Tag Archives: costs

Strategies for Dealing with a Government Shutdown

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Shuttering of the government (or parts of the government) following appropriations lapses has become an increasingly common phenomenon in recent times. Continuing resolutions have become a recurring stopgap measure. Funding lapses interrupt the usual predictability of government operations, which harms both agencies and federal contractors that are left in limbo with stop work orders.

Unfortunately, unlike many other topics, the FAR has little say when it comes to procedures for contractors to follow during or following a government shutdown. It seems that the FAR’s authors didn’t really envision the government shutting down as a normal occurrence. Recovering expenses incurred as a consequence of government shutdowns can be challenging.

Here are some pointers.

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GAO’s Alternative Dispute Resolution Conference – Too Little, Too Late

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The costs of filing a bid protest can dissuade some protesters from submitting bid protests. One silver lining for protesters is a recommendation for reimbursement of costs upon a sustained decision. However, even when GAO says a protest is “clearly meritorious”, the protest may still be dismissed prior to GAO issuing a decision.

What happens when an agency takes corrective action in the face of a likely sustained GAO decision? One protester recently found out.

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Agency Must Consider Price Before Eliminating a Contractor from Competitive Range, GAO Confirms

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In theory, best value procurements provide the government with an opportunity to select a higher priced proposal where the higher price is justified by the technical superiority of the proposal. In practice, though, the technical factors of a best value procurement can seemingly relegate price to a secondary consideration.

In a recent decision, however, GAO confirmed that price is an essential evaluation consideration in any best-value decision.

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Asking Too Much? GAO Grants Only 1% of Protester’s Claimed Costs

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While GAO regulations allow GAO to recommend an agency reimburse a protester’s costs if the agency takes corrective action, recouping costs can still be an uphill battle.

In AeroSage, LLC, B-416381.6 (Comp. Gen. Mar. 13, 2019), decided before GAO last week, a protester requested $26,450 in costs, but was only reimbursed its initial filing fee, approximately 1 % of that amount.

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

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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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Cost/Price Evaluation To Be Discretionary For Some DoD IDIQs

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Under the 2017 National Defense Authorization Act, the DoD has the discretion to forego a price or cost evaluation in connection with the award of certain multiple-award contracts.

The 2017 NDAA  includes some important changes that are sure to impact federal procurements. Section 825 of the NDAA, which allows DoD contracting officers to forego price or cost evaluations in certain circumstances, is one of these changes.

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Cost Realism: Agency Must Evaluate Employee Compensation Rates

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When an agency performs a cost realism evaluation under a solicitation involving significant labor costs, the agency must evaluate offerors’ proposed rates of employee compensation, not just offerors’ fully burdened labor rates.

In a recent bid protest decision, the GAO held that an agency erred by basing its realism evaluation on offerors’ fully burdened labor rates, without considering whether the direct rates of compensation were sufficient to recruit and retain qualified personnel.

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