Contractor Ineligible For Reimbursement of Contract Tainted By Kickbacks

The ongoing federal movement to prevent fraud waste, and abuse in the contracting process continues. And as demonstrated in a recent federal court decision, the government retains its ability to refuse to pay a procurement contract tainted by fraud.

In the recent decision of Laguna Construction Company, Inc. v. Ashton Carter, Appeal Number 15-1291, the U.S. Court of Appeals for the Federal Circuit affirmed that a procurement contract tainted by violations of the Anti-Kickback Act is voidable under the doctrine of prior material breach.

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Agency Need Not Put Dollar Value On “Relevant” Past Performance

An agency’s solicitation was not unreasonably vague where the solicitation defined “relevant” past performance to include projects of “a similar dollar value and contract type.”

In a recent bid protest decision, the U.S. Court of Federal Claims rejected a protester’s assertion that the solicitation was required to identify a specific dollar value associated with relevant past performance, finding that the solicitation’s phrasing was sufficient to allow offerors to compete intelligently.

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Small Business Wins Contract Despite “Unacceptable” Key Personnel Score

A small business received an “unacceptable” score for its key personnel, but nevertheless was awarded the contract after the matter was referred to the SBA under the Certificate of Competency procedures.

A recent decision by the U.S. Court of Federal Claims demonstrates the breadth and power of the so-called “COC” process, which can allow an otherwise “unacceptable” business to wind up in the winner’s circle.

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CPAR Challenge Wasn’t A Viable “Protest,” Says Federal Court

A contractor’s attempt to challenge an adverse Contractor Performance Assessment Report was not a bid protest subject to the bid protest jurisdiction of the U.S. Court of Federal Claims.

In a recent decision, the Court rejected a protester’s creative attempt to challenge a CPAR as part of a bid protest.  Instead, the Court held, a CPAR ordinarily must be challenged through the FAR’s claims and appeals processes–although the Court appeared to leave the door open to bid protest challenges in limited circumstances.

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Court: Past Performance Evaluations Must Be Adequately Supported

Past performance evaluations are a vital part of many federal procurements. Generally, the evaluation of an offeror’s past performance is a matter within the discretion of the contracting agency. But if an agency fails to adequately support its past performance evaluation, its findings cannot be upheld.

The United States Court of Federal Claims recently applied this rule, when it sustained a protest to an agency’s past performance evaluation because the evaluation failed to address the stated evaluation factors. In doing so, the Court provided guidance to both offerors and agencies as to a proper past performance evaluation.

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8(a) Mentor-Protege Joint Venture Agreements: Details Matter, Court Says

An 8(a) mentor-protege joint venture was not entitled to take advantage of the special mentor-protege exception from affiliation because the joint venture agreement lacked adequate detail.

In a recent decision, the U.S. Court of Federal Claims held that the SBA had reasonably determined the joint venture to be a large business because the joint venture agreement did not sufficiently address certain requirements.  The Court’s decision should be a warning for all 8(a) mentor-protege joint ventures: details matter.

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Agencies May Evaluate Proposals During GAO Protests, Says Court

A procuring agency was entitled to evaluate proposals during the course of a pre-award GAO bid protest without violating the automatic stay provision of the Competition in Contracting Act.

According to a recent federal court decision, CICA merely prohibits the award of a contract during the course of a GAO protest, but does not prevent an agency from continuing to evaluate proposals.

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