Agency’s Decision to Cancel FAR Part 8 Solicitations and Move the Work to Existing Multiple Award Contract Was Flawed, Says COFC

We already blogged on the COFC’s landmark Rule of Two decision in Tolliver Grp., Inc. v. United States. But the court’s two-part holding (in favor of the plaintiffs on both counts) was just too impactful for a single blog. Not only did the court fault the agency for failing to do a Rule of Two analysis before using an IDIQ, it also said that the agency failed to justify the decision to cancel the solicitations and switch contract vehicles under the Administrative Procedure Act (APA) standard of review, which the court called a “highly deferential”–but not “toothless”–review.

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COFC Says Agency Must Consider Rule of Two Before Using Multiple-Award IDIQ Contract Vehicle

The United States Court of Federal Claims (COFC) has ruled that an agency has to conduct a small business Rule of Two analysis before it can use an existing multiple-award indefinite delivery indefinite quantity (MAIDIQ) contract vehicle to procure services.  This is a landmark decision, given that GSA Schedule contracts are exempt from the Rule of Two.  

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Supreme Court Declines to Hear VA Rule of Two Challenge

The U.S. Supreme Court declined to hear a case Monday that could have upended the Rule of Two’s priority over the AbilityOne program for U.S. Department of Veterans Affairs’ procurements.

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COFC Rejects Agency’s Basis for Default Termination

The Court of Federal Claims recently reversed an agency’s default termination of a contractor that had experienced numerous performance issues and delays. The agency claimed that performance was “incurably behind schedule,” despite the contractor’s proposed recovery schedule.

The court held that the agency lacked a reasonable belief that the contract could not be timely completed.

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Contractor Did Not Release Claims for Flood-Caused Delay

I never give much thought to what I’ll do if the unexpected happens. I assume most people don’t. They expect things to go according to plan. As Meridian Engineering Company found out at the U.S. Court of Federal Claims recently, sorting it out when things don’t go to plan can be a long and arduous process.

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Offeror Provides Only First Pages of Teaming Agreements, Gets “Marginal” Score

An offeror provided a procuring agency with only the first pages of its teaming agreements with proposed subcontractors–and received a “Marginal” score on the small business participation factor as a result.

In a recent decision, the Court of Federal Claims held that the agency reasonably downgraded the offeror for failing to provide its entire teaming agreements, saying that the agency correctly determined that it was unable to determine what work would be performed by the subcontractors.

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Realities of Cost Recovery in the Wake of the Federal Shutdown

Shuttering of the government (or parts of the government) following appropriations lapses has become an increasingly common phenomenon in recent years. Funding lapses interrupt the usual predictability of government operations, which is often to the detriment of both agencies and federal contractors that are left in proverbial limbo with stop work orders.

Unfortunately, unlike many other topics, the FAR does not substantively address procedures for contractors during or following a government shutdown. As such, recovering expenses incurred as a consequence of government shutdowns can be challenging.

Here are some pointers.

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