Articles-Formation onward | richarddlieberman

Formation/General

Bid is Nonrepsponsive (Nonconforming) When It Adds COVID 19 Force Majeure Clause (March 2022)

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

Independent Judgment of Source Selection Authority

Must an Agency Permit Price Changes in Final Proposal Revisions? (Oct. 2022)

Must Your Proposal State Your Intent to Comply With Every Performance Work Statement Section (March 2023)

What is Institutional Ratification of a Contract?
You Normally Can ModifyAnything in Your Proposal During Revisions

Void Ab Initio (December 2023)

Fraud

Allegation of Fraud 16 Months After Claim Was Filed Does Not Divest Board of Jurisdiction (Oct. 2020)
Board Again Refusees to Dismiss Claim Based on Late Fraud Allegation (Dec. 2020)
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

Fallse Claims Act Settlements and Judgments Exceed $2.69 Billion in 2023
Fraud, Bribes, Steering and Limiting Competition by Corrupt Department Head at Walter Reed Med. Center (Jan 2022)
Mere Suspicion of Fraud Insufficient to Defeat Finding of Board Jurisdiction (Aug 2021)
Potential Impact of New Guidance on False Claims Act Cases (May 2018)
Prosecutorial Discretion
Supreme Court Adopts "Implied Certification" With Materiality Requirement
The Contractor and the Contracting Office--A Tale of Fraud and Responsibility (Aug. 2021)
Where Fraud is Alleged in the Contract, But Not IN the Claim Itself, Board has Jurisdiction (Nov. 2021)

Government-Wide Topics
A Dozen Ways the Government Can Reduce or Eliminate Due to Sequestration
Agenci es 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)

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 Needs Only a Reasonable Basis to Cancel a Solicitation (Dec. 2022)

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

A Vague Email is Not a Protest

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?

Can You Bid Zero ($0) or Less on a Fixed Price Contract? (Oct. 2021)

Christian Doctrine Includes Service Contract Act Clause (Dec. 2023)

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

Claims Court Lacks Jurisdiction over Task Order Size Protests, including Bid Protests (May 2023)

Claims Court Will Not Enforce GAO Rule Requiring Offerors to Notify Agency of Change in Key Personnel (May 2022)

Color Coded Training Chart Inadequate in Protest (Feb. 2021)

Competitor's Filing of a Protest Does Not Constitute Discussions (Oct. 2022)

Confidence Decreasers (May 2022)

Constructive Notice of Award (May 2022)

Competitive Prejudice (March 2016)

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

Definite Knowledge of a Bais of Protest Compared with Speculation, Conjecture or Inference (Feb 2022)

Discussions-High Price or Unreasonably high Price

Discussions Must Address Deficiencies and Significant Weaknesses of All Offerors (Feb. 2022)

Discussions Were Not Meaningful (June 2023)

Discretion of the Source Selection Authority to Change Ratings

Disparate Treatment in Evaluation of Offers (March 2017)

Don't Ask Questions--File a Proper Informal Agency Level Protest (Sept. 2023)

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 for Fraud Allegations, GAO Has No Jurisdiction over Protests of Other Transaction Authority Procurements (Mar. 2024)

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

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

Experience vs. Past Performance, and what about multiple Offers? (Dec. 2021)

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)

For Professional Employee Comp., Gov't-Wide Average Rates are Not Adequate for Required Risk Assessment (June 2023)

GAO Decisions May Not be Binding But they Cannot be Ignored (June 2022)

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 Will Allow Consideration of Reasonably Related Additional Value in Evaluations of Offers (Sept. 2023)

GAO Bid Protest Activity in FY 2022 (May 2023)

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)

GAO Sustain and Effectiveness Rates in 2020 (Feb. 2021))

GAO Activity in Bed Protests Remains Stable in Fiscal 2021 (Jan. 2022)

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?

"Implicit Promise" in Federal Supply Schedule Not Good Enough to Meet Solicitation Requirements (Nov. 2022)

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 Discuss. (March 2018)

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

Incomplete Proposal Is Not A Matter of Responsibility (April 2023)

Inconsistent with Customary Commercial Practices (Feb. 2023)

Inactive SAM Registration at Time of Bid Submission is an Immaterial and Curable Defect (Nov. 2022)

Incomplete Attachment in Proposal (Nov. 2023)

Incredibly Bad Actions by the Army in a Bid Protest-and the Aftermath (Dec. 2021)

Informal Agency Protests: A Reminder

Informational Deficiencies in a Proposal

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

Is A Partially Performed Contract Recent? (March 2024)

Is a Solicitation Requirement for Financial Liquidity and Solvency Unduly Restrictive (March 2024)

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)
Lateness of Quote is Determined by Agency's Receipt (June 2021)

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)

No Presumption of Prejudice (April 2022)

Offer Submitted in Name of the Product is Nonresponsive

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).

Performance Risk is Intrinsic to Stated Evaluation Factors (Sept. 2023)

Pervasive Errors in Source Selection (Feb. 2021)

Poorly Written Proposals-What Happens (Jan. 2017)

Price Realism Determination Not Required on Fixed-Price Contracts (Oct. 2021)

Protest to GAO Is Untimely if Prior Agency Level Protest Was Untimely (Nov. 2022)

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)

Quoted Labor Categories Not in Scope of Schedule Contract (April 2023)

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)

Source Selection Official May Rely on Personal Knowledge in Source Selection ( July 2022)

Six Recurring Agency Mistakes in Discussions (Feb. 2016)

Re-Recurring Agency Mistakes in Discussions (June 2017)

T echnically 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)

Unbalanced Pricing That Poses an Unacceptable Risk to the Government (April 2022)

Unequal Exchanges in Task Order Competition (Sept. 2021)

Unless Protester Asks Questions in Extended Debrief the 5 Day Requirement in CICA Applies (May 2021)

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 Can An Agency Cancel a FAR Part 15 Procurement and Start from Scratch

What is, and What is NOT, an Informal Agency Protest at GAO? (March 2022)

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

Adverse Inference

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

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

Adverse Influence in Size Appeals

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)

Information from a Website in a Size Protest (Jan. 2024)

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

SBA Reports $245.7 Billion In Prime Contract Awards And $82.8 Billion In Subcontract Awards In 2020 (Oct. 2020)

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

Size Protest Related to Long Term Contract May Only be Filed at Three Stages (June 2022)

Terminating an Award if a Size Determination Finds the Awardee "Not Small" (April 2021)

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)

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)

Defult Affirmed; Contraactor Provided No Facts to Supports its Nonperformance (Feb. 2022)

Default Termination-The Correct Standard of Review

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 Cause of Default are Government Claims, Not Subject to Presentment to Contracting Officer (May 2021)

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

Discussions-High Price or Unreasonably high Price

Missing Deadlines in Protests (Jan. 2016)

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

Poorly Written Proposals-What Happens (Jan. 2017)