PubKLaw™

Recent Decisions

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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 Although an unpublished decision and summary judgment is denied as genuine issues of fact exist, the opinion by Judge Merow has some good discussion of liquidated damages assessed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.

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 supnported 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.

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 consider