2018 NDAA: Unsuccessful GAO Protesters May be Liable for Government Costs

The 2018 National Defense Authorization Act put a new twist on potential costs a contractor may incur in filing a GAO bid protest.

While many federal contractors are familiar with the costs arising from a GAO protest, including their attorneys’ fees and consultant and expert witness fees, and some are lucky enough to recoup such costs upon GAO’s sustainment of a protest, under the 2018 NDAA, some large DoD contractors may also be required to reimburse DoD for costs incurred in defending protests denied by GAO.

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PPQs Submitted Late? “No Problem,” Says GAO–At Least In One Case

While being fashionably late to a party may give the impression that one is a busy and popular person that was held up with other business, being fashionably late in federal contracting will typically have dire consequences.

However, a recent GAO bid protest decision demonstrates that when providing completed past performance questionnaires, or PPQs, being fashionably late may be acceptable – at least when the references were submitted directly by government officials, rather than the offeror.

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Government Damages Contractor’s Equipment, Board Awards Costs

When a contractor leases equipment to the government, the contractor typically expects that the government will take good care of that equipment.  But a recent Armed Services Board of Contracts Appeals case reveals the government does not always take such proper care of leased goods or equipment.

What happens then? Well, the contractor may be able to recover damages under the contract and common law principles.

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GAO: Navy Cannot Order Items Not Listed on Vendor’s FSS Schedule

Like many, I enjoy a good meal out on the town. I tend to order strictly from the menu without any additions or substitutions. Perhaps, it is from all my years of waitressing prior to attending law school. In a recent GAO decision, however, the Navy attempted to order items not on the vendor’s menu only to have GAO determine that the order was beyond the scope of that menu.

In Bluewater Management Group, LLC, B-414785, Bluewater protested the Navy’s award of lodging and transportation services to DMC Management Services, LLC, alleging the award was improper because DMC’s GSA Schedule contract did not include transportation services.

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Termination For Default: The “No Reasonable Likelihood” Standard

Sometimes you may find yourself running late. It happens to the best of us for a multitude of reasons. But what happens to federal contractors when they are running late in performing under a contract and there is “no reasonable likelihood” of timely performance?

Unfortunately for contractors in this position, as illustrated by a recent Civilian Board of Contract Appeals (CBCA) decision, the result may be a default termination.

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Excusable Delay: Government’s Failure To Extend Was “Constructive Acceleration”

Federal contractors not so infrequently find themselves in a position where they are unable to complete performance of a contract by the agreed-upon deadline. So, what happens when the delay is neither party’s fault, but the government denies extension of the period of performance or provides inadequate extensions?

In IAP Worldwide Services, Inc. (ASBCA Nos. 59397, 59398, and 59399), the Armed Services Board of Contract Appeals found under the legal theory of “constructive acceleration” that the U.S. Army Corps of Engineers was liable for extra costs incurred by IAP due to the Corps insistence of timely contract delivery despite excusable delays.

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CORs Weren’t Authorized To Order Additional Work–So Contractor Goes Unpaid

A contractor’s performance of extra work outside the scope of the contract may go uncompensated if a contractor does not receive appropriate authorization in accordance with the contractual terms.

A Court of Federal Claims decision reinforced that a contractor should only perform work required under the terms of the federal contract or directed by an authorized government agent in accordance with the contractual terms. And importantly, a Contracting Officer’s Representative isn’t always authorized to order additional work–even if that person acts as though he or she has such authority.

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