Gravel2Gavel Construction & Real Estate Law Blog
Today, our colleagues David Dixon, Meghan Doherty and Toghrul Shukurlu published their Client Alert titled FAR’s Professional Compensation Clause and Keeping Things Real. The Alert discusses the U.S. Court of Federal Claims’ recent decision in Sparksoft Corp. v. U.S., an action involving Sparksoft Corp.’s protest of a pre-award decision of the Department of Health and Human Services, Centers for Medicare & Medicaid Services (DHS) not conduct a realism analysis on the professional compensation rates embedded within the firm-fixed-price (FFP) component of bids submitted under the solicitation.
Articles Posted in Government Contracts
GAO Upholds Agency Disqualification of Proposal Submitted During Pendency of Contract Novation Request
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Yesterday, our colleagues Travis Mullaney and Meghan Doherty published their Client Alert titled Government Contract Acquisitions and the Pending Proposal Problem. Their Alert discusses the U.S. Government Accountability Office’s (GAO) decision in Wyle Laboratories, Inc., a decision raising significant questions as to the viability of proposals that are submitted before or during, and remain pending after, a government contract acquisition.
Ninth Circuit Affirms Grant of Summary Judgment to DHS in Executive Order 13767-Related Litigation
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On February 11, the U.S. Court of Appeals for the Ninth Circuit affirmed the District Court’s decision to grant a motion for summary judgment disposing of a complaint that the decision of the Secretary of Homeland Security (DHS) to expedite construction of border barriers in the San Diego and Calexico, CA border crossing areas was inconsistent with the Secretary’s powers under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), as well as the National Environmental Policy Act (NEPA) and other authorities. The case is In Re Border Infrastructure Environmental Litigation (Center for Biological Diversity, et al., v. U.S. Department of Homeland Security, et al.).
“As a threshold matter, we have jurisdiction to consider the ‘predicate legal question’ of whether IIRIRA authorizes the contested projects. Because the projects are statutorily authorized and DHS has waived the environmental laws California and the environmental groups seek to enforce, we affirm the district court’s grant of summary judgment to DHS.”
The Proposed House Green New Deal Resolution
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A Resolution has been proposed to the House for consideration that would recognize the Federal Government’s duty “to create a Green New Deal.” It sets forth a very ambitious 10-year program to mobilize and transform every aspect of American life to combat the threats of climate change by transitioning to an economy based upon 100% clean and renewable energy.
“Buy American” Executive Order Expands Potential Reach to Private Recipients of Federal Assistance
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President Trump signed an Executive Order yesterday January 31, calling on executive branch departments and agencies to encourage recipients of defined types of new federal awards to use cement, iron, steel, aluminum and certain manufactured products produced in the United States. The order builds on prior authority (Executive Order 13788 (April 18, 2017)) focused on procurements by the departments and agencies themselves. The new order extends the “Buy American” conversation to private parties that receive new support, to promote the use of domestic sources in their onward purchases. It addresses programs that receive Federal financial assistance, 2 C.F.R. § 200.40, for creation, maintenance or repair of infrastructure projects.
Changes to Small Business Runway Extension Act of 2018
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In case you missed it, on January 7, Pillsbury attorneys David Dixon, Dick Oliver, and Toghrul Shukurlu published their Client Alert titled Small Business Holiday Gift: Change to Small Business Act May Affect Size Status for Many Service Providers. Takeaways from their Client Alert include:
The Small Business Administration (SBA) has stated that the increased time period for calculating average annual revenues will not take effect until the SBA issues a final regulation implementing this change.
Cooperation and Collaboration With Government May Be on the Horizon
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In Is the Pendulum Swinging on Agency and Government Contractor Cooperation?, Pillsbury attorneys Mike Rizzo, Glenn Sweatt and Kevin Massoudi discuss comments from the Department of Defense as well as recent good faith and fair dealing court decisions that point to and encourage improved contractor/government relationships. Their key takeaways include
- Government officials are actively encouraging collaboration with, and less antagonism of, industry contractors.
- Recent Boards and Court of Federal Claims construction decisions suggest a growing trend of awarding damages to contractors when the government breaches the duty of good faith and fair dealing.
- Contractors seeking to take advantage of these trends should explore formal partnering with their government clients to reduce future claims and early alternative dispute resolution options to resolve existing disputes.
Contractors Should Be Optimistic that the Best Value Tradeoff Process Will Be Employed by Civilian Agencies
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In The Fiscal Year 2019 NDAA Imposes Government-Wide Limitations on the Use of Lowest-Price Technically Acceptable Procurements, Pillsbury attorneys Dick Oliver and Aaron Ralph are optimistic that contractors will soon have additional legal authority to demonstrate to civilian agencies that a best value tradeoff process should be employed.
- Congress’ trend of limiting the use of the much-derided lowest price, technically acceptable (LPTA) procurement process continues.
- Many of the Department of Defense’s (DoD) limitations on the use of LPTA process will be extended to civilian agencies.
- The recently enacted John S. McCain National Defense Authorization Act (NDAA) requires that the Federal Acquisition Regulation be updated by December 11, 2018, to incorporate these limitations.
Ninth Circuit Analyzes Implied False Certification Standard Under Escobar
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On August 24, the U.S. Court of Appeals for the Ninth Circuit, in U.S. ex rel. Scott Rose, et al., v. Stephens Inst., dba Acad. of Art Univ., affirmed the U.S. District Court for the Northern District of California’s order denying the defendant’s motion for summary judgment in a qui tam action brought under the False Claims Act. The Ninth Circuit address questions of law posed in the wake of the U.S. Supreme Court’s decision in Universal Health Serv., Inc. v. United States ex rel. Escobar, regarding the tests for establishing falsity and materiality.
World War II Government Procurement Contracts and CERCLA Liability
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The U.S. Court of Appeals for the Federal Circuit’s July 18 ruling, in Shell Oil Company, et al., v. U.S., may have brought to an end a long-running dispute over the impact on World War II government procurement contracts on the liability of major oil companies for the remediation costs at a major Southern California Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) site — the “McColl site.”