Tag Archives: Court of Federal Claims

COFC Awards Enhanced Attorney Fees In Protest Following “Egregious” Agency Conduct

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 … Continue Reading

The Latest Clue to Solving the Maropakis Riddle: The Affirmative Defense of Offset

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 … Continue Reading

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

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 … Continue Reading

HHS Seeing Stars After Recent Loss in COFC Bid Protest

In Starry Associates, Inc. v. United States, No. 16-44C (Fed. Cl. July 27, 2016), the Court of Federal Claims (“COFC”) sharply criticized a Department of Health and Human Services (“HHS”) decision to cancel a solicitation following two bid protests at the Government Accountability Office (“GAO”).  The history and outcome of the case are exceptional among … Continue Reading

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

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 … Continue Reading

Recent COFC Decision Underscores Need for Vigilance in Demonstrating Protest Standing

Many a bid protest has been dismissed for lack of standing.  But often that ostensible lack of standing has more to do with how the protest arguments are crafted than the facts underlying the procurement.  The Court of Federal Claims’s recent decision in Precision Asset Management Corp. v. United States (No. 15-1495) is a good … Continue Reading

OHA and COFC Agree: Mentor/Protégé JV Agreements Must Be Specific to Avoid Affiliation

Recent decisions by the Small Business Administration (“SBA”) Office of Hearings and Appeals (“OHA”) and the Court of Federal Claims offer important advice to anyone in the process of drafting and negotiating a mentor/protégé joint venture agreement:  Be specific.  Those agreements, in many cases, are the crown jewel of the mentor-protégé program enabling mentors and … Continue Reading

Supreme Court grants certiorari in VA procurement case

Last week the Supreme Court granted certiorari to hear arguments in Kingdomware Technologies, Inc. v. United States, Docket Number 14-916, an ongoing dispute over whether the Veterans Benefits, Health Care, and Information Technology Act (“the Act”), 38 U.S.C. § 8127, requires the Department of Veterans Affairs’ (“VA”) to set aside all of its procurements for … Continue Reading

Supreme Court’s Denial of Cert Means Questionable Future for Certain Cooperative Agreements

On April 20, 2015, the Supreme Court declined to review a March 2014 Federal Circuit decision holding that the Department of Housing and Urban Development (“HUD”) cannot use cooperative agreements—and instead must use procurement contracts—to administer funds under Section 8 of the United States Housing Act of 1937.  The case is CMS Contract Management Services … Continue Reading

Agency’s Continued Evaluation of Bids Does Not Violate CICA Stay

In a decision earlier this month, the Court of Federal Claims (“COFC”) found that an agency’s continued evaluation of bids during the pendency of a stay under the Competition in Contracting Act (“CICA”) neither violates CICA nor constitutes “a de facto override” of the stay.  The case is Caddell Construction Co. v. United States, Nos. … Continue Reading

COFC: Agency Not Obligated to Apply an Inflation Adjustment to Value of Bidder’s Previously Completed Project

The Court of Federal Claims recently rejected a bid protester’s argument that federal procurement law required the Department of State’s Bureau of Overseas Building Operations (“OBO”) to apply an inflation adjustment to the value of one of the protester’s previous projects, which would have enabled it to satisfy the notice of solicitation’s minimum value requirement. … Continue Reading

COFC: In “Quirky CDA Realm,” Contractor Need Not Submit Its Own Claim Before Appealing Adverse Contracting Officer Decision

Judge Mary Ellen Coster Williams of the Court of Federal Claims recently clarified the procedural requirements of the Contract Disputes Act (“CDA”) that a contractor must meet before appealing an adverse Contracting Officer decision.  In Total Engineering, Inc. v. United States, No. 13-881C (Fed. Cl. Jan. 26, 2015), the Army Corps of Engineers terminated Total’s … Continue Reading

COFC: Not Everything Is “In Connection With A Procurement”

The Court of Federal Claims recently considered the extent to which its Tucker Act bid protest jurisdiction extends to Government “make-or-buy” decisions.  In VFA, Inc. v. United States, No. 14-173 (Fed. Cl. Oct. 21, 2014), VFA protested a Department of Defense (“DOD”) announcement that it would “standardize” the various facility-assessment software tools used by its … Continue Reading

Court of Federal Claims Stays Decision Requiring Commercial Item Contractor to Comply with Non-Commercial Practices

Contractors supplying commercial products and services to the U.S. Government under the Federal Supply Schedule (“FSS”) or General Services Administration (“GSA”) Schedules program may be required to comply with non-commercial requirements. Until recently, it was thought that rules in Part 12 of the Federal Acquisition Regulation (“FAR”) applicable to commercial item purchases—rules that restricted agencies … Continue Reading
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