On July 12, 2016, in Coast Professional, Inc. et. al v. United States, No. 2015-5077 (Fed. Cir. July 12, 2016), the U.S. Court of Appeals for the Federal Circuit overturned a Court of Federal Claims (“CoFC”) decision, finding that the CoFC erred in ruling that it did not have bid protest jurisdiction over the award of task orders characterized as “award-term extensions.”   The Federal Circuit’s decision provides clarity on the scope of Tucker Act’s bid protest jurisdiction, and provides a strong defense against Government arguments that attempt to limit that jurisdiction going forward.

Continue Reading Federal Circuit Confirms that Award Term Extension Constitutes New Contract for Purposes of Bid Protest Jurisdiction

A recent decision from the Armed Services Board of Contract Appeals (ASBCA) serves as an important reminder that a contractor’s timely notification to the contracting officer (CO) of its intent to appeal a CO’s final decision will satisfy the Board’s 90-day deadline for filing appeals under the Contract Disputes Act (CDA). Although the facts of Afghan Active Group (AAG), ASBCA No. 6037, 2016 WL 1715461 (Apr. 14, 2016) are somewhat unusual, the decision illustrates the Board’s willingness to elevate substance over form when it comes to enforcing its jurisdictional timeliness requirements.

Continue Reading Contractor’s Timely Notice to the CO of an ‘Intent to Appeal’ is Good Enough for the ASBCA

You just learned your company is one of several winners of a multiple-award IDIQ contract.  You also learned one of your competitors, which should have been ineligible, is also an awardee.  So, as things stand, you’ll have to split the contract — and compete for orders — with that competitor.  Can you file a protest challenging the improper award to your competitor?  Until last week, the answer was “no.”  Now the answer is “maybe” — but only if you go to the Court of Federal Claims (“COFC”).

To pursue a protest, the protester must establish that it is an interested party, by showing that (1) it is an actual or prospective offeror; and (2) its direct economic interest would be affected by the award of, or failure to award, the contract in question.  31 U.S.C. § 3551(2)(A); 4 C.F.R. § 21.0(a)(1).  Since its decision in Recon Optical, Inc., et al., B-272239, July 17, 1996, 96-2 CPD ¶ 21, GAO has consistently held that winners of multiple-award IDIQ contracts are not interested parties for purposes of a protest, but it has typically done so while implying that, in rare circumstances, an awardee might be able to show it has an economic interest sufficient to make it an interested party.
Continue Reading Hope for Offerors Who Win a Multiple-Award IDIQ Contract and Want to Protest an Improper Award to a Competitor

Ever since the Federal Circuit held in M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1331 (Fed. Cir. 2010) that “a contractor seeking an adjustment of contract terms must meet the jurisdictional requirements and procedural prerequisites of the [Contract Disputes Act], whether asserting the claim against the government as an affirmative claim or as a defense to a government action[,]” contractors appealing a government claim or counterclaim have agonized over whether to incur the administrative burden and expense of submitting their potential defenses as a claim under the CDA or risk losing the ability to assert those defenses on appeal.  The Civilian Board of Contract Appeals’ (the “Board” or “CBCA”) recent decision in Jane Mobley Assocs., Inc. v. General Servs. Admin., offers some much needed clarity as to what types of defenses must first be raised as claims.  CBCA 2878, 2016 WL 73878 (Jan. 5, 2016).
Continue Reading Take it To the Limit: CBCA Limits Application of Maropakis Requirement to Initially Submit Certain Defenses to Government Actions as CDA Claims

On December 3rd, the Department of Justice released its annual summary of recoveries in False Claims Act (FCA) cases.  Although down from last year’s $5.69 billion, this year’s recoveries of $3.5 billion demonstrate the power that the government wields to drive settlements of fraud allegations.  Of the $3.5 billion, $1.1 billion in recoveries are attributable to settlements and judgments in cases alleging false claims for payments under government contracts.  A good portion of these settlements likely were driven by claims of false implied certifications.

For many years, federal courts have grappled with the issue of whether factually accurate claims submitted to the government for payment can nevertheless be “false or fraudulent,” pursuant to an implied certification theory, because of an underlying violation of law.  On December 4th, the Supreme Court granted certiorari in a case that should decide whether this theory of liability is valid.  
Continue Reading High Court to Resolve Split of Authority on “Implied” False Claims

In Cooley Constructors, Inc. v. GSA, CBCA No. 3905 (June 8, 2005), the Civilian Board of Contract Appeals (CBCA) found that the substance of an appeal – not the form – is the prevailing consideration when analyzing whether the CBCA has jurisdiction to hear a sponsored-subcontractor appeal under the Contract Disputes Act (CDA). Consistent with the CDA, a subcontractor generally may only prosecute an appeal against the government if its appeal is “sponsored” by a contractor that is a party to the government contract (e.g., the prime contractor). If such an appeal is not properly sponsored, it could be dismissed for lack of jurisdiction.
Continue Reading CBCA Takes Pragmatic View When Finding Jurisdiction Over A Sponsored-Subcontractor CDA Appeal