Government Procurement Law Update July 2012 Part 2

July 26th, 2012 Recent Government Procurement Law Developments: Criminal Law / Corruption In late June, a ninth Defendant plead guilty in the Kerry F. Khan case. The case involves bribery and kickbacks on contracts awarded by the U.S. Army Corps of Engineers and the Department of the Army. Kerry F. Khan, a former Program Manager for the U.S. Army Corps of Engineers previously pled guilty to charges of bribery and conspiracy to commit money laundering. The Defendants were indicted in 2011 and are awaiting sentencing. In addition, a U.S. Army Sergeant First Class was convicted on June 28th on all counts for his role in yet another federal government procurement bribery and money laundering scheme. Indictments were handed down in 2011 in this case involving U.S. Department of Defense contracts in Iraq. A Senior Procurement Officer, two former Army Majors and a former Army Master Sergeant were implicated in the case. In many ways, the allegations in this case are similar to the Cockerham bribery case. U.S. Court of Federal Claims On July 18th, the USCFC issued its opinion in Sikorsky Aircraft v. United States. In Sikorsky, the Plaintiff survived the government's Motions for Summary Judgment. Although far from a victory in this Cost Accounting Standards dispute that dates back to 1999, the decision does provide a good discussion of the legal framework behind the Contract Disputes Act and its six year statute of limitations. The decision also addresses the issue of accord and satisfaction in government contracting. Also of note is the case of Glenn Defense Marine v. United States. Although this case is a loss for the Plaintiff, this post award bid protest does provide a good discussion of how the court addresses Past Performance Evaluations and Best Value Trade-Off Analysis.

Armed Services Board of Contract Appeals On June 20th, the ASBCA issued its decision in Hedgecock Electric. Hedgecock is a construction delay case. In Hedgecock, the government assessed liquidated damages against the contractor. The contractor defended and asserted government caused delays. In reaching its decision, the ASBCA discussed numerous flaws in the contractor's CPM schedule. Since Hedgecock is likely to be followed in future ASBCA cases, the court's opinion is worth noting especially as it relates to the legal aspects of Critical Path Method construction scheduling.

Good Luck on that next bid!

Frank V. Reilly 101 NE Third Avenue, Suite 1500 Fort Lauderdale, FL 33301 (561) 400-0072 phone frank@frankvreilly.com www.frankvreilly.com