INTERPRETING CONTRACTUAL LANGUAGE

We've written often about the rules of contract interpretation.  Recently, the Armed Services Board of Contract Appeals (ASBCA) addressed again these important rules.  See Space Gateway Support, LLC, ASBCA No. 56592, January 30, 2012.  In a cost allowability case, Judge Ting was asked to look at the word "use" in the context of a contractual provision providing that use of accrued sick leave encompasses any permissible use of regular sick leave or reserve sick leave.  (The opinion also reminds us that the government bears the burden of establishing that a cost is unallowable by operation of a specific contract provision.) 

In the interpretation of contractual language, the Court of Appeals for the Federal Circuit (COFC) begins with the plain meaning of the language.  The COFC will "give the words of the agreement their ordinary meaning unless the parties mutually intended and agreed to an alternate meaning."  This rule essentially says look it up in the dictionary unless the parties reached an agreement to change that meaning.  The COFC also says it must interpret the contract so as to give meaning to all provisions.  The court tries to make sense of the language in the complete context of the entire contract.

Moreover, the COFC has said "interpretative tools such as dictionaries are frequently used by courts to determine the meaning of a document's phrase or provision."  In Space Gateway Support, LLC, Judge Ting used the dictionary to define the word "use".

In our experience, we have seen the government often take words and phrases out of context, sometimes ignoring the plain meaning and frequently forcing an interpretation which does not make sense when the contract is viewed as a whole.  This is just another clarion call for sticking to the rules.  Begin with the plain meaning and interpret the contract in a manner that gives meaning to all of the contract provisions and makes sense.

In addition to this blog site, see all our blogs at http://scs.mymediaroom.com/blog/.

bill@spriggslawgroup.com

Making Adjustments

As the volume of the markets falls, some adjustments are appropriate.


In the case of the ES, dropping the range bars to 0.75 points is one of the adjustments that can be made. I bear in mind that I am looking to identify the trend and trade the pullback to that trend.


As you can see from the ES chart below, there's still money to be made in the ES but not as much as before unless I increase size and go for tighter targets. Some people like the rhythm of the ES and the speed with which it trades. Others want more volatility and would move to a different market.

Ladies: Takin' Care of Business

Being that I have the post the day before Valentine’s Day, you’d think it would be the perfect opportunity to come up with something very lovey dovey. Well, I’m not that kind of girl. Today we’re gonna talk all about ladies. Yeah, that’s right. Strong ladies.

I was recently introduced to a show on PBS called Downton Abbey. While there are many reasons to watch it, as it’s a great show, I came away from it thinking about women and our roles in society. The three sisters on the show, Mary, Edith, and Sybil Crawley, are coming of age in England in 1912. Their struggles on the show, while fictional, are a very important reminder to women.


I think we as women often forget that for our mothers, grandmothers, and great grandmothers, the world was a very different place. The Crawley sisters really were not given the credit or the options of doing anything for themselves. If anything, their main value is what they can bring their families by marrying well. Their parents are pretty much parading them in front of every wealthy man in the country. A little further into the show, I was happy to see the girls start to find their way and become a little more independent.


My readers seem to appreciate my approach to the strong female characters. My fictional ladies know what they want, are independent, confident, and don’t have to rely on men, or anyone else, for the most part. I think many of The Indelibles can claim the same regarding their female characters. That's not to say they don't have fierce love for their family and friends. It's important to be balanced!


Here are a few other strong female characters that I admire:


Hermione Granger/Harry Potter Series: She’s a true bookworm, but is proud of her intelligence and uses it to help others. While sometimes hard on herself for breaking rules, as she gets older, she gets a little less cautious and more adventurous, as we all know.

Katniss Everdeen/The Hunger Games: Katniss is the ultimate bad ass. She hunts and takes care of her family and is brave to boot. How many girls do you know that would volunteer to join a death match?







Emer Morrisey/The Dust of 100 Dogs: She’s a reincarnated pirate on the hunt for her long lost treasure. Emer knows how to protect herself. Be sure to hide your swords.

















Kendra Sorenson/Fablehaven Series: She has some special fairy-given gifts that give her powers some extra kick. Kendra isn’t afraid to get down and dirty and fight off gross demon baddies.








So Happy Valentine's Day to all my strong ladies out there!




~Karly

JUDGE STOPS MARINE CORPS PROCUREMENT

Judge Christine Miller of the Court of Federal Claims (COFC) has issued an injunction stopping performance on a Marine Corps Systems Command (MCSC) best value contract for tactical fuel and water systems.  She agree with the protester's argument the awardee made a material misrepresentation in its proposal that a certain firm was a subcontractor and that MCSC relied on this misrepresentation in its evaluation of past performance.  Under the facts in this case, Judge Miller determined the interests of national defense and national security did not prevail over upholding the integrity of the procurement process to redress a material misrepresentation.

After carefully reviewing the evidence, Judge Miller found that the successful awardee made a material misrepresentation listing a supplier, with which it had teamed, as a subcontractor and listed that supplier as part of its past performance presentation.  The court also found that MCSC's evaluation showed MCSC relied on the misrepresentation in evaluating the successful awardee's past performance.  All of this, said the court, was prejudicial to the protester.  The court relied on precedent establishing the rule that any misstatement which materially influences how a proposal is evaluated should disqualify the proposal.  "The integrity of the system demands no less.  Any further consideration of the proposal in these circumstances would provoke suspicion and mistrust and reduce confidence in the competitive procurement system."

Judge Miller ordered the Marine Corps Systems Command, its officers, agents, employees and all other connected persons not to proceed with the performance of the contract and she ordered the contracting officer to direct the contractor to cease performance under the contract.

There are a number of lessons here.  You can get relief in bid protest cases.  There are consequences for misrepresenting your intentions in a proposal.  Bait and switch by contractors can be found out and punished.  Courts can order the government to stop performance on an awarded contact and to redo a procurement.

We host bid protest seminars and webinars.  See our listing of courses at www.spriggsconsultingservices.com.  Catch up on all our past blogs at http://scs.mymediaroom.com/blog/. 

bill@spriggslawgroup.com

SMALL BUSINESS PLAN REJECTION IMPROPER

In a recent case, GAO decided the rejection of a contractor's small business plan was improper because the requirement for an acceptable small business plan really was a matter of the contractor's  responsibility which is to be determined from information received up to the time of award.  The Navy had rejected the contractor's offer based on the inadequacy of the plan.  GAO sustained the protest and recommended the contractor's proposal be evaluated for award and that the plan be used only to determine the contractor's responsibility.  As is always the case in a sustained protest, GAO went on to find that the contractor is entitled to the costs of pursuing the protest, including reasonable attorney fees.  See MANCON, B-405663, February 9, 2012.

MANCON argued that the small business subcontracting plan evaluation factor was pass/fail and therefore a matter of responsibility and not for evaluation of its technical acceptability.  GAO agreed.  The rule is the requirement for an acceptable plan is applicable to the "apparently successful offeror".   This rule applies even where the RFP requires submission of the plan with the offer.  Moreover, in this case, the plans were evaluated on a pass/fail basis and therefore, says GAO, "the agency's evaluation of those plans concern an offeror's responsibility."

Responsibility is to be determined based on information received by the agency up to the time award is to be made.  It is axiomatic that the contracting officer has broad discretion in determining a contractor's responsibility.  Accordingly, GAO generally will not question the determination unless it is made unreasonably.

GAO also determined that the Navy erred in its belief that further exchanges with MANCON concerning its subcontracting plan would constitute discussions requiring that discussions be opened with all offerors.  "We have found that where acceptability of a small business subcontracting plan is a responsibility issue, exchanges between the agency and an offeror concerning such plans are not discussions."  This makes sense.  And while we are at it, this rule is not rocket science.  The case illustrates the Navy contracting officer's lack of fundamental understanding of the regulations to say nothing of the failure to communicate with the contractor.

This case is just another poignant reminder to study the regulations and read the cases.  It also is another example of how protests protect the integrity of the procurement process and can cost you nothing if you are right.

Catch up on all our past blogs at http://scs.mymediaroom.com/blog/.

bill@spriggslawgroup.com

ANNOUNCING FORMATION OF SPRIGGS LAW GROUP

Small, veteran owned government contract management firm, Spriggs Consulting Services, announces the formation of the Spriggs Law Group to emphasize its service to clients in the practice of law before federal agencies and tribunals.  Bill Spriggs, the firm's Principal, says "our business model is to serve government contractors by solving their procurement related problems and help them be sure they comply with all federal procurement laws so as to avoid problems.  We specialize in problem solving and dispute avoidance.  However, not all disputes can be avoided, so we are creating the Spriggs Law Group to handle federal procurement litigation."

Spriggs has practiced law in DC since 1972.  After law school, he joined the Marine Corps where he defended Marines in Courts Martial.  He then joined The Boeing Company followed by Martin Marietta (now Lockheed Martin) as staff counsel handling federal government procurement disputes.  Through the years he has handled numerous cases before the Court of Federal Claims, the Armed Services Board of Contract Appeals and the Government Accountability Office.  Based on his extensive litigation experience and knowledge of the contract management function, he established Spriggs Consulting Services in January 2011 emphasizing dispute avoidance, contract and regulatory compliance and resolution of disputes through negotiation and mediation.

However, Spriggs found litigation is in his blood and try as he might, he could not resolve all problems, such as claims and protests, short of litigation.  "Contractors need an experienced attorney on their side when encountering problems such as losing money on a contract or subcontract or losing a bid they feel they should have won."  Bill knows the federal government contract litigation tribunals as well as anyone and he has been appearing before them since 1968.  "You can't beat that kind of experience," he says.  "Moreover, I'm now positioned to offer services to small and medium sized clients with flexible pricing consistent with their budgets."

Spriggs Consulting services continues, emphasizing government contract and subcontract compliance reviews and audits, claim preparation, solicitation and proposal reviews and dispute avoidance and resolution.  The Spriggs Law Group handles claims, protests, disputes and appeals before all federal tribunals.  See www.spriggsconsultingservices.com and www.spriggslawgroup.com.

Catch up on all our past blog posts at http://scs.mymediaroom.com/blog/.

bill@spriggslawgroup.com

Quality and Affordability Concerns in Contemporary Education

Education is one of the most important institutions ever created by man. It determines the wealth and prosperity of any society. Even in the medieval time, there was apprenticeship and that was a form of education. But the modern style of education goes beyond followership to helping students become creators of knowledge. In other words, it transforms students from becoming 'recipients' of education to 'users' of education as they partake in the process.

Nothing changes a society or a nation than education. I always say that education is simply the liberation of the mind. It opens the mind to new possibilities and frees it from dogmas and destructive norms. It will remain a popular institution because it is the only institution that holds the key to the future.

Notwithstanding, many students are concerned on the quality and affordability of their education in the contemporary time. According to many government statistics, many schools have or intend to increase tuitions to offset budget cuts by federal, state or local governments. This is most prominent in the state of California where there are deep budget cuts across the university system.

But it does not end in budget cuts. In most US states and nations, students have to pay more as the schools are increasing tuition, even though they are reducing some services. Under this scenario, these students are concerned that they are not getting the best under historical benchmarks. In general, the students graduate with more debts and are forced to do so despite having fewer available courses to choose from as most schools are cutting staff.

From the debt-ridden states to private institutions in the United States, university education has become increasingly expensive. Unfortunately, that higher tuition does not positively correlate with higher earning power after graduation. So, most US students spend more to get diplomas that reward lesser because of the 'devaluation' through globalization. This is one area demand and supply comes into play. With more jobs outsourced, the students have to compete with fewer under this difficult job market. The higher supply than demand depresses wage which does not work for the students.

For schools in most developing economies, tuition is also rising and unemployment is also high since the rate of job creation lags the graduation rates. But for most of them, there is no problem of debt since education is mostly pay-as-you-go and there is minimal option of government or bank loan. Yet, they are concerned over quality and affordability since the generation that studied about fifty years ago received better education at lower cost, if any, than what they get today, especially in primary education.

Even at tertiary level, when these nations had one or two universities, they funded them very well. Now, those schools have to compete for funds with more than fifty other schools. In Nigeria, for example, the number of government owned tertiary institutions has gone from say ten to more than two hundred within half a century. This pushes tuition since government is not providing much help to all the schools. The whole system forces the schools to admit more students because of budget issues thereby creating chaos where most students complain of large class sizes. Quality is low, yet it is not affordable.