Construction Law

Federal Construction Contracting - Does a Newcomer Have a Chance?

Posted on October 25, 2009
The recent decline in non-federal construction opportunities has resulted in a rapidly growing interest in the federal contracting market. The much-publicized American Recovery and Reinvestment Act of 2009 ('ARRA'), often referred to as the 'Economic Stimulus Program,' has made billions of dollars available to federal agencies to fund construction projects...

Court of Appeals Keeps MATOC Alive

Posted on October 06, 2009
The Court of Appeals for the Federal Circuit has decided two cases that assure the continued use of the Multiple Award Task Order Contract ('MATOC') in federal construction contracting. In the first case, Weeks Marine, Inc. v. United States, the United States Court of Federal Claims decided a bid protest in favor of Weeks Marine...

The Impact of Protests and Claims on the Evaluation of Past Performance

Posted on October 04, 2009
Contractors continue to be concerned about the impact that the filing of protests or claims will have on their past performance evaluations in negotiated procurements.  While it is never a good idea to file a frivolous protest or claim, it is improper for procurement officials to downgrade past performance evaluations simply because a contractor has exercised a right afforded by law and regulation...

Compulsory E-Verify Program for Federal Contractors Starts September 8, 2009

Posted on September 04, 2009
By:  Michael H. Payne and Craig A. Schroeder   Effective September 8, 2009, federal contractors awarded new contracts of $100,000 or more with a performance period of longer than 120 days will be required to use E-Verify, an internet-based system that allows employers to electronically verify the employment eligibility of their newly hired employees...

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Website for American Recovery and Reinvestment Act (ARRA) Reporting Now Operational

Posted on August 18, 2009
In an earlier blog we discussed what the ARRA meant for Federal Construction Contractors, and noted that the reporting would be over the internet, once the government had its website up and running. On Monday, August 17, 2009, recipients of economic stimulus funds were notified that they now can access the website www...

Federal Green Construction and the Stimulus Act

Posted on August 04, 2009
By: Lane F. Kelman and Christopher Soper As part of the American Recovery and Reinvestment Act of 2009 (the "Stimulus Act") the General Services Administration's ("GSA") Public Building Service was authorized to invest 4.5 billion dollars to transform federal facilities into exemplary, high-performance green buildings...

Government Held Responsible for "Utter Silence"

Posted on August 03, 2009
An Armed Services Board case, ADT Construction Group, Inc., involves an appeal from a contracting officer's final decision denying a claim for $826,725.16 and a 278-day time extension. The contractor had filed a claim for pre-construction delays arising out of a contract for the design and construction of a munitions maintenance facility at Nellis Air Force Base, Nevada...

Corps of Engineers Announces Recovery Act Projects

Posted on July 24, 2009
The U.S. Army Corps of Engineers has posted the Civil Works projects that it intends to fund from the appropriations Congress provided in the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) on its website. In order to spend its $5 billion slice of the $787 billion stimulus pie, the Corps selected approximately 178 Construction projects and 892 Operation and Maintenance projects, nine Formerly Utilized Sites Remedial Action Program (FUSRAP) projects...

The American Recovery and Reinvestment Act of 2009: What it Means for Federal Construction Contractors

Posted on May 16, 2009
Co-authored by Michael H. Payne and Craig A. Schroeder On February 17, 2009, the President signed Public Law 111-5, the American Recovery and Reinvestment Act of 2009 (also known as 'ARRA,' the 'Recovery Act,' and the 'Stimulus Act'), including a number of provisions to be implemented in Federal Government contracts...

Department of Defense Expenditure Plan Provides Tremendous Opportunities for Federal Construction Contractors

Posted on March 25, 2009
Although many aspects of our economy are suffering, the federal construction market will most certainly be booming.  On Friday March 20, 2009, the Department of Defense issued a 191 page Report to Congress detailing how it plans to spend the money it has received as part of the American Recovery and Reinvestment Act of 2009, also known as the 'Stimulus Package...

Obama Issues Memorandum Ordering Reduced Wastefulness in the Federal Procurement Process

Posted on March 10, 2009
On February 18, the Office of Management and Budget ('OMB') director Peter Orszag issued guidance to agencies regarding the administration of federal Stimulus funds. Just this past week, on March 4, President Obama signed a memorandum designed to reform federal government contracting...

The American Recovery and Reinvestment Act of 2009 and Its Impact on Federal Construction Contracting

Posted on February 18, 2009
Since President Barack Obama was inaugurated last month, he has initiated many changes which will impact federal contracting: first, he issued an executive order requiring a successor vendor on a services contract to offer a preceding contractor’s employees jobs under the new contract; second, in another executive order, he encouraged the use of project labor agreements to ensure that federal work would not be disturbed by “labor unrest” (see earlier blog article); and, in a third order, he prohibited contractors from passing along the costs of supporting or fighting their employees’ exercise of the right to unionize or bargain collectively...

Corps of Engineers Issues New Safety Manual

Posted on February 17, 2009
The U.S. Army Corps of Engineers, through its Office of Safety and Occupational Health, has released a new edition of the Corps’ Safety and Health Requirements Manual, EM 385-1-1, that streamlines information for easier access and quicker use...

Use of Project Labor Agreements Encouraged in Executive Order Issued by President Obama

Posted on February 10, 2009
On February 6, 2009, President Obama issued an Executive Order encouraging agencies to use Project Labor Agreements ("PLAs") in federal construction projects with a total cost to the Government of $25 million or more.  The purpose of the Order is to avoid some of the problems which typically arise during the completion of such large projects causing various delays in their timely completion...

Early Contractor Involvement - Another Experiment by the Corps of Engineers in "Creative Contracting"

Posted on February 06, 2009
In recent years, the U.S. Army Corps of Engineers has attempted to employ "innovative" contracting methods but, in doing so, has often limited the number of contractors who have had the opportunity to perform major construction projects.  One of the justifications for these “innovative” methods has been that there will be a reduction in the administrative workload resulting in a "savings" for the government...

The Importance of Proposal Preparation in Responding to an RFP

Posted on January 14, 2009
As the government has expanded its uses of Contracting by Negotiation through the issuance of RFPs ("Requests for Proposals"), as opposed to Sealed Bidding and the issuance of IFBs ("Invitations for Bid"), contractors have had to adapt to this new way of doing business...

Government Postpones E-Verify Requirement

Posted on January 13, 2009
The Department of Homeland Security has postponed the start date of the E-verify requirement (please see our earlier article).  The new rule will go into effect no earlier than Friday February 20, 2008.  Proponents of the new rule insist that the rule remains intact with as much legal force as before and that it is only being postponed...

Corps of Engineers and EPA Roll Back Definition of "Discharge of Dredged Material" for Section 404 Permits to 1999 Regulation Status

Posted on January 10, 2009
For over twenty years, the federal government and private industry, including contractors, mining companies, developers and builders, have debated the extent to which land clearing and dredging activities should be regulated. Since the 1970's, the U...

Department of Homeland Security Sued Over E-Verify Requirement

Posted on December 31, 2008
In November, 2008, the Department of Homeland Security (DHS) implemented a new rule through the Federal Acquisition Regulation (FAR) that would force companies doing business with the federal government to clear their workers through a verification database...

The Right of Contractors to Challenge Unfair Performance Evaluations is Further Expanded by the U.S Court of Federal Claims

Posted on December 26, 2008
We recently reported (see our earlier blog article) the decision of the United States Court of Federal Claims in BLR Group of America, Inc. v. United States, issued on November 25, 2008, in which the Court opened the door to contractor challenges of unfair or incorrect performance evaluations...

GAO Rules that the VA Failed to Conduct Meaningful Discussions

Posted on December 15, 2008
A decision just published by the Government Accountability Office ("GAO"), Matter of Burchick Construction Co., mpany, involved a request for proposals issued by the Department of Veteran Affairs ("VA") for the construction of an ambulatory care center ...

Court of Federal Claims Decision Paves the Way for Contractors to Challenge the Accuracy and Fairness of Performance Appraisals

Posted on December 12, 2008
In an interesting decision issued by the United States Court of Federal Claims on November 25, 2008, in a case entitled BLR Group of America, Inc. vs. United States, the Court ruled that it had jurisdiction to consider a contractor’s claim that a Contractor Performance Assessment Report (“CPAR”) was “false and highly prejudicial...

Department of Justice Adds Teeth to Current Contractor Ethics Rules

Posted on November 14, 2008
This has been a banner year for ethics in government contracting. This intense focus on integrity and honesty in business is evident in the evolution of the rules of the game-the Federal Acquisition Regulation. Just last December, changes to the FAR mandated contractors to “conduct themselves with the highest degree of integrity and honesty” and to document how they planned to achieve this standard in a Code of Business Ethics and Conduct (see our January 2008 blog article)...

GAO Sustains Boeing's Aerial Refueling Tanker Protest and Cites Significant Errors in the Procurement Process

Posted on June 19, 2008
The GAO announced yesterday that it had decided to sustain Boeing’s protest of the Air Force’s selection of Northrop Grumman (who included the European company Airbus on its team) over Boeing for the $40 billion aerial tanker contract - a contract that could ultimately be worth $100 billion...

Cumulative Impact Claim Allowed by the United States Court of Federal Claims

Posted on April 30, 2008
In a decision issued on April 21, 2008,  Bell BCI Company v, United States, the United States Court of Federal Claims issued a decision that can only be described as a “slam dunk” for the contractor. The case arose from the construction of a laboratory building at the National Institutes of Health (“NIH”) in Bethesda, Maryland...

House Votes to Close Code of Ethics Loophole on Contracts Performed Outside the United States

Posted on April 23, 2008
The requirement found at FAR 52,203-13 was implemented on December 24, 2007 and requires any contractor who is awarded a contract in excess of $5 million to have a written Code of Business Ethics and Conduct within thirty days after award.  Large business firms must also implement a training and compliance program within ninety days (see our earlier blog article for additional information)...

Court Enjoins Awards of Government-wide Task Order Contracts Because of "False Precision" in the Numerical Ratings of the Offerors

Posted on March 13, 2008
An important decision, Serco, Inc. v. United States was issued by the United States Court of Claims last week in a case involving a government-wide acquisition contract (“GWAC”) awarded by the General Services Administration (GSA) to provide technology products and services to the entire federal government...

Bid Protests to GAO to be Allowed on Task Orders in Excess of $10 Million

Posted on March 08, 2008
Effective May 23, 2008, there will be important changes that pertain to a contractor’s ability to protest task and delivery orders.  These changes are embodied in Section 843 of the 2008 Defense Authorization Act, "Enhanced Competition Requirements for Task and Delivery Order Contracts," and the Congress expects the new provisions to increase competition for task and delivery order contracts...

Air Force General Suggests That "Unwarranted" Protesters Should Be Penalized

Posted on February 17, 2008
The Commander of the Air Force Material Command, General Bruce Carlson, recently told reporters at a forum sponsored by Aviation Week that there should be some sort of penalty for protests that are found to be unwarranted.   It was reported that the General said “that some losing bidders file protests with 20 or 30 elements when perhaps only one part has any foundation...

Unfair Contractor Performance Evaluations: "Stacking the Charges"

Posted on February 13, 2008
The Federal Acquisition Regulation, at FAR 36.201, requires government personnel to be fair and accurate in the evaluation of a construction contractor’s performance, but there is the inherent potential for an unfair and overreaching evaluation...

Federal Court Issues Decision Critical of the Corps of Engineers While Granting the Corps Immunity Related to Hurricane Katrina

Posted on January 31, 2008
A decision has been issued in the United States District Court for the Eastern District of Louisiana, by Judge Stanwood R. Duval, Jr., dismissing the consolidated class action lawsuit against the United States Army Corps of Engineers for the failure of the Orleans Parish outfall canals and, in particular, the 17th Street Canal that allegedly accounted for approximately 80% of the flooding of downtown New Orleans in the wake of Hurricane Katrina (“In Re: Katrina Canal Breaches Consolidated Litigation, No...

Contractors Now Required to Prepare a Code of Business Ethics and Conduct and to Implement Internal Controls and Ethics Training

Posted on January 07, 2008
We published an article on March 5, 2007, reporting a proposed amendment to the FAR that would require government contractors to prepare a Code of Business Ethics and Conduct.  On November 23, 2007, a final rule was published in the Federal Register and two new FAR clauses became effective on December 24, 2007...

Protest Challenges Solicitation for Single Award Task Order Contract (SATOC) Involving Military Construction

Posted on December 05, 2007
A protest was filed recently in the United Stated Court of Federal Claims by our firm on behalf of a small business construction contractor challenging a solicitation issued by the Fort Worth District of the U.S. Army Corps of Engineers. The solicitation, No...

Federal Appeals Court Upholds Ruling that Contractor was Entitled to Damages Resulting from Defective Specifications and Differing Site Conditions

Posted on November 28, 2007
In a case captioned as Ace Constructors, Inc. v. United States concerning a contract with the Corps of Engineers for the construction of a structure at Biggs Army Airfield, the Federal Circuit upheld a Court of Federal Claims ruling awarding an equitable adjustment to ACE Constructors (“ACE”) and the return of liquidated delay damages...

Corps of Engineers Conduct Found to be an "End Run" to a Judicial Order and Injunction on MATOC Solicitation

Posted on November 27, 2007
The Corps of Engineers responded to the recent Order of the United States Court of Federal Claims dated November 1, 2007, granting a permanent injunction against the issuance of a MATOC solicitation for dredging, by taking four proposed task orders included in the MATOC solicitation and reissuing them as separate negotiated procurements...

Federal Court Rules that Negotiated IDIQ/MATOC Contracting Cannot be Used Instead of Sealed Bidding Without a Lawful and Rational Basis

Posted on November 05, 2007
In a recent prebid protest presented by our firm, Payne Hackenbracht & Sullivan, the United States Court of Federal Claims considered the protest of Weeks Marine, Inc. v. The United States (“Weeks”) challenging the decision of the United States Army Corps of Engineers, South Atlantic Division (“SAD”), to solicit proposals for maintenance dredging and shore protection projects using negotiated indefinite delivery indefinite quantity (“IDIQ”) multiple-award task order contracts (“MATOC”)...

Consulting Fees Deemed Excessive and Severely Limited by Armed Services Board of Contract Appeals Decision

Posted on November 02, 2007
The Armed Services Board of Contract Appeals (“ASBCA”) recently decided a case involving the issue of whether a contractor could recover the fees charged by a consulting firm as a contract administration cost.  Fru-Con Construction Corporation...

Method of Calculating Recovery Of Extended Home Office Overhead

Posted on October 30, 2007
In a decision earlier this month, the Armed Services Board of Contract Appeals reiterated that the recovery of unabsorbed home office overhead, based on the Eichleay formula, is for "a stand-by of an uncertain duration." The Board held that where a contractor is entitled to a compensable contract time extension for additional work, the contractor is entitled to recover extended home office overhead...

GAO Deference to Agency Discretion in Accepting a "Short Statement" instead of a "Security Awareness Plan" is Questionable

Posted on September 17, 2007
In a decision issued on April 20, 2007, but published today because of a protective order, the GAO denied a protest by Olympus Building Services, Inc., B-296741.14; B-296741.15 against the award of a contract to Rowe Contracting Services, Inc., issued by the Defense Intelligence Agency (DIA) for janitorial services at the DIA Analysis Center...

Determination of the Relative Merit of Past Performance Evaluation is a Matter of Agency Discretion

Posted on September 13, 2007
In a decision issued by the Government Accountability Office, S4, Inc., B-299817, August 23, 2007, the disappointed offer protested an award to Croop-LaFrance, Inc., a lower priced offeror, under a Request for Proposals (“RFP”) to procure information technology desktop information services...

Missing Information in Electronic Database Not Fatal To Offeror

Posted on September 12, 2007
As Federal government contractors know all too well, Federal procurement has entered the electronic age in a big way.  Not only are solicitations advertised solely through the internet at http://www.fedbizopps.gov, prospective contractors must be registered with another website, FedTeDS, www...

Equal Access to Justice Act Attorney's Fees Denied to a Prevailing Party

Posted on September 12, 2007
The Equal Access to Justice Act (“EAJA”) allows the recovery of attorney’s and expert witness fees provided that the applicant submits a timely application “which shows that the party is a prevailing party and is eligible to receive an award under this section...

GSA Streamlines Local Small Business Contracting on the Gulf Coast

Posted on September 11, 2007
As recently reported by Elise Castelli in the Federal Times, "The long slog to rebuild the Gulf Coast devastated by Hurricane Katrina might be gaining some speed."  A new order signed by GSA Administrator Lurita Doan will make it simpler and faster for the U...

Court Overrules a Federal Agency Override of an Automatic Stay in a Bid Protest Case

Posted on September 10, 2007
Under the federal Competition in Contracting Act, an automatic stay of a federal procurement goes into effect if an unsuccessful bidder files a bid protest with the GAO either within ten days after a contract award is made or within five days of an agency debriefing to the bidder, whichever is later...

New Rule Allows Subcontracts to Companies Owned by American Indian Tribes to Count Toward Small Business Subcontracting Goals

Posted on September 06, 2007
A new federal rule allows federal contractors to count subcontracts given to companies owned by American Indian tribes and Alaskan communities toward small business contracting goals. The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to implement section 702 of the Emergency Supplemental Act, 2002, as amended by section 3003 of the 2002 Supplemental Appropriations Act for Further Recovery From and Response to Terrorist Attacks on the United States...

The Difficulty a Protester Faces When Attempting to Overcome the GAO's Deference to Agency Discretion

Posted on September 05, 2007
The Government Accountability Office (“GAO”) posted five protest decisions today and, not surprisingly, each protest was denied. One of those decisions, Metson Marine Services, Inc., B-299705, involved Metson’s protest of the award of a contract to Seaward Services, Inc...

Deal Reached on $21 Billion Water Resources Bill

Posted on July 30, 2007
Engineering New Record reports that House and Senate conferees have reached a deal on a long–delayed bill that would authorize about $21 billion for hundreds of Army Corps of Engineers water projects and require more review by outside experts of work the Corps plans to do...

GAO Awards Recovery of Protest Costs

Posted on July 27, 2007
In a decision issued on July 24, 2007, Matter of Panacea Consulting, Inc., the GAO ruled that protest costs should be awarded to the protester because the GAO attorney had indicated, during an Alternative Dispute Resolution proceeding, that the protest would be sustained if a GAO decision was issued...

Termination for Default Sustained in Barracks Renovation Case

Posted on July 25, 2007
In a recent decision issued on July 6, 2007, Appeals of FFR-Bauelemente + Bausanierung GmbH, ASBCA Nos. 52152, 54563, 54808, 54809, 55017, the Armed Services Board of Contract Appeals held that the government had shown that the Contracting Officer was “justifiably insecure about the contract’s timely completion” and that a termination for default was justified...

The Need for More Competition in the IDIQ Process

Posted on July 13, 2007
“Competition is the cornerstone of our acquisition system.” This opening statement, from the Administrator of the Office of Management and Budget (OMB) in his May 31, 2007 policy directive, Enhancing Competition in Federal Acquisition, formed the basis for requesting that all government agencies take advantage of full and open competition, particularly on task orders issued under IDIQ contracts...

ENR Podcast of Conversation with Chief of Engineers

Posted on July 11, 2007
Engineering News Record has posted an interesting podcast of a conversation with the recently appointed Chief of the U.S. Army Corps of Engineers, Lt. General Robert S. Van Antwerp.  The General responds to questions about the on-going construction efforts in Iraq, and the completion of the flood protection systems in New Orleans...