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

Astornet alleges that it is sole exclusive licensee and owner of all rights in the 844 patent, issued in 2009 to Haddad as the inventor and entitled “Airport vehicular gate entry access system” and asserted the patent against NCR, MorphoTrust USA, and BAE Astornet alleged that the three had contracts with the Transportation Security Administration (TSA) to supply boarding-pass scanning systems; that TSA’s use of the equipment infringed and would infringe the patent; and that NCR and MorphoTrust were bidding for another contract to supply modified equipment whose use by TSA would also infringe. The Federal Circuit affirmed dismissal, finding that Astornet’s exclusive remedy for the alleged infringement was a suit against the government in the Court of Federal Claims under 28 U.S.C. 1498. View "Astornet Techs., Inc. v. BAE Sys., Inc." on Justia Law

The Navy, Military Sealift Command (MSC), issued a contract solicitation, involving management and coordination of lodging and transportation for federal civil service mariners who were completing required training at the New Jersey MSC Center. MSC issued the solicitation as a total small business set-aside under North American Industrial Classification System code: “Hotels (except Casino Hotels)”. After bidders revised and resubmitted their initial proposals, MSC accepted the proposal of Mali. Losing bidder DMC filed a size protest with the Small Business Administration (SBA), which found that Mali was not a small business.. Because DMC had submitted the next lowest-priced, technically acceptable bid, it was then declared the successful bidder. Tinton Falls then filed a size protest, alleging that DMC intended to subcontract the lodging services portion of the contract to hotels that did not qualify as small businesses. The SBA concluded that the primary and vital requirements of the solicitation were a coordinated package of rooms, transportation, and other services; that DMC would be performing a significant portion of the contract’s primary and vital requirements; that DMC’s relationship with its subcontracted hotels did not violate the ostensible contractor rule; and that DMC could be considered a small business concern. The Federal Circuit affirmed final judgment for the government and DMC. View "Tinton Falls Lodging Realty, LLC v. United States" on Justia Law

The Defense Contract Management Agency within the Department of Defense (DOD) employed Vassallo as a computer engineer in 2012. That summer, it announced a vacancy for the position of Lead Interdisciplinary Engineer, stating that only certain individuals could apply: “[c]urrent [DCMA]” employees or “[c]urrent [DOD] [e]mployee[s] with the Acquisition, Technology, and Logistics . . . [w]orkforce who are outside of the Military Components.” Vassallo, a veteran, applied, but DCMA rejected his application. The Office of Personnel Management (OPM) determined that DOD was not required to afford him veterans employment preferences under the Veterans Employment Opportunities Act of 1998 (VEOA), 112 Stat. 3182. OPM defines the word “agency” in 5 U.S.C. 3304(f)(1) to mean “Executive agency” as defined in 5 U.S.C. 105 and concluded that DCMA was not required to give Vassallo an opportunity to compete under 5 U.S.C. 3304(f)(1) because the DOD— the agency making the announcement—did not accept applications from outside its own workforce. Vassallo sought corrective action from the Merit Systems Protection Board, which concluded that OPM’s regulation permissibly fills a gap in the governing statute. The Federal Circuit affirmed, rejecting arguments that the OPM regulation contradicts the plain terms of the statute and unreasonably undermines the purpose of the VEOA. View "Vassallo v. Dept. of Defense" on Justia Law

Bay County Utilities provides water and sewer services. The County Commissioners establish rates. In 1966, the U.S. Air Force contracted with the County for water services at Tyndall Air Force Base. The parties entered into a sewer services contract in 1985. Both required the parties to renegotiate any new rates. In 1994, Federal Acquisition Regulations were amended to require standardized clauses in utility service contracts. When the government is contracting with an unregulated utility or the utility is subject to non-independent oversight, the parties must negotiate new rates. If the utility is overseen by an independent regulatory body, no further negotiations are required. In 2007 and 2009, Bay County increased water rates. The Air Force ignored those increases, but, in 2009 and 2010, unilaterally modified the water contract, with new rates, lower than the rates set by Bay County. In 2009 Bay County increased sewer rates. The Air Force refused to pay those higher rates, and instituted a unilateral contract modification to moderately increase sewer rates. Bay County submitted unsuccessful Contract Disputes Act claims to recover the unpaid balance of approximately $850,000. The Federal Circuit affirmed the Court of Federal Claims, holding that Bay County is an independent regulatory body and may revise rates in utility contracts without resorting to negotiations with the Air Force. View "Bay Cnty., Fla. v. United States" on Justia Law

The Government Printing Office (GPO) received nine bids for a printing order. Colonial was the lowest bidder ($2,418,443.54); Fry was the second lowest ($2,502,545.05). Colonial was a small business. Under its Printing Procurement Regulation, GPO can award contracts only to “responsible” bidders. The contracting officer found Colonial non-responsible, considering previous late deliveries, and recommended an award to Fry. A purchase order issued to Fry. Colonial filed a protest with the Government Accountability Office, arguing that the responsibility determination should have been referred to the Small Business Administration (SBA) Certificate of Competency Program, 15 U.S.C. 637(b)(7), under which a “Government procurement officer” may not preclude a small business from being awarded a government contract due to non-responsibility without referring the matter to the SBA, which responded that “requirements of the COC program could, arguably, apply to GPO and other nonexecutive agencies.” The GAO found that GPO was not subject to the program and that the contracting officer had a reasonable basis for her determination of non-responsibility. The Claims Court held that GPO did not violate the referral requirements and that the GPO’s responsibility determination was not arbitrary. The Federal Circuit affirmed, holding that GPO is not required to refer responsibility determinations to the SBA. View "Colonial Press Int'l, Inc. v. United States" on Justia Law

In 1996, SUFI contracted with the Air Force to operate telephone systems in lodging facilities on bases in Germany. SUFI installed equipment at no cost to the Air Force, which agreed that guests would make calls exclusively through SUFI’s network. The Air Force quickly broke its promise of exclusivity. SUFI initiated administrative proceedings. In 2004, the Armed Services Board of Contract Appeals found the Air Force in material breach. The parties entered into a partial settlement in 2005. SUFI then submitted claims to the contracting officer, totaling $131 million. The contracting officer failed to issue a decision for more than six months before issuing a final decision denying all of SUFI’s claims except one. The Board found in SUFI’s favor on 22 claims. In 2010, SUFI submitted a claim for attorney fees and requested a decision within 60 days. More than six months passed; Air Force counsel told SUFI to consider its claim “deemed denied.” SUFI filed suit The Court of Federal Claims awarded attorney fees with interest but denied overhead and lost profit. The Federal Circuit rejected the government’s argument that SUFI failed to exhaust administrative remedies. The contracting officer’s delay rendered the contractual remedy inadequate and unavailable, regardless of the Board’s discretionary authority to review an appeal where the contracting officer fails to issue a decision in “a reasonable time.” The court held that SUFI is entitled to attorney fees under common law; vacated the denial of overhead and profit; and remanded for recalculation of interest. View "SUFI Network Servs., Inc. v. United States" on Justia Law

The National Institute on Drug Abuse (NIDA) within the National Institutes of Health issued Request for Proposal for the “NIH Pain Consortium Centers of Excellence in Pain Education Coordination Center.” NIDA initially issued the solicitation as a small business set-aside under North American Industry Classification System code 541712, “Research and Development in the Physical, Engineering, and Life Sciences (except Biotechnology),” which limits offerors to small businesses with 500 employees or fewer. A prospective offeror appealed the NAICS code designation to the U.S. Small Business Administration Office of Hearings and Appeals, which ordered NIDA’s contracting officer to amend the solicitation to change the NAICS code designation to 541611, “Administrative Management and General Management Consulting Services.” Palladian sought to enjoin NIDA from accepting and evaluating proposals under the new code, which rendered Palladian ineligible to compete. The Court of Federal Claims granted Palladian’s motion for judgment on the administrative record, finding that the contracting officer’s NAICS code amendment was arbitrary and capricious because NAICS code 541611 did not best describe the statement of work for the solicitation. The Federal Circuit reversed, finding that Palladian failed to exhaust its administrative remedies. View "Palladian Partners, Inc. v. United States" on Justia Law

In 2013, the Department of Homeland Security issued a final decision removing Garcia from the U.S. Border Patrol for misconduct. Garcia received notice the same day. Under 5 U.S.C. 7121(e)(1), Garcia had the option to appeal his removal to the Merit Systems Protection Board (MSPB) or to invoke arbitration, under his union’s collective bargaining agreement (CBA). Article 34 of the CBA states that in cases involving adverse actions, such as removal, requests for arbitration “must be filed . . . not later than thirty (30) calendar days after the effective date of the action.” His union mailed a letter to the Agency requesting arbitration 28 days after the effective date of Garcia’s removal. The Agency did not receive this request until seven days later. After an arbitrator was appointed, the Agency moved to dismiss. The Arbitrator found the plain meaning of “filed” in the CBA requires actual receipt of the request for arbitration, relying on the definition of “file” used in federal court proceedings. The Federal Circuit reversed, holding that the request for arbitration need only be mailed within the 30-day time period. View "Garcia v. Dep't of Homeland Sec." on Justia Law

Bannum protested decisions of the Bureau of Prisons of the U.S. Department of Justice to award two contracts to other bidders, alleging a common defect in the terms of the solicitations and problems in the evaluation of competing bids. Bannum cited a requirement of compliance with Prison Rape Elimination Act of 2003, 42 U.S.C. 15601–15609 and the government’s failure to provide pricing information with respect to the requirement. In each case, the Court of Federal Claims dismissed Bannum’s suit. Finding that Bannum’s proposal, by failing to commit Bannum to a fixed price, was materially out of compliance with the terms of the solicitation, the court concluded that Bannum was not an “interested party” entitled to bring its protest under 28 U.S.C. 1491(b). The Federal Circuit affirmed in consolidated appeals, holding that, because Bannum did not adequately present its objection to the solicitations before the awards, Bannum waived its ability to challenge the solicitations. On appeal, Bannum failed to preserve its separate challenges to the bid evaluations. View "Bannum, Inc. v. United States" on Justia Law

The federal Centers for Medicare and Medicaid Services (CMS) uses contractors to determine if Medicare claims were correctly paid. If the contractor identifies an overpayment, CMS sends a demand letter to the provider seeking repayment. Under contracts from 2008, the contractors invoiced CMS for a contingency fee when the overpayment was collected, typically 41 days after the demand letter. In 2014, CMS issued new requests for quotes for these recovery services, with new terms requiring the contractors to wait to invoice CMS until any challenge to the repayment request passed the second level of a five-level appeal process, typically 120 to 420 days after the demand letter. Five contractors bid; CGI did not. Before bidding closed, CGI filed a pre-award protest at the Government Accountability Office. While the protest was pending, bidding closed. The GAO subsequently denied the protest. CGI filed a protest in the Court of Federal Claims. That court granted the government judgment on the administrative record, holding that the modified payment terms did not violate statutory or regulatory provisions nor unduly restrict competition. The Federal Circuit reversed, holding that CGI had standing and citing Federal Acquisition Regulation Part 12’s prohibition against including contract terms inconsistent with customary commercial practice. View "CGI Fed. Inc. v. United States" on Justia Law