Articles in Magazines and Journals

-by Richard D. Lieberman

 

(Click to download article)

Basics

The Basics of Government Contracts-A Primer (2007)

Basics of Government Contracting (1992)

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Bid Protests

Scorekeeping Bid Protests in Six Forums (1995)

Bid Protests at the Court of Federal Claims and GAO (1997)

Has the Court of Federal Claims Changed Bid Protests (1998)

Treading On the Same Rake-Learning from Agency Mistakes Identified in GAO Protest Decisions (NCMA Contr. Mgt. Jan 2019)

 

Compliance Programs

Compliance Programs-They're Worth It (1999)

A Company Contract Compliance Program...How to Implement It (1993)

 

Mistakes

Ten Big Mistakes Made by Small Business and New Government Contractors (2015)

Ten Big Mistakes in Contract Bidding (2007)

Ten Big Mistakes n Contract Administration (2006)

 

Other

Do You Know the  Differences Between Requests for Equitable Adjustments (REA) and Claims? (NCMA Contr. Mgt. Dec 2018)

How to] Reduce the Cost of Defense Systems (2001)

Incorrect Government Advice-Whom Should You Heed? (2016)

Practical Tips...On Criminal Investigations (2009)

The 'Criminalization' of Government Procurement (1993)

 

 

 

Selected Previous Blog Articles (Date)

-by Richard Lieberman

 

(click to download blog)

Basic Principles/Authority to Contract

Agency's Unilateral Modification of Funding Clause is a Breach Not a Proper Change Order (April 2018

Agency Violations of the Covenant of Good Faith and Fair Dealing (October 2018)

Always Read Your Opponent's Entire Protest (April 2016)

Anticipatory Repudiation: Good, Bad and Ugly (April 2016)
Are You a Volunteer? (Jan. 2016)

Brand Name or Equal Procurement Requires Justfication and Approval in Simplified Acquisitions (Nov. 2020)

Can a Rubber Stamped Signature Bind a Contractor? (Nov. 2018)

Civilian Board Diverges from Armed Services Board on Filing Appeals with Contracting Officer (Sept. 2020)

Conduct of Court Litigation Reserved to Department of Justice (Sept. 2017)

Construction Bond Requirements are Incorporated in Contracts by the Christian Doctrine (Dec. 2018)

Contractors Have a Duty to Inquire About Wage and Fringe Benefits

Contra Proferentem, Latent Ambiguity and Contractor Wins Claim (Oct. 2020)

Contracts Without Consideration: What is a "Nudum Pactum" (Jan. 2016)

Court Has No Jurisdiction to Consider Claims on Blanket Purchase Agreements (May 2019)

Department of Justice Evaluation Questions for Corporate Compliance Programs

FEDBID is Government's Agent in Reverse Auction (July 2019)

Federal Circuit Warns Contracting Officers: Meet Your Needs With Commercial Items First (Nov. 2018)

Final Signed Release Bars Future Claims (April 2018)

GAO Approves New Best Value Method; Highest Technically Rated with Fair and Reasonable Price, Court of Fed Cl. Agrees (May 2017) 

GAO Jurisdiction Extends to Procurement Laws and Regulations But Not Questions of Fiscal Law or the Anti-Deficiency Act (Oct. 2018)

Good Faith and Fair Dealing-Government Breach

Government Waiver of Contract Specifications: When and How? (April 2018)

Guard Your Proprietary Information Carefully (March 2020)

Incorporation by Reference

Incumbent's Poor Performance Does Not Justify Sole Source Procurement (Sept. 2020)

Is the Entire Federal Acquisition Regulation Incorporated in your Government Contract? (Oct. 2017)

Know About the Doctrine of Apparent Authority

Latent Ambiguity

Military Interdepartmental Purchase Request ("MIPR") (July 2017)

No Acceptance Means No Contract

No Derivative Sovereign Immunity If Contractor Violates Contract or Law (Jan. 2016)

One Truth About the Truth in Negotiations Act

Only A Contractor, Not an Imposter, May Submit a Valid Claim (May 2018)

Oral Advice Cannot Amend a Solicitation (Jan. 2018)

Patent Ambiguity (Jan. 2020)

Public Notice of Contracting Actions (March 2016)  

Ratification of Contracts (April 2016)

Read Your Contract and Remember the Rules ( July 2020)

Racing Cars and Implied Contracts Made by the Head of an Agency (March 2020)

So You Think You've Got a Contract?(March 2016)

Square Corners (Jan. 2019)

The Secret's In the Sauce-Why You Need the FAR (April 2016)

Use It or Lose It-A Primer (May 2016)

When Is a Task Order Out of Scope? (July 2018)

"You're Out of Luck Buddy" (No Extra-Contractual Relief) (April 2016)

 

Claims and Remedies

A Common Sense Analysis of What is a Claim (June 2017)

A Few Reminders About Contract Claims and Appeals (Feb. 2016)

Alleged "Final Contracting Officer's Decision" Does Not Cure Absence of Required Certification (Oct. 2018)

Are You Entitled to an Equitable Adjustment (Oct. 2016)

A Tale of Two Appeals (August 2016)

Additional Cost is the Appropriate Measure for Differing Site Conditions (Feb. 2016)

Board Will Not Dismiss a Claim For Lack of Adequate Notice After Detailed Decision, 5 Years After Claim Was Submitted (Jan 2019)

Correctible (Defective) Claim Certification (March 2019)

Constructive Acceleration (July 2017)

Contractor Can Seek Payment for Work That was Invoiced and Accepted Prior to Default Termination (July 2017)

Contractor May Appeal Gov't Claim Without Submitting Separate Claim to Contracting Officer (July 2020)

Contractor's Interpretation Must Be Reasonable in Type I Differing Site conditions Claim (Sept. 2020)

Claim Does Not Accrue Until "Sum Certain" Is Known by Contractor (June 2016)

Claim May Use Estimate to Arrive at "Sum Certain"

Deemed Denial of Claims and How This Helps Contractors (March 2016)

"Defective" Claim Certification or "No Claim Certification" (Nov.2018)

Digital Signature Certification is Valid (March 2019)

Dismissal of An Incomplete (Improper) Claim or Appeal (September 2017)

Final Contracting Officer Decision on Claim Does Not Cure Lack of Certification (Sept. 2019)

How to Sign Your Claim and Certification (Dec. 2017)

It's Easy for a Small Business to Appeal a Denied Claim (May 2016)

Not a Claim (Oct. 2020)

Requests for Equitable Adjustments compared to Claims (Feb. 2019)

Test Your Knowledge of Change Orders and Equitable Adjustments

Must Your Claim be Certified by the Person Who Signed Your Contract

Solicitations for Requirements Contracts Must Include Realistic Estimated Quantities, Not Just Historical Data (Sept. 2017)

The Importance of Timely Notification of Intended Claims

Untimely Claims: Equitable Tolling or Excusable Neglect? (August 2018)

What is a Deadline; Why Do Government Contractors Care

What is a "Sum Certain?" (May 2020)

When Timely Notice of an Intended Claim is Not Required (March 2016)

 

Contract Administration Issues

 

Agencies Cannot Pro-Rate Invoices Unless the Contract So States (Feb. 2017)

Agency Cannot Change Terms of Modification After It Implicitly Ratifies It (Aug. 2020)

Agency Cannot Re-Litigate Issues Previously Decided in an Appeal on a Claim (Sept. 2019)

Another Sad Story of Misplaced Reliance on a Contract Specialist and Improper Exercise of Options (May 2017)

Be Careful What You Sign (Oct. 2017)

Beware of Government "Best Efforts" on Options (Sept. 2016)

Board Allows Claim Because Agency Did Not Understand Its Own Solicitation and Contract (July 2020)

Boards and Ct. of Fed. Claims Have No Authority to Award Punitive Damages

Can You Sell a Government Contract?

Changes Clause Can't Be used to Change Terms and Conditions, Including Payment Terms (Nov. 2017)

Consequences of Government Delay or Indecision (April 2016)

Contract Extensions Must Meet the Same Requirements as Contracts

Contracting Officer's Email Notice of Intent to Exercise Option was Adequate (July 2019)

Contractor Cannot Waive Its Right to Board Review Under the Contract Disputes Act (Feb. 2018)

Course of Dealing (Nov. 2020)

Courts Must Review Validity of Underlying Debt Before Offsetting Under Debt Collection Act (Nov.2020)

Defense Contract Audit Agency Fiscal 2018 Activities

Department of Justice Issues Guide for Determining if Commercial or Financial Info is Confidential under FOIA (Oct. 2019)

Don't Let Your Contracting Officer Use the Changes Clause to Change Terms and Conditions-esp. Payment Terms (Nov. 2017)

Extensions May Go Beyond Contract Term

First Article Does Not Redefine Contract Specifications for Acceptance (April 2017)

Four Reasons Why Specifications Take Precedence Over Drawings (August 2017)

Government Acts In Bad Faith Differ from Breach of Contract

Government Waiver of Delivery Date

How Many Mistakes Can a Defense Logistics Agency Contracting Officer Make? (Jan. 2018)

How to Get Paid for Wage Determination Increases in Options and Extensions under the Service Contract Act (Oct. 2017)

How to Get Paid on Your Invoices (Jan. 2016)

In a Fixed-Price Contract, the Contractor Assumes the Risk of Higher Costs

Missing Deadlines in Contract Administration and Claims (Jan. 2016)

Modification Signed Under Protest: Agency Must Consider All Documents in the Transaction (May 2019)

No Unilateral Mistake Allowed in Woodies' Leases to GSA (Sept. 2019)

Noncommercial Clauses in RFQs for Commercial Items (Jan 2016)

One Truth About the Truth in Negotiations Act (Aug 2017)

Options: Unfettered Government Discretion

Prior Course of Dealing (Jan. 2020)

Reprocurement Contract May Not Exceed Undelivered term of Defaulted Contract (May 2020)

Sequestration: A Dozen Ways the Government Can Reduce or Eliminate Your Contract (August 2017)

Subcontractor Costs:  Can the Prime Bill for Vacation Costs, Even if Invoiced Separately (Nov. 2017)

Submit Your Invoices on Time or risk Nonpayment (Dec. 2019)

Supreme Court Eases the Definition of Confidential Commercial Information Exempt from FOIA  (Oct. 2019)

The Government Controls the Options (Aug. 2016)

Test Your Knowledge of Changes and Equitable Adjustments (Jan 2016)

Understanding a Release

Unreasonable Post-Performance Actions by the Government (Nov. 2016)

Using Bridge Contracts-A Bridge to Trouble

When Will Boards Have Jurisdiction On Matters That Relate to Service Contract Act Issues (August 2018)

Where FAR Part 31 Cost Principles Specifically Apply, Interest is Not Allowed on a Loan Because of Govt Delay of Payment (Aug 2020)

Will An Employee Strike Excuse a Default? What is a Strike? (Oct. 2016)

Wrongful Default, Contracting Officer Representatives Lies (Nov. 2016)

 

Contract Disputes Act/Disputes/Courts/Boards of Contract Appeals

Armed Services Board Sustain Rate Increases Slightly in 2017 (Feb. 2018)

Armed Services Board Meritorious Dispositions Increase in 2018 (December 2018)

Boards Cannot Grant Injunctive Relief (March 2019)

Boards Lack Jurisdiction over Real Property Disputes (July 2020)

Boards Lack Jurisdiction to Hear Bid Protests Even if Contracting Officer Invites It (June 2020)

CBCA Rejects an Egregious Interpretation of the Contract Disputes Act

Demystifying Appeals Before the Boards of Contract Appeals (Oct. 2016)

Don't Make a Fatal Mistake at the Boards of Contract Appeals (June 2020)

Federal Circuit Holds that Any Defect in Claim Certification Can Be Corrected

Final Decision Must Solely Assert Fraud to Defeat Board Jurisdiction (Sept. 2018)

Gabions and Differing Site Conditions

Governnment Can't Rely on Non-Credible Hearsay to Show Failure to Meet Contract Specifications (Nov. 2019)

Get It in Writing

Impossibility or Commercial Impracticability

New Contracting Officer is No Reason to Delay Decision on Claim (Feb. 2017)

No Magic Words or Form Needed for a Claim (Nov. 2019)

Postal Service Contract Boilerplate May be Unenforceable and Contrary to Public Policy

Receipt of CO Decision Includes Receipt by Your Attorney or Employee

Trapped by Technology: Proof of Filing

When Should the Government Be Required to File a Complaint at the Boards of Contract Appeals

Who Decides Schedule Contract Disputes?

 

Evaluation of Offers in Accordance with the RFP

Agencies Must Treat Contractor's Fairly When Using RFQs (April 2016)

In Best Value Selection, Agencies Can't Ignore Price

Past Performance Information that is Too Close at Hand

Price:Reasonable versus Realistic

The FAR Unbalancing Act (May 2016)

 

Federal Supply Schedules

Can the Government Have Its Cake and Eat It Too with RFQs?

Caution on Refreshes of Your Multiple Award Schedule Contract (April 2018)

New Rule Permits Providing Off Schedule Items Without Using "Open Market" Procedures (April 2018)

 

Formation/General

Competition Alone Does Not Render Every Price Reasonable Per Se (May 2019)

Defense Issues Rule Limiting Use of Lowest Priced Technically Acceptable Procurements (Jan. 2020)

How Much Risk Can the Government Impose on You?

What is Institutional Ratification of a Contract?

You Normally Can ModifyAnything in Your Proposal During Revisions

 

Fraud

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Allegation of Fraud 16 Months After Claim Was Filed Does Not Divest Board of Jurisdiction

Caution:Claims are Subject to 3 Separate Fraud Sections

Civil False Claims Act Qui Tam Statistics (April 2020)

DOJ Issues Guidance on False Claims Act Cooperation Credit (Aug 2019)

FEMA Deputy Regional Administrator and Deputy Chief of Staff  Indicted for Fraud

Potential Impact of New Guidance on False Claims Act Cases (May 2018)

Prosecutorial Discretion

Supreme Court Adopts "Implied Certification" With Materiality Requirement

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Government-Wide Topics

A Dozen Ways the Government Can Reduce or Eliminate Due to Sequestration

Agencies Cannot ProRate Invoices

 

Mistakes

Don't Make the Same Mistake Six Times (Jan. 2016)

Responses to RFQ are Not Offers: The RFQ Mistake (Jan 2016)

 

Offers/Protests

Agencies Must Look Beyond Adjectival Ratings in Source Selection (April 2019)

Agency Failed to Document Corrective Action (July 2017)

Agency Failed to Evaluate Escalation Rates in Cost Realism Analysis (July 2020)

Agency Failed to Follow Solicitation Requirements by Excluding Parts of Proposal (Sept. 2020)

Agency Has Only Limited Requirement to Seek Clarifications (May 2019)

Agency Improperly Allowed Large Awardee to Include Its Overhead and Profit in Small Business Calculation (Oct. 2019)

Agency Reasonably Limited Quotation Revisions as Part of Corrective Action (May 2019)

Agency Cannot Assume Performance Not in Offer (June 2019)

Allowing only 44 Minutes to Respond to a Soliciation?

A Footnote About Discussions and Final Proposal Revisions (Oct. 2016)

A Rare Case of the Court Waiving a Minor Informality in a Late Offer

Always Cure Any Material Omission in Your Final Revised Proposal

Agencies May not Conduct Prejudicially Misleading Discussions

Bait and Switch: Many GAO Protests, Few Sustains (March 2016)

Bait and Switch Redux-Even Without Required Commitment Letters (April 2020)

Brand Name Product Meets Brand Name or Equal Specification (Jan. 2016)

Breaking a Price Tie by Selecting a Higher Quality Offeror (Aug. 2019)

Cancellation of Bids and the Independent Gov't Estimate (Aug. 2019)

Can't Challenge CPAR in Bid Protest But Can Challenge Bad Faith Selection (April 2020)

Can You Appeal a Bid Protest Decision of the GAO?

Claiming Costs of Pursuing Protests at the GAO (Feb. 2017)

Competitive Prejudice (March 2016)

Data Rights Clause In Solicitation Is Material (Jan. 2016)

Discretion of the Source Selection Authority to Change Ratings

Disparate Treatment in Evaluation of Offers (March 2017)

Don't Hurt Your Chances to Win In Your Final Proposal revisions (Sept. 2016)

Don't Mess with Page and Spacing Limitations in Proposals

Do you Know the DC Three Step?

Don't Believe Your Computer and Don't Make the Email Mistake (Jan. 2016)

Even In Set-Asides, the price Must be Reasonable (March 2020)

Everyone Wishes Agencies Would Comply, But ...(Debriefings, Jan 2017)

Extend Your Offer or Submit a Protest (July 2018)

Failure to Acknowledge a Material Amendment, What is Material and How Do You make No Mistakes (June 2016)

Federal Circuit Adopts Federal Claims Standard on Disparate Evaluations (June 2020)

GAO Dislikes Uncooperative Agencies and Inadequate Documentation (Jan. 2016)

GAO Dismisses Protests if You Don't File Timely Comments on the Agency Report (Nov. 2017)

GAO Has no Bid Protest Jurisdiction over Fannie Mae and Freddie Mac (July 2018)

GAO Lacks Jurisdiction Over Civilian Task Orders Valued at Less than $10 Million (Oct. 2019)

GAO Protest Timeliness, Businessmen and Lawyers (Dec. 2019)

GAO Warns Against Use of Flexible Ordering Agreements (Feb. 2016)

GAO Protest Sustains Increase in 2016 (Dec. 2016)

GAO Protest Sustains Decrease Significantly in 2017 (Dec. 2017)

GAO Sustain Rate and Effectiveness Rate Remain Relatively Stable in 2018 (Jan 2019)

GAO Sustain and Effectiveness Rates Continue at Relatively Stable Rates in 2019 (Jan 2020)

G.L. Christian & Associates v. the Lions (Feb. 2016)

Haste Makes Waste: Latent Solicitation Ambiguities (Feb. 2016)

Highest Technically Rated Reasonably Price Selection Method is Not OK for GSA Schedule BPA's ( May 2020)

How is a Solicitation Amendment Constructively Acknowledged?

Improper Agency Discussions and Mis-Evaluation of Past Performance (March 2018)

Improper Discussions: Agency Treated Neutral Past Performance as "Increased Risk" Without Mentioning it in Discussions (March 2018)

Improperly Assigning Technical Risk to Two Evaluation Categories (March 2016)

Informational Deficiencies in a Proposal

Information on Lowest Price Technically Acceptable Process (Jan. 2019)

Knowingly Making False Statements to Obtain a Contract-Void Ab Initio Redux (Dec. 2016)

Lack of Advance Planning Is An Improper Reason to Use Noncompetitive Procedures (April 2016)

Material Misrepresentation in Proposal (March 2019)

Mechanical Receipt of Agency Protest Decision on Non-Business Day Does not Trigger Constructive Knowledge (Dec. 2019)

Missing Deadlines in Protests (Jan. 2016)

Offerors: Don't Introduce New Weaknesses in Proposas after Discussions (Sept. 2019)

Offerors Who Fail to Follow Proposal Instructions (Feb. 2019)

Offers Remain Open Even if "Unsuccessful" (Feb. 2017)

Once Again, Recurring Agency Mistakes in Discussions

Out of Scope Modification (protest) (March 2020)

Past Performance: The Experience of an Offeror's Personnel (April 2019).

Poorly Written Proposals-What Happens (Jan. 2017)

Protester's Failure to Rebut or Substantively comment (Feb. 2017)

Protester Has Burden of Showing Timely Electronic (Email) Delivery (Oct. 2017)

Protests that Agency Should Use More Restrictive Specifications (Aug. 2020)

Pricing Commercial Trash Pickup: By the Ton or by the Run (Feb. 2016)

Question Period is Part of Enhanced Post-Award Debriefing for Automatic Stay (Aug. 2020)

RAND Corporation Reviews Bid Protests and Concludes that Major Changes Are Not Appropriate (March 2017)

Reconsidering Trash Pickup by the Ton or by the Run (Aug.2016)

Recurring Agency Mistakes in Source Selection (Oct. 2018)

Six Recurring Agency Mistakes in Discussions (Feb. 2016)

Re-Recurring Agency Mistakes in Discussions (June 2017)

Technically Unacceptable is Unacceptable Regardless of Solicitation Type

The Agency Made 4 Mistakes in the Procurement (Feb. 2020)

The Benefit of the The Doubt at the Government Accountability Office

The Consequences of Abusing the Protest Process (Nov. 2016)

The Debriefing Exception to Protest Timeliness at the GAO (Jan. 2016)

The Email Mistake-Redux (Dec. 2016)

The Late Offer Rule Does Not Apply to Quotations (May 2018)

To Protest or Not to Protest (Jan. 2016)

Unreasonable Limitations on Proposal Revisions During the Corrective Action Phase of Protests (July 2017)

Unreasonable Restrictions on Quotation or Proposal Revisions (June 2018)

U.S Mint Not Subject to Government Accountability Office Bid Protest Jurisdiction

What is a Predecessor Company for Past Performance Purposes? (March 2017)

When Correction of a Bid Will be Permitted (April 2019)

Where Do Action Officers Dream Up These Schemes?

Written Final Proposal Revisions are not Required in Competitions for Task Orders (July 2017)

 

Small Business

A Business Controlled by a Woman is Not "Woman-Owned" (Jan. 2018)

A Contract Partly Performed in the US triggers Small Business Set-Aside

Affidavits and Declarations are Generally Acceptable in Size Appeals

Affiliation Based on Identity of Interest: Common Investment or Economic Dependence (May 2016)

Afffiliation: Common Ownership is Different from Common Management (June 2019)

Details of the "Present Effect" Rule (April 2019)

Even if a Procurement is Not Set Aside for Small Business, Sometimes a Contractor May Appeal the NAICS Code (Aug. 2019)

Foreign Ownership Doesn't Preclude US Affiliate from Small Business Set-Aside Program (Jan. 2019)

GAO and SBA Confirm that runway Act Requires Rulemaking (Oct. 2019)

Lapsed SBA Mentor Protege Agreement Makes JV Firms Affiliated, No Longer "Small" (March 2016)

New Law Extends Period to 5 Years For Calculating Small Business Revenue in Size Standards (Feb. 2019)

Ostensible Subcontractor (March 2016)

Ostensible Subcontractors: How to Know if You Are One (March 2016)

Prime May Violate Ostensible Subcontractor Rule Even if It Performs Primary and Vital Requirements of Contract (Aug. 2017)

Remand to Consider All Aspects of Ostensible Subcontractor Rule (Oct. 2020)

Reminder: Alaska Native Corporations are Exempt from Certain Size Rules (Dec. 2016)

Rules for Set-Asides for Small Business, Including Women-Owned Small Business

SBA's Newly Organized Concern Rule 

Size Protest Deadlines Do Not Apply if Agency Flouts Sealed Bidding Procedures (Oct. 2018)

Termination of an 8(a) Contractor for Failure to Pay a Subcontractor (July 2018)

The Ostensible Subcontractor Rule, the "Team" and Avoiding Problems (March 2016)

When Will the SBA Give "Present Effect" to Stock Sales or Agreements to Merge?

Who is the Manufacturer In a Small Business Set-Aside? (August 2017)

Woman Must Have Necessary Managerial Experience and Expertise to Qualify as Woman Owned Small Business (June 2019)

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Subcontracting

Privity and Why You need It

When Can A Subcontractor Sue the Government When the Prime Fails to Pay?

 

Terminations

A Few Pointers on Anticipatory Repudiation  

Commercial Item Contracts Require Cure Notices Before Term. for Cause (March 2016

Conceding the Government's Case in Default (March 2019)

Excess Cost of Reprocurement

One Year is the Deadline for Filing Termination for Convenience Settlement Proposals

Postal Service Lies and Bad Faith Default Termination

Termination for Convenience Settlement Must Be Based on Cost not Contract Line Items (Jan 2018)

Was Your Delivery Date Waived and Is Your Default Termination Wrongful