Richard P. Rector DLA Piper LLP Kevin P. Mullen Cooley Godward Kronish LLP

Transcription

1 Reprinted from West Government Contracts Year In Review Conference Covering 2008 Conference Briefs, with permission of Thomson Reuters. Copyright Further use without the permission of West is prohibited. COMMERCIAL ITEM CONTRACTING Richard P. Rector DLA Piper LLP Kevin P. Mullen Cooley Godward Kronish LLP Session 13 I. LEGISLATION A. National Defense Authorization Act for Fiscal Year 2009 The Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (S. 3001), P.L , was signed by the President and became law on October 14, The Act contained at least seven sections of significance to commercial item contracting. Four of these sections (Sections 863, 865, 868, and 871) are applicable on a Government-wide basis; these are found in Title VIII, Subtitle G, Governmentwide Acquisition Improvements, which may also be cited as the Clean Contracting Act of The other three sections (Sections 803, 882, and 885), which are applicable only to defense agencies, are included elsewhere in Title VIII of the Act. 1. Section 863: Competition on Multiple Award Contracts Section 863 requires enhanced competition for all purchases over the simplified acquisition threshold under Multiple Award Contracts ( MACs ). MACs are broadly defined and specifically include contracts awarded by the General Services Administration under the Multiple Award Schedule Program. The new law will apply to all task and delivery orders issued after the effective date of the new regulations, regardless of when the MAC was awarded. The Federal Acquisition Regulation ( FAR ) must be revised within one year to implement the law. The law expands upon similar competition requirements included in Section 843 of the FY 2008 National Defense Authorization Act, which were limited to task and delivery orders that exceeded $5 million. See part II.C infra (Interim Rule on Enhanced Competition for Task and Delivery Order Contracts). The law also repeals Section 803 of the FY 2002 National Defense Authorization Act, which imposed similar requirements upon defense contracts. Section 863 requires each purchase over the simplified acquisition threshold to be accomplished using competitive procedures that: (a) provide notice, including a description of the work to be performed and the basis for selection, to all contractors under the MAC; and (b) afford all MAC contractors a fair opportunity to make an offer and be considered for award. An agency may provide notice to fewer than all contractors if notice is provided to as many contractors as practicable and either: (a) offers are received from at least three qualified contractors; or (b) the Contracting Officer ( CO ) determines in writing that no additional contractors could be identified despite reasonable efforts to do so. These competitive procedures can be waived if a law authorizes purchase from another source or if certain exceptions apply (i.e., unusual urgency, one qualified source, follow-on work, satisfaction of minimum guarantee). The agency must publish a notice on FedBizOpps within 14 days of any MAC award that does not follow competitive procedures, as well as disclose the related justification and approval documents, unless the order is classified or other extraordinary circumstances exist. 2. Section 865: Oversight of Interagency and Multi-Agency Acquisition Section 865 requires increased oversight of interagency and multi-agency acquisitions. An interagency acquisition means a procedure whereby an agency needing supplies and services (requesting 13-1

2 agency) obtains them from another agency (servicing agency); it includes Multiple Award Schedules over $500,000, Governmentwide acquisition contracts, and acquisitions under the Economy Act. A multi-agency contract is a task- or delivery-order contract that permits multiple agencies to issue orders, consistent with the Economy Act. Within one year, the Office of Management and Budget ( OMB ) must submit a comprehensive report to Congress on interagency acquisitions, including their frequency of use, management controls, cost effectiveness, and savings generated. The OMB also must issue guidance to improve the management of interagency acquisitions. In addition, the FAR must be revised within one year to require that all interagency acquisitions include: (a) a written agreement between the requesting agency and the servicing agency assigning responsibility for the administration and management of the contract; (b) a written determination that an interagency acquisition is the best procurement alternative ; and (c) sufficient documentation to ensure an adequate audit. On June 6, 2008, OMB issued guidance to Chief Acquisition Officers and Senior Procurement Executives on improving the management and use of interagency acquisitions. Finally, with regard to multi-agency contracts, the FAR must be revised within one year to require that any multi-agency contract entered into after the effective date of the regulations be supported by a business case analysis that addresses the direct and indirect costs to the Government of awarding and administering such contract, as well as the impact the contract will have on the Government s ability to leverage its buying power. 3. Section 868: Price Reasonableness of Commercial Item Services Section 868 expands the type of information that may be sought by COs to support the pricing of certain commercial services. The FAR must be revised within six months to implement the law. Similar changes, limited to defense procurements, were made last year in Section 805 of the FY 2008 National Defense Authorization Act. Pursuant to Section 868, services that are not offered and sold competitively in substantial quantities in the commercial marketplace, but are of a type offered and sold competitively in substantial quantities in the commercial marketplace, may be treated as commercial items for Truth In Negotiations Act ( TINA ) purposes only if the CO determines in writing that the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such services. To make this determination, the CO may request the submission of: (a) prices paid for the same or similar commercial services under comparable terms and conditions by both Government and commercial customers; and (b) if the CO determines that comparable pricing information is insufficient to determine the reasonableness of price, other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates. 4. Section 871: Comptroller General Access to Contractor Employees Section 871 expands the Comptroller General s authority to examine a contractor s and subcontractor s records to include interviewing any 13-2

3 current employee regarding such records. This change, which amends 41 USCA 254d(c)(1) for non-defense contracts and 10 USCA 2313(c)(1) for Department of Defense ( DoD ) contracts, will require a change to FAR (d) in commercial item contracts. 5. Section 803: DoD Preference for Commercial Software Section 803 requires the Secretary of Defense to ensure that contracting officials identify and evaluate, at all stages of the acquisition process, opportunities for the use of commercial computer software and other nondevelopmental software. It also requires a report to Congress within nine months on actions taken to implement this preference. 6. Section 882: DoD Market Research on Commercial Items Section 882 requires the Secretary of Defense to submit a report to Congress within nine months on the changes to DoD s market research that were dictated by Section 826 of the National Defense Authorization Act for Fiscal Year Last year s Act required DoD to: (a) undertake market research before awarding a task or delivery order in excess of the simplified acquisition threshold; and (b) ensure that any prime contractor on a contract, task order, or delivery order in excess of $5 million engaged in market research as needed to implement the preference for commercial items. DoD did not change its regulations in 2008 to implement these statutory changes, so Congress has now required a report to force the issue. The report must address: (a) the guidance issued by DoD on the issue; (b) the market research being performed pursuant to such guidance; (c) the results of such guidance and market research; (d) the training tools developed by DoD to assist contracting officials in performing market research; and (e) the additional actions DoD plans to take, including dissemination of best practices and corrective actions where necessary. 7. Section 885: State/Local Procurement Through DoD of Equipment for Homeland Security and Emergency Response Activities Section 885 expands the authority of the Secretary of Defense to establish procedures under which state and local governments may purchase, through DoD, equipment for homeland security and emergency response activities. Section 885 amends 10 USCA 381, which previously authorized purchases by state and local governments, through DoD, of law enforcement equipment as jointly defined in a catalog developed by GSA and DoD for counter-drug activities. The revised law allows purchases through DoD of any equipment identified in the catalog for counter-drug, homeland security, and emergency response activities. B. Local Preparedness Acquisition Act The Local Preparedness Acquisition Act (H.R. 3179), P.L , was signed by the President and became law on June 26, The Act authorized state and local governments to use Schedule 84 of GSA s Multiple Award Schedule Program to acquire security and law-enforcement goods and services. Specifically, the Act expanded GSA s cooperative purchasing 13-3

4 authority, which previously permitted state and local governments to acquire goods and services from Schedule 70, as well as its recovery purchasing authority, which allowed state and local governments to purchase from any Schedule to facilitate recovery from major disasters, terrorism, or nuclear, biological, chemical, or radiological attack. See 69 Fed. Reg , May 18, 2004 (Schedule 70 authority); 72 Fed. Reg. 4649, February 1, 2007 (recovery purchasing authority). Now, state and local governments can use Schedule 84 at any time to acquire alarm and signal systems, facility management systems, firefighting and rescue equipment, law enforcement and security equipment, marine craft and related equipment, special purpose clothing, and related services as contained in Schedule 84. The law was implemented immediately through GSA Acquisition Letter V-08-05, dated July 3, An interim rule implementing the law in the GSA Acquisition Regulation was issued September 19, See part II.D infra. C. Supplemental Appropriations Act, 2008 The Supplemental Appropriations Act, 2008 (H.R. 2642), P.L , was signed by the President and became law on June 30, Title VI, Chapter 1 of the Act, which may be cited as the Close the Contractor Fraud Loophole Act, required that the FAR be amended within six months to require timely notification by Federal contractors of violations of Federal criminal law or overpayments in connection with the award or performance of any contract greater than $5 million and 120 days in duration, including commercial item contracts and contracts performed entirely overseas. A final rule implementing the law in the FAR, and adding other compliance obligations for commercial item contracts, was issued November 12, See part II.E infra. II. REGULATORY CHANGES A. Final DFARS Rule: Commercial Item Determinations, 73 Fed. Reg (January 24, 2008) The Defense FAR Supplement ( DFARS ) was amended through a final rule, effective January 24, 2008, requiring DoD to ensure that an item meets the FAR definition of a commercial item prior to use of commercial item procedures for acquisitions exceeding $1 million. Contracting Officers must determine in writing that an item meets the definition and must include the determination in the contract file. B. Final FAR Rule: Extension of Authority for Use of Simplified Acquisition Procedures for Certain Commercial Items, 73 Fed. Reg (September 17, 2008) The FAR was amended through a final rule, effective September 17, 2008, to implement Section 822 of the FY 2008 National Defense Authorization Act. The final rule extends until January 1, 2010 the timeframe in which an agency may use simplified procedures to purchase commercial items in amounts greater than the simplified acquisition threshold, but not exceeding $5.5 million ($11 million for commercial items used in support of contingency operations or certain recovery operations, as set forth in FAR (e)). 13-4

5 C. Interim FAR Rule: Enhanced Competition for Task and Delivery Order Contracts, 73 Fed. Reg (September 17, 2008) The FAR was amended through an interim rule, effective September 17, 2008, to implement Section 843 of the FY 2008 National Defense Authorization Act. The final rule included three new requirements for task and delivery orders: (i) it precluded the award of a task or delivery order exceeding $100 million to a single source, unless the agency head determines that certain circumstances justify such an award; (ii) it authorized a contractor to protest any task or delivery order that exceeds $10 million; and (iii) it enhanced the competition requirements for task and delivery orders in excess of $5 million. As noted above, Section 863 of the FY 2009 National Defense Authorization Act expanded and made further changes to the competition requirements for task and delivery orders. See part I.A.1 supra. D. Interim GSAR Rule: Cooperative Purchasing Acquisition of Security and Law Enforcement Goods and Services (Schedule 84) by State and Local Governments, 73 Fed. Reg (September 19, 2008) The GSA Acquisition Regulation was amended through an interim rule, effective September 19, 2008, to implement the Local Preparedness Acquisition Act. See part I.B supra. The interim rule allows for state and local purchasing under GSA Schedule 84, which covers products and services related to law enforcement and security. The interim rule applies to solicitations and existing contracts for Schedule 84; existing contracts are to be modified by mutual agreement of the parties. E. Final FAR Rule: Contractor Business Ethics Compliance Program and Disclosure Requirements, 73 Fed. Reg (November 12, 2008) The FAR was amended through a final rule, effective December 12, 2008, to amplify the requirements for a contractor business ethics compliance program and to implement the Close the Contractor Fraud Loophole Act (see part I.C supra). The final rule modified the existing ethics rule that took effect in December 2007, and that was implemented in FAR Subpart 3.10, which exempted commercial item contracts from compliance program requirements. Now, under the final rule, commercial item contracts are subject to the following ethics/compliance requirements: (i) contractor must disclose violations of certain procurement-related criminal laws, violations of the civil False Claims Act, and significant overpayments; (ii) contractor must have a written code of business ethics and conduct that is made available to all employees; (iii) contractor must exercise due diligence to prevent and detect criminal conduct; (iv) contractor must promote an organizational culture that encourages ethical conduct and a commitment to compliance with the law; and (v) contractor must flow down the substance of FAR to subcontracts greater than $5 million and 120 days in duration. Commercial item contracts are still exempt from requirements for 13-5

6 training/awareness programs and internal control systems, as well as the display of hotline posters. III. POLICY DEVELOPMENTS A. DoD Use of Government-Unique Contract Clauses on Commercial Contracts On March 17, 2008, the Director of Defense Procurement, Acquisition Policy, and Strategic Sourcing issued a memorandum seeking information from DoD contracting activities on the types of contract clauses included in commercial item contracts in Fiscal Years 2007 and 2008, as well as an agency-specific plan for restricting the number of unique clauses included in future contracts for commercial items. The memorandum was issued pursuant to Section 821 of the FY 2008 National Defense Authorization Act, which requires DoD to develop a plan for restricting Government-unique clauses in commercial contracts; the plan has not yet been issued. B. GSA Multiple Award Schedule Advisory Panel In March 2008, GSA established a federal advisory committee known as the Multiple Award Schedule ( MAS ) Advisory Panel to develop advice and recommendations on MAS Program and pricing policies, provisions, and procedures in the context of current commercial pricing practices. The Panel, which reportedly includes ten members from federal agencies and four members from industry associations, held a number of public meetings throughout 2008 and has scheduled meetings for early The Panel reportedly will recommend, inter alia, that GSA gradually remove the Price Reduction clause from MAS contracts for products and services. The Panel is expected to issue its formal recommendations in C. Creation of MAS Program Office On October 1, 2008, GSA s Federal Acquisition Service announced the creation of the MAS Program Office within the Office of Acquisition Management. The MAS Program Office s responsibilities include developing and implementing acquisition policy and guidance, defining shared systems requirements, and coordinating innovative program-wide improvements. IV. CASE LAW DEVELOPMENTS A. U.S. Court of Federal Claims 1. Ezenia!, Inc. v. U.S. & Carahsoft Tech. Corp., 80 Fed.Cl. 60 (2008), 50 GC 31 The Court dismissed the protest of an Army task order issued under a Federal Supply Schedule ( FSS ) contract, as lacking jurisdiction and prohibited by the Federal Acquisition Streamlining Act of 1994 ( FASA ). Judge Smith interpreted the protest to be a challenge to the Army s decision to standardize its command and control software by acquiring Adobe Breeze software on a sole-source basis. While Ezenia! sells a competitive 13-6

7 software for command and control, it does not sell Adobe Breeze software. The task order for Adobe Breeze software was the only procurement action that could be identified from the protest allegations. Judge Smith dismissed the case finding that: (i) the standardization decision is not a procurement, (ii) the plaintiff is not an interested party, and (iii) the Court lacked jurisdiction to review the award. 2. Information Sciences Corp. v. U.S., 80 Fed.Cl. 759 (2008) Judge Braden set aside General Services Administration s ( GSA ) re-award to Simplicity of a contract to upgrade the FedBizOpps website, holding that the new Source Selection Authority ( SSA ) improperly reevaluated the technical proposals resulting in a flawed best value analysis and award decision. Specifically, the SSA s independent assessment of the technical ratings resulted in a conclusion unsupported by the record and inconsistent with the Request for Proposals. Absent these errors, Simplicity likely would have been eliminated from the competition, and the two remaining offerors would have had a substantial chance of winning the contract. 3. Savantage Fin. Servs., Inc. v. U.S., 81 Fed.Cl. 300 (2008), 50 GC 187 Judge Futey overturned a Department of Homeland Security ( DHS ) procurement for financial systems application software, agreeing with the protester that the agency s Brand Name Justification constituted an improper sole-source procurement. The judge distinguished Ezenzia!, Inc. v. U.S., 80 Fed. Cl. 60 (2008), which had found that agency standardization decisions were not procurements within the court s jurisdiction. In this regard, Judge Futey noted that, unlike here, Ezenzia! involved a standardization decision made through a competitive process. The court ruled for the protester on the Administrative Record and enjoined DHS until it conducts a competitive procurement in accordance with the law to select financial management systems application software. 4. BearingPoint, Inc. v. U.S., 82 Fed.Cl. 181 (2008) In a case involving a dispute initially addressed by the court in BearingPoint, Inc. v. U.S., 77 Fed. Cl. 189 (2007), Judge Wheeler denied BearingPoint s motion for partial summary judgment and rejected the contractor s argument that a procedurally flawed termination for default is automatically converted to a termination for convenience. BearingPoint holds a Multiple Award Schedule ( MAS ) contract with GSA for information technology and system integration services, and was awarded a Blanket Purchase Agreement ( BPA ) and various task orders by the Department of Interior ( DOI ) under the MAS contract. After the DOI contracting officer terminated the BPA and Task Order 3 for default, BearingPoint challenged the legal validity of the termination, arguing that only the GSA contracting officer had termination authority. In the initial decision last year, Judge Wheeler agreed with BearingPoint, ruled the default termination to be a legal nullity, and dismissed the appeal for lack of subject matter jurisdiction. 13-7

8 Following the court s initial ruling, the GSA contracting officer terminated BearingPoint s BPA and Task Order 3 for default. BearingPoint appealed, and filed a motion for partial summary judgment, which is the subject of this more recent decision. In its motion, BearingPoint argued that the default termination was procedurally flawed by virtue of the DOI contracting officer s earlier unauthorized action, and was therefore improper under FAR (m), the Termination for Cause provision within the Contract Terms and Conditions Commercial Items clause. Consequently, BearingPoint asserted, the default termination is automatically converted to a convenience termination, as prescribed in the FAR provision. In this regard, FAR (m) states: If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience. The Government, in turn, argued that the GSA s right to terminate the BPA and task order was not extinguished by the DOI contracting officer s earlier unauthorized action. Judge Wheeler denied BearingPoint s motion, rejecting the argument that the default termination should be automatically converted to a convenience termination, and holding that the contractor must show harm or prejudice that it suffered due to the Government s error, when challenging a default termination on the basis of procedural errors. The court noted that although BearingPoint had made plausible arguments claiming harm or prejudice, it had not presented sufficient facts to justify summary disposition of the case on this basis. With the court s ruling, BearingPoint would have to put forth proof of harm or prejudice in order to prevail on its claim that the GSA contracting officer s default termination order should be converted to a termination for convenience. 5. Career Training Concepts, Inc. v. U.S., 83 Fed.Cl. 215 (2008), 50 GC 369 This protest involved the award of a task order for recruiting services by the Army National Guard under GSA s FSS program. The court denied the plaintiff injunctive relief in this post-award protest, after the plaintiff initially filed its case at the U.S. Government Accountability Office ( GAO ). Before obtaining a GAO decision, however, the plaintiff filed a protest at the court, resulting in dismissal at GAO. Notably, the court asked GAO for an advisory opinion (which GAO provided in a mere five days), and used the GAO s determinations as guidance in the court s decision. With regard to the merits of the protest, the court determined that: (i) the Government had effectively extended the deadline for proposals by sending an to offerors, and the awardee s proposal was timely submitted; (ii) this Federal Acquisition Regulation ( FAR ) Subpart 8.4 procurement did not require the agency to conduct discussions in strict compliance with FAR Part 15, and the agency otherwise had acted reasonably in this regard; (iii) the agency s evaluation of proposals was reasonable; and (iv) the awardee was not ineligible by virtue of an organizational conflict of interest based on the plaintiff s allegation that one of the awardee s employees had access to the plaintiff s proprietary information and the awardee used this information in its own proposal. 13-8

9 6. Dyonyx, L.P. v. U.S., 83 Fed.Cl. 460 (2008) The court sided with the Millennium Challenge Corporation ( MCC ), a U.S. Government corporation, and denied injunctive relief to the plaintiff in this protest, after MCC eliminated the plaintiff from the competitive range in a solicitation for IT services. This was an FSS procurement (FAR Subpart 8.4), based on FAR Part 15 procedures. The plaintiff is a small business concern. As a procedural matter, the court rejected the Government s senseless jurisdictional argument that an agency arbitrarily can declare a protested proposal to be nonconforming, while accepting the awardee s allegedly nonconforming proposal, and thereby preclude the protestor from standing to challenge the award. The court denied the merits of plaintiff s protest, however, finding that: (i) the plaintiff s proposal violated the solicitation s prohibition against off-schedule items; (ii) MCC treated the plaintiff and the awardee equally and fairly when judging proposal compliance; and (iii) the MCC was not required to refer the issue of proposal compliance to SBA as a matter of responsibility, notwithstanding the plaintiff s small business size status. 7. Klinge Corp. v. U.S., 83 Fed.Cl. 773 (2008), 50 GC 398 In a case before the court for a second time regarding the conduct of a procurement for Large Field Refrigeration Systems ( LFRSs ) by the Marine Corps Systems Command, Judge Bruggink declined to enjoin the agency from soliciting the LFRSs under a Request for Quotations ( RFQ ) limited to FSS contract holders for which the protester was ineligible. As a procedural matter, the court held that the protester, Klinge Corp. ( Klinge ), had legal standing to challenge the RFQ despite the contractor s lack of an FFS contract, based on the close connection between the original RFP for LFRSs (for which Klinge submitted an offer) and the new RFQ. With regard to the merits of the case, the court found that the agency s actions were unreasonable in two important respects. First, the agency s de facto cancellation of the related RFP, after the court overturned the previous contract award to Sea Box, Inc. ( Sea Box ) as violating the Trade Agreements Act ( TAA ), was unjustified. Second, the contracting officer s failure to make award to Klinge, as the offeror next in line for award under the original RFP, was based on an unreasonable view that its proposal also was noncompliant with the TAA. Nonetheless, Judge Bruggink found the agency s actions to be the result of innocent mistakes rather than bad faith or a desire to avoid contract award to Klinge. Moreover, the judge saw no reason to consider the second solicitation under the FSS to be tainted or improper based only on its connection to the first (albeit flawed) procurement. Therefore, Judge Bruggink allowed the agency to proceed with the RFQ, and awarded Klinge its bid and proposal costs. B. U.S. Government Accountability Office (GAO) 1. Essan Metallix Corp., B , 2008 CPD 5 The Army was permitted to exclude a defaulted contractor from the competition for the reprocurement of the remaining items under a termi- 13-9

10 nated commercial-item contract for British stainless steel tubes. Citing GAO case precedent and the broad authority afforded the contracting officer under FAR , GAO declined to review the agency s decision not to solicit the defaulted contractor for the reprocured work. GAO also noted that, in the case of a commercial item procurement under FAR Part 12, the agency had equal or greater latitude when conducting a reprocurement. 2. Global Computer Enters., Inc., B , et al., 2008 CPD 39 A protest challenging the issuance of a modification to a task order under an indefinite delivery/indefinite quantity ( ID/IQ ) contract as being beyond the scope of the task order is dismissed for lack of jurisdiction. Because the protest challenged the modification to a task order rather than a modification to the ID/IQ contract itself (and, therefore, did not allege that the modification exceeded the scope of the ID/IQ contract), the protest did not fit the statutory exception to the FASA prohibition against task order protests. Similarly, GAO lacked jurisdiction to address the protester s allegation that the modification to the task order improperly bundled work requirements previously performed by separate small businesses. 3. Delex Sys., Inc., B , 2008 CPD 181, 50 GC 404 Sustaining the protest of a small business concern regarding a task order awarded under a multiple-award ID/IQ contract, GAO held that: (i) the Rule of Two set-aside provisions apply to task and delivery order competitions; (ii) the Navy failed to comply with the Rule of Two when soliciting a competitive task order; and (iii) the Navy erred in concluding there was no reasonable expectation of receiving offers from two small businesses. The Rule of Two, set forth at FAR (b), requires agencies to set aside for small business any acquisition exceeding $100,000 if there is a reasonable expectation of receiving fair market price offers from at least two responsible concerns. In holding that the Rule of Two applies to task and delivery orders under multiple-award contracts, GAO concluded that such competitions are acquisitions under FAR (b) and are not exempt from the rule implementing the Small Business Act, 15 USCA 644(a). 4. Triple Canopy, Inc., B , 2008 CPD 207, 50 GC 438 Although GAO dismissed a post-award protest challenging a solicitation s security clearance requirements as untimely and denied grounds attacking the Army s past performance evaluation, the Comptroller General rejected the agency s arguments that a task order award was not subject to a substantive review of its merits under the new protest jurisdiction for task order awards in excess of $10 million provided by the National Defense Authorization Act for Fiscal Year 2008 ( NDAA ). While not strictly subject to the requirements of FAR Part 15 for negotiated acquisitions, the NDAA provides GAO with the same substantive protest jurisdiction conferred by the Competition in Contracting Act of 1984 ( CICA ) and FASA, which includes the authority to review and determine whether an 13-10

11 agency has followed the NDAA s fair opportunity rules in making a task order award. C. Boards of Contract Appeals 1. Appeal of L-3 Communications Corp., Link Simulation & Training Division, ASBCA No , 08-1 BCA 33,857 (May 8, 2008), 50 GC 228 L-3 appealed the denial of its claim for breach of a provision providing the fair opportunity to be considered for award of a delivery order under a multiple-award IDIQ contract. The Armed Services Board of Contract Appeals ( ASBCA ) previously ruled it had jurisdiction over the claim, rejecting the Government s argument that it constituted a bid protest outside the Board s jurisdiction. The Board sustained the appeal and found that L-3 was entitled to recover bid and proposal costs. The ASBCA, however, denied the contract s claim for lost profits because it failed to prove that it otherwise would have been awarded the delivery order

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