News

312, 2020

A Brief History of ANILCA and BHBC’s Role in the Congressional Enactments

December 3rd, 2020|

By William P. Horn

Three unprecedented federal land bills carved up Alaska: the 1958 Statehood Act, the 1971 Alaska Native Claims Settlement Act (ANCSA) and the 1980 Alaska National Interest Lands Conservation Act (ANILCA).  These three Acts designated nearly 270 million acres of land – only the Louisiana Purchase was a larger transaction (at 530 million acres).  Interestingly, BHBC personnel had key roles in two of these Congressional enactments.

All three Acts derived from the U.S. purchase of Alaska in 1867 negotiated by then-Secretary of State William Seward.  The transaction was with Tsarist Russia but Alaska Natives, primarily Tlingits in the Southeast, objected that their land was not for sale.  Seward’s purchase agreement promised to resolve Native land claims at an unspecified point in the future.

Nearly a century later, Alaska citizens pushed for Statehood and achieved it in 1959.  Congress worried that the remote State would not be able to support itself and included in the Statehood Act provisions enabling the new State to select 104 million acres of “vacant, unappropriated and unreserved federal lands” as a dowry of sorts.  A young Alaska lawyer, working then in the U.S. Department of the Interior, spearheaded the Eisenhower Administration’s policy on these matters: Ted Stevens.

National partisan politics also played a role.  In those days, Alaska was considered Democrat and the territory of Hawaii, Republican.  Both were admitted simultaneously to maintain the political balance in the U.S. Senate.  Obviously, things have reversed in the intervening 60+ years, but the goal of political balance did work out – just differently than contemplated in 1958.

The fledgling State began its land selections including parcels on the remote North Slope near a then-unknown bay on the Beaufort Sea: Prudhoe Bay.  Alaska Natives objected that the State was taking lands that should, instead, be provided to the Natives to satisfy the promises enshrined in Seward’s purchase agreement.  The Johnson Administration agreed and imposed a “land freeze” blocking State land selections until Native land claims were resolved.

At this moment, oil was discovered at Prudhoe Bay and the oil companies sketched out a pipeline route to carry oil from the North Slope to the Gulf of Alaska.  The Natives promptly filed aboriginal land claims along much of the route to block the State, and the Interior Department, from issuing any pipeline right-of-way to the industry.  Stalemate.

The oil industry lent its muscle to settling the Native land claims to enable the pipeline to proceed.  And by the middle of 1971, ANCSA was making its way through Congress with one of Alaska’s new Senators – Ted Stevens – taking the lead.  His administrative assistant (chief of staff) was a young New Yorker who had stumbled into Alaska after law school: Ron Birch.

Environmental interests raised objections to ANCSA.  They argued that the State was provided 104 million acres, and the Natives were in line to get 40 million acres – but what about the “national interest” in new parks, wildlife refuges, forests and such?  The “greenies,” in the fall of 1971, mounted a campaign to add a provision to ANCSA directing the Department of the Interior to consider new parks and such and to segregate such lands to make sure these areas would not be selected by the State or the new Native Corporations.  I was a college senior in Washington, D.C. working part-time for Trout Unlimited and participated in the lobbying to add the provision to ANCSA.  The effort succeeded and section 17(d)(2) was added to ANCSA.  It specified that the Secretary of the Interior would study and recommend adding “up to 80 million acres” to the National Park, Refuge and Forest systems.

The Native Corporations were formed, they began their land selections while the land freeze was enabling the State to restart its land choices (taking second place behind the Native Corporations).  The Interior completed its “D2” study and in 1973 recommended 83 million acres of new federal conservation units.

Before Congress could take up the “D2” recommendations, it took a detour to approve the Trans-Alaska Oil Pipeline in 1974.  Three years later it turned its attention back to “D2.”  The post-Watergate 1974 Congressional elections had given the Democrats a 2-to-1 edge in both the House and Senate and Jimmy Carter’s election in 1976 had put D.C. squarely in Democrat hands.  The House leadership responded by introducing its 1977 version of D2 legislation – H.R. 39 – designating 147 million acres of new Federal Wilderness areas in Alaska: the Alaska National Interest Lands Conservation Act (ANILCA).  So much for the “up to 80 million acres” deal codified in section 17(d)(2) of ANCSA.

The bill was referred to the new Alaska Lands Subcommittee (within the House Interior Committee).  It was chaired by H.R 39 co-sponsor Rep. John Seiberling (D-Ohio); the ranking Republican was Alaska’s Don Young beginning his fifth year in Congress.  Young hired me to be the sole GOP staffer on the subcommittee staff (the Democrats had 5 staff); Roy Jones was one of the Democrats.

As one of Alaska’s primary lobbyists put it, in the House all we could do was “negotiate the size of the truck to run us over.”  Young did his “Spartans at Thermopylae” thing and held up House action until May 1978.  That gave Senator Stevens leverage in the Senate although his counterpart – Sen. Mike Gravel (D-AK) – was largely AWOL throughout the legislative process.  By October, the Senate had not acted and serious negotiations commenced on a compromise bill.  After many days – and nights – an “Ad Hoc Conference Compromise Bill” was assembled.  The staff – catching catnaps in their offices – put the actual bill together over two pressure-packed nights.  All of the key players – House committee leaders, Senators, Carter’s Interior Secretary Andrus, and senior staff met the next morning in a small committee room in the U.S. Capitol.  All of the negotiators agreed to the Ad Hoc Bill and Sen. Henry Jackson (D-WA), Chairman of the Senate Energy and Resources Committee, asked Gravel (who had skipped the negotiations) if he was on board (as fate would have it, I was sitting next to Gravel).  Gravel announced he was opposed, would object to the bill on the floor (killing it under the circumstances) and walked out of the room.  There was anger, dejection, and pandemonium.  One democrat Senator had to be restrained from trying to chase down and punch Gravel.

When things calmed down, there was a chilling (in hindsight) occurrence.  Stevens asked everyone to remember that they had reached a deal and to act on it in the next Congress.  He then explained he had a bad feeling he was not coming back.  His colleagues told him that was nonsense.  Six weeks later he was in Alaska rallying the troops and raising money for the ANILCA fight for 1979-80.  He was angry about it because he had gotten the deal but Gravel killed it.  Returning to Anchorage the plane he was in crashed.  Ted and Tony Motley were the only survivors, among the deceased was Ted’s wife Ann.  When I heard the news that night in December 1980, a chill ran through me remembering his words in October.  Stevens never forgave Gravel – and never spoke to him again.

President Carter (and Secretary Andrus) had threatened using executive orders to withdraw millions of acres of federal lands in Alaska if Congress did not act.  So a bipartisan group quickly drafted a bill to extend the section 17(d)(2) land withdrawals to forestall executive action.  The bill passed the House but Gravel killed it too in the Senate then dared Carter to use the Antiquities Act withdrawal authority in Alaska.  Carter called his bluff using that Act to create 58 million acres of new federal “Monuments” in Alaska while Andrus used other authorities to withdraw an additional 60 million acres of land.

Twenty-two years later I shared the stage with Carter and Andrus at UAA for an ANILCA 20th anniversary retrospective.  At lunch, we discussed this history and the President and Secretary were flabbergasted that Gravel had taken these actions wholly on his own.  When I explained that Stevens, Young, and then-Alaska Gov. Jay Hammond were blindsided too Carter and Andrus were disbelieving.

Back in the legislative trenches, the battle was renewed in 1979 – but absent legislation (i.e., ANILCA) Alaska would be stuck with the Carter Monuments.  The State had hired BHBC to litigate against the Monuments and that case was proceeding on a parallel course with the Congressional action.  By the summer of 1980, the action was in the Senate and a compromise bill was negotiated to break the political logjam.  By this time Sen. Paul Tsongas (D-MA) was leading the “green” forces and Roy Jones was his key staffer.  Stevens had the lead for Alaska (Gravel was AWOL again) and Steve Silver and I were his staff guys.  A bill got hammered out which Stevens (and Young and Hammond) could swallow reluctantly and passed the Senate as the Tsongas-Hatfield Substitute.

The House Democrats (House Interior Chairman Rep. Mo Udall (D-AZ), Seiberling, et al.) were not happy and were waiting to see if Carter would be reelected in his race against Ronald Reagan.  If Carter won, Udall and company would hold out for a “greener” bill.  When Reagan crushed Carter, the House leadership threw in the towel and passed the Senate bill in late November 1980.

President Carter signed ANILCA into law on December 3, 1980 at a large White House ceremony.  A few weeks later, Ronald Reagan was inaugurated and not long thereafter I was named Deputy Undersecretary of the Interior and given the job of directing implementation of the new law.  That was my primary job for eight years until I left government to join Birch Horton Bittner & Cherot.

1011, 2020

BHBC Recognized as U.S. News – Best Lawyers® “Best Law Firms” 2021®

November 10th, 2020|

U.S. News – Best Lawyers® has recognized Birch Horton Bittner & Cherot in its recent release of “Best Law Firms” 2021®.  The firm received one national ranking, three regional tier 1 rankings, two regional tier 2 rankings and 1 regional tier 3 ranking.

Firms included in the 2021 “Best Law Firms” list are recognized for professional excellence with consistently high ratings from clients and peers.  Achieving these rankings indicates a distinctive combination of quality law practice and extensive legal expertise.

The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a combination of client feedback, information gathered from surveys, and peer reviews from leading attorneys in their field.  To be eligible for a ranking, a law firm must have at least one lawyer who is included in Best Lawyers® in that particular practice area and metropolitan region.

In August, U.S. News – Best Lawyers® announced that BHBC attorney George R. Pitts had been selected as 2021 Best Lawyers “Lawyer of the Year” Litigation-Bankruptcy in Washington D.C.  Only one lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade markedly significant.  Mr. Pitts has twice received the “Lawyer of the Year” designation in 2015 and now 2021.

The 2021 rankings are based on the highest lawyer and firm participation on record, with 8.3 million evaluations of more than 110,000 individual leading lawyers from more than 22,000 firms.  Awards were given in 75 national practice areas and 127 metropolitan practice areas.

The firm’s rankings were in the following locations and practice areas:

National Rankings
Tier 3:
Litigation – Bankruptcy


Regional Rankings
Tier 1:
Anchorage
Corporate Law
Mergers & Acquisitions Law

Washington D.C.
Litigation – Bankruptcy

Tier 2:
Anchorage
Personal Injury Litigation – Plaintiffs
Real Estate Law


Tier 3:

Anchorage

Product Liability Litigation – Plaintiffs

Receiving these accolades reflects the high level of respect a law firm and its attorneys have earned among other leading lawyers in the same communities and the same practice areas for their abilities, professionalism, and integrity. A link to BHBC’s rankings for “Best Law Firms” 2021 can be found at this link.

2210, 2020

U.S. Small Business Administration Publishes Final Regulations Making Major Changes to Small Business Development Programs

October 22nd, 2020|

Written by Jon M. DeVore and Carissa D. Siebeneck Anderson

On October 16, 2020, SBA published a new Final Rule that includes expansive changes to the U.S. Small Business Administration programs related to:  small business size, 8(a) Program, Mentor Protégé Program, joint ventures, and other SBA procurement program regulations. 85 Fed. Reg. 66146, “Consolidation of Mentor-Protégé Programs and Other Government Contracting Amendments.” https://www.federalregister.gov/documents/2020/10/16/2020-19428/consolidation-of-mentor-protg-programs-and-other-government-contracting-amendments.

The effective date for the rule is November 16, 2020 with the exception of some regulations related to Women Owned Small Businesses (WOSBs) which became effective immediately upon publication in the Federal Register.  The new regulations are over 50 pages long in the Federal Register. The final regulations are quite a bit different than those which were proposed last November—mostly for the good for small businesses.  In addition, this final rule encapsulates SBA’s major regulatory overhaul that really started in 2016 and continued through the last the last four years.  The timeline below illustrates the many changes that have occurred within the small business Federal Procurement Contracting industry during that time.

 

  • 1970 – 1970-First SBA regulation articulated policy of using 8(a) to assist “disadvantaged persons” to help them compete in the marketplace.
  • 1986-Indian tribes and ANCs added to program.
  • 1988-SBA established the MP program.
  • 2010-Small Business Jobs Act of 2010 authorized SBA to establish MP programs for small business controlled and owned by women, service-disabled veterans, and small businesses located in a HUBZone.
  • 2013-NDAA authorized the SBA to establish a MP program for all small businesses.
  • 2016-July 25, SBA published final rule in the Federal Register modifying 8(a) to include a MP program for all small business participants in the 8(a) program which took effect Aug. 14, 2016.
  • 2019-Nov. 8, SBA issues proposed rule to consolidate MP Programs and other sweeping 8(a) and small business changes.
  • 2019-Dec. 26, SBA HUBZone Final Rule goes into effect, the first overhaul of the program since its inception.
  • 2020-Jan. 6, SBA Final Rule regarding change to calculation of size (move from 3 yr avg to 5-yr avg), with transition period through Jan 2022, goes into effect.
  • 2020-October 16, estimate date for release of SBA final regulations revamping all SBA business development programs.

 

It is a daunting task to review, analyze, and convey these regulatory changes that impact almost every small business and business development program, including the Service-Disabled Veteran-Owned (SDVO) business, businesses located in HUBZones, Women-Owned Small Businesses (WOSBs), all Small Businesses doing business with the Federal Government, and especially the SBA 8(a) Program participants. But, as you know, the accelerated changes to these various SBA business development programs in the last four years have been unprecedented.  In our opinion, what small business government contractors and Federal Government Contracting officials need is stability, especially certainty regarding what rules govern their businesses.  These recent Final Regulations appear to be the cumulation of a long-term effort to revamp Federal small business government contracting programs to make them better and to make it easier for small businesses to do business with the Federal Government.

Generally Applicable Small Business Changes.  To highlight some of the changes, the SBA will create an All Small Mentor Protégé Program (ASMPP) for all businesses participating in the SBA programs.  It made numerous changes to requirements for joint venture agreements and added provisions regarding facility security clearances for JVs.  The SBA has sought to clarify and make using the small business size standards and affiliation rules easier to apply.

8(a) Program Changes.  The 8(a) Mentor Protégé Program is being officially merged into the ASMPP.  The proposed regulations will ease administrative and operational burdens on Joint Ventures.  The regulations ease some of the harsher requirements of the 8(a) Business Activity Targets (BATs) in the later years of participating in the SBA 8(a) Program.  The regulations will offer options to facilitate contract proposal submissions when dealing with the Bone Fide Place of Business requirements and potential delays in SBA approval.  The SBA clarifies what will be considered a “follow on” contract and how a “bridge” contract will be considered related to a follow-on contract.  SBA also added new training requirements for 8(a) applicants.  For individually-owned 8(a) firms, SBA relaxed application requirements for family members to own their own 8(a) firms.  For entity-owned concerns, there were several welcome changes to rules on holding company ownership approvals, excessive withdrawals, and many more topics.

The list goes on, and the topics are too varied to relate in this short article.

All small businesses (and other businesses that team with small businesses) must get educated about the new Final Regulations.  We are confident SBA will make a concerted effort to educate and inform the public and the participants in SBA’s programs.  The individuals in the SBA deserve much credit for accomplishing a monumental task and for taking seriously the hundreds of comments the SBA received during the public comment process.  Over the last four years, some of these changes were prompted by the U.S. Congress and many were incorporated as a result of SBA’s years of experience and advocacy for small business.  Overall, the final rule represents extremely good changes for small businesses.  The new final regulations should foster and enhance small businesses doing business with the Federal Government.

There will be many sources of information to help small businesses and others understand the new rules that go into effect in mid-November.  It is important that affected business review the changes, identify how the rules will impact their businesses, and take the necessary actions to update their compliance programs, contract terms, and business processes.  Birch Horton Bittner & Cherot is proud of its services to the small business community.  We look forward to being part of that effort.  Please reach out to us if you would like more information on these rule changes or information on training and regulatory update options for your workforce.

 

309, 2020

Is an Employee on Duty When They Are Required to Answer Their Cell Phone?

September 3rd, 2020|

Written by William A. Earnhart

As working remotely has grown exponentially since the start of the COVID-19 crisis, more and more employees are questioning where work ends and their own time begins.  Birch Horton attorneys William Earnhart and Matt Widmer recently received a decision in Federal District Court and upheld by the Ninth Circuit that gives employers some additional guidance regarding that question.

Wage and hour law is based on the premise that employees are paid for the time they are at work and are not paid when not working. However, when the line between work and home is not clear, on-call employees often feel they should be compensated for the interruption into their personal time when that interruption benefits their employer.

Traditionally, the question of whether on-call time must be paid was a question of whether the employee was “engaged to wait” or “waiting to be engaged.”  If an employee is able to use the on-call time for his/her own purposes, the employer was not required to pay him for that time.  But what about the employee that is required to carry a cell phone and work remotely if called? Courts in the Ninth Circuit make this distinction by applying a seven-part test, referred to as the Owens factors.  Although Owens was decided in 1992, just prior to widespread cell phone use, it summarized years of precedent going back to the 1940s, and did not anticipate employees being in contact with customers all hours of the day in almost any location.

In our case, the District Court applied the Owens factors and found that being required to stay within cell phone range and answer the phone if called was not enough to establish that the employee was required under the FLSA to be paid for the time not answering the phone. The Owens factors are very fact specific with “no one factor controlling.” The key factors in this case where: the employee was able to travel anywhere within cell phone coverage; arrange for others to take the phone if he planned a vacation or otherwise needed to be unavailable;  and, although the employee disputed this fact, the calls were not so frequent as to severely limit his ability to use his time as his own. At the appellate level, the former employee added a twist emphasizing the argument that because his job was as a dispatcher, his time carrying, but not actually answering, the phone for after-hours dispatching was simply a continuation of his job duties. The appellate court did not accept that argument.

An additional factor in any wage claim is an agreement of the parties.  An employer cannot contract out of the FLSA minimum wage and overtime requirements; however, the reasonable expectations of the parties may establish an agreement to pay beyond the legal minimum. In this case, the employee signed a memorandum confirming he would be paid two hours overtime each day he was required to carry the after-hours phone, and that he was required to record all time spent on the phone that exceeded the two-hour minimum.

When an employee is required to carry and answer a cell phone after ordinary work hours, an employer should carefully analyze the employee’s job description and expectations (preferably with legal assistance) and have an “on call” or “after hours” policy signed by the employee that clearly identifies expectations and requirements during that time period. An employer should also require and enforce a policy of tracking all time worked. This is required by law, but often ignored or rarely enforced.  Accurate time cards are often the best source of evidence to dispute a claim for overtime.

1508, 2020

The importance of CPARS to Federal Contractors

August 15th, 2020|

Written by Jon DeVore and Carissa Siebeneck Anderson

While we all hope that we will never have to experience the issue of a poor Contractor Performance Assessment Reporting System (CPARS) performance rating directly, it is an issue that all Federal Contractors (or those who seek Federal Contracts) should be educated about.  CPARS ratings can help or hinder the successful awards of Federal Contracts. If you do receive a poor performance rating, the ultimate point is that there is a very limited window when a contractor can object or try to influence the CPARS rating, so time is of the essence when you learn of a less than desirable CPAR.  The remedies are also extremely limited, but the consequences are quite significant.  Therefore, the Birch Horton Bittner and Cherot Government Contracting Team shares this article in hopes that managers and contract administrators can appropriately plan for the future.  We hope that you do not experience a poor rating, but if you do, we want you to be ready and able to respond.

The Contractor Performance Assessment Reporting System (CPARS)[1]

The basic elements of the CPARS Program are:

  • CPARS is a web-enabled reporting system for Government Contracts.
    • Contracting Officers assess a contractor’s performance, providing both positive and negative feedback on a given contract during a specified time period, and that data is recorded in the CPARS database.
    • Each performance assessment is based on objective data supported by program and contract management data.
    • It is designed with a series of checks and balances to ensure objective and consistent evaluations, which is a helpful, but certainly not a foolproof process to ensure accurate ratings.
    • The CPARS performance review process provides an opportunity for both the Government and contractor to review and comment within the CPARS system.
    • CPARS assessments are required under the Federal Acquisition Authority (“FAR”) for source selection evaluations. They rely on clear and timely evaluations of the contractor’s performance to make decisions when awarding contracts. They are critical for providing “quality products and services in support of an agency’s missions.”[2]
    • Generally, evaluations are NOT completed for subcontractors. However, evaluation of a contractor’s performance should include information regarding the ability of a prime contractor to manage the subcontractor.
  • There are two grading scales for CPARS, the general metric and a metric for assessing small business subcontracting plan compliance. (See FAR 42.1503(h), Table 42-1, 42-2). The second grading scale becomes relevant only if the (large business) prime contractor has a small business subcontracting plan where upon the prime contractor is rated as to how well it adhered to the plan.  But the grading elements are not significantly different.

General Rating System Grades:

  • Exceptional: The performance meets the requirements and exceeds them to the Governments benefit. Few problems that were corrected effectively.
    • To demonstrate an exceptional, multiple significant events must be identified highlighting their benefit (on occasion one benefit will suffice if no weakness).
  • Very Good: The performance met the contractual requirements, and exceed some areas to the Government’s benefits. Few minor problems that were corrected.
    • To justify a significant event must be identified and explain how it benefits the government. No significant weaknesses.
  • Satisfactory: The performance meets the contractual requirements. Minor problems were satisfactorily corrected. Major problems were corrected without impacting the contract.
    • No significant weakness. If you perform beyond the requirements of the contract you cannot get less than satisfactory.
  • Marginal: The performance does not meet some contractual requirements. The element or sub-element being evaluated reflecting a serious problem proposed actions marginally effective or not fully implemented.
    • Justification requires a significant event in each category that the contractor had trouble overcoming, with supporting references.
  • Unsatisfactory: The performance doesn’t meet contractual requirements and recovery is unlikely. Serious problems with the contractual performance, and corrective actions are ineffective.
    • Multiple significant events must be identified to justify an unsatisfactory rating.
    • Justification requires identifying a significant event that the contractor had trouble overcoming and how it impacted the contract. Needs to reference action of notice.

How the CPARS Evaluations Are Applied:

  • When Must CPARS be conducted? This information must be collected and evaluated for all contracts exceeding the simplified acquisition threshold.
  • What must the evaluation include? CPARS evaluations should include a clear non-technical description of the principal purpose of the contract, be tailored to the contractual requirements, include clear relevant information depicting performance, and be based on objective facts supported by the program.
  • Who will be evaluated? The Prime Contractor, not subcontractors, is evaluated in the CPARS process.  However, this can be more complicated when dealing with joint ventures and teaming arrangements.
    • In Joint Ventures, a unique DUNS number is issued that is unique from the individual numbers of the joint ventures. A single evaluation is given to the Joint Venture.
    • In teaming agreements, the evaluation is carried out for the prime contractor, other members are considered subcontractors.
  • Now that the Past Performance Information Retrieval System (PPIRS) is gone, agencies also now turn to CPARS directly to retrieve performance evaluation information as a means for researching a contractor’s performance history as part of the proposal evaluation process.
  • Agencies use the information in the CPARS that is within three years (six years for construction and architect-engineer contracts) of the completion of the performance of the contact.[3]

Timeline for CPARS Process

  1. Contract Registration: Basic contract information including contractor name, address, product or service code, dollar value, and award date, etc., are entered into the system. This needs to be done within 30 days of the contract award.
  2. Performance of the Contract
  3. Enter Proposed Ratings and Narratives: Once the period of performance is complete an assessing official enters the ratings and narratives that reflect the contractors’ performance during the reporting period.
  4. Validated Ratings and Narratives: They will then review the proposed rating and narrative to ensure it is consistent with the FAR, detailed, comprehensive, complete, accurate, and supported by objective evidence.
    1. It is signed and sent to a contractor representative.
  5. Contractor Comments: The contractor representative has the option to provide comments on the evaluation and state whether they agree or disagree with the evaluation. They have 60 days to send comments. If this is done within the first 14 days it will become available in a day. On day 15 it becomes available for source selection with or without comments, even if it has yet to close.
    1. On Day 61 the contractor is locked out and unable to comment. The Administrative Contracting Officer (ADO) may then close, modify or send the evaluation. It takes a day to update and retains a pending marking.
  6. Review Contractor Comments Close: On day 61, after the assessing officers’ evaluation signature date, the evaluation is returned to the officer, and Contractor Representative (COR) may no longer send comments, at which point the officer may:
    1. Close the evaluation
    2. Modify the evaluation Reviewing Official.
    3. Send the evaluation to the Reviewing Official.
    4. Modify and send the evaluation to the Reviewing Official.
  7. 120-Day Timeframe. The entire evaluation MUST be complete within a 120 days after the period of performance, including the 60-day comment period.

When are CPARS Required?

  • Interim & Final. FAR requires annual performance evaluation for all contracts/orders for all business sectors meeting the thresholds (these are interim evaluations). For contracts with a longer period, the evaluation must reflect evaluation of at least the first 180 days of performance up to 465 days.
    • For those less than 365 days, a final report should be prepared.
    • Interim evaluations are limited to contractor performance after the proceeding evaluation.
    • Final evaluations should be completed upon completion or delivery of the final marker end item on the contract.
    • Addendum evaluations may be prepared after the “final” past performance evaluation to record the contractor’s performance relative to contract closeout etc.
  • Confidential Information. CPAR information is treated as source selection information at all times, and is protected in this manner.
    • Disclosure is strictly prohibited.
    • Only the contractor is granted access to the evaluation.
    • It is privileged source selection information, and not releasable under FOIA.

Written Concerns of Small Business

  • The contracting officer shall make every reasonable effort to respond in writing to a small business’s concerns submitted in writing with respect to contract administration within 30 days. This does not apply to issues characterized as a decision related to a Contract Dispute.[4]


Legal Challenges to CPARS

  • In CompuCraft the Civilian Board of Contract Appeals held that a contractor “clearly [has] standing to sue [the government based on the substantive allegation that the [G]overnment acted arbitrarily and capriciously in assigning an inaccurate and unfair performance evaluation.”[5]
  • However, the Board cannot “direct the Government to revise [a performance evaluation] in a particular way through some form of injunctive relief.” The Board held it lacked the jurisdiction to “remove entirely the evaluations from the CPARS website” or change each evaluative factor to exceptional.[6]
  • Similar cases in other courts came to the same conclusion—that the Board/Court could find the rating arbitrary and capricious, but cannot force the agency to change the CPAR. (This may be because it would be going too far to tell the agency what to change the evaluation factor to—in other words, the Board/court will not feel it appropriate for the Board/court to give a specific rating.)
    • Court of Federal Claims: Todd Const., L.P., v. U.S., 88 Fed. CL. 235, 243 (2009).
    • Armed Services Board of Contract Appeals: Versar, Inc. ASBCA 56857, 10-1 BCA ¶ 3
  • The best opportunity for a contractor to change a CPAR rating is to use the 14 days to rebut the negative CPAR.


Conclusion 

In conclusion, CPARS performance evaluations are a critical element of a contractor’s performance history and will directly impact a business concern’s evaluation on its future federal contract proposals.  CPARS evaluations should always be requested and carefully monitored. The Birch Horton Bittner and Cherot attorneys have had diverse and extensive experiences helping Federal Contractors in this area.  Foremost, Federal Contractors becoming familiar with the CPAR process and its impacts is extremely important to future success especially as competition increases.

 

 

[1] FAR Subpart 42.15—Contract Performance Information

[2] Guidance For the Contractor Performance Assessment Reporting System (CPARS), General Services Administration, 3 (June 2020), https://www.cpars.gov/pdfs/CPARS-Guidance.pdf.

[3] FAR 42.1503(g): Agencies shall use the past performance information in CPARS that is within three years (six for construction and architect-engineer contracts) of the completion of performance of the evaluated contract or order, and information contained in the Federal Awardee Performance and Integrity Information System (FAPIIS), e.g., terminations for default or cause.

[4] FAR Subpart 42.16.

[5] See CompuCraft Inc. v. General Services Administration, CBCA No. 5516, 17-1 BCA ¶ 36662, page 5

[6] Id. at 6. 

[3] FAR 42.1503(g): Agencies shall use the past performance information in CPARS that is within three years (six for construction and architect-engineer contracts) of the completion of performance of the evaluated contract or order, and information contained in the Federal Awardee Performance and Integrity Information System (FAPIIS), e.g., terminations for default or cause.

 

2407, 2020

Federal Government Publishes Record of Decision, Environmental and Economic Analysis, and CWA Permits for Ambler Road Project

July 24th, 2020|

Written by Jon DeVore, Elisabeth Ross and Nicole Bayne

On July 23, 2020, the Bureau of Land Management (“BLM”) and the National Park Service (“NPS”), within the Department of Interior, and the U.S. Army Corps of Engineers (“USACE”) published several decisions relating to the Alaska Industrial Development and Export Authority’s (“AIDEA’s”) proposal to build a 211-mile industrial access road to the remote Ambler Mining District.[1]  The road will connect the closest existing road, the Dalton Highway in the southern foothills of the Brooks Range of north central Alaska to the Mining District.  The documents released include, the Record of Decisions (“ROD”), the Environmental and Economic Analysis (“EEA”), and the Clean Water Act Section 404 permit.  The decisions were determined to be the least environmental impactful route, the shortest route, and has a remarkably small footprint potentially opening up one of the most mineralized areas in Alaska and the World.  The road and the potential developments will bring jobs to the region, revenue to the local and state governments, and potentially further benefit remote communities with access to broadband and commercial use.

In March 2020, BLM released the Final Environmental Impact Statement and selected AIDEA’s planned route as the preferred alternative, and found that the road could go forward without significant environmental impacts.  The FEIS laid the groundwork for today’s decisions.  The route selected in the EEA and ROD follow the route selected in the FEIS and include mitigation measures to protect wetlands, fish, wildlife and their habitat as well as subsistence hunting and fishing activities.

The Ambler Mining District has long been known for its prime mineral development potential, which has been explored and evaluated for more than a century.  Mineral resources found in the area include copper, lead, zinc, gold, silver, cobalt molybdenum and possible rare earth minerals.  Congress authorized in 1980 a right of way through the Gates of the Arctic National Park and Preserve (“GAAR”) in the Alaska National Interest Lands Conservation Act (“ANILCA”) to ensure ground transportation access to the Ambler Mining District.

Throughout the its years-long decision-making process, the federal agencies have consulted extensively with Alaskans and people in the Lower 48, including community meetings, tribal consultations, public input, and federal and state cooperation over the past three years.  BLM also worked closely with its consulting agencies, including NPS and USACE.

The ROD

The ROD fulfills the requirements under the National Environmental Policy Act and serves as BLM’s final decision.  The agency has approved development of Project Alternative A, identified in the FEIS, after many alternative routes from the West and the South.  This route was the original route proposed by AIDEA, accessing the District from the east after years of considering various alternatives.  It begins at Milepost (MP) 161 of the Dalton Highway and runs almost directly west for 211 miles to the District across primarily State-managed, BLM-managed, and GAAR lands.  Right of Ways on lands owned by Alaska Native Corporations will need to be obtained but the route carefully took into consideration concerns of local villages seeking to avoid impacting them.  This route crosses GAAR farther north than the other alternatives examined by the agencies and was the least environmentally impactful route after careful consideration.

The Section 404 Permit

Section 404 of the Clean Water Act establishes a program to regulate the discharge materials into waters of the United States, including wetlands.  Infrastructure development, such as Ambler Road, need permits under the program before any material may be discharged into waters of the US.  Individual permits are reviewed by USACE, which evaluates applications under a public interest review, as well as the environmental criteria set forth in the Clean Water Act and regulations promulgated by EPA.

During its permit review process, USACE adopted the BLM’s FEIS.  After analyzing the FEIS and other supporting materials, the agency determined that the route selected, Alternative A, was the Least Environmentally Damaging Project Alternative (“LEDPA”). USACE has granted a permit which authorizes the discharge of material and allows AIDEA to work within the navigable waters of the United States.

The EEA

ANILCA mandates that an EEA be prepared for the right of way across NPS lands to determine a preferred road alignment and develop appropriate terms and conditions for the permit.

Two alternative routes across NPS lands were identified in the project application materials. The EEA examined each of these routes to determine which route would generate fewer adverse environmental, social, and economic impacts upon wildlife, fish, and their habitat, and rural and traditional lifestyles including subsistence activities.  The  EEA’s determination was that Alternative A was the preferred and least environmentally impact route. The EEA also recommends measures that should be instituted to avoid or minimize negative impacts and enhance positive impacts.

The Project

The project proposed by AIDEA includes a 211-mile, all-season, industrial access road to the Ambler Mining District in the southern foothills of Alaska’s Brooks Range. The private toll road will provide access for mineral exploration, mine development, and mining operations by connecting the District with the Alaska Pipeline Haul Road (Dalton Highway), an area currently without any road or surface access. Local communities may have commercial access to the road when it is built. Under AIDEA’s proposal, approximately 25 miles of the proposed road will cross BLM-managed lands.

It is estimated that the project will employ an annual average of 766 jobs during construction and an annual average of 141 from operations and road management once the project is complete.  It is also estimated that thousands of jobs will be created from mine construction and operations if they are permitted and developed.  AIDEA’s proposed project is only the industrial road.

This timely and significant decision fulfills the promise made by ANICLA 40 years ago guaranteeing access to the mineral district while mitigating the impacts to federal and state lands.  The Ambler Road Project is perhaps one of the largest infrastructure projects to potentially be built and funded from tolls and not public road funds in Alaska.  Birch Horton Bittner and Cherot (“BHBC”) was involved in the original ANILCA legislation and has been involved in the current permit process.  BHBC encourages broad public involvement in these types of Alaskan development projects which is why we share this with you.

For more information and to read the ROD visit: https://www.blm.gov/programs/planning-and-nepa/plans-in-development/alaska/AmblerRoadEIS

[1] See generally, US Department of Interior, Bureau of Land Management, Joint Record of Decision, DOI-BLM-AK-F030-2016-0008-EIS (Jul. 2020).