On April 26, the Federal Circuit issued a decision in Crawford v. United States (a C&M case), holding that a U.S. Army combat veteran is entitled to recover his attorneys’ fees arising from a dispute related to obtaining medical retirement benefits earned during his service. In the underlying dispute on remand to the Army Board
In this episode, hosts Rob Sneckenberg and Olivia Lynch are joined by colleague Amy O’Sullivan to discuss the Court of Federal Claims’ recent decision in HWI Gear, Inc., which held that the solicitation’s inclusion in full of the text of FAR 52.219-28 required a small business offeror to recertify its size status prior to award
Last month, in National Government Services, Inc. (“NGS”) v. United States—a pre-award bid protest handled by Crowell & Moring—the Federal Circuit ruled that “workload caps” imposed by the Centers for Medicare & Medicaid Services (“CMS”) in its administration of the Medicare Program violated the Competition in Contracting Act’s (“CICA”) “full-and-open competition” requirement. In
Much that has been written about the bid protest reforms in the Section 809 Panel’s final report has focused on Recommendations 66-69, which expressly address (and propose changes to) the protest process at the U.S. Government Accountability Office (“GAO”) and the Court of Federal Claims (“COFC”). But the 809 Panel’s most impactful recommended changes to
In a recent blog post, we explained that the Federal Circuit’s decision in Cleveland Assets, LLC may have narrowed the COFC’s bid protest jurisdiction. Prior decisions had held that a protester need only allege a violation of statute or regulation “in connection with” a procurement or proposed procurement to fall within the COFC’s Tucker Act bid protest jurisdiction. But in Cleveland Assets, the Circuit held that the COFC lacked jurisdiction because the specific statute alleged to have been violated was not a “procurement” statute. We questioned whether the Court had intentionally narrowed the COFC’s bid protest jurisdiction.
Continue Reading Federal Circuit Denies Rehearing En Banc for Decision Potentially Narrowing the COFC’s Bid Protest Jurisdiction
When deciding where to file a bid protest, the most fundamental consideration is perhaps the most obvious one: does your desired venue have jurisdiction to hear your arguments?
In a recent decision, Cleveland Assets, LLC v. United States , the Federal Circuit may have changed that analysis for certain Court of Federal Claims (COFC) bid protests.Continue Reading Did the Federal Circuit Narrow the COFC’s Bid Protest Jurisdiction?
Last month, the Federal Circuit decided a case over 70 years in the making. Following the bombing of Pearl Harbor in 1941 and full-scale U.S. entrance into World War II, the government entered into a series of contracts with oil companies to ramp up production of aviation gasoline (“avgas”) desperately needed for the war effort. But along with increased production came increased waste and toxic byproducts, notably spent alkylation acid and “acid sludge.” Safe waste disposal could not keep up with production, and much of the waste was eventually dumped at a site in Fullerton, California.
Until last week, the oil companies were on the hook for the cleanup costs. Thanks to the Federal Circuit’s recent ruling, though, the government must now reimburse the contractors for their remediation costs. The discussion below traces the course of the litigation, outlines the Federal Circuit’s legal analysis, and discusses how the decision represents but one potential avenue for U.S. government contractors to recover environmental remediation costs.
Continue Reading Federal Circuit Requires Government to Indemnify Contractors for CERCLA Remediation Costs Based on “Taxes” Provision in WWII Contracts
Although the Government shut down on October 1, 2013, contractors must remain diligent in analyzing their protests, claims, and other litigation matters to ensure key deadlines are not missed. Importantly, while some Government offices are closed, most courts (including the Court of Federal Claims and the Federal Circuit) remain open and the Armed Services Board of Contract Appeals (“ASBCA”) and the Civilian Board of Contract Appeals (“CBCA”) will remain open for receiving filings. The Government Accountability Office (“GAO”) is closed, but has advised that any deadlines falling on a date in which the Office is closed, will be moved to the first day GAO reopens, similar to how a weekend or holiday deadline is treated under the rules. Considering there is no way of knowing exactly when GAO will reopen, contractors must be ready to have their items filed at a moment’s notice. More importantly, to ensure a timely CICA stay notice is sent by GAO, protesters will want to ensure their protests are filed as early as possible. Below are more details for each venue.
Continue Reading Government Shut Down – What Does It Mean for Protests, Claims, and Litigation?
In another example of the Court of Federal Claims ("Court") and the Government Accountability Office (GAO) reaching different conclusions, the Court sustained a $32 million protest in a recent decision brought against the Department of Veterans Affairs ("VA"), whereas GAO had dismissed the protest as untimely on the grounds that LabCorp should have protested what
CORRECTION (5/15/12): A prior version of this blog post first posted on May 11, 2012, analyzed the proposed amendment to the Tucker Act discussed herein under the mistaken impression that it had been part of the committee mark version of the 2013 National Defense Authorization Act. We have since learned that the proposed amendment to the Tucker Act was not included in the bill that went to committee vote. The below analysis has been altered to examine the proposed legislation in the proper context. We apologize for the error.
On April 25, 2012, the Department of Defense submitted proposed legislation to the House Armed Services Committee for consideration in the 2013 National Defense Authorization Act (NDAA) that would dramatically amend the Tucker Act, 28 U.S.C. § 1491(b), by importing essentially all of the GAO’s rigid timeliness rules with regard to bid protest actions and applying them to protests filed before the U.S. Court of Federal Claims (COFC). Amongst the GAO timeliness rules currently contained in 4 C.F.R. § 21 that DoD proposed to be added to the Tucker Act and apply to the COFC include: