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
In Bitmanagement Software GmbH v. United States, the Federal Circuit vacated and remanded a decision by the Court of Federal Claims (COFC) that found the Navy was not liable for copyright infringement even though it was undisputed that the Navy made 429,604 copies of Bitmanagement’s BS Contact Geo software when it only paid for
In Tolliver Group, Inc v. U.S. (Jan. 22, 2020), the Court of Federal Claims granted summary judgment in favor of a contractor who sought reimbursement of legal fees incurred in successfully defending against a False Claims Act (FCA) suit filed by a relator. The qui tam action arose from a defect in the original contract—the
In Ingham Regional Medical Center v. U.S. (Jan. 6, 2020), the Court of Federal Claims compelled production of certain government investigatory documents that the Court found were not privileged work product prepared “in anticipation of litigation.” The Medical Center sued to recover payments for outpatient healthcare services performed in connection with DoD’s TRICARE program
In a prior alert, we highlighted the unusual remedy ordered in Caddell Construction Co. v. U.S., in which the Court of Federal Claims nullified the award of a construction contract and ordered the agency to reopen discussions with only one firm. The court explained that the unusual remedy was appropriate because misleading discussions had
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