Alert
Alert
By John E. Jensen,
01.29.16
A review of various decisions from the past year suggests government contractors would do well to heed the wisdom of the ages in planning for the future.
As one year gives way to the next and time marches ever onward, government contractors may wish to take this time to reflect on their performance over the last year and resolve to make changes in 2016. To contribute to this conversation, we have tapped the age-old wisdom of popular adages to compile a list of resolutions to consider in preparing for the New Year.
1. Measure Twice, Cut Once: An Ounce of Prevention is Worth a Pound of Cure
This adage reminds us that it frequently is less costly to address issues at the outset than to attempt to remedy them later.
A recent decision of the U.S. Court of Appeals for the Federal Circuit illustrates the importance of this principle. Brisbin v. United States, 2015-5067 (Dec. 10, 2015), involved an appeal of a pro se plaintiff who sought to recover damages from the federal government for allegedly breaching a contract he held to perform road work in two national parks. After the government contracting officer denied his initial claim, Brisbin decided to appeal. Under the Contract Disputes Act, 41 U.S.C. § 7101, et seq., Brisbin had two choices: either he could appeal to the Civilian Board of Contract Appeals (“CBCA”) within 90 days or he could appeal to the U.S. Court of Federal Claims within 12 months. Unfortunately for Brisbin, he did neither, instead filing his appeal erroneously in U.S. federal district court, which lacked jurisdiction over his claim. By the time the district court dismissed his case and Brisbin attempted to re-file at the Court of Federal Claims, more than a year had passed, and Brisbin had missed the relevant statutory filing deadline. The Court of Federal Claims, thus, also dismissed his appeal as time-barred, and the Federal Circuit was compelled to affirm this decision.1
With a little additional forethought and planning, Brisbin could have sought the advice of counsel and filed in the proper jurisdiction from the outset, thus obviating Brisbin’s numerous filings and its ultimately unsuccessful appeal to the Federal Circuit. While the Brisbin case is a somewhat extreme example, confusion over the numerous filing deadlines and jurisdictional issues unique to federal procurement litigation is pervasive among contractors. Brisbin is far from the only contractor this year to suffer the draconian penalty of dismissal as a result of such confusion or otherwise miss an important deadline that prejudiced its case. A little bit of forbearance (and expert advice) would have averted these outcomes.
2. Mind the Small Things: The Devil is in the Details
Bad results arise out of inattention to detail. We acknowledge that this adage, and many of the others listed herein, may be applied to several of the examples we discuss. This should be no surprise, of course, because it is always good advice to be detail-oriented.
Indeed, in Federal Acquisition Services Alliant Joint Venture, B-411842.2 (Nov. 9, 2015), the U.S. Government Accountability Office (“GAO”) denied the bid protest of a contractor whose proposal was excluded from the competitive range for a $100 million task order award. One of the agency’s bases for excluding the protester from the competition was that its proposal was “riddled with grammatical errors . . . spelling errors; lack of acronym identification . . . and punctuation errors.” The protester argued that these factors were not identified in the solicitation as evaluation criteria. GAO disagreed, writing that offerors were “responsible for submitting a well-written proposal with adequately-detailed information.”2 A thorough proofread could have affected the outcome of this case.
3. Avoid Procrastination: The Early Bird Catches the Worm
Conventional wisdom dictates that it is better to act quickly and not to wait until tomorrow to do what can be done today. Whether resulting from confusion regarding the proper forum, as in the Brisbin case discussed above, or simple procrastination, delays in the context of federal procurement litigation are often fatal to contractors’ cases.
For example, in National Telecommuting Institute, Inc. v. United States, 15-293C (Oct. 28, 2015) the Court of Federal Claims dismissed a protest where the protester waited for six months after the adverse notice of award to file its protest because it alleged that it had attempted to negotiate with the agency directly before incurring the cost of litigation. Although there was no relevant statutory deadline for the protester to file its complaint, the Court invoked the common law legal doctrine of “laches,” which bars claims by would-be plaintiffs who unreasonably delay in pursuing those claims. As the Court stated: “a plaintiff cannot sit on his rights in bringing a bid protest while the Government moves forward with a contract.” Because both the government and awardee would be significantly prejudiced by the protester’s delay, the protest was simply too late.3
Estes Bros. Construction, Inc. v. Dept. of Transportation, CBCA 4963 (Nov. 17, 2015) is another case in which a contractor waited too long to enforce its rights and suffered the dismissal of its appeal. We mentioned earlier that the Contract Disputes Act requires contractors to file their appeals to a Board of Contract Appeals (here, the CBCA) within 90 days of receipt of a contracting officer’s final decision. In this case, the contractor filed its appeal at 4:35 p.m. on the 90th day. Unfortunately, the relevant regulations provide that close of business at the CBCA is 4:30 p.m. The CBCA, thus, dismissed the appeal for lack of jurisdiction because it was filed 5 minutes late. Harsh as this outcome may seem, one wonders why the contractor waited until the last moment to file.4
In sum, do not delay or “sit on your rights.” Discuss your litigation options with counsel at the outset, and leave yourself ample time to decide on and pursue a course of action.
Download: New Year’s Resolutions for Government Contractors