April 10, 2009
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Prior to 1996 the jurisdiction of the United States Court of Federal Claims to hear and consider a Protest challenging a Federal Procurement was premised on the Court’s Tucker Act, 28 U.S.C. § 1491(a)(1), jurisdiction, this on an Implied-in-Fact Contract of fair and honest consideration. The situation was changed with the Administrative Dispute Resolution Act of 1996 (ADRA) which provides private parties an independent cause of action, 28 U.S.C. § 1491(b)(1), to Protest at any stage in the Federal Procurement process, there contesting any violation of Statute or Regulation.
But the ADRA left unresolved the question whether the Implied-in-Fact Contract theory of Protest jurisdiction had survived, and on this question there has been neither unanimity nor a definitive ruling from the Court’s supervisory authority, the United States Court of Appeals for the Federal Circuit.
Perhaps this question is now resolved by FFTF Restoration Company, LLC v. United States, Fed. Cl. No. 07-659C, Judge Nancy B. Firestone, March 2nd, 2009, a Protest arising from the Department of Energy’s cancellation of a small-business set-aside Solicitation for deactivation and decommissioning of a nuclear reactor at the Hanford Site. Here Judge Firestone concludes that the Implied-in-Fact Contract theory of Protest jurisdiction survives the ADRA by “fitting within the ambit of the requirements to act with integrity, fairness, and openness, and to treat bidders fairly,” these imposed by Federal Acquisition Regulation 1.102(b)(3) and 1.102-2(c)(3).
Judge Firestone says that FFTF’s claims of breach of an implied-in-fact Contract and FFTF’s assertions of violations of the Federal Acquisition Regulation are “virtually indistinguishable.” Noting that the ADRA does not limit the theories under which violations are claimed, Judge Firestone concludes that claims of breach of an implied-in-fact Contract are permissible under ADRA.
