Transportation Security Administration: For acquisitions initiated after June 22, 2008, the Transportation Security Administration (TSA) is no longer exempt from the Federal Acquisition Regulation (FAR). 73 Fed. Reg. 30317 (May 27, 2008). New TSA acquisitions also are now subject to the Homeland Security Acquisition Regulation instead of the Federal Aviation Administration Acquisition Management System. Because the TSA is now subject to the FAR, bid protests regarding TSA procurements can now be filed at the US Government Accountability Office (GAO), but only for TSA procurements covered by solicitations issued after June 22, 2008. 73 Fed. Reg. 32427 (Jun. 9, 2008).

CBCA Rules of Procedure: The Civilian Board of Contract Appeals (CBCA) issued a final rule publishing the board’s rules of procedure, which went into effect on May 12, 2008. 73 Fed. Reg. 26947 (May 12, 2008). The final rule includes various changes to the interim rules of procedure under which the CBCA had been operating since July 2007. The board’s rules of procedure do not permit the electronic filing of cases and submissions, other than by facsimile transmission. However, the CBCA agrees that electronic filing would be beneficial. The board therefore is exploring means of instituting electronic filing, and expects to propose further amendments to its rules of procedure which will explain how such filings may be made.

Post-Government Employment Restrictions: The Office of Government Ethics (OGE) issued new regulations providing regulatory guidance concerning the post-Government employment restrictions of 18 U.S.C. 207. 73 Fed. Reg. 36168 (Jun. 25, 2008). 18 U.S.C. 207 contains various one-year, two-year, and permanent restrictions regarding the activities of persons who leave Government service or who leave certain high level Government positions. The new regulations, which constitute the first comprehensive post-Government employment guidance in regulation form since 18 U.S.C. 207 was substantially revised in 1989, address the restrictions as they apply to employees terminating Government service on or after January 1, 1991. An OGE memorandum addressing the new regulations may be found here.

Small Claims Procedures: FAR Part 33 was revised to establish a higher dollar ceiling to provide small business concerns enhanced access to small claims procedures when appealing a Contracting Officer’s final decision regarding a Contract Disputes Act claim. 73 Fed. Reg. 21799 (Apr. 22, 2008). Small business concerns may now elect to proceed under small claims procedures for claims of $150,000 or less when filing an appeal with an agency board of contract appeals. In contrast, business concerns that are other than small may elect to proceed under small claims procedures only for claims of $50,000 or less.

Earned Value Management Systems: The Department of Defense (DOD) issued a final rule amending the Defense FAR Supplement (DFARS) to update requirements for DOD contractors to establish and maintain an earned value management system (EVMS). 73 Fed. Reg. 21846 (Apr. 23, 2008). An EVMS is a project management tool that integrates the project scope of work with cost, schedule, and performance elements for optimum project planning and control. Among other things, the final rule amends the DFARS to require, for cost or incentive contracts and subcontracts valued at $20 million or more, an EVMS that complies with the guidelines in the American National Standards Institute/Electronic Industries Alliance Standard 748, Earned Value Management Systems (ANSI/EIA-748). For cost or incentive contracts and subcontracts valued at $50 million or more, the rule requires an EVMS that has been determined by the cognizant Federal agency to be in compliance with the ANSI/EIA-748 guidelines. The final rule, which went into effect on April 23, 2008, also eliminates requirements for contractor cost/schedule status reports.

Small Business Size Standard Inflation Adjustments: The Small Business Administration (SBA) issued a final rule adjusting its monetary-based size standards to account for the effect of inflation (8.7%) since the last inflation adjustment in December 2005. 73 Fed. Reg. 41237 (Jul. 18, 2008). As a result, small business eligibility may be restored to businesses that have lost that status due to inflation. The final rule goes into effect on August 18, 2008. (In December 2005, the SBA issued an interim rule adjusting its monetary-based size standards to account for the effect of inflation (also 8.7%) since the previous inflation adjustment in February 2002. Taken together, these two inflation adjustments have increased monetary-based size standards by 18.2% since February 2002.)

Export Controls: The DOD issued an interim rule amending the DFARS to address requirements for complying with export control laws and regulations when performing DOD contracts. 73 Fed. Reg. 42274 (Jul. 21, 2008). The interim rule adds two new clauses to be used when items subject to the Export Administration Regulations (EAR) or the International Traffic in Arms Regulations (ITAR) are expected to be involved in the performance of a contract, or when there is a possibility that such export-controlled items may come to be involved during the period of performance. Where it is anticipated that a contractor will generate or need access to exportcontrolled items during performance, the interim rule requires the contractor to (1) comply with all applicable laws and regulations regarding export-controlled items, including the requirement for contractors to register with the Department of State, and (2) consult with the Department of State regarding any questions relating to the ITAR and with the Department of Commerce regarding any questions relating to the EAR. Comments to the interim rule, which went into effect on July 21, 2008, should be submitted by September 19, 2008 to be considered in the formation of the final rule.

Electronic Subcontracting Reporting System: An interim rule was issued amending the FAR to require that small business subcontracting reports be submitted using the Electronic Subcontracting Reporting System (eSRS) instead of using Standard Form 294, “Subcontracting Report for Individual Contracts,” and Standard Form 295, “Summary Subcontract Report.” 73 Fed. Reg. 21779 (Apr. 22, 2008). The eSRS, located at http://www.esrs.gov/, is a web-based system managed by the Integrated Acquisition Environment.

The interim rule incorporates the general instructions from Standard Forms 294 and 295 into FAR Clause 52.219-9, “Small Business Subcontracting Plan.” The rule also requires a contractor to (1) provide its prime contract number and DUNS number to its subcontractors with subcontracting plans and (2) require that each such subcontractor provide the prime contract number and its own DUNS number to its subcontractors with subcontracting plans. The interim rule went into effect on April 22, 2008.

Employment Eligibility Verification: A proposed rule was issued to amend the FAR to require certain contractors and subcontractors to use the US Citizenship and Immigration Services’ EVerify System as the means of verifying that certain employees are eligible to work in the United States. 73 Fed. Reg. 33374 (Jun. 12, 2008). The proposed rule contains a new FAR clause that would require contractors and subcontractors to enroll in the E-Verify program within 30 days of contract award, to use E-Verify to confirm the employment eligibility of all employees directly performing work under a covered contract, and to comply with the requirements of the E-Verify program during the contract performance period. The requirements would apply to all prime contracts except contracts that are for commercially available off-the-shelf (COTS) items or items that would be COTS items but for minor modifications, contracts that are under the micropurchase threshold (generally $3,000), or contracts that do not include any work that will be performed in the United States. Prime contractors would be required to flow these requirements down to subcontracts that exceed $3,000, are for commercial or noncommercial services or construction, and include work performed in the United States. The proposed rule does not apply to any employee hired prior to November 7, 1986. Comments to the proposed rule should be submitted by August 11, 2008.

GSA Mentor-Protégé Program: The General Services Administration (GSA) issued a proposed rule to amend its acquisition regulations to establish a GSA Mentor Protégé Program. 73 Fed. Reg. 32669 (Jun. 10, 2008). The program is designed to encourage GSA prime contractors to assist small businesses, small disadvantaged businesses, women-owned small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, and HUBZone small businesses in enhancing their capabilities to perform GSA contracts and subcontracts, foster the establishment of long-term business relationships between these small business entities and GSA prime contractors, and increase the overall number of small business entities that receive GSA contract and subcontract awards. Eligible mentors would include certain large business prime contractors as well as small business prime contractors that can provide developmental assistance to enhance the capabilities of protégés. Comments to the proposed rule should be submitted by August 11, 2008.

Specialty Metals: The DOD issued a proposed rule to amend the DFARS to implement recent statutory changes to the restrictions on the acquisition of specialty metals not melted or produced in the United States. 73 Fed. Reg. 42300 (Jul. 21, 2008). The proposed rule implements Section 842 of the National Defense Authorization Act (NDAA) for Fiscal Year 2007 and Sections 804 and 884 of the NDAA for Fiscal Year 2008. Among other things, these statutory changes establish several new or revised exceptions to the restrictions on the acquisition of specialty metals, including exceptions relating to electronic components, commercially available off-the-shelf items, commercial derivative military articles, fasteners, and items with a de minimis amount of specialty metals. Comments to the proposed rule should be submitted by September 19, 2008. (Note that on January 29, 2008 the DOD issued a class deviation implementing the revised restrictions contained in Sections 804 and 884 of the NDAA for Fiscal Year 2008. See Fried Frank Government Contracts Alert – Spring 2008.

Prompt Payment Interest Rate: The Department of the Treasury announced that, for the sixmonth period of July 1, 2008 to December 31, 2008, the interest rate applicable to the Prompt Payment Act and claims under the Contract Disputes Act is 5 ? percent per year. 73 Fed. Reg. 37529 (Jul. 1, 2008). The interest rate for the six-month period ending on June 30, 2008 was 4 ¾ percent per year.

Public-Private Competitions: The Office of Management and Budget (OMB) recently issued a report addressing executive agencies’ use of public-private competitions, or “competitive sourcing,” for commercial activities in FY 2007. The report states that agencies completed 132 public-private competitions involving over 4,000 jobs, which are expected to generate over $395 million of savings during the next five years. Federal employees won 73% of these competitions. (In comparison, federal employees won 87% of the 183 public-private competitions completed in FY 2006.) The report also analyzes trends from FY 2003 to FY 2007. During this five-year period, agencies conducted 1,375 public-private competitions involving over 50,000 jobs, which are expected to save a total of $7.2 billion. The report may be found here.

Recent Decisions

Aerial Refueling Tanker Protest Sustained: The US Government Accountability Office (GAO) sustained The Boeing Company’s bid protest challenging the US Air Force’s award of a $35 billion contract to Northrop Grumman Systems Corporation for aerial refueling tankers. The Boeing Co., B-311344 et al., Jun. 18, 2008. As explained in its 67-page decision, the GAO concluded that the Air Force’s selection of Northrop Grumman’s proposal was undermined by a number of prejudicial errors that called into question the Air Force’s decision that Northrop Grumman’s proposal was technically acceptable as well as the Air Force’s judgment concerning the comparative technical advantages in Northrop Grumman’s proposal. The GAO also found several errors in the Air Force’s cost evaluation that, when corrected, result in Boeing displacing Northrop Grumman as the offeror with the lowest evaluated most probable life cycle cost. Specifically, the GAO found that: (1) the Air Force’s evaluation of proposals under one of the technical subfactors was not consistent with the weighting established in the solicitation’s evaluation criteria; (2) a key technical discriminator relied upon in the source selection decision was contrary to a solicitation evaluation provision which stated that no consideration would be given to such features; (3) the Air Force did not reasonably evaluate the capability of Northrop Grumman’s proposed aircraft to refuel all applicable receiver aircraft using current Air Force procedures, as required by the solicitation; (4) the Air Force conducted misleading and unequal discussions with Boeing with respect to whether it had satisfied one of the solicitation objectives; (5) the Air Force unreasonably determined that Northrop Grumman’s refusal to agree to a material solicitation requirement was merely an administrative oversight; (6) the Air Force did not reasonably evaluate the military construction costs associated with Northrop Grumman’s proposed aircraft; and (7) the Air Force unreasonably evaluated Boeing’s estimated non recurring engineering costs associated with its proposed system development and demonstration. The GAO recommended that the Air Force reopen discussions with the offerors, obtain and reevaluate revised proposals, and make a new source selection decision consistent with the GAO’s decision.

Post-Government Employment Restrictions: The US Court of Federal Claims (COFC) held that the Department of Health and Human Services (HHS) arbitrarily and unreasonably decided to exclude a would-be offeror from a National Children’s Study procurement based upon the post- Government employment restrictions contained in 18 U.S.C. 207(a)(1). CNA Corp. v. United States, No. 08-249C (Fed. Cl. Apr. 30, 2008).

Under 18 U.S.C. 207(a)(1), a former Government employee is permanently prohibited from knowingly making, with the intent to influence, any communication to, or appearance before, the Government on behalf of any person that is in connection with certain “particular matter[s]” in which the person participated “personally and substantially” as a Government employee, and which involved “a specific party or specific parties” at the time of such participation. The HHS decided to exclude the plaintiff from the procurement because an HHS ethics opinion concluded that, if the plaintiff’s proposed Principal Investigator made the communications and appearances to the HHS that were expected of her position under the contract, she would be in violation of 18 U.S.C. 207(a)(1) because during her prior Government employment with HHS she led a team that made recommendations for one of the National Children’s Study protocols. The COFC, however, concluded that the proposed Principal Investigator did not participate “substantially” in the National Children’s Study while she was a Government employee. The proposed Principal Investigator was one of over 200 scientists and more than 2,500 personnel who provided input during the planning phase for the Study, which will involve approximately 100,000 children with data gathered from 105 Study Centers by numerous contractors across the country. Moreover, she worked on only one of the Study’s 21 protocols, which had not yet been finalized, and she performed this work on only a part-time basis and for only four months. The COFC further stated that, even if the plaintiff’s proposed Principal Investigator did participate substantially in the National Children’s Study while she was a Government employee, the record suggested that the primary purpose of the Study Centers is to collect and report factual data. Office of Government Ethics regulations provide that there is no prohibition on a former Government employee imparting purely factual information to the Government. In addition, 18 U.S.C. 207(a)(1) does not prohibit communications with the Government by former Government employees with no “intent to influence.” The court therefore concluded that the plaintiff’s proposed Principal Investigator should be able to collect and report study data under the contract without violating the statutory post-Government employment restrictions.

Trade Agreements Act: The COFC held that the Marine Corps’ award of a contract for large refrigerated containers was improper because the agency should not have accepted the awardee’s proposal as compliant with the Trade Agreements Act. Klinge Corp. v. United States, No. 08-134C (Fed. Cl. Jun. 10, 2008). Pursuant to the Trade Agreements Act, offerors were required to certify that each end product to be delivered under the contract is a US-made, qualifying country, or designated country end product. While the awardee certified that Singapore, a qualifying country, was the country of origin for its proposed containers, the COFC concluded that the containers were an end product of China, which is neither a qualifying nor a designated country. Although the container’s refrigeration unit would be manufactured in Singapore, it was to be shipped to China to be joined with the container, which was manufactured in China. The awardee’s proposal also identified China as the place of “Final Assembly.” In addition, the COFC rejected the argument that the awardee’s containers were later “substantially transformed” in the United States, where the awardee merely performed finishing work such as painting, installation of an interior light, and bolting on skids. The COFC therefore sustained the bid protest and directed the Marine Corps to terminate its contract with the awardee. (Notably, the plaintiff had first filed a protest with the GAO, which concluded that the Marine Corps had reasonably determined that the awardee’s proposed container would be substantially transformed in the United States, thus qualifying as a US-made end product. Klinge Corp., B-309930.2, Feb. 13, 2008.)

Key Personnel Letters of Commitment: The GAO sustained a bid protest challenging the award of a Bureau of Indian Affairs (BIA) contract for information technology infrastructure services because the awardee’s proposal failed to include letters of commitment for key personnel as required by the solicitation. Native American Industrial Distributors, Inc., B- 310737.3 et al., Apr. 15, 2008. Although the BIA argued that the absence of letters of commitment was insignificant, the GAO stated that this argument was contrary to how the BIA evaluated a third offeror, whose proposal the BIA found unacceptable in part due to the lack of letters of commitment, an omission that the BIA labeled a “deficiency.” The GAO further noted that the purpose of a requirement for letters of commitment is to preclude an offeror from proposing an impressive array of employees, being evaluated on that basis, and receiving award, even where the persons proposed had never committed themselves to the offeror, and may have had no intention of doing so. The GAO also rejected the awardee’s argument that nondisclosure agreements included in its proposal should be viewed as the “functional equivalent” of letters of commitment. The GAO concluded that the nondisclosure agreements could not reasonably be seen as substitutes for letters of commitment because the agreements were limited to a promise not to disclose information, and an employee with little or no intention of working on the contract could sign such an agreement without contradicting that intention.

Unequal Treatment: The Federal Aviation Administration (FAA) Office of Dispute Resolution for Acquisition sustained two bid protests challenging the award of three FAA contracts for nonautomated contractor weather operation services because the FAA treated the protesters’ and the awardees’ technical proposals in a disparate manner. Consolidated Protests of Diversified Management Solutions, Inc. and Alaska Weather Operations Services, Inc., 08-ODRA-00430 et al., May 23, 2008. While the FAA identified “weaknesses” in each awardee’s technical proposal due to a lack of detail, the FAA inconsistently determined that similar informational shortcomings in each of the protesters’ proposals constituted disqualifying “deficiencies.” The FAA also improperly rated serious technically non-compliant elements of the awardees’ proposals as technically acceptable weaknesses rather than disqualifying deficiencies. In addition, while discussions were conducted with two of the three awardees, the FAA failed to raise its evaluated proposal concerns with either protester, even though the identified shortcomings apparently could have been readily remedied. (See also New Jersey & H Street, LLC, B-311314.3, Jun. 30, 2008, where the GAO recently sustained a protest regarding the award of a General Services Administration lease for office space because the agency, in evaluating the awardee’s proposal, relaxed a solicitation requirement for the submission of evidence supporting proposed building amenities, but did not provide the protester with an opportunity to propose amenities under the relaxed standard.)

Price Evaluations: The GAO sustained a bid protest objecting to the US Navy’s rejection of a proposal for facilities support services because the Navy unreasonably determined that the protester’s lower-priced line items for a portion of the work created an extremely high performance risk. Joint Venture Penauille/BMAR & Associates, LLC, B-311200 et al., May 12, 2008. While an agency’s concern in making a price reasonableness determination focuses on whether the offered prices are too high, not too low, an agency also may provide for a price realism analysis in a solicitation for a fixed-price contract for the purpose of assessing an offeror’s understanding of the requirements and the risk inherent in its proposal. Here, however, there was no evidence that the Navy considered whether the protester’s low pricing for certain line items reflected a lack of understanding of the requirements, or that there was a credible risk to performance. Although the price evaluation board concluded that the protester’s proposed prices were unreasonable and created significant performance risk, the Navy did not consult with the technical evaluation board to consider whether the protester could perform at the prices proposed. Moreover, the source selection board concluded that the protester successfully demonstrated a good understanding of the requirements. In addition, the GAO noted that the line items at issue represented only a small fraction of the overall contract, and may never even be ordered. As a result, even if the protester’s proposed prices for these line items were too low, this consideration did not seem to support the Navy’s conclusion that the performance risk to the overall contract was “extremely high.”

Agency Level Protests: The GAO held that an offeror’s e-mail to the US Army, which suggested that an Army procurement for information technology support services could be set aside for small business concerns, was not an agency level bid protest because it did not go beyond suggesting the idea of a set aside and did not request the Contracting Officer to take corrective action. Masai Technologies Corp., B-400106, May 27, 2008. The GAO stated that, while a letter or e-mail does not have to state explicitly that it is intended as a protest, it must at least express dissatisfaction with an agency decision and request corrective action. Here, the offeror’s e-mail, which was not labeled as an agency level protest, simply stated that the procurement would have been a prime candidate for a set aside and questioned whether market research had been conducted. The e-mail also was not addressed to the Contracting Officer, but instead was sent to officials in the agency’s small business office, who forwarded it to the Contracting Officer. The protester subsequently filed a protest with the GAO within 10 days of receiving a letter from the Contracting Officer stating that the Army would not set aside the procurement. However, because the e-mail to the Army was not an agency level protest, the offeror could not take advantage of an exception in the GAO’s Bid Protest Regulations which provides for the tolling of the GAO’s protest timeliness rules when a timely agency level protest is filed. The GAO therefore dismissed the protest as untimely because it was based upon an alleged apparent impropriety in the solicitation, but was not submitted prior to the time set for receipt of proposals as required by the GAO’s Bid Protest Regulations. (If the offeror’s e-mail to the Army had been an agency level protest, the offeror’s subsequent protest to the GAO apparently would have been deemed timely because the e-mail was submitted prior to the time set for receipt of proposals.)

OMB Circular A-76: Recently enacted changes to the GAO’s bid protest statute and regulations have revised the definition of “interested party” to provide that Federal employees may be represented by either of two entities in a protest regarding a public-private competition conducted under Office of Management and Budget Circular A-76, or a protest regarding a decision to convert a function performed by Federal employees to private sector performance without a Circular A-76 competition. Specifically, an interested party with standing to file or intervene in a bid protest at the GAO now includes (1) the official responsible for submitting the Federal employees’ proposal, or “tender,” in the procurement (the “Agency Tender Official”) and (2) any one individual, designated as an agent by a majority of the Federal employees performing the activity or function involved, who represents the affected employees (the “Designated Employee Agent”). Several recent GAO decisions rejecting protests filed on behalf of Federal employees have helped to delineate the scope of these expanded bid protest rights. In Bill Henson— Designated Employee Agent, B-400060, Jun. 2, 2008, the GAO dismissed a protest filed on behalf of Department of Labor (DOL) employees because the protest was not challenging the results of the Circular A-76 competition, which the employees won, but instead was alleging that the DOL was improperly implementing the employees’ proposed “most efficient organization” following the competition. The GAO stated that Designated Employee Agents do not have standing to challenge agency actions regarding the implementation of the results of public-private competitions. In Mark Whetstone—Designated Employee Agent, B-311327, May 20, 2008, the GAO dismissed a protest alleging that the Department of Homeland Security (DHS) was improperly converting a function currently performed by agency employees to private sector performance without conducting a public-private competition. The GAO held that the Designated Employee Agent lacked standing to file the protest because the DHS was acquiring the services through the exercise of an optional line item under a contract that was issued prior to enactment of the statute granting interested party status to Designated Employee Agents. In Mark Whetstone—Designated Employee Agent, B-311284, May 9, 2008, another protest alleging that the DHS was improperly converting a function to private sector performance without conducting a public-private competition, the GAO held that the Designated Employee Agent was not an interested party because he represented a class of employees whose jobs were not at stake. The GAO stated that the DHS was merely seeking to supplement the existing Federal employee workforce with a contractor and, therefore, the existing workforce’s current work was not being converted to private sector performance. See also Jim Swistowicz—Designated Employee Agent, B-400101, Jul. 7, 2008 (dismissing protest as premature where no source selection had yet been made); Rhonda Podojil—Agency Tender Official, B-311310, May 9, 2008 (dismissing protest as untimely where the Agency Tender Official filed the protest more than 10 days after she knew or should have known the basis of protest); Lisa Hartman—Designated Employee Agent, B-311247, May 6, 2008 (denying protest alleging that a public-private competition was required before converting a function with fewer than 10 positions to private sector performance); Gloria Kortum—Designated Employee Agent, B-311266, Apr. 15, 2008 (dismissing protest as academic where the agency had not yet made a final decision on whether it would convert a function to private sector performance); Clark E. Myatt—Agency Tender Official, B-311234.2, Apr. 15, 2008 (dismissing protest of solicitation’s cost calculation provisions where no acceptable private sector offers were received in response to the solicitation and, hence, any defect in the solicitation was nonprejudicial to the Federal employees.)

Task and Delivery Order Protests: The GAO dismissed a bid protest challenging the issuance of a GSA task order for information technology services because the GSA issued the task order prior to May 27, 2008, the effective date of the expanded authorization of GAO protests relating to the issuance of task or delivery orders in excess of $10 million. Systems Research and Applications Corp., B-400227, Jul. 21, 2008. Although the GSA notified the protester of the task order award on May 27, the record demonstrated that the order was awarded and transmitted to the awardee no later than May 24. The GAO therefore lacked jurisdiction to consider the protest. (For a detailed discussion of this new protest authorization, see Feature Comment: Acquisition Reform Revisited – Section 843 Protests Against Task And Delivery Order Awards At GAO.)

Task and Delivery Order Contracts: The Armed Services Board of Contract Appeals (ASBCA) held that the US Air Force breached the “fair opportunity to be considered” provision applicable to the award of a delivery order under a multiple-award contract and, as a result, the contractor was entitled to recover its proposal preparation and submission costs for the order. L-3 Communications Corp., Link Simulation & Training Div., ASBCA No. 54920, May 5, 2008. The ASBCA found that the Air Force breached the contract’s “fair opportunity to be considered” provision because the agency evaluated the offerors’ proposed costs on a different basis from that contemplated in the solicitation, which effectively negated what otherwise would have been a significant evaluated cost advantage for the plaintiff. The ASBCA held that, as a result of the Air Force’s breach, the contractor was entitled to recover $186,482 for the costs it incurred to prepare and submit its proposal in response to the solicitation. However, the board denied the contractor’s claim for lost profits and other damages because the plaintiff failed to prove that, but for the breach, the Air Force would have awarded it the delivery order.

Default Terminations: The ASBCA concluded that the US Army Corps of Engineers improperly terminated a levee construction contract for default because the decision was based on a materially inaccurate, misleading analysis by the Contracting Officer of the percentage of contract completion and a flawed assessment of the contractor’s capabilities to complete the work in the more than seven months remaining for performance. Kostmayer Construction, LLC, ASBCA No. 55053, May 30, 2008. The ASBCA noted that, to the extent that the contractor was behind schedule, it had taken measures and expended substantial additional resources, including workforce augmentation, to increase productivity and insure timely completion. The Contracting Officer, however, either failed to consider, or gave insufficient weight to, these mobilization efforts and expenditures in reaching the decision to terminate. The board further noted that the contractor had substantially satisfied the criteria set by the Contracting Officer in her “cure” notice, which provided the Army with adequate assurances of timely completion. The ASBCA therefore converted the Army’s improper termination for default into a termination for the convenience of the Government.