Procurement & Claims Plans for Federal Construction Contractors

Procurement & Claims Regarding Federal Construction Contracts

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Finch, Thornton & Baird, LLP represents federal construction contractors, equipment suppliers, and manufacturers in all aspects of federal construction projects, from solicitation through performance, and following completion. Clients with federal construction claims have been at the core of the firm’s practice since its inception in 1987. Our San Diego attorneys advise clients on structuring teaming and joint venture agreements, negotiating subcontracts and bond accommodation agreements, and compliance with the requirements of the Federal Acquisition Regulations (FAR), the American Recovery And Reinvestment Act (ARRA), the Buy American Act, the Small Business Administration (SBA), the Office of Federal Contracts Compliance Programs (OFFCCP), and both the Wage and Hour Division and the Occupational Safety and Health Administration Division of the Department of Labor.

We help clients win projects through bid protests, and we help clients maximize their profits on federal projects through aggressive and cost effective presentation, negotiation, and litigation of claims and disputes.

Services we provide regarding federal construction contracts include:

  • SBA Size And Status Compliance And Protests
  • GAO And Court Of Federal Claims (COFC) Bid Protests
  • Change Orders And Contract Modifications
  • Requests For Equitable Adjustment (REA)
  • Formation And Certification Of Women Owned Small Business, HUBZone Small Business, Veteran Owned Small Business, And 8(a) Small Business And Disadvantaged Business Enterprises
  • Miller Act Bond Claims
  • Contract Termination
  • Civilian Board Of Contract Appeals (formerly GSBCA) And Armed Services Board of Contract Appeals
  • U.S. Court Of Federal Claims
  • Compliance

Published Federal Procurement & Claims Decisions

Groundbreaking GAO Protest of Department of Veterans’ Affairs Solicitation GAO File No. B-406024.4 (August 22, 2012)

2012: The firm successfully protested to the GAO the VA's award of a $23 million solar project in Las Vegas to R.E.M. Construction Co. The project was to be awarded by the VA on the basis of price and technical considerations deemed most advantageous to the government. After the firm's client, SPINT, submitted the second lowest priced proposal, the VA awarded the project to R.E.M., with a higher priced proposal than SPINT, ostensibly because of R.E.M.'s superior technical rating. In the fall of 2011, the firm protested the award arguing the VA improperly evaluated SPINT's technical proposal. The VA took immediate corrective action and re-evaluated the proposals. After the VA's re-evaluation, the project was again awarded to R.E.M in March 2012. At that time, the VA failed to notify SPINT of the re-award and also did not post notice of the re-award on FedBizOpps. After SPINT received word of the re-ward to R.E.M. in May 2012, it requested a debriefing from the VA, which the VA refused to provide. The firm then protested the re-award, once again challenging the VA's evaluation of SPINT's proposal. In response, the VA filed a motion to dismiss, arguing that SPINT was notified of the re-award via e-mail in March 2012, and therefore its protest two months later was untimely. The firm defeated the motion to dismiss with a novel argument of the sufficiency of electronic notice, and then eventually supplemented its protest to challenge the VA's utter failure to conduct a tradeoff analysis of all of the responsive proposals, as is required by the Federal Acquisition Regulations. In a published decision, the GAO determined that the VA unreasonably evaluated SPINT's proposal and fundamentally failed to perform a best-value tradeoff analysis. Accordingly, the GAO recommended that the VA re-evaluate all of the proposals, properly document its evaluation, perform a proper tradeoff analysis, and reimburse SPINT for the fees it incurred pursuing the protest. A copy of the published decision can be viewed here.

Counsel: David S. Demian and Christopher R. Sillari

Representative Federal Procurement & Claims Experience

GAO Protest of Department of the Army’s Solicitation GAO File No. B-407457

The firm successfully protested the Army’s decision to exclude the firm’s client from consideration of the award of construction of a Wing Operations and Training Facility at Beale AFB. The protest was filed with the GAO prior to the award to challenge the Army’s determination that because the proposal submitted by the firm’s client did not properly acknowledge all of the amendments, the proposal could not be evaluated. The firm presented a compelling legal and factual argument to the GAO that deficiencies in the proposal were clerical in nature, and therefore the Army had breached its duty to the firm’s client pursuant to FAR 14.407-1 to clarify its proposal. Upon being confronted with this argument, the Army took corrective action and agreed to evaluate the proposal. This result was accomplished by the firm pursuant to a flat fee arrangement with the client to assure a cost-effective result.

Counsel: David S. Demian and Christopher R. Sillari

Groundbreaking GAO Protest of Department of Veterans’ Affairs Solicitation GAO File No. B-406024.4

The firm successfully protested to the GAO the VA's award of a $23 million solar project in Las Vegas to R.E.M. Construction Co. The project was to be awarded by the VA on the basis of price and technical considerations deemed most advantageous to the government. After the firm's client, SPINT, submitted the second lowest priced proposal, the VA awarded the project to R.E.M., with a higher priced proposal than SPINT, ostensibly because of R.E.M.'s superior technical rating. In the fall of 2011, the firm protested the award arguing the VA improperly evaluated SPINT's technical proposal. The VA took immediate corrective action and re-evaluated the proposals. After the VA's re-evaluation, the project was again awarded to R.E.M in March 2012. At that time, the VA failed to notify SPINT of the re-award and also did not post notice of the re-award on FedBizOpps. After SPINT received word of the re-ward to R.E.M. in May 2012, it requested a debriefing from the VA, which the VA refused to provide. The firm then protested the re-award, once again challenging the VA's evaluation of SPINT's proposal. In response, the VA filed a motion to dismiss, arguing that SPINT was notified of the re-award via e-mail in March 2012, and therefore its protest two months later was untimely. The firm defeated the motion to dismiss with a novel argument of the sufficiency of electronic notice, and then eventually supplemented its protest to challenge the VA's utter failure to conduct a tradeoff analysis of all of the responsive proposals, as is required by the Federal Acquisition Regulations. In a published decision, the GAO determined that the VA unreasonably evaluated SPINT's proposal and fundamentally failed to perform a best-value tradeoff analysis. Accordingly, the GAO recommended that the VA re-evaluate all of the proposals, properly document its evaluation, perform a proper tradeoff analysis, and reimburse SPINT for the fees it incurred pursuing the protest. A copy of the published decision can be viewed here.

Counsel: David S. Demian and Christopher R. Sillari

GAO Protest of Department of Veterans’ Affairs Solicitation GAO File No. B-407092

The firm successfully protested the VA’s solicitation for the upgrade and renovations at the VA Greater Los Angeles Healthcare System before the GAO. Since early 2006, the VA has been incorporating Information Letter (IL) 049-06-4 into all of its solicitations. However, this IL conflicts with the Veterans First Contracting Program enacted in December 2006. The firm challenged the inclusion of the IL on this Los Angeles project, arguing that the IL jeopardized open and fair competition, and discouraged participation by legitimate veteran owned small businesses. Promptly following receipt of the firm’s protest, the VA took corrective action by cancelling the solicitation so that the project could be re-solicited without reference to the conflicting and superseded information letter. SDVOSB and VOSB enterprises should consult with legal counsel with any questions as to the VA’s implementation of these important programs which must be protected for the benefit of our veterans.

Counsel: David S. Demian and Christopher R. Sillari

SBA Office of Hearings and Appeals (“OHA”) – Appeal of Size Determination

The firm successfully represented the client before the Small Business Administration’s Office of Hearings and Appeals in the appeal of an adverse SBA Size Determination. The SBA, through a Size Determination, held the firm’s client was not a small business due to affiliation with its 8(a) Mentor, alleging the firm’s client had violated the “3-2 Rule” and was economically dependent upon its Mentor. OHA considered the compelling factual evidence and legal argument made by the firm and reversed the SBA’s Size Determination, holding the firm’s client is a small business under the applicable NAICS code. This victory allows the firm’s client to pursue small business set aside contracts, which it would otherwise have been precluded from pursuing had the Size Determination remained in place.

Counsel: David S. Demian

Bid Protest – Army Corps of Engineers

The firm represented a large prime contractor specializing in Federal work in a bid protest against the Army Corps. of Engineers. The protest, on a proposal for $500 million worth of work on various Federal Installations, was based on the Army Corps’ improper rejection of a submittal in violation of its own specifications and applicable law. The firm prepared a bid protest and provided supporting cases and analysis to support the bid protest and discussions, ultimately resulting in the acceptance of the contractor’s submittal.

Counsel: David S. Demian and Nowell A. Lantz

Architectural Aluminum Window Systems, Inc. v. Dick Pacific Construction Co., Ltd. Armed Services Board of Contract Appeals No. 57172; United States District Court, District of Hawaii Civil No. 07-00603 DAE LEK

The firm’s client was a window subcontractor on a federal project at Schofield Barracks, Hawaii. As one of the first federal projects to be bid in the aftermath of September 11, 2001, disputes arose over who was responsible for the enhanced blast requirements. Upon completion of its work, the firm’s client pursued change order and contract balance claims against the general contractor and the Army. After reserving its client’s Miller Act claim, the firm pursued a certified pass-through claim to the Army. Approximately fifty percent of the certified claim was paid after the parties engaged in informal discussions. The remainder of the certified claim was denied and the firm then appealed the contracting officer’s decision to the Armed Services Board of Contract Appeals. Under ASBCA guidelines, the parties engaged in mediation and the firm’s client reached a negotiated settlement with the Army on the appealed claims. The firm’s client subsequently reached a negotiated settlement with the general contractor on the contract balance.

Counsel: Jeffrey B. Baird and Christopher R. Sillari

Government Accountability Office ("GAO") Protest

The firm successfully protested the award of a $30,000,000 firm-fixed-price indefinite-delivery/indefinite-quantity contract before the Government Accountability Office ("GAO") for construction and repair services for facilities and structures at Fort Leavenworth, Kansas. The procuring agency took corrective action upon reviewing the comprehensive protest submission, re-evaluated the offers, and the firm's client was awarded the $30,000,000 contract.

Counsel: David S. Demian

Acquisition Of SBA Small Business Federal Construction Contractor

Structured and negotiated acquisition of SBA small business federal construction company, including related debt financing, security agreements, and federal approvals for transition of existing federal contracts to the firm's client.

Counsel: David S. Demian

Government Accountability Office ("GAO") Protest

The firm successfully protested the award of a GSA IDIQ contract for construction and related services. The solicitation provided for the award of multiple contracts to offerors for performance of work in multiple tiers and geographic zones. The GSA determined not to award a contract to the firm's client. The procuring agency took corrective action upon reviewing the comprehensive protest submission, re-evaluated the offers, and the firm's client was awarded the contract.

Counsel: David S. Demian

Small Business Administration ("SBA") Size Protest

The firm advised its client as to the structuring of an 8(a) joint venture to pursue an 8(a) sole source set aside project for the United States Department of Air Force. The award was protested to the SBA by an unsuccessful offeror. The firm defended the award on behalf of its client and the protesting party voluntarily withdrew its protest.

Counsel: David S. Demian

Government Accountability Office ("GAO") Protest

The firm successfully protested the award of a United States Department of Air Force $45,000,000 Indefinite Delivery, Indefinite Quantity (IDIQ), SABER, construction contract. Following submission of the firm's protest the Contracting Agency filed a motion to dismiss with GAO which was unsuccessful. The parties participated in outcome prediction ADR, after which the Contracting Agency took corrective action. Following the re-evaluation of proposals, the firm's client was awarded the $45,000,000 contract.

Counsel: David S. Demian