Recent Developments
In Federal Procurement
2007-2008
Ed Kinberg
Fellow, NCMA
Kinberg & Associates, LLC
Melbourne, Florida
Today’s Discussion
 Good Sources
 Upcoming Challenges
 Interesting Cases
6/11/2008
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Good Sources
 Government Contracts Alert & FraudMail Alert (Fried Frank Law
Firm) (http://www.ffhsj.com/govtcon/ffgalert/altcurr.htm)
 Rumbaugh Regulatory Update (rumbaugh.net)
Where in Federal Contracting (Wifcon.com)
Government Contracts Update (Wolters Kluwer/CCH)
(www.business.cch./updates/govContracts/)
6/11/08
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Upcoming Challenges
Changing political landscape
IDIQ Contracting
Increasing Regulation
6/11/2008
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The Election
 Senator McCain: “must work aggressively to reform the
defense budget process”
 Web Site Issue: National Security
 Increased emphasis on ethics
 Contentious relations with Congress
 Senator Obama “the current administration has abused its
power by handing out contracts without competition to
politically connected friends and supporters”
 Web Site Issue: Homeland Security
 Shift resources to increase focus on domestic issue
 Contentious relations with Congress
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IDIQ Contracting
Competition
NDAA Sec. 843, “Enhanced Competition Requirements For Task
And Delivery Order Contracts”
Task/Delivery Orders Over $5M: requirement for task/delivery order in
excess of $5M, to provide all contractors a “fair opportunity” to be
considered for award is not met unless all contractors are provided—
Notice of task/delivery order, including a clear statement of
requirements;
A reasonable period of time to provide a proposal;
Disclosure of significant evaluation factors and subfactors (including
cost or price), and relative importance;
A written statement documenting basis for award and relative
importance of quality and price/cost factors; and
An opportunity for a post-award debriefing.
Applies to both DoD and civilian agency contracts
6/13/2007
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IDIQ Contracting
Protests
Task/Delivery Order Protests
Current law prohibits protest of a task/delivery order except for
protests based on the ground “that the order increases the scope,
period, or maximum value of the contract under which the order is
issued.”
2008 NDAA expands this existing exception by allowing GAO to
exercise exclusive jurisdiction over any protest of an order valued in
excess of $10M
Takes effect 120 days after enactment of the NDAA, and continues
for a period of three years
Applies to both DoD and civilian agencies
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Justification and Approval
Agencies are required to make justification and approval documents
available on an agency website.
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Lead System Integrators
Part 1: DoD is prohibited from awarding a new contract for
lead systems integrator functions in the acquisition of a major
weapons system to any entity that was not performing lead
systems integrator functions prior to January 28, 2008. (eff
10/1/2010)
Part II: DoD may only award a new contract for lead system
integrator functions in the acquisition of a major weapon system
if:
- The major weapon system has not proceeded past LRIP;
or
- SecDef determines in writing that it would not be
practicable to carry out the acquisition without continuing to
use a contractor to perform lead system integrator functions
and that doing so is in the best interest of DoD
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Executive Compensation
OMP limits allowable compensation for
executives to $614,196.
6/11/2008
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Lawyer Protection
In Affourtit v. United States, the Court of Federal
Claims ruled that a corporation appearing before the
Court must be represented by an attorney: no pro se
appeals
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OK to Do What You Are Told
In the appeal of General Dynamics C4 Systems, (08-1 BCA
33,779) the Agency claimed the contractor had waived its rights
to an equitable adjustment by performing disputed delivery
orders. The Board rejected this defense because:
1. The disputes clause required the contractor to continue
performance of disputed orders and
2. The Contracting Officer sent the Contractor a letter
requesting reasonable assurance that it would perform,
which the Contractor reasonably interpreted as a
demand for performance
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Compensation for Out of
Control Changes
In Bell BCI Co. v. U.S. (COFC, 52 CCF
78,926) the Court found that a
construction contractor was entitled to be
paid for extended performance due to
“hundreds” of change orders made by
Agency
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Conclusion
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Lots of big changes coming
Courts & Boards seem to be more
accepting of unique issues
IDIQ’s Orders are the next
battleground.
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