Court of Federal Claims

As previously discussed on this blog, the Federal Circuit issued a major decision in June 2024 addressing bid protest jurisdiction and standing at the Court of Federal Claims (“COFC”): Percipient.ai, Inc. v. United States.

On September 5, 2024, the United States filed a petition for rehearing of that case — requesting that the Federal Circuit reconsider its decision, either through a rehearing by the same panel or by the full court in an en banc proceeding.  Subsequently, on September 26, 2024, the protester (Percipient) filed an opposition to the petition.  It will be worth watching whether the Federal Circuit grants the government’s petition and, if so, whether any rehearing will result in a change to Percipient.ai’s holdings.Continue Reading Percipient.ai, Inc. v. U.S.:  Government Requests Reconsideration of Federal Circuit’s Decision on Bid Protest Jurisdiction and Standing

On June 7, 2024, the Federal Circuit issued a major decision addressing bid protest jurisdiction and standing at the Court of Federal Claims (“COFC”).  In Percipient.ai, Inc. v. United States, the court found that COFC has jurisdiction to hear a protest challenging a matter of contract administration — even where the matter arose in connection with a task order — and articulated a new test for standing applicable to the facts presented in that case. Continue Reading Percipient.ai, Inc. v. U.S.:  Matters of Contract Administration Can Be Fair Game For COFC Protests, Even When They Involve a Task Order

On May 10, 2023, the United States Court of Appeals for the Federal Circuit issued a decision regarding bid protest standing in CACI, Inc.-Federal v. United States et al.  In that decision, the court declared previous decisions to no longer be good law and held that the Court of Federal Claims erred in finding the protester to lack standing.Continue Reading Federal Circuit Weighs in on Bid Protest Standing and Departs from Prior Cases

Earlier this week, the Federal Circuit issued a decision in The Boeing Company v. United States that clears the way for resolution of Boeing’s substantive challenge to a controversial FAR provision that can give the government windfall recoveries in Cost Accounting Standards (CAS) matters.  The Federal Circuit decision is notable for three reasons.  First, in rejecting the government’s argument that Boeing had waived its right to attack the relevant FAR provision, the court clarified the circumstances in which a contractor will be found to have waived its rights to object to FAR provisions.  Second, in concluding that the Court of Federal Claims had jurisdiction to consider the dispute, the court provided a useful primer on the three different kinds of jurisdiction available under the Tucker Act.

Finally, the Federal Circuit’s remand means the Court of Federal Claims will now address Boeing’s substantive challenge to FAR 30.606, which directs contracting officers to ignore offsets that save the government money when calculating the impact of changes to a contractor’s cost accounting practices.  Boeing’s argument that this provision amounts to a breach of contract and an illegal exaction will now be resolved on the merits.Continue Reading Federal Circuit Rejects Government’s Waiver and Jurisdiction Defenses, Paving the Way for a CAS Showdown at the Court of Federal Claims

It’s a big deal in the government contracts community whenever the Federal Circuit weighs in on a bid protest.  And it is a particularly big deal when the Federal Circuit issues a split opinion in a bid protest.  That’s what happened last week in Inserso Corporation v. United States (No. 2019-1933), where the Federal Circuit issued a split opinion denying a protest as waived under Blue & Gold.
Continue Reading Federal Circuit Splits on Blue & Gold Question in Inserso

A long-standing dispute over the approach to country of origin determinations under the Trade Agreements Act (“TAA”) may soon be resolved, as the Federal Circuit recently heard oral argument in one of two cases presently examining key aspects of this statute.  Among other questions presented, the court may decide the standard for determining whether a product may be considered a U.S.-made end product — a question that could have far reaching implications for product manufacturers across all industries.
Continue Reading How Much Is Enough? Federal Circuit Appeal May Decide Level of U.S. Manufacturing Required Under the TAA

For the first time in several years, the version of the FY 2019 National Defense Authorization Act (NDAA) that just passed the Senate does not contain any major reforms to limit bid protests.  But the bill the Senate sent to the conference committee process does contain two provisions aimed at bid protests.  Although they are minor, they portend and may lay the groundwork for future attempts to change the protest process.  Both provisions call for further study of issues addressed in the RAND Corporation’s January 2018 bid protest report.
Continue Reading Senate Largely Leaves Bid Protests Alone in Passed Version of FY 2019 NDAA After Threatening Major Revisions

Last year, we highlighted the Court of Federal Claims’ (“COFC”) decision in Starry Associates, Inc. v. United States, 127 Fed. Cl. 539 (2016), which sharply criticized a Department of Health and Human Services (“HHS”) decision to cancel a solicitation, a rare rebuke in an area where agencies enjoy considerable deference from the courts. The Court’s decision noted the unique circumstances of that case—a series of agency actions resulting in the cancelation of the solicitation at issue that the Court characterized as “capricious” and “reflect[ing] a lack of fidelity to the procurement process.” That cancelation resulted in multiple GAO protests, a hearing at GAO, multiple depositions of agency officials during a follow-on protest at the Court, and a decision enjoining HHS from cancelling the solicitation (raising the interesting question of whether HHS must now award the contract to Starry Associates). In a subsequent decision issued in the case last week, Starry Associates, Inc. v. United States, No. 16-44C (Fed. Cl. Mar. 31, 2017), the case’s exceptional nature was further demonstrated by the COFC’s decision to award “enhanced” attorney fees to plaintiff’s counsel.
Continue Reading COFC Awards Enhanced Attorney Fees In Protest Following “Egregious” Agency Conduct

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