Tucker Act

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

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

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

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”