“Control” Requirements for Service-Disabled Veteran-Owned Small Business Concerns
April 21, 2009
A procurement preference created by the Veterans Benefit Act of 2003, 15 U.S.C. § 657f, is the preference for small business concerns owned and controlled by service-disabled veterans. This preference is principally ensured by set-asides exclusively for service-disabled veteran-owned small business concerns (known generally as SDVOSBC’s), and procedures for these SDVOSBC Contract set-asides are set [...]
“Hard Facts” Are Required To Establish a Significant Potential Organizational Conflict of Interest
July 20, 2010
“Hard Facts” are required to establish a significant potential Organization Conflict of Interest. This means that a fact-specific inquiry must . . . .
Implied-in-Fact Contract Theory of Protest Jurisidiction
April 10, 2009
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 [...]
Limitations Imposed by Administrative Procedure Act Review
May 6, 2009
Two recent decisions by the United States Court of Appeals for the Federal Circuit concern the limited standard of review imposed on Protests, i.e., challenges to Solicitations, else challenges to particular Contracts. The first, Tip Top Construction, Inc. v. United States, Fed. Cir. No. 2008-5183, April 29, 2009, arose from a decision of the United [...]
Marijuana, the Mexican Spotted Owl, and Jury Verdicts
February 22, 2010
These seemingly unrelated subjects are involved in two rulings by the United States Court of Appeals for the Federal Circuit which together provide important limitations on the implied-in-fact duty not to hinder and to cooperate. The cases are Agredano v. United States, Fed. Cir. No. 2008-5114, February 17, 2010 and Precision Pine and Timber, Inc. [...]
Price Reasonableness, Price Realism, and Protest Review
February 2, 2010
The U.S. Court of Federal Claims provides a clear exposition of the differences between Price Reasonableness and Price Realism and a few lessons about the scope of Protest review in DMS All-Star Joint Venture v. United States, Fed. Cl. No. 09-737C, January 26, 2010. At issue in DMS All-Star was a proposed indefinite delivery, indefinite [...]
Protest or Contract Disputes Act Claim?
April 30, 2010
The Federal Circuit’s decision in Distributed Solutions, Inc. v. United States, Fed. Cir. No. 2007-5145, August 28, 2008, has created a problem for Cases involving elements both of a Protest and of a Contract Disputes Act Claim arising under the Contract Disputes Act, 41 U.S.C. §§ 601-613. This problem has most recently manifested itself in [...]
The Contract Disputes Act, Compulsory Counterclaims, and Contracting Officer Final Decisions
July 13, 2010
Federal Contractors who elect to take their Contract Disputes Act Claims, 41 U.S.C. § 605(a), to the United States Court of Federal Claims, 41 U.S.C. § 609(a)(1), rather than to an Agency Board of Contract Appeals, 41 U.S.C. § 606, enjoy an advantage, the Court’s Compulsory Counterclaim Rule. Under this Rule (which is set out [...]
The Federal Circuit Validates the Implied-in-Fact Contract Theory of Protest Jurisdiction
March 1, 2010
The Federal Circuit has resolved a quandary about the implied-in-fact contract theory of protest jurisdiction, this in Resource Conservation Group, LLC v. United States, Fed. Cir. No. 2009-5091, March 1, 2010. Resource Conservation Group arises out of a Claim for bid preparation costs and fees filed after the Navy rejected an Offer to lease the [...]
The Sovereign Acts Defense
July 15, 2010
the Sovereign Acts Defense devolves from the Federal Government’s dual role as both a contracting party and as the Sovereign
