The recent explosion in Foreign Corrupt Practices Act ("FCPA") enforcement has made headlines of late, with three articles in the Wall Street Journal alone during the week of April 12th. Numerous multi-million dollar settlements and indictments of individuals demonstrate that no company with any international presence is beyond the reach of the statute.
By Anne B. Perry
A controversy with a more than 35 year life has finally been addressed by the US Court of Appeals for the Federal Circuit – and in a pro-contractor fashion. In its March 19, 2010 decision in ATK Thiokol, Inc. vs. United States, Fed. Cir. No. 2009-5036 (3/19/10), the Court of Appeals, in affirming the Court of Federal Claims decision from 2005, determined that research and development costs not specifically required by a contract may be treated as Independent Research and Development ("IR&D") under FAR 31.205-18. While this might seem a fairly unremarkable holding, and one consistent with reason, sound procurement policy, and a harmonious reading of the relevant regulations, the Government has for years taken the contrary view that costs of implicitly required development cannot be treated as IR&D. And, as a result, those contractors who treated such costs as IR&D have been treated to cost disallowances, citations for CAS non-compliance, and even accusations of fraud.
By David S. Gallacher
On March 25, 2010, the Office of Management and Budget ("OMB") offered three small, yet significant, amendments to the rules implementing the "Buy American" requirement of the American Recovery and Reinvestment Act of 2009 (Section 1605 of the "Recovery Act" or "ARRA"). See 75 Fed. Reg. 14323. The new rules do liberalize the requirement – at least a little bit – allowing increased flexibility in delivering products from Canada and Taiwan under State or local construction projects funded by the Recovery Act. But be aware that these new amendments are prospective – if you already have a contract funded by the Recovery Act, you will more than likely need to modify your contract to take advantage of these new revisions (assuming you are able). If you are pursuing future business opportunities funded by the Recovery Act, then you may be able to take advantage of the new rules. Easy, right? Not exactly. If you have to deal with these issues in real life, your head is probably already spinning. Let's sit down and talk for a minute.
By Anne B. Perry and John S. Tobey
On March 15, 2010, the GAO determined that two Task Order Request for Proposals ("TORPs") to procure mentoring, training, and logistics support for the Afghan Ministry of the Interior and Afghan National Police were outside of the scope of a multiple-award indefinite delivery indefinite-quantity ('ID/IQ") contract for counter-narcoterrorism support services. DynCorp International LLC, B-402349.
By Townsend L. Bourne
In Precision Pine & Timber, Inc. v. United States, 2010 WL 569733 (C.A. Fed. 2010), the United States Court of Appeals for the Federal Circuit articulated an unexpected test for determining when a party to a contract has breached the implied duty of good faith and fair dealing.[1] The court in Precision Pine found that the U.S. Forest Service did not breach the implied duty of good faith and fair dealing owed to the contractor because the Forest Service’s actions “were (1) not ‘specifically targeted,’ and (2) did not reappropriate any ‘benefit’ guaranteed by the contracts.” This differs markedly from the objective “reasonableness” standard generally used by courts to analyze whether a party has breached the implied duty to cooperate and not to hinder contract performance.
By Curtis M. Dombek
On March 25, 2010, the Bureau of Industry and Security ("BIS") created three new Export Control Classification Numbers ("ECCNs") to control security equipment using specified types of millimeter wave technology, including related software and technology, for regional stability and anti-terrorist reasons. New ECCN 2A984 has been added to the Commerce Control List to control concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and having a spatial resolution of 0.5 milliradian up to and including 1 milliradian at a standoff distance of 100 meters. A Technical Note to the new ECCN indicates that the range of frequencies covered is what is generally referred to as the millimeter-wave, submillimeter-wave and terahertz frequency regions.
By Marko W. Kipa
On March 19, 2009, the FAR Councils issued a final rule providing for enhanced competition for task and delivery order contracts. See 75 Fed. Reg. 13416 (Mar. 19, 2009). The final rule was the culmination of a rulemaking process that surfaced in Section 843 of the National Defense Authorization Act of 2008, Pub. L. No. 110-181 (the "Act"), which went into effect on May 27, 2008. Subsequently, on September 17, 2008, the FAR Councils issued an interim rule with request for comments. See 73 Fed. Reg. 54008 (Sept. 17, 2008). The interim rule essentially mirrored Section 843 of the Act. Comments on the interim rule were submitted by industry and government representatives on November 17, 2008.
By Keith R. Szeliga
A debriefing can be a valuable opportunity on many levels: from learning how to write more successful proposals to identifying potential grounds for challenging an agency's evaluation and source selection decision. Based on our experience, the tips below generally help contractors to maximize the amount and value of the information obtained at a debriefing and to better position themselves for a potential bid protest.
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