Gravel2Gavel Construction Law Blog

Posted March 11, 2013
By Daniel S. Herzfeld

On March 1, 2013, President Obama ordered the implementation of across-the-board cuts - sequestration - primarily directed to military and domestic discretionary spending because the White House and congressional leaders could not agree to an alternative. The Balanced Budget and Emergency Deficit Control Act of 2011 requires this sequestration, which means that the executive branch must implement $85 billion in cuts over the remaining months of Fiscal Year 2013. This alert provides background on the expected cuts and how the sequestration may affect contractors. Notably, the sequestration is separate from the continuing resolution funding the federal government that ends on March 27, 2013. If Congress does not act to fund discretionary spending for the remainder of Fiscal Year 2013, then the government will shut down. We have also prepared pointers for federal contractors in the event of a shutdown.

To learn more about this, click Sequestration is Here - Now What Happens to Government Contractors to read the client alert.

Posted February 14, 2013
By Daniel S. Herzfeld

In January, President Obama signed the National Defense Authorization Act for Fiscal Year 2013 ("NDAA"), which includes numerous new procurement policies directed at contractors and how they bid on and perform government contracts.

To learn more about this, click here to read the client alert.

Posted February 5, 2013
By Laura P. Bourgeois

On January 29, 2013, a final rule was issued prohibiting the award of contracts to inverted domestic corporations. The final rule requires an offeror to represent that it is not an inverted domestic corporation and creates potential liability if the contractor's legal status changes after the contract is awarded.

To learn more about this, click here to read the client alert that was written by John Jensen and Evan Wesser.

Posted January 25, 2013
By Michael S. McNamara

On January 14, 2013, the U.S. Court of Appeals for the Federal Circuit ("Federal Circuit") held that an offeror had standing to challenge the exclusion of its proposal from a competition even prior to a competitive range, despite the offeror's submission of an incomplete proposal. In Orion Technology, Inc. v. United States, the Federal Circuit clarified that a disappointed offeror that has been eliminated from a competition can show that it has standing as an "interested party."

To learn more about this, click here to read the client alert that was written by Daniel Herzfeld and Evan Wesser.

Posted December 20, 2012
By Michael S. McNamara

On December 7, 2012, the U.S. Court of Appeals for the Federal Circuit issued its first decision determining that government contractors need to challenge any obvious errors, improprieties, or ambiguities on the face of a solicitation amendment before award (extending its previous rule that such challenges to the initial solicitation generally must be challenged before award). In COMINT Systems Corp. & Eyeit.com, Inc., JV v. United States, the Federal Circuit found that Comint missed an opportunity to challenge an obvious - or patent - error in an amendment to the solicitation. By signing the amendment and waiting until after award to protest the allegedly problematic amendment, the government contractor waived any right to challenge the terms of the amendment to the solicitation.

To learn more about this, click here to read the client alert that was written by Daniel Herzfeld.

Posted July 27, 2012
By Laura P. Bourgeois

• Form over function gone too far? Ticket-holders in some seats in The London 2012 Aquatic Center will get a refund because "the angle and curve of the aquatic centre roof" obscures the views of divers. The building was designed by Zaha Hadid, who denies that the design is the reason for the ticketing "blunder."

• No intro necessary here. Construction workers save elderly woman from fire.

• What ever happened to tough love? Report shows that members of DOJ staff manipulated hiring process to get their kids jobs.

• Sustainable cities beneath the sea? The "highly imaginary concept" of seascrapers is segmented into garbage collection units at the bottom, recycling plants in the middle, and housing and recreational zones at the top.

Posted July 20, 2012
By Laura P. Bourgeois

• Time to revise the game plan. New Jersey officials re-evaluate planned infrastructure projects in light of Super Bowl 2014. Bottom line: be prepared for some gridlock. Oh, and bundle up since this will be the first ever outdoor Super Bowl in a cold-weather city.

• There's an app for that! Bluebeam Software launches its latest iPad app designed to assist the construction industry in the field.

• A FAR re-write, you say? A contracting officer's take on the need to tone down the bureaucracy.

• DC Silver Line milestone! The aerial portion of the Metro project - spanning over three miles - is complete.

Posted March 23, 2012
By Michael S. McNamara

When we posted yesterday about the RFP for the Tappan Zee Bridge replacement, we perhaps missed the most important aspect of the Instructions to Bidders: No Obligation to Award. (It's on page 40, for those keeping track.) Usually this sort of provision is a safety valve. Here, it might be more. The owner apparently still doesn't know where the money will come from. Bloomberg is reporting that a bill is working its way through the New York Legislature to allow Public Private Partnership funding for . . . the Tappan Zee Bridge Replacement.

Posted January 4, 2012
By Michael S. McNamara

"In" and "out" of New York City that is. Roosevelt Island, in particular. Stanford withdrew its proposal to build a campus on New York City's Roosevelt Island and a week later, the City agreed to provide 10 acres to Cornell plus $100 million in infrastructure improvements; Cornell will build a $2 Billion campus on that property. You can read Mayor Bloomberg's quotes about it on Mayor Bloomberg's company's website here. (Surely there's an antitrust violation somewhere in there.)

New Yorkers hope that the project will keep high tech software from fleeing to the suburbs. Bloomberg (the site -- not the mayor) quotes the president of the New York City Economic Development Corporation as saying, "Software and applications need the kind of dense expertise that cities are full of." If Pinsky is right, maybe Roosevelt Island will be the next Silicon Valley.

Cornell hired Skidmore, Owings & Merrell to design the project and it's estimated that it will generate 20,000 construction jobs. It's a bit early to say who the lucky 20,000 workers will be -- or who their employer will be. Stay tuned.

Posted December 15, 2011
By Michael S. McNamara

Chances are, you get your water from a public drinking water system, even though approxmiately two thirds of drinking water systems in this counrty are non-community systems -- think campgrounds and schools. And the chances are that the system that provides your water needs an upgrade. The American Society of Civil Engineers has produced the second in a series of reports grading America's infrastructure and has given the United States a grade of "D" for its water systems. You can see an executive summary of the report here and you'll be able to download the entire report when it is released on December 16 at the ASCE's website.

The water systems graded include systems for drinking water, and also water for industrial processes sewage systems. The report highlights the need for major investments in our country's water systems infrastructure and the numbers are staggering. In 2010, the country needed to spend $91 Billion but only spent $36 Billion. That gap is expected to get worse, rising to $84 Billion in 2020 and then $143 Billion in 2040.

Good thing we have lots of extra tax dollars to spend. Oh wait. We don't. Maybe PPP's are the solution.

Posted December 7, 2011
By Laura P. Bourgeois

If you answered "yes" but only because the title conjured up images of late nights in a small room with 11 other jurors of your peers...there is another type of "sequestration" that might be of concern to you.

The more noteworthy sequestration is the automatic budget cuts that were triggered on November 23, 2011, when the Government's "Super Committee" failed to agree on a means of reducing the Nation's defict. The Budget Control Act of 2011 mandates that federal spending be decreased by $109.3 billion per year over ten years, resulting in a total federal spending decrease of $1.2 trillion by 2023. Although this sequestration has already been triggered, it remains to be seen exactly how much this will effect spending on federal construction projects.

It is probably not worth panicking just yet since the cuts will not go into effect until 2013 - and the automatic cuts are a relatively small percentage of overall federal spending. Nevertheless, this is a sequestration you should keep on your radar, just like the AGC is.

Posted December 7, 2011
By Jeffrey R. Gans

Virginia announced a $940 million dollar P3 agreement with Flour-Transurban. The agreement calls for the construction of a 29 mile hot lane to ease the Virginia's traffic congestion, especially during rush hour.

The agreement calls for Fluor-Transurban to pay $843 million and Virginia to $97 million. Most of the current lanes will be toll free, as will be HOV-3 vehicles. Other vehicles will pay a toll that will vary in amount depending on the volume of traffic.

The Agreement's Key aspects include:

• Fluor-Transurban will design and build the facility; manage and fund all operations and maintenance for a period of 73 years following construction. It will also share revenue with the Commonwealth.


• Maintain free access for High Occupancy Vehicles (HOV) meeting state eligibility requirements and buses.


• Develop and operate a dynamic tolling system. Tolls will vary based on demand to provide fast, reliable travel times.


• All tolls will be paid with an E-ZPass and there will be no toll booths.


• Electronic signs will alert travelers to current toll rates so they can make an informed choice whether or not to use the HOT Lanes.


• Return the asset to the Commonwealth in good working order at the end of the agreement

The agreement is the latest in Virginia's foray into the P3 delivery method to meet a public need by partnering with the private sector.

Posted December 5, 2011
By Michael S. McNamara

With all the talk -- and all the press -- about our cash-strapped federal government, you'd think that announcements of new government spending would be few and far between. But not if you're into green building. President Obama is teaming with former President Clinton to invest $4 Billion -- yes, that Billion, with a "B" -- in sustainable construction. Check it out here.

How much will that $4 Billion investment cost taxpayers? If you answered $4 Billion, you'd be wrong. The answer is zero! I guess they're just going to pluck that money from the tree.

But don't worry where the money's coming from. Worry where it's going. To you? Or your competitor. Get your LEED Certificate out and polished -- or maybe just get it.

Posted November 19, 2011
By Laura P. Bourgeois

Historically, when a government contractor received an "unsatisfactory" performance rating ("Unsat") that was issued without proper procedures being followed or was substantively erroneous, the contractor's only immediate recourse was to ask the agency to reconsider. Otherwise, the contractor had to wait to seek judicial review through a bid protest on a subsequent procurement - forcing the contractor to wait for the Unsat to potentially deprive it of more work.

This presents a major problem for contractors. This article examines recent judicial developments in which the U.S. Court of Federal Claims opened the door for contractors to seek immediate review of erroneous Unsats.

Under the Contract Disputes Act, if a contractor wishes to pursue a claim against the federal government arising out of a contract, the contractor can turn to one of two places: an agency's Board of Contract Appeals (BCA) or the U.S. Court of Federal Claims. However, it does not follow that both of these bodies are willing to take up a contractor's appeal of an erroneous Unsat.