The Procurement Playbook

Contractors frequently claim that owners have breached the implied duty of good faith and fair dealing, largely as an alternative to more specific claims for constructive change or breach. These good faith and fair dealing claims are difficult to recover on, largely because courts and the boards have required a […]

It is no secret that the False Claims Act (“FCA”) is the government’s primary anti-fraud tool and that recoveries under the statute have hit record highs in recent years.  For example, since 1987, FCA recoveries have totaled $56 billion with no single year since 2010 falling below $3 billion.  Moreover, most of […]

In its annual report to Congress, the Defense Contract Audit Agency (“DCAA”) released impressive metrics about its progress during the 2017 fiscal year. For many years, DCAA has struggled to manage a substantial number of backlogged incurred cost audits—most of which extended back several years, including some which extended back […]

The Department of Defense (“DoD”) recently issued a final rule regarding contractor disclosures of defective pricing issues on DoD contracts, which can arise where the contractor’s certified cost or pricing data is inaccurate, incomplete or is not current.  In such cases, these errors and omissions can result in significant contract […]

Since at least 1945, the U.S. Supreme Court has upheld the unique ability of government agencies to create binding, unwritten interpretations of their own regulations. What is most troubling about this is that the agency can make or amend its regulations during the course of a contractor’s performance.  This government interpretation […]

“Cooperative Agreements” are legal instruments that facilitate the transfer of something of value from federal executive agencies to states, local governments, and private recipients for a public purpose or benefit. Cooperative Agreements are distinct from traditional procurement contracts and thus are not subject to the Federal Acquisition Regulation (FAR). Like […]

Should a contractor find itself appealing a contracting officer’s denial of a claim to the Armed Services Board of Contract Appeals (ASBCA) or the Civilian Board of Contract Appeals (CBCA), they will likely engage in some sort of document discovery. In a world with seemingly limitless and inexpensive data storage, […]

Other Transaction Authority (“OTA”) describes the streamlined procedures that federal agencies may use to procure innovative research or prototypes, without the constraints of a typical contract, grant, or cooperative agreement. This flexibility has made OTA an increasingly popular choice for federal acquisitions in recent years. OTA helps open the door […]

The Armed Services Board of Contract Appeals (the “Board”) recently issued another reminder in [Redacted], ASBCA No. 61065, that government contractors need to specifically reserve their rights to Contract Disputes Act claims in modifications and releases for final payment. While its name doesn’t quite rival the best of those associated […]

Last week, the U.S. Court of Federal Claims (COFC) published an opinion in Sonoran Tech. and Professional Services, LLC, v. United States, dismissing all of Sonoran’s bid protest claims as untimely.  There are a number of timeliness issues discussed in the Sonoran opinion.  One of the holdings from Sonoran that contractors (especially awardees with contracts under protest) need […]

A federal judge in the Western District of Washington has ruled that tribal employees may still be liable in their individual capacities under the False Claims Act, even if Native American tribes themselves are protected from such suits by sovereign immunity. This interpretation could have important implications for Alaska Native-owned […]

In Roy Allen Slurry Seal, Inc. v. American Asphalt South, Inc., (2017) 2 Cal.5th 505, the California Supreme Court recently ruled that disappointed bidders could not state a claim for the tort of intentional interference with prospective economic advantage against companies that obtain public contracts based on business practices that […]

As past performance reviews become an increasingly important part of the bid evaluation process, the performance assessments catalogued in the Contractor Performance Assessment Reporting System (“CPARS”) will have greater significance than ever before. CPARS reviews generally set forth the Government’s evaluation of a contractor’s performance based on several factors, including […]