Some projects require the contractor to begin performance immediately, with the urgency of the government requirement providing no time to establish terms, specifications, or prices. The government may enter into undefinitized contract actions (UCAs) or letter contracts for such projects. The contract clause at Federal Acquisition Regulation (FAR) 52.216.25 provides the process for the definitization of UCAs. Since UCAs permit performance without firmly established terms such as pricing, procuring agencies are expected to agree on the undefinitized contract terms in a timely manner after the commencement of performance. When the agency and the contractor cannot agree on a firm price, the FAR definitization clause allows the contracting officer (CO) to conclude negotiations and unilaterally determine a reasonable price. Notably, because the definitization clause expressly permits it, the CO’s unilateral establishment of pricing is considered an act of contract administration and not a government claim. Consequently, if the contractor does not agree with the CO’s unilaterally established price, it must file a claim with the CO before appealing that decision at a relevant Board of Contract Appeals (BCA) or the Court of Federal Claims (COFC).

It is in the government’s best interests that professional employees on federal contracts be fairly compensated. However, recompetition of service contracts often results in lower compensation for professional employees, which can harm the quality of professional services required for contract performance. Thus, certain solicitations for service contracts may contain the provision at Federal Acquisition Regulation (FAR) 52.222-46, which requires procuring agencies to conduct a two-prong evaluation of professional employee compensation plans. The first prong is essentially a price realism evaluation of the offeror’s proposed compensation to determine whether it understands the contract requirements and has proposed a compensation plan appropriate for those requirements. The second prong requires the procuring agency to determine whether a proposal contemplates compensation levels lower than those of predecessor contractors by comparing proposed compensation rates to incumbent rates. Thus, in addition to a price realism analysis, FAR 52.222-46 requires procuring agencies to compare the compensation of the incumbent professional staff to the proposed professional compensation. If the procuring agency fails to conduct such a comparison, the evaluation of professional employee compensation plans may be protested as unreasonable.

The Competition in Contracting Act (CICA) requires full and open competition in federal procurement. However, under certain circumstances, exceptions to full and open competition may apply, and the procuring agency may conduct the procurement on a sole-source basis or by otherwise limiting competition. The Federal Acquisition Regulation (FAR) 6.302 provides seven limited exceptions to full and open competition. Among those exceptions, FAR 6.302-2 permits using other than full and open competition in procurements with unusual and compelling urgency. As one might expect, the exception is construed narrowly, permitting the agency’s use of other than full and open competition only in situations when the government would be seriously injured unless it limits its sources. Even when foregoing full and open competition by citing an unusual and compelling urgency, the procuring agency must still request offers from as many potential sources as practicable under the circumstances. Additionally, when making contract awards under this authority, agencies must support their decision with justifications and approvals (J&As). In situations where the preparation of a J&A before the award would cause an undue delay to the acquisition, agencies may provide the J&As after the contract award.

Upon the issuance of a contracting officer's final decision (COFD), contractors have 90 days to file their notice of appeal before an appropriate Board of Contract Appeals (BCA). BCAs have consistently held the requirement to file an appeal within the 90-day appeal period as a non-waivable jurisdictional requirement. Thus, if the contractor fails to file their appeal within this 90-day appeal period, the BCA may not entertain the appeal as it lacks jurisdiction over it under the Contract Disputes Act (CDA). Contractors must strictly follow the 90-day appeal deadline, which is not tolled even when the contractor inadvertently files their appeal at the wrong BCA. In certain situations, contractors may file their appeal after 90 days have passed since the original COFD issuance, provided they can demonstrate that the contracting officer (CO) reconsidered the final decision as a result of the parties' discussions during the appeal period. If government actions during the appeal period indicate that the contractor reasonably believed that the CO reconsidered her decision, the finality of the CO's decision may be vitiated or invalidated. Under such circumstances, the CO's vitiated final decision may not be reinstated, and the CO is required to issue a new final decision, restarting the 90-day appeal period under the CDA. However, because the parties often continue settlement discussions after the issuance of the COFD, it may not always be clear whether the CO reconsidered her final decision or if the COFD remained final.