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56 Procurement Law. 1 (2021)

handle is hein.journals/procurlw56 and id is 1 raw text is: SECTION OF PUBLIC CONTRACT LAW AMERICAN BAR ASSOCIATION AMERICANBARASSOCIATION VOLUME 56, NUMBER 1 Public Contract Law Section WINTER 2021 Pre-Contract Challenges to Government Assertions of CAS Noncomplicance and Cost Disallowances BY PHILLIP R. SECKMAN AND ERIC P. ROBERSON Phillip R. Seckman Eric P. Roberson Contractors regularly challenge government assertions regarding Cost Accounting Standards (CAS) compli- ance or cost allowability through the disputes process under the Contract Disputes Act (CDA) Disputes under the CDA presume, and in fact require, that a con- tract exists. There are circumstances, however, where the government's contentions regarding CAS compli- ance and administration or cost allowability may im- pact the contractor's interests with regard to potential future contracts. In this context, the question arises as to whether a contractor may properly obtain prospective judicial relief in challenging government assertions or interpretations prior to contract award. That question is the focus of this article. The potential pre-award problems associated with CAS compliance and cost allowability challenges Phillip R. Seckman, a Denver-based partner with Dentons, focuses his practice on a range of subjects related to federal procurement law, state and local procurement law, and complex federal regulatory issues. Eric P. Roberson, a Denver-based Dentons managing associate, is a member of Dentons' U.S. Government Contracts practice. His practice focuses on federal, state, and local contract opportunities and performance. become particularly important when a contractor has both fixed-price and cost reimbursement contracts in its business portfolio. For example, if the government im- properly asserts that a type of cost is expressly unallow- able under the Federal Acquisition Regulation (FAR) cost principles, which in turn may violate CAS (e.g., CAS 405, Accounting for Unallowable Costs), the de- termination affects not only the contracts under which such a determination is made but also a contractor's pro- posals. Indeed, with regard to firm fixed price (FFP) con- tracts, there is generally no mechanism for relief after the FFP contract is negotiated, even when the government's assertion is later proven incorrect. To remedy this problem, a contractor may well con- sider two potential avenues to prospective judicial relief: (1) a Court of Federal Claims (COFC) pre-award protest under the Tucker Act or (2) an Administrative Proce- dures Act (APA) action.2 Of course, the contractor may also be free to walk away from the potential contract, but that solution is not particularly satisfactory to the con- tractor and may not be rational government procurement policy if the dispute is one that arises from an improper continued on page 23 News from the Chair 2 Big Changes in Small Business Regulations: Recent Rule Changes and Their Effect on Contractors Securing the Government Supply Chain: Section 889 And Prohibitions on Chinese Telecom Trust, But Verify: The Rise of Self-Scoring Evaluations In Federal Procurements 3 10 17 Published in The Procurement Lawyer, Volume 56, Number 1, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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