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2009 Year-in-Review - PowerPoint PPT Presentation


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2009 Year-in-Review. Breakout Session # 206 Names: Seth Berenzweig, Terrence O’Connor ALBO & OBLON, LLP, Arlington, VA Date: July 19, 2010 Time: 2:30-3:45. 1. How did we pick them? Other sources of Year-in-Review material. Cases, Laws, Regulations. Releases Unsigned delivery order

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2009 Year-in-Review


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2009 year in review
2009 Year-in-Review

Breakout Session # 206

Names: Seth Berenzweig, Terrence O’Connor

ALBO & OBLON, LLP, Arlington, VA

Date: July 19, 2010

Time: 2:30-3:45

1

cases laws regulations
How did we pick them?

Other sources of Year-in-Review material

Cases, Laws, Regulations
1 rigid approach to contract interpretation
Releases

Unsigned delivery order

COR Can Bind Contracting Officer

1. Rigid approach to contract interpretation
2 narrow definition of procurement
CFC protest jurisdiction:

a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.”

2. Narrow definition of “procurement”
2 narrow definition of procurement2
“Or” used 6 times: Protest of solicitation for bids

or proposals for a proposed contract

or to a proposed award

or the award of a contract

or any alleged violation of statute

or regulation in connection with a procurement

or a proposed procurement

2. Narrow definition of “procurement”
2 narrow definition of procurement3
Pencils-

A procurement

Grant applications

Not a procurement

Leasing out Government land

Not a procurement

2. Narrow definition of “procurement”
3 narrow definition of good faith and fair dealing
Government violates this duty if its conduct is a “bait and switch”:

Government awards a benefit

But then specifically targets the contractor to re-appropriate that benefit

3. Narrow definition of “good faith and fair dealing”
4 past performance
Bad evaluations as claims

GAO study: past performance process needs to be improved

4. Past Performance
6 false claims act
Amendments widen the Act’s coverage

False Claim costs contractor millions

Whistleblowers win millions

6. False Claims Act
7 organizational conflicts of interest
Biased ground rules

Unequal access to information

Impaired objectivity

7. Organizational Conflicts of Interest
8 contract modifications
8. Contract Modifications
  • Without consideration, mod is not binding.
  • Profit on mod not tied to profit on contract being modified
9 commercial items termination for convenience
Two elements:

The percentage of the contract price which reflects the percentage of the work performed and

The reasonable charges contractor can demonstrate … have resulted from the termination

9. Commercial Items Termination for Convenience
10 immunity from lawsuit
10. Immunity from lawsuit
  • Cabinet-level officials
  • Contractor employees in warzones
  • Government contractor responding to Government inquiry
11 small business program priorities
11. Small business program priorities
  • Parity or Priority?
    • the continuing controversy
  • Women-owned small businesses
12 other legal developments
12. Other Legal Developments
  • Employment Law
  • Business Law
  • Litigation Matters
  • Strategic Considerations
the end
The End

Thank-you for your attention!!