I.        Informational Items

1. Gordon R. England, Secretary Of The Navy v. The Swanson Group, Inc.Ê CAFC No. 03-1051, January 9, 2004.ÊÊ In a prior Contract Disputes Act (Act) proceeding the ASBCA converted Swanson's termination for default to a termination for convenience.Ê Swanson received the Boardâs decision on November 17, 1997, and on November 10, 1998, sent a letter requesting a one-year extension of time "to initiate the claim". The request for an extension was denied by the contracting officer,Ê but Swanson was told that the CO would consider any information submitted by Swanson while the CO was making a settlement determination. In a unilateral settlement determination issued on March 04, 1999, theÊ CO awarded Swanson $12,294 in settlement costs.Ê Swansonappealed that decision to the Board. The Board rejected the government's argument that Swanson had forfeited it right to appeal by failing to submit a termination settlement proposal within the one-year period established by FAR 52.249-2. The Board awarded Swanson a total of $278,076. The Navy appeals and argues for the first time

 

"...that because Swanson did not submit a claim, or a termination settlement proposal that could have ripened into a claim, prior to the contracting officer's settlement determination, the Act did not provide for an appeal of that determination."Ê

 

The CAFC agrees, and now reverses holding that the ASBCA did not have jurisdiction.Ê Swanson's appeal

 

"..was not authorized by the CDA because it was not an appeal from a contracting officer's final decision on a claim that Swanson had submitted. Accordingly, the Board did not have jurisdiction to adjudicate Swanson's appeal."

 

2. Hi-Shear Technology Corporation v. US, CAFC No. 03-5077, February 2, 2004.Ê CAFC affirms COFC's calculation of plaintiff's damages for the government's breach of requirements contracts caused by negligent estimated quantities. The court rejects plaintiff'sÊ "so-called" reliance damages argument finding that what plaintiff is trying to collect its total costs under the requirement contracts. Noting that although such costs may be available under a termination for convenience, that was not the case here.

 

3. Alaska Pulp Corporation, Inc. v. US, COFC NO. 95-153C, January 28, 2004.Ê Forest Service contract. Damages decision. Court had earlier held that the government had breached this 50-year timber sales contract when it implemented the Tongass Timber Reform Act. In this opinion Judge Baskir concludes that plaintiff is entitled to no damages and rejects all of plaintiff's damages theories, which range from several hundred million dollars to $8.7 billion.Ê A very interesting factual case involving post-war relations with Japan and this contract which was critical to Japan's production of rayon.Ê Although many damage theories are discussed, the undeniable element was the fact that plaintiff's contract was a losing contract at the time of the breach.

 

4. BAE Systems Technical Services, Inc., B-293070, January 28, 2004.Ê In competition conducted pursuant to Office of Management and Budget Circular A-76, where in-house cost estimate (ãIHCEä) for performance by the government's most efficient organization (ãMEOä) fails to include costs for various performance work statement (ãPWSä) requirements, and the additional costs required for the MEO to meet all PWS requirements are greater than the marginal difference between the protester's evaluated cost and the IHCE, General Accounting Office recommends that agency award a contract to the protester based on its lower-cost proposal.

 

5. Data Enterprises Of The Northwest, GSBCA No. 15607, February 17, 2004 (Issued under protective order on February 4, 2004).Ê The GSBCA finds that the government breached appellantâs contracts by wrongfully disclosing proprietary data delivered with commercial software in which the government only had restricted rights.Ê The Board uses a jury verdict to award damages, primarily based on lost profits.Ê The Board dismisses for lack of jurisdiction those portions of appellantâs claims based on copyright infringement and Fifth Amendment takings.

 

6. Some DOD Contractors Abuse the Federal Tax System with Little Consequence, GAO Report 04-095, February 12, 2004.Ê DOD and IRS records showed that over 27,000 contractors owed about $3 billion in unpaid taxes as of September 30, 2002. DOD has not fully implemented provisions of the Debt Collection Improvement Act of 1996 that would assist IRS in levying up to 15 percent of each contract payment to offset a DOD contractor's federal tax debt. We estimate that DOD could have collected at least $100 million in fiscal year 2002 had it and IRS fully utilized the levy process authorized by the Taxpayer Relief Act of 1997. As of September 2003, DOD had collected only about $687,000 in part because DOD provides contractor payment information from only 1 of its 16 payment systems to TOP. DOD had no formal plans at the completion of our work to provide payment information from its other 15 payment systems to TOP.

 

II.     Regulatory Developments

 

A.     FAR Case 2000-305, Commercially Available Off-the-Shelf (COTS) Items; Proposed Rule, 69 FR 2447, January 15, 2004.Ê The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are soliciting comments regarding the implementation of section 4203 of the Clinger-Cohen Act of 1996, 41 U.S.C. 431 (the Act) with respect to Commercially Available Off-the-Shelf Item acquisitions.Ê The Act requires the Federal Acquisition Regulation (FAR) list certain provisions of law that are inapplicable to contracts for acquisitions of commercially available off-the-shelf items. The Act excludes section 15 of the Small Business Act and bid protest procedures from the list.Ê The list of inapplicable statutes cannot include a provision of law that provides for criminal or civil penalties.Ê Interested parties should submit comments in writing on or before March 15, 2004 to be considered in the formulation of a final rule.

B.     FAR Case 2001-021, Training And Education Cost Principle; Proposed Rule, 69 FR 4436, January 29, 2004.Ê DOD, GSA and NASA are proposing to amend the Federal Acquisition Regulation ãTraining and education costsä cost principle.Ê In order to meet the deadline for comments of March 29, 2004, draft comments from the Committee, if any, should be made by March 12, 2004.ÊÊ

C.     DFARS Case 2003-D036, Cost Principles And Procedures; Proposed rule, 69 FR 8154, February 23, 2004.Ê DOD is proposing a rule to amend the DFARS to update text regarding contract cost principles.Ê This proposed rule is a result of a transformation initiative undertaken by DOD to dramatically change the purpose and content of the DFARS.Ê In order to meet the deadline for comments of April 23, 2004, draft comments from the Committee, if any, should be made by April 7, 2004.

D.     DFARS Case 2003-D030, Major Systems Acquisition; Proposed rule, 69 FR 8155, February 23, 2004.Ê DOD is proposing a rule to amend the DFARS to update text relating to major systems acquisition, earned value management systems, and cost/schedule status reporting.Ê In order to meet the deadline for comments of April 23, 2004, draft comments from the Committee, if any, should be made by April 7, 2004.

 

 

 

The next meeting will be on Tuesday April 13, 2004.