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
On August 29, 2014, the D.C. Circuit issued its decision in United States ex rel. Folliard v. Gov’t Acquisitions, Inc., No. 13-7049 (D.C. Cir. Apr. 4, 2014), a False Claims Act (FCA) case in which the district court granted summary judgment for the contractor. In a welcome decision for FCA defendants, the D.C. Circuit affirmed. Most significantly, the Court found that the contractor’s reliance on it supplier’s TAA certification was reasonable. More broadly, the case holds that contractors that reasonably rely on supplier’s TAA certifications are protected from liability under the FCA. Partner Jason N. Workmaster and former partner Tim Halloran, with assistance from partner Dan Jarcho, filed an amicus curiae brief on behalf of the Coalition for Government Procurement. Continue Reading
The National Institute of Standards and Technology (“NIST”) has published a Request for Information (“RFI”) seeking input from industry on how organizations are utilizing NIST’s Framework for Improving Critical Infrastructure Cybersecurity (the “Framework”) [found here]. As we reported on August 22, 2014, [found here] interested parties have forty-five (45) days to submit comments, which are due by October 10, 2014. Interested parties should plan to address the twenty two questions posed in the RFI, each of which is aimed at providing NIST with key insights as to what aspects of the Framework are working well and what dimensions may not be working as well.
The Office of Federal Contract Compliance Programs (“OFCCP”) in the U.S. Department of Labor (“DOL”) recently posted answers to Frequently Asked Questions (“FAQs”) regarding how federal contractors should determine whether a worker is an employee versus an independent contractor. Continue Reading