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CRASSOCIATES, INC. v. THE UNITED STATES and SPECTRUM HEALTHCARE RESOURCES, INC., Defendant-Intervenor, COFC No. 11-570 C, February 01, 2012. Post-award bid protest, Army contract to provide community health care services to military personnel and their dependents. In this, the twelfth protest on this procurement, plaintiff moves to stay the judgment pending appeal to the Federal Circuit of the recent decision granting judgment for the government and intervenor on the administrative record. Judge Allegra denies the motion. He notes that to obtain a stay plaintiff must establish a strong likelihood of success on the merits, or demonstrate a substantial case on the merits provided that the harm factors militate in its favor. Judge Allegra notes “Nor do the equities weigh in favor of granting a stay. Regarding irreparable harm, plaintiff avers that, if the contract is allowed to proceed, it may lose its employees to Spectrum or other competitors, will be forced to abandon its leased premises, and will lose the other competitive advantages of incumbency. But, these claims all have a decidedly hollow ring.
    To begin with, the harms alleged by plaintiff are the sorts of things that any incumbent would experience upon the loss of a successor contract. If plaintiff is right that these typical types of harm warrant a stay pending appeal here, then such would be true for every incumbent who fails to obtain a successor contract. But, that is not the law. See, e.g., PGBA, LLC v. United States, 60 Fed. Cl. 196, 221 (2004) (‘reliance on the loss of its current employees as a basis for irreparable injury would require this court to consider any incumbent contractor’s loss of a successor contract to be irreparable harm’); San Diego Beverage & Kup v. United States, 997 F. Supp. 1343, 1347 (S.D. Cal. 1998) (‘In every procurement award there are generally more losers than winners. To find that a losing procurement participant suffers irreparable harm merely because it did not succeed with its contract proposal would create in the losing party an automatic right to injunctive relief.’). No federal contractor has a right to maintain its incumbency in perpetuity. It follows, a fortiori, that the potential loss of the benefits of incumbency does not give plaintiff some sort of automatic right to a stay pending appeal.“

VIRGIN ISLANDS PAVING, INC. v. THE UNITED STATES, COFC No. 11-687C, January 31, 2012. Post-award bid protest of a sealed bid FAR Part 14 Federal Highway Administration(“FHA”) contract for road construction in the Virgin Islands. FHA did the procurement under a Memorandum of Agreement(“MOA ”) with the Virgin Islands Department of Public Works (“VIDPW”). The MOA required FHA was to “request written comments and/or concurrence“ of the VIDPW. Protestor was the low bidder. FHA sent a concurrence letter to VIDPW recommending the contract be awarded to VIP. “[A] a member of the VIDPW Commissioner’s staff advised the FHWA that the VIDPW still was ‘concerned’ that VIP ‘ha[d] not been performing on other VI DPW projects’ and was ‘getting political pressure’ not to concur in the award. Nevertheless, [latter that same day], the VIDPW Commissioner concurred in the award to VIP.” An hour after concurring, VIDPW requested a conference call to express concerns about award to protestor. FWA requested protestor to verify its bid, which it did the next day. On the next day, FWA made award to the other bidder relying on FAR 14.407-3(g)(5) to make award to the second bidder.
    Judge Braden permanently enjoins the award. She finds that FHA’s decision was arbitrary, capricious and contrary to law. She notes “In addition, the Administrative Record does not evidence why the FHWA began to question whether VIP made a mistake. The only written account is of a September 20, 2011 meeting, where the agency was planning to reverse its decision, because ‘the VI Governor want[ed] assurance that [VIP] would complete the work.’ The idea that VIP’s bid was rejected as a mistake, pursuant to FAR 14.407-3(g)(5), and that conclusion was not supported by any written analysis from agency engineers, accountants, or the Contracting Officer, but from agency counsel who suggested it as ‘a way [FHWA] could award to other offer [sic] besides using responsibility/performance’ (AR 645 (emphasis added)), ipso facto was not rational. See Savantage Fin. Servs., 595 F.3d at 1286-87 (requiring the agency to provide a coherent and reasonable explanation of its exercise of discretion). Moreover, nothing in the Administrative Record evidences that any agency official qualified to opine on VIP’s pricing changed his mind at the September 20, 2011 meeting or discussed any particular mistakes that VIP might have made that directly justified the agency’s ultimate decision.”

MG ALTUS APACHE COMPANY v. THE UNITED STATES, COFC No. 11-538C, January 30, 2012. Post-award bid protest, Army contract for trucking services in Afghanistan. Plaintiff moves to supplement the administrative record with corrective action reports that it sent to the Army before the CO made a nonresponsiblity determination. Judge Williams grants the motion noting “Because the Army announced in the solicitation that it would consider both contract references and corrective action in making the responsibility determination, MG AA’s submission explaining its corrective action is properly included in the record.”

SIMULATION TECHNOLOGY, LLC v. THE UNITED STATES, COFC No. 11-408C, January 25, 2012. Air Force contact for a Humvee training facility. Plaintiff claims excusable delays. The government moves to dismiss for lack of jurisdiction arguing that the present claim was never presented to the CO. Judge Damich grants the motion. He notes “To be sure, Plaintiff is correct that the claims need not be identical and that its administrative claim sets forth several facts relevant to its excusable delays claim. The test for jurisdiction is not, however, merely whether the two claims have some overlapping facts. The test for jurisdiction is whether the claims are based on the same operative facts, thereby giving the contracting officer notice of the claim and an opportunity to render a decision on it. Here, Plaintiff may have alleged that it experienced some delays beyond its control, but the focus of its claim was that the CO agreed to modify the delivery schedule. The claim contained no statement that would have alerted the CO to consider whether Plaintiff’s delinquency was excusable because all the delays experienced were beyond Plaintiff’s control. Were this Court to hear Plaintiff’s claim, it would allow the Plaintiff to circumvent the CO’s statutory role in resolving disputes by depriving the CO of the opportunity to render a decision on the excusable delays claim in the first instance.”

TRAVELERS CASUALTY & SURETY COMPANY OF AMERICA v. THE UNITED STATES, COFC No. 10-673C, January 25, 2012. Plaintiff asks for damages for the breach of an implied contract. Plaintiff had issued a crime liability insurance policy to S & K Sales Company, a vendor/manufacturer representative for various vendors and manufacturers from whom Army and Air Force Exchange Service (AAFES) has purchased goods to be resold in their retail stores. Plaintiff argues that it is suing as an assignee and subrogee to S & K after it paid out a claim pursuant to the insurance policy after embezzlement by one of S & K employees who had presented S & K checks paid to the order of AAFES. The government moves to dismiss for lack of standing. Judge Baskir grants the government’s motion noting “Plaintiff does not have standing to sue for breach of contract because it is not in privity with the Government and cannot sue as an assignee or subrogee.” the court rejects the argument that plaintiff is an assignee as this assignment does not meet the requirements of the Anti-Assignment Act, which provide that “a transfer or assignment of any part of a claim against the United States Government . . .may be made only after a claim is allowed, the amount of the claim is decided, and a warrant for payment of the claim has been issued.”
    In rejecting the equitable subrogation argument, Judge Baskir states “the rationale behind equitable subrogation does not apply to allow general liability insurers to sue the Government. In the surety context, there are mutual obligations running between the Government and the surety -- the surety actually steps into the shoes of the contractor to assume responsibility for completion of the contract entered into between the Government and prime contractor. In the general liability context, the insurer acquires the contractor’s right to sue for breach of contract but does not assume any of the prime contractor’s obligations to the Government. The Government does not agree to the arrangement between the prime contractor and the general insurer, nor does it receive any benefit as a result of the arrangement.”

STRUCTURAL CONCEPTS, INC. v. THE UNITED STATES, COFC No. 04-1141 C, January 24, 2012. Air Force contract to alter and repair a building at McGuire Air Force Base. Plaintiff submitted a claim for approximately $1,200,000 for delay and other costs which was denied by the CO who then assessed liquidated damages against plaintiff in the amount of $776,448. Plaintiff now sues on its claim and requests remission of the liquidated damages. The government counterclaims for the liquidated damages. Before the court are the parties cross motions for summary judgment on the liquidated damages. Judge Bush denies the motions and notes that she is “somewhat perplexed by the parties’ attempt to resolve a liquidated damages counterclaim before a trial which would fully explore the facts of this construction project, and which would determine the parties’ responsibilities for the delays in completion of that project.”
    The government raises a jurisdictional argument against plaintiff’s ability to raise defenses against the government’s counterclaim. Relying on M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010, the government argues that plaintiff “was required to submit a separate claim to the CO providing adequate notice of the total number of days requested in extension as a defense to the Government’s claim assessing liquidated damages.” recognizing “that SCI did present a valid CDA claim to the CO requesting damages caused by government-caused delay, placing this plaintiff in a different position than the plaintiff in Maropakis” Judge Bush does note that “Maropakis does not directly address the question of whether a contractor who has already filed a valid CDA claim for damages caused by government delay must necessarily then file a separate claim once it has learned the full extent of the government’s liquidated damages assessment.” She then discusses Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003) and other cases and concludes that the court “has jurisdiction to consider plaintiff’s defenses to all of the liquidated damages asserted by defendant.”

AGILITY DEFENSE & GOVERNMENT SERVICES, INC., f/k/a/ TAOS INDUSTRIES, INC. v. THE UNITED STATES, COFC No. 11-101C, January 20, 2012. Plaintiff argues that it is entitled to a REA for its contract with DLA. The government moves to dismiss arguing that the claim was not properly certified as required by the CDA. Plaintiff responds that even if the certification was defective it is curable. Judge Wheeler dismisses without prejudice. He finds that the claim was properly certified as a REA as required by DFARs 252.243- 7002, but does not meet the CDA certification requirement set out in DFARS 243.204-71(c).

CRASSOCIATES, INC. v. THE UNITED STATES and SPECTRUM HEALTHCARE RESOURCES, INC., Defendant-Intervenor, COFC No. 11-70C, January 18, 2012. Post-award bid protest, of a contract to provide community health care services to military personnel and their dependents. See earlier decision which had enjoined award to intervenor. Following some five or six protests to the GAO and an earlier action at the COFC, plaintiff protests the award arguing a multitude of errors. Referring to the earlier case, Judge Allegra starts his opinion by noting “But, as the old maxim goes, ‘[t]hat was then, this is now.’” He grants the motions by the government and intervenor summary judgment on the administrative record. He finds that several of plaintiff’s arguments are foreclosed by the Federal Circuits decision in BLUE & GOLD, FLEET, L.P. v. UNITED STATES, and HORNBLOWER YACHTS, INC., CAFC No. 2006-5064, June 26, 2007 as plaintiff failed to object to the RFP provisions earlier.

Judge Allegra concludes “Having considered, and rejected, the remainder of plaintiff’s points, this court need go no further. In seeking to overturn this award, plaintiff attempts to pile a Pelion of conjecture upon an Ossa of speculation, literally raising dozens of alleged errors in contending that, from the outset, the Army intended to make a second award to Spectrum. But reminiscent of the Greeks of old, whose stone pile atop Mt. Olympus failed to reach the heavens, plaintiff ultimately fails to convince this court that the second set of evaluations performed by the Army was a pretext for giving the contract to its competitor.”

URS FEDERAL SERVICES, INC. v. THE UNITED STATES, COFC No. 11-790C, January 18, 2012. The government moves for reconsideration of the earlier decision of the court overturning the override of automatic stay in that bid protest decision. The government argues that the court “may not issue declaratory relief under the Competition In Contracting Act, 31 U.S.C. § 3553, (‘CICA’), without conducting the traditional four-factor injunctive analysis, because a declaration that an agency override is unlawful has the same effect as an injunction.” Judge Braden denies the motion following Chapman Law Firm Co. v. United States, 65 Fed. Cl. 422 (2005) and noting “Where the court deems a declaratory judgment is the appropriate relief, the imposition of standards for injunctive relief are not required ... ”

CERADYNE, INC. v. THE UNITED STATES and BAE SYSTEMS AEROSPACE & DEFENSE GROUP, INC., Defendant-Intervenor, COFC NO. 11-725C, January 17, 2012. Bid protest, Army contracts for body armor. Both plaintiff and intervenor received awards as did three other firms. Plaintiff argues that a subsequent modification to intervenor’s contract was an improper sole-source award and was outside the scope of the original award. Plaintiff also challenges the responsibility determination of all offerors. Judge Firestone finds that the modification to intervenor’s contract was not out of scope and dismisses following the Federal Circuit’s decision in AT & T Comm’ns v. Wiltel, Inc., 1 F.3d 1201, 1204-05 (Fed. Cir. 1993). She also dismisses the responsibility argument agreeing with defendants that “that this portion of the claim has previously been argued and resolved through settlement of Ceradyne’s protests before the GAO and they move to dismiss this portion of the plaintiff’s bid protest as moot.”

RAILWAY LOGISTICS INTERNATIONAL v. THE UNITED STATES, COFC No. 09-14C, January 17, 2012. Plaintiff was awarded two contracts, valued at $2,426,752, to provide materials for the rehabilitation of the Iraqi Republic Railway. Contract. The contracts were terminated for convenience of the government after plaintiff had only partially delivered incomplete orders late. Plaintiff submitted a certified claim for $6,438,000 for equitable adjustments and termination expenses. The government counter claimed for fraud under the CDA and False Claims Act. Judge Hodges finds for government. Part of his conclusion includes: Plaintiff “could not support its claim because of fraud and misrepresentation of fact. Every item on the spreadsheet that served as plaintiff’s support for its claim was overstated or imaginary. Contents of the spreadsheet alone provide clear and convincing evidence that RLI practiced fraud ‘against the United States in the proof, statement, establishment, or allowance’ of its claim. 28 U.S.C. § 2514.

SUFI NETWORK SERVICES, INC. v. THE UNITED STATES, COFC No. 11-453C, January 17, 2012. Plaintiff claims attorney fees, expenses and litigation over its cases before the ASBCA arising from a contract with the U.S. Air Force Non-Appropriated Funds Purchasing Office (“AFNAFPO”) to provide telephone service in the lodging rooms on Air Force bases in Germany. Plaintiff argues that the CO failed to issue a decision within a reasonable time. The contract contained a 1979 Disputes Clause the only allowed appeals to the ASBCA. The government filed a motion to dismiss under Rules of the Court (“RCFC”) 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. In support of its motion, the government “argues that the 1979 Disputes clause is valid and enforceable, and SUFI must exhaust its administrative remedies before seeking judicial relief. While SUFI acknowledges its obligation to exhaust administrative remedies, it asserts that the agency breached the clause by failing to issue a contracting officer’s final decision within a reasonable timeframe. Therefore, according to SUFI, the Disputes clause is unenforceable, and SUFI may seek redress directly in this Court.” Judge Wheeler finds that the COFC does have jurisdiction over NAFI disputes as decided by the Federal Circuit in Slattery v. United States, 635 F.3d 1298, 1321 (Fed. Cir. 2011) (en banc). After a good discussion of the cases when the exhaustion requirement is excusable, Judge Wheeler rejects the argument by the government that plaintiff has failed to exhaust its administrative remedies.

SCIENCE APPLICATIONS INTERNATIONAL CORP., Plaintiff, v. THE UNITED STATES, Defendant, MISSION ESSENTIAL PERSONNEL, LLC, LINC GOVERNMENT SERVICES, L.L.C., GLOBAL LINGUISTIC SOLUTIONS, LLC, NORTHROP GRUMMAN TECHNICAL SERVICES, INC., CACI PREMIER TECHNOLOGY, INC. and L-3 SERVICES, INC., Intervenor Defendants, COFC No. 11-690 C, January 09, 2012. Post-award bid protest, Army contracts for foreign language support services. In a solicitation which required proposals to be evaluated against the RFP rather than against other proposals, plaintiff challenges its rating as unacceptable and moves to complete the administrative record with the proposals of the six awardees. The government and intervenor object to the supplementation and move to dismiss for lack of standing. Judge Merow denies the motion to complete the administrative record noting as the primary reason “the principle set forth in SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) that ‘a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.’ The United States Court of Appeals for the Federal Circuit has instructed that this principle be applied to procurement protests which are, as here, reviewable pursuant to 28 U. S. C. § 1491 (b)(4). OMV Med., Inc. v. United States, 219 F.3d 1337, 1344 (Fed. Cir. 2000).”
    After a good discussion of the differences between prejudice for jurisdictional standing(allegational prejudice), and prejudice on a merits determination(adjudicatory prejudice) as detailed in Linc Government Services, LLC v. United States, 96 Fed. Cl. 672 (2011) Judge Merow denies the motion to dismiss for lack of standing.

BAYFIRST SOLUTIONS, LLC v. THE UNITED STATES, and VETERAN SOLUTIONS, INC., Intervenor-defendant, COFC No. 11-516 C, January 09, 2012. Post-award bid protest, Department of State contract for Diplomatic Security Protection Management Services. Plaintiff challenges the evaluation of its and awardees proposals. Judge Bush finds for the plaintiff and enjoins the performance of the contract. While noting that the individual rating sheets by the TEP evaluators have been destroyed she finds that the evaluation is fatally flawed, that the offerors were treated disparately and the source selection decision was not rational because of the errors in the evaluation. She enjoins performance and directs that any reevaluation be conducted as described in her opinion.

BROOKS RANGE CONTRACT SERVICES, INC., Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant, and URBAN SERVICES GROUP, INC., and MERIDIAN MANAGEMENT CORPORATION Defendant-Intervenors, COFC No. 11-700 C, January 06, 2012. Post-award bid protest, GSA FSS contract for building management services. Plaintiff challenges the award to intervenor arguing that awardee is a joint venture that is not an applicable FSS contract holder. The government moves to dismiss for lack of standing and also argues the award was proper to intervenor under a contract teaming agreement(CTA). Chief Judge Hewitt finds that plaintiff lacks standing and waived the prejudice argument as it failed to raise that argument in its opening brief. She notes “And whether or not Urban and Meridian’s CTA adhered perfectly to GSA’s permissive online guidance, the CTA does not appear to violate any GSA requirements.” She also cautions “This case should serve as a caution to agencies and draftspersons alike. The court observes along with plaintiff that ‘[t]here is no FAR or GSAM FAR supplement regulation that actually provides any definition of what a CTA is and what its elements must be. There is only [GSA’s] website.’ Pl.’s Resp. 10. Indeed, in order to find an example of a CTA that clearly avoids a possible interpretation as a joint venture or other ‘formal business arrangement,’ plaintiff needed to go back to the A-12 litigation concerning a Navy program to develop attack aircraft, which began in the 1980s. See Pl.’s Mem. 28-29 (citing McDonnell Douglas Corp. v. United States (McDonnell Douglas), 25 Cl. Ct. 342 (1992). In that case, the teaming agreement stated:
    This Agreement does not constitute and shall not be construed or given effect as a joint venture, partnership, pooling arrangement, or other formal business organization, or as creating any fiduciary relationship. Except as expressly provided herein, nothing herein shall be construed as providing for the sharing of profits or loss, nor shall either Party be liable to the other for any of the costs, expenses, risks, or liabilities arising out of the other’s activities in connection with the performance of programs outside this agreement.”

URS FEDERAL SERVICES, INC. v. UNITED STATES, and VSE CORPORATION, INC., Defendant-Intervenor, COFC No. 11-790, December 30, 2011. Plaintiff challenges the override of the CICA stay by the Department of the Treasury for a procurement for the management of seized or forfeited personal property. The Head of the Contracting Activity “determined that ‘continued IDIQ contract and task order performance is in the best interest of the Government.’” Judge Braden declares that the “override is set aside, void, and without effect. By operation of law, the automatic stay in [the GAO] bid protests ... are reinstated.” Judge Braden reviews the override determination considering the four factors set out in REILLY’S WHOLESALE PRODUCE, Plaintiff, v. THE UNITED STATES, Defendant, FOUR SEASONS PRODUCE, INC., Defendant-Intervenor, COFC no. 06-668C, Reissued October 26, 2006;
“(i) whether significant adverse consequences will necessarily occur if the stay is not overridden . . .
(ii) conversely, whether reasonable alternatives to the override exist that would adequately address the circumstances presented . . .
(iii) how the potential cost of proceeding with the override, including the costs associated with the potential that the GAO might sustain the protest, compare to the benefits associated with the approach being considered for addressing the agency's needs . . .
(iv) the impact of the override on competition and the integrity of the procurement system, as reflected in the Competition in Contracting Act[.]”
She concludes that Treasury gave no serious consideration to two of the Reilly factors. “First, the Administrative Record evidences that Treasury did not consider any alternatives to an override” and “Second, Treasury made no serious attempt to analyze the effect of the override on the integrity of the procurement system.”

TIMBER PRODUCTS COMPANY v. THE UNITED STATES, COFC No. 01-627C, December 29, 2011. Liability decision, United States Forest Service timber sales contract. Judge Williams’ introduction fairly describes the case. Plaintiff “claims that the United States Forest Service (‘Forest Service’) breached the implied duties to cooperate and not hinder performance by awarding a timber sale contract without performing environmental surveys. Specifically, Plaintiff claims that Defendant knew that its interpretation of law which led it to forego the surveys was unlikely to prevail in a pending District Court action, but failed to inform Plaintiff of this risk. Plaintiff claims Defendant breached its implied duties by awarding the contract and then suspending performance when the District Court litigants secured an injunction. Plaintiff filed a claim under the Contract Disputes Act seeking out-of-pocket expenses, as well as consequential damages representing the value of the timber lost or damaged due to the Government’s suspension.
    The Court finds that the Government acted unreasonably and breached its duties to cooperate and not hinder performance by awarding the timber sale knowing of the risk of an injunction and suspension, but never telling Timber Products. Because of these breaches, the Government’s liability is not limited to out-of-pocket expenses.”
    Good discussion of the various timber sales cases including Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, (Fed. Cir. 2010) and SCOTT TIMBER, INC. v. THE UNITED STATES, COFC No. 05-708C, February 27, 2009.

AKAL SECURITY, Inc., Plaintiff, v. THE UNITED STATES, and METROPOLITAN SECURITY SERVICES, Inc., Defendant-Intervenor, COFC No. 11-562C, December 29, 2011. Post-award bid protest of a United States Marshals Service contract for court security services for the Fourth Circuit. See earlier decision granting a TRO in this case. Plaintiff challenges the responsibility determination of the awardee(Walden) and the evaluation of its and the Walden’s proposals. Included is a challenge to the decision of the Source Selection Authority. Judge Braden rejects plaintiff’s arguments and finds for the government on the administrative record. Plaintiff argues that the failure by Walden to disclose a DOL investigation of alleged labor law violations after the CO had requested Walden to disclose any “threatened, pending or current litigation” resulted in an arbitrary and capricious responsibility determination of Walden by the CO. Judge Braden questions whether an investigation is threatened litigation, but recognizing the discretion of the CO in responsibility determinations and noting that the underlying facts of the investigation were disclosed in another litigation, she finds that the determination was not arbitrary or capricious. Plaintiff argues that the SSA violated FAR 15.308 by simply signing his name next to the word “Approved” on the CO’s award recommendation. Judge Braden notes the FAR provision “does not require that a separate document be written by the SSA indicating the rationale, only that the documentation include any rationales ‘made or relied on by the SSA . . . .’ [citations omitted}; see also Computer Sciences, 51 Fed. Cl. at 320 (‘[A]ll the SSA is required to do is review the agency’s evaluations of past performance, ensure their accuracy, compare the results, and then form his or her independent conclusion based on this information.’); Latecoere Int’l, Inc., B-239113, B-239113.3, 92-1 CPD ¶ 70, 1992 WL 15029 at *6 (Comp. Gen. Jan. 15, 1992) (‘[T]here is no legal requirement that an SSA personally write the document that reflects the award selection decision.’)
    In this case, the SSA approved the CO Award Recommendation that included a 10-page memorandum and the enclosed TEB Final Report, both of which document ‘the rationale[s] for any business judgments and tradeoffs made.’ .... The SSA did not author a separate document, but adopted the rationales of those documents by signing his name next to the word ‘Approved.’ .... Moreover, there is no evidence of disagreement among the members of the evaluation team as to who should be awarded the contract.”

MORI ASSOCIATES, INC. v. THE UNITED STATES, COFC No. 10-298C, December 21, 2011. Pre-award bid protest Department of Health and Human Services, National Institutes of Health, National Institute of Diabetes and Digestive and Kidney Diseases (“NIDDK”) procurement for IT services. (See earlier decision on supplementation of the administrative record.) After four protests to the GAO in this procurement which began with a 2007 solicitation, plaintiff now brings this action. Plaintiff alleges violations of CICA, the Procurement Integrity Act, the Trade Secrets Act, OMB Circular A-76, the Rule of Two and numerous actions by the government which were arbitrary and capricious. In an extensive 60 page opinion Judge Wolski enjoins the government from canceling the original solicitation at issue here and is enjoined from proceeding with a task oder for help desk services where it is likely that the services should be set aside for a small business award. He sets the bond for plaintiff as $0.00. Among the many issues in this case he holds that sunset provisions of 41 U.S.C.A. § 4106(f)(3) removed the prohibition on the protests of task orders and the jurisdiction based on FAR §§ 1.602-2 & 3.101-1 and the duty of fair and honest consideration, citing Resource Conservation Group, LLC v. United States, 597 F.3d 1238 (Fed. Cir. 2010).[How much have the parties spent of this litigation? Not quite a A12 case, but it must have be costly-jaw]

INTERNATIONAL INDUSTRIAL PARK, INC., et al. v. THE UNITED STATES, COFC No. 09-691C, December 21, 2011. Plaintiff requests reconsideration of the earlier decision, and requests an award of attorney fees in accordance with its contract with the Corps of Engineers. The contract provided:

Judge Wheeler grants the motion for reconsideration noting “While waivers of sovereign immunity must be specific and statutory, the Corps’s specific, statutory authority to contract includes the authority to enter into fee-shifting agreements like the one here.” He also finds that the “as provided by law” does not prevent awarding of fees. However, he does stay the requests for fees and costs until any appeal to the Federal Circuit is concluded or the time for an appeal has passed.

MARTIN CONSTRUCTION, INC. v. THE UNITED STATES, COFC No. 09-236C, December 20, 2011. Plaintiff challenges the termination for default of its contract to construct a marina for the Corps of Engineers. Plaintiff argues that the Corps’ design was defective and that the Corps waived the October 11, 2008 contract completion date when it waited until January 13, 2009 to terminate the contract for failure to meet the October completion date. Judge Wheeler finds that the termination for default was improper and is changed to a termination for the convenience of the government. As a result he finds it not necessary to address the waiver issue. Judge Wheeler notes “The most troubling aspect of this case is the Corps’ adamant refusal to accept any responsibility for its defective design, even while Martin made every effort to comply with it. This relatively routine construction project did not need to end in contentious litigation. Competent procurement officials would have acknowledged the agency’s obvious design mistake, made the necessary corrections, and afforded the contractor the additional time and money to complete performance. The real difficulty here is not that the Corps made a serious design mistake, but that it denied the mistake throughout and steadfastly blamed the contractor instead. As all contracting personnel know, there are standard clauses in every federal contract to allow for changes and schedule adjustments, but these clauses are only effective when the federal agency acknowledges that they should be used.”

ORION TECHNOLOGY, INC. v. THE UNITED STATES and STRATEGIC RESOURCES, INC., intervenor, COFC No. 11-573C, December 20, 2011. Pre-award bid protest, Army contract for support services. Plaintiff challenges the rejection of its proposal and argues that it should have been included in the competitive range. Judge Sweeney dismisses the protest for lack of standing although she does find alternatively that the decision of the Army to exclude plaintiff’s proposal was reasonable and not arbitrary or capricious.

Judge Sweeney describes the case as “Given the plain language of the solicitation, plaintiff cannot establish standing to protest under any standard. Under the ’substantial chance’ standard, plaintiff must show that it could compete for the contract but for the Army’s alleged error in disqualifying its proposal. Plaintiff cannot make this showing because it failed to submit information—complete cost/price data for all of its teaming partners—clearly required in the solicitation, and plainly necessary for the Army to conduct a cost realism analysis. Acceptance of plaintiff’s argument that complete cost/price data for all of its teaming partners was unnecessary to perform a cost realism analysis would be akin to shifting the burden of providing the information required for a cost realism analysis from plaintiff to the Army. If the burden shifted in that manner, the Army would be forced to examine a teaming partner’s total proposed cost for a particular position and guess the amount of each component of that cost, such as the hourly wage rate, the fringe benefit amount, and the general and administrative cost. The Army, however, is not responsible for filling in missing data, much less filling in missing data with its own guesses. Because plaintiff failed to include critical information in its proposal, it had no chance, much less a substantial chance, of receiving a contract award. Further, under the standard endorsed in Weeks Marine, Inc., plaintiff must demonstrate that it suffered a nontrivial competitive injury that is within the court’s power to remedy. Plaintiff has not made this showing. Because it failed to submit all of the information the Army required to evaluate its proposal, as specified in the solicitation, plaintiff could not have been injured by the Army’s failure to evaluate its proposal.”

Good discussion of the cases on prejudice in pre-award protests and the Sections L and M requirements, plus a comment that counsel for plaintiff teetered on the edge of a Rule 11 violation.

JOINT VENTURE OF COMINT SYSTEMS CORPORATION AND EYEIT.COM, INC., and NETSERVICES & ASSOCIATES, LLC, v. THE UNITED STATES and NETCENTRICS CORPORATION, DIGITAL MANAGEMENT, INC., and POWERTEK CORPORATION. Intervenors, COFC Nos. 11-400 C, 11-416 C, December 19, 2011. Post-award bid protest, DoD contracts for IT services awarded without discussions. Plaintiffs allege numerous errors in the evaluation of their proposals. Judge Sweeney finds that plaintiffs lack standing and dismisses the complaints. She notes that in a post-award protest, protestors must demonstrate prejudice by showing that they had a “substantial chance” of award, but for the errors by the government. Finding that protestors have not shown that they had a substantial chance of award, she finds that they lack standing.

METCALF CONSTRUCTION CO., INC. v. THE UNITED STATES, COFC No. 07-777C, December 09, 2011. Navy design-build housing contract. Plaintiff is a HUBZone firm. Judge Braden introduces the case—“Metcalf Construction Co., Inc. (‘Metcalf’) was a successful contractor in the private sector when it commenced performance on its first federal housing contract on December 31, 2002. Metcalf, however, did not appreciate that, although this was a ‘design-build housing project,’ the United States Department of the Navy (‘the Navy’) would require strict adherence to contractual requirements, instead of deferring to Metcalf’s private sector expertise.” Judge Braden somewhat summarizes the case as “Metcalf’s failure to appreciate the difference between the contractor’s ability to make changes in the private design-build context and the contractual constraints necessarily required in government contract work lies at the heart of this dispute. The Navy’s insistence that Metcalf adhere to contractual requirements, that Metcalf deemed to interfere with the superior judgment of an experienced design-build contractor, was within the Navy’s contractual rights.” Plaintiff primarily claims that the government breached its duty of good faith and fair dealing. Additionally, before the last day of the 10 day trial Plaintiff sought to amend its complaint with count 2, a cardinal change count. Judge Braden denies all of plaintiff’s liability claims, but does grant plaintiff a “306-day extension caused by the Navy’s violation of FAR 52.236-2, regarding the expansive soil condition, and an additional 73 days caused by the Navy’s decision to change the Notice To Proceed.” She also decides that the request to amend the complaint with the cardinal change count should be denied as matter of law after an extensive discussion of whether “an issue, not raised by the pleadings, was tried by the parties’ express or implied consent.” Regarding the coduct of the CO she notes “Nevertheless, inexperience and even incompetence do not amount to a breach of good faith and fair dealing on the part of government employees/ ”“The decision also contains four exhibits listing the parties witnesses, the nature of the modifications and a graphical depiction of the evolution of count 2 of plaintiff’s complaint.

ROAD AND HIGHWAY BUILDERS, LLC a Nevada limited liability company v. THE UNITED STATES, COFC No. 09-401C, December 08, 2011. Not a procurement contract case. Plaintiff sues for return of money paid in settlement for the Internal Revenue Service(IRS) for release its tax liens on certain property. The IRS liens on the property were later found to be invalid because of defective service. Plaintiff also alleges bad faith on the part of IRS officials. The government moves to dismiss arguing “that if there was a failure of consideration, as plaintiff contends, then there is no valid contract, and plaintiff must therefore base its action on allegations that defendant misrepresented the validity of the tax liens or misrepresented that it would exercise its right to redemption, i.e., tort claims.” Judge Margolis denies the motion noting “A plaintiff need only plead the existence of a valid contract to invoke the Court’s jurisdiction; it need not ultimately prove a valid contract.” The court rejects plaintiff’s argument that presumption of good faith is limited to cases where a government official is accused of fraud or quasi-criminal wrongdoing. (See some language in Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1240 (Fed. Cir. 2002),) Judge Margolis notes that “Since the Am-Pro Protective Agency decision, however, the Federal Circuit has consistently applied the presumption of good faith (and the irrefragable/clear and convincing evidentiary standard) to cases not involving allegations of fraud or quasi-criminal wrongdoing.”

VERIDYNE CORPORATION v. THE UNITED STATES, COFC Nos. 06-150C & 07-647C, December 05, 2011. Interesting case on the issues of expert and lay opinion testimony. Fraud forfeiture of claims case. See earlier decision. Plaintiff files a motion in limine to prevent the testimony of Cornelius, an SBA official, arguing that the testimony should be excluded as it is either expert testimony or lay opinion testimony. The government identified the substance of proposed testimony as the “SBA 8(a) program and the impact of contractor fraud and abuse on program goals and integrity.” Plaintiff argues that the proposed testimony does not comport with the United States Supreme Court’s mandates in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Judge Christine Miller grants the motion and precludes the testimony from being introduced at trial. She notes that the government “Having elected not to make a showing that Mr. Cornelius’s testimony satisfies the three requirements of Fed. R. Evid. 702 or the standards in Daubert and Kumho, defendant cannot offer it as expert opinion testimony.” Regarding use of the testimony as lay opinion she notes “Defendant has the burden of proving actual damages under the FCA and should not be allowed to discharge it by introducing evidence of the impact on the future of the SBA’s efforts to make similar contracts available to small businesses. Mr. Cornelius’s testimony will do nothing to illuminate the Government’s case in this regard because, except to the extent he offers opinion testimony—which already has been deemed inadmissible—he can no more than speculate on the unquantifiable impact of the alleged fraud on the future of the 8(a) program.”

IBM CORPORATION, U.S. FEDERAL v. THE UNITED STATES, and SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, and CACI-ISS, INC., and HP ENTERPRISE SERVICES, LLC, Defendant-Intervenors, COFC No.11-533C , December 01, 2011. Court’s synopsis: Post-award bid protest; agency properly evaluated strengths and weaknesses of plaintiff’s proposal; agency’s adjectival ratings of plaintiff’s proposal were proper; agency did not introduce a new factor not described in solicitation in evaluating plaintiff’s proposal for veterans involvement; agency did not engage in disparate treatment in evaluating proposals; SSA’s findings of technical superiority and technical equality were rational and adequately documented; bestvalue analyses were unnecessary when SSA found that lower-priced proposals were technically superior or equal to plaintiff’s proposal; SSA’s best-value tradeoff analyses were thoroughly explained, documented, and rational; FAR 15.101-1; FAR 15.308; Blue & Gold Fleet L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007), waiver of challenge to terms of solicitation; meaningful discussions; FAR 15.306.

ORION TECHNOLOGY, INC. v. THE UNITED STATES and STRATEGIC RESOURCES, INC., Defendant-Intervenor, COFC No. 11-573C, December 01, 2011. Bid protest, Army procurement. Plaintiff moves to supplement the administrative record with the declaration of an expert that it had submitted in the earlier GAO protest. The expert was a former Army procurement official who concluded that the Army had acted improperly when evaluating plaintiff’s proposal. Judge Sweeney first notes that “Inclusion of documents in the record of a GAO protest is not an automatic ticket that the same documents will be added to the administrative record before the Court.” She denies the motion to supplement the record with the expert’s declaration. She explains “consideration of the expert declaration would not assist the court in providing meaningful judicial review of plaintiff’s protest. The court’s review of the Army’s decision to exclude plaintiff from the competition is limited to determining whether the Army’s decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. [citations omitted] Consideration of an expert opinion directed solely at the propriety of the Army’s decision, like the expert opinion here, risks improperly converting the court’s more deferential undertaking into a de novo review.”

MED TRENDS, INC. v. THE UNITED STATES, COFC No. 11-712 C, November 30, 2011. Pre-award bid protest of a task order under a Department of Veterans Affairs (VA) T4 multiple award contract. Plaintiff argues that the task order should have been set aside for SDVOSBs and then argues that the work should not have been restricted to holders of the T4 multiple award contracts. Plaintiff also argues that the court should overturn the decision by the VA to suspend plaintiff from Federal procurements. The government moves to dismiss arguing that plaintiff lacks standing as it is not an interested party because it is suspended; did not hold a T4 multiple award contract; and waived other arguments under the Federal Circuit decision in BLUE & GOLD, FLEET, L.P. v. UNITED STATES. Judge Bush dismisses the action for lack of standing as plaintiff has failed to show that it is an interested party. She agrees that plaintiff has waived several of its arguments and that it cannot challenge the suspension in this action. Good discussion of the cases dealing with the suspension jurisdictional issue.

SIKORSKY AIRCRAFT CORPORATION v. THE UNITED STATES, COFC Nos. 09-844C & 10-741C , November 30, 2011. Cost Accounting Standards case which arises from the final decision by the CO demanding that Sikorsky pay the government approximately $80 million premised on the contention that Sikorsky had improperly allocated certain overhead costs to its government contracts. After the Federal Circuit’s decision in MAROPAKIS CARPENTRY, INC. v. THE UNITED STATES, CAFC No. 09-5024, June 17, 2010, plaintiff submitted another claim to the CO requesting a decision on Sikorsky’s affirmative defenses to the government’s claim. After the CO said he lacked authority to decide the claim as the matter was in litigation, plaintiff filed a second complaint. The government moves to dismiss the second complaint and move for motions in limine and the permission to serve additional interrogatories. Judge Lettow notes “In essence, by the pending motions, the parties have asked the court to provide a general interpretative framework for the most relevant Cost Accounting Standard, 48 C.F.R. § 9904.418, and in particular Section 9904.418-50, to guide their preparation of the consolidated cases for trial and final disposition. Restated another way, the motions reflect the parties’ and the court’s efforts in this complex case to isolate and resolve relevant issues of law prior to completion of discovery and then, ultimately, trial.” After what could be described as an excellent primer on cost accounting and the Cost Accounting Standards Board, including the legislative and regulatory history of CAS 418, he denies the government’s motions. The opinion also discusses the applicability of the Maropakis case.

VANGUARD RECOVERY ASSISTANCE, JOINT VENTURE v. UNITED STATES, and AECOM SERVICES INC., FLUOR ENTERPRISES, INC., NATIONWIDE INFRASTRUCTURE SUPPORT TECHNICAL ASSISTANCE CONSULTANTS, LLC, and CH2M HILL-CDM PA TAC RECOVERY SERVICES, Defendant-Intervenors, COFC No. 11-39C, November 29, 2011. Post-award bid protest, FEMA multiple award contracts for architect-engineering services. After several other protests at the agency and GAO, plaintiff brings this action complaining “that FEMA overlooked information about the incumbents’ performance that was ‘too close at hand’ to ignore, used disparate standards in assessing the proposals, and misapplied the evaluation criteria.” Although Judge Lettow’s opinion is very critical of FEMA, finding that FEMA violated statute and regulation by not compiling performance information on the predecessor contracts, he finds that plaintiff was not prejudiced as it has not shown that it had a substantial chance of receiving an award and therefore finds for the government and intervenors on the administrative record.

SURVIVAL SYSTEMS, USA, INC., v. THE UNITED STATES OF AMERICA, and PROACTIVE TECHNOLOGIES, LLC, Defendant-Intervenor, COFC No.11-534 C, November 28. 2011. Post-award bid protest, US Marine Corps fixed-price lowest price technically acceptable contract for underwater egress training and maintenance support. After several protests to the GAO and corrective action by the government plaintiff brings this action challenging the agency’s technical evaluation of ProActive’s proposal and the agency’s evaluation of ProActive’s pricing proposal for reasonableness and unbalanced pricing. Chief Judge Hewitt finds for the government on the administrative record. Although she finds that the technical evaluation was proper, she also finds that plaintiff waived the technical evaluation argument as it “failed to raise this challenge in its initial brief moving the court to grant judgment on the administrative record.” After a good discussion on price reasonableness evaluation she finds that the agency’s price analysis was reasonable.

STANDARD COMMUNICATIONS, INC., Plaintiff, v. THE UNITED STATES, Defendant, and CACI-ISS, INC., and HP ENTERPRISE SERVICES, LLC, and SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, Defendant-Intervenors, COFC No. 11-530 C, November 22, 2011. Post-award bid protest Department of Veterans Affairs (DVA) best value multiple award ID/IQ contract for IT services with a number of awards reserved for SDVOSB and VOSB firms. Judge George Miller “GRANTS IN PART and DENIES IN PART plaintiff’s motion for judgment on the administrative record, GRANTS IN PART and DENIES IN PART defendant’s and defendant-intervenor HP’s motions for judgment on the administrative record, and DENIES defendant’s motion to dismiss as moot. The Court also orders certain tailored injunctive relief in favor of plaintiff.” Specifically the court finds that in two instances the best-value tradeoff was “insufficiently documented in violation of FAR. Without adequate documentation, it is not possible to determine whether the SSA engaged in an appropriate best-value tradeoff analysis.” Judge Miller did find plaintiff’s arguments that SDVOSB firms should take precedence over VSOB firms were waived under the BLUE & GOLD, FLEET standard as that issue was present in the solicitation. The tailored injunction requires DVA to conduct a new best-value tradeoff analysis in the two instances which were found insufficient.

SERCO, INC. v. THE UNITED STATES and CAPSTONE CORP., intervenor, COFC No. 11-735 C, November 18, 2011. Post-award bid protest, Army contract for personal effects services. Plaintiff moves for reconsideration of the denial by the court of a TRO. Judge Block grants the motion and issues a TRO noting “Although plaintiff’s success on the merits is by no means certain, the court concludes that it is sufficient in light of the strong showing that the balance of hardships favors plaintiff.” He does require plaintiff to post a $300,000 bond.

GONZALES-MCCAULLEY INVESTMENT GROUP, INC. v. THE UNITED STATES, COFC No. 11-289C, November 14, 2011. HHS procurement for grant training services. Judge Wheeler notes “Despite its convoluted factual and procedural backdrop, this case ultimately turns on basic contract formation principles. ‘To prove the existence of a contract with the government, a plaintiff must prove four basic elements: (1) mutuality of intent to contract; (2) offer and acceptance; (3) consideration; and (4) a government representative having actual authority to bind the United States.’”[Citation omitted] Finding that that there was offer and acceptance he grants the motion of the government for summary judgment finding that there was no contract. Rejecting plaintiff’s prior dealing argument he notes “Nevertheless, while prior dealing is a useful tool in contract interpretation, there is no applicable authority for the proposition that it may be used to establish contract formation or to excuse a missing but necessary element of a government contract, especially where the government contractor did not render any services under the contract.”

ENTERGY NUCLEAR FITZPATRICK, LLC, ENTERGY NUCLEAR INDIAN POINT 3, LLC, and ENTERGY NUCLEAR OPERATIONS, INC. v. THE UNITED STATES, COFC No.03-2627 C , November 03, 2011. Spent nuclear fuels case. More on the Unavoidable Delays issue as the government moves for reconsideration of the 2010 decision striking the government’s unavoidable delay defense. The government argues that the recent Federal Circuit case SOUTHERN NUCLEAR OPERATING COMPANY, ALABAMA POWER COMPANY, AND GEORGIA POWER COMANY v. UNITED STATES, CAFC No. 2008-5020, March 11, 2011 “‘unequivocally” holds that the Northern States I writ of mandamus ‘does not bar’ assertion of the unavoidable delays defense in the Court of Federal Claims.” Judge Damich revisits Nebraska Public Power Dist. v. United States, 590 F.3d 1357, 1359, 1363 (Fed. Cir. 2010) (en banc) and the Southern Nuclear cases and notes that the “Court is in the unenviable position wherein it finds that a panel decision of its appellate body contradicts an earlier decision of that same court, a decision that moreover was rendered en banc. The difficulty is not made easier by the fact that the members of the later panel were all members of the majority in the en banc decision.”
“In sum, however, this Court’s analysis convinces it that the Federal Circuit in Nebraska Public Power ratified the effect of the mandamus barring use of the Unavoidable Delays clause as a defense to damages. The D.C. Circuit’s mandamus was intended to frustrate the Government’s effort ‘to free itself of the costs caused by its delay’ in meeting its unconditional statutory and contractual obligation to begin SNF acceptance by the January 1998 deadline. Northern States I, 128 F.3d at 760. ‘Beyond that implementation of its statutory ruling,’ the Federal Circuit ruled in Nebraska Public Power, the D.C. Circuit properly left the remaining issues of contract breach, enforcement, and remedy to the Court of Federal Claims. Nebraska Public Power, 590 F.3d at 1365 (emphasis added). Accordingly, as between the two decisions, this Court must find that Nebraska Public Power is the controlling precedent of the Federal Circuit.” Judge Damich denies the motion for reconsideration, but does certify the issue for an interlocutory appeal and stays the matter pending such an appeal, if taken .[See a somewhat similar case ROCHESTER GAS AND ELECTRIC CORP., and R.E. GINNA NUCLEAR POWER PLANT, LLC v. THE UNITED STATES, COFC No.04-118C, July 29, 2011]

LIBERTY AMMUNITION, INC. v. THE UNITED STATES, COFC No. 11-84C, October 31, 2011. Patent case with breach of contract claims. Plaintiff alleges the government infringed plaintiff’s patent for “green” ammunition and breached non-disclosure agreements(NDA) between plaintiff and the government. Plaintiff also includes an unfair competition claim. The government moves to dismiss all but the patent claims for either lack of jurisdiction or for failure to state a claim. The government argues, in part, that there is no contract as the transfer of the rights from plaintiff’s predecessor Marx, the inventor, violated the Anti-Assignment Act and voided any contract. Rejecting the jurisdictional issue and following the recent case Engage Learning, Inc. v. Salazar, __ F.3d __, __, 2011 WL 4618001,(Fed. Cir. 2011) Judge Lettow notes that “The actual existence of a contract is not a jurisdictional matter but rather a decision on the merits of the case. ” Regarding the waiver by the government of the Anti-Assignment Act, Judge Lettow points out that plaintiff has made a prima facie case that it may qualify for two of the exceptions to the Act. The government argues that the court lacks subject matter jurisdiction of the unfair competition claim under either the Lanham Act or Florida’s deceptive practices law. Plaintiff urges the court to exercise pendant jurisdiction over those claims. After a good discussion of the pendant jurisdiction issues the court dismisses the unfair competition claim. The court notes that Congress has specifically limited Lanham Act jurisdiction to the District courts. Declining to exercise pendant jurisdiction over the state law claim, the court notes “the state and federal claims do not overlap to such an extent that the court would resolve the former in the course of adjudicating the latter.”

EXXON MOBIL CORPORATION v. THE UNITED STATES, COFC Nos. 09-265C & 09-882C, October 31, 2011. Plaintiff seeks to be reimbursed for clean-up costs for two World II contracts for aviation gas. Following its decision in SHELL OIL COMPANY and ATLANTIC RICHFIELD COMPANY v. THE UNITED STATES, COFC No. 06-141C, May 27, 2010, Judge Smith holds that the Taxes clause of the contracts control and finds for plaintiff on the liability issue rejecting all of the government’s arguments including the argument that Ant-Deficiency Act bars the claim. He concludes “The facts of the case follow in the footsteps of Shell in which this Court previously decided the issues now raised again by the Defendant. Although this Court considered CERCLA in Shell, whereas this case concerns state law, the facts and analysis are the same and prompt this court to follow its holding in Shell. As in Shell, the very purpose of the contract clauses at issue was to remove the potential risks any reasonable producer would be reluctant to take on. To now argue that the guarantee was very limited in time while the risks are now doing damage is inconsistent with the whole purpose of the clause. It also ignores the plain language of the clause.”

SURVIVAL SYSTEMS, USA, INC. v. THE UNITED STATES OF AMERICA and PROACTIVE TECHNOLOGIES, LLC, Intervenor, COFC No. 11-534 C, October 28, 2011. Bid protest, United States Marine Corps procurement. The government moves to supplement the administrative record with a declaration of the person who conducted the independent analysis of the reasonableness of ProActive’s price proposal on behalf of the USMC. The government argues that the supplementation is needed to clarify the source of information relied upon and to avoid confusion by indicating that there was no oral communication with any offeror. Chief Judge Hewitt denies motion finding that the administrative record adequately explains the price reasonableness analysis and that all parties agree that there was no oral communication with the offerors.

D&S CONSULTANTS, INC., Plaintiff, v. THE UNITED STATES, Defendant, and CACI-ISS, INC., and HP ENTERPRISE SERVICES, LLC, Defendant-Intervenors, COFC No. 11-446C, October 28, 2011. Post-award bid protest, Department of Veterans Affairs IDIQ contract for IT services. Plaintiff argues that the government misevaluated its proposal “in a manner that was arbitrary, capricious, an abuse of discretion, and in violation of the Federal Acquisition Regulations (“FAR”) and its own Solicitation.” Much of plaintiff’s argument is based on its allegation that the government’s independent cost estimate (IGCE) was irrational and useless for evaluating offerors' proposals. Judge George Miller grants the government’ motion for judgment on the administrative record. He finds that the IGCE was rationally supported and was not arbitrary or capricious. He rejects arguments that evidence introduced at the GAO regarding the IGCE were post-hoc rationalizations, but were instead further explanation of the process used by the agency. Judge Miller also rejects the arguments that discussion were misleading or inadequate.

THE MARQUARDT COMPANY v. THE UNITED STATES, COFC No. 09-642 C, October 27, 2011. Plaintiff sues for breach of an agreement by the government to use its “best efforts” to obtain funding of $1,437,194.58 to resolve issues on some 23 supply contracts. The government moves for summary judgment arguing that plaintiff “must be able to prove that it would have received more money but for the alleged breach of the Government’s best-efforts obligation.” and that plaintiff, “cannot, and has thus failed to create a genuine issue of material fact on the issue of damages, an essential element of its breach of contract claim and a precondition to recovery.” Chief Judge Hewitt denies the motion noting that “However, it is the moving party, defendant, who bears the initial burden of proof on summary judgment. It appears that defendant misunderstands its burden of proof and it is far from clear to the court that defendant’s motion is a proper use of RCFC 56.“ Good discussion of the summary judgment standards plus the “best efforts” issue.

IMPRESA CONSTRUZIONI GEOM. DOMENICO GARUFI v. THE UNITED STATES, COFC No. 99-400C, October 21, 2011. EAJA case, post-award bid protest. Chief Judge Hewitt awards EAJA fees finding that the position of the government was not substantially justified on the affirmative finding of responsibility issue. She denies many of plaintiff’s fees either finding that the costs are not allowable or were not properly documented. A rather complete primer on recovery of fees under EAJA. (See original 1999 COFC decision and 2001 Federal Circuit decision.) [Although tempted to call this the final chapter, I decline as I have said that too many times before in this case-jaw]

NETSTAR-1 GOVERNMENT CONSULTING, INC., Plaintiff, v. THE UNITED STATES, Defendant, and ALON, INC., Defendant-Intervenor, COFC No. 11-294C, October 17, 2011. Post-award bid protest of a BPA issued by the United States Immigration and Customs Enforcement (ICE) for management services. Plaintiff alleges the existence of an unmitigated OCI. See earlier decision where Judge Allegra issued a Preliminary Injunction. Judge Allegra now finds that a “contracting officer’s delayed identification of a potential organizational conflict of interest, and subsequent efforts to mitigate that conflict, constituted agency conduct that was arbitrary, capricious and otherwise contrary to law.” and finds for plaintiff on the administrative record and enjoins the government and intervenor from performing the contract. Judge Allegra notes “For one thing, there is no indication that an agency’s failure to adhere to the FAR’s requirements regarding OCIs may be remedied by the expediency of obtaining post hoc declarations from the winning contractor denying any wrongdoing. Can it be that the drafters of the FAR dedicated a whole subpart’s worth of guidance to how and when to identify such conflicts, as well as how and when to mitigate the conflicts so identified, yet subscribed to the notion that the failure to follow these procedures could be cured by having the awardee swear up and down it did nothing improper? Of course not. As this court stated in granting plaintiff’s motion for preliminary injunction, ‘if the latter were enough, one must wonder why the drafters of the FAR bothered to develop an extensive set of rules to deal with such conflicts . . .’ NetStar-1 Gov’t Consulting, 97 Fed. Cl. at 734. Under well-established principles of administrative law, this court is loathe to construe any regulation in a way that would render it ineffectual. And it is no more inclined to defenestrate the FAR provisions in question – which is exactly what would happen were the court to countenance the post-award palliative offered up by defendant here. The court cannot do this even in the name of deferring to agency discretion, as the agency has the discretion neither to ignore the FAR nor to render any of its provisions moribund. To hold otherwise would, if nothing else, run counter to the long-standing reasons for having the OCI regulations in the first place.” Good discussion of the FAR as related to OCI issues.

U.S. FOODSERVICE, INC., Plaintiff, and LABATT FOOD SERVICE, L.P., Plaintiff-Intervenor, v. THE UNITED STATES, COFC No. 11-376C, October 12, 2011. Pre-award bid protest, Department of the Army Defense Logistics Agency Troop Support to provide food and beverage support to included military and civilian customers in the Texas and New Mexico regions. Protestors challenge the class waiver from commercial practices, and in particular, the Most Favored Customer(MFC) clause. The 41 page opinion sets out the rather complicated arrangements in the food support industry and discusses the relevant case law. Judge Christine Miller enjoins the government from conducting negotiations on the solicitation with the existing MFC clause and from issuing a solicitation for a prime vendor that contains the same MFC clause. Judge Miller’s comment on page 24 summarizes the case. “this court finds that DLA Troop Support did set forth an adequate and reasonable basis in executing its Class Waiver to depart from the customary practices of the food-service distribution industry. But, when examining for reasonableness the methodology substituted for the displaced commercial practices, this court finds that the MFC clause crafted by DLA Troop Support exceeds the bounds of rationality and amounts to an arbitrary and capricious requirement foisted on potential offerors. Given that the mandates of this particular clause pervade all aspects of pricing under the Solicitation, plaintiffs have succeeded on the merits of their challenge to the Solicitation.”

SEABORN HEALTH CARE, INC., and TOP ECHELON CONTRACTING, INC., v. THE UNITED STATES and TEAMSTAFF GOVERNMENT SOLUTIONS, INC. Defendant-Intervenor, COFC Nos. 11-489C & 11-500C, October 11, 2011. Pre-award bid protests, of a BPA limited to holders of FSS contracts by the Department of Veterans Affairs(VA) for pharmacist and pharmacy technician staffing services at seven locations. The VA made award for all locations to Teamstaff, the intervenor. Judge Wheeler finds that Seaborn lacks standing and notes Seaborn’s “rating on the non-price evaluation factors was no better than eighth among eleven evaluated offerors. Seaborn contests the VA’s evaluation of its own proposal as well as Teamstaff’s, but it does not question the evaluation of any of the other six offerors who were rated higher than Seaborn overall. On the record presented, the Court finds that Seaborn could not materially improve its position to be in contention for award. Accordingly, Seaborn is not an ‘interested party’ under 28 U.S.C. § 1491(b)(1) because it does not have a ‘substantial chance’ of being awarded the contract for any of the VA facilities.” The court finds for the government and intervenor on the administrative record. He rejects the argument by Top Echelon that “that the evaluation factor weights actually employed by the VA were misleading to offerors when compared to the description of the evaluation criteria in the solicitation;” and “that the VA had a preference for a single award for all seven facilities, which constituted an unstated evaluation criterion”

INTERNATIONAL INDUSTRIAL PARK, INC., et al. v. THE UNITED STATES, COFC No. 09-691C, October 07, 2011. Corps of Engineers barter contract for the relocation of an easement. See earlier decision which held that the contract was not a procurement, but involved real property in being and was not subject to the CDA. Good discussion of the rejection of most of the government’s defenses-meeting of the minds, rescission and waiver. Judge Wheeler awards expectancy damages of $1,708,185, but rejects the higher claim by plaintiff as an unreasonable interpretation of the contract.

AKAL SECURITY, Inc., v. THE UNITED STATES, and METROPOLITAN SECURITY SERVICES, Inc. Defendant-Intervenor, COFC No. 11-562 C, September 27, 2011. Bid protest, United States Marshals Service contract for security services at the Fourth Circuit. Briefing will not be complete until November 08, 2011 and government plans to proceed with an award on October 01, 2011. Judge Braden issues a TRO enjoining the government from proceeding until November 15, 2011. Although not reaching the issue the likelihood of plaintiff of success on the merits because briefs were not available, she decides that the other factors for injunctive relief merit a TRO.

FIRSTLINE TRANSPORTATION SECURITY, INC., v. THE UNITED STATES, ands AKAL SECURITY, INC., Intervenor-defendant, COFC No. 11-375 C, September 27, 2011. Post-award bid protest, TSA contract for security screening services at Kansas City International Airport. Plaintiff challenges the award decision arguing, primarily, that the TSA made award on a low price technical acceptable basis rather than on a best-value basis as required by the RFP. Judge Bush agrees and somewhat summarizes her conclusions as “The source selection decision statement here is nothing more than the unsupported adoption of the SSEB report, along with a conclusory assertion that intervenor’s proposal represents the best value to the government. The court has held that the SSEB failed to perform a proper best-value tradeoff analysis. The court further holds that the SSA’s adoption of the flawed SSEB recommendation does not show that the SSA conducted a comparative assessment of proposals, in this case a best-value determination, as required by the RFP. Furthermore, the documentation requirements of FAR 15.308 were not satisfied by the SSA in this procurement. In so holding, the court has essentially set forth the core of its ruling in this case, i.e., that the source selection decision in this procurement, as manifested in the SSEB report and the SSA’s award decision, was fatally flawed and cannot stand.” Although the court finds that the price evaluation was irrational for not considering certain items, she concludes that a protest of this issue was waived under the rationale of BLUE & GOLD, FLEET, L.P. v. UNITED STATES, and HORNBLOWER YACHTS, INC., CAFC No. 2006-5064. Judge Bush grants plaintiff’s motion for a permanent injunction and orders that TSA is restrained and permanently enjoined from awarding to intervenor and must cancel or amend the solicitation. Very good discussion of best-value procurements and the requirement to justify and explain the tradeoff analysis.

WHITE BUFFALO CONSTRUCTION, INC. v. THE UNITED STATES, COFC Nos. 99-961C, 00-415C, 07-738C(consolidated), September 22, 2011. Federal Highway Administration contract to repair roads in the Siskiyou National Forest. Plaintiff appeals the termination for default and argues bad faith by the government and a breach of the implied duty of good faith and fair dealing. Plaintiff includes claims for lost profits. During the pendancy of the actions at the COFC the government converted the default termination into one for the convenience of the government. Judge Smith awards the termination for convenience damages, but concludes “that the Government neither breached the implied duty of good faith and fair dealing, nor acted in bad faith in terminating White Buffalo’s contract.” Finding no bad faith he dismisses the lost profits claims as moot.

BLUESTAR ENERGY SERVICES, INC., d/b/a BLUESTAR ENERGY SOLUTIONS v. THE UNITED STATES, COFC Nos. 11-460C and 11-461C, September 22, 2011. Post-award protests of GSA and DLA contracts for supply of electrical power. Plaintiff alleges that the government “improperly (1) bundled contracts, (2) excluded SDVOSBs, and (3) included a VA procurement in a contract bundle that did not comply with the procedures required for VA procurements” and that it was “improper for DLA to require that all SDVOSBs and SBCs seeking set-asides satisfy the Nonmanufacturer Rule (NMR).” Both solicitations required the submission of a technical proposal and a later price proposal. Plaintiff did not submit price proposals. The government moves to dismiss for lack of standing arguing that plaintiff is not an interested party. After an extensive discussion of the cases, Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006) and RhinoCorps Ltd. v. United States, 87 Fed. Cl. 673 (2009), Judge Christine Miller concludes “The two factors relied on by this court in distinguishing RhinoCorps II from Rex Service are not present here. Plaintiff, therefore, is neither an actual nor a prospective bidder and cannot be deemed an interested party for purposes of invoking this court’s bid protest jurisdiction.” Judge Miller also finds the action is moot as the VA has found that plaintiff is not qualified as a SDVOSB.

EAST WEST, INC. v. THE UNITED STATES, COFC No. 11-455C, September 21, 2011. Pre-award bid protest, NIH procurement for custodial services. Plaintiff moves to supplement the administrative record with a declaration from its vice president describing how plaintiff was misled by communications from NIH. The government opposes and moves to strike any mention of the declaration in plaintiff’s brief. Judge Wolski finds that the declaration meets none of the criteria for supplementation of the administrative record and denies the motion. However he does find that the declaration does address the issue of possible prejudice to plaintiff and allows the introduction as part of the court’s record as opposed to the administrative record. He therefore denies the motion by the government to strike.

CW GOVERNMENT TRAVEL, INC. d/b/a CWTSATOTRAVEL v. THE UNITED STATES, and CONCUR TECHNOLOGIES, INC., Defendant-Intervenor, COFC No. 11-298 C, September 16, 2011. Pre-award bid protest, GSA commerical services contract for travel services. Plaintiff objects to many provisiins of the solicitation including the argument that requiring fixed prices for the total 15 years, including options, is inconsistent withn customary commercial practice and is in violation of FAR 12.301(a)(2). Judge George Miller rejects all arguments except for the 15 year fixed price issue. He concludes “that GSA’s market research does not show that the terms of the Solicitation that require offerors to propose fixed prices for the three-year base period and each of the three four-year option periods at the outset of the contract are consistent with commercial practice. The Court concludes that the 15-year fixed pricing schedule is inconsistent with customary commercial practice in violation of FAR 12.301(a)(2). It follows that the terms of the Solicitation requiring the 15-year fixed pricing schedule with prices set at the outset of the 15-year contract are contrary to law and therefore invalid.” He “directs the entry of a declaratory judgment that GSA’s inclusion in the Solicitation of the 15-year fixed pricing schedule violates customary commercial practice and is therefore, in the absence of a valid waiver, arbitrary, capricious, and contrary to law.”

MED TRENDS, INC. v. THE UNITED STATES, and MICROTECHNOLOGIES, LLC, COFC No. 11-420, September 13, 2011. Post-award bid protest of a task order under the VETS GWAC. The government moves to dismiss arguing that the sunset provisions in FASA at 41 USC § 4106 (f)(3) only applies to the provision allowing protests to the GAO for task orders over $10,000,000. Judge Bruggink disagrees and holds that language at 41 USC § 4106(f)(3) “EFFECTIVE PERIOD.-This subsection shall be in effect for three years, beginning on the date that is 120 days after January 28, 2008.” can only be read to apply to all of the subsection, namely 4106(f). He therefore finds that the court has jurisdiction of the task order protest, but rules for the government and intervenor on the administrative record.

Insurance Company of the West v. THE UNITED STATES, COFC No. 09-509C, September 08, 2011. Plaintiff (ICW) was the surety on contract between the Navy and W.R. Chavez Construction Company, Inc. (Chavez). Plaintiff argues that is entitled to assert the claims as an equitable subrogee and assignee of Chavez. The government moves to dismiss for lack of jurisdiction. Judge Block grants the motion. He first rejects the equitable subrogation argument based on the Tucker Act finding that it “dies an unnatural death” as it was raised for the first time in the briefs and not in the complaint. He also notes that binding precedent of the Federal Circuit “does not recognize an equitable subrogee as being a ‘contractor’ for purposes of the CDA.” After an extensive discussion of the Anti-Assignment Acts, 41 USC § 15 (now 41 § USC 6305, Pub Law 11-350 for contracts and 31 USC §3727 for claims, and relevant case law Judge Block finds that plaintiff has filed to prove that the Navy waived the protections of those acts or that the Navy’s silence clearly amounted to a tacit acceptance,

AMBASE CORPORATION and CARTERET BANCORP, INC., Plaintiffs, and FEDERAL DEPOSIT INSURANCE, plaintiff-intervenor, v. THE UNITED STATES, COFC No. 93-531C, August 31, 2011. Winstar case, damages decision. Finding that plaintiff proved that its “successful performance prior to the Government’s breach demonstrated that the thrift would have survived absent the breach”, Judge Smith awards lost value expectancy damages in the amount of $205,013,000 dollars, plus tax gross-up if applicable. Because of the award if expectancy damages, he rejects plaintiff’s alternate theories of wounded bank damages, reliance damages and restitution damages. Judge Smith concludes with this remark “As this Court has said in numerous opinions with regard to the Winstar cases, the real injustice of this opinion is that it does not include any interest or attorneys’ fees award. Sovereign immunity does not allow the Court to grant these amounts. In dollar terms Plaintiffs will receive about one third of the value of what they have lost by the breach. This is unfair and unjust but the Congress, not the Court, must address this injustice. Unfortunately, the courts, at least at this juncture, are not the fora that can make the damaged parties whole. This represents one of those gaps in our Nation's system of the rule of law. Our great Constitution's Framers were men of extraordinary vision. They understood that while a framework for the protection of rights under law had been established in 1789, its complete fulfillment was an ongoing project for the ages. Through statute and executive action our Nation has moved toward that goal. This is a case where the movement should continue through the legislative process.”

PORTLAND GENERAL ELECTRIC COMPANY, CITY OF EUGENE, OREGON, acting by and through the EUGENE WATER AND ELECTRIC BOARD, and PACIFICORP, v. THE UNITED STATES, COFC No.04-09C, August 26, 2011. Spent nuclear fuel case. Plaintiff moves to strike the government’s assertion of unavoidable delay as an affirmative defense and to prevent the government from offering any evidence at trial in support of that defense. Judge Bruggink grants the motion finding that as matter of law the government’s complete failure to perform does not fall within the unavoidable delay provisions of the standard contract. Good discussion the relevant DC and Federal Circuit cases.

SYSTEMS APPLICATION & TECHNOLOGIES, INC. v. THE UNITED STATES and MADISON RESEARCH CORPORATION, Intervenor, COFC No. 11-280C, August 25, 2011. Plaintiff was the awardee of an Army contract in which intervenor was the incumbent. Incumbent filed a protest with the GAO and Army subsequently said it would take corrective action by terminating plaintiff’s contract, soliciting revised proposals and make a new source selection. Plaintiff protests the proposed corrective action arguing that the Army’ decision was irrational and arbitrary and, insofar as the Army relied on an email from the GAO attorney, the email from the GAO attorney was wrong and without a rational basis. The government and intervenor challenge toe jurisdiction of the court and the standing of plaintiff. Judge Sweeney finds for plaintiff on both the jurisdiction and standing issues after discussing the relevant statutory and case law authority. She holds that if the Army relied on the email from the GAO attorney then the court may review the message to determine if it was rational. She concludes that the email was in error and not rational. Even if the Army did not rely on the GAO email, she finds that the corrective action lacks a rational basis. The court enjoins the Army from implementing the proposed corrective action.

THE TAURI GROUP, LLC v. THE UNITED STATES and TASC, INC., Intervenor, COFC No. 11-361C, August 23, 2011. Past-award protest, Dod’s Defense Threat Reduction Agency. Supplementation and completion of the administrative record case. Judge Wolski grants the motion by the government to amend the administrative record and grants in part and denies in part plaintiff’s motion. He denies the request to take depositions, but does require that evaluator worksheets still in the possession of the evaluators be produced even though a consensus report was prepared. Some good discussion of the elements of an administrative record. He notes “Of course, in a bid protest, the administrative record need not consist of every single document related in any way to the procurement in question, but may be reasonably limited to materials relevant to the specific decisions being challenged. Under the government’s approach, however, an agency could distill its proposal evaluations to a single, summary report of conclusions presented to the SSA, which would constitute the only information considered and thus the ‘full’ record of a decision. But judicial review using the APA standard requires the Court to scrutinize whether the agency ‘considered the relevant factors and articulated a rational connection between the facts found and the choice made.’ Balt. Gas & Elec. Co. v. Natural Res.Def. Council, 462 U.S. 87, 105 (1983) (citation omitted). While not substituting its judgment for the agency’s, Court review ‘entails identifying the judgments made by the relevant officials and verifying that the relevant information was considered, the relevant factors were employed, and a satisfactory explanation was articulated.’ Fort Carson Supp. Servs. v. United States, 71 Fed. Cl. 571, 592 (2006) (citing Overton Park, 401 U.S. at 416, and Motor Vehicle Mfrs. Assn’ v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). An SSA is free to base his or her judgment on the evaluations and ratings of others, see USfalcon, Inc. v. United States, 92 Fed. Cl. 436, 453 (2010), but in doing so makes the judgments of those other officials relevant to a court’s review -- as that is where the facts were found and the connections to conclusions articulated. Like a calculus examination, what matters is not just the answers but the proofs.”

ALCATEC, LLC v. THE UNITED STATES, COFC No. 08-113C, August 14, 2011. FEMA contract for temporary housing following Hurricane Katrina. The government brings counterclaim for forfeiture under the Special Plea in Fraud (the Forfeiture of Fraudulent Claims Act), 28 U.S.C. § 2514; and counterclaims under the False Claims Act, 31 U.S.C. § 3729(a)(1). Plaintiff claims that it entitled to the fixed price of $6,111,000 for CLIN 001, phase-in costs, which the government reduced by $4,173,912 because of an error unknown to the government until after award. Judge Christine Miller never reaches the merits of this argument as she finds that the claim is forfeited by fraud. Although acknowledging “messy facts” her conclusion summarizes the cases as follows “The Government proved by clear and convincing evidence election decision.plaintiff’s fraudulent scheme to manipulate the dates on PMI checklists that ultimately formed the basis of claims against the Government and that called for the forfeiture of plaintiff’s claim for phase-in costs. Acts amounting to recklessness undergird the findings supporting FCA liability and penalties for a failure to adopt reasonable procedures to address a persistent problem of duplicate PMI checklists that plagued administration of this contract. These results are grounded in the court’s impression of the witnesses and evidence presented, but the forfeiture met the high burden of proof required to impose that penalty. Although plaintiff’s counsel admirably advocated for his client’s refrain of innocent mistake, in the end, the story that emerged was not one of mistake, but one demonstrating a specific intent to deceive FEMA with regard to the dates on which inspections were performed and a reckless indifference to the hundreds of duplicate inspections that were billed to FEMA. See Kamen Soap, 124 F. Supp. at 620 (‘It is difficult . . . to make up a story that is not apart of . . . one continuous design.’). Accordingly, based on the foregoing, the Clerk of the Court shall enter judgment, as follows:
1. Against plaintiff on its claim for the unpaid balance of $3.8 million and for defendant on its counterclaim for forfeiture of plaintiff’s claim pursuant to 28 U.S.C. § 2514.
2. For defendant on its counterclaim pursuant to 31 U.S.C. § 3729(a)(1) in the amount of $77,000.00 in penalties and damages in the amount of $275,050.00.”

K-CON BUILDING SYSTEMS, INC. v. THE UNITED STATES, COFC No. 05-1054C, August 19, 2011. Coast Guard contract for the design and construction of prefabricated buildings. Plaintiff moves for summary judgment challenging the assessment of liquidated damages and argues that damage rates specified in the contract are an unenforceable penalty. Judge Sweeney denies the motion, but rejects the argument by the government that the challenge is untimely as not challenged at the time of contract execution. She notes that although that a court must judge a liquidated damages clause as of the time of making the contract, that “does not prevent the court from examining those conditions after a breach has occurred, which may be several years later. Defendant has not cited any binding precedent that takes a contrary position. Thus, to the extent that certain nonbinding decisions of the Claims Court might be construed to suggest that a liquidated damages clause may only be challenged at the time of contract formation, this court declines to follow that reasoning.” She rejects plaintiff’s argument that damages are arbitrary as they are differ depending on the place of performance.[There were three contracts.] She notes that plaintiff has the burden to show that the rates were unreasonable which it has not done. Finally she rejects plaintiff’s argument that administrative costs of Coast Guard officials should not be included in liquidated damages “because these officials would have received their pay and benefits regardless of the status of the contract, their pay and benefits could not be recovered as damages in the event of a breach, and therefore could not be a component of the liquidated damages rate.” Judge Sweeney notes that those costs are a type of overhead and that “If a contractor can recover personnel costs as damages for delay, there is no reason to deny the government the same right.”

NILSON VAN & STORAGE, INC., COFC No. 10-716, August 12, 2011. Post-award bid protest, Army contract for moving of personal property. Plaintiff alleges faults in the determination of awardees responsibility including alleged errors and omissions in the Online Representations and Certifications Application(“ORCA”) and Central Contractor Registration(“CCR”) filings by awardee. Judge Lettow rules for the government on the administrative record after finding no merit in any of the arguments by plaintiff.

THE GEO GROUP, INC. v. THE UNITED STATES and COMMUNITY FIRST SERVICES, INC., Defendant-Intervenor, COFC No. 11-490C, August 09, 2011. Post-award bid protest, Bureau of Prisons procurement. Plaintiff, the incumbent, alleges a Procurement Integrity Act(PIA) violation and seeks an injunction to prevent performance by intervenor, CFS. Five days prior to bid submission, a vice president of plaintiff(Brown) who had been heavily involved in plaintiff’s proposal resigned and went to work for intervenor, a company which he had started while employed by plaintiff. Noting that some of the language in the two proposals was almost identical, the CO requested the DOJ OIG to investigate a possible PIA violation. The OIG found “no theft of GEO property or proprietary information, bid-rigging or other procurement integrity violations had occurred.” Judge Allegra describes the action as “GEO’s banner claim is that one of its former officials pirated critical information from its internal files and bid proposal and used that information in crafting CFS’ winning proposal. It asserts that the contracting officer acted arbitrarily and contrary to law in awarding CFS the contract because violations of the Procurement Integrity Act, 41 U.S.C. § 423 [now 41 USC 2102], and organizational conflicts of interest should have disqualified CFS from receiving an award.” Judge Allegra denies the motion for a TRO finding that plaintiff has little likelihood of success on the merits. He notes “For one thing, there is no indication that Mr. Brown’s actions gave rise to a violation of the Procurement Integrity Act. The provision that plaintiff claims was violated is 41 U.S.C. § 423(b), which states: ‘A person shall not, other than as provided by law, knowingly obtain contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates. A violation of this provision can be the basis for ‘a protest against the award or proposed award of a Federal agency procurement contract . . . .’ Id. at 423(g). Read in context, however, the quoted language, like the other provisions in section 423, appears to apply only to current or former officials of the United States or persons who are acting or have acted on such an individual’s behalf. As plaintiff is quick to point out, that conclusion is not apparent from the statutory language, which merely refers generically to a ‘person.’ But, this conclusion is supported by the overall structure of the statute, including the definitions therein of ‘bid and proposal information’ and ‘source selection information,’ both of which talk in terms of specific information obtained by a Federal agency. See 41 U.S.C. § 423(f)(1)-(2). Here, of course, Mr. Brown did not obtain the information in question from BOP or any other government source, but rather from GEO itself. The conclusion, moreover, that section 423(b) applies only to government employees and their agents derives support from the legislative history of the statute, which refers to the provision in question as applying to ‘present or former federal employees,’ H. Conf. Rep. No. 104-450, at 969 (1996), and from the Federal Acquisition Regulations (FAR) that implement this provision, see 48 C.F.R. § 3.104-4.” Judge Allegra also chides plaintiff for its delay in filing this action.

NORMANDY APARTMENTS, LTD v. THE UNITED STATES, COFC No. 10-51C, August 02, 2011. Plaintiff was a participant in a HUD Housing Assistance Payment contract and argues that HUD breached its contract. The government moves to dismiss arguing that plaintiff has no privity with the United States as plaintiff’s contract was with a state housing authority, not HUD. Plaintiff counters arguing that the government should be estopped from arguing that there was no contract as contrary to positions the government took in a District court and the 10th Circuit in earlier proceeding in this matter. Judge Allegra notes that there is a conflict in the circuits courts whether the judicial estoppel doctrine may restrain a party from arguing lack of jurisdiction, but finds that the government did not mislead the 10th Circuits courts and that the doctrine is not applicable here. Good discussion of the estoppel cases. Judge Allegra rejects all of the arguments of plaintiff that privity existed between the parties and dismisses the contract claim. However, without speculating on the merits of such a claim, he does allow plaintiff to amend its pleadings to assert a regulatory takings claim.

ROCHESTER GAS AND ELECTRIC CORP., and R.E. GINNA NUCLEAR POWER PLANT, LLC v. THE UNITED STATES, COFC No.04-118C, July 29, 2011. Spent nuclear fuels case. The government moves to amend its answer and include an affirmative defense of unavoidable delays. Judge Margolis grants the motion in part denies in part. He states “Defendant is barred from asserting the unavoidable delays clause in the Contract for Disposal of Spent Nuclear Fuel and/or High Level Radioactive Waste (the ‘standard contract’), 10 C.F.R. ¶ 961.11, as a defense to liability; defendant is not, however, barred from asserting the clause in opposition to a demand for particular relief, such as expectancy damages.” The opinion discusses the relevant Circuit cases. The Unavoidable Delays Clause-“Plaintiffs argue that the proposed amendment is barred by controlling precedent, namely the en banc decision in Nebraska Public Power District v. United States, 590 F.3d 1357 (Fed. Cir. 2010). Defendant argues that in Southern Nuclear Operating Co. v. United States, 637 F.3d 1297 (Fed. Cir. 2011), the Federal Circuit unequivocally confirmed the Government’s right to assert the unavoidable delays defense before the United States Court of Federal Claims.” The Avoidable Delays Clause-“Plaintiffs argue that the Government’s unavoidable delays defense is barred by Maine Yankee Atomic Power Co. v. United States, 225 F.3d 1336, 1340-42 (Fed. Cir. 2000), and Northern States Power Co. v. United States (‘Northern States Power II’), 224 F.3d 1361, 1366-67 (Fed. Cir. 2000). Defendant argues that Maine Yankee and Northern States Power II do not bar the Government from arguing the unavoidable delays defense in this Court.
    Maine Yankee and Northern States Power II do not address the unavoidable delays clause; rather, they address the avoidable delays clause, which covers only ‘the kind of delays that routinely may arise during the performance of the contract,’ Maine Yankee Atomic Co., 225 F.3d at 1341, see also Northern States Power II, 224 F.3d at 1366-67, such as ‘delay[s] in the delivery, acceptance or transport of SNF ... caused by circumstances within the reasonable control of either the Purchaser or DOE,’ 10 C.F.R. ¶ 961.11 Art.IX.B. The unavoidable delays clause, by contrast, covers delays that will not typically arise during the performance of the contract, such as ‘acts of God, or of the public enemy, acts of Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and unusually severe weather.’ 10 C.F.R. ¶ 961.11 Art.IX.A. Maine Yankee and Northern States Power II therefore present no obstacle to defendant’s invocation of the unavoidable delays clause as a defense to plaintiff’s request for damages.”

OUTDOOR VENTURE CORP. v. THE UNITED STATES, COFC No. 11-353 C, July 25, 2011. Post-award bid protest, Defense Logistics Agency(DLA) procurement for two man tents. Plaintiff was awarded the contract and a subsequent protest to the GAO stayed the award. The protest alleged, in part, that plaintiff did not meet the SBA size standards. GAO suggested that DLA refer the size issues to SBA, which it did. SBA determined that plaintiff was not small for this procurement and plaintiff’s appeal to OHA was untimely. The government moves to dismiss arguing that an awardee has no standing to bring a protest at the COFC. Chief Judge Hewitt agrees and dismisses the action. She rejects all arguments by plaintiff and also finds that the SBA decision whether or not to reopen the case is left to the discretion of SBA and is not reviewable by the court.

JOINT VENTURE OF COMINT SYSTEMS CORPORATION AND EYEIT.COM, INC., NETSERVICES & ASSOCIATES, LLC v. THE UNITED STATES and NETCENTRICS CORPORATION DIGITAL MANAGEMENT, INC., and POWERTEK CORPORATION, Intervenor, COFC Nos. 11-400 C, 11-416 C, July 22, 2011. Post award bid protest, DOD contract. Courts's synopsis: Postaward Bid Protests; 28 U.S.C. Sect. 1491(b); Motions to Compel Supplementation of the Agency Assembled Record in Order to Require Agency to Produce Complete Record; Motions to Dismiss Untimely Protest Grounds; Axiom Resource Management, Inc.; Difference Between Supplementing and Completing an Agency Record; "Core Documents" Relevant to Protest; RCFC Appendix C Sect. 7, Paragraphs 22-23; Meaningful Judicial Review Premised Upon Complete Record of Agency's Procurement; Linc Government Services, LLC; Agency Cannot Limit Record to Materials It Deems Relevant; Exxon Corp.; Internal Deliberative Documents Excluded Absent Allegations of Bad Faith

NCLN20, INC. v. THE UNITED STATES, COFC No. 02-1282C, July 21. 2011. Contracts with the Federal Protective Service for guard and other services in Michigan. Plaintiff challenges the termination for default and the subsequent conversion to a termination for convenience as improper actions resulting from bad faith by the government. Judge Braden finds that the default termination was improper because the cure notice was not compliant with the contract provisions or regulations. She rejects the government’argument that the cure notice requirement was waived by an alleged anticipatory repudiation. She does find however, that the facts do not support any of plaintiff’s bad faith allegations and the associated claims. The court also held that the government’s authentication of a critical GSA IG report on the termination did not constitute an admission of the facts or legal conclusions contained in the IG’s report. In a rather unusual event Judge Braden notes that she attended the deposition of the ACO to determine the deponents credibility. [Because of health issues of plaintiff’s counsel exhibits and depositions were filed in lieu of resuming the trial.]

UNITED CONCORDIA COMPANIES, INC. v. THE UNITED STATES and METROPOLITAN LIFE INSURANCE COMPANY Intervenor, COFC No. 11-276C, July 20, 2011. Post-award bid protest, TRICARE $3+ billion contract for the continuation of a comprehensive dental insurance program for family members of military personnel world-wide. Plaintiff, the incumbent, challenges the evaluation. Judge Bruggink finds for the government on the administrative record. He notes “We need not go into great detail as to plaintiff’s specific allegations as to why its proposal is superior to Met Life’s. Each must fail for the same reason-they amount to mere disagreements with the agency’s exercise of its own reasonable judgment.”

CALIFORNIA INDUSTRIAL FACILITIES RESOURCES, INC. v. THE UNITED STATES, and ALASKA STRUCTURES, INC., Defendant-Intervenor, COFC No. 11-299C, July 13, 2011. Plaintiff protests the sole-source procurement of 50-man shelters for use in Afghanistan and seeks a declaratory judgment to prevent the government from acting in future procurements as it did here. The contract is complete and the government move to dismiss as moot. Judge Wheeler denies the motion under an exception to the mootness doctrine where “the action complained of is capable of repetition, yet might again evade review.” The court finds for plaintiff on the administrative record. Judge Wheeler summarizes the case as follows: “In brief summary, the Court finds that this case is not moot because the Government’s violation of statutory competition requirements for the war effort in Afghanistan is capable of repetition, and could again evade review. The challenged actions were too short in duration to be fully litigated prior to completion, and there is a reasonable expectation that the complaining party will be subject to the same actions in the future.[citations omitted] The Court has jurisdiction of this matter under 28 U.S.C. § 1491(b) (2006).
  On the merits, the Court finds that the Government’s award of a sole source contract to AKS violated the competition requirements in 10 U.S.C. § 2304(e) (2006) and Federal Acquisition Regulation (FAR) 6.302-2(c)(2). Even when confronted with unusual and compelling urgency, the Government still must request offers from as many potential sources as is practicable. The Government was well aware that other sources would have been interested in competing for the contract, but the Government made no effort to contact any source other than AKS. The Government had 26 days between its awareness of the shelter system requirement (April 1, 2011) and the award of the contract to AKS (April 27, 2011), and it easily could have obtained competitive prices from other sources. The Government’s failure to do so was in violation of law.
  The Court also finds that the Government’s delay in publicly posting the Justification and Approval (J&A) of the award until after performance was done intentionally for the purpose of avoiding a bid protest, and therefore was arbitrary and capricious. Even though FAR 6.305(b) affords the Government 30 days after award to post the J&A, the Government’s actions were calculated to obstruct the interests of those who might object to the sole source award. The Government must at all times strive for ‘maintaining the public’s trust,’ and cannot conduct its business in a manner that undermines ‘integrity, fairness, and openness.’ See FAR 1.102-2(c). The Government did not meet this standard here. Accordingly, Plaintiff’s motion for judgment on the administrative record is granted, Defendant’s motion to dismiss or in the alternative for judgment on the administrative record is denied, and Defendant-Intervenor’s motion for judgment on the administrative record also is denied.”

JOYCE TERRY, d/b/a SHIRT SHACK v. THE UNITED STATES, COFC No. 09-454 C, July 08, 2011. The court vacates a portion of its earlier decision that it did not have jurisdiction as plaintiff did not comply with the administrative procedures of the CDA. The government “filed a notice of precedent in which it explains that its motion to dismiss count II of the amended complaint contained an ‘erroneous assumption.’ Defendant acknowledges that it failed to present the court with precedent demonstrating that Army Air Force Exchange Service (AAFES) concession contracts, such as the one at issue in this case, are not subject to the CDA.”

PATRICIA HOAG v. THE UNITED STATES, COFC No. 11-4C, July 06, 2011. Plaintiff filed claims for breach of contract with the VA and declaratory relief in a US District Court in Tennessee which were transferred to the COFC. Plaintiff seeks specific performance in transferring to it title to property which it alleges it purchased from the VA. She alleges she was damaged by the need to pay the IRS when she took money out of her IRA to purchase the property. The government moves to dismiss arguing lack of jurisdiction for the specific performance claim and the “full payment” rule for tax claims. Judge Horn agrees that the COFC lacks jurisidction for the specific performance claim, but finds that plaintiff has pled an aedquate breach claim noting “when deciding a case based on a lack of subject matter jurisdiction, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the non-movant's favor. In this case, plaintiff has asserted damages stemming from a breach of contract by the defendant, in excess of $10,000.00. Defendant’s brief motion to dismiss does not controvert any of the factual allegations submitted by the plaintiff. Therefore, plaintiff’s allegations are sufficient to lodge jurisdiction in this court. The Tucker Act vests the United States Court of Federal Claims with exclusive jurisdiction over contract claims against the federal government seeking more than $10,000.00.”

M.E.S., INC. v. THE UNITED STATES, COFC No. 10-92, June 30, 2011. Plaintiff had a contract with the United States Postal Service(USPS) to construct a post office which was terminated for default and the termination was upheld by the PSBCA and affirmed by the Federal Circuit. On February 16, 2010, plaintiff brings this action challenging the decision by the USPS CO denying its claim for “additional costs for change order work, differing site conditions, delay, additional office and site work, equipment and materials, and other damages due to defective specifications and actions of the USPS.” On March 01, 2010, the government brought an action against the surety, Travelers, in district court to enforce the performance bond and recover excess reprocurement costs. In February 2011, Travelers filed a motion to intervene and both Plaintiff and Travelers requested the court to enjoin the district court from proceeding in the case against the surety. The government opposes the intervention and the injunction. After an extensive discussion the right to intervene, Judge Sweeney allows the intervention and orders Travelers to “to file ‘a pleading that sets out the claim or defense for which intervention is sought’ within 14 days.” She denies injunctive relief noting “Congress gave the United States Court of Federal Claims jurisdiction under the Tucker Act to grant equitable relief as ‘an incident of and collateral to’ a money judgment. 28 U.S.C. § 1491(a)(2). The United States Court of Federal Claims, however, ‘has no power to grant affirmative non-monetary relief unless it is tied and subordinate to a money judgment.’ James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (quotation marks omitted). Because MES requests an injunction that is not ‘incident of and collateral to’ a judgment for money damages, the court does not have the authority to grant such injunctive relief.”

CASTLE-ROSE, INC. v. THE UNITED STATES, COFC No. 11-163C, June 28, 2011. Post-award bid protest, Corps of Engineers procurement. Plaintiff challenges the rejection of his proposal as being too late for consideration. The proposal was marked as being received at 2:06 p.m. when the closing time was 2:00 p.m., July 07, 2010. Plaintiff was not informed that its proposal was not being considered until so informed via communication with the CO on September 08, 2010. Plaintiff presents a multitude of arguments including that its courier was in the lobby of government building before 2:00:59 p.m. and therefore “argues that the decision by GAO in Haskell Co., B-292756, 2003 CPD ¶ 202, 2003 WL 22740610 (Comp. Gen. Nov. 19, 2003), supports the argument that a proposal due at “2:00 p.m.” is not late until after 2:00:59 p.m.” The government moves to dismiss arguing that plaintiff lacks standing as its proposal was late. Judge Lettow rejects the standing argument noting “Castle-Rose is disputing the very point upon which the government relies to try to eliminate its standing. Whether or not the submission was late is a question to be resolved on the merits, and the answer to that question should not be presumed in the defendant’s favor to deny a plaintiff the substantive review to which it is entitled.” However, the court finds for the government on the administrative record finding that plaintiff failed to prove that its proposal was under the control of the government by the closing time or that the actions of the government were arbitrary or capricious. Although agreeing that the CO failed to provide the notice required by FAR 15.208(f) when a proposal is received late, Judge Lettow finds that the lack of notice did not prejudice protestor. The court addresses and rejects all of the other arguments raised by plaintiff

HADDON HOUSING ASSOCIATES, LLC, and THE HOUSING AUTHORITY OF THE TOWNSHIP OF HADDON, NEW JERSEY v. THE UNITED STATES, COFC No. 07-646C, June 24, 2011. Contract for alleged breach of a HUD rental housing assistance contract. See earlier decision. Plaintiff Haddon Associates leased a property to the Housing Authority which entered into a housing assistance payments contract with HUD. The government “argues that Haddon Associates is not a proper plaintiff in this case because it was not initially a party to the HAP Contract, even though it is now party to that contract by way of an assignment in which HUD joined.” Judge Lettow finds that Haddon is a proper plaintiff in this case. The opinion discusses the two statutes which apply to restrict the manner in which contracts with the government and claims against the government can be assigned voluntarily: 41 U.S.C. § 15 and 31 U.S.C. § 3727 and the cases which address the assignment and privity of contract issues. Judge Lettow notes “The court looks to the totality of the circumstances to determine whether the government has waived the Anti-Assignment Act, and considers particularly whether: (1) the assignor or assignee sent notice of the purported assignment to the government; (2) the contracting officer signed the notice of assignment; (3) the contracting officer modified the contract according to the assignment; and (4) the government sent payment to the assignee pursuant to the assignment. (citations omitted). Where, as here, an authorized HUD representative is an actual signatory to the agreement, the government bargains for additional contractual benefits under the agreement, and the contract was modified to reflect the assignment, the government has waived the provisions of the Anti-Assignment Act.”

NORTHROP GRUMMAN COMPUTING SYSTEMS, INC. v. THE UNITED STATES, COFC No. 07-613C, June 23, 2011. Department of Homeland Security contract. Plaintiff brings this breach action after the CO denied its claim. Plaintiff’s claim to the CO did not disclose that plaintiff had assigned payments under the contract to a third party which had in turn assigned its rights to a fourth party. The government moves to dismiss arguing that “Northrop had submitted a claim to the contracting officer that failed to provide adequate notice of the nature of the claim and to reveal that the claim was for the losses of a third party.” Judge Allegra dismisses the complaint. After discussing the four elements of an adequate notice of a CDA claim he concludes that “by failing to reveal that it was sponsoring a claim on behalf of a second-level assignee, Northrop prevented the contracting officer from giving meaningful consideration to a host of issues raised by the assignments.” Regarding the Severen doctrine he notes “Strictly speaking, the question here, however, is not whether the Severin doctrine requires dismissal of this action. This court thus need not decide whether the assignment documents here exculpated Northrop from any liability. The court must rather decide whether Northrop should have alerted the contracting officer to the assignments, so that the latter could have considered, ab initio, whether Northrop was injured by defendant’s actions. And everything points to the conclusion that Northrop should have afforded the contracting officer this opportunity. Its failure to do so is particularly troubling given that the Severin doctrine is an affirmative defense that must be raised by defendant. Thus, defendant bears the burden of establishing that the claimant has been completely exonerated against claims brought by an assignee.”

TEXTAINER EQUIPMENT MANAGEMENT LIMITED, et al. v. THE UNITED STATES, COFc No. 08-610C, June 17, 2011. A rather unusual case. Plaintiffs assert a Fifth Amendment takings case against the Army alleging that the Army took plaintiffs’ property without compensation. Plaintiff leased shipping containers to TOPtainer which leased the containers to the Army. The Army exercised a provision its lease with TOPtainer that provided that containers not returned at the end of a grace period could be “deemed lost” such that the government would pay a depreciated reimbursement price per container to TOPtainer and title to the containers would pass to the government. The Army paid this amount to TOPtainer, but TOPtainer never paid this amount to plaintiffs. (TOPtainer cannot be located.) Judge Firestone denies the motion of plaintiff for summary judgment finding that are disputed facts, including “whether the plaintiffs’ containers were ‘lost’ and thus whether the government acted in its sovereign capacity when it did not return the containers to TOPtainer.”

NEWTECH RESEARCH SYSTEMS LLC v. THE UNITED STATES, COFC No. 10-140 C, June 16, 2011. Navy contract. Plaintiff the successor in interest to Sonetech Corp. and assignee of a contract awarded to Sonetech by the United States Navy “alleges that the Navy failed to reimburse Sonetech for costs it incurred during contract performance, made a unilateral modification to Sonetech’s contract by reallocating and diverting funds designated for the contract to one of Sonetech’s competitors, and engaged in fraudulent conduct during contract administration.” The government moves to dismiss for lack of jurisdiction arguing that the suit is barred by the six year statute of limitations or the one year time limit to appeal a CO’s final decision. Judge Sweeney grants the government’s motion to dismiss. She rejects the argument by plaintiff that those CO decisions wherein plaintiff had alleged fraud by the government were not valid decisions as FAR 33.210(b) provides that the CO had no authority to decide fraud issues. Judge Sweeney notes that plaintiff offers a contorted reading the of FAR provision and “completely ignores the overall regulatory scheme of which section 33.210(b) is a part.” She notes that FAR 33.209 refers to fraud “on part of the contractor,” She also rejects the argument raised regarding Federal Circuit decisions which noted that a CO decision which alleged fraud by the contractor was not invalid if other contractual grounds were relied on. She notes that the CO decisions “denied Sonetech’s claims entirely on contractual grounds.”

GEAR WIZZARD, INC. v. THE UNITED STATES, COFC No. 11-007 C, June 16, 2011. Pre-award and post-award protests of a DLA procurement for shifter forks. Plaintiff a small business manufacturer of shifter forks protests the cancellation of solicitation of a set-aside that was made to a large business and the decision to reprocure on an unrestricted basis. Plaintiff argues that it had an absolute bright to award under the original RFQ based on the language of FAR 19.502-2(a) which states “ ... If the contracting officer receives only one acceptable offer from a responsible small business concern in response to a set-aside, the contracting officer should make an award to that firm.” The government argues that it was rational to cancel the RFQ and reprocure in an unrestricted manner when it determined that there was not a reasonable expectation of receiving competitive bids from two or more small businesses. Chief Judge Hewitt finds for the government on the administrative record finding that the CO had a rational basis for his determinations, noting that the CO’s “market research indicates that it was difficult for other small businesses to compete with GWI’s price on its own product.”

CAROLINA POWER & LIGHT COMPANY, and FLORIDA POWER CORPORATION v. THE UNITED STATES, COFC No. 04-037C, June 14, 2011. Spent nuclear fuel case. The government appealed the some $83 million award arguing that the court used the wrong fuel acceptance rate. The Federal Circuit agreed and remanded the case back to the COFC. Using the proper rate Judge Wheeler now awards some $92 million in damages. Judge Wheeler rejects the argument by the government that the court now goes beyond the mandate from the Federal Circuit noting “In the Court’s view, Defendant’s criticism of Progress Energy’s model misconstrues the mandate. The Federal Circuit’s mandate does not call for a mere mechanical application of the 1987 ACR to the findings from the first trial. The mandate requires the Court to make a new determination, based on actions Plaintiffs would have taken had DOE performed under the 1987 rate, of whether Progress Energy’s mitigation costs were caused by DOE’s breach. The mandate thus requires Progress Energy to establish a new plausible ‘but for’ world using the 1987 ACR. While Progress Energy could have created a new ‘but for’ world based on precisely the same assumptions as the 2004 ACR model, the Court does not find that the new ‘but for’ world must be precisely like the one it created for the 2004 ACR model. The limit on the ‘but for’ world is the same as it was in the first trial, that it must be plausible. In this case, there is nothing unrealistic or unattainable about the ‘but for’ world that Progress Energy has created in the model. The Standard Contract allowed for the sharing of allocations. Furthermore, there is nothing implausible about taking Robinson fuel from Harris before Robinson fuel from Brunswick. The Court therefore finds that Progress Energy created a plausible ‘but for’ world on which to base its damages. The change in assumptions alone will not cause the Court to reject Progress Energy’s model.”

DEFENSE TECHNOLOGY, INC. v. THE UNITED STATES, and RICHARD J. DOUGLAS, Defendant-Intervenor, COFC No. 11-111C, June 14, 2011. Procurement for the acquisition of Mi-17 helicopters for use by the Afghan Army. Plaintiff protests the cancellation of a NAVAIR solicitation and the subsequent proposed sole-source award by the Army Aviation and Missile Life-Cycle Management Command (“AMCOM”) to Russian Defense Export (RDE), a Russian state-owned enterprise. (Russian law requires that the helicopters be obtained from RDE.) After cancellation of the NAVAIR solicitation, DoD exercised the public interest exception of 10 U.S.C. § 2304(c)(7). Although not required, AMCOM publicized the procurement and stated that it would consider all offers. Judge George Miller finds that the NAVAIR solicitation was properly cancelled, but determines that plaintiff is entitled to bid preparation and proposal costs for the AMCOM action. He rejected the argument by the government that the political question doctrine foreclosed jurisdiction by the court. After an extensive discussion of the six political questions factors set out by the Supreme Court in Baker v. Carr. 369 U.S. at 217, he concludes “Because none of the six Baker factors are ‘inextricably present in the facts and circumstances in this case,’ [citation omitted], the issues in this case present justiciable questions that are appropriate for judicial review.” A caption to the AMCOM element of the case summarized the holding - “The Government Violated FAR 1.102(b)(3), 1.102-2(c)(3), and 3.101-1 and Did Not Treat DTI Fairly When It Issued a Notice of Intent to Award a Sole-Source Contract to RDE Stating That ‘All Responsible Sources May Submit an Offer, Which Shall Be Considered,’ Even Though the Government Did Not Intend to Consider DTI’s Proposal.” As an aside, an initial footnote discusses Judge Miller’s reasons for denying the request by the government for redacting the names of various government officials.

NORTHEAST MILITARY SALES, INC. v. THE UNITED STATES, COFC No. 11-181 C, June 13, 2011. Post-award bid protest Defense Commissary Agency (DeC) procurement for Commissary delicatessen and bakery resale operations. See earlier decision on supplementation of the administrative record. “Plaintiff contends that the ‘evaluation conducted by Defendant . . . was arbitrary, capricious, and inconsistent with applicable law and the solicitation; and the evaluation was so fundamentally flawed that the combined impact of the errors encountered here clearly prejudiced Plaintiff.’” Chief Judge Hewitt addresses the many allegations of plaintiff and, in a quite heavily redacted opinion, finds for the government on the administrative record.

NETSTAR-1 GOVERNMENT CONSULTING, INC. v. THE UNITED STATES and ALON, INC., Defendant-Intervenor, COFC No. 11-294C, June 13, 2011. Post-award bid protest of a BPA issued by the United States Immigration and Customs Enforcement (ICE) for management services. Plaintiff alleges the existence of an unmitigated OCI. Judge Allegra grants a preliminary injunction enjoining the government and ALON from performing and requires plaintiff to post a $100,000 bond. Judge Allegra notes “serious questions regarding the timing and adequacy of the agency’s mitigation efforts.” and finds that “there is indication that the approach taken by the contracting officer to mitigate the conflicts of interest was arbitrary and capricious or otherwise contrary to law..”

JACOBS TECHNOLOGY INC., v. THE UNITED STATES and IBM GLOBAL BUSINESS SERVICES, Defendant-Intervenor, COFC 11-180C, June 07, 2011. Pre-award bid protest, United States Special Operations Command procurement. See earlier decision in this procurement. Consolidated case. IBM is plaintiff here. The government moves to dismiss for lack of ripeness and standing for “five specific IBM claims related to: (1) a violation of the Procurement Integrity Act, (2) the agency’s organizational conflict of interest analysis, (3) the appearance of impropriety, (4) demonstrated historical capability, and (5) past performance evaluation.” The government essentially argues that since award has not yet been made that the agency still has time to conduct PIA and OCI analyses. Judge Damich denies the motion noting that “the power to amend a solicitation does not mean that an allegation of a flaw in an existing term of a solicitation is not ripe for challenge. All that is necessary is that a decision can reasonably be inferred.” and “Ripeness is not a high threshold. The court does not have to believe that the protestor‘s challenges are likely to succeed. All that is necessary is that the issues are fit for judicial resolution and that there has been a showing of prejudice.” He does discuss the difference between an alleged flaw in the terms of a solicitation and an agency action or inaction. As in the earlier decision a good discussion of ripeness.

DOW ELECTRIC, INC. v. THE UNITED STATES, COFC No. 10-883C, June 02, 2011. Bid protest, Saint Lawrence Seaway Development Corporation procurement. Plaintiff who submitted the low bid for this sealed bid procurement for electrical system upgrades protests the finding that its bid was nonresponsive and seeks a declaratory judgment that plaintiff is entitled to the award. At issue was whether the GE panels proposed by plaintiff were equivalent to the “Square D, I-Line or equal factory assembled 480 volt panelboards” required by the solicitation. Judge Braden finds for the government on the administrative record. She rejects the argument that it was improper to refuse plaintiff’s offer to provide the Square D equipment with no increase in price. After pointing out that nothing in the administrative record supports such an offer, she states “In a sealed bid solicitation, FAR 14.101 requires an agency to evaluate bids ‘without discussions.’ 48 C.F.R. § 14.101(d). Therefore, SLSDC was not obligated to participate in any discussions with Plaintiff once Plaintiff’s bid was submitted.”

VANGUARD RECOVERY ASSISTANCE, JOINT VENTURE v. UNITED STATES and AECOM SERVICES INC., FLUOR ENTERPRISES, INC., NATIONWIDE INFRASTRUCTURE SUPPORT TECHNICAL ASSISTANCE CONSULTANTS, LLC, and CH2M HILL-CDM PA TAC RECOVERY SERVICES, Defendant-Intervenors, COFC No. 11-39C, May 27, 2011. Post-award protest of FEMA procurement. Following three protests at the GAO, plaintiff brings this action before the court. Plaintiff requests supplementation of the administrative record with documents and depositions or, in the alternative, that the matter be referred back to FEMA. The government and intervenors move to dismiss or for judgment on the administrative record. Judge Lettow denies the government’s motion to dismiss finding that plaintiff has standing. He also denies the arguments by the government and intervenors for an expansion of the timeliness and waiver rule of Blue & Gold Fleet L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) concluding that “The defendant-intervenors thus posit a ‘heads-I-win, tails-you-lose’ overly-extended version of the Blue & Gold Fleet rule that has no merit.” Judge Lettow does allow a limited supplementation of the administrative record, but defers on the motion to remand to FEMA.

JACOBS TECHNOLOGY INC. v. THE UNITED STATES, and IBM GLOBAL BUSINESS SERVICES, Defendant-Intervenor, COFC Nos. 11-180C, 11-190C, May 26, 2011. Plaintiff was the awardee of an United States Special Operations Command contract that was protested to the GAO by intervenor. GAO sustained the protest and recommended that the agency issue an amendment to the solicitation and allow offerors to submit revised proposals. The agency adopted the GAO recommendation and plaintiff now protests. The government moves to dismiss plaintiff’s claims “because: (1) they fall outside the Tucker Act; (2) they are not ripe for review; (3) Jacobs lacks standing, both under Article III of the United States Constitution and under 28 U.S.C. § 1491; and (4) the agency action is committed to agency discretion by law.” Judge Damich denies the motion. He rejects the argument by the government that “a party must point to a violation of a specific statute or regulation.” In this respect he disagrees with the the COFC decision in DATA MONITOR SYSTEMS, INC., v. THE UNITED STATES, and T SQUARE LOGISTICS CORP., INC., COFC 06-471(2006) insofar as that case supports that proposition. Good discussion of cases on standing and ripeness.

AEY, Inc. v. THE UNITED STATES, COFC No. 09-330C, May 24, 2011. Plaintiff challenge its termination for default of an Army contract to supply ammunition. The Army terminated that contract for violation of a provision that ammunition was not to come from a Communist Chinese military company. [See background previously posted.] The government moves to dismiss for failure to state a claim arguing “that the district court’s pretrial order collaterally estops AEY from contending that its supply of Chinese-manufactured ammunition was not a violation of the DFARS clause.” Judge Lettow rejects the collateral estoppel argument noting “In sum, there is nothing within the superseding indictment or the plea agreement itself that demonstrates that a violation of the DFARS clause was an essential element of the charges to which AEY pled guilty such that the guilty plea can be given preclusive effect or can be said to have rendered final the district court’s prior judicial determination of this precise issue. Collateral estoppel is consequently inappropriate in this case, and the court accordingly must determine whether AEY’s supply of Chinese-manufactured ammunition was in fact a violation of the DFARS clause.” However, Judge Lettow does grant summary judgment in favor of the government. He finds that the DFAR provision was violated and rejects plaintiff’s arguments of waiver, ratification, and estoppel He notes that “It is axiomatic that ‘the United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit.’” and “Accordingly, even if the Army continued to accept the Chinese-manufactured ammunition after discovering its true origins, such action was taken without the cloak of governmental authority. As a result, the continued acceptance of prohibited ammunition did not prevent the United States from terminating for default AEY’s contract on this ground.” [AEY’s guilty plea in the False Statements case resulted in a two year probation. See decision debarring AEY until March 24, 2025 decision. -jaw]

HALLMARK-PHOENIX 3, LLC v. THE UNITED STATES, COFC No. 11-98C, May 24, 2011. Bid protest, Air Force action. Plaintiff “challenges the Air Force’s decision to use its own civilian employees to supply services previously performed by Hallmark. Plaintiff asserts that this decision was not made in accordance with two federal statutes, sections 129a and 2463(a) of Title 10 of the U.S. Code, as well as Department of Defense guidance issued thereunder.” Judge Allegra introduces the case with a phrase from a Supreme Court decision —“[C]ourts are not charged with general guardianship against all potential mischief in the complicated tasks of government.” Applying a prudential standing analysis Judge Allegra dismisses the protest finding that plaintiff lacks standing. He concludes “that plaintiff lacks standing to challenge the Air Force’s in-sourcing decision under 10 U.S.C. §§ 129a and 2463(a). The court does not come to this decision lightly, fully recognizing the potential impact on plaintiff. Here, however, this result is compelled by the statutes in question - indeed, to rule otherwise almost certainly would be to act in derogation of Congress’ intent.” Good discussion of interested party and prudential standing issues.

L-3 COMMUNICATIONS CORP. v. THE UNITED STATES, and, LOCKHEED MARTIN CORP., Intervenor, COFC No. 10-538C, May 20, 2011. Pre-award bid protest, Air Force FMS contract to supply F-16 simulators to Egypt on a sole-source basis. Plaintiff argues that the sole-source violates CICA and that the exception at 10 U.S.C. § 2304(c)(4) does not apply as “Egypt is not ‘reimbursing the agency’ because the source of the funds to be used are United States funds, and not funds from Egypt’s treasury.” Judge Wolski agrees with the government and intervenor that the 2304(c)(4) does apply and that the only requirement is for the agency to be reimbursed, not the US government. He notes “Congress did not say that the foreign government was required to reimburse the agency with its own funds. This is the approach followed by the Government Accountability Office, which applies the exception even when grants or forgiven loans from the United States are the source of the funds used by the foreign nation.“ (citations omitted) The court rejects the several other arguments made by plaintiff and finds for the government and intervenor on the administrative record.

NORTHEAST MILITARY SALES, INC. V. THE UNITED STATES, COFC 11-81C, May 11, 2011. Bid protest. The awardee, Nayyarsons’ moves to intervene, but the motion is denied by Chief Judge Hewitt. She notes that the motion is untimely as the firm knew of the action for two months and “sat on its rights in a circumstance where it was not reasonable to do so.” She also found that intervention would be prejudicial to plaintiff.

TECH SYSTEMS, INC. v, THE UNITED STATES, COFC No. 10-877C, May 11, 2011. Post-award bid protest, Coast Guard contract for fitting, tailoring and garment-pressing services. See earlier decision allowing supplementation of the record on the bad faith issue. Judge Wolski finds for the government on the administrative record. Although calling it a “close question” he rejects the argument by plaintiff “that the past performance evaluation lacked a rational basis, contending the Coast Guard did not analyze the relevance of CHC’s [the awardee] references to the PWS requirements or explain how that small-scale work could compare to the size and complexity of the tailoring services contract.” and “concludes that the great deference and discretion an agency is given to determine the relevance and quality of an offeror’s past performance will not allow this aspect of the evaluation to be disturbed.” [Admittedly, I know nothing about tailoring, but the details of the RFP, the evaluation plan the source selection procedures and two rounds of discussions seem rather excessive for a $400,000 per year procurement-jaw]

NORTHEAST MILITARY SALES, INC. v. THE UNITED STATES, COFC No. 11-181 C, May 06, 2011. Post-award bid protest. Motion by plaintiff to compel DeCA to provide additional documents to supplement the administrative record. Plaintiff challenges the decision to award to another firm. The solicitation stated the government “that in connection with the evaluation of past performance, the agency ‘will consider all in-house information’ and that ‘[t]he evaluation of past performance will be an assessment based on a consideration of all relevant facts and circumstances’” The government argues that DeCA did not consider several of the categories of documents requested, which dealt with past performance, and therefore need not be included in the administrative record. Chief Judge disagrees with the argument of the government and grants the motion to supplement the administrative record. She notes that because the solicitation stated that “the evaluation shall be ‘based on a consideration of all relevant facts and circumstances.”’ the administrative record must be supplemented to include those items.

SANTA BARBARA APPLIED RESEARCH, INC. v. THE UNITED STATES, COFC No. 11-86C, May 04, 2011. Bid protest, Air Force in-sourcing decision. Plaintiff was the incumbent contractor providing services at several Air Force bases that the Air Force decided to in-source after a cost comparison following procedures set out in the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 at 10 U.S.C. § 2463., Pub. L. 111-383, 124 Stat. 4127, 4184. Both parties move for judgment on the administrative record and the government moves to dismiss for lack of standing and for the failure to state a claim. Judge Firestone finds that plaintiff has standing as the Air Force decision was made “in connection with a procurement decision” and is an interested party as “SBAR has a track record of winning contracts for the work that the Air Force is now in-sourcing, the economic impact to SBAR cannot be denied. This is all that is required for SBAR to satisfy the criteria for standing under section 1491(b)(1).” She also rejects the argument by the government that the decision to in-source is committed to agency discretion and not subject to review. She notes “Contrary to the government’s contentions, Congress’ decision to require compliance with DTM 09-007[DoD published Directive-Type Memorandum 09-007, Estimating and Comparing the Full Costs of Civilian and Military Manpower and Contract Support] for in-sourcing decisions based, like this one, on cost savings alone gives the court a meaningful standard against which to judge the Air Force’s exercise of discretion. SBAR’s complaint, which is based on the alleged misapplication of DTM 09-007 by the Air Force, states a claim for relief.” Finally, Judge Firestone grants the motion by the government for judgment on the administrative record finding that the actions and evaluations by the Air Force were not arbitrary and capricious.

PATRIOT TAXIWAY INDUSTRIES, INC. v. THE UNITED STATES and TACTICAL LIGHTING SYSTEMS, INC., Intervenor, COFC No. 11-124C, May 04, 2011. Post-award protest, Air Force Technically Acceptable - Performance - Price Tradeoff best-value source selection procedure contract for the design, testing, development, and production of a portable airfield lighting system. Plaintiff argues that the Air Force improperly evaluated its and the awardees’ past and present performance, failed to conduct a proper price reasonableness analysis and engaged in misleading discussions with Patriot regarding pricing. Judge Williams finds for the government and intervenor on the administrative record. She finds that the Air Force adequately explained its past and present performance ratings and that “Patriot has not established that the Air Force’s action in awarding to the low-priced, technically acceptable contractor was arbitrary or capricious.” She notes “the Air Force entered into discussions to ensure that offerors’ prices were accurate. Then, after confirming prices and recognizing that the contract was a fixed-price contract with the risk of an unrealistically low price falling on the contractor, the Air Force proceeded to award to Tactical with ‘its eyes wide open.”’

JULLIE G. HORN v. THE UNITED STATES, COFC No. 07-655 C, May 03, 2011. Plaintiff brings this breach action for lost profits on a Bureau of Prisons(BOP) contract for dental hygienist services. Senior Judge Loren Smith grants the motion of the government for summary judgment. He finds that although the contract was styled as a requirements contract, it was not as the contract also allowed the BOP to provide the hygienist services with its own staff. Citing Torncello v. United States, 681 F.2d 756, 760 (Ct. Cl. 1982), he then finds that the contract is not an indefinite quantity contract as it does not contain a minimum quantity. He notes “Without a stated minimum, the contract is precisely the type of contract the Supreme Court addressed in Willard, Sutherland & Co. v. United States, 262 U.S. 489, 43 S. Ct. 592, 67 L. Ed. 1986 (1923), holding, ‘There is nothing in the writing which required the Government to take, or limited its demand, to any ascertainable quantity. It must be held that, for lack of consideration and mutuality, the contract was not enforceable.’ Willard, 262 U.S. at 493 (emphasis added)” Judge Smith concludes “A further comment is needed in this case. It is unfortunate that the Government has continued to use this standard form document that appears to the non-legal reader as a binding contract, but is in fact not. It is clear that this document misled Ms. Horn into believing she had an agreement with the Government when, in reality, the agreement was unenforceable. More to the point, even the Government officials with whom she dealt did not seem to understand the document’s lack of enforceability. This point is particularly troublesome to the Court. While there are certainly instances where a contract contains a latent defect rendering it unenforceable, this is not the case here. As early as 1929, the Supreme Court put the Government on notice that this type of contractual language created an unenforceable instrument. See Willard, Sutherland & Co., 262 U.S. at 493. In 1984, the Court in Ralph Constr. Inc. similarly declared an indefinite quantities contract unenforceable that contained seemingly identical FAR language. See Ralph Const. Inc., 4 Cl. Ct. at 731-32. Yet, more than a quarter of a century later, these FAR provisions are still rendering contracts unenforceable and unsuspecting contractors are being denied the opportunity to pursue what may be meritorious claims.”

Gulf Group General Enterprises Co. W.L.L. v. THE UNITED STATES, COFC Nos. 06-835C, 06-853C, 06-858C, MAY 02, 2011. Plaintiff challenges the termination for convenience of three contracts with the Army. Before the court is the government’s motion in limine to exclude plaintiff’s expert report and testimony by Mr. Perry, a retired Army officer who has extensive contracting officer experience. The government argues that the proposed report contains legal conclusions and invades the province of the court. The government also argues that the Army’s “Touhy regulations” at 32 C.F.R. § 516.49(a) preclude the plaintiff from using Mr. Perry as an expert witness. Judge Horn denies the motion. Judge Horn discusses the case law and Federal Rules and notes “the court is unwilling to disallow all testimony from Mr. Perry at this stage of the proceedings, not knowing what testimony he will offer at trial. The court also notes that there will be no jury present. The undersigned is the sole trier of fact and law at the trial level. Therefore, the risks of members of a jury being prejudiced by testimony on inadmissible matters is not present. In a judge only trial, the undersigned is confident of being able to sort through the responsibility not to allow others to render a decision on the court’s behalf.”
  Regarding the Touhy regulations, she notes that “there is little if any doubt about the futility of the plaintiff asking the federal government for permission to use Mr. Perry as an expert witness. The defendant already has made a motion to the court to ‘exclude Mr. Perry’s [expert] report and preclude his testimony at trial.’ Moreover, the apparently overreaching and internally inconsistent Army regulation at 32 C.F.R. § 516.49(b), which describes ‘Exception[s] to the general prohibition’ quoted above, states: ‘In no event may present or former DA personnel furnish expert or opinion testimony in a case in which the United States has an interest for a party whose interests are adverse to the interests of the United States.’ 32 C.F.R. § 516.49(b); see also 32 C.F.R. § 516.52 (with language identical to section 516.49(b)). Therefore, under the facts and circumstances present in the cases before this court, there would appear to be little discretion in Army personnel to allow Mr. Perry’s testimony, and little reason to apply to the Army for such permission.” Judge Horn concludes “Mindful of the separation of powers, the judiciary, not the executive branch controls the admission of evidence at trial. It is the court’s prerogative, as well as the court’s duty and responsibility under the Federal Rules of Evidence and the Rules of the United States Court of Federal Claims, to decide the factual and legal issues raised by the plaintiff’s complaints, as well as to review objections to testimony when offered. The court will not abdicate its decision authority in this regard.” Good discussion of the allowability of expert testimony and the applicability of the Touhy regulations.

MORI ASSOCIATES, INC. v. THE UNITED STATES, COFC No. 10-298C, May 02, 2011. Bid protest, insourcing decision, supplementation of the administrative record, cancellation of a NIH procurement. Judge Wolski allows the supplementation of one page from plaintiff’s proposal showing discounts from its FSS prices. The government concedes that it ignored those costs when making its cost savings calculations. Styling it more of a completion rather than a supplementation, he notes “The government concedes that these costs were ignored, and wants the Court to ignore them as well. But under these circumstances, in which a Contracting Officer justified a decision by citing cost savings calculated perhaps more than one and one-half years earlier, when she was aware of more recent cost data in her procurement file, the Court concludes that ‘supplementation of the record [is] necessary in order not ‘to frustrate effective judicial review.’”(citations omitted)

BOWERS INVESTMENT COMPANY, LLC v. THE UNITED STATES, COFC No. 10-677 C, April 22, 2011. Plaintiff appeals the denial of two claims, a nonpayment and an underpayment claim, arising from a lease agreement with FAA. The government moves to dismiss for lack of jurisdiction arguing the election doctrine and claim preclusion from earlier proceedings before the CBCA. Chief Judge Hewitt denies the motion regrading the the exclusion doctrine for the underpayment claim finding that the claims are separate and distinct. However she grants the notion to dismiss based on claim preclusion finding that “plaintiff could have and should have raised before the CBCA.” Good discussion of the claim preclusion issue.

NIAGARA MOHAWK POWER CORPORATION, ET AL. V. THE UNITED STATES, COFC NOS 04-125C and 04-124C, April 22, 2011. Spent nuclear fuel case. Plaintiffs argue that the government violated the Takings Clause of the Fifth Amendment of the United States Constitution when the Department of Energy failed to dispose of plaintiffs’ spent nuclear fuel and/or high-level radioactive waste as required by the Nuclear Waste Policy Act of 1982. Judge Margolis grants the motion of the government to dismiss for failure to state a claim finding that the takings claims are precluded as plaintiffs have breach of contract claims. He rejects the argument that the taking claims should survive as the contracts were not voluntary. He notes “Although plaintiffs are correct that the contracts were mandatory for anyone seeking to continue operating a nuclear power plant, plaintiffs could have left the nuclear power business or simply avoided entering into the business in the first place. Thus, plaintiffs’ decision to execute the contracts and continue operating the plant was a voluntary one.”

NORMAN H. COHEN, Ed.D. v. THE UNITED STATES, COFC No. 07-154 C, April 14, 2011. Interesting 28 USC § 1498(b) copyright infringement case involving the inclusion of copyrighted material on a FEMA web site. [There may be a contract someplace.] The government moves for partial reconsideration of an earlier opinion in this case. The government argues that it cannot be liable for direct infringement after the date that the material was removed from the FEMA web site. Plaintiff argues that the material was still available on the Internet via caches of Google search engines. Chief Judge Hewitt grants the government’s motion for reconsideration noting “However, under its limited waiver of sovereign immunity, the United States may be held liable only for infringements by the government or by a third party acting for the government and with its authorization or consent. 28 U.S.C. § 1498(b); see Boyle, 200 F.3d 1369 at 1372-73. Because plaintiff has not argued and there is no evidence showing that Google or any downstream Internet users acted for the government and with its authorization or consent, the United States cannot be held liable for copyright infringement after it removed Dr. Cohen’s materials from its website.”

RCD CLEANING SERVICE, INC. v. THE UNITED STATES and FEDERAL MAINTENANCE HAWAII, INC., intervenor, COFC No. 11-13C, April 13, 2011. Post-award bid protest, Army contract for custodial services on Oahu, Hawaii. Plaintiff challenges the SBA decision decertifying it as a HUBZone firm after a status protest. The Army had awarded the contract to plaintiff, but terminated it when the decertification occurred. Judge Bush first rejects the bid protest jurisdictional argument of the government that because of the termination the matter should be under the CDA. She notes “This record shows that plaintiff is challenging a government action by SBA which profoundly altered the outcome of a procurement.” Judge Bush discusses at the length the records requested, provided and analyzed during the status appeal process and notes many inconsistencies and confusion. She concludes however “Given the highly deferential standard of review that applies in bid protests, the court finds that SBA’s rejection of RCD’s appeal of the decertification decision was reasonable and may not be set aside. The court observes, however, that a review and overhaul of SBA’s boilerplate request for principal office location documentation would serve both SBA and its HUBZone contractors well. [See companion pre-award bid protest case RCD CLEANING SERVICE, INC. v. THE UNITED STATES and WINCOR PROPERTIES, LLC, intervenor, COFC No. 11-89 C, April 13, 2011.]

GLENN DEFENSE MARINE (ASIA), PTE LTD v. THE UNITED STATES, COFC No. 10-84 C, April 08, 2011. Pre-award bid protest, Navy IDIQ procurement for maritime husbanding support services. Plaintiff alleges that the failure of the solicitation to provide estimated quantities for certain lots “is unreasonable because it prevents offerors from bidding intelligently and prevents the Navy from evaluating bids on a common and equal basis.” Chief Judge Hewitt finds for the government on the administrative record noting “the Navy has provided sufficient information for offerors to bid intelligently and for the Navy to evaluate offers on a common basis, the Navy’s price evaluation methodology for targeted lots is not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” She also rejects the argument that the unbalanced pricing provisions of FAR 15.404-1(g) are applicable finding that unbalanced pricing is a post-submission issue not applicable to a pre-award dispute.

PARKWOOD ASSOCIATES LIMITED PARTNERSHIP, a Washington Limited Partnership, v. THE UNITED STATES, COFC No. 07-742C, April 08, 2011. Farmers Home Administration (FmHA) loan agreement, modified by the Emergency Low Income Housing Preservation Act. Plaintiff, in its 2007 complaint, argues breach of contract on its prepayment claim and also a takings claim. Judge Allegra grants the motion to dismiss by the government under the six-year statute of limitations of 28 U.S.C. § 2501, finding that both the contract and takings claim accrued in 1992. He concludes ”It is safe to say that some things in life ought not be feigned. ‘Do not feign affection,’ a famous poem admonishes. Nor should an official invoke ‘feigned necessities,’ characterized by Cromwell as ‘the greatest cozenage that men can put upon the Providence of God, and make pretence to break known rules by.‘ And when it comes to contracts, one probably should add to this list – not feigning a demand for performance. Doing so when performance is not truly desired, and when there is no genuine intent to pursue damages upon nonfeasance, is a pretense that, over time, can serve to render important rights unenforceable – as this case, unfortunately for plaintiff, so well illustrates.”

The Redland Company, Inc. v. THE UNITED STATES, COFC No. 08-606 C, April 07, 2011. Air force contract for repaving at Homestead Air Reserve Base. Judge Block beings the opinion with a short history of Rome’s construction of the Appian Way and the use of redemptores, master road builders. The contract was awarded on October 30, 2000, and a notice to proceed issued on December 01, 2000. However, a suspension of work was also issued that same day. The suspension was not lifted until the Fall of 2004. Plaintiff has several claims, including an unabsorbed home office overhead claim. Both parties move for summary judgment on most of the claims. Judge Block reserves several claim for trial because of disputed facts, but he grants the motion of the government on the unabsorbed home office overhead claim. After discussing the Eichleay cases and requirements to prove the claim he concludes “In sum, plaintiff is not entitled to Eichleay damages because those damages are available only for a period of government-caused delay after performance has begun, not in situations such as here where the delay occurred prior to the start of performance. Moreover, plaintiff has failed to satisfy the ‘strict prerequisites for recovery of unabsorbed overhead costs’ because it was not on standby during the period of delay. See Nicon, 331 F.3d at 888. This serves as an additional bar to the award of Eichleay damages and to the recovery of unabsorbed overhead generally, regardless of the method of calculation.”

FLOORPRO, INC. v. THE UNITED STATES, COFC No. 09-651C, April 06, 2011. Plaintiff was a subcontractor to a Navy prime, GM&W. Plaintiff was having a hard time getting paid because of the prime’s financial problems. Plaintiff contacted the government, which had recommended plaintiff to the prime. The government and the prime executed a modification requiring the Defense Finance Accounting Service (“DFAS”) to issue a two-party check jointly to GM&W and FloorPro. DFAS did not issue the joint check, but instead paid the prime directly by electronic fund transfer. Plaintiff sues arguing that it was the intended third-party beneficiary of the modification. The government moves for summary judgment arguing that there is no privity between plaintiff and the government. Judge Smith grants the plaintiff’s motion for summary judgment. After discussing the third-beneficiary cases he finds in the affirmative the two relevant questions. (1) Did the contracting officer intend to benefit FloorPro through the modification? and (2) Did the modification result in a direct benefit to FloorPro? [The case has an interesting history. The ASBCA found for plaintiff in a 2004 decision. However that decision was reversed by the Federal Circuit in 2009 holding that under the CDA only a contractor in privity with the government may appeal to the Board.]

SCOTT TIMBER COMPANY v. THE UNITED STATES, COFC NO. 05-708C, April 05, 2011. Timber sales contract damages decision. See liability decision. Judge Lettow awards $6,867,100 in damages for breach. Interesting discussion of a pass-through claim from Roseburg Forest Products. Both firms are wholly-owned subsidiaries of RLC Industries. “Scott has no employees of its own. Scott’s officers are also Roseburg’s officers, and all of Scott’s functions are performed by Roseburg’s employees. However, Scott and Roseburg do have separate balance sheets, income statements, and general ledgers.” There was no express contract between Scott and Roseburg. Good discussion of the Severin doctrine cases. Judge Lettow finds there was an implied-in-fact contract existed between Scott and Roseburg and allows the pass-through claim.

AMERICAN SAVINGS BANK, F.A., ET AL. V. THE UNITED STATES, COFC No. 92-872C, April 01, 2011. Winstar case, on remand from the Federal Circuit. Judge Smith awards damages of some $83 million noting “The Court finds that, as a result of the Government’s breach of the Warrant Forbearance, Plaintiffs are entitled to recover expectancy damages for their lost-profits claim because the requirements of foreseeability, causation, and reasonable certainty have been established by a preponderance of the evidence presented. As part of the acquisition of Old American by the Bass Group, the Government knew that Plaintiffs intended to leverage the Warrant capital to generate profits through their lending strategy, investments, and growth plan for American Savings. In fact, that was the only reasonable basis for the transaction. Therefore, it was foreseeable that the loss of the Warrant capital would result in lost profitability for the bank. The breach of the Warrant Forbearance and revocation of the Warrant capital caused Plaintiffs to shrink the bank and sell off assets in order to meet regulatory capital requirements, as well as curtail plans for growth. This deprived Plaintiffs of the profits those assets would have generated and additional capital Plaintiffs would have leveraged to also generate profits. By relying on American Savings’ books and records, actual performance history, and historic investment strategies, and by using the actual leverage ratios and return on average assets of the bank, Plaintiffs calculated the quantum of lost profits to a degree of reasonable certainty. Accordingly, for the reasons set forth below, the Court awards Plaintiffs damages in the amount of $83,318,000 for the Government’s breach of the Warrant Forbearance.”

THE HUNTSVILLE TIMES CO. INC. V. THE UNITED STATES AND TENNESSEE VALLEY PRINTING CO., INC., intervenor, COFC N0. 10-812 C, March 31, 2011. Post-award bid protest, Army contract to publish the “Redstone Rocket” distributed by the Redstone Arsenal. Judge Bush finds for plaintiff on the administrative record and enjoins performance after May 31, 2011. She notes “The court has closely examined this procurement and found (1) procedural errors in establishing the SSP; (2) a confusing and internally inconsistent SSP; (3) ratings that were based on evaluation criteria different from those stated in the LRFP; (4) ratings that were irrational or were in violation of the governing regulation; and (5) a failure to apply the weighting scheme for evaluation criteria set forth in the LRFP. These errors are significant, and the court finds that the decision to award this contract to TVP was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ Banknote, 365 F.3d at 1350- 51 (quoting Advanced Data Concepts, 216 F.3d at 1057-58). The SSA’s award decision, although rational, in the main, as to the different ratings assigned to Huntsville and TVP in Management Approach and Services Offered, was arbitrary and capricious in the remainder of its assessment of proposals. These errors are too significant to disregard as harmless or de minimis errors.”

WATTERSON CONSTRUCTION COMPANY v. THE UNITED STATES, COFC No. 10-587C, March 29, 2011. Post-award bid protest, Corps of Engineers procurement for the design and construction of barracks. The solicitation authorized the submission of proposals by email to the CO. Proposals were due by 12:00 p.m. on March 16, 2010. Plaintiff’s proposal was emailed at 11:01-11:02 a.m and was received by the Corps server at 11:29 a.m. The proposal arrived at CO’s e-mail inbox at 12:04 p.m. The delay was caused by an unexplained “mail storm” at the Army Corps e-mail server. The CO determined that the proposal was late and eliminated it from the competition. Judge Braden finds for plaintiff on the administrative record, but delays entry of judgment to allow plaintiff to submit its claim for bid preparation costs. Judge Braden conducts and extensive discussion of the regulatory history of the FAR provisions relating to late bids, electronic commerce and other exceptions. She first finds that under 52.215-1(c)(3)(i-ii) that the proposal was not late. She then states “assuming, arguendo, that Watterson’s e-mail proposal was late, the court has determined that lateness is excused by the ‘Government Control’ exception in 48 C.F.R § 52.215-1(c)(3)(ii)(A)(2).” Finally, also assuming arguendo that the proposal was late, she concludes that the “mail storm” was an “unanticipated event” allowing an extra day as provided for in 48 C.F.R § 52.215-1(c)(3)(iv).

ICP NORTHWEST, LLC V . THE UNITED STATES, COFC NO. 10-869C, March 28, 2011. Pre-award bid protests, Forest Service procurement for fire suppression and other hazardous incidents at local, regional, and national levels. The solicitation is “for firm fixed price BPAs against which orders will be placed. Plaintiff raises four arguments: (1) the BPAs only require Awardees to perform if they are ‘willing and able’ in violation of 48 C.F.R. § 13.303-3(a)(1); (2) the Forest Service’s decision to compete non-binding BPAs and its proposed method of evaluation violates the requirements for efficiency and economy in contracting; (3) the use of Agency Cooperators violates federal law by giving a preference to governmental agencies over private contractors; and (4) the Region 1 Solicitation incorporates provisions of state law in violation of the Supremacy Clause of the United States Constitution.” (See several similar arguments raised in CREWZERS FIRE CREW TRANSPORT.) Judge George Miller finds that plaintiff lacks standing for all the except (3) the Agency Cooperator claim. Although finding that plaintiff is an actual or prospective bidder, Judge Miller notes that plaintiff cannot show “non-trivial competitive injury” that can be redressed by judicial relief for any except for the agency cooperator claim. Even though he holds that plaintiff lacks standing on three of the claims, Judge Miller addresses the merits of all claims and grants the government’s motion for judgment on the administrative record.

CERES ENVIRONMENTAL SERVICES, INC. v. THE UNITED STATES and ASHBRITT, INC., intervenor, COFC No. 09-886C, March 28, 2011. See earlier decision and this procurement and a clarification by the court. Post-award bid protest of a Corps of Engineers contract for the removal of debris originating from any natural or man-made catastrophe or disaster in the regions containing Alaska and Hawaii. In a 50 page opinion discussing sample task order and price realism issues Judge Williams finds for the government on the administrative record. She rejects plaintiff’s arguments that the agency (1) failed to conduct a meaningful analysis of [awardee’s] pricing; (2) failed to comply with the solicitation’s terms by failing to do a best value tradeoff and basing its award decision on price and ignoring the greater risk associated with [awardee’s] proposals; (3) engaged in unfair, misleading, incomplete, and unequal discussions with Ceres regarding price. She notes “This Court does not sit as a super source selection authority to second guess agency procurement decisions. Rather, it is well established that the Court should not substitute its judgment to assess the relative merits of competing proposals in a Government procurement.”

CREWZERS FIRE CREW TRANSPORT, INCORPORATED v. THE UNITED STATES, COFC No. 10-819C, March 18, 2011. Pre-award bid protest, Forest Service procurement for multiple BPAs for crew carrier buses. Plaintiff essentially argues that the BPAs are “are illusory and unenforceable, lack a reasonable basis, are unreasonable or irrational, and thus are arbitrary and capricious;” Plaintiff cites the Federal Circuit decision in RIDGE RUNNER FORESTRY v. Ann M. Veneman, SECRETARY OF AGRICULTURE, CAFC No. 01-1233, April 2002. Plaintiff also alleges violation of the Stafford Act and the Federal Grant and Cooperative Act. Judge Baskir rejects all of the arguments and finds for the government on the administrative record. He concludes “The plaintiff’s entire protest is built on the faulty assumption that in order to withstand scrutiny under our standards of administrative review, the Forest Service’s BPA must possess the qualities of a binding contract. We reject this assumption.”

RESOURCE INVESTMENTS, INC. AND LAND RECOVERY, INC. v. THE UNITED STATES, COFC No. 98-419 L, March 17, 2011. Long running takings case with an interesting twist. Barrows, plaintiff’s proposed expert witness is now a senior employee of the Corps of Engineers, the nominal defendant in this case. After leaving the employ of the Corps many years ago, Barrow entered into a private consulting practice and was hired by plaintiff as an expert in earlier proceedings in this case. Barrows returned to the Corps in 2009. After being told by the Corps that he would be subject to criminal prosecution if he accepted any compensation from plaintiff, Barrows has refused to testify except under subpoena. Although the Corps will pay him for any time spent testifying under subpoena, it will not pay him for time spent preparing for his expert testimony. Judge Block now grants appellants’s motion ordering the Corps to give Barrows two weeks of paid leave to prepare for his testimony. He concludes “The court’s present decision thus rests, not only upon precedent, but also upon fundamental principles of fairness, equal protection for the parties before the court, and truth-seeking in the judicial process. The court has both the authority and the obligation to ensure that such fundamental principles are not disregarded or undermined, no matter how novel the factual circumstance or how rarely used the requisite remedy. Although no statute or rule requires it, the interests of justice and the needs of the court require that Barrows have an adequate opportunity to prepare for his expert testimony. Under the circumstances of this case, court-ordered paid leave from the Corps is the only way to provide Barrows with that opportunity.” The court relies on the precedent established in Mitchell v. Baldridge, 662 F. Supp. 907 (D.D.C. 1987), a Title VII anti-discrimination case.

GRAND ACADIAN, INC. v. THE UNITED STATES, COFC No. 07-849 C, March 17, 2011. FEMA lease dispute from Katrina activities. See earlier decision. At issue is the interpretation of the restoration clause in the lease. The government moves for summary relief. Chief Judge Hewitt denies the motion finding facts in dispute except for one element—finding that the government had no obligation pay for replanting trees on the property. Extensive discussion of the case law regarding “normal wear” issues in leases, and the interpretation of the restoration clause.

RN EXPERTISE, INC. v. THE UNITED STATES, COFC No. 09-673C, March 11, 2011. The Navy issued a solicitation for urine collecting services and plaintiff was the presumptive awardee. The Navy cancelled the solicitation and procured the services under an existing interagency agreement with the Department of Interior after determining that proceeding under the agreement with DOI would save the Navy money and allow for further efficiencies. Plaintiff protests arguing that the decision was arbitrary and capricious and that the government violated the Economy Act by not making a D&F. Judge Damich finds for the government on the administrative record. He rejects the “independent judgment” argument by plaintiff noting that the “independent judgment” rule applies to source selection decisions, not as here to the decision to cancel the solicitation. He also notes that even if the Navy violated the D&F requirements of the Economy Act, plaintiff cannot show that it was prejudiced by that failure.

K-LAK CORPORATION v. THE UNITED STATES, COFC 09-771C, March 09, 2011. Plaintiff,an incumbent contractor, challenges the decision of the government to procure credit reports using the FSS rather than continue its past practice of procuring under SBA’s 8(a) program. See earlier decision which found jurisdiction and standing. Judge Firesone finds for the government on the administrative record. She notes “Because nothing in the Small Business Act, 15 U.S.C. §§ 631-657 (2006) or applicable regulations requires an agency to retain a requirement in the small business set-aside program if the agency can meet its needs through the FSS, and because there is no evidence to show that the agency abused its discretion when it decided to meet its credit report needs using the FSS, the court determines that the plaintiff’s challenge must fail and that the government is entitled to judgment on the administrative record.”

TECH SYSTEMS, INC. v. THE UNITED STATES, COFC No. 10-877C, March 09, 2011. Post-award bid protest, US Coast Guard contract. Judge Wolski allows plaintiff to supplement the administrative records with several affidavits alleging bad faith by a Coast Guard official. He notes “These allegations must rest on ‘hard facts,’ not merely innuendo or suspicion. See Int’l Res. Recovery, Inc. v. United States, 61 Fed. Cl. 38, 43 (2004); Beta Analytics, 61 Fed. Cl. at 226. The Court concludes that this is one of those rare cases in which ‘the proferred extra-record material . . . indicate[s] some personal animus or bias on the part of agency officials,’ Madison Servs., Inc. v. United States, 92 Fed. Cl. 120, 130 (2010), based on the hard facts of eyewitness (and earwitness) testimony. Plaintiff bases its case, at least in part, on the hostility of the facility manager towards it. The declarations it seeks to add to the record, to some degree or another,5 contain the testimony of people who believe they have witnessed the facility manager either claiming that Tech Systems was going to lose the competition or that [the awardee] was going to win the competition, or acting in a manner to vex the Tech Systems employees or to assist [the awardee]. At least so far as the question is animus toward plaintiff, no innuendo is necessary.”

MISSION CRITICAL SOLUTIONS v. THE UNITED STATES, COFC NO. 10-810 C, March 08, 2011. Bid protest, Air Force 100% HUBZone set-aside. Plaintiff argues that because it falls within the “safe harbor” provisions of SBA regulations as it is attempting to maintaing the 35% employee residency requirement, the SBA improperly decertified plaintiff as a qualified HUBZone firm. The government argues that the safe harbor provision only applies to an existing contract and that residency requirement must be met at both the time of the offer and the award for new contracts. Judge Damich grants the government’s motion for judgment on the administrative record finding “no support for Plaintif’s argument that the 35% residency requirement in § 126.200(b)(4) is abrogated for purposes of new or additional contracts by operation of the ‘attempt to maintain’ references in §§ 126.601 and 602.” Judge Damich also notes that even if the residency requirement is ambiguous, the court will defer to the interpretation by SBA unless plainly erroneous.

GLENN DEFENSE MARINE (ASIA) PTE, LTDGLENN DEFENSE MARINE (ASIA) PTE, LTD v. THE UNITED STATES, COFC No. 10-852C, March 01, 2011. Post-award bid protest. Navy contracts for husbanding services in four Philippine ports. Plaintiff received a contract for two ports, but argues that it was improper to make multiple awards and that it should have received the contract for all ports. Plaintiff attempt to introduce extrinsic evidence to show that the Navy planned to make a single award. Judge Allegra finds for the government noting that a fair reading of the RFP showed that the Navy reserved its right to make multiple awards. He concludes “Could the RFP have been drafted more clearly? Probably. Hindsight, of course, advises that any procurement document might have been drafted so that no shred of doubt remained as to what later proved to be a disputed point. But, this court is no blue-penciler, destined to pass upon an agency’s drafting skills—in this matter, as in others, ‘the court is not empowered to substitute its judgment for that of the agency.’ Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Measured by the appropriate standard of review, the Navy’s split award decision here is not arbitrary, capricious or otherwise contrary to law. The relief requested by plaintiff, hence, is not appropriately granted.”

OK’S CASCADE COMPANY v. THE UNITED STATES, COFC No. 07-702C, February 25, 2011. Forest Service contract. In what Judge Wheeler terms a “novel contract claim” he affirms the CO’s denial of plaintiff’s some $588,000 in claims for a termination for convenience of a contract for mobile food services for firefighters in remote locations. The Forest Service had terminated the contract for convenience shortly after award because of several protests. The Forest Service then ordered the same services under Emergency Equipment Rental Agreements (“EERAs”) from plaintiff at higher prices. Judge Wheeler finds that much of the claim is not recoverable, but, that in any event, plaintiff has not suffered any damage.

LUBLIN CORPORATION, t/a CENTURY 21, ADVANTAGE GOLD v. THE UNITED STATES, COFC No, 07-206C, February 24, 2011. Plaintiff was a subcontractor on a HUD contract. Plaintiff alleges that, in the course of a programmatic review of that contract, HUD officials agreed that its answers to various questions would be kept confidential. Plaintiff claims that, despite these assurances, HUD officials leaked its responses to the prime contractor causing the latter to terminate plaintiff. The government moves for summary judgment arguing that HUD officials who dealt with plaintiff had no authority to enter into a confidential agreement, and even if there was an agreement, it was not breached. Judge Allegra denies the government’s finding that factual matters are in dispute. Good discussion of implied actual authority and case law.

JERRY McGUIRE v. THE UNITED STATES, COFC No. 09-380L, February 18, 2011. Transferred by the Ninth Circuit from an inverse condemnation claim in a federal bankruptcy proceeding in an Arizona district court. The bankruptcy court exercised jurisdiction over McGuire’s takings claims based on the decision of the United States Court of Appeals for the Federal Circuit in Quality Tooling v. United States. 47 F.3d 1569 (Fed. Cir. 1995). The Ninth Circuit on appeal, however, explicitly disagreed with the Federal Circuit’s holding in Quality Tooling, and found that the Tucker Act’s waiver of sovereign immunity applies only to the COFC, and remanded the case for transfer to the COFC under 28 U.S.C. 1631 (2006). Judge Futey takes the case noting “The Court considers it proper to proceed with the resolution of McGuire’s claims for three primary reasons. First, in Quality Tooling, the majority itself described the decision as fairly narrow, in response to the fear of the dissent that the decision would effect a ‘wholesale transfer’ of takings cases ‘from the Court of Federal Claims to the district courts.’ Quality Tooling, 47 F.3d at 1578. Second, although the majority’s reasoning would likely encompass takings claims, the specific holding is limited to the jurisdiction of a district court sitting in bankruptcy to hear government contracts claims, not takings claims. Id. at 1575. Third, if this Court were to refuse to hear McGuire’s takings claims due to an improper transfer under § 1631, and transfer this case back to the district court, then the Court fears that ’jurisdictional ping-pong’ would result. Christianson v. Colt Indus. Op. Corp., 486 U.S. 800, 818 (1988).” Judge Futey rejects the government argument that the Ninth Circuit’s finding that the case was ripe for review(reversing the district court) should not be binding as it was mere dicta issued by court lacking jurisdiction, and holds “that the decision of the Ninth Circuit is the law-of-the case ... ” Very good discussion of the law-of-the-case doctrine.

DGR ASSOCIATES, INC. v. THE UNITED STATES and GENERAL TRADES & SERVICES, INC., intervenor, COFC 10-396C, February 15, 2011. EAJA case. The government argues that it was substantially justified in the merits decision which held that a priority must be given to HUBZone small businesses. The government argues that “(1) DGR waived its right to bring suit in this Court by not filing its action prior to the closing date for receipt of proposals; and (2) under the Small Business Act and applicable regulations, as interpreted by at least three executive agencies, the Air Force was not required to give priority to HUBZone small business concerns.” Judge Wheeler rejects both arguments. Regarding the waiver issue, he quotes from the merits decision “The Court hardly can conceive of a greater injustice than to say to DGR ‘even though you followed applicable protest procedures and prevailed at the GAO, now you are out of luck because you failed to file a judicial action in the Court of Federal Claims before the close of the bidding process.’” He also rejects argument regarding the interpretation of the Small Business Act noting “Furthermore, Defendant’s position did not have a reasonable basis in law, as the HUBZone statutory language was unambiguous. The GAO ‘read the plain language of the HUBZone statute as requiring an agency to set aside an acquisition for competition restricted to qualified HUBZone small business concerns where it has a reasonable expectation’ that the two pre-conditions of the HUBZone statute would be satisfied. DGR Associates Inc., B-402494, 2010 CPD ¶ 115 (Comp. Gen. May 14, 2010). If the Air Force simply had elected to follow the GAO’s decision, DGR’s lawsuit would not have been necessary. However, the Air Force rejected the GAO’s decision, forcing DGR to pursue further litigation in this Court. Given the clear statutory language, Defendant was unreasonable in putting DGR to additional effort and expense. The Court’s analysis of the Small Business Act’s HUBZone program found no room for debate.”

SPECTRUM SCIENCES AND SOFTWARE, INCORPORATED v. THE UNITED STATES, COFC No. 04-1366C, February 14, 2011. Damages decision, breach by the Air Force of a Cooperative Research and Development Agreement(CRADA). See earlier decision where the court found that the Air Force repeatedly breached the CRADA by the disclosure of plaintiff’s proprietary information. Judge Allegra awards plaintiff $1,211,754 in damages for SpectrumSpectrum’s lost asset—its MAC II proprietary information. Good discussion of the damages issue. The court rejects the position of the government that post breach facts should govern the forseeability issue.

DIGITALIS EDUCATION SOLUTIONS, INC. v. THE UNITED STATES, MORRIS & LEE d/b/a SCIENCE FIRST, Intervenor. COFC No. 10-855, February 11. 2011. Post-award of a sole source procurement by the Department of Defense Educational Activity(DODEA). On September 17, 2010, DODEA posted on the Federal Business Opportunities website a notice of its intent to award a sole source procurement to M&L, the intervenor. DODEA made the award on September 25, 2011. Plaintiff did not submit a response to the notice and its first action was a complaint to its Congressman on October 11, 2010. Plaintiff filed this action on or about December 06, 2010. Although noting several errors in the procurement, Judge Bruggink dismiss the action for lack of standing as an interested party. He states “Ultimately, none of the alleged errors were the cause of Digitalis’ failure timely to challenge the procurement or to submit a capability statement. It is well-established that non-prejudicial errors do not automatically invalidate a procurement. Labatt, 577 F.3d at 1380 (citations omitted). ‘Without a showing of harm specific to the asserted error, there is no injury to redress, and no standing to sue.’ Id. Accordingly, Digitalis lacks standing and its protest must be dismissed.” Good discussion of the prejudice issues for both standing and on the merits.

ENVIRONMENTAL SAFETY CONSULTANTS, INC. ET AL. v. THE UNITED STATES, COFC No. 10-191 C, February 11, 2011. See earlier decision where Chief Judge Hewitt dismissed most of the claims for lack of jurisdiction, but did allow one 2003 claim to proceed under the deemed denial basis as the CO never issued a decision. Judge Hewitt now grants the motion by the government to dismiss for lack of jurisdiction under the CDA’s six-year statute of limitations, Pub. L. No. 111-350, § 7103(a)(4)(A). [This the first cite I have seen to the recently codified Title 41.) She finds that the claims of plaintiff accrued more than six years before the claims were submitted to the contracting officer. She also rejects, again, the argument by plaintiff that the claims were equitably tolled finding “no evidence of any government misconduct that would warrant equitable tolling.”

COMMISSIONING SOLUTIONS GLOBAL, LLC v. THE UNITED STATES, COFC No. 10-249 C, February 07, 2011. Post-award bid protest of four Coast Guard awards for ship repair, where past performance was the most important evaluation factor. Plaintiff contends that it past performance rating of neutral was wrong because the government could not locate its records of the performance information on plaintiff’s past contracts. Judge Damich grants the motion by the government to dismiss for lack of standing for two of the actions finding that even if the past performance information was available plaintiff was not prejudiced as the government had made specific finding that its past contracts were not relevant to the work at issue. The court finds for the government on the administrative record for the other two awards. Judge Damich notes “The court finds no violation of regulation or procedure in the Coast Guard’s decision-making process, nor, especially given the ‘triple-whammy’ of deference in a best-value procurement based on an assessment of past performance, ... ”

L-3 COMMUNICATIONS INTEGRATED SYSTEMS, L.P. v. THE UNITED STATES and LOCKHEED MARTIN AERONAUTICS COMPANY, Intervenor, COFC No. 06-396C, February 02, 2011. Post-award bid protest. The government and intervenor request reconsideration of the decision allowing supplementation of the administrative record with 30 of the 40 requested records in this procurement where Darlene Druyun was the SSA. After discussion of the standards for supplementation Judge grants the motion finding that four documents are not necessary for effective judicial review. She notes “First, Air Force Guidance on the Air Force FAR Supplement relevant to the Audit, Tab 8, is not necessary for effective judicial review as the document merely identifies relevant criteria from the Air Force FAR Supplement related to the audit of the C-5 AMP. Second, the testimony of the Government Accountability Office’s Managing Associate General Counsel for Procurement Law before the Senate Subcommittee on Airland, Committee on Armed Services, entitled ‘Air Force Procurement: Protests Challenging Role of Biased Official Sustained,’ Tab 9, was confined to the C-130 procurement. Although the ‘Biased Official’ refers to Ms. Druyun, based upon her guilty plea and admission of bias favoring Boeing in a different procurement, it is not necessary to have this testimony in the AR for effective judicial review of the instant procurement. This testimony does not reflect the Government’s concerns with the C-5 AMP procurement or highlight problems with the documentation of that source selection. Third, the Report of the Defense Science Board’s Task Force on Management Oversight in Acquisition Organizations, March 2005, Tab 19, did not address the procurement at issue. Although the Report detailed factors contributing to Ms. Druyun’s favoritism of Boeing, the Report did not review individual acquisition decisions. Fourth, Tab 28, a November 9, 2004 interview with Mike Wynne, Acting Under Secretary of Defense for Acquisition Technology and Logistics, at a Media Round Table appears to reflect Mr. Wynner’s personal views of the Darlene Druyun situation and is not necessary for effective judicial review in this protest.”

ACROW CORPORATION OF AMERICA v THE UNITED STATES and MABEY BRIDGE & SHORE, INC., Intervenor, COFC No. 10-682C, February 02, 2011. Post-award bid protest. Plaintiff requests an injunction pending its appeal to the Federal Circuit of the earlier COFC decision. Noting that an injunction pending an appeal is “an extraordinary remedy”, Judge Christine Miller denies the motion. After discussing the issues, she concludes “The balance of factors weighs heavily in favor of defendant and MBSI. Plaintiff did not succeed on the merits in its motion for judgment on the administrative record, and it has not shown even a substantial case for success on the merits on appeal. While plaintiff has suffered irreparable harm, the court cannot credit the confidence expressed by plaintiff’s president over the cognizant procurement official’s recitation of mandatory testing protocols. The public interest would not be served by granting an injunction pending appeal.”

FULCRA WORLDWIDE, LLC v. THE UNITED STATES and SOS INTERNATIONAL, LTD., Defendant-Intervenor, COFC No. 10-725C, January 31, 2011. Post-award bid protest, CENTCOM procurement. Plaintiff alleges several improprieties in the evaluation of its and intervenor’s proposals including a “bait and switch ” allegation. Judge Wheeler allowed a supplementation of the record for the “bait and switch” allegation. The court finds for the government on the administrative record. The court discussed the “bait and switch” allegation noting that “A protester must show: (1) The awardee represented in its proposal that it would rely on certain specified personnel in performing the services; (2) the agency relied on this representation in evaluating the proposal; (3) it was foreseeable that the individuals named in the proposal would not be available to perform the contract work; and (4) personnel other than those proposed are performing services.” (citations omitted). Judge Wheeler finds that plaintiff “has been unable to prove either the third or fourth element of a ‘bait and switch’ for any of the three persons at issue.”

RAYTHEON COMPANY V. THE UNITED STATES, COFC NO. COFC NO. 05-448C, January 26, 2011. Segment closing costs claims. The government moves for summary judgment on four issues. Judge Firestone denies the motion for three issues and grants the motion for one. She rejects the argument that funding requirements of the FAR and CAS apply to a segment closing adjustment claim and that limitation of cost and limitation of funds clauses limits plaintiff’s claims. She notes “This court has previously considered and rejected the government’s argument that funding is a prerequisite to a segment closing adjustment claim in General Motors Corp. v. United States, 66 Fed. Cl. 153 (2005) and Viacom, Inc. v. United States, 70 Fed. Cl. 649 (2006).” Judge Firestone does find that the government is entitled to an equitable adjustment to the extent that application of the revised CAS 413 results in the government owing more under the revised CAS for pension costs attributable to pension costs arising under original CAS contracts.

K-CON BUILDING SYSTEMS, INC. v. THE UNITED STATES, COFC No. 05-914C, January 24, 2011. Coast Guard construction contract. The government terminated plaintiff’s contract for default and assessed liquidated damages. Before the court is plaintiff’s motion for summary judgment on the issue of liquidated damages, “arguing first that the rate of liquidated damages specified in its contract with the Coast Guard constitutes an unenforceable penalty, and second, in the alternative, that it is entitled to a remission of liquidated damages due to excusable delay.” “Plaintiff argues that the Coast Guard’s calculation of the liquidated damages rate was arbitrary and unsupported, and that some components of the rate should not have been included.” Judge Sweeney first addresses the argument of the government that plaintiff’ assertion is untimely as a challenge to the reasonableness of liquidated damages must be asserted at the time of contract award. Relying on Priebe & Sons, Inc. v. United States, 332 U.S. 407 (1947) she denies that argument noting that while Priebe holds that “court must judge a liquidated damages clause ‘as of the time of making the contract’” Priebe “does not prevent the court from examining those conditions after a breach has occurred, which may be several years later.” After a good discussion of the liquidated damages issues, Judge Sweeney denies plaintiff’s motion finding that it has not shown that the calculation of the contracting officer’s damages was unreasonable. Regarding the excusable delay element she notes that the record needs to be further developed on that issue.

ZOLTEK CORPORATION, v. THE UNITED STATES, and LOCKHEED MARTIN CORPORATION, Third-Party Defendant, COFC No. 96-166 C, January 24, 2011. Patent infringement suit, plaintiff alleges that the Air Force, caused the manufacture of products that infringe a patent belonging to plaintiff. See 2002 and 2003 COFC decisions. Aso see March 2006 and September 2006 CAFC decisions. Judge Damich denies cross motions to strike expert testimony and reports and also denies the motion by the government to dismiss “because there are genuine issues of material fact as to the factual inquiries underlying a legal determination of obviousness of the Patent ... ” The government argued that the patent claims are invalid due to obviousness. Good discussion of the qualifications of experts. Judge Damich chides the quality the brief noting “As should be evident from the previous discussion, the Court was at great pains to understand precisely the arguments of the parties. In addition to lack of clarity, the arguments were not keyed into the elements of the law of obviousness. Many of the arguments were not developed. The Plaintiff’s response did not join the arguments made in the Government’s main brief, and the Government’s reply did not join the arguments made in the response. In hindsight, the Court should have ordered a round of revised briefing. All in all, the defective briefings made writing this opinion a frustrating experience and delayed its issuance.”

ARRA ENERGY COMPANY I, ARRA ENERGY COMPANY II, and ARRA ENERGY COMPANY III v. THE UNITED STATES, COFC No. 10-84 C, January 18, 2011. Plaintiffs seek damages for the denial of by the government of plaintiffs’ applications for reimbursement grants pursuant to section 1603 of the American Recovery and Reinvestment Tax Act of 2009, Pub. L. No. 111-5, Div. B, tit. I, § 1603, 123 Stat. 115, 364. “In the first count of their complaint, plaintiffs assert that the government violated its mandatory obligation to award reimbursement grants to plaintiffs under section 1603. In the second count of their complaint, plaintiffs argue in the alternative that section 1603 constitutes an offer by the government to enter into a unilateral contract, which was accepted by plaintiffs when they filed their applications for reimbursement grants.” The government moves to dismiss arguing that section 1603 is not a money mandating statute and additionally that count II fails to state a claim for which relief can be granted. Judge Bush holds that the court has jurisdiction of both counts as section 1603 is a money mandating statute, but dismisses count II for failure to state a claim. Good discussion of the money mandating issue and related case law.

MAJD KAM-ALMAZ v. THE UNITED STATES, COFC No. 09-007C, January 07, 2011. Plaintiff’s laptop was seized by a Custom agent at Dulles airport. While in possession of the government the computer crashed and all files were lost. Plaintiff sues for damages on the breach of bailment contract or a constitutional takings claim. Judge Baskir grants the motion by the government to dismiss. He finds that plaintiff failed to prove an implied-in-fact contract, a showing that the agent had actual authority to contract and in rejecting the takings claim he notes “ property seized and retained pursuant to the police power is not taken for a ‘public use’ within the context of the takings clause.” Finally, the court notes “Court does not have jurisdiction to hear claims contesting the lawfulness of a search and seizure because due process and Fourth Amendment claims are reserved to the District Court.”

RESOURCE CONSERVATION GROUP, LLC v. THE UNITED STATES, COFC No. 08-768C, January 11, 2011. Bid protest regarding lease of real property owned by the Naval Academy. On remand from the Federal Circuit which had held “that the [COFC’s] implied-in-fact jurisdiction over nonprocurement solicitations survived the enactment of 1491(b)(1).” See earlier COFC decision. Plaintiff argues that the Navy breached the implied contract to consider bids fairly and failed to disclose superior knowledge. Judge Braden grants the government’s motion to dismiss. In deciding the breach of an implied contract issue she considers the standard set by the Federal Circuit —“(1) subjective bad faith on the part of the [G]overnment; (2) absence of a reasonable basis for the administrative decision; (3) the amount of discretion afforded to the procurement officials by applicable statutes and regulation; and (4) proven violations of pertinent statutes or regulations.” She finds for the government all points.

ARMOUR OF AMERICA v. UNITED STATES, and ARMORWORKS, LLC, Intervenor-Defendant, COFC No. 04-1731C, January 10, 2011. NAVAIR contract for replacement of armor for the CH-46E helicopter. Plaintiff challenges the termination for default for failure to make progress and the assessment of excess reprocurement costs and Air Force administrative expenses. Plaintiff argues breach, bad faith and an abuse of discretion in awarding the contract which contained a patent ambiguity. Judge Horn finds for the government on all counts. She notes that plaintiff knew its proposal would not meet the requirements of the contract and was not mislead by the government. Although chiding the CO for backdating a memo justifying the termination she finds that was not done in bad faith. The court notes that “The Lisbon test for the propriety of a default termination ‘requires the contracting officer’s reasonable belief that there was no reasonable likelihood of timely completion.’ McDonnell Douglas XIV, 567 F.3d at 1348 (citing Lisbon v. United States, 828 F.2d at 765) (emphasis in original). The basis for the termination in the present case, reflected in the Contracting Officer’s Determination to Issue a Termination for Default to Armour of America Under Contract N00019-04-C-3147, demonstrates the contracting officer’s objective and reasonable belief that there was no reasonable likelihood Armour of America could complete its contract on time.” Judge Horn also finds that the government met all standards for the assessment of excess procurement costs and award the government $1,553,068.

GULF GROUP GENERAL ENTERPRISES CO. W.L.L. v. THE UNITED STATES, COFC Nos. 06-835C, 06-853C, 06-858C, 07-82C, January 11, 2011. Plaintiff interviewed the CO, who was in prison apparently as the result of a criminal prosecution related to the contracts, prior to scheduled depositions and the interview was recorded verbatim by a court reporter. Government counsel was not present and now moves for production of the verbatim transcript. Plaintiff objects arguing that the interview is protected by the work product privilege. Judge Horn denies the government’s motion finding that “defendant has not demonstrated that it has not, or cannot, ‘without undue hardship, obtain’ the ‘substantial equivalent by other means’ of the interview transcript. RCFC 26(b)(3)(A)(ii).” Good discussion of case law on the issues.

ACROW CORPORATION OF AMERICA v THE UNITED STATES and MABEY BRIDGE & SHORE, INC., Intervenor, COFC No. 10-682C, January 07, 2011. Post-award bid protest, Army TACOM contract. Responsibility determination. (See earlier opinion.) Judge Christine Miller finds for the government on the administrative record after considering what the CO considered in making her affirmative responsibility determination for awardee/intervenor. She notes “Nor does the court find that the contracting officer’s self-denominated ‘extensive internet search’ should have unearthed the counterclaim. The court is loath to impose on a contracting officer the duty to uncover information that could be retrieved in consulting the internet, see Totolo/King, Joint Venture v. United States, 89 Fed. Cl. 442, 445-46 (2009) (discussing issues that arise from argument that a contracting officer’s internet search was insufficient), appeal docketed, No. 2010-5037 (Fed. Cir. Jan. 7, 2010). Review of a contracting officer’s procurement decision should not involve assessing her computer proficiency or calibrating what the sufficiency of a computer search entails.”

GOOGLE, INC., and ONIX NETWORKING CORPORATION, Plaintiffs, v. THE UNITED STATES and SOFTCHOICE CORPORATION, Defendant-Intervenor, COFC No. 10-743C, January 04, 2011. Pre-award bid protest challenging the Department of Interior limited competition decision to utilize Microsoft email and other services. Finding many errors or inconstancies in the government’s administrative record, Judge Braden issues a preliminary injunction concluding “For the reasons set forth herein, it is hereby ordered that: the United States of America, the Department of the Interior, and their officers, agents, servants, employees, and representatives are preliminarily enjoined from proceeding with or awarding a contract to implement a Microsoft Business Productivity Online Suite-Federal Messaging solution, pursuant to RFQ No. 503786 or any related procurement, solicitation, task order, or activity, including proceeding with the June 14, 2010 Amendment Modification 0003 to Contract No. GS35F4072D/NBCF09382. See RCFC 65(a).30 In addition, this procurement is remanded to Interior ‘for additional investigation or explanation.’”

BANNUM, INC., Plaintiff v. THE UNITED STATES, and DISMAS CHARITIES, INC., Defendant-Intervenor, COFC No. 10-479C, December 28, 2010. Post-award bid protest Bureau of Prisons(BOP) contract for a halfway house. Plaintiff alleges that the BOP failed to adhere to the Solicitation’s Evaluation Criteria in considering Dismas’s proposal, that the BOP failed properly to evaluate Bannum’s Technical/Management Proposal, that the BOP failed to consider the most recent past performance information and that the BOP failed to consider the relevance and import of Bannum’s experience as the incumbent contractor. Judge Braden rejects the arguments of plaintiff and finds for the government and intervenor on the administrative record.

MARIA SANDRA FERNANDEZ DE IGLESIAS v. THE UNITED STATES, COFC No. 08-464C, December 22, 2010. Lease contract for a residence in Juárez, Chihuahua, Mexico. The contract contained provisions that it was subject to the CDA and that the terms of the lease would be covered by local law. The government moves for partial summary judgment on four legal issues. Judge Futey discusses the choice of law provision, including cases that frown on the use of experts to interpret foreign law, but notes “Although RCFC 44.1 allows a court to conduct its own research into foreign law, the rule imposes no duty to do so. [and ... ] In this case, the Court has reviewed the material submitted by the parties, which includes expert declarations, depositions, and translations. The Court has also conducted its own research into the applicable Mexican law and considered original Spanish-language excerpts of that law, as well as secondary materials.”

ACROW CORPORATION OF AMERICA v THE UNITED STATES and MABEY BRIDGE & SHORE, INC., Intervenor, COFC No. 10-682C, December 17, 2010. Supplementation of the administrative record, post-award protest, Army TACOM contract. Plaintiff protests the award to the intervenor(MBSI) on the grounds that TACOM improperly determined MBSI as a responsible contractor. Plaintiff argues that supplementation is needed because of of fraud and other corruption charges in Great Britain against an entity that was related to the awardee. Judge Christine Miller allows some supplementation and denies others. Extensive discussion of supplementation issues and a CO’s discretion in responsibility determinations.

BLR GROUP OF AMERICA, INC. v. THE UNITED STATES, COFC No. 07-579C, December 16, 2010. Air Force Contractor Performance Assessment Report (“CPAR”) case. Plaintiff moves for reconsideration of the earlier decision on this case where the court had granted the government’s motion for reconsideration and dismissed the action. Plaintiff “contends that the court has misconstrued the definition of a CDA claim, asserting that although the definition expressly excludes certain demands for monetary relief, it contains no such exclusions related to demands for nonmonetary relief.” Judge Sweeney denies the motion. She looks at two issues—“First, in determining whether a contractor’s submission constitutes a CDA claim, the court must examine the intent of the contractor as expressed in the submission.” and “Second, the court is required, when determining whether a contractor has submitted a CDA claim, to look beyond the definition of a CDA claim and take into account the particular facts of the case.” She concludes “In sum, looking at plaintiff’s intent when submitting its response to the Air Force’s evaluation and the facts surrounding plaintiff’s response, it is evident that the response cannot constitute a claim pursuant to the CDA. And, as the court has previously held, without a valid CDA claim, there can be no contracting officer decision or deemed denial. Accordingly, the court declines to reconsider its decision based on plaintiff’s first argument.”

YRC, INC., successor-in-interest to YELLOW TRANSPORTATION, INC. THE UNITED STATES, COFC No. 10-154C, December 16, 2010. The United States Marine Corps Community Services (“MCCS”) entered into a contract with Salem for logistic services. Salem subcontracted with plaintiff to provide freight hauling services to MCCS exchanges. “When [MCCS] made a purchase, the retailer contacted [plaintiff] to make shipping arrangements and issued a straight bill of landing(sic) (‘SBL’). The SBL showed ‘the merchandise being shipped, the pick-up point and the destination of the goods, and the tariff charged for transportation.’” MCCS terminated the contract with Salem for default and at that time plaintiff was owed over $750,000. Plaintiff’s claim to MCCS for payment was denied. Plaintiff alleges breach of contract and that its was in privity with the government. Although Judge Braden finds that the court has jurisdiction and plaintiff has standing, she dismisses the action finding that there was no express or implied contract with the government and that the MCCS persons that dealt with plaintiff had no contracting authority. The opinion discusses the law regarding the mutuality of intent to contract and finds none here.

JOYCE TERRY, d/b/a SHIRT SHACK v. THE UNITED STATES, COFC No. 09-454 C, December 15, 2010. Opinion on government’s motion to dismiss. Post-award bid protest, Army and Air Force Exchange Service ("AAFES") contract. Plaintiff claims award was improper and also alleges a violation of law on another contract which she had with the AAFES, The government moves to dismiss for lack of jurisdiction because the government has not waived its sovereign immunity for a non-appropriated fund instrumentality(“NAFI” such as AAFES and that no CDA claim was presented to the CO on the other contract. Judge Sweeney grants the motion to dismiss the CDA(and discrimination) claims. However, in the aftermath of RESOURCE CONSERVATION GROUP, LLC v. THE UNITED STATES, CAFC No. 2009-5091, March 01, 2010 and following FAS Support Servs., LLC v. United States, 93 Fed. Cl. 687, 694 (2010) and L-3 Communications Integrated Systems, L.P. v. United States, COFC No. 06-396C, August 23, 2010 she holds that the COFC has jurisdiction under 28 USC 1491(a) and concludes “that the court’s implied-in-fact contract jurisdiction, which existed prior to the 1996 enactment of the ADRA, remains viable. ... Thus, while plaintiff cannot maintain her protest under section 1491(b), she may bring her protest under section 1491(a)(1), which confers upon the Court of Federal Claims jurisdiction over an implied-in-fact contract for the fair and honest consideration of a proposal with the AAFES.” In reaching her decision Judge Sweeney “addresses the intersection of its jurisdiction over NAFIs, its bid protest jurisdiction under section 1491(b), and its implied-in-fact contract jurisdiction, as it relates to procurement protests under section 1491(a),... ” She also notes “that the AAFES is not a ‘Federal agency’ under section 1491(b), plaintiff’s bid protest claim falls outside the jurisdictional grant conferred upon the Court of Federal Claims by the ADRA.”

JOYCE TERRY, d/b/a SHIRT SHACK v. THE UNITED STATES, COFC No. 09-454 C, December 15, 2010. Post-award bid protest, Army and Air Force Exchange Service (“AAFES”) contract. Plaintiff moves to supplement the administrative record to show certain dates when her proposal was submitted, to show that the awardee did not have equipment required by the solicitation and to show bias and other improper actions by the AAFES. Judge Sweeney denies the motion. Noting that plaintiff only intimated bad faith by other than the CO, Judge Sweeney notes that plaintiff fails the two part test of Beta Analytics Int’l, Inc. v. United States, 61 Fed. Cl. 223, 226 (2004), “(1) make a threshold showing of either a motivation for the government employee to have acted in bad faith or of conduct that is hard to explain absent bad faith, and (2) persuade the court that discovery could lead to evidence that would provide the level of proof sufficient to overcome the presumption of regularity and good faith.”

HARRIS PATRIOT HEALTHCARE SOLUTIONS, LLC, Plaintiff, v. THE UNITED STATES, Defendant, and STANLEY ASSOCIATES, INC., COFC No. 10-708C, December 14, 2010. Post-award bid protest, Department of Interior(DOI) procurement. Plaintiff brought this action to force DOI to comply with the automatic stay after a GAO protest was filed. One day after this action was filed, DOI implemented the stay by issuing a stop work order. GAO subsequently dismissed the protest when DOI decided to take corrective action. The government and intervenor move to dismiss as moot. Judge George Miller grants the motion to dismiss. He finds that the original request is now moot and plaintiff is not entitled to an order to “Maintain the Status Quo.” He notes “CICA does not preclude every alteration to the status quo; DOI’s obligation under CICA is narrower. In this case, DOI has agreed to re-evaluate the quotations of Stanley and Harris in light of the allegations made in Harris’s GAO protest. And DOI has stated that it intends to investigate each of Harris’s allegations. It has also represented that the stay of performance of the follow-on CONNECT contract will remain in place during the pendency of DOI’s corrective action. Any action the agency may take during or as a result of its corrective action would likely constitute a separate procurement decision that Harris could seek to challenge in an appropriate forum. However, the Government’s voluntary cessation of performance during the pendency of DOI’s corrective action and statements of Government counsel regarding DOI’s lack of any present intention to request that Stanley or any other contractor perform tasks covered by the follow-on CONNECT contract are sufficient to show, with the requisite clarity, that there is no reasonable expectation that DOI’s past violations of CICA will be repeated.”

PlanetSpace Inc. v. United States of America, Space Exploration Technologies Corporation, Intervenor, and Orbital Sciences Corporation, Intervenor, COFC No. 09-476 C, December 14, 2010. Bid protest, NASA procurement to procure cargo transportation services to and from the International Space Station under fixed-price, indefinite delivery/indefinite quantity contracts. See earlier opinion wherein Judge Block remanded to NASA and requested the SSA to provide a sworn statement making explicit and unambiguous the trade-off analysis that he believed was implicit in his source selection decision. Judge Block now finds for the government and intervenors on the administrative record. After a review and discussion of the SSA’s declaration he notes “The SSA’s declaration thus provides a comprehensive account of the SSA’s trade-offs between the relative costs and benefits of plaintiff’s and Orbital’s respective proposals. In so doing, the declaration does precisely what the court’s remand order required: to make ‘explicit and unambiguous the trade-off analysis that . . . was implicit in [the SSA’s] source selection’ statement. More to the point, the declaration documents a trade-off analysis that fits squarely within the legal and analytical framework described above, and is consistent with the SSA’s contemporaneous documentation of his source selection decision.”(citations omitted.) Good discussion of trade-off issues including the observation of the SSA that “Because the disparity in risk between [plaintiff’s and Orbital’s] proposals was great and the nature of the services so critical, ’the SSA explains that, in his judgment, ‘almost no price advantage could justify selecting PlanetSpace’s riskier proposal.”’

DELHUR INDUSTRIES, INC. v. THE UNITED STATES, COFC No. 08-541C, December 09, 2010. Federal Highway Administration(FHWA) road construction contract. Plaintiff appeals the denial of its claim of $2,115,524, including the return of liquidated damages. Judge Wheeler denies all claims and summarizes the case as follows- “In brief summary, the Court concludes that Delhur is not entitled to any recovery on its claims. At trial and in its briefs, Delhur presented high-level conclusory allegations unsupported by any concrete facts. For the excess excavation claim, Delhur did not demonstrate that it reasonably relied on all the contract documents when formulating its bid.
    The only evidence of Delhur’s bid preparation work consists of fifteen pages of cryptic handwritten notes that were not adequately explained at trial. Further, Delhur did not provide the Court with sufficient evidence to show that its damages were caused by errors in the plans or government direction, and not by Delhur’s own mistakes. For claims unrelated to excess excavation, Delhur did not furnish sufficient evidence of causation or damages. While alleging breach of good faith and government directed constructive changes, Delhur’s case is short on facts supporting its position. Delhur did not present any evidence of its actual costs to perform changed work, and the estimates it provided do not pass muster. The Court cannot say with any certainty that the FHWA caused any of Delhur’s increased costs.
    Similarly, Delhur is not entitled to recover any field or home office overhead costs because the evidence does not show that the FHWA was solely responsible for any project delay. Delhur did not even present a project schedule analysis to assess which party may have caused delay. Mainly, the evidence shows that Delhur adopted an ambitious and largely unrealistic construction schedule, and it quickly fell behind for reasons of its own making. While the FHWA did not perform perfectly in managing the project, the Court finds that Delhur failed to satisfy its burden of proof as to either liability or damages.
    Finally, the Court concludes that Delhur is not entitled to reimbursement of $45,000 in liquidated damages. Delhur has not provided evidence to show that any of its project delays were excusable.

PYRAMID REAL ESTATE SERVICES, LLC, v. THE UNITED STATES, and MATT MARTIN REAL ESTATE MANAGEMENT, LLC, Defendant-Intervenor, and HOMETELOS, LP, Defendant-Intervenor, COFC No. 10-599 C, December 09, 2010. Bid protest, HUD procurement. Sanctions for violation of a protective order. Chief Judge Hewitt finds that counsel for Matt Martin violated a protective order by filing another protest based on protected information and advising its client that grounds for the protest existed, even though the protected information was not released to its client. Judge Hewitt orders that “Counsel for Matt Martin is hereby ordered to pay the reasonable expenses incurred by defendant and defendant-intervenor HomeTelos, including attorney’s fees, to file Defendant’s Motion for Leave to File Status Report and Defendant’s Motion to Enforce the Protective Order, and to support these motions with briefing.” She does not find that a contempt citation is warranted noting that “While the court concludes that Counsel for Matt Martin acted willfully in that he knew or should have known that he was acting in violation of the Protective Order, there is no reason to believe he acted in bad faith as the term is used in the context of contempt. Counsel for Matt Martin deserves and here receives both sanctions and the court’s criticism for his conduct. But Counsel’s actions are consistent with a lapse of judgment, not a bad-faith effort to circumvent the court’s authority.” Good discussion of sanctions and the inherent authority of the court.

BONA FIDE CONGLOMERATE, INC. V. THE UNITED STATES, COFC No. 10-726C, December 02, 2010. Post-award bid protest, of “a procurement by the General Services Administration (“GSA”) and the Committee for Purchase From People Who Are Blind or Severely Disabled (the “Committee”) pursuant to the AbilityOne Program, formerly known as the Javits-Wagner-O’Day (“JWOD”) Act, 41 U.S.C. §§ 46-48c.” Plaintiff alleges that NISH violated several procurement regulations when selecting another organization(OVI) to receive a contract for services at two GSA buildings in Las Vegas. The government moves to dismiss for lack of jurisdiction arguing that because plaintiff does not challenge any conduct by GDA or the Committee directly the court does not have jurisdiction. Judge William disagrees and finds that jurisdiction is likely and issues a TRO. She notes “The decision by GSA and the Committee to adopt NISH’s recommendation is analogous to an agency’s decision to implement a GAO recommendation to take corrective action.” and “it does not matter on whose recommendation the Government based its award decision—the Government’s wholesale adoption of a third party’s recommendation is itself a government action leading to award of a government contract. Here, the Government—the Committee and GSA—accepted NISH’s recommendation and appears to have made award to OVI without inquiring as to the reasoning behind NISH’s decision and without knowledge of the evaluation or capabilities of any other offeror. Although an analysis of the Government’s adoption of NISH’s recommendation necessarily entails an inquiry into the rationality of NISH’s decision, that does not mean that NISH must displace the United States as the defendant. The procurement action challenged here is GSA’s award of a contract to OVI and the process leading up to that award. The fact that the Government— GSA and the Committee—did not probe the basis for NISH’s recommendation or the process NISH used to recommend the selection of OVI does not shield the Government’s selection of OVI from judicial review.”

MATT MARTIN REAL ESTATE MANAGEMENT LLC v. THE UNITED STATES and HOMETELOS LP, Intervenor, COFC No. 10-675 C, December 02, 2010. Post-award bid protest, Department of Housing and Urban Development (HUD) procurement. “Plaintiff contends that by using overall ratings to evaluate each offeror’s proposal HUD made an award decision that was arbitrary and capricious.” Chief Judge Hewitt flnds for the government on the administrative record. She notes “The failure to describe in any additional detail how overall ratings were to be assigned did not render the procuring agency’s decision ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’.”

KANSAS GAS & ELECTRIC CO., KANSAS CITY POWER & LIGHT CO., AND KANSAS ELECTRIC POWER COOPERATIVE, INC. V. THE UNITED STATES, COFC NO. 04-99C, November 30, 2010. Spent nuclear fuels case. Judge Christine Miller awards $10,632,454.83 in damages as opposed to the $14,148,967.10 which plaintiffs claim. Considerable discussion of burden of proof and overhead elements of damages.

BILFINGER BERGER AG SEDE SECONDARIA ITALIANA, v. THE UNITED STATES and COOPERATIVA MURATORI RIUNITI, Intervenor, COFC No. 10-480 C, November 19, 2010. Post-award bid protest, Corps of Engineers ID/IQ contract for real property services in Italy. Plaintiff request a PI to prevent the Corps from issuing further task orders to awardee/intervenor (“CMR ”) and to suspend performance of the contract. Plaintiff argues that the government improperly found that plaintiff was not responsible in connection with its submittals to meet the solicitation requirements of Italy’s Societa Organismi D’Attestazione (“SOA”) Certification System and that the reliance on the debarred status of BBH, an “affiliate”, was error. Judge Sweeney finds “Because the Corps’ reliance upon and interpretation of a legal opinion that was devoid of all relevant facts and failed to address core legal issues was likely arbitrary, capricious, and an abuse of discretion, its concomitant decision to reject BBSSI’s proposal based upon BBSSI’s submission of BBH’s SOA certificate was likely arbitrary, capricious, and an abuse of discretion. Therefore, BBSSI has shown a likelihood of success on the merits that, but for the Corps’ use and interpretation of Dr. Cosmelli’s opinion, BBSSI, which presented a proposal that constituted the best value to the government, would have received the JOC award.” She enjoins the government “from issuing any new task orders to CMR under JOC number W912GB-10-D-0007 and [ ] to suspend performance by CMR on any previously issued task order ... ” The opinion also discusses the rejection of the motion by the government to dismiss the claim based on the alleged breach of implied contractual obligation to consider offerors’ proposals fairly. Judge Sweeney “adopts the reasoning set forth [by Judge Mary Ellen Coster Williams] in L-3 Communications Integrated Systems, L.P. and concludes that a protester may challenge arbitrary and capricious conduct based upon an implied-in-fact contract to consider bids fairly theory as part of a procurement protest in which Tucker Act jurisdiction is based upon 28 U.S.C. § 1491(b)(1).”

D’ANDREA BROTHERS LLC. v. THE UNITED STATES, COFC No. 08-286C, November 18, 2010. Federal Technology Transfer Act(“FTTA”), 15 U.S.C. § 3710a; case. Plaintiff claims breach of a CRADA with the Army’ Natick Soldier Research, Development and Engineering Center. Plaintiff alleges breach of the CRADA, a breach of the Army’s duty of good faith and fair dealing and a tort claim for intentional interference with prospective economic advantage. The government moves to dismiss for lack of jurisdiction, or in the alternative for summary judgment, arguing that the CRADA is not a contact, the FTTA is not a money-mandating statute and that the COFC has no tort claim jurisdiction. Judge Firestone denies the motions to dismiss. She finds that the CRADA is a contract within the Tucker Act citing Federal Circuit decisions—“mutual intent to contract including an offer and acceptance, consideration, and a Government representative who had actual authority to bind the Government.” Regarding the money-mandating issue, she “agrees with the plaintiff that the ordinary presumption of the availability of money damages applies in this case given the finding that the CRADA is a contract.” Judge Firestone also denies the motion to dismiss the tort claim noting “While ordinarily this court does not have jurisdiction over tort claims, the Federal Circuit has held, ‘[W]here a tort claim stems from a breach of contract, the cause of action is ultimately one arising in contract, and thus is properly within . . . jurisdiction of the Court of Federal Claims.‘”(citations omitted). However, Judge Firestone does grant the government’s motion for summary judgment on the breach claim and a portion of the good faith and fair dealing claim. Finally, the court finds “that the plaintiff has established that there are disputed issues of fact regarding its claim that the government violated its duty of good faith and fair dealing by bad-mouthing the plaintiff to others within and outside the government.” She notes that “ a party must not ‘act so as to destroy the reasonable expectations of the other party regarding the fruits of the contract.’”

MOBILE MEDICAL INTERNATIONAL CORPORATION v. THE UNITED STATES, COFC No. 10-148C, November 16, 2010. “This case involves a post-award bid protest filed with the court by Mobile Medical International Corporation (MMIC). MMIC’s protest arises from the award of a task order to Gerling & Associates (Gerling), through the General Services Administration (GSA) Federal Supply Schedule (FSS). Plaintiff alleges impropriety by the Department of Veterans Affairs, Southeast Louisiana Veterans Health Care Systems (the Agency) when the Agency procured mobile medical units through the GSA FSS. Plaintiff MMIC brings claims against the Agency for alleged violations of the federal Procurement Integrity Act, 41 U.S.C. § 423 (2006) (Count I of the complaint); the federal Trade Secrets Act, 18 U.S.C. § 1905 (2006) (Count II); for arbitrary and capricious Agency action based on the misuse of the GSA FSS (Count III); for arbitrary and capricious GSA action in accepting a modification to a GSA FSS 23 Vehicle Multiple Award Schedule contract (the GSA schedule contract) (Count IV); and for the uncompensated taking of proprietary information (Count V). MMIC seeks preliminary and permanent injunctive relief, monetary damages, and a declaratory judgment.”
    An interesting 61 page opinion by Judge Horn. Although coming close to finding that the acceptance by GSA of a modification of the awardee’s FSS contract after offers had been received and that the modification may have been out of scope and therefore a violation of statutes and regulations, Judge Horn finds that MMIC does not have standing to pursue the protest as it could not show that it had a substantial chance of obtaining the award even if conducted outside of the FSS procedures. Interesting discussion of trade secret law which was trumped here by a finding that plaintiff had disclosed whatever it had alleged as proprietary information by public display of its products and literature.

HENRY HOUSING LIMITED PARTNERSHIP v. THE UNITED STATES, COFC NO. 10-226C, November 10, 2010. Plaintiff alleges breach of its loan contract with Farmers Home Administration and bring actions for both breach and Fifth Amendment takings. The government moves to dismiss the takings claim arguing “that because Henry Housing was only allegedly harmed by the government’s breach of contractual obligations, there can be no remedy granted to Henry Housing under its Fifth Amendment claim.” Noting the targeted legislative action at issue here, and citing Lynch v. United States, 292 U.S. 571, Stockton E. Water Dist. v. United States, 583 F.3d 1344, and Systems Fuels Inc. v. United States, 65 Fed. Cl. 163, Judge Lettow denies the government’s motion noting “the court finds no merit in the government’s argument that Henry Housing’s takings claim is superfluous or superseded. Maintaining both contract and takings claims is the ‘more appropriate course prior to the time judgment is rendered.’“

Linc Government Services, LLC, Plaintiff, v. THE UNITED STATES, and McNeil Technologies Inc., Intervenor, COFC No. 10-375 C, November 05, 2010. Post-award bid protest, Army contract for services in Iraq. Judge Block finds for the government and intervenor on the administrative record and denies plaintiff’s request for injunctive relief. The court denies the government’s and intervenor’s motion to dismiss on jurisdictional grounds for waiver under the Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (2007) holding that “the waiver rule of Blue & Gold creates an equitable, rather than jurisdictional, bar to a disappointed offeror’s untimely challenge to the terms of a government solicitation.” In an interesting learned 55 page opinion Judge Block discusses at length the two types of prejudice issues—”allegational prejudice” and “APA prejudice.” Aside from the other elements for injunctive relief he finds that here the Congressional direction of 28 U.S.C. § 1491(b)(3) to “give due regard to the interests of national defense and national security and the need for expeditious resolution of the action.” is determinative, concluding on this issue, “In the final analysis, the public interest in national defense and national security weighs heavily against the grant of a permanent injunction in this case: to the Army’s urgent and critical needs, plaintiff’s right to contest the instant procurement must yield, even if plaintiff were to succeed on the merits.”

THE SHERIDAN CORPORATION v. THE UNITED STATES, and JCN CONSTRUCTION COMPANY, INC., Defendant-Intervenor, COFC No. 10-547C, November 05, 2010. Maine National Guard procurement. See earlier preliminary injunction decision. Plaintiff “challenges the reasonableness and legality of a procuring agency’s corrective action to resolicit proposals where no apparent defect in the initial proposals exists.” Judge Wheeler concludes “For the foregoing reasons, the Court finds that Plaintiff has standing and Defendant’s motion to dismiss is DENIED. The Court further finds the corrective action to be unreasonable and Plaintiff’s motion for judgment on the administrative record is GRANTED. Defendant’s motion for judgment on the administrative record is DENIED. Having found that the prerequisites for entering a permanent injunction are satisfied, Defendant is hereby permanently ENJOINED from conducting the proposed corrective action to resolicit proposals.”

EREH PHASE I LLC v. THE UNITED STATES and GBA ASSOCIATES LIMITED PARTNERSHIP, Intervenor, COFC No. 10-560 C, November 03, 2010. Post-award bid protest, GSA BRAC related contract for the lease of office and related space. Judge Damich finds that the decision by GSA regrading whether or not the property violated the SFO flood plain provision was “arbitrary and capricious and contrary to the requirements of the SFO.” The court also finds that plaintiff had a substantial chance of award and that it would suffer irreparable injury without injunctive relief. However, Judge Damich denies injunctive relief finding that “that the interest of the public trumps the other considerations for injunctive relief in this unique, time-sensitive procurement.”. He does award plaintiff bid preparation costs.

PYRAMID REAL ESTATE SERVICES, LLC, v. THE UNITED STATES, and MATT MARTIN REAL ESTATE MANAGEMENT, LLC, Defendant-Intervenor, and HOMETELOS, LP, Defendant-Intervenor, COFC No. 10-599 C, November 01, 2010. Post-award bid protest, HUD contract for Asset Managers. In a heavily redacted opinion, Judge Hewitt finds for the government and intervenors on the administrative record. She notes that plaintiff has waived some of its arguments by not protesting earlier(Blue & Gold Fleet issue) or failing to address the issue in its complaint. She also finds that plaintiff has not shown that it was prejudiced by the alleged evaluation errors by the government.

KENNEY ORTHOPEDIC, LLC v. THE UNITED STATES, COFC No. 09-038, October 26, 2010. Discovery Disputes; Motion to Compel; Motion For Default Judgment. Veterans Administration procurement. See earlier decisions. Judge Braden introduces the case as follows-“This case is one where a small business with limited resources contests how a federal agency has handled the termination of their contractual relationship. For a variety of reasons, it appears that records that may be relevant were not properly maintained by the agency prior to the time this case was initiated and not properly preserved afterwards. This situation has contributed to a lack of trust between counsel that has made discovery unusually contentious. In an effort constructively to resolve pending discovery issues and move to trial, the court has issued this Memorandum Opinion and Order.”

EDGE CONSTRUCTION COMPANY, INC. v. THE UNITED STATES, COFC No. 06-635C, October 29, 2010. Department of Veterans Affairs contract for the construction of a cemetery. Appellant appeals the termination for default and the denial of several claims including one for equitable adjustments for lost productivity damages due to “unseasonable weather.” Judge Damich denies the parties’ motions for summary judgment on several claims finding that there material facts in dispute. He does, however, grant the motion for summary judgment by the government on the equitable adjustment for the weather. Citing FAR 52.249-10 and relevant case law, he holds that delays not caused by the government are not entitled to an equitable adjustment.

ANGELICA TEXTILE SERVICES, INC. v. THE UNITED STATES, COFC No. 10-496C, October 26, 2010. Interesting case. Bid protest, Department of Veterans Affairs(DVA). Plaintiff is the incumbent for laundry services at several DVA hospitals and challenges the decision to move the procurement of such services to the AbilityOne program under the Javits-Wagner-O’Day Act, 41 U.S.C. §§ 46-48c. Characterizing the case as resting on the third prong of 28 U.S.C. § 1491(b)(1)(“any alleged violation of statute or regulation in connection with a procurement or a proposed procurement”), Judge Lettow enjoins the government from proceeding with the procurement until such time that it complies with recently issued DVA guidelines, which the CO had essentially ignored. The court rejects the argument by the government that the new guidelines did not need to be followed. While agreeing with the government that the regulations did not have the force of law, Judge Lettow finds that deference accorded to agency regulations as described by the Supreme Court in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), to the extent that they have the “power to persuade” is appropriate and that the failure to follow the regulation was arbitrary and capricious action by the CO.

WESTON SOLUTIONS, INC. v. THE UNITED STATES, COFC No. 10-511C, October 25, 2010. Bid protest, Corps of Engineers Brooks Act, 40 USC Sections 1101-1104, procurement for A&E services. Plaintiff argues that the Corps misevaluated its proposal and it should have been rated third rather than fourth or that tie-breaker criteria should have been considered. Judge Firestone rejects most of plaintiff’s arguments, but she does order a minimal remand for the Corps “to clarify the record and the ambiguity created by the ‘arrow’ pointing to a certain rating for [Firm C] and the description of the [Firm C] rating in the selection board report.”

ENVIRONMENTAL SAFETY CONSULTANTS, INC., ET AL. v. THE UNITED STATES, COFC No. 10-191 C, October 21, 2010. Plaintiff asserts many and various claims, including punitive damages, Fifth Amendment Takings and Prompt Payment Act, arising from contracts with the Navy, Corps of Engineers and National Park Service. Most of the contracts were terminated for default years earlier and efforts at the ASBCA and Federal Circuit were unsuccessful. Chief Judge Hewitt dismisses most of the claims for lack of jurisdiction, but does allow one 2003 claim to proceed under the deemed denial basis as the CO never issued a decision. [Is this why we become contract lawyers?]

CRASSOCIATES, INC. v. THE UNITED STATES, Defendant, and SPECTRUM HEALTHCARE RESOURCES, INC., Defendant-Intervenor, COFC No. 10-339C, October 20, 2010. Post-award protest, Army contract to provide community health care services to military personnel and their dependents. Judge Allegra enjoins the Army from continuing performance of the contract, finding that the Army made several errors, most importantly in failing to follow the requirements of FAR 52.222-46, the Evaluation of Compensation for Professional Employees clause.

PMTECH, INC. v. THE UNITED STATES, COFC No. 10-458 C, October 20, 2010. DOE contract for remediation of radiation contamination at Oak Ridge National Laboratory. Plaintiff challenges the decision by the government to override the CICA stay for “urgent and compelling circumstances that significantly affect interests of the United States” as provided for in 31 U.S.C. § 3553(d)(3). In a 42 page opinion Judge Bush rejects plaintiff’s motion for declaratory and injunctive relief and finds for the government on the administrative record. Extensive discussion of the APA standards for the review of a stay override decision including the standards for decisions based on “best interests” and “urgent and compelling circumstances” After discussing the relevant case law, she concludes that Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto. Ins.a Co., 463 U.S. 29, 43 (1983) sets out the proper test for arbitrary and capricious review.

UNITED CONSTRUCTORS, LLC v. THE UNITED STATES, COFC No. 08-757C, October 18, 2010. Forest Service contract, differing site conditions claim. Appellant claims that it is entitled to additional compensation for removal of certain rocks it encountered on a construction site at the Fallen Leaf Lake Campground in South Lake Tahoe, California. Appellant did not attend the pre-bid site inspection. Judge George Miller notes that a Type I differing site condition claim, requires that the conditions encountered materially differ from those indicated in the contract documents. He notes that appellant “must first show that ‘a reasonable contractor reading the contract documents as a whole would interpret them as making a representation as to the site conditions.’ Intl Tech. Corp. v. Winter, 523 F.3d 1341, 1348 (Fed. Cir. 2008).” Judge Miller denies the claim concluding that “Because the contract contained no indication regarding the amount of rock smaller than one-half cubic yard, and United could not have justifiably relied on any such representation if it had been made, United is not entitled to additional compensation on its Type I differing site condition claim.” He also rejects plaintiff’s constructive acceleration claim.

INTERNATIONAL INDUSTRIAL PARK, INC. et al. v. THE UNITED STATES, COFC No. 09-691C, October 12, 2010. Corps of Engineers barter contract for the relocation of an easement. Plaintiff sues for breach and the government moves to dismiss. The government argues that if the agreement is a contract it is covered by the CDA and the suit should be dismissed for failure to submit a claim to the CO. Judge Wheeler denies the motion to dismiss finding that the CDA does not apply. He finds that the contract is not a procurement as defined in the Office of Federal Procurement Policy Act, 41 U.S.C. §§ 403-405 or the legislative history of the CDA as discussed in Institut Pasteur v. United States, 814 F.2d 624 (Fed. Cir. 1987). He further finds that the relocation of the easement is for “real property in being”, a transaction not covered by the CDA. Good discussion of the purpose and history of the CDA.

UNITED PARTITION SYSTEMS, INC. v. THE UNITED STATES, COFC No. 03-1242C, October 12, 2010. EAJA case, Air Force contract. See earlier merits decisions. The government argues that its position was substantially justified and takes issues with several fees and expenses issues. Judge Lettow disagrees finding that “The government’s inconsistent positions on the decisive issues of this case undermine its argument that its litigation position, taken as a whole, was ‘substantially justified.’” Judge Lettow does disallow the fees incurred at the ASBCA which found that it lacked jurisdiction to hear the matter. Case also has considerable discussion of the issue of “costs” as opposed to “expenses.”

THE MARQUARDT COMPANY v. THE UNITED STATES, COFC No. 09-642 C, October 08, 2010. Plaintiff alleges breach of an Agreement with DCMA. The Agreement states that “‘the parties agree that it is in their best interest to resolve and settle the final payment amounts due’ under a number of governmental supply contacts (the Contracts) now held by TMC following various transactions and a bankruptcy proceeding described briefly in the preamble to the Agreement.” The complaint includes claims for interest under the CDA and the Prompt Payment Act(PPA). The government moves to dismiss the interest claims arguing that neither statute applies to the Agreement. Chief Judge Hewitt agrees and dismisses the interest claims for failure to state a claim upon which relief may be granted. She finds that the Agreement is not a contract for the procurement of goods or services and concludes that neither the CDA or PPA apply to the agreement.

SYSTEM PLANNING CORPORATION v. THE UNITED STATES, COFC No. 07-678C. October 06, 2010. Air Force contract. Plaintiff submitted a certified claim to the CO in 2000. Plaintiff filed this action in 2007 on the deemed denial basis of the CDA. The government moves to dismiss arguing that the six year statute of limitations of 28 U.S.C. § 2501 applies. Judge Hewitt denies the motion holding that “Once a contractor elects to proceed under the CDA, the Tucker Act’s six-year statute of limitations does not apply. The passage of time does not transform a claim brought pursuant to the ‘deemed denial’ provision of the CDA into one covered by the Tucker Act’s general six-year statute of limitations. The United States relies on Witherington[Witherington Constr. Corp. v. United States, 45 Fed. Cl. 208, 212-13, (1999)], and Turner[Turner Constr. Co. v. United States, 9 Cl. Ct. 214, 216 (1985)] to support its argument. However, both Turner which predates Pathman[Pathman Constr. Co. v. United States (Pathman), 817 F.2d 1573, 1580 (Fed. Cir. 1987)] and Witherington are contrary to the Federal Circuit’s holding in Pathman and the more recent Parsons, S & M and Salt-River decisions of this court. Because plaintiff filed its complaint pursuant to the ‘deemed denial’ provision, it has elected to proceed under the CDA and is not bound by the six-year limitations period in 28 U.S.C. § 2501.”

DCS CORPORATION v. THE UNITED STATES,and SURVICE ENGINEERING CORP., Intervenor, COFC No. 10-35C, October 05, 2010. Post-award protest Air Force SEMATS contract. Plaintiff alleges faults in the evaluation of its and awardee’s past performance. Judge Merow finds for the government on the administrative record noting “The decision to award the SEMATS contract to SURVICE may be set aside if it lacked a rational basis or if the decision involved a clear and prejudicial violation of statute, regulation or procedure. Emory Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1085-86 (Fed. Cir. 2001). None of these events occurred in the Air Force procurement action for the SEMATS contract. The award decision was well within the discretion afforded the agency in a best value negotiated procurement. Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004).”

VERO TECHNICAL SUPPORT, INC. v. THE UNITED STATES, COFC No. 10-575C, September 29, 2010. Plaintiff had earlier filed an APA action in the Southern District of Florida challenging the insourcing decision of the Air Force. The district court dismissed the case holding that it was a challenge to a procurement related matter for which the COFC had exclusive jurisdiction under the ADRA. Judge Horn grants the motion by the government to dismiss pursuant to 28 U.S.C. § 1500. Following the analysis in Jachetta v. United States, No. 10-105L, 2010 WL 3385984, (Fed. Cl. Aug. 26, 2010), Judge Horn finds that because the time for appeal of the district court decision had not run when the cased was filed at the COFC, the case was still pending under 28 USC 1500. Good discussion of the various cases addressing the “pending” issue.

ENTERGY NUCLEAR VERMONT YANKEE, LLC, and ENTERGY NUCLEAR OPERATIONS, INC. v. THE UNITED STATES, COFC No. 03-2663C, September 29, 2010. Spent nuclear fuel case. Damages decision. (See earlier decision.) Judge Wheeler awards plaintiff $46,645,454 in mitigation damages and summarizes the award- “The Court calculated these damages by starting with the uncontested amount of $34,895,467, and awarding additional recovery for the following contested items: (1) $9,608,189 in costs related to the Certificate of Public Good, including contributions to the Clean Energy Development Fund, the visual barrier costs, the river flood analysis cost, and the legal and lobbying fees ENVY incurred toward the enactment of Vermont legislation; (2) $654,518 in costs associated with the Holtec dry fuel storage project, including costs incurred in characterizing spent nuclear fuel, constructing a work platform, and developing procedures and internal labor costs; (3) $276,980 for the removal of radioactive soil and asphalt; and (4) $1,210,300 in ‘material loader’ overhead costs. The Court denies recovery for $788,414 in ‘capital suspense’ and $10,013 in ‘payroll loader’ overhead costs as being too attenuated and not proven with reasonable certainty. The Court further denies ENVY’s $7,472,866 cost of capital claim as prohibited by law.” Judge Wheeler rejects the argument by the government that the costs for the Vermont Certificate of Public Good were not foreseeable and should be excluded, finding “that the Certificate of Public Good costs were reasonably foreseeable as a consequence of DOE’s breach of the Standard Contract. These costs also were caused by DOE’s failure to timely pick-up ENVY’s accumulated spent fuel. In light of the very real risk that ENVY faced of shutting down the VYNPS operations if it did not receive the State of Vermont’s approval to construct a dry storage facility, ENVY’s mitigation damages were reasonable and prudent under the circumstances.”

FLOORPRO, INC. v. THE UNITED STATES, COFC No. 09-651C, September 23, 2010. On October 02, 2009, plaintiff brought this action to be paid as a subcontractor on a Navy construction contract. Because of the prime’s financial problems, a modification to the prime’s contract was issued requiring that the check for payment be issued in the name of the prime and plaintiff. Instead the government made payment only to the prime. The ASBCA held that it had jurisdiction as plaintiff was a third party beneficiary under the modification to the contract. However, the Federal Circuit reversed holding that under the CDA only a contractor in privity with the government may appeal to the Board. The government now moves to dismiss arguing that the six year statute of limitations bars the suit. While not directly agreeing with plaintiff that claim did not accrue until the Navy filed its brief at the ASBCA on October 5, 2004, Judge Smith denies the motion to dismiss. He notes that “the Court need not solely base its decision on which date is proper to start the running of the statute of limitations. Instead, in this case, it is clear that the Court must turn its attention to the purpose of the statute of limitations.” Judge Smith concludes “FloorPro has been diligently pursuing its claims for over seven years. FloorPro’s actions cannot be considered sleeping on its rights. To hold otherwise would be an injustice. If the Court were to accept the Government’s argument, that FloorPro’s claim is precluded by the statute of limitations, this interpretation would lead to an unjust result and a result that is contrary to the purpose of this Court’s Statute of Limitations.”

L.A. RUIZ ASSOCIATES, INC. v. THE UNITED STATES, COFC No. 09-211C, September 23, 2010. Postal Service construction contract. The CO issued a final decision alleging unacceptable contractor workmanship and work not installed as required under the contract and requiring a refund or credit from plaintiff. Plaintiff has three counts in its complaint: (1) breach of contract, (2) breach of implied duty of good faith and fair dealing, and (3) declaratory relief on the government’s affirmative claim. Plaintiff sent a letter to a counsel for the UPS the day after filing with the COFC responding to the CO’s final decision. In considering whether a proper CDA claim had been filed by plaintiff Judge Smith rejects the argument by plaintiff that the failure to respond to plaintiff’s letter constituted a “deemed denial” by the CO. He notes that plaintiff never showed the letter was received by the CO and that “before a contractor can argue that its claim was ‘deemed denied,’ it must necessarily show that the contracting officer physically received the claim. See 41 U.S.C. § 605(c)(1). In other words, simply showing that the contracting officer never issued a final decision is not sufficient for the Court to conclude that the claim was actually received and ‘deemed denied.’”

TURNER CONSTRUCTION CO., INC. v. THE UNITED STATES and MCCARTHY/HUNT, Intervenor and JVB.L. HARBERT-BRASFIELD & GORRIE, JV, Intervenor, COFC No. 10-195C, September 23, 2010. Motion for stay of injunction pending appeal, post-award bid protest OCI issue, Corps of Engineers contract, See earlier decision on the OCI issue. Judge Futey denies the motion after considering the four factors that the Supreme Court has identified that a court should consider: “‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”’[citations omitted] Judge Futey concludes noting “OCI decisions frequently present fact-intensive inquiries that require a large amount of good judgment and discretion. See Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1382 (Fed. Cir. 2009). The complexity of these inquiries is compounded by the fact that OCIs are a ‘growth area’ in the law. Consequently, these cases can sometimes involve difficult and unsettled questions regarding the precise application of regulations to real-world scenarios. The question before the Court, however, is a simple one: whether Harbert-Gorrie has met the burden required to receive the extraordinary remedy of a stay of an injunction pending appeal. For the foregoing reasons, the Court holds that the balance of factors does not weigh in favor of a stay.”

INFINITI INFORMATION SOLUTIONS, LLC v. THE UNITED STATES, COFC No. 09-750C, September 17, 2010. EAJA fees case, post-award protest HUD contract. (See earlier cases on the merits.) Judge Lettow finds that position of the government was not substantially justified, noting that the injunction issued earlier had not been followed. However, he reduces the fees claimed by plaintiff noting that “A government-contract case does not require the kind of specialized knowledge or skill that would justify an enhanced award.”

CS-360, LLC v. THE UNITED STATES, COFC No. 10-457C, September 16, 2010. Pre-award bid protest, Department of Veteran Affairs(DVA) SDVOSB procurement. Plaintiff seeks to enjoin DVA from denying plaintiff a contract on the ground that plaintiff is not listed in DVAs online Vendor Information Pages (the “VIP”) database. Plaintiff argues that DVA unreasonably delayed re-listing plaintiff on the SDVOSB database. The court grants the motion by the government to dismiss for lack of standing finding that because of plaintiff’s ineligibility to be listed in the VIP it cannot show a substantial chance of securing the contract.

CHENEGA MANAGEMENT, LLC v. THE UNITED STATES, COFC No. 10-221C, September 14, 2010. Post-award protest, Air Force best value procurement. Plaintiff challenges the Air Force decision to not include plaintiff in the competitive range and alleges bias and bribery of government officials. Judge Braden finds for the government on the administrative record finding that plaintiff failed to prove bias and that plaintiff “falls far short of the ‘hard facts’ necessary to establish by ‘clear and convincing’ evidence that the procurement was tainted by an illegal gratuity.” The opinion discusses the prejudice elements of the standing issue and notes that plaintiff is not an interested party as to count I of its compliant, which alleges that the government did not follow the source selection criteria in the award, unless plaintiff prevails on Counts II-V.

Madison Services, Inc. v. THE UNITED STATES, COFC No. 09-675 C, September 13, 2010. Bid protest FEMA procurement. See earlier opinion on the merits. Plaintiff moves for relief from judgment and post judgment discovery alleging that FEMA “misrepresented material facts during the course of this litigation and otherwise engaged in fraudulent conduct aimed at injuring plaintiff.” Judge Block denies the motions noting “Once again the court must state the obvious: plaintiff has not proffered any solid evidence to refute facts contained in these sworn declarations by FEMA employees, let alone clear and convincing evidence that would overcome the presumption of regularity and good faith. In the final analysis, all plaintiff has to support its arguments are the [plaintiff’s] Declaration’s uncorroborated, self-serving and conclusory assertions, all based, in turn, upon mere inference. The law generally is to reject such ‘evidence.’ See, e.g., SEC v. Phan, 500 F.3d 895, 90910 (9th Cir. 2007) (holding that that self-serving and conclusory affidavits that are not based on a declarant’s personal observation or knowledge are not sufficient to overcome summary judgment);”

THE SHERIDAN CORPORATION v. THE UNITED STATES, and JCN CONSTRUCTION COMPANY, INC., Defendant-Intervenor, COFC No. 10-547C, September 13, 2010. Corrective action bid protest, Maine National Guard procurement for a fixed price hangar construction contract. After award, without discussions, to plaintiff, including disclosure of plaintiff’s price, and a protest to the GAO by intervenor, the government said it would take corrective action by expanding the competitive range and allowing offerors to submit revised proposals. The CO also stated that the agency did not intend to conduct any offeror discussions. Judge Wheeler issues a preliminary injunction prohibiting the agency from proceeding with the corrective action. The court finds “that the agency has misapplied the concept of ‘competitive range.’ Under the applicable regulations, an agency should establish a competitive range of ‘the most highly rated proposals’ when ‘discussions [with offerors] are to be conducted.’ FAR 15.306(c)(1). The establishment of a competitive range enhances the efficiency of a procurement by allowing an agency to conduct discussions and evaluate final proposal revisions only from those offerors who have a realistic chance of receiving the award. In like fashion, a competitive range determination relieves those offerors who have no chance of winning the award from wasting time in further pursuing the contract. However, a competitive range has no application where an agency does not engage in offeror discussions. Simply stated, an agency has no need to establish a competitive range where award will be made on the basis of initial proposals. The contracting officer’s sensitivity here to establishing a competitive range, and to expanding the competitive range during corrective action, was irrelevant to the agency’s procurement process.”

YANKEE ATOMIC POWER COMPANY v. THE UNITED STATES, COFC No. 98-126C, September 07, 2010. Ina 94 page opinion on remand from the Federal Circuit, requiring a reassessment of causation Judge Merow awards some $142,603,000 in damages. (See earlier COFC decision.) He concludes “For public health and safety reasons, the federal government has long assumed responsibility for disposal of highly radioactive waste such as that involved in this litigation. In 1983, as provided by the NWPA, the United States, represented by DOE, entered into contracts with civilian nuclear utilities, including the Yankees, under which, in return for payment of fees funded by ratepayers calculated to cover DOE’s costs of developing and implementing the waste disposal system required by that contract and the NWPA, DOE was to start removing, transporting and disposing of utility SNF no later than January 31, 1998. The contracts have been breached by a series of substantial delays. The Yankees’ construction of dry storage, purchase and loading of casks, as well as other mitigating measures, and consequent incurred costs, were a result of and substantially caused by DOE’s delays. The Yankees established that in a plausible non-breach world where DOE timely commenced full performance at the rates of the 1987 ACR, these decisions and expenditures would not have been made. By preponderant credited evidence, it is concluded that the Yankees have established the following incremental damages, comprising the difference between their established actual expenses of reasonable and foreseeable mitigation substantially caused by DOE’s partial breaches, less expenses that would have been incurred in the plausible non-breach world presented.”

CERES GULF, INC. v. THE UNITED STATES and COASTAL MARITIME, LLC, COFC No. 10-319C, September 07, 2010. Pre-award bid protest, Army contract for stevedoring services. Plaintiff challenges the decision of the Army to rescind a contract award to plaintiff and to solicit revised proposals as corrective action following a protest filed at the GAO by intervenor. The government moves to dismiss for lack of jurisdiction arguing “that the Court lacks jurisdiction over the protest because Ceres Gulf is not challenging a solicitation, a proposed award, an award, or an ‘alleged violation of statute or regulation in connection with a procurement or a proposed procurement’ in accordance with 28 U.S.C. § 1491(b)(1) (2006).” Judge Wheeler denies the motion to dismiss noting “As a result of the Army’s corrective action, Ceres Gulf is no longer the successful awardee but rather a potential offeror with only a possibility of prevailing in the second round of the procurement process. Its claims before this Court therefore amount to an objection to the Army’s pre-award conduct. Contrary to the Governments assertion, Ceres Gulf need not challenge precise terms in the amended solicitation in order for this Court to have pre-award bid protest jurisdiction. The Army’s decision to reopen the procurement itself provides the Court with the jurisdiction necessary to review Ceres Gulf’s claims.” On the merits however, the Court grants the government’s for judgment on the Administrative record finding “that the amended Solicitation made critical changes to the terms of Technical Factor 1 and appropriately addressed the deficiencies identified in the procurement process. The amended terms of the Solicitation reasonably relate to Coastal Maritime’s objections before the GAO and ultimately promote fairness and integrity in a second round of the procurement process. Accordingly, the Court declines Ceres Gulfs invitation to render the amended Solicitation unnecessary.”

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

PETER C. NWOGU, d/b/a, ENVIRONMENTAL SAFETY CONSULTANTS, INC. v. THE UNITED STATES, COFC No. 09-268C, August 30, 2010. Judge Horn dismisses this many issue case and concludes “For the foregoing reasons, the court dismisses all of the plaintiff’s claims and directs the Clerk’s Office to dismiss the plaintiff’s complaint, with prejudice. Plaintiff’s claims as to national origin discrimination, violations of Due Process, the Equal Protection Clause, the Thirteenth Amendment to the United States Constitution, quantum meruit, and punitive damages are dismissed for lack of subject matter jurisdiction in this court. The court dismisses the plaintiff’s breach of contract claim, because the election of forum doctrine and the CDA’s 12-month statute of limitations bar suit in this court. The court dismisses the plaintiff’s request to review and enforce an ASBCA monetary judgment because this court lacks jurisdiction to review ASBCA decisions, with such review available only in the United States Court of Appeals for the Federal Circuit. At this time defendant has a legitimate right to maintain a setoff defense on the award to plaintiff on Contract I of $93,989.00, pending resolution of Case No. 51722 on Contract II at the ASBCA between ESCI and the government. Plaintiff’s allegation of a settlement agreement is not supported by the record before the court. The court also dismisses the plaintiff’s Fifth Amendment takings claim, because plaintiff has asserted no cognizable, compensable property interest.” [See underlying ASBCA decision.]

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

OFFICE DEPOT, INC. v. THE UNITED STATES and STAPLES, INC., Intervenor, COFC No. No. 10-335 C, August 24, 2010. Post-award bid protest, FDIC contract. In a case of first impression Judge Bush finds that the court has jurisdiction over a protest of a FDIC procurement as “FDIC is a corporation in which the United States has a proprietary interest and thus is an agency for the purposes of [28 USC] § 451 and a federal agency for the purposes of § 1491(b)(1). Protests of FDIC procurements are within the jurisdiction of this court under 28 U.S.C. § 1491(b)(1).” Judge Bush notes that the FAR does not apply to FDIC procurements and that cases applying the FAR are of limited assistance. After discussing cases which apply other administrative procedure or regulations to agency procurements she concludes that the FDIC Acquisition Procedures, Guidance and Information, although not incorporated by referenced in any regulation is a public document which will be used to review the proprietary of the communications between the FDIC and the awardee. Judge Bush finds for the government and intervenor on the administrative record noting that the FDIC evaluation was in conformance with its procedures and the communications with the awardee were clarifications not discussions. She also rejects the argument by plaintiff that FDIC was required to evaluate past performance, finding that plaintiff waived that argument by not raising it earlier as required by Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, (Fed. Cir. 2007).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LUMBERMENS MUTUAL CASUALTY v. THE UNITED STATES, COFC No. 04-1255C, November 25, 2009. Plaintiff was the surety on a contact with the Navy and completed the contract under a takeover agreement as a surety. The government moves to dismiss arguing that plaintiff did not meet the requirements of the CDA because it did not submit a claim to the CO. Judge Hodge disagrees holding that the CDA applies to procurement contracts and a takeover agreement is not a procurement contract.(See earlier 2006 and 2005 decisions in this case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

VERIDYNE CORPORATION v. THE UNITED STATES, COFC Nos. 06-150C & 07-647C, September 12, 2008. [Court's Synopsis- Contracts; breach of contract; motion for summary judgment; Rule 56(