In MVL USA, Inc. et al. v. United States, the United States Court of Federal Claims (“COFC”) held that the provisions of FAR 22.505, 52.222-33 and 52.222-34 (collectively, the “PLA mandate”), which required the use of project labor agreements (“PLAs”) on large-scale federal construction projects valued above or at a certain threshold, violated the Competition in Contracting Act (“CICA”). As we previously reported here, former-President Biden issued Executive Order 14063 in February 2022, instructing federal agencies to require construction contractors and subcontractors on projects valued at $35 million or more to “agree, for that project, to negotiate or become a party to” a PLA. A few months later, the FAR Council promulgated a final rule implementing the executive order in FAR 22.505, 52.222-33 and 52.222-34. Continue Reading COFC Holds That Federal PLA Mandate Is Unlawful; Reinterprets Blue and Gold Waiver Rule
CBCA Denies the Government’s Motion for Summary Judgment Based on an Issue of Fact Regarding the Contractor’s Reservation of Rights via a Transmission Email
In Fortis Industries, Inc., CBCA 7967 (Sept. 18, 2024), the Civilian Board of Contract Appeals (CBCA) denied in part the government’s motion for partial summary judgment on the issue of whether the contractor released its claims by signing a modification terminating the contract for convenience. During contract performance, the General Services Administration (GSA) imposed monthly deductions to contract payments as a response to certain performance issues. GSA later proposed to terminate the contract for convenience and sent a contract modification stating that all obligations under the contract were concluded except payment for work performed in June 2022. The contractor signed the modification but stated in its transmittal email that it was owed payment for services in May 2022 as well. Continue Reading CBCA Denies the Government’s Motion for Summary Judgment Based on an Issue of Fact Regarding the Contractor’s Reservation of Rights via a Transmission Email
An Uplifting Tale: Crane Supplier Recovers Breach Damages Because Commercial-Item Contract Did Not Incorporate Stop-Work Clause
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
Contractor’s Copyright Infringement Claims Raise Issues That “Must be Addressed at Trial”
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”
Recent Developments from the Federal Government Relating to AI
AI remains a critical focus of both the federal government and industry, with multiple efforts in recent weeks to address governance of the development and use of AI in the United States. On February 26, 2024, a U.S. Department of State-commissioned report, titled “Defense in Depth: An Action Plan to Increase the Safety and Security of Advanced AI” (Action Plan), proposed multiple U.S. Government and partner nation lines of effort to address growing national security risks posed by rapidly expanding AI capabilities, including the expectation of achieving artificial general intelligence (AGI). Just days later, on March 5, 2024, House Chairman Comer and Ranking Member Raskin introduced the Federal AI Governance and Transparency Act. This bipartisan bill would focus government resources on increasing transparency, oversight, and responsible use of federal AI systems and centrally codifying federal governance of agency AI systems. Additionally, on March 28, 2024 the Office of Management and Budget released the final guidance on Memorandum M-24-10, Advancing Governance, Innovation, and Risk Management for Agency Use of AI as we address here.Continue Reading Recent Developments from the Federal Government Relating to AI
Who CARES? The ASBCA Might.
In Aviation Training Consulting, LLC, ASBCA No. 63634 (Jan. 11, 2024), the Armed Services Board of Contract Appeals (ASBCA) confirmed that a contractor’s properly asserted claim for relief under Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act is a claim under the Contract Disputes Act (CDA) and denied the Air Force’s motion to dismiss for lack of jurisdiction.Continue Reading Who CARES? The ASBCA Might.
Contractor Discovers the High Cost of Misrepresenting a Material Fact: Summary Judgment Denied in Part
On December 19, 2023, the United States District Court for the District of Utah denied summary judgment in part to Vanderlande Industries (Vanderlande), holding that a reasonable jury could find that Vanderlande negligently misrepresented the viability of subcontractor Ludvik Electric Co.’s (Ludvik) pass-through claims during the parties’ settlement negotiations over the claims. Continue Reading Contractor Discovers the High Cost of Misrepresenting a Material Fact: Summary Judgment Denied in Part
ASBCA Allows Subcontractors’ Pandemic-Related Claims to Move Forward
On December 20, 2023, the Armed Services Board of Contract Appeals (Board) denied the government’s motion to dismiss a prime contractor’s pandemic-related claims filed on behalf of its subcontractors. The Board rejected the government’s arguments that the claims failed to state any claims for relief that could be granted, were barred by the affirmative defense of sovereign acts, and failed to provide separate sums certain for purported sub-claims. Continue Reading ASBCA Allows Subcontractors’ Pandemic-Related Claims to Move Forward
DoD Releases Additional Guidance on the Department’s Artificial Intelligence Strategy
On November 2, 2023, the Department of Defense (DoD) released its 2023 DoD Data, Analytics, and Artificial Intelligence Adoption Strategy (2023 Strategy), and an accompanying Fact Sheet, to accelerate the adoption of analytics, data, and artificial intelligence (AI) technologies that will enable better and faster decision-making at all levels and across the DoD. The 2023 Strategy builds upon and supersedes the DoD’s first AI Strategy published in 2019, reported on here, and the revised Data Strategy published in 2020 to continue the DoD’s digital transformation, unifying previous guidance and enabling stronger alignment and synchronization to scale advanced capabilities for use across the DoD. Continue Reading DoD Releases Additional Guidance on the Department’s Artificial Intelligence Strategy
Strike When the Iron is Hot: Court of Federal Claims Found a Contractor’s Defense to a Termination Was Precluded by its Failure to Previously Assert Those Claims in Litigation Before the ASBCA
On August 25, 2023, in ECC CENTCOM Constructors, LLC v. United States, COFC No. 21-1169, the U.S. Court of Federal Claims (“the Court” or “COFC”) barred ECC CENTCOM Constructors, LLC (“ECC”) from asserting claims that should have been asserted before the Armed Services Board of Contract Appeals (“ASBCA”) citing the doctrine of claim preclusion.
At the ASBCA, ECC had appealed a termination for default and sought time extensions and damages due to excusable delay. The Board dismissed ECC’s appeal, finding that the Contracting Officer (“CO”) acted reasonably in terminating the contract and finding that ECC failed to present its excusable delay claims to the CO as required under M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010). ECC requested a stay to allow it time to present its delay claims to the CO, but the Board denied the request stating that it was untimely and futile because ECC’s own expert testified that less than half of the delays were excusable, which meant that the CO’s termination decision would still be justified. ECC appealed the ASBCA’s decision to the U.S. Court of Appeals for the Federal Circuit, where the Board’s decision was affirmed.Continue Reading Strike When the Iron is Hot: Court of Federal Claims Found a Contractor’s Defense to a Termination Was Precluded by its Failure to Previously Assert Those Claims in Litigation Before the ASBCA