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Circuit CourtsBoards of Contract AppealsOther CasesFRANCONIA ASSOCIATES, et al., v. US, No. 01-455, June 10, 2002
FESTO CORP. v. SHOKETSU KINZOKU KOGYOKABUSHIKI CO., No. 00-1543, May 28, 2002.
LUJAN v. G & G FIRE SPRINKLERS, INC., No. 00-152, April 17, 2001. Finding that the California Labor Code, which provides for withholding sums from a contractor where its subcontractors were not paying proper prevailing wages, did not deprive the subcontractor of due process, the Court reverses the 9th Circuit. Writing for the Court, Chief Justice Rehnquist notes that "... if California makes ordinary judicial process available to respondent for resolving its contractual dispute, that process is due process." Finding that such existed the Court reversed.
MOBIL OIL EXPLORATION & PRODUCINGSOUTHEAST, INC. v. UNITED STATES (99-244) 177 F.3d 1331, reversed and remanded. Justice Breyer delivered the opinion of the Court, and summarized the opinion as follows:"
Two oil companies, petitioners here, seek restitution of $156 million they paid the Government in return for lease contracts giving them rights to explore for and develop oil off the North Carolina coast. The rights were not absolute, but were conditioned on the companies’ obtaining a set of further governmental permissions. The companies claim that the Government repudiated the contracts when it denied them certain elements of the permission-seeking opportunities that the contracts had promised. We agree that the Government broke its promise; it repudiated the contracts; and it must give the companies their money back."
[Opinion cites the Restatment of Contracts, Farnsworth, Williston, Corbin and other contract law Hornbook references.]
VERMONT AGENCY OF NATURAL RESOURCES v.UNITED STATES ex rel. STEVENS (98-1828) 162 F.3d 195, reversed. Justice Scalia delivered the opinion of the Court which held "... that a private individual has standing to bring suit in federal court on behalf of the United States under the False Claims Act, 31 U.S.C. § 3729-3733, but that the False Claims Act does not subject a State (or state agency) to liability in such actions. The judgment of the Second Circuit is reversed." The Eleventh Amendment issue was not reached.
ADARAND CONSTRUCTORS v.SLATER US SupCt, No.99-295, January 12, 2000.align="center" [Another decision in this long drawn out case. See the case for the facts and background.] On writ of certiorari to the 10th Circuit Court of Appeals, the Court reverses and remands to the 10th Circuit its decision which found the action to be moot. Finding that the 10th Circuit had "confused mootness with standing" and that the respondent did not meet the heavy burden of asserting mootness. The Opinion concludes with the following: align="center""It is no small matter to deprive a litigant of the rewards of its efforts, particularly in a case that has been litigated up to this Court and back down again. Such action on grounds of mootness would be justified only if it were absolutely clear that the litigant no longer had any need of the judicial protection that it sought. Because that is not the case here, the petition for writ of certiorari is granted, the judgment of the United States Court of Appeals for the Tenth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.align="center" It is so ordered."
ARIZONA DEPARTMENT OF REVENUE, PETITIONER v. BLAZE CONSTRUCTION COMPANY, INC., US SupCt, No. 97-1536, March 2, 1999. In an opinion by Justice Thomas, the Court holds that a State generally may impose a nondiscriminatory tax upon a private company's proceeds from contracts with the Federal Government, when the federal contractor renders its services on an Indian reservation. PDF Version
DEPARTMENT OF THE ARMY, PETITIONER v. BLUE FOX, INC., US SupCt, No. 97—1642, January 20, 1999. The Supreme Court unanimously reversed the Ninth Circuit's panel decision in our Blue Fox case. In an opinion authored by the Chief Justice, the Court held that the APA does not waive sovereign immunity to permit an unpaid subcontractor to bring an action against the United States. The Court ruled that as a form of substitute and not specific relief, Blue Fox's action to enforce an equitable lien fell outside the scope of the APA's waiver of sovereign immunity for relief "other than money damages." The Court noted that its decision was consistent with long-standing precedent establishing that sovereign immunity bars creditors from attaching or garnishing funds in the Treasury and from enforcing liens against property owned by the United States. PDF Version
Hughes Aircraft Co. v. U.S. ex rel. Schumer , US SupCt, No. 95-1340, 6/16/97. Court holds that 1986 amendment to False Claims Act did not apply retroactively to pre-1986 conduct.
UNITED STATES OF AMERICA ex rel. Martin Becker v. WESTINGHOUSE SAVANNAH RIVER COMPANY, 4th Cir., No.01-2452, September 27, 2002. False Claims Act case. Fourth circuit joins several other circuits and holds "...that the governmentÕs knowledge of the
facts underlying an allegedly false record or statement can negate the
scienter required for an FCA violation."
United States of America ex rel. Brett Roby v. Boeing, 6th Cir., No. 00-4157, September 12, 2002. A High-Value Items Clause ("HVIC"), set forth in FAR 52.246-24, 52.246-24, Limitation of Liability-High-Value Items, did not serve as a defense to damages for loss of the helicopter, under the False Claims Act.
DELTA FOUNDATION, INC. v. HHS, 5th Cir., No. 01-60592, August 20, 2002. In affirming a decision of a District Court which had upheld a decision of the HHS Departmental Appeals Board ("DAB") the Fifth Circuit holds that "...that there is a sufficiently adversarial nature to HHS proceedings so as to impose an issue exhaustion requirement to those proceedings. A claimant must therefore exhaust all issues in a request for review by the DAB in order to preserve judicial review of those issues."
Courtney v. Smith, 6th Cir. No. 00-4554, July 23, 2002. Sixth circuit follows Federal Circuit in finding that government employees do not have standing to challenge an A-76 decision. Dissenting, Judge Merritt argues that because the Circular defines federal employees as "Directly affected parties ..." that such employees are "adversely affected or aggrieved" persons who should have standing. [Interestingly, the majority gives considerable weight to the current circular's "preference" to rely on private contractors. Would it have made a difference if the preference language is eliminated, as the Administrator of OFPP has indicated it will be in a future revision of the Circular?]
Building and Construction Trades Department, AFL-CIO, et al. v. Joe Allbaugh, Director, Federal Emergency Management Agency, et al., DC Cir. No. 01-5436. E.O. 13202 and Project Labor Agreements case. Court reverses the District Court and concludes "... that the President acted within his constitutional authority in issuing Executive Order No. 13,202 and that the Executive Order expresses a proprietary policy that is not subject to preemption by the NLRA. Therefore, the judgment of the district court is reversed and its injunction is vacated."
PETER VEECK, doing business as Regional Web v. SOUTHERN BUILDING CODE CONGRESS INTERNATIONAL, INC., 5th Cir., No. 99-40632, June 7, 2002. A copyright rather than a public contract law case, but interesting just the same. In an en banc decision the court reverses the earlier ruling of a panel and finds that there is no infringement where a party publishes a copyrighted work (a building code) when such code had been adopted as law by a community. Those list members who work with establishing recommended codes, such as the ABA Model Procurement code, may find this opinion of particular interest.
MD Public Service v. US, 4th Cir., No. 01-1792, May 31, 2002. Fourth Circuit adopts the holding of the Federal Circuit in American Fed. of Gov't Employees, AFL-CIO v. United States, 258 F.3d 1294 that an interested party under the ADRA is limited to an "actual or prospective bidder or offeror" as provided in CICA §S 3551(2). Because the Maryland Public Service Commission was not a bidder, and the actual bidder in the case below did not appeal, the Public Service Commission has no standing and the appeal is therefore dismissed.
PAMELA WOOD, GLENROY WOOD v. US, 1st Cir., No. 01-2028, May 10, 2002. Federal Tort Claims case. Discretionary exception to FTCA protects government from a claim that government's failure to ensure that contractor was performing in a safe manner was actionable.
United States of America, ex rel.; Edward T. Augustine v. Century Health Services, Inc., et al.. 6th Cir. No. 01-5019, May 7, 2002. FCA Case. Court affirms the District Court, which found for the government, and adopted the theory of liability "...that a false implied certification may constitute a false or fraudulent claim even if the claim was not expressly false when it was filed. Instead, liability can attach if the claimant violates its continuing duty to comply with the regulations on which payment is conditioned."
US v. SOUTHLAND MANAGEMENT CORPORATION; ET AL, 5th Cir., No. 00-60267, April 11, 2002, Revised April 12, 2002. Fifth Circuit tackles the "materiality" of a FCA claim and holds "...once a claimant has made a certification of compliance with a statutory or regulatory provision or a provision of a contract mandated by statute or regulation, the claimant is subject to liability under the Act for submitting a false claim if that certification of compliance is known by the claimant to be false."
Amfac Resorts, L.L.C. v. United States Department of the Interior, et al., DC Cir. 00cv02838, 00cv02885, 00cv02937, 00cv03085, March 1, 2002. This case arises from a series of concession contracts with the National Park Service and the right of renewal of those contracts. Appellants' argue in favor of an "implied" right of renewal that "...rests on the 'Christian doctrine,' named after G.L. Christian & Assocs., 312 F.2d 418, 424 (Ct. Cl. 1963)" which requires "that long-standing and deeply-ingrained agency policies, such as the [Park Service's] entrenched policy of granting concessioners renewal rights in exchange for concessioner investments, form a mandatory part of all government contracts." Judge Randolph notes that the DC Circuit has never adopted the Federal Circuit's Christian doctrine. However, as explained by Judge Randolph, Appellants reliance on the doctrine fails here as even the Federal Circuit has stated that "it is not enough that the legislative or regulatory provision is important or significant (assuming one could make such rankings). To constitute a contractual obligation even though not written in the contract, the provision must be a mandatory contract clause, a clause the legislation--or as in Christian, 312 F.2d at 424, the regulation--requires to be included in contracts." Here the court found that the renewal provision contained in the statute at issue here "was by no stretch a mandatory contract term". The case also holds that the Contract Disputes Act does not apply to these concession contracts and also includes some good discussion of implied contractual rights.
UNITED STATES EX REL. ANTHONY J. DUNLEAVY v. COUNTY OF DELAWARE, 3rd Cir., No. 00-3691, January 29, 2002. False Claims Act suit. Third Circuit concludes that "...that a local government cannot be subject to suit by a qui tam relator under the Act."
UNITED STATES of America ex rel. Janet CHANDLER, Ph.D. v. COOK COUNTY, Illinois, 7th Cir., Nos. 00-4110 & 01-1810, January 22, 2002. False Claims Act suit. Seventh Circuit holds that "...counties are not only amenable to the FCA but also are subject to the same penalties as other defendants."
WASHINGTON-DULLES TRANSPORTATION, LIMITED v. METROPOLITAN WASHINGTON AIRPORTS AUTHORITY, 4th Cir., No. 00-2153, August 29, 2001. Reversing a District Court decision, the Fourth Circuit finds that the federal district court has jurisdiction over the alleged violation of MWAA's procurement regulatons and that appellant has standing to bring the action.
US v. AMERICAN STATES INSURANCE COMPANY, 11th Cir., No. 00-1154, May 31, 2001. American States appeals from a district court decision finding it liable for damages in the breach of a surety agreement. 11th Circuit reverses, holding that the six year statute of limitations of 28 U.S.C. § 2415(a) bars the suit by the government.
Riley vs. St Luke's Epis Hosp, 5th Cir., No. 97-20948, May 25, 2001. By an 11-2 en banc decision the court finds that qui tam provisions of the False Claims Act do not violate the Take Care and Appointents Clauses of Article II. (See below for the earlier 5th Circuit decision in this case.)
US, ex rel. Garibaldi v. Orleans Parish School Board, 5th Cir., No. 99-30550, March 28, 2001. Court finds that local governments, here a school board, and not subject to the False Claims Act. Judge Davis nears conclusion of his opinion with the following statement. "The punitive damages regime of the False Claims Act shows a congressional intent that the False Claims Act should not be applied to local governments. There is no contrary expression of legislative intent and no purpose behind the False Claims Act that undermine that conclusion. For these reasons, we conclude that the term person in the liability provisions of the False Claims Act does not include local governments like the School Board. Therefore, the judgment of the district court is VACATED and judgment is RENDERED in favor of the Appellant, the Orleans Parish School Board."
US v. BANKERS INSURANCE COMPANY, 4th Cir., No. 00-1342, March 27, 2001. When the underlying contract contains an arbitration provision the 4th Circuit panel, with one judge dissenting, holds that a False Claims Act is subject to arbitration when requested by one of the parties.
US v. MACKBY, 9th Cir., No. 99-15605, March 21, 2001. Court remands to the district court to determine whether or not the False Claims Act civil damages and treble damages determined by the district court "violate the Excessive Fines Clause of the Eighth Amendment."
MD/DC/DE Broadcasters Association, et al. v. FCC, No. 00-1094, DC Cir., January 16, 2001. Not a contract case, but DC Circuit finds an FCC rule "... does put official pressure upon broadcasters to recruit minority candidates, thus creating a race-based classification that is not narrowly tailored to sup port a compelling governmental interest and is therefore unconstitutional." Citing Adarand.
Faye Anastasoff v. US, (PDF Version only.) No. 99-3917EM, 8th Cir., December 18, 2000. Eastern District of Missouri Civil case - civil procedure. Tax case. While considering a request for an enbanc hearing, the Court moots the case after learning that the government had refunded tax which was the basis for underlying action. Regarding prior opinion and the issue of the precedential effect of unpublished opinions court states "We sit to decide cases, not issues, and whether unpublished opinions have precedential effects no longer has relevance for the decision in this tax related case. [See prior 8/22/2000 case below]
Trayon Redd v. Lawrence H. Summers, Civ. No. 99-5329, December 1, 2000. DC Cir. When can the government be liable for a claim brought under § 504 of the Rehabilitation Act of 1973 by the employee of a government contractor? Here appellent, Redd, appeals from the District Court's dismissal of her complaint that she was discharged from her position as a tour guide, because of her weight, by a contractor of the Bureau of Printing and Engraving. This case doesn't answer that question, but remands to the district court for a consideration of § 504, 29 U.S.C. § 794 (a). That provision prohibits an individual with a disability from being excluded, soley because of that disability, from "... any program or activity conducted by any Executive agency..."
Multimax, Inc. v. Federal Aviation Administration, No. 99-1515, November 21, 2000, DC Cir. The opinion, once again underscores the deferential standard that is to be applied in federal procurement related cases. See case below at the FAA at http://www.faa.gov/agc/99_140od.htm
Adarand Constructors Inc. v. Slater, No. 97-1304, 10th Cir., September 25, 2000. The latest, Adarand VII, in a long running case involving minority subcontractor preferences in the highway construction area. On remand from the Supreme Court, the 10th Circuit considers, and reverses, the district court decision which had previously found an "Adarand" violation. The Court here considers the changes in the statutory and regulatory bases for the preference program and concludes that the strict scrutiny standards of a "compelling interest" and "narrowly tailored" remedies are met.
J.A. Jones Management Services v.FAA, No. 00-1023, DC Cir. September 29, 2000. Bid Protest case. Court upholds the decision of the FAA Administrator pursuant to the highly deferential arbitrary and capricious standard.
Faye Anastasoff v. US, (PDF Version only.) No. 99-3917EM, 8th Cir., August 22, 2000. Eastern District of Missouri Civil case - civil procedure. Tax case. Court finds unconstitutional that portion of Eighth Circuit Rule 28A(i) which states that unpublished opinions are not precedent. Court provides a detailed discussion of precedent and unpublished opinions. [Mooted-see 12/18/2000 opinion above]
Advanced Management Technology, Inc. v. FAA, No. 99-1134, DC Cir. May 12, 2000.
DC Circuit dismisses for lack of standing AMTI's suit based on earlier findings by the FAA in a bid protest matter. AMTI claimed reputational injury, monetary injury and that it was deprived of a right to a legal procurement process.
The Iceland Steamship Company, Ltd.-Eimskip and Van Ommeren Shipping (USA) LLC v. Department of the Army No. 99-5088, DC Cir. January 11, 2000. align="center" DC Circuit Court reverses a bid protest action, holding that courts review of a contracting officer's responsibility determination is "an especially deferential application of the arbitrary and capricious standard."
National Center for Manufacturing Sciences v. Department of Defense, No 98-5576, DC Cir,. January 4, 2000.align="center" Recission of unobligated earmarked funds leaves "earmarkee" without a legal claim to funds. District Court decision affirmed.
Riley vs. St Luke's Epis Hosp No. 97-20948, November 15, 1999. 5th Circuit holds that qui tam actions brought by uninjured relators violate the Constitution's Take Care Clause and the constitutional doctrine of separation of powers when the government has not intervened in the suit. (May 25, 2001. The Court reverses this decision in an en banc ruling.)
US v. Kenney, No. 98-2128(11th Cir), August 26, 1999. Court affirms a district court conviction under 18 U.S.C. §201(c)(1)(B) that found that an employee of a firm with a contract with the Air Force was a "public official".
McDonnell Douglas Corporation v. NASA, DC Cir. No.98-5251, June 25, 1999. Reverse FOIA suit. DC Circuit reverses the District Court which had granted summary judgment in favor of NASA's decision to release certain line item prices in McDonnell's contract. Although not deciding if the information was required (National Parks test) or voluntarily (Crticial Mass test), Judge Silberman stated "If commercial or financial information is likely to cause substantial competitive harm to the person who supplied it, that is the end of the matter, for the disclosure would violate the Trade Secrets Act." Finding that McDonnell prevailed on the substantial competitive harm test, the Court reversed.
Adarand Constructors Inc. v. Slater, No. 97-1304, (10th Cir) March 4, 1999. 10th Circuit moots Adarand, vacates the District Court's decision and directs the court to dismiss. The Court finds that since Adarand has now been certified as an DBE by the State of Colorado. "it can no longer assert a cognizable constitutional injury."
GENERAL DYNAMICS CORPORATION v. US, No.96-55821. (9th Cir) March 27, 1998. Circuit court reverses and remands the District Court decision which found the Government liable for negligence of DCAA auditors under the FTCA. The Circuit Court holds that the action is barred by the discretionary function exception, which applies to prosecutors. The Court also said " The actions taken against General Dynamics and its employees will not be recorded as the Department of Justice's finest hour, nor, considering the ultimate candid request for dismissal, was it the Department's darkest one. A mistake was made, but, because prosecutors do not have ichor in their veins, mistakes can be expected from time to time. Mistakes, however, do not necessarily equal governmental liability." Judge O'SCANNLAIN dissented in part.
Blue Fox, Inc. v. United States, No. 96-35648, (9th Cir.) August 25, 1997. 9th Circuit reverses District Court and holds "that the Administrative Procedures Act permits [a subcontractor's] equitable lien claim against the Army because an action for specific performance for the payment of money is not an action for money damages." Dissent filed.Supreme Court reverses. See above.
Veda, Incorporated v. U.S., No. 96-3638, (6th Cir.), April 11, 1997. Essentially a bid protest case brought before the recent change in statute granting pre- and post-award jurisdiction to District Courts in bid protest actions. Court reversed District Court which had dismissed action as within exclusive jurisdiction of Court of Federal Claims. Court found that Veda's suit was for injunctive relief, not money damages and was therefore properly with jurisdiction of District Court. Reversed and remanded. PDF version.
Dynalantic Corp. v. DOD, No. 96-5260, (DC Cir.), June 10, 1997. The DC Circuit Court reversed the earlier District Court decision and found that Dynalantic Corp. had standing to bring its suit challenging the (8)a program. The Court summarized as follows: "In sum, the interdependency of various provisions of the Act and the 8(a) regulatory scheme demonstrates that Dynalantic's injury -- its inability to compete on equal footing with 8(a) participants -- is traceable to the 8(a) program and is likely to be redressed by a decision holding all or part of the program unconstitutional. Dynalantic thus has standing to challenge the constitutionality of the 8(a) program, and the judgment of the district court is reversed."
MCDONNELL DOUGLAS CORPORATION v. US DEPARTMENT OF THE AIR FORCE et al., Civ No. 00-1693 (RWE), August 27, 2002. District Court finds that Air Force was correct in its determination that Boeing's pricing information was compelled and not voluntary and its decision to release line item and option year prices pursuant to a FOIA request was proper.
LEBOEUF, LAMB, GREENE & MACRAE, LLP v. SPENCER ABRAHAM, Secretary, AND THE U.S. DEPARTMENT OF ENERGY, Civ No. 01-0269 (RMU), D.DC, Issued July 30, 2002, and unsealed during the week of August 5, 2002. In what is most likely the last bid protest decsion from a District Court, the court rules in favor of DOE, finding that request for remedy is moot and that DOE did not violate APA in awarding the contract.
AFGE v.US et al, D.DC, No. 00-936, March 29, 2002. A-76 case. District court finds that section 8014(3) of the FY 2000 Defense Appropriations Act is constitutional. Court holds that preference for firms owned by Native Americans is not a race based classification requirng strict scrutnity under Adarand.
BUILDING AND CONSTRUCTION TRADES DEPARTMENT, AFL-CIO, et al. v. JOE M. ALLBAUGH, DIRECTOR FEMA. et al., D.DC, No. 01-00902 (EGS), November 7, 2001. DC District Court permanently enjoins the government from enforcing E.O. 13202, issued 02/17/2001, against the Wilson Bridge Project Labor Agreement. Judge Sullivan concludes his opinion with "Accordingly, the plaintiffs' motion for summary judgment is GRANTED and the defendants' motion for summary judgment is DENIED. Constitutional and statutory precedent of longstanding persuades the Court that the President lacked the requisite authority for Executive Order 13202 § 3 and that Executive Order 13202 in its entirety is preempted by the NLRA. Accordingly, enforcement of Executive Order 13202 is permanently enjoined by the Court."
COREL CORPORATION v. US, D.DC No. 99-3348, September 17, 2001. Judge Roberts grants the government's motion for summary judgment. Corel had challenged DOL's decision to standardize on the Microsoft Office suite of products and the subsequent buy under a GWAC. Judge Roberts' holdings, either directy or implicity, include: (1) DOL's decision to standardize was not subject to CICA as it was not a procurement; (2) the subsequent actual procurement was governed by FASA, not CICA; and (3) regarding APA review of the standardization decision, Judge Roberts finds "particularly convincing" the government's argument that "APA review is precluded by statute because FASA bars bid protests in connection with the issuance of a task or delivery orders. See 41 U.S.C.A. § 253j(d)."
MCI WORLDCOM, INC. v. GSA, SPRINT COMMUNICATIONS COMPANY, L.P. v. GSA D.DC, Nos. 00-914 and 00-915, September 07, 2001. FOIA case. Judge Kessler enjoins GSA from releasing "unit prices" of firms' FTS 2001 contracts. Court finds that GSA's decision to release "unit prices" is "arbitrary and capricious because: (1) it is contrary to §§ FAR 15.503 and 15.506, the Trade Secrets Act, and FOIA Exemption 4; (2) violates GSA's own FOIA regulations; and (3) represents a departure from GSA precedent without reasoned explanation." Court finds that FAR 1997 rewrite did no more than codify law existing at the time of the McDonnell Douglas decision of the Circuit Court, 180 F.3d 303, 306. (892K pdf scanned file)
BUILDING AND CONSTRUCTION TRADES DEPARTMENT, AFL-CIO, et al. v. JOE M. ALLBAUGH, DIRECTOR FEMA. et al., D.DC, No. 01-00902 (EGS), August 13, 2001. DC District Court enjoins the government from enforcing E.O. 13202, issued 02/17/2001, against the Wilson Bridge Project Labor Agreement. (See FAC 97-26 at http://www.contracts.ogc.doc.gov/cld/far.html#far for related procurment regulations.
BALTIMORE GAS AND ELECTRIC COMPANY, et al v. CALDERA, Civil No. AMD 00-2599, March 12, 2001. D.MD. Judge Davis essentially affirms an earlier GAO decision which found that a solicitation for privatization of utilities at military installations was not defective for failure to acknowledge a requirement for state and local approval before selected contractor can commence performing natural gas and electric distribution services at the installations is denied, where 10 U.S.C. §2688(b) requires that if more than one utility or entity expresses an interest in a conveyance, the conveyance shall be carried out using competitive procedures.
NOVELL et al. v. US, Civ. No. 00-1400, July 26, 2000. D.D.C, Judge Emmet G. Sullivan
Judge Sullivan dismisses this post award Scanwell case holding that an earlier COFC decision which dismissed the action for lack of jurisdication controls under the doctrine of res judicata. Judge Sullivan states "Unfortunately for plaintiffs, however, this Court agrees
with defendants that there no longer is such an independent,
APA-based jurisdiction [Scanwell] for the district courts in government bid
protest cases; rather, Congress effectively subsumed APA
jurisdiction of the district courts into the more specific
jurisdictional language of ADRA." [PDF Version]
NISH and Goodwill Services, Inc. v. William S. COHEN, Secretary of Defense, et al., No. 99-1632-A, April 25, 2000. From the opinion-"This case involves interpretation of the Randolph-Sheppard Act ("R-S Act" or "Act") and its applicability to appropriated fund contracts for cafeteria and military mess hall services. See 20 U.S.C.A. ¤ ¤ 107-107. The issue for the Court is whether the inclusion of the term "cafeteria" in the 1974 Amendments to the R-S Act created a priority for blind vendors to operate military mess halls and a corresponding exception to government procurement law that normally requires government agencies to acquire goods and services through full and open competition. The matter is currently before the Court on cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure ("FRCP") 56. Plaintiffs NISH and Goodwill Services, Inc. ("Plaintiffs"), in their motion, insist that neither the R-S Act nor its 1974 Amendments intended the inclusion of procurement programs for the operation of military mess halls; interpretation as such, Plaintiffs claim, violates the Competition in Contracting Act ("CIC Act"). In contrast, Defendants Department of Defense ("DOD") and Department of the Army ("DOA", collectively "Defendants"), along with Intervenors, contend that the R-S Act's priority for blind vendors applies to all cafeterias on federal property, including military mess halls. For the reasons stated below, the Court holds that, as a matter of law, addition of the term "cafeteria" to the R-S Act, when viewed in conjunction with corresponding regulations and available case law, supports the R-S Act's coverage of the military mess hall services at Fort Lee, Virginia."
S.P.L. Spare Parts Logistics, Inc. ASBCA Nos. 5118, 51384, September 06, 2002. Board sustains an appeal finding the Army (TACOM) breached the requirements contract by faiing to exercise reasonable care when preparing the estimate. The Board further held the TACOM breached the contract by ordering from other sources.
Don Dwyer Development Company, AGBCA No. 2000-107-1, Septmber 5, 2002. The Department of Agriculture Board of Contract Appeals ruled that standard contract terms require the Forest Service to bear the risk of loss for blue stain damage which occurs after the sale. A vigorous dissent by Judge Vergilio and a response by the majority.
Elrich Contracting, Inc. Application Under the Equal Access to Justice Act, ABCA No. 50867, August 07, 2002. In a three to two decision, the ASBCA rejects an application under the EAJA following Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S. Ct. 1835 (2001). Appellant had appealed a T/D and on the first day of the hearing the CO confirmed that he was willing to convert the T/D to a T/C. The Board issued an order dismissing the appeal which was signed by the presiding judge. Now the Board finds that Erlich was not a "prevailing party" under EAJA. The Board noted that the dismissal was signed by only one judge and that "A single judge does not have the authority (except in limited circumstances, such as an expedited appeal) to render a decision for the Board." Finding that the change in the government's position was voluntary, the Board had neither issued a decision on the merits or a decsion in the nature of a consent judgment. Two judges dissent.
Community Consulting International v. U. S. Agency for International Development, ASBCA No. 53489, August 2, 2002. The ASBCA takes jurisdiction over an allegation that the government breached its obligation under a "FAIR OPPORTUNIY TO BE CONSIDERED" clause in a multiple award IDIQ contract even though the minimum guarantee had been met.
MIDWEST PROPERTIES, LLC V. GSA,GSBCA Nos. 15822, 15844, August 1, 2002. Board holds that a letter from the CO assessing liquidated damages, explaining how damages were calculated and stating that damages "are hereby due and payable to the Government within thiry days..." was an appealable government claim even though letter said nothing about it being a "final decision."
BETTY HAMLIN v. GSA, GSBCA No. 15856, July 15, 2002. Absent evidence from the pro se appellant, Board conducts its own examination of the postmark date of the appeal and finds that it was timely filed even though the appeal was not received at the Board until 101 days after receipt of the CO's decision.
Ship Analytics International, ASBCA No. 50914, January 11, 2001. Board finds that Navy breached the "restricted rights" computer software data rights clause in the contract.[Note: Interesting case, few reported cases on this topic.]
ASPEN HELICOPTERS, INC., GSBCA 13258-COM, September 30, 1999. [PDF Version] Aspen claimed costs it incurred in acquiring and modifying an aircraft to perform aerial surveys for the government which were not amortized when the government failed to exercise its option to extend the contract. Aspen argued that the government had a duty to disclose the fact that it was attempting to acquire another aircraft, by lease with option to purchase, which if known by Aspen would have effected its decision to submit an offer. Judge Hyatt, writing for the Board, denied the claim holding that "... under settled principles governing option contracts, the contractor that amortizes fixed costs over a period that includes option years assumes the risk that these costs will not be recovered if the Government, for some reason, does not exercise the options. Regardless of whether the likelihood of obtaining a substitute aircraft for option periods was remote or reasonably certain, the Government was not obligated to disclose to Aspen that it might not exercise the options. This is obvious on the face of the solicitation and the risk that options might not be exercised is inherent in the terms of the contract. This risk is unequivocally assigned to the contractor and is akin to the risk, under an indefinite delivery indefinite quantity (IDIQ) contract, that quantities above the guaranteed minimum might not be ordered. [Note: Affirmed, CAFC No 00-015, October 4, 2000. No opinion, disposition not citable as precedent pursuant to Rule 47.6]
BEAN HORIZON-WEEKS MARINE, ENG BCA No 6398, November 12, 1998align="center" Disputes, Jurisdiction, Government Claim, Contracting Officer Appealable Decision--the Government’s motion to dismiss for lack of jurisdiction was denied; the letter from the Contracting Officer to the contractor made factual findings and conclusions, referred to pertinent provisions of the contract, stated that the contractor had been overpaid, and required payment to the Government, thereby deciding a Government claim that was appealable to the Board.
ACE-FEDERAL REPORTERS, INC., et al v. GSA Nos. GSBCA 13298, 13507, 13508, 13509, 13510, 13511, October 30, 1998. In this group of GSA "mandatory" schedule contracts for reporting services, the Boards concludes "that appellants have not demonstrated that they are entitled to recover lost profits or consequential damages, under the terms of their contracts."
WESTERN AVIATION MAINTENANCE, INC., GSBCA No. 14165, June 11, 1998. Board dismisses claim requesting specific performance finding "no evidence that Congress intended for the 1992 amendment to waive the Government's immunity from suits for specific performance in the Court of Federal Claims. Because the amendment did not make specific performance relief available to litigants in the Court of Federal Claims, such relief is not available at the boards. "
PROMAC, INC., VABCA No. 5345, May 5, 1998. The Board denies a motion to dismiss by the Government, based on waiver and untimliness, and holds that a reformation claim based on an alleged violation during the award process is a vaild CDA claim.
TRAVEL CENTRE, GSBCA No. 14057, November 26, 1997. Board finds that "GSA knowingly misled Travel Centre into entering into a contract under which Travel Centre was certain to lose money." Board grants the appeal finding that GSA breached the contract. Judge Vergilio dissents. Reconsideration denied. January 23, 1998.
Protest of Raytheon Company, Docket No. 01-ODRA-00180, June 15, 2001. Pre-award protest of a proposed sole-source award. Sustained.
Protest of Universal Systems & Technology, Inc. Docket No. 01-ODRA-00179, May 31, 2001. Post award protest. Sustained.
Strand Hunt Construction, Inc.-Order, February 26, 2001. The case, Contract Dispute of Strand Hunt Construction, 99-ODRA-00142-Findings and Recommendations, involved a multi-million dollar claim on a contract for the construction of an air traffic control tower at Merrill Field, Anchorage, Alaska. Included were claims for delay, labor inefficiency loss, and constructive change.(PDF files)
NAICS Appeal of SCI Consulting,SBA Office of hearing and Appeals, No. NAICS-4488, June 12, 2002. (603 KB PDF file)
DIGEST:
For a North American Industrial Classification (NAICS) code appeal to be justicable,this Office must have jurisdiction over its subject matter and the Appellant must have standing to file an appal with this office.
[Note: This case arose from a DOE RFQ to selected FSS contractors where the solicitation stated that only small business concerns would be eligible for award. Appellant and SBA, who had intervened, argued that the action was a small business set-aside that required the designation of a NAICS code or size standard. SBA's Office of Hearings and Appeals disagreed.]
SIZE APPEALS OF: SETA Corporation, FEMA, SBA Office of hearing and Appeals, No. 4477, March 01, 2002.
DIGEST:
1. The Small Business Administration's regulations governing the
8(a) program do not apply to a size determination issued in
connection with a procurement that is not an 8(a) procurement.
2. A Request for Quotations issued under a Federal Supply Schedule
or Multiple Award Schedule contract, with the intention of
entering into a Blanket Purchase Agreement, which the procuring
agency designates as a small business set-aside, is a new small
business set-aside procurement.
3. In a small business set-aside procurement issued as Request for
Quotations under a Federal Supply Schedule or Multiple Award
Schedule contract, the size of a challenged firm is determined as
of the date of its submission of its certification as an eligible
small business, with its price quotation in response to the
Request for Quotations.
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