PubKLaw™

Recent Decisions

• United States Supreme Court
• Court of Appeals for the Federal Circuit
• Court of Federal Claims
• Circuit Courts
• Other Courts
• Government Accountability Office-2004 to Present
• Government Accountability Office-2001-2003
• Boards of Contract Appeals
• FAA Office of Dispute Resolution for Acquisition Cases
• Small Business Administration and Other Cases

RAM ENERGY, INC. v. THE UNITED STATES, COFC No. 09-832C, August 31, 2010. Plaintiff seeks restitution for the breach by the government of offshore oil and gas leases. (See facts in earlier cases where plaintiff was not a party, Amber I and Amber II where Judge Bruggink found that the government had committed a total breach.) The government moves to dismiss for lack of subject matter jurisdiction arguing that the claim accrued more than six years prior to filing of this action. Judge Bruggink agrees and dismisses the suit. He rejects plaintiff’s accrual suspension arguments. Good discussion of the demanding requirements of the accrual suspension rule.

HOMESOURCE REAL ESTATE ASSET S E R V I C ES, INC. v. THE UNITED STATES and BLB RESOURCES, INC., Intervenor and HOMETELOS, LP, Intervenor,and OFORI & ASSOCIATES, P.C., Intervenor, COFC No. 10-416 C, August 25, 2010. Post-award bid protest, HUD multiple award contracts limited to FSS contract holders. Chief Judge Hewitt dismisses the action for lack of standing. She notes “Even if plaintiff’s protest grounds were sustained, there were eight vendors that did not receive any award and had higher technical ratings than plaintiff. Any of these eight vendors would have provided a better choice to the government.” “Therefore, even if plaintiff were to succeed in its protest on the merits, there is not a substantial chance it would be awarded the contract. See Weeks Marine I, 79 Fed. Cl. at 35. Plaintiff cannot demonstrate that, but for the government’s alleged error, it had a substantial chance of being awarded the contract. Plaintiff is not an interested party. See Bannum, 404 F.3d 1353. Because plaintiff cannot demonstrate that it is an interested party, the court finds that plaintiff LACKS STANDING.”

L-3 COMMUNICATIONS INTEGRATED SYSTEMS, L.P. v. THE UNITED STATES and LOCKHEED MARTIN AERONAUTICS COMPANY, Intervenor, COFC No. 06-396C, August 23, 2010. Post-award bid protest, Air Force contract, Druyun issue. See earlier decision in this case. The government moves to dismiss the claim based on the breach of an implied contract of fair and honest consideration arguing that “the Federal Circuit held that this Court can no longer entertain causes of action in bid protest cases alleging breach of the implied contract to treat proposals fairly, honestly, and in good faith, which were previously brought under the Tucker Act, 28 U.S.C. § 1491(a)(1), because the Administrative Dispute Resolution Act (‘ADRA’), 28 U.S.C. § 1491(b), provides the exclusive ground for jurisdiction and relief in procurement protest cases.” Resource Conservation Group, LLC v. United States, 597 F.3d 1238 (Fed. Cir. 2010). Judge William denies the motion after a discussion of cases and commentary on the effect of ADRA on the jurisdiction of the court, noting “In sum, Resource Conservation does not hold that ADRA eliminated § 1491(a) jurisdiction in a breach of implied contract action involving a procurement. Nor did ADRA affect a protestor’s ability to argue a breach of the implied contract of fair dealing in a bid protest where jurisdiction is predicated on § 1491(b).”

PITNEY BOWES GOVERNMENT SOLUTIONS, INC. v. THE UNITED STATES and STANLEY ASSOCIATES, INC., Intervenor, COFC No. 10-257C, August 19, 2010. Post-award bid protest, DOJ contract. See earlier decision where Judge Lettow found that the order by the CO to destroy certain evaluation records was a violation of the FAR. Judge Lettow now finds for the government and intervenor on the administrative record. He rejects plaintiff’s spoliation arguments where the destroyed records have now been obtained by the government from backup tapes. He also finds that plaintiff has not been to prove from metadata that the records were changed, except for renaming of the files. The court also finds that plaintiff has not shown by “clear and convincing” evidence that the chair of the TEP was biased by her prior employment by a firm that was purchased by plaintiff’s parent company.

BLR GROUP OF AMERICA, INC. v. THE UNITED STATES, COFC No. 07-579C, August 16, 2010. Performance evaluation claim, Air Force Contract. The government requests reconsideration of the November 2008 decision in this case, where plaintiff had appealed a deemed denial of its claim. Although reaffirming her earlier decision that a dispute arising from a performance evaluation may be properly considered under the CDA, Judge Sweeney dismisses the case for lack of jurisdiction finding that plaintiff did not submit a proper CDA claim to the CO. She notes “If a contracting officer cannot be expected to understand comments from a contractor regarding a performance evaluation to be a CDA claim requesting a decision, then the contracting officer certainly is not obligated to issue a decision where no claim has been submitted. The law is well settled that contracting officers are not required to divine the existence of a claim. See Contract Cleaning Maint., Inc., 811 F.2d at 592 (holding that a contractor must provide a contracting officer with ‘adequate notice of the basis and amount of the claim’). To the contrary, the responsibility to articulate a claim and request a decision from a contracting officer rests squarely with the contractor. Thus, the ‘failure’ of a contracting officer to issue a decision in the absence of a claim cannot constitute a deemed denial.” Good discussion of the regulatory requirements behind the performance evaluation requirements and case law on relief related to a contract.

NAVARRO RESEARCH AND ENGINEERING, INC., Plaintiff, v. THE UNITED STATES, Defendant, and PORTAGE, INC. Intervenor, COFC No. 10-481, August 16, 2010. Post-award protest, DOE FSS contract for providing environmental consulting services and operational assistance at a facility to safely and permanently store radioactive waste. DOE denied plaintiff a debriefing stating that FAR Part 8 did not require a debriefing. Plaintiff brings this action for injunctive relief to require DOE to provide a debriefing. The government moves to dismissing arguing that plaintiff lacks standing and cannot meeting the standard for injunctive relief. Judge Bruggink rejects the government’s argument that because plaintiff does not have a “substantial chance” for award if it prevails that it is not an interested party. Recognizing that this is not a typical bid protest, Judge Bruggink, following the Federal Circuit’s decision in WEEKS MARINE, INC. v. THE UNITED STATES, CAFC No. 2008-5034, August 10, 2009, finds that plaintiff has standing holding that “An interested party is an actual or prospective bidder alleging a non-trivial competitive injury related to the procurement which can be redressed by judicial relief.” Judge Bruggink, however, denies the request for injunctive relief noting that “the primary issue involves the likelihood of Navarros success on a single legal argumentthat 41 U.S.C. § 253j(d) requires the DOE to provide the protestor with a post-award debriefing. Because we believe that section 253j(d) does not apply to FSS awards such as this one, we do not believe it likely that Navarro will succeed on the merits.” He also rejects the argument that the Acquisition Advisory Panel Report which Congress used to amend FASA should also be read into the FSS requirements noting that “If Congress had intended these new procedures to apply to the GSA schedule, it would have had to do so explicitly.”

DGR ASSOCIATES, INC. v. THE UNITED STATES and GENERAL TRADES & SERVICES, INC., Intervenor, COFC No. 10-396C, August 13, 2010. Bid protest, Air Force contract. The Air Force made an 8(a) award after protests by plaintiff to the agency and GAO that the government was required to compete this requirement to HUBZone firms. Following the COFC decision in MISSION CRITICAL SOLUTIONS v. THE UNITED STATES, COFC No. 09-864 C, March 02, 2010, Judge Wheeler “permanently enjoins Defendant from proceeding with the contract unlawfully awarded to General Trades & Services, and from awarding any contract that is not in compliance with the Small Business Act as interpreted herein.” As in Mission Critical Judge Wheeler finds that the HUBZone statute mandated a preference for HUBZone firms which met the “rule of two.” The court also rejects the argument by the government and intervenor that Blue & Gold Fleet L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) precludes subject matter jurisdiction because plaintiff did not file in the COFC until after the closing date. Judge Wheeler notes that plaintiff had not waived its rights as it had made timely protests to both the agency and the GAO.

IMPRESA CONSTRUZIONI GEOM. DOMENICO GARUFI v. THE UNITED STATES, COFC No. 99-400, August 11, 2010. EAJA fees case. (See earlier opinion.) Judge Hewitt finds that plaintiff is an eligible entity under EAJA, but notes that the documentation provided for the Italian counsel was inadequate. She allows plaintiff to supplement its application by submitting an “itemized statement.”

CROMAN CORPORATION v. THE UNITED STATES, COFC No. 98-405C, August 09, 2010. Forest Service timber sale case. Some six after the close of discovery the government moves to reopen discovery presumably to enable it to investigate filing a fraud counterclaim, such as in Daewoo Engineering & Construction Co. v. United States. Judge Hewitt denies the motion finding that the government has had ample opportunity to obtain the information by discovery in the action.

PENINSULA GROUP CAPITAL CORPORATION v. THE UNITED STATES, COFC No, 09-747C, August 06, 2010. Plaintiff claims breach by the Army Reserves over a proposed real property exchange agreement. The government moves to dismiss for lack of jurisdiction which Judge Futey also construes as failure to state a claim upon which relief can be granted and dismisses the case. Good discussion of the dismissal for lack of subject matter jurisdiction and dismissal for failure to state a claim. Judge Futey also note that there can be no implied contract where the parties had conditioned their discussions on the requirement for an executed agreement.

FAS SUPPORT SERVICES, LLC, Plaintiff, v. THE UNITED STATES, Defendant and VINNELL BROWN & ROOT LLC, Intervenor-Defendant, COFC No. 10-289 C, August 04, 2010. Post-award protest, Air Force contract for base operations and maintenance located in Turkey and Spain. Plaintiff protests its inclusion on the Excluded Parties List System(EPLS) and its removal from the competition after the suspension of its joint venturers and the subsequent refusal by the Air Force to return it to the competition after removal from the list. The government and intervenor move to dismiss the count relating to the suspension and placement of plaintiff on the EPLS list arguing that the court does not have jurisdiction over the suspension decision. After a good discussion of the implied-in-fact contract jurisdiction under 28 U.S.C. 1491(a)(1) and relevant case law, and concluding that the court has jurisdiction, Judge Merow grants the government’s and intervenor’s motion for judgment on the administrative record. Judge Merow finds that plaintiff’s argument on the suspension rests on its argument of the meaning of affiliate in the suspension regulations, but those arguments were not presented to the DLA during the suspension proceedings. He notes “In this circumstance an issue not raised administratively cannot properly be presented initially to a reviewing court. Issues on which judicial review is sought must first be presented for resolution to the agency having the responsibility for administrative action. By failing to present the affiliates issue to DLA, FAS cannot now present it, or any other issue not presented to DLA, for judicial review.” Finally, he concludes that the CO had a rational basis to not reinstate plaintiff in the procurement.

ENTERGY NUCLEAR FITZPATRICK, LLC, ENTERGY NUCLEAR INDIAN POINT 3, LLC, and ENTERGY NUCLEAR OPERATIONS, INC. v. THE UNITED STATES, COFC No. 03-2627 C, August 03, 2010. Plaintiff moves to strike the government’s unavoidable delay defense arguing that “the court strike the ‘unavoidable delays’ affirmative defense because the assertion of that defense would violate the mandamus order issued by the United States Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) in Northern States I.” and further that the defense was not timely raised and should be barred by laches. Judge Damich rejects the untimely and laches arguments, but does grant the motion to strike based on the DC Circuit decision in Northern and the en banc decision by the Federal Circuit in NEBRASKA PUBLIC POWER DISTRICT v. THE UNITED STATES, CAFC No. 2007-5083, January 12, 2010. He disagrees with the government on the applicability of the concurring onion by Judge Dyk in Nebraska noting that concurring opinions are not binding on the COFC. Good discussion of the DC Circuit Northern opinions and the Federal Circuit Nebraska decision.

GONZALEZ-MCCAULLEY INVESTMENT GROUP, INC. v. THE UNITED STATES, COFC No. 09-641C, August 03, 2010. Alleged HHS contract. Case transferred from the Central District of California and government moves to dismiss for “lack of subject matter jurisdiction on the grounds that Plaintiff has not complied with the pleading requirements of the RCFC and has not asserted facts necessary to establish jurisdiction.” Although finding the government’s arguments “persuasive”, Judge Damich denies the motion and allows plaintiff to amend its complaint. [Note that plaintiff is represented by counsel and not appearing pro se-jaw]

K-LAK CORPORATION v. THE UNITED STATES, COFC No. 09-771C, August 3, 2010. Plaintiff had a sole-source 8(a) contract to provide credit reports to the Air Force. The Air Force did not exercise an option to continue the contract and instead removed the requirement from the 8(a) program, over the objection of the SBA, after the Air Force found that it could obtain lower prices from a FSS contract. More than a year after its contract expired Plaintiff brings this action arguing, in part, that the Air Force illegally, and in defiance of SBA, withdrew the program from the 8(a) program in violation of 13 C.F.R. § 124.504(e). The government moves to dismiss arguing that plaintiff is complaining about the failure to exercise an option which required a CDA claim to the CO, which plaintiff has not done. Judge Firestone denies the motion to dismiss. She finds that the court has jurisdiction under Section 1491(b)(1) of the Tucker Act and also rejects the standing argument made by the government.

TODD CONSTRUCTION, L.P., f/k/a, TODD CONSTRUCTION CO., INC. v. THE UNITED STATES, COFC No. 07-324C, July 30, 2010. Plaintiff challenges its performance evaluation on a Corps of Engineer's construction contract. See earlier Todd I December 29, 2008 decision and the Todd II July 22, 2009 decision. After considering plaintiff’s amended complaint and additional briefing, Judge George Miller dismisses the action. He rejects a government argument to dismiss for lack of jurisdiction holding that the court does have jurisdiction to heard CDA suits regarding violations of performance evaluation regulations. Good discussion of whether a regulation or statute creates a right enforceable against the Government. He does however conclude that “Plaintiff Fails to Allege Any Causal Connection Between the Alleged Procedural Violations and Its Injury and Therefore Lacks Standing to Sue for Procedural Flaws”. Finally, he grants the government’s motion to dismiss for failure to state a claim noting that “Because the facts as pled do not support a finding that ‘the discretion employed in making the decision [was] abused,’ Todd II, 88 Fed. Cl. at 248, plaintiff fails to state a claim.”

INFINITI INFORMATION SOLUTIONS, LLC v. THE UNITED STATES, COFC No. 09-750C, July 29, 2010. Post-award bid protest, HUD procurement. The government files a motion for relief from judgment under Rule 60(b)(6) of the Rules of the Court of Federal Claims. Judge Lettow had set aside the award in an earlier decision. The time for an appeal of the earlier decision has lapsed. After discussing the earlier decision and the provisions and case law of the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, Judge Lettow denies the motion noting “Here, the government’s motion fails to present the ‘extraordinary circumstances’ necessary to justify relief under Rule 60(b)(6). The fact that HUD may experience difficulty related to its inability internally to support its own website, see Def.’s Mot. at 2-3, does not present a scenario where the government has found itself in a quandary beyond its control. Following the decision and judgment rendered April 2, 2010, the government chose to forgo the standard avenues for contesting the results, neither moving for a stay, nor seeking reconsideration, nor filing an appeal. The government may not now seek to rescue itself from the effects of an adverse outcome by asserting, rather circularly, that the outcome is adverse. The court is also mindful that despite the declaratory judgment having become effective on April 19, rendering the contractual award to Ideogenics a nullity, HUD and Ideogenics nonetheless appear to have treated the contract as remaining in full force and effect.”

DIVERSIFIED MAINTENANCE SYSTEMS, INC. v. THE UNITED STATES and RAASS BROTHERS, INC., Intervenor, COFC No. 09-883C, July 28, 2010. Post-award bid protest Army contract, HUBZone set aside. Judge Williams allows plaintiff to supplement the administrative record with depositons on the issue of whether the awardee was properly located in a HUBZone. In response to the argument by the government that a finding that the awardee was not located in a HUBZone would only effect future procurements, Judge William notes “Allowing a noncompliant entity to perform this HUBZone set-aside contract would contravene both the terms of the solicitation and the statutory mandate of the HUBZone set-aside program. Such an illegal award would run afoul of both the Small Business Reauthorization Act of 1997, [citations omitted] and the Competition in Contracting Act, [citations omitted]. In addition, there is a serious question as to whether the serendipity that permitted SBA to issue its decision on RBI’s HUBZone status post award should have occurred here. SBA’s own Business Development Specialists instituted decertification proceedings over three months before award. SBA granted RBI extensions of time, which caused the decertification to be delayed until after award. Then, SBA pulled the plug on the decertification without finishing that examination when the protest was being considered, but never revisited that process when the protest was dismissed. Under the circumstances, the timing of SBA’s dismissal of the protest is neither reason to deny discovery nor grounds for perpetuating what may have been an illegal award.”

TURNER CONSTRUCTION CO., INC. v. THE UNITED STATES and MCCARTHY/HUNT, JV and B.L. HARBERT-BRASFIELD & GORRIE, JV, Intervenors, COFC No. 10-195C, July 16, 2010. OCI case, post-award bid protest, Corps of Engineers contract for a hospital. Plaintiff protests the termination of its contract as the result of the Corps following the recommendation of the GAO in an earlier OCI protest. Plaintiff argues “argues that the Army’s decision to strip Turner of the contract was arbitrary and capricious for three primary reasons: (1) because the GAO recommendation, which the Army implemented, lacked a rational basis; (2) because the Army did not conduct a full and independent evaluation of the GAO recommendation prior to implementing it; and (3) because the Army did not reasonably evaluate a request to waive the OCIs that were found.” In a decision with extensive discussion of OCI issues, GAO’s role and the discretion afforded the agency, Judge Futey orders the Corps “to restore the Hospital contract to Turner and not reprocure the contract to another firm.” Judge Futey concudes “The Court must be guided by the applicable standard of review. That standard requires the Court to ascertain whether the Army acted arbitrarily and capriciously in implementing the GAO’s decision. To assess this question, the Court must address the ‘controlling inquiry’ of whether the GAO decision was ‘rational.’ Honeywell, Inc. v. United States, 870 F.2d 644, 647 (Fed. Cir. 1989). As discussed above, the GAO conducted a de novo review of the record without giving the contracting agency the deference it was due. The Court therefore holds that the Army was arbitrary and capricious in implementing the GAO’s decision, stripping Turner of the contract for the Hospital, and barring Turner from the reprocurement. Accordingly, Plaintiff’s Motion for Judgment on the Administrative Record is GRANTED as to the claim that the Army acted arbitrarily and capriciously in this regard, while defendant’s and intervenors’ cross-motions are DENIED as to this claim.
The Court, however, also holds that the Army was not arbitrary and capricious in not waiving the OCI, since the FAR commits that decision to the discretion of the agency. In addition, the Court holds that the Army was not required to conduct a ‘full and independent’ evaluation of the GAO recommendation before implementing it, since such a requirement would conflict with binding precedent. Accordingly, Plaintiff’s Motion for Judgment on the Administrative Record is DENIED as to these claims, while defendant’s and intervenors’ cross-motions are GRANTED as to these claims.”

COASTAL INTERNATIONAL SECURITY, INC. v. THE UNITED STATES, and WACKENHUT SERVICES, INC., Intervenor, COFC No. 09-667C, July 14, 2010. Post-award bid protest, NASA procurement. See earlier case where Judge Braden set the award to plaintiff aside and ordered NASA to reconstitute the SEB and appoint a new SSA. NASA now makes award to the intervenor. In a detailed 65 page opinion, Judge Braden finds for the government on counts IV-VI, and a portion of count III, noting “Therefore, the court has determined that, based on the Administrative Record, the 2009 SSA award of the NPS Contract to WSI was ‘within the bounds of reasoned decision making,’ particularly since this was a negotiated procurement. Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105 (1983); see also Weeks Marine, 575 F.3d at 1368-69; Blackwater Lodge & Training Ctr., Inc. v. United States, 86 Fed. Cl. 488, 514 (2009) (‘Mere disagreement with an agency’s handling of a procurement matter falls short of meeting the burden of proving that the process was arbitrary and capricious.’). One final observation. In the end, the NPS Contract was to be awarded to the proposal that represented the ‘best value’ to the Government. The process of making a ‘best value’ decision is not merely an exercise in adding up strengths and weaknesses, but a comprehensive comparative analysis that necessarily is influenced by the procurement official’s expertise. See Galen Med. Assocs., 369 F.3d at 1330 (explaining that, in ‘best value’ procurements, a ‘higher [evidentiary] burden exists because the contracting officer engages in what is ‘inherently a judgmental process.’’). The court is satisfied that the 2009 SSA was very well qualified to evaluate the 2009 SEB’s final findings and properly exercised his independent judgment in weighing the respective strengths and weaknesses of both proposals.” (A decision on Counts I and II which allege misconduct of a NASA official require review of the record at the GAO and are deferred.)

MAGNUM OPUS TECHNOLOGIES, INC. and THE HEALING STAFF, INC., v. THE UNITED STATES, and LUKE & ASSOCIATES, INC. and TERRAHEALTH, INC., Defendant-Intervenors, COFC Nos. 10-106C, 10-127C, July 14, 2010. Bid protest. Plaintiffs move to alter or amend the judgment entered in this case arguing primarily that the court failed to give proper consideration to plaintiffs’ economic hardship.. See earlier tailored injunctive relief decision. Judge Miller denies the motion concluding “Nonetheless, the Court’s balancing analysis did in fact give plaintiffs the benefit of the doubt and considered plaintiffs’ potential economic hardship as part of its analysis of the balance of harms. (citations omitted). In addition, the Court has reconsidered and again performed its analysis of the four factors relevant to the propriety of injunctive relief, giving full consideration to the two new affidavits proffered in connection with the motions to amend the judgment. Having done so, the Court adheres to its prior conclusion that the tailored injunctive relief mandated by the Court’s May 13, 2010 Opinion and Order reflects the fairest and most reasonable relief to which plaintiffs are entitled, consistent with the record evidence and the broader public interest. The economic hardships that plaintiffs rely upon flow from their failure to receive a contract, and even if it were the proper measure of harm, it would be discounted for the distinct possibility that plaintiffs would not, in fact, be awarded contracts. Properly considered, that hardship does not outweigh the likely and possibly grave hardships that would be visited upon active duty service members, veterans, and veterans’ families if the Court’s injunction did not assure the continued availability of critical health care services while the Air Force conducts the competitive reprocurement required by the Court’s Order. Having given full consideration to plaintiffs’ additional evidence, the Court finds that it does not alter the analysis of the fairness of the injunctive relief awarded to plaintiffs in the Court’s Order of May 13, 2010.”

ALLIED TECHNOLOGY GROUP, INC. v. THE UNITED STATES and MONSTER GOVERNMENT SOLUTIONS, LLC, Intervenor, COFC No. 10-120C, July 02, 2010. Post-award bid protest of a best-value DOJ Blanket Purchase Agreement for a web-based, automated recruiting system. Plaintiff, the incumbent, challenged the award arguing that its proposal was improperly disqualified and other errors in the evaluation. Judge Wheeler finds for the government and intervenor on the administrative record. He first rejects the argument that plaintiff lacks standing because its proposal was unacceptable. Judge Wheeler notes there were only two proposals and that plaintiff’s “standing to sue particularly is warranted where the agency evaluated Allied’s proposal as if it were eligible for award, and only belatedly declared the proposal unacceptable.” The court finds that the best-value evaluation was reasonable and even if plaintiff’s proposal had been acceptable its slightly higher technical evaluation was outweighed by a “whopping price difference” between the two proposals.

ARIZONA PUBLIC SERVICE COMPANY v. THE UNITED STATES, COFC No. 03-2832C, June 18, 2010. Spent nuclear fuel case. Judge Hodges awards $30,222,146, of some $47 million claimed, in mitigation damages to plaintiff through 2006. The court disallows the Allowance for Funds Used During Construction, or AFUDC claims noting that plaintiff “did not connect the debt directly to such mitigation activities as required by the standards applicable to a partial breach case. Plaintiff did not prove its costs of funds to a reasonable certainty.”

PARADIGM LEARNING, INC. v. THE UNITED STATES, COFC No.07-873C, June 14, 2010. Defense Acquisition University(DAU) GSA schedule contracts. Plaintiff argues that DAU breached the contracts by “(1) violating the proprietary legends contained on the products delivered under the Purchase Orders, and (2) violating the April 5, 2002 Confidentiality and Non- Disclosure Agreement that was an integral part of the Purchase Orders, without which no purchase orders would have been accepted and no products would have been provided.” The government moves to dismiss for lack of jurisdiction. Judge Sweeney denies the motion to dismiss. She finds that plaintiff’s claim complies with the requirements of the CDA and rejects the argument by the government that Northrop Grumman Information Technology, Inc. v. United States, 535 F.3d 1339 (Fed. Cir. 2008), mandates that “jurisdiction is lacking because neither the Confidentiality and Non-Disclosure Agreement nor the restrictive legends were incorporated by reference into the GSA Schedule contracts.” Judge Sweeney notes that plaintiff is not arguing that the provisions were incorporated into the GSA contracts and that the Federal Circuit held in Northrop Grumman that incorporation by reference was not a jurisdictional issue.

BENJAMIN & SHAKI ALLI AND BSA CORPORATION, v. THE UNITED STATES, COFC No. 01-669 C, June 11,2010. Judge Allegra enters a default judgment for $1,024,277.73 against BSA Corporation for failure to secure counsel to represent the corporation. A primer case for the need for a corporation to be represented by counsel and default judgments. See the earlier horror story opinion in this case.

ALLSTAR MAYFLOWER, LLC, ET AL. v. THE UNITED STATES, COFC No. 09-572C, June 10, 2010. Plaintiffs are Transportation Service Providers (TSPs) that contracted with DOD’s Surface Deployment and Distribution Command (SDDC) to provide transportation services. Plaintiffs sue under the CDA for reimbursement of certain fees. Judge Smith holds that the claims from such contract are governed by the Interstate Commerce Act, not the CDA. He further finds the claims are barred as untimely by the three years statute of limitation of 49USC 1405(f).

PITNEY BOWES GOVERNMENT SOLUTIONS, INC. v. THE UNITED STATES and STANLEY ASSOCIATES, INC, Intervenor, COFC No. 10-257C June 04, 2010. Post-award protest, DOJ contract for mail services. Plaintiff moves to supplement the administrative record alleging bias on the part of the Chairperson of the Technical Evaluation Panel(TEP) and improper destruction of the rating sheets prepared by the individual members of the TEP. Judge Lettow grants the motion allowing discovery to supplement the record. He notes that “The burden of proof required for supplementing the administrative record is lower than that required for demonstrating bad faith or bias on the merits. The test for supplementation is whether there are sufficient well-grounded allegations of bias to support an inquiry and supplementation; the protesting plaintiff need not make a showing of clear and convincing evidence of bias on the merits.” He also finds that destruction of the rating sheets was a violation of FAR 4.801 and allows depositions of the TEP members.

SOUTHERN CALIFORNIA EDISON COMPANY v. THE UNITED STATES, COFC No. 04-0109C, June 03, 2010. Spent Nuclear Fuel case. Of the $146,349,316 claim for damages, Judge Baskir “concludes that plaintiff is entitled to a total of $142,394,294 in damages, broken down roughly into the following categories: (1) approximately $92 million for construction and operation of an on-site dry storage facility, or Independent Spent Fuel Storage Installation (ISFSI), for each of its reactors; (2) approximately $23.6 million in overhead allocated to the ISFSI project; and (3) $26.8 million in expenses incurred storing SNF off-site.” As in other cases the court denies the financing costs, Allowance for Funds Used During Construction (AFUDC) noting that plaintiff “has not convincingly demonstrated that its AFUDC costs can stand as an independent interest claim.”

ASSESSMENT AND TRAINING SOLUTIONS CONSULTING CORPORATION v. THE UNITED STATES, COFC No. 10-201C, June 02, 2010. Army procurement for instruction in the Special Operations Forces Medical Courses. Plaintiff, an incumbent contractor, protests that the decision to conduct an 8(a) competitive procurement was flawed and included Procurement Integrity Act(PIA) violations. Judge Hewitt finds for the government on the administrative record. Noting the discretion afforded to the CO “under the relevant regulations to conduct market research ‘appropriate to the circumstances.’” and finds no PIA violation.

MAGNUM OPUS TECHNOLOGIES, INC. and THE HEALING STAFF, INC., v. THE UNITED STATES, and LUKE & ASSOCIATES, INC. and TERRAHEALTH, INC., Defendant-Intervenors, COFC Nos. 10-106C, 10-127C, May 28, 2010. Bid protest. A very interesting case. Plaintiffs were holders of IDIQ contracts for health services. The Air Force exercised the options on four other contracts, but not those of plaintiffs. Plaintiffs contend that the exercise of the options of the other four awardees violated the Competition in Contracting Act and FAR 17.207, and the Air Force was legally required to hold a new competition for the option work. The government moves to dismiss arguing option exercise is a matter of contract administration and not within the court’s bid protest jurisdiction. Judge George Miller agrees with plaintiffs, but denies any immediate relief, enjoining the Air Force to conduct a new competition by May 13, 2012.

KEMRON ENVIRONMENTAL SERVICES, INC. v. THE UNITED STATES, COFC No. 09-147C, May 27, 2010. Corps of Engineers contract for monitoring and conducting soil and groundwater tests at the abandoned Air Force Atlas missile site. Plaintiff “alleges that government personnel prepared and issued an unfair, inaccurate, and unreasonable evaluation of its performance under a contract for environmental remediation services. Plaintiff requests that the court declare the evaluation at issue to be false and highly prejudicial, and direct that the evaluation be rescinded or revised.” The government moves to dismiss arguing that plaintiff has not presented a cognizable claim under the CDA. The Corps issued a draft Contractor Performance Assessment Reporting System(CPARS) that was extremely critical of plaintiff’s performance and included unsatisfactory and marginal ratings. Plaintiff made various requests to the Corps to rescind or significantly modify the CPAR. After discussing the statute, regulatory and case law elements, Judge Sweeney dismisses the suit without prejudice noting “despite its numerous efforts to dialogue with employees of the Corps, Kemron has not alleged that it submitted a claim requesting a final decision from the contracting officer to its primary contact at the Corps.” and ... “In the absence of a valid written claim that comports with the CDA’s requirements, the court need not address the parties’ jurisdictional arguments related to the court’s ability to entertain claims for nonmonetary relief under the CDA.”

SHELL OIL COMPANY and ATLANTIC RICHFIELD COMPANY v. THE UNITED STATES, COFC No. 06-141C, May 27, 2010. CERCLA case arising from the production of aviation gasoline duding World War II. The contracts contained a Taxes clause which provided that the government agreed to pay: “[A]ny new or additional taxes, fees, or charges, other than income, excess profits, or corporate franchise taxes, which Seller may be required to pay by any municipal, state, or federal law in the United States or any foreign country to collect or pay by reason of the production, manufacture, sale or delivery of the [avgas].” Relying on dictionary definitions of “charges”, Judge Smith holds that the CERCLA clean-up costs are charges under the clause. He also rejects the argument by the government that the Anti-Deficiency Act(ADA) bars payment finding that the contracts were within the “authorized by law” exception of the ADA.

FIREMAN’S FUND INSURANCE COMPANY, AMERICAN HOME ASSURANCE COMPANY, FIDELITY AND DEPOSIT COMPANY OF MARYLAND, AND UNIVERSAL UNDERWRITERS INSURANCE COMPANY v. THE UNITED STATES, COFC No. 04-1692C (consolidated with Nos. 08-782C, -783C & -784C), May 26, 2010. Corps of Engineers contract for the Montgomery Point Lock and Dam Project on the White River in eastern Arkansas. Plaintiffs are the sureties who entered into a takeover agreement to complete the project. In an 171 page opinion, which also includes four consolidated cases from the ASBCA, Judge Christine Miller awards plaintiff some $8,700,000 in damages. An interesting case with many issues. Judge Miller rejects the argument by the government that the Federal Circuit’s decision in FIREMAN'S FUND INSURANCE COMPANY v. Gordon R. England, SECRETARY OF THE NAVY, CAFC NO. 00-1420, November 27, 2002, precludes the claims that arose before the takeover agreement from the bankrupt original parties noting that the “argument cannot impede consideration of plaintiffs’ claims that were subject to the valid assignment of claims, which included an express reservation of any pre-takeover claims assertable by the Government.” She also decides for plaintiff on the issue whether the specifications were design rather than performance specifications concluding that “the pertinent specifications are design specifications.” Good discussion of this issue. Citing Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 828 (Fed. Cir. 2010) Judge Miller addresses two claims that the government breached its duty of good faith and fair dealing noting that the duty “encompasses a duty not to hinder contract performance.” The court rejects the claim that “the Corps clearly breached its duty not to interfere with the Joint Venture’s performance by underwriting the Pine Bluff Project’s labor-market-distorting Modification, to the severe detriment of the Montgomery Point Project.” and “holds that the Corps is not liable for the collateral consequences occasioned by a contemporaneous project that ultimately was within the ambit of a separate government agency.” However, Judge Miller does find “that plaintiffs have shown by a preponderance of the evidence that the Corps’s unreasonably delayed response to RFI 787 constituted a breach of its implied duty of good faith and fair dealing.” Finally in a rather rare holding the court rejects the government’s last minute counterclaim finding that Plaintiffs were entitled to a fair and impartial final decision by the contracting officer. FAR 1.602-2(b). Defendant could not demonstrate that the counterclaim was the product of either [the CO’s] own analysis or that she relied on the technical input of the administrative contracting officer. Her testimony portrayed an orphan decision that she signed because her legal team recommended it. The claim was entirely developed by counsel, with some information from Mr. Clemans, and Ms. Easter acquiesced in Mr. Weisenberger’s guidance. What attention she gave the final decision was not a substantive review and analysis of the claim’s merits or a review of the technical input; rather, she merely understood the nature of the claim asserted in the decision. Such a decision hardly can be elevated to the product of the exercise of the contractor officer’s independent judgment.”

USFALCON, INC. v. THE UNITED STATES, COFC No. 09-602C, May 21, 2010. Post-award bid protest, Army IDIQ contracts for the Rapid Response Project Office. Plaintiff challenges its exclusion from the competitive range arguing that it was arbitrary to determine its proposal unacceptable as requiring a major rewrite or revision. Judge Wolski finds for the government on the administrative record finding that there was a rationale basis for the determination. Although apparently not necessary for the decision the opinion contains considerable discussion of the relevance of an agency’s source selection plans and notes that the Court “recognizes that the act of choosing an evaluation methodology is itself a discretionary decision in the evaluation process, and which takes stock of the natural and logical consequences of this act.”

TECHNICAL INNOVATION, INC. v. THE UNITED STATES, and MILLENNIUM SYSTEMS SERVICES, INC., Intervenor, COFC 09-784C, May 18, 2010. Post-award bid protest, Air Force procurement. The Air Force agreed to take corrective action and issue a new solicitation. The government moves to dismiss for lack of jurisdiction contending that the case is moot. Intervenor MSSI objects, arguing that additional information is needed before the court can determine that the corrective action has a rationale basis. Judge Wolski grants the motion to dismiss noting that “Simply stated, MSSI has no claim in this lawsuit, and any claims it may have regarding the corrective action would be the subject of a different lawsuit.”

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., and ENTERGY NUCLEAR INDIAN POINT 2, LLC v. THE UNITED STATES, COFC Nos. 03-2622C and 04-33C, May 17, 2010. Spent Nuclear Fuel case. Plaintiff Consolidated sold two plants, Indian Point Units 1 and 2, to plaintiff Entergy. Judge Wheeler awards $448,859 to Consolidated for payments to external vendors relating to spent nuclear fuel studies, but denies the rest of Consolidated’s claims “because they were not proven with reasonable certainty, or they were voluntarily relinquished at the time of sale to Entergy.” The court awards Entergy $106,123,527, much of which was uncontested. The court denied the claims by Entergy which consisted “of expenses that would have been incurred in the absence of DOE’s breach, are unsupported by Entergy’s accounting records, or are not allowed by law.” Regarding Entergy’s cost of capital claim, Judge Wheeler notes “Entergy has not shown any causal connection between a specific borrowing and a breach-related project.”

BENEFITS CONSULTING ASSOCIATES, LLC, v. THE UNITED STATES and BENALYTICS CONSULTING GROUP, Defendant-Intervenor, COFC No. 09-827C, May 14, 2010. Post-award bid protest, SEC contract for employee Supplemental Health Benefits Program. Judge Braden finds for the government on the administrative record. She denies the request by the government for an advisory opinion from the GAO. Judge Braden rejects the arguments that plaintiff lacks standing as its final proposal failed to comply with the requirements of the Solicitation. She notes that the proposal of plaintiff was found to be in the competitive range and therefore had a “substantial chance” of being awarded the contract. On the merits she found that discussions were not misleading, and rejected the argument of unequal/disparate treatment.

ELECTRONIC DATA SYSTEMS, LLC v. THE UNITED STATES, and BAE SYSTEMS INFORMATION TECHNOLOGY INC., Defendant-Intervenor, COFC No. 09-857C, May 13, 2010. Post-award bid protest, Department of Treasury contract. Judge Allegra finds for the government on the administrative record even though he found that RFP should have been amended he concludes “In the final analysis, the court remains unpersuaded that plaintiff was prejudiced by the error committed by Treasury in failing to amend the solicitation. Every indication instead is that the impact of that error was dwarfed by the huge price differential between the relevant proposals and more than offset by the adjustments made by the SSA in his best value determination. To conclude otherwise would be to depart not only from well-accepted concepts of what constitutes prejudice, but from commercial reality. Absent a showing of prejudice, plaintiff’s case must fail, even though it has been marginally successful in demonstrating that an error occurred in the subject procurement ”

BOSTON EDISON COMPANY v. THE UNITED STATES, and ENTERGY NUCLEAR GENERATION CO. v. THE UNITED STATES, COFC Nos. 99-447C & 03-2626C, May 12, 2010. Spent Nuclear Fuels(SNF) case. Judge Lettow awards damages for both firms, Boston the original owner, and Entergy, the buyer. Using the “but for” rule the court awards Entergy $4,224,696 in damages but rejects its cost of capital claim noting that “Entergy has failed to establish that its claimed financing costs were directly related to required borrowing through specific debt instruments.” The court also rejects the government’s recoupment claims but notes that “the government will have a valid claim for recoupment when the Pilgrim[Entergy] facility ceases operation.”

BAHRAIN MARITIME & MERCANTILE INTERNATIONAL B.S.C. Dba BMMI, v. THE UNITED STATES, COFC No. 09-739C, May 07, 2010. Unpublished decision. Plaintiff is a stockholding company incorporated in the Kingdom of Bahrain and brings this CDA claim. The government moves for a more definitive statement to determine whether the court has jurisdiction under 28 USC 2502(a). Judge Merow grants the motion noting “If the Kingdom of Bahrain does not permit suits by United States citizens on equal terms with those applicable to its native citizens, then the issue is raised and it must be determined whether 28 U.S.C. § 2502(a) requires dismissal of this suit.”
[See additional info by counsel for plaintiff(and list member). The key to this conundrum is in the footnote- a CDA matter before a BCA is not subject to the Reciprocity Act and the issue here is whether or not a direct access CDA matter which comes before the Court is subject to the Reciprocity Act, whether the CDA has superseded the Reciprocity Act for cases before the Court.
Here’s a link to my objection and summary of the law: http://www.procurement-lawyer.com/pdf/bmmi_objection.pdf
The unfortunate thing here is that Judge Merow wanted our position on Bahraini law and I provided it last Monday. Here’s the link: http://www.procurement-lawyer.com/pdf/bmmi_response.pdf
Given that we satisfy the Reciprocity Act in any event, I don’t think Judge Merow will now rule on the issue. - Cy Phillips

GENERAL ELECTRIC COMPANY V. THE UNITED STATES, COFC No. 99-172C, April 29, 2010. Post Retirement Benefits, Segment Closing Costs. At issue is “the treatment of Pay-As-You-Go (’PAYG’) post-retirement benefits (‘PRB’) costs following the 1993 closing of two business segments formerly held by the plaintiff.” Judge Firestone “finds that GE’s PAYG PRB costs are not covered by CAS 413 and cannot be included in the GEA and MAO segment closing adjustments.” See similar RAYTHEON case this same date wherein counsel representing plaintiffs also file amicus curiae briefs.

HYPERION, INC. v. THE UNITED STATES, COFC No. 09-758C, April 29, 2010. Pre-award bid protest, Defense Intelligence Agency procurement. Plaintiff protests its elimination from the competitive range. Judge Bruggink finds for the government on the administrative record. Plaintiff argues, in part, that the evaluators finding that its Technical Management rating of “highly inadequate” cannot be reconciled with its past performance rating of “minimum doubt exists, based on the Offeror’s performance record, that the Offeror can successfully perform the proposed effort.” Judge Bruggink disagrees concluding that “that such assessments are not inconsistent because the Past Performance evaluators had a fundamentally different task than did the Technical/Management evaluators.”

MANTECH, INC., & L-3 SERVICES, INC., v. THE UNITED STATES, COFC Nos 09-804C and 09-805C, April 29, 2010. Pre-award bid protest, Defense Intelligence Agency procurement (same procurement as Hyperion below). Plaintiffs argue that DIA “acted arbitrarily, capriciously, and in violation of law in excluding them from its competitive range” In a heavily redacted opinion Judge Bruggink finds for the government on the administrative record after addressing “whether the DIA’s ratings on the Technical/Management and Small Business factors were arbitrary with respect to either bidder; whether the DIA’s Past Performance rating for L-3 was arbitrary; whether DIA price realism analysis was arbitrary; and whether the DIA’s overall CRD[competitive range determination] was arbitrary.”

RAYTHEON COMPANY v. THE UNITED STATES COFC No. 05-448C, April 29, 2010. Post Retirement Benefits, Segment Closing Costs. “At issue is whether Raytheon’s post-retirement benefit ‘PRB’) costs are ‘pension costs’ within the meaning of Cost Accounting Standard (‘CAS’) 412.40(a), 48 C.F.R. § 9904.412-40(a) (2010).” Judge Firestone “finds that Raytheon’s PRB costs are not ‘pension costs’ and cannot be included in the segment closing adjustments at issue in this case.” See similar GENERAL ELECTRIC case this same date wherein counsel representing plaintiffs also file amicus curiae briefs.

PlanetSpace Inc. v. United States of America, Space Exploration Technologies Corporation, Intervenor, and Orbital Sciences Corporation, Intervenor, COFC No. 09-476 C, April 26, 2010. Bid protest, NASA procurement to procure cargo transportation services to and from the International Space Station under fixed-price, indefinite delivery/indefinite quantity contracts. Judge Block dismisses with prejudice four of the six counts in the complaint, but stays the action on matters raised in two counts; allegations that: (1) NASA’s source selection authority unlawfully rejected plaintiff’s proposal after making a de facto nonresponsibility determination; and (2) the SSA did not perform a legally sufficient trade-off analysis. The remand requests the “SSA to provide a sworn statement making explicit and unambiguous the trade-off analysis that he believed was implicit in his source selection decision.” Good discussion of the issues of a trade-off analysis in a best value procurement. In a preliminary comment, Judge Block takes issue with some of the redactions proposed by the parties indicating that “the court cannot fathom how some of the proposed redactions implicate any competition-sensitive or otherwise confidential information.”

SHAMROCK FOODS COMPANY, v. THE UNITED STATES and U.S. FOODSERVICE, INC., Intervenor-defendant, COFC No. 10-109 C, April 22, 2010. Post-award bid protest Defense Supply Center contract for food service at Fort Bliss, Texas. Judge Bush lifts the TRO which had been issued and denies plaintiff’s motion for judgment on the administrative record. Citing BLUE & GOLD, FLEET, L.P. v. UNITED STATES, and HORNBLOWER YACHTS, INC. she holds that plaintiff has no standing to bring this post-award protest as it did not submit a bid and did not protest until after contract award.

JONES AUTOMATION, INC. v. THE UNITED STATES, COFC No. 10-174C, April 22, 2010. Bid protest, Army Corps of Engineers. Plaintiff seeks a TRO requiring that an option be exercised and alleging that the Corps will be conducting sole-source procurement that will exclude plaintiff. Judge Allegra refuses to issue the TRO finding that plaintiff has no likelihood of success on the merits and that the failure to exercise an option is not a protest matter.

METROPOLITAN VAN AND STORAGE, INC., Plaintiff, v. UNITED STATES, Defendant, v. GUARDIAN MOVING AND STORAGE CO., INC., Intervenor, COFC No. 09-473C, April 16, 2010. Post-award bid protest, IDIQ contract for the storage and management of household goods and unaccompanied baggage for the Department of Defense with award based on low price technical acceptable offers. Judge Horn finds for the protestor and vacates the award even though the GAO had apparently found for the government in seven or so prior protests. The court rejects the argument by the government and intervenor that the award did not incorporate the Performance Work Statement (PWS) and finds that the awardee did not offer the required minimum storage space. [Counsel for the intervenor points out that “this was a procurement for a fixed-price services contract where the contractor had all of the performance risk, i.e., if during performance the contractor did not have a warehouse that was large enough for the Government's storage, or if the warehouse lease wasn't of sufficient term, the contractor had to supply the required warehouse at its own expense.”]

U.S. HOME CORPORATION, BEECHWOOD AT EDISON, LLC, BEECHWOOD SHOPPING CENTER, LLC v. THE UNITED STATES, COFC No. 09-63 C, April 15, 2010. Plaintiffs purchased real property from GSA and now claim breach damages and other relief for contamination of the property with hazardous materials. Plaintiffs presently also have a district court action under CERCLA. The government move to dismiss apparently arguing that “CERCLA necessarily limit the obligations of the government to the response costs available in a CERCLA suit, thereby excluding breach of contract remedies traditionally available in [the COFC].” Judge Bush rejects argument finding “that the CERCLA covenants in the 2003 deed do not necessarily, as a jurisdictional matter, restrict plaintiffs’ legal theories and recoveries to those provided by CERCLA.”

INFINITI INFORMATION SOLUTIONS, LLC v. THE UNITED STATES, COFC No. 09-750C, April 09, 2010. Post-award protest of HUD 8(a) procurement. Judge Lettow sets aside the award finding that HUD violated SBA regulations by providing potential awardees with a draft SOW which was essentially identical to that in the awarded contract. He also finds that “HUD’s actions with regard to the SDVO ‘preference’ were consequently arbitrary and capricious, and prejudicial to those vendors such as Infiniti who assumed, reasonably, that there was no ambiguity as to whether SDVO was a requirement.”

NYCAL OFFSHORE DEVELOPMENT CORP. v. THE UNITED STATES, COFC No. 05-249C, April 09, 2010. Plaintiff has a 4.75 percent interest in oil leases which were found to be breached by the government. Plaintiff did not join the other owners in seeking restitution and now seeks lost profits instead. The government argues that plaintiff must elect restitution because its former co-lessees chose that remedy. Judge Bruggink rejects the government’s argument noting that “There is therefore no inherent inconsistency in allowing Nycal’s lost profits claim to go forward. It is not picking and choosing which parts of the contract it wishes to enforce. There is no windfall to Nycal. The rights of the other parties have not been compromised and would not be even if they had not yet been adjudicated. Nor, for that matter, was the government able to point to any prejudice to itself. In short, there is no prohibition on Nycal’s claim for lost profits. Plaintiff can continue to assert its rights to damages for breach with respect to its fractional interests in the leases.”

THE LEGAL AID SOCIETY OF NEW YORK v. THE UNITED STATES, COFC No. 09-237C, April 08, 2010. The case arises from LASNY’s grant from the Administrative Office of the United States (AO) to provide public defender services in the Southern and Eastern Districts of New York. Plaintiff claims some $1.7 million to pay for a portion of the plaintiff’s pension deficit which it argues that the government had agree to pay. Judge Firestone dismisses the action for failure to state a claim. She finds that the grant terms expressly insulate the government from such liability and that there is no basis to consider the extrinsic evidence that plaintiff argues should be considered.

ALLIED TECHNOLOGY GROUP, INC. v. UNITED STATES, and MONSTER GOVERNMENT SOLUTIONS, LLC, Defendant-Intervenor, COFC No. 10-120C, April 02, 2010. Post-award bid protest, DOJ procurement. Plaintiff moves to supplement the administrative record with declarations and other documents. Intervenor requests that if plaintiff is allowed to supplement that it too be given that opportunity. Judge Wheeler grants Allied’s motion, in part, by allowing certain documents as noted: “Because one member of the Technical Evaluation Panel did, in fact, review internet materials pertaining to Monster’s past security breaches, the Court grants Allied’s request to include that information in the administrative record. Additionally, because the OPM/OMB memorandum and the USAJOBS screenshot were available to and probably should have been reviewed by the agency in making its award decision, they too will be included in the Court’s review of the record.” He denies the declarations of both parties noting “After due consideration, the Court finds that the declarations offered by Allied and Monster are not necessary for an effective judicial review because they contain no more than opinion testimony of individuals proclaiming the alleged superiority of one product over another.” Good discussion of the issues in supplementing the administrative record and the Federal Circuit case of Axiom Resource Management, Inc. v. THE UNITED STATES

PACIFIC GAS & ELECTRIC COMPANY v. THE UNITED STATES, COFC No. 04-74C, March 30, 2010. Spent Nuclear Fuel(SNF) case. On remand from the Federal Circuit decision Judge Hewitt awards plaintiff $89,004,415 in damages. However she denies some $1,418,816 in legal costs which were raised for the first time in the remand. She notes “The court does not view the appellate mandate as affording plaintiff an opportunity to present evidence of legal costs for the first time on remand. Plaintiff’s claim for legal costs is therefore barred by the mandate rule or, in the alternative, the claim for legal costs, raised for the first time on remand and not included in an amended Complaint, is barred by the statute of limitations.”

BIOFUNCTION, LLC v. THE UNITED STATES, COFC No. 07-67C, March 26, 2010. Plaintiff had an express fixed price contract with the Postal Service. Plaintiff also “agreed to operate a pilot program in addition to its work under the express contract, at no cost to the Government, in exchange for an endorsement letter if the Postal Service liked the program. The side agreement was an oral one, made between plaintiff and a Post Office employee who did not have authority to bind the Government.” After the express contract was terminated for the convenience of the government plaintiff files a claim for costs incurred under the pilot program. The government moves to dismiss arguing that “the pilot program was not executed by an authorized government official, and it did not include monetary compensation as consideration.” Plaintiff argues that the pilot agreement was an implied-in-fact contract that was ratified when the express contract was extended. Judge Hodges finds for the government noting that a implied-in-fact contract requires “(1) mutuality of intent to contract, (2) consideration, (3) lack of ambiguity in offer and acceptance, and (4) authority on the part of the government agent entering the contract to bind the Government” and none of these conditions were met here. He also dismisses plaintiff’s unjust enrichment theory as beyond the jurisdiction of the court.

ESKRIDGE RESEARCH CORPORATION v. THE UNITED STATES, BOWHEAD SCIENCE AND TECHNOLOGY, LLC, Intervenor, COFC No. 10-50C, March 26, 2010. Post-award protest. Corps of Engineers procurement. Plaintiff protested to the GAO too late for an automatic stay. The Corps said it would take corrective action by reevaluating the proposals and GAO dismissed. Prior to the completion of the Corps’ corrective action, plaintiff requests the COFC to enjoin the award and require the Corps to award an interim contract. Judge Firestone dismisses the claims involving the original award as moot as the Corps is taking corrective action. She also dismisses the claims relating to the possible outcome of the corrective action as not ripe. She notes that the court has no jurisdiction over plaintiff’s claim that it was improper for intervenor to hire former employees of plaintiff and dismisses that claim..

DATAMILL, INC. v. THE UNITED STATES, COFC No. 09-872 C, March 23, 2010. Bid protest, Army Missile Command. Plaintiff alleges that the procurement by the Army via a task order issued by the Navy violated CICA as plaintiff had no opportunity to compete. Judge Sweeney grants the motion by the government to dismiss finding that the court lacks jurisdiction under FASA of the protest of a task order. She finds that the protest is “‘In Connection With’ the ‘Issuance’ of a Delivery Order” and “DataMill’s contention that the decision to conduct a noncompetitive solesource procurement is somehow separate and distinct from the subsequent procurement process that leads to the issuance of a delivery order finds no support in the FASA or in the case law DataMill cites.” She concludes “Because DataMill has not alleged that the delivery order in this case exceeded the scope, period, or maximum value of the Navy Contract, its protest is barred by the FASA. The court, therefore, lacks subject matter jurisdiction over its protest and grants defendants motion to dismiss.”

DATAMILL, INC. v. THE UNITED STATES, COFC No. 09-872 C, March 23, 2010. See above decision on the merits. Judge Sweeney issues this separate decision to address plaintiff’s request for expedited discovery and the motion by the government to strike a declaration submitted by plaintiff. Good discussion of factors in supplementing the administrative record and the admissibility of lay opinion testimony. Judge Sweeney denies the request for discovery and strikes the declaration in its entirety.

MADISON SERVICES, INC. v. THE UNITED STATES, COFC No. 09-675 C, March 23, 2010. Bid protest, FEMA procurement. Plaintiff challenges the cancellation of the solicitation in this negotiated procurement. See earlier decision. Judge Block denies the protest and grants the government’s motion on the administrative record finding that the decision was rational. He notes the great discretion afforded to a CO in a negotiated procurement and rejects the argument by plaintiff that FAR 15.206(e) requires the decision to cancel be based on market or other research finding that the phrase “based on market research or otherwise” in the FAR provision “is naturally read to mean ‘based on market research or otherwise based,’ not, as plaintiff seems to believe, ‘based on market research or other research.”’ In a somewhat unusual appendix he explains why he rejects most of the arguments for redaction made by the government.

IMS ENGINEERS-ARCHITECTS, P.C. v. THE UNITED STATES, COFC No. 07-291C, March 18, 2010. Corps of Engineers contract. Addressing issues not resolved in the earlier decision in this case Judge Christine Miller now finds that release which plaintiff gave to the government prevents further claims. She notes that “Plaintiff did not show that the December 23, 1996 release was coerced, tainted by wrongful conduct, obtained by fraud, or obviated by subsequent consideration. Plaintiff received a $499,999.00 settlement, which was fair and equitable, particularly given the paucity of plaintiff’s documentation then and now. Plaintiff has not been able to substantiate entitlement to more, even with the benefit of discovery.”

SYSTEM FUELS, INC., on its own behalf and as an agent for SYSTEM ENERGY RESOURCES, INC. and SOUTH MISSISSIPPI ELECTRIC POWER ASSOCIATION v. THE UNITED STATES, COFC No. 03-2624C, March 11, 2010. Spent Nuclear Fuels case. Judge Braden reconsiders her earlier decision on causation and the cost of borrowed funds as damages. After reviewing the borrowed fund issue and relevant cases Judge Braden finds that she is bound by the Federal Circuit’s decision in England v. Contel Advanced Sys., Inc., 384 F.3d 1372, 1379 (Fed. Cir. 2004) and modifies her earlier decision and now excludes the cost of borrowed funds from the damages award. She does note that she agrees with Judge Newman’s dissent in England but observes than an en banc review by the Federal Circuit is needed resolve the issue.

HADDON HOUSING ASSOCIATES, LLC, and THE HOUSING AUTHORITY OF THE TOWNSHIP OF HADDON, NEW JERSEY, v. THE UNITED STATES, COFC No. 07-646C, March 10, 2010. Plaintiff Haddon Housing Associates, Ltd. (“Haddon Associates”), the owner of Rohrer Towers II Apartments, leased the property to plaintiff Housing Authority of the Township of Haddon, New Jersey (“Housing Authority”), who then entered into a housing assistance payments contract (“HAP Contract”) with the United States Department of Housing and Urban Development (“HUD”). Plaintiffs allege breach. The government moves to dismiss plaintiff Haddon Associates as not being a party to the contract with HUD. Haddon Associates argue that it is properly joined as a necessary plaintiff under RCFC 19 and contend that Haddon Associates is a real party in interest under RCFC 17. Alternatively, Haddon Associates argues that is an entity that could join the action under RCFC 20 which provides for permissive joinder. After discussing the joinder and real party in interest issues, Judge Lettow denies the motion to dismiss finding that “Nonetheless, factually, whether Haddon Associates is a necessary party, a real party in interest, or a permissive party is not fully ascertainable from the documentary record before the court because some ambiguity exists as to the interrelationship of Haddon Associates with Housing Authority.”

C.R. PITTMAN CONSTRUCTION COMPANY, INC. v. THE UNITED STATES, COFC No. 08-196C, March 10, 2010. Corps of Engineers contract to build pumping stations in the New Orleans area. Plaintiff claims that damages caused by flooding from Hurricane Katrina to material purchased for the contract and stored at an off site location are the responsibility of the government under the terms of the Damage to Work Clause in the contract. Judge Smith grants summary judgment for the government holding the ordinary meaning of the language “to any part of the permanent work” in the subject clause “cannot include uninstalled, unincorporated equipment.” Judge Smith also rejects the other arguments by plaintiff that such an interpretation would make other provisions of the contract superfluous.

THE DALLES IRRIGATION DISTRICT v. THE UNITED STATES, COFC No. 05-1042C, March 02, 2010. EAJA case. Judge Lettow awards $211,530.74 in fees and costs of the $954,446.01 claimed by plaintiff. The court rejects the government’s argument that it was substantially justified. The court also rejects the argument by the government that the court should aggregate the assets of the farms that receive water from the District in determining the EAJA size limitations. Judge Lettow notes “This court is persuaded by the decisions of the Fifth, Ninth, and District of Columbia Circuits holding that the language of 28 U.S.C. § 2412(d)(2)(B)(ii) unambiguously contemplates that it is the association alone that must satisfy the standards for eligibility, not also its constituent members as an aggregate group.” Good discussion of EAJA fee issues.

MISSION CRITICAL SOLUTIONS v. THE UNITED STATES, COFC No. 09-864 C, March 02, 2010. Bid protest, Army procurement. Judge Hewitt frames the issue as follows-“This case presents what is primarily a legal, rather than a factual, question: whether statutory language provides for the prioritization of the Historically Underutilized Business Zone (HUBZone) Program over the 8(a) Business Development Program (and over the Service-Disabled Veteran-Owned (SDVO) Business Concern Program, although not at issue in this case) or provides for parity between the programs.” She sustains the protest concluding “The court declares unlawful the Army’s procurement actions in making the sole source award to Copper River without first determining whether a set-aside for HUBZone small business concerns was required under the HUBZone statute. The court orders defendant to determine whether the criteria of 15 U.S.C. § 657a(b)(2)(B) are met, such that the contract opportunity at issue in this case must be awarded on the basis of competition among qualified HUBZone small business concerns. See 15 U.S.C. § 657a(b)(2)(B). The court enjoins the United States from awarding the IT support services contract at issue in a manner that is not in compliance with the Small Business Act as the court here interprets it.”

ENERGY NORTHWEST v. THE UNITED STATES, COFC No. 04-10 C, February 26, 2010. Spent Nuclear Fuel(SNF) case. Judge Damich finds for plaintiff awarding it its claimed $56,859,3455 in mitigation expenses incurred for dry storage of its SNF. Addressing the claims the opinion notes that plaintiff prevails in the forseeability, causation under the “but-for” standard and reasonableness factors. Judge Damich also awards $6,068,909 as an independent claim for the cost of financing the dry storage of its SNF. Good discussion of the interest or financing issues.

WHITE HAWK GROUP, INC., TODD CONSTRUCTION, LP; and WHITE HAWK/TODD, A Joint Venture v.THE UNITED STATES OF AMERICA and DMS-ALL STAR JOINT VENTURE, Intervenor-Defendant, HE & I CONSTRUCTION, INC.,Intervenor-Defendant, COFC No. 09-374C, February 25, 2010. Post-award bid protest, Army IDIQ contract for services at Fort Sill, Oklahoma. Judge Baskir dismisses the case concluding “In summary, we find that the plaintiffs fail the prejudice test based on its inferior standing in the competition. Moreover, the issue of White Hawk/Todd’s eligibility under the SBA’s size restrictions was not a factor in its failure to receive the award, nor was it a factor in its being ranked third among the three proposals.” In this multi-forum case plaintiff primarily attempts to challenge SBA decisions on its joint venture status under the 8(a) program. Judge Baskir ’s opinion discusses many of the SBA issues even they do not bear on his final opinion. [Count the number of protests, appeals and other proceedings mentioned here and win a gold star-jaw]

BELL BCI COMPANY v. THE UNITED STATES, COFC No. 03-1613C, February 24, 2010. On remand from the Federal Circuit. Plaintiff moves for partial final judgment on the claims affirmed by the Federal Circuit. Judge Wheeler notes that “Pursuant to RCFC 54(b), this Court is authorized to ‘direct entry of final judgment as to one or more, but fewer than all, claims’ upon an express finding that ‘there is no just reason for delay.’” and that “The CDA also contains a provision at 41 U.S.C. § 609(e) providing for the entry of partial final judgments in cases involving multiple claims or multiple parties.” The government objects arguing that § 609 is titled “Judicial review of board decisions” and that partial final judgment is not appropriate here. Judge Wheeler finds that the government reads § 609too narrowly and finding no just reason for delay grants the motion for partial final judgment. Judge Wheeler also notes “Defendants position in this case is directly at odds with the purpose of the Judgment Fund and the CDA. Instead of paying decided claims now and thereby adhering to established Congressional policy, Defendant wants to postpone the payment until the remainder of the case is resolved through remand proceedings. There is no coherent reason for such delay, or for the needless increase in the amount of interest the Government would pay.”

PUBLIC SERVICE COMPANY OF OKLAHOMA v. THE UNITED STATES, COFC NO. 08-501 C, February 16, 2010. Contract for the provision of power to the Army’s McAlester Army Ammunition Plant (MCAAP). At issue is whether or not the Army waived a payment provision even though the contract included a non-wavier clause which provided “No waiver by any Party hereto of any one or more defaults by the other Party in the performance of any of the provisions of this Agreement shall be construed as a waiver of any other default or defaults whether of a like kind or different nature.” Plaintiff argues that the Army implicitly waived the non-waiver provision. Judge Bush grants summary judgment for the government. She points out the four elements required to establish an implied or constructive waiver of contractual rights:“[When] the contractor is attempting to prove that it was entitled to deviate from the exact terms of the contract . . . , a plaintiff must demonstrate four elements: (1) The [contracting officer] had notice that the work differed from contract requirements. (2) Action or inaction of the [contracting officer] indicated that the non-specification performance was acceptable. (3) The contractor relied on the [contracting officer]’s action or inaction. (4) It would be unfair to permit the Government to retract the waiver.”[citations omitted] Judge Bush finds that plaintiff has failed to demonstrate that an implied waiver occurred. She also notes that Non-waiver clauses are enforceable in this circuit and that “Mere failure to object to a contract breach cannot, without more, waive a non-waiver clause.”

MARYLAND ENTERPRISE, L.L.C. v. THE UNITED STATES, COFC No. 09-301C, February 15, 2010. GSA contract for the design, finance, and construction of leased property for NOAA. Plaintiff seeks a declaratory judgment for contract interpretation under the CDA. A complicated case involving bankruptcy, receivership and standing. Judge Braden finds that plaintiff has standing, but she declines to exercise the court’s discretion to grant declaratory relief. Judge Braden addresses this issue in pp 23-24 of the decision citing two reasons. First, “claims for a breach of contract and cardinal change entail questions of fact” and “As is evident from the parties arguments and the May 12, 2009 Complaint, determinative issues are in dispute”, and second, “the United States Supreme Court has emphasized that the trial court has ‘unique and substantial’ discretion in determining whether the issuance of declaratory relief in a particular matter is appropriate. Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995)”. Finding no need for early resolution of a legal issue she declines to grant declaratory relief, but stays the matter for 90 days to allow “Plaintiff to request a Final Decision of the Contracting Officer for a sum certain alleged to be due as a result of the alleged breach of contract or alleged cardinal change claims.”

L-3 COMMUNICATIONS INTEGRATED SYSTEMS, L.P.,v. THE UNITED STATES and LOCKHEED MARTIN AERONAUTICS COMPANY, Intervenor, COFC No. 06-396C, February 16, 2010. Post-award bid protest questioning the actions of Darleen Druyun in the award to Lockheed. Plaintiff moves to supplement the administrative record with various DoD IG and other documents relation to the investigation of Druyun’s role in contract award. Judge Williams grants, for the most part, the motion to supplement. She rejects the argument by the government that “clear and convincing” evidence of bad faith or bias must be shown in order to supplement the administrative record, noting that “a lesser showing suffices -- that the allegations ‘appear to be sufficiently well grounded’ -- to warrant supplementation of the administrative record.” The opinion contains a considerable discussion of the applicability of the Federal Rules of Evidence to documents submitted to supplement the administrative record. Judge Williams concludes “that the FRE should be applied to materials that are extra-record supplementation of the agency’s AR to insure their reliability. Such materials fall within the general provision in Rule 101 that the FRE ‘govern proceedings in the courts of the United States . . . to the extent and with the exceptions stated in Rule 1101.’ Fed. R. Evid.101. None of the exceptions in Rule 1101 applies to a bid protest in the Court of Federal Claims, as no particularized evidentiary provisions govern admission of materials that never were part of the AR of a given procurement in the first place, but instead were either created in the course of the judicial proceedings (such as depositions or other testimony) or were proffered to assist the Court in understanding the agency record already in existence (such as testimony from a litigant’s representative on technical requirements or capabilities or expert testimony on a technical matter pertinent to the procurement). While not an exhaustive list, these types of extra-AR materials are illustrative of the type of supplementation which is subject to the FRE. Such materials must be distinguished, however, from documents which the agency omitted from the AR but should have included in the first place or are agency-generated and ought to be included for completeness. Because such documents should have been part of the agency record in the first place, they would not need to conform to the FRE.”

LB&B ASSOCIATES INC. v. THE UNITED STATES, COFC 08-430C, February 02, 2010. Navy contract for the maintenance and repair of facilities and the incidental handling of hazardous waste. Plaintiff, in a two count complaint, appeals the denial of its claim for the costs of hiring a subcontractor to handle hazardous wastes and providing additional onsite supervision at some locations. Both parties move for summary judgment on both counts. Plaintiff argues that the government requirement for it to hire a subcontractor and provision of additional supervision were constructive changes as outside the scope of the contract. Judge Hewitt grants the motion for summary judgment for the government on the subcontractor issue and denies both parties motions on the supervision issue. Although not finding any reference to FAR clause 49.402-4 in the contract, Judge Hewitt finds that this provision allowed the government to require plaintiff to hire a subcontractor in lieu of a termination for default.

NORTHEAST SAVINGS, F.A. v. THE UNITED STATES, COFC No. 92-550C, February 01, 2010. Winstar case. Plaintiff seeks some $129 million in lost profits, the cost of raising capital, and “wounded bank damages”. In a lengthy opinion Judge Williams applies the “substantial factor” test in analyzing whether FIRREA caused Plaintiff’s damages. She finds for the government concluding that plaintiff “has not met its burden of proving that the breach was the ‘substantial factor’ that caused it to lose profits and incur costs.”

ESTERHILL BOAT SERVICE CORPORATION v. THE UNITED STATES, COFC No. 09-735C, January 28, 2010. Post-award protest, Department of Veterans Affairs lease. Plaintiff bid on the solicitation which stated that the space should be located on one floor. Plaintiff now argues that the one floor requirement violated the FAR as being unduly restrictive. Judge Hodges denies the protest relying on BLUE & GOLD, FLEET, L.P. v. UNITED STATES, and HORNBLOWER YACHTS, INC. and holds that plaintiff waived its right to protest by not filing at the COFC before the the bids were open and considered by the government.

DMS ALL-STAR JOINT VENTURE, Plaintiff, v. THE UNITED STATES, Defendant, HE AND I CONSTRUCTION, INC., Intervenor-defendant, COFC No. 09-737 C, January 26, 2010. Pre-award bid protest, Army procurement of a firm fixed price IDIQ contract for maintenance, repair, and minor construction work on real property at Fort Sill Oklahoma. After multiple trips to the GAO plaintiff now challenges the price realism analysis of the awardee’s proposal and inadequacy of discussions. Noting the great discretion left to the government on the price realism issue, Judge Bush finds for the government on the administrative record. Good discussion of caselaw and commentary of price realism analysis of proposals in a fixed-price contract procurement.

K-MAR INDUSTRIES, INC. v. THE UNITED STATES and FIVE RIVERS SERVICES, LLC, intervenor, COFC No. 08-877C, January 26, 2010. Bid protest, Army procurement at Fort Knox. Plaintiff argues that the Army erred in giving the awardee an acceptable rating where awardee had classified several positions as exempt under the SCA. Judge Smith finds for the government concluding “that because the Army’s solicitation evaluation criteria made no mention of the SCA or other labor laws, the Army did not violate its own criteria when evaluating Five Rivers’ proposal. Furthermore, it is clear to the Court that the Army’s evaluation was rational and not a violation of law because: 1) this was a fixed-price contract; 2) Five Rivers’ did not indicate an intent not to be bound by the SCA on the face of its proposal; and 3) Five Rivers, not the Army, bore the risk of loss for a labor misclassification.”

MONTANA FISH, WILDLIFE, AND PARKS FOUNDATION, INC. v. THE UNITED STATES, COFC No. 09-568C, January 11, 2010. “This unusual action combines a pre-award bid protest with a claim for damages under the Contract Disputes Act ... ” Judge Lettow allows plaintiff to supplement the administrative record for the protest action and allows the government to bifurcate insofar as any damages on the CDA claim are concerned.

Madison Services, Inc. v. THE UNITED STATES, COFC No. 09-675 C, January 07, 2010. Pre-award bid protest, FEMA procurement. After the original protest FEMA cancelled the solicitation. The government moves to dismiss as moot and plaintiff moves for leave to amend as a supplemental complaint. Judge Block dismisses the earlier counts, but allows the supplemental complaint. Good discussion of ripeness and mootness as Justiciability issues. Judge Block notes “Accordingly, trapped between the devil of ripeness and the deep blue sea of mootness, plaintiff’s challenge to FEMA’s reissuance plans cannot escape dismissal.”

GOVERNMENT TECHNICAL SERVICES LLC v. THE UNITED STATES, COFC No. 09-630L, December 29, 2009. Post-award bid protest, Corps of Engineers contract. Plaintiff was the holder of a multiple award contract with options for the extension of the contract. Plaintiff argues that the failure of the government to exercise an option was “an action taken ‘in connection with a procurement’ under 28 U.S.C. § 1491(b)(1)”. The government moves to dismiss for lack of jurisdiction arguing that any action disputing the exercise of an option needs to be brought under the CDA, not the ADRA. Judge Hewitt agrees with the government and dismisses the action. Good discussion of the CDA versus the ADRA and cases dealing with the failure to exercise an option.

GCC ENTERPRISES, INC., Plaintiff, v. THE UNITED STATES, Defendant, IRONCLAD SERVICES, INC., Defendant-Intervenor, COFC No. 09-465C, December 23, 2009. Bid protest, Corps of Engineers procurement. Judge Firestone finds for the government on the administrative record concluding that the decision to reevaluate proposals “was not arbitrary or capricious and did not amount to an abuse of discretion.”

DAIRYLAND POWER COOPERATIVE v. THE UNITED STATES, COFC No. 04-106 C, December 23, 2009. Courts synopsis:Spent Nuclear Fuel; Standard Contract; “But for” test; 1987 Acceptance, Capacity Schedule (ACS); Annual Priority Ranking (APR); SAFSTOR; Exchanges Provision; Failed Fuel; ISFSI; Overhead and G&A; Reactor Pressure Vessel (RPV); Private Fuel Storage (PFS): SNF case. Judge Damich awards $37,658,902 in damages to plaintiff.

WISCONSIN ELECTRIC POWER COMPANY v. THE UNITED STATES, COFC No. 00-697 C, December 18, 2009. SNF case. In an 143 page opinion Judge Merow awards most of the mitigation damages claimed by plaintiff for the breach by DOE.

UNISYS CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant, and COMPUTER SCIENCES CORPORATION, Defendant-Intervenor, COFC No. 09-800C, December 18, 2009. Bid protest, TSA procurement. Judge George Miller grants plaintiff’s motion for declaratory relief. Judge Miller describes the case as folows “This unusual case involves Congress’s recent decision to limit the jurisdiction of a parallel system for protesting certain government procurements, and expand the existing process at the Government Accountability Office (“GAO”). The protestor asserts that the procurement at issue is within the jurisdiction of GAO and that the procuring agency, the Transportation Security Administration (“TSA”) must either stay performance of the contract until the conclusion of the protest in accord with 31 U.S.C. § 3553 or follow the statutory procedure for overriding that automatic stay. The Government contends that this solicitation remains under the former, parallel system, and that the automatic stay provision of § 3553 is inapplicable. The Court concludes that whether or not the procurement was conducted under the former system, the automatic stay provision is applicable, and TSA is therefore required to stay performance of the contract at issue until GAO resolves the protest or TSA seeks to override the stay. ”

BANNUM, INC. v. THE UNITED STATES and DISMAS CHARITIES, INC., intervenor, COFC No. 09-546C, December 15, 2009. Post-award bid protest, Bureau of Prisons contract. After two protests to the GAO and one earlier decision at the COFC, Judge Wheeler grants the government’s and intervenor’s cross-motions for judgment on the administrative record. He rejects the argument by plaintiff that it was improper to consider a termination for default in the government ’s past performance evaluation of plaintiff’s proposal.

DIGITAL TECHNOLOGIES, INC. v. THE UNITED STATES, COFC No. 08-604C, December 09, 2009. United States Customs and Border Protection contract. Plaintiff alleges breach and “seeks damages for breach of a fair opportunity to compete clause under its multiple-award, Indefinite Delivery/Indefinite Quantity (ID/IQ) contract ... ” The government moves to dismiss arguing that the claim is really a bid protest which is barred by FASA. Judge Marian Horn rejects the bid protest argument and denies the motion to dismiss. The decision notes approvingly the ASBCA decision in Community Consulting International, ASBCA No. 53489, (2002) which refused to dismiss a similar claim. Good discussion of contract claim jurisdiction and the breach of the “fair opportunity” argument.

CBS CORPORATION v. THE UNITED STATES, COFC No. 01-79 C, December 08, 2009. Segment Closing Date under Original CAS 413, NAVSEA contract. See earlier decision in this case. Judge Firestone grants summary judgment for plaintiff holding that segment closed when contractor stopped performing on government contract and stopped incurring any direct labor charges.

CBS CORPORATION v. THE UNITED STATES, COFC No. 01-79 C, December 08, 2009. Court’s synopsis-Government’s Segment Closing Payment under the Allowable Cost and Payment Clause Where the Segment Closing Calculation Involves a Pension Deficit and a Portion of the Pension Deficit is Transferred from the Segment Seller to Segment Buyer; Allowable Cost and Payment Clause, FAR 52.216-7; Allowability Clause, FAR 31.201-2; Generally Accepted Accounting Principles (“GAAP”) Judge Firestone grants and denies in part both parties motions for summary judgment noting that “the government is not liable to CBS for pension costs attributable to the pension deficit transferred to Northrop Grumman and CBS is not entitled to payment for that transferred deficit.”

DISTRIBUTION POSTAL CONSULANTS, INC. v. THE UNITED STATES, COFC No. 08-17C, December 07, 2009. USPS contracts known as International Customized Mail(ICM) agreements. Plaintiff alleges breach by the USPS when it terminated a contract at the request of a Mr. Dunebin, an allegedly unauthorized agent of plaintiff. The government argues that it reasonably relied upon the apparent authority of Mr. Dunnebin. Judge Bruggink finds for the government noting “Plaintiff took the risk of authorizing Mr. Dunbebin to act on its behalf and was in the best position to monitor his actions. Its failure to do so does not entitle it to shift the consequences of its conduct to the government. The government is entitled to judgment in its favor on plaintiffs claim.” Good discussion of apparent authority.

STRUCTURAL ASSOCIATES, INC./COMFORT SYSTEMS USA (Syracuse) Joint Venture v. THE UNITED STATES, COFC No. 09-372C, December 03, 2009. Post-award bid protest, Corps of Engineers contract. [Court’s synopsis: Where an agency distinguished between offerors for a contract award based on whether an offeror had experience constructing the same type of building as identified in the solicitation, the agency: (1) was not required to raise the protestor’s past experience in discussions since the agency did not consider that experience a weakness; (2) did not disregard the weighting scheme set forth in the solicitation since the solicitation explicitly provided that offerors who met all of the criteria may be more highly rated; and (3) properly conducted its best value analysis since the determination that an offeror’s possession of the same experience as sought in the solicitation warranted a higher price was within the discretion of the agency.] Judge Wiese denies the request for a PI and grants the government's motion for judgment on the administrative record.

ALATECH HEALTHCARE, L.L.C. v. THE UNITED STATES, COFC No. 09-332C, December 01, 2009. Bid protest, procurement of condoms by a USAID prime contractor. Plaintiff argues that the purchase of condoms of foreign manufacture violates a statutory requirement that domestic condoms be purchased “[T]o the maximum extent feasible.” Judge Hodges rejects the argument of the government that this is not q procurement action by the government and holds that the COFC has jurisdiction to hear the matter following the Federal Circuit's decision in Distributed Solutions v. United States, 539 F.3d 1340 (Fed. Cir. 2008). Judge Hodges remands the case “to a contracting officer authorized to administer this contract on behalf of the Agency for International Development. The contracting officer will make findings on factors other than cost used by the Agency in awarding this contract, if applicable, or provide such findings that may have been made to this court as soon as possible.”

WYOMING SAWMILLS, INC. v. THE UNITED STATES, COFC No. 07-861C, November 30, 2009. Forest Service timber sales contract. Plaintiff claims breach for the refusal of the Forest Service to grant a Market-Related Contract Term Adjustment (“MRCTA”) extension of the contract. Noting that “the doctrine of exhaustion of administrative remedies precludes ‘judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.’”, Judge Braden stays the action to allow plaintiff the opportunity to petition the Secretary of Agriculture and for the Secretary to decide whether, and for how long, to grant any extension of the Contract.

MICHAEL A. STEINBERG v. THE UNITED STATES, COFC No. 09-59 C, November 24, 2009. Not a procurement contract, but an interesting primer on the elements of the court's jurisdiction. Chief Judge Hewitt dismisses the suit which rests on a promissory estoppel claim related to tickets for the inauguration of the President.

MEDICAL DEVELOPMENT INTERNATIONAL, INC. GOVERNMENT HEALTHCARE SERVICES v. THE UNITED STATES, COFC No. 09-502C, November 18, 2009. Pre-award bid protest, Bureau of Prisons procurement for comprehensive medical services at the Federal Correctional Complex in Coleman, Florida. In a heavily redacted opinion, plaintiff(MDI) protests the evaluation of its prop[osal and its exclusion from the competitive range. One of plaintiff's arguments is that the competitive range determination was arbitrary and capricious as the determination was not made until June 30, 2009 while the solicitation required the prices to be firm only until April 1, 2009. Judge Hewitt finds for the government on the administrative record. After noting that “Contract formation requires that an offer must be definite enough to demonstrate the mutual intent of the parties to contract with one another.” she finds that “Even if it were the court's view that it would have been better practice for BOP to confirm the prices of the offerors prior to making its competitive range determination, a failure to follow a practice the court finds preferable does not make an action arbitrary or irrational. See generally E.W. Bliss, 77 F.3d at 449. Given the short amount of time that had lapsed between the Solicitation and determination of the competitive range, the familiarity of MDI, [***] and [***] with the government procurement process and the requirement that parties in the competitive range submit a Final Proposal Revision, the CO was reasonable in his determination that the offers were sufficiently definite to be included in the competitive range. Absent a finding that BOP's action was arbitrary, capricious or lacking a rational basis, there was no error and there can be no prejudice to plaintiff.”

UNITED PARTITION SYSTEMS, INC. v. THE UNITED STATES, COFC No. 03-1242C, November 19, 2009. This is a relatively small case but, as with most small cases, is fraught with issues. The importance of the relationship of “buying agencies” from the GSA MSS or FSS and the limits on their authority is one key to this decision. The USAF, as buyer, exceeded their authority and acted before they had a right to do so. The Contractor was prejudiced and the T for D was overturned. There is quite a history and Judge Lettow issued both the earlier decision to which he makes reference and this one. There were more than a few “characters” involved also.

PlanetSpace Inc., Plaintiff, v. United States of America, Defendant, Space Exploration Technologies Corporation, Intervenor, and Orbital Sciences Corporation, Intervenor, COFC No. 09-476 C, November 10, 2009. Bid protest, NASA procurement. Judge Block grants the motion of the government to supplement the administrative record and strikes several portions of plaintiff's declarations. Good discussion of issues in supplementing the administrative record and relevant case law.

PHILLIP OZDEMIR v. THE UNITED STATES, COFC No.09-432 C, November 09, 2009. Pre-award bid protest, DOE procurement. Plaintiff asserts that DOE “solicited concept papers with the intent to provide research and development funding for highly promising energy-related technologies [and that] that ARPA-E wrongfully refused to accept his concept paper for consideration.” The government moves to dismiss arguing that the action is not a procurement and is outside of the COFC bid protest jurisdiction. Judge Damich denies the motion holding that “its protest jurisdiction is not limited to procurement matters ... ” Good discussion of 28 USC 1491, its history and case law.

THE ANALYSIS GROUP, LLC v. THE UNITED STATES and SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, Intervenor, COFC No. 09-542C, November 05 , 2009. Air Force procurement through GSA FEDSIM. Plaintiff seeks reinstatement of the CICA automatic stay pending a protest at the GAO. Judge Smith states the four relevant factors as “Specifically, the Court must determine whether GSA FEDSIM: (1) relied on factors that Congress did not intend it to consider; (2) entirely failed to contemplate an important aspect of the problem; (3) offered an explanation for its decision that runs counter to the evidence; or (4) offered an explanation so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Finding for the government on all issues Judge Smith denies plaintiff's request for a TRO and dismisses the case.

AFGHAN AMERICAN ARMY SERVICES CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant, and NCL HOLDINGS, LLC, Intervenor, COFC No. 09-388 C, November 04, 2009. Post-award bid protest, Joint Contracting Command for Iraq and Afghanistan (”JCC-IA“) IDIQ procurement. Judge George Miller finds for the plaintiff on the administrative record based on several errors by the Army. However, he denies injunctive relief but does award bid and proposal preparation costs.

Philip EMIABATA d/b/a Nova Express v. THE UNITED STATES, COFC No. 06-702C, October 30, 2009. Plaintiff sues for damages alleging that the United States Postal Service breached its implied covenant of good faith and fair dealing by interfering with the performance of Nova Express' contracts. Judge Smith accepts the argument by the government that the plaintiff is collaterally estopped from relitigating the same claims for damages that were previously adjudged by final order of the Postal Service Board of Contract Appeals and grants the government's motion for summary judgment. Good discussion of collateral estoppel and res judicata.

TAKOTA CORPORATION v. THE UNITED STATES, COFC No. 06-553C, October 28, 2009. Navy contract for boat ramps and dredging. The Navy terminated the contract for default for “failure to make progress to ensure completion of the contract and to perform the contract within the specified time.” Plaintiff requests the termination be converted to one for convenience and the government moves to dismiss. Judge Bruggink notes of the four relevant factors in reviewing a decision to terminate for default —“(1) evidence of subjective bad faith on the part of the government official, (2) whether there is a reasonable, contract-related basis for the officials decision, (3) the amount of discretion given to the official, and (4) whether the official violated an applicable statute or regulation.” (citations omitted) only one is in play here, (2) was there a reasonable basis for the TFD? Judge Bruggink notes that many of the parties arguments are fact based and not conducive by motions for summary judgment. Judge Bruggink notes that “termination based on breach is a valid ground for termination even though the Navy did not rely on this justification when it issued the default termination.” Judge Bruggink grants summary judgment for the government finding that the contract required Takota to shore the seawalls and to submit a sheeting and shoring plan and there is no dispute that Takota did not shore or brace the seawalls and that Takota did not submit a sheeting and shoring plan and instead repeatedly insisted that this submittal was not required.

IMPRESA CONSTRUZIONI GEOM. DOMENICO GARUFI v. THE UNITED STATES, COFC No. 99-400C, October 23, 2009. Application for fees and expenses under EAJA. A litany of issues which must be addressed in proving size eligibility, complicated by the need to translate foreign language documents

TOTOLO/KING JOINT VENTURE v. THE UNITED STATES, COFC No. 09-104C, October 20, 2009. Pre-award bid protest, motion for reconsideration. The court denies reconsideration of the earlier decision for the government. Judge Christine Miller notes that “plaintiff's embellishments in its motion for reconsideration warrant admonishment under RCFC 11(c)(1).” She further adds “While the court charitably reads the motion for reconsideration, it advises plaintiffs counsel that unsupported and contradicted statements ‘walk[] on the razors edge of frivolity.'” [citation omitted]

CAMDEN SHIPPING CORPORATION v. THE UNITED STATES, COFC No. 09-600 C, October 15, 2009. Pre-award protest, Military Sealift Command(MSC) procurement. The RFP, as amended by Amendment 002, required offers to be valid for at least 210 days. Plaintiff's proposal contained a Standard Form 33 which indicated that the offer was open for 60 days. After being subsequently notified by MSC that it was not being considered for award as the offer had expired, Plaintiff protested to the GAO and now to the COFC. Plaintiff presents “three alternative claims: (1) that its proposal incorporated Amendment 0002 and thus remained open for the entire 210-day period; (2) that its proposal was ambiguous and MSC was required to clarify the duration of its offer; or (3) if its offer expired, it should have been permitted to revive its offer because the policy reasons for refusing revival do not apply here.” The government moves to dismiss for lack of standing. Although finding that plaintiff has standing to argue the first two points, Judge George Miller rejects the arguments finding that plaintiff had made an express representation that its offer was only open for 60 days and that its offer was not ambiguous. As to the third claim, Judge Miller notes “because it cannot revive its expired proposal, Camden does not have standing to protest MSC's decision to remove it from consideration for award on that basis, and the Government's motion to dismiss this claim pursuant to RCFC 12(b)(1) is GRANTED.” Good discussion of the differences between IFBs and RFPs and the harm to the competitive process itself that precludes revival of an offer.

DIRECTV GROUP, INC. v. THE UNITED STATES, COFC No. 04-1414C, October 14, 2009. CAS 413, segment closing case. Plaintiff transferred some $ 273 million of pension asset surpluses to Raytheon and Boeing. The court follows General Electric Co. v. United States, 84 Fed. Cl. 129 (2008), which it refers to as (“GE II”), and grants summary judgment for plaintiff holding that plaintiff has no remaining liability to the government stemming from the segment closings. Judge Firestone also rejects the government's argument that plaintiff's “failure to present any evidence to show that the government recognized through an advance agreement or novation agreement that DIRECTV's CAS 413 payment obligation could be satisfied by reduced pension cost payments to Raytheon and Boeing is material to awarding summary judgment in this case.”

KERR CONTRACTORS, INC., Plaintiff, v. THE UNITED STATES, Defendant, KIEWIT PACIFIC CO., Intervenor-defendant, COFC No. 09-523 C, October 13, 2009. Post-award bid protest. Corps of Engineers jetty contract. Judge Bush finds for the government on the administrative record. She rejects as de minimis error of no consequence the argument that prices might have been disclosed to SEB members contrary to Corps procedures.

BANNUM, INC., Plaintiff, v. THE UNITED STATES, Defendant, and DISMAS CHARITIES, INC., Defendant-Intervenor, COFC No. 09-546C, October 13, 2009. Post-award bid protest, Bureau of Prisions(BOP) contract. Judge Wheeler allows plaintiff to supplement the administrative record “with letters and emails relating to cure notices and a show cause notice issued in another Bannum contract for [BOP] services in Austin, Texas.” Judge Wheeler notes “The documents at issue here, even though they concern a default termination on another contract, are relevant to the current protest because the agency’s SSAs and the GAO relied upon them in assessing Bannum’s past performance and thereby, its ability to perform the Charleston contract.”

MARTIN BYRD QUILLEN, SR. v. THE UNITED STATES, COFC No. 08-140C, October 01, 2009. Forest Service contract. Plaintiff received CO's decision on March 6, 2007 claiming government damages. He mailed a check dated March 13, 2007, and on the memo line of the check noted that he was paying in protest and objected to the decision of the CO. On March 7, 2008 he filed this complaint. The government moves to dismiss for lack of jurisdiction as untimely. Judge Smith grants the motion in part. He notes that the note on the memo line did not constitute a claim as it did not give the CO adequate notice. However, he allows the complaint as an appeal of the CO's decision and “holds that the statutory period in question should be calculated as twelve calendar months instead of 365 days.” He notes “Pursuant to RCFC 6(a)(1), the Court calculates the statutory window to exclude March 6, 2007, and counts March 7, 2007 as the first day of the statutory window. From March 7, 2007, the Court allots twelve months to find that the statutory period of limitations closed on March 7, 2008. Accordingly, the Court holds that Mr. Quillen's appeal of the contracting officer's decision was timely.”

TAYLOR CONSULTANTS, INC. v. THE UNITED STATES, COFC No. 09-305C, September 30, 2009. National Guard Bureau(NGB) total Service-Disabled Veteran-Owned Small Business Set-Aside procurement. Plaintiff was awarded the contract which was then terminated and awarded to another firm, VETS, after plaintiff was deemed to be other than small for this procurement by the SBA. Plaintiff sues under the Tucker Act, 1491(b) and the CDA requesting an injunction requiring the NGB to disqualify VETS and terminate the VETS contract. The Complaint also requested lost profits, or in the alternative, reinstatement of the terminated contract. Judge Braden stays the CDA claims to allow for proper submission to the CO. She dismisses the challenges to the award to VETS on standing grounds as the SBA had found plaintiff as other than small. In regards to the attempt to challenge the decisions of the SBA the court notes plaintiff's ;“proposed Amended Complaint presents claims that are either non-justiciable, because the court cannot provide the relief requested or has failed to exhaust administrative remedies making injunctive relief inappropriate.”

HAM INVESTMENTS, LLC, v. THE UNITED STATES, COFC No. 07-495C, September 30, 2009. Plaintiff claims that it is a valid assignee of an Army contract and that the government wrongfully made payments to the contractor rather than to plaintiff. Although leaving open the question of whether or not plaintiff is a "financing institution" required by the Anti-Assignment Act, Judge Braden grants the government's motion for summary judgment and dismisses the suit. Judge Braden concludes 1. the assignment did not cover all amounts payable under contract, as required by the Act; 2. the notification requirements of the Anti-Assignment Acts were not met; and 3. the government did not waive the requirements of the Anti-Assignment Acts

HAL D. HICKS, f/d/b/a HAL D. HICKS MAIL TRANSPORTATION, Plaintiff, v. THE UNITED STATES, Defendant, and MIDWEST TRANSPORT, INC., Defendant-Intervenor, COFC No.05-1058C, September 18, 2009. Plaintiff “claims that the United States Postal Service (the Postal Service) breached his mail delivery contract when it novated that contract to a third party. Defendant asserts that the latter action was validated by state court orders as part of the sale of a company in receivership - one partly owned by Mr. Hicks - and thus gave rise to no breach.” Judge Allegra dismisses the suit finding that the relevant matters were decided by final decisions of the Illinois courts and that the COFC is barred from disturbing those actions by Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), [which] held that a lower federal court may not entertain an action that directly or in effect seeks to overturn a state court judgment. Alternatively, the court finds that plaintiff's claim are barred by collateral estoppel. Judge Allegra concludes “The court will not gild the lily, for this is not a close case. The court finds that plaintiff has not met his burden of demonstrating that a breach of the Buffalo route service contract occurred here and that he was damaged thereby.”

PAI CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant, and INNOVATIVE TECHNOLOGY PARTNERSHIPS, LLC, Defendant- Intervenor, COFC No. 09-411C, September 17, 2009. Post-award bid protest, Department of Energy contract. Plaintiff argues that DOE failed to mitigate an OCI of awardee, that DOE impermissibly considered the corporate experience of the various subcontractors and incorrectly evaluated plaintiff's cost proposal. Judge Weise rejects the arguments of plaintiff, denies plaintiff's request for injunctive relief and finds for the government and intervenor on the administrative record.

UNISYS CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant, LOCKHEED MARTIN CORPORATION, Defendant-Intervenor, COFC No. 09-271C, September 17, 2009. Bid protest, GSA award. Plaintiff challenges the award of a new five year BPA for information technology services. Plaintiff argues that the evaluation of only discounts, rather than the underlying price, was improper and that GSA unfairly conducted discussions only with Lockheed. Following BLUE & GOLD, FLEET, L.P. v. UNITED STATES, and HORNBLOWER YACHTS, INC., CAFC No. 2006-5064, June 26, 2007, Judge Firestone dismisses the price issue finding that plaintiff should have protested this issue earlier. She also finds for the government and intervenor on the administrative record noting that FAR Part 15 procedures were not applicable to this Part 8 procurement.

INFORMATION SCIENCES CORP., Plaintiff, and GALLAGHER, HUDSON, HUDSON & HUNSBERGER, INC. (d/b/a Development InfoStructure or DEVIS), Plaintiff-Intervenor, v. THE UNITED STATES, Defendant, and SYMPLICITY CORP., Defendant-Intervenor, COFC NO. 07-744C, September 02, 2009. EAJA fees case, bid protest of GSA Federal Business Opportunities Contract. The government moves for reconsideration of the award of attorney fees arguing that the court “(1) ‘created and applied an improper standard to evaluate substantial justification;' (2)‘failed to reduce the requested fees and costs commensurate with ISC and [DEVIS'] very limited success;' and (3) made other ‘clear mistakes of fact,' including that the award to DEVIS was reasonable.” Except for some fee reduction in response to intervenor's motion for supplemental fees, Judge Braden denies the motion for reconsideration. Good discussion of “substantially justified.”

KENNEY ORTHOPEDIC, LLC v. THE UNITED STATES, COFC No. 09-38C, August 17, 2009. Veterans Affairs contract for prosthetic and orthotic devices and services. On October 23, 2007, the VA terminated the contract for cause. In January 2008, plaintiff filed a complaint in the COFC alleging breach of contract and three tort claims. In August 2008, the court dismissed the tort claims on jurisdictional grounds and the breach claim without prejudice with leave to file a new complaint after submitting a certified claim to the CO. See earlier decision dismissing claims sounding in tort. Plaintiff submitted a certified claim in August 2008. On October 30, 2008, the CO informed plaintiff that all of the issues contained in its August certified claim were addressed in the October 23, 2007, termination notice. Plaintiff filed this suit on January 16, 2009. Judge Braden rejects the argument by the government that the claim is time barred and also holds that the court has jurisdiction over the claim for breach of implied duty of good faith and fair dealing.

NEQ, LLC v. THE UNITED STATES, and LATA-KEMRON REMEDIATION, LLC, Defendant-Intervenor, COFC No. 09-125C, August 10, 2009. Post-award bid protest, EPA emergency and rapid response services. Judge Allegra finds for the government and intervenor on the administrative record. Good discussion of Bannum, Inc. v. United States, 404 F.3d 1346, 1355 (Fed. Cir. 2005) which “teaches that two principles commonly associated with summary judgment motions  that the existence of a genuine issue of material fact precludes a grant of summary judgment and that inferences must be weighed in favor of the non-moving party  do not apply in deciding a motion for judgment on the administrative record.”

FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF ROCHESTER v. THE UNITED STATES, COFC No. 95-517 C, August 06, 2009. Winstar case. Section 8.10 of the financing agreement between the parties provided, in part, “the successful or prevailing party or parties shall be entitled to recover all reasonable attorneys' fees and other costs incurred in such action or proceeding, in addition to any other relief to which it or they may be entitled.” Judge George Miller awards $5,046,205.32 in fees and costs to plaintiff. He rejects the arguments by the government that Congress has not waived sovereign immunity for these costs and that an express statutory authorization is needed.

TEXAS BIO- & AGRO-DEFENSE CONSORTIUM, Plaintiff, v. UNITED STATES OF AMERICA, Defendant, and HEARTLAND BIO AGRO CONSORTIUM, Intervenor, COFC No. 09-255C, July 30, 2009. Post-award bid protest, DHS site selection for construction and operation of a National Bio- & Agro-Defense Facility. Judge Williams dismisses the complaint for lack of ripeness, an issue not seen very often in bid protest litigation. Judge William notes “Because the site selection is not yet final, as it is contingent on the negotiation of the terms of the land transfer, the action is unripe.” A footnote discusses, but does not decide, the question of whether the “Court has jurisdiction under Section 1491(a) because the agency breached an implied-in-fact contract to consider its proposal fairly, regardless of whether this site selection is a procurement subject to the Court's ADRA bid protest jurisdiction under Section 1491(b).”

GLOBAL COMPUTER ENTERPRISES, INC. v. THE UNITED STATES and QSS GROUP, INC., Defendant-Intervenor, COFC No. 08-133 C, July 28, 2009. In response to the government 's concern that the earlier order unduly constrains the Coast Guard, Judge Sweeney amends her earlier order. “Therefore, the court modifies its decision by replacing the last sentence of Part V, paragraph 2 (‘The Coast Guard must recompete these services through a fair and open competition.'), which is located on page 151 of the slip opinion, with the following sentence: ‘The Coast Guard must procure these services in accordance with the law and in a manner that preserves the integrity of the procurement process, exercising its discretion in a reasonable manner.'”

WONDERLYN LORRAINE BELL PINCKNEY v. THE UNITED STATES, COFC No. 06-803 C, July 28, 2009. Postal Service contract. (See earlier decision barring evidence from prior contracts.) Appeal of a termination for default. Judge Hewitt finds that the government has not proven by a preponderance of the evidence that the termination was justified. The court also denies plaintiff's bad faith allegations as not being proved by clear and convincing evidence. Converting the termination for one of convenience the court awards $10,094.31 in liquidated damages as provided for in the contract. (Not an A-12 type case, but hopefully not representative of disputes affecting many individual government contractors.)

GLOBAL COMPUTER ENTERPRISES, INC. v. THE UNITED STATES and QSS GROUP, INC., Defendant-Intervenor, COFC No. 08-133 C, July 24, 2009. Bid protest. Plaintiff challenges the issue of modification to the Coast Guard's Systems Engineering and Technical Services (“SETS”) II Task Order arguing that the modifications exceed the scope of the TO and are unauthorized sole source procurements. (See earlier decision on supplementation of the administrative record.) In a lengthy, and very meaty, 154 page opinion Judge Sweeney permanently enjoins the government “from performing IT support for the Coast Guard's audit supporting federal financial management systems under Modifications 30 and 32 to the SETS II task order, [ ] under the ITOP II contract.” Extensive discussion of the FASA bar on protests, which Judge Sweeney concludes does not apply to modifications, but alternatively, if it does apply, the protest falls within the statutory out of scope exception. Lots of good discussion.

TODD CONSTRUCTION, L.P., f/k/a, TODD CONSTRUCTION CO., INC. v. THE UNITED STATES, COFC No. 07-324 C, July 22, 2009. Plaintiff challenges the negative performance rating it received. See earlier decision in this case. Judge George Miller delays his decision on the motion of the government to dismiss for failure to state a claim in order to give the plaintiff, if it is so inclined, an opportunity to file a motion for leave to file an amended complaint. Good discussions of court authority to issue declaratory judgment and authority to remand to agency for further action with “proper and just” direction. Judge Miller's opinion includes a historical background of the jurisdiction of the court including Tucker and Wunderlich Acts along with significant jurisdictional cases.

GLOBAL COMPUTER ENTERPRISES, INC. v. THE UNITED STATES and QSS GROUP, INC., Defendant-Intervenor, COFC No. 08-133 C, July 22, 2009. Bid protest. Plaintiff challenges the issue of modification to the Coast Guard's Systems Engineering and Technical Services (“SETS”) II Task Order arguing that the modifications exceed the scope of the TO and are unauthorized sole source procurements. Plaintiff moves to supplement the administrative record and the government and intervenor oppose the supplementation. Judge Sweeney allows the supplementation for the most part. Good discussion of the Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) and Axiom Resource Management, Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009) cases. Also considerable discussion of lay opinion testimony.

OK'S CASCADE COMPANY v. THE UNITED STATES, COFC No. 08-902C, July 21, 2009. Forest Service contract to provide meals to Government firefighting crews. Judge Wheeler grants summary judgment for the government holding that a CO's decision, on an uncertified claim that requires certification, is of no effect.

RED RIVER HOLDINGS, LLC v. THE UNITED STATES, COFC No. 09-185 C, July 17, 2009. Post-award protest, Navy Military Sealift Command(MSC) contract for a charter party of a vessel essentially to serve as a floating military warehouse. Plaintiff argues that the award to Sealift was arbitrary and capricious as awardee's proposal did not meet the requirements of the solicitation and that “MSC relaxed the requirements of the RFP for Sealift without offering the same standard to Red River.” Judge Merow finds for plaintiff on the administrative record. Because of national security concerns he only enjoins the later exercise of options. He also allows bid and proposal costs. Good and considerable discussion on whether on not the protest jurisdiction of this maritime contract properly lies in the COFC. He concludes it does and does not follow his own opinion to the contrary, ASTA ENGINEERING, INC. v. THE UNITED STATES, COFC No. 00-214C, May 10, 2000.

CANAL 66 PARTNERSHIP d/b/a DOUBLETREE HOTEL, COFC No. 08-88C, July 15, 2009. FEMA contract. Plaintiff alleges that FEMA “wrongfully and prematurely terminated its purchase order contract to provide hotel rooms in New Orleans, Louisiana for FEMA contract personnel following Hurricane Katrina.” Both parties move for summary judgment. Judge Williams denies both parties' motions finding “Because the contract is ambiguous, it is appropriate to examine extrinsic evidence to clarify the parties intent in entering into their contract. ... To the extent that the contract terms are ambiguous, requiring weighing of external evidence, the matter is not amenable to summary resolution.”

ASHBRITT, INC. v. THE UNITED STATES and CERES ENVIRONMENTAL SERVICES, INC. and ENVIRONMENTAL CHEMICAL CORPORATION, Intervenors, COFC No. 08-473C, July 09, 2009. Judge Williams grants the motion by the government for clarification of the term “reprocure” used in the earlier decision ordering the government to reprocure the services at issue. She notes “The Court used the word ‘reprocure' in its broadest sense to permit Defendant to effect a remedy of the procurement errors at any stage in the reopened procurement process that the agency deems appropriate. Defendant has asked whether the Corps could reopen discussions and evaluate revised proposals or whether it must issue a new solicitation. Reopening discussions and proceeding from that point in the reprocurement effort will comply with the Court's order, so long as the agency corrects the errors identified in the opinion. As this Court emphasized, the agency has discretion in taking corrective action, and ‘it is not for this Court to dictate the particulars of each step the agency should take to remedy what transpired.'”

L-3 COMMUNICATIONS EOTECH, INC., Plaintiff, v. THE UNITED STATES, Defendant, and AIMPOINT, INC., Intervenor, COFC NO. 08-911 C, July 08, 2009. Pre-award bid protest, Army procurement for optical rifle sights. See original decision enjoining procurement. Judge Bush lifts the stay and allows the government to proceed to eliminate plaintiff from the procurement finding that the Army's action in the retest were reasonable. She rejects of plaintiff's arguments including the requirement by the Army that plaintiff submit identical samples for the retest, finding that plaintiff's failure to object was waived according the precedent in BLUE & GOLD, FLEET, L.P. v. UNITED STATES, and HORNBLOWER YACHTS, INC., CAFC No. 2006-5064. The court also discusses supplementation of the administrative record and the recent Federal Circuit decision in Axiom Resource Management, Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009).

UNITED SURETY & INDEMNITY COMPANY v. THE UNITED STATES and SELPA CONSTRUCTION & RENTAL EQUIPMENT, Third-Party Defendant, COFC No. 08-791C, January 30, 2009. USPS construction contract. Plaintiff, a performance and payment bond surety, sues to recover payments it made prior to default by the prime and subsequent takeover by plaintiff. Although plaintiff notified the Postal Service that it was making payments, Judge Braden grants the motion by the government to dismiss for failure to state a claim. She holds that “Because United Surety's November 12, 2002 letter to USPS demanded payment and cited an indemnity agreement between United Surety and the contractor, but failed to provide any evidence or claim of contractor default, USPS owed United Surety no equitable duty at the time the disputed progress payment was issued to Selpa and Scotiabank.” Good discussion of equitable subrogation and the requirements that a surety must meet.

IMS ENGINEERS-ARCHITECTS, P.C. v. THE UNITED STATES, COFC No. 07-291C June 26, 2009. Corps of Engineers contracts. Plaintiff challenges the termination of its fixed price contract and the conduct of the Corps under two IDIQ contracts. The court grants summary judgment for the government in the two IDIQ contracts finding that the government ordered more than the minimums thus extinguishing any further liability. The court also finds that plaintiff's has not met its burden in proving its bad faith claim for the fixed price contract and therefore denies its summary judgment motion on that count. Other matters are deferred to trial.

ASHBRITT, INC. v. THE UNITED STATES and CERES ENVIRONMENTAL SERVICES, INC. and ENVIRONMENTAL CHEMICAL CORPORATION, Intervenors, COFC No. 08-473C, June 24, 2009. Post-award bid protest, Corps of Engineers procurement. Judge Williams finds for plaintiff on the administrative record and orders the Corps to reprocure the services. She describes the result as follows “The Court concludes that the agency's discussions regarding HBCU/MIs[Historically Black Colleges and Universities / Minority Institutions] and pricing were unfair and misleading, that the agency failed to document its evaluation of AshBritt's revised subcontracting plan, and that the agency departed from the solicitation by failing to evaluate price in awarding reach back assignments. Finding that these errors were prejudicial and that AshBritt has satisfied the requirements for injunctive relief, the Court grants Plaintiff's motion for a permanent injunction, directing the agency to reprocure the services at issue in accordance with statute and regulation. However, recognizing the critical need that contractors remain in place while the agency takes corrective action, the Court does not enjoin performance of the ongoing contracts pending completion of any reprocurement.”

SITCO GENERAL TRADING AND CONTRACTING CO., W.W.L., a Kuwait Corporation v. THE UNITED STATES, COFC No. 08-603C, June 22, 2009. Army contract. Judge Hodges dismisses the action finding that the contractor did not submit his claim to the CO in this contract covered by the CDA. He rejects the argument that the complaint “itself was a claim to the contracting officer.”

ACADEMY FACILITIES MANAGEMENT v. UNITED STATES, and IAP WORLD SERVICES, INC., Defendant-Intervenor, COFC No. 09-302C, June 17, 2009. Post-award protest, United States Naval Academy procurement. The court denies the request for injunctive relief and finds for the government on the administrative record. Plaintiff misconstrues the discussions concerning “significantly overstated” prices as unequal discussions when the discussions with awardee were over unbalanced pricing. Good treatment of meaningful discussions.

GEAR WIZZARD, INC. v. THE UNITED STATES, COFC No. 09-366C, June 16, 2009. Post-award protest, DLA procurement. Plaintiff requests an injunction preventing award and an order for DLA to complete qualification testing of a part offered by plaintiff. Finding that plaintiff has met none of the elements for a PI, Judge Christine Miller denies the injunction and orders the government to submit the administrative record.

TOTOLO/KING, a Joint Venture, v. THE UNITED STATES, COFC No. 09-104C, June 15, 2009. Pre-award bid protest, Department of Veteran Affairs. Plaintiff challenges a construction contract procurement “as an open and unrestricted competition. The issue presented is whether the DVA conducted a meaningful winnowing process to determine the availability of eligible, capable veteran-owned small-business contractors. ” Plaintiff alleges that the government failed to follow 38 USC 8127, Small business concerns owned and controlled by veterans: contracting goals and preferences. The court finds for the government on the administrative record concluding that plaintiff failed to show that the actions of the government were abitrary or capricious or contrary to law.

MICHAEL KAWA v. THE UNITED STATES, COFC No. 06-448 C, June 1, 2009. Unpublished opinion on motion by plaintiff to set aside the judgment in the earlier third party beneficiary decision. Judge George Miller denies the motion. Good discussion of the standards under Rule 60(b) for relief from judgment.

AKAL SECURITY, INC. Plaintiff, v. THE UNITED STATES, and SECURITY CONSULTANTS GROUP, INC., COFC No. 09-326 C, June 10, 2009. Bid protest, DHS BPAs. Although finding that plaintiff has standing for purposes of the PI motion, Judge Hewitt denies issuing a PI, finding that none of the elements favor plaintiff. In a not too frequent mention of redaction issues in a published opinion, she also denies some of the requests by the government noting- “The proposed redactions appear to the court to be over-broad. The court does not perceive, for example, how adjectival ratings by the government of past performance and management approach could be viewed as confidential, proprietary or otherwise protected by the protective order in this case, or how the fact that a company is or was evaluated as a small business could be protected information. Accordingly, the court has accepted some, but not all, of defendant's proposed redactions.”

ViroMed Laboratories, Inc., Plaintiff, v. United States of America, Defendant, and Center for Disease Detection, Intervenor, COFC Nos. 09-60 C & 09-323 C, June 08, 2009. Bid protest. Plaintiff moves to hold the government in contempt for violation of a previous order in this HIV testing procurement and for a preliminary injunction for the award of a bridge contract. Judge Block denies both attempts holding that the contempt and injunction, based on bad faith by the government, require proof by clear and convincing evidence which plaintiff fails to provide.

CALIFORNIA HUMAN DEVELOPMENT CORPORATION v. THE UNITED STATES, COFC No. 05-1029C, June 05, 2009. Head Start grant. Plaintiff claims that the government failed to negotiate in good faith certain grant close-out costs. Judge Williams finds for the government finding that plaintiff has failed to demonstrate that the government breached the agreement. The court also rejects arguments that costs must be reimbursed because they were allowable under A-122, Circular A-122, Cost Principles for Non-Profit Organizations, citing Paul G. Dembling and Malcom S. Mason, Essentials of Grant Law Practice, ix (American Law Institute 1991) (“We give plain warning against the tempting fools' gold of thinking of grants as a kind of procurement.”).

RHINOCORPS LTD. CO. v. THE UNITED STATES, COFC 08-410, June 04, 2009. Pre-award bid protest, Air Force procurement. Plaintiff challenges the decision by the Air Force “not to solicit a small business set-aside follow-on contract after the expiration of plaintiff's contract.” Plaintiff argues that the Air Force did not comply with FAR 19.502-2(b). Judge Christine Miller finds for the government on the administrative record noting that “Plaintiff has proved neither an unreasonable agency decision nor a clear and prejudicial violation of an applicable procurement regulation.” She also dissolves the preliminary injunction issued on April 07, 2009.

GRAND ACADIAN, INC. v. THE UNITED STATES, COFC No. 07-849 C, May 29, 2009. Lease dispute from Katrina activities. The court grants partial summary judgment for both parties, finding that the government had no obligation to improve the property, but that it did have an obligation to restore the property to its original condition. Includes discussion of the ”sham affidavit rule” where an affidavit contradicts an earlier deposition.

DATAPATH, INC. v. THE UNITED STATES and L-3 GLOBAL COMMUNICATIONS SOLUTIONS, INC.,Intervenor, COFC No. 09-188, May 29, 2009. Pre-award bid protest, Army brand name procurement. Judge Braden grants the motions by the government and intervenor for judgment on the administrative record relying on the national defense and national security provisions of 28 U.S.C. § 1491(b)(3). One interesting argument left unanswered is that the small business set aside was improper as the real party in interest was the intervenor, an other than small business. Judge Braden also, in footnote 5, spends some time discussing some issues in the recent reversal by the Federal Circuit in the Axiom case.

RHINOCORPS LTD. CO v. THE UNITED STATES, COFC No. 08-410C, (Originally Filed April 7, 2009; Withdrawn and Reissued as Corrected May 15, 2009 nunc pro tunc to April 7, 2009) The court grants a TRO and orders that the Air Force shall not “evaluate any offer submitted in response to Solicitation No. FA9453-09-R-0001, for full and open competition for the procurement of services for the 709th NSS Counterproliferation and Nuclear Weapon requirement, pending the entry of an order on plaintiff's complaint for a permanent injunction, which the court commits to issue by midnight on May 18, 2009.”

RHINOCORPS LTD. CO v. THE UNITED STATES, COFC No. 08-410C, (Originally Filed January 28, 2009; Withdrawn and Reissued as Corrected May 15, 2009 nunc pro tunc to January 28, 2009) Plaintiff challenges the decision by the Air Force “not to solicit a small business set-aside follow-on contract after the expiration of plaintiff's contract.” Plaintiff argues that the Air Force did not comply with FAR 19.502-2(b). The government moves “to dismiss for lack of subject matter jurisdiction, RCFC 12(b)(1), and failure to state a claim, RCFC 12(b)(6).” Judge Christine Miller grants the motions in part, but leaves open the question of the reasonableness of the Air Force CO's D&F. Acknowledging the delay caused by the new precedent in Distributed Solutions, Inc. v. United States, 539 F.3d 1340 (Fed. Cir. 2008), she urges the parties to agree on a framework for a prompt resolution of the case.

HOLLOWAY & COMPANY, PLLC v. THE UNITED STATES and GRANT THORNTON, LLP, Intervenor, COFC No. 09-53C, May 14, 2009. Post-award bid protest, procurement of auditing services for the Centers for Medicare and Medicaid Services (“CMS”) from FSS contractors. Judge Lettow finds for the government on the administrative record. He grants plaintiff 's motion to supplement the administrative record with materials from earlier protests at the GAO. Good discussion of factors to be considered in supplementing the record.

UNIVERSAL SHELTERS OF AMERICA, INC. v. THE UNITED STATES, COFC No.00-726C, May 12, 2009. Navy contract for reusable structures. Plaintiff appeals the termination for default and excess reprocurement costs, which were asserted after the matter was before the Court. Judge Wolski finds that the termination was proper, but for different reasons than stated in the CO's decision. However, he dismisses the claim for reprocurement costs noting that “once the question of the propriety of termination for cause is put into litigation, then the demand for reprocurement and incidental costs must ... be beyond [the CO's] authority.”

DICK PACIFIC/GHEMM, JV, on behalf of W.A. Botting Company v. THE UNITED STATES, COFC No. 08-417C, May 11, 2009. Construction contract at Ft. Washington, Alaska. EPA claim. The government moves to dismiss for lack of jurisdiction arguing that plaintiff was required to recertify its claim. Plaintiff responds that it was not required to certify its 2007 price-adjustment claim because it had previously certified the claim in 2004. Judge Lettow finds for plaintiff on the certification issue finding that “the renewed claim arose from the same set of operative facts as the original claim, and recertification of the renewed claim was not required.”

CENTRAL FREIGHT LINES, INC. THE UNITED STATES, COFC No. 08-331C, May 05, 2009. Plaintiff claims the government breached contracts for transportation services by failing to pay some $172,000 in charges. Plaintiff delivered household goods to government employees under Straight Bills of Lading(SBLs) issued by another firm, "Dispatch", who had GBLs from the government. Judge Firestone grants the motion by the government to dismiss for lack of jurisdiction finding no privity between plaintiff and the government. She also rejects the argument that Dispatch was an agent for the government.

KLINGE CORPORATION v. THE UNITED STATES, and SEA BOX INC., Intervenor COFC No. 08-551C, April 27, 2009. The last(?) in this TAA case. See original opinion and most recent one. Plaintiff requests reconsideration of the denial of injunctive relief and the government for the award, or clarification of, bid and proposal costs to plaintiff. Plaintiff argues that new information shows that award was improper as there were not three offerors available with the items on FSS contracts as required by FAR 8.405-1(c)(1). In denying plaintiff's motion, Judge Bruggink notes “that there is insufficient evidence of bad faith or that the integrity of the procurement process was impaired to warrant the extraordinary remedy of enjoining the procurement. As plaintiff lacks standing to request the court's reconsideration of the current procurement on any other ground, plaintiff's motion is denied.” The government's motion is also denied noting that “the award of bid preparation and proposal costs an appropriate remedy under the circumstances.”

SAVANTAGE FINANCIAL SERVICES, INC, v. THE UNITED STATES, COFC Nos. 08-21C, 09-113C, April 22, 2009. Pre-award bid protest, DHS procurement. See earlier decision which had enjoined the procurement where Judge Futey found that the decision to standardize required DHS to conduct “ a competitive procurement in accordance with the law to select financial management systems application software.” Judge Futey now decides for the government on the administrative record and rejects the argument by plaintiff that the earier court orders were violated. Judge Futey notes “The Court finds it logical that defendant would want to ensure its success by seeking a fully integrated system, both on the basis of its own experiences and those of other agencies and departments. Naturally, plaintiff would prefer that defendant conduct the solicitation in a manner more favorable to plaintiff; that does not mean, however, that the solicitation is improper as it stands. Because plaintiff has not met its burden of demonstrating that the requirement of a fully integrated, currently operational system lacks a rational basis, the Court defers to the agency's discretion in determining its own needs, and finds that the new TASC RFP is not unduly restrictive.”

BLACKWATER LODGE & TRAINING CENTER, INC., Plaintiff, v. UNITED STATES, Defendant, and AUTOMATION PRECISION TECHNOLOGY, LLC, Defendant-Intervenor, COFC No. 08-905C, April 17, 2009. Post-award bid protest, Navy contract to provide basic training to Naval personnel in the areas of antiterrorism, force protection, and small arms proficiency. Plaintiff challenges the evaluation by the Navy of intervenor's proposal and an improper best value determination. Judge Wheeler finds for the government on the administrative record noting that plaintiff 's argument amount to “mere disagreement with the Navy's reasonable technical and past performance evaluations.”

VERIDYNE CORPORATION v. THE UNITED STATES, COFC Nos. 06-150C & 07-647C, April 16, 2009. Court's synopsis: Contracts; breach of contract; RCFC 15(a), motion to amend answer and counterclaim; special plea in fraud, 28 U.S.C. § 2514 (2006); False Claims Act, 31 U.S.C. §§ 3729(a)(1), (a)(2) (2006); Contract Disputes Act of 1978, 41 U.S.C. § 604 (2006); undue delay; prejudice. The government which had pleaded “fraud as both an affirmative defense against plaintiff's claims for amounts due and as a counterclaim, seeking statutory forfeiture of plaintiff's claims” now moves for leave to amend its answer and counterclaim to include additional fraud counterclaims. (See earlier decision) After discussing the standards for a motion to amend, specifically undue delay and prejudice, Judge Christine Miller grants the motion.

STANLEY K. MANN v. THE UNITED STATES. COFC No. 98-312C, April 14, 2009. Damages phase, BLM geothermal lease contract. On remand from the Federal Circuit which held that BLM had breached the lease. See Judge Wolski's earlier damages decision. Judge Wolski provides a brief review of damages; expectancy damages, reliance damages, or restitution damages. The court awards $869,501.52 in reliance damages, noting that in the alternative the same damages could be awarded as restitution damages.

RHINOCORPS LTD. CO. v. THE UNITED STATES, COFC No. 08-410C, April 07, 2009. Pre-award bid protest, Air Force procurement. See earlier decision. Plaintiff renews its request for a TRO as it continues with its challenge to the failure of the Air Force to set aside the procurement for small businesses, relying primarily on the alleged violation of FAR 19.502-2(b). Judge Christine Miller enjoins the Air Force from evaluating offers received from the contested solicitation until the matter is resolved.

PLANETSPACE INC. v. UNITED STATES OF AMERICA, and ORBITAL SCIENCES CORPORATION, and SPACE EXPLORATION TECHNOLOGIES CORPORATION, Intervenors, COFC No. 09-0099C, April 02, 2009. Post-award bid protest, NASA contract. Plaintiff challenges the override of the automatic stay and seeks that the stay be reinstated. Judge Hodges denies the request stating “NASA justified its override of the stay by reference to Presidential policy decisions concerning the shuttle program and international commitments pertaining to the space station. Plaintiff argued that the President could reverse the policies if necessary and that the international partners could contribute to the supply program. However, such considerations are speculative.”

RESOURCE CONSERVATION GROUP, LLC V. THE UNITED STATES, COFC No. 08-768C, March 31, 2009. Plaintiff submitted a proposal in response to a RFP by Navy to make available for lease certain government land. The proposal was rejected. Plaintiff filed a Complaint in the United States Court of Federal Claims, alleging breach of an implied contract of fair and honest consideration and violation of the Administrative Procedure Act, 5 U.S.C. § 706 (“APA”). ... The Complaint requests recovery of bid preparation costs and fees in the amount of $500,000. Judge Braden dismisses the action holding first, that the court does not have jurisdiction under 28 USC 1491(a)(1) “to adjudicate the alleged breach of an implied-in-fact contract arising in the context of a bid protest.” and second, “that the court has determined that 28 U.S.C. § 1491(b)(1) does not authorize the adjudication of bid protests concerning land leases where the Government is the lessor.” And finally “It is well established that the United States Court of Federal Claims, however, does not have jurisdiction to review an agency decision under the APA. See Martinez v. United States, 333 F.3d 1295, 1313 (Fed. Cir. 2003) (holding that the United States Court of Federal Claims does not have APA jurisdiction); see also Crocker v. United States, 37 Fed. Cl. 191, 197 (1997) (same). Therefore, the only forum that can adjudicate Plaintiffs challenge to the Navy's interpretation of 10 U.S.C. § 6976 is a United States District Court. Very good discussion of Tucker Act issues.”

DATAPATH INC. v, THE UNITED STATES, COFC No. 09-188, March 30, 2009. Pre-award bid protest, United States Army Contracting Command (“USACC”) solicitation for satellite communication terminals. Judge Braden issues a temporary restraining order enjoining planned March 31, 2009 award until June 1, 2009. She notes that the justification for other than full and open competition was undated, unsigned and redacted and the government stated that it would not be able to file the administrative record until at least April 8th or 9th. She requires plaintiff to post a $2.7 million bond.

THE SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY, et al. v THE UNITED STATES, COFC No. 08-354C, March 30, 2009. Plaintiffs sue for a breach of an easement contract approved for a period not to exceed 50 years from March 29, 1950, which was not renewed. Seven years after the easement expired by its term, plaintiffs filed a claim with the Western Are Power Administration(WAPA) demanding that the easement area be vacated and included a claim for $129,000,000.00 in damages. In November 2007, plaintiffs filed a certified claim pursuant to the CDA with WAPA.
     The government moves to dismiss arguing arguing that the court “lacks jurisdiction because the claims are not covered under the CDA and are time barred by the Tucker Act's statute of limitations.” Judge Horn denies the government's motion holding that general statute of limitaqtions of 28 USC 2501 does not apply as plaintiff elected to file under the CDA. She also notes that the 1994 amendment which added the six year limitation to the CDA does not apply as the contract was entered into prior to October 1, 1995.
     The court also rejects the argument that the CDA is inapplicable as contract was for “real property in being.” In discussing the sparse legislative history of the term “real property in being”, Judge Horn notes “Whereas an easement taken by eminent domain occurs upon the unilateral seizure by the government of an existing property right, albeit with a requirement to provide just monetary compensation, the creation of an easement through a vehicle such as the ‘Contract and Grant of Easement' at issue here is the product of a negotiated contract in which a new relationship and new property interest is created, also for value. The seizure of property by eminent domain is not subject to the CDA, but a negotiated contract with the government, creating an easement, is governed by the CDA. The government undertook to secure this easement, by agreement, using the same process it would have used to form any other lease. The ‘Contract and Grant of Easement' was approved and negotiated by the government and the affected landowners, the Salt River Pima-Maricopa Indian Community Council. ”

NEQ, LLC, Plaintiff, v. THE UNITED STATES, Defendant, and LATA-KEMRON REMEDIATION, LLC, intervenor, COFC No. 09-125C, March 25, 2009. Post-award bid protest. Plaintiff moves to supplement the administrative record and conduct discovery, including a deposition of the CO. Except for two emails which the court considers “merely as ensuring the completeness of the record”, Judge Allegra denies the motion noting his “refusal to supplement the record, via discovery, with more information regarding the agency's reasoning for an award, or to otherwise add to the record evidence, not previously possessed by the agency, designed supposedly to improve the court's ‘understanding' of a case.”

Michael KAWA v. THE UNITED STATES, COFC No. 06-448 C, March 23, 2009. Plaintiff was the named payee on a contract between the government and Capital City Pipes. Unbeknownst to the original CO, plaintiff was an escrow agent of JGB Enterprises, a subcontractor to Capital City Pipes. The payment to the escrow agent was the results of problems JGB had with payment from Capital City. See earlier decision where Judge George Miller found that plaintiff had standing and was a real party in interest. The government subsequently did not send a check for payment to plaintiff, but instead made an electronic transfer to Capital City. Plaintiff argues that he was a third party beneficiary of the contract or that he had an implied contract with the government which was breached. Judge Miller finds for the government holding “(1) there was no implied contract between plaintiff and the Government; (2) plaintiff was not a third-party beneficiary of the Capital City Pipes contract; and (3) plaintiff was not assigned any rights under the Capital City Pipes contract.” In reaching its decision,the court rejects the government's res judicata argument and includes a good discussion of issue and claim preclusion.

LAUDES CORPORATION v. THE UNITED STATES, COFC No. 08-121C, March 16, 2009. “Laudes alleges that, at the urging of the United States, it entered into an express written contract with the Iraqi Government so that Iraqi Ministry of Defense funds could be used to pay for contract performance. When Laudes balked at this proposed arrangement, the United States Government allegedly promised to facilitate payment to Laudes if any problems with the Iraqi Government were encountered.” Judge Wheeler denies the government's motion to dismiss finding that whether there was an implied-in-fact contract and a person who could obligate the government are questions of fact requiring further proceedings. The Judge does dismiss the counts relying on the CDA, holding that the CDA did not apply as there was no procurement of property or services by the US.

AL ANDALUS GENERAL CONTRACTS CO. v. THE UNITED STATES, COFC No. 08-599C, March 11, 2009. Post-award bid protest, Army multiple award contracts for construction services in Iraq. Plaintiff, an Iraqi company, challenges the award of five IDIQ contract awards and claims it was wrongfully excluded from award of five multiple award contracts. Judge Firestone finds for the government on the administrative record. She finds, among other items, that plaintiff was not prejudiced.

TEXAS NATIONAL BANK f/k/a MERCEDES NATIONAL BANK v. THE UNITED STATES, COFC No. No. 07-355C, March 6, 2009. Customs and Border Protection contract, assignment of claims case. Plaintiff is the purported assignee of the payments made to a Customs contractor, All Star. Judge Firestone denies the summary motion of the government that there was no valid assignment. Although there is no proof the assignment was received by the disbursing office, the court finds “that there are disputed issues of material fact which preclude summary judgment on the issue of whether Customs assented to the assignment and waived strict compliance with the Anti- Assignment Acts.” However, Judge Firestone holds that 28 U.S.C. § 2501 bars Texas National's claim to monies paid to All Star before June 6, 2001, six years before this case was filed on June 6, 2007.” She rejects the argument that the accrual suspension rule suspended 28 USC 2801 finding that “the bank's failure to make any inquires with regard to government payments that were being deposited into All Star's account at the bank constituted a per se failure to exercise reasonable diligence.”(emphasis by the court)

FFTF RESTORATION COMPANY, LLC. v. THE UNITED STATES, COFC No. 07-659C, March 02, 2009. Plaintiff argues that the “Department of Energy (‘DOE') violated its duties under the Federal Acquisition Regulations (‘FAR') to conduct business with integrity, fairness, and openness and to set aside procurements for exclusive participation of small business concerns and breached its ‘implied-in-fact contract' to consider federal procurement proposals fairly and honestly when it cancelled a solicitation ...” The government moves to dismiss arguing that the court “lacks jurisdiction over implied-in-fact contract claims in the bid protest context.” or “In the alternative, the government argues that, even if the court finds that it has jurisdiction over the plaintiff's claims, the administrative record demonstrates that DOE's decision to cancel the solicitation was rational and made in good faith, thereby warranting judgment in the government's favor.” The court denies the motion to dismiss, but finds for the government on the administrative record. Judge Firestone finds “that 28 U.S.C. § 1491(b)(1) authorizes this court to review cancellations of negotiated procurements to ensure compliance with the requirements of ‘integrity, fairness, and openness' in FAR 1.102(b)(3) and the requirement that ‘[a]ll contractors and prospective contractors shall be treated fairly and impartially' in FAR 1.102-2(c)(3).” Judge Firestone notes “although this court's jurisdiction is no longer predicated on such an implied-in-fact contract claim following the passage of the ADRA, the court nonetheless has jurisdiction under 28 U.S.C. § 1491(b)(1) to consider the plaintiff's implied-in-fact contract theory in reviewing the plaintiff's claim that FAR 1.102(b)(3) and 1.102-2(c) were violated when DOE cancelled the solicitation ...” Interesting case.

SCOTT TIMBER, INC. v. THE UNITED STATES, COFC No. 05-708C, February 27, 2009. Forest Service Timber sale case where contracts were suspended as a result of injunctions in environmental litigation. Plaintiff claims breach by the Forest Service. Judge Lettow finds for plaintiff in this post-trial decision. He concludes “. As explained, the evidence at trial established that the Forest Service entered into the timber-sale contracts with Scott Timber for the Jigsaw, Whitebird, and Pigout timber areas in the face of a very substantial risk, indeed, a likelihood, that the sales would be enjoined by judicial action in a pending lawsuit brought by environmental groups challenging such sales. At the time of the sales, the Forest Service knew of the shaky legal grounds for its position that ‘NEPA decision equals implementation' of ground-disturbing activities and its grandfathering of sales from surveys of so-called Category 2 species under the National Forest Plan. The Forest Service also knew that a judicial decision in the litigation was likely to be rendered relatively soon. Scott Timber did not have the knowledge that the timber sales were being put at issue in the litigation and thus could not anticipate, or judge the likelihood of, an injunction against the pending timber sales. The resulting injunction and ensuing suspension accordingly were unreasonable, and the Forest Service's actions were not protected against liability by the suspensions section of the timber-sales contracts. In addition, after the suspensions were entered, the Forest Service unreasonably and unduly delayed the suspensions by not completing its species-survey work in timely fashion and by continuing two of the suspensions based upon litigation in which no injunction was ever entered. Thus, Scott Timber has established the government's liability for breach of contract in this case, on two alternative and independent grounds.”

BLUE LAKE FOREST PRODUCTS, INC., Plaintiff, v. THE UNITED STATES, Defendant. TIMBER PRODUCTS COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. CLR TIMBER HOLDINGS, INC., Plaintiff, v. THE UNITED STATES, Defendant, COFC Nos. 01-570C, 01-627C, 04-501C, Febraury 26, 2009. Plaintiffs claim breach of their timber sale contracts by the United States Forest Service and argue that they are entitled to certain consequential damages due to the Forest Service's suspension of their contracts. The government argues that the limitation of liability clause in the contracts prevents such recovery. “Plaintiffs claim that this clause is unenforceable because, by awarding and suspending the contracts, the Forest Service acted unreasonably and breached the implied duty to cooperate and not hinder.” Judge Williams denies cross motions for summary noting “Because the determination of reasonableness entails an intensely factual inquiry and material facts are in dispute here, summary judgment is denied.” Good discussion of cases involving limitation on liability clauses.

SP SYSTEMS, INC., Plaintiff, and DB CONSULTING GROUP, INC., Plaintiff-Intervenor, v. THE UNITED STATES, Defendant, and ASRC RESEARCH & TECHNOLOGY SOLUTIONS, LLC, Defendant-Intervenor, COFC No. 08-853C, February 24, 2009. Post-award bid protest, NASA contract. Plaintiff was originally awarded the contract, but as a result of a protest by defendant-intervenor the GAO decision sustained the protest and ordered NASA to reevaluate offers. NASA has now awarded the contract intervenor and plaintiff brings this action. Judge George Miller finds for the government and rejects plaintiff's challenge to NASA's determination to follow the GAO recommendation. [NASA apparently made some new factual findings after the GAO decision which complicates this decision, at least for me-jaw]

L-3 COMMUNICATIONS EOTECH, INC., v. THE UNITED STATES, Defendant, AIMPOINT, INC., Intervenor, COFC No. 08-871 C, February 18, 2009. Post-award bid protest, Army sole-source bridge contract for optical rifle sights. Judge Bush finds for the government and intervenor on the administrative record. She finds the Army's justification for a sole-source was reasonable, including the requirement that the sights be type classified.

SAUDI LOGISTICS AND TECHNICAL SUPPORT v. THE UNITED STATES, COFC No. 08-142C, February 17, 2009. Plaintiff moves to dimsiss the government's defective pricing counterclaim arguing the decision of the CO was defective as not complying with law. Judge Firestone denies the Motion noting that the CO's decision is entitled to a presumption of regularity. She concludes “Where, as here, the CO's final decision lays out the basis for the dispute by referencing the relevant DCAA Audit Report and then asks for payment in accordance with the audit, the COs decision is adequate for purposes of FAR 33.211 and is sufficient for this court to assume jurisdiction.”

CARAHSOFT TECHNOLOGY CORPORATION v. STATES OF AMERICA, and MONSTER GOVERNMENT SOLUTIONS, Intervenor, COFC No. 08-646 C, February 12, 2009. Post-award protest, GAO procurement. Judge Block finds for the government on the administrative record. He rejects plaintiff's argument that it was improper to allow GAO to proceed with corrective action which required removal of an indemnification clause that was in the initial award to intervenor. Judge Block also chides plaintiff for arguing items which were not in its complaint.

SGS-92-X003 v. The United States, COFC No. 97-579C, February 09, 2009. Not a procurement contract, but an interesting opinion. Judge Williams finds that the government, DEA, breached its duty of good faith and fair dealing in its implied contract with plaintiff when it failed to follow its own procedures and plaintiff, an undercover informant, was kidnapped and held for over three months in Columbia.

SOFTWARE ENGINEERING SERVICES, CORPORATION v. THE UNITED STATES and BOOZ ALLEN HAMILTON, INC.; ITT CORPORATION, ADVANCE ENGINEERING & SCIENCES DIVISION; CSSS.NET, Intervenors, COFC No. 08-795C, February 05, 2009. Post-award protest, Air Force contract. Judge Wheeler finds for the government on the administrative record. He notes that plaintiff's current performance as incumbent contractor cannot be used to overcome proposal deficiencies.

ALABAMA AIRCRAFT INDUSTRIES, INC. - BIRMINGHAM v. THE UNITED STATES, COFC No. 08-470C, February 03, 2009. At issue are bid preparation and proposal costs. See earlier decision granting injunctive relief. The government argues that “awarding Alabama Aircraft bid preparation and proposal costs in addition to injunctive relief would result in plaintiff receiving an impermissible double recovery.” Judge Lettow rejects this argument holding that under the modification of the Tucker Act by the ADRA “the plain language of 28 U.S.C. § 1491(b)(2) grants, rather than withholds, discretion to this court to award both injunctive relief and bid preparation and proposal costs. In short, the text of 28 U.S.C. § 1491(b)(2) offers no support for the government's proffered limitation on the court's ability to afford relief in bid protest cases.” Regarding quantum however, the court disallows the B&P costs that were associated with plaintiff's work as a proposed subcontractor with Boeing as those costs were not directly related to its proposal for the contract at issue.

KEETER TRADING COMPANY, INC. v. THE UNITED STATES, COFC No. 05-243 C, February 03, 2009. Postal Service contract. Judge Bush's earlier decision overturned the default and reserved the bad faith issue for trial. Judge Bush now finds that the government acted in bad faith and awards breach damages. She notes “the court finds that the AO[Administrative Officer,Yellville, AR postmaster] and the contracting officials interfered with plaintiffs performance so as to destroy his reasonable expectations regarding the fruits of the contract.”

WRS INFRASTRUCTURE & ENVIRONMENT, INC. v. THE UNITED STATES and ENVIRONMENTAL RESTORATION, LCC, Intervenor, COFC No. 08-613C, January 30, 2009. Plaintiff challenges the determination of SBA that it was other than small. Judge Smith finds for the government on the administrative record. He notes that agency's decision that the LOI [Letter of Intent to purchase another firm] “is an agreement in principle and given its present effect was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,“

LAN-DALE COMPANY v. THE UNITED STATES, COFC No. 03-1956C, January 29, 2009. Plaintiff files in both the COFC and a District court on the same day, both of these suits were based upon the same operative facts and requested essentially the same relief. While noting that the claim may be meritorious, Judge Wheeler dismisses for lack of jurisdiction as barred by 28 USC 1500, a post civil war statute.

WONDERLYN LORRAINE BELL PINCKNEY v. THE UNITED STATES, COFC No. 06-803C, January 14, 2008. On motion for reconsideration of an order barring the presentation at trial of past performance evidence in the this appeal of a Postal Service termination for default for failure to deliver mail. Judge Hewitt denies the motion noting that “evidence of plaintiff's poor past performance on previous contracts does not appear to be of a type that make the allegation of breach here  the failure to deliver mail  more or less credible.” Interesting opinion discussing relevant board and COFC cases.

NORTH STAR ALASKA HOUSING CORPORATION v. THE UNITED STATES, COFC Nos. 98-168C, 02-1632C & 03-2699C, January 09, 2009. Army contract. Plaintiff seeks attorney fees premised on bad faith of the government as a follow-on to Judge Allegra's 2007 CDA decision where the court found that the Army had breached the covenant of good faith and fair dealing. Here, however, Judge Allega denies the plaintiff's motion for attorneys fees and litigation expenses following Centex Corp. v. United States, 486 F.3d 1369, 1371 (Fed. Cir. 2007). Judge Allegra notes “the fact remains that the Army's perversion of the claims process was an integral part of plaintiff's argument that defendant had breached its covenant of good faith and fair dealing and, concomitantly, of the court's findings in that regard. As such, the ‘bad faith' conduct in this regard appears to fall squarely within the category which Centex holds cannot form the basis for a ‘bad faith' fees claim.” Good discussion of the bad faith exception to the American Rule that each party normally bears its own litigation expenses.

TEKNOWLEDGE CORPORATION v. THE UNITED STATES, COFC No. 06-310C, January 07, 2009. DCMA contract. Plaintiff appeals the denial of its claim to recover a portion of software development costs even though the software was not used on government contracts. Judge Wheeler grants summary judgment for the government finding that the costs were not allocable as plaintiff could not show the nexus between the benefits of the software and the government.

INFORMATION SCIENCES CORP. v. THE UNITED STATES, COFC No. 08-304C, December 30, 2008. The latest in actions challenging the attempts by GSA to award a contract to redo FedBizOpps. Although not requesting that the sole source award made by GSA under its STARS program be overturned, plaintiff does request monetary damages for “employee time, labor, material, and expert time involved in pursuing the Solicitation and Amended Solicitation.” alleging that the award by GSA “violated FAR requirements to conduct business with integrity, fairness, and openness, and breached an implied-in-fact contract with ISC.” Judge Braden grants the motions by the government to dismiss both counts. She first finds that the provisions of FAR 1.102(b)(3) and FAR 1.102-2(c)(1) are only guidelines and therefore “imposes no specific substantive obligations on the Government, and therefore is not judicially enforceable.” The court also rejects plaintiff's argument that the passage of ADRA did not negate the court's authority to decide bid protests based on an implied-in-fact contract theory and holds that “ADRA divested the court of jurisdiction over common law claims in bid protest cases.”

MULTISERVICE JOINT VENTURE, LLC v. THE UNITED STATES, COFC No. 06-312C, December 23, 2008. Navy contract litigation. Judge Wheeler grants the government's motion for sanctions for spoliation of evidence during a deposition session. He bars deponent from testifying at trial and orders that counsel for plaintiff be personally responsible for reimbursing the government of costs of the deposition and sanctions motion.

WACKENHUT SERVICES, INC. v. THE UNITED STATES and COASTAL INTERNATIONAL SECURITY, Intervenor, COFC No. 08-660C, December 15, 2008. Post-award bid protest, NASA contract. Judge Braden sets the award aside and orders NASA to reconstitute the SEB and appoint a new SSA. She finds that the SEB and SSA violated the FAR and APA primarily, for example, “by failing to create a record to explain and justify the [deleted] point score increase or [deleted]% increase between the SEB's Preliminary and Final Findings as to CIS's Management Approach Subfactor so that the court can determine whether the SEB acted in an arbitrary and capricious manner.”

TODD CONSTRUCTION, L.P., f/k/a, TODD CONSTRUCTION CO., INC. v. THE UNITED STATES, COFC No. 07-324 C, December 09, 2008. Corps of Engineers contract. Plaintiff challenges the performance evaluation it received at the completion of the contract. The government moves to dismiss for lack of jurisdiction and the failure to state a claim. Judge George Miller denies the motion finding that “the plaintiff has asserted a claim within the meaning of the CDA and that the Court has jurisdiction over plaintiff's action seeking review of that decision. Before resolving defendant's motion to dismiss pursuant to Rule 12(b)(6), however, the Court requires further briefing from the parties regarding the scope of its authority to provide relief upon plaintiff's claim and the standard of review.” Interesting case discussing a “claim”under the CDA and possible relief.

SPECTRUM SCIENCES and SOFTWARE, INC. v. THE UNITED STATES, COFC No. 04-1366C, December 08, 2008. Air Force Cooperative Research and Development Agreement(“CRADA”). Judge Allegra finds that the Air Force repeatedly breached the CRADA by the disclosure of plaintiff's proprietary information. Interesting and troublesome, regarding the government's conduct, case. While deferring damages to later proceedings, Judge Allegra rejects the government's attempt to claim that there was no breach because it could have reversed engineered the information. Noting that the government did not plead such an affirmative defense, the judge notes “And the court sees absolutely no reason to overlook defendant's violation of the rules, as plaintiff plainly was prejudiced by defendant's failure to raise this defense prior to trial.”

L-3 COMMUNICATIONS INTEGRATED SYSTEMS, L.P. v. THE UNITED STATES and LOCKHEED MARTIN AERONAUTICS COMPANY, Intervenor, COFC No. 06-396C, December 05, 2008. Post-award bid protest of two Air Force contracts to modernize C-5 Galaxy aircraft. See earlier decision where plaintiff seeks bid preparation and proposal costs alleging that the actions of Darleen Druyun including her “unauthorized assumption of the SSA duties and her change of evaluation ratings to justify the selection of Lockheed Martin's higher cost proposal, the Air Force improperly compromised the integrity of the procurement process, breached its implied contract to treat proposals fairly, honestly, and in good faith, and violated a panoply of procurement statutes and regulation.” Judge Williams rejects the three arguments by the government to dismiss as summarized, in part, early in her opinion. “First, Defendant contends that this Court lacks jurisdiction under 28 U.S.C. § 1491(a)(1) because the Administrative Dispute Resolution Act of 1996 (“ADRA”) displaced this Court's implied-contract jurisdiction in bid protests. This Court put that argument to rest in resolving Defendant and Intervenor's first motion to dismiss, finding that while ADRA obviated the need to premise jurisdiction on breach of a implied-in-fact contract, the Act in no way prohibited a plaintiff from alleging such a breach as a legal theory of recovery. Second, Defendant claims that the action is barred by the Anti-Assignment Act, 31 U.S.C. § 3727, because the Act prohibits L-3 as the successor-in-interest to the bidder on this procurement, Raytheon Systems Corporation, from pursuing its claim for bid and proposal preparation costs. Because L-3 acquired Raytheon Systems Corporations Aircraft Integration Systems business unit in toto by operation of law, the Act does not bar L-3 from pursuing this claim. By virtue of this acquisition, only L-3 possesses the right to pursue this claim, and the evil the Act was designed to prevent— subjecting the Government to multiple lawsuits for the same claim—is not present here. Third, Defendant contends that L-3 lacks standing because it was not an actual or prospective offeror in the C-5 AMP procurement. Because L-3 stands in the shoes of Raytheon Systems Corporation as its successor-in-interest, it is in essence the same entity which submitted the offer and possesses standing to seek bid and proposal preparation costs.”

PARSONS TRANSPORTATION GROUP, INC. v. THE UNITED STATES, COFC No. 08-079 C, December 03, 2008. Federal Railroad Administration(FRA) contract. Plaintiff claims breach because FRA refuses to pay pursuant to an indemnification clause in the contract. The government first argues that the claims must be dismissed as they violate the statute of limitations of 28 U.S.C. 2501. Judge Damich rejects this argument as not applying to CDA actions and noting that the CDA statute of limitations was not effective when the contract was awarded. The court also rejects the argument that the claims fall under Public Law No. 85-804 rather than the CDA. Judge Damich notes that “a claim based solely and directly on Public Law 85-804 is not before the Court. Rather, Parsons' claim is for breach of a contract provision that happened to have been based on authority conferred to the FRA under Public Law No. 85-804. The CDA covers Parsons' claims.” However the Court does grant summary judgment for the government on Count III finding that an earlier settlement agreement precluded plaintiff from raising this claim. Opinion includes good discussion of the 85-804 issues.

LUBLIN CORPORATION, t/a CENTURY 21, ADVANTAGE GOLD v. THE UNITED STATES, COFC No. 07-206C, December 03, 2008. Judge Allegra start his opinion with this quote “[T]he plain, obvious and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.”  Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370 (1925). Plaintiff was a subcontractor on a HUD contract. HUD requested plaintiff to evaluate the performance of the the prime, but plaintiff was reluctant to do so unless HUD promised that the evaluation would be confidential. HUD orally agreed to keep evaluation confidential. Within hours after providing the evaluation, which was not all positive, to HUD, the prime unilaterally terminated appellant's subcontract. Plaintiff asserts two claims: (i) breach of implied-in-fact contract; and (ii) breach of express contract. The government moves to dismiss arguing arguing “that the court lacked jurisdiction because plaintiff failed to submit a claim to a HUD contracting officer prior to filing its complaint as required by the Contract Disputes Act of 1978 (CDA). It also asserted that the complaint failed to state a claim because plaintiffs claim for breach of an express oral contract is barred by 31 U.S.C. § 1501 [Documentary evidence requirement for Government obligations].” Judge Allegra, relying on INSTITUT PASTEUR v. THE UNITED STATES, CAFC No. 86-1541, March 09, 1987, denies the motion finding that the alleged contract with plaintiff was not a procurement contract covered by the CDA. Judge Allegra also rejects the Title 31 argument noting that the government “makes another remarkable claim  asserting that a statute designed to control internal government budgeting, 31 U.S.C. § 1501(a), precludes the court from enforcing oral contracts under the Tucker Act.” Good discussions of procurement contracts under the CDA and 31 U.S.C. § 1501.

SAN CARLOS IRRIGATION AND DRAINAGE DISTRICT v. THE UNITED STATES, COFC No. 06-576C, December 03, 2008. Bureau of Indian Affairs breach of contract case. Although denying both parties' motions for summary judgment, Judge Christine Miller makes the following observation regarding the good faith and fair dealing argument “If plaintiff establishes by a preponderance of evidence that the challenged actions were unreasonable, the Government cannot elude liability by augmenting plaintiff's burden to prove personal animus on the part of BIA employees. Incompetence will be sufficient.”

CONSUMERS ENERGY COMPANY v. THE UNITED STATES, COFC No. 02-1894 C, November 26, 2008. SNF case. Plaintiff claims interest and attorney and expert fees arguing that interest is allowable as time price differential dollars, and fees are justified by the government's bad faith. Judge Damich grants summary judgment for the government finding that interest is barred by 28 U.S.C. 2516 and that the claim “lacks any evidence of a correspondence between its general borrowing and its mitigation efforts.” Regarding the claim for fees Judge Damich notes “An allegation of bad faith in DOE's partial breach of the Standard Contract cannot form the basis for the exception to the American Rule that each party bears its own fees.”

BLR GROUP OF AMERICA, INC. v. THE UNITED STATES, COFC No. 07-579 C, November 25, 2008. Air Force contract. Plaintiff challenges the performance evaluation it received after its contract was terminated for convenience and requests injunctive relief requiring the Air Force to revise the Contractor Performance Assessment Report (“CPAR”). The government moves to dismiss arguing that the court lacks jurisdiction over a performance issues as plaintiff has not asserted any contractual ground upon which it is entitled to a specific performance evaluation. Judge Sweeney disagrees noting that “In sum, a contractor's claim requesting a change to a performance evaluation is not a meaningless act. To the contrary, such a claim is a proper mechanism, and provides the proper jurisdictional predicate, to challenge an adverse performance evaluation in the Court of Federal Claims.” Good discussion of the CDA elements of a claim. Judge Sweeney also declines to follow ASBCA decisions which held that the Board did not have jurisdiction to hear performance evaluation matters.

LUMETRA v. THE UNITED STATES and HEALTH SERVICES ADVISORY GROUP, INC.,intervenor, COFC No. 08-663C, November 19, 2008. Post-award bid protest, Health and Human Services, Centers for Medicare and Medicaid Services (“CMS”) contract. Plaintiff requests injunctive relief and award of the subject contract arguing improper evaluation and unequal discussions. Although Judge Lettow finds that the government violated FAR 42.1503(b) by not allowing plaintiff to submit comments on its past performance evaluation, Judge Lettow determines that plaintiff was not prejudiced. Finding that other allegations by plaintiff were not supported, the court grants the government's motion for judgment on the administrative record.

DCMS-ISA, INC., L & R SECURITY FORCES, INC., THE WHITESTONE GROUP, INC., and R & D TRAINING AND TECHNICAL SERVICES, INC. v. THE UNITED STATES, COFC No. 08-456C, November 14, 2008. Bid protest, Federal Protective Services(“FPS”) Disabled Veteran-Owned Small Business (“SDVOSB”) procurement. FPS issued a SDVOSB set-aside solicitation for guard services in approximately 50 federal buildings. After receipt of proposals, a new FPS contracting officer determined that none of the offerors had acceptable relevant past performance. The CO determined that the acquisition strategy for the solicitation was flawed for a number of reasons and that the solicitation should not have been an SDVOSB set-aside, because the vast majority of the proposals submitted were teaming arrangements wherein SDVOSBs with little to no relevant experience teamed with more experienced subcontractors. As a result the solicitation was cancelled and FPS resolicited under GSA's Federal Supply Schedule. Protestors request injunctive relief arguing that the decision to cancel the SDVOSB set-aside was arbitrary and capricious and that the FPS should have referred the past performance issue to the SBA under the COC procedure. Judge Firestone finds for the government on the administrative record. Noting the discretion given to the government in canceling a negotiated procurement, Judge Firestone notes “Thus, the court finds that the government was within its rights to cancel the solicitation and resolicit using a different acquisition strategy once it determined that the original solicitation had failed to result in any proposals that met the agency's needs. Where, as here, the government is entitled to a great degree of deference, the court will not force the government to accept the services of contractors that the government has determined will not meet its needs. Where the government has made such a determination, it must be allowed to call an end to a negotiated solicitation, rather than being required to push forward and select an awardee.”

LABATT FOOD SERVICE, INC. v. THE UNITED STATES, COFC No. 08-597C, October 30, 2008. Post-award protest, DLA procurement. The solicitation required proposal revisions to be submitted by facsimile, although all offerors used email. Plaintiff's proposal revision was rejected because it was submitted by email and was late. Judge Horn vacates the award, the procurement, and orders that plaintiff should be allowed to compete in any reprocurement. Although agreeing with the government that plaintiff submitted its proposal revision late, Judge Horn still finds that plaintiff has standing to bring the protest- “In the present case, Labatt lost its lateness argument, but is accorded standing because Labatt's deviation from the solicitation argument as to the required method of transmission for proposal revisions has prevailed.” She concludes “Fundamentally, this procurement was flawed from an early stage. The proposal revisions, which survived in some form for evaluation and award, were submitted by an unauthorized method of transmission and should not have been considered as a basis for award by the agency. The remedy is to rebid if the procurement of goods and services are still required by the agency.”

HIGHQBPO, LLC v. THE UNITED STATES, COFC No. 08-70C, October 29, 2008. Contract with Army & Air Force Exchange Service(AAFES). The government requests reconsideration of the denial of its motion, without prejudice, for a stay pending completion of a related criminal proceeding. Judge Hewitt grants the motion and stays the proceedings. She agrees with the government that plaintiff should be judicially estopped from opposing the stay as inconsistent with postions taken by plaintiff in related matters before other courts. Good discusion of judicial estoppel and stays when related criminal matters are pending.

VERMONT YANKEE NUCLEAR POWER CORPORATION, and ENTERGY NUCLEAR VERMONT YANKEE, LLC, et al., Plaintiffs, v. THE UNITED STATES, COFC Nos. 02-898C and 03-2663C, October 22, 2008. SNF case. Dispute between plaintiffs over the assignment of claims against the government. Judge Wheeler decides this contract interpretation issue in favor of ENTERGY NUCLEAR VERMONT YANKEE(ENVY). Judge Wheeler finds that the contract between plaintiffs was not ambiguous and that only the interpretation offered by Envy was reasonable.

NORTEL GOVERNMENT SOLUTIONS, INC. v. THE UNITED STATES and SYSTEMS RESEARCH AND APPLICATION CORPORATION, Intervenor, COFC No. 08-682C, October 20, 2008. Plaintiff challenges the override of the automatic stay in this DEA procurment. Judge Futey examines the four factors the government must overcome in sustaining the override and finds the government deficient in all respects. He notes “Because defendant has failed to establish that overriding the stay is necessary because of urgent and compelling circumstances, or because it is in the best interests of the United States, defendant's override decision is invalid. DEA failed to consider important, relevant aspects of the override analysis, and offered explanations that run contrary to evidence before it. Defendant's decision to override the automatic CICA stay is consequently arbitrary, capricious, and contrary to law.” Judge Futey denies injunctive relief noting that “By operation of law, the automatic stay in Plaintiff's GAO bid protest is reinstated; it is therefore unnecessary to consider plaintiffs request for injunctive relief ... ”

LAUDES CORPORATION v. THE UNITED STATES, COFC No. 07-4C, October 16, 2008. Coalition Provisional Authority(CPA) contract. Judge Wheeler dismisses the action finding that the Court has no jurisdiction as no appropriated funds were available for the contract. Discussion of the four types of funds available for contracts in Iraq: appropriated funds; vested funds; seized funds; and Development Fund for Iraq(DFI) funds. Judge Wheeler notes “The Court finds Defendant's analogy of the NAFI Doctrine to the present case highly persuasive. To be certain, the CPA as an entity does not directly implicate the NAFI Doctrine: it was not created by Congress through an enabling statute, and it did in fact receive appropriated funds. However, the reasoning behind the doctrine does extend to the CPA-executed contracts themselves. These contracts did not receive United States appropriated moneys and derived their funding exclusively from DFI funds. Furthermore, CPA Memorandum 4 explicitly restricted the use of United States appropriated funds for such contracts.The Court finds Defendant's analogy of the NAFI Doctrine to the present case highly persuasive. To be certain, the CPA as an entity does not directly implicate the NAFI Doctrine: it was not created by Congress through an enabling statute, and it did in fact receive appropriated funds. However, the reasoning behind the doctrine does extend to the CPA-executed contracts themselves. These contracts did not receive United States appropriated moneys and derived their funding exclusively from DFI funds. Furthermore, CPA Memorandum 4 explicitly restricted the use of United States appropriated funds for such contracts.”

E-MANAGEMENT CONSULTANTS, INC. v, THE UNITED STATES, and CENTECH GROUP, INC., Intervenor, COFC No. 08-680 C, October 14, 2008. Post-award bid protest, National Highway Traffic Safety Administration(NHTSA) contract. Plaintiff moves for a declaratory judgment that the decision to override the automatic stay was unlawful while the merits of the protest are before the GAO. Judge Hewitt grants the motion “declaring that the override by NHTSA of the automatic stay in GAO protest B-400585 is void and without effect.” Judge Hewitt analyzes the decision to override the stay by applying four factors: “(1) whether significant adverse consequences would occur if the agency did not override the stay (2) whether reasonable alternatives to the override were available, (3) how the benefits of overriding the stay compared to the potential cost of the override, including costs associated with the potential that the protester might prevail before GAO, and (4) the impact of the override on the competition and integrity of the procurement system.” The court finds that the override decision failed the latter three factors. In an Appendix, the court also denies the government's motion to supplement the administrative record to state the facts and circumstances of NHTSA discussions that led to then “information contained in the OM and AR are sufficient for this court to decide whether NHTSAs decision was ‘arbitrary and capricious' under the Administrative Procedure Act standard.”

WATTS-HEALY TIBBITTS A JV v. THE UNITED STATES and IBC/TOA CORPORATION, Intervenor, COFC No 08-261C, October 14, 2008. Judge Smith lifts the injunction issued in his August 05, 2008 decision relating to the CO's responsibility determination in face of alleged bid rigging by the awardee. After reviewing the new responsibility determination by the newly appointed CO, Judge Smith lifts the injunction finding that the new decision of responsibility was not arbitrary or capricious. Judge Smith notes “Even though the Court might not agree that it is in the best interest of the United States to contract with a company that has been sanctioned not only once, but on at least three separate occasions for bid rigging, the Court may not ‘substitute its judgment for that of the agency.' [citation omitted] It must also be emphasized that the purpose of the responsibility determination and this opinion is not punitive, it is not for the purpose of punishing TOA.”

ACCESS SYSTEMS, INC. v. THE UNITED STATES and AVINEON, INC., Intervenor, COFC No. 08-708C, October 10, 2008. Bid protest, override case, Marine Corps contract. Plaintiff requests injunctive relief arguing that the award of a 120 day bridge contract violates the automatic stay provision of 31 U.S.C. § 3553(c) while a protest is pending at the GAO. The government argues that “the bridge contract is distinct from the original contract and does not constitute a de facto override.“ Judge Bruggink agrees after reviewing the affidavit and testimony of the CO. He dismisses the complaint holding “that the bridge contract is not a partial iteration of the original contract but is a new contract with a distinct character and function. The status quo with respect to the original contract remains unchanged.”

ALABAMA AIRCRAFT INDUSTRIES, INC. - BIRMINGHAM, v. THE UNITED STATES and THE BOEING COMPANY, Intervenor, COFC No. 08-470C, October 07, 2008. Post-award bid protest, Air Force contract for maintenance services on the KC-135 tankers. (See earlier 2007 and 2008 GAO protest decision) Judge Lettow sets aside the award to Boeing and requires the Air Force to resolicit the requirement. He “finds that the Air Forces price-realism analysis in this procurement was ‘arbitrary and capricious' within the meaning of 5 U.S.C. § 706(2)(A).” The court also rejected the arguments by defendants that plaintiff was not an interested party because of its corporate restructuring. Judge Lettow notes “A change in size does not automatically equate to a company becoming a ‘new‘ entity.” Decision also has considerable discussion of OCI issues which plaintiff alleged but failed to prove.

M. MAROPAKIS CARPENTRY, INC. v. THE UNITED STATES, COFC No. 03-2825C, October 02, 2008. Navy construction contract. Judge Baskir dismisses plaintiff's claims for lack of jurisdiction as it did not submit a claim to the CO. Judge Baskir notes “A valid CDA claim is more than a mere request. Whether it is for monetary or nonmonetary relief, a claim seeks it as a matter of right. Davies, 35 Fed. Cl. at 664 (citing Reflectone, 60 F.3d at 1576); North Star, 76 Fed. Cl. at 185 (contractor required to ‘specifically assert entitlement to the [nonmonetary] relief sought') (quoting Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1265 (Fed. Cir. 1999)).” However the court does grant summary judgment to the government on its liquidated damages claim. Good discussion of the requirements of a CDA claim.

GENERAL ELECTRIC COMPANY v. THE UNITED STATES, COFC No. 99-172C, September 29, 2008. CAS segment closing case. Judge Firestone holds “that: (1) the original CAS 413 required GE to perform a segment closing adjustment calculation on the entire sold segments, including the portion of the segments' pension assets and liabilities transferred to the buyers; (2) the government must consider any cost-saving benefits it obtained from the pension surplus transferred to the buyers in determining whether GE satisfied its segment closing adjustment obligations; and (3) material issues of fact preclude a determination of the amount of any benefit the government derived from the pension surplus transferred to the buyers.”

FEMME COMP INC., TECHNICAL AND PROJECT ENGINEERING, LLC, L-3 SERVICES, INC., DATA SYSTEMS ANALYSTS, INC., and BEARINGPOINT, INC. v. THE UNITED STATES and SAVANTAGE FINANCIAL SERVICES, INC. and BOOZ ALLEN HAMILTON INC., intervenors, COFC Nos. 08-409C, 08-419C, 08-432C, 08-454C, and 08-474C, September 30, 2008. Postaward bid protest, Army contract for IT services. In a 93 page opinion Judge Sweeney sets aside the awards to three contracts and enjoins the government from commencing performance of two other contracts. Although dismissing the FEMME complaint as lacking standing, the judge summarizes the probable success on the merits as “the Army erred in evaluating the proposals within the competitive range in two ways, by (1) improperly evaluating the Small Business Participation factor and (2) failing to consistently evaluate the on-site decision-making authority of the offerors' program managers. The court has also concluded that the Source Selection Authority accorded the Price factor more weight than permitted by the Army's solicitation, resulting in best value tradeoffs of the proposals within the competitive range, except for the proposals of Savantage and Binary, that were arbitrary, capricious, and not in accordance with the law. By elevating Price over the more highly rated nonprice factors, whether it be the three more highly rated nonprice factors taken individually or the four nonprice factors taken collectively, the Source Selection Authority violated the express provisions of the solicitation. Moreover, the court concludes that the unsuccessful offerors were prejudiced by the improper evaluations and best value tradeoffs.”

KLINGE CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant, and SEA BOX, INC. Intervenor, COFC No. 08-551C, September 30, 2008. The latest in this TAA case. See earlier decision. The court's latest decision addresses the USMC's decision, after losing at the court, to acquire 150 systems through a GSA Schedule buy, rather than from Klinge Corporation (which was next in line for award) under the original solicitation. The court declines to enjoin the procurement, now from the FSS, but awards bid prep costs.

A.A.B JOINT VENTURE v. THE UNITED STATES, COFC Nos. 04-1719 C, No. 05-114 C, No. 05-1172 C, and No. 06-49 C. September 24, 2008. Corps of Engineers contract. Plaintiff argues that the contract “as well as the circumstances surrounding formation of the contract, establish the existence of an express warranty that AAB would be able to import foreign workers into Israel, as necessary, to be utilized on the construction project.” Judge Damich rejects the argument finding that the contract does not contain an express warranty and the permissive language in the contract “does not unmistakably assure the contractor of favorable action by the GOI on visa applications.”. Good discussion of the cases dealing with a warranty by the government, including the Federal Circuit decision in Oman-Fischbach Int'l v. Pirie, 276 F.3d 1380.

PRECISION LIFT, INC. v. THE UNITED STATES, COFC No. 08-500C, September 24, 2008. Post-award protest Army National Guard contract. Plaintiff argues that awardee's product was improperly accepted as a commercial item as the product had never been actually sold to the general public. Judge Smith rejects this argument and finds that plaintiff's argument that the court “should assume the term ‘offer,' in the FAR definition of ‘commercial item,' as being synonymous with the contractual term ‘Offer' - defined by the FARs as ‘a response to a solicitation that, if accepted, would bind the offeror to perform the resultant contract.'” and finds that argument “to be a very narrow reading of the FAR.” See recent GAO opinion on this case.

L-3 COMMUNICATIONS EOTECH, INC. v. THE UNITED STATES and AIMPOINT, INC., intervenor, COFC No. 08-515 C, September 2, 2008. Pre-award protest of an Army contract for optical rifle sights. Reaching an opposite conclusion of that contained in the recent GAO decision, Judge Bush enjoins the Army from proceeding with the award to intervenor. The court finds that the decision to limit the competitive range to one was arbitrary and capricious, the evaluation factors were not followed and the Army erred in not seeking clarifications or other information from plaintiff regarding the method of securing plaintiff's sight to the rifle.

TDM AMERICA, LLC v. THE UNITED STATES and TDM AMERICA, LLC, COFC No. 06-472C, September 17, 2008. Corps of Engineers dredging contract Plaintiff brings this patent infringement case under 28 USC 1498 alleging that its patents were infringed. The government argues that the court does not have jurisdiction because the government did not give its authorization and consent. First noting that authorization and consent is an affirmative defense rather than a jurisdictional issue, Judge Wheeler finds that the Corps' approval of various work plans constituted an authorization and consent and allows the case to go forward.

DYONYX, L.P. v. THE UNITED STATES, COFC No. 08-458C, September 15, 2008. Pre-award bid protest, Millennium Challenge Corporation procurement. Court grants the government's motion for judgment on the administrative record. Considerable discussion of whether standing to protest depends on submission of compliant final proposal. Judge Christine Miller notes that “The caselaw has confused the legal issue whether a noncompliant proposal forfeits the offeror's status as an actual offeror. This confusion arises within the Court of Federal Claims and not in the binding precedent of the Federal Circuit.” The judge then chides the government by reiterating “that it is the Federal Circuit, not the Court of Federal Claims, that issues the decisions defendant should cite as law.”

AMERICAN ORDNANCE LLC v. THE UNITED STATES, COFC No. 07-867C, September 12, 2008. Army contract. Ownership of manufacturing equipment in GOCO Facility. Judge Wheeler considering extrinsic evidence in determining the parties intent finds for plaintiff in ruling that plaintiff owns the equipment. Judge Wheeler also finds that claim by the government that it owned the equipment is barred by the CDA's six-year statute of limitations. He also comments “it is difficult to understand how the Army could ‘pull a fast one' on the contractor as it did, abrogating the crystal clear manifestation of mutual intent in 1996 that [plaintiff] would own the equipment.”

VERIDYNE CORPORATION v. THE UNITED STATES, COFC Nos. 06-150C & 07-647C, September 12, 2008. [Court's Synopsis- Contracts; breach of contract; motion for summary judgment; Rule 56(C)(f); 28 U.S.C. § 2514 (2000); fraud counterclaim; fraud as an affirmative defense; remedy for contracts void ab initio versus forfeiture.] Court denies motions and fraud allegations are deferred for trial. Good discussion of fraud, forfeiture and appropriate remedy for contracts that are void ab initio.

CAREER TRAINING CONCEPTS, INC. v. THE UNITED STATES, COFC No. 08-450C, September 09, 2008. Post-award bid protest of an Army National Guard procurement for recruiting services issued by the GSA e-Buy web site. Judge Horn finds for the government on the administrative record and denies the motions by plaintiff for injunctive relief. After noting that “There is some disagreement on the standard of proof required for injunctive relief, with some Court of Federal Claims opinions citing a preponderance of the evidence and others citing clear and convincing evidence as the test.” she concludes that “the proper standard is the preponderance of the evidence standard for injunctive relief, or demonstration of a fact as ‘more likely than not.‘”[citations omitted]

PRECISION PINE & TIMBER, INC. v. THE UNITED STATES, COFC No. 02-131C, September 09, 2008. EAJA case, Forest Service contracts. See most recent merits decision. Judge George Miller awards plaintiff 58 per cent of its requested fees. Good discussion of EAJA prevailing party and substantially justified issues.

METRIC CONSTRUCTION CO., INC. v. THE UNITED STATES COFC No. 04-954 C, September 03, 2008. EAJA case. Corps of Engineers construction contract. See merits decision. Judge Bush denies the application for fees finding that the government's position was substantially justified throughout the administrative and court phases of the case. She rejects the argument by plaintiff that a failure to issue a decision by the CO, a deemed denial, was unreasonable. However, Judge Bush does chide the government by noting “Defendant thus comes perilously close to failing to offer any reasoning in support of its contention that the government's position in this litigation was substantially justified. The court would not recommend such cursory treatment of the ‘substantial justification' defense by government counsel in future cases.”

UNITED STATES SURETY COMPANY, et al v. THE UNITED STATES, COFC No. 07-638 C, August 28, 2008. Plaintiffs are sureties who entered into a takeover agreement for the defaulted prime. “At issue in this case is whether plaintiffs, having completed the contract pursuant to the takeover agreement, possess a superior right to earned but withheld funds, as compared to the governments entitlement to liquidated damages from these same funds.” Judge Block sua sponte grants summary judgment in favor of the government. After considering FAR 49.404(e), the takeover agreement and case law, Judge Block “holds that plaintiffs are not entitled to sums withheld by the government as liquidated damages as a matter of law.”

HOMER J. HOLLAND, STEVEN BANGERT, Co-Executor of the Estate of HOWARD R. ROSS, and FIRST BANK v. THE UNITED STATES, COFC No. 95-524 C, August 26, 2008. Winstar case. While rejecting most of plaintiff's damage theories, Judge George Miller does award $18,623,000 for decline in going-concern value. The counterclaims asserted by the government are delayed for further proceedings.

BENJAMIN & SHAKI ALLI AND BSA CORPORATION v. THE UNITED STATES, COFC No. 01-669 C, August 22, 2008. [Court's Synopsis: Trial; Breach of contract; Section 8 housing program; Housing Assistant Payments contracts and associated regulatory agreements; Requirement that owner maintain decent, safe and sanitary housing for tenants; HUD properly determined that properties in question were not maintained in a decent, safe and sanitary fashion; HUD did not commit contract breaches in suspending and terminating HAP contracts and regulatory agreements; HUD did not breach contract provisions regarding transfer of property; Counterclaim; Plaintiffs breached HAP contracts and associated agreements; Corporate veil pierced.] Horror story of Section 8 housing contracts.

STERLING, WINCHESTER & LONG, L.L.C. v. THE UNITED STATES, COFC No. 05-297C, Corrected copy, August 20, 2008, Originally filed July 17, 2008. Trademark license agreement USPS. Judge Margolis denies plaintiff's claim and grants the government's $100,000 counterclaim. The court finds that the agreement was an integrated agreement and that “When a document contains an integration clause, no additional terms may be added, whether consistent or inconsistent, through parol evidence.”

L-3 GLOBAL COMMUNICATIONS SOLUTIONS, INC. v. THE UNITED STATES, COFC No. 08-101 C, August 15, 2008. Post-award bid protest, Coast Guard procurement. Judge Bush rejects bait and switch argument by protestor finding that bid was facially compliant and government ultimately did not agree to the switch.

TYLER CONSTR. GROUP v. THE UNITED STATES, COFC No. 08-94C, August 14, 2008. Bid protest, Corps of Engineers procurement. [Court's synopsis] (i) The use of an Indefinite Delivery/Indefinite Quantity contract to acquire construction services constitutes a permissible exercise of the procurement authority under the FAR § 1.102(d); (ii) 15 U.S.C. §§ 631(j), 644; 10 U.S.C. § 2382(a)Restrictions against bundling of contract requirements, even if applicable to general construction work, do not apply when, on the basis of comprehensive advice provided by the construction industry, the procuring agency determines bundling to be necessary and justified; (iii) 15 U.S.C. § 644 noteThe procuring agency is not required to seek a waiver of statutory restrictions barring set-asides for general small business concerns when the agencys needs require participation by contractors that are able to support construction projects generally exceeding small business revenue standards; (iv) 10 U.S.C. § 2305(a)Statutory two-phase design/build selection procedures are not restricted to acquisitions involving a single structure or group of structures at a single location, nor do they require the award of three or more contracts; (v) FAR §§ 16.504(a)(3), 36.204The procuring agency did not overstate its needs to the detriment of the ability of small businesses to participate in the solicitation when the regulations barred disclosure of the government price estimate and task orders were identified in terms of minimum and maximum dollar values.

KENNEY ORTHOPEDIC, LLC v. THE UNITED STATES, COFC No. 08-0003C, August 07, 2008. Department of Veterans Affairs contract. Court has no jurisdiction over claims of “tortious interference with a contractual advantage; tortious interference with a prospective advantage; and intentional infliction of emotional distress.” Judge Braden also dismisses a claim for punitive damages.

JGB ENTERPRISES, INC. v. THE UNITED STATES, COFC No. 01-680 C, August 07, 2008. EAJA case. See earlier COFC decision on the merits and the appellate decision in the CAFC. The court finds that plaintiff prevailed on the major issues, third-party beneficiary and offset, and that the overall position of the government was not substantially justified. The court does find the position of the government at trial on the third-party beneficiary issue to be substantially justified noting that in regards to the testimony of the CO that “the law does not require counsel to put his own client or witness through the third degree prior to permitting the client or witness to testify at trial.”

BURCHICK CONSTRUCTION COMPANY, INC. v. THE UNITED STATES, COFC No. 08-15C, August 06, 2008. VA contract. Both parties move for summary judgment over the proper interpretation of contract terms for the payment for removal of rock. Judge Horn denies the motions noting that “Given the multiple, possible, reasonable interpretations of the contract terms, partial summary judgment is denied. The next step is to examine ‘the relation of the parties and the circumstances under which they executed the contract,' id., to resolve the ambiguity.” Good discussion of the standards for summary judgment and the interpretation of ambiguous contract provisions.

THE CNA CORPORATION v. THE UNITED STATES, COFC No. 07-858C, August 06, 2008. Bid protest, HHS procurement, bid preparation and proposal costs. Judge Horn denies the motion by the government to strike Plaintiff's entire application for B&P costs. Interesting decision concerning the timing and propriety of a claim for bid preparation and proposal costs.

WATTS-HEALY TIBBITTS A JV v. THE UNITED STATES and IBC/TOA CORPORATION, Intervenor, COFC No. 08-261C, August 05, 2008. Judge Smith denies the motion to stay the injunction pending a possible appeal in this case and modifies his previous order which found the responsibility determination of the awardee to be arbitrary and capricious.

TIP TOP CONSTRUCTION, INC. v. THE UNITED STATES, COFC No. 08-352 C, August 01, 2008. Post-award bid protest, Federal Highway Administration contract. Plaintiff's individual surety which pledged “an allocated portion of $191,350,000.00 of previously, mined, extracted, stockpiled, marketable, coal, ... ” was rejected by the CO as an unacceptable asset. Judge Bush finds for the government on the administrative record noting that the decision by the CO was not arbitrary, capricious, unsupported by substantial evidence in the administrative record, or contrary to the law. Good discussion, and perhaps more than you wanted to know, about FAR 28.203, Acceptability of individual sureties.   [See GAO decision on the same case.]

ALABAMA AIRCRAFT INDUSTRIES, INC. - BIRMINGHAM v. THE UNITED STATES and THE BOEING COMPANY, Intervenor, COFC No. 08-470C, July 31, 2008. Post-award bid protest, Air Force procurement for maintenance of KC-135 tankers. Plaintiff requests that the administrative record be supplemented and that it be allowed to conduct discovery on several issues. Judge Lettow allows limited supplementation and denies discovery “except insofar as materials withheld by the government on grounds of attorney-client privilege and work product protection are concerned.” The government is directed to respond to the issue of whether the privilege has been waived.

METROTOP PLAZA ASSOCIATES v. THE UNITED STATES, COFC No. 07-811C, July 24, 2008. GSA property lease contract. The government argues that both counts of the complaint should be dismissed, Count I because the appeal was filed more than 12 months after the CO's decision, and Count II because the appeal was premature. Judge Wiese rejects the first argument finding affirmatively that “the efforts that plaintiff pursued to engage the government in discussions regarding the tax issue after receipt of the contracting officer's final decision could substantively be viewed as a request for reconsideration and, correspondingly, whether the contracting officer could reasonably have understood that such a request was plaintiffs purpose.” Finding that the communication between the parties “reflects reconsideration of the contracting officers prior decision of September 1, 2006, and thus, sets a new time marker for pursuing further relief in this court.” Judge Weise dismisses the second count, based on a deemed denial theory, holding that the 60 days for a decision by the CO does not beginning to run until the claim is received by the CO.

WATTS-HEALY TIBBITTS A JV v. THE UNITED STATES and IBC/TOA CORPORATION, Intervenor, COFC No. 08-261C, July 23, 2008. Although denying reconsideration of his earlier decision in this case, Judge Smith, finding the responsibility determination of the awardee to be arbitrary and capricious, enjoins the Navy from proceeding until a new responsibility determination is made. Judge Smith notes that if the Navy wishes to allow unethical practices by foreign firms that policy must be established by a flag officer or presidential appointee. Plaintiff is required to post a $1.00 bond.

FRANCISCO JAVIER RIVERA AGREDANO v. THE UNITED STATES, COFC No. 05-608 C, July 22, 2008. Plaintiff Rivera purchased a vehicle “as is” at auction following a Customs Service Federal Forfeiture Sale. Plaintiff and his passenger. co-plaintiff Calderon, spent a year in a Mexico prison following the discovery that the vehicle contained 17 kilograms of marijuana hidden in the upholstery. Plaintiff alleges breach of contract arguing that the government failed to conduct a thorough search of the car prior to its sale. See earlier decision denying the government's motion to dismiss for lack of subject matter jurisdiction. Judge Hewitt now finds that the governnent breached the implied warranty that the purchased vehicle would be free of contraband and awards $550,854 in damages, $350,000 of it for attorney fees.

TIN MILLS PROPERTIES, LLC, v. THE UNITED STATES, Defendant and GLENMARK HOLDING, LLC, intervenor, COFC No. 08-375C, July 15, 2008. Bid protest, GSA contract to build and lease-back a building. Plaintiff argues that GSAR 552.270-1(c)(7), Instructions to OfferorsAcquisition of Leasehold Interests in Real Property, required GSA to include plaintiff's alternate proposal within the competitive range. Judge Bruggink disagrees granting the government's motion for judgment on the administrative record holding that “While GSAR 552.270-1(c)(7) allows offerors to submit proposals that depart materially from solicitation requirements, the government has no obligation to consider them, or explain why it did not do so.”

SEALIFT, INC. v. THE UNITED STATES, COFC No. 07-627C, July 11, 2008. Pre and post-award bid protest, Navy time charter contract. Plaintiff puts forward several arguments including misrepresentation by awardee, violation of the small business subcontracting provisions, material modifications of the contract after award and reflagging violations. Judge Braden finds for the government on all issues. Interesting discussions of contractor versus employee definitions as related to a headhunter company and the requirements that the vessel be flagged in the US and the related reflagging efforts. Judge Braden also notes, in what appears to be dicta, that the Cargo Preference Act of 1904, 10 U.S.C. § 2631, “contains neither a right of action nor remedy. Therefore, even if the Government failed to comply with this Act, the court has no jurisdiction to set aside the contract at issue on that basis alone.”

AXIOM RESOURCE MANAGEMENT, INC. v. THE UNITED STATES and LOCKHEED MARTIN FEDERAL HEALTHCARE, INC., Defendant-Intervenor., COFC No. 07-532C, July 07, 2008. Judge Braden refuses to issue a stay of her earlier opinion pending appeal to the Federal Circuit in this bid protest OCI case. Chastising the government for failure to keep the court informed of developments including the recent proposed FAR rule on OCIs, she notes “the court is pleased to see that the procurement agencies recognize the importance of conflict of interest considerations and the recognized need to clarify existing ambiguities.”

CUMBERLAND CASUALTY & SURETY COMPANY v. THE UNITED STATES, COFC No. 94-366 C, July 03, 2008. Although an unpublished decision and summary judgment is denied as genuine issues of fact exist, the opinion by Judge Merow has some good discussion of liquidated damages assessed against plaintiff, a surety which executed a takeover agreement, and issue preclusion doctrines where the Federal Circuit did not address the issues when reversing the ASBCA decision finding the default of the prime was improper.

OMEGA WORLD TRAVEL, INC., v. THE UNITED STATES, and CW GOVERNMENT TRAVEL, INC., Defendant-Intervenor, COFC No. 08-118C, July 03, 2008. Bid protest, DOJ travel services contracts. Plaintiff “asserts that the government improperly and in bad faith terminated two travel services contracts ... with the intention of transferring the services provided under the contracts to CWGT through two sub task orders issued under a master task order issued under a master Indefinite Delivery Indefinite Quantity ... contract held by CWGT. The plaintiff also contends that the services to be transferred to CWGT under the sub task orders materially depart from the scope of the master IDIQ contract under which the master task order was awarded to CWGT.” The court finds for the government noting that plaintiff failed to file a claim as required by the CDA with the CO regarding the termination of the contracts and that the task orders “do not exceed the scope of the master IDIQ contract ... ” The court also rejects plaintiff's argument that DOJ violated the Procurement Integrity Act.

OSG PRODUCT TANKERS LLC v. THE UNITED STATES and USS PRODUCT CARRIERS LLC. intervenor, COFC No. 07-561C, June 30, 2008. Post-award bid protest, Military Sealift Command. Interesting case. Plaintiff challenges the finding by the CO that plaintiff was not presently responsible. Judge Hodges summarizes the issue as follows “The legal issue is whether a contracting officer may disqualify a contractor for reasons of integrity and business ethics despite the decision of a separate government agency declining to debar the contractor's parent company for similar reasons. That is, does an agency decision not to debar a contractor for admitted legal violations prevent a contracting officer from disqualifying the contractor's subsidiary for similar reasons?” Judge Hodges finds for the government on the administrative record noting that the CO “did not act arbitrarily or capriciously, did not treat plaintiff unequally or unfairly during the bid process, and did not abuse her discretion.” He rejects the argument by plaintiff that the CO was estopped from finding the firm not responsible because another agency had decided not to debar plaintiff's parent.

PACIFIC GAS & ELECTRIC COMPANY v. THE UNITED STATES., COFC No. 04-75C, June 27, 2008. SNF case. Sanctions for violation of a protective order. Judge Hewitt finds that sanctions for violations by plaintiff's attorney are justified noting that “In the circumstances of this case, the court is required to impose the sanctions it mandates. Pursuant to the court's authority under RCFC 16(f), counsel for PG&E is ordered to pay the reasonable expenses incurred by the United States, including attorneys' fees, because of the failure of counsel for PG&E to comply with the Order Amending Protective Order. The value of the attorneys' fees will be measured by the reasonable number of hours worked multiplied by the prevailing market rate, that is ‘those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'” Good discussion of the authority to award sanctions under Rule 16 and the inherent authority of the court.

CITY LINE JOINT VENTURE v. THE UNITED STATES, COFC No. 96-738C, June 19, 2008. Emergency Low Income Housing Preservation Act (“ELIHPA”) case. On remand from the Federal Circuit Judge Wiese grants plaintiff's motion on liability. The court rejects the argument of the government that there was no breach because plaintiff did not tender payment to repay the loan. Finding that the filing by plaintiff a notice of an intent to prepay was adequate and “the government's subsequent failure to permit prepayment and release its control over the use of the property that secured the loan constituted the ... breach ...”

CH2M HILL HANFORD GROUP, INC. v. THE UNITED STATES, COFC No. 07-494 C (Filed: May 8, 2008) (Reissued for publication: June 18, 2008.) DOE contract. Judge Damich denies the government's motion to consolidate with a case presently at the CBCA and instead transfers the case to the CBCA. Good discussion of the issues relating to the transfer of a case to a Board as outined in Giuliani Contracting Co. v. United States, 21 Cl. Ct. 81, 83 (1990);

DONNA MAURAS v. THE UNITED STATES, COFC No. 07-689 C (Filed: May 8, 2008) (Reissued for publication: June 18, 2008). Plaintiff sues for the alleged breach of a settlement agreement for SSA to “provide any prospective employers with a neutral reference about her employment with the agency.” Judge Damich denies the government's motion to dismiss for failure to state a claim finding “The Settlement Agreement's lack of a provision for monetary relief, or any other provision for relief in the event of a breach, consequently does not preclude Mrs. Mauras from seeking the ‘default remedy' of money damages for the SSA's alleged failure to provide a neutral employment reference ... ”

S & M MANAGEMENT INCORPORATED, v. THE UNITED STATES, COFC No. 06-155 C, June 16. 2008. Construction contract, Department of Veteran Affairs. Dispute over punchlist items. Judge Sweeney grants the government's motion for summary judgment for most items but defers three items finding that plaintiff has raised genuine issues of material fact on those items. The court rejects the arguments by plaintiff that deviations from the contract were approved, via inspection, payment, or otherwise, by a VA representative other than the contracting officer.

KLINGE CORPORATION v. THE UNITED STATES and SEA BOX, INC., Intervenor, COFC No. 08-134C, June 10, 2008. Post-award bid protest. Marine Corps procurement, Trade Agreements Act case. (See earlier GAO decision.) Judge Bruggink finds for plaintiff and permanently enjoins the government from continuing the contract with intervenor. Noting that substantial transformation of the product appeared to have occurred in China, Judge Bruggink holds that it was “arbitrary and capricious of the agency to accept Sea Box's proposal as satisfying the TAA certification requirement.”

BEARINGPOINT, INC. v. THE UNITED STATES, COFC No. 07-631C, May 28, 2008. (See earlier decision.) Bearingpoint argues that the TFD should be converted to a TFC because the wrong CO, a DOI employee, first terminated the task order and BPA under the multiple award schedule contract. The contract was subsequently terminated for default by the GSA CO. Judge Wheeler denies the motion and sets the matter for further proceedings noting that Bearingpoint “has failed to present uncontroverted facts demonstrating that it would prevail on the merits of the default termination, or that it suffered prejudice resulting from the procedurally defective termination.”

PARK PROPERTIES ASSOCIATES, L.P., et al v. THE UNITED STATES, COFC No. 04-1757C, May 23, 2008. Damages decision, HUD “Housing Assistance Payment” (HAP) contracts. See liability decision, Park Properties Assocs., L.P. v. United States, 74 Fed. Cl. 264, 265-66 (2006) (Park Properties I). determining the repudiation by the government pursuant to legislative changes. Judge Allegra grants partial summary judgment for plaintiffs holding that “Defendant cannot squash its contractual cake and eat it too. That is to say, it cannot repudiate the rent adjustment provisions in the HAP contracts via legislation that significantly modified them in its favor and then, later, seek to cap its damages via a limitation that, for all intents and purposes, effectuates the breaching modification. To hold otherwise would be to reward defendant for its repudiation in a way that the law simply does not permit. Instead, the court holds that, having repudiated the overall limitation provision in the original HAP contracts, defendant may not rely upon that clause in limiting its damages.” Good discussion of conditions precedent and subsequent and the “doctrine of prevention” in a decision replete with references to Williston Farnsworth and Corbin.

METRIC CONSTRUCTION CO.,INC. v. THE UNITED STATES, COFC No. 04-635C, May 21, 2008. Navy construction contract. Judge Lettow finds for plaintiff on most of its claims. Good discussion of constructive changes, duty to mitigate and the use of the Dataquest Blue Book to determine standby equipment costs. Also a good case which describes the real difficulties which the parties may face in work on an offshore island.

EOD TECHNOLOGY, INC. v. THE UNITED STATES and AMERICAN K-9, INC. Intervening Defendant, COFC No.08-283C, May 15, 2008. Post-award protest, Army contract. Plaintiff challenges the override of the automatic stay of a sole-source bridge contract for contract working dogs (CWD). Judge Lettow denies the motion for injunctive relief, but does enjoin “the Army from procuring additional CWD services from American K-9 on a sole-source basis, absent exigent circumstances.”

ALLIED MATERIALS & EQUIPMENT CO., INC., Plaintiff, v. THE UNITED STATES, Defendant, and ILC DOVER, LP, Defendant-Intervenor, COFC No. 08-151 C, May 13, 2008. Post-award bid protest, DLA contract. Plaintiff requests injunctive relief arguing that DLA violated the FAR and CICA by not notifying plaintiff of an extension of the proposal due date while DLA had notified the awardee of the date change. Plaintiff alleges that it was prejudiced as it would have offered lower prices if it had more time. Judge Hewitt grants the government's motion for judgment on the administrative record. Although agreeing that DLA was in violation, she finds that plaintiff was not unduly prejudiced. After a discussion of the difference between the prejudice standards for pre-award and post-award protests, Judge Hewitt notes that “the court will find prejudice if plaintiff demonstrates that, absent the error, it would have had a chance of receiving the contract award that is more than merely speculative.” The opinion also rejects the argument that the protest was untimely under the standard of Blue & Gold Fleet, L.P. v. United States (Blue & Gold), 492 F.3d 1308, 1314 (Fed. Cir. 2007). Judge Hewitt also discusses at some length in a footnote the differences between Rule 52.1(b) Motions Respecting the Administrative Record and Rule 56 Summary Judgment.

INFORMATION SYSTEMS & NETWORKS, CORP. v. THE UNITED STATES, COFC No. 02-796C, May 06, 2008. Navy contract. In face of explicit contract language which stated that only the CO could approve changes to the contract, Judge Allegra grants the government's motion for summary judgment rejecting plaintiff's constructive changes argument and, finding no specific intent to harm plaintiff, the bad faith allegations. Good discussion of the constructive change doctrine.

WATTS-HEALY TIBBITTS A JV v. THE UNITED STATES and IBC/TOA CORPORATION, Intervenor, COFC No. 08-261C, May 02, 2008. Post-award bid protest, Navy construction contract in Guam. Plaintiff argues that the awardee's joint venture status with a Japanese firm required a 20 per cent factor to be added to awardee's offer in accordance with DFARS 252.236-7010, entitled “Overseas Military Construction  Preference for United States Firms” Judge Smith denies the request for equitable relief finding the Navy's determination was not arbitrary or capricious. However, Judge Smith does recommend that the “Government should clarify the policy to prevent disappointed bidders from reasonably believing they have a cause of action.”

THE CNA CORPORATION v. THE UNITED STATES, COFC No. 08-249C, April 30, 2008. Pre-award bid protest, HHS procurement. Plaintiff challenges the decision by HHS to bar an employee of plaintiff from participating in the procurement based on 18 USC § 207 post employment restrictions. Judge Marion Horn finds for the plaintiff holding that “HHS contracting officer's decision to exclude plaintiff, based on the HHS ethics opinion, is determined to be arbitrary and unreasonable, and is hereby vacated.” Good discussion of standing issues and the “substantial” participation elements of 18 USC §207.

HARPER/NIELSEN-DILLINGHAM, BUILDERS, INC. v. THE UNITED STATES, COFC No. No. 05-269C, April 29, 2008. Air Force contract. Plaintiff asserts a delay related claim on behalf of a subcontractor. “The government contends that it is entitled to summary judgment with respect to the plaintiff's delay claims because, pursuant to the Severin doctrine, Harper had no potential liability to KCI for project delays under the ‘no damage for delay' clause in their subcontract, and therefore Harper cannot ‘pass through' KCI's delay claims to the government.” Judge Firestone grants the government's motion for summary judgment on the claim based on the Sevrin doctrine and her conclsion that California law provided no exception to the unambiguous “no damage for delay” clause in the contract with the subcontractor.

AMERICAN CONTRACTORS INDEMNITY COMPANY v. THE UNITED STATES, COFC No. 07-374 C, April 29, 2008. Plaintiff, a surety, “alleges that the SBA's refusal to pay under the Guarantee Agreement constitutes a breach of contract for which the SBA is liable ... ” Judge Sweeny dismisses the action for failure to state a claim finding that plaintiff violated SBA regulations, 13 CFR 115.19, by failing to obtain prior approval from SBA before changing the bond.

BELL BCI COMPANYv. THE UNITED STATES, COFC No. 03-1613C, April 21, 2008. NIH construction contract. After construction was well underway, NIH decided to add an additional floor to the building. Plaintiff's major claim is an impact claim for the cumulative effect of the many changes required by NIH, plus pass through claims from several subcontractors. The government defends based on accord and satisfaction and counterclaims for liquidated damages. Judge Wheeler finds for plaintiff on most issues. Although not basing his holding on bad faith by the government, he notes that the liquidated damages claim had no basis and was only raised as a negotiating ploy by the government. He also denies the government's accord and satisfaction defense noting that although the CO was listed as a witness she did not testify. Judge Wheeler notes “By her failure to testify, the Court may infer that her testimony would not have supported Defendant's position.”

SAVANTAGE FINANCIAL SERVICES, INC. v. THE UNITED STATES, COFC No. 08-21C, April 15, 2008. Bid protest. Plaintiff “contests an allegedly improper sole source procurement by the Department of Homeland Security (‘DHS') for financial systems application software.” The government argues that there was no procurement only the decision by DHS to standardize its software. Judge Futey agrees with plaintiff that DHS's Brand Name Justification was a procurement as defined by 41 USC 403(2). Judge Futey distinguishes EZENIA!, INC. v. THE UNITED STATES and CARAHSOFT TECHNOLOGY CORPORATION, 80 Fed. Cl. 60 (2008), which had found that agency standardization decisions were not procurements within the COFC jurisdiction. The court notes that in Ezenia! the standardization decision was made through a competitive process, not the case here. Judge Futey finds for plaintiff on the administrative record and enjoins DHS until it “conducts a competitive procurement in accordance with the law to select financial management systems application software.”

HONEYWELL INTERNATIONAL INC., and HONEYWELL INTELLECTUAL PROPERTIES INC. v. THE UNITED STATES and LOCKHEED MARTIN CORP., L-3 COMMUNICATIONS CORP., intervenors, COFC No. 02-1909, April 14, 2008. DIGEST: This decision arises from a patent infringement case which was brought under 28 U.S.C. § 1498. It holds that a claim in a patent which was issued to Honeywell is invalid. The patent describes a system for making night vision devices, such as goggles compatible with full color aircraft displays. The opinion incorporated four earlier published opinions that date back to 2005. Together, these opinions hold that the government did not infringe any of the claims in Honeywells patent. This latest opinion provides a thorough discussion of patent infringement law and of patent infringement actions against the government for products produced by its contractors.[Digest courtesy by counsel for one of the parties-jaw]

INFRASTRUCTURE DEFENSE TECHNOLOGIES, LLC v. THE UNITED STATES and HESCO BASTION, LTD, Intervenor, COFC Nos. 07-582C, 695C, April 07, 2008. Pre-award protest, DLA procurement for collapsible force protection units. Plaintiff protests the award and the award of bridge contracts to intervenor while protest was pending. Judge Merow holds that plaintiff lacks standing as it is not an interested party because it did not submit a proposal, citing Rex Serv., Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). Judge Merow also notes that plaintiff was untimely as it did not file this action during the proposal period, citing Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007),

CHAPMAN LAW FIRM CO. v. THE UNITED STATES, COFC No. 08-39C, April 02, 2008. Bid protest, HUD procurement. HUD did not exercise the option on plaintiff's contract and it expired. HUD solicited proposals from other contractors which had HUD contracts for similar services. Judge Wheeler grants the government's motion for judgment on the administrative record. Rejecting the argument by plaintiff that HUD was required to procure the services competitively, Judge Wheeler notes that the actions were in-scope modifications of the other firms existing contracts.

OSG PRODUCT TANKERS LLC, v. Inc. v. United States, and USS PRODUCT CARRIERS LLC, Defendant - Intervenor, COFC No. 07-561, March 19, 2008. Plaintiff seeks interlocutory appeal of the denial of its motion to amend the Complaint alleging that the contracting officer lacked a rational basis for finding that Intervenor was a responsible bidder. Judge Hodges denies the motion holding that plaintiff, who was determined by the CO to be non-responsible, is not an interested party. Judge Hodges concludes “A plaintiff must have standing to question the responsibility determination of the winning bidder. The Federal Circuit held in Impresa ‘that a potential bidder must establish that it had a substantial chance of securing the award in order to establish standing.' See Myers, 275 F.3d at 1370. As stated above, having a substantial chance includes being an ‘interested party.' Meyers holds that if a bidder is not responsible, then it is not an interested party because ‘[a]wards may not be made to contractors that are not responsible.' Id. at 1371.”

INFORMATION SCIENCES CORP. and GALLAGHER, HUDSON, HUDSON & HUNSBERGER, INC. (d/b/a Development InfoStructure or DEVIS), plaintiff intervenor, v. THE UNITED STATES and SYMPLICITY CORPORATION, defendant intervenor, COFC No. 07-744, March 18, 2008. Post-award protest of reaward by GSA of the Federal Business Opportunities Contract. See earlier decision overturning the initial award. Judge Braden “determined that the new SSA improperly re-evaluated ISC's and Symplicity's technical ratings, which tainted the ‘best value' analysis, and did not comply with the evaluation criteria set forth in the Solicitation in violation of FAR 15.101 and FAR 15.308.” She sets the award aside and orders GSA to issue a new solicitation. [She rejects ISC's argument that discussions were required because a new competitive range was established. She notes “The text of FAR 15.306(c)(1), however, provides that setting a competitive range is required only if discussions are to be conducted, but not the reverse.”]

WEST BAY BUILDERS, INC. v. THE UNITED STATES, COFC No. 04-1140C, March 14, 2008. Department of Veterans Affairs contract. The government sent a request for admissions to counsel for plaintiff on May 3, 2007. Plaintiff did not respond within 30 days, which according court rules they were deemed admitted. On January 16, 2008, plaintiff moved to have the admissions withdrawn claiming “inadvertence” by plaintiff's counsel. Judge Sweeney denies the motion finding that “counsel's clear disregard for his discovery obligation is characterized fairly as careless, dilatory, and negligent.”

STOUT ROAD ASSOCIATES, INC., t/a HILTON PHILADELPHIA CITY AVENUE v. THE UNITED STATES, COFC NO. 07-145C, March 14, 2008. A Defense Supply Center intern signed an agreement with plaintiff to reserve a number of hotel rooms. The reservations were subsequently cancelled and plaintiff sues for liquidated damages according to the agreement. Judge Wheeler grants the government's motion for summary judgment finding that the intern did not have authority to contract and that the agreement was not ratified by a person with authority.

ANCHOR SAVINGS BANK, FSB v. THE UNITED STATES, COFC No. 95-39 C, March 14, 2008. Winstar case. In a 185 decision, which is a primer on damages, Judge Block awards $382,430,910 to plaintiff. In Judge Block's words “This opinion, then, is all about damages. It is about lost profits (a type of “expectation damages”) as a viable measure of damages in the Winstar context. It is about how the doctrines of “foreseeablity” and “certainty” are applied in the lost profit context. It is about the economics of what is of value and exactly how that value is created. And once economic value is determined, it is about what constitutes harm to that economic value in order for a plaintiff to recover under a lost profit theory. The problem thereafter, of coursefor both Anchor and other Winstar litigantsis how to quantify that harm in the form of damages. How might the court best account for harm suffered long ago, and apply the appropriate rule of damages law?”

SERCO INC.; CGI FEDERAL INC.; STG, INC.; ARTEL, INC.; ADVANCED TECHNOLOGY SYSTEMS INC.; APPTIS INC.; NORTEL GOVERNMENT SOLUTIONS, INC.; and THE CENTECH GROUP, INC., Plaintiffs, v. THE UNITED STATES, Defendant, and INDUS CORPORATION; ELECTRONIC DATA SYSTEMS CORPORATION; INTERNATIONAL BUSINESS MACHINES CORPORATION; STANLEY ASSOCIATES, INC.; and GENERAL DYNAMICS ONE SOURCE, LLC, Defendant-Intervenors, COFC Nos. 07-691C, 07-741C, 07-747C, 07-760C, 07-761C, 07-766C, 07-771C, and 07-803C, March 05, 2008. Post award bid protest, GSA Alliant GWAC contract. In a 59 page opinion Judge Allegra enjoins the performance of the contracts plus the use of several specific evaluation techniques. Judge Allegra's introductory comments probably best describe the case — “the court concludes that GSA, in attaching talismanic significance to technical calculations that suffer from false precision, made distinctions that, in their own right, likely were arbitrary, capricious and contrary to law, but certainly became so when the agency failed adequately to account for price and to make appropriate tradeoff decisions. Those compounding errors prejudiced the plaintiffs and oblige this court to set aside the awards in question and order appropriate injunctive relief.”

INFORMATION SCIENCES CORP. v. THE UNITED STATES, GALLAGHER, HUDSON, HUDSON & HUNSBERGER, INC. (d/b/a Development Infostructure or Devis) Plaintiff-Intervenor, and SYMPLICITY CORPORATION, Defendant-Intervenor. COFC No. 07-744C, March 04, 2008. Post award bid protest, GSA contract. Judge Braden allows plaintiff to amend its complaint to include allegations of matters which occurred at or after award. Judge Braden rejects the argument that the court does not have jurisdiction on post award matters noting that plaintiff has alleged material changes to the contract.

TAMERLANE, LIMITED, PARK TERRACE LIMITED, PARK TERRACE EAST LIMITED, and MULLICA WEST LIMITED v. THE UNITED STATES, COFC No. 05-677C, February 29, 2008. ELIHPA case. See earlier decision. Judge Christine Miller dismisses the claims of Park Terrace Limited and Mullica West Limited for lack of subject matter jurisdiction as being time barred by the six year statue of limitations. The takings claims of all four plaintiffs are dismissed for failure to state a claim upon which relief can be granted.

AXIOM RESOURCE MANAGEMENT, INC. v. THE UNITED STATES and LOCKHEED MARTIN FEDERAL HEALTH INSURANCE, INC.,intervenor, COFC No. 07-532C, February 26, 2008. Bid protest. Decision on relief. See OCI merits decision. Very interesting dialogue between Judge Braden and counsel concerning the possible use of the DCAA to audit performance of the contract for the court. Although finding that the hardship disfavor an injunction, Judge Braden finds that the public interest factor outweighs the hardships factor and enjoins the exercise of the contract option when the contract expires in July 2008. Judge Braden also allows plaintiff to file for bid preparation costs and, if it qualifies under the EAJA, for attorney fees.

STERLING SAVINGS ASSOCIATION v. THE UNITED STATES, COFC No. 95-829C, February 19, 2008. Winstar case. Judge Wheeler rejects most of plaintiff's claims for $63.3 million in lost profits and ”wounded bank” damages. The opinion notes that “Sterling has not met its burden of proof of showing that its lost profits were foreseeable from the loss of $15.5 million in goodwill, that the damages were the proximate cause of the Governments breach, or that the damages were established with any reasonable certainty.” Plaintiff is awarded $1,054,850 in transaction costs and regulatory supervision costs.

INTERNATIONAL AIR RESPONSE, INC. v. THE UNITED STATES, COFC No. 00-428C, February 15, 2008. EAJA case, Forest Service contract. Judge Christine Miller begins the opinion with the following-“The travails associated with plaintiffs recovery in this case reflect poorly on the Government; now the Government has compounded them by trumpeting the reasonableness of its litigation position on the merits of plaintiffs claim.” (See most recent merits decision.) Judge Miller finds that the government's position was not substantially justified except for early litigation of jurisdictional issues. She awards attorney fees of $60,237.50 and orders plaintiff to submit an itemized statement of its expenses incurred after April 7, 2003, plus fees and expenses in connection to the filing and briefing of its EAJA application.

SHELL OIL COMPANY, UNION OIL COMPANY OF CALIFORNIA, ATLANTIC RICHFIELD COMPANY, and TEXACO INC. v. THE UNITED STATES, COFC No. 06-141C, February 08, 2008. CERCLA liability case arising from contracts for aviation gasoline(avgas) during World War II. The contracts contained a Taxes clause which provided, in part, “[The Government] shall pay . . ., any new or additional taxes, fees, or charges, other than income, excess profits, or corporate franchise taxes, which Seller may be required to pay by any municipal, state, or federal law in the United States or any foreign country to collect or pay by reason of the production, manufacture, sale or delivery of the [avgas] . . . .” Judge Smith finds for the plaintiffs holding that the clause covers the CERCLA costs even those CERCLA was not contemplated at the time of the contracts. Judge Smith also rejects the government's argument that the Anti-Deficiency Act precludes liability,

ENRON FEDERAL SOLUTIONS, INC., et al. v. THE UNITED STATES, COFC No. 05-1000 C, February 07, 2008. A privatization contract with the United States Army to own, operate and maintain the power, water and waste systems at Fort Hamilton. Plaintiff stopped performance on the contract, declared bankruptcy and was terminated for default. Plaintiff now seeks compensation for the capital improvements that it made to the energy, water and waste utility systems at Fort Hamilton before it defaulted on the Contract. Judge Block denies the claims finding that plaintiff had materially breached the contract. Citing the real estate maxim of “location, location, location”, Judge Block notes “Here the golden rule must be context, context, context. Looking at the plain meaning of this Contract, the Contract read as a whole, and the Contract interpreted in context, the Court sees a privatization contract, whereby EFSI was to provide the utility upgrades and maintenance and certain utility service to the Army for a period of ten years at a fixed price.” The court also dismisses for lack of jurisdiction plaintiff's quantum Meruit/Unjust Enrichment claims. Good discussion of privatization issues and common law material breach.

MANHATTAN CONSTRUCTION COMPANY v. THE UNITED STATES, January 31, 2008. Department of Agriculture construction contract. Plaintiff files claims on behalf of its sub requesting equitable adjustments for work which it claims were outside of the contract requirements. Judge Hodges dismisses the action finding that the contract was clear for two of the alleged changes and that the other claim involved a patent ambiguity “leaving plaintiff the duty to inquire about the ambiguity, which it did not do.”

CHEVRON U.S.A., INC. v. THE UNITED STATES, COFC No. 04-1365C, January 1, 2008. A complicated contract case concerning the operation and production of the Elk Hills Naval Petroleum Reserve. At issue here are discovery matters and the government's claim of privilege. Judge Braden begins the opinion with the observation - “Zealous advocacy is one matter; abusive litigation tactics are quite another.” Good discussion of Attorney Client Privilege, Deliberative Process Privilege and Work Product Privilege.

BILL HUBBARD, individually and doing business as BILL HUBBARD & ASSOCIATES v. THE UNITED STATES, COFC No. 95-396C, January 28, 2008. EAJA fees case. On remand from the Federal Circuit, Hubbard v. United States, 480 F.3d 1327 (Fed. Cir. 2007). Judge Smith awards fees plaintiff incurred arguing that the government had acted in bad faith. Although plaintiff had been awarded very little in damages, Judge Smith noted “It is the purpose of the EAJA to encourage people to bring in good faith claims against the government where the government acts in a manner that is contrary to the high and noble standard to be expected from a great Nation. As it is the policy of the EAJA that attorney's fees are not limited to the dollars awarded, the Court hereby finds that the amount of $68,797.31 in reasonable attorneys fees need not be reduced further and that the amount is not excessive ... ”

BILTMORE FOREST BROADCASTING FM, INC. v. THE UNITED STATES, COFC No. 07-316 C, January 25, 2008. Plaintiff asserts breach of an implied-in-fact contract with the Federal Communications Commission (FCC) for an auction to obtain a FM broadcast license in Biltmore Forest, North Carolina. Plaintiff had earlier, and unsuccessfully, challenged the FCC action in the DC Circuit. Following Folden v. United States, 379 F.3d 1344 (Fed. Cir. 2004), Judge Merow grants the government's motion to dismiss finding that exclusive jurisdiction lies in the D. C. Circuit Court of Appeals. Alternatively, even if the court had jurisdiction, Judge Merow finds that “as a matter of law, plaintiff's claims are barred by res judicata, collateral estoppel and issue preclusion.” Good discussion of Issue preclusion and collateral estoppel.

STEVENS VAN LINES, INC., et al. v. THE UNITED STATES, COFC No. 05-1278, January 23, 2008. Contracts for the transportation of household and other goods for military service members and their families. Plaintiffs claim that the government, per various correspondences, is obligated to reimburse fees Plaintiffs paid to have a series of their shipping contracts processed electronically. Judge Smith denies the government's motion to dismiss based on the argument that the government employees were without authority to bind the government contractually. Based on their duties, Judge Smith finds that the government employees had implied actual authority to bind the government. Finding also that there was mutuality of intent between the parties to enter a contract the court grants plaintiffs' motion for summary judgment.

INTERNATIONAL MANAGEMENT SERVICES, INC. v. THE UNITED STATES and AEGIS, MISSION ESSENTIAL PERSONNEL LLC, Defendant-Intervenor, COFC No. 07-831C, January 09, 2008. Post-award bid protest, Army contract, small business set aside. Plaintiff was the original awardee, but was declared to be other than small after a size protest. After a series of size protests award was made to intervenor. Plaintiff challenges the award alleging that the Army and SBA failed to consider certain factors relating to the size determination of awardee and that award was improper as the awardee is not small. Judge Sweeney grants the government's motion to dismiss holding plaintiff as other than small lacks standing to challenge the award. The court also notes that any challenge to the solicitation itself is not timely following Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007).

METRIC CONSTRUCTION CO., INC. v. THE UNITED STATES, COFC No. 04-954C, January 07. 2008. Corps of Engineers construction contract, defective specifications and misrepresentation claims. Judge Bush finds for plaintiff on the constructive change defective specification claim. Finding that government's specification for the roof joists was defective and that plaintiff properly relied to its detriment on misrepresentations of the government, she also rejects the argument by the government that had plaintiff chosen another roof design the leaks may have been avoided.

EZENIA!, INC. v. THE UNITED STATES and CARAHSOFT TECHNOLOGY CORPORATION, Intervenor, COFC No. 07-759C, January 04, 2008. Bid protest, Army FSS buy. The Army had properly standardized on the use of Adobe Breeze software. Plaintiff states that it is challenging the sole source award of contracts for Adobe Breeze software, but does not specify any particular solicitation or award. Although plaintiff states it is not challenging the standardization decision, Judge Smith disagrees finding that is exactly what plaintiff is challenging. Judge Smith dismisses the case finding that the standardization decision is not a procurement and that plaintiff is not an interested party.

THOMAS D. AFFOURTIT v. THE UNITED STATES, COFC No. 06-91C, January 02, 2008. Plaintiff, the President and sole shareholder of Interaction Research Institute, Inc. (IRI), filed a pro se Complaint in the United States Court of Federal Claims alleging breach of contract by DLA in a contract held by IRI. Upon reconsideration, Judge Braden decides that the court had improvidently granted Plaintiff's request to proceed pro se. Judge Braden notes that in Talasila, Inc. v. United States, 240 F.3d 1064 (Fed. Cir. 2001), the Federal Circuit held that RCFC 83.1(c)(8): “is clear and unqualified, and the plain language of the rule does not contemplate exceptions.” Finding that plaintiff could not represent IRI, there was no contract before the court and the matters is dismissed for lack of jurisdiction.

PRECISION IMAGES, LLC v. THE UNITED STATES and GE INSPECTION TECHNOLOGIES, LP, Defendant-Intervenor, COFC No. 07-712C, December 20, 2007. Post-award bid protest, Air Force best-value requirements contract for ultrasonic flaw detectors. Plaintiff argues that award to a higher price offeror was improper as the Air Force wrongfully evaluated its past performance as “Little Confidence”. Because the Air Force found that plaintiff's past performance was not relevant, plaintiff argues that it should have received an “Unknown Confidence” rating instead. Although Judge Sweeney does find that FAR 15.305(a)(2)(iv) was violated and that plaintiff should have received the “Unknown Confidence” rating, she finds that plaintiff has not proven that the error was prejudicial and therefore finds for the government on the administrative record. Good discussion of standing issues for interested party status and as opposed to errors causing prejudice.

KNOWLEDGE CONNECTIONS, INC. v. THE UNITED STATES and CATAPULT TECHNOLOGY, LTD., Intervenor, COFC No. 06-786C, December 19, 2007. Post-award bid protest, challenging a procurement structured by GSA as a Veterans Technology Services Government-Wide Acquisition Contract (“VETS GWAC”) under an executive agent designation from OMB. On remand from a redetermination by GSA, Judge Lettow grants the government's motion for judgment on the administrative record. The court's synopsis includes the following: “Overall, the amplified record generated by the remand shows that GSA had a reasoned basis in experience with other GWACS for its method of structuring CPP2 in this solicitation. GSA's rationale for focusing on broad experience for CPP2 in the VETS GWAC reflects its general preference as a matter of policy that GWACs should address broad requirements, in contrast to IT 70 Multiple Award Schedules which can be more specific and targeted to particular services. Recognizing that this general policy preference runs counter to OMB's strategy for avoiding contract bundling, which can operate to the detriment of small businesses, including SDVOSBs, GSA endeavored to ameliorate these potential harms by encouraging the use by SDVOSBs of business teams and joint ventures, even ventures with large businesses. The decision by GSA in the face of these competing policy considerations belongs to the agency, not the court. ‘Th[e] court is acutely aware that it may not [substitute] its judgment for that of the agency.'”(citations omitted)

THE CENTECH GROUP, INC. v. THE UNITED STATES and TYBRIN, INC., Intervenor, COFC No. 07-513C, December 13, 2007. (See earlier COFC decision.) Pre-award bid protest, Air Force contract for services over the issue of whether the Limitation of Services(LOS) Clause requiring performance of 50% of the work by the prime small business was properly an evaluation factor for award. Plaintiff challenges the corrective action taken by the Air Force in rescinding its contract and reopening discussions based on a earlier protest to the GAO by intervenor, Tybrin. See earlier GAO decision denying a request of reconsideration of the Tybrin protest by the SBA. Judge Williams finds for the government on the issue, but remands to the Air Force to determine if plaintiff is entitled to wasted B&P costs due to its reliance on erroneous Air Force information. In response to plaintiff's argument that “it deserves its original award because it could and would actually meet the LOS clause post-award”, Judge Williams notes, in what appears to be dicta, that “The original solicitation, evaluation and award were premised on legal error -- that a small business could meet the LOS clause collectively with its subcontractors. As such, that original award is illegal, void ab initio and a nullity, and cannot be reinstated by the Court.”

PACIFIC GAS & ELECTRIC COMPANY v. THE UNITED STATES, COFC No. 04-75C, December 12, 2007. SNF case, protective order violation. A protective order relating to documents for which the government maintained a deliberative process privilege limited “the disclosure and/or use of all documents mentioned in this Order to the attorneys for the plaintiffs in this litigation only.” Plaintiff's counsel, in another SNF case, included the documents in a motion filed under seal. Judge Hewitt grants the government's motion to enforce the protective order finding that both the filing of the documents and use of them in briefing was a prohibited use of the documents. Judge Hewitt concluded by stating that she will accept briefing on the subject of sanctions or remedies.

BENCHMADE KNIFE COMPANY, INC. v. THE UNITED STATES and GERBER LEGENDARY BLADES DIVISION, Defendant-Intervenor, ,COFC No. 07-593C, December 10, 2007. Post-award bid protest, DLA contracts for fixed blade and switchblade knives. In a suit filed after award, plaintiff argues, in part, that the procurements should have been set aside for small businesses and that the procurements were improperly bundled. Following BLUE & GOLD, FLEET, L.P. v. UNITED STATES, and HORNBLOWER YACHTS, INC., CAFC No. 2006-5064, June 26, 2007, Judge Wheeler dismisses the arguments as untimely. Judge Wheeler also finds that DLA's decision to accept Gerber's alternate proposal was rationally based.

MASAI TECHNOLOGIES CORP. v. THE UNITED STATES, COFC No. 07-714 C, November 29, 2007. Post-award bid protest, Army Medical Research Acquisition Activity contract. After three protests to the GAO and this suit, Judge George Miller grants the government's motion for judgment on the administrative record. The court finds that the Army acted properly in declining to evaluate and accept the late proposal modification seeking to substitute personnel and properly evaluated the price proposal. “Finally, the contracting officer thoroughly and objectively investigated MTC's assertions with respect to OCIs, and reasonably concluded that no actual or potential OCIs existed.”

WILLIAM HOOKER d/b/a GEORGIA BOWHUNTERS SUPPLY v. THE UNITED STATES, COFC No. 03-1501C, November 28, 2007. Department of Energy contract to trap wild hogs and beavers on the Savannah River Site. In a not too frequent occurrence, Judge Hodges grants the government's motion for for judgment on partial findings pursuant to Rule 52(c). Judge Hodges notes that judgment pursuant to Rule 52)c) was appropriate as “it appears that plaintiff intended to develop his case through cross examination of defendant's witnesses. Mr. Hooker's own case established no credible or coherent causes of action and no damages.”

L-3 COMMUNICATIONS INTEGRATED SYSTEMS, L.P. v, THE UNITED STATES, and LOCKHEED MARTIN AERONAUTICS COMPANY, Intervenor, COFC No. 06-396C, November 26, 2007. Post-award bid protest, of two Air Force contracts to modernize C-5 Galaxy aircraft. Plaintiff seeks bid preparation and proposal costs alleging that the actions of Darleen Druyun including her “unauthorized assumption of the SSA duties and her change of evaluation ratings to justify the selection of Lockheed Martin's higher cost proposal, the Air Force improperly compromised the integrity of the procurement process, breached its implied contract to treat proposals fairly, honestly, and in good faith, and violated a panoply of procurement statutes and regulation.” Plaintiff also alleges that “Druyun was biased in favor of Lockheed Martin and acted in bad faith in the C-5 AMP procurement.” The government and intervenor argue that the action is barred by the six year statute of limitation in 28 USC 2501. Judge Williams rejects this argument holding that the claim did not accrue until Druyen's actions were disclosed in a IG report in February 2006.
   Regarding the argument of intervenor Lockheed that plaintiff failed to state a claim “Lockheed Martin contends that Plaintiff failed to allege any facts that would overcome the presumption of good faith applied to the actions of government officials by the Federal Circuit”, Judge William notes “Although under Am-Pro L-3 will be required to muster ‘clear and convincing' evidence to overcome the presumption that Druyun acted in good faith, this heavy burden does not warrant dismissal of the complaint at this juncture. The likelihood of Plaintiff overcoming the presumption is not the issue before the Court in the context of the pending motion.”

EMERALD COAST FINEST PRODUCE CO. INC., Plaintiff, v. THE UNITED STATES, and MILITARY PRODUCE GROUP, LLC, Defendant-Intervenor, COFC No. 06-742C, November 26, 2007. Post-award bid protest DOD contract. (See early and earlier decisions.) Plaintiff seeks bid proposal cost and attorney fees. Subsequent to the earlier actions, plaintiff sold its business to a third party retaining, as relevant here, only “accounts receivable.” Judge Hewitt finds that “plaintiff's bid protest against defendant and defendant-intervenor is not an account receivable that was excluded from Emerald Coast's sale of assets ...“ Noting that Plaintiff “relinquished its rights to this lawsuit when it sold its assets” the case is dismissed.

ARBITRAJE CASA DE CAMBIO, S.A. DE CV., et al. v. THE UNITED STATES, COFC No. 05-217C, November 19, 2007. An interesting little case between Exchange Houses in Mexico and the United States Postal Service (USPS) concerning U.S. money-order fraud in Mexico. Plaintiffs allege a contractual relationship with the USPS and claim breach damages. The government moves to dismiss arguing that the CDA applies and plaintiffs did not submit a claim to the CO. Judge Smith rejects that argument holding that the CDA does not apply as the agreement was not “for the direct benefit or use of the Federal Government.” as the role of the role of the Exchange Houses as it relates to the Government was indirect. The court also finds that the issuing of money orders is not a sovereign act and “is unpersuaded that USPS issuance of money orders differs in any significant way from the issuance of money orders by private commercial businesses such as Western Union, Wells Fargo, or American Express.” Judge Smith leaves for further proceedings the question of whether a person with contractual authority authorized or ratified the agreement. [May be more than you wanted to know about USPS money orders-jaw]11/27/07 4:43 PM

FOREST CITY MILITARY COMMUNITIES, LLC, Plaintiff, v. THE UNITED STATES, and GMH/CENTEX MILITARY COMMUNITIES, COFC No. 07-546 C, November 19, 2007. Post-award bid protest, Phase I of an Army contract for privatization of military family housing at West Point. Plaintiff challenges the evaluation of its proposal by the Army and the weight of past performance in awardees evaluation. Judge Hewitt grants the government's motion for judgment on the administrative record finding that the Army's evaluation was reasonable and not arbitrary or capricious. Judge Hewitt also discusses COFC Rule 52.1 Administrative Records, noting that the Rules committee explained that “the new rule omits any reference to summary judgment or to the standards applicable to summary judgment.”

GRIFFIN BROADBAND COMMUNICATIONS, INC.; TOTAL TV OF FORT IRWIN, LLC v. THE UNITED STATES, COFC No. 06-898C, November 19, 2007. Plaintiff was the holder of a franchise agreement from the Army to provide cable television services to the Army installation at Fort Irwin, California. The suit consists of several counts all alleging that the Army's actions or inactions relating to the contract with plaintiffs or to plaintiffs' cable equipment located at Fort Irwin constitute a takings without just compensation under the Fifth Amendment. Judge Christine O.C. Miller dismisses the case for failure to state a claim. She notes that “The Government's alleged failure to fulfill its contract obligations would constitute a breach of contract, but is not itself a taking of property compensable under the Fifth Amendment.” 11/21/07 5:32 PM

DELMARVA POWER & LIGHT CO., and ATLANTIC CITY ELECTRIC CO. v. THE UNITED STATES, and PSEG NUCLEAR, LLC, and PUBLIC SERVICE ELECTRIC AND GAS CO., Limited purpose Intervenor-Defendants, COFC Nos. 04-34C & -36C, November 13, 2007. Spent Nuclear Fuels case. After first determining that lack of a federal party prevented the court from assuming jurisdiction over the arbitration disputes between the private parties, the court granted the government's motion to dismiss finding that “Because plaintiffs assigned all of their claims against the Government pertaining to disposal of the SNF to PSEG and PECO, the court must grant defendant's motion for summary judgment.”

JOHN C. FRAZIER, III, et al., v. THE UNITED STATES, COFC No., 07-636C, November 07,2007. Pre-award bid protest, Bureau of Reclamation Concession Contracts. Plaintiffs, holding four of the current contracts, challenge the prospectus for new concession contracts at Lake Berryessa, Napa County, California. After considering a 40,000 page administrative record, Judge Bush decides for the government. Judge Bush although “not unmindful of the need to distinguish contract claims from bid protest claims”, examines “the merits of such mixed claims” and finds that the actions of the government were not arbitrary of capricious and not in contravention of law.

WESTECH INTERNATIONAL, INC. v, THE UNITED STATES, COFC No. 07-186C, November 06,2007. Post-award bid protest, Department of Energy, National Nuclear Security Administration contract for security system services. Plaintiff challenges multiple aspects of its evaluation including cost evaluation elements. In a 43 page opinion, Judge Sweeney grants the government's motion for judgment on the administrative record. Judge Sweeney finds that the evaluation was rationally based.

WEEKS MARINE, INC., v. THE UNITED STATES, COFC No. 07-700C, November 06, 2007. Pre-award bid protest, Corps of Engineers dredging contracts. Protestor challenges the decision by the Corps to move to a IDIQ multiple award, best value procurement procedure rather than its past sealed-bid procurements. Judge Wheeler upholds the protest and permanently enjoins the Corps. He notes “Without any analysis of the applicable statutes and regulations, and without citing any significant reasons or developments, the Court must hold that [the Corps] would violate 10 U.S.C. § 2304(a), FAR ¶ 6.401(a), FAR ¶ 14.103-1(a), and FAR ¶ 36.103(a) by employing IDIQ task order contracting methods.” Judge Wheeler also “finds that when a party brings a protest challenging the terms of a solicitation, it need not satisfy the ‘substantial chance' test. Rather the protester need only identify a non-trivial competitive injury capable of being redressed by judicial relief. In this case, the solicitation prevents Weeks from competing for $1,392,000,000 in task order awards over the next five years through sealed bidding.”

INDUSTRIAL DOOR CONTRACTORS, INC., Plaintiff, v. THE UNITED STATES OF AMERICA, COFC No. 01-411C, November 02, 2007. On remand from a non-precedential opinion of the CAFC. Plaintiff seeks lost profits from its failure to receive a subcontract as the result of the government's breach of a settlement agreement during a bid protest to the GAO. The court finds for the government finding that the breach by the government was not the proximate cause of the failure to receive the subcontract because its failure to meet other requirements it still would not have received the subcontract.

>THE RAVENS GROUP, INC., v. THE UNITED STATES OF AMERICA, and ROWE CONTRACTING SERVICES, INC., Intervenor, COFC No. 07-243C, October 31, 2007. Intervenor Rowe requests Rule 11 sanctions against plaintiff Ravens for various infractions Judge Baskir denies the motion finding that “the pleadings filed by the Plaintiff rest on tenuous legal and factual grounds at best but were not filed for an improper purpose and do not warrant Rule 11 sanctions.” He concludes “We decline to impose sanctions on Ravens or its attorney. In doing so, we do not express our approval of Ravens' performance in this Court. To the contrary, we note our frustration with Ravens' inability to present its arguments logically. In the future, this Page 22 of 22 Court will not tolerate the presentation of claims by Ravens or its attorney that are clearly outside the Court's jurisdiction or which lack a firm factual or legal basis.” Good discussion of Rule 11 sanctions issues.

AEOLUS SYSTEMS, LLC, v. THE UNITED STATES, an GLOBAL SOLUTIONS NETWORK, INC., intervenor COFC No. 07-81C, October 31, 2007. Pre-award bid protest, Army HUBZone set-aside procurement. Plaintiff challenges a SBA decision that a non-owner person who had agreed to deferred compensation was not an employee for HUBZone purposes. Judge Bush rejects plaintiff's challenges finding that the decision of SBA was not arbitrary and was entitled to substantial deference. Judge Bush also rejects the argument that the “SBA erred when it chose to address the problem presented by this protest through adjudication rather than formal rulemaking.”

MORSE DIESEL INTERNATIONAL, INC., d/b/a AMEC CONSTRUCTION MANAGEMENT, INC. v. THE UNITED STATES, COFC No. 99-279C, October 31, 2007. Civil penalties under the Anti-Kickback Act and the False Claims Act. See earlier 2005 and 2007 decisions in this case. Judge Braden determines “that the circumstances of this case warrant maximum civil penalties and damages under the Anti-Kickback Act of 1986, 41 U.S.C. §§ 51-58 (“Anti-Kickback Act”) and maximum civil penalties and treble damages under the False Claims Act, 31 U.S.C. § 3729(a)(1), (a)(2) (“False Claims Act”) in the total amount of $7,292,213.”

NELSON CONSTRUCTION COMPANY, and DONALD J. NELSON v. THE UNITED STATES, COFC No. 05-1205C, October 29, 2007. Plaintiff Nelson Construction was a subcontractor on a FHA road construction project and both plaintiffs were indemnitors to the performance and payment bond surety, Travelers. The prime and Travelers entered into an assignment agreement where all future payments would be made to Travelers. The government acknowledged receipt of the assignment and made six consecutive payments to Travelers, but then the prime and the government agreed to settle all claims pursuant to the Contract, and the government made a final payment to the prime, instead of Travelers, in the amount of $614,270.67. Plaintiffs argue that 1) “because the government failed to pay Travelers, plaintiffs maintain that, in their role as indemnitors to Travelers, they are equitably subrogated to Travelers rights to pursue a claim against the government for those funds”; 2) ”As indemnitors of the payment and performance bonds, plaintiffs contend that they were obligated to pay Travelers for payments Travelers made on the payment bond. Thus, plaintiffs maintain that the doctrine of equitable subrogation permits plaintiffs to step into the shoes of Travelers and bring an action seeking recovery against the United States in this court” and 3) “plaintiffs argue that as subcontractors, they are intended third-party beneficiaries of ‘the agreement between the prime contractor and the Government to modify the remittance terms of the prime contract; and/or . . . the Assignment Agreement assented to by the Government.'” Judge Sweeney grants the motions of the government to dismiss the first two counts finding that indemnitors have no privity with the government and “because the doctrine of equitable subrogation in the Court of Federal Claims generally has allowed only a surety to succeed to the rights of the original contractor against the government, plaintiffs must instead rely upon establishing privity of contract with the government.”

GEO-SEIS HELICOPTERS, INC., v. UNITED STATES, and PRESIDENTIAL AIRWAYS, INC., COFC No. 07-155C, October 31, 2007. EAJA fees, post-award bid protest. See earlier “late is late” decision by Judge Lettow. The court rejects the government's argument that its position was substantially justified and awards EAJA fees. Judge Lettow notes “The actions of the Sealift Commands Contracting Officer contravened the FAR, and the GAO precedents could not excuse that deviation from legal requirements. In short, ‘there is no justification for the government's position when clear, unambiguous regulations directly contradict that position.'”

MANSON CONSTRUCTION CO. v. THE UNITED STATES, and GREAT LAKES DREDGE & DOCK CO., LLC, COFC No. 07-694C, October 19, 2007. Post-award bid protest, Corps of Engineers dredging contract. Judge Christine Miller finds for the government on the administrative record. She rejects the argument that the evaluation was fundamentally flawed because the Corps failed to follow its evaluation plan and the composition of the TEC. Judge Miller notes that the plan was an internal document that did not confer rights on potential offerors.

HWA, INC., v. THE UNITED STATES, and WACKENHUT SERVICES, INC., COFC No. 07-615C, October 16, 2007. Post-award, Federal Protective Service contract to provide armed and unarmed guard services for Federal buildings in the New York region. Judge George Miller finds for the government on the administrative record. Even though “the evidence establishes that FPS irrationally evaluated the personnel qualifications subfactor in HWAs proposal, but this error was not prejudicial, because, even in the absence of the error.”

SYSTEM FUELS, INC. and ENTERGY ARKANSAS, INC. v. THE UNITED STATES, COFC No. 03-2623C, October 16, 2007. Spent nuclear fuels case. Judge Lettow awards most of the claimed damages for the breach by the government, some $49 million. However, Judge Lettow does disallow the cost of capital noting “ Failing to have established that its claimed financing costs are directly related to required borrowing through specific debt instruments, System Fuels cannot recover its costs of capital.” (But see the Systems Fuels case below where Judge Braden allows the cost of borrowed funds.) Good discussion of mitigation damages and the post-adoption actions of parties to a contract as useful in guiding contract interpretation. Judge Lettow also denies the two government's claims based on the future costs of handling SNF and recoupment of the one-time fee.

MCKING CONSULTING CORPORATION v. THE UNITED STATES, COFC No. 07-17C, October 12, 2007. Pre-award bid protest, DHHS procurement. Plaintiff challenges the decision to continue the procurement as a small business set-aside.(Plaintiff was the incumbent, but is no longer small.) In a somewhat unusual twist, plaintiff also alleges a Procurement Integrity Act(PIA) violation in the disclosure of what it terms proprietary information of a list of its subcontractors. Although finding that the alleged PIA violation served as a basis for plaintiff's standing, Judge Block grants the government's motion for judgment on the administrative record. He notes that the government reasonably concluded that offers would be received from at least two small firms and that list of subcontractors was not proprietary.

SYSTEM FUELS, INC., on its own behalf and as an agent for SYSTEM ENERGY RESOURCES, INC. and SOUTH MISSISSIPPI ELECTRIC POWER ASSOCIATION, v. THE UNITED STATES, COFC No. 03-2624C, October 11, 2007. Spent nuclear fuels case. Judge Braden awards most of the claimed damages for the breach by the government, some $10 million. She also finds that plaintiff is entitled to the cost of borrowed funds. She rejects the argument by the government that 28 USC 2516(a), the “no interest rule.” bars such recovery and holds that “Since DOE's partial breach was a substantial factor in Plaintiffs’ need to borrow funds to plan, design, and construct the dry fuel storage project at Grand Gulf, the court has determined that Plaintiffs are entitled to recover those costs, if they can be determined with reasonable certainty.”

CWT/ALEXANDER TRAVEL, LTD, and CWT/EL SOL TRAVEL, INC, v. THE UNITED STATES, October 02, 2007. Bid protest, Army contract for travel management services. Plaintiffs argue that the modifications and two year delay in the start of the contracts constitute cardinal changes which require a new competition. Judge Firestone grants the government's motion on the administrative record. Following CESC Plaza Ltd. P'ship v. United States, 52 Fed. Cl. 91 (2002, she finds that the plaintiffs “cannot demonstrate that the delays in commencement of the contracts or the possible price increases are materially outside the scope of the contracts and were not foreseeable to the offerors.”

AXIOM RESOURCE MANAGEMENT, INC. v. THE UNITED STATES, COFC No. 07-532C, September 28, 2007. Bid protest, Army procurement for program management support services for the TRICARE Acquisitions Directorate. Plaintiff argues that the government's “analysis of the OCI . . . is wholly inadequate as it is solely based on [Lockheed Martin]'s self-serving and totally unauditable mitigation plan . . . [and] . . . the contracting officer's determination on this point is totally based on the TMA analysis and cannot be believed.” Judge Braden conducts an extensive discussion of the OCI issues and portends that these issues “will be among the most important decisions that the United States Court of Federal Claims and the United States Court of Appeals for the Federal Circuit will make in the next few years not only for government contract jurisprudence, but to maintain competition in this growing segment of the economy.” Judge Braden determines “that the CO abused his discretion in violation of FAR § 9.5 by awarding the Task Order to Lockheed Martin, without developing a mitigation plan that does not afford Lockheed Martin any significant competitive advantages, is enforceable, i.e., subject to court order, and otherwise does not impose any anticompetitive effects on future competition. ” However, before deciding what, if any, injunctive relief is warranted she requests the “views of the FTC Bureau of Competition as amicus curiae on or before December 15, 2007 to advise the court: (1) whether Lockheed Martin should be required to divest existing Category 3 contracts, if the current Category 2 award stands; (2) whether current ‘TMA Policy' and Lockheed Martin's voluntary mitigation efforts are sufficient to ameliorate the conflicts of interest at issue; and (3) whether the non-disclosure agreements that Lockheed Martin has required Plaintiff's former employees to sign or other mitigation proposals may foreclose future competition for these services when the current Task Order expires in three years.”

THE CENTECH GROUP, INC. v. THE UNITED STATES and TYBRIN, INC., Intervenor, COFC No. 07-513C, September 27, 2007. Pre-award bid protest, Air Force procurement. Plaintiff was awarded a small business set-aside contract which was "suspended" as the result of a GAO protest decision regarding the Limitations on Subcontracting clause. See GAO decision and the request for reconsideration by the SBA. Plaintiff now protests the corrective action taken by the Air Force and requests the court to order the Air Force to reinstate its award. The government and intervenor move to dismiss on standing, justiciability and ripeness grounds. Judge Williams denies the motions finding that the plaintiff has standing, the action is justiciable, ripe and the corrective action by the Air Force is reviewable. Good discussion of the issues and the interplay of GAO decisions to the COFC.

IRONCLAD/EEI, A Joint Venture, Plaintiff, v. THE UNITED STATES, Defendant, CAMPBELL ROOFING & CONSTRUCTION, INC., MGC/CAMPBELL ROOFING & CONSTRUCTION, INC., CROWN ROOFING SERVICES, INC., and R.L. CAMPBELL ROOFING COMPANY, INC. Intervenor-defendants, v. THE UNITED STATES, COFC No. 07-280C, September 26, 2007. Post-award bid protest, Corps of Engineers contract. Plaintiff argues that it was wrongly not included in the competitive range and that the government erred by not providing plaintiff with an amendment issued after the competitive range determination. Judge Bush dismisses four counts of plaintiff's complaint finding that plaintiff had waived these items by failing to address them in both its motion for judgment on the administrative record and its response to the defendants' cross-motions. Judge Bush finds that plaintiff has no standing to challenge the awards and dismisses the case. Even assuming that the government should have acted differently, Judge Bush finds that plaintiff was not prejudiced.

NORTHERN STATES POWER CO. v. THE UNITED STATES, COFC No. 98-484C, September 26, 2007. Spent nuclear fuels damages case. Judge Wiese awards $116,485,000 in mitigation damages. Judge Wiese excludes however, some $54,000,000 in cost of capital damages as interest barred by 28 USC 2516.

TMI MANAGEMENT SYSTEMS, INC. v. THE UNITED STATES, COFC No. 07-407C, September 25, 2007. GSA contract. GSA informed plaintiff that the option to extend the contract would not be exercised. “Plaintiff argues that GSA failed to consider required factors in determining whether to exercise the option and, therefore, by failing to consider the factors, GSA breached the contract.” Judge Smith rules for the government holding that “Non-exercise [of the option] is unrestricted.”

DATA MANAGEMENT SERVICES JOINT VENTURE, v. THE UNITED STATES, and ALON, INC. Intervenor, COFC No. 07-597C, September 24, 2007. Post-award bid protest, National Archives and Records Administration RFQ for a schedule task order. Recognizing the broad discretion afforded a CO, Judge Bruggink finds for the government on the administrative record. Judge Bruggink also clarifies in a footnote that the COFC does have jurisdiction of a task order protest of a GSA schedule contract. Also some good discussion of the evaluation oral presentations

PRECISION PINE & TIMBER, INC. v. THE UNITED STATES, COFC No. 98-7820C, September 14, 2007. Forest Service timber sale contracts. The latest (perhaps last?) in this series of cases. See earlier COFC case. In a lengthy decision Judge George Miller discusses expectancy damages, consequential damages, lost volume seller, and cover damages. While finding for plaintiff on some of its damages claims, Judge Miller holds “that plaintiff's modified lost volume seller theory depends upon proving lost profits from collateral contracts that are as a matter of law not remediable in damages. Permitting plaintiff to use these unrecoverable damages to reduce the amount of the deduction required to be made in the lost profits calculus to account for the profits earned on the breached contracts would be the functional equivalent of affirmatively awarding damages for the lost profits on the future additional contracts.”

GENERAL MOTORS CORPORATION v. THE UNITED STATES, COFC No. 00-40C, September 14, 2007. CAS case addressing segment closing cost of a pension plan with respect to cross-motions for partial summary judgment related to the actuarial assumptions to be used to calculate a segment-closing adjustment to pension costs under Cost Accounting Standard 413. Judge Firestone grants summary judgment for the government finding that “that the plain language of CAS 413.50(c)(12), the related definitions in CAS 413, the Preamble to CAS 413, as well as a review of revised CAS 413, require that the contractor use the actuarial assumptions (i.e., the interest rate and mortality assumptions developed under CAS 412.40(b)(2)) to calculate the actuarial liability of a segment's pension plan when the pension plan has not been terminated.” Good discussion of CAS issues relating to segment closings.

ERINYS IRAQ LTD. v. THE UNITED STATES, and AEGIS DEFENCE SERVICES LTD., Intervenor-Defendant, COFC No. 07-562C, September 14, 2007. Pre-award bid protest, Contracting Command-Iraq/Afghanistan. Plaintiff protests its exclusion from the competitive range alleging “the agency engaged in irrational price evaluation; the agency engaged in unequal discussions with offerors; the agency engaged in irrational evaluation of the non-price evaluation factors; and the agency engaged in unequal treatment of plaintiff.” Judge Christine Miller, relying on the administrative record, finds for the government on all issues and denies the request for an injunction. Good discussion of evaluation of price reasonableness and price realism.

ARKO EXECUTIVE SERVICES, INC. v. THE UNITED STATES, COFC Nos. 05-1193C, 06-0296C, September 12, 2007. Cross-motions for summary judgment;Contract Disputes Act; Extension of contract  whether extension should be viewed as having been made under FAR § 52.217-8 (option to extend service) or FAR § 52.237-3 (continuity of service); FAR § 52.217-9(c)  total duration clause involving options not a limit on the use of other FAR extension provisions; Storage Technology followed.

CHE CONSULTING, INC. v. THE UNITED STATES and STORAGE TECHNOLOGY CORPORATION, Intervenor, COFC No. 07-55C, September 12, 2007. Pre-award GSA/Navy procurement. Plaintiff challenges the combination of hardware and software maintenance for robotic tape library systems used by the Naval Oceanographic Office arguing that the combination violated the full and open competition requirements of CICA. After requesting that the government more fully explain its position, Judge Wheeler allowed supplementation of the administrative record. Judge Wheeler finds the government's position reasonable and enters judgment on the Administrative Record for Defendant and Defendant-Intervenor.

R&D DYNAMICS CORPORATION v. THE UNITED STATES, COFC No. 07-90, September 12, 2007. Army SBIR Phase II award. Plaintiff styles its action as a post-award bid protest and “argued that the SBIR program qualifies as a competitive procurement solicitation because it involves the ‘acquisition of research and development.'” Plaintiff alleges that the Army's ranking of its proposal is not supported by the record. Judge Hewitt discusses the background of the SBIR program, statutory provisions and caselaw and concludes that “plaintiff's claim is not a bid protest because the court finds that plaintiff's claim does not arise ‘in connection with a procurement or proposed procurement.' 28 U.S.C. § 1491(b)(1).”

UNITED STATES FIRE INSURANCE COMPANY v. THE UNITED STATES, COFC No. 03-2811C, September 12, 2007. Air Force construction contract. Plaintiff was the surety which completed the contract after the contractor(Tri-Gems) was terminated for default. Plaintiff argues that the “Air Force depleted available contract funds by improperly making payments to Tri-Gems for improperly performed work and by making payments before work was completed, in violation of contract requirements.” (See the courts earlier opinion which upheld plaintiff's right to equitable subrogation.) After first reaffirming plaintiff's right to equitable subrogation, Judge Horn finds for the government summarizing “Because the court finds that U.S. Fire did not put the Air Force on notice to withhold progress payments from Tri-Gems; that the government did not deviate from the permissive, not mandatory progress payment terms of the contract; and that the contracting officers did not abuse their discretion in making progress payments to Tri- Gems, based on project percentage completion and also on project completion needs, but exercised practical, common sense, reasonable discretion, U.S. Fires equitable subrogation claim must fail.”

CADDELL CONSTRUCTION CO., INC. v. THE UNITED STATES, COFC No. 04-461C, September 07, 2007. VA construction contract. Plaintiff claims damages resulting from defective specifications in a design specification contract. The government argues that the contract contained performance specifications not design specifications. Judge Futey discusses the difference between design and performance specifications and agrees with plaintiff that the specifications at issue were design specifications. However, the court does not find that the specifications were defective, rejecting the argument by plaintiff that the large number of RFIs generated indicted a defective specification. Judge Futey noted that many of problems relating to the RFIs were caused by plaintiff's delay in providing the RFIs to the government. Judgment is for the government.

PDR Inc. v. THE UNITED STATES, COFC No. 03-2047 C, August 30, 2007. Air Force CRADA case. Judge George Miller's introductory paragraph sets out the case “The Court concludes, for the reasons set forth below, that it lacks subject matter jurisdiction over the quantum meruit claim set forth in Count IV of plaintifffs amended complaint. The Court further concludes that, because plaintiff failed to exhaust its administrative remedies as mandated by United States Air Force Cooperative Research and Development Agreement No. 96-RL-07, as amended (CRADA), with regard to the breach of contract claims set forth in Counts I and III of plaintiff's amended complaint, the Court lacks subject matter jurisdiction over plaintiff's breach of contract claims. The Court also concludes that the second amendment to the CRADA constituted a settlement and release of plaintiff's Fifth Amendment taking claim set forth in Count II of the amended complaint. Therefore, the Court grants the Government's motion for summary judgment with respect to plaintiff's taking claim (Count II) and dismisses plaintiff's remaining claims (Counts I, III, and IV) for lack of subject matter jurisdiction.”

SUPERIOR HELICOPTER LLC and RANIER HELI-LIFT, INC. v. THE UNITED STATES, COFC No. 07-519C, August 30, 2007. Post-award bid protest, Forest Service contracts. Plaintiffs challenge the decision of the Forest Service to override the mandatory stay while protests are pending at the GAO. Judge Lettow dissolves the override of the automatic stay finding that the decision by the Forest Service was “arbitrary and not in accordance with law.”

LAURELWOOD HOMES LLC v. THE UNITED STATES, COFC No. 06-734C, August 29, 2007. Prompt Payment Act claim for interest of $149.26 on a claim for damages. The Navy CO had initially denied the claim, but subsequently reversed that decision and paid the damages caused by vandalism. Judge Damich grants the motion of the government to dismiss finding that because there was a dispute when the claim was filed only CDA, not PPA interest, is applicable.

NORTH HARTLAND, L.L.C. v. THE UNITED STATES, COFC No. 06-495C, August 27, 2007. In what seem to be a series of rather complicated transactions relating to the bankruptcy sale of a hydroelectric power plant where the United States Department of Agriculture Rural Utilities Services was the largest creditor, Judge Christine Miller dismissed the action for lack of privity and, therefore, jurisdiction. She notes “plaintiff sold its privity of contract with the Government to [a third party] and may not now assert it.”

BRIAN X. SCOTT, pro se, v. THE UNITED STATES, COFC No. 07-216C, August 23, 2007. Pre-award bid protest, Army solicitation. Solicitation is for an ID/IQ contract for operation of Reconstruction Operations Centers, personal security services to and from project worksites, guard force services for facilities and personnel, Reconstruction Liaison Teams, a Vetting Program for local hiring, and Anti-Terrorist Force Protection Services with a minimum of $3 million and a maximum of $475 million. Protester alleges that the solicitation is contrary to the Anti-Pinkerton Act, 5 U.S.C. §. 3108, and FAR 37.109. Judge Christine Odell Cook Miller dismissed the protest finding that protester lacks standing as he is not an interested party that would have a substantial chance of award. She notes that the “Solicitation involves a complex undertaking, requiring expertise in operation in a foreign locale thousands of miles distant from the United States; specific types of equipment and personnel; and an ability to finance much of the startup costs without the benefit of an advance payment, which was not authorized by the Solicitation. Plaintiff does not adduce any history of experience completing any of the required tasks in the Solicitation, nor does he show that he has the ability effectively to finance this endeavor. At present he is performing two contracts, which he values at $140,000.00 and $27,000.00, for domestic work that involves furnishing of PC technicians and site-improvement installments, including a shade structure and fence. .... These activities do not correspond with the Solicitation's requirements. Plaintiff possesses $50,000.00 in savings, as well as approximately $350,000 in equity available in his home and makes a vague assertion that Booz Allen Hamilton's office is willing to extend ‘unlimited' credit to him. ... Plaintiff has failed to substantiate this assertion with any documentation that a teaming partner relationship exists.“

NORTHROP GRUMMAN INFORMATION TECHNOLOGY, INC. v. THE UNITED STATES, COFC No. 05-595 C, August 14, 2007. Army contract. “Plaintiff alleges that the Government breached a warranty that software leased to be utilized in the Army's Battle Command System was ‘essential' and ‘integral' to the system.” Presumably such a warranty required the government to exercise the options, which it did not. Plaintiff argues that a Letter of Essential Need prepared other than a CO before award was incorporated into the contract by reference. Judge Damich grants summary judgment for the government finding “that the Contract does not, as a matter of law, incorporate the Letter of Essential Need by reference for two reasons. First, the Contract fails to clearly identify the Letter of Essential Need and leaves considerable doubt as to what ‘required information' it references. While the Letter may conceivably fit the contractual description, ‘information' could also be a reference to oral communication between the parties or to any number of documents that the parties may have exchanged prior to contracting. Moreover, the mere fact that the parties agreed that the ‘information' was provided ‘as inducement for Contractor entering into this Agreement,' does not satisfy the legal requirements for incorporating the terms of the Letter of Essential Need into the Contract.”

GRUNLEY WALSH INTERNATIONAL, LLC v. THE UNITED STATES and AMERICAN INTERNATIONAL CONTRACTORS (SPECIAL PROJECTS), INC., intervenor, COFC No. 07-492, Reissued for Publication August 3, 2007. Bid protest, Department of State(DOS) contract. Judge Futey grants judgment for plaintiff on the administrative record and orders DOS to reinstate plaintiff's and intervenor's pre-qualification in the subject procurement. Judge Futey concludes “Because the GAO failed to properly read the business volume requirement contained in [Title 22] section 4852(c)(2)(E), its recommendation to the DOS was not in accordance with the law and lacked a rational basis. Therefore, the DOS's reliance on the GAO's decision and withdrawal of plaintiff's and intervenor's pre-qualification for the FY 2007 NEC Program was arbitrary, capricious, and not in accordance with the law.” See earlier cited GAO decision.

SHIRLINGTON LIMOUSINE & TRANSPORTATION, INC. v. THE UNITED STATES, COFC No. 07-220C, August 09, 2007. Judge Braden denies plaintiff's request for partial reconsideration of her earlier decision in this case. In the earlier case Judge Braden noted “Because Plaintiff did not timely submit a proposal, Plaintiff is not an ‘actual offeror' and cannot establish ‘interested party' status. Accordingly, Plaintiff does not have standing to bring the claims alleged ..” Here, Judge Braden rejects plaintiff's argument that the decision would case manifest injustice noting “Requiring a litigant to be bound by the choice between GAO and the United States Court of Federal Claims, does not result in ‘obvious' or ‘manifest' injustice, but merely requires a plaintiff to weigh litigating options when selecting a forum. Similarly, submitting a bid under a ‘flawed solicitation' is not an ‘obvious' or ‘manifest' injustice, but an added expense that a plaintiff may choose to incur to ensure standing in multiple forums. In addition, a government contractor that initiates a protest at GAO challenging a ‘flawed solicitation' only needs to submit a bid if the contractor estimates a high likelihood of failure at GAO, in which case the contractor may have been better off filing with the United States Court of Federal Claims.”

PRAECOMM, INC. v. THE UNITED STATES, COFC No. 06-54C, August 09, 2007. Army fixed price contracts for radios, including installation and training in certain Iraq cities. Plaintiff alleges that its contracts with the Army were breached when the government decided not to install and use radio equipment delivered by Praecomm in accord with the contracts. Praecomm contends that it was misled as to the basis for the contracts and that the decision not to install the radios barred future opportunities that were part and parcel of the existing contracts. The court rejects the claims finding that at most the decision by the Army to not install the radios was a partial termination for convenience. Judge Lettow rejects the argument that the contract provided a basis for plaintiff to expect continued or follow-on business.

SSA MARINE, INC. v. THE UNITED STATES, COFC No. 05-490C, July 31, 2007. USAID contract to operate and manage the port of Umm Qasr following the 2003 invasion of Iraq by the United States and its coalition partners. Plaintiff argues that the contract is, as the court labels it, a cost-plus-fixed-fee plus profit contract(CPFF/PP) The government disagrees arguing that the contract is a CPFF contract. Although agreeing that there was troubling language in the contract Judge Damich agrees with the government that the contract is CPFF and limited therefore to a 10% limit on fee or profit. The opinion discusses the Fluor case which found the CPFF provision to be a nullity, but notes “In any event, the difference between a CPFF contract with no estimate, as in Fluor, and a CPFF contract with clearly a cost estimate (no matter how accurate), as in this case, is enough for this Court to conclude that Fluor may be distinguished from this case.”

BRICKWOOD CONTRACTORS, INC. v. THE UNITED STATES, COFC No. 06-695C, July 30, 2007. The government moved to dismiss arguing that the appeal was filed more than one year after receipt by FAX of a termination for default notice. The government offered a fax confirmation sheet as proof that the fax was received by plaintiff. Plaintiff denied receiving the fax. Judge Damich denies the government's motion following ASBCA decisions which hold that a fax confirmation sheet to be sufficient evidence of receipt only when there is additional corroborating evidence of receipt. Lacking such corroborating evidence here, the court finds that that the appeal was timely filed. (Certified mail receipt was on October 8, 2005 and the appeal filed at the court on October 10, 2006 with a Sunday and legal holiday not included in the time computation.)

GEO-SEIS HELICOPTERS, INC. v. THE UNITED STATES and PRESIDENTIAL AIRWAYS, INC., Intervening Defendant, COFC No. 07-155C, July 30, 2007. Post-award bid protest, Military Sealift Command contract for helicopter detachments to provide vertical replenishment. Plaintiff argues that awardee's proposals were submitted late and should not have been considered. On two occasions the government issued an amendment after the time of closing to extend the closing time to enhance competition. Judge Lettow rejects the nunc pro tunc amendments as contrary to the late rule of FAR § 52.215-1(c)(3)(ii)(A) as none of the three exceptions of the FAR provision apply. Judge Lettow reviews the regulatory history of the rule and concludes that the FAR council rejected giving the government the “best interest of the government” discretion to accept late proposals. Judge Lettow specifically notes that GAO decisions to the contrary will not be adopted by the court.
     The decision on the merits concludes as follows: “In the final analysis, the policy reasons for or against the ‘late is late' rule are matters within the purview of the FAR Councils, not this court. The FAR Councils specifically addressed and resolved those policy issues in the 1997 reconsideration of the FAR, and this court should not undercut that resolution by a contrary decision in this case. In short, the court will apply the FAR as written, not as the government and Presidential urge that it should have been written. The refusal of the Military Sealift Command's Contracting Officer to adhere to the categorical reality of the ‘late is late' rule renders arbitrary her decision to accept Presidential's first and second revised proposals.”
     Primarily because of the national defense issues, Judge Lettow limits injunctive relief to the exercise of options, but also awards bid and proposal costs.

ASSET 42302 LLC v. THE UNITED STATES, COFC No. 03-287C, July 30, 2007. Plaintiff sues for damages allegedly caused by the government's breach of a building lease. The United States Postal Service (USPS) leased a building for ten years ending August 31, 2001. USPS vacated the building in September 1999. On or about November 1, 2000, plaintiff received notice that USPS intended to terminate the lease effective November 30,2000. On December 4, 2000 the parties entered into a settlement agreement which stated, in part, “The parties have mutually agreed to terminate the lease ... effective November 30, 2000.” On December 26, 2000, USPS loaned a key to a principle of plaintiff so he could inspect the building. The inspection revealed extensive water damage from frozen pipes that had burst on or about December 20, 2000. Judge Braden grants the motion for summary judgment for the government. She rejects plaintiff's argument that the government was a holdover tenant noting that “the terms of Settlement Agreement I unambiguously evidence a mutual agreement to terminate the lease on November 30, 2000, effectuating a legal surrender of the leasehold interest and cancelling all covenants thereunder.”

KEETER TRADING COMPANY, INC. v. THE UNITED STATES, COFC No.05-243 C, July 19, 2007. USPS contract. The Postal Service terminated the contract for mail services for default when plaintiff ceased to perform. Before the termination plaintiff had argued that USPS' unilateral changes to the contract constituted a material breach which justified plaintiff's refusal to perform. Judge Bush denies the government's motion for summary judgment and overturns the TFD. She notes that the unilateral changes ordered by the government exceeded $2500 which the contract specified as the limit for unilateral changes by the CO. Finding that the change was outside the scope of the changes clause it was a cardinal change which justified the refusal of plaintiff to perform. Although doubting that plaintiff can meet the “well-nigh irrefragable proof“ for its bad faith claims she finds that summary judgment is not appropriate for those claims.

MOORE'S CAFETERIA SERVICES, d/b/a MCS MANAGEMENT v. THE UNITED STATES, COFC No. 07-377C, July 13, 20-07. Post-award bid protest Army food services contract at Fort Campbell, Kentucky. Plaintiff argues that a Joint Report to Congress required by the 2006 National Defense Authorization Act was not followed by the Army and that the Report was mandatory. A reference to the Joint Report was removed from the solicitation by amendment without protest at that time. Judge Firestone finds for the government on the administrative record. Judge Firestone “agrees with the government that the plaintiff had the opportunity to object to the terms of the solicitation during the bidding process, and in not doing so, waived its right to do so before this court” under the recent Federal Circuit case of BLUE & GOLD, FLEET, L.P. v. UNITED STATES, and HORNBLOWER YACHTS, INC. The decision also notes that the directions of the Joint Report would not be applicable anyhow until regulations are final. Judge Firestone also upholds the price reasonableness determination by the CO based on a comparison of three competitive offers. She notes that under the FAR 15.404-1, “The CO need not perform any technique of price analysis other than price competition unless the CO “determines that information on competitive proposed prices . . . is not available or is insufficient to determine that the price is fair and reasonable.””

SOUTHERN NUCLEAR OPERATING COMPANY, ALABAMA POWER COMPANY, GEORGIA POWER COMPANY v. THE UNITED STATES, COFC No. 98-614C, July 9, 2007. SNF damages case. In a lengthy 86 page opinion Judge Merow awards $78+ million in damages finding that plaintiffs' storage mitigation decisions and expenditures were reasonable

DAIRYLAND POWER COOPERATIVE v. THE UNITED STATES, COFC No. 04-106C, June 29, 2007. Spent Nuclear fuel case. Good discussion of the deliberative process and attorney-client privileges.

MICHAEL KAWA v. THE UNITED STATES, COFC No. 06-448C, June 28, 2007. Plaintiff was the escrow agent for payment of an agreement between the Government's prime contractor, Capital City Pipes, and a subcontractor, JGB Enterprises, Inc. See earlier related case. Judge George Miller denies the government's motion to dismiss, finding “that plaintiff has standing, is a real party in interest, and has pleaded facts sufficient to survive the Government's jurisdictional challenge. “ Good discussion of standing elements and the confusion that may arise when the factual allegations that constitute the cause of action include allegations which are necessary to establish jurisdiction.

ARINC ENGINEERING SERVICES, LLC, v. THE UNITED STATES, and BAE SYSTEMS ANALYTICAL SOLUTIONS, INC., Defendant-Intervenor, COFC No. 07-73C, Reissued June 28, 2007. Post-award bid protest, Army Space and Missile Defense Command contract. Plaintiff claims that claim is that “BAE obtained, via its prior work for the Army, unequal access to information critical to responding to the SMOTE task order in the RFP, thereby giving rise to an organizational conflict of interest.” Judge Allegra grants the government's motion for judgment on the administrative record, concluding “that plaintiff's arguments are based entirely on inference and suspicion and do not approach what is necessary to show that the contracting officer's determinations here were arbitrary and capricious.” The court discusses three provisions which it considers applicable based on FAR 2.101: “situations in which such a conflict may arise, to wit, “biased ground rules,' ‘unequal access to information,‘ and ‘impaired objectivity.''

UNITED MEDICAL SUPPLY COMPANY, INC. v. THE UNITED STATES, COFC No. 03-289C, June 27, 2007. Requirements contract for medical supplies for various military medical treatment facilities. Plaintiff claims that the government breached the contract by buying contract items from other sources. Judge Allegra starts his opinion with this statement—”Aside perhaps from perjury, no act serves to threaten the integrity of the judicial process more than the spoliation of evidence.” Judge Allegra sanctions the government noting that “It is the duty of the United States, no less than any other party before this court, to ensure, through its agents, that documents relevant to a case are preserved. Indeed, while not entering into the calculus here, a good argument can be made that, as the enforcer of the laws, the United States should take this duty more seriously than any other litigant. Unfortunately, in the case sub judice, irrefutable evidence demonstrates that over an extended period of time, the United States, acting through at least some of its employees, recklessly disregarded that duty, thereby undoubtedly damaging plaintiff's ability to present its case in this matter and disrupting the orderly administration of this proceeding.” Good discussion of spoliation issues and case law. Judge Allegra also rejects the government's arguments that bad faith must be shown before sanctions are imposed.

SHIRLINGTON LIMOUSINE & TRANSPORTATION, INC., v. UNITED STATES OF AMERICA, COFC No. 07-220C, June 27, 2007. Bid protest, DHS procurement. Plaintiff challenges the decision by DHS to not set aside the procurement for HUBZone concerns and also the rejection of its late proposal. Earlier plaintiff had filed two protests at the GAO, one denied on March 13, 2007, and one denied on March 30, 2007. The instant suit was filed at the COFC after the time for receipt of proposals by DHS. Judge Braden grants the government's motion to dismiss finding that “Because Plaintiff did not timely submit a proposal, Plaintiff is not an ‘actual offeror' and cannot establish ‘interested party‘ status. Accordingly, Plaintiff does not have standing to bring the claims alleged ...” She also comments that “Although Plaintiff may perceive the court's ruling as harsh, the prohibition against late bids ‘alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue where an offeror is permitted to submit a proposal later than the deadline set for all competitors.'” In considering plaintiff's standing and “prospective offeror” status, Judge Braden also notes ”Since Plaintiff chose GAO as the forum of resolution, Plaintiff effectively relinquished the ability to file a timely protest in the United States Court of Federal Claims.” and “Therefore, as a matter of law, Plaintiff's December 7, 2006 GAO protest does not confer ‘prospective offeror' status for purposes of standing in the United States Court of Federal Claims.“

SOUTHERN FOODS, INC. v. THE UNITED STATES, COFC 07-210C, Reissued June 21, 2007. Post-award bid protest, United States Army Community and Family Support Center (USACFSC). Judge Bruggink grants the government's motion for judgment on the administrative record finding that plaintiff has not met its burden to establish any arbitrary and capricious action on the part of the contracting officer. Judge Bruggink also discusses the NAFI Tucker Act jurisdiction limitations, namely that the court cannot hear monetary claims against NAFIs unless they fall into one of the enumerated exceptions under 28 U.S.C. 1491(a). Although not necessary to the decision on the merits, Judge Bruggink notes “This limitation, however, would have no application to plaintiff's argument for injunctive and declaratory relief under the court's ADRA bid protest jurisdiction, as such relief would not involve the payment of monies from the Treasury.“

ROXCO, LTD.v. THE UNITED STATES, COFC No. 02-176C, June 20, 2007. Air Force housing construction contract. Relying on Placeway Construction Company v. United States, 18 Cl. Ct. 159 (1989), Judge Sweeney rejects the government's argument “that because plaintiff did not file a certified claim with the CO for the contract balance, this court lacks jurisdiction over plaintiff's demand for that sum.” Judge Sweeney finds that “the CO's decision to set off the damages against the contract balance was adverse to Roxco; thus, Roxco properly appealed these adverse decisions to this court.”

AMERICAN RENOVATION AND CONSTRUCTION COMPANY, ST. PAUL MERCURY INSURANCE COMPANY, and ST. PAUL FIRE AND MARINE INSURANCE COMPANY v. THE UNITED STATES, COFC No. 06-813C, June 5, 2007. Air Force construction contracts for housing units. Sometime after accepting the housing units the Air Force terminated both contracts for default for allegedly latent defects. The defaults were appealed to the ASBCA where a decision is now pending. The Air Force now issues a new final decision assessing excess reprocurement cost against the prime (ARC) and also names the sureties in its final decision. The prime and sureties are plaintiffs here and challenge the excess procurement costs final decision. Judge Sweeney grants the motion of the government to dismisses the sureties for lack of jurisdiction holding that unless the sureties have performed the obligation under their bonds, which they have not here, there is no equitable subrogation to support their action. Judge Sweeney also denies the governments's motion to transfer the action to the ASBCA. Good discussion of the relevant factors and case law in the court's discretion to transfer a matter to another fora.

ATK THIOKOL, INC.v. THE UNITED STATES, COFC No. 99-440C, May 31, 2007. IR&D issue case. See earlier decisions in 2005 and 2006. Judge Braden finds
1. The Court Is Authorized To Award Money Damages In This Case, Pursuant To The Contract Disputes Act, 41 U.S.C. § 601, et seq.
2. An Award of Money Damages In This Case Is Not Prohibited By Federal Acquisition Regulations §§ 52.216-7(d), (e).
3. The Court Is Authorized To Award Interest In This Case, Pursuant To 41 U.S.C. § 611
She concludes “The court determined that Plaintiff is entitled to judgment that the Research & Development and Production Equipment costs properly are accountable as allocable indirect costs, under the CAS and FAR. See ATK I, 68 Fed. Cl. at 645 (holding that the DACO's disallowance of $8,149,888 was improper, because that amount was allowable under the applicable CAS and FAR regulations as Research & Development and Production Equipment Costs). The court also has determined that Plaintiff is entitled to monetary relief for all contracts, subject to the DACO's disallowance for the entirety of the disallowed costs. See ATK II, 72 Fed. Cl. at 313-15 (holding that the court had jurisdiction over the total $8,149,888 amount disallowed by the DACO, not just the $730,615 at issue in the ‘test contract'). In addition, for the reasons previously discussed, the court has determined that Plaintiff is entitled to interest on all disallowed costs from the date that the Government failed to pay, pursuant to 41 U.S.C. § 611. Accordingly, Plaintiff's April 19, 2007 Motion for Entry of Judgment, pursuant to RCFC 54(b), is granted.”

HERITAGE OF AMERICA, LLC v. THE UNITED STATES, and DYNAMIC SYSTEMS TECHNOLOGY, INC. and EVOLVER, INC., Defendant-Intervenors., COFC No. 07-150 C, Reissued May 31, 2007. Post-award bid protest, Army contract. Judge George Miller grants the protest and tailors an injunction prohibiting the Army from exercising options while recompeting a portion of the procurement. The court refuses to apply the GAO timeliness rules and, finding that plaintiff diligently pursued its rights, rejects the laches motion by the defendants.

P.R. CONTRACTORS, INC. v. THE UNITED STATES, COFC No. 03-30C, May 31, 200. Corps of Engineers non-competitive 8(a) contract for levee enlargement. Judge Williams denies all of plaintiff's claims for failure of proof, including a claim because of lost records allegedly caused by a surveyor with a drinking problem which the government had allegedly recommended. While noting that “the parol evidence rule does not preclude the Court from considering extrinsic evidence of promises during negotiations where the claimed promises call into question the mutuality of assent reflected in the Contract”, she finds that the testimony offered by plaintiff “does not satisfy Plaintiff's burden of proof. It is well established that generalized, conclusive, unsupported opinion testimony commands very little weight when it contains little more than self-serving conclusions.”

KNOWLEDGE CONNECTIONS, INC. v, THE UNITED STATES and CATAPULT TECHNOLOGY, LTD, COFC No. 06-786C, May 30, 2007. EAJA case. See earlier opinion. Judge Lettow denies the EAJA request for fees finding that the remand tom GSA in the earlier opinion was not a final judgment necessary for EAJA fees. He also denies the request for interim fees finding that plaintiff's success on the standing issue in the earlier case is the type of “technical victory” that is insufficient to support prevailing-party status under EAJA.

SARANG CORPORATION v. THE UNITED STATES, COFC No. 06-506C, May 25, 2007. Forest service contract. Plaintiff claims CDA and PPA interest on late payments by the Forest Service. The court finds that the claims have not been submitted to the CO for decision, but instead of dismissing the action Judge Braden stays the matter to enable plaintiff to file a claim for PPA interest and also notes that if the Forest Service pays PPA interest before the claim is filed the government's motion to dismiss will be entered. Judge Braden rejects the government's argument that a settlement agreement is not subject to either the CDA or PPA.

DYNCORP INTERNATIONAL LLC, Plaintiff, v. THE UNITED STATES, Defendant, M1 SUPPORT SERVICES LP, Intervenor-defendant, COFC No. 07-84C, May 24, 2007. Post-award bid protest, Air Force contract. FAR Part 15 award without discussions. Judge Bush denies the protest finding that the Air Force did not abuse its discretion in making the award without discussions and also concludes “that a procuring agency has the discretion to decline to enter into clarifications with an offeror, even if the agency has engaged in clarifications with another offeror.”

EMERALD COAST FINEST PRODUCE CO. INC., v. THE UNITED STATES, and MILITARY PRODUCE GROUP, LLC, COFC NO. 06-742 C, May 22, 2007. (See earlier decision in this case.) Post-award bid protest, Defense Commissary Agency of the Department of Defense, Resale Contracting Division (DeCA) award for fresh fruits and vegetables. After remand to DeCA for revaluation, plaintiff now requests leave to amend the administrative record and file an amended complaint. Judge Hewitt denies both motions. Opinion contains discussion of the standards of review for supplementation of the record and an amended complaint.

DISTRIBUTED SOLUTIONS, INC, AND STR, L.L.C. v. THE UNITED STATES, COFC No. 06-466 C, May 21, 2007. Bid protest. Plaintiffs protest the award by the prime under a USAID contract of two subcontracts after a series of RFIs both by USAID and the prime. Judge Merow dismisses the action finding that there is no procurement by the US at issue and that the work added to the prime's contract after the RFI was within the scope of the prime contract.

STOCKTON EAST WATER DISTRICT, CENTRAL SAN JOAQUIN WATER DISTRICT, COUNTY OF SAN JOAQUIN, CITY OF STOCKTON, and CALIFORNIA WATER SERVICE COMPANY v. THE UNITED STATES, COFC No. 04-541L, May 18, 2007. Plaintiff moves for reconsideration of the earlier decision. Judge Christine Miller denies the motion for reconsideration and includes a good discussion of impossibility of performance and the sovereign acts doctrine.

CIRCLE LINE-STATUE OF LIBERTY FERRY, INC. v. THE UNITED STATES, COFC No. 07-237C, May 14, 2007. Pre-award bid protest National Park Service concession contract. Plaintiff moves to enjoin the Park Service from soliciting a contract without recognizing plaintiff's implied right of preference in contract renewal. Judge Wiese denies the injunction finding that a statute repealed any preference plaintiff may have earlier had and that plaintiff failed to prevail on its argument of an implied preference.

BLUEPORT COMPANY, LLP v. THE UNITED STATES, COFC No. 02-1611 C, May 07, 2007. Not a contract case, but an interesting copyright infringement action under 28 USC 1498(b). Plaintiff sues for copyright infringement of a computer program developed by an employee of the Air Force Manpower Agency (“AFMA”). In a learned opinion, Judge Block first addresses whether the three provisos of 1498(b) are jurisdictional hurdles or whether they present a number of affirmative defenses. After examining the case and statutory law, Judge Block concludes that 1498(b) is jurisdictional and dismisses the action finding that plaintiff has not shown that the employee was not in a position to order, influence, or induce use of the copyrighted work, that the copyrighted work was not prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used. Good discussion of the jurisdiction issues.

MCDONNELL DOUGLAS CORPORATION AND GENERAL DYNAMICS CORPORATION v. THE UNITED STATES, COFC No 91-1204C, May 03. 2007. Termination for default, A-12 Navy contract. On remand from the Federal Circuit See earlier Federal Circuit and COFC decisions. In an 80 page decision Judge Hodges sustains the default concluding that “This case demonstrates that the contracting officer may have a de minimis role in some circumstances of government procurement, rather than the central role that most contractors assume. The contracting officer need not make termination decisions for the same reasons that a reviewing court may consider after termination. So long as information to support the contracting officer's decision was available to the Government at termination, this is sufficient to rule whether the contracting officer reasonably terminated the contract for default for failure to make progress.”

BEARINGPOINT, INC. v. THE UNITED STATES, COFC No. 06-675C, April 30, 2007. GSA Multiple Award Schedule contract and a BPA and Task Order issued by DOI. The DOI CO terminated the TO and BPA for default and plaintiff challenged the TD in the COFC. Plaintiff now moves to dismiss for lack of jurisdiction claiming that only a GSA CO could terminate the TO when contractor alleged excusable delay. Judge Wheeler dismisses the action disagreeing with the government that “an amendment to the Federal Acquisition Regulations (‘FAR'), enacted after the award of the BPA but before the award of the Task Order, authorized the DOI Contracting Officer to terminate these agreements.” Judge Wheeler summarizes the case as follows-“For the reasons explained below, the Court concludes that it does not have jurisdiction over this matter. The contract language in BearingPoint's Schedule Contract granted exclusive authority to the GSA Contracting Officer to issue a default termination where the contractor alleged excusable delay as a defense. This language also governed the administration of the BPA and the Task Order. The GSA could have incorporated the FAR amendment into the Schedule Contract as a modification, but it did not. Instead, the GSA reaffirmed the application of its standard clause, I-FSS-249-B, after the FAR amendment had been issued. The Complaint therefore is dismissed without prejudice, and the DOI default terminations are to be treated as a legal nullity.”

TRAFALGAR HOUSE CONSTRUCTION, INC. v. THE UNITED STATES, COFC No. 99-363C, April 30, 2007. Department of Labor construction contract. See earlier opinion holding that plaintiff's contract claims for an REA were without merit. Government counterclaims to recover the entire interim payment made for the REA, plus a False Claims Act claim. Judge Braden denies the FCA counterclaim finding that plaintiff's conduct was not in “reckless disregard” of the truth or falsity of the claim. However, Judge Braden finds for the government for the recoupment of the entire interim payment, plus prejudgment interest. Although acknowledging that the government cites no statutory or contractual authority mandating the recovery of interest, Judge Braden notes that the Supreme Court “has authorized an award of interest on a claim for recoupment.”, Citing Royal Indemnity Co. v. United States, 313 U.S. 289, 296 (1941), and therefore decides that interest is appropriate in this case.

AT&T CORP and LUCENT TECHNOLOGIES, INC. v. THE UNITED STATES, COFC No. 04-1511C, April 26, 2007. Plaintiff's motion for summary judgment requests that the Court interpret whether a “segment closing,” based on a segment sale or transfer, requires the sale or transfer of all of a segment's contracts and related assets. Judge Braden denies the motion noting that “both the text of Amended CAS 413 and agency guidance compel the court to conclude that the determination of a ‘segment closing' cannot be made in the abstract, but requires a fact-based inquiry. Contrary to Lucent's assertion, requiring a fact-based inquiry does not make Amended CAS 413 unworkable, but rather upholds the CAS Board's intent.” Opinion discusses the interpretation of CAS standards,

PHILLIPS/MAY CORPORATION v. THE UNITED STATES, COFC No. 06-47 C, April 19, 2007. Navy construction contract. Plaintiff appeals the denial by the CO of its claims for delay, mal-administration of the Contract, over-zealous inspection, and impossibility. Plaintiff had earlier litigated eight claims at the ASBCA from the same contract and transactions but the plaintiff did not present nor did the Board decisions consider, any claims related to mal-administration or impossibility of performance of the Contract. The court grants the government's motion to dismiss because the claims are barred by the doctrine of res judicata. Judge George W. Miller discusses the two elements of res judicata, claim preclusion and issues preclusion and concludes “Because plaintiff's claims before this Court are based upon the same transactional facts as its nine appeals to the ASBCA, eight of which were decided on the merits, plaintiff is barred from litigating them in this action by the claim preclusion aspect of res judicata.”

SPARTON CORPORATION v. THE UNITED STATES, COFC No. 92-580C, April 18, 2007. Patent infringement case. Judge Damich grants the government's motion to exclude the testimony of an expert on government contracts, Professor Ralph C. Nash. Although recognizing Professor Nash's expertise—“In fact, the Court of Federal Claims even recognized his contribution to government contract law by bestowing on him its ‘Golden Eagle' Award in 2005”—Judge Damich notes “In the absence of specialized trade usage, expert testimony regarding proper contract interpretation is inadmissible, as is expert testimony regarding the legal significance of the contract language.” The opinion concludes “In essence, the Court finds Professor Nash's testimony to serve the sole purpose of advising the Court on how to interpret the ASPR and the contract provisions and whether to apply the Christian doctrine. Such legal conclusions are the province of the Court. Expert testimony is an improper mechanism for offering legal arguments to the Court. Plaintiff's counsel can make each of the arguments proffered by Professor Nash during the trial.”

MORELAND CORPORATION and LAS VEGAS VA1 LLC v. THE UNITED STATES, COFC No. 03-2154C, April 18, 2007. Termination for default, Department of Veterans Affairs building lease contract. VA terminated the contract for default five years into a 15 year lease for failure to correct alleged construction defects. The COFC overturns the default and award damages for the unpaid lease payments. Judge Wheeler finds that the government breached the lease by not allowing plaintiff to correct latent defects. The Court notes that the CO abused his discretion In terminating the lease and that the government also breached the covenant of good faith and fair dealing. The CO testified that he had denied claims that he had considered meritorious, based upon the advice of counsel, so that the agency would have greater leverage in negotiating other claims. Judge Wheeler notes “Under the Contract Disputes Act, a contracting officer's review of certified claims submitted in good faith is not intended to be a negotiating game where the agency may deny meritorious claims to gain leverage over the contractor. The law requires contractors to certify that their claims are ‘made in good faith,' that all ‘supporting data are accurate and complete to the best of [the contractor's] knowledge and belief,' and that the amount requested ‘accurately reflects the contract adjustment for which the contractor believes the government is liable.' 41 U.S.C. § 605(c)(1). Certainly, a reciprocal obligation to act in good faith should apply to the Government. As the Court noted recently in Lavezzo v. United States, a contracting officer is obligated to ‘put his own mind to the problems and render his own decisions.' Such decisions must be ‘personal [and] independent,' and ‘even the appearance of coercion [must] be avoided.' 74 Fed. Cl. 502, 509 (2006). The Contracting Officer's outright denial of meritorious contractor claims to gain some advantage over the contractor will not be condoned by this Court.”

RICK'S MUSHROOM SERVICE, INC. v. THE UNITED STATES, COFC No. 06-255C, April 10, 2007. Plaintiff entered into an agreement with the United States Department of Agriculture, National Resource Conservation Service (the “NRCS”) concerning environmental conservation needs in operating a site containing “mushroom substrate,” which is comprised of agricultural wastes, manure, and other substances. The terms of the NRCS Agreement provided that “the NRCS would design an SMS transfer facility, together with a storage area, leaching field, waste water impoundment and spray system to be constructed at the facility and that [plaintiff] would have no right to deviate from the specifications provided by the NRCS.” Plaintiff apparently complied with the NRCS specification, but was sued by third parties as violating the provisions of the Clean Water Act. Plaintiff brings this action under the CDA claiming that the government is liable for professional negligence of its design and breach of an implied-in-fact warranty arising under the Spearin doctrine. Judge Christine O.C. Miller grants the government's motion to dismiss. Judge Miller finds that there is no jurisdiction under the CDA as the agreement was not for the procurement of property or services, but more likely as the government argued a cooperative agreement under 31 USC 6305, a provision of the Federal Grants and Cooperative Agreement Act. Judge Miller also rejects indemnification under the Spearin doctrine as even if applied to such an agreement as here, it would be prohibited by the Anti-Deficiency Act, 31 USC 1341.

KNOWLEDGE CONNECTIONS TRAVEL, INC. v. THE UNITED STATES and CATAPULT TECHNOLOGY, LTD., Intervening Defendant, COFC No. 06-786C, April 03, 2007. Pre-award protest converted to a post-award protest. GSA VETS GWAC contract for service-disabled, veteran-owned small businesses. Judge Lettow remands to GSA “to determine whether the large number of work-scope elements and the tiering arrangement specified in CPP2 limited the number of awardees in a way that was inconsistent with Executive Order 13360 or OMB's ‘executive agent' designation. In making this determination, GSA should address (1) the requirement in Executive Order 13360 that agencies ‘more effectively implement' Sections 644(g)(1) and 657f of Title 15, which set a government-wide goal of three percent for the participation in federal procurement contracts of service-disabled, veteran-owned small businesses and permitted agencies to establish certain set-aside and restricted-competition procurements for such 23 businesses, 69 Fed. Reg. at 62,549; 15 U.S.C. §§ 644(g)(1), 657f, and (2) the condition that OMB placed on its grant to GSA of the ‘executive agent' designation for the VETS GWAC: that GSA must select ‘the most highly qualified service-disabled veteran owned small businesses.'”

NORTH STAR ALASKA HOUSING CORPORATION v. THE UNITED STATES, Nos. 98-168C, 02-1632C & 03-2699C, April 02, 2007. Army housing contract in Fairbanks, Alaska. Judge Allegra finds that “the record provides a virtual rancid cornucopia of electronic messages and other communications evidencing a specific intent by key government officials to injure North Star.” A 98 page decision detailing the difficulties in contract performance. Good discussion of the breach of covenant of good faith and fair dealing.

MANAGEMENT SOLUTIONS & SYSTEMS, INCORPORATED v. THE UNITED STATES, and CREATIVE COMPUTING SOLUTIONS, INCORPORATED, Defendant-Intervenor, COFC No. 07-7C, March 30, 2007. Post-award bid protest, HUD contract. HUD modified an existing 8(a) contract with intervenor, CCSI, and added work being done by plaintiff, a small business. Plaintiff argues that HUD violated 13 C.F.R. § 124.504(c) Adverse impact by transferring the services to CCSI, without conducting an analysis of the adverse impact on plaintiff. Judge Braden grants the government's motion for judgment on the administrative record. She agrees with the government that HUD was authorized by SBA to administer the contract, that the change was within scope and that the SBA adverse impact regulatory requirement does not apply to such contract modifications.

AMERISTAR FINANCIAL SERVICING, COMPANY, LLC v. THE UNITED STATES, COFC No. 06-424C, March 30, 2007. Plaintiff alleges that the Federal Deposit Insurance Corporation (“FDIC”) is responsible for breach of a contract Ameristar entered into with a then newly established federal savings bank for which the FDIC was acting as conservator. Defendant asserts in its motion that the FDIC, in its capacity as receiver or conservator of a federal savings bank, is not the United States (“Government”) for the purposes of this case. Judge Damich agrees with the government and dismisses the suit for lack of jurisdiction.

M.A. DeATLEY CONSTRUCTION, INC. v. THE UNITED STATES, COFC No. 04-1052 C, March 30, 2007. Federal Highway Administration road construction contract. See earlier decision. Plaintiff moves for summary judgment on the governments's counterclaims and alleges that Defendant has acquired no evidence during discovery to support its three counterclaims—which arise under the False Claims Act, the anti-fraud provision of the Contract Disputes Act, and the Forfeiture of Fraudulent Claims Act. Judge Damich denies the motion finding that there are material facts in dispute. In reaching this conclusion, he notes in regards to the intent issue that the Federal Circuit has held that intent need not be proven by direct evidence but may be inferred.

NORTHROP GRUMMAN CORPORATION, MILITARY AIRCRAFT DIVISION v. THE UNITED STATES, COFC No. 96-760C, March 28, 2007. Plaintiff requests the deposition of Darleen Druyun in this litigation of the Tri-Service Stand-Off Attack Missile (TSSAM) program. Judge Horn “partially GRANTS the plaintiff's motion to compel the deposition of Darleen Druyun, as to unclassified, formerly classified and now unclassified, and unclassified redacted versions of classified documents, in accordance with this order, applicable DoD procedures, and the security procedures established for the TSSAM litigation. The court DENIES the plaintiff's motion to compel the deposition of Darleen Druyun using classified documents or information, regardless of whether the documents or information were authored, received, or accessed by Ms. Druyun prior to her security clearance becoming inactive and the denial of her TSSAM program special access.” Good case describing some of the issues when dealing with classified materials.

JACOBS ENGINEERING GROUP, INC. v. THE UNITED STATES, COFC No. 02-1500 C, March 26, 2007. DOE contract on remand from the Federal Circuit. See earlier COFC decision and the Federal Circuit decision which reversed and remanded. Cost-sharing contract requiring government to reimburse 80 percent of the cost of performing the contract. The T/C clause required the government to pay all of the costs reimbursable under the contract. After a T/C the contractor submitted a claim for all its costs, not just 80 percent. The CAFC reversed the COFC decision which had found that ktor was only entitled to 80 percent. The CAFC distinguished between costs which were and were not reimbursable and concluded that the “all costs reimbursable” language of the T/C clause “defines the type or kind of costs for which the contract provides reimbursement and not the amount of such costs.” Judge George Miller now grants plaintiff's motion for summary judgment on its costs, but denies any fee. Judge Miller notes that any claim for fee is precluded by the mandate from the Federal Circuit as the fee issue was not raised in the appeal. Judge Miller further notes that the contract expressly stated that no fee would be paid.

TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA v. THE UNITED STATES, COFC No. 04-487C, March 19,2007. Corps of Engineers dredging contract, Type I differing site conditions claim. Judge Block grants summary judgment for plaintiff on the entitlement issue in this scholarly 34 page opinion which discusses as Judge Block puts it the “Principles of Contract Interpretation: the Williston v. Corbin Feud” Because both parties rely on extrinsic evidence to resolve the interpretation issues, Judge Block begins with “a very short history of the law of contract interpretation to determine, among other things, when it is proper to consider extrinsic evidence. This allows the Court to better understand the context of the Federal Circuit's law on contract interpretation, as well as to how it treats extrinsic evidence of trade usage and custom, the parole evidence rule, and exactly when and under what circumstances terms in an agreement may be considered ambiguous.” After discussion of the Restatement 2nd, case law and the Federal Circuit's holdings on the plain meaning approach to contract interpretation, Judge Block finds “(1) a plain reading of the contract shows the Corps intended to express the conditions at the site; (2) the language of contract describes the presence of cobbles as ‘few' or ‘incidental;' (3) the exculpatory language of the Site Investigations clause does not relieve the government from responsibility for its contractual indications; and (4) an evaluation of extrinsic evidence confirms that the parties' understanding of the contract is consistent with the plain reading of the contract.”

KLAMATH IRRIGATION DISTRICT, et al. v. THE UNITED STATES and PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, Defendant-Intervenor., COFC Nos. 01-591 L, 01-5910L through 01-59125 L, March 16, 2007. Plaintiffs claim that the Bureau of Reclamation breached their contracts for irrigation water. The Bureau had reduced water under the contracts because of requirements of the Endangered Species Act (ESA). Judge Allegra grants summary judgment for the government holding that the ESA provides a complete defense under the sovereign acts doctrine. Very good discussion of the sovereign acts doctrine including its relationship to the common law impossibility defense.

INFORMATION INTERNATIONAL ASSOCIATES, INC. v. THE UNITED STATES, COFC No. 04-1489C, March 16, 2007. Air Force EAJA case. (See merits decision) Judge Braden finds that the government's position was substantially justified. Judge Braden concludes - “FAR 14.407-1 does not require a CO to compare the offerors' Initial and Final Price Proposals. Moreover, even if the CO had compared the total Initial and Final Price Proposals of each offeror and between the offerors in this case, the CO likely would not have been alerted to the mistake, because the percentage of difference was so small. The CO acquired constructive knowledge of the mistake only by preparing abstracts that compared the Initial and Final Price Proposals on a line-by-line basis.(emphasis added). Since this was not a required practice, the Government's argument had a ‘reasonable basis in both law and fact.'”

INTERNATIONAL AIR RESPONSE v. THE UNITED STATES, COFC No. 00-428C, March 12, 2007. On remand from the Federal Circuit's earlier decisions. Forest Service Exchange Agreement. An interesting case with a convoluted history in the District, COFC and CAFC courts. The government had transferred title to three C-130 aircraft to plaintiff in exchange for three historic aircraft. The CO had later issued a decision that the Exchange Agreement was illegal and demanded the return of the aircraft. The government filed a counterclaim. Judge Christine Miller dismisses the government's counterclaim and holds that plaintiff was a boni fide purchaser under 40 U.S.C. §544, Validity of transfer instruments.

AAB JOINT VENTURE v. THE UNITED STATES, COFC No. 04-1719 C, No. 05-114 C, No. 05-1172 C, and No. 06-49 C (CONSOLIDATED), February 28, 2007. Corps of Engineers construction contract for a base in Israel. Plaintiff moves to compel discovery, including that of electronic documents, in this contract disputes case. The government argues that the cost to restore back-up tapes of emails would cost between $85,000 and $150,000. Judge Damich orders the government to restore at its own expense a portion of the back-up tapes for the time period beginning with the date at which the first REA was filed. Judge Damich notes that the REA initiated the government's duty to preserve evidence. Good discussion of the duty to preserve evidence.

M.A. DeATLEY CONSTRUCTION, INC. v. THE UNITED STATES, COFC No. 04-1052 C, February 28, 2007. Federal Highway Administration road construction contract. The government moves to dismiss several claims of plaintiff on grounds that the claims were not submitted to the CO. The court agrees with the government on one claim, which it dismisses, but concludes that the other claims were all based on the same set of operative facts presented to the CO in its certified claim. Judge Damich notes that “the Federal Circuit instructs that a contractor has sufficiently established subject matter jurisdiction in this Court when its claims here ‘arise from the same operative facts, claim essentially the same relief, and merely assert differing legal theories for that recovery' when compared with its claim presented to the CO.”(citations omitted)

DESERET MANAGEMENT CORPORATION v. THE UNITED STATES, COFC 06-86 T, February 27, 2007. Not a contract case. The government's attorney filed answers to plaintiff's interrogatories with the following response “Under penalties of perjury, I certify that the foregoing responses to interrogatories are true and correct to the best of my knowledge.” Plaintiff argues that the answers are deficient as signed by an attorney instead of a party and are not under oath as required by RCFC 33(b)(1) and (2). After briefing of the issues, Judge Hewitt decides that the attorney representing a party may properly sign the interrogatories, but finds that the “phrase ‘to the best of my knowledge' is incompatible with the requirement of RCFC 33(a) that an agent ‘furnish such information as is available to the party' and that the phrase creates ambiguities, the court holds that the proper form of oath under RCFC 33(a) is the following: ‘Under penalties of perjury, I certify that the foregoing responses to interrogatories are true and correct.'”

HAMILTON SUNDSTRAND POWER SYSTEMS v. THE UNITED STATES, COFC No. 06-874C, February 21, 2007. Post-award bid protest, Air Force contract. Plaintiff alleges unequal and unfair evaluation of its technical proposal. Judge Bruggink denies the government's motion to dismiss for lack of standing. The government argues that “even if all of the alleged instances of unequal treatment are remedied, Hamilton's proposal would still be unacceptable because of other deficiencies in Hamilton's proposal.” Judge Bruggink notes “Given the nature of this particular evaluation process — namely, there was a single, unified, unscored determination of acceptability — we believe it is sufficient to trigger court review for Hamilton to allege that there were substantial instances of unequal treatment.” On the merits however, the court grants the government's motion to dismiss on the administrative record concluding that “There was a fundamental difference between Hamilton's proposal and the other proposals in the amount of information provided. Unlike its competitors, Hamilton consistently failed to detail by narrative description how its proposed LASS cart complied with the Purchase Description. Hamilton erroneously believed a promise to comply and generalized references to other LASS models were sufficient 'narrative descriptions' from which the Air Force could evaluate its acceptability.”

CBS CORPORATION v. THE UNITED STATES, COFC No. 01-79C, February 21, 2007. Judge Firestone grants plaintiff's motion for reconsideration of a portion of 2006 decision in Viacom, Inc. v. United States, 70 Fed. Cl. 649 (2006). Judge Firestone states that the “court is now persuaded that revised CAS 413 did not result in a change from original CAS 413 with regard to flexibly-priced subcontracts, and that the government is therefore not entitled to an equitable adjustment equal to its share of this portion of the deficit where revised CAS 413 applies to flexibly-priced subcontracts entered into under original CAS 413. ”

EMERALD COAST FINEST PRODUCE CO. INC. v. THE UNITED STATES and MILITARY PRODUCE GROUP, LLC, Intervenor COFC No. 06-742 C, February 22, 2007. Post-award bid protest, contract for the Defense Commissary Agency of the Department of Defense. Judge Hewitt remands to the agency for a new evaluation by the TEB and a decision by the SSA after the agency concedes an error in the evaluation of proposals.

REBECCA RYAN d/b/a FLYAWAY ) FARM AND KENNELS v. THE UNITED STATES, COFC No. 05-1218 C, February 9, 2007. EAJA case. Judge Hewitt finds that plaintiff was not a prevailing party under Buckhannon Bd. and Care Home Inc., v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 606 (2001). Judge Hewitt's opinion distinguishes cases where a controversy becomes moot because a court has entered judgment after considering substantive issues and a controversy becoming moot because a court has dismissed the case as moot, without more action. Here that latter applies.

DISMAS CHARITIES, INC. v. THE UNITED STATES and BANNUM, INC., COFC No. 06-825C, February 07, 2007. Post-award bid protest, Bureau of Prisons contract. Judge Margolis grants the government's motion to dismiss finding that plaintiff is not an interested party as it proposal did not comply with the solicitation and it did not have a substantial chance of award.

CHANT ENGINEERING CO., INC. v. UNITED STATES and DAYTON T. BROWN INC., COFC NJo. 06-282C, Filed under seal on January 10, 2007, Unsealed on February 07, 2007. Post-award bid protest, Army contract. Solicitation for commercial items. Although the opinion includes extensive discussion of “commercial” items, plaintiff's action is dismissed for lack of standing. Judge Horn finds that plaintiff was not prejudiced as it did not have a substantial chance of award because its offered items were not commercial items and thus not responsive to the solicitation.

BETA ANALYTICS INTERNATIONAL, INC., v. THE UNITED STATES, and MADEN TECH CONSULTING, INC., Intervenor, COFC No. 04-556C, January 31, 2007. Bid preparation and proposal costs, DARPA post-award bid protest. Judge Wolski awards plaintiff $111,900.82 in bid preparation and proposal costs. Although not a real issue in the case, Judge Wolski notes that he “does not see how FAR provisions concerning allowable costs under a contract can control the determination of proper monetary relief under the ADRA.” He continues “when bid preparation and proposal costs are sought under the ADRA amendments to the Tucker Act, there is no implied-in-fact contract into which procurement regulations may be incorporated. Thus, regulations concerning whether certain costs are allowed under a contract would not directly apply to the matter at hand.”

AAB JOINT VENTURE v. THE UNITED STATES, COFC Nos. 04-1719 C, 05-114 C, 05-1172 C, and 06-49 C, January 26, 2007. Corps of Engineers contract. Government moves to dismiss a differing site condition claim arguing that it had not been submitted to the CO. Plaintiff argues that claim involves the same factual and legal bases as the certified claims submitted earlier to the contracting officer. Judge Damich grants the governments' motion. Judge Damich notes that the fact that the complaint and the certified claim have the same legal basis is not enough. In dismissing the action Judge Damich states “Plaintiff failed to provide the contracting officer with adequate notice of its subgrade replacement claim and, by bringing the claim directly to this Court, is effectively ‘circumventing the statutory role of the contracting officer to receive and pass judgment on the contractor's entire claim.' [citations omitted] Moreover, the factual evidence required to prove the need for subgrade replacement under structures is distinct from that required to prove the need for additional pile length, and the costs associated with each are distinct.”

MORSE DIESEL INTERNATIONAL, INC., d/b/a AMEC CONSTRUCTION MANAGEMENT, INC. v. THE UNITED STATES, COFC No. 99-279C, January 26, 2007. (See earlier 2005 decision) In a 50 page opinion, Judge Braden introduces the case as follows: “This Memorandum Opinion and Order holds that the defendant (“Government”) is entitled to summary judgment, as a matter of law, on counterclaims asserted under: the Anti-Kickback Act of 1986, 41 U.S.C. §§ 51-58 and the False Claims Act, 31 U.S.C. § 3729(a)(1), (a)(2). In addition, the court herein, holds that Plaintiff violated the Forfeiture of Fraudulent Claims Act, 28 U.S.C. § 2514, and thereby has forfeited claims in the amount of $53,534,679.16 asserted in this case, as consolidated. A trial on the amount of damages due for violations of 41 U.S.C. §§ 51-58 and 31 U.S.C. § 3729 (a)(1), (a)(2) will be set during a conference call to be scheduled on February 8, 2007.”

AXION CORPORATION v. THE UNITED STATES, COFC Nos. 03-2644C & 04-297C, January 25, 2007. Appeal of a default termination and claims for certain costs. Judge Firestone finds for the government on the issues of whether releases were subject to reformation because of unilateral mistake in understanding by the contractor. Judge Firestone notes “In order to obtain reformation of a release based on ‘unilateral mistake' the party seeking reformation must show that the other party either knew or objectively should have known based on the facts and circumstances surrounding the transaction that there had not been a meeting of the minds.” (citations omitted). Summary judgment is denied to the government for one count on the government's alleged breach of its duty to cooperate during the second [first article test] because of a material issue of fact.

SGS-92-X003 v. THE UNITED STATES, COFC No. 97-579C, Reissued: January 19, 2007. Not a normal procurement case. Plaintiff was a DEA Confidential Informant and claims the government beached her contract to receive a percentage of the value of seizures made by the DEA. Judge Williams denies the government's motion to dismiss deciding that a trial is needed because of genuine issues of material facts. Good discussions of implied-in-fact contracts, implied actual authority and ratification plus tortious breach of contract.

THE BOEING COMPANY, SUCCESSOR-IN-INTEREST TO ROCKWELL INTERNATIONAL CORPORATION v. THE UNITED STATES, COFC No. 91-1362C, January 17,2007. DOE contract at Rocky Flats Nuclear Weapons Plant in Colorado. Boeing argues that DOE breached the award fee provision of the contract, which specified that a certain individual would be the Fee Determination Official (FDO), when the award fee was set by others than the FDO. Judge Lettow grants summary judgment for plaintiff, rejecting the government's argument that the Secretary of Energy could properly determine the fee. Interesting case which even includes a discussion of the proper grammatical classification of a “present participle” and “participle phrase”

ALLIANT TECHSYSTEMS INC., ATK AEROSPACE GROUP, v. THE UNITED STATES, COFC No. 01-20C, January 04, 2007. Plaintiff claims $2,722,709 of post-retirement benefit costs from two Army ammunition plant contracts. Judge Wolski grants summary judgment for the government finding that a reasonable interpretation of a settlement agreement showed that appellant had released the subject claims. Good discussion of contract interpretation issues which the judge describes as “This case presents a difficult question of contract interpretation, complicated by the subsurface presence of confusing jargon, complex benefits concepts, and esoteric accounting issues -- as the background section, above, can attest.” Judge Wolski also rejects an estoppel argument raised by plaintiff. Judge Wolski notes “But as an equitable estoppel argument, plaintiff's ‘count is deficient, as it omits a necessary element. The Federal Circuit requires proof of affirmative misconduct by a government agent for estoppel to apply. [citations omitted] Plaintiff has not even alleged such misconduct, much less presented any evidence of it. Accordingly, the ‘estoppel' count, if considered a cause of action to establish liability, would be beyond our Court's jurisdiction; and, as an argument to thwart the government's defense, is of no avail.”

MADEN TECH CO. v. THE UNITED STATES, and BETA ANALYTICS INTERNATIONAL, INC., Intervenor, COFC No. 06-612C, December 29, 2006. Post-award bid protest, DARPA contract. In this latest of challenges to the lifting of the automatic stay, Judge Braden declines to exercise jurisdiction after DARPA “subsequently established in a Third D&F that the contract services at issue in this bid protest involved legitimate interests of national defense and national security.”

NEBRASKA PUBLIC POWER DISTRICT v, THE UNITED STATES, COFC No. 01-116C, December 19, 2006. Judge Allegra grants plaintiff's motion for an interlocutory appeal of his earlier decision which allows the government to collaterally attack a writ of mandamus issued by the DC Circuit Court of Appeals. Good discussion of the standards for an interlocutory appeal.

MOLA DEVELOPMENT CORPORATION v. THE UNITED STATES, 95-790C, December 14, 2006. Winstar case. Judge Willaims grants the governments' motion for summary judgment “because the Government's approval of Plaintiff's acquisition of the failing thrift here did not give rise to a contract.” After discussing the that need for unambiguous mutuality of intent to contract is a precondition for contract formation, the opinion notes “In sum, Plaintiff did not request and was not granted any forbearances which give rise to a contract in the Winstar setting. There is nothing in MDC's application or the history of negotiations asking for extended amortization of goodwill or the continued ability to count goodwill as capital in the face of regulatory change. The alleged negotiations and documents cited by Plaintiff show nothing more than regulatory approval of an acquisition. While the regulators did approve using goodwill as capital consistent with then existing regulations, they did not promise to permit MDC to continue this accounting in the face of regulatory change. As such, Plaintiff has failed to show the “something more” necessary to remove the transaction from the realm of regulatory approval.”

C. ROBERT SUESS, et al. v. THE UNITED STATES, COFC No. 90-981C, December 13, 2006. Motion for reconsideration, Winstar case. Judge Smith grants plaintiff's motion for reconsideration requesting a 50 percent control premium on the market price of the stock. Plaintiff argues that the recent case of Slattery v. United States, 69 Fed. Cl. 573 (2006) justifies such a result. Judge Smith agrees, stating “Since the Court's ruling, however, more than four years have elapsed. During this time, the Court has had the opportunity to further consider this issue and refine its knowledge of control premiums. As a result, the Court's views have continued to evolve. Thus, in Slattery, this Court awarded a control premium based on its belief that the individual share price merely reflected partial ownership of a company. Where, however, the entire company is being valued, it is necessary to factor in the significant, inherent attribute that accompanies such ownership--control. In applying this evolved legal theory to the facts at issue, it is evident that the market capitalization of Franklin should include a control premium. Therefore, based on the evidence Plaintiffs offered and the context of this valuation, a 50-percent control premium is appropriate.”

ADVANCED SYSTEMS TECHNOLOGY, INC. v. THE UNITED STATES, COFC No. 05-1167C, December 08, 2006. Suit for EAJA fees. Judge Williams denies the claim for attorney fees finding that plaintiff was not a prevailing part. Plaintiff argues that it was a prevailing party as the court had issued a preliminary injunction preserving the status quo in its pre-award bid protest. The court disagrees, noting that “First, the Court's preliminary injunction merely preserved the status quo pendente lite and did not materially alter the legal relationship of the parties. Second, Defendant voluntarily requested a remand to OHA after the Court entered a preliminary injunction.” Plaintiff was not therefore a prevailing party under Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 600-02 (2001).

CHE CONSULTING, INC. v. THE UNITED STATES and STORAGE TECHNOLOGY CORPORATION, intervenor, COFC No. 06-453C, December 07, 2006. Bid protest, DISA solicitation. Plaintiff protests the requirement that the awardee have a contractual relationship with the OEM limits competition and violates CICA. Judge Smith grants the government's motion for judgment on the administrative record. Judge Smith finds that “1. The OEM requirement meets DISA's Minimum Needs and is Rationally Related to That Need”, “2. The OEM requirement is not Unduly Restrictive” and “3. The re-solicitation does not discriminate against a class of Vendors.”

PHILLIP J. LAVEZZO d/b/a DKO TECHNOLOGIES v. THE UNITED STATES, COFC No. 05-575C, December 07, 2006. Federal Labor Relations Authority (“FLRA”) contracts. Plaintiff submitted claims to the CO, but CO's supervisor ordered CO to take no action on claims. Notwithstanding supervisors' direction, CO decided claims generally in Ktors favor, but did not inform supervisor. Supervisor sent claims for decision by another CO outside of FLRA under a reimbursable services agreement. That CO summarily denied claims. Judge Wheeler remands a directs FLRA “to assign a new contracting officer to decide Plaintiff's claims, having no prior involvement with Plaintiff's contracts.” Judge Wheeler also notes “The agency supervisor should not have interfered by transferring Plaintiff's claims from the assigned contracting officer to a different decision-maker outside the agency. The procurement process is not well-served where a supervisor's meddling results in two conflicting final decisions, neither of which focuses particularly upon the merits of Plaintiff's claims. The agency has not complied with the fundamental requirement that final decisions on contract claims ought to reflect the independent determination of the contracting officer”

THOMAS PATTON v, THE UNITED STATES, COFC No. 01-161C, December 06, 2006. FBI contract for a cooperating witness. Judge Miller denies the breach of contract claims and also draws “an adverse inference regarding plaintiff's credibility from plaintiff's assertion of his Fifth Amendment privilege.”

DIVERSIFIED MAINTENANCE SYSTEMS, INC. v. UNITED STATES, and CADENCE CONTRACT SERVICES, LLC, Intervening Defendant. COFC No. 06-706C, December 04, 2006. Post-award bid protest, Army HUBZone award. Plaintiff protested the HUBZone status of the awardee to the Army which replied that awardee was a HUBZone firm, based on CO's research, but did not refer the matter to the SBA. Judge Lettow remands the matter to the SBA, the agency Congress entrusted to decide HUBZone issues. Judge Lettow rejects plaintiff's argument that the court should decide the status of the awardee, noting that “No matter how well or expeditiously a court might be able to make a determination, the controlling consideration is whether, by doing so, the court would intrude upon a province that does not belong to it.”

IDEA INTERNATIONAL, INC., v. THE UNITED STATES, Defendant, and ICATT CONSULTING, INC., Defendant-Intervenor, COFC Nos. 06-652C and 06-717C, December 01, 2006. Post-award bid protest, Department of Defense Education Activity (“DoDEA”) contract. Contract was restricted to FSS contract holders and plaintiff argues, in part, that a substantial portion of the services would be supplied by a subcontractor/team member that did not hold a FSS contract for the services. Judge Wheeler rejects he governments' argument that the protest was barred by the FASA provision that bars protests in connection with the issuance of a task order or delivery order, finding that the provision is not applicable to the placement of orders under GSA Federal Supply Schedule contracts. Regarding the argument that all items are required to be within the scope of the vendor's FSS contract, Judge Wheeler notes “Without any clear guidance in the Solicitation that an offeror should propose only subcontractors with a GSA Schedule contract, the Court is reluctant to disqualify a small business offeror such as ICATT for WWIDEA's failure to have a Schedule contract. The procuring agency should have been aware of this requirement, and it should have included instructions in the Solicitation.” Judge Wheeler refuses to enjoin the award, but does grant proposal preparation costs to plaintiff.

COLORADO DEPARTMENT OF HUMAN SERVICES, DIVISION OF VOCATIONAL REHABILITATION, et al v. THE UNITED STATES, COFC No. 06-666C, November 30, 2006. Plaintiff operated a dining facility for the Air Force under the provisions of the Randolph-Sheppard Act. Because of funding issues the Air Force chose not to renew the dining facility contract, and instead was planning to convert the facility to a non-appropriated funds activity operated by Air Force Services with government employees. Plaintiff “formally requested that the Department of Education, the agency responsible for administering the Randolph-Sheppard Act, institute an arbitration to determine the applicability of the Randolph-Sheppard Act to the proposed operation of the new dining facility.” Plaintiff then brought this action requesting the court to issue an injunction maintaining the status quo. Judge Miller grants the governments' motion to dismiss for lack of jurisdiction concluding that “Congress has prescribed a specific and comprehensive scheme for the administrative and judicial review of claims alleging a violation of the Randolph-Sheppard Act. In particular, Congress has required plaintiffs alleging a violation of the Randolph-Sheppard Act to submit such claims to an arbitration panel convened by the Secretary of Education. The arbitration panel's decision is then subject to judicial review as a final agency action under the APA. Whereas, this Court does not possess general jurisdiction to review agency action under the APA, and may not exercise jurisdiction under the Tucker Act in circumvention of the specific and comprehensive scheme established by Congress for administrative and judicial review of claims alleging violations of the Randolph-Sheppard Act, this Court is without jurisdiction to hear plaintiffs' claims or grant plaintiffs' requested preliminary injunction pending the outcome of the arbitration panel's decision.”. Good discussion of Randolph-Sheppard issues, standing and the courts jurisdiction.

HAROLD ROBERT PILLEY, pro se v. THE UNITED STATES, COFC No. 05-382C, November 30, 2006. Plaintiff seeks damages for patent infringement under 28 USC 1498. The parties agree that the patented items were conceived prior to the contract of interest, which contained the patent clause at FAR 52.227-11. The government moves for summary judgment arguing that the contract “gives the government a license to practice the patented invention because the invention was first actually reduced to practice under the contract.” Judge Damich finds for the government and rejects plaintiffs' argument that the prior filing of the patent application was a constructive reduction to practice which would defeat the governments' argument. Judge Damich also finds that plaintiff did not show that a demonstration of the patent prior to award of the contract constituted a reduction to practice.

TRAVELERS CASUALTY AND SURETY OF AMERICA, v. THE UNITED STATES, COFC No. 02-584C & 03-1548C, November 22, 2006. Department of Agriculture contract. Claims involve alleged constructive changes and breach of implied warranty of plans and specification brought on behalf of a subcontractor. Judge Wolski denies one claim finding that the contract contained a patent ambiguity and that plaintiff failed to satisfy its duty to inquire. He allows the other claim finding that the work done by plaintiff was covered by the implied warranty that specifications are free from design defects and the governments's order was a constructive change. Good discussion of contract interpretation issues.

DATA MONITOR SYSTEMS, INC., v. THE UNITED STATES, and T SQUARE LOGISTICS CORP., INC., Defendant-Intervenor. COFC 06-471C, November 20, 2006. Bid protest, Air Force contract. “Plaintiff, Data Monitor Systems, Inc. (‘DMS'), was the successful bidder on a contract initially awarded by the United States Air Force on December 1, 2005, to perform base operation support services at Grissom Air Reserve Base in Indiana. Following a protest filed by T Square Logistics Corporation (‘T Square'), the defendant-intervenor here, the Air Force conducted a proposal reevaluation which resulted in a reconfirmation of the award to plaintiff. T Square again protested. Thereafter, the Air Force announced its intention to terminate the contract awarded to plaintiff and to resolicit its requirements under a new procurement. Plaintiff in turn filed suit in this court seeking, inter alia, injunctive relief from the proposed contract termination and resolicitation.” Judge Wiese grants the government's motion to dismiss finding that the “court does not have jurisdiction under 28 U.S.C. § 1491(b) to enjoin the termination of a contract, and will not enjoin a resolicitation where the protestor has failed to point to any violation of a specific statute or regulation and has failed to demonstrate that the agency's decision to resolicit was arbitrary.”

GALEN MEDICAL ASSOCIATES, INC. v. THE UNITED STATES and CRASSOCIATES, INC., Intervenor, COFC No. 05-755C, November 20, 2006. Post-award bid protest, VA contract. On December 28, 2004, plaintiff, a Mississippi corporation, was involuntarily administratively dissolved under provisions of the Mississippi Code. The contract at issue was awarded on January 18, 2005. Plaintiff filed this action on July 15, 2005 and on May 3, 2006, plaintiff obtained reinstatement under the Mississippi Code. Judge Merow dismisses the suit finding that plaintiff lacks Article III standing. Judge Merow notes “Galen was not in a status where it could contract on January 18, 2005, to provide the services sought by the VA. If it could not contract, it was not then an ‘interested party' eligible to protest the award to another. Galen cannot show that it was prejudiced by the award of the contract to CRA. Thus, Galen lacks standing to litigate over the award to CRA and the Complaint must be dismissed.”

TEXTRON, INC., v. THE UNITED STATES, and MANITOWOC MARINE GROUP/MARINETTE MARINE CORPORATION, Intervenor, COFC Nos. 06-517C & 06-523C, November 17, 2006. Post-award bid protest. USCG phase II contract, a negotiated best-value selection, for the design and construction of the Response Boat-Medium (the “RB-M”),a major multi-year procurement for the USCG. In an 82 page opinion, Judge Miller finds for the government and intervenor on the administrative record. Good discussion of the standing issues. Judge Miller also notes that because this was a best-value procurement “the protestor's burden of proving that the award was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law is greater than in other types of bid protests.” (citations omitted)

KAEPER MACHINE INCORPORATED vc. THE UNITED STATES, COFC No. 05-183C, November 16, 2006. Defense Supply Center purchase order for armored housings. Plaintiff did not deliver articles by the delivery date. The government informed plaintiff that the PO had lapsed and that no delivery would be accepted. Plaintiff seeks reimbursement for costs arguing that the government failed to obtain plaintiff's acceptance of the cancellation or process the cancellation as a termination for convenience. Plaintiff also argues that the government should be stopped from denying the existence of the contract. Judge Firestone finds for the government agreeing that the PO lapsed when delivery was not made by the delivery date. The court also denies the estoppel argument as there was no “affirmative misconduct“ by the government which prevented performance by plaintiff.

OTI AMERICA, INC. v. THE UNITED STATES, COFC No. 06-571C, November 08, 2006. Deselection bid protest, GPO procurement. The last, or at least the latest, in this series of protests arising from the development of electronic passports. Judge Lettow finds for the government on the administrative record noting that even if the government did not conduct one mandatory test, plaintiff was not prejudiced as it products failed other tests. Judge Lettow notes that even though the CO may not have read the detailed standards which governed the testing by government experts, there was no showing that she abused her discretion in relying upon the reports by the technical experts.

Northrop Grumman Information Technology, Inc., v. United States of America, and Lockheed Martin Services, Inc., Intervenor., COFC No. 06-607C, November 07, 2006. Decision on Lockheed's motion to intervene, for the limited purpose of protecting its trade secrets and other proprietary information, in this protest of a Corps of Engineers A-76 procurement. Lockheed had been selected by the Corps to assist the MEO in preparing the Agency Tender for the A-76 competition. Judge Block allows the intervention concluding that “Lockheed has demonstrated that it has an interest in this action, that the ability to protect that interest may be impaired by the disposition of the Court, and that its interest is not adequately protected by the existing parties.” Good discussion of the “three requirements of Rule 24(a)(2): (1) an interest subject to the action; (2) that the ability to protect the interest as a practical matter may be impaired; and (3) the interest is not adequately represented by the existing parties.”

CALIFORNIA OREGON BROADCASTING, INC. v. THE UNITED STATES, COFC No. 06-116C, November 06, 2006. Plaintiff leased property that was subsequently acquired by the National Park Service (NPS). The lease contained a provision that stated, in part, “Option. At the expiration of the term hereof, Lessee shall have the first right, privilege and option to renew this Lease for a period of fifty (50) years at a rental to be fixed by agreement between said parties and/or their successors in interest...” Plaintiff notified NPS that it intended to renew the lease for an additional 50 years. NPS responded that the terms “first right“ meant that plaintiff only had a right of first refusal and that NPS would lease the property to plaintiff or others. Plaintiff sues for NPS's beach of the lease and $1 million dollars in damages. Judge Firestone holds for the plaintiff following state law in interpreting the lease and federal law for the damages issue. She finds that the plain language of the lease indicated an option, not a right of first refusal. She also rejects the government's arguments that the damages were not speculative or unforeseeable.

INFORMATION INTERNATIONAL ASSOCIATES, INC. v. THE UNITED STATES, COFC No. 04-1489C, October 31, 2006. Air Force contract. Unilateral mistake issue. Judge Braden allows reformation of the contract for a unilateral mistake finding that the government should have known of the mistake. Judge Braden also dismisses two affirmative defenses of contributory negligence and assumption of risk for lack of subject matter jurisdiction.

DEMARCO DURZO DEVELOPMENT CO. v. THE UNITED STATES, COFC No. 03-226C, October 31, 2006. GSA office space lease. Judge Braden grants the government's request for reconsideration. The opinion discusses in detail “the proposition that when computing a time period relative to an act, the general rule'at least as applied to the interpretation of contracts and statutes'is that the date of the act is not to be included.”

NEBRASKA PUBLIC POWER DISTRICT v. THE UNITED STATES, COFC No. 01-116C, October 31, 2006. SNF case. Judge Allegra allows the government to collaterally attack a writ of mandamus issued by the DC Circuit Court of Appeals. A very interesting decision. Judge Allegra concludes “... the D.C. Circuit's mandamus order in Northern States I [Northern States Power Co. v. Department of Energy, 128 F.3d 754 (D.C. Cir. 1997)] is void and does not preclude defendant from arguing herein, inter alia, that it did not breach the Standard Contract based upon the unavoidable delays clause therein.”

AUTOMATION TECHNOLOGIES, INC., Plaintiff, v. UNITED STATES, Defendant, and DIGITAL TECHNOLOGIES, INC., Defendant-Intervenor., COFC No. 06-694C, October 27, 2006. Post-award bid protest, Customs Service contracts. After an extended series of protests at the GAO, and the COFC, both plaintiff and intervenor were both awarded IDIQ contracts for computer maintenance services. Judge Horn now dismisses the protest finding that plaintiff does not have standing as an interested party and that if deemed a protest against future task orders, it is prohibited by the FASA provision barring protests of task orders on multiple award contracts.

REILLY'S WHOLESALE PRODUCE, Plaintiff, v. THE UNITED STATES, Defendant, FOUR SEASONS PRODUCE, INC., Defendant-Intervenor, COFC no. 06-668C, Reissued October 26, 2006. Stay override enjoined. Judge Allegra enjoins the government and intervenor from proceeding with an interim contract to provide produce to commissaries finding that the governments' decision was arbitrary. Good discussion of stay issues. Judge Allegra also requires plaintiff to give $100,000 in security.

INVERSA, S.A. and ASSEMBLY OF TORRE MIRAMAR CONDOMINIUM v. THE UNITED STATES, COFC No. 01-220C, October 23, 2006. Department of State office space lease case. Plaintiff claims Prompt Payment Act(PPA) interest on lease payments for office space. The government denies any liability as it claims it terminated that portion of the lease. Judge Baskir holds that “because the Government denied its liability for the rent at the time it was due, the rental payment was in dispute and the PPA does not apply.” Good discussion on scope of PPA and relationship to CDA.

ALION SCIENCE AND TECHNOLOGY * CORPORATION, v. UNITED STATES OF AMERICA, and ADVANCED ENGINEERING & SCIENCES, a division of ITT CORPORATION, Intervenor, COFC No. 06-682C, Reissued October 23, 2006. The latest in Alion COI challenges to the award by DISA to operate Agency's Joint Spectrum Center, Judge Hodges denies Alion's request for a TRO to prevent DISA from proceeding with the award to ITT. Judge Hodges states that he “did not believe Alion has a substantial likelihood of succeeding on the merits.” and that “Plaintiff also did not show that it would suffer irreparable harm absent injunction, that the balance of hardships tilted in its favor, or that injunction would serve the public interest.”

DAEWOO ENGINEERING AND CONSTRUCTION CO., LTD. v. THE UNITED STATES, COFC No. 02-1914C, October 13, 2006. Corps of Engineers road construction contract in the Republic of Palau. In a quite scathing 85 page opinion, Judge Hodges denies plaintiff's claims and enters “judgment for defendant on its counterclaims pursuant to the Contract Disputes Act, the Special Plea in Fraud, and the False Claims Act” Judge Hodges concludes, in part, that “Daewoo violated the False Claims Act by knowingly submitting false or fraudulent claims; it violated the Contract Disputes Act through its submission of false or fraudulent claims with an intent to deceive or mislead the government; and it attempted to practice fraud against the United States ‘in the proof, statement, establishment, or allowance' of its claims. 28 U.S.C. § 2514. These findings are supported by testimony of plaintiff's witnesses and other evidence produced by plaintiff and defendant. Plaintiff's claim to the contracting officer and its complaint in this court sought a ‘total monetary damage claim' of $64 million, an amount that Daewoo's own witnesses, experts, and attorneys abandoned before the trial was over.”

THE SWEETWATER, A WILDERNESS LODGE LLC v. THE UNITED STATES, COFC 02-1795C, Reissued October 06, 2006. Plaintiff sues for the breach by the Forest Service of Term Special Use Permit which was issued for maintaining and operating a public resort. Judge Merow finds that the actions by the Forest Service in closing bridges, which were the access to the site in issue, was a termination by the government and plaintiff was entitled to damages. Judge Merow also held that the compensation due plaintiff would not include interest as he CDA did not apply because the Term Special Use Permit was not for the “direct benefit or use of the Federal Government.”

NOVA CASUALTY COMPANY v. THE UNITED STATES, COFC No. 04-1665C, October 05, 2006. Plaintiff, as surety, issued performance and payment bonds for the prime's (Eagle) contract with the Coast Guard. Prior to notice to the government that the prime was not paying its subcontractors, the Coast Guard finance office made a progress payment to the prime even thought the contracting officer had directed the finance office to withhold payment. Plaintiff made payments under its payment bond to the subs and now makes claims on the contract balance that should have been retained. Judge Lettow rejects the governments' argument that the failure to give notice is fatal to plaintiffs' claim. Judge Lettow notes that “The government is correct that Nova assumed the risk inherent in the discretionary retainage provision of FAR § 52.232-5(e), but Nova did not assume the risk that the Coast Guard would pay Eagle without the Contracting Officer's approval, in contravention of FAR § 52.232-5(b).“

YANKEE ATOMIC ELECTRIC COMPANY v. THE UNITED STATES, COFC No. 98-126C, Reissued October 4, 2006. [Court's digest-Damages for breach of Standard Contract for disposal of spent nuclear fuel and high-level radioactive waste; mitigation; incurred costs for partial breach of contract; foreseeability; substantial causal factor; commercial reasonableness; reasonable certainty; amended and supplemental pleadings; takings; election of remedies; administrative dispute remedy; future offsets; use of expert demonstrative evidence.] In a 103 page opinion, Judge Merow awards some $141 million in damages in this SNF case.

DIE CASTERS INTERNATIONAL, INC. v. THE UNITED STATES, COFC No. 04-1113C, September 28, 2006. United States Defense Nuclear Agency cost-sharing contract. Plaintiff submits various claims for the government's breach of the limitation of cost clause by failing to “negotiate an equitable distribution of all property produced or purchased under the contract, based upon the share of costs incurred by each.” Judge Braden rejects all of the claims finding,for the most part, that plaintiff has failed to prove that its damages were a result of the breach. Judge Braden reviews the facts in light of the proposition that “An injured party, however, can only recover damages, where the breach was ‘(1) reasonably foreseeable by the breaching party at the time of contracting; (2) the breach is a substantial causal factor in the damages; and (3) the damages are shown with reasonable certainty.'” (citations omitted)

SECURENET CO. LTD v. THE UNITED STATES, COFC No. 06-564C, Reissued September 27, 2006. Post-award bid protest, Army requirements contract for security services throughout the Korean Peninsula. Plaintiff claims that the government did not adhere to the solicitation requirements by accepting an offer not in compliance with Korean labor law. Judge Bruggink grants the motion by the government for judgment on the administrative record noting that “the type of contract establishes a critical framework for our review of the ... evaluation and award decision.”

MAGIC BRITE JANITORIAL v. THE UNITED STATES, COFC No. 05-1380C, Reissued September 25, 2006. Post-award bid protest. Plaintiff challenges the failure of the government to exercise an option for another year of performance after GSA, instead, awarded a contract to a NISH-approved nonprofit agency under the provisions of the Javits-Wagner-O'Day Act (“JWOD”) Judge Wolski discusses the JWOD provisions and denies the government's motion to dismiss for lack of standing. However, Judge Wolski does grant the government motion for judgment on the administrative record finding that the decision to award was not arbitrary or unlawful.

MICRODYNE OUTSOURCING, INC., a subsidiary of L-3 COMMUNICATIONS CORPORATION v. THE UNITED STATES and DATATRAC INFORMATION SERVICES, INC. and LOCKHEED MARTIN ASPEN SYSTEMS CORP.,intervenors, COFC No. 06-498C, Reissued September 25, 2006. Post-award bid protest, United States Citizenship and Immigration Services. Plaintiff alleges that awards to Aspen and Datatrac were arbitrary and capricious and that the USCIS clearly and prejudicially violated applicable procurement law and regulations. Judge Hodges finds for the government and intervenors on the administrative record noting that “Many of plaintiff's arguments concerned what the law considers the ‘minutiae' of the process into which reviewing courts have no authority to interfere.”

AUTOMATION TECHNOLOGIES, INC., Plaintiff, v. UNITED STATES, Defendant, and DIGITAL TECHNOLOGIES, INC., Defendant-Intervenor, COFC No. 06-599C, September 21, 2006. United States Customs and Border Protection (Customs) agency procurement. Plaintiff challenges the override of the automatic stay which was issued by Customs as in the best interests of the government. Custom's D&F relied on the approximately $103,000 month savings by proceeding with the contract. Judge Horn sets aside the override and reinstates the stay. Judge Horn concludes “As indicated by review of cases decided for and against an override, override cases are fact specific. In the present case, the court concludes that while cost savings may be sufficient to support an override in the proper case, this is not that case. Moreover, an agency's discretion is not unfettered, but constrained by a consideration of relevant factors, including the ramifications of an agency loss in the GAO protest, and the impact of an override on the competition in contracting and bid protest processes, as well as respect for the GAO, an important component in the statutory structure of how to address protests to government procurement actions. The ability to extend a contract, or, in this case, to add task orders to a contract, without difficulty, through December, 2006, in order to perform the critical computer maintenance work, is another important factor, coupled with the fact that both the plaintiff and the intervenor have performed this work in the past. Reviewing the rationale in the agency's D&F, and weighing the above factors, the court has concluded that, given the record before the court, the agency override was unreasonable.”

PRECISION PINE & TIMBER, INC. v. THE UNITED STATES, COFC No. 98-720C, September 19, 2006. Another in a line of Forest Service timber sales cases where the contract was suspended while the Forest Service complied with NEPA conditions. Here, Judge Miller concludes-“At the time of contracting, lost lumber profits were a foreseeable result of defendant's simultaneous and prolonged suspensions of all timber sale contracts in Region Three. The manufacture and sale of lumber from the timber harvested on the contracts at issue did not constitute independent and collateral undertakings, and plaintiff is not precluded from recovering lost profits damages on that basis. Furthermore, plaintiff is not precluded from recovering lost profits damages because it elected to assert a claim for partial breach and continue the timber sale contracts at issue, rather than treating the contracts as ended and asserting a claim for total breach. It is not possible for the Court to determine at this time whether Precision Pine should be required to offset the profits that it earned by partially harvesting the suspended sales after the suspensions were lifted, because neither party has fully addressed the proper standard for determining whether plaintiff is entitled to be compensated as a lost volume seller.”

INFORMATION SCIENCES CORP. v. THE UNITED STATES and GALLAGHER, HUDSON, HUDSON & HUNSBERGER, INC. (d/b/a Development InfoStructure or DEVIS),Intervenor, COFC No. 05-1342C, September 19, 2006. Post-award bid protest. GSA contract to procure a new FedBizOpps.gov system. In an 83 page opinion Judge Braden sets aside the award finding that the government failed to consider price in the competitive range determination and that the administrative record does not show that the the Source Selection Authority(SSA) exercised “independent judgment” in selecting Symplicity for award. Judge Braden concludes by stating “If the General Services Administration would like to proceed with this procurement, it is hereby ordered to appoint a new Source Selection Authority to review the Proposals received in response to Request for Proposals No. TQN-04- RA-0001, pursuant to the Solicitation's terms and conditions and applicable FAR regulations, and to select that offeror for award deemed to represent the best value to the procuring agency.” Opinion also discusses in detail price and price realism issues.

CONOCOPHILLIPS, CONOCO, INC., and PHILLIPS PETROLEUM COMPANY v. THE UNITED STATES, COFC No. 03-1367C, September 12, 2006. DESC fuel supply case. Judgment for the government. [Court's Digest-Contracts: Economic Price Adjustment Clauses: (1) The government's use of the Petroleum Marketing Monthly (“PMM”) as a basis for its economic price adjustments satisfies the legal requirement that economic price adjustment clauses be market based; a PMM-based economic price adjustment clause is thus a legitimate and enforceable contract term. (2) In the absence of any evidence that the parties misapprehended the source data reported by the PMM or the manner in which it would be applied as a reference guide in the adjustment of contract prices, plaintiffs have failed to assert a viable claim for misrepresentation, mistake, failure of consideration, or frustration of purpose. Federal Acquisition Regulation (FAR) § 15.802(b) (currently codified at FAR § 15.402(a)): The directive that a contracting officer purchase supplies and services at prices that are “fair and reasonable” does not create a judicially enforceable right in the contractor. Fifth Amendment Takings: A plaintiff may not pursue a contract-based takings claim where it has available to it a contractual remedy. Equal Protection: An alleged equal protection violation affecting the bidding process, while actionable in this court, may only be remedied through the court's injunctive authority and not through a claim for damages or restitution. Waiver: A plaintiff may not pursue a claim more than seventeen years after the first injury should have come to light.]

J. LEONARD SPODEK, ROSALIND T. SPODEK, and NATIONWIDE POSTAL MANAGEMENT v. THE UNITED STATES, COFC No. 03-1444C, September 08, 2006. United States Postal Service lease case. “Plaintiffs claim that the government breached the terms of the lease agreement by removing and subsequently failing to replace gutters and downspouts on the plaintiffs' building rented by the USPS, thereby causing damage to the plaintiffs' building, and by failing to pay rent for the duration of the contract. ... The government counterclaims based upon the contracting officer's final decision awarding damages as a result of plaintiff's breach of the lease agreement by failing to maintain the building in good repair and tenantable condition.” Judge Horn discusses the Federal Tort Claims Act as it applies to plaintiff's claims of government waste, but concludes that the claims here properly lie in contract. Judge Horn finds that both parties beached the lease agreement, but that it was not reasonable for the government to expect plaintiff to bear the entire cost the government incurred in building a new facility. Judge Horn concludes “that the plaintiffs breached the lease agreement by failing to maintain their premises in good repair and tenantable condition. Based upon the plaintiffs' breach, the defendant is entitled to recover $115,992.00, plus interest, on its counterclaim for costs expended in finding an alternate facility, paying rent on that facility and remodeling as necessary to turn the facility into a secure and functioning 43 post office. The court also finds that the defendant breached the lease agreement by failing to replace the gutters and downspouts, which contributed to the failure of plaintiffs' property. Plaintiffs' recovery on defendant's breach is $15,000.00, plus Contract Disputes Act interest, which represents defendant's portion of the costs necessary to lift the condemnation order.” Opinion conatins detailed discussion of price and price realism issues.

NATIONAL AMERICAN INSURANCE COMPANY v. THE UNITED STATES, COFC No. 04-1390C, September 06, 2006. Plaintiff, “a payment bond surety, claims that it was damaged when, having paid the claims of subcontractors of a government contractor and having notified the United States to make no further payments to the contractor, the United States made a final contract payment directly to the government contractor.” Judge Allegra starts his opinion with the caption “Dictum settles nothing, even in the court that utters it.” Good discussion of caselaw on surety subrogation rights and the government's misplaced reliance on INSURANCE COMPANY OF THE WEST V. US CAFC NO. 00-5039, March 23, 2001. Judge Allegra finds for the plaintiff holding “that when a surety has made payments on a payment bond and satisfied all outstanding claims, it is equitably subrogated to the rights of the primary contractor. In such circumstances, it is beyond peradventure that the Tucker Act grants a waiver of sovereign immunity for this court to entertain the merits of the surety's damage claim.”

NEW VALLEY CORP. v . THE UNITED STATES, COFC No. 94-785C, August 20, 2006. NASA contract for launch services that were not provided after the President restricted such services after the Space Shuttle Challenger disaster. The government challenges the damages decision in the courts earlier decision in this case arguing that “the damages contemplated in the court's earlier opinion constitute consequential damages and lost profits and therefore, based on the language quoted above, are not recoverable under the parties' contract.” Judge Weise disagrees finding that “Direct damages, or what are more often referred to as ‘general damages,' ... are damages measured by the loss of the value of the performance promised by the breaching party. In other words, such damages are ‘based on the value of the very thing to which the plaintiff was entitled . . ., they encompass paper losses or unrealized losses, and . . . they are determined as of a particular date, usually by market measures.' .... Consequential damages (also called ‘special damages'), on the other hand, are those damages that 'result as a secondary consequence of the defendant's non-performance,' ..., they '‘arise from the interposition of an additional cause, without which the act done would have produced no harmful result,' .... Consequential damages are thus distinguishable from general damages in that rather than being based on the value of the promised performance itself, they are based on the value of some consequence that that performance may produce.” (Citations omitted)

LA GLORIA OIL AND GAS COMPANY THE UNITED STATES, COFCB No. 02-465C, August 28, 2006. DESC fuel supply case which was stayed while the Federal Circuit considered similar issues in TESORO HAWAII CORPORATION, TESORO ALASKA COMPANY and HERMES CONSOLIDATED, INC. where the Circuit held that it was legal error for the COFC to limit the use of market based prices. Judge Hewitt grants the government's motion for summary judgment on all issues. Considerable discussion of the scope of the interlocutory appeal in Tesoro, but Judge Hewitt concludes that the Circuit court “had before it sufficient facts and argument to decide any subordinate issues necessary to determining the controlling legal question of whether the PMM was authorized under the FAR when it held ‘that DESC's use of a market-based EPA clause tied to the PMM was authorized under the FAR.'” The court also dismisses for lack of subject matter jurisdiction plaintiff's claims based on DESC's Minority Price Preferences and Small Business Program and that DESC violated various FAR provisions by using a prohibited auction technique.

KSD, INC. v. UNITED STATES, and MCDONNELL DOUGLAS HELICOPTER COMPANY, Defendant-Intervenor, COFC No. 05-1229C, Filed;July 11, 2006, Issued for publication: August 23, 2006. Pre-award bid protest, Army procurement. Appellant, KSD, protests the sole-source award of parts for the Apache helicopter. In this somewhat complicated case involving data rights, alleged violations of CICA and raising some interesting standing issues, including the what actions satisfy compliance with Note 22 in a proposed sole-source procurement, Judge Horn grants the government's motion for judgment on the administrative record.

ASTORIA FEDERAL SAVINGS & LOAN ASSOCIATION v. THE UNITED STATES, COFC No. 95-468C, August 22, 2006. Winstar damages case. Judge Wheeler denies the government's motion for summary judgment because of disputed factual issues. Good brief discussion of claims for Expectancy Damages, Restitution and Reliance Damages.

A&D FIRE PROTECTION, INC. v. THE UNITED STATES and HERNANDEZ CONSTRUCTION CORP., Intervenor, COFC No. 06-467C, August 10, 2006. Post-award bid protest, IDIQ GSA contract. Plaintiff protests the award of a task order for the design and replacement of a firm alarm system for a federal building. Judge Bush dismisses the suit finding that FASA, 41 U.S.C. § 253j(d), bars bid protests of task orders under multiple award contracts as here. Judge Bush also finds that plaintiff does not have standing to bring this action as it did not prove that it delivered a bid bond with its proposal. Judge Bush does note that she is “troubled, however, that the irregularities in the solicitation of this task order are not subject to protests here, at GAO or at GSA. The streamlining of federal procurements allowed by the ban on protests of task order contracts may be abused when the principles of fair competition are subverted. ... The court is not confident that the procedures developed and implemented by GSA for soliciting and awarding this project furthered FASA's goal of balancing efficiency with competition, and simplicity with fairness. ... Similarly, the ‘fair consideration' to be offered to bidders such as A&D appears to have been impaired.”

ENVIRONMENTAL TECTONICS CORPORATION v. THE UNITED STATES, COFC No. 05-746C, July 31, 2006. Navy contract for design and fabrication of two Submarine Decompression Chamber Segments. Judge Braden addresses the government's motion to dismiss one count of the complaint which seeks contract financing costs and claim preparation costs. The opinion discusses the various authorities for claims of financing costs, but notes that in regard to FAR 31.205-10, Cost of Money, for facilities capital cost of money that the court has no jurisdiction as the present amended complaint “...fails to allege a g asset to which Plaintiff has committed assets. Therefore, absent future amendment to the Amended Complaint, the court does not have jurisdiction over that portion of Count Nine seeking the ‘lost value of money.'” Judge Braden grants the motion in regard to the claim preparation costs finding that those costs are barred by FAR 31.205-47(f) and are also not recoverable under plaintiff's restitution theory.

ADVANCED SYSTEMS DEVELOPMENT, INC. v. THE UNITED STATES OF AMERICA, and KENROB IT SOLUTIONS, INC., Intervenor. Filed Under Seal: July 21, 2006, Reissued July 28, 2006. Post-award bid protest, Department of Defense Washington Headquarters Service (WHS) contract. Plaintiff challenges the “best interest” decision by WHS to override the automatic stay of 31 U.S.C. § 3553 while a protest is pending at the GAO. Judge Baskir rules for plaintiff and reinstates the automatic stay. Judge Baskir finds that WHS “has utterly failed” in its best interest reasoning noting that “On its face, the D&F is legally insufficient. It explicitly proclaims that the challenged acquisition should proceed because ‘the current fragmentation of IT support combines high costs with low performance and represents a poor use of federal funds.' In other words, the new contract is cheaper and better than the old contract. The allegation that the new contract is better than the old one in terms of cost or performance is not enough to justify a best interests determination.” Judge Baskir also rejects the government's attempt to supplement the administrative record with additional reasons for lifting the stay, finding that “We have been supplied no authority for the proposition that the override determination can be an evolving document. In effect, the Government has executed the override two weeks before it issued its ‘perfected' Determination and Findings. The text of the statute does not support a reading that the override can precede the statutory justification. It is our conclusion, therefore, that under principles of administrative review, the validity of the WHS Director's override decision must ‘stand or fall on the propriety of that finding.”(citations omitted)

FORT CARSON SUPPORT SERVICES, and THE GINN GROUP, INC., v. THE UNITED STATES, and KIRA, INC., Intervenor, COFC Nos. 05-674C & 05-715C Filed under seal June 19, 2006, Reissued July 26, 2006. Post-award bid protest, Army contract. In a lengthy opinion, Judge Wolski denies the protest, finding that the source selection decision by the Army was not arbitrary and capricious. Regarding an allegation that plaintiff was not given the opportunity to respond to adverse past performance information on a completed contract, Judge Wolski noted “Evidence of the lack of an opportunity to respond to past performance information fits this description, and if [plaintiff] possessed any relevant information on this point, [plaintiff] could have supplemented the record with it -- in the form of a declaration from the relevant [contracting] officer, or the like. Absent such information, [plaintiff] has failed to demonstrate a ‘clear and prejudicial violation' of the regulation in question.”

THE TRAVELERS INDEMNITY COMPANY, SUCCESSOR IN INTEREST BY MERGER TO GULF INSURANCE COMPANY v. THE UNITED STATES, COFC No. 05-1252C, July 26. 2006. Judge Lettow finds that “the government violated its duty as a stakeholder with respect to the $32,718.99 of retainage when it released these funds to the contractor, after accepting performance, despite Travelers' notice that the contractor was in default of his obligations under the payment bond. The court finds that the government accordingly is liable to Travelers for the amount of the retainage, $32,718.99.” Judge Lettow rejects the government's argument that a brief comment in Insurance Company of the West noting that the government would apply this passage in contravention of Supreme Court and Federal Circuit precedent. Judge Lettow, however, denies interest as the award is not under an interest providing statute, such as the CDA.

ROTECH HEALTHCARE INC. v. THE UNITED STATES, COFC No. 06-303 C, July 24, 2006. Pre-award bid protest, Department of Veterans Affairs. Judge Bush permanently enjoins VA from proceeding with the procurement for home oxygen services unless it complies with the requirements of the Small Business Act and the statutory non-manufacturer rule, 15 U.S.C. § 637(a)(17). Judge Bush rejects the government's arguments that the statutory non-manufacturing provisions applies to procurements solely for manufactured products, and not to procurements which include services. Judge Bush “concludes that the statutory non-manufacturer rule does, in fact, apply to contracts for the supply of manufactured items which also require the provision of some services. It follows, then, that the rule applies to the contracts [at issue here]. Accordingly, the VA's decision to award work under those solicitations, without examining each offeror's intent to comply with the rule, was arbitrary and capricious.“ Judge Bush gives little deference to SBA decisions which do not discuss the statutory provisions. Good discussion including NAICS issues.

CHAPMAN LAW FIRM CO. v THE UNITED STATES and GREENLEAF CONSTRUCTION CO., INC., Intervenor, COFC No. 06-473C, July 17, 2006. Judge Wheeler dismisses the suit for lack of subject matter jurisdiction. The opinion holds that plaintiff's arguments concerning the size status of intervenor are precluded both by 28 USC § 1500 and the doctrine of res judicata.

CITY CRESCENT LIMITED PARTNERSHIP v. THE UNITED STATES, COFC 05-580C, July 10, 2006. GSA building lease. The contract contained a tax adjustment clause for increases in real estate tax. After paying a Baltimore Downtown Management District tax for several years, and after negotiating a new lease term, GSA notified plaintiff that the Baltimore city tax was not a general real estate tax covered by the tax clause. GSA said it would not pay future taxes and demanded a refund. Judge Wheeler grants plaintiff's summary judgment motion finding that the plain language of the clause required payment by GSA and that GSA “is bound by its interpretation of the Tax Adjustment clause relied upon by Plaintiff in the negotiation of the 15-year lease renewal.”

BLUEPORT COMPANY, LLP v. THE UNITED STATES, COFC No. 02-1622C, June 29, 2006. Copyright infringement case. Judge Block dismisses the count alleging that the government violated the Digital Millennium Copyright Act of 1998, 17 U.S.C. § 1201 et seq. (“DMCA”). Judge Block agrees with the government that the DMCA does not expressly waive sovereign immunity. Good discussion of sovereign immunity and the standards which must be met to show waiver.

RENDA MARINE, INC. v. THE UNITED STATES, COFC No. 02-306A, June 30, 2006. COE contract. On motion for reconsideration by plaintiff. Judge Hewitt rejects several arguments by appellant that its appeal of a contracting officer's decision should be considered even though plaintiff did not bring an appeal as required by the CDA. Judge finds that there are no exceptions to the requirements of 41 USC 605(b) that a CO's decision is final unless appealed. Judge Hewitt rejects arguments that lack of authority (matter in litigation, Sharman Co. v. United States, 2 F.3d 1564 (Fed. Cir. 1993)), gross mistake or lack of CO independence are exceptions. Good discussion of these issues.

M.A. DeATLEY CONSTRUCTION, INC. v. THE UNITED STATES, COFC No. 04-1052C, June 22, 2006. Federal Highway Administration road construction contract. Differing site conditions claim although plaintiff includes counts for breach of contract, defective specifications, differing site conditions, constructive change, and failure to mitigate. The government moves to “dismiss Plaintiff's claims under RCFC 12(b)(6) arguing, in large part, that [as] ‘the gravamen of DeAtley's complaint is a differing site condition, that is, that the rock from the Government-provided source was unsuitable for its intended purpose, those counts alleging breach of contract (Count 1), defective specifications (Count 2), constructive change (Count 4), and failure to mitigate (Count 5) should be dismissed for failure to state a claim upon which relief can be granted.” Judge Damich disagrees and allows those counts to stand. Good discussion of pleadings allowed in a contract case.

L. TIM WAGNER, LIQUIDATOR OF AMWEST SURETY INSURANCE COMPANY, IN LIQUIDATION v. THE UNITED STATES, COFC No. 03-1418C, June 21, 2006. Plaintiff is the court appointed liquidator of Amwest Surety Insurance Company who had made payments under various performance and payment bonds arising under various United States contracts. Plaintiff is attempting to recover payments Amwest made under the bonds as the payments where allegedly subject to a preference under the Nebraska Insurers Supervision, Rehabilitation, and Liquidation Act. Judge Miller grants the motion to dismiss by the government as to the claims relating to the payment bonds. Judge Miller holds that there was no privity between the government and Amwest in regard to the payment bonds and rejects plaintiff's argument that the US was a third-party beneficiary to the payment bonds. Lacking privity or third-party beneficiary status the court does not have jurisdiction to consider the payment bond claims.

REBECCA RYAN d/b/a FLYAWAY FARM AND KENNELS v. THE UNITED STATES, COFC No. 05-1218C, June 20, 2006. Court dismisses a complaint that requests the court to consider “whether the court has jurisdiction to entertain the [EAJA] application” before the application has been filed. Judge Hewitt finds that plaintiff fails to meet either prong of the ripeness test—“(1) ‘the fitness of the issue for judicial decision,' and (2) ‘the hardship to the parties of withholding court consideration.”

AEROPLATE CORPORATION v. THE UNITED STATES, COFC No. 05-736C, June 14, 2006. Post-award bid protest, Air National Guard contract. The government argues that plaintiff should be prevented from pursuing its action because plaintiff has “unclean hands.” Judge Miller denies the government's motion and converts the previously issued temporary injunction to a permanent injunction. Judge Miller notes that the conduct of which the government complains was not attributable to plaintiff. Furthermore, while noting that she “has long admired the ardent advocacy of defendant's counsel,” Judge Miller chastises the government for its delay in presenting evidence of the unclean hands charge.

FAYE ZHENGXING v. THE UNITED STATES, COFC Nos. 04-0119C & 05-532C, June 9, 2006. Plaintiff's claims some $100 million in damages including claims for “legal fraud (falsifying a Supreme Court ruling), attempted murder, mail theft, bribery, document fraud, illegal search and seizure, property damage, illegal surveillance, threats on her life, hit-and-run, vehicle plate theft, medical records fraud, medical benefit deprivation, and ordering police not to protect her.” Judge Williams dismisses, finding that a BPA is not a contract and the court does not have jurisdiction of the non-contract claims.

CHAPMAN LAW FIRM CO. AND GREENLEAF CONSTRUCTION CO., INC. v. THE UNITED STATES and MICHAELSON, CONNOR & BOUL, INC., Intervenor, COFC No. 06-330C, June 7, 2006. Bid protest, HUD procurement. Another decision in this continuing saga. Judge Wheeler denies the government's motion to dismiss finding that “HUD's proposed corrective action of reopening discussions and requesting an updated proposal from only one offeror lacks a rational basis and is contrary to law.”

ATWOOD-LEISMAN, et al. v. THE UNITED STATES, COFC No. 98-815C, June 5, 2006. Plaintiffs entered into mortgage contracts with the Farmer's Home Administration (“FmHA”),which contained a provision that allowed the property owners to prepay their loans at any time and convert their property to market rents. Subsequent legislation restrained the prepayment and when payment was tendered the FmHA refused to accept the payments. Judge Lettow finds that the “refusal to accept plaintiffs' tender of prepayment constituted breaches of FmHA contracts, and plaintiffs are entitled to judgment as a matter of law on the issue of liability.” The decision also discusses the plaintiff's collateral estoppel defense, but does not decide that issue.

TELENOR SATELLITE SERVICES, INC. v. THE UNITED STATES, COFC No. 05-528C, June 2, 2006. Appellant sues for a breach of an alleged bailment contract with the State Department in this non CDA case. The government argues that the government employees involved had no authority to bind the government. On cross motions for summary judgment on the authority issue, Judge Baskir decides for the plaintiff finding that the agreement was ratified by an official who had implied authority to enter into the agreement. Good discussion of implied authority to contract and the elements of ratification.

CENTERS v. THE UNITED STATES, COFC No. 05-591C, June 1, 2006. Plaintiff sues on a claim as an assignee of a a claim originally belonging to a party that had a contract of insurance with HUD. Judge Baskir grants the government's motion to dismiss for lack of jurisdiction as plaintiff was not in privity with the government. Good discussion of cases dealing with assignments.

COMPREHENSIVE HEALTH SERVICES, INC. v. THE UNITED STATES, and WYLE LABORATORIES, INC., Intervenor. COFC No. 05-1186C, May 31, 2006. Post-award bid protest, NASA contract. Judge Braden presents a primer on challenges to a best value procurement. Judge Braden allows the government to supplement the administrative record with declarations, but denies all of the claims of the plaintiff.

FIFTH THIRD BANK v. THE UNITED STATES, COFC No. 95-503C, May 26, 2006. Winstar case. Damages decision after remand from the Federal Circuit for trial on damages. Judge Miller awards $76,523,000 in expectancy damages after finding that appellant satisfied three conditions for most of its claims—“First, the damages must have been reasonably foreseeable at the time the parties created the contract. Second, the damages would not have occurred ‘but for' the breach. Third, ‘the measure of damages must be reasonably certain, although if ‘a reasonable probability of damage can be clearly established, uncertainty as to the amount will not preclude recovery.'” (citations omitted}

PACIFIC GAS & ELECTRIC COMPANY v. THE UNITED STATES, COFC No. 04-74C, E-Filed: April, 25, 2006. Spent nuclear fuel case. Interesting case discussing restitution and takings claims. Judge Hewitt grants the government's motion on the restitution claim finding that Indiana Michigan Power Co. v. United States, 422 F.3d 1369, 1374 (Fed. Cir. 2005). is persuasive and “declines to stray from the Federal Circuit's reasoned guidance and allow at this time a claim to proceed that requires termination of the contract and an action for total breach.” Except with respect to claim for storage of GTCC waste, which court finds to be unripe, Judge Hewitt also grants the government's motion on the takings claim following COMMONWEALTH EDISON CO. v. US, COFC No. 98-612C, June 10, 2003.

RIG MASTERS, INC. v. THE UNITED STATES, COFC No. 05-1277C, April 14, 2006. Post-award bid protest, Corps of Engineers contract. Judge Hodges grants the government's motion for judgment on the administrative record. The solicitation stated that award would be made without discussions on a best value basis. The court found that the selection of the awardee was “not arbitrary or capricious, and plaintiff has not identified a single violation of law or procedure by the Corps.” The court rejected the argument by plaintiff that a best value selection required that discussions be held with plaintiff.Judge Hodges also denied the request by plaintiff to supplement the administrative record finding that “The record contains detailed explanations of the bases for the evaluators decisions.”

INTERNATIONAL DATA PRODUCTS CORP. v. THE UNITED STATES, COFC Nos. 01-459C, 03-2515C, April 10, 2006. The Air Force was required to terminate this Desktop V IDIQ contract for convenience when plaintiff, an 8(a) firm, informed the government that it was being sold to a large business. The contract had a $100,000 minimum and the AF had ordered some $35 Million dollars worth of goods and services at the time of termination. Plaintiff claims it should be compensated for various termination and warranty costs. See earlier opinion. Judge Miller concludes “IDP did not provide the post-termination warranty and upgrade services pursuant to an express or implied-in-fact contract and therefore there is no basis for IDP's claim for expectation damages. Similarly, there is no basis for IDP to recover under a theory of constructive change, equitable adjustment or cardinal change because at the time the Government terminated the contract and directed that plaintiff perform the post-termination warranty and upgrade services, the Desktop V contract had been fully terminated as a matter of law. Thus, as IDP has argued, no contract existed between plaintiff and the Government at the time IDP performed the post termination warranty work. Finally, plaintiff's claim for recovery in quantum meruit is based upon an alleged contract implied in law - a claim over which this Court lacks jurisdiction. In summary, IDP has failed to identify any legal theory entitling it to damages in this Court. Accordingly, the Court directs the Clerk to enter judgment in favor of defendant.”

SACRAMENTO MUNICIPAL UTILITY DISTRICT v.THE UNITED STATES, COFC No. 98-488C, March 31, 2006. Spent nuclear fuels case. In this factually complicated case, Judge Braden “determined that the Government's January 31, 1998 partial breach of the June 14, 1983 Standard Contract entitles [plaintiff] to mitigation damages, but only for certain costs incurred from May 15, 1997 to December 31, 2003.” Discussion of Reasonable Foreseeability, Substantial Causal Factors and Reasonable Certainty Issues.

ACE CONSTRUCTORS, INC. v.THE UNITED STATES, COFC No. 04-299C, March 31, 2006. COE contract to construct the Ammo Hot-Load Facility at Biggs Army Airfield, Fort Bliss, El Paso, TX, which was essentially a paving undertaking. Changed site conditions and defective specifications case. Judge Lettow grants most of plaintiff's claims, including the remitting of liquidated damages, and awards $1,383,009.97 plus interest and costs. Good discussion of differing site condition and defective specification issues.

LOCKHEED MARTIN CORPORATION v. THE UNITED STATES, COFC No. 00-129C, March 29, 2006. Judge Allegra holds that under the CDA a plaintiff may not raise, as an offset, a matter which was not submitted to the contracting officer for a decision.

ENGINEERED DEMOLITION, INC. v, THE UNITED STATES, COFC No. 03-2231C, March 28, 2006. Corps of Engineers contract. Plaintiff claims breach damages arising from a government estimate that was allegedly negligently prepared where the amount excavated was only 6600 cubic yards rather that the 8080 cubic yards indicated in the solicitation. Judge Lettow rejects the government's summary judgment argument that it should not be held liable unless the estimate was “drastically inaccurate.” Judge Lettow notes “The central issue in this case, however, is not the extent to which the government's estimate was inaccurate, but rather whether the government was negligent or failed to act in good faith when it responded to Engineered Demolition's inquiry about the quantity that was to be used as a basis for an offer, i.e., 8,080 rather than 6,600 cubic yards.”

FRANCISCO JAVIER RIVERA AGREDANO and ALFONSO CALDERON LEON v. THE UNITED STATES, COFC No. 05-608C, March 27. 2006. Plaintiff Rivera purchased a vehicle “as is” at auction following a Customs Service Federal Forfeiture Sale. Plaintiff and his passenger. co-plaintiff Calderon, spent a year in a Mexico prison following the discovery that the vehicle contained 17 kilograms of marijuana hidden in the upholstery. Plaintiff alleges breach of contract arguing that the government failed to conduct a thorough search of the car prior to its sale. Judge Hewitt denies government's motions to dismiss for lack of subject matter jurisdiction and for summary judgment as to the existence of any implied-in-fact warranty, breach of implied covenant of good faith and fair dealing, and available damages. The court does grants the government's motion for for summary judgment as to plaintiff Calderon's third-party claims. Judge Hewitt rejects the Am-Pro argument by the government that it did not breach the implied covenant of good faith and fair dealing because it did not “specifically intend to injure” plaintiffs or harbor ”actual malice” toward them. Judge Hewitt, citing Centex Corp. v. United States, 395 F.3d 1283, notes that “In order to show a breach of the covenant of good faith and fair dealing, the plaintiff need not provide evidence to show that the government acted in bad faith.”

UNITED ENTERPRISE & ASSOCIATES v. THE UNITED STATES, COFC No. 05-607C, March 21, 2006. Post-award bid protest, Corporation for National and Community Service (CNCS) sole source 8(a) contract. Plaintiff challenges the finding by CNCS that it was not responsible and alleges include bad faith by procurement officials and undue pressure on SBA to not issue a COC. Judge Hewitt denies plaintiff's motion for judgment and grants the motion by the government for judgment on the administrative record. Judge Hewitt rejects the attempts by plaintiff to supplement the administrative record and finds that the actions of the government were not arbitrary and capricious and were reasonable. A very good and extended discussion by Judge Hewitt about whether referral to the SBA for issuance of a COC is required by the applicable statutes or regulations in the context of a sole source 8(a) Program procurement.

AVTEL SERVICES, INC., v. UNITED STATES, and KING AEROSPACE, INC., Intervenor, COFC Nos. 04-1574C, 05-582C (Filed: December 22, 2005) Reissued for Publication March 17, 2006. Pre-award and post-award bid protests of an Army contract to provide maintenance and logistical support for aircraft. Plaintiff, the incumbent, alleges that King, the awardee, should be disqualified from receiving the award as it obtained information regarding plaintiff's contract that was proprietary and in violation of the Procurement Integrity Act. Plaintiff also alleges that the Army acted in bad faith, was biased against plaintiff and improperly evaluated its proposal. In a 71 page opinion, Judge Horn denies the bid protest and request for injunctive relief and grant's the motion of the government for judgment on the administrative record. Judge Horn finds that the information alleged to be proprietary was either in the public domain or not prejudicial to plaintiff. The opinion follows Am-Pro Protective Agency, Inc. v. United States for the proposition that there is a high burden of proof for an allegation of bad faith by a government official. Plaintiff also contended “that the placement of [a government employee' Naval Postgraduate] thesis in the public domain constituted a breach of the government's implied covenant of good faith and fair dealing.” as it disclosed sensitive information. Judge Horn disposed of this issue as follows-“There is no evidence that the release decision on the thesis was motivated by malice or ill will against Avtel. ... However, regardless of the wisdom or appropriateness of the publication of the thesis, a distinction must be made between the publication of a Master's level thesis by the Naval Postgraduate School and Ms. Maples, and malice toward Avtel. The latter is required for plaintiff to make out a case for the breach of good faith and fair dealing. The record does not reflect the requisite malice or specific intent to injure.”

PACIFIC GAS & ELECTRIC COMPANY v. THE UNITED STATES, COFC No. 04-74C, E-Filed: March 14, 2006. SNF case, discovery, deliberative process privilege issues. Judge Hewitt grants the motion by plaintiff to compel the production of documents. Good discussion of the deliberative process privilege, including discussion of the recent Federal Circuit case of Marriott International Resorts, L.P., And Marriott International JBS CORPORATION. The opinion discusses three issues: 1. Whether the Invocation of the Deliberative Process Privilege was Properly Made by an Appropriate Official; 2. Whether the Invocation of the Deliberative Process Privilege was Made for Sufficiently “Precise and Certain Reasons”; and 3. Whether Defendant Timely Asserted its Bases for Invocation of the Deliberative Process Privilege.

CIGNA GOVERNMENT SERVICES, LLC v. THE UNITED STATES and NORIDIAN ADMINISTRATIVE SERVICES, LLC, Intervenor, COFC No. 06-108C, March 10, 2006, (Filed Under Seal: March 03, 2006.) Post-award bid protest, HHS contract. Plaintiff challenges the decision to override the automatic stay while a protest is pending at the GAO. Judge Williams finds that “Because the override decision contradicts evidence of record regarding the impact of delay, fails to consider relevant factors or to explain its conclusion and is not supported by the AR, the Court declares the override decision invalid and sets it aside, thereby reinstating the stay in Cigna's GAO protest.”

LUMBERMENS MUTUAL CASUALTY v. THE UNITED STATES, COFC No. 04-1255C, March 03, 2006. Judge Hodges grants plaintiff's motion for sanctions and orders that “The Government may not issue further subpoenas or conduct additional discovery without prior notice to all other parties.” However, Judge Hodges denies the request for monetary sanctions at this time.

Liberty Mutual Insurance Co. v. THE UNITED STATES, COFC No. 04-254C, February 27, 2006. Equitable subrogation case arising from the payment by the surety, plaintiff, on payment bonds of a subsidiary of ENRON that declared bankruptcy and was defaulted by the government. In a learned opinion dismiss Judge Block denies the motion of the government to dismiss for lack of jurisdiction. Very good discussion of case law and history of equitable subrogation.

SYSTEMS PLUS, INC. v. THE UNITED STATES and NETSTAR-1, INC., an Intervenor, COFC No. 05-1219C, (Filed Under Seal: February 22, 2006) (Reissued: February 28, 2006). Post-award bid protest, DOL contract. After this action was filed the CO, without notice to plaintiff, disqualified plaintiff from participating in any resolicitation that might be ordered by the court. The CO took this action on the basis of an appearance of impropriety. Judge Lettow rejects the arguments of the government and intervenor that the purported disqualification deprived plaintiff of standing to pursue this protest. While Judge Lettow finds for government on the merits of protest, he vacates and sets aside the determination by the CO to disqualify plaintiff for three reasons. First, finding that the action of the CO fell “within the category of informal agency adjudication” and the failure of the CO to notify plaintiff and allow its participation in the determination “contravened ‘the minimal requirements' for informal adjudication set forth in Section 555 of the APA.” Second, the Contracting Officer also lacked a rational basis for her decision.The decision notes “some facts material to the Contracting Officer's decision were demonstrably erroneous and other aspects of her decision have no basis apart from speculation and innuendo.” Finally, “the actions of the Contracting Officer constituted a post hoc endeavor to remove or elide this court's jurisdiction to hear this case.”

PRECISION STANDARD, INC. v. THE UNITED STATES and HAWK ENTERPRISES, LLC, Intervenor, COFC No. 05-1125C, February 27, 2006. Post-award bid protest, Army Aviation and Missile Command contract. Judge Hewitt finds for the government and intervenor on the administrative record. Good discussion of reasons for allowing supplementation of the administrative record. The court finds that the lack of negative evidence from the local DCMA office's search of the Mechanization of Contract Administrative Services (MOCAS) Database and the Consolidated List of Debarred, Suspended, and Ineligible contractors was sufficient for the CO to find awardee responsible.

RISC MANAGEMENT JOINT VENTURE v. THE UNITED STATES and VALLEY GARBAGE & RUBBISH CO., INC. d/b/a HEALTH SANITATION SERVICE, INC., intervenor, COFC No. 05-488C, Reissued February 24, 2006 (Filed Under Seal: February 17, 2006). Post-award bid protest, Air Force contract for solid waste management services. Judge Lettow grants the government's motion on the administrative record finding that plaintiff had failed to adequately provide past performance information on one of its proposed subcontractors and that even though the CO had a lack of knowledge and understanding of certain aspects of the procurement, her best value decision was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

ARMOUR OF AMERICA v. THE UNITED STATES, COFC No. 04-1731C, February 14, 2006. Navy contract-termination for default. Plaintiff's proposal did not comply with a material element of the RFP, but it was awarded the contract which also required compliance with the same material element. The contract was terminated for default when plaintiff could not meet that requirement. The COFC dismisses several counts of the complaint because plaintiff never submitted its claims to the CO for a decision. Judge Damich also dismisses Count III to “recover damages pursuant to FAR ¶ 14.301(a) based on Defendant's acceptance of the non-conforming bid” noting that “The provision [ ] is designed to protect losing bidders in a bid contest, not the contractor that won the bid as Plaintiff did here. Because FAR ¶ 14.301(a) fails to provide a remedy for Plaintiff, Plaintiff's nonconforming bid claim fails to state a claim upon which relief may be granted. Defendant's motion to dismiss Count III is granted.”

FRANK P. SLATTERY, JR., et. al. v. THE UNITED STATES, COFC No. 93-280C, February 10, 2006. Winstar case. Judge Smith awards “$28,393,059 in wounded bank damages, $276,000,000 in expectancy damages, and $67,340,000 in non-overlapping restitution damages for a total damages award of $371,733,059.”

TENNESSEE VALLEY AUTHORITY v.THE UNITED STATES, COFC NO. 01-249C, January 31, 2006. Spent Nuclear Fuels (“SNF”) case. Judge Lettow awards mitigation damages of $34,893,207 for the government's partial breach. The decision finds that plaintiff met its burden of proof for causation, foreseeability, certainty and reasonableness.

nADVANCED SYSTEMS TECHNOLOGY, INC. v. THE UNITED STATES, COFC No. 05-1167C, January 23, 2006. Pre-award bid protest, Army solicitation. Plaintiff is the incumbent for work under two new solicitations. Another firm appealed the NAICS code to the SBA and the SBA established new codes—under which plaintiff will not be considered small. Plaintiff was not aware that NAISC code appeals had been filed until after either SBA had issued its decision or the time for closing the record had passed. Plaintiff alleges, in part, that SBA failed to comply with the APA provisions at 5 USC 555(b) in allowing an interested party to appear and present its view. Plaintiff requests that the procurement be enjoined and SBA required to revisit the appeal with participation by plaintiff. In what she describes as “a novel issue about the extent to which the Small Business Administration (SBA) must permit potential bidders to participate in its appeal proceedings challenging the small business code designation in a solicitation”, Judge Williams notes the SBA procedure for deciding NAICS appeals as an “odd duck” and enjoins the government from proceeding in order to provide time for the parties to further argue the issue. Judge Williams states that the “Court is persuaded at this juncture that it is likely that AST can establish that OHA failed to comply with 5 U.S.C. § 555(b). OHA's sua sponte assessment of all potentially applicable codes did not relieve it of its statutory obligation to permit an interested person to appear before it and present its view.”

PR CONTRACTORS, INC. v. THE UNITED STATES, COFC No. 03-30C, January 20, 2006. Corps of Engineers CDA case. Motion in limine issue. In a matter not seen frequently in published decisions, Judge Williams denies the government's motion in limine to exclude certain documents and testimony. Judge Williams notes the matter is best handled at trial where the government can make its objections as to admissibility.

MAGIC BRITE JANITORIAL v. THE UNITED STATES, COFC No. 05-1380C, January 19, 2006. Post-award bid protest. GSA JWOD procurement. Plaintiff was the incumbent under a commercial procurement when the previous JWOD firm could not perform and the firm requested a one year puchase exception to the JWOD. The one year exception has expired and GSA is awarding a new contract to the previous JWOD firm. Plaintiff argues that its option should be exercised and the GSA is required by regulation to consider the impact that the failure to exercise the option will have on plaintiff. Judge Wolski denies the protest finding that plaintiff has the argument backwards. The regulation in question only applies when a requirement is being placed into the JWOD, not here where the requirement is already within the JWOD.

CC DISTRIBUTORS, INC. v THE UNITED STATES, COFC No. 05-571C, January 19, 2006. (Filed Under Seal: December 16, 2005.) Post-award bid protest, Air Force Requirements contract under Part 13 Simplified Acquisition Procedures. Judge Firestone denies the protest, rejecting plaintiff's arguments that it was unreasonable for the CO not to evaluate the individual price differences on the 1500 items solicited. Judge Firestone notes that even under FAR Part 15 procedures there is no requirement for unit price comparisons where price analysis is conducted on the overall price offered. Similarly the argument that the responsibility determination was flawed for the sane reason is rejected.

NOVA CASULTY COMPANY v. THE UNITED STATES, COFC No. 04-1665C, January 12, 2006. Coast Guard contract. Plaintiff was the surety of the prime contractor and made payments under the payment bond satisfying claims made by subcontractors. No payments were made under the performance bond. Judge Lettow holds that the “Tucker Act supplies a waiver of sovereign immunity for a surety making a claim of equitable subrogation after having satisfied its obligations under a payment bond, just as the Tucker Act also serves that purpose for a surety who has satisfied a performance bond. For purposes of sovereign immunity there is no difference between the posture of the two sureties. Thus, this court has subject matter jurisdiction to entertain a claim by a surety who has satisfied all outstanding obligations to subcontractors on the payment bond.” However, because of the admittedly improper payment to the prime by the government, the government's motion to dismiss is denied. Judge Lettow notes that plaintiff will have the burden at trial to prove that the government's improper payment to the prime was an abuse of discretion. Good discussion of equitable subrogation claims by sureties.

LION RAISINS, INC. v. THE UNITED STATES, COFC NO. 04-1477, Reissued December 15, 2005. (Filed: November 17,2005.) Chief Judge Damich dismisses this protest as moot because the underlying suspension of plaintiff has expired.

HDM Corp. v. THE UNITED STATES and GROUP HEALTH INCORPORATED, intervenor, COFC No. 04-694 C, Reissued December 14, 2005. (Filed Under Seal:November 30, 2005) Bid protest, HHS contract for the Medicare program. Plaintiff claims that a modification to a contract with the intervenor was a cardinal change that CICA required to be competed and requests an injunction. Judge G. Miller discusses the elements of a cardinal change and decides for the government finding that 10 “Modification 30 Did Not Materially Change the Scope of the COB Contract and Was Consistent With Its Broad Objective,” 2) “Modification 30 Did Not Significantly Change the Performance Period or Cost of the COB Contract,” and 3) “A Reasonable Offeror Would Have Expected Modification 30 to Fall Within the COB Contract's Changes Clause.” Finally, Judge Miller notes that “Alternately, Even if Plaintiff Had Established that Modification 30 Constituted a Cardinal Change, the Court Would Still Deny Plaintiff's Request for Injunctive Relief“ as the balance of harms and public interest favored the government.

AMTEC CORPORATION v. THE UNITED STATES, COFC No. 02-1396C, Reissued December 12, 2005. (Filed Under Seal: November 30, 2005.) Army contract, Redstone Arsenal. A series of cost-plus-fixed-fee contracts for testing testing services where the option appeared to on a labor hour basis. “Plaintiff seeks $1,307,047.80 representing fixed fee on the maximum manhours which could have been exercised under the options. Plaintiff contends that once an option for any additional manhours was exercised, it was entitled to a fixed fee on the maximum number of manhours which could have been exercised under that option. In contrast, Defendant contends that Plaintiff was only entitled to a fixed fee for labor hours actually exercised under a given option.” Judge Williams denies plaintiff's claim finding that the contract was clear that plaintiff was only entitled to the fixed fee for the hours which it actually charged. She also finds that even thought the government may have made erroneous payments on other contracts, such payment did not establish a course of conduct for the present claims.

KSEND v. THE UNITED STATES, COFC No. 05-882C, December 8, 2005. Post-award bid, Department of Labor procurement. Plaintiff's proposal was rejected as nonresponsive because it failed to submit transparencies as required by the solicitation. Plaintiff, appearing pro se, alleges that DOL failed to respond to its questions as required by the terms of the solicitation. Perhaps because of the pro se plaintiff, the decision by Judge Horn in a fairly complete primer on the law of bid protests at the COFC. She denies plaintiff's request for an injunction finding that the solicitation was not ambiguous and required the submission of the transparencies. Construing a portion of the complaint as suggesting that the government acted in bad faith, Judge Horn proceeds from a “strong presumption that government officials exercise their duties in good faith.” citing Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239 (Fed. Cir. 2002). After discussing the “well-nigh irrefragable proof” and the “clear and convincing” standard of proof needed to show that the government acted in bad faith the court finds “plaintiff has not demonstrated that the defendant acted in bad faith.”

LB&B ASSOCIATES INC. v. THE UNITED STATES, and SYTRONICS, INC., Defendant-Intervenor. COFC No. 05-1066C, December 08, 2005. Post-award bid protest, Air Force ID/IQ contract. The government solicited small businesses under an existing ID/IQ contract. The solicitation required firms to certify their size at the time of the proposals. Plaintiff relied on its original certification at the time of the original contract. The Air Force appealed its size and after a series of SBA proceedings the Office of Hearings and Appeals (OHA) of SBA determined that plaintiff was not small. Plaintiff filed this bid protest requesting the court to overturn the OHA decision. Judge Firestone upholds the OHA decision finding that it was within the discretion of the CO in the circumstances to request a small business size re-certification.Good decision discussing the size certification standard under the context of multi-award contracts.

STANLEY K. MANN v. THE UNITED STATES, COFC No. 98-312C, Reissued December 7, 2005. (Filed November 28, 2005.) Breach of a BLM thermal lease case. See earlier Federal Circuit decision. Judge Wolski denies the government's motion that plaintiff “cannot recover lost profits, contending his claim is based on independent and collateral undertakings; and that Mr. Mann may not recover the expenses incurred by his predecessor lessee under the lease.” Good discussion of whether lost profits are “are too remote to be classified as a natural result” of the breach of a particular contract. Judge Wolski also notes that “it has long been recognized that a breaching party may not escape paying damages for lost profits merely because their loss makes them harder to prove.” Also rejected is the government's argument that “restitution damages would be based on the implied-in-law claim of unjust enrichment, which is beyond our Court's jurisdiction.” Although recognizing that the court lacks jurisdiction over implied-in-law contracts, Judge Wolski notes that this case “involves an express contract between Mr. Mann and the government, and not an implied-in-law contract.”

OTI AMERICA, INC. v. THE UNITED STATES, COFC No. 05-904C, Reissued December 07, 2005. (Filed Under Seal: November 30, 2005.) Deselection bid protest. See earlier decision deciding that court had jurisdiction under its bid protest authority. Multiple-award contracts with the Government Printing Office (GPO) for development of electronic passport covers. Plaintiff challenges what it alleges were undisclosed evaluation factors and unfair elimination of it from the competition. Judge Lettow finds for the plaintiff on the merits noting that “GPO's implementation of the Evaluation Rules was arbitrary in that GPO disparately treated competing contractors and also constituted an abuse of discretion insofar as OTI was concerned in that GPO's contracting officer did not apply the discretion she possessed under the Evaluation Rules.” Judge Lettow orders: “GPO's termination of OTI's contract is set aside. GPO shall reinstate OTI and shall resume testing OTI's products at the same stage in the competition at which those products were eliminated.” However, Judge Lettow balances the national security interests and denies plaintiff's request to enjoin the GPO from proceeding with the passport pilot program.

NORTH STAR STEEL CO. v, THE UNITED STATES, COFC No. 00-238C, November 30, 2005. Judge Braden finds that the Western Area Power Administration's (“WAPA”) “unilateral imposition of Amendment No. 3 on North Star on September 15, 1999 was an act of ‘economic duress' and a breach of the obligation to negate in good faith.” [A complicated utility rate case with the use of court appointed experts.-jaw]

ATK THIOKOL, INC. v. THE UNITED STATES, COFC No. 99-440C, November 30, 2005. IR&D issue. “whether the technical and development effort that Plaintiff treated as IR&D was ‘required in the performance of' the Mitsubishi Contract, within the meaning of CAS 420 and FAR 32.205-18.... ” Also the issue of the meaning of “required in the performance of the contract”. Judge Braden decides for plaintiff in a case where the government had disallowed the costs. She concludes- “For these reasons, the court has determined that whether IR&D costs are ‘required in the performance of a contract,' within the meaning of CAS 420, is determined by the contracting parties' intent. Accordingly, the court declines to interpret ‘required in the performance of a contract' in the manner advocated by the Government, because doing so would undermine CAS 402, eliminating the primacy that the CAS Board intended the contracting parties intent to serve in the allocation of ‘Sometimes direct/Sometimes indirect' costs. Nor will the court interpret ‘required in the performance of a contract' in that manner for IR&D alone, because doing so would conflict with the identical phrase in the definition of B&P costs, required by the CAS Board's retention of CAS 402 and Interpretation No. 1, when CAS 420 was promulgated. (citations omitted).”

Alion Science and Technology Corp., v. United States of America, and Advanced Engineering and Sciences, a division of ITT Industries, Inc., Intervenor, COFC No. 05-1072C, (Filed Under Seal: November 2, 2005) (Reissued: November 29, 2005) Post-award bid protest, DISA contract. Decision addresses and denies a challenge to a CICA stay override. Judge Block provides a good discussion of the issues in a stay override. Judge Block stresses that in a bid protest proceeding “it is entirely a record review in which the court is largely confined to the administrative record in reaching its findings of fact and conclusions of law. See Bannum, 404 F.3d at 1354-56. Therefore, plaintiff was required to articulate the foundation for its arguments based on the administrative record or, if no support could be found for its arguments, appropriately supplement the record with supporting documents.”

BETA ANALYTICS INTERNATIONAL, INC. v. THE UNITED STATES, and MADEN TECH CONSULTING, INC., Intervenor. COFC No. 04-556C, November 23, 2005. Post-award protest DARPA contract. Court enjoins DARPA from exercising further options with incumbent, including a declaration “that the Navy's arbitrary and capricious award of a contract to Maden Tech Consulting, Inc., pursuant to Solicitation No. N00174-03-R-0044, has resulted in injury to Beta Analytics International, Inc., in the form of the loss of key personnel to Maden Tech Consulting, Inc.; and that this injury continues to exist and continues to render the procurement process, including the mandated re-procurement, arbitrary until the United States mitigates the injury through the adoption of an appropriate evaluation methodology for use in the re-procurement.” Good discussion of damages in a post-award case and the limits of the court to monitor or oversee the re-procurement process. [See earlier decision on the merits.]

HELIX ELECTRIC, INC. v. THE UNITED STATES, COFC No. 02-478C, November 10, 2005. Air Force contract. A modification to the solicitation created a patent ambiguity which required contractor to obtain a clarification. Judge Williams finds the plaintiff's interpretation to be unreasonable and grants summary judgment for the government. Judge Williams notes that “inconsistent actions by the Navy, while unfortunate, do not entitle Helix to a benefit the Contract did not bestow.”

NIGHT VISION CORP. v. THE UNITED STATES, COFC. No. 03-1214C, November 08, 2005. (Filed Under Seal October 24, 2005) Air Force procurement, SBIR program, bid protest. Plaintiff received Phase I and II contracts under the SBIR program for the development on enhanced night vision goggles. The government decided to compete the Phase III procurement and plaintiff files a claim for breach of its data rights when the Air Force allowed other firms to exam plaintiff's goggles. Plaintiff also filed a bid protest objecting to the selection of another firm for the Phase III contract. Although plaintiff had marked its data and drawings with the proper legends, it failed to mark the goggles themselves with a protective legend. Judge Block rejects all of plaintiff's arguments. Judge Block finds the ASBCA decision in General Atronics Corp., ASBCA No. 49196, 2002 WL 450441 (Mar. 19, 2002) to be persuasive. There, as here, the contractor had delivered items to the government without restrictive marking and the ASBCA found that the government obtained unlimited rights in the software. Judge Block does note that “While not deciding this issue, it is likely that even if plaintiff had affixed data rights legends to the goggles, or if the notice provided for the technical drawings and documentation could extend to related items like the goggles, defendant would still be entitled to summary judgment because it is doubtful that the goggles constituted ‘data' eligible for protection under 48 C.F.R. § 252.227- 7018(b)(4)(ii).”

INFORMATION SYSTEMS AND NETWORKS CORPORATION v. THE UNITED STATES, COFC No. 04-632C, October 28, 2005. Plaintiff ISN) was an 8(a) subcontractor under prime indefinite-quantity contract between the Air Force and the Small Business Administration (SBA). ISN, the SBA and the Air Force entered into a Tripartite Agreement. The delivery order issued to ISN was terminated for the convenience of the government and after the parties could not agree on the amount due to ISN for completed work, ISN filed a claim which was ultimately upheld by the ASBCA. The parties then entered into a settlement agreement,which referenced the prime contract, which provided or payment to ISN of some $1,664,879 and full settlement of “any and all claims and any other matters arising under or related to subject contract.” ISN subsequently filed another claim with the CO and when not answered filed this action.ISN argues that although the settlement agreement settled its claims under the prime contract it still has claims under the subcontract with SBA. Judge Bush dismisses the complaint finding that both claims are covered by the settlement agreement as the only reasonable reading of the settlement agreement language of “arising under or related to subject contract” must include the subcontract between SBA and ISN.

SPACE EXPLORATION TECHNOLOGIES CORPORATION v THE UNITED STATES and BOEING LAUNCH SERVICES, INC., and LOCKHEED MARTIN CORPORATION, intervenors, COFC No. 05-1053C, October 28, 2005. Pre-award protest. Air Force launch services procurement for its Evolved Expendable Launch Vehicle (“EELV”) Program. Intervenors have been sole-source awardees in past EELV buys. Plaintiff who did not submit a proposal by the closing date argues that “if the procurement proceeds, it will be at a competitive disadvantage when it is fully qualified to submit a proposal for future launches.” Judge Miller dismisses the complaint finding that plaintiff is not an interested party as it is not an actual or prospective bidder and therefore lacks standing. Judge Miller goes on to also consider whether plaintiff has a direct economic interest that would be impacted and finds that plaintiff has no chance of receiving a contract award as it will not have full EELV capability until after the FY06 missions of this procurement.

SYSTEMS PLUS, INC. v. THE UNITED STATES, and NETSTAR-1, INC., Intervenor, COFC No. 05-1076C, October 27, 2005. Post-award protest. DOL contract. DOL invited Plaintiff and intervenor, who both held FSS contracts, to participate in a competition under FAR Part 12 for a BPA to provide IT services. Award was made to intervenor and plaintiff requested a debriefing. DOL stated that a debriefing was not required but gave plaintiff a brief explanation of the award decision. Plaintiff protested to the GAO and requested that DOL stay the performance of the contract. DOL refused and plaintiff filed this action. Judge Bruggink dismisses the complaint disagreeing with plaintiff that FAR Part 15 procedures were applicable and required a debriefing. Good discussion of the relation between FAR Part 8.4 requirements and the statutory provisions requiring a debriefing.

ORLOSKY, INC. v. THE UNITED STATES, COFC No. 01-634, October 24, 2005. Navy contract. Judge Miller finds that the government breached the covenant of good faith and fair dealing. Judge Miller offer a rara avis comment regarding the advisability of an application for attorney fees under the EAJA. She says “While obtaining an award qualifies plaintiff as a prevailing party, in that it has secured a judgment on the merits, plaintiff is by no means a compromised party. The spectacle of the Navy's studied ineptitude throughout the San Nicolas Island project was matched only by plaintiff's maladroitness. Plaintiff failed to avail itself of the opportunity to view the site prior to making its bid. Its presentation of evidence exaggerated the dangers and problems it faced throughout the project, while the particulars relating to costs sustained were inadequate. The Government was more than substantially justified in defending against this lawsuit.” Good discussion of the duty to cooperate and fair dealing in addition to the elements of proof of Eichleay damages.

KOLA NUT TRAVEL, INC. , MANASSAS TRAVEL INC., and KNOWLEDGE CONNECTIONS TRAVEL INC., v. THE UNITED STATES and ALAMO TRAVEL GROUP, INC., RAVENEL BROTHERS, INC., WINGGATE TRAVEL, INC., and AIRTRAK TRAVEL SYSTEMS, INC., intervenors, COFC 05-1027C, October 19, 2005. Post-award bid protest in this DoD Travel System (DTS) procurement. Judge Smith denies the motion for a preliminary injunction for this procurement, which Judge Smith says has been the subject of 15 protests to the GAO and SBA. Plaintiff argues, in part, that the failure of the government to include the AR provisions relating to the Certificate of Independent Price Determination (CIPD) results in the contracts being void ab initio. Judge Smith disagrees finding that “This takes a jurisdictional analogy into an unreasonable and untenable theory.” Judge Smith also states that the fact that DoD referred suspicions of lack of independent pricing to DOJ does not prove that such violation occurred. Judge Smith notes “The evidence presented thus far simply does not even come close to the level of proof necessary to justify the extraordinary relief sought in this bid protest.”

ASIA PACIFIC AIRLINES v. UNITED STATES, and CORPORATE AIR, ALPINE AIR, and ALOHA AIRLINES, INC., Intervening-Defendants., COFC No. 05-711C, Reissued October 14, 2005. (Filed Under Seal: October 06, 2005.) Pre-award contract United States Postal Service. Judge Lettow grants the protest setting aside the results of the solicitation declaring them invalid. The decision finds that the solicitation was ambiguous, that the decision of the USPS to delete plaintiff's proposal was arbitrary and capricious and in violation of the USPS Purchasing Manual in effect at the time. Good discussions of standing and prejudice.

GROUP SEVEN ASSOCIATES, LLC v. THE UNITED STATES and CACI, Inc. intervenor, COFC No. 05-867C, Reissued October 13, 2005. (Filed: September 23, 2005) Post-award protest against the award by DoD of a task order under a FSS contract. The government argues that ”review is barred by 10 U.S.C. § 2304c(d) (2005) and 41 U.S.C. § 253j(d), which prohibit bid protests of task orders.” Judge Bruggink discusses the relevant cases, primarily LABAT-ANDERSON INC. v. US, COFC No. 01-350C, July 27, 2001, and concludes that jurisdiction is doubtful. However, considering Labat and intervenor's reluctance to rely on it, Judge Bruggink goes to the merits and determines that it was permissible for intervenor to submit alternate proposals and denies plaintiff's protest.

TRANSATLANTIC LINES LLC v. THE UNITED STATES and STRONG VESSEL OPERATORS, LLC, intervenor, COFC No. 05-866C, Reissued for Publication October 13, 2005. (Filed September 30, 2005) Post-award bid protest, Army contract. Judge Hodges enjoins the government from permittin