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United States Department of Commerce
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JAMES T. ROBINSON and
FLORIDA BUSINESSMEN'S ASSOCIATION, INC. v. US, CAFC No. 02-5028, September 24, 2002. CAFC reverses COFC and "... hold[s] that in the circumstances of this case reasonable efforts in the form of affirmative steps are required to mitigate damages and that relative costs in time and money are primary factors to consider in assessing reasonableness." Judge Prost dissents.
RAYTHEON COMPANY (doing business as
Raytheon Systems Company) v. Thomas E. White,
SECRETARY OF THE ARMY, CAFC No, 00-1534, September 24, 2002. CAFC affirms in part and vacates and remand in part a decision of the ASBCA. The court remands several issues where it finds that the ASBCA did not make the necessary findings to allow the CAFC to determine if the Board's
ruling ruling is factually supportable and legally correct.Ê The court however affirmed the Board's finding that Raytheon had not proven that it was entitled to an increase in the value of the contract or that the contract was commercially impracticable). [Quaere: What are "touch labor rates?
PACRIM PIZZA COMPANY v. Robert Pirie, SECRETARY OF THE NAVY, CAFC No, 00-1534, September 23, 2002. CAFC, with a dissent by Judge Newman, dismisses for lack of jurisdiction this appeal from the ASBCA of a contract with a Navy Morale, Welfare, and Recreation("MWR") activity, a local, base level nonappropriated fund instrumentality("NAFI"), located at the Marine Corps Air Station in Iwakuni, Japan. Writing for the majority, Chief Judge Mayer notes that the "question of whether contracts with Morale, Welfare, and Recreation entities fall within the enumerated exceptions for exchanges is a matter of first impression." Following the analysis in McDonald's Corp. v. United States, 926 F.2d 1126 (Fed. Cir. 1991), the court finds that the MWR activity "... does not meet the McDonald's threshold requirement that the NAFI be closely affiliated with a post exchange." Failing to meet one of the recognized exceptions the court holds that the contract is not subject to the Contract Disputes Act. [See the strong dissent by Judge Newman.]
INTERNATIONAL AIR RESPONSE v. US, CAFC No. 01-5117, September 04, 2002. CAFC reverses and remands to the COFC a decision which had dismissed for lack of jurisdiction a CDA claim as untimely filed. Prior to the COFC action, an Arizona District Court, hearing a qui tam case, had enjoined the government from enforcing a CO's decision by issuing a stay which the government did not appeal to the Ninth Circuit. Judge Schall holds that "Having chosen not to appeal the grant of the stay order, the government was foreclosed from collaterally attacking the district courtÕs exercise of jurisdiction over the contracting officerÕs decision and its authority under the All Writs Act to issue the stay order."
CASTLE, HARLAN et al. v. US, CAFC Nos. 01-5047,-5050, August 19, 2002. Winstar related case. CAFC reverses, for the most part, and remands to the COFC. Court reverses the COFC's holding that certain shareholders of the failed thrift here were third-party beneficiaries. Citing Glass v. United States, 258 F.3d 1349 (Fed. Cir. 2001), Judge Gajarsa noted that the contract here did not express the intent to benefit the shareholder personally, independently of his or her status as a shareholder. The Court also reversed the restitution award to the two primary plaintiffs finding that they incurred no individual liability and could not recover restitution damages for any amounts contributed voluntarily. Finally, the CAFC affirmed the COFC's holding that the alleged breach by the governemnt did not constitute a taking.
ENERGY CAPITAL CORP. (as General Partner of Energy Capital Partners Limited Partnership) v. US, CAFC No. 01-5018, August 14, 2002. Court affirms the COFC, for the most part, and disagrees with the government that "... lost profits should be precluded as a matter of law for new ventures ..." Court does reverse and remand on one issue, finding that under the circumstances of this case "the present value of the damages award should have been calculated using a risk-adjusted discount rate."
Boeing North American v. Roche, CAFC No. 01-1011, July 29, 2002. CAFC reverses ASBCA which disallowed certain costs incurred in defending, and eventually settling, shareholder suits. Court grants en banc hearing for purposes of issuing a revised opinions. Clarifes allocability vs allowability issues.
BENDER SHIPBUILDING & REPAIR CO., INC. v. US and HALTER MARINE, INC., CAFC No. 02-5036, July 26, 2002. CAFC affirms COFC finding that CO's responsibility determination even in light of a bankruptcy filing was reasonable.
AT&T COMMUNICATIONS, INC. v. Steven A. Perry, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, CAFC No. 01-1619, July 12, 2002. CAFC affirms the GSBCA finding "... that the government did not breach or repudiate its contract with AT&T, and that the government was not unjustly enriched..."
Thomas E. White, SECRETARY OF THE ARMY v. EDSALL CONSTRUCTION COMPANY, INC., CAFC No. 01-1628, July 2, 2002. CAFC affirms the ASBCA's finding that a general disclaimer on the drawings did not shift the design risk to the contractor.
UNITED PACIFIC INSURANCE COMPANY v. James G. Roche, SECRETARY OF THE AIR FORCE, CAFC NO. 01-1241, June 27, 2002. CAFC dismisses for lack of jurisdiction an appeal from an ASBCA decision which the court determined was not a final decision as the ASBCA had not resolved the issues addressed by the CO, namely the quantum of the allowable adjustments.
CONTROL, INC. v. US, CAFC No. 01-5115, June 26, 2002. CAFC affirms in part and remands to the COFC some issues in this essentially a differing site conditions case. The court, in an opinion by Judge Dyk, holds that plaintiff cannot show reliance on a soils report, which was incorporated in the solicitation by reference, because plaintiff never reviewed the report before submitting its bid, and therefore could not meet the "well-established" condition "that a crucial element of both a differing site conditions claim and a defective specifications claim is reliance."
HERCULES INCORPORATED v. US, CAFC 01-5103, June 5, 2002. The CAFC affirms the COFC and agrees with the government "... that the incorporated FAR clauses ... clearly instruct that any refund of a tax that has been allowed as a contract cost must be credited or paid to the government utilizing the same factors by which the costs were originally determined to be reimbursable."
AEROJET SOLID PROPULSION COMPANY v. US, CAFC No. 01-1140, May 29, 2002. Court affirms COFC in this TINA case. CAFC finds that the failure to disclose the existence of unopened bids was a violation of the TINA disclosure requirement. Judge Bryson dissents.
VARILEASE TECHNOLOGY GROUP, INCORPORATED v. US, CAFC No. 01-5114, May 7, 2002. CAFC affirms COFC which had found that the government did not breach its contract with Varilease. Court concluded that contract was clearly an ID/IQ contract and that the exercise of options, in which the option did not contain a minimum quantity, did not convert the contract into a requirements contract. CAFC agrees with an earlier ASBCA decision that "an option period in an ID/IQ contract does not require a separate minimum quantity."
BRICKWOOD CONTRACTORS, INC. v. US, CAFC No. 01-5121, May 03, 2002. The CAFC reverses the COFC decision of Judge Horn in this EAJA case. The CAFC holds that the term "prevailing party" as used in the EAJA has the same meaning as in other fee-shifting statutes and that the "catalyst theory" relied upon by the COFC had been rejected by the Supreme Court in the Court’s recent decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001). The CAFC also stated its view as "... the Supreme Court in Buckhannon unambiguously rejected the “catalyst theory” except in instances where there is an enforceable judgment on the merits or a court-ordered consent decree, both of which create a material alteration in the legal relationship of the parties. The Court’s holding in Buckhannon leaves no room for a distinction to be drawn between whether a change is brought about by the legislature, as in Buckhannon, or by the government’s cancellation of the solicitation in this case."
RIDGE RUNNER FORESTRY v. Ann M. Veneman, SECRETARY OF AGRICULTURE, CAFC No. 01-1233, April 18, 2002. CAFC affirms the AGBCA which had found no jurisdiciton under the CDA as there was no contract. The CAFC after citing the Restatement 2nd and other authorities concluded by stating " It is axiomatic that a valid contract cannot be based upon the illusory promise of one party, much less illusory promises of both parties."
Berkley v. US, CAFC No. 01-5057, April 17, 2002. The Court reverses the COFC in this military pay class action case brought on behalf of Air Force officers terminated in a 1993 RIF. At issue was a Memorandum of Instruction ("MOI") whch required that a certain process be followed when evaluating minority and women officers. Plantiffs alleged that the MOI violated their equal protection guarantee under the Fifth Amendment. Writing for the majority, Judge Prost holds that the COFC erred in not subjecting the Air Force's action to the stict scrutiny analysis of Adarand.
Judge Dyk dissents in a spirited opinion, stating that the majority opinion "...in my view, will cause enormous mischief .
BOEING NORTH AMERICAN, INC. v. US, CAFC No. 901-1011, March 15, 2002. CAFC reverses ASBCA which disallowed certain costs incurred in defending, and eventually settling, shareholder suits. Judge Dyk concluded the opinion by stating: "The Board committed legal error in determining the allowability of Rockwell's legal defense costs based on whether the costs conferred a "benefit [on] the Government" and based on a "but for" standard that looked solely to the fact that admitted misconduct by Rockwell formed the basis for the complaint. We vacate the Board's decision and remand to the Board for further proceedings consistent with this opinion. On remand, the Board may allow the costs only if it determines that the plaintiffs in the Citron lawsuit had "very little likelihood of success on the merits" of prevailing."
U.S. v. DELTA CONSTRUCTION
INTERNATIONAL, INC., CAFC No. 01-1253, March 13, 2002. CADC reverses ASBCA. CAFC holds that where government breaches an IDIQ contract by not ordering the minimum, proper measure of damages is the loss the contractor suffered by the breach, not the difference between the minimum amount and the amount actually ordered.
THE HUNT CONSTRUCTION GROUP, INC. v. US, CAFC No. 01-5961, March 1, 2002. The CAFC affirms the COFC's denial of a claim for state taxes. Hunt argued that pursuant to FAR 14.208(c) another bidder's mistaken impression of the tax provisions in the solicition required the government to clarify the matter and notify all bidders. The court, in an opinion by Judge Dyk, disagrees holding that "such a duty to notify arises only if the contract is ambiguous." Here, the court found the contract to be "...unambiguous on its face, the interpretations given to the contract by other bidders are not material, and are not required to be disclosed under section 14.208(c)."
AM‑PRO PROTECTIVE AGENCY, INC. v. US, CAFC No. 01-5977, February 26, 2002. CAFC affirms the COFC's grant of summary judgement in favor of the government. The case is of note as Judge Michel discusses the standard of proof necessary to overcome the presumption that a government official acted in good faith. The use of the "well-nigh irrefragable proof" terminology seems to give way to the more prosaic "clear and convincing evidence."
THE XERXE GROUP INC. v. US, CAFC No. 01-5055, February 4, 2002. CAFC affirms the decision of the COFC denying Xerxe's claim for damages for the government's failure to award it a contract and the improper use of proprietary information. Judge Mayer finds that Xerxe's failure to mark the pages of its unsolicitred proposal as required by FAR 15.609 was fatal to its claim
JWK INTERNATIONAL CORPORATION v. US and LTM INC., CAFC No. 01-5091, January 29, 2002. CAFC affirms COFC's denial of JWK's bid protest action. Rejecting JWK's argument that "cost discussions must always be conducted under [FAR] section 15.306(d)(3) even if the cost proposal is not a significant weakness or deficiency because cost is always material", Chief Judge Mayer finds that "... cost is not always material, and does not automatically mandate discussions. In the absence of any language in Part 15 of the Federal Acquisition Regulations requiring discussions with respect to any factor, the Navy’s determination that cost discussions are not required is unobjectionable."
FRANKLIN PAVKOV CONSTRUCTION CO. v. JAMES G. ROCHE, Secretary of the Air Force, CAFC No. 01-1010, January 28, 2002. CAFC affirms the ASBCA in this construction contract case. Court relies on Uniform Commercial Code provisions to define when delivery of GFP occurs.
MYERS INVESTIGATIVE AND SECURITY SERVICES, INC. v. US, CAFC No. 01-5014, January 9, 2002. CAFC affirms COFC's denial of a protest based on Myer's failure to show that it was prejudiced. Finding that Myers lacked standing to protest, the CAFC affirmed.[The COFC case essentially held that a protestor must show that it was responsible in order to meet the interested party test. See the September 7, 2000, COFC decision at http://www.uscfc.uscourts.gov/Opinions/Futey/00/MYERS3.pdf.]
HUGHES COMMUNICATIONS GALAXY, INC. v. US, CAFC Nos. 00-5109,-5119, November 13, 2001. CAFC affirms the judgment of the COFC awarding Hughes $102,680,625 in breach of contract damages from events resulting from the Challenger disaster. The court did reject Hughes' claim for interest on its damages based on a fifth admendment taking theory.
CHARLES G. WILLIAMS CONSTRUCTION, INC. v. Thomas E. White, SECRETARY OF THE ARMY CAFC No. 01-1074, November 08, 2001. "Because the Board did not adequately explain the reasons for its decision" the CAFC vacated and remanded to the ASBCA the Board's decision that Williams' “Eichleay claim is not proven.”
EMERY WORLDWIDE AIRLINES, INC., v. US and FEDERAL EXPRESS CORPORATION, CAFC No. 01-5075, August 31, 2001. CAFC affirms a COFC decision which had upheld a sole-source award by the US Postal Service to FedEx of a seven-year contract valued at approximately $6.36 billion. The opinion, by Judge Gajarsa, discusses the history of the COFC bid protest jurisdiction and several ADRA issues unique to the case, including a finding that the USPS is a federal agency for purposes of the ADRA.
ROTHE DEVELOPMENT CORPORATION v. US, CAFC NO. 00-1171, August 20, 2001.(PDF Version) CAFC vacates and remands to the District Court for the Western District of Texas the district court's summary judgment decision which had affirmed the constitutionality of § 1207 of the National Defense Authorization Act of 1987 (“the 1207 program”). [SDB 10 percent price adjustment program] Writing for the Court, Judge Michel concludes that ".. that the district court improperly applied a deferential legal standard rather than “strict scrutiny,” and also impermissibly relied on post-reauthorization evidence to support the program’s constitutionality as reauthorized." The decision includes a very detailed description of the factors which the district court is to consider on remand.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES v. U.S, CAFC No. 00-5090, July 23, 2001. CAFC affirms, but on a different ground, COFC's decision that AFGE does not have standing to bring a bid protest in the Court of Federal Claims. Court equates the "interested party" term in 28 U.S.C. § 1491(b)(1) to the "interested party" definition in CICA at 31 U.S.C. § 3551(2)
CONANT v. OPM. CAFC No. 99-3459, July 10, 2001. Although not a procurement contract, the case is interesting as the Court finds a breach of a settlement agreement by the IRS. CAFC vacates a decison by the Merit Systems Protection Board and remands the case.
MASSACHUSETTS BAY TRANSPORTATION AUTHORITY v. US, CAFC No. 00-5071, July 3, 2001. The CAFC reverses a holding of the Court of Federal Claims that the Federal Railroad Administration (FRA) was excused by the doctrine of impossibility of a breach of an agreement between appellant, MBTA, and FRA of a provision requiring that FRA ..."shall secure from each of its consultant architect-engineers (“A/E’s”) an endorsement to the benefit of the MBTA on the professional liability insurance policy or policies carried by such A/E’s with respect to any A/E errors, omissions, or acts of negligence in the design of the Facility. FRA shall furnish the MBTA evidence of such endorsements". Even though it may have been impossible for the FRA to obtain such endorsements, the CAFC held in reversing the COFC "... that FRA had reason to know, even if it did not actually know, that the insurance endorsements were impossible to obtain at the time of contracting. Moreover, it certainly was possible for FRA, at the time it actually became aware of the impossibility, to “furnish the MBTA evidence” that it would be unable to obtain those endorsements. That it did not do so is not only an unfortunate breach of the contract, but an unseemly act for a government agency. Nor were these failures without consequences, for in combination they effectively prevented MBTA from getting its own insurance".
FURASH & COMPANY v. US, CAFC No. 00-5084, June 13, 2001. CAFC concludes that the non-appropriated funds doctrine bars the Court of Federal Claims from exercising jurisdiction in this case and therefore affirms COFC's dismissal of a claim arising from a contract with the Federal Housing Finance Board. Good discussion of the non-appropriated funds doctrine and COFC's jurisdiction under the Tucker Act and CDA.
SANDERS v. US, CAFC No. 01-5035, June 12, 2001. CAFC affirms the COFC's dismissal for lack of subject matter jurisdiction a claim for money damages of an alleged breach of a bail release agreement by a criminal defendant. Although not a procurement contract case, the opinion contains an interesting discussion by Judge Dyk of the COFC's Tucker Act jurisdiction.
General Electric Company v. Delaney, CAFC No. 00-1401, June 1, 2001. Court reverses the ASBCA which had denied an appeal of a CO's final decision disallowing depreciation costs on capital equipment which GE had contributed to its Turkish joint venture. Noting that both the FAR and CAS were silent on the issue of converting a foreign affiliate's depreciation cost to dollars, the Court relied on FASB Statement of Financial Accounting Standards (FAS) 52, "Foreign Currency Translation," in ultimately determining that historical exchange rates should be used in determining the depreciation.
Consolidated Edison et al. v. Dept. of Energy, CAFC No. 99-1164, May 3, 2001. The CAFC, as a result of an en banc decision reverses the District Court which had denied a government motion to transfer the case to the COFC. In this long running dispute over the Energy Policy Act of 1992 (EPACT), wherein utilities contracted with the government for uranium enrichment services, the utilities had challenged the constitutionality of EPACT seeking declaratory judgments and injunctive relief. The government contended that suit under the APA was an impermissable forum shopping and the case should be transferred to the COFC. The CAFC framed the issue as "The sole question in this case is whether the APA waives sovereign immunity for an action in a district court on the merits of Con Ed's claim because Con Ed seeks declaratory and prospective injunctive relief, rather than a refund of EPACT payments." The decision discusses limitation of §§ 702 and 704 of the APA and the impact of Bowen v. Massachusetts, 487 U.S. 879, 904 (1988), which had found the APA waives sovereign immunity for suits that properly invoke equitable relief. Distinguishing, or as Chief Judge Plager puts it in his concurring opinion, "under-ruling" Bowen the Court holds that the COFC with its power "to order a full refund of illegally exacted funds" prevents the utilities from meeting the "no adequate remedy" test of §704. The Court therefore directs the District Court to transfer the case to the COFC.
PROGRAM AND CONSTRUCTION MANAGEMENT GROUP, INC. v. Davis, CAFC No. 00-1312, April 19, 2001. Court affirms GSBCA, but Judge Friedman criticizes GSA saying "One would hope that the government would be more careful in dealing with its contractors and avoid the kind of sloppiness and errors that characterized its actions here. This is particularly so in dealing with small businesses (like the Contractor), who may lack knowledge of the subtleties and problems sometimes encountered in government contracts."
INSURANCE COMPANY OF THE WEST V. US CAFC NO. 00-5039, March 23, 2001. Writing for the Court, Judge Dyk states "This case requires us to decide whether a subrogee, after stepping into the shoes of a government contractor, may rely on the waiver of sovereign immunity in the Tucker Act, 28 U.S.C. § 1491, and bring suit against the United States. We hold that the Supreme Court's decision in Dept. of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999), did not upset the longstanding rule that such a suit is not barred by the doctrine of sovereign immunity, and that this case is governed by the Supreme Court’s earlier decision in United States v. Aetna Cas. & Sur. Co., 338 U.S. 366 (1949)."
BARRETT REFINING CORPORATION V. US CAFC NO. 00-5036, March 13, 2001. CAFC affirms the Court of Federal Claims' grant of quantum valebant relief to Barrett, but vacates the COFC's dismissal, for failure to state a claim, of the government's counterclaims and remands for further consideration. The CAFC recognizes that government's argument that its counterclaim to recover unauthorized payments is a equitable claim citing the equitable theory of ex aequo et bono, presumably based on an implied-in-law contract theory. Acknowledging that the COFC's Tucker Act jurisdiction does not extend to implied-in-law contracts, the CAFC recognizes that 28 U.S.C. § § 1503, and 2508 provide the COFC with such jurisdiction. Therefore the case is remanded to the COFC to determine the amount unlawfully paid to Barrett that exceeded the fair market value of the fuel.
GLENDALE FEDERAL BANK, FSB v. US CAFC No. 99-5103, 5113, February 16, 2001. The CAFC reverses the April, 1999 damages decison by the COFC. Writing for the Court. Judge Plager concludes "...that, for purposes of measuring the losses sustained by Glendale as a result of the Government's breach, reliance damages provide a firmer and more rational basis than the alternative theories argued by the parties. We recognize the appeal in the restitution approach, but we find that keying an award to a liability that was at most a paper calculation, and which ignores the reality of subsequent events as they impacted on the parties, and particularly the plaintiff, is not justifiable. Reliance damages will permit a more finely tuned calculation of the actual losses sustained by plaintiff as a result of the Government's breach."
TRAVEL CENTRE v. Barram CAFC No. 00-1054, January 4, 2001. The Federal Circuit reverses the GSBCA which had found that "[b]y inducing Travel Centre to base its proposal on quantities that GSA knew or should have known were overstated, GSA breached its duty to deal with Travel Centre fairly and in good faith.". Writing for the Court, Judge Gajarsa disagreed. Holding that "...when an IDIQ contract between a contracting party and the government clearly indicates that the contracting party is guaranteed no more than a non-nominal minimum amount of sales, purchases exceeding that minimum amount satisfy the government's legal obligation under the contract." Because GSA met the requirements of the contract, GSA's failure to disclose a change in the estimated orders under the contract before award, which the Court deemed "less than ideal contracting tactics", failed to constitute a breach.
Impresa Construzioni Geom. Domenico Garufi v. United States CAFC No. 99-5137, January 3, 2001. In what the Court calls "... a most unusual case." the CAFC reverses the COFC and remands "the case to the Court of Federal Claims to allow a limited deposition of the contracting officer concerning the basis for the responsibility determination so that the Court of Federal Claims can properly review the responsibility determination using the standards established by the ADRA." [A very interesting case that I thought better to post as soon as possible rather than more fully brief.]]
JAMES GIESLER and LUKE CONIGLIO, dba Central Park Company, v. US CAFC Nos. 00-5031,-5032, November 13, 2000. In an opinion by Judge Michel the CAFC reverses the COFC which had found that recission of Central Park's contract was justifed based on a "misreading" of the specifications and breach of the government's duty to verify the correctness of documents submitted subsequent to the opening and verification of Central Park's bid and subsequent to the completion of the pre-award survey of its subcontractor. The CAFC however, held "that [KTOR's] failure to obtain and read the nut mix specification referenced in the solicitation cannot be an excusable "misreading" of the RFP." The Court also held "that the government had no legal duty to examine for possible mistakes the March 29, 1995 facsimile transmission, which was submitted subsequent to the opening, verification, and acceptance of Central Park's bid and completion of the pre-award survey and survey report." The Court also held that the government was entitled to its claim for execss reprocurement costs. [The case got to the CAFC on the ktor's appeal of a denial by the COFC of the ktor's claim for attorney fees and costs.]
ACE-FEDERAL REPORTERS, INC., ANN RILEY & ASSOCIATES, LTD., AR-TI RECORDING, INC., CALIFORNIA SHORTHAND REPORTING, EXECUTIVE COURT REPORTERS and MILLER REPORTING CO., INC. v. Barram CAFC NO. 99-1258, September 28, 2000. CAFC reverses and remands a decision of the GSBCA, finding that "the board erred in concluding that the terms of the contracts preclude recovery of lost profits." In response to a government argument citing Krygoski Const. Co. v. United States, 94 F.3d 1537, 1545 (Fed. Cir. 1996), the Court found that "The agencies had no authority to terminate these contracts, in whole or in part. Their unauthorized actions were breaches, pure and simple. "[N]o decision has upheld retroactive application of a termination for convenience clause to a contract that had been fully performed in accordance with its terms." Maxima Corp. v. United States, 847 F.2d 1549, 1557 (Fed. Cir. 1988). We see no reason in law or logic to impose a retroactive constructive termination for convenience here. The concept is a fiction to begin with, but there has to be some limit to its elasticity. The contractors stood ready to perform throughout, did perform those orders placed, and the contract ended."
Freightliner Corporation v. Caldera, AFC 99-1217, September 6, 2000. CAFC affirms ASBCA which denied Freightliner's claim that an option exercise was ineffective. CAFC held " ... that FAR § 17.207(f) and DAR § 1-1502(e) did not create a cause of action for Freightliner, and that the P00051 modification did not contravene any terms in the option provision, [therefore] we affirm the Board’s decision."
MAINE YANKEE ATOMIC POWER COMPANY, CONNECTICUT YANKEE ATOMIC POWER COMPANY, and YANKEE ATOMIC ELECTRIC COMPANY v. US, CAFC Nos. 99-5138,-5139,-5140, August 31, 2000. Court affirms the COFC decision granting partial summary judgment to Yankee finding that breach by the government was not cognizable under the contract and there was no need to exhaust administrative remedies. [See also the Northern States Power v. US CAFC No. 99-5096, case which had a contrary holding at the COFC. Northern was decided the same day, but was reversed.]
Sauer Inc. v. Secretary of the Navy, CAFC No. 99-1206, July 20, 2000. Court vacates and remands one portion of this case to the ASBCA holding that proof of excusable delay is not a necessary element for a claim of disruption.
OMV MEDICAL, INC. v. US, CAFC No.99-5098, July 18, 2000. Court issues its decision in two consoldiated appeals from the COFC of post award protest cases. Court affirms one decision and vacates and remands the other for the COFC to determine whether or not certain salary calculations by the government were irrational, and if so, whether OMV was prejudiced.
ADVANCED DATA CONCEPTS, INCORPORATED v. US CAFC No. 99-5064, June 9, 2000. The Court affirms Judge Weinstein's decision in the COFC of no prejudice to plaintiff. Judge Rader found that "The Court of Federal Claims correctly performed its review in this case under § 706(2)(A), the "arbitrary or capricious" standard. [citations omitted].This court reapplies that standard on review. The § 706(2)(A) "arbitrary and capricious" standard applies to bid protests under 28 U.S.C. § 1491 (b)(4) reviewed in the absence of a hearing. Bid protests in the absence of a hearing do not present an agency record derived from a hearing provided by statute or under 5 U.S.C. § 556 or 5 U.S.C. § 557. Therefore the "substantial evidence" standard does not apply. See Camp, 411 U.S. at 141. The arbitrary and capricious standard applicable here is highly deferential. This standard requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors. Bowman, 419 U.S. at 285."
Stratos Mobile Networks USA, LLC v. US CAFC Nos. 00-5023, -5024, May 26, 2000. Court reverses, finding that the COFC erred in finding a latent ambiguity in the RFP.
LOCKHEED MARTIN CORPORATION, as successor to MARTIN MARIETTA CORPORATION and MARTIN MARIETTA TECHNOLOGIES, INC. and affiliated corporations v.US CAFC No. 99-5039, April 26, 2000.
Tax case involving "credit for increasing research activities" under the Internal Revenue Code. CAFC reverses, in part, the COFC and finds "...Lockheed Martin ... retained substantial rights in its research results and that it is entitled to the tax credit."
Herman B. Taylor Construction Co. v GSA, CAFC No. 99-1028, February 15, 2000. Court reverses GSBCA which had upheld a termination for default based on Board's conclusion that the Department of Labor ("DOL") had found violations of labor. The CAFC disagrees, finding that the contract provided that disputes over labor provisions would be resolved in accordance with DOL procedures and that the DOL adjudication with the contractor ended with a consent decree type of settlement that included contractor's statement that "it was not conceding liability for or admitting 'any violation' of the labor provisions."
PROMAC, INC. v. TOGO D. WEST, JR., SECRETARY OF VETERANS AFFAIRS, CAFC No. 99-1075, February 8, 2000. Court affirms summary judgment decision of VABCA that held that PROMAC was not entitled to reformation. Judge Plager concluded the opinion with -"Through its active participation with the VA in the allegedly improper bidding process, Promac benefited by being one of the limited number of bidders chosen for negotiations and by receiving more knowledge than other bidders when the CO set a target price. Furthermore, Promac ultimately benefited by being awarded the contract. Due to its participation and the benefits it acquired from its participation in the alleged violations of the FAR, Promac has unclean hands and is not entitled to the equitable remedy of contract reformation."
Florida Power & Light Co. v. United States CAFC No. 99-5008, 12/01/99. Court reverses and remands to the COFC, Judge Yock's decision which had dismissed this contract action on the pleadings. Case dealt with the government's uranium enrichment services program. The Court holds that "...the utilities' action is not barred by res judicata" as had been held, in part, below.
Consolidated Industries , Inc. v. United States, 11/4/1999, No. 98-5167. Court affirms a COFC decision upholding a termination for default by the Army. The Court also found that the COFC did not abuse its discretion when it refused Consolidated's attempt to call as a witness the government attorney who had advised the contracting officer.[Shockingly, (tongue in cheek) the CAFC stated "The contracting officer was not required to follow counsel's recommendation, but only to consider it, which she did." (emphasis added)]
Caldera v. Northrop Worldwide Aircraft Services, Inc. CAFC No. 98-1500, September 10, 1999.
The Secretary of the Army ("Army") appeals from the final decision of the Armed
Services Board of Contract Appeals ("Board"). See In re Northrop Worldwide Aircraft
Servs., Inc., ASBCA No. 45216, ASBCA No. 45877, 98-1 BCA ∥ 29,654 (Mar. 26, 1998).
The Board reversed the contracting officer's final decision denying a claim by Northrop
Worldwide Aircraft Services, Inc. ("NWASI") for reimbursement of legal costs. The Board
found that legal costs incurred by NWASI in defending a wrongful discharge lawsuit
brought by former employees in Oklahoma state court were reasonable and allocable to
a cost-reimbursement contract NWASI had with the Army. The employees were allegedly
discharged for unsatisfactory performance on the cost-reimbursement contract. Because
the Board erred in not granting collateral estoppel effect to the Oklahoma state court
proceedings, we reverse the Board's decision holding NWASI's claimed amounts for legal
costs as allowable costs under the cost-reimbursement contract.
Ramcor Services Group, Inc. v. US CAFC No. 98-5147, July 26, 1999. CAFC "determines that 28 U.S.C. § 1491(b)(1) grants the trial court jurisdiction over an objection to a violation of 31 U.S.C. § 3553(c)(2)." Court vacates that portion of COFC decision to the contrary.
T & M Distrib., Inc. v. United States CAFC No. 98-5106, July 26, 1999. CAFC affirms a decision of the COFC which had dismissed T & M Distributors, Inc. claim for breach of a requirements contract. The court rejects T & M's argument that only a "cardinal change" can support a termination for convenience, and affirmed "on the sole ground that the facts "support a reasonable inference that the contracting officer terminated for convenience in furtherance of statutory requirements for full and open competition." Krygoski, 94 F.3d at 1544 (citing Caldwell, 55 F.3d at 1582; Salsbury, 905 F.2d at 1521). The court also rejects T & M's contention that the COFC abused its discretion in denying discovery and basing its grant of summary judgment solely upon the government's evidence not subject to cross examination. The court agreed with the government that none of T & M's unanswered questions raised any issues of material fact and therefore the COFC was "not obliged to deny summary judgment merely to satisfy a speculative hope on T&M's part of finding some evidence that might tend to support a claim." [citations omitted]
McDonnell Douglas Corp. v. United States CAFC No. 98-5096, July 1, 1999. The CAFC reverses the COFC opinion in the A-12 case and remands to the COFC. The conclusion by Judge Clevenger aptly summarizes the decision.
"We reverse the trial court's ruling that the government's default termination of the
A-12 FSD Contract must be converted into a termination for convenience because the
government did not exercise the necessary discretion. Of course, we do not hold today
that the government's default termination is justified. As Contractors correctly point out,
they have never been found to be in default of the contract. Because the trial court
focused on the legitimacy of the government's default termination decision, rather than on
whether Contractors were in fact in default, the parties have not yet been afforded the
opportunity to fully litigate default. See McDonnell Douglas Corp. and General Dynamics
Corp. v. United States, No. 91-1204C, slip op. at 2 (Fed. Cl. June 17, 1993). If the
government fails to establish at trial that Contractors were in default under the contract,
then the government's default termination would be improper and Contractors could
rightfully recover damages under the theory of a termination for convenience. We vacate
the trial court's ruling that the government's loss adjustment claim and Contractors' superior
knowledge claim and claim for profits may not be litigated. Finally, we reject Contractors'
argument that the incremental funding found in the A-12 FSD Contract precludes the
government from terminating the contract for failure to make progress."
REVERSED-IN-PART, VACATED-IN-PART, AND REMANDED.
RNJ Interstate Corporatioin v.US, CAFC No. 99-5007, June 10,1999. Court affirms a COFC decision and agrees that the last sentence of the Permits and Responsibilities Clause "The Contractor shall also be responsible for all materials delivered and work performed until completion and acceptance of the entire work, except for any completed unit or work which may have been accepted under the contract." bars a claim for unaccepted work after a fire destroyed the worksite.
VHC Inc.(formerly known as VARO Inc.) v. US, CAFC No. 98-1327, June 10, 1999. Court reverses ASBCA and "holds that VHC is not precluded from recovering unamortized labor learning costs where the terminated portion of the contract was originally included by exercise of an option; nor is recovery automatically prohibited where the original contract pricing was not level. However, to recover unamortized labor learning costs, VHC must still prove that it experienced positive labor learning during performance of the unterminated portion of the contract."
AMERICAN TELEPHONE AND TELEGRAPH COMPANY and LUCENT TECHNOLOGIES INC. v. US, CAFC Nos. 95-5153,-5154, May 26, 1999. PDF Version From the en banc opinion by Judge Newman-"We took this appeal and cross-appeal en banc to reconsider the questions of law
presented, upon certification for interlocutory appeal, concerning the applicability of '8118 of the
Defense Appropriations Act of 1987 to a contract between the Department of the Navy and the American
Telephone and Telegraph Company. The Court of Federal Claims
ruled that in view of the failure of the Department of Defense to comply with '8118, the contract,
which had been performed, was void ab initio. We now hold that the contract was not void, and
remand to the Court of Federal Claims for further proceedings in accordance with this premise."
Three judges concurred in the result, but found that Section 8118 did not apply to the contract.
Judge Plager concurs that Section 8118 applied to the contract, but dissents from the finding that the contract was not void ab initio. Judge Plager disagrees strongly with the court's finding "that the "purpose" of the statute overrides its express terms." Judge Plager states "It has been some years since a court-invented "purpose" so blatantly repealed a Congressional enactment."
I perhaps show my bias, but several of Judge Plager's conclusions are well received, at least by this government attorney-
"AT&T has no rightful claim to another penny of public money. It agreed to build and sell a
product to the Government for a fixed price. It performed its end of the deal, and delivered the
goods. The Government likewise performed its part of the deal; it paid AT&T the agreed-upon
price (actually more, as a result of negotiated add-ons)."
"If the contract had been valid under governing law, AT&T would have no basis for claiming
more money; our precedents are unequivocal that full payment under a valid fixed price-type
contract is all to which a contracting party is entitled. The risk of loss for misjudging what it
takes to perform, or for deliberately underbidding, is on the contractor, not the Government." (citations omitted)
"AT&T now seeks to take advantage of the fact that the deal it made with the Government did not
result in an enforceable contract, which it likely knew (and certainly should have known) when it
proposed to enter into the agreement. AT&T demands more money for what it has been fully
paid to do. The answer to that facially nonsensical demand is, in a word, "no." "
...
"AT&T comes to the court with unclean hands. AT&T is not an innocent bystander being taken
advantage of by a predator government. Both the Government and AT&T knew exactly what
they were doing when they entered into this deal. It simply defies belief that AT&T was unaware
of 8118 when it purported to contract with the Government or was unaware that the Navy was
proceeding with the contract in the manner the Navy did."
"In any event, that does not matter. The most that AT&T would be entitled to under any equitable
theory is the fair value of the goods sold, and that value was agreed to by AT&T when it made
the deal with the Navy. The goods are one-of-a-kind, not to be found on the shelf at your usual
military equipment supermarket. There can be no better method for determining a fair price for
the goods than to see what a willing seller would sell them for to a willing buyer. "
"AT&T does not allege that it was coerced by the Government, or that it was caused to enter into
the deal by fraud. It simply wants more money for a product it agreed to provide for a price that
proved, according to AT&T, too low. An inefficient, wasteful, or simply ignorant contractor
cannot foist off on the other contracting party the consequences of its own incompetence.The
law in a case like this leaves the parties where it found them." (citations omitted)
ALFA LAVAL SEPARATION, INC. v. US CAFC No. 98-5087, May 7, 1999. The Court of Appeals for the Federal Circuit reverses and remands a COFC decision which had held that even though the government violated applicable procurement statute and regulation, that the mistake was not significantly prejudicial to justify relief. The COFC had found that Alfa had no "substantial chance" of award because of the "colossal price difference" between the offers. The CAFC disagrees stating: "But while price differential may be taken into account, it is not solely dispositive; we must consider all the surrounding circumstances in determining whether there was a substantial chance that a protester would have received an award but for a significant error in the procurement process. In issuing the RFP here, the government sought proposals that met certain requirements. Alfa Laval, an irrefutably competent supplier, submitted the only bid meeting all of the government's requirements, at a lower per-unit price than it had charged for the same purifiers in two recent procurements: it must have had a substantial chance to receive the contract award."
AIR LAND FORWARDERS, INC., et al v. US, No. 98-5007, March 26, 1999. The CAFC affirms a COFC decision that admitted "into evidence, as business records of the military, certain repair estimates prepared by third parties." Judge Bryson dissents arguing that the exceptions to the hearsay rule were not met, and notes that the majority's reliance on the presumed "reliability" of the records is misplaced as "...the only role reliability plays in the Rule 803(6) calculus is to exclude evidence that otherwise qualifies for admission."
Metric Constructors, Inc. v. NASA, No. 98-1156, March 3, 1999. The CAFC reverses the Armed Services Board of Contract Appeals, See ASBCA No. 48852 (Nov. 21, 1997) and finds that the contract terms contained a latent ambiguity which the Court construed against the drafter, NASA. Good discussion of the use of evidence of trade practice and custom to determine whether a contract is ambiguous in the first instance and to determine the meaning of an ambiguous provision.
Bonneville Associates v. Barram , No. 96-1325, 1/20/1999. Federal Circuit affirms a GSBCA decision. Facts from the opinion: "The appellants previously had withdrawn their appeal to the Board to pursue their appeal to the United States Claims Court; the Board dismissed that appeal without prejudice. The United States Claims Court held that it lacked jurisdiction because the appellants' filing of their appeal with the Board constituted an election of remedies. After this court affirmed that ruling, the appellants attempted to reinstitute their appeal to the Board, which dismissed it as untimely because not filed within the 90-day limitations period under the Contract Disputes Act." The case has an interesting discussion of equitable tolling, particularly in the concurring opinion by Judge Gajarsa.
H.B. Mac, Inc. v. United States , No. 97-5054, 8/19/1998. Court of Federal Claims decision reversed. The Court found that "The fact that a contract is a set-aside for small disadvantaged businesses does not change in any way the standard that a court applies in analyzing the contractor's pre-bid conduct. The program of having certain contracts set aside for small, disadvantaged businesses is meant to achieve certain public policy goals. See 10 U.S.C. § 2323 (1994) (establishing Department of Defense contracting goals and authorizing preferences for small disadvantaged businesses); 48 C.F.R. § 219.502-2-70 (1997) (implementing 10 U.S.C. § 2323 by authorizing contracting officers to set aside acquisitions for small disadvantaged businesses). The program is not relevant in assessing a contractor's pre-bid conduct or its interpretation of contract documents. In that regard, as a government contractor, an SDB has its conduct judged under the same standard as that of any other contractor. That standard is whether, without qualification, the contractor acted reasonably and prudently."
TECHNICAL ASSISTANCE INTERNATIONAL, INC. v. US CAFC 97-5512, August 4, 1998. Court finds that government acted in good faith in this requirements contract action for a negligent estimate. COFC decision reversed.
West v. All State Boiler, Inc. CAFC 96-1093, June 25, 1998. In an opinion by Chief Judge Michel, the CAFC affirms the decision by the VABCA in this Eichleay case. The Court rejected the government's position that the contractor must show that it was impossible, rather than impractical to take on additional work in order to recover under Eichleay. The Court also found that the Board properly determined that All State did not sufficently demonstrate it would have completed the contract ahead of schedule.
HRE, INCORPORATED v. US CAFC No. 97-1197, April 29, 1998
HARBERT/LUMMUS AGRIFUELS PROJECTS v. US CAFC NO. 97-5047, April 21, 1998
Southfork Sys., Inc. v. United States CAFC No. 96-5136, April 14, 1998.
AT&T v. United States, CAFC Nos 95-5153, 95-5154, September 24, 1997. [See below] Court affirms-in-part and reverses-in-part the decision of the Court of Federal Claims. In an opinion by Judge Plager, the Court affirms the determination of the COFC that a Navy R&D fixed-price contract awarded to AT&T was void as contrary to statute and not subject to reformation. The Court, however, reversed the conclusion of the trial court "that the consequence of its determinations was to leave the parties with an implied-in-fact contract, with compensation to be awarded on a quantum meruit basis." The CAFC held "The concept of implied-in-fact contract is not for the purpose of salvaging an otherwise invalid contract. An implied-in-fact contract arises when, in the absence of an express contract, the parties’ behavior leaves no doubt that what was intended was a contractual relationship permitted by law." (Citations omitted) "In the case here, the contractual relationship was not permitted by law, and the rubric of implied-in-fact contract is not appropriate." The Court concluded it's opinion with the possibility of some relief to AT&T by stating "There is nothing to suggest that AT&T intended to make a gift of that equipment to the Government, and much to suggest the contrary. Whether AT&T may replevy the goods, or bring an appropriate action for the value of its wrongful retention and use by the Government, is not before us."(Judge Newman filed a dissenting opinion) PDF version [On March 9, 1998, the Court vacated the judgment of the Court, withdrew this opinion and agreed to rehear the appeal in banc.]
Burnside-Ott Aviation Training Center v. Dalton CAFC No. 96-1227, February 1997. Court affirms ASBCA decision on an award fee dispute. Court also holds that award fee provisions are subject to CDA.
Krygoski Constr. Co. v. US., In an August 1, 1996, decision the Court of Appeals for Federal Circuit limits Torncello by holding that Torncello applies only when the Government enters a contract with no intention of fulfilling its promises. Cert Denied US SupCt, No. 96-1236, 5/12/97.