion
Lockheed Martin Corp., Syracuse, New York, was awarded a $1,588,571,025 order dependent contract for the Counter Fire Target Acquisition Radar System full-rate production and deployment. U.S. Army Contracting Command, Aberdeen Proving Ground, Maryland, is the contracting activity.

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Landing Gear Parts — $909 Million
AAR Supply Chain Inc., Wood Dale, Illinois, has been awarded a $909,394,297 firm-fixed-price with economic price adjustment requirements contract for the Landing Gear Performance Based Logistics One program. Air Force Sustainment Center, Hill Air Force Base, Utah, is the contracting activity.

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F-35 Aircraft Spares — $582 Million
Lockheed Martin Corp., Lockheed Martin Aeronautics Co., Fort Worth, Texas, is being awarded a not-to-exceed $581,798,359 firm-fixed-price delivery order against a previously issued basic ordering agreement. This modification provides for air vehicle initial spares to include F-35 common spares; F-35A, F-35B and F-35C unique spares, and aloft spares packages/deployment spares packages and reprogramming lab spares. The Naval Air Systems Command, Patuxent River, 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.

Federal Acquisition Regulation (FAR) & Department of Defense FAR Supplement (DFARS), January 2017 Combo

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