The Federal Government Contracts & Procurement Blog

http://governmentcontracts.foxrothschild.com/

Nicholas contributes to the Federal Government Contracts & Procurement blog, addressing current and future issues affecting federal contractors and procurement professionals in both the Washington, D.C., area and throughout the United States.

Recent Blog Posts

  • Government Contracting 101: Duty of Good Faith and Fair Dealing The contractual duty of “good faith and fair dealing” is well established in private contracts.  Depending on your jurisdiction, there is very likely either a formal or an informal rule that parties to a contract must deal with each other honestly and in good faith.  This is (usually) not a written contract term – rather, the duty is implied automatically in order to reinforce the parties’ intent when entering into the agreement. But, did you know that the same kind of... More
  • Fox Speaks: Cybersecurity and More Regulations that Federal Contractors Need to Know I’d like to you invite you to join Fox’s Government Contracts team of Reggie Jones, Doug Hibshman and Nick Solosky at the upcoming 2017 Associated General Contractors of American Federal Contractor Conference in Washington, DC. We will lead a presentation and discussion entitled “Updated Federal Regulations Contractors Must Know – Cyber Security, Ethics & Compliance, SBA All-Small Program & More,” from 3:30 to 5:30 p.m. on Monday, May 1, 2017. The presentation will offer insights into the new cybersecurity requirements facing federal... More
  • Proposal Prep Tips: Real vs. Imagined Past Performance Experience A response to an RFP is the government contractor’s chance to put its best foot forward and stand out from the crowd.  Particularly when it comes to best value procurements, this is your chance to tell the contracting officer that your company does it best (whatever it is). But, a recent bid protest decision reminds us that contractors must carefully walk the line between well-deserved boasting and playing make-believe. The protest concerns a U.S. Department of the Navy IDIQ contract.  The RFP required contractors to... More
  • Contractor Alert: Beware Non-Performance during Contract Disputes Government contractors must be prepared to perform their Federal contracts – even in the face of a dispute with the government over essential contract terms.  Failing to perform can have devastating consequences, including default termination. In a recent case before the Armed Services Board of Contract Appeals, the Board considered a U.S. Army Corps of Engineers’ contract for HVAC system upgrades.  After the contract was awarded, the contractor promptly raised concerns over the Agency’s design.  The Agency acknowledged the disagreement, but... More
  • Waiver at Time of Request for Final Payment Dooms Contractor’s Claim Government contractors need to be conscious of the paperwork they sign on Federal contracts.  Signing a waiver or release of claims at any point during a project can result in a lost opportunity to recover damages – even if the event giving rise to those damages was already discussed in detail with the Contracting Officer. In a recent post, we discussed the hazard associated with bilateral project modifications.  Even when a modification includes requested relief (like a time extension), it also likely... More
  • Eye on Affiliation: The Role of Family Relationships in Size Determinations Government contractors looking to identify and mitigate indications of affiliation sometimes need look no further than their own family tree. The Small Business Administration (SBA) assumes that two businesses owned and controlled by members of the same family are affiliated based on that family relationship alone.  It is up to the family members to rebut the presumption. The SBA’s Office of Hearings and Appeals (OHA) reaffirmed this “Familial Identity of Interest” standard in spades in a recent decision.  OHA found two businesses... More
  • Government Contracting 101: Differing Site Conditions One of the primary risks facing construction contractors is subsurface or unexpected physical conditions discovered after the work begins (commonly known as a Differing Site Condition).  When such conditions are encountered on a federal government project, contractors need to: (1) properly document the condition, (2) notify the government, and (3) preserve the right to bring a Request for Equitable Adjustment or Certified Claim. Typically, any Differing Site Condition inquiry begins at Federal Acquisition Regulation 52.236-2.  The regulation defines a Type I... More
  • SBA Finds Violation of Ostensible Subcontractor Rule – Even Though Contractor Performs “Primary and Vital” Requirements Contractors seeking to avoid affiliation under the Ostensible Subcontractor Rule know the soundbite:  Your firm must self-perform the “primary and vital” contract requirements. A small business prime contractor must zero in on the essential objective of its contract and make sure to perform those requirements with its own employees.  If those requirements are subcontracted out to others, the SBA will have all the ammunition it needs to find affiliation. While the “primary and vital” requirements test is the most commonly cited metric... More
  • Money for Nothing: Recovering Bid Protest Attorneys’ Fees Winning bid protests all share one common theme – the government erred somewhere in the procurement process and the contractor was unfairly prejudiced as a result.  It is then up to the contractor to expend the time, effort, and resources necessary just to return to the status quo of basic fairness. Fortunately for contractors, the burden of pursuing a meritorious protest can (sometimes) be lifted. By law, the GAO has authority to recommend the reimbursement of protest costs (including attorneys’ fees) when... More
  • Bid Protest Denied After Contractor Declines to Engage with Agency Regarding Price Government agencies have ample discretion when it comes to corrective action in response to a bid protest.  A recent GAO bid protest shows that contractors must tread lightly when it comes to challenging that discretion. Unlike negotiations in the private sector, power plays against the government can end in lost contracting opportunities. The procurement that spawned the protest in question started as a sealed IFB by the U.S. Army Corps of Engineers (USACE) for dredging services.  In response, to the IFB, the... More