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United States Court of Federal Claims


newKENNEY ORTHOPEDIC, LLC, and JOHN M. KENNEY v. THE UNITED STATES, COFC No. 11-502 C, October 31, 2014. Settlement agreement between plaintiff and the VA. Plaintiff alleges that the VA breached the settlement agreement. The government moves for summary judgment.
    Judge Braden grants summary judgment for the government. One of the allegations was that the government did not comply with a time limit in the agreement. Plaintiff signed the settlement agreement on May 17, 2011. The agreement provided that the government would add “Plaintiffs to the approved list of contract vendors ’[w]ithin 10 days of the execution of this Settlement Agreement, or June 1, 2011, whichever is later.” The government did not do so until June 09, 2011. Plaintiff argues that this was a breach as government should have complied by June 01, 2011. Judge Braden notes that “As a matter of law, however, a contract is not executed until both parties manifest assent by signing the document.” The government executed the agreement on May 31, 2011 and June 09, 2011 was within 10 days of the execution.

VFA, INC. v. THE UNITED STATES, COFC 14-173C, October 29, 2014. Bid protest. Plaintiff challenges the decision by “DoD to standardize its facility condition assessment needs through the Sustainment Management System (SMS). The Corps of Engineers Construction Engineering Research Laboratory (CERL) developed the SMS software suite over many years, and the DoD claims ownership of SMS. The DoD uses SMS in making decisions about sustainment, restoration, and modernization of its facilities. VFA owns and markets a similar software product, and also provides inspection services for its customers. On September 10, 2013, the Under Secretary of Defense for Acquisition, Technology, and Logistics issued a memorandum to standardize the use of the SMS program at all of DoD’s military installations.” Plaintiff alleges that the DoD’s standardization decision excludes VFA and others from competing for contracts to provide facilities management software, in violation of CICA.
    The government moves to dismiss arguing that internal standardization decision is not a procurement and the COFC therefore lacks jurisdiction. Judge Wheeler presents the issue as “The issue presented in this case is whether the Government must conduct a competitive procurement before using something that it already owns. By analogy, if the Government owned an apple orchard, must it go to the market to compare prices of other apples before picking in its orchard? Or, if the Government owned a fleet of cars, must it solicit prices from Hertz and Avis before driving the cars it already possesses? Although the Federal Circuit’s broad interpretation of ‘procurement’ in Distributed Solutions, Inc. v. United States, 539 F.3d 1340, 1345-46 (Fed. Cir. 2008) may make this issue worthy of discussion, in this case there was no procurement at all. To the extent CICA had any application, it would have come into play at the time of the software’s original development, not at the time of intended use after the product had been developed.”
   He reviews that cases that discuss “in connection with a procurement or proposed procurement” and concludes “Allowing VFA to bring this case, where no procurement or cost comparison process was mandated or undertaken, would so broadly expand this Court’s jurisdiction as to eliminate any restrictions of the Tucker Act. Under VFA’s theory of jurisdiction, every time the government chooses not to procure a good or service from a private contractor, and instead creates or develops something on its own, the providers of similar products and services would be able to challenge this decision, asking ‘why don’t you buy from us instead?’ The Court is unwilling to open this ‘Pandora’s box.’ For the reasons stated above, the Defendant’s motion to dismiss for lack of subject matter jurisdiction is GRANTED.”

INFORELIANCE CORP. v. THE UNITED STATES and SCIENCE APPLICATIONS INTERNATIONAL CORP., Defendant-intervenor, COFC No. 14-780C, October 28, 2014. Post-award bid protest, USMC procurement. Plaintiff moves to supplement the administrative record with depositions and documents to support its allegation that an evaluator was biased. The government opposed the motion. Plaintiff alleges that the evaluation was not evenhanded and that the CO who was also the chair of an evaluation committee was biased. Plaintiff submitted declarations which supported its position. Judge Wolski grants the motion. He notes
   “An allegation of bad faith or bias in particular calls for extra-record evidence to support requests for supplementation or discovery. See Beta Analytics Int’l, Inc. v. United States, 61 Fed. Cl. 223, 226 (2004) (recognizing that otherwise discovery will be insensibly limited ‘to cases involving officials who are both sinister and stupid’). But because of the presumptions of regularity and of good faith conduct, see Tecom, Inc. v. United States, 66 Fed. Cl. 736, 769 (2005), ‘to put facts relating to bad faith in play a plaintiff must first make a threshold showing of either a motivation for the Government employee in question to have acted in bad faith or conduct that is hard to explain absent bad faith,’ Beta Analytics, 61 Fed. Cl. at 226; see also DataMill, Inc. v. United States, 91 Fed. Cl. 722, 730-31 (2010). When, as here, discovery is sought, a second hurdle must be surmounted, and ‘the plaintiff must persuade the Court that discovery could lead to evidence which would provide the level of proof required to overcome the presumption of regularity and good faith.’ Beta Analytics, 61 Fed. Cl. at 226 (citing Orion, 60 Fed. Cl. at 343 n.11, 344).
    A plaintiff seeking supplementation or discovery need not, however, meet the same burden of proof that it ultimately must carry on the merits, and ‘[t]he test for supplementation is whether there are sufficient well-grounded allegations of bias to support’ supplementation. Pitney Bowes Gov’t Solutions, Inc. v. United States, 93 Fed. Cl. 327, 332 (2010) (citing L-3 Commc’ns Integrated Sys., L.P. v. United States, 91 Fed. Cl. 347, 354-55 (2010)). 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 proffered 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 contained in the declaration submitted with plaintiff’s motion for preliminary injunction.”

BAHRAIN MARITIME & MERCANTILE INTERNATIONAL BSC (C) v. THE UNITED STATES, COFC No. 14-720C, October 21, 2014. Post-award bid protest, DLA contract contract to provide food distribution services to the United States military in Bahrain, Qatar, and Saudi Arabia. Plaintiff is the incumbent contractor. After four protests to the GAO, plaintiff now challenges the best-value tradeoff decision.
   Judge Kaplan finds for the government on the administrative record. She notes

There is no merit to BMMI’s argument that given its advantages as to Factors I and II, DLA’s award of the contract to OFI effectively and unlawfully converted a best-value procurement into a lowest-price, technically-acceptable procurement. As noted above, it is well established that the scope of agency discretion to choose among qualified offerors is particularly broad when a contract award decision is based on a best-value determination. Source selection officials therefore have broad discretion in making a price/technical tradeoff, ‘and the extent to which one may be sacrificed for the other is governed only by the test of rationality and consistency with the established evaluation factors.’ Truetech, Inc., B-402536.2, 2010 CPD ¶ 129, at 4 (Comp. Gen. June 2, 2010). In particular, an agency may select a lower-priced, technically-lower-rated proposal in a best-value procurement even when technical factors have been identified as being of greater importance than price, where it reasonably concludes that the technically superior proposal does not warrant a price premium. See Mil-Mar Century Corp. v. United States, 111 Fed. Cl. 508, 553 (2013) (‘Even where a solicitation provides that technical criteria are more important than price, an agency must select a lower-priced, lower technically scored proposal if it reasonably decides that the premium associated with selecting the higher-rated proposal is unwarranted.’ (citing Serco Inc. v. United States, 81 Fed. Cl. 463, 497 (2008))); Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. 16, 49 (2010) (‘Even when a solicitation emphasizes technical merit, an agency ‘may properly select a lower-priced, lower-technically-rated proposal if it decides that the cost premium involved in selecting a higher-rated, higher-priced proposal is not justified, given the acceptable level of technical competence available at the lower price.’’ (quoting Banknote Corp., 56 Fed. Cl. at 390)); Afghan Am. Army Servs. Corp. v. United States, 90 Fed. Cl. 341, 360 (2009) (‘[I]n a best-value procurement, the agency may decide to select a lower-technically-rated proposal— even if the solicitation emphasizes the importance of technical merit—if it decides that the ‘higher price of a higher-technically-rated proposal is not justified’’ (quoting Blackwater Lodge & Training Center., Inc. v. United States, 86 Fed. Cl. 488, 514 (2009))).

newAMBUILD COMPANY, LLC v. THE UNITED STATES, COFC No. 14-786C, October 16, 2014. Court’s Synopsis [Post-award bid protest; due process; 5 U.S.C. § 555; unconditional nature of servicedisabled veteran’s majority ownership of the business; prejudice; remedy]
   In the aftermath of a bid protest VA’s Center for Verification and Evaluation (CVE) and then the Executive Director of VA’s Office of Small and Disadvantaged Business Utilization (OSDBU) disqualified AmBuild as a SDVOSB without providing plaintiff with the opportunity to respond.
   Judge Lettow enjoins SBA’s decision and restores plaintiff “as an approved and certified SDVOSB and reinstate AmBuild in the VetBiz VIP database.” In addition to rejecting the reasons argued by SBA, Judge Lettow notes “In short, terminating AmBuild’s SDVOSB status without notifying or giving AmBuild the opportunity to respond to the unconditional ownership issue contravened ‘the minimal requirements’ for an informal adjudication set forth in Section 555 of the APA. Pension Benefit, 496 U.S. at 655.”

LAKE CHARLES XXV, LLC v. THE UNITED STATES, COFC No. 09-363C, October 15, 2014. GSA contract to design, build and then lease an office building. Plaintiff claims its contract was wrongfully terminated for default. The government counterclaims for reprocurement costs and liquidated damages.
   Judge Bruggink discusses plaintiff’s waiver argument noting that plaintiff agreed to the schedule and provisions in a supplemental lease agreement. He grants summary judgment to the government on the termination issues. He concludes “Defendant has shown that there are no issues of material fact in dispute. Plaintiff’s delay claim fails because plaintiff did not present those delays to the CO within 10 days of the start of the delay. Plaintiff does not argue that it provided the required notice or that GSA waived its right to insist upon timely notice. Plaintiff thus had a duty to begin construction and complete it according to the schedule in SLA No. 2. Plaintiff failed to do so. This establishes the propriety of GSA’s termination for default. Plaintiff’s assertion of bad faith on the part of the government is without merit. Accordingly, defendant’s motion for partial summary judgment is granted; plaintiff’s crossmotion for partial summary judgment is denied. Entry of judgment is deferred pending resolution of defendant’s counterclaim for reprocurement costs and liquidated damages.”

RLB CONTRACTING, INC. v. THE UNITED STATES, COFC Nos. 14-651C, October 03, 2014. Pre-award n bid protest Department of Agriculture(USDA) procurement for a shoreline and marsh restoration project in Plaquemines Parish, Louisiana. Plaintiff challenges the size standard selected for the project and the affirmance of that standard by the SBA. The CO selected NAICS code 237990, Other Heavy and Civil Engineering Construction as applicable to the procurement. The code had a size standard of $33.5million. The code also had an exception for “contracts which are comprised primarily of dredging and surface clean up. For those contracts, a size standard of $25.5 million in annual receipts applied.” The CO did not apply the exception and neither did the SBA when plaintiff appealed.
    Judge Bruggink sustains the appeal and enjoins the government from proceeding until it considers whether the exception applies. He finds that neither the USDA’s or SBA’ decisions were rational. He notes “The size standard decisions by both agencies were flawed because the record does not show that they gave proper consideration to whether dredging constitutes the primary activity involved, which the regulations instruct is best determined by the relative value of the items of work involved.”

DENNIS SHIPMAN v. THE UNITED STATES, COFC No. 14-206 C, October 01, 2014. Plaintiff was the successful bidder for 25 laser printers in a GSA auction contract. Plaintiff did not pick up the printers in the time required by the sale and GSA terminated the contract, disposed of the printers and retained plaintiff’ $45 deposit. Proceeding pro se plaintiff alleges “a taking of Plaintiff’s private property for public use without just compensation under the Fifth Amendment of the Constitution of the United States; a violation of Plaintiffs constitutional right to ‘equal access’ pursuant to 42 U.S.C. § 12101 et seq.; and a violation of the Due Process Clause of the Fifth or Fourteenth Amendment, because the GSA determined that Plaintiff was in default without a hearing. The Complaint seeks monetary damages and an injunction to prohibit the Government from disseminating derogatory information about Plaintiff’s account.”
    The government moves to dismiss or in the alternative for summary judgment. Judge Braden finds that had GSA the right to terminate under the terms of the auction contract and plaintiff has not alleged a breach of contract. She notes that a takings claim has little applicability in a commercial contract. Regarding the other allegations of statutory or constitutional issues she notes

The Complaint also alleges that the Government violated Plaintiffs constitutional right to equal access, pursuant to 42 U.S.C. 12101 et seq., and due process under the Fifth and Fourteenth Amendment when the GSA determined that Plaintiff was in default without a hearing. The United States Court of Federal Claims’ authority to grant equitable remedies is limited to relief that is ‘an incident of and collateral to’ a monetary judgment. See 28 U.S.C. § 1491(a)(2); see also Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (‘[T]he determination that the source is money-mandating shall be determinative both as to the question of the court’s jurisdiction and thereafter as to the question of whether, on the merits, plaintiff has a money-mandating source on which to base his cause of action.’).

Therefore, the court does not have subject matter jurisdiction over claims alleging a violation of the Due Process Clause of the Fifth or Fourteenth Amendment, because neither constitutional provision requires that payment of money by the Government. See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995); see also Collins v. United States, 67 F.3d 284, 288 (Fed. Cir. 1995) (‘[T]he due process clause does not obligate the government to pay money damages.’).

In addition, the court does not have subject matter jurisdiction over claims alleging a violation of the Americans with Disabilities Act of 1990 (‘ADA’), 42 U.S.C. § 12101 et seq., because ‘the ADA is not a money-mandating source of law.’ Allen v. United States, 546 F. App'x 949, 951 (Fed. Cir. 2013) (citing Searles v. United States, 88 Fed. Cl. 801, 805 (2009)).

GLOBAL MILITARY MARKETING, INC. v. THE UNITED STATES, COFC No. 14-622C, September 29, 2014. Pre-award protest DeCA procurement for the supply of fresh pork products. Plaintiff argues that its late proposal should have been accepted citing FAR 52-212.1(f)(4) and the provision “emergency or unanticipated event interrupts normal Government processes” and common law considerations. Plaintiff notes that severe weather caused the FAA to restrict traffic at airports at plaintiff’s facility.
   Judge Williams finds that DeCA did not violate the FAR provisions as “the Government office designated for receipt of offers was in Fort Lee, VA, and normal Government operations were not interrupted in that location.” She notes that GAO and the Court have “recognized a ‘common law’ exception to the general rule that a late proposal will not be considered by the agency. The Elec. On-Ramp, Inc. v. United States, 104 Fed. Cl. 151, 162 (2012) (internal citations omitted). This ‘common law’ exception provides that a ‘late proposal may be considered if ‘government misdirection or mishandling’ was the ’paramount cause’ of the delay and consideration of the proposal would not compromise the competitive process.’ Id. However, there is no evidence that any misdirection or mishandling of Global’s proposal on the part of the Government caused the delay. Therefore, the common-law exception to the timeliness rule does not apply.” She finds for the government on the administrative record.

HYPERION, INC. v. THE UNITED STATES, COFC No. 13-1012C, September 29, 2014. EAJA case. See earlier decision. Judge Lettow find that the government’s position was not substantially justified noting “Remarkably, a review of the administrative record revealed that the Army failed to make any inquiry into each offeror’s ability to comply with the limitation-on-subcontracting provision of the FAR, a prerequisite for the offerors’ proposals to be considered technically acceptable. The government’s bare assertion that the agency ‘rationally’ found that all four proposals were acceptable has no support. Def. Opp’n. at 10. Rather, the government has offered ‘no plausible defense, explanation, or substantiation’ for the Army’s failure to inquire into each offeror’s ability to comply with the solicitation’s subcontracting requirements. Griffin & Dickinson v. United States, 21 Cl. Ct. 1, 6-7 (1990) (citing Beta Sys., Inc. v. United States, 866 F.2d 1404, 1406 (Fed. Cir. 1989)).”
    He does agree with the government that some of the attorney fees were for administrative or clerical work that could have been done by paralegals and reduces those fees accordingly.

LACHANA WILLIAMS and RUPERT WILLIAMS v. THE UNITED STATES, COFC No. 13-978C, September 25, 2014. GSA sale contract. Plaintiff alleges the airplane which it purchased was misdescribed and seeks damages of some $164,000. The government moves to dismiss for lack of jurisdiction as a claim was never submitted to the CO. Plaintiff counters that the court should consider its communications with the CO as a claim. Judge Bruggink rejects this argument finding the plaintiff’s request to the CO for a price reduction was not for a sum certain as required by the CDA. Plaintiff also argues in the alternative that its “purchase contract” was not subject to the CDA. The court rejects this argument too noting that the cases cited by plaintiff are dealing with concession contracts. Here GSA was disposing of property as specifically covered by 41 U.S.C. § 7102(a)(4)

TRIDENT TECHNOLOGIES, LLC v. THE UNITED STATES. COFC No. 14-531C, September 22, 2014. Post-award bid protest, Navy task order for meteorological services. Plaintiff argues that the Navy should have held a new competition and not awarded the task order to ATSC. The government moves to dismiss for lack of jurisdiction as protests for task order are barred by 10 U.S.C. § 2304c. The government also argues that the count regarding the argument that a new competition should have been held is untimely under Blue & Gold Fleet, L.P. v. United States.
   Judge Wheeler agrees with the government and grants the motion to dismiss for lack of jurisdiction and the alternative motion to dismiss on timeliness. Judge Wheeler also rejects the argument by plaintiff that the enhanced competition requirements of 10 U.S.C. § 2304c(d) for contracts greater than $5,000,000 indicate that “Congress must have erred in creating these obligations for orders exceeding $5,000,000, but then limiting protests to those orders that exceed $10,000,000. Trident contends that, for orders valued between $5,000,000 and $10,000,000, such as the Atlantic region task order, Congress created a right without any remedy. Trident wants the Court to find that the protest threshold should have been $5,000,000, and asks the Court to read that change into the statute.” He notes “The statutory scheme created in 10 U.S.C. § 2304c fits together in all respects, and the Court does not perceive any ‘drafting errors’ by Congress. The Court will follow the legal maxim that when ‘statutory language is plain and unambiguous, then it controls.’ Res-Care, Inc. v. United States, 735 F.3d 1384, 1388 (Fed. Cir. 2013)”

ROTECH HEALTHCARE INC. v. THE UNITED STATES, COFC No. 14-502C, September 19, 2014. Pre-award bid protest of a VA procurement for provision of home oxygen supplies and services. The solicitation contained a NAICS code for services. Plaintiff challenges the solicitation as not complying with the Limitation on Subcontracting (“LOS”) rules and the statutory Nonmanufacturer Rule (“NMR”). The government argues that the NMR does not apply to service contracts and the NAICS here is for services.
    Finding,that the solicitation called for a significant amount of products Judge Damich finds for plaintiff and enjoins the VA from proceeding. Acknowledging the government’s argument that the case is not precedential, he follows Rotech v. United States, 71 Fed. Cl. 393 (Fed. Cl. 2006) which he finds to be persuasive and well reasoned. He also rejects the argument that change in SBA’s regulations after the 2006 case noting that the “Court is not required to defer to subsequent agency regulation that is contrary to the statute.”
    He summarizes “In holding that the NMR applies to service-coded contracts that also involved the provision of supplies, the Rotech court looked at the plain statutory language of the statutory nonmanufacturer rule, focusing on the word ‘any.’ (‘An otherwise responsible business concern that is in compliance with the requirements of subparagraph (B) shall not be denied the opportunity to submit and have considered its offer for any procurement contract for the supply of a product . . . .’). 15 U.S.C. § 637(a)(17)(A) (emphasis added). The Rotech Court noted that its ‘first task is to determine whether Congress has spoken on the precise issue contested by the parties, by examining the text of the statutory nonmanufacturer rule.’ 71 Fed. Cl. at 418. In interpreting the text of the NMR, the court held that:

The court cannot, however, ignore Congress’ clear choice of the word ‘any’ as the only adjective describing the phrase ‘procurement contract for the supply of a product.’ 15 U.S.C. § 637(a)(17)(A) (emphasis added). By opting not to use further modifying terms, such as ‘primarily,’ ’principally,’ or ‘entirely,’ Congress declined to limit, in any way, the specific types of ‘procurement contract[s] for the supply of a product’ to which the restriction should apply. Indeed, the broad scope of the language used in § 637(a)(17) is even clearer when it is compared with the terms used in another federal procurement statute, the Service Contract Act of 1965 (the Service Contract Act), 41 U.S.C. §§ 351-58 (2000). That statute applies to ‘every contract . . . the principal purpose of which is to furnish services . . . .’ Id. § 351 (emphasis added). Its counterpart, the Walsh-Healy Public Contracts Act, 41 U.S.C. § 35 et seq. (2000), applies to contracts for which the principal purpose is not the furnishing of services, but instead, ‘the manufacture or furnishing of materials, supplies, articles, or equipment . . . .’ Id. § 35. As the language of the Service Contract Act makes clear, Congress can, and does, sometimes include in its language limiting terms which carefully define a statute's scope. See and compare Murakami, 398 F.3d at 1352 (stating that if Congress intended a statute to be more narrow than its plain language suggested, it ‘could have used stricter language in crafting the Act’) (citing Doyon, Ltd. v. United States, 214 F.3d 1309, 1316 (Fed. Cir. 2000)). Congress' refusal to do so here is clear and unambiguous, and must be respected.”

TIGERSWAN, INC. v. THE UNITED STATES, COFC No. 12-62C, September 18, 2014. Plaintiff claims its contract for security services in Iraq was wrongfully terminated for convenience. Both parties move for summary judgment. Plaintiff alleges that the CO abused his discretion when he allowed his client to direct the termination and the sole source award to the previous incumbent.
    Judge Firestone notes that the Federal Circuit “has recognized that a termination for convenience may give rise to a breach of contract claim in the very limited circumstances when ‘the agency (1) terminates the contract in bad faith or (2) abuses its discretion in its decision to terminate the contract.’” In response to plaintiff’s argument that the abuse of discretion by the CO was a breach of contract she notes that the Federal Circuit has also “identified four factors for the court to consider: (1) subjective bad faith on the part of the CO, (2) the reasonableness of the decision, (3) the amount of discretion delegated to the CO, and (4) any violations of an applicable statute or regulation.” Judge Firestone recognizes the discretion given to the CO but that he still must make an independent decision. She again cites the Federal Circuit Federal Circuit “the CO must ‘put his own mind to the problems and render his own decisions.’Pac. Architects & Eng’rs, Inc. v. United States, 491 F.2d 734, 744 (Ct. Cl. 1974) (quoting N.Y. Shipbuilding Corp. v. United States, 385 F.2d 427, 435 (1967));” She denies both motions finding that there are material facts in dispute.

TPL, INC. v. THE UNITED STATES, COFC No. 11-482C, September 16, 2014. Army contract for disposal of ammunition at Fort Wingate. Plaintiff vacated the Fort on April 27, 2007 leaving behind approximately 400,000 pounds of energetic material it had recovered from the demilitarization contracts. The Army proceeded to dispose of this material and on July 30, 2010, the CO issued a final decision demanding reimbursement in the amount of $11,958,046.72 for the disposal expenses incurred by the Army. Plaintiff filed this instant suit on July 26, 2011 seeking relief from the CO’s decision. The government filed a counterclaim for breach of contract, for damages in the amount of $11,887,509.72 plus interest. The government moves for summary judgment arguing that the court has no jurisdiction as plaintiff never filed a claim with the CO.
    Plaintiff argues that “(1) the government committed its own breach of the contracts which contributed to TPL’s failure to perform; (2) TPL’s performance under the contracts was made impossible or impracticable by changed circumstances; (3) the contracts in question were based on mutual mistake of fact; and/or (4) the contracts were unconscionable.”
   Judge Kaplan grants the government’s motion for summary judgment. She finds that court lacks jurisdiction where the claim has not been presented to the CO as required by M. MAROPAKIS CARPENTRY, INC. v. THE UNITED STATES, CAFC No. 09-5024, June 17, 2010. Although holding that the court lacks jurisdiction the opinion discusses in detail and rejects all of plaintiff’s arguments.

JAY ANTHONY DOBYNS v. THE UNITED STATES, COFC No. 08-700C, September 16, 2014. Not a procurement contract. Judge Allegra finds that while the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) did not expressly breach a settlement agreement, ATF’s conduct was a breach of the covenant of good faith and fair dealing. Judge Allegra awards plaintiff $173,000 in damages for mental distress, as well as pain and suffering.

COMPLIANCE SOLUTIONS OCCUPATIONAL TRAINERS, INC. V. THE UNITED STATES, COFC No. 13-194C, September 16, 2014. The Occupational Safety and Safety Administration (OSHA) issued a Notice of Competition and Request for Applications (RFA) for a cooperative agreement for training providers. The RFA provided “... no products or services are sought for OSHA’s use; the present Federal Register notice is not a contract or procurement action... ” and that “OSHA will enter into 5-year, nonfinancial cooperative agreements with successful applicants” and that “These cooperative agreements will not constitute a grant or financial assistance instrument, and OSHA will provide no compensation to authorized trainers.” Plaintiff was selected for award and was sent an award document which stated that award would be subject to execution by both parties. Plaintiff signed the award and returned it to OSHA. OSHA never signed the document. OSHA subsequently cancelled the program after a protest by a third party.
    Plaintiff submitted a certified CDA claim to OSHA which was never answered. Plaintiff brought suit and claims $365,984.09 in costs for alleged performance. The government moves to dismiss arguing that there was no contract with plaintiff.
   Judge Allegra grants the government’s motion. He notes “When the parties contemplate being bound only by a written agreement, the court will not infer a contract without such an agreement. See Peninsula Grp. Capital Corp. v. United States, 93 Fed. Cl. 720, 732 (2010); Pac. Gas & Elec. Co. v. United States, 3 Cl. Ct. 329, 339 (1983) (‘[I]in negotiations where the parties contemplate that their contractual relationship would arise by means of a written agreement, no contract can be implied.’); see also Gillioz v. United States, 102 Ct. Cl. 454, 466-67 (1944). In this case, a clause in the cooperative agreement plainly stated that the agreement would be effective only upon signature of both the parties (‘[t]his agreement is effective upon signature by both parties’). Defendant did not sign the agreement. In a circumstance such as this, the Restatement (Second) of Contracts holds -

[a] manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.
Restatement (Second) of Contracts § 26; see also id. at cmt. a; 1 Corbin on Contracts § 2.2 (Joseph M. Perillo, rev. ed. 2003). Plaintiff chose to proceed with development of its program even though it was aware that defendant had not signed the contract. It cannot complain now that its failure to demand the execution of the agreement, nonetheless, gave rise to a contract.”

newKVICHAK MARINE INDUSTRIES, INC., v. THE UNITED STATES, and BIRDON AMERICA, INC. Intervenor, COFC No. 14-280 C, September 15, 2014. Post-award bid protest of a firm fixed price procurement for Bridge Erection Boats. Plaintiff argues that the government unfairly evaluated the technical factors in the solicitation. The government moves to strike three technical exhibits offered by plaintiff.
   Judge Merow grants the motion to strike noting “Kvichak has established neither that the aiiicles it submitted are properly the subject of judicial notice, nor that they are necessary for the court's review of this case. Kvichak failed to provide the court with any evidence of the accuracy or credibility of the exhibits it attached to its motion. And there is nothing apparent on the face of exhibits themselves that suggest such reliability-they are simply printouts of information from websites that have no force of authority to the court’s knowledge. As such, the court will not take judicial notice of the facts contained in the exhibits.”
   Judge Merow also finds that plaintiff’s arguments about the term of the solicitation are untimely under the standards set in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, as he finds the provisions to be patently ambiguous which should have been protested earlier. Judge Merow also notes that patent ambiguity or not that the government still had to treat offerors equally. Finding no unfairness in the evaluation he finds for the government on the administrative record noting “Kvichak has given the court no reason to question the agency’s proficiency to make such technical determinations. In fact, in its motion, Kvichak notes that the source selection panels were comprised of ‘technically qualified individuals.’ See Doc. 21-2 at 7. The thorough discussion of each proposal, and the comparison made between Kvichak’s and Birdon’s submissions, evinces a rational basis for the agency’s ratings.”

TRUST TITLE COMPANY v. THE UNITED STATES, COFC No. 11-745C, September 10, 2014. Two HUD requirements contracts for real estate closing services. Plaintiff appeals the termination for default the assessment of liquidated damages and excess reprocurement costs. The liquidated damages arose from a provision requiring plaintiff to wire transfer funds to HUD by a certain time after closing. HUD awarded six IDIQ contracts to accomplish the work of plaintiff’s terminated contracts.
    Judge Lettow upholds the termination for default and the liquidated damages as plaintiff’s failures were readily evident. He finds however that the government is not entitled to excess reprocurement costs. He notes “Contractual excess reprocurement costs may only be imposed when the government can prove that: (1) the reprocured supplies are the same or similar to those involved in the termination, (2) the government actually incurred excess costs, and (3) the government acted reasonably to minimize the excess costs resulting from the default, i.e., the government used the most efficient method of reprocurement to obtain a reasonable price and mitigate its losses. Cascade Pacific Int’l v. United States, 773 F.2d 287, 294 (Fed. Cir. 1985).” The court finds that the government fails to prove factor (1) noting that “The differences between the reprocurement contracts and Trust Title’s contracts are sufficiently material to render the reprocurement dissimilar, such that the government is not contractually entitled to excess reprocurement costs. HUD placed the reprocurement contractors in a substantially improved position at the outset of performance as compared to Trust Title.”

BANNUM, INC., Plaintiff, v. THE UNITED STATES and ALSTON WILKES SOCIETY, INC., Intervenor Defendant, COFC No. 14-429 C, September 10, 2014. Pre-award bid protest, Bureau of Prisons(BOP) procurement for a halfway house and attendant services for federal offenders. After a series of protests to the agency, GAO and the court and corrective action by the BOP, plaintiff now argues that it was improperly eliminated fro the competitive range. At issue was the requirement that the offeror present evidence that it had zoning approval for its offered site. Judge Bush accepts much of the government’s argument that the allegations concerning pre-corrective action are moot. However, she does find that the arguments regarding disparate treatment may properly be considered. The court ultimately finds that there was no disparate treatment and that the decision to remove plaintiff from the competitive range was rational and holds for the government on the administrative record.

ARKRAY USA, INC., Plaintiff, v. THE UNITED STATES, Defendant, and ABBOTT DIABETES CARE SALES CORPORATION, Defendant-Intervenor, COFC No. 14-233C, September 09, 2014. Defense Health Agency(“DHA”) procurement for self-monitoring blood glucose system test strips. The procurement required offerors to have an FSS contract. See earlier decision remanding issue to the CO to determine if intervenor here could properly hold itself as holding a FSS contract. The government had argued there that Abbot Diabetes Care Sales Corporation(“ADCSC”) could rely on the FSS contract held by ADCSC’s affiliate, Abbott Laboratories Inc.(“ALI”) and was eligible to recieve a BPA.. On remand the CO concluded that ADCS could properly hold itself out as having a FSS contract.
   Judge Firestone agrees with plaintiff that “whether ADCSC was eligible for award of the BPA turns on whether the Contracting Officer correctly concluded that ADCSC was ALI’s agent and could enter into the BPA on ALI’s behalf or could otherwise rely on ALI’s FSS to satisfy the FSS requirement.” Judge Firestone finds that the CO determination was arbitrary and capricious and issues a permanent injunction setting aside the DHA BPA.

A companion case to THRESHOLD TECHNOLOGIES, INC., below, but by a different subcontractor. Similar to the pleadings in Threshold, plaintiff argues that “defendant (1) breached an express contract with plaintiff, (2) breached an implied contract with plaintiff, (3) breached the covenant of good faith and fair dealing in contracts, and (4) is liable to plaintiff under a theory of quantum valebant.”
   In a forty page detailed opinion Judge Horn rejects all of plaintiff’s arguments. She concludes “For the foregoing reasons, plaintiff, New Hampshire, did not enter into an express or implied-in-fact contract with the federal government, and, therefore, does not have privity of contract with the federal government. Plaintiff also is not a third party beneficiary to the prime contract between the Flight Test Associates and the federal government. Because plaintiff is not in a contractual relationship with the federal government, plaintiff’s claim of breach of the covenant of good faith and fair dealing also cannot be considered by this court. Plaintiff’s prayer for quantum valebant relief is not linked to a contractual relationship in place with the federal government. Therefore, the court GRANTS defendant’s motion to DISMISS New Hampshire’s complaint. The Clerk of the Court shall enter JUDGMENT consistent with this opinion.”

THRESHOLD TECHNOLOGIES, INC. V, THE UNITED STATES, COFC No. 13-599C, August 29, 2014. Plaintiff a subcontractor to a NASA prime contractor, Flight Test Associates, alleges it not was paid for various services. Plaintiff “claims it has an express and implied-in-fact contract with the government, and is ‘a third party intended beneficiary to the’ prime contract between the government and Flight Test Associates. Plaintiff claims, therefore, that defendant (1) breached an express contract with plaintiff, (2) breached an implied contract with plaintiff, (3) breached the covenant of good faith and fair dealing in contracts, and (4) is liable to plaintiff under a theory of quantum meruit.”
    The government moves to dismiss all but the implied contract claim arguing that was never an express contract with plaintiff, there is no third-party beneficiary relationship with the government, because there was no express contract there can be no good faith and fair dealing claim and finally, that the quantum merit argument is based on an implied-in-law contract for which the court has no jurisdiction.
   In a 38 page opinion Judge Horn conducts an extensive discussion of the issues and concludes that there was no express contract with plaintiff, plaintiff was not a third party beneficiary and that plaintiff cannot recover under an implied-in-law theory. She does note however, that a duty of good faith and fair dealing can exist in an implied contract. Judge Horn dismisses all except the implied contract claim which is reserved for further proceedings.

GUARDIAN ANGELS MEDICAL SERVICE DOGS, INC., THE UNITED STATES, COFC No. 14-20C, August 29, 2014. VA contract for service dogs. The government terminated the contract for default on August 31, 2012. On February 28, 2013, plaintiff sent a letter arguing that the termination was wrong and should be converted to one of convenience. The CO requested supporting documentation for plaintiff’argument. On May 03, 2013, the CO informed plaintiff that she had received no supporting documentation and that her August 31, 2012 termination decision had not and would not be reconsidered. Plaintiff filed its appeal on January 7, 2014. the government moves to dismiss arguing the appeal was filed more than twelve months after the termination decision.
    Plaintiff argues that its February 28, 2012 “letter to the Contracting Officer was a timely ‘claim,’ and as such, the 12-month statutory period did not begin to run until May 3, 2013,” Judge Williams grants the motion to dismiss noting “While Plaintiff sought to challenge the default termination in its February 28, 2013 letter to the VA’s contracting officer, this letter had no impact on Plaintiff’s pursuit of its CDA appeal rights in this Court. Although this letter was characterized as a ‘formal dispute’ and a ‘claim,’ it did not alter the requirement that Plaintiff appeal the termination decision. Indeed, the Contracting Officer’s May 3, 2013 letter to Plaintiff responding to its February 28, 2013 letter reiterated that Plaintiff had the right to appeal the August 31, 2012 termination for default to this Court as stated in the termination decision. Contrary to Plaintiff’s misconception, it was not required to file a certified claim with the Contracting Officer prior to filing in this Court to appeal its default termination. As the Court recognized in Educators Associates, Inc. v. United States, when challenging a default termination, the filing of a certified claim with the contracting officer is ‘irrelevant for the purpose of counting the twelve-month statutory period.’ 41 Fed. Cl. at 814.”

newBAILEY TOOL & MFG. COMPANY v. THE UNITED STATES, COFC No. 14-216C, August 28 2014. Pre-award bid protest, Army procurement for blast demolition kits. The CO found plaintiff to be non-responsible for lack of financial capability. SBA agreed with the CO. Plaintiff applied for a COC which SBA denied. Plaintiff then offered to supply the CO with a statement from a lender who would provide a funding commitment . The CO refused to consider the offer and reaffirmed the non-responsibility finding. Plaintiff argues that the provision in FAR 9.104-3(a) that states that “the contracting officer shall require acceptable evidence of the prospective contractor’s ability to obtain required resources.”
   Judge Kaplan discusses the issue and finds the the decision was within the CO discretion and finds for the government on the administrative record.She notes “BTM’s interpretation of FAR 9.104-3(a) conflicts not only with the considerable discretion given to contracting officers, which BTM itself acknowledges in its Motion at 4, but also with Federal Circuit case law that rejects a virtually identical argument in John C. Grimberg Co., 185 F.3d at 1303. In that case, the contracting officer had determined that the protester was nonresponsible, and the protester argued that the contracting officer erred when he ‘decided not to afford [the protester] the opportunity to cure’ the problems related to its responsibility. Id. at 1300. Like BTM, the protester in John C. Grimberg Co. argued that ‘the contracting officer had a legal obligation to obtain further information” before making a nonresponsibility determination. Id. at 1303. Also like BTM, the protester cited the use of the word ‘shall’ in the FAR—here, FAR 9.105-1(a)—for the proposition that the contracting officer has a duty, not discretion, to request additional evidence of responsibility. John C. Grimberg Co., 185 F.3d at 1303 (quoting FAR 9.105-1(a)). The Federal Circuit disagreed. Although ‘shall’ indeed connotes a duty, the Federal Circuit acknowledged, the contracting officer’s duty is only ‘to have, or to obtain, enough information to make a responsibility determination.’ Id. But what constitutes ‘enough information’ is a question within the contracting officer’s discretion to answer. Id. In short, ‘the contracting officer is the arbiter of what, and how much, information he needs.’”

AMERICAN GOVERNMENT PROPERTIES and HOUMA SSA, LLC v. THE UNITED STATES, COFC No. 09-153, August 28, 2014. Security Administration (“SSA”) contract for design build and lease an office. Shortly after award plaintiff “executed a document entitled ‘Assignment of U.S. Government Real Property Lease’ with Huoma, a newly formed Louisiana limited liability company. AGP was the sole member of Houma. The assignment document stated that the assignor, AGP, ‘assign[ed] all of its contractual rights and interests under the Lease.’ The assignee, Houma, agreed ‘to perform all of the obligations of Lessor under the Lease.‘ Houma, as assignee, also agreed to ‘take all steps necessary to ensure that this Assignment is reflected in the records of the United States Government.“ The CO ultimately terminated the contract for default and subsequently accessed liquidated damages and excess procurement costs. Plaintiff filed a claim for wrongful termination and damages which the CO denied and plaintiff appeals.
    The government moves to dismiss arguing that the assignment violated the 41 U.S.C. 6305, Contract Act’s prohibition against assignments and voided the contract with plaintiff. Judge Bruggink discusses the exceptions to the Contract Act and the case law and finds that the transfer to Houma was not a corporate reorganization. He concludes “Because the Contracts Act annulled plaintiffs’ contract with GSA, they lack standing to maintain a suit against the government. Accordingly, defendant’s motion to dismiss for lack of jurisdiction is granted, and defendant’s and plaintiff’s cross-motions for summary judgment are denied as moot.”

DAVID FRANKEL, pro se v. THE UNITED STATES, COFC No. 13-546C, August 27, 2014. Plaintiff alleges a breach of contract in a contest he entered that was sponsored by the Federal Trade Commission. Plaintiff alleges that the FTC failed to comply with the rules for the contest and if they had plaintiff’s proposal would have had a substantial likelihood of winning. Plaintiff also seeks injunctive relief. The government moves to dismiss for failure to state claim. Judge Allegra grants the motion in part insofar as any injunctive relief as he finds that contest was not a procurement. Judge Allegra follows precedent and notes “The materials before the court indicate that a contract was formed between the FTC and each of the competitors when the competitors accepted the offer embodied in the competition by submitting entries. The FTC was obligated to provide the winner of the competition—who followed the rules—the $50,000 first place cash prize. See Robertson, 343 U.S. at 713; Lucas, 25 Cl. Ct. at 304; see also Stone v. Comm’r of Internal Revenue, 23 T.C. 254, 263 (1954); cf Roberson v. United States, 115 Fed. Cl. 234, 242 (2014) (no contract formed in FTC competition where contest entrant did not follow rules). While defendant asserts that there is nothing in the rules of the Contest that legally binds the FTC to pay for the solutions, the detailed rules of the Contest (which go on for 18 pages) plainly suggest otherwise and instead anticipate that the FTC’s selection of winning submissions would give rise to a binding contract. In the court’s view, plaintiff has properly alleged that that contract has been breached, potentially providing him with monetary compensation. This requires the court to deny defendant’s motion to that extent.”

COASTAL ENVIRONMENTAL GROUP, INC. v. THE UNITED STATES, COFC 13-71C, August 15, 2014. Bid protest EPA soil remediation procurement. Plaintiff challenges the cancellation of the procurement. While the protest was proceeding EPA decided to terminate the contract for convenience and make alternate arrangements for the soil remediation requirements. EPA ultimately awarded a sole-source contract to an 8(a) firm. Plaintiff argues that the administrative record does not contain any explanation for the decision to solicit a new contract instead of seeking the revival of an earlier bid, which forecloses a determination that the decision had a rational basis. Plaintiff also contends that the purported cancellation was irrational because it occurred before the EPA reassessed its soil remediation needs. Finally, plaintiff argues that by cancelling the procurement, the EPA did not treat all bidders equally and impartially.
    Judge Sweeney notes “Nevertheless, pursuant to binding precedent, the EPA is not required to provide an explanation for its decision. Government contract officials are presumed to ‘exercise their duties in good faith.’ Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239 (Fed. Cir. 2002). A protestor seeking to overcome this ‘strong presumption’ bears a heavy burden of proof. Id. at 1238-39. Where, as here, there is no regulation requiring an agency to provide an explanation for its decision, the presumption of regularity renders an explanation unnecessary ‘unless that presumption has been rebutted by record evidence suggesting that the agency decision is arbitrary and capricious.’ Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1338.”Judge Sweeney finds that once EPA decided to issue a new solicitation rather than revive the existing IFB it had constructively cancelled the procurement. Finding that plaintiff has not shown the the government did not act rationally or in bad faith the court finds for the government on the administrative record.

COASTAL ENVIRONMENTAL GROUP, INC. V. THE UNITED STATES, COFC No. 13-71C, August 25, 2014. Bid protest EPA procurement for soil remediation. Judge Sweeney sanctions the government and orders the payment of plaintiff’s attorney fees and costs. She also orders EPA to pay a penalty of $1000 to the court. She finds that the EPA CO and supervisor acted in bad faith when they backdated a D&F which was placed into the supplemental administrative record. She also finds that the supervisor “acted in bad faith by representing in her certification of the supplemental administrative record that she carefully reviewed the record and that the record constituted the record of the actions taken by the EPA that were relevant to plaintiff’s protest, because she acknowledged that she did not review the record and because the record contained an inaccurate, backdated document.”

CGI FEDERAL INC. v. THE UNITED STATES, COFC No. 14-355C, August 22, 2014. Pre-award bid protest, Center for Medicare Services(CMS) RFQs for Recovery Audit Contractors under the FSS program. Plaintiff challenges payment terms which it argues are unduly restrictive and contrary to FASA and inconsistent with customary commercial practice. The government argues that plaintiff lacks standing and argues that the requirements of FASA and FAR Part 12 do not apply to FAR Subpart 8.4 FSS procurements, and that the payment terms do not unduly restrict competition.After a very good discussion of the standing issues, Judge Williams finds that plaintiff is a prospective bidder and has a direct economic interest that would be effected by an award. In rejecting the argument by the government that plaintiff’s protest to the GAO did not protect it status Judge William notes “This Court disagrees. Pre-award protests in any forum serve the salutary purpose of permitting an agency to correct errors in a solicitation and proceed with its procurement. It matters not what forum a plaintiff chooses to notify the agency that its solicitation is infirm-an agency protest provides just as effective a remedial vehicle as a protest brought at the GAO, or this Court.”
    On the merits the court finds for the government on the administrative record. The court finds neither FAR Subpart 8.4 nor FAR Part 12 requires that terms of RFQs for FSS buys comply with FAR Part 12 procedures and that the RFQ’s payment terms do not unduly restrict competition. Regarding the payment provisions, Judge Williams notes “As this Court recognized in Communication Construction Services, Inc. v. United States, procurement officials possess substantial discretion in financial judgments regarding agency needs because the agency will live with the consequences of its determination. 116 Fed. Cl. 233, 268, 272 (2014). Here, the agency devised the modified payment term knowing its cost and benefit to the Government and adverse impact on bidders and was willing to impose this requirement as a solution to its needs. This was in essence a financial judgment call that this Court should not second guess.”

APPLIED BUSINESS MANAGEMENT SOLUTIONS, INC. LLC v. THE UNITED STATES and PREMIER MANAGEMENT CORPORATION, Intervenor, COFC No. 14-214C, August 13, 2014. Plaintiff challenges the corrective action take by GSA in response to a protest by Moody. GSA ultimately claimed that budget cuts required a termination for convenience of plaintiff’s contract and award to intervenor an 8(a) firm on a sole-source basis. Judge Williams’ introductory paragraph summarizes the case

GSA’s invocation of budget-mandated reduced needs to conclude that ABMSI’s contract no longer met agency requirements was unsupported by the record and erroneous. ABMSI’s contract from the start accommodated a reduction in requirements and could have remained in place without the agency’s ensuing conduct—its rush to the Small Business Administration (“SBA”) to secure an 8(a) sole-source contract for services that cost more than ABMSI’s contract and displaced a competitive award to a service-disabled veteran-owned small business. GSA’s conduct was arbitrary, capricious, and anti-competitive, lacked a rational basis, and prejudiced a service-disabled veteran-owned small owned business. As such, this Court declares GSA’s sole-source award to Premier Management Corporation (“Premier”) null and void, permanently enjoins GSA and Premier from implementing this sole-source contract and orders GSA to complete the corrective action it undertook in response to Moody’s protests forthwith.

    Judge Williams finds that the award to intervenor is null and void and sets aside the award. She orders the government to proceed with the corrective action of the GAO protest and orders that plaintiff’s contract remain in place until that action is completed.

newSOTERA DEFENSE SOLUTIONS, INC., Plaintiff, v. THE UNITED STATES, Defendant, RAYTHEON CO., Intervenor defendant, COFC No. 14-255 C, August 13, 2014. Court’s Synopsis Post-Award Bid Protest; Protestor’s Standing Survives Allegation of Organizational Conflict of Interest; No Waiver of Protest Caused by Delay in Filing Protest of Agency Decision to Undertake Corrective Action; Waiver of Post-Award Protest of Cost Evaluation Scheme Set Forth in Solicitation; No Unstated Criteria in Reevaluation of Proposals; Best Value Award Not Shown To Be Unlawful, Arbitrary, Capricious, or an Abuse of Discretion.
   Interesting case. Army contract for the development of an Electronic Warfare Planning and Management Tool (EWPMT). Plaintiff was the original awardee before the Army took corrective action as a result of a protest to the GAO. Judge Bush finds for the government and intervenor. Interesting discussion of intervenor’s argument, which the court rejects, that plaintiff lacks standing because of an OCI issue which the Army had already considered. Judge Bush notes “Thus, even if the court, in the circumstances of this procurement, considered it appropriate to conduct a review of Raytheon’s OCI allegations to confirm Sotera’s standing, which it does not, and even if the court agreed that the AR should be supplemented with the materials attached to Raytheon’s motion to dismiss, which it again does not, the court believes that deference would nonetheless be due the Army’s OCI ruling and that the arbitrary and capricious standard of review would apply. In other words, the court would follow Axiom and only overturn the Army’s finding that Sotera’s eligibility for award was not destroyed by an OCI if the court determined the Army’s finding regarding OCIs to be unreasonable.”

OCTO CONSULTING GROUP, INC. v. THE UNITED STATES, COFC No. 14-234C, August 13, 2014. Post-award bid protest GSA’s OASIS SB procurement. The solicitation provided that after an acceptability review that firms that did not score in the top forty would not be further considered. Plaintiff alleges that it should have been awarded a contract as the agency improperly evaluated its proposal or that plaintiff’s original self-assessment was incorrect. Plaintiff also alleges that the Agency probably improperly evaluated the proposals of some of the 43 awardees. Plaintiff argues that it was improper to eliminate plaintiff’s proposal without considering price citing Serco Inc. v. United States, 81 Fed. Cl. 463.
   Judge Horn disagrees noting “The court agrees with defendant that had the Solicitation called for a traditional trade-off analysis, it could have been arbitrary and capricious not to consider price, but because the Solicitation was clear that it was evaluated for Highest Technically Rated Offerors with Fair and Reasonable Pricing, the Agency did not err and the reasoning in the Serco decision is not applicable to the Solicitation at issue before this court. Moreover, the court notes even if the facts of this protest were comparable to the facts in Serco, this court would not be bound by the Serco decision. See Adams v. United States, 99 Fed. Cl. 700, 709 (2011) (quoting Buser v. United States, 85 Fed. Cl. 248, 259 n.12 (2009) (‘‘[T]he court is not bound by other decisions in the Court of Federal Claims[.]’’)); see also Reidell v. United States, 47 Fed. Cl. 209, 212 (2000) (‘A decision here is not binding on other judges in this same court.’ (citation omitted)).” Judge Horn denies plaintiff’s motion and dismisses the protest.

CEDGE SOFTWARE CONSULTANTS, LLC v. THE UNITED STATES and TRIDENT TECHNOLOGIES, LLC, Defendant-Intervenor, COFC No. 14-394C, August 11, 2014. Post-award bid protest, United States Transportation Command contract for information technology engineering needs. Plaintiff protests its removal from the competitive range after two rounds of discussions, leaving only one firm in the competition. Plaintiff argues that the government erred when it assigned a deficiency to one section of its proposal as the issues identified by the government were not material, citing FAR 15.001. Judge Sweeney rejects this argument finding that the government’s assignment of a deficiency had a rational basis and the removal of appellant’s proposal for the competitive range also had a rational basis. Judge Sweeney discusses the record and rejects appellant’s argument that discussions were not meaningful, were misleading and not equal. She finds for government and intervenor on the administrative record.

ULYSSES INC., V. THE UNITED STATES. COFC No. 06-436C, August 07, 2014. EAJA case. See underlying case on the merits which involved the government’s cancellation of two purchase orders, plaintiff’s claim and the government counterclaim alleging fraud. Th government admits that plaintiff was the prevailing party, but argues that the government’s position was substantially justified. Judge Williams finds that the government’s position in canceling the first purchase order was substantially justified, but the cancellation of the second order was not substantially justified. She notes that even if the government was justified in one instance does not equate to an overall justification. Judge Williams rejects the arguments that the government was substantially justified in pursuing its False Claims Act, the fraud provision of the Contract Disputes Act, and the Forfeiture of Fraudulent Claims Act positions. She observes “Throughout this litigation, the Government argued that Plaintiff’s belief that it was an approved source qualified to manufacture the 112 Part was equivalent to making a ‘misrepresentation of fact’ to the Government to fraudulently obtain payment. As the Court noted, ‘[t]he concept of what constituted an approved source was murky.’ Ulysses, 110 Fed. Cl. at 648. Plaintiff and the Government simply had different understandings about whether Plaintiff was an approved source for the 112 Part. Plaintiff, in its claim for payment, candidly explained that based on its prior dealing with the Government, it thought Ulysses was an approved manufacturer. The Government’s characterization of a genuinely held belief with ‘intent to deceive’ was unjustified.” The court awards fees and expenses to plaintiff.

KELLOGG BROWN & ROOT SERVICES, INC. v. THE UNITED STATES, COFC No. 13-236C, August 06, 2014. Interesting case. LOGCAP III contract. The government requested a proposal from plaintiff to conduct contract closeout. Plaintiff did not submit a proposal but, instead filed a bid protest arguing that a request for a proposal is a new procurement.
   Plaintiff argues “First, KBR alleges that the Army’s decision to reimburse closeout costs on a firm-fixed price basis was unreasonable and violates the applicable provisions of the Federal Acquisition Regulation (FAR). Second, plaintiff argues that the Army’s request is an improper attempt to increase the scope and period of performance of Task Order 160, which plaintiff contends expired in December, 2011. Third, KBR argues that the Army’s request would extend the performance period of LOGCAP III beyond December, 2011, in violation of a statutory limit on the duration of ID/IQ contracts. Fourth, plaintiff argues that because the Army lacks adequate appropriated funds to pay for the closeout activities, the request for proposal is a violation of the Antideficiency Act, 31 U.S.C. § 1341. Finally, KBR alleges that the Army’s attempt to require it to render these services on a firm-fixed price basis, under an implied-in-fact contract extending beyond the life of LOGCAP III, and without adequate appropriated funds, is a violation of the covenant of good faith and fair dealing.” The government moves to dismiss for lack of jurisdiction arguing that the matter is one of contract administration and must be submitted under the CDA.
   Judge Wolski discusses the issues raised by plaintiff and dismisses the case concluding “Plaintiff’s case concerns matters of contract administration which must be brought under the CDA, and does not come under our bid protest jurisdiction. Nor can KBR establish standing to bring a bid protest, as it has not alleged that the government inflicted upon it a non-trivial competitive injury. For the foregoing reasons, the government’s motion to dismiss the case for lack of subject-matter jurisdiction is hereby GRANTED, and its motion to dismiss portions of the case for failure to state a claim upon which relief can be granted is DENIED-AS-MOOT.”

LAWRENCE BATTELLE, INC., et al. v. THE UNITED STATES, COFC No. 12-320C, August 05, 2014. Bid protest, Air Force contract for specialized cost services. Plaintiff’s technical proposal was found to be unacceptable and it was not included in the competitive range. Plaintiff challenges the evaluation of its proposal, raises claims claims for fraud and discriminatory treatment in violation of 42 U.S.C. § 1983 and also includes claims under the Administrative Procedure Act in connection with the actions of the Air Force and for breach of an implied-in-fact contract stemming from the Air Force’s alleged failure to consider LBI’s proposal in good faith. The court dismisses the 1983 claims and other claims sounding in tort has the COFC has no jurisdiction over those matters. Judge Firestone agrees with the government that although the court reviews bid protest cases based on the standards established under the APA the “the court does not itself have jurisdiction to consider challenges to agency action under the APA” and dismisses those claims. Judge Firestone finds for the government on the administrative record. She finds that the government’s evaluation that the proposal submitted by plaintiff was unacceptable was well supported. She also rejects arguments by plaintiff that discussions should have been held as discussions were conducted with other offerors. She notes that the discussions with others were only conducted after those firms had been found to be in the competitive range, which plaintiff was not.

CLINICOMP INTERNATIONAL, INC. v. THE UNITED STATES, COFC 14-188 C, August 1, 2014. Post-award bid protest, VA procurement of a computer information system. Plaintiff challenges the evaluation of its technical proposal, that government wrongfully established a competitive range of one proposal and that the government treated the offerors unequally. Judge Bush finds that plaintiff’s argument with the interpretation of its proposal rests on its position that the government’s interpretation of a technical provision of the solicitation was erroneous. She finds that this argument is untimely under BLUE & GOLD, FLEET, L.P. v. UNITED STATES, and HORNBLOWER YACHTS, INC., CAFC No. 2006-5064, June 26, 2007 as the alleged error was patently ambiguous which should have been raised earlier. She also rejects the competitive range of one argument noting that the solicitation clearly stated that the government did not intend to conduct discussions and that a competitive range was never established. She does find however, that the government did treat the offerors unequally regarding in rating the awardee’s (Picis)proposal as technically acceptable. She notes

“In sum, defendant has provided no record support for the VA’s conclusion that Picis’s quotation satisfied the requirement to save viewable wave forms in CPRS. In this context, the court considers the VA’s technical evaluation of Picis’s quotation, and the consequent award to Picis, to constitute a relaxation, solely for the benefit of one offeror, of the requirement that ‘viewable wave forms are to be saved in CPRS as part of the patient record.’ AR at 108. Such unequal treatment is fundamentally arbitrary and capricious, and violates the full and open competition mandated by CICA in 41 U.S.C. § 3301(a)”
The court issues a permanent injunction setting aside the award to Picis but does not set any restrictions on the VA’s options for the re-solicitation of proposals, or for the re-evaluation of proposals or the discretion to not re-procure these services.

AMERICAN AUTO LOGISTICS, LP Protestor, v. UNITED STATES, Defendant, v. INTERNATIONAL AUTO LOGISTICS, LLC Defendant-Intervenor, COFC No. 14-102C, July 31, 2014. Post-award bid protest, TRANSCOM contract, for transportation and storage services with respect to privately-owned vehicles of military service members and Department of Defense civilian employees, to International Auto Logistics, LLC, intervenor here. Plaintiff alleges that the evaluation of intervenor’s past performance was faulty and the source selection decision was unreasonable and contrary to law and the RFP. Plaintiff also alleges that intervenor proposed to use a subcontractor that was debarred. In an 117 page opinion Judge Horn grants judgment on the administrative record for the government and intervenor. She concludes “that the government’s past performance determination and final integrated assessment were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

mUNITED STATES ENRICHMENT CORPORATION v. THE UNITED STATES, COFC No. 13-365C, July 28, 2014. Plaintiff appeals the denial of its claims as a prime and subcontractor. The government moves to dismiss for lack of jurisdiction those claims arising as a subcontractor. Judge Firestone dismisses the claims based on the subcontractor status. She notes “The government also contends that USEC might not have needed to show privity if it had shown that DOE’s prime contractors were merely purchasing agents for DOE, but that USEC elected not to make a claim based on agency.”

JAY HYMAS d/b/a DOSMEN FARMS v. THE UNITED STATES, COFC No. 13-291 C, July 25, 2014. Plaintiff protests the failure of the Fish and Wildlife Service(Service) to award it a cooperative farming agreement arguing that the failure to award violated the Competition in Contracting Act, the Federal Grant and Cooperative Agreement Act, and the Administrative Procedure Act.
   The government moves to dismiss arguing the court does not jurisdiction under 28 U.S.C. § 1491(b)(1) of the Tucker Act to review the Service’s use of cooperative agreements to promote wildlife conservation. First, the government the agreements here are not procurements, second, the Federal Grants and Cooperative Agreements Act(FGGA) does not apply, third, the National Wildlife Refuge System Improvement Act specifically authorizes the Service to ‘enter into a cooperative agreement’ to conduct refuge projects, fourth, “the Government criticizes Plaintiff’s reliance on 360Training.com, Inc. v. United States, 104 Fed. Cl. 575 (2012), where the court exercised jurisdiction to determine whether an agency properly used a third party to provide a required service”, finally, the challenges to the 2013 agreements are moot.
    Judge Braden discusses at length the Service’s statutory authority, the FGGA the relevant caselaw and rejects all of the government’s arguments. She finds “The Service uses cooperative farming agreements to obtain the services of farmer-cooperators to feed migratory birds and wildlife on the Refuges. In the court’s judgment, that activity is a procurement”. She also finds that the agreements were subject to CICA and the Services policy of giving priority in incumbents was a violation of CICA. Additionally, she finds that the priority policy also violated the FGGA. Finally, she finds that the Service’ failure to comply with its own procedures and regulations was arbitrary and capricious.
   Judge Braden enjoins the government “from entering into any cooperative farming agreements or other contractual vehicles concerning the McNary and Umatilla National Wildlife Refuges for the 2015 farming season or thereafter, unless and until the selection process and award comply with the CICA, FGCAA, and the APA.” She also orders “In addition, at the conclusion of the 2014 farming season, the Service will terminate the cooperative farming agreements identified above.”

DELAWARE CORNERSTONE BUILDERS, INC. v. THE UNITED STATES, COFC No. 10-588C, July 24, 2014. VA contract for the replacement of a health care facility. Plaintiff claims the government beached its 2002 contract by failing to close it out and pay plaintiff $200,760.39 for work performed. On September 22, 2004 plaintiff sent a letter to the CO entitled Contracting Officer Final Decision[,] Progress Payment Request number 14, and stating it “hereby resubmits its payment requisition number 14 in the amount of $143,490.39. [DCB] also requests a Contracting Officer’s Final Decision on this matter.” The letter contained CDA certification language.
   The government moves to dismiss arguing that plaintiff never submitted a proper claim. Plaintiff argues that the government’s failure to replace the CO after the death of the original CO established the right to bring suit in the COFC. Judge Williams rejects this argument noting “In arguing that the agency’s failure to appoint a new contracting officer creates a right under the CDA to bring suit in this Court, Plaintiff asks the Court to impermissibly expand its jurisdiction. It is well established that a waiver of sovereign immunity such as that found in the CDA must be strictly construed. Orff v. United States, 545 U.S. 596, 601-02 (2005); Lane v. Pena, 518 U.S. 187, 192 (1996) (‘A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text and will not be implied.’) (internal citations omitted). Moreover, the statutory requirement that a contractor submit a claim is important, as the contractor’s claim triggers both the running of interest and the time period for the contracting officer’s final decision. ‘There is nothing in the CDA that excuses contractor compliance with the explicit CDA claim requirements.’ M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1329 (Fed. Cir. 2010). As such, Plaintiff cannot prevail on its theory that the VA’s failure to appoint a replacement contracting officer to close out the contract excused DCB’s failure to submit a claim. See 41 U.S.C. § 7104(b)(1).”
    Finding that the September 22, 2004 submission for $143,490.39 is not the same as the complaint here which requests $200,760.39, Judge Williams grants the government’s motion to dismiss.

BCPEABODY CONSTRUCTION SERVICES, INC., Plaintiff, v. UNITED STATES, Defendant, and EDENS CONSTRUCTION CO., INC., Defendant-Intervenor, COFC No. 13-378C, July 23, 2014. EAJA case. See decision on the merits of the bid protest. Plaintiff seeks attorney fees and expenses for the litigation of the underlying protest.
    The government argues that the government was substantially justified as “a contracting officer is not required to seek clarifications regarding proposals was well-grounded in decisions from the Federal Circuit and this court.” Judge Lettow disagrees. He notes “The particular factual circumstances of this case left the contracting officer with no reasonable choice but to clarify the clerical error in BCPeabody’s proposal.” and “Given these circumstances, the contracting officer’s failure to clarify the mistake was manifestly arbitrary.”
   Judge Lettow also allows the $6000 costs of obtaining a $300,000 bond required for issuing of the preliminary injunction.
   Good discussion of EAJA case law discussing compensable costs including attorney fees, paralegal fees and otherr expenses.

SCIENCE AND MANAGEMENT RESOURCES, INC. v. THE UNITED STATES, COFC No. 14-346C, July 21, 2014. Post-award bid protest, Air Force procurement for services at Tinker AFB. Appellant alleges that the award decision was arbitrary and capricious and contrary to law. The parties seek judgment on the administrative record and the government moves to dismiss for lack of standing arguing that another firm had a lower price than appellant. Judge Kaplan rejects the government’ standing argument finding that if the errors were as alleged that plaintiff would be in the “zone of active consideration.” Judge Kaplan grants judgment for the government on the administrative record. She notes “As described above, while SMR’s allegations are sufficient to establish its standing, it has failed to establish their merit by showing any error, prejudicial or otherwise, in the procurement process. Accordingly, the government’s motion to dismiss is DENIED, but its cross motion for judgment on the administrative record is GRANTED.”

ORBIS SIBRO, INC. v. THE UNITED STATES, COFC No. 14-589C, July 18, 20141. Bid protest of a Navy Task order. Plaintiff claims its proposal was misevaluated. The government moves to dismiss arguing that FASA bars bid protests at the COFC except in circumstances not present here. Judge Horn conducts an extensive discussion of the issues including her decision in Digital Technologies, Inc. v. United States, 89 Fed. Cl. 711 (2009), as on point for the court’s jurisdiction over task order claims. She concludes “Based on the above analysis and discussion, the protest filed by Orbis challenging the Navy’s evaluation of the Orbis proposal responding to Solicitation N00024-14-R-3154 is barred by the language of the FASA statute at 10 U.S.C. § 2304c(e). The Protestor’s protest is DISMISSED, without prejudice.”

RUSH CONSTRUCTION, INC., THE UNITED STATES, and C&D CONSTRUCTION, INC., Defendant-Intervenor, COFC No. 14-202C, July 15, 2014. Post-award bid protest of a Corps of Engineers contract for the repair of a lock and barge canal in Florida. Plaintiff was the low bidder whose bid contained a discrepancy which the government waived as a minor informality and awarded the contract to plaintiff. Intervenor protested to the GAO which found that the discrepancy was material and recommended that that the contract with plaintiff be terminated for the convenience of the government. The government indicated it would follow the recommendation of the GAO. Plaintiff argues that the government’s decision to award the contract to intervenor is arbitrary, capricious and contrary to law.
   Chief Judge Campbell-Smith notes “As in the case at hand, ‘[w]here an agency simply implements a GAO recommendation, the inquiry focuses on the rationality of that GAO recommendation, even though the actual decision before the court is the agency decision,’ Turner Constr. Co., 94 Fed. Cl. at 572, and ‘an inquiry into the rationality of the GAO decision is the same as an inquiry into whether the agency had a rational basis for its decision,’” She notes the three line of cases relied upon by the GAO-omitted price cases, unacknowledged solicitation amendment cases, or ambiguous bid cases. She discusses all of the cases and finds them not applicable to the facts here. She concludes “Rather, GAO seems to have premised its decision on inapposite case law, a narrow focus on one relevant fact (omission of ‘See Note 6’), and a failure to consider a number of other relevant facts. GAO’s decision was not rational. Because the agency adopted GAO’s irrational decision, the court finds that the agency’s decision was arbitrary and capricious.” The Chief Judge grants plaintiff’s motion for judgment on the administrative record.

SEK SOLUTIONS, LLC v. THE UNITED STATES, COFC No. 14-243C, July 11, 2014. DLA solicitation to procure commercially available soft shelter(“tents“) systems through an unrestricted indefinite-delivery indefinite-quantity contracting vehicle designed to gather available tent systems and accessories into one “Emall” where customers can shop for specific items. This was an unrestricted solicitation, but the government reserved the right to limit individual task orders as set-as-de fro small businesses if warranted.
   Plaintiff has many objections. It challenges the procurement structure as a violation of CICA and argues that the CO failed to conduct a proper rule-of-two evaluation. Plaintiff argues that the procurement “does not provide for competition at the initial phase but postpones true competition until the delivery order stage. Plaintiff points out that any contractor who submits a complying proposal for soft shelter systems is guaranteed that the agency will purchase at least $25,000 in products. Only when an actual order for tents is made will the contractors compete for the award of the delivery order. According to plaintiff, this procurement is fundamentally flawed because competition does not occur up front.” Plaintiff argues that the rule-of-two analysis was defective as “the agency must specify its actual and legitimate needs before it issues a solicitation or conducts market research.”
   Judge Bruggink discusses all of the arguments raised by plaintiff and grants the government’s motion on the administrative record. He notes “We agree with defendant that the CO employed reasonable efforts in her analysis and came to a reasonable conclusion, which we are not in a position to second guess. We note that even the SBA consented to the CO’s decision not to set this solicitation aside. Finally, DLA committed to setting aside delivery orders that could be filled by small businesses pursuant to FAR 16.505(b)(2)(i)(F). We conclude that the ‘contracting agency provided a coherent and reasonable explanation of its exercise of discretion.’ Impresa, 238 F.3d at 1333 (citation and quotation omitted).”

CARDIOSOM, L.L.C. V. THE UNITED STATES, COFC No. 08-533C, June 30, 2014. Plaintiff argues that the termination of its contract to sell medical equipment to Medicare recipients was a breach. . The government argues that a contract provision put the risk of statutory or regulatory changes on plaintiff. See earlier decision. The provision at issue is:

Article II Compliance with Laws and Regulations
...
D. This Contract is subject to any changes in the Medicare statute or regulations that affect the Medicare program.
Chief Judge Campbell-Smith notes that the contract must be interpreted as a whole as to the intent of the parties. She discusses the several cases and concludes that the government has not met its burden to show that Article II D was a risk shifting provision. She grants summary judgment to plaintiff on liability but notes that plaintiff must prove its damages.

ARKRAY USA, INC., Plaintiff, v. THE UNITED STATES, Defendant, and ABBOTT DIABETES CARE SALES CORPORATION, Defendant-Intervenor, COFC No. 14-233C, June 26, 2014. Defense Health Agency (“DHA”) procurement for self-monitoring blood glucose system test strips. Plaintiff argues that intervenor was not eligible to receive a BPA because it did not hold a Federal Supply Schedule contract at the time it submitted its bid, as required by the solicitation.
   Judge Firestone denies the parties’ motions for judgment on the administrative record and instead remands to the CO. She notes “Whether ADCSC could properly hold itself out as having an FSS contract—and was thus eligible for the BPA—is a question that the court believes must be addressed by the Contracting Officer in the first instance. Although the court is not aware of any cases that directly address this question in the context of a BPA for the sale of goods, other cases have recognized the authority of a subsidiary to rely upon the capabilities of its parent to meet solicitation requirements. For example in Femme Comp Inc. v. United States, 83 Fed. Cl. 704, 744-49 (2008), the court determined that an agency properly attributed the past performance experience of a parent company to a subsidiary offeror. Similarly, in T & S Prods., Inc. v. United States, 48 Fed. Cl. 100, 109-12 (2000), the court—after reviewing several earlier GAO decisions—held that an agency can rely on a subsidiary’s representations that its parent company is committed to supporting performance, even without a direct commitment from the parent. In view of this authority— with the fact that the administrative record does not clearly establish the legal relationships between ADCSC, ABBOTT/DIA, and Abbott Laboratories Inc.—the court finds that a remand is proper to allow the Contracting Officer to make that determination in the first instance.”

B & H MEDICAL, LLC v. THE UNITED STATES, COFC No. 13-088C, June 3, 2014. Centers for Medicare & Medicaid Services (CMS) of the Department of Health & Human Services contract to provide diabetic supplies. In count I plaintiff alleges breach in the termination of its contract. In count 11 claims a breach of contract that arises out of a denial of payment after a routine audit in which defendant disallowed certain sales plaintiff made to Medicare recipients. The government moves to dismiss arguing that the court lacks jurisdiction for Count I and failure to state a claim for Count II.
   At issue here is the deference to be paid to Medicare regulations issued in response to the 2008 Medicare Improvements for Patients and Providers Act (MIPPA), 42 U.S.C. § 1395w-3. Chief Judge Campbell-Smith notes that the facts here are identical to those in Cardiosom, L.L.C. v. United States, No. 08-533C, 2014 WL 1709332 (Fed. Cl. Apr. 30, 2014) and also notes that the Federal Circuit decision in Cardiosom, L.L.C. v. United States, 656 F.3d 1322 (Fed. Cir. 2011) is binding on the court. The opinion discusses the Chevron deference issue at length and concludes that the court has jurisdiction of Count I noting that

“Although HHS possesses the expertise to administer the Medicare program generally, it is without the expertise to determine a federal court’s subject matter jurisdiction. Rather, it is the federal courts that ‘are [the] experts when it comes to determining the scope of federal-court subject-matter jurisdiction.’ Shweika, 723 F.3d at 718 (citing Murphy Exploration, 252 F.3d at 479). Consistent with the Federal Circuit’s guidance, and that of numerous other circuits, the court does not defer to an agency’s regulatory interpretation that purports to define the court’s subject matter jurisdiction. Thus, defendant is entitled to no Chevron deference for its interpretation of 42 C.F.R. § 414.425(f)(2)(vi).”
Regarding Count II the court notes that it has no jurisdiction over medicare reimbursement claims. It declines to refer the matter to a district court as plaintiff has not exhausted its administrative remedies which is precondition to district court review,

LABORATORY CORPORATION OF AMERICA HOLDINGS v. THE UNITED STATES, and QUEST DIAGNOSTICS INC., Defendant-Intervenor, COFC No. 14-261C, June 23, 2014. Bid protest, VA procurement for laboratory testing and analysis services. See earlier opinion on supplementing the administrative record. Judge Wheeler finds great difficulty in the conduct of the procurement. He notes the following

  1. The VA Applied an Unstated Evaluation Criterion
  2. The VA Used an Irrational Price Evaluation.
  3. The VA’s Technical Evaluation Lacked a Rational Basis.
  4. The VA’s Award Decision Was Arbitrary and Capricious
As a result he finds for plaintiff on the administrative record and permanently enjoins VA from proceeding with the contract to intervenor. -

CHEROKEE NATION TECHNOLOGIES, LLC, Plaintiff, v. THE UNITED STATES, Defendant. and CHENEGA FEDERAL SYSTEMS, LLC, Defendant-Intervenor, COFC No. 14-371C, June 23, 2014. Bureau of Indian Affairs(BIA) procurement. Plaintiff protests the corrective action taken in response to a protest to the GAO by intervenor. Plaintiff protest the award of a bridge contract to intervenor while BIA conducts a new procurement. Chief Judge Campbell-Smith finds that “BIA failed to plan adequately for the transition of the procurement here and, in particular, for the use of the sole-source contract in question. The decisional law strongly suggests that this was an inappropriate use of the sole-source regulations.” She issues a preliminary injunction enjoining performance of the contract until a successor contract is issued, with the existing bridge contract with Chenega Systems allowed to proceed only until July 10, 2014. she also requires plaintiff to post a $100,000 bond.

BAY COUNTY, FLORIDA v. THE UNITED STATES, COFC No. 11-157C June 12, 2014. [Court’s synopsis- Calculation of interest as part of the judgment in a contract case; interest due under the Contract Disputes Act, 41 U.S.C. § 7109, on an undisputed amount plus one year of interest payable under the Prompt Payment Act, 31 U.S.C. § 3902(a); interest due under the Contract Disputes Act on damages previously in dispute ] See earlier decisions. The case is back before Judge Lettow after the partied could not agree on the proper payment.
    As a preliminary matter the government contests “the court’s juridical power to address the undisputed amount, whether via an award of interest on that amount or otherwise. As the government would have it, ‘[b]ecause the [g]overnment has never disputed that it owes Bay County under the unilateral modifications [the Air Force made to Bay County’s contractual water rates], the undisputed amount does not constitute a ‘claim’ under the CDA. Accordingly, this [c]ourt does not possess jurisdiction over the undisputed amount.’” Relying on Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc) Judge Lettow rejects the government’s argument noting “Bay County’s written demand to the contracting officer for a sum certain of money manifestly was not a routine request for payment, and it otherwise satisfied the definition of a ‘claim’ as interpreted in Reflectone. That a portion of the amount sought might actually not have been in dispute, unbeknownst to the parties at the time, makes no difference. Bay County’s demand to the contracting officer was not a regularly submitted invoice or billing statement.”

LIQUIDATING TRUSTEE ESTER DU VAL OF KI LIQUIDATION, INC. v. THE UNITED STATES, COFC No. 06-465C, June 11, 2014. Department of State contract for the construction of an embassy compound in Dushanbe, Tajikistan. Plaintiff challenges the termination for default, presents a claim of approximately $4.3 million for geotechnical work, which it contends was outside the terms of the contract; and it asserts a claim of approximately $1 million with respect to additional security remediation and related mold and mildew mitigation. The government has counterclaimed, asserting fraud and seeking both monetary penalties and forfeiture of KI’s claims. In an 84 page opinion, which leaves damages for additional proceedings, Judge Bruggink finds “ that the geotechnical work was within the scope of the contract, the termination for default was justified, plaintiff did not violate the Forfeiture of Fraudulent Claims Act, although it did violate the False Claims Act, and the government bears responsibility for the delays and additional costs associated with the secure space.”
   Judge Bruggink begins the Discussion section of his opinion with the following-“Trying a default termination frequently takes on the character of a juridical autopsy, an after-the-fact effort to determine what went wrong and who was responsible. The autopsy we are called on to perform here is particularly poignant, given that, at the end of the day, a successful, family owned business no longer exists. We have no doubt that KI undertook the contract to build the embassy in Dushanbe fully capable of completing it and fully intending to do so. We are also satisfied, however, that virtually all the problems which arose and kept it from completing the work can be traced to one mistake KI made early on and which continued to do mischief through the following two years: KI’s misunderstanding of the effect of M002.
    Ultimately it was KI’s self deception concerning what it had agreed to do, and at what price, that launched contract performance onto a doomed trajectory. As we will see below, KI bound itself to perform all the work, including the geotechnical aspects, at a fixed price. Its willingness to hazard the contract was prompted by an unwarranted assumption that it could ask for more money if the geotechnical aspects of the foundation proved to be difficult. That mistake was then compounded by its subsequent reliance on erroneous advice about the difficulty of preparing the foundation, leading it to spend, unnecessarily as it turned out, far more than it budgeted for geotechnical work. The combination of those two mistakes, neither of which can be shifted to the government, put KI over budget and behind schedule virtually from the beginning and ultimately accounts for the default termination.”

BUSINESS INTEGRA, INC. v. THE UNITED STATES, COFC No. 14-210C, June 04, 2014. Post-award bid protest of DHS procurement for IT services. The solicitation in this FAR Part 15 procurement emphasized that failure to provide complete pricing information would render a proposal ineligible for an award and included this note:

Note: Failure to offer ceiling rates for all labor categories and all contract periods will result in offer ineligibility. This means that the omission of a rate for just a single category will result in a material non-conformity in the proposed functional category.
Plaintiff failed to provide rates for one position, a Level I Applications Systems Analyst and was eliminated from further consideration. Plaintiff argues that the error was de minimis, not material and that the government should have allowed correction. Judge Lettow grants judgment for the government on the administrative record. He notes that this was a FAR Part 15 procurement not Part 14 which requires the government to inquire on minor errors. He finds that the cases cited by plaintiff are not relevant for the most part. He concludes that the requirement was material.

LABORATORY CORPORATION OF AMERICA HOLDINGS v. THE UNITED STATES, and QUEST DIAGNOSTICS INC., Defendant-Intervenor COFC No. 14-261C, June 02, 2014. Bid protest, VA procurement for laboratory services. Plaintiff moves to supplement the administrative record with declarations, one from an expert discussing the VA’s price analysis and one from a person offering evidence on the history of the number of tests that VA performed in the past. Judge Wheeler allows the supplementation with the expert declaration, buy denies the other. He follows his recent opinion in FIRSTLINE TRANSPORTATION SECURITY, INC. v. THE UNITED STATES and AKAL SECURITY, Defendant-Intervenor in allowing the expert declaration as “This expertise will greatly assist the Court in understanding the evidence in the administrative record.” In denying the other declaration he notes that it raises an argument that should have been raised earlier and is prohibited now by Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007).

COMMUNICATION CONSTRUCTION SERVICES, INC. v. THE UNITED STATES and RESOLUTE PARTNERS, LLC. Intervenor, COFC No. 10-878C, May 30, 2014. Post-award bid protest under 28 U.S.C. § 1491(b). Air Force Exchange Service’s (“AAFES”) award of a contract for internet and telecommunications services.
    CCS presents five grounds of protest. “First, CCS claims that the Army Recreation Machine Program (“ARMP”), a subsidiary of FMWRC, acted as subcontractor to the awardee, Resolute, in violation of 10 U.S.C. § 2492a. This statute prohibits Department of Defense (“DoD”) entities from offering or providing telecommunications services to consumers for a fee and from competing for contracts to provide such services. Second, CCS claims that FMWRC’s role in the procurement created an organizational conflict of interest (“OCI”) because FMWRC shaped the solicitation and participated in the source selection process, and because FMWRC’s subsidiary, ARMP, competed in the procurement as a subcontractor to the awardee. Third, CCS argues that the technical and price evaluations conducted by AAFES were unreasonable and contrary to the terms of the solicitation. Fourth, CCS contends that AAFES improperly determined that Resolute was a responsible contractor. Lastly, CCS claims that an appearance of impropriety tainted the competition because Resolute was indebted to AAFES and AAFES considered this debt in making the award decision.”
    Plaintiff moves for summary judgment, the government and intervenor move for judgment on the administrative record. Although noting the Federal Circuit has not ruled on this issue in a 1491(a) protest, Judge Williams finds that the case can be decided in te administrative record.
   The government and Intervenor cite Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007), seeking dismissal of Counts I and II on the ground that CCS knew the basis for these claims prior to the conclusion of the bidding process, but did not raise them until after award. Judge Williams discusses at some length whether Blue & Gold applies to 1491(a) protests and concludes that it does. She notes “There is no reason to disavow the Blue & Gold waiver rule merely because jurisdiction is predicated on this Court’s general breach-of-contract jurisdiction instead of its more specific bid protest jurisdiction. To hold otherwise would permit bidders in § 1491(a) protests to do exactly what the Blue & Gold Court prohibited -- to roll the dice and wait to protest if they do not win.” She also rejects plaintiff’s argument that a statutory violation should not be subject to the Blue & Gold waiver rule. She finds that counts I and II are precluded by the waiver rule.
    Finding that the other protest allegations are not supported or show and arbitrary or capricious action by the government the court finds for the government and intervenor on the administrative record.

FIRSTLINE TRANSPORTATION SECURITY, INC. v. THE UNITED STATES and AKAL SECURITY, Defendant-Intervenor, COFC No. 14-301, May 29, 2014. Judge Wheeler grants plaintiff’s motion to supplement the administrative record in this post-award bid protest of a Transportation Safety Administration contract with the declaration of an expert witness. He finds “that case is sufficiently complex such that the Court needs the expert assistance of Mr. Jackson to evaluate Plaintiff’s arguments and the issue of prejudice.”

GRIFFIN & GRIFFIN EXPLORATION, LLC, ROBERT L. SMITH, and ROBERT L. SMITH & ASSOCIATES, INC. V. THE UNITED STATES, COFC No. 10-638, May 27, 2014. Interesting case, but not a procurement contract. The Bureau of Land Management(BLM) awarded an oil and gas lease to plaintiff and subsequently cancelled the lease when discovering that a valid prior lease for the same property. The Interior Board of Land Appeals found that the lease was void ab initio and affirmed the BLM decision to cancel the lease. Plaintiff sues for breach. Judge Kaplan finds for plaintiff on the issue for breach for the failure to deliver a valid leasehold interest. She finds no breach for the cancellation of the lease. Judge Kaplan notes that the court has no jurisdiction over the cancellation issue as the cancellation was a decision by the Secretary of Interior that that was not challenged by plaintiff in the district court. Regarding damages the court notes “While it would be premature at this time to make any firm pronouncements regarding damages, the Court notes that there are certain established principles and considerations that will be taken into account in determining any award of damages in this matter. Contract law recognizes that in a breach of contract case a promisee has three enforceable interests: expectation, reliance, and restitution.” While the damages issue will require further proceedings the court does note “In addition, principles of landlord-tenant law may also be instructive in determining the proper measure of damages in this case. The Restatement (Second) of Property: Landlord and Tenant §§ 4.1, 4.2, 4.3 and 10.2 address the potential measure of damages available in circumstances where a tenant is evicted from the property by a third party that possesses paramount title. It provides, among other things, that the tenant may be entitled to foreseeable losses incurred due to reasonable expenditures made by the tenant before the default, anticipated business profits, and interests on any amount recovered. Id. § 10.2. Again, the Court seeks the assistance of the parties to determine the extent to which these principles might apply to this case.”

THE HANOVER INSURANCE COMPANY et al. v. THE UNITED STATES, COFC Nos. 13-500C, 13-499C, 13-800C, May 27, 2014. Corps of Engineers construction contract. The contractor, Lodge, and its surety, Hanover, are plaintiffs here. The government called upon the surety under its performance bond and the surety tendered another contractor and the surety and the government signed a Tender and Release Agreement.Plaintiffs challenge the termination for default and argue entitlement to money claims as a result of the termination for default. The government moves to dismiss the money claims for lack of jurisdiction as valid claims were not submitted to the CO. Plaintiffs “respond that the court does possess jurisdiction over these claims because they were effectively before the contracting officer when she terminated the contract for default and executed the Tender and Release Agreement. Indeed, plaintiffs argue, it would have been illogical for plaintiffs to submit a separate claim for damages resulting from the default termination because there is no expectation that the contracting officer would have reversed her decision to terminate the Corps’ contract with Lodge for default. Moreover, plaintiffs assert, when read together, the default termination decision and the Tender and Release Agreement satisfy the CDA’s jurisdictional requirements.”
   Finding the factual circumstances similar to those in Sharman Co. v. United States, 2 F.3d 1564 (Fed. Cir. 1993), overruled on other grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995) (en banc) Judge Sweeney grants the government’s motion to dismiss the money claims noting

“In the absence of a final contracting officer decision regarding termination for convenience costs or other money damages related to the default termination, whether premised on a contractor claim or on a government claim, the court must dismiss the claims for money damages set forth in Hanover and Lodge I. This ruling, however, does not foreclose Hanover and Lodge from pursuing these claims. To the contrary, by dismissing these claims for lack of jurisdiction, the court is removing the obstacle preventing the contracting officer from entertaining plaintiffs’ claims for default termination-related money damages.
   Normally, “[o]nce a claim is in litigation, the Department of Justice gains exclusive authority to act in the pending litigation. That exclusive authority divests the contracting authority to issue a final decision on the claim.” Sharman Co., 2 F.3d at 1571-72 (citations omitted). Thus, if a contractor submits a new claim to the contracting officer while its prior claim is in litigation, and the new claim “arise[s] from the same operative facts, claim[s] essentially the same relief, and merely assert[s] differing legal theories for that recovery,” Scott Timber Co., 333 F.3d at 1365, the contracting officer lacks the authority to act on the new claim. However, as set forth above, there is no dispute that a claim challenging the propriety of a default termination is not the same as a claim for money damages resulting from the default termination. See DePonte Invs., Inc., 54 Fed. Cl. at 116; Alaska Pulp Corp., 34 Fed. Cl. at 103-04; Boeing Co., 31 Fed. Cl. at 292. Because they are distinct, a court’s dismissal of one of the claims (e.g., a claim for money damages) both removes that claim from litigation and divests the United States Department of Justice of its exclusive authority to act on that claim. As a result, the contracting officer is “revested with the authority to rule on” the dismissed claim, 5860 Chi. Ridge, LLC v. United States, No. 07-680C, 2009 WL 1106564, at *3 (Fed. Cl. Apr. 23, 2009), so long as the claim is timely submitted, see 41 U.S.C. § 605(a) (noting that claims must be submitted to the contracting officer for decision within six years of their accrual). Hanover and Lodge therefore may submit their monetary claims to the contracting officer to obtain a final decision.”

AM GENERAL, LLC, v. THE UNITED STATES, and GENERAL DYNAMICS ORDNANCE AND TACTICAL SYSTEMS, Defendant-Intervenor, COFC No. 14-018C, May 22, 2014. Post-award bid protest, United States Special Operations Command IDIQ Cost Plus Fixed Fee (CPFF), Cost and Firm Fixed Price (FFP) (or any combination thereof) Delivery Orders contract for the design, production and delivery of a Ground Mobility Vehicle. Negotiated, best-value award. Plaintiff challenges the evaluation of awardee’s past performance, plaintiff’s capability and past performance and the best-value tradeoff decision.
   Chief Judge Campbell-Smith finds that the government erred in awardee’s past performance evaluation by including other than “major” subcontractors and non-relevant contracts. She finds however, that the errors were not shown to be prejudicial. The court finds that the evaluation of plaintiff’s proposal was supported by the record and was not arbitrary or capricious. Regarding the trade-off decision allegation and finding instructive the recent Federal Circuit decision in Croman Corp. v. United States, 106 Fed. Cl. 198, (2012), aff’d, 724 F.3d 1357 (Fed. Cir. 2013) Chief Judge Campbell-Smith notes

“While the SSA’s documentation in this case is not as robust as that of the agency’s in the Croman case, the court finds that the SSA here adequately documented his decision such that the court could determine the basis on which his decision was made.
   The court is persuaded that the agency satisfied its responsibility under the FAR and the solicitation in conducting a best value analysis and recording the reasons for the decision. The agency awarded the contract to the irrefutably highest technically rated offeror, and the SSA documented his view that neither the price variance nor the past performance ratings disturbed the value to the government presented by the offeror with an outstanding proposal in the most heavily weighted of the evaluative factors.”
The court grants motions by the government and intervenor for judgment on the administrative record.

CHEVRON U.S.A., INC. v. THE UNITED STATES, COFC No. 04-1365 C, May 16, 2014. Damages decision from a commercial dispute between the Department of Energy (“DOE”) and Chevron U.S.A., Inc. See earlier liability decision. Judge Braden finds that plaintiff “is entitled to $17,908,857 in reliance damages for costs incurred, as a result of DOE’s repeated breach of contract and violation of the covenant of good faith and fair dealing. In addition, the court has determined that Chevron is entitled to $904,483, as a sanction for the Government’s ‘bad faith’ conduct relating to privilege assertions during discovery.” Before discussing in detail each of plaintiff’s reliance damages elements Judge Braden notes that ’a plaintiff must proffer evidence that: ‘(1) the damages were reasonably foreseeable by the breaching party at the time of contracting; (2) the breach is a substantial causal factor in the damages; and (3) the damages are shown with reasonable certainty.’ Sys. Fuels, Inc. v. United States, 666 F.3d 1306, 1311 (Fed. Cir. 2012)” Regarding the sanctions issue and quoting Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d 1272, 1288 (Fed. Cir. 2000)) Judge Braden notes . “[T]he United States Court of Appeals for the Federal Circuit described ‘bad faith’ conduct in words that express the court’s view about this case:

Indeed, to say that the counsel’s conduct during discovery raises the collective eyebrow of this court would be to understate the severity of their transgressions. Counsel’s tactics during discovery evinced a brazen disregard for the legal process. Throughout discovery, counsel’s strategy consisted of efforts to obfuscate, cover-up, and subvert evidence that was properly discoverable and responsive to [plaintiff’s discovery] requests.”

LUKOS VATC JV LLC, Plaintiff, v. THE UNITED STATES, and ITA INTERNATIONAL, LLC, Intervenor-Defendant., COFC No. 14-122C, May 12, 2014. Bid protest, procurement by the United States Special Operations Command (“SOCOM”) that was a 100% set-aside for 8(a) Program participants. The deadline for responses to the solicitation was June 17 2013. Plaintiff submitted its mentor-protègè agreement (“MPA”) to the SBA district office in Denver and was informed by the assigned Business Opportunity Specialist that that he had approved the MPA and forwarded his recommendation of approval. One June 10, 2013 the BOS informed plaintiff that the MPA had been approved, but was waiting final signature by an official who was on vacation. On June 14, 2013 plaintiff was informed by telephone “that there may have been a misunderstanding about the MPA approval in DC.” Plaintiff submitted its proposal, by the June 17th deadline, based on the June 10, 2013 communication from the BOS that the MPA was approved. The MPA was not formally approved by SBA until June 19, 2013. Although SOCOM determined that plaintiif’s proposal was the highest rated and lowest cost, a protest was filed and SBA determined that plaintiff was not eligible as the MPA had not been approved by the June 17th deadline for proposals.
   Plaintiff argues that the “MPA was legally approved by the various layers of SBA actions prior to final approval by the AA/BD. Second, it argues that the AA/BD’s final approval on June 19 serves as ratification of the BOS’s June 10 statement. Third, it argues that principles of equitable estoppel render LVJV eligible for the award. Fourth, it argues that general principles of equity require the Court to find it eligible for the award. Finally, LVJV argues that it is entitled to injunctive relief.”
   Judge Damich finds for the government on the administrative record. He concludes

“As discussed above, the Court possesses jurisdiction over this action. That said, LVJV has failed to present any combination of arguments and evidence that would render it successful on the merits. Its reading of the relevant SBA regulations and the SOP are entirely contrary to the plain language of those authorities. LVJV’s argument on ratification is not supported by the evidence contained in the AR. Its estoppel argument is in fact undermined by the evidence, and its appeal to general principles of equity fail for similar reasons. Nothing in the AR demonstrates that the combined actions of the SBA and SOCOM lacked a rational basis or were otherwise in violation of regulation or procedure.”

INSIGHT SYSTEMS CORP., and CENTERSCOPE TECHNOLOGIES, INC. v. THE UNITED STATES, COFC Nos. 12-863C and 12-883C, May 12, 2014. Bid protest, EAJA case. See bid protest decision. Judge Allegra denies attorneys fees noting

“The instant case presented a matter of first impression to this court. The factual situation here was somewhat unique, requiring the court, inter alia, to order defendant to file, as part of the administrative record, the contracts and procedures governing its mail servers. Although this court found that the agency’s actions were contrary to the Federal Acquisition Regulations, and arbitrary and capricious, there was little decisional guidance that previously would have signaled this conclusion. Defendant advanced arguments in support of the actions taken below that relied on prior decisions of this court and the General Accountability Office. See, e.g., Conscoop-Consorzia v. United States, 62 Fed. Cl. 219, 239-40 (2004); Sea Box, Inc., 2002 C.P.D. ¶ 181 (2002). Although the court concluded that, based upon the language of the regulations, those decisions were wrong (or in the case of Conscoop-Consorzia at least distinguishable), it cannot say that defendant’s reliance on these prior opinions was not substantially justified. See Devine v. Sutermeister, 733 F.2d 892, 895 (Fed. Cir. 1984) (‘[T]he justification for the government’s litigating position must be measured against the law as it existed . . . , and not against the new law enunciated by the court in its opinion.’); see also Watterson Constr. Co. v. United States, 106 Fed. Cl. 609, 618 (2012). In these circumstances, the court concludes that the position of the United States in this litigation was substantially justified and that an award of attorney’s fees is, therefore, inappropriate.”
The court also denies bid preparation costs to Centerscope noting “Because CenterScope has failed to show that it could not participate in the second procurement, the court finds that it has not shown that the error previously documented caused it to incur unnecessarily bid preparation and proposal costs. Rather, it would appear that CenterScope, had it chosen, could have used materials prepared for the first procurement in the second. Accordingly, those costs were not rendered unnecessary by the agency’s prior error. At the least, CenterScope has not shown otherwise. As such, the court finds that CenterScope is not entitled to recover bid preparation and proposals costs in this action.”

SPACE EXPLORATION TECHNOLOGIES CORP., Plaintiff, v. THE UNITED STATES, and UNITED LAUNCH SERVICES, LLC, Defendant-Intervenor COFC 14-354C, May 08, 2014. Bid protest. Judge Braden dissolves the preliminay injunction issued in this case. She notes “Based on the representations made in the May 6 and May 8, 2014 letters by the United States Department of the Treasury, the United States Department of Commerce, and the United States Department of State, the court hereby dissolves the April 30, 2014 Preliminary Injunction. If the Government receives any indication, however, that purchases from or payment of money to NPO Energomash by ULS, ULA, or the United States Air Force will directly or indirectly contravene Executive Order 13,661, the Government will inform the court immediately.” Exhibits from Treasury, Commerce and State are attached to the order.

JASON W. LIEBER V. THE UNITED STATES, COFC No. 13-137C, MAY 06, 2014. Plaintiff, acting pr se claims the government breached a contract to pay him bonus for re-enlisting in the Army. The government moves to dismiss for lack of jurisdiction.
   Judge Kaplan dismiss the case noting “While this Court has jurisdiction over claims founded on contracts with the government, it is well established that a service member’s entitlement to pay and other benefits is set by statute and regulation and not by contract. United States v. Larionoff, 431 U.S. 864, 869 (1977); Schism v. United States. 316 F.3d 1259, 1272 (Fed. Cir. 2002) (en bane). Therefore, the failure to pay a military bonus does not give rise to a claim for breach of contract. Favreau v. United States, 317 F.3d 1346, 1356-57 (Fed Cir. 2002); see also Bell v. United States, 366 U.S. 393, 401 (1961) (observing that ‘common-law rules governing private contracts have no place in the area of military pay’). Nor can the doctrine of equitable estoppel be invoked to enable the plaintiff to enforce the verbal and written representations made to him about his bonus entitlement. Under equally well-established precedent, promises made by military personnel regarding bonus entitlements that are inconsistent with governing laws and regulations may not serve as the basis for a claim for monetary relief. Parker v. United States, 461 F.2d 806, 809 (Ct. Cl. 1972); see also Brant v. United States 597 F.2d 716, 720 (Cl. Ct. 1979). As the Supreme Court observed in Office of Personnel Management v. Richmond, 496 U.S. 414, 416, 419-20 (1990), the doctrine of equitable estoppel cannot provide a basis for recovering monetary benefits that have been mistakenly promised by a government official because ‘payments of money from the Federal Treasury are limited to those authorized by statute.’ For these reasons, the Court lacks jurisdiction over SSG Leiber’s claims under the Tucker Act.”

DMS IMAGING, INC. v. THE UNITED STATES, COFC No. 12-204C, April 30, 2014. VA contract for the lease of a magnetic resonance imaging (“MRI”) mobile unit. Plaintiff appeals the denial of its claim of unpiad rent and for the loss of the MRI unit, which was destroyed by fire while in VA’possession. The contract was signed by both parties and included a Schedule which stated ““LEASE ON ONE (1) SIEMENS MOBILE MRI SYSTEM TO RADIOLOGY SERVICE AT VA CARIBBEAN HEALTHCARE SYSTEM, SAN JUAN, PUERTO RICO IN ACCORDANCE WITH APPROVED CONTRACTOR’S LEASE AGREEMENT 090408A AND ATTACHED CONTRACT TERMS AND CONDITIONS.” The contract attached a Lease Agreement 090408A which put the risk of loss on the lessee and contained a provision which stated

“Additionally, the lease agreement includes a severability clause, stating: ‘In the event that any portion of this agreement is held to be unenforceable or void, such provision shall be deemed to be severable and shall in no way affect the validity of the remaining terms and conditions of this agreement.’ ... and ‘This rental agreement is not enforceable until system availability is confirmed and until this agreement is signed by both Lessor and Lessee.”
The parties did not sign the Lease Agreement 090408A. The government argues that appended lease was a condition precedent to its enforceability, and as it was not signed it is not enforceable. Judge William disagrees noting “the Court must interpret the contract as a whole, rather than view the lease agreement’s availability clause in a vacuum. ‘All writings that are part of the same transaction are interpreted together.’ Restatement (Second) of Contracts § 202(2) (1981); see also 11 Williston on Contracts § 30:25 (4th ed. 2013); Summit Elec. Supply Co. v. Int’l Bus. Machs. Corp., No. 1:07-CV-0431, 2009 WL 9087259, at *14 (D.N.M. Sept. 30, 2009) (‘The parties can choose to incorporate any separate, unsigned document into their signed [Statement of Work], even if the separate document would otherwise require a signature if it had not been so incorporated.’). The parties signed the first page of the contract documents, SF 1449, forming a contract to lease an MRI mobile unit. The lease agreement is attached to the contract and is listed as the ‘Asset Lease Agreement’ in the contract’s table of contents. . . . By expressly providing that the contract for leasing the MRI system was ‘IN ACCORDANCE WITH APPROVED CONTRACTOR’S LEASE AGREEMENT’ and the ‘ATTACHED CONTRACT TERMS AND CONDITIONS,’ the contract made the attached lease along with its ‘terms and conditions’ part of the contract.”
   Judge Williams also rejects the argument of the government that the CO did not have the authority to accept the indemnification agreement as it would be a violation of the Anti-Deficiency Act. She notes “The lease agreement includes a severability clause providing: ‘In the event that any portion of this agreement is held to be unenforceable or void, such provision shall be deemed to be severable and shall in no way affect the validity of the remaining terms and conditions of this agreement.’ The allegedly flawed Indemnification clause, even if violative of the Anti-Deficiency Act, would not alter the remaining terms of the contract or render the remaining clauses unenforceable.” Furthermore she notes that appellant seeks recovery under the Risk of Loss clause, not the indemnification clause.
    Judge Williams grants summary judgment for plaintiff on liability, but defers the damages issue to further proceedings.

SPACE EXPLORATION TECHNOLOGIES CORP., Plaintiff, v. THE UNITED STATES, and UNITED LAUNCH SERVICES, LLC, Defendant-Intervenor COFC 14-354C, April 30, 2014. Bid protest alleging, inter alia, that the United States Air Force has entered into an unlawful contract with United Launch Systems, LLC, a joint venture between The Boeing Company and Lockheed Martin Corporation, to procure rocket launch vehicles on a sole source basis, pursuant to the Air Force’s Evolved Expendable Launch Vehicle (“EELV”) Program. “The April 28, 2014 Complaint alleges that the majority of EELV launch vehicles use RD-180 rocket engines manufactured by NPO Energomash, a corporation owned and controlled by the Russian Government. Dmitry Rogozin, the Deputy Prime Minister of Russia, is the head of the Russian defense industry and, in particular, the Russian space program.” The March 26, 2014 Executive Order 13,661 and April 28, 2014 issuances of Treasury, State and Commerce include references to Deputy Prime Minister Rogozin and banning the export or re-export of ‘any high technology defense articles or services.’ ”
   In view of the complaint, E.O. 13,661 and the issuances of Treasury, State and Commerce Judge Braden issues a preliminary injunction barring “any purchases from or payment of money to NPO Energomash or any entity, whether governmental, corporate or individual, that is subject to the control of Deputy Prime Minister Rogozin, unless and until the court receives the opinion of the United States Department of the Treasury, and the United States Department of Commerce and United States Department of State, that any such purchases or payments will not directly or indirectly contravene Executive Order 13,661.” [See complaint in this protest.]

CARDIOSOM, L.L.C. v. THE UNITED STATES, COFC No. 08-533C , April 30, 2014. [Courts synopsis- Chevron Deference; Regulatory Interpretation; Motion to Dismiss for Lack of Subject Matter Jurisdiction under RCFC 12(b)(1); Motion to Dismiss for Failure to State a Claim under RCFC 12(b)(6); Motion for Summary Judgment under RCFC 56. ]

HUGHES GROUP, LLC, D/B/A DIA-MO CLEAN, Plaintiff, v. THE UNITED STATES, and MANAGEMENT SERVICES NORTHWEST, INC., Defendant-Intervenor, COFC No. 14-155C, April 22, 2014. Post-award bid protest GSA best value contract for janitorial and landscaping services. Plaintiff was the incumbent contractor. Plaintiff alleges that the government impermissibly engaged in discussions with the awardee and seeks to enjoin GSA from proceeding with the award. The government and intervenor move to dismiss for lack of standing.
    Judge Firestone finds that plaintiff is not an interested party as it does not have a direct economic interest as it would not have a substantial chance for award. Plaintiff’s proposal received a marginal rating and was not eligible for award. Plaintiff also received an unacceptable rating on green cleaning. GSA did reserve the right to consider marginal proposals if competition was limited. Judge Firestone notes that even if the award was in error only the second ranked offeror would have a substantial chance of award, not plaintiff who was the third ranked offeror

THE MEYER GROUP, LTD v. THE UNITED STATES, No. 12-488C, April 18, 2014. Plaintiff claims the Postal Regulatory Commission (“PRC”) breached an exclusive real estate brokerage agreement executed in 2004. The government moves to file an amended answer with two counterclaims alleging breach of fiduciary duty. Plaintiff opposes the motion on grounds of undue delay, prejudice, and futility. Judge Williams denies the motion finding the proposed counterclaims would be futile as they would not withstand a motion to dismiss. The opinion discusses the elements of a breach of fiduciary duty and finds none here. Judge William notes “Defendant has not alleged any facts or legal authority showing that Plaintiff owed Defendant a fiduciary duty in creating the brokerage agreement at issue. The Restatement only suggests finding a pre-agency fiduciary duty where the principal places ‘peculiar trust and confidence’ in the agent during the negotiation of the brokerage agreement, and this fiduciary duty is imposed to protect vulnerable and unknowledgeable parties from an agent’s potential attempt to strike an unfair bargain. As an independent establishment of the executive branch of the United States Government, PRC, a sophisticated party, should expect that a potential broker negotiating the terms of its contract is seeking to protect its own interests -- interests that may not align with the best interests of the Government. A government agency should negotiate a brokerage agreement, like any other contract, at arm’s length. See DeMott, supra, at 950 (explaining that, in commercial settings, future principals and agents are assumed to negotiate the terms of their agreements at arm’s length).”

HYPERION, INC. V. THE UNITED STATES, COFC No. 13-1012C, April 17, 2014. Post-award bid protest. Army FMS small business fixed-price set-aside, low price technical acceptable contract for installation and infrastructure upgrades to fiber optic cable networks in the Hashemite Kingdom of Jordan. Four firms, including plaintiff, were deemed technically acceptable. Plaintiff’s price was the highest. Plaintiff challenges the technical acceptability of the awardee and the other two firms. Plaintiff argues that proposals submitted did not show that the firms would comply with FAR § 52.219-14, Limitations on Subcontracting.
   Judge Lettow rejects the argument by the government that plaintiff lacks standing as it was not next in line for award noting “Hyperion has adequately alleged that the government erred in its evaluation of each of the other three proposals and improperly found them to be technically acceptable.” In discussing the limitation in subcontracting issue, Judge Lettow notes

“Hyperion correctly states and the government acknowledges, that ‘a proposal that, on its face, leads an agency to the conclusion that an offeror could not and would not comply with the subcontracting limitation is technically unacceptable and may not form the basis for an award.’ Def.’s Cross-Mot. at 13 (quoting Centech Grp., 554 F.3d at 1038 (internal citations and quotations omitted)); see also Chapman Law Firm v. United States, 63 Fed. Cl. 519, 526-28 (2005), aff’d, 163 Fed. Appx. 889 (Fed. Cir. 2006). ‘A subcontracting limitation, including the [limitation-on-subcontracting] clause, is a material R[equest ] F[or ]P[roposal] term and a condition of a solicitation to which the offeror must agree in its proposal.’ Centech Grp., 554 F.3d at 1038. In Centech, a contract awardee lost the award upon protest by another offeror because the awardee’s proposal stated that it would incur only 43.2% of the contract’s labor costs. Id. at 1033. The court noted that the pertinent question was not whether the awardee could comply with the limitation-on-subcontracting clause, but rather whether it would comply with the limitation. Id. at 1040.”
Judge Lettow reviews all of the other three proposals and concludes “Hyperion has demonstrated that it was prejudiced by the Army’s unreasonable determination that the other offerors’ proposals facially complied with the limitation-on-subcontracting provision of the FAR. ” He finds for plaintiff on the administrative record and sets aside the award.

.

AFFILIATED CONSTRUCTION GROUP INC. v. THE UNITED STATES, COFC No. 10-444C, April 16, 2014. DoD design-build, fixed-price contract t o renovate a power-distribution room. Plaintiff submitted a certified claim for extra cost for the fire mitigation system. The government moves to dismiss arguing that as this was a fixed price contract that plaintiff bore the risk of increased costs. After supplemental briefs the issue now before the court is whether the claim in the complaint is the same claim that was submitted to the CO. Judge Wolski discusses the elements of a CDA claim and notes

“The CDA does not require the use of any particular form or words for a writing to constitute a claim. Engineered Demolition, Inc. v. United States, 70 Fed. Cl. 580, 587 (2006) (citing Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987)). ‘All that is required is that the contractor submit in writing to the contracting officer a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim.’ Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003) (quoting Contract Cleaning Maint, 811 F.2d at 592). The purpose of this requirement is resolution at the contracting officer level, an objective that would be hindered if the claim heard in court is substantially different from the one presented to the contracting officer. See M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1331 (Fed. Cir. 2010). ”
Although describing it as a close question Judge Wolski concludes “In sum, ACG’s new articulation of its claim concerning the fire-mitigation devices is not just a change in legal theories, but is based on different operative facts from those associated with the claim as presented to the contracting officer. This articulation would thus be a new claim that has not yet been considered by the contracting officer, and accordingly cannot come within our subject-matter jurisdiction. The claim presented to the contracting officer, and contained in the complaint, concerns a risk that must be borne by the contractor in a firm-fixed-price contract, see 48 C.F.R. § 16.202-1, and thus cannot be the basis for relief in our court. The government’s motion to dismiss the claim concerning fire-mitigation devices is GRANTED.”

JORDAN POND COMPANY, LLC, Plaintiff, v. THE UNITED STATES, Defendant, DAWNLAND, LLC, Intervenor-Defendant, COFC No. 13-913 C, April 8, 2014.Pre-award bid protest of a National Park Service(NPS) concession contract at Acadia National Park. Plaintiff’s primary argument is that the draft proposed contract with Dawnland omits many elements of Dawnland’s proposal upon which its winning scoring was based. Plaintiff also alleges evaluation errors by the NPS. Judge Bush follows her decision in ECO TOUR ADVENTURES, INC. v. THE UNITED STATES COFC No. 13-532 C, December 12, 2013, which held that concession contracts are not procurements and that “injunctive and declaratory relief in a concession contract protest are not available under 28 U.S.C. § 1491(a)” and the only potential recovery would be bid preparation and proposal costs.
   In discussing standing Judge Bush notes “To recover under the implied contract for bids to be fairly and honestly considered in a protest brought pursuant to section 1491(a), a plaintiff must establish that the agency acted arbitrarily or capriciously, or abused its discretion. [citations omitted]. The standard of review for a bid protest alleging a breach of the implied contract under section 1491(a) is, therefore, ‘essentially the same’ as the APA standard applicable to protests pursued under section 1491(b).”
   The court rejects’s primary argument. Citing to 36 C.F.R. Part 51 Judge Braden notes “Nothing in the concession contract regulations, the prospectus, or internal guidance documents of the Park Service suggests that all, or even most, of the elements of the best proposal must be included in the Draft Contract.” She summarizes “The court acknowledges that there might be, hypothetically, a draft concession contract which, by its failure to include significant elements from the winning proposal, evinces an arbitrary and capricious selection process conducted by the Park Service. The court need not decide that issue in this case. The Draft Contract in the record here, which has already been executed by Dawnland, contains significant elements of Dawnland’s proposal and is, in the court’s view, entirely consistent with the winning score awarded Dawnland’s proposal. Most of these proposal elements are included in the Operating Plan and the Maintenance Plan in the Draft Contract, see AR at 1845-66, 1902-06, 1919, and the Draft Contract, despite plaintiff’s numerous protestations to the contrary, does not render the agency’s award decision illusory, arbitrary or capricious. Nor did the Park Service abuse its discretion in adopting certain elements of Dawnland’s proposal and not others.”

newWHR GROUP, INC., Plaintiff, and FRANCONIA REAL ESTATE SERVICES d/b/a Allegiance Relocation Services, Plaintiff-Intervenor, LEXICON GOVERNMENT SERVICES, LLC, Plaintiff-Intervenor, v. UNITED STATES OF AMERICA, Defendant, and BROOKFIELD RELOCATION, INC., Defendant-Intervenor, CAPITAL RELOCATION SERVICES LLC, Defendant-Intervenor, TRC GLOBAL SOLUTIONS, INC., Defendant-Intervenor, COFC No. 13-515 C, April 8, 2014. Post-award bid protest of award by the FBI of BPAs for relocation services. Plaintiffs contest the FBI’s decision to to take corrective action by canceling the awarded agreements and replace them through a revised solicitation. Judge Block introduces the case with a quote by William Faulkner

“[To] a lawyer, if it ain’t complicated it don’t matter whether it works or not because if it ain’t complicated up enough it ain’t right and so even if it works, you don’t believe it.”
Judge Block rejects all of the government’s reasons a new solicitation is warranted finding that the corrective action was not related to defects in the solicitation.
   In discussing the public interest factor for injunctive relief he somewhat summarizes his holding as follows ”It is also worth adding as a final point that if the FBI’s ‘corrective action’ in this case were not enjoined, it would signify that the government’s power to take ‘corrective action’ is nigh unlimited. The requirement that corrective action be ‘targeted’ or ‘rationally related’ to an existing defect in the initial procurement is essential to the integrity of the procurement system. In this case, it is clear that the ‘corrective action’ was not targeted or rationally related to any actual defect and it is therefore crucial to the public interest that the FBI’s ‘corrective action’ be enjoined.”
    Judge Block permanently enjoins the government from “(1) cancelling the Blanket Purchase Agreements awarded to WHR Group, Inc., Lexicon Government Services, LLC, and Franconia Real Estate Services d/b/a/ Allegiance Relocation Services, (2) conducting a procurement to replace those Blanket Purchase Agreements, (3) extending the Brookfield Relocation, Inc. task order pursuant to which those services are currently procured by the Federal Bureau of Investigation, and (4) procuring relocation services pursuant to the Brookfield task order, except as necessary to accommodate a reasonable transition period to install the plaintiffs as vendors.”

OCEAN SHIPS, INC., Plaintiff, v. THE UNITED STATES, Defendant, and PATRIOT CONTRACT SERVICES, LLC., Defendant-Intervenor, COFC No. 13-964C, April 7, 2014 Bid protest Military Sealift Command small business set-aside contract for the operation and maintenance of eight large government-owned sea vessels. Plaintiff’s primary argument is that a 4% increase that became effective before award to intervenor required the government to solicit another round of proposals. The increase was identified in the RFP in a Collective Bargaining Agreement(CBA). Plaintiff also argues that the evaluation described in the solicitation should have included the costs for cost-reimbursement training and finally that the past performance evaluation was faulty.
   Judge Firestone finds for the government on the administrative record. She notes that the increase was disclosed in the CBA and no change in the solicitation occurred requiring new proposals. Even if the increase was a material change, she finds that plaintiff has not shown how it was prejudiced as the change applied to all offerors. She agrees with the government that the argument about lack of evaluation of cost-reimbursement training should have been raised earlier and was therefore waived by plaintiff under under BLUE & GOLD, FLEET, L.P. v. UNITED STATES, and HORNBLOWER YACHTS, INC., CAFC No. 2006-5064, June 26, 2007. Finally, she finds that the government’s past performance evaluation was rational and supported by the record.

FCN, INC. v. THE UNITED STATES, COFC No. 13-616C, April 04, 2014. Post-award bid protest Air National Guard’s award of a contract for a Mass Notification System/Net-Centric Alerting System to RGS. Plaintiff’s primary argument is that the government relied on RGS’s utilization of Government Furnished Equipment (GFE) and failed to follow FAR Part 45 regarding the proposal and acceptance of government property or government-furnished property.
   Judge Horn finds for plaintiff on the administrative record and enters a permanent injunction against the award. She also remands to the government “to clarify the Solicitation and conduct a proper procurement.” Judge Horn notes

Although having incomplete information, the Source Selection Evaluation Board and the contracting officer, acting as the source selection official, both blindly accepted that the software licenses and telephony services were government-owned property and available. The Source Selection Evaluation Board commented in its Technical Evaluation Summary on RGS’ ‘cost savings for utilizing existing GFE,’ without clarifying, or having a clear understanding, whether the ‘existing GFE’ meant the licenses, the telephony capability, or both, and whether or not the items were government property, and, if so, could be could transferred. The Source Selection Evaluation Board did ask the offerors in its April 2, 2013 questionnaire ‘[i]f costs are figured with the idea that licensing is covered by GFE; will the vendor provide in writing and signed by the appropriate government official proof of such claim.’ In Mr. Wilson’s June 12, 2013 after-the-fact declaration during the GAO protest, regarding the e-mail from Mr. Bartoli, he stated: ‘In my view, then and now, the email string supports RGS’s express affirmation that they would provide licenses as GFE in line with their proposal.’ Neither the Source Selection Evaluation Board, nor the contracting officer, as the source selection official, however, indicated concern with RGS’ description of the software licenses or the [redacted] telephone lines in its price proposal as ‘[a]lready [o]wned by the USAF’ when RGS was awarded the contract, implying that they were government-owned and, by implication, would be furnished by the government. The Air National Guard officials did not fully investigate or address the status of the potential.” and
   “Regardless, the agency made its selection based on insufficient and incomplete information, in an uninformed fashion, without having conducted sufficient inquiry to make a rational decision which was not arbitrary or capricious.”

UNIGLOBE GENERAL TRADING & CONTRACTING CO., W.L.L. v. THE UNITED STATES, COFC No. 10-204 C, April 02, 2014. Army contract for lease of vehicles in Kuwait. See earlier decision. Plaintiff claims breach of three lease contracts. The government moves for partial dismissal arguing that plaintiff did not file suit within one year of the CO’s final decision. Judge Bush finds that the government has not proven that plaintiff received a valid final decision on its 2003 Lease Fees Claim and therefore the one year period to file suit never began to run. However, she does find that the government has met its burden of proving the contractor’s receipt of a contracting officer’s final decision on the repair costs claim. She notes that the “burden is satisfied if the government demonstrates ‘‘objective indicia of receipt.’’ Id. (quoting Borough of Alpine, 923 F.2d at 172); accord FAR 33.211(b) (stating that ‘[t]he contracting officer shall furnish a copy of the decision to the contractor by certified mail, return receipt requested, or by any other method that provides evidence of receipt;) (emphasis added).” Good discussion of the elements of a final decision and case law on receipt of same.

ROLLOCK COMPANY, et at. v. THE UNITED STATES, COFC No. 12-245C, March 28, 2014. Purchase by the National Park Service of land for the Flight 93(September 11, 2001) National Memorial. The parties negotiated an agreement for the acquisition of the land and another agreement for the purchase of certain materials and the relocation of plaintiff’s business. The government stated that relocation expenses would be covered by the government in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act (“Relocation Act”), Pub. L. 91-646, 89 Stat. 1894 (1971) (codified, as amended, at 42 U.S.C. § 4601-55), and its accompanying regulations found at 49 C.F.R. Part 24. Plaintiff claims it has not been paid the amount required by the agreement. THE government moves to dismiss for lack of jurisdiction or in the alternative for summary judgment. Plaintiff argues that the CDA applies, but the government disagrees arguing that the Relocation Act is the authority for the transaction and that plaintiff has not exhausted its administrative remedies. Judge Lettow provides an extensive discussion the applicability of the statutes and the doctrine of exhaustion. He notes that “doctrine of exhaustion includes both statutory exhaustion, which is jurisdictional, and prudential exhaustion, which is not.”
   Judge Lettow concludes “For the reasons stated above, the government’s motion to dismiss is DENIED, as is its alternative motion for summary judgment. The portion of the claim for monitoring costs of the sale of metal scrap is governed by the CDA and Rollock has satisfied the claim requirements under that statute. The portion of the claim for monitoring costs of the embedded materials and the claim for relocation costs of the embedded materials are governed by the Relocation Act. The court has jurisdiction over these claims because the Relocation Act does not require exhaustion of administrative remedies.
Pursuant to RCFC 52.2, this case is remanded to the National Park Service for a period of six months. See RCFC 52.2(b)(1)(B). The case is stayed pending the results of the remand.”

ALLEN ENGINEERING CONTRACTOR, INC. v. THE UNITED STATES, COFC No. 13-684 C, March 27, 2014. Interesting case. Navy construction contract for work at Camp Pendleton, California. Plaintiff appeals the termination for default for failure to maintain performance and payment bonds. Plaintiff makes several arguments why the fault should rest with the government. The government moves to dismiss for failure to state a claim. Plaintiff supplied bonds issued by Liberty Mutual Insurance Company(Liberty) and a few months later requested that bonds from the Pacific Indemnity Company (PIC) be substituted for the Liberty bonds. Plaintiff had acquired the PIC bonds from a firm which represented itself as a broker for PIC, a subsidiary of Chubb Group. The Navy approved the change and returned the first bonds to Liberty. Chubb subsequently notified the parties that the PIC bonds were not issued by PIC and were invalid. The Navy suspended performance and requested plaintiff to supply new bonds in place of the fraudulent PIC bonds. Plaintiff proposed alternative methods to replace the bonds but those proposals were not accepted and the NAVY terminated the contract for default.
   Plaintiff sets out five arguments why the default should be overturned: “(1) that the Navy violated a number of applicable regulations and committed a prior material breach by violating a duty it had to plaintiff in failing to properly investigate the validity of the PIC bonds and approve the substitution; (2) that the Navy improperly refused to accept plaintiff’s alternative proposals to providing valid replacements for the fraudulent PIC bonds; and (3) that the Navy improperly terminated plaintiff’s contract under FAR § 52.249-10, because this provision does not allow for termination for failure to provide replacement bonds. And two are articulated in plaintiff’s response to the motion to dismiss: (1) that the Navy had both the ‘last clear chance’ and the superior knowledge to save plaintiff from its predicament, and (2) that the Navy should be equitably estopped from terminating the contract.”
   Judge Merow rejects all of plaintiff’s arguments. He finds that regulations that plaintiff relies on were for the benefit of the government and provide no rights to plaintiff. He accepts the government’s argument “that termination was proper under FAR § 52.249-10, citing this court’s decision in Airport Industrial Park, Inc. v. United States, 59 Fed. Cl. 332 (2004). In Airport Industrial Park, the contractor obtained performance and payment bonds from a company that became insolvent prior to conclusion of the contract work. Id. at 333. The government notified the contractor that it must provide replacement bonds, and when it failed to do so, the government terminated the contract for default. Id. at 334. The court held, based on a review of numerous cases and board decisions, that ‘failure to furnish adequate bonding required by a government procurement contract is a material breach that justifies termination for default.’”

DM PETROLEUM OPERATIONS COMPANY v. THE UNITED STATES, and FLUOR FEDERAL PETROLEUM OPERATIONS, LLC, Intervenor, COFC No. 14-80C, March 27, 2014. Post-award bid protest for a DOE best value contract to operate the Strategic Petroleum Reserve. Plaintiff was the 20 year incumbent. Plaintiff challenges several aspects of the evaluation of its proposal and the proposal of awardee/intervenor.
    Judge Bruggink finds for the government and intervenor on the administrative record. He notes “Plaintiff’s briefing presents a number of critiques of DOE’s selection of Fluor. While we are sympathetic with DM’s consternation at not being selected after many years of apparently successful performance of the incumbent contract, all of the challenges, including the ones we select for treatment below, can be characterized merely as calling into question the agency’s legitimate exercise of its own judgment. As is frequently the case in close calls in procurement selections, the fact that the court, or even a different group of agency selection authorities, may have come to another conclusion, is irrelevant.“ He concludes “We have considered each of plaintiff’s arguments, including the ones only briefed and not brought forward at oral argument. Collectively they merely reflect disagreements with the agency’s exercise of its reasonable judgment in rating Fluor’s and DM’s proposals with respect to various technical factors. The agency was well within its discretion to evaluate the proposals as it did. Plaintiff has neither established a violation of law or regulation nor presented any evidence of arbitrary or capricious action on the part of the agency.”

CMI MANAGEMENT, INC. v. THE UNITED STATES, COFC No. 13-982C, March 20, 2014. Pre-award bid protest for a contract award to perform Field Office Support Service (FOSS) for the U.S. Citizenship and Immigration Services. Plaintiff challenges many aspects of its evaluation. Chief Judge Campbell-Smith reviews all of the allegations in depth and concludes “The Agency’s ratings of CMI’s proposal and decision to exclude CMI from the competitive range were rational and were not arbitrary, capricious, an abuse of discretion, or contrary to law. CMI’s motion for judgment on the administrative record is DENIED; defendant’s cross-motion is GRANTED.” In reviewing the plaintiff’s allegations she notes “The court does not sit as an arbiter of reasonableness, but rather to determine whether the Agency acted arbitrarily, capriciously, or outside the law, which it did not.”

MANUS MEDICAL, LLC, v. THE UNITED STATES, and MARATHON MEDICAL, LLC, Defendant-Intervenor, COFC No. 14-26C, March 19, 2014. Bid protest Department of Veterans Affairs set-aside for Service-Disabled, Veteran-Owned Small Businesses for custom surgical packs. Judge Wheeler’s first paragraph sets out the case and resolution.

“This bid protest raises the question of whether a procuring agency may cure an incomplete proposal from a small business offeror by submitting the matter to the Small Business Administration (‘SBA’) for a Certificate of Competency. For the reasons explained below, the Court finds that an agency cannot lawfully cure proposal defects by submitting them to the SBA, and that the contract award to an ineligible offeror cannot stand. Accordingly, the Court sustains Plaintiff’s protest, and permanently enjoins the agency from proceeding with a contract that was illegally awarded.”

AGILITY DEFENSE & GOVERNMENT SERVICES, INC. v. THE UNITED STATES, COFC No. 13-380C, March 19, 2014. Army firm fixed-price IDIQ contract for Soviet style SPG-9 recoilless gun. Plaintiff seeks an REA claiming actions by foreign governments and contract changes caused its costs to increase from its fixed price of $1,319,400.00 to $2,688,777.47. Plaintiff argues (1) [its] performance after April 7, 2010 was caused by the Government’s constructive change to the contract; (2) its delivery of more expensive goods was required by the Government’s express change to the contract; and (3) its failure to deliver the original, less expensive goods is excused by the doctrine of impossibility.”
   Judge Wheeler rejects these arguments and grants summary judgment for the government. He notes that “one overarching principle guides the Court’s analysis. This principle states that ‘[a] firm-fixed-price contract provides for a price that is not subject to any adjustment on the basis of the contractor’s cost experience in performing the contract. This contract type places upon the contractor maximum risk and full responsibility for all costs and resulting profit or loss.’ FAR 16.202-1.” Judge Wheeler also notes that all of the contract modifications were bilateral and did not change the contract price. Regarding the impossibility argument he notes that “the doctrine is not available to a party that assumed the risk of occurrence of the supervening event” citing SEABOARD LUMBER COMPANY and CAPITAL DEVELOPMENT COMPANY v. US, CAFC NOS. 01-5097, -5124, October 18, 2002.

MANAGEMENT AND TRAINING CORPORATION v. THE UNITED STATES, COFC No. 12-683 C, March 14, 2014. Pre-award, pre-solicitation bid protest, another Job Corps Center case. Plaintiff challenges several elements of the decision to set-aside for small businesses the procurement for which it the incumbent contractor. Plaintiff argues that a set-aside does not meet the competition requirements of the Workforce Investment Act of 1998, that the government did not conduct a predicate determination that a fair proportion of contracts are awarded to small businesses and the application of the rule of two was arbitrary and capricious. The government moves to dismiss for lack of jurisdiction on ripeness and standing ground.
   Judge Block rejects the motion to dismiss. Judge Block notes

“Turning to the case at hand, and taking plaintiff’s allegations as true, the court finds that the plaintiff satisfies both the ‘actual or prospective bidder’ and the ‘non-trivial competitive injury’ elements that are required to show allegational prejudice, and therefore has standing to file this bid protest. Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). First, plaintiff is the incumbent contractor operating the Paul Simon JCC and would, if permitted, submit a bid for the instant procurement. Plaintiff is therefore a ‘prospective bidder.’ See MCI Telecomm. Corp. v. United States, 878 F.2d 362, 365 (Fed. Cir. 1989) (holding that a ‘prospective bidder ’is one ‘expecting to submit an offer prior to the closing of the solicitation’) (cited in Rex Servs. Corp. v. United States, 448 F.3d 1305, 1307-08 (Fed. Cir. 2006)); Mgmt. & Training Corp. v. United States, 12-561C, 2013 WL 3944270 (Fed. Cl. July 25, 2013) (holding, in a companion case, that ‘as the incumbent contractor and prospective bidder, [Management] is an ‘interested party’ whose ‘direct economic interest would be affected by the award of the contract’’) (citing Am. Fed’n, 258 F.3d at 1302). Second, the injury plaintiff alleges is the loss of opportunity to compete in the instant procurement. This court has held repeatedly that when a party is deprived of an opportunity to submit a bid, it has suffered the ‘non-trivial competitive injury’ required to achieve ‘interested party’ status. See, e.g., Adams and Associates, Inc. v. United States, 109 Fed. Cl. 340, 350 (2013) (another companion case against DOL, which reached the same conclusion); Dynamic Educ. Syst., Inc. v. United States, 109 Fed. Cl. 306, 320 (2013) (another companion case against DOL); Assessment & Training Solutions Consulting Corp. v. United States, 92 Fed. Cl. 722, 728 (2010); Magnum Opus Techs., Inc. v. United States, 94 Fed. Cl. 512, 533 (2010).”
Judge Block grants the government’s motion for summary relief. He finds that most of plaintiff’s arguments have been rejected by the Federal Circuit in the recent decisions in ADAMS AND ASSOCIATES, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, CAFC Nos. 2013-5077 and 2013-5080, January 27, 2014 and Res-Care, Inc. v. United States, 735 F.3d 1384 (2013).

WESTON/BEAN JOINT VENTURE v. THE UNITED STATES, COFC No. 11-31C, No. 11-360C, March 14, 2014. Corps of Engineers dredging contract. Plaintiff primarily claims an equitable adjustment for differing site conditions. Both parties move for summary judgment. Judge Kaplan denies the motion. She notes

“There are ‘six indispensable elements’ to a differing site condition claim: (1) that the contract affirmatively indicated subsurface conditions upon which the contractor’s claims are based; (2) that the plaintiff acted as a reasonably prudent contractor in interpreting the contract documents; (3) that the contractor reasonably relied on the indications of subsurface conditions in the contract; (4) that the subsurface conditions actually encountered differed materially from subsurface conditions indicated in the contract; (5) that the subsurface conditions encountered were reasonably unforeseeable; and (6) that the contractor’s claimed excess costs were solely attributable to the materially different subsurface conditions. Weeks Dredging & Contracting, Inc. v. United States, 13 Cl. Ct. 193, 218 (1987).” and
    “In light of the standards applicable to differing site conditions claims and upon consideration of the parties’ lengthy briefs and exhibits, the Court concludes that the ‘better course’ here (Anderson, 477 U.S. at 255) is to deny the cross motions for summary judgment and proceed to a full trial. There appear to exist several significant areas of material fact in dispute with respect to the central claim in this case. These include, among others, a dispute as to what subsurface conditions were ‘indicated’ by the contracting documents in light of the character of materials clause, the test result data, and the characterization of the work as ‘maintenance’ rather than ‘new work’ dredging. The factual disputes also concern the extent to which the conditions that WB actually encountered differed in a material way from the conditions ‘indicated’ in the contracting documents; whether the conditions encountered were reasonably foreseeable; whether WB actually relied upon the conditions indicated by the contract documents in making its bid; and the extent to which WB’s increased performance costs were caused by materially different site conditions. There also exist factual disputes regarding whether WB provided prompt notice of the differing site conditions and, if not, the extent to which the government was prejudiced by any delay.”

BANNUM, INC. v. THE UNITED STATES and DISMAS CHARITIES, INC., Intervenor, COFC No. 14-140C, March 11, 2014. Post-award bid protest Bureau of Prisons(BOP) contract for a Residential Reentry Center. The contract was an indefinite delivery, requirements type contract, with firm-fixed unit prices. Plaintiff had objected to the agency of a modification to the solicitation which included a requirement to comply with P.L. 108-79, Prison Rape Elimination Act of 2003 (PREA). Plaintiff argued that it needed more information to adequately comply. Plaintiff’s final proposal requested discussions and included in a footnote that its prices did not reflect pricing for PREA compliance. The government and intervenor move to dismiss arguing that plaintiff lacked standing as its final proposal was noncompliant with the solicitation. The government and intervenor also argued that plaintiff had waived its PREA argument in accordance with BLUE & GOLD, FLEET, L.P. v. UNITED STATES, and HORNBLOWER YACHTS, INC.
    Judge Williams agreed with the government and intervenor that plaintiff lack standing. She noted

“Bannum’s proposal with its footnoted pricing caveat does not constitute an offer that the Government could accept. There was no meeting of the minds. Bannum made clear it would need to formulate a price proposal for the addition of PREA compliance and that its offer did not include such pricing. The Government, however, made compliance with PREA mandatory and sought firm-fixed pricing for the entirety of the Solicitation’s requirements -- not pricing for everything except PREA compliance. The Solicitation required unit pricing representing the daily price to maintain an inmate at the RRC. Because Bannum omitted pricing for PREA compliance, its offer was nonresponsive and could not form the basis of an award.”
   However she rejected the argument that Blue & Gold Fleet required that a protest be filed with the GAO or the COFC. Judge Williams note
“Defendant and Intervenor interpret the Blue & Gold waiver rule to require a protestor to pursue a formal pre-award protest with the agency, GAO or this Court. Neither Blue & Gold nor COMINT however stands for the proposition that a protestor must file a formal protest to preserve its right to challenge a solicitation. In articulating the waiver rule and confirming its broad application in bid protests, the Federal Circuit only required that a protestor ‘object to’ or ’challenge’ a solicitation containing a patent ambiguity or error before award. Blue & Gold, 492 F.3d at 1315; COMINT, 700 F.3d at 1382. The Federal Circuit did not articulate any specific procedural requirements for such a challenge or objection or suggest that a protestor would have to pursue a formal protest remedy pre-award. The point of the waiver rule is to provide notice to the agency so that it can remedy a defective solicitation before award. Allowing informal notice in raising pre-award issues permits the expeditious amendment of problematic solicitations or, if the agency is satisfied its solicitation is adequate, an expeditious continuation with the award process at hand. At present, the law does not require that Bannum do anything more than it did here. All that is required is that a protestor must have ‘done something’ to challenge a solicitation prior to award to preserve its right to protest the solicitation in this Court.”

CAROLINA POWER & LIGHT CO. et al v. THE UNITED STATES, COFC No. 11-869C, March 10, 2014. Damages decision, spent nuclear fuels case. Plaintiff claims damages of $104,991,508. The government only contests approximately $23million. After discussing the elements of foreseeability, causation and reasonable certainty Judge Wheeler awards $103,748,230.14 to plaintiff. The bulk of the disallowed costs were for a computer security system upgrade which the court found would have been done regardless of the breach.

KELLOGG BROWN & ROOT SERVICES, INC. v. THE UNITED STATES, COFC No. 12-780 C, March 07, 2014. Corps of Engineers Restore Iraqi Oil (RIO) contract. The dispute is over an indemnification provision in the contract for unusually hazardous risks. The parties disagree on whether a valid CDA claim was submitted to the CO. Plaintiff argues that the request for indemnification was a valid claim requesting interpretation of contract terms. The government argues that the claim was a money claim which was not for a sum certain and lacked certification. The government moves to dismiss. After discussing the presentment requirement and related case law, Judge Bush dismisses the case finding that the basis of the dispute is over money and there was no sum certain or certification. Insofar as the complaint seeks declaratory relief directing the government to participate in the tort suits against plaintiff Judge Bush notes

“If plaintiff’s broad references to indemnification under FAR 52.250-1 in the prayer for relief of its complaint could somehow be read to include a claim for specific performance by the United States, the court notes that such a claim would necessarily be dismissed for failure to state a claim upon which relief may be granted. Here, the specific terms of FAR 52.250-1 afford discretion to the United States to participate in the defense of claims against its contractors protected by this contract provision. See FAR 52.250-1(h) (‘The Government may direct, control, or assist in settling or defending any claim or action that may involve indemnification under this clause.’) (emphasis added). Thus, should any demand for specific performance in this regard be discerned in the complaint, it would necessarily be dismissed because FAR 52.250-1 affords the United States discretion to participate, or to not participate, in third-party suits against KBR. See, e.g., Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002) (stating that dismissal is appropriate under RCFC 12(b)(6) ‘when the facts asserted by the claimant do not entitle him to a legal remedy’); see also Amsinger v. United States, 99 Fed. Cl. 254, 257 (2011) (‘When the government has challenged the merits of a claim by means of a motion filed under RCFC 12(b)(1), this court may dismiss that portion of the complaint for failure to state a claim upon which relief can be granted, under RCFC 12(b)(6).’ (citing Stephanatos v. United States, 81 Fed. Cl. 440, 442 (2008); Cherbanaeff v. United States, 77 Fed. Cl. 490, 492 (2007); Esch v. United States, 49 Fed. Cl. 631, 634 (2001))).”

KELLOGG BROWN & ROOT SERVICES, INC. THE UNITED STATES, COFC No. 13-169 C, March 07, 2014. Corps of Engineers Restore Iraqi Oil (RIO) contract. Plaintiff’s claims relate to an indemnification provision in the RIO contract. The government moves to dismiss for lack of jurisdiction as the claims were before the court in another suit denying authority to the contracting officer to decide the claims. After an extensive discussion of Sharman Co. v. United States, 2 F.3d 1564 (Fed. Cir. 1993) which held

“[o]nce a claim is in litigation, the Department of Justice gains exclusive authority to act in the pending litigation. That exclusive authority divests the contracting officer of his authority to issue a final decision on the claim.”
and the cases cited therein Judge Bush finds that two of the claims fall within the other suit and dismisses them. While an additional claim was different, the suit was filed before the CO had issued a decision and too earlier to be considered a deemed denial and is dismissed. Judge Bush notes
“Thus, the IG costs claim, as well as the other claims in the February 2013 certified claim, were filed before a deemed denial would permit an appeal of the CO’s ‘decision’ in this court. E.g., Mendenhall v. United States, 20 Cl. Ct. 78, 84 (1990); Claude E. Atkins Enters. v. United States, 15 Cl. Ct. 644, 646 (1988). As this court has explained, a claim premature for lack of a contracting officer’s final decision does not ripen into a mature claim, while suit is pending, with the passage of sixty (60) days. Once plaintiff’s claim . . . became the subject of litigation in this court, upon the filing of the original complaint, the authority to resolve that claim was withdrawn from the contracting officer and resided within the exclusive authority of the Attorney General . . . . Under these circumstances, plaintiff’s claim . . . cannot be deemed denied, and the court must dismiss [this claim] on jurisdictional grounds for lack of a contracting officer’s final decision. Sipco Servs. & Marine Inc. v. United States, 30 Fed. Cl. 478, 485 (1994)”

OPTIMIZATION CONSULTING, INC., Plaintiff, v. THE UNITED STATES, Defendant, and GOLDBELT GLACIER HEALTH SERVICES, LLC, Intervenor-Defendant. COFC No. 13-103 C, February 28, 2014. Post-award bid protest National Guard Bureau (NGB) small business set-aside for the award of multiple, indefinite-delivery/indefinite quantity contracts for proposals to provide psychological health support services to the Army and Air National Guards. Plaintiff “protests its exclusion from the competitive range, arguing that the NGB: 1) erred in its evaluation of the price and past performance elements of OCI’s proposal; 2) failed to exhibit good faith and fair dealing; 3) improperly evaluated the past performance of a competing offeror, the intervenor;2 and 4) should have referred OCI to the Small Business Administration (SBA) for a responsibility determination before excluding it from the competitive range.”
   The court grants the government’s motion for judgment on the administrative record. Following Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir.), Judge Damich finds that Plaintiff “has waived its objections based on price because of its failure to have challenged the price model and its instructions regarding the TCLP prior to the final bid submission deadline.” Regarding the argument that the matter should have been referred to the SBA Judge Damich finds that plaintiff “was not ruled out of consideration on a pass/fail basis as it would have been had it received an ‘Unacceptable’ or ‘No Confidence’ rating (and as other offerors had been. Rather, its deficiencies related to how it proposed to perform.” And “The ‘Competitive Range Determination,’ signed by the Contracting Officer and the Source Selection Authority, is extensive in its comparative evaluation of the four offerors selected as within the competitive range with the three offerors, among them OCI, that were not deemed ‘unawardable’ but which, nonetheless, were eliminated from the competitive range. .... ”
   “There is thus no basis for finding that OCI was entitled at that stage of the Solicitation process to a referral to the SBA for a responsibility determination.”

HUNTINGTON PROMOTIONAL & SUPPLY, LLC v. THE UNITED STATES, COFC No. 11-692C, February 27, 2014. Plaintiff claims that its invoices for promotional goods that were custom made for, and shipped to, various Army and Air Force Exchange Services (AAFES) locations have not been paid. Chief Judge Campbell-Smith states that the “filings suggest that plaintiff may have been sending unsolicited goods to Army and Air Force exchange posts. If true and unrebutted, plaintiff’s effort to prove that it had a valid contract with the government would be unavailing. But, plaintiff insists that it can identify by name those exchange post employees who confirmed the orders for Huntington’s promotional goods. Alternatively, plaintiff asserts that a contracting officer ratified the oral arrangements for the goods.” The government argues that the complaint fails to meet the requirement of RCFC 9(k) which provides

“In pleading a claim founded on a contract or treaty, a party must identify the substantive provisions of the contract or treaty on which the party relies. In lieu of a description, the party may annex to the complaint a copy of the contract or treaty, indicating the relevant provisions.”
The court denies the government’s motion to dismiss and converts the motion to one for summary judgment. She notes “plaintiff has alleged in its complaint the existence of a contract with the United States and a breach of that contract caused by the government’s failure to pay plaintiff’s invoices. These claims, and the uncontroverted facts presented here, would appear to satisfy the plausibility standard announced in the Supreme Court’s decisions in Twombly and Iqbal. See Iqbal, 556 U.S. at 678 (‘[The] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’’ (quoting Twombly, 550 U.S. at 570 (2007))).”[The cited Iqbal decision is Ashcroft v. Iqbal (Iqbal), 556 U.S. 662, 678 (2009) -jaw]

BAY COUNTY, FLORIDA v. THE UNITED STATES, COFC No. 11-1, February 27, 2014. See earlier decision on liability. Plaintiff argues “that the Late Payment Fee is essentially a prompt payment discount and should become part of the principal to which applicable interest obligations apply.” Judge Lettow rules “Bay County is awarded $641,548.82 in damages, plus (a) a ten percent Late Payment Fee on that part of the so-called undisputed amount that accrued after 2010, (b) interest in accord with the PPA on the portion of the so-called undisputed amount that accrued prior to 2010, and (c) interest under the CDA on the so-called disputed amount. Interest shall be payable until the date of payment of the County’s claim.

K-CON BUILDING SYSTEMS, INC. v. THE UNITED STATES, COFC No. 05-914C, February 26, 2014. Coast Guard order under a FSS contract for the design and construction of a prefabricated building. See earlier decision. Plaintiff challenges the government’s termination for default and seeks to amend its complaint to allege an affirmative claim for an equitable adjustment. Plaintiff argues that the termination for default was improper as plaintiff had claimed excusable delay and the Coast Guard did not refer the matter to the GSA contracting officer as required. Plaintiff’s FSS contract contained by reference clause I-FSS-249-B, Default which provided

“In addition to any other clause contained herein related to termination, the following is applicable to orders placed under Federal Supply Schedule contracts. Any ordering office may, with respect to any one or more orders placed by it under the contract, exercise the same right of termination, acceptance of inferior articles or services, and assessment of excess costs as might the Contracting Officer, except that when failure to deliver articles or services is alleged by the Contractor to be excusable, the determination of whether the failure is excusable shall be made only by the Contracting Officer of the General Services Administration, to whom such allegation shall be referred by the ordering office and from whose determination appeal may be taken as provided in the clause of this contract entitled ‘Disputes.’”
The government argues that there was no allegation of excusable delay and that M. Maropakis Carpentry, Inc. v. United States (“Maropakis”), 609 F.3d 1323 (Fed. Cir. 2010) precludes such a claim as “plaintiff never filed a claim for excusable delay with a contracting officer pursuant to the CDA, it has not properly alleged excusable delay under clause I-FSS-249-B of plaintiff’s Federal Supply Schedule contract.” Judge Sweeney rejects the government’s arguments finding that plaintiff’s communications with the government clearly alleged excusable delay and that Maropakis is not applicable as the holding there “has no bearing on what qualifies as an allegation of excusable delay for the purpose of a procuring agency’s referral of such an allegation to the GSA under a Federal Supply Schedule contract.” She grants summary judgment to plaintiff on the termination issue finding that the termination was invalid and allows the other claims to go forward.

MONTANO ELECTRICAL CONTRACTOR v. THE UNITED STATES, COFC No. 13-435C, February 20, 2014. Plaintiff was a subcontractor on a Corps of Engineer contract. Plaintiff seeks monies allegedly not paid by the prime and also for alleged tortious conduct by the CO. The government moves to dismiss for lack of jurisdiction. Judge Lettow dismisses the action. He notes that a prime contractor can bring a claim on behalf of a sub, but that is not the case here and the prime has already settled with the government releasing the government from further claims.
   The court also denies plaintiff’s request to transfer the case to a district court. Judge Lettow notes that in any transfer request the COFC must determine that district court would have jurisdiction and that because plaintiff has not filed an administrative claim required by the FTCA the district court would dismiss for lack of jurisdiction.

PALAFOX STREET ASSOCIATES, L.P v. THE UNITED STATES, COFC No. 13-247, February 12, 2014. Dispute arises fron a GSA lease contract to build a courthouse and rent the building back to the government. On April 09, 2012 the CO issued a final decision stating that the government had overpaid real estate taxes and was entitled to a refund of $824,416.01. Plaintiff appealed the CO’s decision to the CBCA. The government moved to dismiss arguing lack of jurisdiction as appellant had not certified its claim. The CBCA issued an morder requesting appellant to determine if its correspondence with CO constituted a proper certified claim. Appellant responded with a request that the CBCA modify or vacate its order arguing that appellant was appealing a government claim which did not require a certification by appellant. On October 9, 2012, “the parties filed a joint motion to dismiss without prejudice ‘so that Palafox [could] obtain a contracting officerrss final decision on its claim,’” The board granted the parties request and dismissed the appeal. Appellant then submitted $831,858 certified claim to the CO which was denied in a December 20, 2012 final decision.[The difference between what the government withheld and the overpayment is $7,441.99] Plaintiff now brings this suit to the COFC appealing the denials of both the April 29, 2012 and December 20, 2012 decisions.
    The government moves to dismiss for lack of jurisdiction and for failure to state a claim for which relief can be granted. The government argues that the April 20, 2012 claim was properly before the CBCA which had jurisdiction to consider it and the election doctrine precludes bringing the claim before the court. The government also argues that res judicata bars $7441.99 difference for failure to state a claim upon which relief can be granted “that, in granting the parties’ joint motion to dismiss, the CBCA ‘technically reached a final judgment on the merits,’ and that, pursuant to the doctrine of res judicata, the court should therefore dismiss plaintiff’s entire Complaint.”
   After an extensive discussion of the election doctrine Chief Judge Campbell-Smith dismisses the claim on the April 09, 2012 final decision finding that the CBCA had jurisdiction over that claim and that the CBCA neither explicitly nor implicitly dismissed plaintiff’s appeal for want of jurisdiction. She rejects plaintiff’s argument that the government is judicially estopped from challenging that claim as contrary to the government’s position at the CBCA. She notes that “It is well settled that no action of the parties can confer subject-matter jurisdiction on a tribunal and that the principles of estoppel do not apply to vest subject-matter jurisdiction where Congress has not done so.”
   Regarding the claim arising from the December 20, 2012 final decision she stays the government’s motion pending further supplements briefing by the parties although she does rejects the government’s argument the res judicata bars consideration of the $7441.99 claim.[This appears to be recently appointed Chief Judge Campbell-Smith’s first published contract law decision.-jaw]

G4S TECHNOLOGY LLC v. THE UNITED STATES, COFC No. 12-8C. February 11, 2014. Plaintiff was a subcontractor to the prime who had entered into a 2009 Loan and Security Agreement between the United States Department of Agriculture’s Rural Utilities Service(RUS) which had agreed to provide funds to the prime that were to be used to construct a wireless broadband network in hundreds of rural communities under the Rural Development Broadband Loan and Loan Guarantee Program. The prime went bankrupt and plaintiff claims it was a third-party beneficiary and should be paid by the government. The government moves to dismiss, or in the alternative, for summary judgment. Judge Firestone finds that plaintiff has made a “nonfrivolous claim regarding its potential status as a third-party beneficiary” and therefore denies the motion to dismiss for lack of jurisdiction.
    Judge Firestone notes “it remains the general rule that a subcontractor that agrees to supply materials or labor to a general contractor is only an incidental beneficiary of any contract between the general contractor and its ultimate client.” She cites Restatement (Second) of Contracts §§ 302, 304 which states

B promises A to pay whatever debts A may incur in a certain undertaking. A incurs in the undertaking debts to C, D and E. If the promise is interpreted as a promise that B will pay C, D and E, they are intended beneficiaries . . . [but] if the money is to be paid to A in order that he may be provided with money to pay C, D and E, they are at most incidental beneficiaries.
She notes that standards for a third-party beneficiary are laid out in are laid out in: D & H Distrib. Co. v. United States, 102 F.3d 542 (Fed. Cir. 1996) ; Flexfab, 424 F.3d 1254; and JGB, 63 Fed. Cl. 319, aff’d, 497 F.3d 1259 (Fed. Cir. 2007). In D&H “the court adopted a rule that a subcontractor is entitled to enforce a contract where the subcontractor is made a joint-payee of the prime contract,” In Flexab “The court thus made clear that the government’s ratification of a contract provision that expressly provides for direct payment to a subcontractor remains unenforceable by the subcontractor, absent evidence of such intent of an authorized government official.” In JGB “the court concluded that because the DSCC contracting officer understood that the purpose of amending the payment procedure was to set aside monies for JGB, JGB became an intended third-party beneficiary of Capital City’s contract with the government.”
    Judge Firestone grants summary judgment for the government. She notes “that in order for a subcontractor to obtain the status of an intended third-party beneficiary, it must provide clear evidence that an authorized government official approved a contract provision for the express purpose of effectuating payment from the government to the subcontractor(s). This showing can be satisfied by the unambiguous language of the prime contract and any modifications made thereto, and by other objective evidence that clearly demonstrates the authorized official’s unambiguous intent to ensure payment to the subcontractor(s). The court will not, however, infer that the government intended to directly benefit the subcontractor merely because an authorized government official (1) oversees the activities of the prime contractor; (2) becomes aware that the prime contractor has failed to timely pay its subcontractors, and/or (3) makes funds available to the prime contractor in order for the prime contractor to pay its subcontractors. Applied to this case, plaintiff has failed to identify any evidence—much less clear evidence— that [the government] approved a contract provision for the express purpose of ensuring that a portion of the loan advances would go directly to [the prime’s] vendors, including G4S.”

B&B MEDICAL SERVICES, INC. v. THE UNITED STATES, COFC No. 10-448C, February 10, 2014. Pre-award bid protest of a VA procurement for home healthcare oxygen. At issue are the cancellation of a solicitation, tje non-manufacturer rule and the proper NAICS code. The government moves to dismiss as moot because the size standard has been changed which would allow plaintiff to compete. Judge Wolski first discusses the jurisdictional issue related to a cancellation of a solicitation and determines that the court does have jurisdiction of an argument that the agency a regulation was interpreted in an arbitrary manner. He dismisses the case as moot noting “Although the parties still disagree over the proper application of the non-manufacturer rule, B&B is not injured by the government’s contrary views. A case is moot when it is unreasonable to expect ‘that the alleged violation will recur,’ and ‘interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.’ County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (citations omitted). The alleged wrongful interpretation of the non-manufacturer rule is a cognizable violation of B&B’s rights only when it results in the improper exclusion of plaintiff from the pool of eligible offerors. This exclusion can no longer result from the use of the NAICS code which the SBA requires the agency to use in home healthcare oxygen procurements— thus, the allegedly illegal interpretation of the non-manufacturer rule has no effect on B&B’s ability to compete under the revised procurement or any other procurement involving the same requirements. The formal change in the size standard regulation, based on industry data and not some change in policy, see 77 Fed. Reg. 58,747-48, is akin to the repeal of a law, rather than a voluntary cessation of illegal activity. Cf. Rothe Dev. Corp. v. Dep’t of Def., 413 F.3d 1327, 1332-33 (Fed. Cir. 2005) (contrasting the suspension of a policy with the repeal of a law).”

DEMODULATION, INC. v. THE UNITED STATES, COFC No. 11-236C, February 07, 2014. Plaintiff moves to vacate two rulings by Judge Braden who had recused herself after the rulings as she had a former professional relationship with an expert for plaintiff. Judge Wheeler vacates the two rulings noting: “Upon full consideration of the parties’ positions, the Court concludes that if the orders of the now-recused judge were allowed to stand, Plaintiff could one day wonder whether the outcome of the case was influenced by a judge who later recused herself from the case. Given the Federal Circuit’s strict application of disqualification requirements in Shell Oil, supra, Plaintiff’s counsel raises the specter of incurring the time and expense to pursue this case to completion, only to have the appellate court rule that the case must begin anew. Thus, the safest course is to vacate Judge Braden’s substantive orders because ‘justice must satisfy the appearance of justice.’ Liljeberg, 486 U.S. at 864. So that no questions remain about the appearance of Judge Braden’s partiality, as unlikely as that possibility seems, the Court chooses to start with a clean slate. Accordingly, Plaintiff’s motion to vacate is GRANTED. As the Court discussed with counsel at the close of oral argument, Plaintiff shall file forthwith its third amended complaint, after which Defendant shall respond to the complaint with an answer or motion as it deems appropriate.”

INNOVATIVE MANAGEMENT CONCEPTS, INC. v. THE UNITED STATES, COFC No. 14-100C, February 06, 2014. Army best-value procurement. Plaintiff requests that the COFC rule that a GAO decision lacked a rational basis and violated the APA and CICA. Plaintiff also requests that the court enjoin the Army from implementing the GAO Decision and reinstate Plaintiff as the awardee. Judge Braden dismiss the complaint noting
As a matter of law, the court is not bound by a GAO advisory opinion nor does it review GAO decisions for clear error. See Health Sys. Mktg. & Dev. Corp. v. United States, 26 Cl. Ct. 1322, 1325 (1992). Nor, in this case, does the court have a basis for determining that the GAO’s decision was not ‘rational,’ given the highly deferential standard in ‘best value’ procurements. See Banknote Corp. v. United States, 365 F.3d 1345, 1355 (Fed. Cir. 2004) (‘It is well established that contracting officers have a great deal of discretion in making contract award decisions, particularly when, as here, the contract is to be awarded to the bidder or bidders that will provide the agency with the best value.’). Of course, the court may have jurisdiction over a bid protest complaint that alleged the Source Selection Authority’s decision was unlawful or otherwise violated the Administrative Procedure Act. But, the February 4, 2014 Complaint fails to set forth a viable claim for relief under RCFC 12(b)(6) and insufficiently pleads facts necessary for the court to conclude it has subject matter jurisdiction. Moreover, the February 4, 2014 Complaint requested no viable relief in light of the fact that the new awardee has been on the job for two months and an injunction would irreparably injure essential technology support required at Fort Dix.”

AEY, Inc. v. THE UNITED STATES, COFC No. 10-733C, January 30, 2014. Plaintiff sues for payment of two invoices for ammunition delivered to the Army for use by Afghan troops and police. (see earlier decision upholding the default termination.) The government counterclaims that AEY is liable for forfeiture of its claims because the two invoices at issue pertain to a contract tainted by fraud in an unrelated, earlier aspect of contractual performance and that AEY additionally is liable for damages under the False Claims Act, 31 U.S.C. §[ 3729, for prior false invoices submitted pursuant to the contract. Plaintiff moves to dismiss the FCA count and permission to amend its reply to the counterclaims. Both parties move for summary judgment on the forfeiture counterclaim.
   Plaintiff argues that the Forfeiture Statute , 28 U.S.C. § 2514, only applies to claims that were fraudulent, not those invoices at issue here. Plaintiff also alleges that then government knew of the fraud when it accepted deliveries under other orders.
   The opinion by Judge Lettow discusses the forfeiture cases including the COFC decision in Little v. United States, 152 F. Supp. 84 (Ct. Cl. 1957), which is frequently cited in support of a broad interpretation of 28 U.S.C. § 2514 and the recent Federal Circuit decision in Kellogg Brown & Root Servs., Inc., v. United States, 728 F.3d 1348 (Fed. Cir. 2013) (‘KBR II”’), “which concluded that the Forfeiture Statute pertains to claims brought before the court, and does not also encompass contractual performance unrelated to those claims.” Judge Lettow notes “The issue of waiver, discussed below, provides the immediate basis for ruling on the parties’ cross-motions for summary judgment.”
   After discussing the forfeiture waiver cases he concludes “Due to the viability of AEY’s argument that the government waived its protections under the Forfeiture Statute in this case and the genuine issues of material fact regarding that issue, neither party’s motion for summary judgment can be granted. In the circumstances, the court need not now address AEY’s arguments that 28 U.S.C. § 2514 is superseded by the CDA’s anti-fraud provisions and that each delivery order constitutes a separate contract.” He denies plaintiff’s motion to dismiss the FCA counts, denies the motions for summary judgment and does allow plaintiff to amend its reply.

K-CON BUILDING SYSTEMS, INC. v. THE UNITED STATES, COFC No. 05-1054C, January 28, 2014. Coast Guard contract for the design and construction prefabricated buildings.See earlier decision on discovery sanctions.. Plaintiff argues that liquidated damages were wrongly assessed and should be remitted plus a constructive change entitled it to additional payment.. The government moves to dismiss for lack if jurisdiction a portion of the complaint and for summary judgment on the remaining claims. Judge Sweeney grants both of the government’s motions. She finds that the court lacks jurisdiction of the liquidated damages/time extension issue as the time extension issue was not presented to the CO until after the action was filed in the court, divesting the CO of her authority. She grants summary judgment on the constructive change claim finding that plaintiff did not give timely notice, as required by the Changes clause, that it considered the government’s action to be changes.

SRA INTERNATIONAL, INC. v. THE UNITED STATES, COFC No. 13-969 C, January 14, 2014. Post-award, FDIC task order for network infrastructure support. Plaintiff’s complaint seeks a finding that an OCI waiver issued by FIDC was contrary to law and invalid. The government moves to dismiss arguing that FASA precludes the court from considering a protest of a task order except under circumstances not present here. The government argues that the OCI waiver at issue here was made in connection with and in furtherance of the issuance of a task order. Plaintiff responds that the case challenges the waiver as contrary to law and regulations and not the issuance of the task order.
   Judge Braden notes that “The threshold issue in this case is whether SRA’s challenge to the Waiver is a protest ‘in connection with the issuance or proposed issuance of a task . . . order.’” She acknowledges that the Federal Circuit has treated the “in connection with” language of 28 U.S.C. § 1491(b)(1), broadly. She “reads the appellate court’s ‘sweeping’ characterization of the scope of 28 U.S.C. § 1491(b)(1) as dicta.” The court “is persuaded that ‘a careful analysis of the connectedness of each challenged procurement decision to the issuance or proposed issuance of a task order’ is required. BayFirst Solutions, 104 Fed. Cl. at 503; see also id. (‘[V]ariations in interpretation of the task order protest ban . . . arise in the complex and distinct fact patterns of individual bid protests.’).” Judge Braden notes that the waiver was issued a considerable time after the issuance of the task order and therefore was not in connection with the issuance of the task order. She determines “that the Waiver in this case was not made ‘in connection with’ the issuance of the Task Order, but was an independent discretionary agency action and therefore, 41 U.S.C. § 4106(f)(1) does not bar the court from adjudicating whether the Waiver otherwise violated APA standards.”
   Finally because of the government’s concern with the delay, Judge Braden requests “that the GAO issue an advisory opinion as to whether the Waiver violated APA standards and, if so, to adjudicate the merits of the August 26, 2013 protest no later than close of business, January 23, 2014, i.e., as if the Waiver had not issued.”

COASTAL ENVIRONMENTAL GROUP, INC. v. THE UNITED STATES, COFC No. 13-71C, January 6, 2014. Post-award bid protest, EPA contract for soil remediation. Plaintiff’s complaint argued that the awardee’s proposal was nonresponsive and that awardee was not responsible. EPA subsequently terminated the contract for convenience and cancelled the procurement. The government moves to dismiss as moot. Plaintiff moves to amend its complaint to challenge the decision to cancel the procurement. Judge Sweeney dismisses as moot the complaint alleging that the contract was wrongly awarded, but allows plaintiff to amend its complaint. Extensive and good discussion of mootness and amendment of a complaint caselaw

JEMAL’S LAZRIV WATER, LLC v. THE UNITED STATES, COFC No. 12-151C, December 19, 2013. Plaintiff seeks to recover $2,240,884.74, plus interest, under the tax adjustment clause in five leases by GSA which covered changes in taxes from the base year. The leases define “base year taxes to include ‘the real estate taxes for the first 12-month period of the lease term coincident with full assessment.’” The parties disagree on the meaning of the term “full assessment.” The parties cross move for summary judgment. Judge Wheeler finds that the plain meaning of the term in the contract term is not ambiguous and that plaintiff’s interpretation is unreasonable. He notes “Here, Plaintiff’s interpretation of the full assessment term renders the term meaningless. Any tax assessment by the OTR[DC government], according to Plaintiff’s definition, will qualify as a full assessment because the OTR always considers the improvements that still need to be made to a property when it calculates lease-up costs. Under such an interpretation, an assessment of an empty shell of a building with no tenants would meet the definition of full assessment. If the parties intended the base year to be any year before improvements had been made there would have been no need to add the full assessment term. Plaintiff’s interpretation of full assessment is unreasonable because it renders the term meaningless. See Medlin, 449 F.3d at 1201 (finding the government’s interpretation of a provision unreasonable because it would render portions of the contract meaningless). Thus, the full assessment term is unambiguous because only the Government’s interpretation of the term is reasonable.”
   Judge Wheeler finds for the government. Good discussion of similar tax law cases.

ECO TOUR ADVENTURES, INC. v. THE UNITED STATES COFC No. 13-532 C, December 12, 2013. Pre-award bid protest, National Park Service concession contracts. A rather unusual situation when the statute allowed a preference for incumbents which had submitted responsive proposals. The incumbent was given the opportunity to match the offerings of the highest rated offeror. Plaintiff, who had the highest rated offer, alleges arbitrary and capricious actions by the government including the findings that the proposals of the incumbents were responsive and disclosure of confidential information to the incumbents. Plaintiff seeks declaratory and injunctive relief and attorney and other costs.
   Judge Bush first notes that although the Federal Circuit has adopted the use of procurement in 28 USC 1491(b) as the definition of procurement in Title 41, it has not specifically addressed concession contracts. After examining the case law including COFC, GAO and IBCA decisions she concludes that concession contracts here are not procurements and therefore the court does not have jurisdiction under 28 USC 1491(b). Instead she finds jurisdiction unner 28 USC 1491(a). She funds that the incumbents’s proposals were not responsive and grants summary judgment for plaintiff. However as the court does not have declaratory or injunctive relief under 1491(a) plaintiff is only entitled to bid and proposal costs. The court encourages the partes to confer on the bid and proposal costs issue and also to address the issue of attorney fees and costs in advance of any necessity to litigate that issue

NEIE, Inc. v. THE UNITED STATES, COFC No. 13-164 C, December 06, 2013. Pre-award bid protest, EPA SDVOSB set-aside solicitation for to provide emergency and rapid response services for cleanup services for hazardous substances/wastes/contaminants/materials and petroleum products/oil for the EPA Region 2 in the states of New York and New Jersey. Plaintiff a SDVOSB service small business alleges that the government acted arbitrarily and capriciously and in bad faith when the agency determined the bidder to be non-responsible, proposed the bidder for debarment, and then cancelled the solicitation. The case hinges on the fact that veteran owner, James Coleson, of plaintiff died after plaintiff’s proposal was submitted. Plaintiff, to no avail, filed number of agency and GAO protests attempting to determine the status of the award. Another firm protested plaintiff’s status as a SDVOSB based on the death of James Colseson and other alleged irregularities and misrepresentations on the CCR and other databases. Based on these allegations the CO found plaintiff to be not responsible and recommended that SBA not issues a COC. Additionally the agency proposed a debarment of plaintiff.
   Although recognizing the discretion affordea a CO,in responsibility determinations Judge Braden notes

“Although the court is required to uphold an agency decision even if it is ‘less than ideal clarity,’ the court will not uphold ‘implausible’ decisions nor ‘supply a reasoned basis for the agency’s action that the agency itself has not given.’ State Farm, 463 U.S. at 43 (quoting Secs. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947)). In the Determination of Non-Responsibility, the CO characterized NEIE’s handling of James Coleson’s death as a vast conspiracy to mislead the EPA: ‘[i]n order to secure the possibility of a lucrative Government contract set-aside for a service-disabled veteran-owned small business, NEIE, Inc. knowingly and intentionally misled the Government by failing to advise EPA . . . that James Coleson had died.’ AR Tab 154 at 2356. This reasoning, however, was deeply flawed.
   Nothing in the Administrative Record nor anything cited to by the CO gives credence to the serious charge that NEIE ‘knowingly and intentionally misled’ anyone. Cf. Turner Constr. Co. v. United States, 94 Fed. Cl. 561, 573, 581 (2010) (rejecting a GAO decision as arbitrary and capricious where the only ‘hard fact’ supporting an appearance of impropriety was ‘mere ‘suspicion or innuendo.’’ (quoting CACI, 719 F.2d at 1581-82))); see also Overstreet Elec., 47 Fed. Cl. at 742 (‘[T]he arbitrary and capricious standard . . . . does not require this court to accept . . . bald assertions on a critical point that are not otherwise tied to the administrative record and that are at least in tension with, if not contradicted by, various aspects of that record.’). NEIE had no reason to mislead the EPA about the death of James Coleson because, as confirmed by the SBA in resolving the Guardian protest, the FAR only requires that a contractor meet the eligibility requirements for an SDVOSB at the time of offer. AR Tab 223 at 3115 (finding that NEIE knew that James Coleson’s death would not affect NEIE’s eligibility); AR Tab 138 at 2126 (resolving the Guardian protest); AR Tab 149A at 2192.4 (NEIE’s 2/6/12 response to the Guardian protest) (‘The allegations raised by . . . Guardian . . . regarding NEIE’s ownership ignore well-settled law establishing the date of submission of proposals as the proper date for determining an entity’s eligibility as an SDVO SBC.’); AR Tab 149 (forwarding NEIE’s 2/6/12 response to the CO on 5/11/12). NEIE unquestionably was controlled by James Coleson, a service-disabled veteran, at the time of its offer. The CO pointed to no evidence whatsoever suggesting that NEIE made any offers for SDVOSB set asides after James Coleson’s death and, in fact, the Administrative Record contains evidence to the contrary suggesting that NEIE took proactive steps to ensure compliance with relevant requirements by declining to bid on other SDVOSB set-asides. AR Tab 149A at 2192.11 (‘NEIE has not pursued any Government contracts with this CCR since the date of James Coleson’s death.’); AR Tab 149A at 2192.15 (NEIE Corporate Meeting Notes) (same); AR Tab 149A at 2192.17 (turning down a solicitation from the United States Air Force in March 2012, because ‘NEIE, Inc. cannot respond as an SDVO at this time.’); AR Tab 149A at 2192.19 (turning down an inquiry from the United States Navy in February 2012, because ‘right now we are only Small Business’ and not veteran-owned).”
Judge Braden denies plaintiff’s request for an injunction because the government has agreed to include plaintiff in any new solicitation. She does allow plaintiff to submits its request for bid and proposal costs.

COFFEE CONNECTIONS, INC. v. THE UNITED STATES, COFC No. 11-048 C, December 03, 2013. Concession contract between the Army and Air Force Exchange Service (“AAFES” for the operation of a deli/snack bar, at Fort Belvoir, Virginia. Plaintiff alleges damages for breach of contract and lost profits. The government moves to dismiss, or in the alternative, summary judgment. The contract provided three ways it could be terminate. First, the contract permitted an immediate termination of the contract by either party for breach. Second, the contract allowed either party to terminate with a thirty-day written notice. The contract also provided that any failure by the AAFES to enforce or require strict performance of the terms of the contract would not constitute a waiver of the relevant contract provision. The contract also contained a disputes clause which stated that the the contract was subject to the Contract Disputes Act. The contract was terminated for breach by the CO who cited appellant’s performance under the contract which had a long long history of health and safety violations and was determined to be a public health risk.
   Plaintiff’s complaint challenges the termination and includes a claim for damages. The government argues that the court lacks jurisdiction as appellant failed to submit a sum certain claim to the CO as requited by the disputes clause. Plaintiff counters that the disputes clause is unenforceable as it attempts to incorporate the CDA which does not apply to concession contracts. Judge Sweeney denies the motion to dismiss. She cites section (f) of the contract’s clause which provides in part

The contracting officer will mail or otherwise furnish a written decision in response to a contractor claim, within the time periods specified by law.
She notes
“The language ‘periods specified by law’ relates to the language of the CDA, thereby rendering this provision unworkable because the CDA does not apply to concession contracts. Consequently, the provision is meaningless and unenforceable. The ‘periods specified by law’ under the CDA are defined in 41 U.S.C. § 7103. This section guides a contracting officer with issuing decisions. Here, because the CDA does not apply, there are no time periods that dictate when the contracting officer must furnish a written decision. Thus, in the absence of controlling law, the contract mandates that the plaintiff must submit a claim to the contracting officer, but the contract does not mandate that the contracting officer issue any timely decision on that claim. The result is a contract disputes clause that is flawed and unworkable. Against this backdrop, that plaintiff did not file a claim with a sum certain is of no moment.”
However, Judge Sweeney does grant the government’s motion for summary relief finding ample evidence that appellant did commit the breaches.

COLONIAL PRESS INTERNATIONAL, INC. v. THE UNITED STATES, COFC 13-403C, December 03, 2013. Post-award bid protest of a GPO contract. Plaintiff contends that the finding by GPO that plaintiff was not responsible for this procurement because of late deliveries was arbitrary and capricious. Plaintiff also claims that GPO was required to refer its nonresponsibility finding to the SBA for consideration under the COC provisions. Judge Horn first spends several pages of her decision considering the statutes and case law on the jurisdictional question of protest brought against the GPO, a legislative agency, and concludes “that the United States Court of Federal Claims has jurisdiction over bid protests brought against GPO contract decisions under 28 U.S.C. § 1491(b)(1).”
   Regarding the COC issue she concludes “Therefore, although Colonial Press’ argument regarding ‘Federal agency’ as it relates to 15 U.S.C. § 637(b)(7) and the SBA/COC program is creative, and may even reflect a positive policy argument and suggestion for the future, the court finds that the statutory text of the Small Business Act, as it has been uniformly interpreted by the GAO, and the GPO, these past many years, weighs in favor of not mandating application of the SBA/COC program found in section 637(b)(7) to the GPO. Although Colonial Press argues that the SBA’s letter may be an indication of uncertainty regarding whether the SBA/COC program applies, the letter alone is not a sufficient ground for the court to find that 15 U.S.C. § 637(b)(7) applies to the GPO. Therefore, the Contracting Officer did not violate the SBA/COC program referral requirements of 15 U.S.C. § 637(b)(7) by not referring the GPO decision regarding plaintiff’s nonresponsibility determination on the 199-S competition to the SBA.”
    Finally, although expressing considerable doubt about the documentation of the CO’s nonresponsibility determination, she upholds it as within the broad discretion afforded to COs.

LYON SHIPYARD, INC. v. THE UNITED STATES, COFC No. 13-508C, November 27, 2013. Post-award bid protest contract, Navy contract.Plaintiff challenges the decision to award a contract for marine boatyard services to Marine Hydraulics International (MHI). Plaintiff claims that the Navy did not conduct meaningful discussions and failed to treat all offerors equally. Judge Allegra grants the government’s motion for judgment on the administrative record. Good discussion of the need or not to conduct further discussions. Here plaintiff was on notice that its price exceed the government’s estimate and it chose not to modify its final offer.

CHAPMAN LAW FIRM, LPA v. THE UNITED STATES, COFC No. 09-891C, November 25, 2013. HUD contract to provide management and marketing services for single-family homes. Plaintiff has claims for costs during two stop work orders caused by protests at the GAO, constructive changes and lost profits from the government’s bad faith in not exercising the first option year. The government counterclaims under the False Claims Act. The government also “argues that plaintiff’s claims should be barred, in whole or in part, under the doctrines of material breach of contract, unclean hands, offset, and failure to mitigate damages, as well as under the Special Plea in Fraud statute, 28 U.S.C. § 2514 (2006).” Judge Horn’s 79 page opinion describes the actions by the parties on the claims, the expenses claimed by plaintiff including lease payments on luxury vehicles and the permanent seat license for the Cleveland Browns sports team. Much of the opinion deals with the issue of termite inspection reports and whether or not the termite inspectors needed to be licensed by the state.
   Although highly critical of the discovery failure practices in the case Judge Horn denies the government’s motion for sanctions for spoliation. She concludes “As a result of plaintiff’s commission of fraud, plaintiff’s claims are forfeited under the Special Plea in Fraud statute. Plaintiff also is subject to a penalty under the False Claims Act in the amount of $44,000.00, for four specific, separate violations of the False Claims Act in the submission of four false claims.”

KLAMATH IRRIGATION DISTRICT, et al., Plaintiffs, v. THE UNITED STATES, Defendant, PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, Defendant-Intervenor, COFC Nos. 01-591L and 01-5910L through 01-29125L, November 22, 2013. 28 USC § 1500 case. Bureau of Reclamation water irrigation projects. Takings and contract claims. More than 10 years “after the original complaint, after discovery was completed, and several merits decisions and a final judgment were rendered by this court, as well as after an appeal, a referral of questions by the Federal Circuit to the Oregon Supreme Court, a decision by that state court, and a remand by the Federal Circuit. See Klamath Irr. Dist. v. United States, 635 F.3d 505 (Fed. Cir. 2011).
Now, for the first time, defendant argues that, under section 1500, a district court case filed in 2001 (and dismissed that same year) obliges this court to dismiss the complaint&.rdquo; Judge Allegra discusses the issues and case law in the 39 page opinion. He denies the government’s regarding the takings claim, grants it for the contract claims and dismisses those claims.

AQUATERRA CONTRACTING, INC., Plaintiffs, v. THE UNITED STATES, v. SHAVERS-WHITTLE CONSTRUCTION, INC. Defendant-Intervenor, COFC No. 13-587C, November 22, 2013. Interesting case. Pre-award bid protest, Corps of Engineers contract for canal and bridge work. Plaintiff alleges that the government does not intend to a HUBZone small business and if the government were to apply the HUBZone price preference it would be the lowest bidder. The solicitation did not contain FAR provision, 52.219-4, Notice of Price Evaluation Preference in the Invitation for Bids. The government argues that the protest is untimely as plaintiff did not challenge the omission prior to the close of bidding. The government also argues that plaintiff was not prejudiced because under 33 U.S.C. § 624(a)(2) the Corps is prevented from making an award to any contractor whose proposed price is 25% or more above the government’s estimate, where plaintiff’s bid exceeded that limit. Plaintiff counters that the HUBZone Act and § 624(a)(2) conflict irreconcilably, and that the conflict should be resolved in favor the HUBZone Act.
   Judge Firestone examines both statues in detail and finds that they are not in conflict. Since she finds that plaintiff was not eligible for award under 624(a)(2) it was not prejudiced and there is no need to address the timeliness issue. She grants judgment for the government and intervenor on the administrative record.

KWV, INCORPORATED, v. UNITED STATES, COFC No. 12-882C, November 19, 2013. EAJA case. See earlier decision on the merits. The court had earlier restored plaintiff’s eligibility as a VOSB. Plaintiff now seeks attorney fees under EAJA. The government opposes arguing that the government’s position was substantially justified. Judge Lettow finds for the government noting “This is an instance in which OSDBU’s actions on individual issues were woefully inadequate, but VA’s overall position had justification. In short, the government has carried its burden to show substantial justification, albeit barely. Because the government’s position was substantially justified, KWV does not meet all the requirements of EAJA to be awarded attorneys’ fees and expenses.”

YANKEE ATOMIC ELECTRIC COMPANY, Plaintiff, v. THE UNITED STATES, CONNECTICUT YANKEE ATOMIC POWER COMPANY, Plaintiff, v. THE UNITED STATES, MAINE YANKEE ATOMIC POWER COMPANY, Plaintiff, v. THE UNITED STATES, Defendant, COFC Nos. 07-876 C, 07-875 C, 07-877 C, November 14, 2013. Spent nuclear fuel cases first filed in 1998. Damages cases. Excellent discussion by Judge Merow of the damages issues forseeability and causation. He also allows lobbying costs incurred by plaintiffs as foreseeable in the nuclear industry. He awards a total $235,406,094 in damages to the three firms.

AMAZON WEB SERVICES, INC. v. THE UNITED STATES, and IBM U.S. FEDERAL, Defendant-Intervenor. COFC No. 13-506C,November 08, 2013. Post-award contract by the CIA for cloud computing services. Plaintiff objects to the government's decision to request another round of proposal revisions as corrective action recommended by the GAO. Judge Wheeler holds for plaintiff finding that the GAO decision was irrational primarily because it never addressed whether or not IBM was prejudiced, a necessary element of standing. Judge Wheeler concludes

“There is no such thing as a perfect procurement. Thus, a bid protestor must show prejudice, not mere error, for ‘[n]ot every error compels the rejection of an award.’ Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 1000 (Fed. Cir. 1996). Rather, it is ‘the significance of errors in the procurement process [that determines] whether the overturning of an award is appropriate,’ and it is the protestor who ‘bears the burden of proving error in the procurement process sufficient to justify relief.’ Id. IBM never met that burden, and the GAO neglected to address it. Even if IBM’s arguments regarding the price evaluation and modified solicitation requirement were persuasive, it remains implausible that there would be any effect on the outcome of the procurement. AWS’s offer was superior, and the outcome of the competition was not even close.
   Indeed, if there has been any prejudice in this process, it has been to AWS, for improper corrective action in the form of reopening competition is not harmless. The unfairness inherent in such an action is that the winner must resubmit a new proposal with the information from its original offer already disclosed. In effect, AWS would have to bid against its own winning proposal. This Court will not allow such an unjust result.
    For the reasons set forth above, Plaintiff’s motion for judgment on the administrative record is GRANTED. Defendant’s motion for judgment on the administrative record is DENIED, and Defendant-Intervenor’s motion for judgment on the administrative record is DENIED.

DYNCORP INTERNATIONAL LLC, Plaintiff, and KELLOGG, BROWN & ROOT SERVICES, INC. Plaintiff-Intervenor, THE UNITED STATES, Defendant, and PAE GOVERNMENT SERVICES, INC. Defendant-Intervenor, COFC No. 13-689C, November 05, 2013. Bid protest, override of the CICA stay in a Department of State contract for Baghdad Life Support Services (“BLiSS”). The services covered by the contract include, among other things, food procurement, food service, fuel, fire and first responder services, aircraft operations, security systems operation and maintenance, waste management, and sensitive equipment demilitarization. The BLiSS contract replaces at least five contracts, all performed in Iraq, and several inter-agency agreements. The government and intervenor argued against allowing KBR to intervene as a plaintiff as it did not file with the GAO within 10 calendar days, but instead it filing on Monday January 6th was the eleventh day. Judge Bruggink notes that the term calendar days is not in the statute and dates are covered by 31 U.S.C. § 3555(b) and under those provisions January 6th was tenth day. The D&F for the override cited the “best interests” Although the D&F also included urgent and compelling circumstances language Juge Bruggink found that overall the D&F supported the “best interests ” standard and was not arbtirary or capricious. Judgment on the administrative record was issued for the government and defendant intervenor.

MILES CONSTRUCTION, LLC v. THE UNITED STATES, COFC 12-597C, October 31, 2013. EAJA case. See underlying decision over turning the decision by the Department of Veterans Affairs (“VA”), Office of Small and Disadvantaged Business Utilization (“OSDBU”), decertifying plaintiff as a qualified service-disabled veteran-owned small business (“SDVOSB”) The only real issue here is whether or not the government’s position was substantially justified. Judge Lettow rejects the government’s argument. On the due process issue he notes

The government’s second argument, that it was substantially justified in the level of due process it provided Miles, is equally unavailing. First, the government argues that, according to the VA’s regulation governing agency protests, 48 C.F.R. § 819.307, it was not obligated to provide Miles with any notice regarding the protest. This argument ignores OSDBU’s legal obligations under Section 555 of the APA, which provides basic procedural due process rights to a party in an agency proceeding. See Miles, 108 Fed. Cl. at 804-05. OSDBU is an ‘agency’ as defined by the APA, see 5 U.S.C. § 551(1) (‘agency’ means each authority of the Government of the United States’), and OSDBU’s proceeding was an ‘adjudication,’ see 5 U.S.C. § 551(7) (‘adjudication’ means agency process for the formulation of an order’). The government elaborates that it was without guidance that OSDBU’s determinations are subject to Section 555 of the APA. Although no prior case specifically states this proposition, Subsection 555(b) of the APA is ‘universally understood to establish the right of an interested person to participate in an on-going agency proceeding.’ Block v. Securities & Exch. Comm’n, 50 F.3d 1078, 1085 (D.C. Cir. 1995). The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). In short, Miles was entitled to notice that OSDBU was expanding the agency-protest proceeding to encompass the ownership ground that was not raised by the protestor.

EDEN ISLE MARINA, INC. v. THE UNITED STATES, COFC No. 07-127 C, October 29, 2013. Judge Sweeney introduces the 163 page case as follows “Plaintiff Eden Isle Marina, Inc. operates a commercial marina located on a lake owned by the United States Corps of Engineers (‘Corps’). It contends that the Corps breached the commercial concession leases governing its operation of the marina by thwarting its repeated attempts to develop its leasehold as permitted by the express terms of the leases. It further contends that the Corps deprived it of its property without just compensation in violation of the Fifth Amendment of the United States Constitution. After hearing plaintiff’s case-in-chief at trial, it is crystal clear that the Corps-from its civilian leadership at headquarters through its personnel in the local office-breached its contracts and grievously wronged plaintiff. It is equally clear that one of plaintiff’s elected representatives actively worked against plaintiff to prevent it from developing its leasehold. Plaintiff stood no chance to enjoy the benefit of its contracts with the Corps in the face of the political forces aligned against it.
    However, despite plaintiff’s presentation of an extensive record documenting the deleterious treatment it suffered at the hands of the government, it has failed to establish that it is entitled to relief from this court. Most of plaintif’s claims are barred by the statute of limitations, and plaintiff has not established that it can recover on the merits of its remaining claims. Thus, the court must grant defendant’s motion for judgment on partial findings under Rule 52(c) of the Rules of the United States Court of Federal Claims (‘RCFC’), and dismiss plaintiff’s suit. Given the unavailability of judicial relief and the Corps’ reprehensible treatment of plaintiff, the court strongly urges plaintiff to pursue redress from the United States Congress.”

SUFI NETWORK SERVICES, INC. v. THE UNITED STATES, COFC No. 11-453C, October 16, 2013. Attorney fees and expenses case. See earlier January 17, 2012, June 18, 2012 and November 08, 2012 decisions. Judge Wheeler finds that attorney fees and expenses are reasonable and awards $697,702.50 in attorney fees and $25,486.81 in expenses. He denies plaintiff’s overhead and profit on the fees and expenses finding that plaintiff added little material value to the attorney fees.

GENERAL MOTORS CORPORATION v. THE UNITED STATES, COFC No. 00-40C, October 10, 2013. Courts synopsis: Original Cost Accounting Standards (“CAS”) 413.50(c)(12) segment closing adjustment; calculation of “actuarial liabilities” under CAS 413.50(c)(12); pension benefit increases added shortly prior to segment closing do not result in “inequitable” segment closing calculation.
Judge Firestone grants plaintiff’s motion for partial summary judgment concluding: “As explained above, CAS 413.50(c)(12) requires the use of the segment closing date for the segment closing adjustment unless it will result in an ‘inequitable calculation.’ Having rejected the government’s objections to GM’s use of the segment closing date of December 1, 1993, the court finds based on the plain language of CAS 413, the DCMC and DCAA audit and actuarial reports, the government’s concessions with regard to other plan amendments that were not fully funded, as well as the above-discussed changes in the revised CAS, that GM’s use of the December 1, 1993 sale date as the appropriate segment closing date is supported. Thus, GM is entitled to summary judgment regarding its use of the December 1, 1993 date for its calculation”

BROOKFIELD RELOCATION INC. v. THE UNITED STATES, COFC No. 13-592 C, October 4, 2013. Pre-award bid protest, FBI procurement for relocation services. Plaintiff seeks an injunction requiring government to take corrective action which the government has agreed to take. Judge Block dismisses the protest for lack of jurisdiction. Extensive discussion of the Article III “Cases” and “Controversies.” provisions and the application to the COFC, not an Article III court, and the ripeness doctrine. He concludes “In short, the court concludes that plaintiff’s protest fails to meet the standards for several justiciability doctrines. First, the parties are not truly ‘adverse.’ Second, whatever adversity may have once existed, it has been rendered ‘moot’ by defendant’s proposed corrective action. Third, to the extent any dispute exists between the parties, it is not ‘ripe’ for adjudication. Fourth, and finally, because plaintiff’s asserted injury has not come to fruition, plaintiff has no standing to maintain this protest.”

MORI ASSOCIATES, INC. v. THE UNITED STATES, COFC No. 13-671C, October 1, 2013. Pre-award bid protest NIH FSS procurement. Plaintiff is the incumbent but cannot compete under the proposed schedule. “Plaintiff contends that the selection of this procurement vehicle was made arbitrarily and in bad faith, and seeks a preliminary injunction against its use.” The government moves to dismiss for lack of jurisdiction arguing that a protest of a multiple award task order contract is barred by FASA. Judge Wolski discusses the issues and prior case and concludes “that plaintiff protests a procurement decision in connection with the proposed issuance of a task order --- a matter which is beyond our jurisdiction due to 41 U.S.C. § 4106(f)(1). Accordingly, the government’s motion to dismiss the case under RCFC 12(b)(1) is GRANTED, and plaintiff’s motion for a preliminary injunction is DENIED as MOOT.”

JACQUELINE R. SIMS, aka JRS STAFFING SERVICES v. THE UNITED STATES, COFC No. 13-494 C, September 30, 2013. Pre-award bid protest United States Bureau of Prisons (”BOP“) for educational services at the Federal Correctional Institution in Texarkana. The solicitation was for a fixed price indefinite delivery requirements contract for five positions to be priced as fully-burdened hourly rate for each educator. Plaintiff appearing pro se argues that the requirement to obtain security clearances before the issue of a task order was improper as requiring contract performance before a task order was issued. As amended the solicitation required

Contract Award: May 17, 2013
Security Clearance Documents Due: June 17, 2013
Effective Date of Contract Award:(Task order issued) July 17, 2013
Full Contract Performance: July 22, 2013, or five days after security clearance procedures have been completed, whichever is later.

Judge Bush states the “dispute here is whether certain start-up activities for the contract at FCI Texarkana are properly viewed as conditions of contract performance or actual contract performance.” She concludes that the security procedures are a condition of contract performance and not actual performance elements, she notes that the government has great discretion in fixed price contracts on how the risk is assigned. She agrees with plaintiff that the security requirements will be a cost to plaintiff and there is some risk that these costs may not be recovered. The court grants the government’s motion on the administrative record noting that plaintiff “contends that the allocation of risk in the solicitation regarding start-up tasks is improper, but has failed to muster legal argument which meets her burden to show that the solicitation is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”

SPERIENT CORPORATION, INC. v. THE UNITED STATES, COFC No. 13-185C, September 30, 2013. Plaintiff alleges breach of three cost plus fixed-fee military contracts awarded under Phase II of the Small Business Innovation Research (“SBIR”) Program. The government moves to dismiss arguing the the contracts are procurement contracts subject to the CDA and plaintiff did not file claims with the CO. Plaintiff argues that the CDA does not apply and points to the differences between contracts that provide for the delivery of services and those that require the performance of services. Judge Braden summarizes plaintiff’s position as follows:

Sperient suggests that the difference is that, the SBIR Phase II contracts that Sperient performed provided services that indirectly benefited the Military Departments, as well as the general public. In contrast, a procurement contract is one that only directly benefits the Government. Pl. Resp. 13. Research and development undertaken pursuant to SBIR Phase II contracts ‘concern ideas which have commercial potential ... not procurements for the direct benefit of the United States.’”
The court finds that the contracts at issue require the delivery of prototypes to the government and holds that the contracts are procurements citing Wesleyan Co., 454 F.3d at 1378 ((holding that “the exchange of property for money,” even in the context of prototype development, is a procurement). Judge Braden dismisses the action for lack of jurisdiction as no claim was filed with the CO as required by the CDA.

SIGMA CONSTRUCTION, INC., a/k/a SIGMA SERVICES, INC. v. THE UNITED STATES, COFC No. 12-865, September 30, 2013. GSA 8(a) sole source procurement for a roofing system. The government terminated the contract for convenience and requested plaintiff to submit its request for a REA with a termination settlement proposal. The CO and plaintiff agreed during a telephone conference on a settlement of $485,000. The CO informed plaintiff that the agreement would be formalized by a final supplemental modification to the contract. The CO subsequently informed plaintiff that the settlement required review by a GSA regional office and then that the agreement needed a third party audit. Plaintiff informed the CO that it consider the telephone agreement final and refused to negotiate further. Plaintiff argues that the agreement reached during the telephone conference was a valid oral contract which the government breached and that the government also breached the duty of good faith and fair dealing.
    The government moves to dismiss arguing that there was no valid oral contract as FAR 49.001, FAR 49.109-1 and FAR 43.103(a) require that a settlement agreement be in writing and as there was no valid contract there was no duty of good faith and fair dealing.
   Judge Braden grahts the government’s motion to dismiss. She discusses the elements of an oral contract but concludes “Therefore, the court has determined, as it must, that because the alleged oral settlement did not comply with FAR provisions 49.001 and 49.109-1 requiring a written modification for a settlement of a termination for convenience, and because the CO did not have authority to enter into an oral settlement, the December 12, 2012 Complaint fails to allege facts sufficient to establish the existence of a contractual obligation binding on the Government.”
   Regarding the breach of fair dealing she notes In addition, while it is true that the ‘[c]ovenant [of good faith and fair dealing] attaches to the underlying construction contract’ (Pl.’s Resp. 10 (citing Compl. ¶s 50-53)), the duty ‘cannot expand a party’s contractual duties beyond those in the express contract.’ Precision Pine, 596 F.3d at 830-31. Sigma has failed to identify any provision or term in the Contract requiring the GSA to pay $485,000, to waive a written contract modification, or settle the termination of the contract under the specific terms asserted in the December 12, 2012 Complaint. As discussed above, the FAR governs how the CO must proceed with the negotiation and settlement of a termination for convenience. Specifically, FAR 49.107(a) provides that the terminating CO must ‘refer each prime contractor settlement proposal of $100,000 or more to the appropriate audit agency for review and recommendations’ and ‘may submit settlement proposals of less than $100,000 to the audit agency.’ 48 C.F.R. § 49.107(a) (emphasis added). After the GSA’s internal review deemed Sigma’s settlement proposals unacceptable, the CO’s decision to submit this matter to a GSA auditor, even if inconsistent with prior statements regarding the necessity of review and even if the audit report would be ‘advisory only’ (FAR 49.107(d)), was well within the CO’s discretion. This action, like the CO’s rationale for reopening negotiations and the GSA’s requirement of a written contract modification to effectuate a valid settlement, in compliance with the FAR, does not amount to ‘specifically targeted’ actions by GSA ‘designed to reappropriate the benefits the other party expected to obtain from the transaction, thereby abrogating the government’s obligations under the contract.’ Precision Pine, 596 F.3d at 829-30. Therefore, the court has determined that the December 1, 2012 Complaint failed to plausibly state a claim for breach of the implied duty of good faith and fair dealing.”

BCPEABODY CONSTRUCTION SERVICES, INC., Plaintiff, v. UNITED STATES, Defendant, and EDENS CONSTRUCTION CO., INC., Defendant-Intervenor, COFC No. 13-378C, September 25, 2013. Post-award bid protest, Corps of Engineers competitive negotiated FAR Part 15 procurement with selection to be made to the lowest price technical acceptable firm. Plaintiff’s proposal was $1,000,000 less than that of the intervenor. Plaintiff and intervenor both proposed to use the same firm, Bauer, for cutoff wall construction. Plaintiff mistakenly submitted two copies of the same document to show Bauer’s experience and capability for two sub elements. The CO determined plaintiff’s proposal unacceptable because of the missing document and did not point out plaintiff’s mistake or request clarification. The CO evaluated intervenors proposal as acceptable as the CO knew that Bauer had the necessary experience under the two sub elements.
   Plaintiff “contends that the contracting officer erred by failing to seek clarification of a clerical mistake in its proposal and by unequally evaluating Bauer’s demonstrated experience as a subcontractor for BCPeabody compared to Edens. BCPeabody avers that these actions were unreasonable and fell outside the reconcilable bounds of the contracting officer’s discretion.”
    Judge Lettow discusses the differences between FAR Part 14 and FAR Part 15 regarding the CO’s responsibility in advising and allowing an offeror to correct errors. He notes the “provisions in Part 15 does not mean that those provisions are not susceptible to judicial enforcement.” He concludes “In short, BCPeabody has established that the contracting officer in this case abused her discretion in two ways. First, she impermissibly found Bauer, the projected subcontractor for both BCPeabody and Edens, to have acceptable experience insofar as Edens’s proposal was concerned but not for BCPeabody’s competing proposal. Second, she improperly refused to seek clarification from BCPeabody regarding the copying mistake in BCPeabody’s offer that related to Bauer’s experience in cutoff wall construction in which a sub-surface obstruction was encountered.” Judge Lettow enjoins the performance by intervenor and directs the government to return plaintiff to the competitive range and reevaluate the proposals.

SUPREME FOODSERVICE GMBH, Plaintiff, v. THE UNITED STATES, Defendant, and ANHAMFZCO, Defendant-Intervenor, COFC No. 13-245 C, September 18, 2013. Post-award bid protest, subsequent to two protests at the GAO, of a DLA best value contract to supply and deliver a full line of food and other subsistence products to the United States military and other federally-funded customers at 205 delivery points in Afghanistan. Plaintiff was the incumbent. As part of the responsibility determination of the awardee the CO had requested and received a Formal Preaward Survey from the Defense Contract Management Agency (DCMA), to verify several aspects of Anham’s proposal. Much of plaintiff’s protest relies on a J&A which was prepared for the sole-source bridge contract award to plaintiff. Plaintiff argues that the J&A found that only plaintiff was capable of meeting the time requirements and that the award was inconsistent with those findings. Plaintiff also alleges evaluation errors and the government’s failure to closely investigate awardee’s right to use certain warehouse facilites. Judge Merow grants the government’s motion for judgment n the administrative record. He notes the great discretion accorded to,the CO on responsibility issues. He also notes that plaintiff cites no law that a J&A in one procurement has any bearing on subsequent procurement.

ARCHURA LLC v. THE UNITED STATES, COFC 13-290C, September 17, 201. Post-award bid protest, DHS solicitation for IDIQ contracts. Plaintiff contends that it was improperly not considered for award as it failed to complete one line item for a brand name in a pricing matrix, while other awardees had this same issue. Plaintiff argues that the government should have requested clarification for the missing item, that it was treated unequally and the government gave too much weight to price. Judge Firestone distinguishes this case from the recent case ST NET, INC. v. THE UNITED STATES, and, WILDFLOWER INTERNATIONAL, LTD., Defendant-Intervenor. COFC No. 13-223C, August 13, 2013 where she found that the government could properly eliminate a firm for failing to complete a pricing matrix. Here the government treated offerors unequally as it made awards to firms that also had incomplete pricing matrices. However, she finds for the government on the administrative record finding that plaintiff could not show that it had substantial chance for award as plaintiff’s proposal was 29% higher than the highest-priced awardee and 73% higher than the average awardee’s price.

VLADIMIR KOGAN, MD v. THE UNITED STATES, COFC No. 11-148 C, August 27, 2013. Plaintiff brings this action for breach of an EEO settlement agreement with the VA, plaintiff also alleges that the VA breached an implied duty of good faith and fair dealing and requests punitive damages. Both parties move for summary judgment. Chief Judge Hewitt strikes the punitive damages count as beyond the court’s jurisdiction. The court also finds that because both parties interpretation of the settlement agreement are reasonable and therefore ambiguous the matter is not subject to summary judgment as extrinsic evidence will be required to resolve the parties’ intent. Regarding the bad faith issues she “finds that there are genuine issues of material fact as to whether the VA acted in bad faith when it changed plaintiff’s assignment to Internal Medicine/Sports Medicine. The court also finds that there are genuine issues of material fact as to the effect of this change on plaintiff’s personnel records and payroll. Accordingly, summary judgment as to these portions of plaintiff’s claim is precluded.”

THOMAS F. NEENAN, as Trustee of the Thomas F. Neenan, Sr. Revocable Trust, v. THE UNITED STATES, COFC No. 11-733C, August 22, 2013. Plaintiff alleges breach of an agreement for the U.S. Postal Service to lease plaintiff’s office building. Plaintiff had leased the building to the USPS for many years previously. The government moves to dismiss arguing that there was no contract. Plaintiff primarily relies on a phone conversation with a contract specialist that had sent him a draft lease. He changed the building ownership information and he testified that the specialist told him “‘[i]f that’s the only change, then it’s a deal.’”
   Judge Bruggink reviews the correspondence between the parties, the authority issues and grants the government’s motion to dismiss. He concludes “that none of the plaintiff’s offered evidence, even if fully credited, is sufficient to show an unambiguous offer by the Postal Service to be bound upon plaintiff’s signing of the draft lease. Accordingly, we grant the government’s motion for summary judgment.”

BAY COUNTY, FLORIDA, v. THE UNITED STATES, COFC No. 11-157C, August 14, 2013. Air Force contract to supply water and sewage services to Tyndall AFB. The sewage contract was modified by a bilateral modification which included the provision prescribed for use in contracts with unregulated utility service providers, FAR § 52.241-8. Judge Lettow notes “Whether the Water Contract was also so amended appears to be a mystery to the parties; no such amendment has been provided to the court.”
    Plaintiff sues for unpaid invoices in this partial breach of contract. The government argues that the services were of an unregulated entity which require that rate changes be negotiated. Judge Lettow describes the issues as follows:

“The dispute turns on (1) whether Bay County is an independent regulatory body and governed by FAR § 54.241-7, or a non-independent regulatory body as in FAR § 54.241-8; and (2) if Bay County’s utilities are independently regulated, whether the inclusion of FAR § 54.241-8 in the sewage contract is sufficient to negate or waive Bay County’s change-of-rate privileges as an independently regulated utility. The second issue need only be reached if the first issue is resolved in Bay County’s favor.”
Judge Lettow examines Florida law and concludes that plaintiff is an independent regulatory entity and that FAR § 54.241-7 is incorporated under the Christian Doctrine. He also notes “Correspondingly, FAR § 52.241-8 is inappropriate. Although deviations may be authorized by the agency head for individual contract actions, such a deviation must be documented and justified in the contract file. FAR § 1.403. No such documentation or justification is present here.” He refers the matter back to the parties for calculation of damages.

ST NET, INC. v. THE UNITED STATES, and, WILDFLOWER INTERNATIONAL, LTD., Defendant-Intervenor. COFC No. 13-223C, August 13, 2013. Post-award bid protest, DHS contract to provide a variety of commercially-available IT commodities, solutions, and value-added reseller services to support DHS programs. The solicitation cautioned offerors to make certain that their proposals were accurate and complete and that award would be made without discussions. Plaintiff challenges its disqualification for award for two mistakes it made in its pricing proposal. Plaintiff argues that the government violated FAR 1.602-2(b) and 15.30619 by not allowing plaintiff to cure the omitted information in its pricing proposal.
   The government challenges plaintiff’s standing arguing that plaintiff’s proposal was fundamentally flawed and not acceptable for award. Although calling it a close question, Judge Firestone denies the government’s motion noting “if DHS was obligated to allow ST Net an opportunity to address minor irregularities through clarifications and the information missing from ST Net’s proposal could not reasonably be characterized as ‘fundamental,’[sic fundamentally flawed?] ST Net’s highly-rated proposal should not have been eliminated from consideration and ST Net would have been in the zone of active consideration for award.”
   However, on the merits Judge Firestone finds that “DHS’s decision to exclude ST Net from consideration was not arbitrary, capricious, an abuse of discretion, or contrary to law.” She concludes “In sum, DHS’s decision to find ST Net’s proposal ‘fundamentally flawed’ without first seeking a clarification from ST Net and allowing it to correct and revise its proposal was lawful and reasonable. ST Net understood from the express terms of the solicitation that it would be bound by its proposal. The solicitation repeatedly informed offerors of the importance of providing complete and correct information in their proposals. Offerors were told that DHS would be evaluating them on ‘completeness,’ and that clarity and completeness in preparing their proposals was of the ‘utmost importance.’ Given the clear importance DHS placed on offerors carefully and properly providing the required information, the court cannot say that DHS was obligated under FAR 1.602-2(b) and 15.306(a) to seek clarifications where information was missing or wrong, or that DHS’s decision to forgo clarifications was arbitrary, capricious or an abuse of discretion.”

COHEN FINANCIAL SERVICES, Inc., v. THE UNITED STATES and MIR MITCHELL & COMPANY, LLP, Intervenor-Defendant. COFC No. 13-37, August 12, 2013. Bid protest, FDIC contract to provide business operations support services. On remand from an earlier decision by Judge Braden which ordered additional investigation or explanation regarding price realism analysis with respect to the procurement. Plaintiff now argues that FDIC violated its regulations in its Acquisition Procedures, Guidance, and Information(PGI) manual by failing to conduct and document a rational price realism analysis.
   Judge Braden grants the motions of the government and intervenor for judgment on the administrative record. She notes that although intervenor’s price was lower than that of plaintiff that “A low price, however, is not necessarily an unrealistic one. See PGI § 3.210(c)(2) (stating that even a very low price only requires the FDIC to ‘question[]’ an ‘offeror’s understanding of what is required’ but not necessarily reject the offer) . . . In this case, the FDIC took a belt-and-suspenders approach to its price realism analysis on remand: first, it determined that MMC’s price was not low enough to trigger skepticism about the price’s realism; and second, it determined that MMC’s offer provided sufficient evidence that MMC understood what the Solicitation required ” Judge Braden also notes “Cohen’s challenges to the Panel’s methodology fail, because the Solicitation and the FDIC regulations gave the Panel broad discretion in conducting price realism analysis, and the court applies a highly deferential standard of review in bid protest cases.”

AEROPLATE CORP., a California corporation v. THE UNITED STATES, COFC No. 12-374C, August 01, 2013. Veterans Affairs contract to renovate a medical center. Plaintiff’s bond was given by an individual surety who pledged some $8million in real estate holdings. The subcontractors filed a Miller Act suit against the surety for unpaid invoices. The surety responded with the affirmative defense that “The United States Government is the owner of the property and responsible for the payment.” Two subcontractors move to intervene to obtain and enforce an equitable lien on the funds held by the VA that are set aside for the project or owed to plaintiff. The subcontractors “contend that the VA did not properly scrutinize the issuer of the payment bond, that the payment bond did not conform to the relevant legal requirements, and that the VA continued to pay plaintiff despite having notice of plaintiff’s failure to pay its subcontractors.”
    Judge Sweeney discusses the motion under COFC Rule 24(a)(2) which generally favors intervention of a timely motion by parties that have a legally protected interest in the matter. Even though there considerable delay in filing the motion, Judge Sweeney finds that the motion was timely under the circumstances. Judge Sweeney denies the motion citing and following Am. Mar. Transp., Inc., 870 F.2d 1559 which held that “The interest of an applicant non-party having no privity claim in a contract, the terms of which are disputed by the parties to it, also has not been recognized as legally protectable, even when the outcome of the contract action is almost certain to have a significant and immediate economic impact on the applicant.”

LAERDAL MEDICAL CORP. v. THE UNITED STATES, & CAE HEALTHCARE, INC., Defendant-Intervenor, COFC No. 13-256 C, July 29, 2013. Post-award bid protest, Army contract for mannequins used to train combat medics. Plaintiff is the awardee and protests the corrective action to terminate its contract for convenience, after a protest to the GAO by intervenor. The Army advised the GAO that

“The Army has reviewed the solicitation, the Statement of Work, and the Proposal Evaluation Report in light of Protester’s supplemental protest grounds and has concluded that this solicitation should be cancelled because neither the Protester’s mannequin nor Laerdal’s mannequin satisfied the requirements of the solicitation and Statement of Work. The Army will re-evaluate its requirement and the availability of technology in existence to meet the requirement. It may or may not issue a new solicitation for mannequins at some point in the future as need and availability of technology occur.
Plaintiff argues two issues 1) that the capability demonstrations conducted by the government do not support the decision to take corrective action, and 2) that the government’s decision to take corrective action mistakenly relied on the belief that the solicitation required the offerors to meet each of forty-nine numbered requirements.
    Chief Judge Hewitt finds for the government on the administrative record. She finds that that it was not irrational to reach different conclusions in the second system capability demonstration noting “Plaintiff cites no case in which retesting of products by a procuring agency was found invalid because the second test yielded a different outcome than the first test. Instead, it appears reasonable to the court that, upon retesting the mannequins, the evaluators might observe features that had previously escaped their notice and succeed in using an airway adjunct they had been unable to employ during the previous system capability demonstration. Such differences appear to the court to reflect not random or arbitrary results but rather the results of additional observation of the mannequins and greater familiarity with their use.” She also rejects plaintiff’s argument that some of the evaluators were not qualified noting that “if ‘the expertise of the evaluators is unrelated to bad faith, conflict of interest, or bias, this Court will not question the composition of the technical evaluation team.’ Software Eng’g, 85 Fed. Cl. at 557. Because plaintiff has not alleged bad faith, a conflict of interest or bias on the part of the evaluators, the court will not question the qualifications of the government’s evaluators.”
   Regarding whether or not the 49 requirements must be met by the offeror’s the opinion concludes “that the government did not ‘fail[] to follow the terms of its own Solicitation’ by determining that award could not be made to offerors who did not meet each of the solicitation requirements. Cf. Hunt Bldg. Co., 61 Fed. Cl. at 273. Instead, because the solicitation required offerors to meet each of the forty-nine numbered requirements, the government’s decision to terminate Laerdal’s contract for convenience owing to its failure to meet all of the requirements was ‘reasonable under the circumstances.’ Cf. Sierra Nev. Corp., 107 Fed. Cl. at 750; Sheridan Corp., 95 Fed. Cl. at 151.”

QWEST GOVERNMENT SERVICES, INC., d/b/a/ CENTURYLINK QGS v. THE UNITED STATES and CGI FEDERAL, INC., Defendant-Intervenor, COFC No. 13-193 C, July 29, 2013. Pre-award bid protest, DOI IDIQ commercial items solicitation for cloud computing capabilities. Plaintiff alleges that the RFP lacks adequate information regarding agency requirements to permit offerors to compete intelligently and on an equal basis. The court finds for the government and intervenor on the administrative record. Judge Sweeney conducts a good review of the cases discussing the discretion that the government has in describing the requirements for an IDIQ contract. Although noting that arguments first raised in plaintiff’s reply brief are not properly before the court, she addresses and addresses and rejects those arguments.

THE RAVENS GROUP, INC. v. THE UNITED STATES, COFC No. 07-754C, July 26, 2013. Army Firm Fixed-Price and IDIQ contract for housing maintenance services. Plaintiff alleges breach by the Army primarily for not providing accurate historical data and faulty estimates of the number of service calls expected. The government orally told plaintiff before award the 50 service calls per month could be expected when it is undisputed that the actual figure was 90 or more calls per month. Plaintiff argues that this was a breach of the implied duty of good faith and fair dealing.
   Judge Firestone reviews the faulty estimate cases noting “While the risk of variance generally rests with the contractor, the government may nevertheless be liable for breach where the contractor can show by a preponderance of evidence that the government (1) failed to prepare an estimate in good faith, (2) prepared an estimate negligently, or (3) failed to use reasonable care. Rumsfeld v. Applied Cos., 325 F.3d 1328, 1335 (Fed. Cir. 2003); Clearwater Forest Indus. v. United States, 650 F.2d 233, 239 (Ct. Cl. 1981)” She denies the governments’s motion for summary judgment on this issue finding “that the plaintiff has presented evidence to show that it had no reason to know that the 50 call number was wholly fabricated.” and “there is disputed evidence regarding the availability of potentially relevant historical records from other installations.”
   Judge Firestone finds for the government that plaintiff cannot use a jury verdict to calculate its damages. Plaintiff had priced its fixed price service call work at $15,000 per month based on 50 calls per month and argues that damages are fairly estimated at $300 per service call for those over 50 per month. The opinion notes that “The plaintiff, therefore, must establish some means of demonstrating that the number of excess calls resulted in labor hours requiring compensation beyond the $15,000 provided for under the contract.” Judge Firestone notes “Also before the court are TRG’s financial statements and general ledgers for the entire period of contract performance. Id. 51-701, 718-1711, 1715-2704. Given these records and the contract’s provisions cited above, the court finds that the plaintiff fails to demonstrate that there is not a more reliable method for establishing damages. See Dawco, 930 F.2d at 880 (holding that ‘reasonable computation’ of damages from ‘actual figures’ is favored over the jury verdict method)”

EXCEL MANUFACTURING, LTD., v. THE UNITED STATES, and TENNIER INDUSTRIES, INC., Intervenor-Defendant, COFC No. 13-361 C, July 24, 2013. Post-award bid protest of a DLA contract for cold weather clothing. Plaintiff argues that the proposal showed on its face that awardee would not comply with the Limitation on Subcontracting clause(FAR) 52.219-14) contained in the solicitation. The relevant language of the clause provides

Supplies (other than procurement from a nonmanufacturer of such supplies). The concern shall perform work for at least 50 percent of the cost of manufacturing the supplies, not including the cost of materials.
Intervenor argues that plaintiff lacks standing as ineligible for award as it failed to supply information required by the clause Defense Logistics Agency Directive (DLAD) 52.209-9005, titled “Identification of Sources for All Components for Clothing/Textile Items” Judge Bush denies the standing argument noting that the clause is not a mandatory requirement as it provides that “Failure to furnish this information with the offer may result in rejection of the offer” She further notes “ ... argument that the component sources list was a mandatory or material solicitation requirement, so that failure to provide this list rendered Excel’s proposal ineligible for award, is not persuasive. The court has found no authority, and Tennier has cited none, which states that failure to provide the information requested in DLAD 52.209-9005 renders a bid ineligible for award.”
   Regarding the merits of plaintiff’s Limitation on Subcontracting clause argument, Judge Bush adopts the GAO position that
“[T]he total contract cost (including profit) less materials and subcontracting costs is to be compared with all subcontracting costs less the subcontractor’s materials costs. Mech. Equip. Co., B-292789.2
She notes that plaintiff’s calculations do not take into account profit or G&A, necessary cost elements, and therefore the court cannot rely on Excel’s conclusions as accurate. Judge Bush finds for the government and intervenor on the administrative record concluding “There was nothing on the face of Tennier’s proposal which would have led the agency to the conclusion that Tennier would not comply with the limitations on subcontracting clause. DLATS rationally considered Tennier’s proposal to be acceptable, and the award to Tennier survives this court’s review.”

GENERAL ELECTRIC COMPANY v. THE UNITED STATES, COFC No. 99-172C, July 23, 2013. Court’s synopsis: Original Cost Accounting Standards (“CAS”) segment closing adjustment obligation; CAS 413.50(c)(12); CAS 413.50(c)(5)(i) and (ii) asset allocation; calculation of Teledyne share; “measurable benefit” for future periods under DIRECTV Group, Inc. v. United States, 670 F.3d 1370 (Fed. Cir. 2012)
    Judge Firestone concludes “For the reasons discussed, the court GRANTS-IN-PART and DENIES-IN-PART GE’s motion for partial summary judgment, and GRANTS-IN-PART and DENIES-IN-PART the government’s cross-motion. The court DISMISSES the government’s counterclaim regarding the MAO segment. The court holds that (1) the (c)(5)(i) asset allocation method must begin at the creation of the segment; (2) disputed issues of fact remain as to whether GE’s 1952-starting asset allocation calculation under Section (c)(5)(i) complies with the CAS; (3) if the court determines that Section (c)(5)(ii) must be used in this case, the (c)(5)(ii) asset allocation must be made under the applicable CAS as of the date of the segment closing; (4) there are disputed issues of material fact as to whether the pre-1946 contributions should be included in the Teledyne denominator; (5) post-1988 employee contributions must be included in the Teledyne denominator; and finally (6) GE may not receive credit for future cost reductions not actually realized by the government. To the extent that cost reductions have been realized between the close of fact discovery and trial in this case, the court will reopen discovery for the limited purpose of determining those cost savings.
    Several issues identified in the briefs remain to be resolved at trial.”

GULF GROUP GENERAL ENTERPRISES CO. W.L.L. v. THE UNITED STATES, COFC Nos. 06-835C, 06-853C, 06-858C, 07-82C, July 17, 2013. This 199 page opinion by Judge Horn deals with four cases in involving supplies and services for an Army base in Kuwait. (Two of the witnesses were incarcerated for bribery at the time of the trial and the CO who awarded the contracts had committed suicide after an interview with the CID.) Three of the four contracts were terminated for convenience shortly after award. Plaintiff claims that the terminations were improper and done in bad faith. Plaintiff’s claims/settlement proposals were certified by the attorney for plaintiff and were for amounts that included option years which plaintiff argues would have been exercised except for the terminations. The government counterclaims under the False Claims Act, the fraud provisions of the CDA and the Special Plea in Fraud statute, 28 U.S.C. § 2514 (2000).
   Judge Horn holds for the government under the FCA issues finding that the claims were submitted in reckless disregard for the facts and awards statutory damages. She denies the other fraud allegations finding that the government failed to prove intent to defraud. She disallows the delay claim on the fourth contract under the Sovereign Acts doctrine.
   She notes “Although the court does not condone the manner in which Gulf Group submitted its claims to the contracting officer, defendant’s behavior in this case was equally problematic with regard to its termination of the latrine and dumpster contracts.
    Although the record reflects a number of purported, and shifting, justifications offered by defendant’s personnel for terminating Gulf Group’s latrine and dumpster contracts for convenience, none of the justifications presented to the court were reasonable or consistent with the government’s obligation to act in good faith. The government’s allegations with respect to the alleged security incident and Gulf Group’s performance under the latrine and dumpster contracts were without basis. The record before the court indicates that government personnel were simply motivated, as Col. Hess described, ‘to get Gulf Group off the bases,’ while at the same time contracting with Gulf Group for other services, including continuation of calls under the bottled water BPA.” Good discussion of the fraud issues.

MCAFEE, INC. v. THE UNITED STATES, COFC No. 13-198C, July 17, 2013. Pre-award bid protest of a brand name sole source procurement. Air Force award to strengthen its computer network security via a delivery order of a competitively awarded IDIQ contract. [The opinion presents an interesting discussion cyber-security technology.] Plaintiff alleges that the decision to standardize on a sole source solution violates CICA. The government contests jurisdiction arguing that court cannot review an in-scope modification of a pre-existing delivery order issued in accord with an IDIQ contract, and that McAfee lacks standing as an interested party. Judge Lettow denies the government’s motion noting that plaintiff does not challenge the task order, but the underlying decision of the Air Force to pursue a sole source solution.
    Judge Lettow finds for the plaintiff on the administrative record noting “Given that there were known, additional, responsible, multiple-source options available to the Air Force at the time the key decision was made, its decision to use a sole-source security system without competition does not accord with CICA and its counterpart for the Department of Defense, 10 U.S.C. § 3204.(sic should be 2304” Regarding plaintiff’s request for a injunctive relief, Judge Lettow notes that although plaintiff as succeeded on the merits, he finds that delay would damage national security interests and therefore denies injunctive relief. He concludes “For the foregoing reasons, McAfee’s motion for judgment on the administrative record is GRANTED. The government’s decision to procure and implement Palo Alto’s network security system as a sole-source without competition contravenes CICA, 41 U.S.C. § 3301, 10 U.S.C. § 2304(a)(1), and the FAR. The government’s motion to dismiss, or in the alternative, judgment on the administrative record is accordingly DENIED. Nonetheless, in light of the balancing of factors pertaining to the issuance of equitable relief, McAfee’s request that the court enjoin the Air Force from moving forward with its procurement of Palo Alto software is DENIED. Moreover, because McAfee submitted no bid in the procurement at issue, the court may not award bid preparation and proposal costs under 28 U.S.C. §1491(b)(2). In effect, this is a situation in which McAfee has demonstrated a violation by the Air Force of statutes and the FAR, but no viable remedy is at hand.”

THE McVEY COMPANY, INC. v. THE UNITED STATES and FORGENTUM, INC., Defendant-Intervenor, COFC No. 13-145 C, July 09, 2013. Post-award bid protest by incumbent for providing program-level help desk support for the Tier III triage and resolution functions TRICARE. Plaintiff argues the awardee had a COI that was not properly addressed or mitigated and evaluation errors. The government argues that COIs were not significant and were adequately addressed by the CO. Chief Judge Hewitt finds for the government and intervenor on the administrative record. She concludes

“Plaintiff has failed to demonstrate that the government erred in awarding the contract at issue to Forgentum. See supra Parts III.B.1.a (finding lack of error with respect to organizational conflict of interest evaluation), III.B.2 (finding lack of error with respect to mitigation plan evaluation), III.B.3 (finding lack of error with respect to equal treatment of offerors), III.B.4 (finding lack of error with respect to adherence to evaluation criteria); cf. Bannum, Inc., 404 F.3d at 1351 (stating that, to prevail in a bid protest, a plaintiff must first demonstrate error by showing that the agency acted in an arbitrary and capricious manner, without a rational basis or contrary to law). Therefore, plaintiff cannot establish prejudice. Cf. Alfa Laval, 175 F.3d at 1367 (stating that to prevail in a bid protest, a plaintiff must demonstrate both that an error occurred and that the error was prejudicial); Data Gen. Corp., 78 F.3d at 1562 (same); supra Parts III.B.1.b (finding that, even if plaintiff could establish error with respect to GSA’s pre-award conflict of interest evaluation, plaintiff could not establish prejudice because the GSA corrective action remedied any defects), III.B.3.b (stating that, even if GSA should have given McVey more credit for its technical merits, plaintiff would be unlikely to establish prejudice given the contracting officer’s discretion in a best value determination). Accordingly, plaintiff is not entitled to relief.”

MVS USA, INC., Plaintiff, v. UNITED STATES, Defendant, and NORTHROP GRUMMAN SYSTEMS CORP., Intervenor COFC No. 13-246C, July 2, 2013. Post-award bid protest of a task order under FSS contract holders for satellite communications services. An amendment to the RFQ for the task order required a facility clearance at the level of secret at the time of the award. Plaintiff was the low bidder but its proposal did not include the facility clearance and award was made to NGC who had the clearance and was the second low bidder. Plaintiff “alleges that GSA, acting as the lead agency for the securityclearance aspect of the procurement pursuant to an agreement with DISA, did not fairly consider MVS’s application for a clearance attendant to its proposal because GSA did not endeavor to process MVS’s application before the award of the task order.”
    The government moves to dismiss arguing that plaintiff lacks standing as it was not eligible for award. Judge Lettow denies the motion noting “In this instance, MVS submitted a DD Form 254 package on December 6, 2012, more than two months before final quotations for the RFQ were required to be submitted. .... The government did not begin work to process that request for a facility clearance until February 1, 2013. .... As such, MVS has demonstrated that, but for the government’s tardy actions with respect to the facility clearance, it had a substantial chance of receiving the award.”
   However, on the merits the court finds that plaintiff has not shown that “GSA or DISA, has committed a violation of FAR 8.405-2(c)(3)(iii). After examning the actions taken by the parties on the facility clearance issue Judge Lettow concludes “Under these circumstances, the court cannot say that MVS’s quote and attendant request for a facility security clearance did not receive fair consideration as required by FAR 8.405- 2(c)(3)(iii). While Mr. Carlson[GSA official] certainly did not act with alacrity, vigor, or timeliness, he provided a propinquent level of bureaucratic service and consideration. He did not actively ignore any indications that MVS’s request was urgent, and he provided MVS with appropriate action once he became aware of the exigency. In sum, MVS has not demonstrated that the government, acting through GSA or DISA, has committed a violation of FAR 8.405-2(c)(3)(iii).”

TRAILBOSS ENTERPRISES, INC. v. THE UNITED STATES, COFC No. 13-296C, June 18, 2013. Post-award bid protest by the awardee. Air Force aircraft services contract. Plaintiff seeks injunctive relief to enjoin the Air Force from compelling plaintiff to perform under the awarded contract. The government moves to dismiss for lack of jurisdiction. Judge Firestone dismisses the suit. She finds that plaintiff lacks standing for a bid protest as once it receives an award it is no longer an interested party. She also finds that the court has no jurisdiction under the CDA as plaintiff filed suit before obtaining a CO’s final decision'.

MIL-MAR CENTURY CORP. v. THE UNITED STATES OF AMERICA, & THE ENTWISTLE CO., Defendant-Intervenor, COFC No. 13-131 C, June 12, 2013. Post-award bid protest, Army firm fixed-price ID/IQ small business set-aside contract for designing and manufacturing Load Handling System Compatible Water Tank-Rack Systems (known as Hippos). This was the first competitive procurement for this requirement. Prior contracts had been awarded to plaintiff on a sole-source basis. Plaintiff “argues that ‘[t]he Agency improperly and unequally evaluated [Entwistle’s] technical proposal, conducted unequal discussions, . . . conducted an improper price realism analysis’ and conducted a flawed best value analysis.” In a 75 page opinion Chief Judge Hewitt finds for the government and intervenor on the administrative record.
    Judge Hewitt discusses all of plaintiff’s arguments in detail and finds that the government’s evaluations and the source selection best value decision were comprehensive and rationale. Her specific findings are noted in the index as follows:

Regarding the allegation that the government unequally evaluated the other offeror’s proposals the government “argues that even if plaintiff could establish that the Agency treated Entwistle more favorably than [ ], [ ] and [ ], plaintiff could not establish prejudice because none of plaintiff’s unequal treatment claims actually involve Mil-Mar.” Judge Hewitt notes “Plaintiff cites to no authority, and the court is aware of none, that supports plaintiff’s argument that a party not subject to the alleged unequal treatment claims can demonstrate prejudice. ... Although plaintiff may be ‘looking to make some new case[]law,’ ... , the court is not similarly inclined.

360TRAINING.COM, INC. v. THE UNITED STATES, COFC No. 12-197C, June 07, 3013. EAJA case, OSHA program. See earlier May 11, 2012 and August 03, 2012 cases. Judge Damich finds that the position of the government was substantially justified in litigating its motion to dismiss where it argued that OSHA program was not a procurement. Although the court denied the motion Judge Damich notes that this was a case of first impression and it was reasonable for the government to argue that the court look to the definition of procurement in the Federal Grant and Cooperative Agreement Act, 31 U.S.C. §§ 6301-6308 (2006). However Judge Damich finds that the government’s position on the merits of the OSHA evaluation process was not justified either at the agency or at the court. The court also finds “that 360 is entitled to an award of fees for its unsuccessful motion to supplement and its two motions for clarification, all of which related to the merits phase of the case. Although 360 did not obtain the relief sought in each of these motions, the Court does not believe they were frivolous. Instead, the hours invested in these motions were ‘reasonably expended on the litigation’ of the matter. The motions were filed in the pursuit of what was, ultimately, the precise result 360 sought. That 360’s attorneys didn’t bat 1.000 doesn’t mean that they lost.”

ADVANCED AMERICAN CONSTRUCTION, INC. v. THE UNITED STATES, COFC No. 12-694 C, June 05, 2013. Post and Pre-award protest. Corps of Engineers a competitive 8(a) procurement for the construction of a new barge moorage facility. Plaintiff, a large business, challenges the decision to set-aside the procurement for 8(a) firms and also argues that the award was improper as the awardee does not meet what plaintiff terms are special responsibility provisions in the solicitation. Before the closing date plaintiff had filed an agency protest of the set-aside provisions in the IFB. The agency denied the protest and plaintiff filed a protest at the GAO which was dismissed as untimely. The government includes in its argument that the protest be dismissed as untimely under Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007) as plaintiff waited until after award to file its suit. Judge Bush rejects the Blue & Gold argument noting that plaintiff had filed an agency protest before the closing date. Citing DGR Assocs., Inc. v. United States, 94 Fed. Cl. 189, 194 (2010), she notes that “a party may preserve its rights by filing a protest with the agency or GAO, instead of this court, before the closing date for bidding.”
   Judge Bush rejects the arguments of plaintiff that the Corps did not follow the proper procedures in selecting the procurement for an 8(a) set-aside noting the many interchanges between the Corps and SBA. Finally she explores in depth plaintiff’s responsibility arguments discussing both standard and special responsibility issues. She notes that the solicitation set responsibility standards that were almost identical to those contained in FAR 9.104-1. She notes that

“the experience requirements referenced by plaintiff are contained in a section of the IFB addressing the post-award submittal process for the contractor. The IFB explains that the contractor must obtain government approval for the drilled shaft and casing installation experience described above in accordance with the submittal procedures of the IFB. Those procedures, in turn, require the contractor to prepare a schedule of its submittals within fifteen calendar days of receiving a notice to proceed with the project. Id. at 241; see also id. at 168 (requiring the contractor to commence work within ten days of receiving a notice to proceed).

Thus, the experience requirements described above cannot be viewed as responsibility requirements—either general or special—because they are not required to be satisfied by the contractor until after the contract is awarded.”
She therefore finds for the government on the administrative record.

UNISYS CORPORATION v. THE UNITED STATES, COFC No. 05-281C, June 03, 2013. [Court’s synopsis: Original Cost Account Standards (“CAS”) segment closing adjustment obligation; CAS 413.50(c)(12); calculation of Teledyne share; Retrospective IPG contracts; government cost participation in fixed-price incentive contracts.] CAS segment closing costs case. After discussing the DIRECTV Group, Inc. v. United States, 670 F.3d 1370, 1376-79 (Fed. Cir. 2012) and Allegheny Teledyne Inc. v. United States, 316 F.3d 1366, 1370 (Fed. Cir. 2003) cases as applied to the facts here Judge Firestone finds for plaintiff. She concludes “the court holds that (1) the pre-1968 contributions to GAC 50 are properly included in the denominator of the Teledyne share, and (2) the government’s FPI participation rate in this case is 30%. Based on the parties’ calculations, the court concludes that there is now an approximately $14 million reduction in the government’s estimated SCAO. As a result, the amount owed to the government by Unisys is reduced to zero, even if all other issues are resolved in favor of the government.”

COMMAND MANAGEMENT SERVICES, Inc., v. THE UNITED STATES, and HOTEL CONTRACTING SERVICES, Inc., Defendant-Intervenor. COFC No. 12-463, May 31, 2013. Post-award bid protest of an Army Mission and Implementation Contracting Command Center’s (“MICC”) procurement of meals, lodging, and transportation services for applicants who process through the Military Entrance Processing Station (“MEPS”) in Phoenix, Arizona. Plaintiff alleges that the award was tainted by actual impropriety or the appearance of impropriety and that the evaluation of its proposal was unreasonable and inconsistent with the stated evaluation criteria. Plaintiff ’s impropriety allegation is based on alleged contacts between a former Army Command Sergeant Major, now an employee of the awardee, and the chairman of the SEB. Judge Braden finds for the government on the administrative record. She notes that

“Command had the burden of identifying ‘hard facts’ to support its allegations of a conflict of interest or bias on the part of MICC that gave HCS unequal access to information or an unfair competitive advantage in obtaining the contract award. The court has determined that Command failed to meet this burden. See PAI Corp. v. United States, 614 F.3d 1347, 1352-53 (Fed. Cir. 2010)). (‘To demonstrate that such a determination is arbitrary or capricious, a protester must identify ‘hard facts’; a mere inference or suspicion of an actual or apparent conflict is not enough.’); see also C.A.C.I., Inc.-Fed. v. United States, 719 F.2d 1567, 1581 (Fed. Cir. 1983) (holding that to demonstrate that a contract award is arbitrary or capricious on the basis of a ‘possibility and appearance of impropriety,’ a protester must identify ‘hard facts,’ not a mere inference based on ‘suspicion or innuendo’).”
Judge Braden also finds that the evaluations of plaintiff’s proposals were reasonable.

CREWZERS FIRE CREW TRANSPORT, INC., Plaintiff, v. THE UNITED STATES, COFC No. 11-607C, May 31, 2013. Plaintiff challenges the termination of a Forest Service BPA to supply heavy duty vehicles for disasters including wildfires. Planitiff alleges that:

“(1) the CO and other Forest Service personnel acted in bad faith in terminating Crewzers’ BPA ‘for cause’; (2) the CO, other Forest Service personnel, and other federal agency personnel interfered with Crewzers’ performance of the BPA with a specific intent to deprive Crewzers of its contractual rights; (3) the actions of the CO and other Forest Service personnel breached the covenant of good faith and fair dealing; (4) the CO’s decision to terminate Crewzers’ BPA ‘for cause’ was not ‘honestly rendered’ and therefore was arbitrary, capricious, or an abuse of discretion; and (5) Crewzers’ deviations from the BPA’s requirements, if any, were not material and did not give the Forest Service the right to discontinue Crewzers’ performance under the BPA. Am. Compl. ¶ 2. The Amended Complaint also requested declaratory relief and a declaration that Crewzers was entitled to reinstatement of the BPA and to recover contract damages, including expectation damages, for the remainder of the three-year term of the BPA.”
The government moves to dismiss for lack of jurisdiction arguing that the BPA was not a contract. Judge Braden grants the government’motion noting the similarity to a bid protest by plaintiff in "Crewzers Fire Crew Transport, Inc. v. United States, 98 Fed. Cl. 71, 76 (2011) [See an almost identical case involving a BPA for tents, CREWZERS FIRE CREW TRANSPORT, INC.,v. THE UNITED STATES, COFC No. 12-064C, May 31, 2013.

AMERICAN CONTRACTORS INDEMNITY COMPANY v. THE UNITED STATES, COFC No. 07-374 C, May 29, 2013. On remand from the Federal Circuit the issue here is “whether, in the context of Small Business Administration (“SBA“) regulations, plaintiff, a prior approval surety that is required to obtain prior written approval from the SBA before it agrees or acquiesces to increasing a bond amount by twenty-five percent or $50,000, agreed or acquiesced to a $240,000 increase of the bond it had provided to a small business before the SBA approved the increase.” A rather interesting case on the intricacies of complying with the SBA regulations for sureties. Judge Sweeney grants the government’s motion for summary judgment find that plaintiff agreed to increasing the bond amount before SBA approval. She aslo agrees with the government that the sham affidavit rule applied here noting

“Under this rule, an affidavit may be disregarded as a sham ‘when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact . . . [and that party attempts] thereafter [to] create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.’ [citations omitted] ‘If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.’ [citations omitted] (‘Under the sham affidavit doctrine, a party cannot create an issue of fact by supplying an affidavit contradicting his prior deposition testimony, without explaining the contradiction or attempting to resolve the disparity.’ (citations and internal quotations omitted)). As such, Mr. Lanak’s statement in his affidavit, which directly contradicts his previously given clear answer to an unambiguous question, is stricken under the sham affidavit doctrine.”

CHAMELEON INTEGRATED SERVICES, INC. v. UNITED STATES, and CSSS.net, Intervenor, COFC No. 13-144C, May 29, 2013. Post-award bid protest. Plaintiff challenges the award by the United States Department of Agriculture of a task order to intervenor under a pre-existing government-wide acquisition contract (“GWAC”), STARS II. The government moves to dismiss the protest for lack of jurisdiction arguing that the Federal Acquisition Streamlining Act (“FASA”) applies to task orders issued under STARS II and bars jurisdiction in this court. Plaintiff argues that the STARS II GWAC under which the award was issued is not a task order contract subject to FASA. That FASA applies only to “traditional task and delivery order contracts.” which involves a small number of contractors who then bid on subsequent orders. Plaintiff contends that such a scenario is fundamentally different from a situation, such as the STARS II GWAC here, in which hundreds of contractors obtain access to a master contract. Plaintiff points out that STARS II is issued to “over 580 companies,” and further states it is “open to any 8(a) company.” Judge Bruggink dismisses the case for lack of jurisdiction. He notes

“There is no support in statute, regulation, or case law for plaintiff’s attempt to bracket the reach of FASA.14 The definition of task order contract in section 4103 of FASA does not limit these contracts to procurements involving a “small handful of contractors.” See 41 U.S.C. § 4103(a) (defining task order contracts and containing no limits on the number of vendors). FAR Subpart 16.5 parrots this definition. See 48 C.F.R. § 16.501 (2012) (“Task order contract means a contract for services that does not procure or specify a firm quantity of services (other than a minimum or maximum quantity) and that provides for the issuance of orders for the performance of tasks during the period of the contract.”).

GWACs, moreover, are specifically embraced within FAR Subpart 16.5, which sets out rules for task order contracts. See 48 C.F.R. § 16.505(a)(8) (addressing interagency contracts, including GWACs); see also 48 C.F.R. § 2.101 (defining a GWAC as a “task-order or delivery-order contract for information technology established by one agency for Governmentwide use”). The assumption that follows is that the entirety of FAR 16.505 applies to GWACs. See John Cibinic, Jr., Ralph C. Nash, Jr., & Christopher R. Yukins, Formation of Government Contracts 1195 (4th ed. 2011) (stating that FAR 16.505 applies to orders under GWACs).”

DAVIS BOAT WORKS, INC., Plaintiff, v. THE UNITED STATES and BMT DESIGNERS & PLANNERS, INC., Defendant-Intervenor, COFC No. 13-58C, May 28, 2013. Post-award bid protest, Coast Guard procurement for inspection, maintenance, repair, and storage of a fleet of cutter boats. Plaintiff argues that the government did not evaluate proposals in accordance with the solicitation’s evaluation criteria, and did not treat all offerors equally. Judge Wheeler finds for the government on the administrative record concluding that plaintiff has not proven any of its allegations except for a minor error in the evaluation an employee of awardee which was not prejudicial to plaintiff. Regarding the allegation of plaintiff that the government lowered the evaluation scores in an earlier protest as a reprisal against the protestor, Judge Wheeler considers this to be an allegation of bad faith and notes

“even assuming that Davis was substantially downgraded in the reevaluation of proposals (an assertion the USCG contests), the Court finds this bare fact to fall far short of a showing of bad faith. As the Government notes, ‘[a]n agency is afforded the discretion to change its mind during the course of an evaluation.’ Gov’t Mem. at 12 (citing G4S Tech. CW LLC v. United States, --- Fed. Cl. ---, 2013 WL 935890, at 13 (Fed. Cl. Mar. 12, 2013)). Indeed, the Court fails to understand what purpose a reevaluation would serve if the technical evaluation team could not change its mind. The Court will not infer bad faith from the fact that Davis received minor downgrades in certain categories during the second evaluation. Davis’s allegations lack supporting evidence, and are without merit.”

CADDELL CONSTRUCTION CO., INC., Plaintiff, v. UNITED STATES, Defendant, DESBUILD INCORPORATED-REC INTERNATIONAL JOINT VENTURE, Defendant- Intervenor, COFC No. 13-20C, May 22, 2013. Post-award bid protest for a Department of State contract to construct a new annex building addition at the US Embassy in Moscow. The procurement consisted of two phases. Phase I was to determine qualified offerors and Phase II was a best-value phase where technical/management was rated significantly more than price. Phase I also indicated that Section 11 of the Foreign Service Buildings Act of 1926, codified at 22 U.S.C. § 302 (Percy Amendment), applied to the project and provided for a ten per cent price reduction factor for US firms under certain conditions. The government first found that intervenor(awardee) was not qualified under Phase I because it failed under Technical Project Experience and Past Performance factor. It also found that intervenor did not initially qualify for the price preference of the Percy Amendment. After intervenor questioned these finding the government reversed both determinations without an explanation for its reversal. At the conclusion of Phase II intervenor was awarded the contract as offering the best value to the government. Although its price with Percy factor was somewhat lower than plaintiff’s the record was not clear if its technical evaluation was equal to or slightly lower than plaintiff’s. The Source Section Official Authority(SSA) checked and initialed an “Approved” block on the recommendation for award to intervenor prepared by the contract specialist. The recommendation for award indicated that it was best-value trade-off recommendation. The SSA provided no discussion or other record of his decision. Plaintiff seeks permanent injunctive relief and bid and proposal preparation costs.
   In a 91 page opinion Judge Horn finds for plaintiff on the administrative record and issues a permanent injunction enjoining intervenor’s performance of the contract. While discussing at great length the APA standards and the discretion accorded to the CO and to the agency’s interpretation of the Percy Amendment she concludes that the lack of anything in record supporting the government’s reversals and the total absence of the rationale of SSA’s selection fails to show that the government’s decisions were rational. She also notes that plaintiff’s “ability to receive a fair evaluation by the agency was compromised by the careless and inconsistent evaluation process.”

BRIAN CHARLES VAETH v. THE UNITED STATES, COFC No. 12-841 C, May 15, 2013. Plaintiff seeks injunctive and damages and contends that his submissions to DOE for alternative energy projects to obtain government funding for a solar energy panel design endeavor were unlawfully rejected and/or discouraged. He alleges violation of CICA, unlawful applicant selection and violation of the Sherman Act and Federal Trade Commission regulations. The government moves to dismiss for lack of constitutional standing. Judge Damich dismiss the case noting

“[T]he irreducible constitutional minimum of standing contains three elements’: injury in fact, causation, and redressability.’ Hoopa, 597 F.3d at 1283 (quoting Lujan, 504 U.S. at 560-61). These requirements foreclose ‘the conversion of courts of the United States into judicial versions of college debating forums’ or ‘publicly funded forums for the ventilation of public grievances.’ Valley Forge, 454 U.S. at 473. Accordingly, a plaintiff must show ‘that he personally has suffered some actual or threatened injury as a result of the putative illegal conduct of the defendant’ Id. at 472. An ‘abstract’ injury does not suffice to establish standing. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).
It is evident that Plaintiff never applied for a loan guarantee or grant under DOE’s SunShot Initiative. The declarations that Defendant has filed attesting that Mr. Vaeth never filed any application under that program have gone unchallenged by Plaintiff. Defendant has established the same with respect to the Section 1603 program of the Department of the Treasury.”

BEECHCRAFT DEFENSE COMPANY, LLC, Plaintiff, v. THE UNITED STATES, Defendant, and SIERRA NEVADA CORPORATION, Defendant-Intervenor, COFC No. 13-202C, May 10, 2013. Air Force contract for acquisition of light air support (“LAS”) aircraft to be provided to the Afghan Air Force. Plaintiff challenges the decision of the the Air Force to override the stay in performance while a protest is pending at the GAO. The Air Force D&F states that the override is “in the best interests of the United States” and that “unusual and compelling circumstances that significantly affect the national security interests of the United States and its coalition partners will not permit waiting for a GAO decision.”
   Judge George Miller reviews the override decision noting: “When reviewing agency decisions to override a CICA stay of performance, courts consider: (1) ‘whether significant adverse consequences will necessarily occur if the stay is not overridden’; (2) ‘whether reasonable alternatives to the override exist that would adequately address the circumstances presented’; (3) ‘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’; and (4) ‘the impact of the override on competition and integrity of the procurement system.’ Reilly’s Wholesale Produce v. United States, 73 Fed. Cl. 705, 711 (2006);” He aslo notes PMTech, Inc. v. United States, 95 Fed. Cl. 330, 345 (2010) “(cautioning against ‘over-zealously appl[ying] the Reilly’ Wholesale factors to a CICA stay override decision, [as] such a review could exceed the narrow, highly deferential, ‘no rational basis’ standard of review,’ and noting that ‘[t]he court’s focus should be on whether the CICA stay override decision was rational and whether the agency considered relevant factors, not on whether the agency conformed its analysis to [the specific factors set forth in Reilly’s Wholesale].‘).”
   Judge Miller reviews the override decision and plaintiff’s arguments and rules for the government on the administrative record finding that the decision considered of the the relevant issues and was rational.

CHEVRON U.S.A., INC. v. THE UNITED STATES, COFC No. 04-1365C, May 08, 2013. Judge Braden describes the case as follows:

This case arises from a commercial dispute between Chevron U.S.A., Inc. (‘Chevron’) and the Department of Energy (‘DOE’) about the finalization of their respective equity interests in oil and gas deposits, located in the Elk Hills Reserve of California, worth approximately $37.3 billion. To accomplish equity finalization, Congress enacted a law that required DOE to finalize equity by an ‘independent petroleum engineer’ that was ‘mutually acceptable’ to Chevron and DOE. See National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, § 3412 (a), (b), 110 Stat. 186, 631-32 (‘the 1996 NDA Act’). Accordingly, on July 8, 1996, DOE entered into a contract with an Equity Independent Petroleum Engineer (‘Equity IPE’). On May 19, 1997, DOE entered into an Equity Process Agreement with Chevron. The purpose of both of these agreements was to ensure that, despite past disputes about how equity finalization was conducted, in the future, the process would be impartial, unbiased, and transparent. That did not happen.

The court has determined that DOE repeatedly and materially violated the May 19, 1997 Equity Process Agreement with Chevron. In addition, DOE repeatedly and materially violated a separate July 8, 1996 contract with the Equity IPE, to which Chevron was the direct and intended third party beneficiary. As a result, DOE is liable to Chevron for damages in an amount to be determined.”

Judge Braden rejects the government’s argument that the court lacks jurisdiction as the Equity Process Agreement is not money mandating citing Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338 (Fed. Cir. 2008) . She notes that “Subsequently, the United States Court of Appeals for the Federal Circuit clarified that Rick’s Mushroom did not alter the general rule that in the area of government contracts, as with private agreements, there is a presumption in the civil context that a damages remedy will be available upon the breach of an agreement. Indeed, as a plurality of the [United States] Supreme Court noted in United States v. Winstar Corp., 518 U.S. 839, 116 S. Ct. 2432, 135 L. Ed. 2d 964 (1996), ‘damages are always the default remedy for breach of contract.’ ” After reviewing Rick’s and subsequent cases and the Equity Process Agreement Judge Braden “determined that the Equity Process Agreement is moneymandating and that Rick’s Mushroom Service does not bar the court from adjudicating the claims alleged in the August 20, 2004 Complaint, as amended. The Government’s September 27, 2012 Renewed Motion To Dismiss therefore is denied.” The court finds that the goernment repeatedly reached the Equity Process Agreement and allows certain reliance damages to plaintiff.

Finally after much discussion of bad faith discovery abuses by the government, incuding a trip to the Federal Circuit and a remand, Judge Braden determines “that the appropriate sanction is for the Government to reimburse Chevron for 42% of the legal fees expended from February 16, 2007, the date that the Government produced its ‘Master Log’ of privileged documents to March 5, 2009, the date the United States Court of Appeals for the Federal Circuit filed its order on the Government’s Mandamus Petition.”

KWV, INCORPORATED v. THE UNITED STATES, COFC No. 12-882C, May 09, 2013. Pre-award bid protest, VA procurement. Plaintiff, a Rhode Island close corporation, challenges the cancellation of its status as a VOSB. See earlier decision granting a temporary and preliminary injunctions restoring plaintiff’s VOSB status. VA’s Center for Veterans Enterprise (“CVE”) had qualified plaintiff as a VOSB after an investigation and a site visit which included interviews of plaintiff’s principle, James Maron, and others. As a result of a protest of an award to plaintiff VA’s Office of Small and Disadvantaged Business Utilization (“OSDBU”) found that plaintiff did not qualify as VSOB. OSDBU conducted its review from documents and did not conduct a site visit or interviews of Mr. Moran or others. OSDBU concluded that Mr. Maran did not exercise day-today control of plaintiff primarily as Mr. Maran resided in Florida for more than half of the year and occupied a conominium when he was in Rhode Island. Judge Lettow finds for plaintiff on the administrative record and sets aside the ODBSU finding that plaintiff was not qualified as a VOSB. Judge Lettow discounts OSDBU reliance on residency which is not included in the VA regulations and its failrue to consider the arguments that Mr. Moran was in day-to day control though telephone, email and other electronic means of communication. He finds “that OSDBU’s determination disqualifying KWV was arbitrary and capricious, and not in accordance with VA’s regulations.” After reviewing Rick’s and subsequent cases and the Equity Process Agreement Judge Braden “determined that the Equity Process Agreement is moneymandating and that Rick’s Mushroom Service does not bar the court from adjudicating the claims alleged in the August 20, 2004 Complaint, as amended. The Government’s September 27, 2012 Renewed Motion To Dismiss therefore is denied.”

SERVICE DISABLED VETERAN OWNED SMALL BUSINESS NETWORK, INC. .v THE UNITED STATES, COFC No. 12-224, May 06, 2013. Plaintiff is non-profit organization representing the interest of veterans. It filed an action in a District court in California seeking “both declaratory and injunctive relief against the VA under the Administrative Procedures Act (‘APA’) §§ 702-706. 5 U.S.C. §§702-706; Specifically, they requested the court declare that the VA’s procurement process was in violation of the Act due to its failure to perform market research and direct the VA to perform such research in future procurement processes ” The district court “was concerned that the Network might be an interested party through associational standing and, thus, subject to this court’s jurisdiction” and transferred the case to the COFC. The government moves to dismiss arguing that there is no proposed procurement and that plaintiff is not an interested party. Plaintiff agrees. Judge Block characterizes the case as “‘much ado about nothing.’ William Shakespeare, Mr. William Shakespeares Comedies, Histories, & Tragedies 101 (1623). To be sure, the parties disagree on numerous issues. But these disagreements have nothing to do with the real issue now facing the court -- this court’s jurisdiction. Because both parties agree that no jurisdiction exists, and because it appears that they are right, any other issues may not be considered.” Judge Block discusses the standing requirement and dismiss the action.

CGS ADMINISTRATORS, LLC, and PALMETTO GBA, LLC, Plaintiffs, v. THE UNITED STATES, and NORIDIAN ADMINISTRATIVE SERVICES, LLC, Intervenor, COFC Nos. 13-87 C & 13-91 C, May 06, 2013. Post-award bid protest for HHS contract for claims benefit administration services in support of Medicare Part A and Part B claims. Plaintiffs challenge the evaluation for their proposals and the evaluation for selected awardee, intervenor. Judge Bush finds for the government and intervenor on the administrative record rejecting the arguements of plaintiffs and finds that the evaluation and best value decision were rational. She notes that the “source selection memorandum (SSM) is extremely thorough and well-reasoned; indeed, the detailed analysis contained in this document is more coherent and comprehensive than the analyses that this court typically encounters in source selection documents.”

INSIGHT SYSTEMS CORP., and CENTERSCOPE TECHNOLOGIES, INC. v. THE UNITED STATES, COFC Nos. 12-863C and 12-883C, May 06, 2013. Pre-award bid protest. USAID requested quotes for a task order under GSA’s MOIBIS contract. The solicitation allowed submission by email with a closing time of 5:00 p.m. At 3:38 p.m. Insight submitted its quote which was received by an USAD server at 3:41 p.m., but it not delivered to the CO until 5:18m p.m. Centerscope submitted its quote at 4:39 p.m., but it was not delivered to the CO until 5:15 p.m. USAID informed both firms that their quotes would not be considered. Both plaintiffs argue that their quotes should have been accepted under the government control exception of FAR § 52.212-1(f)(2)(i).
    Judge Allegra notes at the start of the opinion

These cases somewhat painfully illustrate the thorny issues that can arise when the outmoded provisions in the Federal Acquisition Regulations (FAR) governing the delivery of electronic proposals—which date back to the last century— are applied to modern computer technology. As this deficiency is well-documented, and because, notwithstanding it, Federal agencies continue, in the name of electronic commerce, to exhort offerors to submit their proposals electronically, one might think that those same agencies would be hesitant to construe the FAR in a way that springs technological traps on their contracting partners—but, then again, perhaps not.
On page two of the opinion Judge Allegra summarizes the case as follows
In this case, Insight Systems Corp. (Insight) and CenterScope Technologies, Inc. (CenterScope) both electronically submitted quotations in response to a request for quotations issued by the United States Agency for International Development (USAID). Unfortunately, those electronic communications were sent when one or more of the internal servers that USAID’s contractors use in processing the agency’s electronic mail apparently were malfunctioning. Although the emails containing the proposals were received and accepted by the initial server in USAID’s mail system before the submission deadline, they were not forwarded on to the next server in the mail delivery system because of an internal processing error. The contracting officer rejected the quotations as untimely because they were not received in her electronic mailbox before the deadline. Arguing that ‘late is late,’ defendant claims that it is irrelevant that the delays here occurred as a result of the malfunction of government computers. At issue is whether a different view is reflected in FAR § 52.212-1(f)(2)(i)(B), which provides a ‘Government Control’ exception to the late-filing rule that plaintiffs claim applies here. Although defendant argues that this exception only covers paper filings, the court, for a host of reasons, disagrees. Because it finds that the exception should have been applied here, the court concludes that USAID’s refusal to accept plaintiffs’ proposals was arbitrary, capricious, and contrary to law. As such, the court GRANTS plaintiffs’ motions for judgment on the administrative record and DENIES defendant’s cross-motion for judgment on the administrative record. An appropriate injunction is entered.
Judge Allegra notes that the government “approaches questions involving the timeliness of an electronic submission under FAR § 52.212-1(f)(1) with the zeal of a pedantic schoolmaster awaiting a term paper.” He discusses the relevant FAR provisions in detail and rejects all of the government’s arguments and finds for plaintiffs on the administrative record.

QUEST DIAGNOSTICS, INC., v. THE UNITED STATES, and LABORATORY CORPORATION OF AMERICA, Intervenor, COFC No. 12-907C, May 01, 2013. Bid protest, Army contract for laboratory testing services. Plaintiff was the incumbent. Plaintiff had two prior protests to the GAO for which the Army took corrective action. Plaintiff challenges many aspects of the evaluation and the best value decision. Plaintiff argues that the Army improperly considered intervenor’s revised technical proposal which went beyond the price issues which were the subject of the corrective action. Judge Bruggink rejects this argument noting that unless limited by the government that an offeror is free to revise any aspect of is proposal. He notes “GAO’s recommendation in this case states correctly, we believe, the controlling legal principle: ‘[u]nless an agency restricts the scope of the revisions offerors may make to their proposals in responding to solicitation amendments issued by the agency as part of corrective action, offerors may revise any aspect of their proposals, including those that were not the subject of the amendment(s).’” Judge Bruggink finds for the government and intervenor on the administrative record finding that the evaluation and best value decision were rational.

new ULYSSES, INC. v. THE UNITED STATES, COFC No. 06-436C, April 30, 2013. Plaintiff challenges the cancellation of two purchase orders and seeks reinstatement or full payment. The government counterclaims under the False Claims Act, Forfeiture of Fraudulent Claims Act, and fraud provision of the CDA. The disputes revolve around the issue of whether plainitff was an approved source for the “112” part when it had earlier supplied the “100” part which was an item containing the 112 part. Judge Williams summarizes the case as follows:

The Court finds that the Government legally canceled the First Purchase Order because Plaintiff admittedly was manufacturing the part itself and not providing the exact part specified in Plaintiff’s response to the Request for Quotation (“RFQ”) and the resultant purchase order -- a Raytheon Technical Services Corporation (“Raytheon”) part. The Second Purchase Order is a different matter. This purchase order described the item to be supplied as a part manufactured by Frequency Selective Networks (“Frequency”) even though neither the RFQ nor Plaintiff’s quote had mentioned the Frequency part. When Plaintiff advised the Government that it would be supplying its own part, not the Frequency part, the Government canceled the Second Purchase Order. Plaintiff claimed it had completed 80 to 85% of the order and challenged the cancellation, seeking termination for convenience damages. Because “the contractor did not contribute to the mistake resulting in the award and was not on direct notice before award that the procedures being followed were wrong,” the contract should be terminated for the convenience of the Government. United States v. Amdahl, 786 F.2d 387, 395 (Fed. Cir. 1986). Defendant’s counterclaims fail for legal insufficiency and lack of proof.
Regarding the government’s counterclaims for fraud Judge Williams examines plaintiff’s argument of prior government knowledge of the alleged falsity. She notes that the Federal Circuit has not addressed the government knowledge defense, but that several circuits have. Other circuits have noted that “Under the Government knowledge defense, prior Government knowledge of an allegedly false claim may negate the FCA’s scienter requirement.” Judge Williams concludes the government knowledge issue
“Ulysses candidly advised the Government of its position that it believed it was an approved source, capable of manufacturing the part itself and did not attempt to deceive or mislead the Government in representing its status. The Government knew that Ulysses had not gone through the Source Approval Request process because Ulysses told it so. Further, Ulysses persisted in arguing that it should not have had to undergo this process because it had already manufactured the 112 Part for the Government as a component of a larger part. Ulysses’ effort to have the Government test its 112 Part is further evidence that it believed it deserved to be an approved source in its own right -- not that it was attempting to pass off its product as a Raytheon or Frequency part. Ulysses told the Government the truth about its status, making this a classic case for application of the Government knowledge defense.”

DIVERSIFIED MAINTENANCE SYSTEMS, INC. v. THE UNITED STATES, COFC No. 12-539 C, April 26, 2013. The government moves to dismiss for lack of jurisdiction because a valid claim was not submitted to the CO. Plaintiff’s complaint states that valid claim was submitted and argues that for a motion to dismiss that the facts in its complaint should be presumed to be true. Judge Merow disagrees and considers extrinsic evidence noting “Other than plaintiff’s conclusory statement in its Complaint that its claim letter was " ‘submitted’ (with no ‘to whom’ it was submitted) and that no final CO decision was received, no other evidence was offered on this jurisdictional requirement. In contrast, defendant submitted an affidavit that despite a thorough search, no such letter was in the CO' s files . . “ He therefore dismisses the action without prejudice.

CMS CONTRACT MANAGEMENT SERVICES; THE HOUSING AUTHORITY OF THE CITY OF BREMERTON; NATIONAL HOUSING COMPLIANCE; ASSISTED HOUSING SERVICES CORP.; NORTH TAMPA HOUSING DEVELOPMENT CORP.; CALIFORNIA AFFORDABLE HOUSING INITIATIVES, INC.; NAVIGATE AFFORDABLE HOUSING PARTNERS; SOUTHWEST HOUSING COMPLIANCE CORP.; and MASSACHUSETTS HOUSING FINANCE AGENCY v. THE UNITED STATES, COFC Nos. 12-852C, 12-853C, 12-862C, 12-864C, & 12-869C, April 19, 2013. Pre-award bid protest. Plaintiffs challenge “a 2012 Notice of Funding Availability (”NOFA“) issued by the U.S. Department of Housing and Urban Development (“HUD”). The purpose of the NOFA is to fund HUD’s Performance-Based Contract Administrator (“PBCA”) Program for the administration of Project-Based Section 8 Housing Assistance Payment Contracts. HUD plans to award 53 state-wide contracts to Public Housing Authorities (“PHAs”) for the oversight and administration of certain housing subsidy contracts with the private owners of multifamily housing projects. Plaintiffs are Public Housing Authorities and their non-profit subsidiaries and they allege that certain terms of the NOFA, in particular a preference given to in-state applicants, are in violation of the Competition in Contracting Act and the Federal Acquisition Regulation.” The government argues that these actions are cooperative agreements under the Federal Grant and Cooperative Agreement Act, 31 §U.S.C. 6301-6304 and are not procurements and are not subject to CICA or the FAR. Judge Wheeler conducts a detailed discussion of the legislation, now known as the Section 8 Housing Program, and amendments and concludes that the actions are cooperative agreements. He finds for the government on the administrative record.

STATE OF NORTH CAROLINA BUSINESS ENTERPRISES PROGRAM, et. al. v. THE UNITED STATES, COFC No. 12-459C, April 17, 2013. Pre-Award bid protest Army IDIQ fixed price solicitation for full food service at Ft. Bragg. As troops return from Iraq and Afghanistan the population of Ft. Bragg will increase. but the Army has no estimates of the amount and timing of the increases. The solicitation reguires a price per meal based on a MAX QUANTITY for each CLIN. Plaintiff agues that “under the Army’s chosen pricing methodology, offerors must bid a price per meal without knowing what actual headcount will be. Because of economies of scale, an offeror will ordinarily wish to base its price per meal on an estimate of headcount. Selecting a price per meal without knowing headcount is risky: if headcount is unexpectedly high, an awardee who bid a low price per meal could be ruined. Thus, the Army’s pricing methodology requires offerors to assume much of the risk.” Judge Block grants the government’s motion for judgment on the administrative record. He finds that the government has not violated any statute or regulation and notes “Plaintiffs argue that the unpredictability of headcount affects the contractor’s compensation and could cause the contractor’s ‘financial ruin’ in the event that the contractor’s estimated headcount does not materialize. See Pls.‘ Mot. at 21-22. But plaintiffs cannot explain the relevance of this fact. There is nothing unusual about a private business having to assume risk—even risk of ‘financial ruin’—if business is slow. If plaintiffs do not wish to bear that risk, they do not have to compete for the contract. But they have pointed to no substantive law that requires the Army to change the Solicitation so that plaintiffs can compete without taking the risk that other businesses take all the time.”

NORSAT INTERNATIONAL [AMERICA], INC., Plaintiff, v. THE UNITED STATES, Defendant, and ENCOMPASS DIGITAL MEDIA, INC., Defendant-Intervenor, COFC No. 13-41C, April 16, 2013. Bid protest, Army contract for the continued development and maintenance of the Defense Video and Imagery Distribution System. Plaintiff, the incumbent contractor, alleges “that the Army arbitrarily and capriciously concluded that Encompass’s proposal, which was rated as ‘Good-Low Risk,’ was a better value to the government than Norsat’s proposal, which cost nearly more (roughly 36%) and was rated ‘Outstanding-Very Low Risk.’” Judge Firestone finds for the government on the administrative record “because Norsat has failed to show that the Army’s conduct was arbitrary, capricious, an abuse of discretion, or contrary to law, . . . ” She discusses all of plaintiff’s allegations and finds that the government decision were not arbitrary or capricious. In a few instances where the government may have erred plaintiff could not show that it was prejudiced.

CW GOVERNMENT TRAVEL, INC., d/b/a CWTSATOTRAVEL, v. THE UNITED STATES and CONCUR TECHNOLOGIES, INC., Defendant-Intervenor, COFC No. 12-708 C, April 11, 2013. Post-award bid protest, GSA ID/IQ contract for travel management services for civilian agencies. The proposed contract far exceeds the $103 million limit of FAR 16.504(c)(1)(ii)(D)(1). GSA had determined to limit the maximum number of awards to two in this best value procurement. Plaintiff argues that it should have received an award and that is was arbitrary and capricious f or GSA to determine under FAR 16.504(c)(1)(ii)(D)(1)(iii) that “Only one source is qualified and capable of performing the work at a reasonable price to the Government”. Plaintiff also alleges that GSA unfairly treated offerors differently. Judge Sweeney notes that “FAR 16.504(c)(1)(ii)(D) permitted GSA to award one IDIQ contract valued at greater than $103 million where there is only one source qualified and capable of performing the work. This bid protest appears to be a case of first impression since there are no reported decisions addressing this FAR exception.” She finds for plaintiff on the administrative record holding that “the government essentially conducted a best value tradeoff, which was inappropriate for purposes of FAR 16.504(c)(1)(ii)(D)(1)(iii).” Judge Sweeney orders “The General Services Administration, its officers, agents, servants, employees and representatives, and all persons acting in concert and participating with them respecting the subject procurement, are ordered to conduct a reevaluation consistent with FAR 16.504(c), and in particular FAR 16.504(c)(1)(ii)(D)(1)(iii), and this court’s decision. In the interim, the contract award to Concur shall remain in full force and effect.”

COHEN FINANCIAL SERVICES, Inc., Plaintiff, v. THE UNITED STATES, and MIR MITCHELL & COMPANY, LLP, Defendant-Intervenor, COFC No. 13-37, April 04, 2013. Post-award bid protest, FDIC contract to provide business operations support services. Plaintiff argues that FDIC failed to follow its reguations which required a price realism analysis and document its findings. The court notes that “The Government and MMC quote the FDIC’s conclusion that MMC’s proposal ‘offers fair and reasonable competitive labor rates’ (AR Tab 31 at 1446), but that quotation does not establish the realism of MMC’s prices, let alone document or analyze their realism. Judge Braden issues a preliminary injunction and remands to the agency for additional investigation or explanation regarding price realism analysis with respect to the procurement.

ARCATA ASSOCIATES, INC. v. THE UNITED STATES, COFC No. 12-846C, April 03, 2013. Pre-award bid protest, NASA procurement. Plaintiff is the incumbent contractor. Plaintiff challenges the decision of SBA’s OHA to direct NASA to change the NAICS code for this procurement after a NAICS protest by another firm. Plaintiff argues the decision of OHA was wrong and not rational. Judge Braden grants the government’s motion for judgment on the administrative record. She examines the record and although she notes the discretion accorded to SBA to interpret its regulations she finds that the OHA decision was reasonable and not arbitrary or capricious.

LAKESHORE ENGINEERING SERVICES, INC. v. THE UNITED STATES, COFC No. 09-865C, April 03, 2013. Army ID/IQ firm fixed price construction services contract at Fort Rucker, ALABAMA. Prices were to be based on the multiplication of a coefficient supplied by plaintiff and the price in the Universal Unit Price Book (UUPB). The solicitation stated that the offeror’s coefficient should account for a wide variety of risks of doing business and that the coefficient “shall contain all allowable contractor costs, including contingencies and profit. ” Plaintiff appeals the denial of its claim for an equitable adjustment because the UUPB significantly understated the price of materials.
   “Lakeshore argues that the United States breached the Contract and its implied duty of good faith and fair dealing by: (i) not utilizing a price index that fairly and accurately reflected local rates for labor, materials, and equipment; (ii) not allowing adjustments to that index for ‘extraordinary inflationary circumstances;’ and (iii) not adjusting the first option-year coefficient in a way that complied with the contract’s requirements. Plaintiff further alleges that the United States breached an implied warranty that the Contract specifications would be free from error by using the UUPB. Finally, plaintiff argues that either the parties entered into the Contract as a result of mutual mistake of fact—a mistaken belief that the UUPB was accurate for Fort Rucker—or that Lakeshore entered into the Contract as a result of this mistake, and that the government knew or should have known of Lakeshore’s mistake.”
   Judge Allegra discusses all of these issue and grants the government’s motion for summary judgment. He notes that this was fixed price contract and the “Contract quite explicitly indicates that the coefficient was designed to deal with a variety of business risks”, and “Having explicitly agreed to the provisions in the Contract dealing with pricing, plaintiff cannot now contend that defendant violated the covenant of good faith and fair dealing merely by enforcing the same.” and finally “To make a successful claim of unilateral mistake, Lakeshore must prove: (i) that the error is of the type that is compensable; and (ii) that the contracting officer knew or should have known of the contractor’s unilateral mistake at the time the bid was accepted. (citations omitted). Compensable claims include any ‘clear cut clerical or arithmetical error, or misreading of the specifications.’‘(citations omitted) The Federal Circuit has clearly stated, however, that mistakes in judgment on the part of the contractor are not the types of mistakes that are compensable. (citations omitted)). And that, in the court’s view, is precisely what we have here. (citations omitted)”

TIGERSWAN, INC. v. THE UNITED STATES, COFC No. 12-62C, April 02, 2013. Plaintiff claims breach damages for contracts for services in IRAQ that were terminated for convenience and then awarded as sole-source bridge contracts to the incumbent. The government moves to dismiss arguing that since plaintiff has not alleged that the government intended to harm plaintiff its bad faith must be dismissed.
   Judge Firestone denies the government’s motion after examining the legal standards for challenging a termination for convenience. She notes “The Federal Circuit has recognized several circumstances where the government, in exercising its contractual right to terminate for convenience may be liable for breach of contract. These circumstances certainly include situations in which the government has acted with animus toward the contractor but the Circuit has also recognized a potential breach claim where the government abused its discretion or never intended for the contract to go forward. T & M Distribs., 185 F.3d at 1283; Krygoski, 94 F.3d at 1543-44. In those later situations, allegations of animus toward the plaintiff are not necessarily required. For example, the ‘abuse of discretion’ standard has been satisfied when the government has terminated a contract for convenience in order to get a better price for itself. See e.g. Sigal Constr. Corp. v. General Services Admn., CBCA 508, 10-1 BCA ¶ 34,442 (May 13, 2010) (citing Krygoski, 94 F.3d at 1541). Similarly, the Federal Circuit has indicated that a breach may arise when the government enters a contract without intending to allow the awardee to perform under the contract. Krygoski, 94 F.3d at 1543- 45; Caldwell, 55 F.3d at 1582. While these examples involve some form of ‘bad faith,’ the ‘bad faith’ does not necessarily involve an intent to harm the contractor. Rather, the government may be liable for breach in situations where it took action at the expense of the plaintiff without necessarily acting with animus toward the plaintiff. The court reads these precedents to include liability for a breach of contract based on an improper termination for convenience where the government has engaged in some form of improper self-dealing for its own benefit or to benefit another contractor.
Tested by these standards, TigerSwan has alleged sufficient facts to demonstrate a potential breach of contract for improper termination for convenience based on the government’s alleged “abuse of discretion” and failure to honor its contract with TigerSwan.”

HERNANDEZ, KROONE AND ASSOCIATES, INC. v. THE UNITED STATES, COFC No. 07-165 C, March 29, 2013. Corps of Engineers contract for a modular building and other work for a Department of Homeland Security(DHS) border control station. The Corps originally solicited a another firm for a proposal, but then decided to award an (8a) sole source contract to plaintiff. “Plaintiff, HKA, contends that it was required to perform work beyond the scope of the contract, for which it seeks compensation, whereas defendant contends that all work ordered was within the scope of the contract and further counters with a demand that plaintiff’s claims be forfeited pursuant to 28 U.S.C. § 2514 and that monetary damages or penalties be assessed against plaintiff pursuant to 41 U.S.C. § 7103 (Contract Disputes Act) and 31 U.S.C. § 3729 (False Claims Act).” For a relatively small contract, under $1 million dollars, the seemingly confusing and perhaps contentious relations between the parties is troubling. Judge Merow awards plaintiff some $22,00 plus interest for its claims, much less than the amount claimed. He denies all of the government’s counterclaims in fraud finding that government failed to prove any fraud or false claims.

DAVITA, INC. v. THE UNITED STATES, COFC No. 11-297C, March 28, 2013. Interesting case. Plaintiff “brings two claims. In Count I of its complaint, Plaintiff claims that the Department of Veterans Affairs (“VA”) underpaid it for dialysis services under a regulatory scheme —not under a contract—by failing to pay the rates mandated by 38 C.F.R. § 17.56. In Count II, Plaintiff claims that the VA paid it less than contractually mandated amounts for dialysis services it provided under a 2009 contract. Plaintiff does not seek monetary relief in its contract claim but rather a declaratory judgment that ‘the VA is required to pay DaVita in accordance with the Contract for all covered services provided . . . “ The government moves to dismiss arguing that count I sounds in contract and no claim was submitted to a CO, that the regulation is not money mandating and the regulation is invalid as it was not promulgated under APA requirement. The government’s motion to dismiss also argues that Count II be dismissed as plaintiff’s claim to the CO was not for a sum certain.
   Judge Williams denies the motion. She finds that the regulation which authorizes payment for services are not contracts and that the CDA does not apply. She also finds that the regulation is money mandating and provides a basis for jurisdiction under the Tucker Act. She also criticizes the government for arguing that its own regulation was not valid noting that the government does not argue that the court should vacate the regulation which can only be done by a district court under the APA.
    She finds that Count II is a valid claim under the CDA as it requests an interpretation of contract terms and does not need to be expressed as a sum certain.

SIKORSKY AIRCRAFT CORPORATION v. THE UNITED STATES, COFC Nos. 09-844C & No. 10-741C (consolidated), March 27, 2013. Plaintiff appeals the decision that plaintiff owes the government some $80 million plus interest for violations of CAS 418, particularly the standards for allocation of direct and indirect costs codified at Sections 9904.418–20 to 9904.418–63. Plaintiff argues “that its accounting practices were compliant with the CAS, and alternatively relies upon the affirmative defenses that the government’s claim is barred by the six-year statute of limitations set forth in the Contract Disputes Act (‘CDA’), see 41 U.S.C. § 7103(a)(4)(A), and that the parties reached an accord and satisfaction late in 2005 that resolved all their outstanding issues.”The opinion contains a very good discussion of CAS 418.
    Judge Lettow rejects the statute of limitations argument finding that the government did not have knowledge of the basis of the claim at an earlier time. However he finds that the government has not met its burden of proving the claim. Judge Lettow provides the following synopsis

The government failed to carry its burden of proof and did not demonstrate that Sikorsky violated CAS 418. The evidence presented at trial established that the management and supervision costs contained within the materiel overhead pool were insignificant relative to the entire pool, and therefore CAS 418-50(d) did not apply to Sikorsky’s allocation of its materiel overhead. Instead, Sikorsky was required to comply with CAS 418-50(e) when choosing an allocation base for its materiel overhead pool. In that respect, Sikorsky reverted to the third alternative base, a surrogate, because the first two bases were impractical. A proper surrogate would “var[y] in proportion to the services received.” CAS 418-50(e)(3). The government did not establish that Sikorsky’s method of allocation, direct labor, was not an appropriate allocation method under CAS 418-50(e). The government did not adequately support its contention that direct materiel should have been used to allocate the materiel overhead pool, nor did it provide any evidence to establish that CAS 418 required the use of an alternate method of allocation involving the segregation of GFM-related costs in a distinct indirect cost pool. In contrast, the evidence presented at trial demonstrated that Sikorsky’s choice of a direct labor base complied with CAS 418-50(e) because direct labor varied in proportion to materiel overhead costs from 1999 through 2005 and thus was an acceptable means of measuring the resources consumed in connection with pool activities.

PREFERRED SYSTEMS SOLUTIONS, INC., Plaintiff, v. THE UNITED STATES, Defendant, and, COMPUTER WORLD SERVICES CORPORATION, Defendant-Intervenor, COFC No. 12-842C, March 15, 2013. Post-award protest of the United States Transportation Command for a best value contract for a call center and support services. Plaintiff was the incumbent and challenges the award. Following discussions intervenor, awardee, was ranked first with a price of $12,973,833.76. Plaintiff was ranked third with a price of $21,883,877.04. The government and intervenor move to dismiss arguing that plaintiff lacks standing as that there were others ahead of plaintiff in line for award. Judge Firestone finds that plaintiff does have standing. She reject the argument that it had to show that but for the error it would have received the award. Instead she finds that the “substantial chance” is the proper standard. The court rejects plaintiff’s three arguments “(1) the agency’s failure to properly evaluate PSS’s Mission Capability proposal; (2) the agency’s failure to properly evaluate CWS’s Mission Capability Proposal; and (3) the agency’s failure to properly evaluate CWS’s Price proposal.” Judge Firestone finds that the evaluation by the government was well supported and not unreasonable, arbitrary or capricious.
   Regarding the disparity in the prices and the price realism analysis of intervenor’s proposal she notes “The court agrees with the government and defendant-intervenor that the plaintiff has failed to show that the SSA’s price evaluation was arbitrary, capricious, or an abuse of discretion. To the contrary, the record shows that the agency was attuned to the potential risk of an unrealistically low price proposal from CWS, and actively sought clarification to resolve that risk during discussions. As CWS points out, the SSA consulted multiple sources of evidence to determine whether CWS’s discounts were fair and reasonable, including escalation rates within GSA FSS IT-70 contracts, the U.S. Department of Labor National Compensation Survey, and statistics for the relevant St. Louis MO-IL region. AR 1552. The plaintiff has not attacked the propriety of analyzing rates in this fashion, and the court has no basis for doing so sua sponte. Rather, the plaintiff asserts that, because CWS’s price was less than the incumbent’s, it must not have been realistic. Pl. Mot. 33 (such a significantly lower price than the incumbent ‘should have raised significant concerns over whether CWS understood the level of coverage under the scope of the [PWS]’). Although PSS might believe that CWS’s discount posed a risk to the government, this court cannot second-guess the agency where, as here, the SSA thoughtfully recognized the potential for risk, consulted appropriate sources, and only then concluded that the offeror’s price was reasonable and realistic. In such circumstances, the price realism determination must be upheld.”

G4S TECHNOLOGY CW LLC, Plaintiff, v. THE UNITED STATES, Defendant, M.C. DEAN, INC., Defendant-Intervenor, COFC 12-705C, March 12, 2013. Post-award bid protest, DoD(WHS) contract for security services. plaintiff “claims that WHS acted arbitrarily and capriciously or otherwise contrary to law when it concluded that G4S’s proposal did not meet the solicitation’s ‘minimum requirements’ . . ” the government and intervenor move to dismiss arguing that plaintiff lacks standing.
   Judge Firestone finds that plaintiff has standing noting “The court holds that this case falls within the parameters set forth in Orion [Orion Tech., Inc. v. United States, No. 2012-5062, and that G4S has standing. The Orion court sought to preserve standing to challenge ‘a discretionary decision’ regarding exclusion from consideration where a plaintiff otherwise would have had a ‘substantial chance of receiving the contract.’ 2013 WL 141740 at 4-5. Although the Orion court focused on the discretionary nature of the word ‘may,’ the Orion decision does not turn on the use of a particular magic word or phrase. Rather, the court reads Orion to mean that a bidder has standing to challenge the lawfulness of discretionary acts that operate to exclude the bidder from consideration in cases where the bidder’s ratings are such that had the government acted lawfully the bidder would have had a substantial chance of winning the contract. Here, under the terms of the solicitation, WHS reserved discretion to hold discussions. If discussions were conducted with one offeror, discussions should have been held with each offeror that was effectively in the competitive range. See FAR § 15.306(d)(1). Assuming the communications between WHS and M.C. Dean constituted discussions, WHS’s failure to conduct discussions with G4S at that time would have impermissibly precluded G4S from award. Put another way, at issue in this case is whether WHS effectively and impermissibly denied G4S the same opportunity to cure its proposal’s deficiencies as it provided M.C. Dean. Where, as here, the agency elected to enter into communications with one offeror and the record indicates that the eventual winner received the benefit of alleged discussions and the plaintiff had similar ratings and offered comparable prices, the plaintiff has standing, at a minimum, to challenge the merits of the agency’s decision not to conduct discussions with the plaintiff.
    Judge Firestone finds for the government on the administrative record finding the communications with the intervenor were clarifications, not discussions, and therefore plaintiff was not prejudiced. She also determined that it was rational to remove plaintiff’s proposal from consideration noting “After noting that ‘all Offerors were told that this will be a firm-fixed price contract, and that accepting any assumptions would not be consistent with a fixed price arrangement,’ WHS rationally concluded that G4S’s proposal ‘was inconsistent with the Request for Proposal’ and that the offered price could not be validated. AR 1880. These conclusions were consistent with amended section M.1 of the solicitation and WHS’s requirement for a firm fixed price and formed a rational basis for excluding G4S.”

PLASAN NORTH AMERICA, INC. v. THE UNITED STATES and BAE SYSTEMS AEROSPACE AND DEFENSE GROUP INC., intervenor, COFC No. 12-779C ,March 11, 2013. Post-award bid protest of a DLA contract for body armor. Plaintiff “argues that DLA’s decision to award to BAE was arbitrary and capricious based on an unreasonable evaluation of the past performance factor, an improper best value tradeoff not in accord with the solicitation, and biased evaluators who attempted to ‘whitewash’ BAE’s past performance record. Plasan seeks to enjoin DLA’s award to BAE.” Judge Futey notes the discretion given to contracting officers and the difficult burden on the protestor to show that the actions of the CO were arbitrary and capricious. Judge Futey finds that it was reasonable for the government “not to consider vehicle armor contracts similar to body armor was not arbitrary and capricious, as it provided sound reasons for its decision.” The court rejects plaintiff’s argument that the government must consider the past performance of its proposed subcontractors. Judge Futey notes that FAR § 15.305(a)(2)(iii) provides that COs should consider past performance of critical subcontractors. He notes that “should” is not “must” and the government rationally explained why it dod not consider the past performance of the subject subcontractor. Recarding the bias allegations he note that “None of Plasan’s allegations come close to the irrefragable proof necessary to find bad faith in a government employee.” The court finds for the government and intervenor on the administrative record.

NCL LOGISTICS COMPANY v. THE UNITED STATES, COFC No. ll-535C, March 8, 2013. Post-award protest of an Army contract for the National Afghan Trucking (“NAT"”) multiple-award procurement for trucking services in Afghanistan.(The NAT contract was a follow-on to the Host Nation Trucking (“HNT” contract) Plaintiff challenges its nonresponsibility determination and exclusion from the competition. “The solicitation stated the Anny would make awards based on ‘lowest price technically acceptable’ proposals in accordance with Federal Acquisition Regulation FAR 15.101-2.4 Proposals were to be evaluated using two criteria: technical capability and price. AR 391. The solicitation stated that the Government would evaluate offerors for responsibility in accordance with FAR 9.1.” Plaintiff submitted its work on the HNT contract as a reference. Based on a multitude of complaints, poor performance reports and alligations fraud from plaintiff’s performance on the HNT contract the CO determined that NCL did not meet the requirements of FAR 9.104-l(b), which provides that the prospective contractor must ‘[b]e able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments.’”
   Although Judge Williams allows plaintiff to supplement the administrative record, she rejects plaintiff’s arguments and finds for the government on the administrative record. She notes in conclusion “The contracting officer reasonably determined that NCL’s performance on the HNT contract as a whole exhibited serious deficiencies and a pattern of noncompliance which combined to raise serious doubts about NCL’s ability to perform the NAT contract, citing NCL’s [ ] failure to comply with ITV standards, forged mission sheets, pilferage, incident of transponder stacking, withheld payments for performance failures, and failure to timely provide required deliverables. These findings were sufficient to justify the. contracting officer’s conclusion that NCL was nonresponsible. NCL's arguments that it subsequently improved its nonperformance or that it [ ] do not alter the evidence that such misconduct occurred.
   The FAR does not require that each of the contracting officer’s conclusions be independently sufficient on its own to support a finding of nonresponsibility. Rather, the contracting officer’s nonresponsibility determination as a whole must be rational. See EttefaqMeliat- Hai-Afghan Consulting, Inc, 106 Fed Cl. at 438-39; To the Sec’y of the Army, B-151121, 1963 WL 2036, at 6 (Comp. Gen. Sept. 13, 1963). Even acknowledging those instances where the contracting officer was inaccurate in her assessment of NC’s nonperformance -- the ‘reoccurring instances’ of transponder stacking instead of a single incident, and negative feedback concerning NWTC -- NCL’s cumulative failures provided a reasonable basis for the contracting officer's business judgment that NCL lacked the requisite business integrity, ethics, and perseverance to perform the NAT contract. E.g., To the Sec’y of the Army, 1963 WL 2036, at 6 (finding nonresponsibility determination reasonable because the cumulative effect of deficiencies -- including minor deficiencies -- would "unduly . . . increase the burden of administration from the Government's standpoint.").”

AIRCRAFT CHARTER SOLUTIONS, INC. v. THE UNITED STATES and DYNCORP INTERNATIONAL LLC, Intervenor-Defendant, COFC No. 13-9 C, March 08, 2013. Post-award bid protest of a Department of State contract for aircraft support services. Plaintiff argues that the government made an out-of-scope modification to the contract with intervenor. The contract at issue was awarded on May 6, 2005, while the modification in question was effective June 28, 2006. The court finds that plaintiff knew of the details of the modification at least three years prior to filing this action. Judge Bush notes: “the record confirms, that ACS waited until USAID notified ACS on December 4, 2012 that the second option year available under the [ACS’s] USAID Contract would not be exercised, and then further delayed filing this protest until January 4, 2013. This unreasonable delay, defendant argues, constitutes laches and bars plaintiff’s bid protest . . .The court agrees.” Although recognizing that a laches defense is not frequently applied in bid protest case the government “must demonstrate two elements to establish laches: unreasonable delay on the part of the protestor and economic prejudice to the government.” Finding that the government has prevailed on both points she dismiss the case. She also continues and finds that the out-of-scope argument would also fail.

SUPREME FOODSERVICE GMBH v. THE UNITED STATES and ANHAM FZCO, Defendant intervenor, COFC No. 13-001, March 04, 2013. Plaintiff challenges the decision to override the CICA stay for contract to provide food to U.S. military and other personnel in Afghanistan. Plaintiff is the incumbent contractor preforming under a bridge contract. Judge Wolski declares the override “to be arbitrary, invalid and of no effect.” He also notes “Accordingly, the Court concludes that its declaration that the override decision dated December 21, 2012, was issued arbitrarily and in violation of 31 U.S.C. § 3553(d)(3)(C)(i), is sufficient to reimpose the stay of contract performance mandated by 31 U.S.C. § 3553(d)(3)(A)- (B). Although, as the government points out, without an injunction the agency is free to initiate another override of the automatic stay, Def.’s Opp’n at 15, the Court is of the opinion that the preservation of this option is particularly appropriate in a case concerning services provided to troops in a war zone --- as the Court must “give due regard to the interests of national defense.” 28 U.S.C. § 1491(b)(3). Plaintiff’s motions for injunctive relief are therefore DENIED as MOOT.”
    The decision includes a very good discusion of the factors to be considered in a stay override and follows Reilly’s Wholesale Produce v. United States, 73 Fed. Cl. 705 (2006) for the factors to comsider.

ADAMS AND ASSOCIATES, INC. v. THE UNITED STATES, COFC No. 12-731C, February 28, 2013. Pre-solicitation protest of of a decision by DOL to procure Job Center services as a small business set-aside. Plaintiff is the incumbent contractor and is not small. Judge Bruggink decides for the government on the administrative record.Facts and arguments are almost identical to those in DYNAMIC EDUCATIONAL SYSTEMS, INC. v. THE UNITED STATES, COFC No. 12-730C, February 25, 2013.

METTERS INDUSTRIES, INC. v. THE UNITED STATES, COFC No. 13-116C, February 27, 2013. Pre-award bid protest. Plaintiff seeks to enjoin the award until his size appeal to SBA is decided. Judge Wolski grants the request for a PI. He finds the instructions from the agency and SBA as to when certification is required to be confusing. He notes “All told, it is hard for the Court to handicap the plaintiff’s likelihood of success on the merits. The correctness of the Area Office decision may well turn on such issues as whether ‘certification’ and ‘status’ have specialized meanings that have not yet been shared with the Court. But given the agency’s stated policy, the seeming ambiguity of the TORFQ language, the action of the contracting officer in making the initial award, and the opaque reasoning of the decision under review, the Court concludes that plaintiff’s likelihood of success is at least sufficient to make it eligible for the injunctive relief it seeks.”

EXTREME COATINGS, INC. v. THE UNITED STATES, COFC No. 12-516 C, February 26, 2013. Bureau of Reclamation contract for work on the Yellowtail Dam [on Big Horn Lake], in Montana. Plaintiff appeals the denial of its claim for an equitable adjustment. The government moves to dismiss several counts of the complaint under Rule 12(b)(6) failure to state a claim upon which relief can be granted. Judge Bush notes the “court must inquire, however, whether the complaint meets the ‘plausibility’ standard described by the United States Supreme Court, i.e., whether it adequately states a claim and provides a ‘showing [of] any set of facts consistent with the allegations in the complaint.’ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 560, 563 (2007) (Twombly). ‘To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’’ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (Iqbal) (quoting Twombly, 550 U.S. at 570).“ After an extensive discussion of these cases and the post Twombly cases, she denies the government’s motion to dismiss.

DYNAMIC EDUCATIONAL SYSTEMS, INC. v. THE UNITED STATES, COFC No. 12-730C, February 25, 2013. Pre-solicitation protest of DOL’s decision to set-aside the contract to operate the Montgomery, Alabama Job Corps Center for small businesses. Plaintiff is the incumbent contractor and is not small. Plaintiff posits three arguments. First, plaintiff argues that “before a procurement may be set aside for small businesses, the procuring agency, in this case DOL ... had to make a preliminary determination pursuant to 15 U.S.C. § 644(a) (2006) (‘Section 644’), that a ‘fair proportion’ of work in that industry category should be set aside for small businesses. Plaintiff contends that the set-aside is fatally flawed because that determination was not made.” Next plaintiff argues that the set aside based on the Rule of Two, called for by FAR Part 19.502-2(b), violates the Workforce Investment Act. Finally, plaintiff argues “that even if FAR part 19.502-2(b) is not incompatible with WIA, then its application here was arbitrary and capricious.”
   Judge Bruggink rejects all of plaintiff’s arguments and finds for the government on the administrative record. He notes that the “fair proportion” is not for COs to determine for individual procurements but is a policy matter implemented by the NAICS system, the Rule of Two(FAR part 19.502-2(b)) and other administrative procedures. He also states that plaintiff’s WIA issue has already been rejected by the court in “ .. Res-Care, Inc. v. United States, 107 Fed. Cl. 136, 141-42 (2012). We concluded that, although setting aside a procurement only for a small businesses does limit competition, it is not a non-competitive process. We held that, ‘small business set asides are competitive.’ Id. at 142. ” Finally regarding the applicationof the rule of Two, Judge Brugging concludes “The Rule of Two is part of a larger framework in the FAR established to benefit small businesses. All that is required is a reasonable expectation. The threshold for meeting the criteria of the Rule of Two is purposefully low and is counterbalanced by FAR provisions that provide direction in the event of a failed set-aside. We conclude that, even if the materials related to other Job Corps Centers were in front of us, the result here would be the same. Therefore, we decline to include it in the administrative record because it is not necessary for effective judicial review. Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (2009) (citing Camp v. Pitts, 411 U.S. 138, 142- 43 (1973)). The Contracting Officer’s decision to set-aside the Montgomery center was not arbitrary and capricious.”

KELLOGG BROWN & ROOT SERVICES, INC. v. THE UNITED STATES, COFC No. 12-366C, February 22, 2013. Army (“LOGCAP III”) contract. Plaintiff appeals the final decision denying it any award fee arguing “that the CO’s decision breached both express and implied duties of the contract, violated applicable regulations, and was arbitrary and capricious.” The government moves to dismiss.
   The contract provided that an Award Fee Evaluation Board (“AFEB”) would evaluate KBR’s performance and then make a fee recommendation to the Award Fee Determining Official (“AFDO”) Clause H.36(h) provided:

The amount of the award fee shall be based upon a subjective evaluation by the Government on the contractor’s performance during the period in question to include considerations of the nature of the task(s) assigned and any other factors considered relevant to the determination.

Additionally Subclause(e) provides that “The AFDO may accept the AFEB’s recommendation or make a unilateral determination on the payable award fee.”
The AFEB reviewed KGB’s performance on two task orders for the period January 01, 2008 through April 30, 2008,and rated them 92 out of hundred and 95 out of a hundred for overall performance. The AFDO and CO informed KBR that they would receive no award fee for that period. KBR now appeals the CO’s final decison denying its claim. KRBR argues that “the AFDO’s decision both breached the contract and abused the discretion granted to him under the contract.”
   Judge George Miller grants the government’s motion to dismiss the bad faith allegations as not supported by the pleadings. Judge Miller seems particulatly concerned with the argument that FAR 16.401 was violated. At the time of of the AFDO’s FAR 16.401(e)(2) read:
The amount of award fee earned shall be commensurate with the contractor’s overall cost, schedule, and technical performance as measured against contract requirements in accordance with the criteria stated in the award-fee plan. Award fee shall not be earned if the contractor’s overall cost, schedule, and technical performance is below satisfactory.
Judge Miller concludes: “The Court GRANTS defendant’s requests to dismiss plaintiff’s claims for breach of the duty of good faith and fair dealing and violation of AFARS. The Court DENIES defendant’s requests to dismiss plaintiff’s claims that the AFDO’s award fee decision breached Clause H.36, that the decision violated FAR 16.401, that it was arbitrary and capricious, and that the Court may award plaintiff damages.”

ONE LARGO METRO, LLC v. THE UNITED STATES, COFC No. 12-501C, February 21, 2013. Post-award bid protest of GSA contract for lease of buildings to house HHS organizations. “Plaintiff alleges that, but for Defendant’s violation of statutes and regulations in awarding the lease to Fishers Lane, One Largo should have received the award. Plaintiff seeks $4,038,739.003 as monetary relief in the form of bid preparation and proposal costs. Plaintiff filed a motion for judgment on the Administrative Record and, in response, Defendant filed a cross-motion for judgment on the Administrative Record.” A very instructive 93 page opinion discussing the case law of source evaluation and best value trade-off decisions. Judge Horn examines in detail the evaluation of the proposals and the trade-off decision of the Source Selection Authority, Ms. Kronopolous. She finds for the government on the administrative record concluding ”In sum, Ms. Kronopolous’ ultimate award determination in her August 24, 2011 selection decision that Fishers Lane represented the best overall value to the government was the product of her own independent judgment, and was adequately documented, thus, complying with both requirements of FAR 15.308. Plaintiff has failed to meet the high burden of demonstrating that Ms. Kronopolous’ trade-off analysis had no rational basis or failed to consider the relevant factors. See, e.g., Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330.”

McTECH CORPORATION v. THE UNITED STATES, COFC 12-122C, February 19, 2013. Pre-award bid protest for Custom and Border Protection work at Harpers Ferry West Virginia. Plaintiff was originally eliminated for a perceived COI. After losing at the GAO plaintiff brought this action. After an incremental series of corrective actions over a seven month period the government moves dismiss as moot. Judge Lettow agrees noting “Although the government’s actions have been both tortuous and torpid, and occurred on an incremental basis only when driven by necessity or the threat of an adverse result, the sum of the actions has provided McTech with the relief it sought and removed any prejudice McTech may have suffered. Consequently, dismissal on grounds of mootness is appropriate.”

RED RIVER COMMUNICATIONS, 2011). INC. v. THE UNITED STATES, COFC No. 12-728C, February 15, 2013. [Courts synopsis: Post-award bid protest; 28 U.S.C. § 1491(b)(1) (2006); permanent injunctive relief; whether waiver rule under Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007), applies to non-bidder or offeror; protest bar on taskm orders pursuant to the Federal Acquisition Streamlining Act, 10 U.S.C. § 2034c(e) (Supp. V]

Judge Christine Miller introduces the case as follows" “The key issues for decision are whether a non-offeror is subject to the rule that a challenge to a patent error in a solicitation is waived unless it is brought to the contracting officer’s attention prior to the deadline for submission of proposals, see Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007), and whether the protestor has advanced an authorized challenge to the scope of a task order pursuant to the Federal Acquisition Streamlining Act, 10 U.S.C. § 2304c(e) (Supp. V 2011).”
Plaintiff had been supplying Base Telecommunication Services(BTS) to the Air Force at Tinker AFB for over ten years through two small business set-side procurements. On June 8, 2012, the Air Force issued a solicitation for BTS services to be provided at Tinker. Unlike the two previous contracts awarded to plaintiff, the Solicitation was issued as a task order to an umbrella multiple award IDIQ contract known as NETCENTS-1. The solicitation was only advertised on the NETCENTS-1 website. Plaintiff learned of NETCENTS-1 solicitation from another firm which had filed a NAICS code appeal. Plaintiff sent a letter to Senator Cornyn objecting to the procurements under NETCENTS-1.The Senator forwarded the letter to the Air Force.
   Plaintiff argues that the solicitation is beyond the scope of NETCENTS-1. The government argues that the task order protest provisions of FASA are jurisdictional and that plaintiff has waived its right to protest under Blue & Gold. After an extensive discussion, Judge Miller finds for the government. On the waiver issue she concludes “In the case of a contractor, like plaintiff, that was excluded from submitting a proposal by a solicitation’s terms and did not submit a proposal, the potential for timeconsuming collateral inquiries is too great to ignore, as this case demonstrates. Incentivizing the Government to launch such inquiries as part of defending a protest does not serve “the need for expeditious resolution of the action,” 492 F.3d at 1313 (quoting 28 U.S.C. § 1491(b)), that provides the rationale for Blue & Gold Fleet’s waiver rule. Accordingly, despite plaintiff’s knowledge of the basis for its outside-the-scope objections prior to the close of the bidding period, plaintiff should not be required to satisfy the Blue & Gold Fleet waiver rule in order to address its objections that the Solicitation is outside the scope of NETCENTS-1, and the court rules that plaintiff has not waived its right to do so.”

1200 SIXTH STREET, LLC v. THE UNITED STATES, COFC No. 12-388C, February 14, 2013. Plaintiff alleges that the GSA breached a contract for the purchase of real property in Detroit, Michigan, and as a result, Plaintiff seeks $4.5 million in damages for the loss of property value and other costs. The government moves to dismiss for failure to state a claim upon which relief may be granted. The parties had entered into a Real Estate Option Agreement. Under the agreement, which contained an integration clause, GSA was not obligated to exercise the option to purchase the property, and both parties were obligated to spend considerable sums in advance of any option to purchase. Plaintiff argues that an email from the government was evidence that the government had exercised the option.
    Judge Wheeler grants the government’s motion to dismiss noting “Moreover, even assuming that the written notice requirements of the Option Agreement did not govern the election of the option, the Court cannot agree that Ms. Hoffman’s email was ‘clear, precise and unequivocal.’. Any acceptance of a contract must be positive and unequivocal to have effect, and any equivocation by the offeree in its purported acceptance will prevent the creation of the contract. See Richard A. Lord, Williston on Contracts § 6:10 (4th ed. 2012). Here, the email does not purport to elect the option or to ratify the Purchase Agreement, and instead merely directs Plaintiff to contact the MSP regarding their aforementioned request of a 90-day notice for removal. Furthermore, the email underscores the continued existence of the option when it states, ‘We are meeting internally tomorrow to discuss the assignable option and remaining items.’ Ex. L. At best, the meaning of the email is ambiguous. Thus, regardless of Ms. Hoffman’s authority to bind the GSA in contract, Plaintiff has not shown that her May 10, 2007 email binds the GSA to anything. Plaintiff’s claims sound more properly in tort, under theories of misrepresentation and detrimental reliance, which are not within the purview of this Court. Although it may be unfortunate that Plaintiff suffered a financial loss, the incurred expenses were contemplated by the terms of the Option Agreement regardless of whether the GSA exercised the option. Plaintiff has not alleged sufficient facts to support the existence of the contract, and therefore Plaintiff has no claim for breach of contract.”

MILES CONSTRUCTION, LLC, v. THE UNITED STATES, COFC, No. 12-597C, February 14, 2013. Pre-award bid protest, VA solicitation for storm sewer repairs. on March 05, 2012, VA’s Center for Veterans Enterprise(CVE) approved plaintiff as a SDVOSB based on the statu4s and ownership interest of Mr. Slizofski. On May 21, 2012, plaintiff was the apparent low bidder for the instant solicitation. The second low bidder protested plaintiff’s SDVOSB status alleging that plaintiff and a non-SDVOSB, had common ownership and control, thus rendering Miles ineligible for SDVOSB status. OSDBU found no merit in the protest, but withdrew plaintiff’s SDVOSB status because “Articles X, XI, and XII of the company’s Operating Agreement allegedly contained restrictions on the transfer of Mr. Slizofski’s ownership interest. Judge Lettow finds that Articles X and XII are not relevant and that Article X1 “is a standard provision used in normal commercial dealings, and does not burden the veteranrss ownership interest unless he or she chooses to sell some of his or her stake.” He also notes that the reliance by OSDBU on these articles was arbitrary and capricious. Judge Lettow notes “An agency should not act without affording an entity whose award or projected award is protested with notice of an alleged defect and an opportunity to respond. An interpretation of 48 C.F.R. § 819.307(c) that does not allow this basic procedural due process is plainly erroneous and cannot be upheld.”
    The opinion concludes “For the reasons stated, the plaintiff’s motion for judgment on the administrative record is GRANTED IN PART, and the government’s motion to dismiss or, in the alternative, cross-motion for judgment on the administrative record is DENIED. OSDBU’s decision dated August 27, 2012, rendering Miles ineligible for awards of contracts as a SDVOSB, is set aside. VA shall restore Miles to its roster of approved SDVOSB entities and consider Miles’ apparent low bid in response to the Solicitation. Miles’ verified eligibility to participate in VA’s Veterans First Contracting Program shall be extended by 164 days, to August 16, 2013, to take account of the days it was wrongfully removed from eligibility.”

RED HAWK CONSTRUCTION, INC. v. THE UNITED STATES, COFC No. 12-186 C, February 13, 2013. Plaintiff was a subcontractor to GTS, the prime on a contract with the Army Corps of Engineers. The government issued a stop work order after a dispute arose between the government and GTS. The CO “agreed to lift the stop-work order if GTS assigned the proceeds of the contract to ServisFirst Bank (ServisFirst) with the understanding that ServisFirst would hold any contract proceeds in escrow until advised by the government that they should be disbursed to GTS or the subcontractors.” Plaintiff alleges that the government wrongfully made a large payment to GTS, rather to Servis, and claims that as an assignee it is entitled the $280,000 owed to it at the time of the wrongful payment. The government moves to dismiss for a lack of jurisdiction as there was no privity between and plaintiff.
   Chief Judge Hewitt dismisses the action. After a discussion of the Anti-Assignment Acts issues she concludes “Plaintiff seeks to recover under an assignment agreement to which plaintiff was not a party and which does not assign plaintiff the right to receive the proceeds of the contract. See supra Part III.A. The court concludes that plaintiff is not an assignee under the assignment agreement. See id. Additionally, any assignment to plaintiff would not have met the requirements of the Anti-Assignment Acts, the requirements of which were not waived by defendant. See supra Part III.B. Plaintiff is therefore not in privity of contract with the government, and the court is without subject matter jurisdiction to hear plaintiff’s claims.”

D’ANDREA BROTHERS LLC v, THE UNITED STATES, COFC No. 08-286C, February 8, 2013. CRADA contract between and the Army Soldier Research, Development, and Engineering Center (“Natick”). See earlier decision in this case. Plaintiff claims breach of the CRADA and alleges a breach of the Army’s duty of good faith and fair dealing. Plaintiff also claims reliance damages for it lost sales caused by the Army’s breach. The Army counterclaims for the payment of trademark royalties plus interest.
   Judge Firestone finds that the government did breach the implied covenant of good faith. She concludes “Based on the foregoing, the court holds that the government breached the implied covenant of good faith and fair dealing, that this breach was material and prior to plaintiff’s failure to pay its royalty payments, and that, therefore, the government may not collect damages based on its counterclaim. The court further finds that while plaintiff has established foreseeable reliance damages, the government has met its burden of establishing with reasonable certainty that plaintiff would have lost the value of its expenditures made in reliance on the CRADA, even if the government had fully performed under the CRADA. Therefore, plaintiff may not recover any reliance damages.
Because plaintiff has prevailed in establishing liability, and on the government’s counterclaim, it is entitled to costs.”

INNOVATION DEVELOPMENT ENTERPRISES OF AMERICA, INC. v. THE UNITED STATES, COFC No. 11-217 C, January 29, 2013. Court’s synopsis: [Post-Award Bid Protest; 10 U.S.C. § 2304(c)(1)-(2) (2006); 48 C.F.R. §§ 6.302-1, 6.302-2 (2009); Sole Source Procurement; Only One Responsible Source; Unusual and Compelling Urgency; Standing; Lack of Advance Planning; Irrational Decision-Making; Violations of Procurement Laws and Regulations.] Plaintiff protests the sole-source award of a bridge contract by the Air Force. (The bridge contract is now complete.)
    Judge Bush finds for plaintiff on the administrative record. She notes: The government argues that no B&P costs are payable as there was no bid. Judge Braden defers on that issue and “encourages the parties to resolve the bid preparation costs issue amicably, preferably by stipulation as to an amount due plaintiff.”

KWV, INC. v. THE UNITED STATES, COFC No. 12-882C, January 25, 2013. Pre-award bid protest, VA construction contract. Plaintiff was determined eligible for the VOSB program in early 2012. The determination was made by the Center for Veterans Enterprise (““CVE”). In the instant case a “protest by a losing bidder resulted in a decision by VA’s Office of Small and Disadvantaged Business Utilization (“OSDBU”) that KWV ‘d[id] not meet the status requirements of a SDVOSB concern” and was therefore ineligible for awards under the Veterans First Contracting Program.“ Finding that the CVE evaluation was much more comprehensive than the OSDBU evaliation Judge Lettow issues a preliminary injunction noting that “OSDBU’s decision dated October 24, 2012, rendering KWV ineligible for awards of contracts as a VOSB, is set aside. VA shall restore KWV to its roster of approved VOSB entities. KWV’s verified eligibility to participate in VA’s Veterans First Contracting Program shall be extended by 72 days, to April 22, 2013, to take account of the days it was wrongfully removed from eligibility.”

SUNDOWNER 102 LLC v. THE UNITED STATES, COFC No. 12-304C, January 17, 2013. Contract for lease of aircraft. Plaintiff argues that the government breached the contract when it failed to exercise all of the options. In support of his position he cites language in the contract which states the contract “is for the long-term lease of jet aircraft . . . ” The government move to dismiss for failure to state a claim. Judge Bruggink grants the government’s motion to dismiss. He finds that option provisions are not ambiguous and denies the request to submit extrinsic evidence.

WESTLANDS WATER DISTRICT v. THE UNITED STATES, COFC No. 12-12 C, January 15, 2013. Bureau of Reclamation, Department of the Interior projects in California. Plaintiff alleges “various breaches of a purported contractual obligation of the United States government (defendant or the government) to provide drainage to Westlands, based on the government’s failure to provide water drainage facilities and services.” The government moves to dismiss for lack of jurisdiction or for failure to state a claim. In a 57 page opinion discussing all of the issues including failure to state a claim, interpretation of contract terms, issue preclusion and declaratory judgment, Chief Judge Hewitt grants the government’s motion to dismiss.

ESTES EXPRESS LINES v. THE UNITED STATES, COFC No. 11-597C, January 15, 2013. Plaintiff claims that an arm of DoD breached it contracts and failed to pay plaintiff some $147,645.33 which is due to plaintiff. The government moves to dismiss for lack of jurisdiction. Plaintiff, a licensed federal motor carrier, was a subcontractor to Salem who had a contract with the Marine Corps Exchange to coordinate its logistics and communicate with motor carriers to carry the products and goods of various shippers to MCX locations throughout the United States. After rejecting plaintiff’s argument that Salam was an agent of the government, Judge Allegra dismisses the action finding no privity of contract between plaintiff and the government.

SHELL OIL COMPANY, ATLANTIC RICHFIELD COMPANY, TEXACO, INC., and UNION OIL COMPANY OF CALIFORNIA v. THE UNITED STATES, COFC Nos. 06-141C, 06-1411C, January 14, 2013. Plaintiffs produced aviation fuel (avgas) for the government during World War II. Many years later after the completion of CERCLA litigation plaintiffs bring this action arguing that the Taxes clause of their contracts with the government indemnifies them of certain cleanup costs which they incurred. (Judge Smith in an earlier decision had found for plaintiffs. The Federal Circuit vacated Judge Smith’s decision because of a financial interest the Judge’s wife had in two firms. The Circuit Court directed the case to be assigned to a different judge.]
    Plaintiffs rely on the Taxes clause in their contract which provides, in part:

Buyer shall pay in addition to the prices as established [in the price provisions of the contract], any new or additional taxes, fees, or charges, other than income, excess profits, or corporate franchise taxes, which Seller may be required by any municipal, state, or federal law in the United States, or any foreign country to pay by reason of the production, manufacture, sale or delivery of the commodities delivered hereunder.
Plaintiffs argue that the inclusion of the term “charges” provides the basis for indemnification by the government. The government disagrees for three reasons.
    “First, the Government contends that the contract clause relied on by the Oil Companies was not intended to create a broad, open-ended indemnification, but rather merely a price-adjustment mechanism in the event that the Oil Companies were assessed unforeseen taxes by reason of their avgas production. Second, the Government argues that any claim to the contrary is barred by the fact that, as the Oil Companies stipulated in the CERCLA litigation, ‘all ... issues concerning [the avgas contracts] were settled between the parties in the late 1940s,’ at the time of their termination. JA 545 (Stip. 609). Third, the Government argues that even if the Court could construe the contract clause in question as an indemnification agreement, such an agreement would be ultra vires under the Anti-Deficiency Act, and therefore unenforceable. Finally, the Government argues that, as a factual matter, the majority of the waste at the McColl site resulted from the manufacture of products other than avgas.”
   In a 37 page opinion Judge Wheeler grants the government’s motion for summary judgment. He examines intensely the meaning of the term “charges” and the various wartime statues and Executive Orders regarding plaintiffs arguments that the Anti-Deficiency Act was waived.

LABORATORY CORP. OF AMERICA v. THE UNITED STATES, COFC NO. 12-622C, January 14, 2013. Pre-award bid protest, Department of Veterans Affairs. After a preamble quoting from Alice in Wonderland Judge Allegra start his opinion as follows “Defendant, regrettably, has injected an Alice-in-Wonderland quality into this preaward bid protest case. In this case, Laboratory Corporation of America (LabCorp) protests the refusal of the U.S. Department of Veterans Affairs (the VA) to accept its quotation for a blanket purchase agreement. According to the solicitation, the quotation was due on May 31, 2012, at 2:00 p.m. Central Standard Time (CST), which both parties took to mean 2:00 p.m. Central Daylight Time (CDT). As instructed by an amendment to the solicitation, plaintiff loaded its quotation onto the U.S. General Services Administration’s e-Buy website. At 1:03 p.m. CDT, a LabCorp employee hit the ‘continue’ button on the website, only to receive a message that that the submission had been refused because the website was programmed to accept offers only until 2:00 p.m. Eastern Daylight Time (EDT).” The opinion finds that the inability of the e-Buy website to maintain a record of pages displayed to participants violates the FAr requirement to preserve procurement records. See earlier decision this case whereby Judge Allegra ordered the government to respond whether the e-Buy procedures constituted spoliation.
   Judge Allegra rejects all of the government’s arguments including the waiver argument of Blue & Gold Fleet, L.P. v. United States. He continues “Here, the solicitation indicated that offers were due by 2:00 p.m. CDT. Plaintiff attempted to submit its offer through the e-Buy website at 1:03 p.m. CDT. The offer was refused by the e-Buy system as untimely. It was not untimely. Defendant’s action in rejecting the offer, therefore, was arbitrary, capricious, an abuse of discretion, and contrary to law. See, e.g., BH & Assocs., 88-1 B.C.A. ¶ 20340 (1987). It is beyond peradventure that this action prejudiced plaintiff - that it has suffe red a “non-trivial competitive injury which can be addressed by judicial relief.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1361 (Fed. Cir. 2009) (quoting WinStar Commc'ns, Inc. v. United States, 41 Fed. Cl. 748, 763 (1998)); see also Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374, 1382 (Fed. Cir. 2012). And it falls to this court to remedy defendant’s misfeasance.” Judge Allegra concludes by enjoining the Army from evaluating quotation received unless provisions are made to evaluate plaintiff’s proposal.

LARRYE CHEAVES v. THE UNITED STATES, COFC No. 12-228C , January 20, 2013. Army contract to locate underground utilities. At issue is the meaning of the terms “unit” and “locate” in the contract. Plaintiff argues that the terms are ambiguous and proposes to introduce expert testimony on trade usage of the terms. The government moves to bar the expert testimony. Judge Damich finds that the contact is not ambiguous, but notes “Even if the contract is unambiguous, Teg [Teg-Paradigm Envt’l, Inc. v. United States, 465 F.3d 1329, 1338 (Fed. Cir. 2006)] instructs the court that ‘it may be appropriate to turn to one common form of extrinsic evidence-evidence of trade practice and custom.’” Finding that the Common Ground Alliance Best Practice manual was incorporated into the contract and that said manual adopts plaintiff’s argument on the term “locate” Judge Damich grants the government’s motion noting that it is “unnecessary to hear expert testimony that is merely redundant over a trade definition that is already incorporated into the contract.”

LINC GOVERNMENT SERVICES, LLC, Plaintiff, and J&J MAINTENANCE, Inc., Plaintiff-Intervenor, v. THE UNITED STATES, Defendant, and GLOBAL ENGINEERING & CONSTRUCTION, LLC, Defendant-Intervenor, URS GROUP, Inc., Defendant-Intervenor, ITSI GILBANE COMPANY, Defendant-Intervenor, UNITED EXCEL CORPORATIO Defendant-Intervenor, v. THE UNITED STATES, COFC 12-522, December, 28, 2012 Post-award bid protest of Army multiple award design-build contracts for medical facilities in the United States and overseas. Judge Braden starts her opinion with this rather telling comment “The United States Court of Appeals for the Federal Circuit has emphasized that ‘best value’ solicitations, such as the one at issue here, afford the contracting officer a great deal of discretion, ‘so that the relative merit of competing proposals is primarily a matter of administrative discretion[.]’ Galen Med. Assoc. Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004). That discretion, however, does not allow the procuring agency the liberty to deviate from the Solicitation’s requirements, ignore applicable Federal Acquisitions Regulations (‘FAR’), or ascertain ‘best value’ in a manner that is arbitrary. Nor does that discretion allow the court to overlook the fact that the Administrative Record does not contain sufficient information on which an agency could even make a rational procurement decision. See Vernon J. Edwards, Complexity and Incompetence: The Revelations of a Failed Acquisition, NASH & CIBINIC REPORT, Dec. 2012, at 186 (describing incompetence and mismanagement in the procurement process). But, that is what happened in this case.”
    After an extensive review of plaintiff’s allegations and the administrative record she finds that plaintiff prevails on all of the injunctive issues:“(1) immediate and irreparable injury to the movant; (2) the movant’s likelihood of success on the merits; (3) the public interest; and (4) the balance of hardship on all the parties.” U.S. Ass’n of Imp. of Textiles & Apparel v. United States, 413 F.3d 1344, 1346 (Fed. Cir. 2005). Judge Braden concludes “This procurement is remanded to Army ‘for additional investigation or explanation.’ Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (‘If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.’). The United States Army and its officers, agents, servants, employees, and representatives are preliminarily enjoined from proceeding with or awarding any MATOC Contracts for the design-build of medical facilities in the United States and overseas pursuant to Solicitation No. W912DY-10-R-0005 or any related procurement, solicitation, task order, or activity. See RCFC 65(a).”

THE ALAMO TRAVEL GROUP, LP v. THE UNITED STATES, COFC No. 12-764C, December 27, 2012. Pre-award bid protest DoD contract for travel services. Plaintiff seeks a preliminary injunction arguing that was a violation of statute and regulation to remove plaintiff from the competitive range without considering past performance. The government opposes the injunction arguing that plaintiff has waived its right to protest as it failed to object to a solicitation amendment which provided in part that “[a]ny proposal with a Technical factor ranked as Unacceptable is ineligible for contract award, and will not be further evaluated.” Judge Wolski finds that under BLUE & GOLD, FLEET, L.P. v. UNITED STATES, and HORNBLOWER YACHTS, INC., CAFC No. 2006-5064, June 26, 2007 that plaintiff has waived its right to protest. Judge Wolski also finds that plaintiff has not identified any statute or regulation that would have prohibited the government ’s conduct.

P&K CONTRACTING, INC. v. THE UNITED STATES, COFC No. 09-399 C, December 21, 2012. Court’s synopsis:Cross-Motions for Summary Judgment; Burdens; Request for Equitable Adjustment; Authority to Modify Contract; Mutual Mistake; Risk of Increased Costs; Implied Warranty of Adequate Specifications; Superior Knowledge; Equitable Estoppel. Plaintiff’s claim for $245,525.00 arising from a contract awarded by the Department of the Army (Army) for the renovation of the Indoor Marksmanship Center (IMC) at the United States Military Academy at West Point. See earlier decision denying the government’s initial decision for summary relief. Plaintiff argues breach of contract due to superior knowledge and mutual mistake. Judge Merow grants summary judgment for the government concluding “As a matter of law under the material facts for which there is no genuine dispute, no valid causes of action are stated. Plaintiff failed to set forth genuine issues of material fact that could result in actual or implied authority of LTC Saunders or Mr. Deyo to promise the contract amendment underlying the equitable adjustment plaintiff seeks. Material facts presented and tendered do not constitute mutual mistake. No viable recovery based on defective plans or specifications is pled; no viable claim for superior knowledge, equitable estoppel, violation of FAR § 5.101, or breach of the covenant of good faith and fair dealing is stated. ”

DELLEW CORPORATION v. THE UNITED STATES, COFC NO. 12-627C, December 20, 2012. Post-award bid protest. Plaintiff challenges the government’s decision to in-source work which had been done by plaintiff. Plaintiff argues that the decision to in-source was contrary to statute and lacked a rationale basis an∂ was therefore arbitrary and capricious. Plaintiff seeks a permanent injunction. The government moves to dismiss arguing that the sections of the statute relied upon by plaintiff are not applicable to this procurement and in any event the statute is budgetary and contemplates no private right of action so that prudential standing is lacking. Judge Christine Miller finds for the government on the administrative record and denies injunctive relief. Very good discussion in-sourcing decisions.

AMERICAN APPAREL, INC. v. UNITED STATES, and, v. BLUEWATER DEFENSE, INC., Defendant-Intervenor., COFC No. 12-293C, December 14, 2012. Post-award bid protest DLA procurement for coats. Plaintiff protests the modification after award of the contract to intervenor. Plaintiff argues that other non-price factors should have been considered and that the modification should have been a competitive procurement. The government moves to dismiss for lack of jurisdiction arguing that was a matter of contract administration not under the court’s bid protest jurisdiction. After an extensive discussion the of the case law on cardinal changes Judge Horn dismisses the action concluding “the court concludes that the addition of two items by the defendant were in-scope modifications of the existing Bluewater contract for which new competition pursuant to CICA is not required. Defendant’s motion to dismiss plaintiff’s complaint is GRANTED. Defendant-intervenor’s motion to dismiss plaintiff’s complaint, as well as defendant’s and plaintiff’s cross-motions for judgment on the administrative record, are MOOT. Plaintiff’s complaint is DISMISSED, regardless of whether the dismissal is for lack of subject matter jurisdiction or for failure to state a claim.

METCALF CONSTRUCTION CO., INC. v. THE UNITED STATES, COFC No. 07-777C, December 10, 2012. Navy design build contract. See earlier decision where 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.” Before the court now are liquidated damages and accord and satisfaction issues. Judge Braden finds that plaintiff is not entitled to the balance held by the government as the “trial record establishes that the parties mutually agreed that October 17, 2006 was the final adjusted completion date. ... The record also establishes that Metcalf did not actually complete performance until March 2, 2007. Therefore, the Navy is entitled to liquidated damages of $290 per unit for each day of delay, or $3,570,480.
Accordingly, the court has determined that Metcalf is not entitled to the $896,973 withheld by the Navy, but that amount must be deducted from the $3,570,480 liquidated damages due. Therefore, Metcalf owes the Navy $2,673,507”
    Regarding breach damages the government argues that the modifications were subject to a release which stated

“Acceptance of this modification by [Metcalf] constitutes an accord and satisfaction and represents payment in full for both time and money and for all costs, impact effect, and for delays and disruptions out of, or incidental to, the work as herein, revised.”
Judge Braden rejects the government’s argument noting “But, the ‘work herein described’ concerned relocating an overhead circuit, sizing a duct lie, and modifying transformers, or external factors, such as adverse weather and a concrete strike, that had no relationship to the Navy’s failure promptly to investigate Metcalf’s notice of a differing site condition. In addition, the bilateral modifications predate Metcalf’s March 30, 2007 Global Certified Claim that was the source of continuing negotiations with the Navy until this suit was filed. The United States Court of Appeals for the Federal Circuit has affirmed application of the principle ‘that when the government and a contractor continue to consider a contractor’s claim after the contractor has signed a release, their conduct demonstrates that they did not consider the release to constitute an accord and satisfaction of the claim.’ England v. Sherman R. Smoot Corp., 388 F.3d 844, 848 (2004); see also id. at 857. Therefore, accord and satisfaction are not applicable in this case.”

SYSTEMS APPLICATION & TECHNOLOGIES, INC. v. THE UNITED STATES, and SKOOKUM EDUCATIONAL PROGRAMS, Intervenor, COFC No. 12-526C, December 10, 2012. Plaintiff, incumbent contractor for the Army for Operation and Maintenance of the Multipurpose Ranges and Facilities Services at the Yakima Training Center in western Washington state, protests the decision by the Army to place the contract under the Javits-Wagner-O’Day Act (“JWOD”), 41 U.S.C. §§ 8501-506 and the AbilityOne program. Judge Bruggink finds that the AbilityOne committee’s informal rule-making decision to place this contract was arbitrary and capricious and not rationally supported. He enjoins the government from placing the contract on the AbilityOne Procurement List and from contracting with [intervenor] for the work. [As many of PubKLaw subscribers know I use a wheelchair and generally support government programs to hire the disabled, but in my opinion the decision to place this work into the AbilityOne program was outrageous-jaw]

newTIDEWATER CONTRACTORS, INC. v. THE UNITED STATES, COFC No. 12-261 C, December 10, 2012. Department of Transportation road paving contract. Plaintiff sues for breach of contract and injunctive relief. Plaintiff had filed a claim with the CO, and the CO notified plaintiff when the decision would be issued. Plaintiff filed suit before the decision was issued. The government moves to dismiss for lack of jurisdiction arguing that the suit had been filed before the CO’s decision was issued and the decision was therefore a nullity as Justice now had the responsibility for the action. After Judge Sweeney directed the parties to address issue in Sharman Company, Inc. v. United States, 2 F.3d 1564 (Fed. Cir. 1993) she dismisses the action finding the CO’s decision to be a nullity. She rejects as without merit plaintiff’s other argument that prior actions of the CO acted as a final decision.

newMANAGEMENT & TRAINING CORPORATION v. THE UNITED STATES, COFC No. 12-561C, December 07, 2012. Pre-award bid protest, DOL procurement to operate the Dayton Job Corps center where plaintiff is the incumbent. Plaintiff seeks injunctive relief challenging the decision to set aside the procurement for small businesses as a violation of the Workforce Investment Act (“WI”) arguing that 29 U.S.C. § 2887(a)(2)(A) of the Act requires that the government “shall select on a competitive basis an entity to operate a Job Corps Center ... ” and that a small business set aside is not a competitive basis under the Act. Alternatively plaintiff argues the CO Rule of Two decision was faulty.
    Judge George Miller denies the request for injunctive relief finding that plaintiff has little likelihood of success on the merits. He also finds that the WIA does not prohibit the aside and that the CO’s Rule of Two decision was within the Co’s discretion.
    Very good discussion of the Rule of Two competitive procedures under the Act, other statutes and the FAR. Judge Miller also cites a recent decision which had interpreted the meaning of “on a competitive basis” in 28 U.S.C. § 2887(a)(2)(A). Res-Care, Inc. v. United States, No. 12-251C, 2012 WL 5489958 (Fed. Cl. Nov. 6, 2012).

GROUND IMPROVEMENT TECHNIQUES, INC., and MK FERGUSON COMPANY, for the use and benefit of GROUND IMPROVEMENT TECHNIQUES, INC. v. THE UNITED STATES COFC No. 12-57 C, December 05, 2012. A rather complicated case regarding whether or not plaintiff is the real party in interest and whether it was in privity with the government after a series of bankruptcy actions. Interesting case. Good discussion of the issues.

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, November 30, 2012. Spent nuclear fuels case. Damages decision. The decision concentrates on the Exchanges Provision “that a robust market to exchange DOE acceptance allocations would have developed among the various utilities in the ‘but-for’ world.” Judge Bruggink starts his opinion with “It is incumbent upon the nonbreaching party to establish that: ‘(1) the damages were reasonably foreseeable by the breaching party at the time of contracting; (2) the breach is a substantial causal factor in the damages; and (3) the damages are shown with reasonable certainty.rsv Id. (citing Energy Capital Corp. v. United States, 302 F.3d 1314, 1320 (Fed. Cir. 2002)). ’’[T]he general principle is that all losses, however described, are recoverable.‘‘ Id. (quoting Restatement (Second) of Contracts § 347 cmt. c (1981)). The non-breaching party may therefore recover its mitigation losses and its general losses.” The government objects to most elements of plaintiff’s expert on the exchange provision but the court agrees with plaintiff on most exchange issues. The many elements of damages are discussed and Judge Bruggink concludes “Plaintiffs have proved that use of an exchange would have accelerated pickup so that all SNF would have been gone from the Trojan facility by the end of 2002. Plaintiffs were therefore only responsible for wet pool storage costs through 2002. This results in a reduction from plaintiffs’ claim of $35,460,351. Other claimed costs which are disallowed: $344,257 for costs stemming from the 1998 removal of two of the twelve racks in the fuel pool; $70,585 for 1997 security upgrade; $873,500 for OOE fees; NRC fees prior to 2003; legal costs related to maintaining PGE’s nuclear license prior to the end of 2002, and for 20 months thereafter; $280,368 in direct costs, and $6,659 in indirect labor costs for maintenance of three buildings at the Trojan site from 2000 to 2003; $56,382 related to top nozzle inspections; dues paid to NUPIC and Scientech for 2000, 2001, and 2002; that portion of plaintiffs’ overhead costs associated with the years 2000, 2001, and 2002. All other claimed costs are allowed. The parties are directed to consult and propose by January 7, 2013, a figure for plaintiffs’ recovery which implements the court’s ruling.”

K-CON BUILDING SYSTEMS, INC. v. THE UNITED STATES, COFC No. 05-981C, November 30, 2012. Coast Guard contracts for prefabricated buildings. Plaintiff moves for summary judgment that the liquidated damages were a penalty, not damages and for remission of liquidated damages.See earlier decisions at other locations. January 2, 2011, August 19, 2012 and August 30, 2012. The government argues that a challenge to the liquidated damages provision needed to be made at the time of the solicitation, not years later. The government further argues that plaintiff did not submit a valid claim to the CO. Judge Sweeney finds that the correspondence between the parties supports that a valid claim was submitted. She rejects the government’s argument on the timeliness of the challenge to the liquidated damages provision and finds that the liquidated damages provision was not arbitrary. The opinion leaves open the issue of remission of damages for excusable delay which the parties will consider pursuing alternative dispute resolution to resolve.

KINGDOMWARE TECHNOLOGIES, INC. v. THE UNITED STATES, COFC No. 12-173C, November 27, 2012. Bid protest challenging VA from not complying with the Veterans Benefits, Health Care, and Information Technology Act of 2006, 38 U.S.C. §§ 8127-28 “the 2006 Act” or the “Act”). Plaintiff alleges that VA violated the Act in three instances by procuring under the FSS rather than setting aside the procurements for SDVOSB or VOSB firms after doing market research under the “rule of two”, as required by the VA Acquisition Regulations(VAAR) 48 CFR § 810.001. The parties have stipulated on one set of facts for this case. At issue is the statutory interpretation of the Act and the VAAR. Judge Firestone discusses statutory interpretation of the Act under the Chevron framework as set out in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). She concludes “The 2006 Act is silent as to its application to the FSS and as a ‘goal- setting’ statute is ambiguous as to the discretion reserved to VA.” She also finds that the VA had discretion in its regulations to procure via the FSS, referencing the regulation preamble at 74 Fed. Reg. 64,619, 64,624 (Dec. 8, 2009). She summarizes with “In sum, the court respectfully disagrees with the GAO’s interpretation of the 2006 Act in the case at hand, and finds that VA’s decision not to set aside the ENS contract at issue was not arbitrary, capricious, or contrary to law. The government is therefore entitled to judgment on the stipulated facts as to this particular procurement action.” Good discussion of the Chevron framework and agency regulations.

FIRSTLINE TRANSPORTATION SECURITY, INC. v. THE UNITED STATES, COFC No. 12-601C, November 27, 2012. Pre-award bid protest, TSA contract for airport security services. Plaintiff challenges the solicitation preferences for 40% of the contract value for small business subcontractor participation arguing that such is a violation of the FAR and maximization of competition. Judge Wheeler denies the protest noting “If the Court were issuing this solicitation instead of this agency, it may well have based the rather aggressive small business goals on more robust market research, and it likely would have stated the goals as a percentage of subcontracting dollars, as FAR Part 19 authorizes. In this way, the prime contract offerors would have had the discretion to determine on their own how much of the work they were prepared to subcontract, and the desired level of subcontracting would not have been dictated by the federal agency. Nonetheless, the Court finds that under the applicable standards of review, it does not particularly matter that the Court might have conducted this procurement differently. What matters is the difficult burden of proof that a protester must meet in order to prevail. FirstLine has fallen short of establishing its entitlement to judicial relief, ... .“ Although finding for the government of the administrative record, he does suggest “that the agency amend Section M.4 of the solicitation to remove the ambiguity regarding the 40 percent small business participation goal. In fairness to prospective offerors, so they may refashion their proposals as needed, the Court also suggests that the closing date for receipt of proposals be extended by 20-30 days from the date of this decision.”

REEMA CONSULTING SERVCES, INC. V. THE UNITED STATES, COFC No. 12-402C, NOVEMBER 26, 2012. Post-award bid protest of an Army 8(a) contract for environmental services. Subsequent to award, plaintiff filed a protect with the CO arguing that the awardee was not small. SBA sustained the protest which was affirmed by SBA’s Office of Hearings and Appeals(OHA). Faced with the SBA decision and determining that the services were essential to its mission, the CO decided not to issue any additional task orders and would reprocure as a small business, not 8(a) set-aside. Judge Allegra denies both of requested reliefs.
    He finds that plaintiff lacks standing on the injunctive issue noting “Reema will not be competitively injured if ECBC timely implements its proposed reprocurement schedule, which is essentially the same as what Reema would have this court adopt via an injunction. Indeed, despite plaintiff’s early arguments in this case, which focused on its status under the 8(a) program, the schedule proposed by ECBC, as well as the type of procurement envisioned, would not deny Reema a fair opportunity to compete for the reprocurement. As such, the only thing plaintiff arguably would gain by having this court issue an injunction is the certainty that ECBC would not deviate from its plans. But, there are two problems with this approach. First, it is not for this court to enjoin ECBC from possibly injuring plaintiff in the future by deviating from its plans. Rather, for plaintiff to have an ‘injury which can be addressed by judicial relief,’ Weeks Marine, 575 F.3d at 1362, that injury must be ‘actual or impending,’ and not one that ‘has not occurred yet, is far from imminent, and, indeed, may never occur.’ ”
    Regarding the bid and proposal costs issues he first notes that one element which must be present is that “error caused the protester to incur unnecessarily bid preparation and proposal costs. ” He notes plaintiff “cannot show that the bid preparation and proposal costs it incurred in creating its first proposal were rendered unnecessary by the arbitrary, capricious, or otherwise erroneous actions committed by ECBC. Rather, the situation in which plaintiff finds itself— unable to receive an award on its earlier proposal and compelled to seek an award, if at all, via a new one – stems not from agency misfeasance, but from the way the regulations deal with the timing of the size determination made by the SBA. In particular, plaintiff’s plight, such as it is, derives from the fact that the drafters of those regulations decided to allow agencies to proceed with certain contracts pending the ultimate resolution of the size protest. And, of course, that is what happened here.”

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, November 19, 2012. Bid protest. Award of multiple task orders to supply foreign language support services Plaintiff argues that the government’s rating of its proposal its rating as unacceptable was flawed and that plaintiff should have been awarded a task order. See earlier opinion discussing the differences between prejudice for jurisdictional standing(allegational prejudice), and prejudice on a merits determination(adjudicatory prejudice) and denial of a motion to dismiss for lack of standing.
    In a 97 page opinion Judge Merow finds for the government and intervenors on the administrative record. After noting that “SAIC’s overall unacceptable rating prevents it from establishing it had any chance, much less a substantial chance of an award” he concludes that SAIC failed to meet its burden that the Agency’s evaluation of SAIC s proposal was not in accordance with stated evaluation criteria or inconsistent with applicable law. While SAIC disagrees with many of the Agency’s conclusions and resulting ratings, SAIC failed to establish that these conclusions lack a rational basis. Upon careful review of the record and arguments of counsel, SAIC has failed to establish (1) that its unacceptable rating lacked rationality or was in violation of procurement law; and (2) that it would have had a substantial chance of being included in the group of awardees even if more than an insubstantial number of the errors asserted were found to have validity. See IBM Corp. v. United States, 101 Fed. Cl. 746, 757-64 (2011) (denying merits of protestor’s claims of error in adjectival ratings, disparate treatment and other claims in solicitation for multiple IDIQ contracts for software and IT products); Standard Commc’ns, Inc. v. United, 101 Fed. Cl. 723, 731-32 (2011) (crediting agency rating determinations).

RES-CARE, INC. v. THE UNITED STATES, COFC No. 12-251C, November 09, 2012. Bid protest of pre-solicitation notice of a small business set-aside to operate a DOL Job Corps facility. Plaintiff is the incumbent contractor but is not small. Plaintiff argues that a provision of the Workforce Investment Act at 29 U.S.C. § 2887(a)(2)(A) “Except as provided in subsections (a) to (c) of section 3304 of Title 41, the Secretary [of Labor] shall select on a competitive basis an entity to operate a Job Corps center . .” is violated as small business set-asides are not competitive as required by the statute. Alternatively, plaintiff argues that the rule of two decision of the CO was arbitrary and capricious. Plaintiff attempts to supplement the administrative record to support its position that small businesses have a poor track record in running Job Corps centers. After examining and discussing CICA, FASA, the FAR and implementing regulations, Judge Bruggink finds that the set-aside procedures meet the competition requirement and find for the government on the administrative record. He also denies supplementation of the record.

SUFI NETWORK SERVICES, INC. v. THE UNITED STATES, COFC No. 11-804C, November 08, 2012. An interesting and somewhat rare case as the COFC reviews under the now repealed Wunderlich Act decisions of the ASBCA from this April 26, 1996 contract between SUFI Network Services, Inc. (“SUFI”) and the Air Force Non-Appropriated Funds Purchasing Office (“AFNAFPO”) to provide telephone service in the guest lodging rooms on U.S. Air Force bases in Germany. The ASBCA had finally awarded damages to SUFI of $4,625,821.35. Judge Wheeler now increases that to $118,764,081.34 finding errors of law in the ASBCA decisions, irrational damages decisions and makes some necessary factual findings without remanding to the ASBCA. Very good discussion of the blatant breaches by the government and SUFI’s entitlement to damages.

J.C.N. CONSTRUCTION, INC. v. UNITED STATES, COFC No. 12-353C, November 06, 2012. Post-award protest of a Postal Service contract for a fixed price contract to replace a HVAC system in a Portland, Maine post office. This is a second contract for the work after plaintiff had invoked Postal Service Dispute Resolution proceedings resulting in a resolicitation for the work. As a result of these proceedings the second solicitation and evaluation was transferred to a Postal Service office in another state. Plaintiff requests injunctive, declaratory relief and judgment in the administrative record. Plaintiff argues “that the Postal Service treated offerors unfairly by allowing the chosen offeror, Paul J. Rogan Co., Inc. (‘Rogan’), to have inside information concerning the scope and timing of work to be performed, misapplying the solicitation evaluation criteria, and providing an improper advantage to Rogan by breaching its implied duty to consider proposals fairly and honestly in an earlier solicitation for the same work.”
   Judge Lettow finds that plaintiff has prevailed, but denies injunctive relief as the contract is mostly completed. He does find that plaintiff is entitled to its bid and proposal costs. Of note is Judge Lettow’s rejection of the government’s argument that since the passage of the Administrative Dispute Resolution the court no longer has jurisdiction over the claim of the implied duty to consider proposals fairly and honestly, relying on Federal Circuit’s decision in Resource Conservation Group, LLC v. United States, 597 F.3d. 1238 (Fed. Cir. 2010) which held that the implied duty survived at the COFC for non-procurement actions. Judge Lettow notes, and the government acknowledges, that Castle-Rose, Inc. v. United States, 99 Fed. Cl. 517, 531 (2011) is in direct contravention with the government’s position. He also notes that the rationale of Castle-Rose was supported by the Federal Circuit in Systems Application & Techs., Inc. v. United States, 691 F.3d 1374 (Fed. Cir. 2012). He also rejects all of the government’s arguments on waiver and patent ambiguity. He does find that plaintiff was prejudiced, but as noted earlier injunctive relief is not warranted here.

VERIDYNE CORPORATION v. THE UNITED STATES, COFC No. 06-150C, November 05, 2012. MARAD contract for logistics services. Judge Christine Miller reopens her July 6, 2012 judgment “for the limited purpose of allowing defendant to file a statement of its costs incurred in connection with reviewing certain fraudulent claims made by Veridyne.” The issue is whether the government has sufficient documentation to prove that its cost were reasonable under 41 U.S.C. § 7103(c)(2) which provides:

c) Fraudulent Claims.-(1) No authority to settle. - This section does not authorize an agency head to settle, compromise, pay, or otherwise adjust any claim involving fraud.
b(2) Liability of contractor. - If a contractor is unable to support any part of the contractor’s claim and it is determined that the inability is attributable to a misrepresentation of fact or fraud by the contractor, then the contractor is liable to the Federal Government for an amount equal to the unsupported part of the claim plus all of the Federal Government’s costs attributable to reviewing the unsupported part of the claim. Liability under this paragraph shall be determined within 6 years of the commission of the misrepresentation of fact or fraud.
The government seeks $357,256.08 for its costs including those for 1) costs of Department of Justice attorney time; 2) costs of labor for MARAD personnel; 3) costs of obtaining documents including forensic imaging of Veridyne’s computers; and 4) costs of a forensic auditor from the Defense Contract Audit Agency to provide investigative support and expert consultative services. Judge Miller notes the dearth of case law on the matter of the government’s entitlement to costs under this provision of the CDA. She discusses the relevant cases and notes-
“Those who disparage the time and work of dedicated government personnel (in this case, especially, the DOJ attorneys) do not want to pay additional administrative costs that would be incurred by DOJ and agency personnel if they were required to bill their time with the same exacting temporal breakdowns and detail as private party litigants. Therefore, the court assumes that post facto reconstruction of government costs may be anticipated. However, what persuades the court in this case that it would be unfair, improvident, and unwarranted to accept defendant’s conservative estimate of DOJ and MARAD labor costs is that defendant knew as of a given date that it would be incurring costs of review for which the CDA allowed recovery. As soon as it began considering filing a CDA fraud counterclaim, the Government was obliged to begin reconstructing its prior costs of review and documenting its ongoing costs of review.”
Judge Mller disallows the costs of DOJ attorneys and MARAD employees as not properly documented. She allows 40% of the forensic imaging cost and all of the DCAA costs for a total of $88,214.94.

SIERRA NEVADA CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant, and HAWKER BEECHCRAFT DEFENSE COMPANY, LLC, Defendant-Intervenor, COFC No. 12-375C, November 01, 2012. Post-award bid protest, Air Force procurement of airplanes for the Afghanistan National Army Air Corps. Plaintiff, in this contentious procurement, challenges the corrective action taken by the Air Force which terminated plaintiff’s contract and solicited new proposals. Plaintiff argues that the corrective action was not targeted to any flaws in the procurement and is biased in favor of awardee and intervenor. Plaintiff further argues that earmarks designating funding for intervenor’s aircraft violated Section L 6.3 of the solicitation. Plaintiff seeks a permanent injunction enjoining the Air Force from resoliciting the contract based on new proposals and reversing its contract award. Judge Christine Miller finds for the government and intervenor on the administrative record, except insofar as she grants plaintiff’s request for declaratory relief. She notes “It is the province of the Air Force in the first instance to apply Section L 6.3. Plaintiff’s motion for judgment on the administrative record is granted only insofar as the amended solicitation, by its terms, necessitates an explanation of how the offerors’ proposals were evaluated against Section L 6.3 of the amended solicitation.” The L 6.3 provision stated “The Government will not fund any development associated with the offerors’ proposed solution. ”

YOUR RECRUITING COMPANY, INC., Plaintiff, v. THE UNITED STATES, Defendant, and GOLDEN KEY GROUP LLC, Intervenor., COFC No. 12-509C, October 22, 2012. Post-award bid protest, NSF award. Plaintiff essentially challenges the Procurement Integrity Act decision by the CO after plaintiff had raised the matter in a protest to the GAO. Judge Bruggink finds for the government on the administrative record. He notes “Although it is not written in the clearest terms, we think a fair reading of the contracting officer’s decision is that there was no support for the allegations of a Procurement Integrity Act violation because the information was not proprietary, and even if it was, it was not ‘stolen,’ as plaintiff alleged. What he concluded, in effect, is that the most plaintiff could establish is that Golden Key plagiarized language from YRC. However, such plagiarism was immaterial because Golden Key stood by the representations it made, and they were, in any event, not very important to the agency’s substantive evaluation.

LABORATORY CORP. OF AMERICA v. THE UNITED STATES, COFC No. 12-622C, October 22, 212. Bid protest. Interesting little case. Plaintiff protests that it bid should have been accepted after it was rejected by a change in the GSA e-Buy website. GSA apparently does not keep records of changes made at the website. Judge Allegra is concerned with spoliation issues and orders the government to file a memorandum addressing “whether the agency’s destruction of solicitation materials constitutes spoliation and whether sanctions are appropriate. Defendant shall include with its response a copy of GSA’s document retention policies applicable to the e-Buy website.”

HARTFORD FIRE INSURANCE COMPANY v. THE UNITED STATES, COFC No. 11-499C, October 22, 2012. Plaintiff was the surety on two Corps of Engineers contract awarded to Overstreet Electric Co. One contract was for work in Indiana and the other for work in Georgia. The Georgia contract was terminated for default and later changed to a termination for convenience and Overstreet was paid $700,000 in settlement of that dispute. Prior to the settlement the Indiana contract was in trouble and plaintiff contacted the CO on the Indiana contract and “advised and requested that the Corps exercise its rights as an owner/obligee with other contracts with Overstreet Electric to offset or withhold payments that may be due Overstreet Electric to secure the Corps and the Hartford to those funds by way of its equitable rights of subrogation ... ”
    Plaintiff seeks to exercise its right of equitable subrogation arguing that the government wrongly made payments to Overstreet in violation of the government’s stakeholder duty to the surety The government moves to dismiss for failure to state a claim under RCFC 12(b)(6). Plaintiff argues that the case fits “within the holding in Transamerica, in which the Court of Appeals for the Federal Circuit held that a performance bond surety stated a cause of action against the government for equitable subrogation when it sought funds payable by the government to the contractor on an equitable adjustment to a separate contract. Transamerica Ins. Co. v. United States, 989 F.2d 1188, 1195 (Fed. Cir. 1993).” The government argues that case falls under the Dependable Ins. Co., Inc. v. United States, 846 F.2d 65, 67 (Fed. Cir. 1988) line of cases, rather than the Transamerica decision, and as such, plaintiff’s recovery should be limited to the retained Indiana contract funds, as that was the project generating the claim.
    Judge Futey denies the government’s motion to dismiss. He notes that there are factual issues which need to be decided including the notice requirement for stakeholder duty and the reasonable discretion by the government in disbursing the funds. Good discussion of the cases and issues of equitable subrogation.

KENNEY ORTHOPEDIC, LLC, and JOHN M. KENNEY v. THE UNITED STATES, COFC No. 11-502C, October 17, 2012. See earlier decision in this long running case. Plaintiff sues for a breach of a settlement agreement and also for the breach of the implied covenant of good faith and fair dealing and also a misrepresentation by the government. The government moves for a partial dismissal and for failure to state a claim. The government argues that 28 U.S.C. § 1500 requires a dismissal as plaintiff has filed an action in a state court based on the same operative facts even though the state court action was filed after the present suit. Judge Braden rejects this argument nothing that the government relies on the dicta in United States v. Tohono O’Odham Nation, 131 S. Ct. 1723. She notes “‘[W]e look to the facts as they exist when a plaintiff filed his Claims Court complaint to determine if § 1500 applies.’ Central Pines Land Co. v. United States, No. 2012-5002, 2012 WL 4857001 at 3 (Fed. Cir. Oct. 15, 2012); see also Harbuck v. United States, 378 F.3d 1324, 1328 (Fed. Cir. 2004) (‘The question of whether another claim is pending for purposes of § 1500 is determined at the time at which the suit in the [United States] Court of Federal Claims is filed, not the time at which the Government moves to dismiss the action.’) (internal quotation marks omitted). In opposition to that clear binding precedent, the Government offers dicta, albeit from the Supreme Court of the United States, and legislative history. The court is required to apply the controlling law. For these reasons, the court has determined that section 1500 does not deprive this court of jurisdiction.”
    Judge Braden rejects the misrepresentation in the inducement claim noting that “Rule 9(b) requires a complaint to allege ‘the specific who, what, when, where, and how’ of the misrepresentation.” Here plaintiff has failed to allege facts sufficient to support the claim.

IHS GLOBAL INC. v. THE UNITED STATES, and BAE SYSTEMS INC., Defendant-Intervenor, COFC No. 12-332C .October 16, 2012. Pre-award bid protest as plaintiff objects to the planned sole-source award to intervenor. Plaintiff challenges the government’s assertion that a sole-source is proper because intervenor owns certain data rights that are need to perform the contract. The government and intervenor move to dismiss for lack of standing arguing that plaintiff does not have the minimum technical capability to perform and is therefor not a qualified offeror. Intervenor also argues that plaintiff should be precluded from the competition as it did not provide a capability statement to the Air Force during the period specified.
    Although Judge Wheeler’s opinion discusses the date rights issue at some length, he does not decide that issue. After an extensive discussion of the standing issue and the relevant COFC and Federal Circuit decisions he concludes that plaintiff lacks standing as it is not a qualified offeror. He note that the administrative record shows that plaintiff “does not currently possess a tool that is immediately capable, as the Air Force requires, of managing and processing at least six essential data fields.”
    Judge Wheeler sets out his expectation when he concludes “In any event, the Court agrees with the Air Force that, as a practical matter, the fastest and most efficient way for the agency to compete the DMSMS contract is through the inclusion of new contract terms requiring BAE to acknowledge the Government’s unlimited rights in all data necessary to the performance of the contract, and to deliver the same at the end of the contract period. Further, because this approach allows the Air Force to continue its obsolescence management work while it corrects the various data issues discussed above, the Court notes that its decision comports with the statutory requirement that, in bid protest cases, it “give due regard to the interests of national defense and national security and the need for expeditious resolution of the action.” 28 U.S.C. § 1491(b)(3). The Court fully expects that, no later than the completion of the proposed sole-source contract one, or at most two, years from now, the Air Force will be in a position to open its DMSMS contract to competition. IHS has notice of the technical developments it must make, at its own expense, should it desire to compete for the contract at that time. Of course, this Court would have jurisdiction to resolve any disputes that may arise for IHS or another qualified offeror at that time.”

ETTEFAQ-MELIAT-HAI-AFGHAN CONSULTING, INC. V. THE UNITED STATES, COFC No. 11-659C, October 16, 2012. Post-award bid protest, Army multi-award procurement for National Afghan Trucking services. Plaintiff challenges its nonresponsibility determination and its exclusion from the competition. The CO had reviewed the responsibility of plaintiff under FAR 9.104-1 and found

Judge Williams grants the government’s motion on the administrative record finding that findings of the CO were rational and well supported.

UNION PACIFIC RAILROAD COMPANY v. THE UNITED STATES, COFC No. 12-89C, October 16, 2012. Plaintiff sues for breach of contract for a contract awarded in 1959 and completed in 1964. The contract provided for modifications to a railway in association with a dam project. On May 23, 2003, a train derailed when a portion of the track collapsed. The apparent cause of the collapse was the use by the government of corrugated metal culverts rather than reinforced concrete culverts required by the contract. After several years of suit in district court under the Tort Claims Act and a reversal by the circuit court the case was filed in the Court of Federal Claims on February 09, 2012. The government moves to dismiss for lack of jurisdiction due to the six year statute of limitation. Plaintiff argues that the government waived the jurisdictional argument and that the claim did not accrue until 2007. Judge Lettow dismisses the action finding that the claim accrued on or before May 13, 2005 and the claim expired on May 13, 2011. He notes that the statute of limitations, 28 U.S.C. 2501, is a jurisdictional requirement and cannot be waived or tolled. Judge Lettow notes that the only exceptions to the statute are legal disability and beyond the seas at the time the claim accrues, neither of which apply here. The court also notes

“Regrettably, this is yet another case where the government has ‘tak[en] entirely irreconcilable positions regarding the jurisdiction of the federal courts.’ VanDesande v. United States, 673 F.3d 1342, 1351 (Fed. Cir. 2012). As in other such instances, ‘[t]he [g]overnment’s shifting positions have led to an unnecessary waste of money and judicial resources, and are manifestly unfair to the litigant.’ Id. Draconian as it may be, this court nonetheless is compelled by law to ignore the government’s prior acceptance of jurisdiction in the district court until more than six years had passed from the culvert collapse and the advent of Union Pacific’s claim in this court.”

AFGHAN AMERICAN ARMY SERVICES CORPORATION v. THE UNITED STATES, COFC No. 11-520C, October 15, 2012. Post-award bid protest, Army multi-award procurement for National Afghan Trucking services. Plaintiff challenges its nonresponsibility determination and its exclusion from the competition. The CO had cited a multitude of issues in reaching her responsibility decision including past performance, delivery and business integrity issues. The determination also included allegations of forged Transportation Movement Requests (TMRs), reoccurrences of transponder stacking and mention of a Notice of Proposed Debarment. Judge Williams concludes that “AAA has demonstrated that the government unreasonably relied on allegations of forgery contained in a referral for proposed debarment -- even though forgeries had never been mentioned during AAA’s HNT performance, and the contracting officer never provided AAA with any details of the forgeries or afforded AAA an opportunity to respond. In addition, the contracting officer found that AAA’s corrective action was deficient when no corrective action had been taken or requested. Finally, the Government conceded that the contracting officer erred in concluding that AAA engaged in more than a single instance of transponder stacking.” Judge Williams finds that plaintiff is entitled to a declaratory judgment and injunctive relief and orders that

“(a) AAA’s nonresponsibility determination is declared null and void and is vacated. (b) The Court remands this matter to the Army to reevaluate AAA’s responsibility without considering the Notice of Proposed Debarment, alleged TMR forgeries or reoccurrence of transponder stacking, consistent with this opinion. (c) The Army shall complete its reevaluation of AAA’s responsibility within 45 days from the date of this opinion.”
See addendum to classified opinion, October 18, 2012.

ATLANTIC DIVING SUPPLY, INC. v. THE UNITED STATES, and VF IMAGEWEAR, INC., Defendant-Intervenor, COFC No. 11-894C, October 11, 2012. Department of Interior contract for civilian uniforms. Plaintiff challenges the finding that its proposal was unacceptable after the initial evaluation and reevaluation after a protest to the GAO. Plaintiff alleges many errors in the evaluation of its proposal and argues extensively that the fact that it received a perfect score for the past performance factor is evidence that it should have been scored higher in most of the other technical factors. Judge Firestone disagrees in a 45 page opinion in which she finds the government’s decision to be rational and supported by the record. She notes that the solicitation required proposals to discuss the elements in detail and that other information would not be considered. She rejects plaintiff’s argument that because the Technical Evaluation Panel did not follow the procedures in it appointment letter that the TEP’s that the award decision based on the TEP’s improper evaluation lacked a rational basis. Judge Firestone discusses the relevant cases and notes “It is well settled that source selection plans and other guidelines do not give any rights to offerors.” She concludes by finding for the government and intervenor on the administrative record.

PHOENIX MANAGEMENT, Inc., Plaintiff, v. THE UNITED STATES, and ALLIANCE TECHNICAL SERVICES, Inc., Defendant-Intervenor, COFC No. 12-325, October 09, 2012. Air Force solicitation for launch support services at Vandenberg Air Force Base. Plaintiff essentially argues that award to intervenor would be improper as intervenor misrepresented the qualification of it proposed employees as it did not provide commitments for the employees. Judge Braden notes that the interpretation of the solicitation is a matter of law. Citing Metric Constructors, Inc. v. Nat’l Aeronautics & Space Admin., 169 F.3d 747, 752 (Fed. Cir. 1999) (quoting Hol-Gar Mfg. Corp. v. United States, 351 F.2d 972, 975 (Ct. Cl. 1965)); she notes “The issue before the court is whether a ‘reasonably intelligent person acquainted with the contemporaneous circumstances’ would read the Solicitation as requiring an offeror to submit credentials only for workers who had committed to join its workforce if the Agency awarded the offeror the contract.” Although she notes that the solicitation provides little guidance on the issue she finds for the government and intervenor on the administrative record. She also notes that if plaintiff thought the solicitation was unclear on the issue of commitments that issue should have been brought earlier under the standards of BLUE & GOLD, FLEET, L.P. v. UNITED STATES, and HORNBLOWER YACHTS, INC., CAFC No. 2006-5064, June 26, 2007

EXTREME COATINGS, INC. v. THE UNITED STATES, COFC No. 11-895C, October 03, 2012. Corps of Engineers contract to repair spillway items. The CO issued a draft CPAR report finding plaintiff’s performance unsatisfactory in certain areas. Plaintiff submitted a claim seeking a review of its performance and requested a CO’s final decision. The request for a final decision was denied because the CPAR had not been finalized. Plaintiff had also submitted a money claim which was denied by a CO’s final decision which also asserted a government counterclaim for corrective action. On August 03, 2011, the CO issued a final CPAR. Plaintiff filed this action on December 12, 2011 requesting that the CPAR be withdrawn and revised. The government moves to dismiss the CPAR issue for lack of jurisdiction because plaintiff never filed a claim on the final CPAR report. Plaintiff argues that the issue is mooted as it submitted a claim on the CPAR issue on September 12, 2012. The government counters that the CO has no authority to consider the matter as case is now in litigation relying on Sharman Co. v. United States, 2 F.3d 1564 (Fed. Cir. 1993)).
    Judge Wheeler denies the government’s motion but does stay the action for 30 days to allow plaintiff to submit a claim to the CO. Judge Wheeler discuss Sharman and later cases and notes “Here, ECI’s claims are not “mirror images,” as the Government itself admits in its reply brief. Def.’s Reply Br. 4 (stating the claims are “nearly identical”). A monetary claim and a claim asking for reevaluation of ECI’s performance under the contract are distinct because neither asks for the “same entitlement to the same amount.” Johnson Controls, 43 Fed. Cl. at 511. That both claims arise out of the same facts and involve allegations of defective specifications is of no moment, because one claim is for a reimbursement of costs, while the other claim asks the contracting officer to reevaluate ECI’s performance under the contract. ECI is not asking the Court to grant it monetary damages from the Government’s negative evaluation of its performance. Additionally, ECI’s reevaluation claim is distinct from the Government’s counterclaim for corrective action costs. Thus, the contracting officer still possesses the authority to decide ECI’s claim on the final versions of the interim and final CPAR’s.” Although neither party has requested a stay, Judge Wheeler finds the stay will promote judicial efficiency.

GOLDEN MANUFACTURING CO. INC. v. THE UNITED STATES, COFC No. 12-317 C, October 01, 2012. Pre-award bid protest Defense Logistics Agency Troop Support (DLATS) procurement for trousers. Plaintiff argues that after it was eliminated from the competition changes were made to the solicitation by Amendment 15 which were cardinal changes and required the competition to be reopened. Judge Bush first examines the standing issue for a pre-award bid protest including the Weeks Marine, Inc. v. United States, 575 F.3d 1352,(Fed. Cir. 2009) case. She concludes that the “‘non-trivial competitive injury’ test for standing must be employed in this case, despite the fact that Golden submitted a bid in response to the original Solicitation and its bid was evaluated by DLATS on two of the three evaluation criteria.”
    The court finds for the government on the administrative record and concludes “The court has considered all of the changes in Amendment 15 that were noted by plaintiff, Pl.’s Mot. at 20, and finds that Amendment 15 was not a cardinal change to the Solicitation. Neither CICA nor FAR 15.206(e) was violated by the issuance of Amendment 15 and DLATS’s decision to proceed with the second phase evaluation of the remaining offerors. The court also finds that the Agency’s first phase evaluation of proposals was not rendered invalid by the issuance of Amendment 15. Because plaintiff has not succeeded on the merits of its protest, the court need not consider whether Golden was prejudiced by the Agency’s decision to proceed with the second phase evaluation of remaining offerors after issuing Amendment 15, or whether the standard for injunctive relief has been met in this case.” Very good discussion of cardinal change cases.

C.R. PITTMAN CONSTRUCTION COMPANY, INC. v. THE UNITED STATES, COFC No. 08-196C, September 28, 2012. Corps of Engineers contract for construction of flood control projects. See earlier decision in this case. Plaintiff argues “that the negligence of the Corps of Engineers in designing, maintaining, and operating the New Orleans levees and floodwalls prevented Plaintiff from fulfilling its obligation to provide equipment free from damage, amounting to a breach of the Government’s implied duty not to hinder performance of the contracts.” The government counters that the Sovereign Acts doctrine precludes plaintiff form raising negligence as a defense. Plaintiff responds that the Sovereign Act doctrine does not apply as the negligence at issue was not incidental to the contracts. Judge Smith denies plaintiff’s negligence issue as precluded here by the Sovereign Acts doctrine. However, he leaves open the issue of the impossibility exception to the Sovereign Acts doctrine.

UNIGLOBE GENERAL TRADING & CONTRACTING CO., W.L.L. v. THE UNITED STATES, COFC No. 10-204 C, September 27, 2012. Army contract for the lease of vehicles in Kuwait. The government moves to dismiss as untimely arguing that the claim was not submitted to the CO within six years of the time that it accrued and that suit was not filed within one year of the CO’s final decision. Judge Bush rejects the government’s argument that six year statute of limitations of 28 U.S.C. § 2501 is applicable to this case noting that “the United States Court of Appeals for the Federal Circuit and this court have held that the six-year statute of limitations contained in section 2501 does not apply to suits brought under the CDA. See Pathman Constr. Co. v. United States, 817 F.2d 1573, 1580 (Fed. Cir. 1987).” The court then discusses the CDA six year presentation issue of 41 U.S.C. § 7103. The court finds that the claim was not filed within six years of its accrual and that the period should not be equitably tolled as “there is no evidence that Uniglobe was ‘induced or tricked’ by any misconduct on the part of the government.” The court concludes “there is no question that the claims on the 442 contract were not filed in this court within the twelve-month statute of limitations set forth in section 609(a)(3). For that reason, those claims must be dismissed under RCFC 12(b)(1) for lack of subject matter jurisdiction.”

KELLOGG BROWN & ROOT SERVICES, INC. v. THE UNITED STATES, COFC Nos. 09-428C & 09-578C, September 27, 2012. Court’s synopsis “Contracts; Contract Disputes Act, 41 U.S.C.A. §§ 7101-09 (2006); equitable adjustment; cost-reasonableness determination; trial; provision of DFAC (dining facility) services to troops in Iraq; cost-plus-awardfee for government contract; fixed-price contract for subcontractor-provider.”
    Judge Christine Miller introduces the case as follows “This case involves a claim for the provision of dining facility services for the United States Army at Camp Anaconda, one of the largest United States military bases in Iraq during the troop buildup following the March 2003 invasion. Its resolution calls for reconciliation of the prime contractor’s burden to provide reasonable justification—years after the fact—for claimed costs that were passed through to the prime contractor under fixed-price contracts with the reality that the costs were incurred during the exigencies of war.” Extensive discussions of the burden and issues in determining the reasonableness of the costs claimed. Judge Miller direct the parties to submit a joint stipulation “consistent with the directions listed below, reflecting the amount of judgment to be entered in each case for plaintiff:”

AHMED HALIM, Plaintiff, v. THE UNITED STATES, COFC No. 12-5 C, September 24, 2012. Case involves several HUD Housing Assistance Payment(HAP) contracts for which plaintiff alleges various breaches by the government. Plaintiff makes requests for declaratory and injunctive relief. The government moves to dismiss and relies, in part, that plaintiff has claims related to several of the contracts pending in District Court, and that 28 U.S.C. §. 1500 (2006), as interpreted by United States v. Tohono O’Odham Nation (Tohono), 131 S. Ct. 1723 (2011), bars jurisdiction by the COFC. Chief Judge Hewitt denies the motion based on 28 § 1500 finding that the action in the district court were filed after the filing here. She does dismiss the requests for declaratory and injunction relief as beyond the jurisdiction of the COFC. Good discussion of the 28 § 1500 and the declaratory authority, or lack thereof, of the COFC.

LUBLIN CORPORATION, t/a CENTURY 21 ADVANTAGE GOLD v. THE UNITED STATES, COFC No. 07-206C, September 19, 2012. Plaintiff was a subcontractor to a HUD prime contractor and alleges that HUD breached a confidentiality agreement which was basis for the prime terminating the subcontract two hours after the prime met with HUD. See earlier decision, with a good discussion of implied actual authority, denying the government’s motion for summary judgment. Judge Allegra dismisses the case finding that plaintiff has not proven that any alleged contract was breached.
    Judge Allegra concludes stating “Plaintiff attempts to pile a Pelion of conjecture upon an Ossa of speculation in relying on a single, lonesome fact—the timing of its termination—to prove that HUD officials breached an alleged confidentiality agreement. But like the Greeks of old, whose stone pile atop Mt. Olympus failed to reach the heavens, plaintiff’s efforts fall far short of its goal, dashed, inter alia, by evidence proving that HVH’s decision to terminate Lublin predated Lublin’s meeting with HUD.”

SIKORSKY AIRCRAFT CORPORATION v. THE UNITED STATES, COFC Nos. 09-844C & 10-741C, September 13, 2012. A primer on the deliberative process privilege in a case alleging violations of Cost Accounting Standards. The government asserts the privilege and moves to strike the subject documents and all mention of them in plaintiff’s brief. The government disclosed the documents(Exhibit P.), emails between government auditors, during discovery in February 2011. In July 2011, at the conclusion of a deposition by plaintiff regarding the documents, the government informed plaintiff’s counsel that the documents may be privileged and requested that the document and deposition be sealed while it investigated the privilege. Plaintiff agreed to the request. In January 2012, DCAA asserted the privilege, but the government did not inform plaintiff that it was asserting the privilege until May 2012. Judge Lettow discusses at length the cases on deliberative process privilege and waiver of the privilege and examines the issues under the guidance of Fed. R. Evid. 502 RULE ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT; LIMITATIONS ON WAIVER, specifically 502(b).
    He denies the government’s motion to strike concludings “In light of these precedents, it is evident here that the government did not act with sufficient alacrity to claw back the records produced in this case. The government waited until the conclusion of Mr. Boyer’s deposition to raise the possibility of a claim of deliberative process privilege. That alone is not fatal, though it is hardly helpful. Cf. Nguyen v. Excel Corp., 197 F.3d 200, 206-08 (5th Cir. 1999) (holding that objections to attorney’s conclusions came too late, after no objection had been raised to related questions about directions company’s executives had provided to attorneys). The months of inexplicable delay that followed, however, are much more problematic. The court is well aware that the formalities attendant to assertion of the deliberative process privilege may require more time than an attorney’s typical assertion of attorney-client privilege or work-product protection. But, Mr. Boyer’s deposition took place on July 20, 2011, yet the government waited until January 19, 2012, roughly six months later, to assert the deliberative process privilege over Exhibit P. Thereafter, inexplicably and inexcusably, the government waited until May 14, 2012, nearly four months after its assertion of privilege and two-and-one-half months after Sikorsky had used Exhibit P in a brief, to communicate its assertion of privilege to Sikorsky. In total, the government waited almost ten months, from July 20, 2011 until May 14, 2012, to convey its assertion of privilege over Exhibit P. By any measure, that is simply too long a time to try now to resuscitate the privilege. Its spirit has long since entered the Elysian Fields of the public domain.”

BPLW ARCHITECTS & ENGINEERS, INC. v. THE UNITED STATES, COFC No. 09-672C, September 07, 2012. Corps of Engineers contract for construction of dormitories at Lackland Air Force Base. Plaintiff appeals the government’s claim of $7.6 million for negligent design. Judge Wheeler finds for plaintiff except for some $200,000. He summarizes the case as follows: “the Court finds that BPLW did indeed provide negligent underfloor piping and civil site grading designs, as both failed to comply with the contract requirements and the applicable standard of care. The Court also finds, however, that the Government failed to establish that these negligent designs caused either the initial pipe breakage ultimately repaired by CF Jordan or the inadequate site grading remedied by Tepa. In addition, the Court finds that irrespective of causation, the Government failed to prove the reasonableness of the costs it paid to Tepa to replace the underfloor piping system. The Court therefore concludes that BPLW is liable to the Government for $197,596.47 in costs the Government incurred to implement certain modifications to BPLW’s designs, but that the Government is not entitled to the other damages it claims.”The opinion discusses the standard of care applicable the design contract and the need for the government to prove that the negligent design caused its increased costs.

K-CON BUILDING SYSTEMS, INC. v. THE UNITED STATES, COFC No. 05-914C, August 30, 2012. Judge Sweeney introduces the case as follows-“During trial in this government contract case, counsel for defendant discovered that his client, the United States Coast Guard (“Coast Guard”), possessed three boxes of documents relevant to the case that had not been identified or produced to plaintiff during discovery. Then, before plaintiff had an opportunity to review most of the documents, one of the government’s witnesses caused the documents to be destroyed. Plaintiff moves the court to sanction the government for this inauspicious conduct. For the reasons set forth below, the court finds that sanctions are warranted.” Good discussion of COFC Rule 37 and its application. Although the government does not argue the the discovery failures were justified it does argue that it was harmless. Judge Sweeney rejects that argument. She rules that, with limited exceptions, the government may not use the subject document as evidence, strikes the testimony of the government witness that testified about the documents and order the government to pay the costs, including attorney fees, of plaintiff’s efforts on the sanctions motion.

ATKINS NORTH AMERICA, INC., Plaintiff/Counterdefendant, and MACTEC ENGINEERING AND CONSULTING, INC., Counterdefendant, v. THE UNITED STATES, Defendant/Counterclaimant, COFC No. 09-112 C, August 30, 2012. Corps of Engineers architect-engineer contract to provide design services for a Corps project in Florida. Subsequently the contracting officer issued a final decision assessing almost $16 million in damages for defective design. Plaintiff appeals the final decision and because plaintiff has not paid, the government counterclaims based on the CO’s decision. Judge Sweeney notes that “The sole issue presented by the parties’ cross-motions for summary judgment is whether the contracting officer’s decision on the government’s claim is valid.”The case is an excellent primer on the statutory, regulatory and case decisions, both boards and courts, discussing the necessary elements of a valid CO’s final decision. She finds that the decision was valid and concludes

“Ms. Gonzalez[the CO] testified that prior to issuing the contracting officer’s decision, she reviewed various materials, including the case document, consulted with counsel and technical staff, made certain typographical changes, and, importantly, agreed with the findings set forth in the case document. In fact, she explicitly stated that the decision represented her independent findings. When faced with similar circumstances, the Agriculture Board of Contract Appeals concluded that it was “clear that while the [contracting officer] was not the primary decision maker and had little or no role in actually preparing the decision, he read it in detail, consulted with others within the agency, and agreed with the decision before signing it.” Gibson, 93-2 BCA at ¶ 25,615. In another case, the board similarly concluded that even though an attorney drafted the decision, the contracting officer rendered his own decision, remarking: “Most significantly, the [contracting officer] did not disagree with the decision, made changes to it, and signed the decision. If he had disagreed with it, he would have argued against it.” PLB Grain Storage Corp., AGBCA 89-152-1 et al., 92-1 BCA ¶ 24,731. The court agrees with the board’s analyses in these two cases and concludes that by reviewing the draft decision, consulting with others at the Corps, and agreeing with the findings in the draft decision, Ms. Gonzalez adopted the facts and conclusions set forth in the draft decision and made them her own.

    In sum, because the undisputed facts show that Ms. Gonzalez familiarized herself with the facts and proposed conclusions in the draft contracting officer’s decision and adopted those facts and conclusions as her own, the contracting officer’s decision she issued on March 28, 2008, represented her independent judgment.”

CROMAN CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant, and MOUNTAIN WEST HELICOPTERS, LLC, and COLUMBIA HELICOPTERS, INC., and SILLER HELICOPTERS, INC., Defendant-Intervenors, COFC No. 12-75C, August 29, 2012. Bid protest, Forest Service procurement for the use of helicopters for fire fighting forest fires. Plaintiff protests the evaluation of its proposal and the corrective action taken by the government after protests to the GAO. Judge George Miller denies the government’s motion to dismiss for mootness and lack of ripeness. Although the complaint was filed before the corrective action was completed he finds that plaintiff’s “objection to the corrective action, which was completed approximately one month after the protest was filed and approximately one month before briefing on the merits began, is not moot.” However, the court grants the motions of the government and intervenor for judgment on the administrative record finding that plaintiff has not shown that the government’s actions were irrational or contrary to law. Judge Miller also notes that plaintiff has not shown that it was prejudiced “even if the agency fell short of what is required by FAR, or that the record is inadequate for effective judicial review.”

OVERSEAS LEASE GROUP, INC. v. THE UNITED STATES, COFC No. 11-123C, August 24, 2012. DoD contract to lease vehicles for use in Afghanistan. Plaintiff appeals the denial of its claims for damages to vehicles returned by the government and for failure to honor the minimum term for leases specified in the contract. Judge Hodges grants summary judgment for plaintiff. He rejects the argument by the government that FAR 52.217-8, Option to Extend Services allowed the government to issue short term leases. He notes “FAR 52.217-8 does not apply to the facts of this case. Defendant did not require ‘continued performance of . . . services within the limits and at the rates specified in the contract.’ The short term leases it demanded occurred within the confines of the original contract. The Government had exercised a one-year option only three months before. Leases issued pursuant to the FAR clause would have been” He encourages the parties to reach a settlement on quantum.

NYCAL OFFSHORE DEVELOPMENT CORP. v. THE UNITED STATES, COFC No. 05-249C, August 23, 2012. Not a procurement law case. Having earlier found that the government was liable for breach damages in this offshore oil and gas lease, the issue in whether plaintiff is entitled to expectancy damages. Citing Cal. Fed. Bank v. United States, 395 F.3d 1263, 1267 (Fed. Cir. 2005) Judge Bruggink notes that plaintiff “is entitled to only those damages that it can prove (1) were foreseeable at the time of contract formation, (2) were actually caused by the breach, and (3) are reasonably certain.” Although Judge Bruggink finds for plaintiff on the foreseeability issue, he finds that plaintiff has not proven that damages were the proximate cause of the breach. Good discussion of the issues.

LUMMI TRIBE OF THE LUMMI RESERVATION, LUMMI NATION HOUSING AUTHORITY, FORT PECK HOUSING AUTHORITY, FORT BERTHOLD HOUSING AUTHORITY, AND HOPI TRIBAL HOUSING AUTHORITY, Plaintiffs, v. THE UNITED STATES, COFC No.08-848C, August 21, 2012. Plaintiffs sue to recover grant funds paid to them by the Department of Housing and Urban Development(HUD) under the Native American Housing Assistance and Self- Determination Act of 1996, as amended, 25 U.S.C. §§ 4101-4212 (2006), but later recaptured by HUD when it determined that the allocation formula on which the grants had been based had been misapplied. Plaintiffs argue that was required to conduct a compliance hearing required by the statute before recapturing the funds. The government moves to dismiss arguing that it had a common law to recover the funds by setoff.
    Judge Wiese denies the government’s motion concluding “In conclusion, we read Section 405 as governing HUD’s actions and thus as precluding HUD from exercising any common law right the agency might otherwise possess under circumstances not directly addressed by the statute. We further read that section as applying only in cases that do not involve a grant recipient’s substantial noncompliance with NAHASDA (which would fall instead under Section 401). In addition, we construe Section 405’s implementing regulations as requiring the Secretary to provide notice and the opportunity for a hearing before making an adjustment to a recipient’s grant amounts and as preventing the Secretary from recapturing grant amounts already expended on affordable housing activities. To conclude otherwise would allow HUD to deny grant recipients the protections Congress has afforded them when faced with a reduction in their grant funding, would further allow the agency to circumvent a process put into place by consensus rulemaking at the direction of Congress, and would lead to the anomalous result that a grant recipient in substantial noncompliance with NAHASDA would receive greater procedural protections before experiencing a recapture of their grant funds than recipients in full compliance (a target for recapture through a fault of HUD’s rather than their own). We are unwilling to endorse such an unsatisfactory result.”

NAVARRO RESEARCH AND ENGINEERING, INC., Plaintiff, v. THE UNITED STATES, Defendant, NORTH WIND, INC., Intervenor-defendant, EARTH RESOURCES TECHNOLOGY, INC., COFC No. 12-61 C, August 17, 2012. Pre-award bid protest. Plaintiff challenges the decision by NASA to proceed with GAO’s recommended corrective action. Judge Bush first notes that “The Federal Circuit has held that an agency’s decision to take corrective action will be deemed irrational only when it implements an irrational GAO decision. Turner Constr. Co. v. United States, 645 F.3d 1377, 1383 (Fed. Cir. 2011)”
    She finds for the government and intervenors on the administrative record after discussing and concluding:

STANDARD COMMUNICATIONS, INC. v. THE UNITED STATES, COFC No. 11-530, August 15, 2012. EAJA case. See earlier bid-protest case. Judge George Miller denies the motion for fees finding the the position of the government was substantially justified. He does allow a small portion of plaintiff’s motion for costs. The issue of whether or not the government’s position was substantially justified related to the documentation required for a best value determination as governed by FAR 15.308. Judge Miller finds that the agency’s interpretation that it was only required to include explanatory documentation when a higher priced proposal was accepted, while incorrect, was not unreasonable. On this issue he concludes “Accordingly, it was reasonable, albeit incorrect, for DVA to believe it was in compliance with FAR when it conducted and documented its tradeoff analyses. It was also reasonable for the Government to defend the agency’s position during litigation. Therefore, the Court finds that defendant’s position was substantially justified.”

DISTRIBUTED SOLUTIONS, INC., Plaintiff, v. THE UNITED STATES, Defendant, and COMPUSEARCH SOFTWARE SYSTEMS, INC., Defendant-Intervenor, COFC No. 12-274 C, August 10, 2012. Post-award bid protest, Department of Labor(DOL) FAR Part 8 procurement of COTS IT systems. After several GAO protests and corrective actions by DOL, plaintiff brings this action alleging a multitude of errors and failures by DOL in conducting this procurement. Judge George Miller finds for the government and intervenor on the administrative record. He notes that this was a FAR Part 8 procurement, not a Part 15 procurement. He finds that the decisions by DOL were not arbitrary or capricious and also rejects plaintiff’s argument that it was error for the same TEP to reevaluate proposals after the corrective action noting that “the TEP provided adequate documentation to support its analysis and the adjectival ratings it assigned to the quotes.”

BOSTON EDISON COMPANY, Plaintiff, v. UNITED STATES, Defendant. ENTERGY NUCLEAR GENERATION CO., Plaintiff, v. UNITED STATES, Defendant, COFC Nos. 99-447C & 03-2626C, August 10, 2012. Spent nuclear fuels case. The government moves for reconsideration of final judgment having been entered after parties’ voluntary stipulation and request for that final judgment. Judge Lettow denies the motion. Judge Lettow notes that “the government’s motion is strangely discordant, odd, and puzzling” and “For the government now to suggest that the final judgment was in clear error is, as the court noted at the hearing on the pending motion, so divergent from the Stipulation for Judgment as to appear disingenuous or outlandish.”

360TRAINING.COM, INC. v. THE UNITED STATES and CLICKSAFETY.COM, INC., Intervenor, COFC No. 12-197 C, August 03, 2012. Post-award bid protest, OSHA procurement for Outreach Training Program courses. Previously plaintiff was an authorized provider for several courses, but was not among the ten providers selected in this procurement. See earlier decision denying the government’s motion to dismiss for lack of jurisdiction. Plaintiff argues that the government did not follow the evaluation criteria in the RFP and it was unfairly eliminated from consideration by an undisclosed two step review process. Judge Damich finds for plaintiff on the administrative record and issues a preliminary injunction. He finds that OSHA disqualified 360 based on undisclosed eligibility requirements, OSHA misapplied the selection criteria by placing outsized emphasis on 360’s past performance and OSHA failed to provide a reasonable explanation for its decision.
    He states “After reviewing these documents, the Court cannot discern the exact process OSHA used to evaluate the applications because there are many inconsistencies among the documents and the contemporaneous evaluations do not match OSHA’s final conclusions. In trying to reconcile these records, the Court must take note of some of the details of OSHA’s rating decisions. Although the Court is looking at the particular ratings OSHA gave to certain applications, it is only to determine whether OSHA considered the appropriate factors—the selection criteria—and whether the process OSHA used was consistent with the RFA. The Court expresses no opinion on OSHA’s judgment of the technical ratings given to the applications. The Court does not wish to wade into ‘the minutiae of the procurement process in such matters of technical ratings.’ See E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996). So long as the agency considers the appropriate factors and its decision evinces rational reasoning, the Court will defer to the agencyv’s decision. Weeks Marine, 575 F.3d at 1369. Deference is inappropriate, however, where an agency fails to provide ‘a reasoned explanation for its decision which is in accord with material facts contained in the administrative record.’ Nutech Laundry, 56 Fed. Cl. at 593.”

OMNIPLEX WORLD SERVICES CORP. v. THE UNITED STATES, COFC No. 12-249 C, August 01, 2012. Post-award bid protest OPM contract for field investigative work. Plaintiff was an incumbent and was the only offeror to increase its prices after a solicitation revision informed offerors that prices were too high. “Plaintiff makes three arguments in support of its protest: that OPM violated Federal Acquisition Regulation (FAR) 15.307(b) by failing to request final proposal revisions from all offerors within the competitive range; that OPM violated FAR 15.306(d)(3) by failing to engage in meaningful discussions with Omniplex; and that OPM’s evaluation of Omniplex’s technical proposal was unreasonable and inconsistent with the requirements of the Solicitation.” Chief Judge Hewitt “finds that neither the letter nor the spirit of FAR 15.307(b), in view of the surrounding circumstances, was adhered to in this case.” However she finds that plaintiff was not prejudiced by the violation of 15.307(b) as it has not shown that it had a substantial chance of receiving an award. Judge Hewitt finds for the government on the administrative record

WATTERSON CONSTRUCTION COMPANY v. THE UNITED STATES, COFC No. 10-587C, July 1, 2012. EAJA case. Plaintiff requests fees for the late bid protest where it was the prevailing party in a case where the government’s mail server received plaintiff’s proposal at 11:29 a.m., but the CO did not receive it until 12:04 p.m., four minutes after the closing time.. See 2011 COFC decision. The government opposes the award of fees arguing that plaintiff did exceeded the $7 million net worth limitation at the time the civil action was filed and that the government’s position was substantially justified.
    Although noting, “the court has not found, any controlling case law on the propriety of the proposed adjustments to Watterson’s August 31, 2010 balance sheeet”, Judge Braden does not reach that issue as she finds that the government’s position was substantially justified. She notes “For the reasons discussed herein, the Government has met its burden of establishing that its position was substantially justified. The Government’s position during litigation concerned the following pre-litigation decisions: treating Watterson’s proposal as late under FAR 52.215-1(c)(3)(i), (ii); declining to excuse the proposal’s lateness under FAR 52.215-1(c)(3)(ii)(A)(2); and declining to extend the proposal submission deadline under FAR 52.215-1(c)(3)(iv).”

RAYTHEON COMPANY v. THE UNITED STATES, COFC No. 09-306C, July 26, 2012. The government moves for reconsideration of the April 02, 2012 decision where the court held that the government’s claim was barred by the six year statute of limitation of the CDA. The government argues that the court was wrong when it failed to recognize that a statute of limitations does not begin to run against the United States until a right granted by FAR to audit plaintiff’s claim is completed, citing 48 C.F.R. 31.201-2.1. Judge Hodges denies the motion noting, “The Government does not establish an intervening change in controlling law, previously unavailable evidence, or manifest injustice. Defendant’s motion for reconsideration is DENIED.”

SIKORSKY AIRCRAFT CORPORATION, Plaintiff, v. UNITED STATES, COFC Nos. 09-844C & 10-741C (consolidated), July 18, 2012. CAS compliance issues case. The government submitted its claim for some $80 million on December 11, 2008, claiming that plaintiff owed those funds for CAS noncompliance. Before the court are the government’s motions for summary judgment on two of plaintiff’s affirmative defenses: that the government’s claim is barred by the six-year statute of limitations found in the Contract Disputes Act; and that an earlier accord and satisfaction precludes the government’s claim.
    The government argues that the claim did not accrue until 2004 or 2008 when the CO completed all the administrative steps necessary before bringing the government’s claim. The government notes that FAR 52.230 was inlcuded in the contract and the administrative procedures of FAR 52.230-6(b)(4) must be complied with before a claim accrues. The government relies on Crown Coat Front Co. v. United States, 386 U.S. 503 (1967) for the principle that a claim under a government contract does not accrue until “the completion of the administrative proceedings contemplated and required by the provisions of the contract.” Judge Lettow rejects that argument finding that the rationale behind Crown Coat was superseded by the CDA.
     He also notes, “And while the government may have its own internal review procedures that it must follow prior to submitting a claim, nothing in the CDA mandates such procedures, nor can such procedures delay accrual of a claim.” The court denies both of the government’s motion first, finding that facts are in dispute on when the government knew or should have known of the claim and second, whether or not there was an agreement between the parties.

GLENN DEFENSE MARINE (ASIA), PTE LTD., Plaintiff, v. UNITED STATES, and MLS-MULTINATIONAL LOGISTIC SERVICES LTD., Defendant-Intervenor, COFC No. 11-718C, July 17, 2012. Post-award Navy contract for maritime husbanding support. Plaintiff challenges both its and intervenor’s past performance evaluations and the best value selection of intervenor whose price was 64% higher than that of plaintiff. The past performance evaluation for plaintiff was initially “Satisfactory” but was changed to “Less than Satisfactory” after a Contract Review Board member questioned the Satisfactory rating for plaintiff. Plaintiff also argues that it was arbitrary and capricious to lower its rating to Less than Satisfactory when all of the past performance questionaries rated plaintiff’s overall past performance as Satisfactory or better. Judge Marion Horn noting the great discretion provided to the CO grants judgment for the government on the administrative record.
    On the past performance issue she notes, “To conclude that it was unreasonable for the Navy to determine that the plaintiff’s final past performance overall rating was Less than Satisfactory would suggest that the Navy should ignore concerns about past performance reported on the questionnaires, or other information available, and that Glenn Defense Marine had failed satisfactorily to address seven of the eight past performance concerns identified in the questionnaires and raised during discussions. It was proper for the Navy to consider the entire record of past performance submitted in accordance with the solicitation procedures and requirements, including the additional comments in the past performance questionnaires and the results of the discussions between the Navy and Glenn Defense Marine. The comments demonstrate that an overall past performance rating of Less than Satisfactory for Glenn Defense Marine was a legitimate choice, and was not arbitrary or capricious. The comments reflect past performance more aligned with the Past Performance Evaluation Team adjectives for Less than Satisfactory past performance than Satisfactory past performance.”
    For the the best value issue she concludes “The Primary Contracting Officer/Source Selection Authority was not required to assign an exact amount to quantify the impact of plaintiff’s past performance on future contract performance. See Serco Inc. v. United States, 81 Fed. Cl. at 497 (citing 48 C.F.R. § 15.308) (“in performing the tradeoff analysis, the agency need neither assign an exact dollar value to the worth associated with the technical benefits of a contract nor otherwise quantify the non-cost factors.”); see also Fort Carson Support Servs. v. United States, 71 Fed. Cl. at 598. The Primary Contracting Officer/Source Selection Authority also gave specific examples as to why Glenn Defense Marine’s past performance could impact the cost to the Navy if the contract under consideration was awarded to plaintiff. Moreover, in a bid protest review, addressing a past performance evaluation and a best value trade-off analysis, this court must accord considerable deference to the Agency. The plaintiff has not met its substantial burden of proof and cannot prevail. Based on the foregoing, this court concludes that the Navy’s best value determination in selecting MLS for contract award over Glenn Defense Marine was reasonable, in compliance with the solicitation’s evaluation criteria and applicable law, not arbitrary or capricious and in accordance with law. Because the court also has determined that the past performance evaluations of Glenn Defense Marine and MLS had a rational basis, the court does not reach the issue of injunctive relief.”

RAYTHEON COMPANY V. THE UNITED STATES, COFC NO. 05-448C, July 16, 2012. Appellant appeals the denial of $69,320,563.94 in claims related to appellants’s sale of certain business segments and the retention of assets and liabilities associated with the “defined benefit” pension plans of those segments. See Raytheon Co. v. United States, 92 Fed. Cl. 549 (2010) (“Raytheon I”) which “held that Raytheon’s post-retirement benefit (‘PRB’) costs are not ‘pension costs’ within the meaning of CAS 412-40(a), and cannot be included in the segment closing adjustments at issue in this case.” Also see Raytheon Co. v. United States, 96 Fed. Cl. 548 (2011) (“Raytheon II”) which “denied the government’s motion with respect to the novation agreements, finding that a genuine issue of material fact existed as to whether the conduct of the parties was sufficient to vitiate the waiver language in those novation agreements.”
    In a 149 page opinion Judge Firestone grants $59,209,967.30 of the claim. After discussing the testimony of many witnesses she rejects the government’s argument that the novation agreements described in FAR 42.1204(i) foreclosed plaintiff’s claim. She finds “The consistent and overwhelming evidence adduced at trial establishes that not one of the government or Raytheon employees involved in the processing and signing of the AIS novation agreement or in the negotiations surrounding the AIS CAS 413 segment closing adjustment (several of whom were involved in both) understood that the waiver set forth in the AIS novation agreement, which was taken from FAR 42.1204(i) barred Raytheon’s CAS 413 segment closing claim.” She also notes, “Given the overwhelmingly consistent testimony of the government and Raytheon witnesses discussed above, the court finds that it must reconsider its earlier reading of the novation agreement waiver in Raytheon II language of the FAR, encompasses only contract-specific claims. The court concludes that the subject waiver did not extend to the AIS CAS 413 segment closing claim because the AIS segment closing claim is not a contract-specific claim but instead involves a claim to settle-up pension liabilities that are still retained by Raytheon and were not transferred as part of the segment sale.

McTECH CORPORATION v. THE UNITED STATES, COFC No. 12-122C, July 16, 2012. Pre-award bid protest, Corps of Engineers procurement on behalf of DHS. Plaintiff brings this action after losing at the GAO where it challenged its removal from the competition for an alleged COI. Subsequent to the filing of the administrative record and plaintiff’s motion for judgment on the record the government has reinstated plaintiff and now moves that the action is moot and that plaintiff lacks standing. Plaintiff has filed a supplemental complaint challenging the corrective action as unreasonable and insufficient. Plaintiff argues that the Corps’ “corrective action plan is not reasonably broad enough in scope,” ... principally because it focuses only on relationships of offerors with [the two firms that allegedly were the source of the alleged COI], even though at least six other vendors either contributed to the design or provided the Corps with a projected cost estimation for the construction of the designed buildings. Judge Lettow denies the government’s motion to dismiss noting that, “The Corps appears to have made no inquiries about relationships between and among offerors and the other engineering and consulting firms that worked with BrooAlexa Design J.V. on the design for the buildings to be constructed.” and “the government assuredly has not shown that McTECH’s claims of unreasonableness of the Corps’ corrective action are moot.”

SYSTEM PLANNING CORPORATION v. THE UNITED STATES, COFC No. 07-678 C, July 12, 2012. Court’s Synopsis: Contract Disputes Act; Rights to Payment Contained in Option Clause Do Not Accrue Where Option Was Never Exercised by the Government

CBY DESIGN BUILDERS, v. THE UNITED STATES, Defendant, BECHTEL INFRASTRUCTURE GROUP, and PCCP CONSTRUCTORS, J.V., Defendant-Intervenors, COFC No. 11-740C, July 11, 2012. Plaintiff moves to amend the protective order in this bid protest. Judge Wolski grants the motion.
    He notes, ”The Court is not aware of any reason to believe that private counsel will be less scrupulous in following the protective order than will be counsel from the Department of Justice. As the Court has elsewhere explained, the often invoked (and misunderstood) presumptions of regularity and of good faith conduct were traditionally recognized to apply to private parties as well as public actors, see Tecom, Inc. v. United States, 66 Fed. Cl. 736, 758, 760-62 (2005), and the Federal Circuit has applied both presumptions to the actions of government contractors. See Alaska Airlines v. Johnson, 8 F.3d 791, 796 (Fed. Cir. 1993). The government’s lawyers have come to possess the protected information in the same way that plaintiff’s have, by representing parties to a lawsuit which concerned efforts to enter into a commercial relationship. It has long been settled that when the government “comes down from its position of sovereignty, and enters the domain of commerce, it submits itself to the same laws that govern individuals there.” Cooke v. United States, 91 U.S. (1 Otto) 389, 398 (1875); see also United States v. Winstar Corp., 518 U.S. 839, 895 & n.39 (1996) (plurality opinion). Thus, the Court holds that whenever a protective order issued in a bid protest case would broadly allow the government to use protected information for purposes other than that litigation, a presumption arises that the private parties should also be allowed to use that information for purposes of any subsequent bid protests concerning the same procurement. Good cause to amend the protective order to accommodate such uses will henceforth be presumed, and the burden in such cases will fall on the government to rebut this presumption.”

VERIDYNE CORPORATION v. THE UNITED STATES, COFC No. 06-150C, Filed July 6, 2012. Maritime Administration (MARAD) 8(a) contract. [See earlier decisions in this case: April 16, 2009; September 12, 2008 and December 05, 2011.] Plaintiff was the incumbent contractor when a noncompetitive modification(Mod 0023) was awarded. Both parties knew that plaintiff would be ineligible for a noncompetitive award unless plaintiff met the $3 million dollar SBA threshold. Appellant appeals the denials of invoices for which it argues it is entitled to be paid. The government responds with affirmative and counterclaims of fraud arguing forfeiture, False Claims Act and CDA fraud provisions. A primary argument of the government is that Mod 0023 was void ab initio as plaintiff fraudulently misrepresented that its proposal would meet the $3 million threshold when it knew it would not. Judge Christine Miller finds that plaintiff is entitled to recover on a quantum meruit for services rendered in the amount of $1,068,636.22, but that the government has carried its burden of proof on its forfeiture, FCA, and CDA claim and is entitled to recover a total of $1,965,802.09 on these counterclaims.
    Judge Miller does note, “It is interesting to distinguish those testifying participants in the charade that was the Contract extension, stop-work order, wind-down, and claims process from those whose actions speak unequivocally through exhibits. Although the court draws no inferences from the lack of visibility at trial of MARAD contracting officials, the documents authored by these government employees brook no misinterpretation: MARAD contracting officials knowledgeable in approving the proposal vehicle and fully aware of the need to befog the SBA in order to obtain its approval actively participated in securing that approval. And, in the ironic dénouement of this and similar debauched procurements, the key MARAD players still work for MARAD.”

BINL, INC., et al. v. THE UNITED STATES, COFC No. 12-71C, June 26, 2012. Pre-award bid protest by transportation service providers for transportation of household good for DoD military members and civilian employees. Synopsis by counsel for plaintiffs. Judge Firestone denied the Government’s motion to dismiss, attacking the Plaintiffs’ standing. The Court found the Weeks pre-award bid protest “non-trivial competitive injury” standing standard satisfied by seven small business Transportation Service Provider (TSP) plaintiffs. She also rejected the now- de rigeuer Government “prudential standing” argument, but finds that plaintiffs would satisfy that test even if it applied to Section 1491 COFC protests.
    On the merits, the Court granted the Plaintiff’s motion for judgment on the administrative record, and denied the Government’s cross-motion. The Court found that SDDC acted contrary to law in failing to delete “freight refund” provisions of the 2012 DoD Household Goods International Tender and Domestic Tariff, after DoD implemented a 2007 Congressional mandate to require TSP’s to settle claims for lost or destroyed household goods at “full replacement value” (FRV), which the agency defined to include the costs of shipping the replacement item to the destination. Applying traditional Carmack Amendment “benefit of the bargain” principles, the Court agreed with Plaintiffs that the ’including shipping to destination” FRV obligation provided the Government and servicemember with the substantial benefit of the transportation contract. The Court further agreed that the solicitation’s “freight refund” provisions - allowing the agency to offset transportation charges paid to a TSP on a lost or destroyed shipment even after the TSP settled the loss claim at FRV including the costs of shipping a new item to the servicemember -- went beyond what was necessary to make the stakeholders whole, and, in effect, operated as an impermissible non-compensatory penalty.
She awarded declaratory and permanent injunctive relief.
This was an interesting case. It brought together cutting edge standing issues, DoD’s interpretation of a recent Congressional mandate designed to benefit servicemembers, and traditional Carmack transportation law and contract damages principles.

ELMENDORF SUPPORT SERVICES JOINT VENTURE v. THE UNITED STATES, COFC No. 12-346C, June 22, 2012. Bid protest, Air Force activity for base supply services at Joint Base Elmendorf-Richardson Air Force Base, Alaska. Plaintiff is the incumbent contractor and challenges the decision of the government to in-source the services and also moves for a preliminary injunction. The government moves to dismiss for lack of jurisdiction and that plaintiff lacks standing. Judge Bruggink notes that COFC judges have differed on the court’s jurisdiction of in-sourcing cases. In SANTA BARBARA APPLIED RESEARCH, INC. v. THE UNITED STATES 98 Fed. Cl. 536 (2011), Judge Firestone found jurisdiction and in Hallmark-Phoenix 3, LLC v. United States, 99 Fed. Cl. 65 (2011) Judge Allegra held that the decision was not reviewable based on prudential standing concerns.
    Judge Bruggink holds that the court does have jurisdiction. He notes that 28 U.S.C. § 1491(b)(1) allows suit for “any alleged violation of statute or regulation in connection with a procurement or proposed procurement.” and the Federal Circuit’s decision in Distributed Solutions, Inc. v. United States, 539 F.3d 1340 (Fed. Cir. 2008) interpreting a procurement to include “all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout.” He finds that the Air Force decision “necessarily included the process for ‘determining the need for . . . services’ that plaintiff currently provides, the in-sourcing decision-making process was ‘in connection with a procurement or proposed procurement’ within the rather generous definition adopted by the Federal Circuit.” Judge Bruggink also finds that plaintiff has standing as it is an interested party. However, he denies the motion for a preliminary injunction noting that plaintiff knew of the decision to in-source in February 2011, but waited until 28 days before its last option expired in June 2012 and that the court must consider the national defense issues. He concludes “In sum, none of the factors militate in favor of an injunction. While plaintiff clearly has an interest in maintaining its contract, it was slow to enforce its rights. Nor does it appear likely that plaintiff will succeed on its narrow substantive claim. The disorder that would result from an injunction is well established by the government, in part because of the undue delay. And finally, there is no overriding public interest in ignoring the impact on the Air Force’s concern for national security and military readiness.”

SUFI NETWORK SERVICES, INC. v. THE UNITED STATES, COFC No. 11-453C, June 18, 2012. Plaintiff claims attorney fees and other costs it incurred following a breach of its contract with Non-Appropriated Fund Instrumentality(NAFI). See a more complete description of the case in the earlier COFC decision. Judge Wheeler follows the Federal Circuit’s decision in Bill Strong Enterprises, Inc. v. Shannon, 49 F.3d 1541 (Fed. Cir. 1995) and grants plaintiff’s motion summary relief in liability. He also rejects both parties arguments that “SUFI Network Services, Inc., ASBCA No. 55306, 09-1 BCA ¶ 34018 (Nov. 21, 2008) (SUFI ASBCA VIII), had a preclusive effect requiring a ruling in their favor. The Court finds the ASBCA’s decision inconclusive on the issue of attorneys’ fees, and cannot say that the Board ever clearly ruled on this issue.” Judge Wheeler also rejects the argument that reasonable attorney fees are barred simply because they were based on a contingency arrangement.

ADMARK KOREA LIMITED v. THE UNITED STATES, COFC No. 11-778C, June 11, 2012. Plaintiff was the incumbent in an Army & Air Force Exchange Service (“AAFES”) contract to lease mobile phones and to sell wireless telephone accessories at bases in Korea. In 1999 plaintiff was informed that a successor contract had been awarded to Samsung Rental Company (“Samsung”). Plaintiff filed an unsuccessful administrative protest. On January 25, 2007, plaintiff learned from a January 24th issue of Stars and Stripes that Samsung’s principal had bribed AAFES employees in order to obtain award of AAFES concession contracts. Plaintiff filed this action in 2011 and alleges that it lost the 1999 contract because of such bribery and sues for expectation and restitution damages. The government moves to dismiss for lack of jurisdiction based on the six year statute of limitation and also argues that any damages are limited to bid and proposal preparation costs. Plaintiff argues that it did not learn of the bribery until the Stars and Stripes issue and it is entitled to rely upon the accrual suspension rule.
    Judge Christine Miller notes “As more recently articulated in Holmes v. United States, 657 F.3d 1303 (Fed. Cir. 2011), a plaintiff may claim the benefit afforded by the accrual suspension rule if it can ‘either show that the defendant has concealed its acts with the result that plaintiff was unaware of their existence or it [can] show that its injury was ‘inherently unknowable’ at the accrual date.’” Judge Miller examines the knowledge and suspicions that plaintiff had at the time of the administrative protest around 1999 and finds that the issues were not inherently unknowable and that the action is barred by the six year statute of limitations. She also agrees that any damages would have been limited to bid and proposal preparation costs.

WILDFLOWER INTERNATIONAL, LTD. v. THE UNITED STATES, and GOVPLACE, INC., Defendant-Intervenor, COFC No. 11-734 C, June 05, 2012. Pre-award bid protest filed on November 03, 2011, of a Custom and Border Protection(CBP) reverse auction procurement task order contract. Plaintiff challenges the CPB decision to terminate plaintiff’s delivery order for convenience and to repost a revised RFQ as part of CBP’s corrective action with respect to perceived problems with the conduct of the initial procurement pursuant to the initial RFQ. The government moves to dismiss for lack of jurisdiction, standing and ripeness. The government argues that the court lacks jurisdiction as a result of the limitation on protests for civilian agency task orders contained in the 2012 NDAA. Judge George Miller denies the motions after an extensive discussion of the issues and finds that the 2012 NDAA does not divest this court of jurisdiction over plaintiff’s bid protest action that was pending when the 2012 NDAA was enacted. The court examines the retroactivity issues set out in Princess Cruises, Inc. v. United States, 397 F.3d 1358 (Fed. Cir. 2005) and concludes that the protest is not barred. Finding the corrective action decision by the CO to be reasonable he finds for the government on the administrative record. [Interesting case-jaw]

PHOENIX MANAGEMENT, INC. Plaintiff, v. UNITED STATES, Defendant, and DATA MONITOR SYSTEMS, INC. Intervening Defendant, COFC No. 12-315C, May 31, 2012. UNPUBLISHED OPINION. After a series of protests at the GAO and corrective action by the Air Force, plaintiff moves for a temporary restraining order barring the Air Force from implementing the award of a contract to a competitor, Data Monitor Systems, Inc., for the provision of aircraft refueling services at Tinker Air Force Base in Oklahoma. Phoenix is the incumbent contractor for refueling services at Tinker Air Force Base.
    Judge Lettow denis the motion noting “The court was concerned that the Air Force may have favored DMS over its competitors by structuring corrective action to benefit only DMS, allowing DMS to shore up an aspect of the procurement in which it may have submitted deficient information. This concern has not been fully assuaged by the government’s response to the court’s questions. Nonetheless, the court cannot confidently conclude that DMS was actually provided favored treatment by the corrective action. The existing materials before the court simply are insufficient to make any determination one way or the other in that regard. As a result, the likelihood-of-success factor is nearly in balance. The other factors point in different directions. If temporary equitable relief is denied, Phoenix will lose an important segment of its business and its employees may lose their jobs or be forced to shift to different employment. This factor is relevant but not determinative because ‘loss of its current [business and] employees as a basis for irreparable injury would require this [c]ourt to consider any incumbent contractor’s loss of a successor contract to be irreparable harm.’ PGBA, LLC v. United States, 60 Fed. Cl. 196, 221 (2004), aff’d, 389 F.3d 1219 (Fed. Cir. 2004). Additionally, the government seems satisfied that DMS is adequately prepared to step into Phoenix’s shoes to provide the refueling services, and to do so at a lower cost, so the balance of hardships and public interest favor denying the application for temporary relief. Overall, the court concludes that entry of a temporary restraining order against implementation of the Air Force’s contractual award to DMS is not justified. Phoenix’s application for a temporary restraining order is consequently DENIED.”

INTERNATIONAL GENOMICS CONSORTIUM v. THE UNITED STATES COFC No. 12-047C, May 25, 2012. Pre-award bid protest. Plaintiff challenges a decision by the National Cancer Institute (NCI) to assign Science Applications International Corporation-Frederick (SAIC-F), a FFRDC, the responsibility for procuring certain services needed to run a NCI project. Judge Allegra finds that plaintiff lacks standing for much of its claims. He notes “Mark Twain once advised never to let the facts get in the way of a good story—but, here, the facts really do get in the way. Contrary to plaintiff’s claims, the administrative record shows that NCI, primarily for budget and efficiency reasons, combined features of Atlas with features of two other programs, caHUB and caBIG, and then gave the management of the entire program to SAIC-F. This made sense because SAIC-F was already running the caHUB and caBIG programs and had run the pilot version of Atlas several years earlier. Under this delegation, SAIC-F was required to perform a wide range of management services with respect to all the components of the newly-restructured Atlas program—not just those that involved BCR services. In performing that multi-faceted function, SAIC-F dealt with more than a dozen contractors and hundreds of tissue providers —it was not just responsible for managing the BCR procurement that involved plaintiff.”
    Judge Allegra finds that plaintiff’s reliance on DISTRIBUTED SOLUTIONS, INC., and STR, L.L.C. v. THE UNITED STATES, CAFC No. 2007-5145, August 28, 2008 is misplaced. (See the COFC decision on remand.) Judge Allegra summarizes “Moreover, it should not be overlooked that in Distributed Solutions II, USAID tasked SRA with the job of conducting a particular procurement on which the protesters could have bid had the agency conducted that procurement itself. The situation here is fundamentally different. SAIC-F was not assigned the task of conducting a procurement for BCR services that NCI might have otherwise conducted itself. Rather, NCI assigned SAIC-F the broad task of managing a large governmental program, that combined significant features from three prior programs: Atlas, caHUB and caBIG. Broad management responsibilities, multiple contractors and budget authority that dwarfed the size of the BCR contract were all implicated by that decision. IGC could not have submitted a qualifying proposal to do the work that SAIC-F was assigned and thus, unlike the protesters in Distributed Solutions, has not ‘established [itself] as [a] prospective bidder.’ Distributed Solutions II, 539 F.3d at 1344-45; see also Alatech Healthcare, 89 Fed. Cl. at 753 (Distributed Solutions II applied where ‘agency developed plans and specifications for the subcontractor to carry out in a field very similar to the functions allocated by the agency to the prime.’). In this way, plaintiff plainly stands outside the jurisdictional umbrella created by Distributed Solutions, no matter how broadly that case is otherwise construed. See Klinge Corp., 87 Fed. Cl. at 478 (distinguishing Distributed Solutions II on this basis). Accordingly, the court concludes that it lacks jurisdiction over plaintiff’s claims challenging NCI’s decision to shift management of the retooled Atlas program to SAIC-F.”

GRAND ACADIAN, INC. v. THE UNITED STATES, COFC No. 07-849 C, May 23, 2012. FEMA lease of property in Louisiana for a RV park for emergency housing related to hurricane Kartrina and Rita. (See earlier decisions.) Plaintiff sues to obtain costs to restore the premises to their pre-lease condition. The government counterclaims under the False Claims Act, 31 U.S.C. §§ 3729-31, the antifraud provision of the Contract Disputes Act (CDA), 41 U.S.C.A. § 7103(c)(2) , and the Forfeiture of Fraudulent Claims Act (FFCA), 28 U.S.C. § 2514, seeking forfeiture of Grand Acadian’s entire claim and dismissal of its complaint, damages in the amount of Grand Acadian’s unsupported claims, plus the Government’s cost of reviewing the false claims and such civil penalties as allowable by law.
    Chief Judge Hewitt’s 101 page opinion with extensive expert testimony addresses more than most of us ever want to know about soil conditions, including wetlands soil, and preparing the leased property for use. Judge Hewitt enters judgment in favor of the government on plaintiff’s claims finding that plaintiff has “not carried its burden to prove by a preponderance of the credible evidence that further measures are required to restore the soil on the Leased Property to its condition at the beginning of the Lease term, normal wear excepted.” She also rejects all of the government’s counterclaims finding “that the government has not carried its burden to establish the requisite mental state under the FCA, the FFCA or the antifraud provision of the CDA with regard to Grand Acadian’s claim for the cost of replacing trees.”

CBY DESIGN BUILDERS v. THE UNITED STATES and GROUP ands PCCP CONSTRUCTORS, J.V., intervenors, COFC No. 11-740 C, May 23, 2012. Pre-award bid protest, for a design-build contract solicited by the Hurricane Protection Office of the United States Army Corps of Engineers. Plaintiff was the selected awardee whose performance was suspended by protests by the intervenors to the GAO. The GAO sustained the protest and recommended corrective action which entailed a conflict-of-interest investigation, a stay of the award, amendment of the solicitation, and a resolicitation of proposals for a new evaluation and award. (The Corps has reevaluated and found no COI.) Plaintiff argues that corrective action was arbitrary and capricious as is the decision of the Corps to follow the GAO recommendation. Judge Wolski dismisses the COI count for lack of jurisdiction finding that the matter is moot and plaintiff lacks standing as it was not prejudiced by the current finding that it had no COI.
    Interestingly, Judge Wolski “requested supplemental briefing on two issues that arose during the course of the hearing --- the relevance of certain GAO opinions concerning investigations of alleged unfair competitive advantage, and the proper application of deference to the GAO’s underlying decision in this matter. Concerning the second issue, the Court inquired whether and how much deference may be given to opinions on questions of law, such as the interpretation of a solicitation.”
    After an extensive discussion of the standards for review of a GAO decision, Judge Wolski notes “After carefully reviewing the supplemental briefs and relevant authorities, the Court concludes that defendant and intervenors are mistaken in their assertions that a special standard of review applies when a bid protest challenges corrective action taken in accordance with a GAO recommendation. Statements that our review is not de novo do not distinguish these circumstances from any other bid protest, as review is always under the deferential APA “arbitrary and capricious” standard rather than de novo.30 See Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380-82 (Fed. Cir. 2009). Nor is there any significance to descriptions of our review as concerning the rationality of the GAO’s decision, as bid protests always involve such review of a decision. See 28 U.S.C. § 1491(b)(4) (requiring that “courts shall review the agency’s decision pursuant to the standards set forth in section 706 of title 5” (emphasis added)); Domenico Garufi, 238 F.3d at 1332 (explaining that under the APA standards a protest may succeed if “the procurement official’s decision lacked a rational basis” (emphasis added)).
    What is different in cases when an agency follows a GAO recommendation is not that a decision is being reviewed for rationality, but whose decision matters in this review. When the relevant procurement official (usually the contracting officer) decides to adopt the views of the GAO after a protest has been heard by that body, this agency decision is not considered inherently unreasonable (for departing from the agency’s previous position) nor invulnerable (under the shield of GAO authority), but is instead measured by the rationality of the recommendation it follows. Instead of deferring to the initial agency decision, and re-reviewing the protest that was brought in the GAO by scrutinizing the rationality of the initial decision, we defer to the second agency decision, and scrutinize the rationality of the GAO’s resolution of the protest it heard. But the review standard does not change because of the GAO’s involvement.”
    Finally, the opinion concludes that “the entire corrective action has a rational basis, and defendant’s and intervenors’ cross-motions for judgment on the administrative record are GRANTED.”

M.E.S., INC., Plaintiff, and TRAVELERS CASUALTY & SURETY COMPANY OF AMERICA, Plaintiff-Intervenor, v. THE UNITED STATES, COFC No. 10-92, May 23, 2012. Plaintiff was the contractor for a Postal Service construction contract that terminated for default in June 1999, and Travelers was the surety. See earlier COFC decision which discusses in detail Travelers’ right to intervenor. Travelers refused to complete the work and separately settled with the government in a 2011 district court decision. The Postal Service did not award the reprocurement contract until 2004. The PSBCA upheld the termination for default in a January 2006 decision, which was affirmed by the Federal Circuit. Plaintiff now appeals the CO’s 2009 decision demanding payment of excess reprocurement cost and also seeks damages for additional costs of performance. Travelers seeks declarations that any recovery obtained by plaintiff be set-off against any recovery by the government against Travelers in the district court.
    Judge Braden grants the motions by plaintiff and the government to dismiss Travelers. She finds that Travelers is not an equitable subrogee as it did not take over performance or finance completion of the contract. She also finds that the court does not have ancillary jurisdiction as Travelers’ claims “do not seek to protect Travelers against liability. Nor could they do so given that Travelers has settled the issue of liability with the USPS.”
    The court rejects plaintiff’s argument the government’s 2009 claim for excess reprocurement costs accrued at the time of the termination in 1999 and is therefore barred by the CDA six year statute of limitations. Judge Braden examines the history of claims for excess procurement costs claims including the Federal Courts Administration Act of 1992, the CDA, the Fulford doctrine, other Federal Circuit cases and the Postal Service procurement manual and concludes that “that a claim for excess reprocurement costs ‘accrues’ under the CDA, when final payment is made to a replacement contractor. In this case, the Government’s excess reprocurement cost claim accrued on September 27, 2006, when it made final payment. Therefore, the USPS timely ‘submitted’ a claim under 41 U.S.C. § 605 for excess reprocurement costs on February 19, 2009, the date on which the CO issued his Final Decision assessing excess reprocurement costs against Plaintiff.”
    However, Judge Braden holds that the government’s counterclaim for excess reprocurement costs must be dismissed because the Postal Service delayed the reprocurement. She notes that the government’s claim for excess reprocurement cost is made under the provisions of the Termination for Default clause and not for common law breach damages. Citing Marley v. United States, 423F.2d 324, 333 (Ct. Cl. 1970) “[a] proper reprocurement relieves the Government of the burden of proving market value in a suit for damages for breach of contract. The contractor’s pocket must, however, be protected from the consequences of an extravagant or improper reprocurement. The award is therefore conditioned upon proof of a reprocurement action reasonably designed to minimize the excess costs. When the reprocurement relied upon by the Government is found, for a sufficient reason, not to have been so designed, [the reprocurement] may not be a basis for an award, and the right to excess costs is lost.” she concludes “Based on the record in this case, the court has determined that there is no triable issue of fact as to whether the USPS reprocured in a reasonable fashion.” and grants plaintiff’s motion for summary judgment on the government’s counterclaim.

ZOLTEK CORPORATION v. THE UNITED STATES and LOCKHEED MARTIN CORPORATION, Third-Party Defendant, COFC No. 96-166 C, May 21, 2012. Discovery issues in this long running government contract patent infringement case. See earlier decisions. Judge Damich denies the request by plaintiff to enlarge discovery and grants in part and denies in part third party Northrop Grumman Corporation’s motion to quash. Judge Damich chides counsel for plaintiff for continued failure to narrowly define its discovery requests.

360TRAINING.COM, INC. v. THE UNITED STATES and CLICKSAFETY.COM, INC., intervenor, COFC No. 12-197 C, May 11, 2012. Post-award bid protest, OSHA Request for Applications(RFA) to authorize qualified vendors to provide online OSHA Outreach Training Program courses and successful applicants would be awarded a nonfinancial “cooperative agreement.” The government moves to dismiss for lack of jurisdiction arguing that the action is not in connection with a procurement or prosed procurement; that the definition of procurement under the Tucker Act is limited by the definition in the Federal Grant and Cooperative Agreement Act of 1977(FGCAA), 31 U.S.C. Sections 6301-6308 (2006); and although agreeing that the Federal Circuit has adopted the definition of procurement contained in 41 U.S.C. 111 the government argues that definiton should be modified by the provision of 41 U.S.C. 131 which limits acquisition to the use of appropriated funds.
    Judge Damich examines the applicable provisions of OSHA, 29 U.S.C. § 670, the FGCAA, and Title 41 and concludes that the government’s definition is too narrow and denies the motion to dismiss. He concludes “In this case, it is not clear at this early stage whether OSHA properly used a cooperative agreement or whether it should have used a procurement contract. For the purposes of jurisdiction, however, it is irrelevant because, even if OSHA properly entered into cooperative agreements with the awardees, OSHA was seeking to obtain the services of the awardees. The OSH Act left OSHA with flexibility on how to establish a training program, and OSHA could have provided the training directly or it could have hired a contractor to provide the service for it. Providing the program’s training course requirements to an intermediary and then supervising that intermediary’s implementation of the courses is one reasonable way for OSHA to provide the service. But in doing so, OSHA made the decision to issue a solicitation, select awardees, and then enter into cooperative agreements with awardees which was for the purpose of acquiring the service of a third party to conduct a training program, and therefore, protests of those actions are within this Court’s jurisdiction.”

CALIFORNIA INDUSTRIAL FACILITIES RESOURCES, INC. v. THE UNITED STATES and ATLANTIC DIVING SUPPLY, INC., intervenor, COFC No. 12-148C, May 07, 2012. Plaintiff challenges a RFQ and a proposed delivery order under a DLA/DSCP IDIQ contract arguing that the delivery order exceeds the scope of the IDIQ contract. Judge Sweeney “adopts the analysis articulated by the United States Court of Appeals for the Federal Circuit ... in AT&T Communications, Inc. v. Wiltel, Inc., 1 F.3d 1201 (Fed. Cir. 1993), a decision that addresses whether a contract modification exceeds the scope of the underlying contract.” She grants the motion of the government for judgment on the administrative record noting “prospective offerors in the original competition were on notice, from both the public announcement of the follow-on acquisition and the solicitation itself, that the DSCP intended to use the contracts to procure special operational equipment for all of its customers and their missions. Accordingly, the RFQ is within the scope of the underlying contracts.”

PEW FOREST PRODUCTS v. THE UNITED STATES, COFC No. 09-814C, May 07, 2012. Forest Service timber sales contract. Plaintiff appeals the denial of damages for its loss as a result of delays. Plaintiff’s bid was received on June 26, 2007 and as the only bid was declared the high bid. On August 31, 2007, the Forest Service sent a contract to plaintiff which it signed the same day. Plaintiff now argues that the contract came into being on June 26th when its bid was declared the high bidder. The government argues that the contract was not formed until signed on August 31st. Judge Allegra grants summary judgment in favor of the government. He notes that “the bid form used by Pew indicates that the bidder would accept an award ‘if its bid is accepted within 90 days after bid opening.’ This language plainly suggests that the mere opening of a bid did not constitute the acceptance of an offer and that, instead, the award would follow later.” And “In the court’s view, there are no questions of fact that prevent the court from determining when the contracts here arose. ‘[N]o acceptance mean[s] no contact.’ Fletcher-Harlee Corp. v. Pote Concrete Contractor, Inc., 482 F.3d 247, 251 (3d Cir. 2007). Based on the foregoing, the court concludes, as a matter of law, that the timber contracts between the parties arose no earlier than August 31, 2007.”

TEREX CORPORATION V. THE UNITED STATES and KALMAR RT CENTER, LLC, intervenor. COFC No. 11-701C, May 07, 2012. Post-award bid protest of an Army(TACOM) contract for a specialized forklift vehicle. Plaintiff argues that a graph of test results provided by the awardee/intervenor shows that awardee’s proposed forklift fails to meet a specification requirement. Judge Wiese finds for the government and intervenor on the administrative record. He notes “Despite extensive discussion with the parties on this issue, however, the court can discern nothing in the record that would allow us to resolve this conflict. Whether the data indicates that Kalmar’s test vehicle stalled or came to a controlled stop is a technical issue-one that falls outside this court’s area of expertise and outside our province to decide in a bid protest action. As the Supreme Court recognized in Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976), where the resolution of an issue ‘requires a high level of technical expertise,’ it is ‘properly left to the informed discretion of the responsible federal agencies.’ See also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989) (citing Kleppe and concluding that ‘[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.’); Blackwater Lodge & Training Center v. United States, 86 Fed. Cl. 488, 502-03 (2009) (recognizing that ‘[a]gency technical evaluations, in particular, should be afforded a greater deference by the reviewing court.’ (quoting Benchmade Knife Co. v. United States, 79 Fed. Cl. 731, 735 (2007)). Indeed, as the Supreme Court observed in Marsh, 490 U.S. at 378, a court's role in reviewing an agency's action under the APA standard is not to determine independently whether the agency’s expertise has produced the correct result but is to ‘ensure that agency decisions are founded on a reasoned evaluation ‘of the relevant factors.’’ That is clearly the case here.”

DISTRIBUTED SOLUTIONS, INC., AND STR, L.L.C. v. THE UNITED STATES, COFC No. 06-466 C, May 02, 2012. On remand from the Federal Circuit which reversed the earlier COFC decision which had dismissed the case for lack of jurisdiction. The Circuit court found that the decision by the government to use a prime contractor(SRS) to procure the subject software was a decision made “in connection with a procurement or a proposed procurement.” Judge Merow first finds that plaintiffs have standing as suffering a “non-trivial competitive injury which can be addressed by judicial relief” following Weeks Marine, Inc. v. United States, 575 F.3d 1352, (Fed. Cir. 2009). He concludes “After commencing a proposed procurement and without rationale, USAID and DoS chose to forego direct procurement of acquisition assistance and grants management software products, and in connection therewith, failed to consider competition. Plaintiffs suffered non-trivial competitive injuries as a result.” He grants plaintiffs’ motion for judgment on the administrative record and grants the request to file for proposal preparation costs.

KELLOGG BROWN & ROOT SERVICES, INC. v. THE UNITED STATES, COFC No. 09-351C, May 02, 2012. Judge Christine Miller notes “This case, the first of the Iraq war contract cases to proceed to trial in the United States Court of Federal Claims, involves a claim for the provision of dining facility (‘DFAC’) services for the United States Army (the ‘Army’) at Camp Anaconda, one of the largest United States military bases in Iraq during the troop buildup following the March 2003 invasion.”
    The 97 page opinion concerns the cost-reasonableness pursuant to FAR 31.201-3 of plaintiff’s LOGCAP III contract claims for some $41 million and the government’s counterclaim under the Anti-Kickback Act, 41 U.S.C. §§ 8701-07. (Judge Miller notes “However, because both parties continue to refer to the 2006 edition of the United States Code, the court uses the language of 41 U.S.C. §§ 52, 53, 55, as the basis for its findings.”
    Judge Miller critically examines in detail plaintiff’s arguments that its payment to its prime subcontractor Tamimi were reasonable. Judge Miller notes “According to plaintiff, and not disputed by defendant, ‘the [c]ourt may rely on any evidence demonstrating price reasonableness that was presented at trial.’ ... The court thus analyzes the evidence and arguments presented at trial and concludes that plaintiff has demonstrated the reasonableness of some of the prices at Anaconda that were passed on to the Government as plaintiff’s costs and subsequently questioned.” While finding that plaintiff’s claim for facility costs was unreasonable the court does conclude that plaintiff is entitled to an additional $11,460,940.31, plus the agreed percentages for overhead, G&A, cost of facilities, and base fee.
    Addressing the Anti-Kickback claims Judge Miller finds that plaintiff is liable for $38,000 paid to two of its employees by Tamini, but rejects the argument by the government that the violations can be imputed to plaintiff. Regarding the government’s common law fraud claim she finds that the government “has failed to establish the requisite causation element of common law fraud.”

BAYFIRST SOLUTIONS, LLC v. THE UNITED STATES, COFC No. 12-131 C, April 30, 2012. Pre-award bid protest challenging the Department of State from issuing a task order for diplomatic security protection management services. The task order was issued to Alutiiq to provide needed services while a new solicitation was being prepared after an earlier protest. As a result of the earlier protest State cancelled the earlier solicitation. (See related earlier decision.) Judge Bush discusses the effect of the provisions of 41 USC § 4106(f) on the case, which provides:

(f) Protests
(1) Protest not authorized. - A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for-
(A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or
(B) a protest of an order valued in excess of $10,000,000.
She notes the “court has consistently interpreted the ban as prohibiting task order protests in this court on any grounds other than the specific excepted allegations of excessive scope, period or value of the proposed task order.” She goes on stating “The more interesting legal question is the extent of the ban—in other words, how wide is the net cast by the words ‘in connection with’ in § 4106(f)? When a protestor alleges multiple grounds for relief, and among the protest grounds is a task order protest, which other grounds are “in connection with” the proposed issuance of the task order?” After discussing different interpretations in the cases addressing the “in connection with” issue she concludes that the “protest requires a fact intensive inquiry as to the agency’s decision-making process, and a careful analysis of the connectedness of each challenged procurement decision to the issuance or proposed issuance of a task order.”
    She finds that plaintiff’s argument that the task order exceeds the scope of Alutiiq’s contract is within the jurisdiction of the court, but finds that the task order does not exceed the scope of Alutiiq’s contract. She finds that 4106(f) bars plaintiff’s arguments concerning 8(a) issues and unfair treatment as those issues are not within the statute’s exceptions. Although noting that it is a close question, Judge Bush also concludes that the decision to cancel the solicitation is not connected to the proposed issuance of the task order. She upholds the decision to cancel after examining the record and notes ”The State Department made a prudent, reasoned and fair decision justified by the circumstances.”
    She concludes “Because plaintiff has not succeeded on the merits of either of its claims within this court’s jurisdiction, the court need not consider the other factors that would or would not support BayFirst’s requests for injunctive relief. Plaintiff’s motion for judgment on the administrative record is denied. Defendant’s motion to dismiss is granted, on jurisdictional grounds, for all of plaintiff’s claims other than BayFirst’s scope challenge to the Agency’s proposed issuance of a task order to Alutiiq and BayFirst’s claim that the cancellation of the Solicitation was improper. Defendant’s motion for judgment on the administrative record is granted as to the task order scope claim and the improper cancellation claim.”

5860 CHICAGO RIDGE, LLC V. THE UNITED STATES, COFC Nos. 07-680C and 09-576C, April 27, 2012. Judge Allegra captions the case with a quote from Benjamin Franklin—“A small leak will sink a great ship.” GSA lease of office space in Chicago constructed for the use of the IRS. Appellant appeals the termination of default of the lease and the assessment of excess reprocurement costs. GSA terminated the contract for default after several year of repeated leaks in the roof. There was also a history of problems with the HVAC systems. The court upholds the default termination, offering a good discussion of termination under the default clause and common law termination issues of material breach and constructive eviction. Judge Allegra denies the excess reprocurement costs finding the government has not shown that the new leased premises were similar or that the relocation costs were justified or reasonable.

THREE S CONSULTING v. THE UNITED STATES, COFC No. 10-583C, April 27, 2012. Post-award bid protest, Army procurement for survey services in connection with a military housing privatization program. Plaintiff originally argued the the awardee did not have all of the required services under its FSS MOBIS contract. After the Army terminated the contract plaintiff argued the the Army’s Mr. Clark improperly arranged an illegal sole source procurement by facilitating agreements between the previous awardee and the private developers after the awardee’s contract with the Army was terminated. The government moves to dismiss arguing lack of jurisdiction, failure to state a claim, lack of standing and mootness. Judge Firestone agrees that plaintiff lack standing to challenge the original award stating “Because it is undisputed that plaintiff did not possess a MOBIS contract at the close of bidding, plaintiff simply was not a responsive bidder to begin with. Only a party with a MOBIS contract for all of the required services would have standing to challenge the MHLI award. Plaintiff is not among this class of parties, and, thus under the legal standards governing standing, cannot show that ‘but for the error, it would have had a substantial chance of securing the contract.’ [citation omitted] In such circumstances, plaintiff cannot establish standing.” The opinion also discusses at length why plaintiff’s relance on the exception in ATA Defense Industries, Inc. v. United States, 38 Fed. Cl. 489 (1997) is misplaced. Regarding the alleged sole source procurement Judge Firestone dismisses for failure to state a claim agreeing “with the government that plaintiff has failed to state a claim with regard to an illegal sole source procurement. As the government correctly argues, Mr. Clark’s actions were not taken “in connection with a procurement or proposed procurement” on behalf of the Army. Mr. Clark lacked authority to conduct a procurement on behalf of the government and plaintiff has failed to allege that Mr. Clark’s actions were ratified by anyone with contracting authority.”

MIDWEST TUBE FABRICATORS, INC. v. THE UNITED STATES, COFC No. 11-773C, April 27, 2012. Post-award bid protest, Marine contract for kits to be used in vehicles traveling in severe road conditions on overseas deployments. Judge Lettow allows plaintiff to supplement the administrative record by supplying supplemental declarations regarding two items in the purchased kits and by deposing the CO for up to four hours. Judge Lettow notes the gaps in the administrative record “The procurement at issue here was governed by Part 13 of the FAR, which is titled ‘Simplified Acquisition Procedures’ and instructs the purchasing agency to ‘[k]eep documentation to a minimum.’ FAR § 13.106-3(b). That objective was certainly achieved in this instance.”

CANVS CORPORATION v. THE UNITED STATES, COFC No. 10-540 C, April 23, 2012. Motion for sanctions in a patent case under 28 U.S.C. § 1498(a) seeking compensation for the alleged unauthorized use and manufacture by or for the United States of several military night vision systems. The government moves for sanctions for failure of plaintiff’s counsel to comply with the court’s discovery orders. The government had earlier filed three motions to compel to which plaintiff did not comply. Chief Judge Hewitt orders plaintiff’s counsel, not plaintiff, to pay the government’s reasonable expenses incurred in filing its first and second motions to compel. She finds that sanctions for the third motion to compel would be unjust as the time for compliance was related to the time of the hospitalization and death of counsel’s father. Good discussion of the discovery rules and inherent authority of the court to award sanctions.

TRIAD LOGISTICS SERVICES CORPORATION v. UNITED STATES,, COFC No. 11-43C, April 16, 2012. Although plaintiff no longer had a contract with the Air Force it challenges the decision by the government to in-source the work previously done by plaintiff. Plaintiff argues that the Air Force did not properly comply with the then version of 10 U.S.C. § 2463 and its implementing regulations. The government moves to dismiss for lack of subject matter jurisdiction, that plaintiff is not an interested party and that plaintiff lacks prudential standing. After an extensive discussion of case law and the meaning of “procurement” and “in connection with a procurement” Judge Horn decides that the COFC does have subject matter jurisdiction to review protests relating to in-sourcing decisions by the DoD, but dismisses the case finding that plaintiff is not an interested party. The 33 page opinion concentrates on the applicable CAFC and COFC decisions addressing the meaning of procurement and in connection with a procurement including Hallmark-Phoenix 3, LLC v. United States, 99 Fed. Cl. 65, Santa Barbara Applied Research, Inc. v. United States, 98 Fed. Cl. 536 (2011) Resource Conservation Group, LLC v. United States, 597 F.3d 1238.
    Judge Horn concludes “This court concludes that Triad is not an interested party, and therefore, does not possess standing to sue. The court, however, does not conclude that an incumbent contractor challenging an in-sourcing decision could never satisfy the interested party requirements. In the case currently before the court, Triad’s contract had been completed before the second complaint was filed in this court. Triad was in the unfortunate position that it no longer possessed a direct, economic interest in an Air Force contract when it filed suit. Moreover, if a contractor’s ongoing contract is insourced after the enactment of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, that incumbent contractor could be in a different position than the plaintiff in this case. Plaintiff’s complaint was properly filed in this court, but for the specific reasons discussed above, plaintiff does not have standing to proceed on its claims.”

CONTRACTING, CONSULTING, ENGINEERING LLC, Plaintiff, v. THE UNITED STATES, Defendant, and DYNCORP INTERNATIONAL LLC, Defendant-Intervenor, COFC No. 12-97C, April 16, 2012. Post-award bid protest of a Department of State contract for supplies and services to support the agency’s counternarcotics efforts in assisting the Colombian National Police Aviation. See earlier March 12, 2012 decision denying injunctive relief, describing the procurement, evaluation of the offers and reliance by the government evaluators on their personal knowledge and assumptions. Judge Christine Miller finds that protestor has standing and that the assumptions made by the Technical Evaluation Panel regarding the qualifications of intervenor’s key personnel were irrational. She now enjoins the government from proceeding with the contract with intervenor. She notes “In the circumstances plaintiff is entitled to its injunction against further performance, although the agency is not constrained to take any action other than refraining from proceeding on the Contract with intervenor. The agency may seek revised proposals consistent with the Solicitation, or cancel the Solicitation and reissue a solicitation, or determine that another course of action should be undertaken.” Good discussion of evaluators relying on their personal experiences and an extensive discussion of the balance of harm issues for injunctive relief.

CONTRACT SERVICES, INC. V. THE UNITED STATES, COFC No. 12-49C, April 13, 2012. Post-award bid protest, Army HUBZone set-aside contract for logistic support services at Ft. Riley, Kansas. Plaintiff was the incumbent contractor whose HUBZone certification lapsed and it was not re-certified until after proposals were due, but before award. The solicitation required certification at the time proposals were submitted and the Army notified plaintiff that its proposal would not be considered because it was not on the SBA list of certified firms. Plaintiff argues that FAR and SBA regulations are contrary to law and argues that certification is only needed at the time of award. Chief Judge Hewitt finds for the government on the administrative record and holds that plaintiff’s suit is untimely under the Circuit’s decision in BLUE & GOLD, FLEET, L.P. v. UNITED STATES, and HORNBLOWER YACHTS, INC., CAFC No. 2006-5064, June 26, 2007. She notes that any challenge to the requirement for certification at the time of proposal submission must have been made before the proposal submission due date and therefore plaintiff has waived that argument..

HP ENTERPRISE SERVICES, LLC v. THE UNITED STATES, COFC No. 11-888 C, April 05 , 2012. Post-award bid protest, Air Force FSS task order bridge contract for healthcare information management and information technology support services to be awarded to the lowest price acceptable offer. Plaintiff is the incumbent. At issue is the status of the GSA contract at the time of award and whether it will be viable at the time of an option exercise on the task order contract.. Judge finds that the answers to questions during the solicitation created a latent ambiguity. Although both parties interpretation of the ambiguity were reasonable she finds that the government’s actions were arbitrary and capricious and grants plaintiff’s motion for judgment on the administrative record. Judge Bush also enjoins the performance of the awarded contract. the court quotes from Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (Fed. Cir. 1999)-

“When a contract is susceptible to more than one reasonable interpretation, it contains an ambiguity. To show an ambiguity it is not enough that the parties differ in their respective interpretations of a contract term. Rather, both interpretations must fall within a ‘zone of reasonableness.’ If this court interprets the contract and detects an ambiguity, it next determines whether that ambiguity is patent. The doctrine of patent ambiguity is an exception to the general rule of contra proferentem which construes an ambiguity against the drafter, here, [the government]. An ambiguity is patent if ‘so glaring as to raise a duty to inquire [.]’ If an ambiguity is not patent but latent, this court enforces the general rule.“

RAYTHEON COMPANY v. THE UNITED STATES, COFC No. 09-306C, April 02, 2012. Plaintiff seeks a declaratory judgment that the statute of limitations had run on the contracting officer’s final decision and on defendant’s $25 million claim itself. The issue arises from the 1997 purchase by plaintiff of Hughes Aircraft and plaintiff’s assumption of two retirement plans. In 1999 plaintiff and the government entered into an advance agreement regarding the costs for the retirement plans. After an audit by DCAA in November 2003 the government accepted plaintiff’s accounting for unallowable cost and so notified plaintiff by letter in August 2004. After a subsequent negative report by the DoD IG in 2007, the DCAA issued a supplemental audit report replacing its November 2003 audit which resulted the CO issuing a final decision in December 2008 demanding repayment by plaintiff of $25 million.
    Judge Hodges grants plaintiff’s motion. He concludes “Defendant conducted two audits of plaintiff’s proposed costs. The first audit, contemplated by the Advance Agreement and completed within the statute of limitations, reduced Raytheon’s allowable costs by approximately $5 million. Raytheon reimbursed the Government the amount already collected. The second audit, begun and completed outside the statute of limitations, apparently in response to pressure created by criticism from the Inspector General, using financial information identical to that used by the first auditors, found that the amount due the Government was $25 million. According to the DCAA, the second audit ‘replaces our original report dated November 25, 2003 in its entirety . . . .’
    Defendant had been aware of all the information on which it based the $25 million government claim for nine years before the contracting officer issued his decision in 2008. The decision conflicted dramatically with results of the first audit, issued in 2004, which used information identical to that employed by the second set of auditors in 2007. The only event occurring after defendant signed the Advance Agreement in 1999, and before the 2008 contracting officer’s final decision, was the Inspector General’s report criticizing DCAA’s $5 million first audit.
    The $25 million government claim in this proceeding is barred by the Contract Disputes Act’s six-year statute of limitations. Plaintiff’s motion for judgment declaring that the contracting officer issued his final decision beyond the statute of limitations of the Contract Disputes Act is GRANTED. All other pending motions are moot and therefore DENIED.”

CLINTON REILLY, Plaintiff, v. THE UNITED STATES, and CANNERY VENTURE LP, Defendant-Intervenor, COFC No. 11-788C, April 02. 2012. Post-award bid protest of a GSA building lease to house a Military Entrance Processing(MEP) Station for the Department of Defense. Plaintiff had supplied the MEP facilities since 1995. Plaintiff learned of the procurement in January 2010, and was notified that its facility did not meet the setback requirement of the procurement. In May 2010 GSA issued a solicitation, but did not send a copy to plaintiff. On September 29, 2010, GSA made award to intervenor but failed to provide any notice of the award. Plaintiff protested the award to the GAO on June 10, 2011 believing that GSA had impermissibly relaxed the setback requirement for intervenor. The GAO dismissed the protest as untimely and plaintiff filed this action on November 21, 2011. The government and intervenor move to dismiss for lack of standing. Intervenor also argues that the protest is untimely.
    Recognizing the somewhat unusual aspects of the case, Judge Wheeler does address the standing issues and concludes that it is doubtful that plaintiff could show a “substantial chance of receiving the lease award and thus, would not qualify as an interested party under the Tucker Act.” However, he does not decide the standing issue definitively as he finds that the claims are barred by the doctrine of laches. Finding that the government “would be economically prejudiced if the Court granted Mr. Reilly’s requested relief” he concludes “The Court does not quarrel with Mr. Reilly’s representations that MEPS personnel wanted to remain at his property. However, in choosing to rely on the efforts of the MEPS personnel, rather than timely filing a bid protest, Mr. Reilly simply chose to put all his eggs in one basket—ultimately to his detriment. A plaintiff may choose to sit on his rights while a government contract proceeds, but he will be barred from protesting if the Government is prejudiced as a consequence.”

THE ELECTRONIC ON-RAMP, INC. v. THE UNITED STATES, COFC No. 12-22 C, April 02, 2012. Pre-award bid protest, DIA procurement. Plaintiff protests the rejection of its proposal as late. The solicitation required the submission of both emailed and paper copies of the proposals. Plaintiff timely submitted its email copy of the proposal to the CO prior to the 11:00 a.m. due time. Plaintiff’s courier arrived at the facility at 10:25 a.m. and was directed to the visitor’s center. Plaintiff notified the contract office that its courier could not gain access beyond the visitor’s center and was informed that someone would meet the courier to get the proposal. Apparently because of miscommunication the proposal was not received by the contract office until 12:55 p.m. and was rejected as late. Plaintiff “argues that its proposal was timely submitted because the proposal was received at the JBAB and was under the government’s control prior to the submission deadline. EOR also argues that, because DIA received an electronic copy of the proposal via email before the submission deadline, DIA should have waived the late delivery of the paper copy of the proposal as a ‘minor informality.’”
    Judge Damich notes “Although submission deadlines typically are strictly enforced, the late proposal rule is not a draconian provision, and the FAR provides several explicit exceptions which permit consideration of an otherwise late proposal.” Judge Damich concludes that the paper proposal was under the government’s control and even if not “Because EOR Timely Submitted a Version of Its Proposal Via Email, DIA Should Have Waived the Late Delivery of the Paper Copy as a Minor Informality.” The Court enjoins the agency to “reinstate EOR’s proposal as eligible for consideration for award; it shall evaluate the proposal in the same manner as all the other timely filed proposals; and it shall not make an award on the SIA II Procurement without first considering EOR's proposal.” Very good discussion of the late proposal rules and case law.

GUZAR MIRBACHAKOT TRANSPORTATION v. THE UNITED STATES, COFC No. 11-519C, March 29, 2012. Post-award bid protest of an Army contract for trucking services in Afghanistan. Plaintiff protests the rejection of its proposal submitted via email using zip files. The solicitation required files submitted by email to be in Microsoft Word, Excel or PDF formats. Except for recommending to offerors that email files should not exceed 5MB, there were no additional requirements for the emailing of proposals. Judge Williams allowed the parties to offer expert testimony on the zip issue as she found that “expert testimony here will assist the Court in understanding technical issues regarding the nature of electronic file formats and zip files, the Army’s e-mail network architecture, and common trade practice surrounding the use of compressed or zipped files.” She finds that the term “format” presented a latent ambiguity and that plaintiff’s interpretation to allow compressing the files with a zip utility was reasonable. She “declares the Army’s refusal to evaluate GMT’s full proposal under solicitation No. W91B4N-11-R-5000, to have been arbitrary capricious, and in violation of the FAR, the Competition in Contracting Act, and the terms of the solicitation.” She orders the Army to reevaluate the proposal and to complete the evaluation within eight weeks. Judge Williams also grants plaintiff’s request for bid and proposal preparation costs for the time spent resubmitting plaintiff’s proposal eliminating zip compression.
    [Plaintiff had completed the transfer of all of the zip files approximately eight hours prior to the closing time on April 08, 2011. Five hours before the closing time the Army notified plaintiff that zip files were not accepted. Plaintiff protested to the GAO on May 03, 2011 arguing that the solicitation was latently ambiguous. The GAO dismissed the protest as untimely as plaintiff knew (5 hours?) before the closing time that zip files would not be accepted.-jaw]

MISSION ESSENTIAL PERSONNEL, LLC v. UNITED STATES, and HARDING SECURITY ASSOCIATES, INC., Intervening Defendant, COFC No. 12-33C, March 28, 2012. Post-award bid protest of corrective action taken by the Army after a bid protest at the GAO over the issuance of task orders. All parties filed for a motion on the administrative record and now all parties move for dismissal, but disagree on the basis for the dismissal. Plaintiff argues for voluntary dismissal under RCFC 41(a)(1) and intervenor argues that dismissal should be for lack of jurisdiction under RCFC 12(b)(1). Judge Lettow discusses the history, case law and application of the rules and concludes that a voluntary dismissal is not appropriate after motions for judgment on the administrative record have been filed and the parties do not agree on the voluntary dismissal. He holds that dismissal for lack of jurisdiction is the proper avenue. He rejects plaintiff’s argument that its protest of corrective action is not a protest of a task order, barred by 10 U.S.C. § 2304c(e), noting that the protest is clearly “in connection” with a task order as specified in 10 U.S.C. § 2304c(e)(1)

INGENESIS, INC. v. THE UNITED STATES, COFC No. 11-754C, March 23, 2012. Pre-award protest of an Army solicitation for physician services. Plaintiff challenges the NAICS code selected for the solicitation. Plaintiff is an incumbent for a contract with the same NAICS code, but no longer meets the size standard for that code. Plaintiff earlier protested the NAICS code to the SBA which rejected plaintiff’s position. Judge Bruggink denies plaintiff’s motion to supplement that administrative record and finds for the government on the administrative record. He concludes “In sum, the selected code captures the principal purpose of the contract. It need not be a perfect fit to every facet of the performance work statement. The solicitation sought the services of physicians in a wide-range of specialties who can practice in military treatment facilities. That is the exact essence of code 621111. Thus, the contracting officer’s selection of code 621111 and the SBA OHA’s affirmation of that code were not arbitrary, capricious, or otherwise not in accord with the law.”

BOSTON HARBOR DEVELOPMENT PARTNERS, LLC. v. THE UNITED STATES, and EMERALD CORPORATE CENTER, LLC, Defendant-Intervenor, COFC No. 11-867C, March 21, 2012. Pre-award bid protest of a GSA contract for construction and lease of a new facility. After protests to the GAO and several corrective actions and reevaluations by GSA, including the appointment of a new SSEB, a new CO and a new SSO, GSA executed a formal lease with intervenor, ECC, which did not contain a termination for convenience clause. Plaintiff again protested to the GAO and GSA indicated it would take corrective action and reevaluate the offers. Plaintiff now brings this action and “complains that GSA’s failure to cancel the lease will bias the agency’s evaluators toward awarding ECC the contract again and, in a proposed solution to this problem, seeks a declaration that the lease is void.” The government and intervenor move to dismiss arguing that plaintiff lacks standing. Judge Allegra dismiss the case for lack of standing. He notes “the injury alleged here (a biased evaluation) has not occurred yet, is far from imminent, and, indeed, may never occur. In that circumstance, plaintiff lacks standing to challenge the agency’s decision not to cancel the lease with ECC.”

CONTRACTING CONSULTING ENGINEERING LLC, Plaintiff, v. THE UNITED STATES, Defendant, and DYNCORP INTERNATIONAL LLC, Defendant-Intervenor, COFC No. 12-97C, March 19, 2012. Post-award bid protest Army contract. See earlier decision denying a preliminary injunction. Plaintiff files three motions to supplement the administrative record with Army regulations, an updated declaration and two additional declaration from Army experts. Judge Christine Miller notes that in Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009),the Federal Circuit has allowed supplementation of the administrative record ”only if the existing record is insufficient to permit meaningful review consistent with the APA.“ While expressing gratitude to plaintiff for the 700 pages of Army regulations, she denies that motion noting that the regulations are legal authority that plaintiff may cite and court will consider as authorities. After a good discussion of the supplementation issues she allows the declarations in part to show that the evaluators actions were arbitrary and capricious and “whether the Army recognizes a typical duration for overseas and domestic assignments.”

TOWNSHIP OF SADDLE BROOK v. THE UNITED STATES, COFC No. 10-213C, March 16, 2012. Plaintiff, a municipality in northern New Jersey, brought suit in a U.S. District court in New Jersey alleging breach and bad faith of a Corps of Engineers flood control project and requests specific performance. The government moves to dismiss for lack of jurisdiction arguing that there was no express or implied-in-fact contract and that any promissory estoppel argument is an implied-in-law contract for which the court lacks jurisdiction. Judge Christine Miller agrees and dismiss the action. She also refuses to transfer the case back to the district court agreeing with the government argument that “because the United States has not waived its sovereign immunity with respect to claims based on a theory of promissory estoppel, the federal district court-similar to this court-lacks jurisdiction over plaintiff’s remaining claims.” Good discussion of Tucker Act jurisdictional issues and the Federal Circuit case of Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc) which Judge Miller deems a seminal case.

newL-3 SERVICES, INC., AEROSPACE ELECTRONICS DIVSION, Plaintiff, v. THE UNITED STATES, COFC No. 11-755C, March 15, 2012. CDA claim for a Navy contract for modification of a vessel. The government moves to dismiss for lack of jurisdiction arguing that this a maritime contract for which jurisdiction lies only in a district court. Plaintiff “argues that its claims are not maritime in nature because they arise from conduct separate from the performance of a maritime contract ... ” Judge Firestone dismisses the case noting that it well settled that ship modification contracts are “wholly maritime” and are subject the district court’s jurisdiction under the the Suits in Admiralty Act, 46 U.S.C. §§ 30901-30918, and the Public Vessels Act, 46 U.S.C. §§ 31101-3111. Although noting that the recent National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 provided for exclusive jurisdiction over maritime bid protests in the COFC it had no effect on CDA actions. See 41 U.S.C. 7102(d). She also rejects plaintiff’s ADA and FAR arguments and transfers the case to United States District Court for the District of Massachusetts.

COMMUNICATION CONSTRUCTION SERVICES, INC., Plaintiff, v. UNITED STATES OF AMERICA, and RESOLUTE PARTNERS, LLC, Intervenor, COFC No. 10-878C, March 13, 2012. Bid protest, NAFI procurement. Plaintiff moves for summary judgment and the government and intervenor move for judgment on the administrative record. Judge Williams finds that the case presents novel procedural issues and asks the parties to address the following:

1. What is the proper procedural vehicle for resolving this bid protest -- cross-motions for summary judgment or cross-motions for judgment on the Administrative Record (“AR”)?

(a) Should a determination of such procedure be resolved on a case-by-case basis or should the Court develop a uniform procedure for 28 U.S.C. § 1491(a) bid protests?

(b) Is it appropriate for the parties to develop a different, more expansive record if jurisdiction for a bid protest is predicated upon § 1491(a) instead of § 1491(b)? (

1) Would developing an expansive record to resolve a bid protest comport with ADRA and the Federal Circuit’s decision in Resource Conservation Group, LLC v. United States, 597 F.3d 1238 (Fed. Cir. 2010)?
(c) Is it appropriate to resolve a bid protest based upon an “administrative record” when the decision being challenged is not that of an administrative agency, but is that of a nonappropriated fund instrumentality?

2. In the event this action should be resolved based upon an administrative record, do the Evard and Jackson declarations meet the standards for supplementing the AR?

(a) To what extent may the court accept expert opinions as supplementation to the AR post Axiom?

(b) Are the declarations of Jimmy Jackson, Plaintiff’s consultant, necessary to address the financial analysis and conclusions of AAFES’ financial expert, Mr. Wright?

SOLUTE CONSULTING v. THE UNITED STATES and SENTEK CONSULTING, INC., an intervenor, COFC No. 12-37C, March 13, 2012. Plaintiff protests the award of a Navy task order under a multiple award contract to acquire support services in twenty-two functional areas. Plaintiff argues that because the Navy did not evaluate the proposals in accordance with the solicitation that the award was therefore an out of scope award. The government moves to dismiss for lack of jurisdiction under FASA, 10 U.S.C. § 2304c(e). Judge Sweeney agrees and dismisses the action for lack of jurisdiction. She reviews the cases and GAO decisions concerning task orders which “increases the scope” as set out in 10 U.S.C. § 2304c(e)(1)(A) and concludes that they “all analyze whether a contract modification or task order increases the scope of the underlying contract by comparing the scope of work described in the modification or task order with the scope of work described in the underlying contract. There is no reason to treat this case differently.” She notes “Accordingly, in the absence of any legal support for Solute’s expansive definition, the court finds that the term ‘scope,’ as used in 10 U.S.C. § 2304c(e)(1)(A), refers to the scope of work contemplated in the contract and not to purported flaws in the evaluation process.”

CONTRACTING CONSULTING ENGINEERING LLC, Plaintiff, v. THE UNITED STATES, Defendant, and DYNCORP INTERNATIONAL LLC, Defendant-Intervenor, COFC No. 12-97C, March 12, 2012. Plaintiff moves for a preliminary injunction in this post-award Department of State contract for supplies and services to support the agency in assisting the Colombian National Police Aviation programs. Plaintiff argues that the selection of intervenor’s proposal was arbitrary and capricious because intervenor’s proposal fails to meet the Solicitation’s express requirements for senior program management staff. Plaintiff notes that intervenor did not indicate the specific time that the proposed persons spent in each position, but that the Technical Evaluation Panel(TEP) improperly relied on their own experiences. The government had noted in a related GAO protest that “ ... three members of the TEP formerly were military officers who knew from their past experience that ‘positions entailing command of an airborne unit, company or battalion are typically for controlled tours of 3 years for a domestic assignment and 1 year for an overseas assignment.’”
    Although Judge Christine Miller notes that “plaintiff has raised a troubling question regarding the propriety of the TEP members’ assigning dates of service to the positions held by intervenor’s proposed [staff] based on a typical tour of duty in the Army”, she finds that plaintiff falls short of showing a substantial likelihood of success. After discussing the four factors for injunctive relief (1) the likelihood of plaintiff’s success on the merits; (2) irreparable harm to plaintiff if the injunction is not granted; (3) the balance of hardship between the parties; and (4) the public interest, she denies the motion. Regarding the loss of plaintiff’s employees to intervenor she notes “Case law nonetheless establishes that an incumbent contractor’s loss of employees to the awardee does not constitute irreparable harm. See Eskridge Research Corp. v. United States, 92 Fed. Cl. 88, 99 (2010); Consol. Eng’g Servs., Inc. v. United States, 64 Fed. Cl. 617, 634 (2005).” Regarding the public interest factor, which both parties argue supports their positions, Judge Miller cites the CAFC which stated “[b]oth sides . . . contend that they are seeking to effectuate [this] important goal . . . [the court may find] that the public interest does not clearly favor either party in th[e] dispute.” Am. Signature, Inc. v. United States, 598 F.3d 816, 830 (Fed. Cir. 2010).

MISSION CRITICAL SOLUTIONS v. THE UNITED STATES, COFC No. 09-864 C, March 12, 2012. Plaintiff brings this action and moves to enforce an injunction issued in an earlier decision in a bid protest of an Army HUBZone procurement. Since the earlier protest the HUBZone statute was changed.Plaintiff argues that the award of a contract in a subsequent procurement violates the injunction and that the Army acted in bad faith. Chief Judge Hewitt finds that plaintiff has standing and rejects the argument of the government that plaintiff lacks standing because the current contract is not the contract subject to the injunction. Judge Hewitt denies the motion finding that the procurement was not subject to the injunction and even if it was that the government “relied on a good faith and reasonable interpretation of the court’s injunction when it determined that it was permitted to award Contract Number W91WAW-11-C-0027 to Copper River. Plaintiff has therefore failed to meet its burden to show that sanctions for civil contempt are warranted.”

JOYCE TERRY, d/b/a SHIRT SHACK v. THE UNITED STATES, COFC No. 09-454 C, March 06, 2012. Army and Air Force Exchange Service (“AAFES”) concession procurement and contract. See earlier decisions. Plaintiff alleges that AAFES “breached an implied-in-fact contract to consider honestly and fairly a proposal she submitted in response to a solicitation for the operation of a concession business at Fort Benning in Columbus, Georgia. Plaintiff also alleges that the AAFES acted in bad faith during its administration of, as well as breached, a separate, short-term commodity concession agreement executed by the parties in 2009.” The government moves to dismiss under Rule 12(b)(6) arguing that plaintiff fails to allege sufficient facts showing that the AAFES breached (1) an implied-in-fact contract to consider plaintiff’s proposal honestly and fairly, and (2) the concession contract. Judge Sweeney finds for the government and concludes “In short, the court lacks jurisdiction over and dismisses plaintiff’s (1) discrimination and promissory estoppel claims and (2) request for injunctive relief. The court is not bound to accept plaintiff’s allegations concerning the effect of her concession contract, which are conclusory, speculative, and contrary to the terms thereof. Because plaintiff fails to allege facts showing that the AAFES breached the concession contract, the court grants in part and denies in part as moot defendant’s motion to dismiss with respect to Count II.” Good discussion of the pleading requirements and implied-in-law contracts.

DAIRYLAND POWER COOPERATIVE v. THE UNITED STATES, COFC No. 04-106 C, March 02, 2012. Spent nuclear fuels case on remand from the Federal Circuit. The government moves to reopen the evidentiary record by submitting 16 previously unadmitted documents arguing that these document are relevant to the issue of mitigation damages. Judge Damich discusses the three factors that the court must consider: “1) the probative value of the evidence proffered, 2) why the evidence was not offered earlier, and 3) the likelihood of undue prejudice to the opposing party.” Judge Damich denies the motion finding “The issue on remand was argued by the parties at trial. Defendant did not choose to introduce then the documents that it now proposes to add to the record, although they would have been fully as probative then as Defendant argues they are now on remand. Plaintiff bore then, and bears now, the burden of proving that its PFS investment was a mitigation expense actually caused by the Government’s breach. Defendant contested Plaintiff’s proof. This court is tasked with conducting a more detailed inquiry of the causation analysis, focusing on whether ‘to offset Dairyland’s award to account for speculation,’ id., based on Dairyland’s proof and the Government’s rebuttal of that proof. The issue was joined and the record established at trial.”

DEMODULATION, INC. v. THE UNITED STATES, COFC No. 11-236C, February 29, 2012. In June 2005 the National Nuclear Security Administration (“NNSA”), an element of DOE, contacted plaintiff and expressed an interest in acquiring plaintiff’s ”patented and proprietary technology, intellectual property and other trade secrets.” Two nondisclosure agreements(“NDA”) were executed. In December 2005, plaintiff disclosed certain proprietary information to NNSA and BWXT at a workshop at DOE’s offices. BWXT, apparently a contractor to DOE, manages and operates the Y-12 National Security Complex near Oak Ridge, Tennessee. In 2007 a Cooperative Research And Development Agreement(“CRADA”) between plaintiff and BWXT was executed. During the existence of the CRADA and afterwards DOE disclosed plaintiff’s proprietary technology and trade secrets to other government and private parties without plaintiff’s permission.
    Plaintiff now sues setting out five causes of action. The government moves to dismiss many of the counts and Judge Braden discusses the issues including the Trade Secrets Act, misappropriation of property rights and the interplay between tort, takings, implied in fact contracts and contract law. She concludes: (1)The court has subject matter jurisdiction over a claim for breach of the non-disclosure agreement in this case, but stays the action until plaintiff complies with the jurisdictional requirement to seek relief from a contracting officer; (2) the court does not have subject matter jurisdiction to adjudicate a claim of alleged patent infringement as a violation of the takings clause of the fifth amendment; (3) court has subject matter jurisdiction to adjudicate a claim of alleged trade secret misappropriation as a violation of the takings clause of the fifth amendment; (4) the court does not have subject matter jurisdiction over a claim alleging a violation of the due process clause; and (5) the court has jurisdiction to adjudicate the misappropriation claims alleged in Count V of the First Amended Complaint to the extent that they arise from an agreement with the Government.

KENNEY ORTHOPEDIC, LLC, and JOHN M. KENNEY, v, THE UNITED STATES, COFC No. 11-502C, February 29, 2012. Veterans Affairs contract to supply prosthetic and orthotic devices and services. (See earlier decisions.) Plaintiff sues for the breach of a settlement agreement and also alleges that VA breached the implied covenant of good faith and fair dealing. Plaintiff also alleges that VA made misrepresentations that plaintiff relied upon the “misrepresentations to its detriment and, but for those misrepresentations, would not have agreed to execute the Settlement Agreement.” The government moves to dismiss for lack of jurisdiction and the failure to state a claim as to the misrepresentation in the inducement and good faith and fair dealing claims. Judge Braden notes that the misrepresentation in inducement claim fails to satisfy the heightened pleading standard of RCFC 9(b) which requires that a plaintiff explain in detail the facts giving rise to a claim and orders plaintiff to amend the complaint to “clarify the specific basis for this misrepresentation in the inducement claim.”
    She does not reach the issue of whether plaintiffs’ misrepresentation in the inducement claim should Be dismissed, pursuant to RCFC 12(b)(1) and withholds that issues until plaintiff amends its complaint. Judge Braden does dismiss the good faith and fair dealing claim finding that no terms in the settlement agreement supports the argument of plaintiff that it “had valid rights to business relationships with [VA] patients that arose directly from the Settlement Agreement[.]”

FURNITURE BY THURSTON vUNITED STATES, and DCI, INC., Defendant-Intervenor, COFC NO. 11-663, February 23, 2012. Post-award bid protest, task-order contract for furnishing a barracks being built in Okinawa, Japan, for the Marine Corps. Although not yet installed, the bulk of the furniture was delivered, accepted and payment made before the protest was filed. Plaintiff argues that the awardee suppled nonconforming beds and seeks an injunction. The government moves to dismiss arguing “that (1) Thurston has waived the ground of its protest because the solicitation was patently ambiguous and Thurston raised no objections to the solicitation before making its offer, (2) the case is moot because DCI has already delivered the supplies at issue, (3) Thurston is barred by laches from bringing its protest, and (4) Thurston lacks standing given its recent filing of a bankruptcy petition under Chapter 11.” Judge Lettow discusses and finds for plaintiff on all of these issues. He spends considerable time on the issue of whether the terms “pop-top bed” and “metal pop-up bed with two pneumatic rams or shock absorber” consisted of a patent ambiguity. He concludes that any ambiguity was latent and therefore the suit was not barred by Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007). However he finds that an injunction is not appropriate, but does allow plaintiff its bid preparation costs.

GTA CONTAINERS, INC. v. THE UNITED STATES and J.G.B. ENTERPRISES, INC., Defendant-Intervenor, COFC No. 11-606C, February 22, 2012. Judge Christine Miller expands on her earlier opinon which enjoined the government after finding that intervenor made a material misrepresentation.

DIVERSIFIED MAINTENANCE SYSTEMS, INC. v. THE UNITED STATES, COFC No. 11-504 C, February 21, 2012. Navy contract for construction services. Plaintiff seeks damages, in excess of $100,000, for alleged breach of contract. The government moves to dismiss for lack of jurisdiction arguing that the contract is covered by the CDA and that no valid claim was submitted to the CO prior to filing suit. Plaintiff argues that the court has jurisdiction under 28 U.S.C. § 1491(b). Plaintiff argues “that this court may exercise jurisdiction over the claims set forth in the complaint under 28 U.S.C. § 1491(b). DMS rejects the government’s assertion that the subject matter jurisdiction conferred upon the court by section 1491(b) is limited to bid protests. Because the governmental actions challenged by plaintiff in its complaint are ‘in connection with a procurement,’ DMS argues that its claims fall squarely within the ambit of section 1491(b), which does not require the submission of a claim to the contracting officer as a jurisdictional prerequisite to a suit in this court.” Judge Bush grants the government’s motion noting that the contract at issue falls within the scope of the CDA and the CDA is the only avenue for processing claims. She also roundly rejects appellant’s 1491(b) arguments.

GTA CONTAINERS, INC. v. THE UNITED STATES and J.G.B. ENTERPRISES, INC., Defendant-Intervenor, COFC No. 11-606C, February 06, 2012. Post-award bid protest,Marine Corps Systems Command (“MCSC”) best-value contract for Tactical Fuel and Water Systems. Plaintiff challenges the award arguing primarily that awardee/intervenor made a material misrepresentation in its proposal that firm X was a subcontractor or joint venturer and that the government relied on this representation in its evaluation of past performance. The government argues that plaintiff lacks standing or the matter is moot as the government has cancelled the contract except for a scaled down delivery order(of some nine million dollars) which it argues is necessary “to take account of critical and minimal military needs.” Judge Christine Miller finds for the plaintiff and enjoins the government from proceeding with the delivery order. She finds “that plaintiff has met its burden by showing that intervenor made a material misrepresentation in listing [firm X's ] past performance; that this constitutes a clear violation of an applicable procurement regulation, FAR 52.212-2; that intervenor represented to the MCSC that [firm X ] was being proposed as a supplier and a subcontractor for this procurement; and that the MCSC’s evaluation showed that the agency relied on the misrepresentation in evaluating intervenor’s past performance, which was prejudicial to plaintiff.”
    Regarding the 28 U.S.C. §1491(b)(3) requirement of “due regard ” to the interests of national defense and national security she notes “that the Government is seeking to equate ‘due regard’ to abstention from consideration.” She notes that the government “acknowledges that other procurement vehicles, such as a sole-source contact, are available; it just does not want to use them because it is fostering the goals of competition by proceeding on a limited basis with an awardee that would not be in that position absent a material misrepresentation. On this record the interests of national defense and national security do not prevail over upholding the integrity of the procurement process to redress a material misrepresentation. The MCSC’s preference for a particular procurement scheme is not the same as demonstrating a necessary contractual instrument. Defendant has noted the MCSC’s concerns about plaintiff’s ability to perform the contract, but the relief awarded does not mandate that the MCSC procure the three systems from plaintiff. The scope of the injunction prevents fulfilling these particular needs through intervenor and nothing more.”

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:

Attorney’s Fees. In the event of any litigation arising from or related to this Right-of-Entry, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs including attorney fees as provided by law.

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 conduct 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 the 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 ASSOCIATE S, 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 regarding the the election 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-party 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. Ass’n 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. In a 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.

HARRY G. SCHORTMANN, JR., and JACQUELINE SCHORTMANN v. THE UNITED STATES, COFC No. 06-383T, March 19, 2010. Not a procurement contract, but a settlement agreement with the IRS. Judge Allegra addresses the issue where a contract is missing an essential term as discussed in Restatement(Second) Contracts § 204. He starts his opinion with a statement attributed to H.L. Mencken. “To every complicated problem there is a simple solution, which turns out to be wrong.”

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 oth