• Evidence Was Sufficient to Find Contractor Failed to Disclose OCIs
• Comptroller General Had Jurisdiction Over No-Cost Agreement
• Executive Order Addresses Text Messaging

• GSAR Provisions on Improper Business Practices Amended
• DoD Agencies Announce Availability of Inventories

• C-130 Aircraft - $827 Million
• Health Care Support Services - $269 Million

Energy Policy Executive Order Includes Contractor Provisions

President Obama has issued Executive Order 13514, Federal Leadership in Environmental, Energy, and Economic Performance. The order, dated October 5, 2009, seeks to create a clean energy economy by ordering federal agencies to increase energy efficiency; measure, report, and reduce greenhouse gas emissions; conserve and protect water resources through efficiency, reuse, and stormwater management; and eliminate waste, recycle, and prevent pollution. With respect to government contracting, the order directs agencies to leverage acquisitions “to foster markets for sustainable technologies and environmentally preferable materials, products, and services,” and to “design, construct, maintain, and operate high performance sustainable buildings in sustainable locations.”

Among the provisions impacting contractors is a requirement for agencies to establish a percentage reduction target for reducing agency-wide greenhouse gas emissions. In establishing this target, agencies are to consider “pursuing opportunities with vendors and contractors to address and incorporate incentives to reduce greenhouse gas emissions (such as changes to manufacturing, utility or delivery services, modes of transportation used, or other changes in supply chain activities).” Agencies are to establish and report their targets by June 2, 2010.

The order assigns agencies the goal of implementing “high performance sustainable [f]ederal building design, construction, operation and management, maintenance, and deconstruction.” Agencies are to achieve this goal by:

Under another goal, agencies are instructed to ensure that 95 percent of new contract actions for products and services are energy-efficient, water-efficient, biobased, environmentally preferable, non-ozone depleting, contain recycled content, or are non-toxic or less toxic alternatives, if these types of products and services meet agency performance requirements. “Energy-efficient” refers to Energy Star and Federal Energy Management Program-designated products and services, while “environmentally preferable” refers to Electronic Product Environmental Assessment Tool-certified products and services. Acquisitions of weapon systems are excepted from the requirement.

Another provision directs the General Services Administration to review and provide recommendations regarding the feasibility of working with the contractor community to provide information to assist agencies in tracking and reducing greenhouse gas emissions related to the supply of products and services to the government. The recommendations are to consider the potential impact on the procurement process and the contractor community. Also, the recommendations should explore the feasibility of requiring contractors to register with a voluntary registry or organization for reporting greenhouse gas emissions, and with a government tracking system, to develop and make available greenhouse gas inventories and descriptions of efforts to mitigate greenhouse gas emissions. Finally, the recommendations should also address the use of purchasing preferences or other incentives for products manufactured using processes that minimize greenhouse gas emissions, and other options for encouraging sustainable practices and reducing greenhouse gas emissions.

Evidence Was Sufficient to Find Contractor Failed to Disclose OCIs

A contractor’s motion for judgment as a matter of law, or in the alternative for a new trial, was denied by the District Court for the District of Columbia because the evidence was sufficient for a reasonable jury to find the contractor violated the False Claims Act by failing to disclose organizational conflicts of interest, and there was no error that would require a new trial. The contractor failed to show a “reasonable, good faith understanding of the [government]’s OCI regulations preclude[d] any finding of “knowledge” under the FCA.” The trial evidence also showed the contractor had a business relationship with entities that were subject to the regulations the contractor helped the government formulate. (U.S. v. Science Applications Int'l Corp., DC DofC, 53 CCF ¶79,175) [full story]

Comptroller General Had Jurisdiction Over No-Cost Agreement

The Comptroller General had jurisdiction over a protest of a no-cost agreement for the implementation of a lodging program because the agreement resulted in a benefit to the government. The Comptroller General rejected the government's argument that the implementation was not a procurement, finding the government need not incur any monetary liability for there to be a procurement. (Armed Forces Hospitality, LLC, 24 CGEN ¶112,939) [full story])

Executive Order Addresses Text Messaging

President Obama has issued Executive Order 13513, Federal Leadership On Reducing Text Messaging While Driving. The October 6, 2009, executive order prohibits government employees from engaging in text messaging when driving government-owned, government-leased, or government-rented vehicles, and when driving privately-owned vehicles while on official government business. [full story]

GSAR Provisions on Improper Business Practices Amended

The General Services Administration has finalized, with changes, a proposed rule (¶70,033.46) that amends the GSA Acquisition Regulation by revising the regulations at GSAR Part 503, Improper Business Practices and Personal Conflicts of Interest. This rule is a product of the GSA Acquisition Manual Rewrite initiative to revise the regulation to maintain consistency with the Federal Acquisition Regulation and implement streamlined and innovative acquisition procedures for contractors, offerors, and GSA contracting personnel. For the text of the rule, effective October 7, 2009, see ¶70,030.135. [full story]

DoD Agencies Announce Availability of Inventories

According to a notice published in the Federal Register on October 13, 2009, the Defense Contract Management Agency will make available to the public the first inventory of activities performed pursuant to contracts for services. The inventory, released in accordance with 10 USC 2330a, as amended by Section 807 of the National Defense Authorization Act for Fiscal Year 2008, will be published on the DCMA web site at http://www.dcma.mil/siteindex.cfm#I, by November 12, 2009. [full story]

C-130 Aircraft - $827 Million.

Lockheed Martin Corp., of Marietta, Ga., was awarded a $827,400,000 contract which will provide for the advance procurement funding for three FY10 Air Force C-130J aircraft, four FY10 HC-130J aircraft, and four FY10 MC-130J aircraft. 657 AESS/SYKA, Wright-Patterson Air Force Base, Ohio is the contracting activity. [full story]

Health Care Support Services - $269 Million.

International SOS Assistance, Inc., Trevose, Pa., is being awarded a fixed-price requirements contract to provide health care support services to the Department of Defense TRICARE Overseas Program. The TRICARE Management Activity, Aurora, Colo., is the contracting activity. [full story]

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