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Construction Law

Federal Construction Contracting Blog

Practical advice about how contractors can protect their rights and maximize their profits on federal government contracts.
By Michael Payne

Post Frequency: 0.6/day

Last Entry: March 23, 2011 at 16:46:21

The Government Cannot Simply Disregard a Lower-Priced Proposal When Making a "Best Value" Source Selection

Posted on February 06, 2010
By: Lane F. Kelman In making an award on initial proposals, is a tradeoff only between the two (2) highest-rated, highest-priced proposals appropriate? The GAO, in a recent decision,Coastal Environments, Inc., B-401889, dated December 18, 2009, provides important clarification...

How to Win Federal Construction Contracts with Teaming Arrangements

Posted on January 25, 2010
A seminar on 'How to Win Federal Construction Contracts with Teaming Arrangements' is being held on February 23, 2010, at the Hyatt Regency Grand Cypress Hotel in Orlando, Florida. The program is scheduled to take place from 8:30 a.m. to 1:00 p.m. and the seminar fee is $195, with a fee of $95 for additional people from the same company...

Obama's Message to Federal Contractors: "Pay Your Taxes"

Posted on January 22, 2010
By: Edward T. Delisle On Wednesday, January 20, 2010, President Obama signed a presidential memorandum directing the Internal Revenue Service to conduct an audit of all federal contractors. As reported by Nextgov.com, the audit is designed to identify those federal contractors that have failed to pay taxes and prevent them from obtaining additional federal work...

The HUBZone Program and Federal Construction

Posted on January 15, 2010
By: Michael H. Payne and Edward T. DeLisle In order to qualify as a Historically Underutilized Business Zone ('HUBZone') contractor, a firm must be a 'small business' based on the size standards provided by the North American Industry Classification System (NAICS); the firm must be at least 51% owned and controlled by citizens of the United States; the firm's principal office (where the greatest number of employees perform their work, excluding contract sites) must be located in a designated HUBZone; and at least 35% of the firm's total workforce must reside in a designated HUBZone...

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Recovery of Costs for Acceleration

Posted on January 11, 2010
By: Michael H. Payne and Craig A. Schroeder Acceleration is defined as a directive to increase efforts in order to complete performance on time, despite excusable delay. If the government does not agree that the contractor is entitled to acceleration costs, a contractor must file a request for an equitable adjustment ('REA'), or a claim under the Contract Disputes Act...

The Potential Third-Party Liability of a Federal Construction Contractor

Posted on December 18, 2009
By: Michael H. Payne and Craig A. Schroeder There has been a great deal of interest in the potential liability that a government contractor has for harm to third parties during or following the performance of a federal construction project. Although the government frequently enjoys sovereign immunity, the transfer of the government's immunity to a contractor is certainly not automatic and, when it applies, it is generally the result of what has come to be known as the 'Government Contractor Defense...

The Danger of Involving Former Government Employees in Contractor Proposal Preparation

Posted on December 12, 2009
By: Lane F. Kelman As opportunities in the private sector remain, at best, stagnant, the public sector has become increasingly competitive. The desire to gain a competitive advantage, however, must be tempered by compliance with ethical obligations. When attempting to gain a competitive advantage, it is crucial to avoid the appearance that your advantage is unfair...

Fraud, Abuse and the Service-Disabled Veteran-Owned Small Business Program

Posted on December 04, 2009
By: Edward T. DeLisle In recent testimony provided to the House of Representative's Committee on Small Business, a disturbing fact was revealed: millions of dollars earmarked for Service-Disabled Veteran-Owned Businesses ('SDVOSBs') have been paid to companies that do not qualify for the program...

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...

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...

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