2012 year in review
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2012 YEAR IN REVIEW. MAJ Alan Apple . Roadmap. Triumvirate Environmental, Inc. (GAO) “The key to keeping your balance is knowing when you've lost it.” –Unbalanced Pricing. ePlus Technology, Inc. v. Federal Communications Commission, (CBCA)

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2012 year in review

2012 YEAR IN REVIEW

MAJ Alan Apple

roadmap
Roadmap
  • Triumvirate Environmental, Inc. (GAO)
    • “The key to keeping your balance is knowing when you've lost it.” –Unbalanced Pricing.
  • ePlus Technology, Inc. v. Federal Communications Commission, (CBCA)
    • “Some people view litigation as an impasse.”- Claim imbedded in T4C Settlement.
  • D&M Grading, Inc., v. Department of Agriculture (CBCA)
    • “It’s hard to make bush hogging sound more sophisticated”- Differing Site Conditions.
  • Appeal of Laura K. McNew (PSBCA)
    • “Maybe momma was wrong: as long as everyone else breaks the rules, you can too. –Prevailing practice can excuse otherwise prohibited behavior and make it reasonable.
slide3
Triumvirate Environmental, Inc. (GAO)

Lesson Learned:

The key to keeping your balance is knowing when you've lost it.

triumvirate environmental inc
Triumvirate Environmental, Inc.

Protest challenging the VA’s price evaluation, technical evaluation, and trade-off decision

  • RFQ to establish a BPA for a General Services Admin. (GSA) Federal Supply Schedule (FSS) contract for hazardous waste removal services.
  • Non-price factors, when combined, “are significantly more important than price.”
  • Winning quote- $3.21 million. Triumvirate quote $2.18 million.
triumvirate environmental inc1
Triumvirate Environmental, Inc.

Why the extra $1.3 million?

  • Pricing was “highly unrealistic with fifteen line items being impossibly low ($5.00) or left blank.
  • Used historical usage knowledge to give unbalanced pricing.
triumvirate environmental inc2
Triumvirate Environmental, Inc.

Issue: Whether low quotations (multiple $5 line items) was an inherently high risk to the government supporting rejection of a quotation as unbalanced.

Rule-

  • Unbalanced pricing exists when one or more contract line items is significantly over or understated.
  • Agencies cannot reject an offer solely because it is unbalanced. They must: consider the risks to the government associated with the unbalanced pricing, including the risk that unbalancing will result in unreasonably high prices for contract performance.

Decision:

CO’s must reasonably identify any risk to the government inherent in low/unbalanced quotations.

slide7
Triumvirate Environmental, Inc. (GAO)

Lesson Learned:

The key to keeping your balance is knowing when you've lost it.

slide8
ePlus Technology, Inc. v. Federal Communications Commission

Lesson Learned:

Some people view litigation as an impasse.

eplus technology inc v federal communications commission
ePlus Technology, Inc. v. Federal Communications Commission

Purchase order for commercially available, common-off-the-shelf “thin clients” for $351,900 on 15 Sept. 2010

eplus technology inc v fcc
ePlus Technology, Inc. v. FCC
  • 29 September 2010- Termination for Convenience
  • 4 March 2011- ePlus hand-delivered a letter “FOR SETTLEMENT PURPOSES ONLY” which, ironically, also requested that the letter be considered as a “claim, as a matter of right, for payment”
  • 29 September ePlus filed appeal of the governments lack of response (deemed denial)
eplus technology inc vs fcc
ePlus Technology, Inc. vs. FCC
  • Govt. argues: lack of subject mater jurisdiction because appeal is not “ripe” for review. i.e. negotiations were not at an impasse.
  • Rule:
    • Contractor may submit a settlement proposal and claim together.
    • Once negotiations reach an impasse, it becomes a claim.
    • Whether an impasse has been reached may be determined by the parties actions and statements.
slide12
What could be an impasse:
  • When a contracting officer told a contractor that he would not consider the contractors proposal;
  • Where a contractor explicitly requested a final decision in conjunction with CO’s refusal to meet and negotiate;
  • Fruitless negotiations;
  • Written request to the CO that he “settle” the claims;
  • A “unilateral decision” by the contracting officer; and, of course;
  • No communications after 6 months and the contractor files an appeal of your deemed denial of his claim.
slide13
ePlus Technology, Inc. v. Federal Communications Commission

Lesson Learned:

Some people view litigation as an impasse.

slide14
D&M Grading, Inc. v. Department of Agriculture

Lesson Learned:

It’s hard to make bush hogging sound more sophisticated than it is.

d m grading v dept of agriculture
D&M Grading v. Dept. of Agriculture

An appeal of a Termination for Default on a roadway vegetation maintenance contract (i.e. brushing) contract.

d m grading v dept of agriculture1
D&M Grading v. Dept. of Agriculture
  • Contractor was to perform “brushing” over and along the roads.
    • Vegetation shall be removed to a max height of 6 inches above surface, trees larger than 6 inches are to remain, and all woody debris within the clearing limits shall be lopped and scattered outside clearing limits.
  • “Declined” to complete the contract: “never seen such neglected roads.”
  • Contractor claims site inaccessible due to snow-pack and differing site conditions.
d m grading v dept of agriculture2
D&M Grading v. Dept. of Agriculture

Issue: Whether a contractors decision to forgo a site visit and later encountering neglected roads represents a Differing Site Condition and provides a basis to shift contractor risk to the agency.

Type I DSC - actual conditions encountered differ materially from those represented within the contract.

Type II DSC- actual conditions encountered differ materially from conditions ordinarily encountered and generally recognized to exist in the area

Decision:“It is immaterial that the site was inaccessible at the time the contractor formulated its task order pricing; either on does not seek the award or one accounts for the unknown element in pricing.”

slide18
D&M Grading, Inc. v. Department of Agriculture

Lesson Learned:

It’s hard to make bush hogging sound more sophisticated than it is.

slide19
Appeal of Laura A. McNew

Lesson Learned:

Maybe momma was wrong: as long as everyone else breaks the rules, you can too.

appeal of laura k mcnew
Appeal of Laura K. McNew,

Appeal of a Contracting Officer’s final decision to terminate for default a mail transportation and delivery contract

  • T4D because she was not reliable, trustworthy, and of good character.
  • Using a $10 True Value coupon from the undeliverable bulk business mail (UBBM) container.
  • There was an established practice in the Post Office to allow UBBM use of promotional pens and items of nominal value.

Decision- Reasonable to for appellant to believe she could take and use coupon, therefore excusing her from “breach.”

lessons learned from the post office
Lessons Learned from the Post Office
  • A 2 inch knife is not a dangerous weapon (Appeal of Wayne L. Orr)
  • Threatening to jump through the phone and strangle a contract specialist in a profanity-laced diatribe doesn’t constitute an immediate threat of harm. (Lee Aron Van Dyke)
  • As long as everyone else is breaking the rules, maybe you can too. (Laura K. McNew)
slide22
Appeal of Laura A. McNew

Lesson Learned:

Maybe momma was wrong: as long as everyone else breaks the rules, you can too.

references
References
  • Triumvirate Environmental, Inc., Comp. Gen. B-406809 (September 5, 2012).
    • “The key to keeping your balance is knowing when you've lost it.” –Unbalanced Pricing.
  • ePlus Technology, Inc., v. Federal Communications Commission, CBCA 2573 (August 1, 2012).
    • “Some people view litigation as an impasse.”- Claim imbedded in T4C Settlement.
  • D&M Grading, Inc., v. Department of Agriculture, CBCA 2625 (April 24, 2012).
    • It’s hard to make bush hogging sound more sophisticated than it is. .”- Differing Site Conditions.
  • Appeal of Laura K. McNew, PBCA 6286 (April 23, 2012)
    • Maybe momma was wrong: as long as everyone else breaks the rules, you can too. Prevailing practice can excuse otherwise prohibited behavior and make it reasonable.
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