Justia U.S. Federal Circuit Court of Appeals Opinion Summaries

In 2015, JKB and the Army entered into a three-year indefinite-delivery, indefinite-quantity contract. JKB agreed to provide instructional services up to 14 classes per year. The contract incorporates Federal Acquisition Regulation (FAR) 52.212-4, which includes a termination for convenience clause for the government, and incorporates Defense Federal Acquisition Regulation Supplement (DFARS) 252.216-7006, which requires all supplies and services furnished under the contract to be ordered by issuance of delivery or task orders. The Army issued three year-long task orders, each listing one lot of training-instructor services, the price per class, and a total price corresponding to the price of 14 classes. Each year, the Army used JKB for fewer than 14 classes and paid for each class actually taught, refusing to pay the total price listed in the task orders.JKB sued for breach of contract. The Claims Court ultimately granted the government summary judgment based on FAR 52.212-4 and the doctrine of constructive termination for convenience. The Federal Circuit vacated. FAR 52.212-4 governs the termination of commercial item contracts for the government’s convenience; it does not apply to service contracts, such as the contract at issue. On remand, the Claims Court may consider whether the “Christian doctrine” applies to incorporate a termination for convenience clause and whether the doctrine of constructive termination for convenience applies. View "JKB Solutions and Services, LLC v. United States" on Justia Law

In 2013, Bullock, a civilian employed by the Army, received a formal letter of reprimand from her supervisor. Bullock filed an EEO claim alleging sex discrimination and retaliation. In proceedings before the EEOC’s mediation program, Bullock was represented by her attorney, Elliott; the Army was represented by its management official Shipley, and attorney Lynch. According to Bullock, the parties reached agreement as to seven non-monetary demands on July 29 and reached an oral agreement regarding her monetary demands on August 27, 2015. The mediating administrative judge sent an email to the parties asking for the “agency’s understanding of the provisions of the settlement agreement” and noting that, “[o]nce we confirm that the parties are in complete agreement, the agency can begin work on the written settlement agreement.”. No written settlement agreement was executed. In September, the Army “rescinded its settlement offer.” Bullock continued to press her claims before the EEOC for a year, then filed a breach of contract claim regarding an oral settlement agreement.The Federal Circuit reversed the dismissal of the complaint, rejecting an argument that EEOC and Army regulations, requiring that settlement agreements be in writing, preclude enforcement of oral settlement agreements. The court remanded for a determination of whether the representative of the Army had the authority to enter a settlement agreement and whether the parties actually reached an agreement. View "Bullock v. United States" on Justia Law

ICE issued a solicitation for the provision of detention, food, and transportation at its Florence Detention Center. Asset was the incumbent contractor. ICE responded "yes" to, “Arizona charges 4.5% ‘business tax’; will the Federal Government issue a tax exemption certificate to the successful offeror?” Asset’s initial proposal indicated that “[s]ales taxes were not charged” based on that answer. ICE selected Akima's proposal. Asset filed a bid protest. ICE took voluntary corrective action and issued Amendment 17; Amendment 19 subsequently clarified that ICE “CANNOT delegate its tax-exempt status” and instructed that offerors review their proposals and provide their best and final prices. Asset responded that it had reviewed Amendment 19 and that its proposal did not require revision but did not remove the tax-exempt language from its proposal. ICE again clarified the tax-exempt status question via Amendment 20. Asset again responded that it did not need to amend its proposal but the tax-exempt certificate language remained. ICE ultimately selected Akima, concluding that Asset was ineligible for the award because the tax-exempt certificate language rendered its proposal a contingent price. Asset filed another bid protest, disputing ICE’s best-value analysis. The GAO agreed that ICE improperly determined that Asset’s bid contained contingency pricing but concluded that Asset “was not prejudiced” because ICE’s best-value analysis was “reasonable,”The Claims Court concluded that Asset lacked standing to bring the bid protest. The Federal Circuit affirmed. Asset’s proposal was non-responsive to the requirements of the Solicitation, as explicitly amended, making it ineligible for the award. View "Asset Protection and Security Services, L.P. v. United States" on Justia Law

New Vision sued SG in the federal district court in Nevada. SG then filed Patent Trial and Appeal Board petitions. The Board declined to respect the forum selection agreement in the parties’ license agreement, which referred to “exclusive” jurisdiction in the appropriate federal or state court in the state of Nevada, and proceeded to a final decision, finding the claims at issue as well as proposed substitute claims, patent-ineligible under 35 U.S.C. 101.The Federal Circuit vacated and remanded the Board’s decisions for consideration of the forum selection clause in light of its 2019 “Arthrex” decision. Because Arthrex issued after the Board’s final-written decisions and after New Vision sought Board rehearing, New Vision has not waived its Arthrex challenge by raising it for the first time in its opening brief. The Board’s rejection of the parties’ choice of forum is subject to judicial review; section 324(e) does not bar review of Board decisions “separate . . . to the in[stitu]tion decision.” View "New Vision Gaming & Development, Inc. v. SG Gaming, Inc." on Justia Law

GSA leased a building from NOAA’s predecessor; the annual rent includes agreed “[b]ase year taxes.” GSA must compensate NOAA for “any increase in real estate taxes during the lease term over the amount established as the base year taxes” and defines “real estate taxes” as “only those taxes, which are assessed against the building and/or the land upon which the building is located, without regard to benefit to the property, for the purpose of funding general Government services. Real estate taxes shall not include, without limitation, general and/or special assessments, business improvement district assessments, or any other present or future taxes or governmental charges that are imposed upon the Lessor or assessed against the building and/or the land upon which the building is located.In 2016, NOAA asked GSA to reimburse it for the Stormwater/Chesapeake Bay Water Quality tax, the Washington Suburban Transit Commission tax, the Clean Water Act Fee, and a Supplemental Education Tax. All four appear on the consolidated tax bill. The clean water tax, effective in 2013, is collected for the Watershed Protection and Restoration Fund, “in the same manner as County real property taxes and [has] the same priority, rights, and bear[s] the same interest and penalties, and [is] enforced in the same manner as County real property taxes.”GSA denied the claim. The Civilian Board of Contract Appeals held that the lease provision excludes all taxes enacted after the date of the lease, even if those taxes meet expressly stated criteria for being a real estate tax. The Federal Circuit reversed. Under ordinary interpretive principles, a real estate tax qualifies under the Lease provision whenever it satisfies the three criteria of the first sentence. View "NOAA Maryland, LLC v. General Services Administration" on Justia Law

In 2008, severe storms hit Indiana. Columbus Hospital sustained significant damage. President Bush authorized FEMA assistance through disaster grants under the Stafford Act, 42 U.S.C. 5121–5206. The state agreed to be the grantee for all grant assistance, with the exception of assistance to individuals and households. FEMA reserved the right to recover assistance funds if they were spent inappropriately or distributed through error, misrepresentation, or fraud. Columbus apparently submitted its request directly to FEMA, instead of through the state. FEMA approved Columbus projects, totaling approximately $94 million. Funds were transmitted to Columbus through the state. In 2013, the DHS Inspector General issued an audit report finding that Columbus had committed procurement violations and recommended that FEMA recover $10.9 million. FEMA reduced that amount to $9,612,831.19 and denied Columbus’s appeal. Columbus did not seek judicial review. FEMA recovered the disputed costs from Columbus in 2014.In 2018, Columbus filed suit, alleging four counts of contract breach and illegal exaction. The Claims Court dismissed Columbus’s illegal exaction claim, holding that Columbus did not have a property interest in the disputed funds and that FEMA’s appeal process protected Columbus’s rights to due process, and dismissed Columbus’s contract-based claims, finding that Columbus had no rights against FEMA under that contract or otherwise. The Seventh Circuit affirmed the dismissal of the illegal exaction and express and implied contract claims. The court vacated the dismissal of the third-party beneficiary contract claim. View "Columbus Regional Hospital v. United States" on Justia Law

In 2009, Meidinger submitted whistleblower information to the IRS under 26 U.S.C. 7623, concerning “one million taxpayers in the healthcare industry that are involved in a kickback scheme.” The IRS acknowledged receipt of the information, but did not take action against the accused persons. The IRS notified Meidinger of that determination. Meidinger argued that the IRS created a contract when it confirmed receipt of his Form 211 Application, obligating it to investigate and to pay the statutory award. The Tax Court held that it lacked the authority to order the IRS to act and granted the IRS summary judgment. The D.C. Circuit affirmed that Meidinger was not eligible for a whistleblower award because the information did not result in initiation of an administrative or judicial action or collection of tax proceeds.In 2018, Meidinger filed another Form 211, with the same information as his previous submission. The IRS acknowledged receipt, but advised Meidinger that the information was “speculative” and “did not provide specific or credible information regarding tax underpayments or violations of internal revenue laws.” The Tax Court dismissed his suit for failure to state a claim; the D.C. Circuit affirmed, stating that a breach of contract claim against the IRS is properly filed in the Claims Court under the Tucker Act: 28 U.S.C. 1491(a)(1). The Federal Circuit affirmed the Claims Court’s dismissal, agreeing that the submission of information did not create a contract. View "Meidinger v. United States" on Justia Law

In 2010, the Army granted Authentic a nonexclusive license to manufacture and sell clothing bearing the Army’s trademarks. The agreement required the Army’s advance written approval of any products and marketing materials bearing the Army’s trademarks and included exculpatory clauses that exempted the Army from liability for exercising its discretion to deny approval. In 2011-2014, Authentic submitted nearly 500 requests for approval; the Army disapproved 41 submissions. During that time, Authentic received several formal notices of material breach for claimed failures to timely submit royalty reports and pay royalties. Authentic eventually paid its royalties through 2013. Authentic’s counsel indicated that Authentic would not pay outstanding royalties for 2014.Authentic's ensuing breach of contract suit cited the Army’s denial of the right to exploit the goodwill associated with the Army’s trademarks, refusal to permit Authentic to advertise its contribution to Army recreation programs, delay of approval for a financing agreement, denial of approval for advertising, and breach of the implied duty of good faith and fair dealing by not approving the sale of certain garments. The Federal Circuit affirmed summary judgment in favor of the government. The license agreement stated in no uncertain terms that the Army had “sole and absolute discretion” regarding approval of Authentic’s proposed products and marketing materials; the exercise of that broad approval discretion is not inconsistent with principles of trademark law. View "Authentic Apparel Geoup, LLC v. United States" on Justia Law

In 2017, the Department of Homeland Security issued the Solicitation as a Request for Proposal for a potentially multi-year contract for dorm management services at the Federal Law Enforcement Training Center in Glynco, Georgia. During the evaluation process, the government eliminated Safeguard’s proposal from consideration because Safeguard omitted pricing information for 16 contract line item numbers totaling $6,121,228.The Claims Court and Federal Circuit upheld the award to another bidder. The Solicitation required offerors to submit the pricing information and provided notice that elimination was possible if that pricing information was omitted. Safeguard’s omissions were material and not subject to waiver or clarification. The court upheld the denial of Safeguard’s email request to supplement the administrative record through discovery and the denial of its motion to supplement the administrative record with affidavits. The Claims Court had jurisdiction over a claim that the government breached an implied-in-fact contract to fairly and honestly consider an offeror’s proposal in the procurement context under 28 U.S.C. 1491(b)(1). View "Safeguard Base Operations, LLC v. United States" on Justia Law

The Army Corps of Engineers issued a request for proposals. NIKA bid but was not awarded a contract. NIKA made a timely request for debriefing. The Corps sent NIKA a written debriefing and alerted NIKA of the right to submit additional questions. NIKA did not submit additional questions. NIKA filed a protest at the Government Accountability Office (GAO) six days after the written debriefing. Under 31 U.S.C. 3553(d), bid protests filed at the GAO invoke an automatic stay of procurement during the pendency of the protest if the federal agency awarding the contract receives notice within five days of debriefing. GAO denied the stay as untimely.NIKA filed suit, citing 10 U.S.C. 2305(b)(5)(B)(vii), which states that “[t]he debriefing shall include . . . an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing.” The Claims Court instituted the stay. The bid protest concluded and the stay has ended.The Federal Circuit reversed, first holding that the issue was not moot, being capable of repetition but evading review. The text of 31 U.S.C. 3553(d) indicates that when no additional questions are submitted, the “debriefing date” is the date upon which the party receives its debriefing. The five-day period begins on the debriefing date, rather than two days later. Because NIKA did not file at the GAO within the five-day period, it did not timely invoke the stay. View "NIKA Technologies, Inc. v. United States" on Justia Law