Photo of Michelle E. Litteken

Michelle Litteken is a Litigation & Dispute Resolution associate in Mayer Brown’s Washington DC office. Michelle’s practice focuses on government contracts matters. She represents clients regarding federal procurement practices and activities, such as litigating large contract disputes and bid protests before the United States Court of Federal Claims and the Government Accountability Office. She also provides advice for transactions that implicate government contracts, such as acquisitions of domestic companies that hold government contracts by foreign corporations. Michelle has experience with other areas of litigation, including class actions, federal antitrust claims, federal securities claims, and commercial contract claims.

Read Michelle's full bio.

In the decades since the enactment of the Contract Disputes Act (CDA), contractors, agencies, and the tribunals that decide government contract disputes have grappled with the question of what constitutes a claim. In 2010, the Federal Circuit ruled in M. Maropakis Carpentry, Inc. v. U.S. that to raise the adjustment of contract terms as a defense when litigating a CDA claim, a contractor must satisfy the CDA’s jurisdictional and procedural prerequisites by filing a claim with the contracting officer (CO) and receiving a final decision. To some, the Federal Circuit’s Maropakis decision appeared to impose an additional burden on contractors litigating CDA claims. Total Engineering, Inc. v. U.S., a recent decision from the CFC, helpfully suggests a limited application of the Maropakis decision.
Continue Reading

Editor’s note: This is the fourth post in a series focused on protest allegations related to cost and price analyses. The first post explained the basic principles of price and cost realism. The second post focused on the adjustments an agency may make during a cost realism analysis. The third post concentrated on the role of comparisons to benchmarks in price analyses. Planned future posts will discuss price reasonableness and recent protest decisions involving cost/price analysis issues. 

hand-562565_1280If you have read the prior posts in this series, you are aware that agencies conduct realism analyses as part of proposal evaluation for cost-reimbursement contracts to ensure that “the estimated proposed cost elements are realistic for the work to be performed; reflect a clear understanding of the requirements; and are consistent with the unique methods of performance and materials described in the offeror’s technical proposal.” FAR 15.404-1(d). The last element―consistency with an offeror’s proposed technical approach―provides a basis for a protest when a disappointed offeror learns or suspects that an agency failed to consider its technical approach when assessing its proposal for realism. This post describes the facts and rulings in three cases that illustrate the protest issues that can develop from such analyses.


Continue Reading

syringe-417786_1280Generally, when a contracting officer (CO) determines that a contractor owes the Government money and issues a decision saying as much, the contractor challenges the decision by filing an appeal with a board of contract appeals or an action in the Court of Federal Claims. Last year, in Beechcraft Defense Co., the ASBCA surprised the Government contracts bar by ordering the agency to file the complaint in the appeal of a CO’s decision and explain (assert) why the company purportedly owed the Government more than $5.8 million for alleged noncompliance with the Cost Accounting Standards. Since Beechcraft Defense, several contractors have brought actions at the ASBCA appealing CO decisions without filing a complaint. In these cases, the contractors have argued that the COs’ decisions assessing liability amounted to Government claims and the Government should file the complaint.

The question arose whether the Beechcraft twist on the typical claim dispute procedure might apply in other contexts. DynPort Vaccine Co. is a recent decision from the ASBCA that provides helpful precedent indicating that contractors confronted with a disadvantageous unilateral modifications might be successful with arguments similar to Beechcraft.

Continue Reading

iStock_000019708886LargeEditor’s note: This is the third post in a series focused on protest allegations related to cost and price analyses. The first post explained the basic principles on price and cost realism. The second post focused on the adjustments an agency can make during a cost realism analysis. Planned future posts will discuss the role of an offeror’s technical approach in a price/cost realism analysis, price reasonableness, and recent protest decisions involving cost/price analysis issues. 

Like any buyer, the Government wants to pay reasonable prices for the goods and services that it acquires. Agencies often perform a price analysis as part of that effort. The FAR (15.404-1(b)(1)) explains that “Price analysis is the process of examining and evaluating a proposed price without evaluating its separate cost elements and proposed profit,” and it provides examples of techniques that can be used to ensure a fair and reasonable price. When a disappointed offeror challenges an agency’s price analysis in a bid protest, the Court or GAO will examine whether the analysis was consistent with the solicitation. The depth of an agency’s analysis is usually within the agency’s discretion, but an agency cannot base its analysis on irrational assumptions or critical miscalculations. This post focuses on protest issues that arise with respect to the two most common price analysis techniques.
Continue Reading

The Federal Supply Schedule (FSS) is supposed to be a way for agencies to streamline procurement. However, achieving the desired efficiency requires that the Government buyer use the right contract vehicle for a given requirement. If the Government uses the wrong schedule—or a contractor proposes to provide goods or services that are not available under its schedule contract, and the agency fails to perform a careful evaluation—litigation may effectively eliminate the desired efficiencies. A recent GAO decision, US Investigations Services provides a good example of how thing can go awry.
Continue Reading

iStock_000006139533LargeEditor’s note: This is the second post in a series focused on protest allegations related to cost and price analyses. The first post explained the basic principles on price and cost realism. Planned future posts will discuss benchmarks an agency may use in a realism analysis, the role of an offeror’s technical approach in a price/cost realism analysis, price reasonableness, and recent protest decisions involving cost/price analysis issues. 

As discussed in the first post in this series, a cost realism analysis is required when an agency evaluates proposals for a cost-reimbursement contract. The analysis is required for cost-reimbursement contracts because under these contracts, an offeror’s proposed costs are not controlling–the Government will be bound to pay the contractor its actual, allowable, and reasonable costs. To determine the probable cost of performance, an agency may adjust the amounts an offeror proposed for given elements to reflect what the agency believes is realistic–the most probable cost. When an agency adjusts an offeror’s proposed amount and the offeror is not selected for award, those adjustments can become a ground for protest at GAO or the CFC. 
Continue Reading

Editor’s note: This is first post in a series focused on protest allegations related to cost and price analyses. Planned future posts will discuss limits on the adjustments an agency can make, benchmarks an agency may use in a realism analysis, the role of an offeror’s technical approach in a price/cost realism analysis, price reasonableness, and recent protest decisions involving cost/price analysis issues.  

Dollar icon ice, isolated on white background

Disappointed offerors often challenge an agency’s price or cost realism analysis in a bid protest. Contractors should be familiar with the differences between cost and price realism, when each analysis is required, and the relevant FAR provisions. Understanding these foundational concepts is essential when considering or litigating a protest that raises cost or price realism analysis issues; it can be helpful when responding to a solicitation that anticipates a price or cost realism analysis.


Continue Reading

When the Government terminates a contract for default (“T for D”), there can be a series of nasty consequences for contractors. Among other things, the contractor may be liable for actual or liquidated damages and for excess costs of reprocurement or completion; the contractor can be suspended or debarred; and the Government is not liable for the costs of unaccepted work and is entitled to the return of progress, partial, or advance payments. In contrast, when a contract is terminated for convenience (“T for C”), the contractor is usually entitled to the costs of goods and services furnished, demobilization costs, and a reasonable profit on the work performed. Also, because a T for C is not a breach, neither party is liable for lost profits or other damages allowed for breach of contract.

Default, directional sign

Suffice it to say, a contractor has a big incentive to fight a T for D—and try to have it converted to a T for C (which is the remedy if a T for D is not justified under the circumstances). Recently, the ASBCA issued parallel decisions denying the Government’s motions for summary judgment in a contractor’s challenges to T for Ds, finding in both cases that the Government had not established a prima facie case that the termination was justified. The Board’s opinions in the Capy Machine Shop, Inc. cases may prove useful to contractors challenging a default termination.
Continue Reading

The GAO recently sustained a protest because the agency failed to adequately consider a False Claims Act (FCA) case that was pending against the awardee’s parent corporation. The GAO’s decision in FCi Federal, Inc. represents a rare intersection of the FCA and GAO’s bid protest jurisdiction. The decision also provides an example of a successful challenge to an affirmative responsibility determination–an issue GAO will generally not review.

Fraud Concept - Magnifying Glass.


Continue Reading

Group of Business People Discussing Business IssuesEditor’s note: This is the fifth and final post in a series focused on protest allegations related to discussions with offerors. Previous posts in the series addressed (1) differences between clarifications and discussions, (2) the requirements for discussions to be meaningful, (3) misleading discussions, and (4) unequal discussions. It’s been fun, but there’s only so much to discuss about discussions (for now).

As this series has shown, disappointed offerors often raise protest allegations related to discussions. Although protesters frequently allege that discussions were unequal, misleading, or not meaningful, challenges based on these allegations can be difficult to win. In researching decisions to include in this round-up, I found only two decisions issued in 2014 sustaining a protest based on a discussions issue: Kardex Remstar LLC, which was discussed in the series’ first post, and Marathon Medical Corp.). Of course, although many of the protests discussed didn’t result in sustained protests based on the facts presented, they often provide useful insights for contractors in developing new claims and are worth close study.
Continue Reading