BP’s November 2012 settlement of the federal criminal charges stemming from the Deepwater Horizon spill left some important issues unresolved. It left open claims for billions in civil penalties and natural resource damages, which go to trial on February 25, 2013. And even though the Gulf of Mexico spill had no connection to BP’s government contracts, the criminal settlement led to BP’s formal suspension [pdf] from federal contracting. The suspension means that BP will be unable to obtain new oil supply or lease contracts with the United States government until the EPA Suspension and Debarment Official finds it to be “presently responsible.”

BP is by no means the only company to have been suspended or debarred as a result of environmental violations. EPA has authority to suspend or debar companies for violating the Clean Air Act, the Clean Water Act, the Comprehensive Environmental Response, Compensation and Liability Act, and the Resource Conservation and Recovery Act. Indeed it is common for the EPA to seek suspension or debarment in environmental crimes cases. A company convicted of violating the Clean Air Act or Clean Water Act may even be automatically suspended or debarred. Although such a mandatory suspension or debarment applies only to the facility where the violation occurred, EPA can expand the sanction to the entire company. That is precisely the approach that EPA took with BP after the Deepwater Horizon spill.

Federal agencies have closely guarded their authority to suspend and debar contractors that they determine are not “presently responsible.” Beyond the procedural safeguards set forth in FAR Subpart 9.4, the only practical limit on agency discretion in making suspension and debarment determinations can be found in the Interagency Committee on Debarment and Suspension, which provides a method for determining which agency should take the lead in a particular suspension or debarment matter.

This system may be headed for a fundamental change. Representative Darrell Issa, Chair of the House Oversight and Government Reform Committee, has circulated draft legislation entitled the “Stop Unworthy Spending Act”—the “SUSPEND Act [pdf].” As written, the SUSPEND Act would terminate the authority of all civilian agencies to make their own suspension and debarment determinations.  Instead, this authority would be consolidated into a single entity—the Board of Civilian Suspension and Debarment—which would reside in the General Services Administration.

FedEx was the U.S. Postal Service’s largest contractor in fiscal year 2012 in a list of the agency’s Top 150 suppliers compiled and released today by Husch Blackwell’s Postal Service Contracting practice group. This marks a decade of Federal Express Corporation holding the No. 1 spot on the list. The next largest USPS supplier is military mail shipper Kalitta Air. Six of the Postal Service’s top ten suppliers served the agency’s transportation needs. The list is compiled annually by David P. Hendel, a partner in the firm whose government contracts practice focuses on Postal Service contracting matters.

The Department of Labor has announced that new regulations addressing Nondisplacement of Qualified Workers Under Service Contracts will go into effect on January 18, 2013. (See 77 Fed. Reg. 75780 (Dec. 21, 2012) [pdf].) DOL issued the final regulations in August 2012 after receiving comments on proposed rules published in June. Our comments on the impact of the proposed rules appear here.

The DOL’s action means that all Service Contract Act contracts over the simplified acquisition threshold awarded on or after January 18, 2013 will include a contract clause requiring prime contractors and subcontractors to make good faith offers of employment to SCA-covered employees employed under the predecessor contract.

Here are some of the highlights of the new regulations and the new contract clause:

While dozing over some catalogs that had arrived in the mail, I was visited by three Postal Service ghosts:  the Ghosts of Postal Past, Postal Present, and Postal Future.

The Ghost of Postal Past

The Ghost of Postal Past was a merry ole soul, though not even that old. He presented himself to me as he was in Fiscal Year 2006 – just six years ago. Back then, he was quite large. He had 673 processing facilities, 36,721 retail and delivery facilities, and a total volume of 213 billion pieces of mail. He had revenues of nearly $73 billion – almost $3 billion more than the year before. This had been his fourth consecutive year of positive net income, and the seventh consecutive year of increasing total factor productivity.

The Veterans Administration can freely acquire goods and services from GSA’s Federal Supply Schedule, and it is not required to set-aside such procurements for veteran-owned small businesses (VOSBs) or service-disabled veteran-owned small businesses (SDVOSBs). Under the Veterans Benefits, Health Care, and Information Technology Act of 2006, the VA is required to set aside procurements for…

Contributed by Husch Blackwell Associate Thomas J. Rath

It makes sense to require contractors seeking reimbursement of costs they incur in the performance of a government contract to show that the costs were reasonable. According to the latest decision addressing KBR’s effort to recoup costs incurred to support the United States military in Iraq, the rule is no different for work performed in a warzone. Without additional proof of reasonableness, the Court of Federal Claims concluded that $37 million may be too much for a dining facility needed to feed and protect 6,000 American soldiers. See Kellogg Brown & Root Services, Inc. v. United States, Nos. 09-428C & 09-578C (Fed. Cl. Sept. 27, 2012).

The decision arises from KBR’s claims for costs incurred to construct and operate a reinforced concrete dining facility needed to feed and protect 6,000 soldiers in Mosul, Iraq. Though KBR’s contract was awarded on a cost-reimbursement basis, KBR awarded a fixed-price subcontract for the work to ABC International Group. Army representatives urged KBR to begin work on the new facility quickly, citing the need for “force protection.” Responding to this pressure, KBR accepted a proposal from ABC that doubled the expected monthly cost of labor without seeking competing bids. KBR concluded the increase was reasonable because the work would be conducted amid “violence and the beheading of hostages by terrorists [which] caused a drastic increase in the cost of labor and a severe shortage of available staff.” By the end of the contract, the government asserted that KBR had paid over $12 million more to ABC for labor than it should have.

Just in time for Thanksgiving, the federal government has withdrawn its False Claim Act suit against KBR alleging $100 million in improper charges for private security costs under KBR’s LOGCAP III contract. We criticized the court’s August 3, 2011 decision denying KBR’s motion to dismiss the case last summer. While KBR has good reason…

Does an unproven allegation of fraud or an improper termination for default limit a contractor’s ability to seek and obtain new contracts? Not automatically. According to the decision in Afghan American Army Services Corp. v. United States, No. 11-520C (Fed. Cl. Oct. 15, 2012) [pdf], contracting officials are required to conduct their own investigation and get the facts right before determining that a contractor is not responsible. Relying on unsupported conclusions of other government officials to justify a determination of non-responsibility is arbitrary and capricious.

The Army disqualified AAA from receiving a contract for trucking services in Afghanistan because AAA was deemed non-responsible. The determinative factor in the decision was a proposed debarment containing allegations that AAA had forged documents relating to an earlier trucking services contract. AAA had not previously been notified of the allegations and was not given an opportunity to rebut them. Rather than investigating the facts herself, the contracting officer simply assumed that AAA had violated criminal forgery statutes and had failed to take any corrective action.

Contractors are entitled to recover consultant and attorney costs reasonably incurred in preparing, pricing, and negotiating a change order under federal government contracts, including U.S. Postal Service contracts. That’s the holding in Tip Top Constr., Inc. v. Donahoe, 695 F.3d 1276 (Fed. Cir. 2012). The court overturned a Postal Service Board of Contract Appeals decision that had erroneously limited the contractor’s recovery of these costs. End result: if an agency changes your contract (whether by unilateral direction or constructive change), your request for an equitable price adjustment may include reasonable consultant and attorney costs.