Tag Archives: Court of Federal Claims decisions

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

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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

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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

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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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Will The Supreme Court Put “Veterans First” In The Kingdomware SDVOSB Case?

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Is the Department of Veterans Affairs required to prioritize service-disabled veteran-owned small businesses (“SDVOSBs”) when it buys supplies and services?  That, essentially, will be the question before the Supreme Court when it takes up the case of Kingdomware Technologies, Inc. vs. United States.  On June 22, the Supreme Court agreed to hear the case.

The Supreme Court’s decision in Kingdomware will end a long-running battle between the VA and various SDVOSBs, which have accused the VA of creating loopholes to avoid a statutory contracting preference for veterans.  Hopefully, the Court will get it right.  As a matter of policy and law, the underlying decision of the U.S. Court of Appeals for the Federal Circuit is fundamentally flawed.

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Non-Manufacturer Rule Confusion: House Proposes Fix

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Many small contractors (and the SBA) were surprised when the Court of Federal Claims held last year that the non-manufacturer rule applies any time the government buys manufactured products–regardless of the NAICS code assigned to the procurement.

Now the U.S. House of Representatives is proposing to fix the confusion caused by the Court’s decision.  The House version of the 2016 National Defense Authorization Act would amend the Small Business Act to specify that the non-manufacturer rule applies only to contracts for supplies.

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Agencies May Evaluate Proposals During GAO Protests, Says Court

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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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Ordinary, Undisputed Invoices Are Not “Claims”

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For an invoice to be considered a claim under the Contract Disputes Act, thereby giving the U.S. Court of Federal Claims jurisdiction to consider an appeal of the government’s failure to pay, the contractor must establish that the invoice was in dispute at the time it was submitted to the government.

As demonstrated in a recent Court decision, ordinary, undisputed invoices are not “claims” under the Contract Disputes Act.

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