An Update for Federal, State, and Private Prison Contractors  
   Vol. 3, Issue 4  July/August 2002




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A R T I C L E S


UNICOR PROTEST
 
CLAIMS UPDATE
 
QUESTION & ANSWER
 
LEGISLATIVE UPDATE
 

UNICOR PROTEST
GAO Sustains UNICOR Protest Over Unlisted Evaluation Criteria
 
The General Accounting Office recently sustained a protest filed by a Federal Prison Industries, Inc. (UNICOR) vender, which alleged that UNICOR had improperly awarded the contract based on criteria not listed in the solicitation.   The protest also argued, unsuccessfully, that UNICOR had misevaluated the vender's past performance.
 
In Tennier Industries, Inc., UNICOR sought laminated camouflage cloth cut into pieces to be used in the manufacture of trousers under an indefinite‑delivery/indefinite‑quantity contract for a base year, with two one‑year options.  Pursuant to the Request for Proposal (RFP), the evaluation of proposals was to be conducted on a best value basis, with past performance ranked higher than technical. As for price, for each offeror was required to submit fixed unit prices for fabric and for tape used to finish the seams of the trousers.  After evaluating the proposals, Tennier was ranked second and proceeded to protest UNICOR's award to another offeror.
 
CLAIMS UPDATE
Appeals Court Requires INS to Pay Back Wages, Upholds Morganti Decision
 
Recently, the U.S. Court of Appeals for the Federal Circuit made rulings on two long running claims against the Department of Justice.   The first decision was on the Appeal of Richlin Security Service Co. , which dates back to a decision by the Department of Transportation Board of Contract Appeals (DOTBCA) that the Immigration and Naturalization Service and Richlin had made a mutual mistake of fact on two fixed price contracts for guard services at the Los Angeles International Airport.  In that case, the DOTBCA concluded that reformation of the contracts was the appropriate remedy to correct the mutual mistake.  However, the Board required Richlin to liquidate and satisfy whatever back wage liability it may have to its former employees before seeking reimbursement of its incurred cost from the INS contracting officer via the claims process. 
 
Upon appeal, the U.S. Court of Appeals for the Federal Circuit reversed the Board's decision, noting that Richlin, a small woman owned firm, could not afford to meet the obligations to its employees without first receiving a reimbursement from the INS.  Accordingly, the Appeals Court ruled that Richlin was not obligated to pay its former employees before seeking the back wages from INS.
 
QUESTION & ANSWER
Report Urges FAR-Based Outsourcing
 
Question:What do you know about the recently released, congressionally mandated report, which promotes the use of outsourcing?  Were any short or long-term goals proposed in the report to implement uniform outsourcing procedures throughout the Federal government?
 
Answer:The Fiscal Year 2001 Department of Defense (DOD) Authorization Act established a Commercial Activities Panel (Panel) to study the policies and procedures in use for outsourcing of commercial activities from the federal government to the private sector. The Panel was comprised of 12 members, including the Comptroller General, representatives from the DOD, Office of Personnel Management, and the Office of Federal Procurement Policy, three representatives from private industry, and three current and former representatives of federal government employee unions. 
 
On May 1, 2002 the Panel issued its final report, which unanimously adopted a set of principles that are designed to act as a guide for the outsourcing process.  These principles included: (1) recognition that certain " inherently governmental" functions cannot be outsourced; (2) creation of a process that would allow public and private entities to participate in competitions; and (3) assurance that these competitions would consider both quality and cost factors. 
 
 
LEGISLATIVE UPDATE
Senate Passes Supplemental FY 2002 Appropriations Bill
 
On June 7, 2002, the U.S. Senate, by a vote of 71 to 22, passed a supplemental Fiscal Year 2002 Appropriations bill to assist those federal agencies involved in recovery and response efforts related to the terrorist attacks on September 11, 2001.  On May 24, 2002, the U.S. House Of Representatives passed similar legislation by a vote of 280 to 138.
 
The Senate bill provides DOJ with $12,750,000 of which $10,750,000 is allocated to the Justice Management Division for the planning, development, and deployment of an integrated fingerprint identification system, known as the chimera system, for use by the INS.  Similarly, the bill appropriates $75,500,000 to the FBI, of which$50,500,00 is allocated for a cyber-security initiative.
 
 



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