Justia Government Contracts Opinion Summaries

Articles Posted in US Court of Appeals for the Federal Circuit
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In 2008, Zafer entered a $40 million contract to build water systems on the Bagram Air Base in Afghanistan. Zafer completed the project and submitted a request for equitable adjustment in September 2013, which it timely amended in December 2014. Zafer alleged that the government increased the cost of the project by causing delays and modifying the contract. Zafer’s detailed request sought $6.7 million and provided a breakdown of the reasons for the claimed amounts. Zafer certified its request under 41 U.S.C. 7103(b)(1), beyond what is required by 48 C.F.R. 252.243-7002(b) to certify mere requests for equitable adjustment. The parties negotiated for four-and-a-half years but did not fully resolve Zafer’s request.In February 2018, Zafer asked to convert its request for equitable adjustment into a claim. The contracting officer determined that most of the claim was time-barred because the government’s alleged conduct had transpired more than six years before Zafer had converted its request into a claim. The Claims Court found that Zafer’s claim had “accrued no later than August 1, 2011,” meaning Zafer had to have submitted a claim by August 1, 2017, for the claim to be timely, reasoning that Zafer’s request for equitable adjustment “lacks a request for a final decision” and “asks for negotiations.” The Federal Circuit reversed. Zafer’s December 2014 request for equitable adjustment implicitly requests a final decision and therefore is a claim. View "Zafer Construction Co. v. United States" on Justia Law

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Lanclos was born in 1982 at the Keesler Air Force Base Medical Center. During childbirth, she was seriously injured and as a result, suffers from Athetoid cerebral palsy. The settlement agreement for Lanclos’s medical malpractice suit required the government to make lump sum payments to Lanclos’s parents and their attorney; Lanclos would receive a single lump sum payment followed by specific monthly payments for the longer of 30 years or the remainder of her life. The government would purchase an annuity policy to provide the monthly payments. The government selected Executive Insurance to provide the monthly annuity payments. Executive encountered financial difficulties and, in 2014, reduced the amount of the monthly payments by 42%. Lanclos estimates that the reduction will result in a shortfall of $731,288.81 from the amount described in the settlement agreement.The Court of Federal Claims reasoned that the “guarantee” language in the Lanclos agreement applies to the scheduled monthly structure of the payments but not the actual payment of the listed amounts and that the government was not liable for the shortfall. The Federal Circuit reversed. Under the ordinary meaning of the term “guarantee” and consistent with the agreement as a whole, the government agreed to assure fulfillment of the listed monthly payments; there is no reasonable basis to conclude that the parties sought to define “guarantee” or to give the term an alternative meaning. View "Lanclos v. United States" on Justia Law

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The 1938 Javits-Wagner-O’Day Act prioritized purchasing products from suppliers that employed blind individuals; 41 U.S.C. 8501–06, establishes a procurement system in which the government procures certain commodities and services from nonprofit agencies that employ the blind or otherwise severely disabled. The “AbilityOne Program” regulations govern the procurement system. 41 C.F.R. 51 and reiterate the Program's mandatory nature. The DLA, within the Defense Department, issued a Solicitation that contemplated awards for a Rifleman Set with Tactical Assault Panel (TAP) and Advanced TAP (ATAP). Before an ATAP award was made, SEKRI, a nonprofit agency qualified as a mandatory source of ATAP under the AbilityOne Program, sought an injunction prohibiting the federal government from procuring ATAP from any other source.The Claims Court dismissed for lack of standing, reasoning that SEKRI cannot claim to be a prospective bidder because the solicitation period had ended and the only action SEKRI took before filing its complaint was contacting DLA, through a third party, to inform DLA that SEKRI was a mandatory ATAP source. SEKRI did not submit a bid before the deadline despite DLA’s invitation. The Federal Circuit reversed. SEKRI qualifies as a prospective bidder for standing purposes under the Tucker Act. Given DLA’s awareness during the bidding process that SEKRI is the mandatory ATAP source, SEKRI has not waived its right to bring its bid protest action under the “Blue & Gold” standard. View "SEKRI, Inc. v. United States" on Justia Law

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CSI was awarded a government contract to provide “[a]ir charter services operated by brokers, and various auxiliary services that will be used to support the contract.” After U.S. Immigration and Customs Enforcement (ICE) canceled various removal flights, CSI sought payment ($40,284,548.89) from the Department of Homeland Security. The Civilian Board of Contract Appeals dismissed the action, concluding that the CSI Terms and Conditions, which include “Cancellation Charges” were not incorporated by reference into the Schedule Contract.The Federal Circuit vacated and remanded. The Schedule Contract expressly incorporates at least one document that unambiguously identifies the CSI Terms and Conditions and makes clear such terms and conditions apply to all operations. CSI’s Offer plainly identified the CSI Terms and Conditions—along with the CSI Commercial Sales Practice attachment, its Pricing Policy, and its Commercial Price List—in the “Pricing” section of its table of contents. View "CSI Aviation, Inc. v. Department of Homeland Security" on Justia Law

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The government solicited bids for the provision of food and dining room operation services at the Fort Knox U.S. Army base and awarded the contract to the Kentucky Office of Vocational Rehabilitation (KOVR). Mitchco, previously KOVR’s subcontractor and its predecessor under a 2015 contract award, challenged the award. The contract was designated as set aside for small businesses and was subject to the Randolph-Sheppard Act (RSA), which provides that “[i]n authorizing the operation of vending facilities on Federal property, priority shall be given to blind persons licensed by a State agency [SLA],” 20 U.S.C. 107(b).Mitchco argued that KOVR was not a “small business concern,” and therefore was not eligible to receive the award. The Small Business Administration determined that KOVR was “other than a small business concern for the applicable size standard” Mitchco filed two unsuccessful protests with the Government Accountability Office, alleging that the agency improperly evaluated KOVR’s proposal and that KOVR violated the Procurement Integrity Act (PIA).After determining that the case was not moot, the Federal Circuit affirmed summary judgment in favor of the government. Mitchco was aware of the SLA priority notwithstanding the small business set-aside and did not protest the terms of the solicitation prior to bid submission and cannot challenge its applicability now. Nothing in the RSA requires a blind person at each facility. Mitchco did not establish a PIA violation. View "Mitchco International, Inc. v. United States" on Justia Law

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VAS leased a facility that housed “ICE” in Warwick, Rhode Island. In 2017, the General Services Administration (GSA) issued a request for lease proposals for a facility to house ICE in Rhode Island. VAS offered the building that ICE was already occupying, indicating that the building met the requirements. After several revisions, GSA awarded the contract to a competitor. An Office of the Inspector General report found that the procurement was “significantly flawed,” because GSA accepted a late proposal; used a calculation of the lease’s present value that favored the chosen bid; awarded the contract to a bidder that did not own or control the property at the time of its proposal; failed to timely and adequately debrief VAS; and used unclear acquisition terminology. GSA declined to take any corrective action.The Claims Court dismissed VAS’s bid protest for lack of standing, reasoning that VAS failed to show it has a substantial chance of winning the lease. The Federal Circuit reversed. If VAS’s protest proves successful, VAS would have an opportunity to participate in any new procurement. Under such circumstances, a protester has a substantial chance of winning the award for standing purposes. View "VAS Realty, LLC v. United States" on Justia Law

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Aspen sought compensation for the U.S. Army Corps of Engineers’ failure to deposit contractual payments in the account designated in its contract to outfit U.S. military health and dental clinics in Germany. The contract required payment using the Electronic Funds Transfer (EFT) information contained in the Central Contractor Registration (CCR) database. After making two payments to an account (CZ) not listed in the database for Aspen, the government maintained that Aspen held the payee out as having “apparent authority to negotiate” on behalf of Aspen and “to sign contract modifications, submit invoices, submit requests for equitable adjustments[,] and submit delay cost proposals.” The Armed Services Board of Contract Appeals held that the government did not breach the contract.The Federal Circuit reversed. When the government made the payments to the CZ account, Aspen had not changed its EFT information in the CCR database to the CZ account. The government breached the contract by making its payments to an account other than the one listed in the CCR database; the breach was material. On remand, the Board must determine whether the government has established an affirmative defense of payment. The parties dispute whether depositing funds into the CZ account benefitted Aspen but that issue cannot be resolved on appeal. View "Aspen Consulting, LLC v. Secretary of the Army" on Justia Law

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The Army requested bids for helicopter flight training and awarded the contract to L3. In a bid-protest action filed by disappointed bidder S3, the Claims Court set aside the award. After reevaluation of the bids, the Army awarded the contract to CAE. S3 filed another bid protest.The Claims Court rejected most of S3’s arguments but agreed that the assignment by the Army’s source selection authority (SSA) of a certain “strength” to CAE was irrational because that strength, which purported to provide a “significant cost savings benefit,” would result in only small and unpredictable savings, if any. Nevertheless, the Claims Court upheld the award, finding no prejudice to S3 from the identified error. The Claims Court observed that the erroneously found strength had been treated as falling within a non-price-factor category for which CAE’s proposal had been “clearly superior,” an assessment that would not be altered by the loss of a strength for which the only possible benefit could be monetary; when explicitly comparing the added benefits of the CAE proposal with its higher price in the best-value tradeoff analysis, the SSA had not made any adjustment to CAE’s price based on a cost-saving from the strength.The Federal Circuit affirmed, rejecting an argument that there is a presumption of prejudice whenever the Claims Court determines that the agency acted irrationally in making an award decision and finding no clear error in the determination that there was no prejudice. View "System Studies & Simulation, Inc. v. United States" on Justia Law

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Tolliver had a contract with the United States under which Tolliver was obliged to write technical manuals for government-used equipment. The government was obliged to supply Tolliver information relevant to that task. When the government failed to obtain and therefore failed to supply that information, the parties modified the contract. Tolliver ultimately produced the manuals. After the modification, however, a third party sued Tolliver in the name of the government under the False Claims Act, alleging that Tolliver had made a false certification of compliance with the original contract. The government, rather than intervening in the qui tam case and then dismissing it, allowed it to proceed. With evidentiary help from the government, Tolliver prevailed after incurring substantial legal fees.The contracting officer denied Tolliver's claim under the Contract Disputes Act, 41 U.S.C. 7101, for an “equitable adjustment” for reimbursement of “allowable legal fees.” The Claims Court entered judgment for Tolliver, concluding that the United States had breached an implied warranty of performance. The Federal Circuit vacated. Because Tolliver never submitted a claim of breach of that warranty to the contracting officer, the Claims Court lacked jurisdiction to adjudicate such a claim. The claim that Tolliver presented to the contracting officer was, on its face, based on legal fees, not on a breach of the implied warranty of performance. View "Tolliver Group, Inc. v. United States" on Justia Law

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U.S. Customs and Border Protection (CBP) controls and monitors traffic at the borders, including the flow of vehicles, cargo, and people. CBP’s Cargo Systems Program Directorate (CSPD) manages a commercial trade processing system, the Automated Commercial Environment (ACE), which provides automated tools and information for making admissibility decisions before shipments reach U.S. borders and supports cargo revenue collection. ACE “is not a single operating system but a collection of applications built on diverse multivendor technological platforms.” In 2018, CBP issued a solicitation requesting quotes for “application development and operation and maintenance support services” as part of CSPD’s effort to develop and support cargo systems applications. Harmonia submitted an unsuccessful pre-award agency-level protest to CBP concerning amendments to the solicitation and CBP’s limitation of bid revisions.The Claims Court rejected Harmonia’s subsequent suit on the Administrative Record. The Federal Circuit reversed in part. The Claims Court erred in determining that Harmonia waived its right to assert before the court the same challenges that it asserted in its pre-award protest. The Federal Circuit vacated a holding that CPD did not act in an arbitrary or capricious manner in evaluating Harmonia’s proposal and in making an award decision. The Claims Court must determine the merits of Harmonia’s pre-award protest and what relief, if any, Harmonia is entitled to based on that protest. View "Harmonia Holdings Group, LLC v. United States" on Justia Law