On Wednesday, November 12, 2014, at noon MLA’s DC office (located at 1900 K Street NW) will host the ABA PCLS Contract Claims and Disputes Resolution Committee’s monthly meeting, which will feature a panel discussion about government claims. Justin Ganderson will be moderating a panel comprised of Judge Lynda T. O’Sullivan (ASBCA), Beth Ferrell (MLA, Partner), Paul Pompeo (Arnold & Porter, Partner), David Koeppel (Counsel for Procurement and Contracts at United States Department of Labor, Office of the Solicitor) and Robert Neill (Trial Attorney, Contract & Fiscal Law Division, U.S. Army Legal Services Agency). They will be discussing a variety of topics, including the CDA’s 6-year statute of limitations, the impact of the Federal Circuit’s 2010 M. Maropakis Carpentry decision (finding that the contractor was required to file a claim in order to raise certain defenses to the government’s liquidated damages assessment and set-off), the ASBCA’s recent Beechcraft Defense Company decision (ordering the government to file a complaint regarding its underlying claim), the factors the government reviews when deciding whether to assert a claim against a contractor. Please contact Justin Ganderson if you would like to attend in person or by phone.
Today, the Bureau of Industry and Security (BIS) imposed military end use and end user licensing requirements on exports to Venezuela. This new restriction parallels the existing restrictions in place regarding China (for military end uses) and Russia (for both military end uses and end users). It prohibits unlicensed exports to Venezuela of certain items subject to the EAR that the exporter knows are destined for military end users or end uses, as those terms are defined in the rule. Continue Reading
On November 12, 2014 from 1:30 pm to 3:00 pm ET, our colleagues Mike Rizzo, Gary Chadick and Todd Canni will present at a PCI webinar entitled “IT and Service Contracting with the Government: How Commercial Companies Can Stay Out of Trouble and Off the Radar.” Their presentation will focus on the federal government contracting opportunities that IT and commercial companies have to increase their revenue. The webinar also will discuss: (1) developments in the Department of Defense’s Mandatory Disclosure Rule; (2) how to mitigate litigation, government investigation, and suspension and debarment risks by creating a culture of compliance; and (3) best practices in ethics and compliance. (CLE, CEU, and CPE credit may be earned.) This is a great learning opportunity, and shouldn’t be missed.
Last Friday, DLA Energy issued a Source Sought Notice SPE600-15-R-0800 to determine the market interest in privatizing the electric, natural gas, water and wastewater utility systems at Ft. Riley, Kansas under 10 USC § 2688. Privatization efforts, like this one, normally involve at least two transactions for each system: (1) conveyance of the utility system; and (2) acquisition of utilities services. These opportunities present a win-win for the government and contractors because (1) they allow the government to leverage private financing to recapitalize and improve its utilities infrastructure, and (2) they provide contractors with a long-term utility services contract with a commitment of up to 50 years. Interested parties must submit a statement of interest no later than 4:00 pm ET on November 24, 2014. At a minimum, the statement must identify the company’s: (1) capability and experience; (2) financial capacity; (3) understanding of and capability of complying with any applicable utility law and franchise requirements; (4) understanding of and capability of complying with applicable environmental laws and regulations; (5) primary point of contact; (6) business size; and (7) status as a regulated or non-regulated utility. Given our prior experience counseling UP contractors regarding each type of utility system (read our prior advisory regarding our recent success at Ft. Bragg) and all facets of federal government contracting matters, we are well-positioned to assist an interested party in submitting a statement of interest and a potential proposal. The bottom line: this is a great opportunity for contractors, and it is critical that you submit a statement of interest, as a lack of interest in this requirement make keep this effort from moving forward.
Late last week, DLA Energy issued a solicitation for the “procurement of Energy from solar and wind renewable resources and conventional power” located at Fort Hood, TX. This presents a major opportunity for an energy company to service the electrical energy requirements of the largest active duty post for the Army, which has peak energy demands of approximately 110 MW. Essentially, the solicitation calls for a contractor to (i) provide “all labor, material and capital to design, build, own, operate and maintain” a solar renewable energy generation system located on Ft. Hood; and (ii) to “construct, operate and maintain a facility offsite, which is able to deliver renewable energy generated from wind turbines to” Ft. Hood. In turn, the Installation will purchase renewable energy and conventional electricity from the successful offeror. The period of performance may be up to 30 years. Given our prior efforts, focus and representation of developers of renewable energy projects on military bases and utility privatization contractors, we are well positioned to help any potential offeror navigate through the idiosyncrasies of federal government contracting in an efficient and effective manner. Please contact us with any questions about this opportunity.
Earlier this week, MLA published the Second Edition of its Government Contractor Business Systems Compliance Guide. The Second Edition provides comprehensive guidance for DoD and DoE contractors to assess the adequacy of six business systems: accounting and billing, purchasing, estimating, material management and accounting, government property, and earned value; and is updated to include significant regulatory changes and contractor experiences that have taken place since the Guide was first published in 2012. Please contact Thomas Lemmer, Steven Masiello, James Gallagher, Kevin Slattum (co-authors) or Michael McGuinn (editor) to obtain a copy of the Second Edition.
Last week, the Federal Circuit issued an opinion that may curtail the Court of Federal Claims’ jurisdiction to decide task order-related bid protests under the Federal Acquisition Streamlining Act of 1994 (“FASA”). FASA is generally regarded as permitting only two types of task order bid protests: (1) protests alleging that a task order award is “out-of-scope;” and (2) protests of task order awards exceeding $10 million at the Government Accountability Office. See 41 U.S.C. § 4106(f). Despite this limitation, several Court of Federal Claims decisions in recent years have asserted jurisdiction over bid protests challenging agency actions taken before or after the issuance of a task order. The decision in SRA Int’l v. United States, No. 2014-5050, 2014 WL 4494775 (Fed. Cir. Sept. 15, 2014), however, signals the Federal Circuit’s skepticism towards the view that FASA does not bar such protests, finding instead that the timing of an agency action does not, in itself, affect whether FASA’s restriction applies, and that the statute “effectively eliminates all judicial review for protests made in connection with a procurement designated as a task order.” Id. at *4.
For more legal analysis and discussion of the practical implications for contractors stemming from this decision, we recommend you read the Client Advisory published yesterday on this subject by Jay Carey, Luke Meier and Shaun Kennedy.
This post was authored by Justin M. Ganderson.
Yesterday, my colleague Sandeep Nandivada published a feature comment in The Government Contractor entitled, “The Public Disclosure And First-To-File Bars: Are They Still Jurisdictional?” [found here]. In his article, Sandeep analyzes the “jurisdictional nature of the public disclosure and first-to-file bars” under the 2010 amendments to the civil False Claims Act (31 USCA § 3729, et seq.) through an in-depth discussion of recent Circuit Court of Appeals and District Court decisions. He concludes that “long-standing assumptions” about the jurisdictional nature of these bars are now “in flux” and “may no longer apply.” I encourage you to read this important article on a topic that may one day reach the Supreme Court.
Earlier this week the House Transportation and Infrastructure Committee’s Panel on Public-Private Partnerships (P3s) issued a report stemming from its review of the “use of public-private partnerships in the United States and internationally to identify: 1) the role such partnerships play in the development and delivery of transportation and infrastructure projects; 2) whether public-private partnerships enhance the delivery and management of infrastructure projects beyond the capabilities of government agencies or the private sector acting independently; and 3) how to balance the needs of the public and private sectors when identifying, developing, and implementing public-private partnership projects.” The panel found that P3s “can enhance the delivery and management of transportation and infrastructure projects beyond the capabilities of government agencies or the private sector acting independently” and acknowledged that the “participation of the private sector in financing a project can bring discipline and efficiency to project delivery, which is too often lacking in the traditional public procurement process.” Continue Reading
On September 3, 2014, the Department of Defense (“DoD”) published a proposed rule overhauling its Freedom of Information Act (“FOIA”) regulations. See DoD Freedom of Information Act (FOIA) Program, 79 Fed. Reg. 52,2500 (proposed Sept. 3, 2014) (to be codified at 32 C.F.R. Part 286). The proposed rule would substantially revise DoD’s FOIA regulations by codifying many long-standing practices. Comments on the proposed rule are due by November 3, 2014. Continue Reading