foley’s 2007 annual update on government contracts

Foley’s 2007 Annual Update on Government Contracts

©2007 Foley & Lardner LLP • 07.3817f

©2007 Foley & Lardner LLP

Bid Protest

P Recent Bid Protest Statistics P Critical Procedural Issues – being

TIMELY P Significant Decisions of the Government

Accountability Office (GAO) P Stopping Performance During the

Protest P Protest Reform

Organizational Conflicts of Interests (OCI)

P Key Principles of OCI and Current FAR Treatment

P The Three Categories of OCI P Examples of Agency RFP Provisions on

OCI P OCI Changes under Discussion

Contractor Code of Ethics and Business Conduct

P New Proposed FAR Rule P Key Elements of a Compliance Program

Commercial Item Update

P T&M Contracts under FAR Part 12 P Proposed Change to the Commercial

Item Definition Break

U.S. Government Subcontracts – Special Considerations for Primes and Subs

P Unique Features of Government Subcontracts

P Flowing Down FAR Clauses P The Prime Contractor’s View P The Subcontractor’s View P How to Improve Your Subcontracts

Litigating Claims under the Contract Disputes Act

P What is a “Dispute”? P The Importance of the Contracting

Officer’s Final Decision P Appealing to the Boards of Contract

appeals P Appealing to the U.S. Court of Federal

Claims P ADR and Settlement Opportunities

Teaming Agreements

P Teaming Agreements vs. Other Team Arrangements

P Top 10 Clauses to Include in a Teaming Agreement

Berry Amendment Update – Specialty Metals and More

P Summary of Berry Amendment P Frequently Asked Questions

Reception

Foley & Lardner LLP Annual Update on Government Contracts

November 6, 2007 –Amway Grand Plaza

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November 7, 2007 – Hyatt Regency

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November 13, 2007 – Hilton Milwaukee City Center

12:30 p.m. – 1:00 p.m. Registration 1:00 – 5:15 p.m. Seminar

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Seminar Topics

©2007 Foley & Lardner LLP • Attorney Advertising • Prior results do not guarantee a similar outcome • 321 North Clark Street, Chicago, IL 60610-4764 • 312.832.4500 1

BID PROTESTS

David T. Ralston, Jr.Frank S. Murray

November 2007

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Bid Protest Topics

Why are bid protests filed?Where are bid protests filed?When must bid protests be filed?How can I get a stay of contract performance while my protest is pending – and why do I need one?What does “corrective action”mean, and can it be protested?


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Why File a Bid Protest?If you believe the agency is violating a statute, regulation or provision of the solicitation

If you are second in line for award and you did a good job in preparing your proposal, you should think of a protest as essentially an extension of your marketing efforts, highlighting the advantages your proposal provides the government and the reasons why the government should have selected you if it had evaluated properly

If you are the incumbent, a protest also may allow you to continue providing goods or services while the protest is pending

If the protest is sustained (or if agency delays in taking corrective action), you can recover attorneys fees

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Where Are Bid Protests Filed?

Three forums for bid protests:– Administrative

Agency-level protests (Contracting Officer)Government Accountability Office (GAO)

– JudicialU.S. Court of Federal Claims (COFC)

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Decision Deadlines at the Three Bid Protest Forums

GAO: 100 days (averages around 80)

Agency: 35 days

COFC: No deadline, but decisions on whether to grant an injunction staying award or contract performance are typically issued within 10 to 30 days

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Typical GAO Protest Process

Protest filedAgency Report filed (30 days later)Protester has 10 days to file comments on agency report and any supplemental protest grounds based on agency reportAgency responds to new protest grounds (if any)GAO may hold a hearing to take testimony, hear argumentGAO issues decision on protest (within 100 days of initial protest filing date)

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Protests at GAO

Fiscal Year 2006 Statistics– Protests filed: 1,327

Includes 58 claims for cost and 57 requests for reconsiderationDecrease of 2% from FY2005

– Merits decisions: 249– Protests sustained: 72– Sustain rate: 29%

Highest rate in last 10 years (previous high, 23%)– Hearings: 51 – Effectiveness rate: 39%

“Effectiveness rate” indicates percentage of cases in which protester received some relief from the agency.

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Obtaining “Some Relief from the Agency” in a Bid Protest

“Effectiveness rate” statistic highlights that you can “receive some relief from the agency” even in protests that don’t go to a final decisionBy filing a protest and pointing out a potential error in the procurement that could delay award and contract performance, you can put yourself in position to negotiate with the agency to obtain an outcome that provides you with some benefit, even short of winning the protestThe stronger the protest, the greater your leverage with the agency is likely to beFAR 33.102(b): agency can take any action that could have been recommended by GAO, including paying protester’s costs

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Protests at FAA’s Office of Dispute Resolution for Acquisition

FAA’s Office of Dispute Resolution for Acquisition (ODRA)– Handles bid protests of procurements by FAA and

Transportation Security Administration (TSA) of Dept of Homeland Security

Total protests filed since 4/1/96: 309– 35 filed between 6/8/06 and 9/24/07

Final decisions: 110– 14 between 6/8/06 and 9/24/07

Full or partial relief granted: 27– But only 1 between 6/8/06 and 9/24/07

Sustain Rate: 24.5%Statistics as of September 24, 2007

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Protests at COFC

Fiscal Year 2006– 73 bid protests filed– 721 total cases filed– Bid protests = approximately 10% of

COFC docket– Average COFC bid protest case is

disposed of about 5 months after protest was filed

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Bid Protest Filing Time Requirements

Teaching point: Prompt (really, really prompt) action on bid protests is a must. Call counsel as soon as a protest in considered.

Consult with counsel when preparing your proposal if you believe there may be issues with the solicitation (particularly important based on deadlines for protesting solicitation defects)

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Bid Protests:GAO Timeliness Rules

Administrative filing deadlines:– GAO Timeliness Rule is at 4 C.F.R. § 21.2– 3 Different Standards for Timeliness

at GAOSolicitation/RFP/RFQ DefectsProtest at GAO Following Agency-Level ProtestAll Other Protest Issues

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Protesting Solicitation Defects

Solicitation/RFP/RFQ defects– 4 CFR § 21.2(a)(1)– Must file prior to due date for initial

proposal/quote submission/bid opening– Alleged improprieties which do not exist in

the initial solicitation but which are subsequently incorporated into the solicitation through an amendment must be protested not later than the next closing time for receipt of proposals following the incorporation.

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Council for Adult & Experimental Learning, B-299798.2 (Aug. 28, 2007)– GAO bid protest concerning Army

solicitation for lead integration and other technical support for online web-based educational portal, GoArmyEd

– After Army awarded to incumbent on previous contract (IBM), CAEL protested, claiming Army had tilted acquisition unfairly in favor of incumbent

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Council for Adult & Experimental Learning, B-299798.2 (Aug 28, 2007)– CAEL protested that Army failed to provide

needed technical specifications and legacy information regarding former contract, forcing all offerors other than incumbent to “guess” at Army’s needs

– Also argued that Statement of Work contained insufficient detail

– Result: protest denied as untimely for failure to file prior to solicitation closing date

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Common “Defective Solicitation”Protest Grounds

RFP not detailed enoughRFP too detailed, too restrictive (sets standards that are not needed)Many brand-name or equal issuesNeed more time to respondRFP is clearly ambiguous (“patent ambiguity” vs. “latent ambiguity”)Small-business issues (failure to set aside, wrong size standard, HUBZoneissues)

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Good rule of thumb as to whether an issue is a “solicitation defect” issue that must be raised prior to closing date:– Is there something about this acquisition

that you have a problem with even BEFORE you know who will win the contract?

– If so, that probably means your objection or concern is a “solicitation defect” issue that you will need to protest prior to the closing date.

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Timeliness of Protests at COFC

Until recently, there was no specific deadline for filing protests at COFC, only real limit was statute of limitations (6 years, which is not relevant in most cases)COFC does not generally follow GAO’s strict timeliness rules (i.e., no ten-day limit to file a protest)Recent decision by Court of Appeals for the Federal Circuit does, however, embrace GAO’s rules regarding protests of solicitation defects

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Timeliness of Protests at COFC: Solicitation Defects

Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir., June 26, 2007)

Formally adopted application of GAO timeliness rule at COFC for protests of errors apparent on the face of a solicitation

Now, such errors must be protested at COFC prior to the closing date for receipt of proposals (just like GAO), or the protest will be dismissed as untimely

Federal Circuit: protesters cannot “sit on their rights” to challenge a solicitation they believe to be unfair

Rule promotes efficient resolution of protest grounds at a time when errors can be fixed with the least disruption to the procurement process, and is meant to discourage strategic behavior by bidders (“rolling the dice” on award)

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For all other protests (protests not based on solicitation defects, such as those challenging an award decision or evaluation of proposals), the operative principle is the equitable concept of “laches”“Laches” means unreasonable delay –essentially a fancy way of saying, “You snooze, you lose”

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Specifically, a filing of a protest at COFC (that does not relate to a solicitation defect) is timely unless the protester’s delay in filing is:– (1) unreasonable and unexcused, and– (2) prejudicial to the other party. Delay much beyond award, however, will severely reduce the likelihood of obtaining COFC injunction of contract performance

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Agency-level Protests

To be considered timely, generally follow GAO rules, unless the agency’s rules are more stringent. Agency protest procedures usually cited or identified in solicitation.

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To be considered an agency-level protest, the protest must be in writing and must “convey the intent to protest” by containing (1) “an expression of dissatisfaction,” and (2) “a request for corrective action.” Federal Marketing Office – Reconsideration, B-249097, Jan. 5, 1993, 93-1 CPD ¶ 4. If the writing is couched in terms of “questions” about the procurement or a “request for clarification,” it will likely not be treated as an agency-level protest

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Advantages of agency-level protests:– Least formal and least costly forum in which to

raise issue– May succeed in getting agency to resolve issue

without need for further protest at GAO or COFC– Can preserve “solicitation defect” issues for later

challenge at GAODisadvantages of agency-level protests:– Protest typically asks agency to reverse its own

decision or admit it made a mistake– Waiting for agency-level protest decision can

affect timeliness of GAO protest or impact ability to obtain stay of contract performance

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“Appealing” Agency-level Protests to GAO

Protester dissatisfied with result of agency-level protest can still file a protest on the same grounds at GAOBUT be aware of the timeliness issuesGAO Rule 4 CFR § 21.2(a)(3)– If a timely agency-level protest was

previously filed, any subsequent protest to GAO on those grounds must be filed within10 days of actual or constructive knowledge of initial adverse agency action

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Timeliness of Agency-level Protests

Adverse Agency Action– Defined in GAO Rules at 4 CFR § 21.0(f)– “any action or inaction by a contracting

agency which is prejudicial to the position taken in a protest filed with the agency, including a decision on the merits of a protest; the opening of bids or receipt of proposals, the award of a contract, or the rejection of a bid or proposal despite a pending protest; or contracting agency acquiescence in continued and substantial contract performance.”

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Timeliness ofAgency-level Protests

GAO defines an agency’s decision to proceed with opening of bids or receipt of proposals in the face of an agency-level protest as “adverse agency action”on the protest. 4 CFR § 21.0(f)

Thus, if agency has not acted on an agency-level protest prior to closing date for receipt of proposals, the receipt of proposals will be the “initial adverse agency action,” triggering 10-day rule

In that scenario, protester would have 10 days after closing date to file protest at GAO – even if agency still hasn’t issued a decision on the merits of the protest or made an award decision

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Using Agency-Level Protest to Preserve Solicitation Defect Issues

Recall that protests against “solicitation defects” typically must be filed at GAO prior to the closing date or they are waivedOne exception: where protester timely filed an agency-level protest against the solicitation defect prior to the closing date, and then files at GAO within ten days of closing date

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Illustration based on issues in the Council for Adult & Experimental Learning (“CAEL”) decision Protest grounds at GAO in CAEL case were that RFP did not contain necessary information and lacked sufficient detail, but protest dismissed as untimely because CAEL did not protest these issues until after RFP closing dateBut what if CAEL had filed an agency-level protest on those issues with the contracting officer prior to the closing date?

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Assume RFP closing date is 8/1/2007

On 7/25/2007, CAEL files agency-level protest that RFP lacks necessary information and contains insufficient detail in Statement of Work

On 8/1/2007, agency accepts proposals without taking action on CAEL’s agency-level protest

On 8/10/2007, CAEL protests at GAO

Result? Timely protest, even though it comes AFTER solicitation’s closing date, because filed within 10 days of initial adverse action on timelyagency-level protest

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GAO Timeliness RulesNon-“Solicitation Defect” Cases

4 CFR 21.2(a)(2)

General rule: protests not based on defects apparent on the face of a solicitation are required to be filed within 10 days of when the protester became aware of the basis for the protest (unless the debriefing date is later)

Typically comes up in situations where a proposal has been rejected after submission or award has been made to another offeror

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Common Protest Grounds That Don’t Relate to Solicitation Defects

Failure to follow evaluation criteria in solicitationUse of unstated evaluation criteriaImproper past performance evaluationLack of meaningful discussionsImproper best value determinationUnequal treatmentLatent ambiguity in RFP

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GAO Timeliness Rules and Debriefings

Impact of Debriefings

Government is required to give a debriefing to offerors who request it –in writing – within 3 days of notification of exclusion from competition (pre-award, FAR 15.505(a)), or of notification of award to a competing offeror (post-award, FAR 15.506(a))

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Common question: you receive notice of exclusion from competitive range. Should you request a pre-award debriefing, or request that the debriefing be delayed until after award?

Better to request pre-award debriefing to find out what agency’s basis for exclusion was. If you act promptly and file protest before agency makes award decision, easier to get a fairer shake at ultimate award decision than after agency has already picked another offeror it believes deserved to win the contract

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When protester has requested a required debriefing, protester has up to 10 days after the date on which the debriefing is held to file a protest at GAOBUT… if you want to stay contract performance, you MUST, MUST, MUST file the protest at GAO within 5 DAYS of the date of a post-award debrief.So a protest can be TIMELY at GAO, but still not be filed in time to stay contract performance

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GAO Timeliness RulesNon-“Solicitation Defect” Cases

That means you would have the chance to argue that you should get the contract, but – because the awardeewill be performing the contract while the protest is pending – you may not have much contract left to get even if you win the protestIf no stay of contract performance, the relief available if you win the protest will be limited

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Obtaining Stay of Contract Performance

To obtain stay of contract performance (which is very important), you must file protest at GAO/agency within latter of:– Ten (10) days of contract award, or– Five (5) days of the offered debriefing date, if the debriefing

is required (written request for debrief must’ve been filed within 3 days)

At GAO, must file early enough to permit GAO to call agency with the notice of protest filing within the 10/5 day period. (The GAO call triggers the statutory stay of contract performance.)

Stay at COFC requires an injunction

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“Corrective Action” as Means to Dismiss Protest

When faced with a protest at GAO or COFC, the agency sometimes elects to “throw in the towel” and take what it will characterize as “corrective action” to address the error alleged in the protestProvided the “corrective action”adequately addresses the error the agency says it is trying to correct, GAO will generally dismiss the protest as moot (GAO’s term: “academic”)

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Protesting “Corrective Action”

If the agency’s proposed “corrective action” is not adequately corrective – or if you think it goes too far – you can protest the corrective action

If you believe corrective action proposed by the agency is insufficient, first step is to fight dismissal of protest, pointing out that corrective action does not fully address errors alleged in protest– Example: protest of award decision of a multi-year contract

calling for base year and three option years. Agency proposes as “corrective action” that it will not execute the option years, but intends to leave the award of the base year intact. Not complete “corrective action” – doesn’t render protest moot.

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Protesting “Corrective Action”

Note, though, that agencies have broad discretion in fashioning corrective actionKey is showing disconnect between proposed corrective action and error agency is supposedly trying to correctAlso, GAO’s timeliness rules apply to protests of corrective actionProtests against revised solicitation must be submitted prior to next closing date for receipt of revised proposalsProtests of other corrective action must be submitted within 10 days of when protester learned of the corrective action

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Protesting Corrective Action

Partnership for Response and Recovery, B-298443.4 (Dec. 18, 2006)– Previous protest filed by Alltech, challenging

agency’s evaluation of its proposal as irrational– During course of prior protest, agency found that

there had been numerous errors in evaluation, including reliance by source selection evaluation team on an inaccurate “draft” evaluation report of Alltech and lack of meaningful discussions with Alltech regarding its past performance

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Partnership for Response and Recovery, B-298443.4 (Dec. 18, 2006)– Corrective action initially proposed by agency was limited:

would appoint a new source evaluation board (SEB) to conduct de novo evaluation of competitive range offerors, but planned to reopen discussions only for newly identified significant weaknesses that were not the subject of previous discussions, and price revisions would be permitted only to extent they could be tied to technical changes resulting from new discussion questions

– Agency later decided the restrictions on discussions and price revisions were unworkable, and decided that there would be no restrictions on the new evaluation, discussions, and price revisions

– Agency also amended RFP to add new requirement

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Partnership for Response and Recovery, B-298443.4 (Dec. 18, 2006)– Original awardee protested agency’s revised corrective

action as overbroad– GAO denied protest

“Details of implementing corrective action are within the sound discretion and judgment of the contracting agency”GAO will not object to specific corrective action “so long as it is appropriate to remedy the concern that caused the agency to take corrective action”

– GAO also pointed out that agency can amend RFP to add new requirements as part of corrective action, and is not required to limit submission of revised proposals to address only those new requirements

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©2007 Foley & Lardner LLP 1

ORGANIZATIONAL CONFLICTS OF INTEREST (OCI)

George W. AshDavid T. Ralston, Jr.

Erin L. Toomey

November 2007

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OverviewAddressed in the Federal Acquisition Regulations (FAR) in FAR Subpart 9.5, “Organizational and Consultant Conflicts of Interest”

No standard clause in the FAR

Key Principles

Three Categories– Unequal Access to Information– Biased Ground Rules– Impaired Objectivity

Example Contract Provisions


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Key Principles Of OCI

Prevent the existence of conflicting roles that may bias a contractor’s judgment

Prevent an unfair competitive advantage– Proprietary information of others– Source selection information

Burden is on the Contracting Officer to “identify”, “evaluate”, “avoid”, “neutralize”, and “negotiate”potential conflicts prior to award

Anticipating OCI issues, Contractors should develop their own mitigation plan to “sell” when questions arise

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CATEGORY 1 Unequal Access to Information

Access to “non-public information” that leads to a competitive advantage– Being the incumbent contractor alone is not

enough

GAO has focused on:– Did the bidder have useful information beyond

that of an ordinary incumbent?– Can the information be identified using

“substantial facts and hard evidence”?– Was the information proprietary to another

company, or was it freely disseminated?


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Johnson Controls World Services (GAO 2001)

Contract concerned an A-76 outsourcing of base maintenance operations at Fort Benning, GA. Competition was for low cost, technically acceptable offeror to compete with the MEO.JCWS alleged winning offeror, IT Corp., had an impermissible OCIbased on “non-public information” obtained from a teaming partner/subcontractor, INNOLOG.GAO factual assessment:– The information INNOLOG had would be valuable to a bidder:

INNOLOG had much more detailed information than in the RFP as to weapons repaired and parts used, permitting refined/reduced staffing.INNOLOG was “embedded in the Government organization,” and “knows everything that goes on” as to maintenance and supply.

– Information was more than that possessed by ordinary incumbent:INNOLOG’s work included analysis/evaluation of how the work is and should be performed, and an incumbent would not ordinarily know how an agency evaluates its work.

GAO held:– IT Corp.’s proposed subcontractor had information that created an unfair

competitive advantage.– The agency failed to take steps to identify or mitigate the conflict in

advance of issuing the award.

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Mechanical Equipment Co. (GAO 2003)

Five-year small business development/production contract for the Camel transportable water system by TACOM.Chenega (ANC) awardee; OCI was alleged through its subcontractor, Radian.Radian a “long-term support contractor” at TACOM, provided support for the Camel program.Lack of “substantial facts and hard evidence”:– Information Radian possessed had been made public or was

outdated by events.GAO acknowledges that TACOM and Radian personnel worked “side-by-side” on the Camel program, but found no evidence of actual access.


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MASAI Technologies Corporation (GAO 2007)

MTC and Denysys Corporation responded to an RFP to provide computer and technical support for the Army’s new medical logistics information system.

Both MTC and Denysys certified there were no OCIs created by their participation in the program.

MTC alleged Denysys should have been disqualified based on OCIs of Denysys’ proposed subcontractors.

GAO held:– The agency performed a reasonable analysis to determine if

Denysys or its subcontractors’ activities created OCIs and there was no material flaw in the agency’s review.

– “The existence of an advantage, in and of itself, does not constitute preferential treatment by the agency, nor is such a normally-occurring advantage necessarily unfair.”

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Axiom Resource Management (COFC 2007)

The Army awarded a task order to Lockheed Martin for program management support services.

The protester argued the agency failed to recognize and/or mitigate an OCI.

COFC held:– Lockheed Martin employees working on the task order will

receive access to certain information that will give it an unfair competitive advantage in future procurements.

– Lockheed Martin’s proposed OCI mitigation plan fails to bar Lockheed Martin from performing future contracts that create a conflict, a plan that has binding effect at law, and a plan that contains anticompetitive aspects, such as the NDA agreements.


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CATEGORY 2 Biased Ground Rules

Occurs when a contractor has “set the ground rules”for a subsequent contract by, for example, writing the Statement of Work or specification.

GAO focuses on:– Did the bidder “set the ground rules” for a competition by

having a substantial role in the SOW or specification?– Did the firm receive an “actual benefit” in the competition

because of their prior role?– Was the firm responsible for design and development of the

overall system? (Note this is an “exception”)

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Lucent Technologies World Services (GAO 2005)

ID/IQ contract to supply Army with TETRA wireless radios for first responder network (AFRN) in Iraq.

Lucent involved in AFRN project and TETRA technology, and developed solicitation.

When Army sought Lucent’s help to respond to offeror questions, Lucent refused on the ground it planned to be a bidder.

Army CO finds an OCI and excludes Lucent from bidding.

GAO rejected Lucent arguments that:– RFP changes precluded an OCI.– Commercial items/NDI precluded an OCI.– OCI did not arise because Lucent did not make the TETRA devices.– Lucent was exempt under the developmental contractor exemption.

GAO also rejected Lucent position that CO still had a duty to mitigate OCI, because Lucent chose to challenge the OCI determination.


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American Management Systems (GAO 2000)

Protester alleged that KPMG provided technical assistance, advice and/or acquisition support services to the agency that either influenced or had the potential to influence the procurement process to favor one of the vendors with which KPMG had a significant business relationship.

GAO held that the relationship between KPMG and the winning bidder did not relate to the integration services procurement, the software procurement, or either firm’s resulting contract performance for the VA.

KPMG and the winning bidder had entered into a “Marketing Alliance Agreement” or a teaming agreement that did not provide KPMG with a financial interest in the procurement.

Accordingly, the potential benefit to KPMG was speculative and too remove from the present procurement to present an OCI.

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CATEGORY 3Impaired Objectivity

Can the firm render impartial advice to the government, or will it appear to be effected by its relationship with the evaluated entity?

GAO focuses on:– Does the Contract require the exercise of

judgment by the Contractor?– If so, will the firm ever be in a position to

evaluate itself?– Will providing impartial advice adversely impact

any of the firm’s economic interests?


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Celadon Labs (GAO 2006)SBIR NIH Phase I grant case.

Celadon proposal involved siLNA technology concerning small molecules that modulate protein in cancer cells.

Celadon knew the NIH peer-review panels members and complained to NIH that each had a “real conflict of interest” under NIH rules because they worked/were affiliated with segments of the biotech industry aligned with siRNA, a competitive technology.

The NIH peer-review panel found Celadon’s proposal technically unacceptable.Celadon complained to NIH again; NIH rejected Celadon complaintsagain and GAO protest followed.

GAO sustained protest because NIH merely accepted reviewers self-assessment of no conflicts and failed to undertake its own determination.

Prejudice is presumed from a conflict, so burden is on agency torefute prejudice.

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Alion Science and Technology (GAO 2006)

Three GAO protests plus Court of Federal Claims case. Ultimately, Alion lost.

Award by DISA to ITT for electromagnetic spectrum engineering services.

ITT makes and markets a host of multiple spectrum-dependent electromagnetic products, thus its work on the engineering contract could be influenced by its other financial interests (i.e., pushing its own products, rejecting competitor products) (“impaired objectivity”).

After first protest, DISA took corrective action. Second protest followed and GAO sustained.

In second round of “corrective action” ITT offered to use “fire-walled”subcontractors to perform conflicted portions of the contract. DISA accepted this even though it also found that one-third of the contract effort involved conflicts. Third protest followed.

GAO found “fire-walling” approach sufficient, denied third protest.

COFC denied injunctive relief.


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Science Applications Int’l Corp. (D.D.C. 2007)

The Nuclear Regulatory Commission (“NRC”) alleged that SAIC failed to disclose a consulting relationship that created an OCI.

The regulation cited in the contract, 41 CFR 20-1.5402(a) required SAIC to disclose any “present or planned interests related to the work to be performed under an NRC contract which: (1) May diminish its capacity to give impartial, technically sound, objective assistance and advice or may otherwise result in a biased work product . . . .”

The NRC alleged that SAIC’s relationship with organizations, including the Association of Radioactive Metal Recyclers, created an appearance of bias in the technical assistance and support SAIC provided to NRC.

GAO held:– SAIC was required to disclose contracting and consulting relationships as

well as any relationship which may have compromised its neutrality. – “By directly working a trade association whose aim was to advocate in favor

of recycling and reusing radioactive materials, SAIC’s ability to provide impartial assistance to the NRC as was required under the contracts could easily be called into question.”

– SAIC’s failure to disclose this relationship and the potential OCI provided a basis for the NRC to sufficiently state a claim under the False Claims Act.

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How to Deal with OCI IssuesAssess your contracts that involve access to other’s proprietary information or provide unusual insight into an agency’s decision making process in making a contract award

Consider OCI implications before accepting an award, and the steps that should be taken to mitigate OCI concerns before they occur

Does this procurement (or a subsequent procurement) contain issues related to Unequal Access to Information, Biased Ground Rules or Impaired Objectivity?

Develop a mitigation plan/approach for each of the three categories of OCI


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Examples Of OCI Contract Provisions

A. USPS Purchasing Manual, Clause 1-7

B. Department of Commerce FAR Supplement, Clause 1352.209-71

C. FAA Conflict of Interest Clause


CONTRACTOR CODE OF ETHICS AND BUSINESS CONDUCT

John G. DeGooyerPhilip A. Nacke

Steven C. Lambert

November 2007

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Overview

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council proposed amending the Federal Acquisition Regulations (FAR) in FAR Subpart 3.10 to add, “Contractor Code of Ethics and Business Conduct”

The scope of the proposed FAR 3.10

Key Elements of a Compliance program

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Proposed FAR 3.10The new rule provides that:

Contractors should have a code of ethics and business conduct.

Contractors who receive awards of more than $50 million with performance periods of 120 days or more must:– Publish a written code of ethics and business conduct within 30

days after contract award; and– Establish an ethics and compliance program and an internal

control system consistent with the company’s size and volume of government business within 90 days after contract award.

Contractors who receive awards of more than $50 million must display an agency inspector general’s fraud hotline poster at work locations in the United States and on the company’s Web site, if the company has a site for employees.

All contractors must have a “satisfactory record of integrity and business ethics” to be considered a responsible company eligible for award.

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Proposed FAR 3.10 (Cont’d.)

The rule will provide remedies for noncompliance, including the withholding of contract payments or loss of award fee.

The rule will require a flow-down provision that would apply to subcontracts at the same dollar levels as prime contracts.

The rule would only apply to contracts performed in the United States, but not to commercial item contracts.

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Key Elements Of A Compliance ProgramWritten code of ethics and conduct

Clearly outline the company’s responsibilities and the employees’ responsibilities and identify a compliance officer responsible for the program

Delineate penalties for noncompliance

Set forth company’s policies and standards relating to, among others:– False claims or statements– Payments, Gifts and Gratuities– Conflicts of Interest (Individual and Organizational)– Pricing, Billing and Contracting– Time Card Reporting– Bribes, Kickbacks– Technology and Information

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Implementing A Compliance Program

Distribute written code of ethics and conduct to employees and have them return a written confirmation of receipt.

Implement a compliance training program and conduct periodic training updates.

Follow through with corrective measures.

Although the rule is not yet in effect, all government contractors should implement a compliance programs or update their existing programs.

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COMMERCIAL ITEM UPDATE

George W. Ash

November 2007

2

Commercial Item Update

Service Acquisition Reform Act (2003) explicitly authorized USG agencies to acquire commercial services on a T&M basis using FAR Part 12.The FAR councils issued an ANPR to implement the SARA provision in September 2004, which started a two year fact finding process.On December 12, 2006 three sets of rules were published, including one addressing commercial item T&M purchases, non-commercial item T&M purchases and an interim DFARS rule with a request for comments that addressed DoD non-commercial item procurements. These rules became effective February 12, 2007.

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FAR Commercial Item T&M Rules

Applies to all categories of services– Not based on the the type of service, but instead– Whether the scope of work is defined well enough for

FP terms.Three significant administrative requirements:– Use competitive procedures.– CO must prepare a D&F explaining no other contract type

is suitable.Describe market research, establish that agency cannot accurately estimate duration or costs, structure the award to use FFP awards in the future.D&F require for each task order.

– Approval of HCA for contract potentially extending over three years.

4

Impact of New T&M Rules

Too onerous to be practical or useful.Takes too much effort for acquisition personnel.

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Is The Definition Of “Commercial Services”In The FAR Going To Be Narrowed?

Current FAR definition includes the “of a type” description in paragraph 6 of the definition found in FAR 2.101.The recent Acquisition Advisory Panel concluded the “of a type” language was not appropriate for the services portion of the definition, in effect challenging the notion that services “of a type” sold in substantial quantities in the commercial marketplace could be adequately priced.It remains to be seen what will come out of the Authorization/Appropriation process.

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FAR 2.101 Commercial Item, Services Definition

(6) Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed or specific outcomes to be achieved and under standard commercial terms and conditions. For purposes of these services—

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FAR 2.101 Commercial Item, Services Definition (Cont’d.)

(i) “Catalog price” means a price included in a catalog, price list, schedule, or other form that is regularly maintained by the manufacturer or vendor, is either published or otherwise available for inspection by customers, and states prices at which sales are currently, or were last, made to a significant number of buyers constituting the general public; and

8

FAR 2.101 Commercial Item, Services Definition (Cont’d.)

(ii) “Market prices” means current prices that are established in the course of ordinary trade between buyers and sellers free to bargain and that can be substantiated through competition or from sources independent of the offerors.

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U.S. GOVERNMENT SUBCONTRACTSSPECIAL CONSIDERATIONS FOR

PRIMES AND SUBSGeorge W. Ash

Jason D. Menges

November 2007

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Government Contracts Seminar 2007

What makes a government contractdifferent from any other contract?

Government Subcontracts – special considerations for Primes and Subs– From the perspective of both the Prime and

the Sub

FAR and the Law – “What are all these clauses and what do they mean?”– Background on the FAR, Commercial Items

and Common Mistakes


3

Government Subcontracts –Negotiation Strategy Considerations for Primes and Subs

What is a subcontract?View of a prime/higher tier subcontractorView of a lower tier contractorMost common provisionsBattle of the FormsExamples of bad subcontract provisionsTerms and Conditions Checklist

4

What is a subcontract?

FAR defines a subcontract as a contract entered into by a subcontractor to furnish supplies or services for performance of a prime contract or subcontract. It includes, but is not limited to, purchase orders and changes and modification to purchase orders. FAR 44.101

– definition focuses on status of a subcontractor


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– While, by definition, a subcontract involves a “contract” in support of a higher tier contractor, many of the issues involving subcontract formation, negotiation, performance and remedies are equally applicable to other forms of agreements, such as cooperative agreements, grants, joint ventures, teaming arrangements and “other transactions”

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Subcontracts Are a Hybrid of a Government Contract and a Commercial Contract

Government contract statutes, rules, regulations, and clauses apply to the extent they are incorporated into the agreement“Christian” doctrine G. L. Christian & Associates v. U.S., 312 F.2d 418 (Ct. Cl., 1963) does not apply to subcontractsSubcontracts are also governed by commercial law such as the Uniform Commercial Code, other statutory laws or the common law


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From the Prime/Higher Tier Contractors’ Perspective

Prime Contractor usually has the most bargaining powerThere are some clauses in its contract with the government that must be flowed down, or the Prime will be in breachFor example, even for government subcontracts for commercial items, the prime must flow-down at a minimum, the clauses on Equal Opportunity; Affirmative Action for Disabled and Vietnam Era Veterans; and Affirmative Action for Workers with Disabilities

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But, not all provisions have to beor even can be flowed-down

Since the subcontract is likely to be only for a subset of the Prime’s requirements, some provisions are likely to be not applicable


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For example, a prime contract for a government unique product may require subcontracts for commercial items. Those subcontracts should follow the commercial item requirements, substantially reducing required flow-downs (FAR 52.244-6)

Also, note that some clauses are required to be flowed down only at certain tiers, or only if the subcontract exceeds a certain threshold

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There are other clauses which, while not mandatory, should be modified and flowed-down in order to Protect the Prime’s interests.

Examples include:

– Termination Clauses– Changes– Indemnification– Warranty


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Finally, there are other clauses which really cannot be flowed down in their original form, even though the content of the clause may need to be addressed

Example– Disputes

Applicable lawForum of choiceADR

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From The Subcontractor’s Perspective

Often the subcontractor feels powerless to challenge the terms offered by the Prime– Real or illusory?

Subcontractor needs to recognize the clauses which are mandatory for the Prime to flow down– Don’t waste time trying to negotiate these


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Subcontractor needs to accept the clauses the Prime must include to cover its legitimate risk (termination, changes, etc.)

Subcontractor needs to be able to identify the clauses that are not mandatory flow-downs, that do not cover a Prime’s legitimate risk, or that cause a burden on the subcontractor

Challenge for the Subcontractor is then to convince the Prime these superfluous clauses add unnecessary cost, are unnecessarily burdensome to the subcontractor, or are just unfair

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Subcontractor needs to consider whether once accepted, it will be able to flow-down clauses to its own subcontractors

Finally, since the negotiation typically starts from the Prime’s document, the Subcontractor has to consider if all of its concerns are met, e.g., payment terms, intellectual property, etc.


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Summary of Terms To Analyze for Consistency Between Prime and Sub

ChangesTerminationIndemnificationWarrantySetoffToolingService/Replacement partsDuration (commercial)Quantity (commercial)

16

Comparison With Commercial Contracts

Analysis is similar under UCC, generally

Outcome is determined by leverage– Unique product?– Low cost provider?– Captive Technology?


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Changes Clause

The government has the right to issue change orders within the general scope of the prime contract

The Prime contractor can then request an equitable adjustment (“REA”) in terms of cost or schedule extension (or both) due to the change

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The Prime Must Make Sure

It can pass government directions to the subcontractor without the change being considered a breach and without the subcontractor rejecting the change

The subcontractor’s REA for cost or schedule adjustment is submitted in a timely manner so the Prime can meet its own obligations under the prime contract


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However, It Is Legitimate For The Subcontractor To:

Draw a distinction between a government-directed change and a prime contractor-directed change with respect to– unilateral vs. bilateral nature– cost and schedule adjustments– utilization of the Disputes clause– the nature of the change the subcontractor

is willing to consider

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Changes Clauses In Commercial Contracts

Changes clauses vary depending on leverage and, sometimes, attention to detailGenerally set forth scope of permissible changes, and process for payment– Buyer discretion for adjustments

for changes?– Equitable price adjustments for

all changes?– Price adjustment for only “cost-impact”

changes?


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Changes Clauses In Commercial Contracts (Cont’d.)

If not addressed in contract, then every change may open the door for negotiation of all terms

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Termination Clauses

The Prime needs to be able to flow this clause down so that if its contract is terminated for the government’s convenience, it can likewise terminate the subcontractor’s contract

The Prime needs to be able to fairly resolve subcontractor termination settlement proposals in a timely way that will allow the prime to be fully reimbursed from the government


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The subcontractor may want to distinguish between a government-directed termination for convenience and a contractor-directed termination for convenience

The subcontractor wants to have the same rights and recoveries as the prime contractor if the government terminates for convenience

– The contractor directed termination can arise from the inclusion of the FAR termination clause with a general “change the government to contractor” incorporation

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Termination for Convenience In Commercial Contracts

One of most hotly contested provisions in most commercial contractsOutcome depends on leverage– Long-term Agreement vs. Order-by-Order– Recovery of Capital, Tooling, Investment

CostsBe wary of disclaimersPermissible obsolescence claims typically are limited


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Terminations for Default

The Prime needs to clearly identify the events which will support a default of the subcontractor to protect its interests and minimize the risk of having its own contract default terminated

The subcontractor needs to be assured it would only be default-terminated for a material breach, and that if there was a disagreement concerning the default action, that the subcontract offers a viable dispute resolution process.

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Termination for Default In Commercial Context

Same negotiation dynamic as government contracts– Buyer wants unbridled discretion– Seller wants as many limitations as

possible

However, also consider:– Insolvency as justification for termination– Cost-competitiveness as justification for

termination


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Disputes Clause

Unaltered FAR Disputes clause cannot be flowed down because the Prime cannot give the various BCAs or Court of Federal Claims jurisdiction to decide a disputed claim

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A Subcontract Disputes Clause Needs To Meet The Needs of The Prime By:

Making sure the subcontractor is “bound” by contracting officer final decisions based upon the prime contract and those decisions that were appealed

Making sure the subcontractor must continue to perform despite the dispute

Recognizing some disputes will be solely between the Prime and subcontractor and are therefore not going to be decided by the contracting officer


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A Subcontract Disputes Clause Needs to Meet The Needs of The Subcontractor By:

Recognizing some disputes cannot be settled under the prime contract’s Disputes clause

Providing an efficient, effective and fair disputes process

Making sure that if the subcontractor is going to be bound by contracting officer decisions under the prime contract, it has adequate information, input and appeal rights

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Disputes Clauses In Commercial Contracts

Arbitration?Mediation?Required good-faith negotiations? Litigation?


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Warranty Clauses in Government Contracts

The contract can have express warranty requirements.FAR 52.212-4(o) includes a warranty of merchantability and a warranty of fitness for a particular purpose.– These are warranties found in the UCC which

applies to goods.– The FAR’s definition of commercial items covers

both goods and services.

Otherwise, like commercial warranty provisions

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Warranty Clauses in Commercial Contracts

What is scope of warranty?– Strict compliance with specifications, samples, drawings,

designs or other requirements (including performance specifications)?

– Goods merchantable and of good material and workmanship and free from all defects?

– Goods selected, designed, manufactured and assembled by Seller based on Buyer’s intended use?

– Strict compliance with applicable industry standards, quality control and inspection standards, and all statutes, rules and regulations, of any kind or nature?

– Free from all liens and encumbrances?– Free from all patent, trademark, copyright, trade secret or

other intellectual property right infringement or claims?


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Warranty Clauses (Cont’d.)

Length of Warranty Period?– Can be modified by contract. For example, can

extend until:Expiration of all warranties made by Buyer to its customer concerning Buyer’s product incorporating the Goods; orExpiration of the longest time period which Buyer’s customer may be required, by contract of law, to repair or replace the Goods or Buyer’s product incorporating the Goods, if the Goods are defective or nonconforming to any warranties.

– Warranty from subcontractor should parallel warranty to customer

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Indemnification

Most common bases for indemnification:– Breach of warranty/recall– Intellectual property– Third-party claims, personal injury, etc.

Attorneys’ fees/costs of litigationCosts of settlement/control of settlementGovernment contracts have patent indemnification provisions, otherwise use the changes/claims process


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Battle of the Forms

What happens when both contractors have standard terms and conditions, exchange them, and never work out the differences?

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What If:

1. The two forms address a crucial term in a different way?

2. A crucial term is addressed in the first form, but not the second?

3. A crucial term is addressed in the second form, but not the first?

4. At least one form states there will be no contract unless the other party agrees to all its terms and offers no others?


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5. Prior to the exchange of forms, there was an oral agreement?

6. No forms are used, but a variety of messages and letters and occasional oral discussions produce an agreement?

7. The second form differs so radically from the first it does not constitute an “acceptance”?

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Application to Commercial/Manufacturing Contracts

Particularly problematic in world where contract documents commonly include:– Request for Quotation– Quotation– Letter of Intent– Purchase Order

Each document may have own set of standard terms and conditions


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UCC 2-207 – Additional or Different Terms in Acceptance

A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:

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– the offer expressly limits acceptance to the terms of the offer;

– they materially alter it; or– notification of objection to them has already been given or

is given within a reasonable time after notice of them is received.

Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this act.

UCC 2-207; Mich. Comp. L. 440.2207


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Battle of Forms – Lessons Learned

Always limit acceptance to terms of the offer– If possible, include on purchase order (or other

document) specific language stating that:This Order is effective and expressly conditional on Seller’s assent to all terms and conditions in this Order that are additional to or different from those stated in Seller’s quotation or other offering documents. Seller’s assent to this provision will be manifested by delivery or any portion of the goods designated herein.

Always better to be the offeror– Control own destiny– Your terms are included, unless objected to

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Bad Examples of “Standard”Terms and Conditions

Price Warranty– Seller warrants that the prices for the

articles sold Buyer hereunder are not less favorable than those currently extended to any other Customer for the same or similar articles in similar quantities. In the event Seller reduces its price for such articles during the term of the Order, Seller agrees to reduce the price hereof correspondingly.


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Bad Examples of “Standard”Terms and Conditions (Cont’d)

Changes– Buyer reserves the right to direct changes

in the delivery schedule and/or schedule of the work to be performed at any time to comply with the requirements of the Prime or its Subcontract under which this Order was issued, and such shall be implemented by Seller without any cost to Buyer or increase in Purchase Order Price. (Or, “Buyer has discretion to grant price increase”)

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Pricing– Seller understands and agrees that in

addition to any other rights that the Buyer has under this Purchase Order, the Buyer reserves the right to reduce the Purchase Order Price at any time prior to three years after final payment to Seller under this Purchase Order, in the event that the Buyer determines that the prices in this Purchase Order exceed the intrinsic value of the supplies purchased.


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Setoff– All amounts due Seller, or any of its subsidiaries or affiliates

shall be considered net of indebtedness or obligations of Seller, or any of its subsidiaries or affiliates to Buyer or anyof its subsidiaries or affiliates.

– Buyer or any of its subsidiaries or affiliates may setoff against or recoup from any amounts due or to become due from Seller, or any of its subsidiaries or affiliates to Buyer or any of its subsidiaries or affiliates however and whenever arising. If Buyer or any of its subsidiaries or affiliates reasonably feels itself at risk, Buyer or any of its subsidiaries or affiliates may withhold and recoup a corresponding amount due Seller or any of its subsidiaries or affiliates to protect against such risk.

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Setoff (cont.)– If an obligation of Seller or any of its

subsidiaries or affiliates to Buyer or any of its subsidiaries or affiliates is disputed, contingent or unliquidated, Buyer or any of its subsidiaries or affiliates may defer payment of all or any portion of the amount due until such obligation is resolved.


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Safety Parts– From time to time Buyer reserves the right

to add or delete “Critical Characteristics or Processes” at no additional cost or liability.

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Jurisdiction– All litigation concerning the supplies and services

stipulated in this Purchase Order resulting from the inability to reach an informal agreement shall be judged exclusively by the Tribunal of Paris. French law shall apply in all cases.

Invoices– Seller’s failure to submit an invoice within 180

calendar days after delivery shall constitute a waiver of any Buyer liability to make payment.


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Buyer’s Property and Information– Any designs, drawings, dies, molds, tooling,

technical data/information, materials, equipment, etc. that Seller makes or buys from others for producing the supplies/services and charges to Buyer’s accounts, shall become the Buyer’s property immediately upon manufacture or procurement.

Quality Assurance Records and Retention Requirements– Supplier shall maintain Quality Assurance related

records and retain them for a period of not less than seven (7) years.

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Changes– Purchaser at any time shall have the right

to make changes in this Order, but no additional charge will be allowed unless authorized by Purchaser’s written amendment to this Order.


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Terms and Conditions Review

When is the last time you reviewed your standard terms and conditions?– You have a problem if your purchase order

still references ASPR clauses.

Have you looked at the terms and conditions sent to you by the other party?– Is this the function of a properly trained

specialist in your company?

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Terms and Conditions Review

Have you considered whose form takes precedence?– How do you know if you have a deal?

Do you have an adequate dispute resolution process in your purchase order?– Have you considered ADR?– Have you stated where, or how and by

whom a dispute will be resolved?


LITIGATING CLAIMS UNDER THE CONTRACT DISPUTES ACT

John G. DeGooyerPhilip A. Nacke

Steven C. Lambert

November 2007

U.S. Court of Federal Claims & Boards of Contract Appeals

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Overview

Historical BackgroundContract Disputes ProcessCDA CoverageContractor Claim SubmissionContracting Officer’s DecisionGovernment ClaimsAppeal ForumsForum Selection Factors


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Historical Background

Pre-Civil War situationReforms during/post Civil WarDevelopment of disputes clausesCreation of Boards of Contract AppealsThe Contract Disputes Act of 1978– (41 U.S.C. §§ 601-13)

Federal Courts Improvement Act of 1982

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Historical Background (Cont’d.)

Federal Courts Improvement Act of 1992Federal Acquisition Streamlining Act of 1994


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Contractor orGovernment Claim

Contracting Officer’sFinal Decision

Choose One

No Appeal 90 Days

BCA

120 Days

12 Months

COFC

60 Days

CAFC

Writ of Certiorari

U.S. Supreme Court

Contract Disputes Process

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CDA Coverage

Applies to any express or implied contract entered into by an “executive agency” for– The procurement of property, other than real

property in being– The procurement of services– The procurement of construction, alteration,

repair or maintenance of real property– The disposal of personal property

CDA does not apply to contracts for the Government to provide services


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CDA Coverage (Cont’d.)

The non-appropriated fund instrumentality (NAFI):– CDA applies to contracts of those NAFIs

identified in 28 U.S.C. § 1491. These are the so-called exchange services: Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, etc.

– CDA does not apply to the contracts of lower tier military NAFIs, such as individual morale and recreation funds

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– CDA does not apply to the contracts of executive agencies that operate without the use of appropriated funds. For example:

Board of Governors of the Federal Reserve SystemFederal Prison Industries, a wholly-owned government corporation within the Federal Bureau of Prisons which in turn is within the Department of JusticeU.S. Mint, within the Treasury Department


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CDA does not apply to the contracts of the Federal Aviation Administration

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Contractor Claim Submission

Who may submit a CDA claim?– The prime contractor – yes– Subcontractors – not directly– Sureties – no


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Contractor Claim Submission (Cont’d.)

Basics Of A ClaimWritten demand to the contracting officerSeeking as a matter of right– Payment of money in a sum certain,– Adjustment or interpretation of contract

term, or– Other relief arising under or relating to a

contractSubmitted for a final decision

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Monetary claims in excess of $100,000 must be certified– Claim is made in good faith– Supporting data are accurate and complete to the

best of the contractor’s knowledge and belief– Amount requested accurately reflects the contract

adjustment for which the contractor believes the government is liable

– Person submitting the claim is duly authorized to certify the claim on the contractor’s behalf


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InterestStatute of limitations

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Contracting Officer’s Decision

Time limits– Due within 60 days, or– If involving a certified claim in excess

of $100,000 within 60 days the contracting officer must notify the contractor of a firm date by which a final decision will be issued


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Contracting Officer’s Decision (Cont’d.)

Uncertified and defectively certified claims exceeding $100,000Failure to issue a final decision –deemed denialFinality of a written decision

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Government Claims

Requirement for final decisionNo certification requirementInterestFinality


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Appeal Forums

Court of Federal ClaimsArticle I court16 judges, serving 15 year terms, and an additional 10 active senior judgesNo government contracts experience neededWorld-wide jurisdictionCan tax costs and assess attorney feesSingle judge decides the case

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Appeal Forums (Cont’d.)

Boards of Contract AppealsGoals: informal, quick, cheapExperienced judgesDecisions by panels, but a single judge takes the evidence


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Boards of Contract Appeals (Cont.)Armed Services Board of Contract Appeals (ASBCA)– Jurisdiction over DoD and NASA CDA

contracts– All other jurisdiction (e.g., HHS, AID)

eliminated effective January 6, 2007– 17 members

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Boards of Contract Appeals (Cont’d.)Civilian Board of Contract Appeals (CBCA)– Operational January 6, 2007– Consolidated eight pre-existing civilian

boards, the most active of which was the General Services Administration Board of Contract Appeals (GSBCA)


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Boards of Contract Appeals (Cont’d.)– CBCA has jurisdiction over all civilian

agency CDA contracts other than those of the Postal Service and the Tennessee Valley Authority

– 18 members (6 coming from GSBCA)

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Forum Selection Factors

Jurisdiction – COFC and BoardsContracting officer’s final decisionTime for appeal – COFC – 12 months after receipt of decision– Board – 90 days after receipt of decision

Complexity of case– Need for considerable preparation time

may suggest appeal to COFC rather than Board


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Forum Selection Factors (Cont’d.)

Workload – Contract Actions FiledCOFC (exclusive of bid protests):– 1997-2006: 275 cases/year; 37% of

docket– 2004-2006: 382 cases/year; 41% of

docket

ASBCA:– 2002-2005: 450 cases/year

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Length of Process – Complaint to DecisionCOFC (exclusive of bid protests)– 1997-2006: 2 years, 8 months– 2004-2006: 3 years

ASBCA– 2002-2005: 1 year, 4 months


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Election DoctrineSelection of forum is usually binding– Cannot dismiss and refile in other forum– Selection is binding even if claim is not

properly certified– But if selected forum lacks jurisdiction

(e.g., appeal to Board more than 90 days after receipt of final decision), election is not binding

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Legal Issues – Governing PrecedentResearch binding authority– Federal Circuit and Court of Claims– U.S. Supreme Court

Research forum decisions– Technical government contract issues may

suggest selecting Board rather than COFC


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Need For Legal Counsel

COFC– Representation by an attorney is required– Pro se representation limited

Boards– Contractors may appear pro se

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Different Government CounselCOFC – Department of Justice– Parties lose settlement flexibility– But fresh look by DoJ may facilitate

settlement

Boards – Agency counsel– Parties retain some settlement flexibility– But positions may be entrenched,

impairing settlement possibilities


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Alternate Dispute ResolutionCOFC and Boards both encourage ADR– Voluntary process– Many forms of ADR available

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Litigation Procedures – COFC and BoardsPretrialDiscoveryMotionsTrialsDecisions


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Forfeiture of Claims and Other Government Remedies For Fraudulent Claims

41 U.S.C. § 604– Liability for the unsupported part of a

claim attributed to misrepresentation of fact or fraud, in addition to the cost to the Government of reviewing that part of the claim

– Can be applied by the COFC

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28 U.S.C. § 2514– Forfeiture in toto of claims made by those

who commit or attempt to commit fraud in connection with any part of the claim

– Can be applied by the COFC– Application ranges far beyond the literal

words of the statute

Civil False Claims Act (31 U.S.C. §3729 et seq.)


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COFC can apply each of the foregoing statutes in a case before it, if fraud is foundBCAs have no jurisdiction under the CDA over fraud issues. The government must move to stay the action pending decision in a government-initiated district court action

34


Implications for “split” contractor claims: transfer of Board proceedings to the COFC and consolidation with the case pending there


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Appellate ReviewCOFC– Appeal to Federal Circuit– Appeal within 60 days after entry of

judgment– Standard of review

Law – De novoFacts – Final unless clearly erroneous

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Appellate Review (Cont’d.)Boards– Appeal to Federal Circuit– Appeal within 120 days after receipt of

adverse Board decision– Standard of review

Law – De novoFacts – Final unless fraudulent, arbitrary, capricious, grossly erroneous or not supported by substantial evidence


TEAMING AGREEMENTS

George W. AshErin L. Toomey

November 2007

Overview

Addressed in the Federal Acquisition Regulations (FAR) in FAR Subpart 9.6, “Contractor Team Arrangements”

Teaming Agreements vs. Other Team Arrangements

Top 10 Clauses to Include in a Teaming Agreement


Key Principles Of Teaming Arrangements

Two different possibilities:

– Two or more companies form a partnership or joint venture to actas a potential prime contractor.

– A potential prime contractor agrees with one or more other companies to act as a subcontractor under a specified Governmentcontract or acquisition program.

Teaming arrangements are typically formed before the prime contractor submits an offer to the Government.

The Government recognizes the validity of contractor teaming arrangements provided the arrangements are identified and disclosed to the Government.

Teaming Agreements Vs. Other Team Arrangements

Benefits of the creation of a separate corporation or a joint venture:– The corporation or JV can be set in place and cover multiple RFPs

and Contracts– Tax savings may result– Can avoid the high cost structure of the parent corporations –

important if price is a major source selection criterion

Drawbacks to the creation of a separate corporation or a joint venture:– A partner in a JV possesses liability for the obligations of the JV– Management issues or partner disagreements may be difficult to

mitigate– A JV may lock a contractor into a relationship with the other

company for a longer period of time than the contractor intended


Top Ten Clauses To Include In A Teaming Agreement

1. Designation of a Prime Contractor and a Subcontractor

2. Purpose and Scope of the Agreement

3. Incorporation by Reference of a Non-Disclosure Agreement

4. Protection/Allocation of Technical Data/Inventions/Patents

Top Ten Clauses To Include In A Teaming Agreement5. Division of Responsibilities Between the

Prime Contractor and the Subcontractor and Definition of the Relationship of the Parties (i.e., neither party shall have the right to bind the other)

6. Duration of the Agreement and Termination Provisions

7. Limitation of Liability

8. No Assignment Without Consent


Top Ten Clauses To Include In A Teaming Agreement

9. Exclusivity/Non-competition

10. If a Commercial Item Subcontractor, Requirement that the Resulting Subcontract will be a FAR Part 12 Commercial Item Subcontract


BERRY AMENDMENT UPDATE —SPECIALTY METALS AND MORE

David T. Ralston, Jr.Frank S. Murray, Jr.

November 2007

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Berry Amendment Topics

Basic requirements and products coveredBrief historySpecialty metalsClothing and food Penalties for violationsCompliance recommendations

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The Berry AmendmentRequirements and Products Covered

Federal law mandating that DoD buy certain items from American or qualifying country sources:

“[F]unds appropriated or otherwise available to the Department of Defense may not be used for the procurement of [specified items] . . . if the item is not grown, reprocessed, reused, or produced in the United States.”

10 U.S.C. § 2533a(a).Covers food, clothing, tents, cotton and other natural fiber products, hand or measuring tools, and specialty metals.Designed to ensure domestic sources of supply for specific items Congress deems important to the U.S. military.Really domestic protectionism.

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Background of the Berry Amendment

Originated in 1940/1941 at advent of WWII, focused then only on food and clothing.Since inception, scope has broadened significantly.For decades, Berry Amendment restrictions appeared in annual DoD appropriations acts.In 1972, specialty metals were added.Codified in 1993 as note to 10 U.S.C. § 2441. Recodified in 2002 at 10 U.S.C § 2533a. Specialty metals provision amended and recodified in 2006 at 10 U.S.C. § 2533b.Implemented by DoD at DFARS 225.7002 and 252.225-7012 and -7014 (with Dec 2006 Class Deviation).

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Specialty Metals

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What is a Specialty Metal?

DoD created definition in 1973 based on legislative history.Defined at DFARS 252.225-7014(a)(2) and now at Section 2533b(i).Most stainless steels are specialty metals.Many alloys in electronic components are, arguably, specialty metals.

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DFARS Restrictions Prior to November 2006

DFARS 225.7002-1: “Do not acquire” specialty metals unless metals melted in U.S. manufacturing facilities.DFARS 252.225-7014 (Preference for Domestic Specialty Metals): “Any specialty metals incorporated in articles delivered under this contract shall be melted in the U.S.”– Exceptions

Qualifying country metals and/or items manufactured in qualifying countrySubcontractors at any tier unless Alt I applies

– Alt I required in acquisitions in support of six designated major programs: aircraft, missiles, ships, tank-automotive, weapons and ammunition

Simplified acquisitions (under $100,000)Urgency (10 U.S.C. 2304(c)(2)) acquisitions.Contingency Operations (defined in FAR 2.1-4)Domestic non-availability determination (DNAD) issued by Secretary of Defense or Service Secretary

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Post-November 2006

Section 842, Pub. L.109-364, FY 2007 John Warner National Defense Authorization Act.– Major restructuring of specialty metals provision in new 10

U.S.C. § 2533b.DoD issued DFARS Class Deviation 2006 – O0004 (Dec. 6, 2006) to implement Section 2533b on interim basis.Related DoD Guidance.– DCMA Interim Instruction (March 10, 2006).– Undersecretary (AT&C) Memorandum (June 1, 2006).– Defense Procurement/Acquisition Policy Memoranda (Aug.

18 and Sept. 21, 2006).– DCMA CAP Guidance (Dec. 8, 2006).

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Section 2533b Effective Date

Section 2533b applies to contracts entered into after Nov. 15.Specialty metals provision in Section 2533a (existing law) ended Nov. 15.

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Section 2533b Specialty Metals Requirement

DoD cannot acquire end items or components of:– aircraft– missile and space systems– ships– tank and automotive– weapon systems – ammunition

containing specialty metals not melted or produced in US.Different from current DFARS approach.Covers items with specialty metals, not specialty metals.Also, covers specialty metals purchased in metal form:– by DoD– by DoD prime contractors– for any DoD program

These must be melted/produced in US.

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Commercial Items/COTS

Reaffirms Berry Amendment specialty metals requirement applies to commercial items. No exception for commercial items.But Berry does apply to prime contracts for COTS items.May not apply to subcontracts for COTS items.DoD COTS rulemaking now underway.

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2533b ExceptionsDNAD. The specialty metal requirement does not apply if the Secretary of Defense or a Service Secretary determines that

“compliant specialty metal of satisfactory quality and sufficientquantity, and in the required form, cannot be procured as and when needed.”

Preserves DoD’s existing DNAD authority in 10 U.S.C. § 2533a(c) and DFARS 225.7002-2(b), with three differences. DoD’s DNAD authority will now:– expressly apply to prime contracts and subcontracts at

any tier; – extend to non-availability of a “required form” of specialty

metal; and – no longer require a showing of non-availability “at U.S.

market prices.”Buy American Act exempted products, DFARS 225-7002-2(c).

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2533b Exceptions (Cont’d.)

Certain Procurements Outside the U.S. The requirement does not apply to procurements outside the U.S. in support of:– (i) combat operations, or – (ii) contingency operations.

Other Than Competitive Procurements.Agreements With Foreign Governments.– Qualifying country metals and items, DFARS 225-

7002-2(f)(l), 252-225-7014; Section 2533b(d).– Applies only to the 2533b(a)(1) (big “six”

requirement).

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2533b Exceptions (Cont’d.)

Commissaries, Exchanges, And Other NAFIs.Small Purchases directly by U.S. Government (under $100,000).Electronic Components. The requirement does not apply to the procurement of:

– “commercially available electronic components,” if» the specialty metal content is “de minimis” in

value compared to the overall value of the lowest level electronic component produced that contains specialty metals.

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Qualifying Country Exception

Countries with a MOU with DoD.List of qualifying countries at DFARS 225-872-1.US is not a qualifying country.Under Section 2533b, direct metal purchases by DoD/primes are not excepted.Exception has two prongs, DFARS 252-225-7014(c):– Specialty metals melted in a qualifying country are

excepted, and– Products (end or components) manufactured in a qualifying

country are excepted.Consequently, when metals are incorporated into an article manufactured in a qualifying country, where the metals were originally melted does not matter.

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The Qualifying Countries

* Austria and Finland are considered qualifying countries on a “purchase-by-purchase” basis. DFARS 225-872-1(b).

United KingdomNetherlandsFinland*

TurkeyLuxembourgEgypt

SwitzerlandItalyDenmark

SwedenIsraelCanada

SpainGreeceBelgium

PortugalGermany (Federal Republic of)

Austria*NorwayFranceAustralia

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Summary of Status of Shipments Under Contracts Awarded Prior to Nov. 16, 2006

Subject to specialty metals provision in lapsed statute, Section 2533a (“2533a contracts”).– 2533a contracts usually contain DFARS Clause 252.225-

7014 or 7014 (Alt I).Conditional acceptance/withhold procedure used by DoD to address non-compliance with 2533a contracts.As of Nov. 16, 2006, no current statute governs.– Specialty metals provision in Section 2533a lapsed as of

Nov. 15, 2006.– 2533a contracts not subject to Section 2533b, per Section

842(a)(3) and (a)(4). DFARS 225.7002 and 252.225-7014 (Dec 2005) still apply.

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Summary of Status of Shipments Under Contracts Awarded Prior to Nov. 16, 2006(Cont’d.)

Section 2533b one-time waiver provision not required, and cannot be used. 2533a contracts not subject to Section 2533b.

Per DoD (Dec. 12, 2006): prior conditional acceptance/withhold procedure will continue, unlike 2533b contracts.

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Summary of Status of Shipments Under Contracts Awarded Nov. 16, 2006 and After

Subject to Section 2533b (“2533b contracts”)– Contain DFARS Clause 252.225-7014 or 7014 (Alt I) as

appropriate.– Covered by Dec. 2006 DFARS Class Deviation for 7014 and

7014 Alt I.

Per DoD, conditional acceptance/withhold procedure cannot be used to address non-compliance under 2533b contracts.– Section 2533b(a)(1) precludes acceptance of end products

and components, not just specialty metals.

DoD waiver authority limited to Section 2533b one-time waiver provision and DNAD.

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Summary of Status of Shipments Under Contracts Awarded Nov. 16, 2006 and After (Cont’d.)

Section 2533b one-time waiver authority for non-compliant metals not available for all shipments.– Waiver definitely available if shipment contains

all parts manufactured in U.S. prior to Oct. 17/Nov. 16.

– Waiver likely available if shipment contains some parts manufactured in U.S. prior to Oct. 17/Nov. 16.

– Waiver definitely not available if shipment contains no parts manufactured in U.S. prior to Oct. 17/Nov. 16.

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One-Time Waiver Of Specialty Metals Domestic Source Requirement

Authority. Section 2533b permits DoD to accept non-compliant specialty metals if incorporated into items produced, manufactured, or assembled in the U.S. before Oct. 17/Nov. 16.

Prerequisites for waivers are:– Metal in item produced, manufactured or assembled

in the U.S., andbefore enactment.

– The contracting officer for the contract determines that removal or replacement of the non-compliant specialty metals “in such items” or the substitution of non-compliant items with compliant items is impractical or uneconomical; the prime and subcontractor responsible for the non-compliance have effective correction plans to ensure compliance of items produced, manufactured, or assembled in the U.S. after the date of the enactment; andthe non-compliance is not knowing or willful.

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One-Time Waiver Of Specialty Metals Domestic Source Requirement (Cont’d.)

– Approved by the USD (AT&L) or the service acquisition executive.

Notice. Within 15 days after the contracting officer’s determination, notice must be posted on FedBizOpps that the waiver was granted.

Termination Of Authority. Waiver is limited to the delivery of items “the final acceptance of which” occurs after enactment of the Act and before September 30, 2010.

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Summary of DFARS Class Deviation 2006 (Dec. 6, 2006)

Revised clause 252.225-7014 and Alt I issued.Applies Alt 1 to six “product categories,” covers end items and all parts thereof.– Limits “automotive” to only self-propelled military transport.– Defines “component” as only first two contract tiers.– Should apply only to 2533b contents

Defines electronic components.Employs 10% de minimus standard.No conditional acceptances/withholds for 2533b contracts.Mentions one-time waiver and DNAD, but no regulations.

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DCMA Corrective Action Plan Guidance (Dec. 8, 2006)

Detailed information required as to contract, program, part number and manufacturing tiers of non-compliant part based on level of CAP submission (shipment, contract, program, segment, etc.).

Price of lowest auditable numbered part containing non-compliant material.– Fully burdened to prime contract level

Quantity of non-compliant parts used in the item.

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DCMA Corrective Action Plan Guidance (Cont’d.)

Expected date of compliance.

Supplier of compliant part and cost differential compared to non-compliant part.

If compliant part not available within six months, details– on market research used– explanation of non-availability– alternative domestic parts reviewed/why none suffice– alternative domestic parts available and accepted by

customer

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Recent Developments

Pending legislation.– Senate

Stay with status quo (§ 2533b).– House

Rulemaking required for “multi-contract” DNADs.Detailed list of foreign components and specialty metals in defense products.

Family of Medium Tactical Vehicles (FMTV) Issues.COTS rulemaking.– COTS end item prime contracts and subcontracts.– COTS subcontracts for non-COTS end items.

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Clothing, Fabrics and Food

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Clothing & FabricsClothing end products and components must be Berry-compliant. Many fabrics are also covered, even when not used in clothing: – Cotton and other natural fibers– Woven silk/silk blends– Spun silk yarn for cartridge cloth– Synthetic fabric/coated synthetic fabric, including all textile fibers

and yarns used therein– Wool in any form

Misc. products– Tents, tarps & covers– Canvas products

Any item of individual equipment using the above.Several exclusions, but require careful attention.Qualifying country exception limited to chemical warfare protective clothing and para-aramid (Kevlar™) fibers and yarns.

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Food

Food must be manufactured/processed in the U.S.– Food (except seafood) may be grown/produced anywhere.

Fish, shellfish and seafood must be caught andmanufactured/processed in U.S.Exceptions:– Below simplified acquisition threshold – DNADs– Acquisition outside U.S. for combat operations– Perishable foods for agencies outside U.S.– Contingency operations– Other than competition procedures– Emergency acquisition outside U.S.– Vessels in foreign waters– Commissary resale

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Penalties for Berry Amendment Violations

Prime contractors:– Breach of contract if clause incorporated; CDA claim.– Potential False Claims Act violation:

Good news: No express certification required (unlike Buy American/Trade Agreements Acts); government must rely on impliedcertification.Treble damages.Per invoice penalty up to $11,000.

Subcontractors:– Breach of subcontract with prime/higher-tier sub, if clause

incorporated; state law breach of contract claim. – False Claims Act exposure theoretically possible.

Contracting Officers:– Anti-Deficiency Act violation.– Personal liability for unlawful payment.

Criminal exposure possible.

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Berry & Bid Protests

Usually viewed as contract administration.

But, with requirement to show compliance at proposal stage, will likely become a protest issue.

Standard likely to be whether CO reasonably investigated compliance and reasonableness of determination.

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Compliance Recommendations

Now is the time to determine the specialty metal content of products that you provide to DoD.The compliance landscape will be fixed in the near future as DoD promulgates implementing regulations, and acts on DNADs, one-time waivers, and electronic component waivers. DoD insistence on compliance will be more rigorous by FY 2008.Compliance or DNAD is required for contracts awarded post-Nov. 16, 2006. No conditional acceptances.

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Compliance Recommendations (Cont’d.)

Primes and subs should be preparing one-time waiver requests to clear existing inventory. DoD will likely insist on submission by prime, but the sub’s supporting materials will be required if the sub wants to assure its products covered.

Primes will need CAPs. Subs likely will as well.

Primes and subs should work together on electronic component waivers. Per DCMA, proof requirement is virtually the same as conditional acceptances, which implies this exception is not self-executing.

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Compliance Recommendations (Cont’d.)

Primes should –– review contracting procedures to assure flow down of 7014

Alt I when required;– address implementing steps for compliance; and– amend quality assurance programs to include Alt I

compliance.

Documenting country-of-origin for specialty metals in all parts in end products supplied to DoD is essentially now required.

Separation of DoD and commercial production lines may be required for some products, components and parts.

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Frequently Asked Questions (FAQs)

ISN’T THE HEADING OF THE ALTERNATE I CLAUSECONCERNING SPECIALTY METALS MISLEADING?

Yes.

Not a “Preference” − a Requirement: Language of clause is mandatory (“any”/“shall”).“Domestic” Specialty Metals also includes foreign-melted metals under “Qualifying Country” exception.Effective Date of Clause (heading lists most recent revision, June 2005 or April 2003), but the requirement has been in place since 1973.

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FAQs (Cont’d.)

ISN’T THERE A COMMERCIAL ITEMSEXCEPTION?

No.

Congress enacted legislation in 1996 to overturn DoD’s last attempt to include commercial items exception.10 U.S.C. § 2533a(i) now expressly makes commercial items subject to Berry Amendment.There is a COTS exception, however.

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FAQs (Cont’d.)

ISN’T THE SIMPLIFIED ACQUISITION THRESHOLD EXCEPTION AVAILABLE FOR:

DoD ACQUISITIONS?

Yes.

Berry Amendment is not applicable to acquisitions by DoD valued at less than the SAT (currently $100,000).

SUBCONTRACTOR TRANSACTIONS?

No.

SAT applies at DoD prime contract level only; it does not apply to or address subcontract actions by private contractors. Different from commercial items, which do apply at subcontractor level.Basic Ordering Agreements (“BOAs”) − BOAs are not contracts. Thus, look to the value of individual Delivery Orders. If DO is under $100,000, Alt I clause should not apply.

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FAQs (Cont’d.)

HOW ARE “BULK” STORAGE AND SUPPLIER-MANAGED INVENTORY HANDLED?

Same rules.

Issue with fasteners, springs, other bulk items.Lack of traceability is no excuse for compliance, and could lead to all bulk items being treated as noncompliant.If stored in manner where lots/suppliers are commingled, can make it difficult to trace source of parts and whether they are compliant.

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FAQs (Cont’d.)

WHAT’S THE IMPACT OF THE “CHRISTIAN” DOCTRINEAND OMISSION OF ALTERNATE I CLAUSE?

Under Christian doctrine, mandatory contract clauses can be read into prime contract even if omitted, provided the clause embodies a “deeply ingrained procurement policy” of the U.S. Government.If Alt I clause omitted, Christian doctrine may read it in, but prime should be entitled to equitable adjustment for contract change.This doctrine does not apply to subcontractors; hence, failure of prime or higher-tier subcontractor to flow Alternate I clause down will likely prevent recovery from downstream suppliers for provision of noncompliant specialty metals.

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FAQs (Cont’d.)

HOW IS DoD HANDLING DELIVERIES OF NON-COMPLIANTPRODUCTS?

Defense Contract Management Agency (DCMA) has taken the lead.DCMA serves as the Administrative Contracting Officer (ACO) to prime contractor plants, approving the DD Form 250 (Material Inspection and Receiving Report), so it is forced to address the issue.DCMA issued guidance setting up withhold (discount) procedure, subject to Program Contracting Officer (PCO) approval, designed to assure that DoD not expend appropriated funds for non-compliant specialty metals. PCOs seem to be following DCMA guidance, and relying on the ACOs to deal with the issue.Corrective actions plans are current focus.

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FAQs (Cont’d.)

HOW IS DoD HANDLING DELIVERIES OFNON-COMPLIANT PRODUCTS? (Cont’d.)

DCMA guidance is very burdensome to implement, but shipments are being made.Major disagreement is value of withhold, and the difference is large:– DCMA: Use value of lowest auditable part

containing non-compliant metal.– Primes: Use value of non-compliant metal.

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FAQs (Cont’d.)

ARE FOREIGN MILITARY SALES (FMS) COVERED BY BERRY?

We think not.

FMS transactions are governed by Arms Export Control Act, which contains rules regarding the use of non-domestic sources that are fundamentally inconsistent with the Berry Amendment.– One example: DSCA Guidelines exempt commercial off-the-shelf items

from domestic source requirements.

FMS transactions are administered by DoD, but funded by foreign governments or appropriations to Office of the President (not DoD).

Thus, Berry Amendment should not apply to FMS transactions.

However, DCMA and some DoD PCOs insist Berry Amendment does apply to FMS transactions, often citing “funds otherwise available to DoD” language in statute.

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APPENDIXSpecialty Metals Defined

Metal alloys consisting of nickel, iron-nickel, and cobalt base alloys containing a total of other alloying metals (except iron) in excess of 10%.

Titanium and titanium alloys.

Zirconium and zirconium base alloys.

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APPENDIXSpecialty Metals Defined (Cont’d.)

Steel– With a maximum alloy content exceeding one or more of the following

limits:Manganese: 1.65%Silicon: 0.60%Copper: 0.60%

– OR –

– Containing more than 0.25% of any of the following elements:AluminumChromiumCobaltColumbiumMolybdenum

10 U.S.C. § 2533b(i).

NickelTitaniumTungstenVanadium

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GLOSSARY OF ACRONYMS

ACO Administrative Contracting Officer

ADR Alternative Dispute Resolution

AFRN First Responder Network

AID Aid to International Development

ASBCA Armed Services Board of Contract Appeals

ASPR Armed Services Procurement Regulations

AT&L Acquisition, Technology and Logistics

BCA Board of Contract Appeals

BOAs Basic Ordering Agreements

CAFC Court of Appeals for the Federal Circuit

CAP Corrective Action Plan

CBCA Civilian Board of Contract Appeals

CCA Circuit Card Assembly

CDA Contract Disputes Act

CFR Code of Federal Regulations

CO Contracting Officer

COFC Court of Federal Claims

COTS Commercial Off The Shelf

D&F Determination and Finding

DCMA Defense Contract Management Agency

DFARS Department of Defense Federal Acquisition Regulation Supplement

DISA Defense Information Systems Agency

DNAD Domestic Non-availability Determination


2

DoD Department of Defense

DOJ Department of Justice

DSCA Defense Security Cooperation Agency

FAA Federal Aviation Administration

FAQs Frequently Asked Questions

FAR Federal Acquisition Regulations

FedBizOpps Federal Business Opportunities

FFP Firm Fixed Price

FMS Foreign Military Sales

FMTV Family of Medium Tactical Vehicles

GOA Government Accountability Office

GSBCA General Services Administration Board of Contract Appeals

HCA Health Care Administration

HHS Health and Human Services

HUBZone Historically Underutilized Business Zone

ID/IQ Indefinite Duration Indefinite Quantity

JV Joint Venture

MEO Most Efficient Organization

MOU Memorandum of Understanding

NAFI Non-Appropriated Fund Instrumentality

NASA National Aeronautics and Space Administration

NDA Non-Disclosure Agreement

NIH National Institute of Health

NRC Nuclear Regulatory Commission

OCI Organizational Conflict of Interest

ODRA Office of Dispute Resolution for Acquisition

PCO Program Contracting Officer


3

REA Request for Equitable Adjustment

RFP Request for Proposal

RFQ Request for Quotation

SARA Service Acquisition Reform Act

SAT Simplified Acquisition Threshold

SBIR Small Business Innovation Research

SEB Source Evaluation Board

SOW Statement of Work

T&M Time and Materials

TACOM Tank-Automotive and Armaments Command

TSA Transportation Security Administration

UCC Uniform Commercial Code

USC United States Code

USD Under Secretary of Defense

USG United States Government

USPS United States Postal Service

foley’s 2007 annual update on government contracts

Documents