• CDA Limitations Period May Be Equitably Tolled
• Government Prevented from Disclosing Unit Pricing Information
• Subcontractor Recovers Under Miller Act Payment Bond
• Indefinite Quantity Clause Did Not Preclude Change Claim
• Selection of Private Sector Proposal Was Improper

• GSAR Provisions on Contract Financing Updated
• Proposed Rule Updates Commerce Acquisition Regulation
• SBA Proposes Increased Size Standards in Multiple Industries
• FTR Proposed Rule Adds Agency Data Reporting Requirements
• DoD Releases Additional Inventories of Service Contracts

• Environmental Requirements - $3.0 Billion
• Aircraft Equipment and Support - $474 Million
• Ready-to-Eat Meals - $178 Million
• Maintenance and Support - $141 Million

Contracting Guidance Focuses on Enhancing Oversight Capacity

The Office of Management and Budget has issued guidance requiring federal agencies to strengthen oversight and accountability of the acquisition process. In addition to workforce improvements, the guidance focuses on reductions in high-risk contracts. Agencies are required to reduce these contracts by 10 percent this fiscal year. A mid-year assessment will gauge agencies' progress. If they are not on track, OMB will work with the agencies to develop aggressive plans to meet the 10-percent reduction target before year's end. This action follows the President's March 4, 2009, memorandum (¶70,105.05) that called for procurement reforms designed to improve competition and curb fraud and waste. According to OMB Director Peter Orszag: "These steps are essential to achieving the President's goal of $40 billion in annual savings through contracting reform. Without action, we will see more contracts that are over-budget, delayed, or otherwise failing to live up to performance objectives." Specifically, the OMB guidance expands contracting reform in two areas: enhancing the capability and capacity of the civilian agency acquisition workforce (see http://www.whitehouse.gov/omb/assets/procurement_workforce/AWF_Plan_ 10272009.pdf), and increasing competition and structuring contracts for the best results (see http://www.whitehouse.gov/omb/assets/procurement_gov_ contracting/increasing_competition_10272009.pdf).

CDA Limitations Period May Be Equitably Tolled

A ruling of the Civilian Board of Contract Appeals dismissing contract support cost claims for lack of jurisdiction was reversed and remanded by the Court of Appeals for the Federal Circuit because the board erroneously concluded the Contract Disputes Act's six-year presentment period was not subject to equitable tolling. Section 605(a) of the CDA (41 USC 605(a)) is a simple provision that does not contain technical language, the six-year period is provided in simple terms, the statute does not contain any explicit exceptions, and the language of the time limitation is not emphatic. Thus, there was strong support for equitable tolling. (Arctic Slope Native Assn., Ltd. v. Sebelius, CA-FC, 53 CCF ¶79,184) [full story]

Government Prevented from Disclosing Unit Pricing Information

The government's disclosure of a contractor's unit pricing in a Freedom of Information Act request was barred by the Trade Secrets Act, according to the District Court for the District of Columbia, because disclosure of the confidential information would cause the contractor substantial competitive harm. The court concluded the government's reasons for granting the FOIA request were contrary to prevailing case law and unsupported in the administrative record, which showed that disclosure of the unit pricing information would lead to substantial competitive harm to the contractor from its customers, who could demand lower pricing if the disclosure were made. (General Electric Co. v. Dept. of the Air Force, DC DofC, 53 CCF ¶79,181) [full story]

Subcontractor Recovers Under Miller Act Payment Bond

A subcontractor was entitled to recover under a Miller Act payment bond provided in conjunction with a dam project, according to the District Court for the Western District of New York, because the subcontractor was not fully compensated for the debris removal work it performed and there was no merit to the surety's allegations of fraud. The record refuted the surety's arguments the quantities billed were the product of double-counting and inconsistent with quantities removed in prior years. (Empire Enterprises JKB, Inc. v. Union City Contractors, Inc., et al., DC WD NY, 53 CCF ¶79,185) [full story]

Indefinite Quantity Clause Did Not Preclude Change Claim

The Civilian Board of Contract Appeals ruled a contractor could pursue relief for the government's change to a minimum order amount, notwithstanding the fact the contract was not a requirements contract, because the contract contained the Changes clause. A modification issued by the government unilaterally changed a contract term by altering the obligations of the parties regarding orders of less than $200, and under the Changes clause, the contractor was entitled to additional compensation if it could demonstrate the change caused an increase in the cost of performance of any part of the work under the contract. (Serco, Inc. v. Dept. of Agriculture, CBCA, ¶92,703) [full story]

Selection of Private Sector Proposal Was Improper

The government's selection of a private sector proposal in a public-private competition was improper because it unreasonably accepted the awardee's fringe benefit ratios and assumptions concerning work efficiency, and unreasonably allowed the awardee to omit the labor cost of providing supplies. The Comptroller General sustained the protest, finding the cost-realism analysis was flawed. Further, the protester was competitively prejudiced by the government's errors, as required for a successful OMB Circular A-76 cost-comparison protest, because the sum of the savings called into question by the errors exceeded the cost comparison differential. (Frank A. Bloomer—Agency Tender Official, 24 CGEN ¶112,943). [full story]

GSAR Provisions on Contract Financing Updated

The General Services Administration has finalized, with changes, a proposed rule (¶70,033.53) amending the GSA Acquisition Regulation. The final rule updates GSAR Part 532, Contract Financing. GSA has issued the rule in connection with its Acquisition Manual rewrite initiative, in which it is reviewing and updating all of the GSAR to include new statutes, legislation, and policies. The rule is effective November 25, 2009. For the text of the rule, see ¶70,030.136. [full story]

Proposed Rule Updates Commerce Acquisition Regulation

The Department of Commerce has issued a proposed rule updating the entire Commerce Acquisition Regulation, to align the CAR with the Federal Acquisition Regulation through FAC 2005-21, and to streamline DOC internal policy and guidance. Comments are due by December 14, 2009. For the text of the rule, see ¶70,073.01. [full story]

SBA Proposes Increased Size Standards in Multiple Industries

The Small Business Administration has issued proposed rules that would increase the small business size standards at SBA 121.201 for 5 industries in North American Industry Classification System sector 72, Accommodation and Food Services Industries, 48 industries in NAICS sector 44-45, Retail Trade, and 18 industries in NAICS sector 81, Other Services. The SBA has established eight levels as part of its effort to reduce the number of levels, and create more common size standards for businesses operating in multiple related industries, and provide greater consistency in the size standards among industries with similar economic characteristics. Comments for each of the three rules are due by December 21, 2009. For the text of the rules, see ¶70,425.378, ¶70,425.379, and ¶70,425.380, respectively. [full story]

FTR Proposed Rule Adds Agency Data Reporting Requirements

The General Services Administration has issued a proposed rule modifying the Federal Travel Regulation regarding the collection of transaction-level, federal civilian employee relocation data. Comments are due December 21, 2009. For the text of the rule, see ¶70,033.62. [full story]

DoD Releases Additional Inventories of Service Contracts

According to notices published in the Federal Register on October 26 (74 FR 54917), October 27 (74 FR 55212), and October 30 (74 FR 56185), the Department of Defense is releasing the first inventories of activities performed pursuant to contracts for services for the Defense Information Systems Agency, the Defense Logistics Agency, the Defense Finance Accounting Service, the Defense Commissary Agency, the Defense Advanced Research Projects Agency, and the TRICARE Management Activity. [full story]

Environmental Requirements - $3.0 Billion.

MWH Americas, Inc. of Broomfield, Colo., and ARGO/LRS JV of Glen Burnie, Md. were awarded a $3 billion contract which will provide primarily environmental requirements that include completion of a conceptual design, construction, implementation, demolition, repair, and operation and maintenance of installed systems prior to delivery to the government. AFCEE/ACV, Brooks City-Base, Texas is the contracting activity. [full story]

Aircraft Equipment and Support - $474 Million.

Lockheed Martin Corp., of Fort Worth, Texas was awarded a $474,200,000 contract which will provide for the issuance of full production of four F-22 Lot 10 air vehicles, alternate mission equipment, production engineering support and work in process. 478 AESG/PK, Wright-Patterson Air Force Base, Ohio is the contracting activity. [full story]

Ready-to-Eat Meals - $178 Million.

AmeriQual Group, LLC D/B/A AmeriQual Packaging, Evansville, Ind., is being awarded a maximum $177,835,000 fixed-price with economic price adjustment, indefinite-quantity contract for Meal, Ready-to-Eat and Humanitarian Daily Ration. The contracting activity is the Defense Supply Center Philadelphia, Philadelphia, Pa. [full story]

Maintenance and Support - $141 Million.

Lear Siegier Services, Inc., Gaithersburg, Md., was awarded on October 23, 2009, a $140,682,292 cost-plus-fixed-fee contract for the Iraq maintenance and tire repair program maintenance, supply and logistics support for the theater-provided equipment add-on armor modifications and enhancements, upgrades and installs, fragment kit 7, tire assembly repair program, security, standard depot system/Army war reserve deployment system and property book unit supply enhanced support. U.S. Army Contracting Center, Rock Island, Ill., is the contracting activity. [full story]

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