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

Articles Posted in Government Contracts
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The 1938 Javits-Wagner-O’Day Act prioritized purchasing products from suppliers that employed blind individuals; 41 U.S.C. 8501–06, establishes a procurement system in which the government procures certain commodities and services from nonprofit agencies that employ the blind or otherwise severely disabled. The “AbilityOne Program” regulations govern the procurement system. 41 C.F.R. 51 and reiterate the Program's mandatory nature. The DLA, within the Defense Department, issued a Solicitation that contemplated awards for a Rifleman Set with Tactical Assault Panel (TAP) and Advanced TAP (ATAP). Before an ATAP award was made, SEKRI, a nonprofit agency qualified as a mandatory source of ATAP under the AbilityOne Program, sought an injunction prohibiting the federal government from procuring ATAP from any other source.The Claims Court dismissed for lack of standing, reasoning that SEKRI cannot claim to be a prospective bidder because the solicitation period had ended and the only action SEKRI took before filing its complaint was contacting DLA, through a third party, to inform DLA that SEKRI was a mandatory ATAP source. SEKRI did not submit a bid before the deadline despite DLA’s invitation. The Federal Circuit reversed. SEKRI qualifies as a prospective bidder for standing purposes under the Tucker Act. Given DLA’s awareness during the bidding process that SEKRI is the mandatory ATAP source, SEKRI has not waived its right to bring its bid protest action under the “Blue & Gold” standard. View "SEKRI, Inc. v. United States" on Justia Law

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CSI was awarded a government contract to provide “[a]ir charter services operated by brokers, and various auxiliary services that will be used to support the contract.” After U.S. Immigration and Customs Enforcement (ICE) canceled various removal flights, CSI sought payment ($40,284,548.89) from the Department of Homeland Security. The Civilian Board of Contract Appeals dismissed the action, concluding that the CSI Terms and Conditions, which include “Cancellation Charges” were not incorporated by reference into the Schedule Contract.The Federal Circuit vacated and remanded. The Schedule Contract expressly incorporates at least one document that unambiguously identifies the CSI Terms and Conditions and makes clear such terms and conditions apply to all operations. CSI’s Offer plainly identified the CSI Terms and Conditions—along with the CSI Commercial Sales Practice attachment, its Pricing Policy, and its Commercial Price List—in the “Pricing” section of its table of contents. View "CSI Aviation, Inc. v. Department of Homeland Security" on Justia Law

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The government solicited bids for the provision of food and dining room operation services at the Fort Knox U.S. Army base and awarded the contract to the Kentucky Office of Vocational Rehabilitation (KOVR). Mitchco, previously KOVR’s subcontractor and its predecessor under a 2015 contract award, challenged the award. The contract was designated as set aside for small businesses and was subject to the Randolph-Sheppard Act (RSA), which provides that “[i]n authorizing the operation of vending facilities on Federal property, priority shall be given to blind persons licensed by a State agency [SLA],” 20 U.S.C. 107(b).Mitchco argued that KOVR was not a “small business concern,” and therefore was not eligible to receive the award. The Small Business Administration determined that KOVR was “other than a small business concern for the applicable size standard” Mitchco filed two unsuccessful protests with the Government Accountability Office, alleging that the agency improperly evaluated KOVR’s proposal and that KOVR violated the Procurement Integrity Act (PIA).After determining that the case was not moot, the Federal Circuit affirmed summary judgment in favor of the government. Mitchco was aware of the SLA priority notwithstanding the small business set-aside and did not protest the terms of the solicitation prior to bid submission and cannot challenge its applicability now. Nothing in the RSA requires a blind person at each facility. Mitchco did not establish a PIA violation. View "Mitchco International, Inc. v. United States" on Justia Law

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VAS leased a facility that housed “ICE” in Warwick, Rhode Island. In 2017, the General Services Administration (GSA) issued a request for lease proposals for a facility to house ICE in Rhode Island. VAS offered the building that ICE was already occupying, indicating that the building met the requirements. After several revisions, GSA awarded the contract to a competitor. An Office of the Inspector General report found that the procurement was “significantly flawed,” because GSA accepted a late proposal; used a calculation of the lease’s present value that favored the chosen bid; awarded the contract to a bidder that did not own or control the property at the time of its proposal; failed to timely and adequately debrief VAS; and used unclear acquisition terminology. GSA declined to take any corrective action.The Claims Court dismissed VAS’s bid protest for lack of standing, reasoning that VAS failed to show it has a substantial chance of winning the lease. The Federal Circuit reversed. If VAS’s protest proves successful, VAS would have an opportunity to participate in any new procurement. Under such circumstances, a protester has a substantial chance of winning the award for standing purposes. View "VAS Realty, LLC v. United States" on Justia Law

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Aspen sought compensation for the U.S. Army Corps of Engineers’ failure to deposit contractual payments in the account designated in its contract to outfit U.S. military health and dental clinics in Germany. The contract required payment using the Electronic Funds Transfer (EFT) information contained in the Central Contractor Registration (CCR) database. After making two payments to an account (CZ) not listed in the database for Aspen, the government maintained that Aspen held the payee out as having “apparent authority to negotiate” on behalf of Aspen and “to sign contract modifications, submit invoices, submit requests for equitable adjustments[,] and submit delay cost proposals.” The Armed Services Board of Contract Appeals held that the government did not breach the contract.The Federal Circuit reversed. When the government made the payments to the CZ account, Aspen had not changed its EFT information in the CCR database to the CZ account. The government breached the contract by making its payments to an account other than the one listed in the CCR database; the breach was material. On remand, the Board must determine whether the government has established an affirmative defense of payment. The parties dispute whether depositing funds into the CZ account benefitted Aspen but that issue cannot be resolved on appeal. View "Aspen Consulting, LLC v. Secretary of the Army" on Justia Law

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The Army requested bids for helicopter flight training and awarded the contract to L3. In a bid-protest action filed by disappointed bidder S3, the Claims Court set aside the award. After reevaluation of the bids, the Army awarded the contract to CAE. S3 filed another bid protest.The Claims Court rejected most of S3’s arguments but agreed that the assignment by the Army’s source selection authority (SSA) of a certain “strength” to CAE was irrational because that strength, which purported to provide a “significant cost savings benefit,” would result in only small and unpredictable savings, if any. Nevertheless, the Claims Court upheld the award, finding no prejudice to S3 from the identified error. The Claims Court observed that the erroneously found strength had been treated as falling within a non-price-factor category for which CAE’s proposal had been “clearly superior,” an assessment that would not be altered by the loss of a strength for which the only possible benefit could be monetary; when explicitly comparing the added benefits of the CAE proposal with its higher price in the best-value tradeoff analysis, the SSA had not made any adjustment to CAE’s price based on a cost-saving from the strength.The Federal Circuit affirmed, rejecting an argument that there is a presumption of prejudice whenever the Claims Court determines that the agency acted irrationally in making an award decision and finding no clear error in the determination that there was no prejudice. View "System Studies & Simulation, Inc. v. United States" on Justia Law

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Tolliver had a contract with the United States under which Tolliver was obliged to write technical manuals for government-used equipment. The government was obliged to supply Tolliver information relevant to that task. When the government failed to obtain and therefore failed to supply that information, the parties modified the contract. Tolliver ultimately produced the manuals. After the modification, however, a third party sued Tolliver in the name of the government under the False Claims Act, alleging that Tolliver had made a false certification of compliance with the original contract. The government, rather than intervening in the qui tam case and then dismissing it, allowed it to proceed. With evidentiary help from the government, Tolliver prevailed after incurring substantial legal fees.The contracting officer denied Tolliver's claim under the Contract Disputes Act, 41 U.S.C. 7101, for an “equitable adjustment” for reimbursement of “allowable legal fees.” The Claims Court entered judgment for Tolliver, concluding that the United States had breached an implied warranty of performance. The Federal Circuit vacated. Because Tolliver never submitted a claim of breach of that warranty to the contracting officer, the Claims Court lacked jurisdiction to adjudicate such a claim. The claim that Tolliver presented to the contracting officer was, on its face, based on legal fees, not on a breach of the implied warranty of performance. View "Tolliver Group, Inc. v. United States" on Justia Law

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U.S. Customs and Border Protection (CBP) controls and monitors traffic at the borders, including the flow of vehicles, cargo, and people. CBP’s Cargo Systems Program Directorate (CSPD) manages a commercial trade processing system, the Automated Commercial Environment (ACE), which provides automated tools and information for making admissibility decisions before shipments reach U.S. borders and supports cargo revenue collection. ACE “is not a single operating system but a collection of applications built on diverse multivendor technological platforms.” In 2018, CBP issued a solicitation requesting quotes for “application development and operation and maintenance support services” as part of CSPD’s effort to develop and support cargo systems applications. Harmonia submitted an unsuccessful pre-award agency-level protest to CBP concerning amendments to the solicitation and CBP’s limitation of bid revisions.The Claims Court rejected Harmonia’s subsequent suit on the Administrative Record. The Federal Circuit reversed in part. The Claims Court erred in determining that Harmonia waived its right to assert before the court the same challenges that it asserted in its pre-award protest. The Federal Circuit vacated a holding that CPD did not act in an arbitrary or capricious manner in evaluating Harmonia’s proposal and in making an award decision. The Claims Court must determine the merits of Harmonia’s pre-award protest and what relief, if any, Harmonia is entitled to based on that protest. View "Harmonia Holdings Group, LLC v. United States" on Justia Law

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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

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Triple Canopy, a private security company, had six fixed-price contracts for security services in Afghanistan, awarded by the Department of Defense. Each contract required that Triple Canopy comply with local law and incorporated Federal Acquisition Regulation 52.229-6, which states: [T]he contract price shall be increased by the amount of any after-imposed tax or of any tax or duty … if the Contractor states in writing that the contract price does not include any contingency for such tax and if liability for such tax, interest, or penalty was not incurred through the Contractor’s fault, negligence, or failure to follow instructions of the Contracting Officer or to ... take all reasonable action to obtain exemption." After repeatedly seeking exemptions, Triple Canopy paid a penalty ($430,994.97) that the Afghan government imposed based on the company having more than 500 employees.Within six years of making payment, Triple Canopy submitted claims. The Armed Services Board of Contract Appeals denied the claims as untimely, 41 U.S.C. 7103(a)(4)(A).The Federal Circuit reversed. Triple Canopy’s claims did not accrue until July 6, 2011, when the Afghan government responded to Triple Canopy’s April 8, 2011 appeal. Triple Canopy’s June 6, 2017 claim submission was within the six-year limitations period Triple Canopy had to comply with the requirement that it “take all reasonable action” to obtain “exemption” from the assessment, which meant appealing the assessment. View "Triple Canopy, Inc. v. Secretary of the Air Force" on Justia Law