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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. 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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  1. 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

  2. How did we pick them? Other sources of Year-in-Review material Cases, Laws, Regulations

  3. Releases Unsigned delivery order COR Can Bind Contracting Officer 1. Rigid approach to contract interpretation

  4. 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”

  5. What does the phrase “in connection with a procurement or a proposed procurement” modify? 2. Narrow definition of “procurement”

  6. “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”

  7. Pencils- A procurement Grant applications Not a procurement Leasing out Government land Not a procurement 2. Narrow definition of “procurement”

  8. 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”

  9. Bad evaluations as claims GAO study: past performance process needs to be improved 4. Past Performance

  10. Claim or protest? Usually a claim Might be a protest 5. Denial of fair opportunity to compete

  11. Amendments widen the Act’s coverage False Claim costs contractor millions Whistleblowers win millions 6. False Claims Act

  12. Biased ground rules Unequal access to information Impaired objectivity 7. Organizational Conflicts of Interest

  13. 8. Contract Modifications • Without consideration, mod is not binding. • Profit on mod not tied to profit on contract being modified

  14. 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

  15. 10. Immunity from lawsuit • Cabinet-level officials • Contractor employees in warzones • Government contractor responding to Government inquiry

  16. 11. Small business program priorities • Parity or Priority? • the continuing controversy • Women-owned small businesses

  17. 12. Other Legal Developments • Employment Law • Business Law • Litigation Matters • Strategic Considerations

  18. The End Thank-you for your attention!!

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