2012 YEAR IN REVIEW

1. 2012 YEAR IN REVIEW MAJ Alan Apple

2. 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.

3. Triumvirate Environmental, Inc. (GAO) Lesson Learned: The key to keeping your balance is knowing when you've lost it.

4. 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.

5. 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.

6. 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.

7. Triumvirate Environmental, Inc. (GAO) Lesson Learned: The key to keeping your balance is knowing when you've lost it.

8. ePlus Technology, Inc. v. Federal Communications Commission Lesson Learned: Some people view litigation as an impasse.

9. 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

10. 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)

11. 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.

12. 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.

13. ePlus Technology, Inc. v. Federal Communications Commission Lesson Learned: Some people view litigation as an impasse.

14. D&M Grading, Inc. v. Department of Agriculture Lesson Learned: It’s hard to make bush hogging sound more sophisticated than it is.

15. D&M Grading v. Dept. of Agriculture An appeal of a Termination for Default on a roadway vegetation maintenance contract (i.e. brushing) contract.

16. 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.

17. 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.”

18. D&M Grading, Inc. v. Department of Agriculture Lesson Learned: It’s hard to make bush hogging sound more sophisticated than it is.

19. Appeal of Laura A. McNew Lesson Learned: Maybe momma was wrong: as long as everyone else breaks the rules, you can too.

20. 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.”

21. 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)

22. Appeal of Laura A. McNew Lesson Learned: Maybe momma was wrong: as long as everyone else breaks the rules, you can too.

23. 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.

24. Government Acquisitions

25. Government Acquisitions

26. The Early Stages

27. The Fiscal and Contracting Process& Commitment and Obligation

28. Commitment and Obligation

29. The Fiscal and Contracting Process & Changes to Obligations

30. Contract Performance

32. Questions