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.
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 GAO saw as a patent ambiguity in the solicitation before the deadline for receipt of proposals. The Court disagreed, however, and concluded that the solicitation did not contain a patent ambiguity and that LabCorp did not waive its claim by failing to bring a protest before the proposal period closed.
LabCorp alleged that while the General Services Administration’s e-Buy website (where bidders were required to submit their proposals) listed the submission deadline as 2 p.m. Eastern time, the formal solicitation stated that the deadline to submit proposals was 2 p.m. Central time. Although LabCorp contacted the VA when it noticed the discrepancy, and the VA confirmed that proposals were due at 2 p.m. Central time, when LabCorp attempted to submit its bid at 1:03 p.m. Central Time, GSA’s e-Buy website would not accept the bid and sent LabCorp an electronic notice that the RFQ had closed at 2 p.m. Eastern.
While GAO concluded that the discrepancy between the deadline for proposals in the solicitation and on the e-Buy website was a patent ambiguity that LabCorp should have protested before the close of procurement, Judge Allegra concluded that there was no patent ambiguity because the solicitation unambiguously stated the deadline for proposals, and the Court refused to use extrinsic evidence such as the e-Buy website to import ambiguity in an otherwise unambiguous solicitation. Because the discrepancy was not a patent ambiguity, the Court, unlike GAO, concluded that LabCorp had not waived its claim. The Court noted that LabCorp brought the discrepancy to the VA’s attention when it discovered the problem, and that LabCorp did not know the website would prevent it from submitting its bid until it tried to submit it and it was too late to object further.
The Court also imposed discovery sanctions on the government for failing to preserve a copy of the e-Buy website, because without those records, the Court could not evaluate what LabCorp saw prior to the close of the procurement. For a discussion on those sanctions, see my post here.
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:
- The absolute rule that pre-award solicitation challenges must be filed before the submission date for proposals;
- The rule that any post-award protest must be filed within 10 days of when an offeror knows or should have known of the basis for protest, unless subject to a mandatory debriefing, in which case the protest must be filed within 10 days of that debriefing, and;
- In the event that an agency protest has been filed, the rule that a COFC protest must be filed within 10 days of when the offeror knew or should have known of the adverse decision in the agency protest.