The ASBCA’s November 2021 decision in Harry Pepper and Associates, Inc., No. 62038 et al. (Nov. 3, 2021) offers important guidance on the role of live witness testimony in one of the most challenging aspects of differing site conditions claims: proving that the actual site conditions were actually different from those that were expected.

The claims at issue in the case arose from a $36 million task order for the restoration of NASA’s B-2 rocket test stand, which was built in the 1960s as part of the Apollo program and used to test the Saturn V rockets. The restoration was needed so that the B-2 stand can be used to test rocket vehicles for use in NASA’s new moon-launch program, Artemis.

Continue Reading The Role of Live Witness Testimony in Proving Differing Site Conditions Claims

The Court of Federal Claims (CoFC) recently held that an offeror was not obligated to inform the agency of staffing changes, affecting its key personnel, that occurred following its proposal submission. This new CoFC decision conflicts with longstanding GAO precedent.

Key personnel are often a significant part of proposals and can greatly increase or diminish an offeror’s chance of award. However, as individuals, key personnel themselves, can give rise to protests when they become unavailable. GAO has long taken an expansive view of material misrepresentation regarding key personnel and has routinely held that offerors are obligated to inform agencies of changes in key personnel following the submission of proposals. See, e.g., Matter of: Ashlin Mgmt. Grp., B-419472.3 (Nov. 4, 2021) (sustaining a protest where the offeror failed to meet its “ongoing obligation to notify the agency in the event they obtained actual knowledge that a quoted key person had become unavailable”); Matter of: M.C. Dean, Inc., B-418553 (June 15, 2020).

In a sound rejection of GAO’s rule, the Court of Federal Claims recently held that an offeror has no obligation to update the agency regarding availability of key personnel after the submission of proposals, absent an express RFP requirement to do so. Golden IT, LLC v. United States, No. 21-1966C, (Fed. Cl. Feb. 4, 2022) (“[T]he Court will not conjure up a rule — and particularly not one untethered from a statute, regulation, or Federal Circuit decision — requiring offerors or quoters to routinely update the government when facts and circumstances change post-proposal or quote submission, during the course of the government’s evaluation period.”).

In Golden IT, the protester challenged the Agency’s award decision, in part based on material misrepresentation regarding key personnel. The Technical Factor of the RFP identified six key personnel. While it did not require letters of commitment, the RFP did state that the “availability and commitment of Key Personnel is important to the Government and will be evaluated through information contained in the written quote[.]” Golden IT, LLC v. United States, No. 21-1966C, at *7 (Fed. Cl. Feb. 4, 2022). The Agency awarded the contract to Spatial Front, Inc. (SFI) under a best value principle and assigned SFI a significant strength within the Key Personnel category for its Information Specialist / Knowledge Engineer, Mr. [JH].

At some point following the submission of proposals, Mr. [JH] left the employment of SFI and Golden IT brought a protest alleging that SFI “misrepresented the availability of Mr. [JH] either when it submitted its quote or because it failed to notify the Agency of the material change to its quote when it had knowledge of Mr. [JH]’s unavailability.” Golden IT, LLC v. United States, No. 21-1966C, at *16 (Fed. Cl. Feb. 4, 2022). The Court found that there was no evidence to indicate that SFI was aware of Mr. [JH]’s impending departure ahead of the submission of its proposal and therefore could not have knowingly misrepresented his availability. As far as a duty to notify is concerned, the Court held that absent an RFP requirement to do so it, it would be unfair to require offerors to “routinely update the government when facts and circumstances change post-proposal or quote submission, during the course of the government’s evaluation period []” especially given the length of evaluation periods.  Golden IT, LLC v. United States, No. 21-1966C, at *21 (Fed. Cl. Feb. 4, 2022). In sum, the Court determined that SFI did not have an obligation to notify the agency of Mr. [JH]’s departure and denied Golden IT’s challenge.

While Golden IT, may appear to alleviate some of the burden on offerors to notify the agency of material changes throughout the evaluation period, contractors should be aware that CoFC decisions are not binding on GAO and so far, GAO has not indicated that it plans to move away from the duty to notify. Nonetheless, this divide may indicate change is on the horizon. Until the CoFC and GAO agree on an approach to this issue, protesters may want to carefully evaluate in which forum they choose to file protests concerning key personnel issues.

On February 4, 2022, President Biden issued Executive Order 14063, requiring certain federal construction contractors and subcontractors “to negotiate or become party to a project labor agreement with one or more appropriate labor organizations.”

The EO’s Project Labor Agreement (PLA) requirement applies to “large-scale construction projects,” defined to include domestic federal construction projects “for which the total estimated cost of the construction contract to the Federal Government is $35 million or more,” subject to adjustment based on inflation.

Continue Reading Biden Executive Order Requires Project Labor Agreements on “Large-Scale Construction Projects”

When Congress enacted the National Defense Authorization Act for Fiscal Year 2020 in December 2019, Congress included the Fair Chance to Compete for Jobs Act of 2019 (the Act). The Act, in relevant part, restricts federal contractors from requesting criminal history information from certain job applicants until after the applicant has received a conditional offer of employment. While the Act was enacted back in 2019, it applies only “to contracts awarded pursuant to solicitations issued after” December 20, 2021.

As contractors are now starting to be awarded contracts subject to the Act, Husch Blackwell attorneys Sonni Nolan, Michael Schrier and Tracey O’Brien provide a reminder of the Act’s requirements.

In June 2007, the U.S. Court of Appeals for the Federal Circuit held that a party who fails to object to patent errors in a solicitation before the conclusion of the bidding process waives those objections. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007).  Commonly, referred to as Blue & Gold, this decision warned contractors that challenges to the terms of a solicitation must be brought early or risk being lost forever. Blue & Gold was further solidified in 2015 in Bannum. Bannum held that “mere notice of dissatisfaction or objection is insufficient to preserve [a] defective-solicitation challenge.” Bannum, Inc. v. United States, 779 F.3d 1376 (Fed. Cir. 2015). In Bannum the protester’s failure to formally protest the solicitation resulted in a waiver of those challenges. Id. The court indicated that a formal challenge would have likely preserved the protester’s post-award challenges, Id., but this was not solidified until now.

Continue Reading Escaping Blue & Gold: Court holds filing a pre-award agency-level protest preserved protester’s arguments

On December 7, 2021, the U.S. District for the Southern District of Georgia, in Georgia v. Biden, No. 1:21-cv-163, granted a preliminary injunction that temporarily stayed the Biden administration’s vaccine mandate for federal contractors and subcontractors “in any state or territory of the United States of America.” The case was initially brought by Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia. The Associated Builders and Contractors (ABC), a national trade organization, intervened on the side of the plaintiffs. The seven states and ABC requested a preliminary injunction staying Executive Order (EO) 14042 and associated FAR clauses and Guidance, which require federal contractors and subcontractors to have their employees provide proof of vaccination in order to work on or in connection with federal contracts and also impose mask and social distancing requirements. The court granted the preliminary injunction and stayed the federal contractor vaccine mandate nationwide.

Continue Reading Georgia Court Blocks Federal Contractor Vaccine Mandate Nationwide

On November 30, 2021, the United States District Court for the Eastern District of Kentucky, in Kentucky v. Biden, et al., No. 3:21-cv-00055, granted a preliminary injunction limiting the enforcement of the federal vaccine mandate for some federal contractors and subcontractors. The preliminary injunction was requested by the Commonwealth of Kentucky, the State of Ohio, and the State of Tennessee. As a result, the court enjoined the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee” pending further briefing and a full resolution of the case on its merits.

Continue Reading Kentucky Court Blocks Federal Contractor Vaccine Mandate

As predicted, another Obama Administration “oldie but goodie” has made a return in the Biden Administration.  On November 18, 2021, President Biden issued a new Executive Order entitled “Executive Order on Nondisplacement of Qualified Workers Under Service Contracts.” Many of the same concepts and requirements have returned, but there are also several notable changes.

Continue Reading Nondisplacement of Qualified Workers is Back, But With Changes

On September 10, 2021, the FAR Council published a final rule amending the Federal Acquisition Regulation (FAR) to clarify how contracting officers should evaluate a prime contractor’s “good faith efforts” to comply with a small business subcontracting plan.

Continue Reading FAR Council Publishes Update to Small Business Subcontracting Regulations

There are new developments regarding the federal contractor COVID mandate as of November 10, 2021. The most important is that the deadline for compliance appears to have been pushed back from December 8, 2021 to January 18, 2022.

Continue Reading UPDATE: Federal Contractor-Specific COVID-19 Workplace Safety Guidance Issued By The Safer Federal Workforce Task Force