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Under the False Claims Act’s (“FCA”) first-to-file bar, “no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.”  But can a relator amend her complaint to add, remove, or substitute relators without violating the first-to-file bar?  Recently, the Third Circuit in In re Plavix…

Earlier this Fall, the Armed Service Board of Contract Appeals dismissed an appeal for lack of jurisdiction because the certified claim lacked a proper signature. Appeal of NileCo General Contracting LLC, ASBCA No. 60912 (Sept. 22, 2017). This simple oversight proved decisive. Although this case does not chart a new course in Contract Disputes Act (CDA) jurisprudence, it serves as a helpful reminder that the Board’s jurisdiction hinges on compliance with basic requirements. Failing to meet any of those requirements could have significant consequences.
Continue Reading Government Contracts 101 Reminder: Certified Claims Must Include a “Signature”

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

This week, the General Accountability Office (“GAO”) published a decision reaffirming its jurisdiction over protests of “mixed transaction” leases.  Generally, GAO’s protest jurisdiction is limited to the procurement of goods and services, which does not include leases of federally-owned property.  However, in certain circumstances, a transaction involving a lease includes a procurement of goods and services.  GAO characterizes these as “mixed transactions” and has exercised jurisdiction over protests involving such transactions.

Specifically, GAO has outlined two categories of mixed transactions.  The first involves transactions where the government agency receives a direct but intangible benefit that aids the agency in the discharge of its mission.  The second are transactions where the agency receives a concrete and tangible benefit that involves the delivery of goods and/or services of more than de minimus value.

Last year, GAO addressed both categories in a protest by Blue Origin against NASA for use of a launch pad at the Kennedy Space Center.
Continue Reading GAO Reaffirms Protest Jurisdiction Over “Mixed Transaction” Leases, But Questions Remain

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 component departments with a single DOD-owned “Sustainment Management System” (“SMS”).  VFA, a provider of facility-assessment software and processes, argued that DOD’s action violated the Competition in Contracting Act, and that DOD should obtain the software via the competitive procurement process.  The Court reduced the underlying issue to a simple analogy: “if the Government owned an apple orchard, must it go to the market and compare prices of other apples before picking in its orchard?”  The Court concluded no, it must not, and dismissed VFA’s protest.
Continue Reading COFC: Not Everything Is “In Connection With A Procurement”