• Protest of Price Evaluation Methodology Was Untimely
• Government Improperly Waived Solicitation Requirement

• Final Rules Make Technical Amendments to DFARS
• EAR Rule Regarding Encryptions Is Finalized

• Missile Engineering, Design, and Development - $1.03 Billion
• Missile Support - $853 Million
• Nuclear Propulsion Components - $524 Million
• Sheet Metal Repair - $202 Million

FAC 2005-37 Issued with Eight Rules

The Civilian Agency Acquisition and Defense Acquisition Regulations Councils have published Federal Acquisition Circular 2005-37, which contains four interim and four final rules amending the Federal Acquisition Regulation. This FAC also contains a Small Entity Compliance Guide. All rules carry an October 14, 2009, effective date unless otherwise noted below. Comments on the interim rules, identified by FAR case number, are due by December 14, 2009. For the text of FAC 2005-37, see ¶70,002.116.

In order of appearance, the rules address the following subjects: Item I, Registry of Disaster Response Contractors (FAR Case 2008-035, Interim); Item II, Limiting Length of Noncompetitive Contracts in “Unusual and Compelling Urgency” Circumstances (FAR Case 2007-008); Item III, GAO Access to Contractor Employees (FAR Case 2008-026); Item IV, Use of Commercial Services Item Authority (FAR Case 2008-034, Interim); Item V, Limitations on Pass-Through Charges (FAR Case 2008-031, Interim); Item VI, Award Fee Language Revision (FAR Case 2008-008, Interim); and Item VII, National Response Framework (FAR Case 2009-003). Item VIII contains a final rule that makes technical editorial changes. [full story]

The interim rule associated with FAR Case 2008-35 amends the FAR to implement Section 697, Registry of Disaster Response Contractors (PL 109-295), of the Department of Homeland Security Appropriations Act, 2007 (6 USC 796). The Act requires the Administrator of the Federal Emergency Management Agency to establish and maintain a registry of contractors willing to perform debris removal, distribution of supplies, reconstruction, and other disaster or emergency relief activities. The Registry includes business information consistent with the data that is currently required in the Central Contractor Registration with two additional categories added to reflect the area served by the business, and the bonding level of the business concern. [full story]

The FAR Case 2007-008 final rule amends the FAR to implement Section 862 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (PL 110-417) and the Office of Federal Procurement Policy Administrator's memorandum of May 31, 2007. The rule amends FAR 6.302-2 by adding paragraph (d) to limit the length of contracts awarded noncompetitively under unusual and compelling urgency circumstances to the minimum contract period necessary to meet the requirements, and no longer than one year, unless the agency head determines exceptional circumstances apply. [full story]

The rule associated with FAR Case 2008-026 finalizes without change an interim rule issued with FAC 2005-32 that amended the FAR to implement Section 871 of the Duncan Hunter NDAA for FY 2009, which allows the Government Accountability Office to interview current contractor employees during the audit of the contractor's records. [full story]

An interim rule, FAR Case 2008-034, amends the FAR to implement Section 868 of the Duncan Hunter NDAA for FY 2009. Section 868 provides that purchases of commercial services that are not offered and sold competitively in substantial quantities in the commercial marketplace may only be considered commercial items for the purposes of the FAR if the contracting officer determines in writing that the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for the services. [full story]

The interim rule associated with FAR Case 2008-031 amends the FAR to minimize excessive pass-through charges by contractors from subcontractors, or of tiers of subcontractors, that add no or negligible value and to ensure that neither a contractor nor a subcontractor receives indirect costs or profit/fee on work performed by a lower-tier subcontractor to which the higher-tier contractor or subcontractor adds no, or negligible, value. The rule is intended to protect the government’s interests when there appears to be an agreement with a contractor to perform the contract scope of work, including managing subcontractors, then after award, the contractor subcontracts substantially all the effort without providing the required value-added subcontract management functions that were expected. [full story]

An interim rule, FAR Case 2008-008, addresses award and incentive fee contract types, by amending and integrating where appropriate, FAR Part 7, Acquisition Planning, and FAR Part 16, Contract Types, to improve agency use and decision making when using incentive contracts. The rule implements the provisions of Section 814 of the John Warner NDAA for FY 2007, Section 867 of the Duncan Hunter NDAA for FY 2009, and the Office of Federal Procurement Policy guidance memorandum dated December 4, 2007, entitled Appropriate Use of Incentive Contracts. [full story]

The FAR Case 2009-003 final rule amends the FAR to reflect the reissuance of the Federal Emergency Management Agency's National Response Plan. On January 22, 2008, FEMA reissued the NRP as the National Response Framework. With the reissuance, which went into effect March 22, 2008, the term “Incidents of National Significance” was eliminated and the NRP became obsolete. This final rule goes into effect November 13, 2009. [full story]

Protest of Price Evaluation Methodology Was Untimely

The Court of Federal Claims dismissed a post-award bid protest of a solicitation's price evaluation methodology for failure to state a claim because the alleged error was clear on the face of the request for quotations and the protester did not raise its challenge prior to the deadline for submitting quotations. The protest was barred by the decision of the Court of Appeals for the Federal Circuit in Blue & Gold Fleet, L.P. v. U.S. (51 CCF ¶78,774), which held “a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest action in the [CFC].” (Unisys Corp. v. U.S., et al., FedCl, 53 CCF ¶79,178) [full story]

Government Improperly Waived Solicitation Requirement

The government improperly waived a material solicitation requirement by accepting an awardee's proposal to consolidate multiple corrective action units into a single CAU because the solicitation did not put offerors reasonably on notice the government would allow CAU consolidation. The Comptroller General sustained the protest, finding the protester reasonably understood the RFP required offerors to “propose technical solutions based on the CAUs as listed in the [performance work statement].” (The S.M. Stoller Corp., 24 CGEN ¶112,941) [full story]

Final Rules Make Technical Amendments to DFARS

The Department of Defense has amended the Defense Federal Acquisition Regulation Supplement to specify the debarring and suspending official for the Defense Intelligence Agency, and to update other references within the DFARS text (¶70,016.538). Another final rule amends the DFARS to add the address of the DoD Inspector General office designated for receipt of information relating to possible contractor violations of federal criminal law or the civil False Claims Act (¶70,016.539). A third DoD final rule amends the DFARS to remove obsolete text addressing a restriction on awards to foreign entities for DoD research and development (¶70,016.540). [full story]

EAR Rule Regarding Encryptions Is Finalized

The Bureau of Industry and Security has finalized, with changes, an interim final rule, “Encryption Simplification,” published on October 3, 2008 (¶72,750.152). The interim rule amended the Export Administration Regulations to make the treatment of encryption items more consistent with the treatment of other items subject to the EAR, and to simplify and clarify regulations pertaining to encryption items. The final rule corrects errors and resolves inconsistencies identified by the public with respect to the interim rule (¶72,750.175). [full story]

Missile Engineering, Design, and Development - $1.03 Billion.

Lockheed Martin Maritime Systems and Sensors, Moorestown, N.J., is being awarded a cost-plus-incentive-fee/cost-plus-award-fee contract with a total value of $1,034,550,502. The contract is for Lockheed Martin to serve as the Aegis Ballistic Missile Defense Combat System engineering agent and the Aegis Ballistic Missile Defense Weapon System design, development and computer program source for Aegis cruisers and destroyers. The Missile Defense Agency, Dahlgren, Va., is the contracting activity. [full story]

Missile Support - $853 Million.

The Lockheed Martin Corporation, Lockheed Martin Space Systems Company, Sunnyvale, Calif., is being awarded a not-to-exceed $853,305,629 cost-plus-incentive-fee/cost-plus-fixed-fee (CPIF/CPFF) contract to provide support in the Trident II (D5) missile production and deployed system support (C4 and D5) in an undefinitized contract action. The Navy's Strategic Systems Programs, Arlington, Va., is the contracting activity. [full story]

Nuclear Propulsion Components - $524 Million.

Bechtel Plant Machinery Inc., Monroeville, Pa., is being awarded a $523,530,301 cost-plus-fixed fee contract for naval nuclear propulsion components. The Naval Sea Systems Command is the contracting activity. [full story]

Sheet Metal Repair - $202 Million.

Gulf Copper Ship Repair, Corpus Christi, Texas; JCI Metal Products, Inc., Lemon Grove, Calif.; Marine and Restaurant Fabricators, San Diego, Calif.; Miller Marine, Inc., National City, Calif.; Pacific Ship Repair and Fabrication, Inc., San Diego, Calif.; and Tecnico Corporation, Chesapeake, Va., are each being awarded an firm-fixed-price multiple award five-year term contract. The Southwest Regional Maintenance Center, San Diego, Calif., is the contracting activity. [full story]

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