Jurisdiction

Construction contractors take note: the government contractor defense is alive and well in the Fifth Circuit. In Sewell v. Sewerage and Water Board of New Orleans, the Fifth Circuit recently confirmed that construction companies can successfully assert the government contractor defense in response to tort lawsuits that arise from their performance of federal public works and infrastructure projects. This is a welcomed decision in the Fifth Circuit, which had signaled in recent years that a higher level of proof may be required to establish the first element of the defense ─ i.e., that the government meaningfully reviewed and approved reasonably precise specifications for the allegedly defective construction feature.

The Sewell case illustrates that ─ with the right litigation strategy and a skillfully crafted evidentiary record ─ construction contractors may well prove the defense in cases involving even “rudimentary or general construction features.”
Continue Reading Construction Contractors: The Government Contractor Defense is Alive and Well in the Fifth Circuit

When must a party’s “defense” be asserted as a Contract Disputes Act (CDA) claim in order to raise that defense during a Court of Federal Claims or Board of Contract Appeals proceeding?

In Kansas City Power & Light Co. v. United States, the Court of Federal Claims moves us one step closer to solving this peculiar government contracts riddle called Maropakis.  In this decision, the court held that the government’s affirmative defense of offset was not a claim under the CDA, and therefore, did not need to be asserted through a contracting officer final decision before it could be raised before the court.  This decision is important because it further limits the applicability of the Maropakis doctrine and reinforces that Maropakis only applies to “defenses” that seek payment of money or the adjustment/interpretation of contract terms.Continue Reading The Latest Clue to Solving the Maropakis Riddle: The Affirmative Defense of Offset

EgyptAir Flight 648 was hijacked on November 23, 1985. Fifty-eight of the ninety-eight passengers died. Three years later, Pam Am Flight 103 exploded over Lockerbie, Scotland at 7:03 PM on December 21, 1988. All of the 259 passengers died.

Advancing a novel takings theory, the Plaintiffs in Aviation & Gen. Ins. Co., Ltd. v. United States—insurance companies and an asset management company—asserted that President George W. Bush’s restoration of sovereign immunity to Libya in 2008 constituted an unconstitutional taking of their property interest in insurance contracts. No. 14-687C, 2016 WL 3675437 (Fed. Cl. July 7, 2016). Judge Wheeler granted Defendants’ motion for summary judgment on July 7, 2016.

This post describes the legal background of the case and the Court’s opinion. It also discusses how Aviation & Gen. Ins. Co. should be a warning to clients and attorneys considering filing a takings claim. First, alternative methods of framing the takings claim may increase the likelihood of overcoming summary judgment. Second, litigants and lawyers must use Takings Claims as a strategic part of their larger litigation plan.[1]

Continue Reading The Foreign Sovereign Immunities Act and the Fifth Amendment’s Takings Clause

GAO’s jurisdiction over protests of civilian agency task and delivery orders valued at more than $10 million will sunset today. 41 U.S.C. § 410(f)(3).  GAO will continue to have jurisdiction over Department of Defense task and delivery orders over $10 million — Congress made that jurisdiction permanent in 2011. …
Continue Reading GAO’s Task Order Protest Jurisdiction Expires Today

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