Photo of Steve McBradyPhoto of Michelle ColemanPhoto of John NakonecznyPhoto of Zariah Altman

In Konecranes Nuclear Equip. Servs. LLC, ASBCA, Nos. 62797, 62827 (May 7, 2024), the Armed Services Board of Contract Appeals (Board) awarded approximately $4.9 million in delay-related breach damages to Konecranes Nuclear Equipment Services (Konecranes) due to the Navy’s breach of its implied duty to not interfere on a commercial-item contract for the provision of 25-ton general purpose portal cranes.

Continue Reading An Uplifting Tale: Crane Supplier Recovers Breach Damages Because Commercial-Item Contract Did Not Incorporate Stop-Work Clause
Photo of Steve McBradyPhoto of Skye MathiesonPhoto of Michelle ColemanPhoto of John NakonecznyPhoto of Tyler Piper

In Portland Mint v. United States, Case No. 22-2154, the Court of Appeals for the Federal Circuit reinstated the Portland Mint’s claim that the government breached an implied-in-fact contract to pay the Portland Mint for coins tendered under the government’s Mutilated Coin Redemption Program.  The Court’s decision is a reminder of the jurisdictional importance in pleading a contract as implied-in-fact rather than implied-in-law. 

Continue Reading Funny Money: Federal Circuit Gives Its Two Cents, Reverses Dismissal of Implied-In-Fact Contract Claim
Photo of Anuj VohraPhoto of Rob SneckenbergPhoto of Issac Schabes

In Percipient.ai, Inc. v. United States, the Federal Circuit considered Percipient.ai Inc.’s (Percipient) protest arising out of the National Geospatial-Intelligence Agency’s (NGA) SAFFIRE procurement, for the improvement of the agency’s production, storage, and integration of geospatial intelligence data.  Percipient’s protest was unusual—filed in 2023, it related to a task order NGA awarded to CACI, Inc. (CACI) two years earlier, for which Percipient did not (and could not) bid.  But Percipient’s protest did not challenge the award to CACI.  Instead, Percipient challenged NGA’s (and CACI’s) alleged failure, during task order performance, to conduct sufficient market research as to the commercial availability of AI software—for which Percipient already had a commercial offering that purportedly met NGA’s needs—before CACI began developing its own software at significantly higher cost.  Percipient alleged this failure violated 10 U.S.C. § 3453, which establishes a preference for commercial items/services and instructs agencies to procure them “to the maximum extent practicable.”

Continue Reading Federal Circuit Narrows FASA Task Order Bar; Expands “Interested Party” Standing
Photo of Peter J. EyrePhoto of M.Yuan Zhou
Commerciality, Employee-Owned Businesses, Procurement Collusion Strike Force

This week’s episode covers a final rule regarding commerciality and price reasonableness under procurements for major weapon systems, a DOD pilot program involving employee-owned businesses, and an update on the Procurement Collusion Strike Force, and is hosted by Peter Eyre and Yuan Zhou. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without.

ListenCrowell.com | PodBean | SoundCloud | Apple Podcasts 

Photo of Stephanie CrawfordPhoto of Adelicia R. CliffePhoto of Jonathan M. BakerPhoto of Michael Samuels

On May 13, 2024, the Department of Defense (DoD) issued an instruction implementing policies and procedures that DoD will use to identify contractors (including uncleared contractors) requiring foreign ownership, control, and influence (FOCI) determinations, review related information, and address FOCI concerns.  These policies and procedures were put in place pursuant to Section 847 of the 2020 National Defense Authorization Act[1] (Section 847).  These FOCI requirements will, for the first time, subject many uncleared DoD contractors to rigorous disclosure requirements, scrutiny, and potential mitigation by the Defense Counterintelligence and Security Agency (DCSA). 

Continue Reading Why Should They Have All the Fun? DoD Instruction Expands DCSA’s FOCI Reach Beyond Cleared Contractors
Photo of Steve McBradyPhoto of Skye MathiesonPhoto of Michelle ColemanPhoto of J. Chris HailePhoto of John NakonecznyPhoto of Amanda McDowell

In Lockheed Martin Aeronautics Company, ASBCA No. 62209 (a C&M case), the Armed Services Board of Contract Appeals (Board) awarded $131,888,860 in damages plus applicable interest in connection with Lockheed Martin’s claim for the cumulative disruptive impacts it experienced in performing over and above work on the C-5 Reliability Enhancement and Re-Engining Program. The Board previously issued decisions addressing release, the statute of limitations, and laches, as well as written discovery.

Photo of Nicole Owren-WiestPhoto of John E. McCarthy Jr.Photo of Jonathan M. BakerPhoto of Zariah Altman

On May 3, 2024, in Geospatial Technology Associates, LLC v. United States, COFC No. 16-346C, the U.S. Court of Federal Claims denied the government’s motion to dismiss for lack of jurisdiction and, alternatively, for summary judgment due to alleged inaccuracies in a copyright registration, holding that plaintiff Geospatial Technology Associates, LLC’s (“plaintiff” or “GTA”) patent and copyright infringement claims pursuant to 28 U.S.C. § 1498 raise issues that “must be addressed at trial.” This newest development follows GTA’s original March 2016 lawsuit against several government agencies—including the Department of the Army, the Department of the Air Force, and the National Geospatial-Intelligence Agency (“NGA”)—alleging patent and copyright infringement of the underlying software code of its product, “NINJA.pro.” 

Continue Reading Contractor’s Copyright Infringement Claims Raise Issues That “Must be Addressed at Trial”  
Photo of Nicole Owren-WiestPhoto of Erin Rankin

It All Adds Up

Nicole Owren-Wiest and Erin Rankin continue their discussion of TINA. In this episode, they dive into the definition of cost or pricing data. Spoiler alert: the devil’s in the details. “It All Adds Up” is Crowell & Moring’s podcast covering the latest government contract accounting, cost, and pricing developments.

ListenCrowell.com | PodBean | SoundCloud | Apple Podcasts 

Photo of Peter J. EyrePhoto of M.Yuan Zhou
Cyber, Semiconductors, AI, False Claims Act

This week’s episode covers cybersecurity updates, a proposed rule regarding prohibition on semiconductors produced by certain Chinese manufacturers, DOL guidance entitled “Artificial Intelligence and Equal Employment Opportunity for Federal Contractors,” and two settlements under the civil False Claims Act, and is hosted by Peter Eyre and Yuan Zhou. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without.

ListenCrowell.com | PodBean | SoundCloud | Apple Podcasts 

Photo of Steve McBradyPhoto of Rob SneckenbergPhoto of Michelle ColemanPhoto of Tyler A. O'ConnorPhoto of Eric HerendeenPhoto of Tyler Piper

In the Crowell & Moring case Parsons Government Services, Inc. v. Department of Energy, CBCA 7822, the Civilian Board of Contract Appeals (Board) denied the government’s motion to dismiss concerning Parsons’ claim for additional incentive fee in connection with its performance operating a salt waste processing facility at DOE’s Savannah River Site.  The underlying contract relates to a first-of-its-kind facility to treat and reduce liquid radioactivity in nuclear waste.  In its decision, the Board rejected the government’s motion to dismiss, holding that Parsons had pled sufficient facts to support its claims regarding superior knowledge, impracticability of performance, and breach of the duty of good faith and fair dealing.