On November 13, 2013, GAO reaffirmed its view that normalization of costs is impermissible in acquisitions where offerors’ approaches are not required to be the same. In AXIS Management Group LLC, B-408575 (Nov. 13, 2013), the Department of the Interior’s (“the Agency”) decision to normalize offerors’ labor hours and labor mixes was found to be unreasonable because the Agency ignored the unique approach proposed by each of the offerors. The acquisition sought laboratory operational support at the National Water Quality Laboratory (“NWQL”) using an indefinitely delivery, indefinite quantity contract. Technical merit was identified as significantly more important that the total evaluated price. Offerors’ price proposals were to consist of unit prices for two contract line items, one for front desk support and the other for information technology support, and to provide proposed “labor categories, number of hours and hourly rates for three CLINS: (1) laboratory support, (2) support services support, and (3) quality assurance labor categories,” and to ensure that they priced all of the task descriptions identified in the Solicitation. Historical staffing levels, but not staffing estimated or annual labor hour requirements, were disclosed in the Solicitation. The historical information identified staffing for only 12 of the 26 identified labor categories.
In Ashland Sales & Service Co., B-408969 (Nov. 1, 2013), the Government Accountability Office (“GAO”) dismissed a protest by Ashland Sales & Service Co. (“Ashland”) alleging that a contract for lightweight jackets was improperly awarded to Creighton AB, Inc. (“Creighton”) where Creighton was not enrolled in the employment eligibility verification (“E-Verify”) system at the time of award. The decision explains that E-Verify is a government web-based system that allows employers to verify the eligibility of new employees to work in the United States.
1. Proposed Rule to Amend DFARS Coverage of Contractor Personnel Supporting U.S. Armed Forces Deployed Outside the United States.
On October 31, 2013, the Department of Defense (“DoD”) proposed to amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) to amend and clarify certain provisions regarding contractor personnel supporting U.S. Armed Forces deployed outside the United States. As an initial matter, DFARS § 252.225-7040(a) would be amended to clarify which contractors are authorized to accompany the force (“CAAF”). Further, DoD proposed to add language to section (b)(3) to emphasize that, when CAAF are authorized to carry arms for personal protection, they are only authorized to use force for individual defense. Finally, the proposed rule would clarify the broad discretionary power of the Contracting Officer overseeing CAAF; specifically, the rule would provide that the Contracting Officer “may direct the Contractor, at its own expense, to remove and replace any Contractor personnel who jeopardize or interfere with mission accomplishment or who fail to comply with or violate applicable requirements” of the Contract.
The Inspector General Act of 1978 aimed to “consolidate existing auditing and investigative resources to more effectively combat fraud, abuse, waste and mismanagement in the programs and operations of [the executive branch].” To fulfill this mandate, the Act created the Offices of Inspector General (“OIG”) in various executive departments and agencies, including the Department of Defense (“DOD”), and authorized them to conduct and supervise audits and investigations to prevent and detect fraud, waste, and abuse. The DOD OIG’s primary investigative weapon has been the subpoena. More recently, however, the DOD OIG has subtly expanded its investigative arsenal by calling upon the Defense Contract Audit Agency (“DCAA”) to step up its fraud inquiries and by conducting more “Quality Assessments” and “Audits” without sounding the warning shot of the subpoena.
A recent decision by the U.S. Court of Federal Claims (“COFC”) serves as a reminder on the limits a contractor faces in protesting task and delivery order awards. In MORI Associates, Inc. v. United States, No. 13-671C (2013), the COFC dismissed the pre-award bid protest by MORI, the incumbent contractor, for lack of jurisdiction because the protest challenged the Government’s decision to obtain services through a task order competition under an Indefinite Delivery/Indefinite Quantity (“IDIQ”) Government-Wide Acquisition Contract (“GWAC”) rather than through a General Services Administration (“GSA”) Schedule contract.
The SEC awarded more than $14 million to a whistleblower earlier this month in exchange for information that helped the SEC bring an enforcement action against the perpetrators of an investment fraud in less than six months after receipt of the whistleblower’s tip.  The award is the largest made by the SEC since the Office of the Whistleblower was set up in 2011 under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. According to SEC Chair Mary Jo White, the hope is that “an award like this will encourage more individuals to come forward.”
1. Final Rules Regarding the Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors
On September 24, 2013, the Department of Labor Office of Federal Contract Compliance Programs (OFCCP) published a final rule revising the implementing regulations of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended by the Jobs for Veterans Act of 2002, (VEVRAA). OFCCP is responsible for enforcement of VEVRAA, which prohibits employment discrimination against protected veterans by covered Federal contractors and subcontractors. VEVRAA also requires each covered federal contractor and subcontractor to take affirmative action to employ and advance the employment of these veterans. The final rule strengthens several provisions that are intended to aid in recruitment and hiring efforts, such as clarifying the mandatory job listing requirements, requiring data collection pertaining to protected veteran applicants and hires, and establishing hiring benchmarks to assist in measuring the effectiveness of the affirmative action efforts. 78 Fed. Reg. 58614 (Sept. 23, 2013).
Companies invest vast resources in the development of intellectual property with the legitimate expectation that they will be the principal, if not exclusive, beneficiaries of their intellectual endeavors. Protecting technical data and computer software when dealing with the U.S. Government is not impossible, but to do so you must complete a fairly complicated obstacle course without once stumbling or falling. Set forth below are ten easy ways, when dealing with Uncle Sam, to lose your footing when running the course, and with it, losing your preferred market position with respect to your own technology. With apologies to David Letterman, here are the “Top 10” ways to give away the “family jewels.”
Like Frost’s nameless traveler in “The Road Not Taken,” our Government finds itself confronted with two diverging roads in the cybersecurity realm. The first offers moderation, deliberation, and evolution. The second, speed. Frost expressed regret that he could travel but one road. Armed with taxpayer dollars, our Government is not so constrained and, devoid of regret, proceeds down both in parallel.
On August 15, 2013, the Ontario Superior Court found Canadian national Nazir Karigar guilty of conspiring to offer a bribe to Indian government officials under the Corruption of Foreign Public Officials Act (“CFPOA”). The CFPOA makes it an offense to directly or indirectly give or offer a loan, reward, advantage or benefit of any kind to a foreign public official in order to obtain or retain an advantage in the course of business.