Justia Government Contracts Opinion Summaries

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The Federal Circuit affirmed the Civilian Board of Contract Appeals' decision denying P.K. Management's claim that it should receive individual payments for inspections of Custodial properties under a contract with the Department of Housing and Urban Development. The court agreed with the Board's determination that the contract terms unambiguously cover routine inspections through a monthly fee rather than individual payments.In this case, the court read the Contract as whole and held that the plain meaning places compensation for routine inspections of Custodial properties under Contract Line Item Numbers (CLIN) 0006 rather than CLIN 0005AA. The court explained that, because the Contract is unambiguous, it follows the plain meaning without considering extrinsic evidence or related arguments. The court considered P.K. Management's remaining arguments and found them unpersuasive. View "P.K. Management Group, Inc. v. Secretary of Housing and Urban Development" on Justia Law

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The Army Corps of Engineers issued a request for proposals. NIKA bid but was not awarded a contract. NIKA made a timely request for debriefing. The Corps sent NIKA a written debriefing and alerted NIKA of the right to submit additional questions. NIKA did not submit additional questions. NIKA filed a protest at the Government Accountability Office (GAO) six days after the written debriefing. Under 31 U.S.C. 3553(d), bid protests filed at the GAO invoke an automatic stay of procurement during the pendency of the protest if the federal agency awarding the contract receives notice within five days of debriefing. GAO denied the stay as untimely.NIKA filed suit, citing 10 U.S.C. 2305(b)(5)(B)(vii), which states that “[t]he debriefing shall include . . . an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing.” The Claims Court instituted the stay. The bid protest concluded and the stay has ended.The Federal Circuit reversed, first holding that the issue was not moot, being capable of repetition but evading review. The text of 31 U.S.C. 3553(d) indicates that when no additional questions are submitted, the “debriefing date” is the date upon which the party receives its debriefing. The five-day period begins on the debriefing date, rather than two days later. Because NIKA did not file at the GAO within the five-day period, it did not timely invoke the stay. View "NIKA Technologies, Inc. v. United States" on Justia Law

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Fisk, an LLC formed in 2018, had two members; one is an attorney. Fisk collaborated with the City of DeKalb regarding the redevelopment of a dilapidated property. Under a Development Incentive Agreement, if Fisk met certain contingencies, DeKalb would provide $2,500,000 in Tax Increment Financing. In 2019, Nicklas became the City Manager and opened new inquiries into Fisk’s financial affairs and development plans. Nicklas concluded Fisk did not have the necessary financial capacity or experience, based on specified factors.Fisk's Attorney Member had represented a client in a 2017 state court lawsuit in which Nicklas was a witness. Nicklas considered funding incentives for other development projects with which, Fisk alleged, Nicklas had previous financial and personal ties.The City Council found Fisk’s financial documents “barren of any assurance that the LLC could afford ongoing preliminary planning and engineering fees,” cited “insufficient project details,” and terminated the agreement. Fisk sued Nicklas under 42 U.S.C. 1983, alleging Nicklas sought to retaliate against Fisk and favor other developers. The Seventh Circuit affirmed the dismissal of the claims. Fisk did not exercise its First Amendment petition right in the 2017 lawsuit. That right ran to the client; Fisk did not yet exist. Fisk had no constitutionally protected property right in the agreement or in the city’s resolution, which did not bind or “substantively limit[]” the city “by mandating a particular result when certain clearly stated criteria are met.” Nicklas had a rational basis for blocking the project, so an Equal Protection claim failed. View "145 Fisk, LLC v. Nicklas" on Justia Law

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The 1936 Randolph-Sheppard Vending Stand Act (RSA), 20 U.S.C. 107(a), authorizes blind persons to operate vending facilities on federal property. The Department of Education prescribes RSA regulations and designates the state agency for issuing RSA licenses. Ohio expands the RSA to state properties. Ohio’s Bureau of Services for the Visually Impaired (BSVI) implements the RSA and Ohio-RSA.Cyrus, a blind vendor, has participated in the Ohio RSA program since 1989. Pursuant to Grantor Agreements with Lucas County and the University of Toledo, Cyrus paid $504,000 in commissions to the university and county. In 2014, the Ohio Attorney General issued a formal opinion that conditioning RSA-vending at state-affiliated universities on commission payments was illegal. Cyrus filed a grievance and stopped making payments to the university. BSVI notified the university that the commission requirement "is void.” BSVI denied Cyrus’s grievance and took no action on the county commissions. A state hearing officer denied relief. Cyrus filed an arbitration complaint under the RSA’.An RSA panel found that BSVI breached its duties by requiring commission payments to both locations The Sixth Circuit held that the RSA prohibits commissions, even for facilities on county-owned properties; prospective relief was appropriate. RSA arbitration panels are enough like civil litigation in Article III courts that sovereign immunity applies. Ohio has not waived its immunity from RSA damages awards imposed by federal arbitration panels. The panel, therefore, exceeded its authority in awarding damages and interest. View "Ohio v. United States Department of Education" on Justia Law

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Laron Young appealed summary judgment entered in favor of Burleigh Morton Detention Center (“BMDC”). Young was an inmate at BMDC. Reliance Telephone of Grand Forks, Inc. (“Reliance”) contracted with BMDC to operate its inmate telephone system. Every call that was not listed as “private” within the Reliance system was automatically recorded. It was undisputed that the telephone number for Young’s attorney was not on the list of private numbers and various calls between himself and his attorney were recorded. Young sued BMDC and Reliance arguing his Sixth Amendment right to counsel was violated and that BMDC had not complied with N.D.C.C. 12- 44.1-14(1), which required correctional facilities to ensure inmates have confidential access to their attorneys. The district court dismissed the claims against Reliance for lack of jurisdiction, and granted summary judgment in favor of BMDC, concluding Young had not alleged facts to support a finding that he was prejudiced by the recordings and therefore his right to counsel was not violated. The court also concluded Young had not alleged facts to support a finding that BMDC violated N.D.C.C. 12-44.1-14(1). The North Dakota Supreme Court affirmed, that to the extent relief might be available for Young’s claim, he did not allege facts to support a finding that BMDC knowingly intruded into the communications he had with his attorney or that prejudice or a substantial threat of prejudice existed. Therefore, the district court did not err when it granted BMDC summary judgment on Young’s Sixth Amendment claim. With respect to Young's statutory claim, the Court found the plain language of the statute did not require correctional facilities to affirmatively identify an inmate's attorney's telephone number as Young argued. Rather, by its own language, N.D.C.C. 12-44.1-14 was “subject to reasonable . . . correctional facility administration requirements.” The Court thus concluded BMDC’s policy allowing inmates or their attorneys to register attorney telephone numbers as confidential numbers not to be monitored did not constitute a violation of N.D.C.C. 12- 44.1-14(1). View "Young v. Burleigh Morton Detention Center, et al." on Justia Law

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The VA sought to procure cable gun locks with information about its suicide prevention line imprinted on the lock body, on a label attached to the cable, and an accompanying wallet card. VA submitted a requisition form to the Government Publishing Office (GPO), which issued an invitation for bids, with unrestricted competition. In a bid protest, the Government Accountability Office found that the Veterans Benefits Act (VBA), 38 U.S.C. 8127(i), applied. VA submitted a revised requisition. VA maintains a database of all verified Service-Disabled Veteran-Owned Small Businesses (SDVOSBs). The GPO’s contracting officer concluded that the GPO was obligated to employ unrestricted competitive bidding without a Rule of Two analysis. The Rule of Two requires that when two or more verified and capable SDVOSBs are identified, the acquisition must be set-aside for SDVOSBs, provided the contracting officer has a reasonable expectation that two or more verified SDVSOBs will submit offers and that the award can be made at a reasonable price. The contracting officer stated that the GPO would “leverage the VA database" to ensure that verified firms received an opportunity to bid.The Claims Court dismissed a pre-award bid protest, reasoning that the solicitation fell within the printing mandate, 44 U.S.C. 501, which requires that governmental "printing, binding, and blank-book work” be done at the GPO; that the VA adequately explained its decision to employ the GPO; and that the VA had met its obligation to secure GPO compliance “to the maximum extent feasible” with the Rule of Two. The Federal Circuit reversed. The printing mandate applies only to the production of written or graphic published materials; the solicitation at issue does not involve “printing.” View "Veterans4You, Inc. v. United States" on Justia Law

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BGT contracted with the Navy to construct and deliver a generator. The Navy agreed to supply but failed to deliver an exhaust collector and engine mounts (government-furnished equipment "GFE"). Consistent with Federal Acquisitions Regulations (FAR), the contract provides that the Navy “shall consider” an equitable adjustment if it does not deliver the GFE; gives the Navy the right to modify its GFE commitments; and provides that the Navy “shall consider” an equitable adjustment if it modifies those GFE commitments. It requires that equitable adjustments be made according to 48 C.F.R. 52.243-1. The contract also incorporates a clause from outside FAR, providing that no statement or conduct of government personnel shall constitute a change and that the contractor shall not comply with any order, direction, or request of government personnel unless it is issued in writing and signed by the Contracting Officer. The Navy accepted the completed generator but rejected BGT’s request for an equitable adjustment.The Claims Court dismissed BGT’s subsequent lawsuit, finding that BGT had contractually waived its claims of constructive change through ratification, official change by waiver, and breach for failure to award an equitable adjustment and insufficiently alleged a breach of the implied duty of good faith and fair dealing. The Federal Circuit affirmed the dismissal of the good faith and fair dealing claim but vacated the dismissal of the remaining claims. Even assuming that the contracting officer is not chargeable with having ordered the withdrawal of the GFE, there is an alternate pathway to relief. If relief under the standard FAR provisions were not available, the government could avoid liability for reneging on its GFE commitments in any case simply by withdrawing GFE without written notice from the contracting officer. View "BGT Holdings LLC v. United States" on Justia Law

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In 2014, Edelweiss filed under seal its qui tam complaint, seeking to recover more than $700 million in false claims allegedly paid by the state and political subdivisions. The defendants were entities involved in the marketing of government-issued variable-rate bonds. The Attorney General reportedly received multiple extensions of the 60-day period for investigation and in October 2015, filed a notice declining to intervene. The next day, Edelweiss successfully moved to further extend the seal to January 2016. Edelweiss’s second motion to extend the seal, (to June) was also granted. Edelweiss filed no further motions to extend the seal but, for two years after the seal period expired, did not move to lift the seal despite two admonitions from the court. In June 2018, Edelweiss finally asked the court to unseal the case but did so incorrectly. Ultimately, the clerk of the court informed Edelweiss that it had unsealed the action around December 4, 2018. Weeks later, Edelweiss began serving the defendants.The court of appeal affirmed the dismissal of the defendants. The time from October 2015 to December 2018 is included in the three-year period during which service must be accomplished because, even if Edelweiss was unable to serve the summons until the seal was lifted, the continuing of the seal after October 2015 was not a circumstance beyond Edelweiss’s control, Code of Civ. Proc. 583.240. View "Edelweiss Fund, LLC v. JP Morgan Chase & Co." on Justia Law

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Aetna brought a qui tam action to recover damages and fees occasioned by the surgical center's fraudulent billing practices. The trial court denied the surgical center's petition to compel arbitration of the quit tam action. At issue is Aetna's claims of fraudulent insurance billing practices by the surgical center and its healthcare billing services in violation of the Insurance Fraud Protection Act (IFPA).The Court of Appeal affirmed and concluded that the qui tam action is not subject to arbitration because it is brought on behalf of the state which is not a party to the contract between the insurance company and the surgical center. In this case, California is the real party in interest and it cannot be compelled to arbitrate this qui tam IFPA action because it is not a signatory to the contracts. View "California ex rel. Aetna Health of California Inc. v. Pain Management Specialist Medical Group" on Justia Law

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Boeing entered into contracts with the Air Force that require Boeing to deliver technical data with “unlimited rights,” meaning that the government has the right to “use, modify, reproduce, perform, display, release, or disclose [the] technical data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.” Notwithstanding the government’s unlimited rights, Boeing retains ownership of any technical data it delivers under the contracts.Boeing marked each submission to the Air Force with a legend that purports to describe Boeing’s rights in the data with respect to third parties. The government rejected Boeing’s technical data, finding that Boeing’s legend is a nonconforming marking because it is not in the format authorized by the contracts under the Defense Federal Acquisition Regulation Supplement, Subsection 7013(f). Boeing argued that Subsection 7013(f) is inapplicable to legends that only restrict the rights of third parties. The Armed Services Board of Contract Appeals agreed with the government.The Federal Circuit vacated. Subsection 7013(f) applies only in situations when a contractor seeks to assert restrictions on the government’s rights. The court remanded for resolution of an unresolved factual dispute remains between the parties regarding whether Boeing’s proprietary legend, in fact, restricts the government’s rights. View "Boeing Co. v. Secretary of the Air Force" on Justia Law