Category Archives: Court of Federal Claims

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“You Got To Know When To Protest” Part II: Federal Circuit Holds Blue & Gold Waiver Rule For Bid Protests Inapplicable When Pre-Award Objection Would Have Been “Futile”

In our previous blog article, we discussed the Federal Circuit’s decision in Inserso Corp. v. United States, 961 F.3d 1343 (Fed. Cir. 2020), in which a split panel held a protest cannot be brought in the U.S. Court of Federal Claims (“COFC”) if, before the time of proposal submission, “the law and facts” made it … Continue Reading

Federal Circuit Affirms Veteran-Owned Small Businesses Are the VA’s First Priority

The U.S. Court of Appeals for the Federal Circuit recently affirmed a May 2017 Court of Federal Claims decision requiring the U.S. Department of Veterans Affairs (“VA”) to give veteran-owned small businesses first priority before purchasing from the AbilityOne Program.… Continue Reading

Non-Protestable Task Order Procurement Decision Shuts Out Incumbent Contractor

A recent decision by the U.S. Court of Federal Claims (“COFC”) serves as a reminder on the limits a contractor faces in protesting task and delivery order awards. In MORI Associates, Inc. v. United States, No. 13-671C (2013), the COFC dismissed the pre-award bid protest by MORI, the incumbent contractor, for lack of jurisdiction because … Continue Reading

Court of Federal Claims Reaffirms Exceptions To The Anti-Assignment Act

By: Marko W. Kipa The United States Court of Federal Claims recently reaffirmed the applicability of two exceptions to the Anti-Assignment Act (the “Act”). Liberty Ammunition, Inc. v. United States, 2011 WL 5150221 (Fed. Cl. Oct. 31, 2011). Specifically, the Court acknowledged that (1) the Government may prospectively waive the Act, and (2) the Act does not … Continue Reading

Task And Delivery Order Protests: Taking Aim At A Moving Target

By Marko W. Kipa The saga began with the passage of the 2008 National Defense Authorization Act. While the Act contained a general prohibition barring bid protests of task and delivery order awards (excluding challenges to scope, period, or maximum value), it granted the GAO exclusive jurisdiction over bid protests of civilian and defense agency … Continue Reading

Let Bygones Be Bygones – Except When It Comes To “Out of Scope” Modifications

By Marko W. Kipa After an unsuccessful bid protest, many contractors assume that their chance at getting a piece of the action has passed. They assume that they have exhausted their remedies and that all of the spoils inevitably will go to the victor. They let bygones be bygones and move-on to the next capture opportunity and … Continue Reading

COFC Endorses CDA Claim For Breach Of “Fair Opportunity To Be Considered”

The Federal Acquisition Streamlining Act’s bid protest bar precluded contractors from challenging the award of a task or delivery order, subject to several limited exceptions — i.e., if the task or delivery order increased the scope, period or maximum value of the underlying IDIQ contract. Recent amendments to the Act expanded GAO’s bid protest jurisdiction to … Continue Reading

Not-So Meaningful Discussions: The Hidden Peril of a “Good” Proposal

As the closing time for receipt of proposals approaches, controlled chaos starts to take over. For one reason or another, changes may be made to your Company’s proposal that prevent it from putting its best foot forward. You are certain that the proposal meets the Solicitation requirements, but you also believe that one section of the proposal … Continue Reading

Short Circuiting the IDIQ Bid Protest Bar: A Pyrrhic Victory?

It is well-recognized that, with limited exceptions, neither the GAO nor the Court of Federal Claims has been willing, historically, to assume jurisdiction over IDIQ task or delivery order protests.  Recently, there has been some loosening of that bar, in the form of Public Law No. 110-181, § 843, which grants the GAO exclusive jurisdiction for … Continue Reading

Two Roads Converged?: Merging the COFC’s and GAO’s Timeliness Requirements

Disappointed bidders intent on protesting an allegedly improper contract award could pursue traditionally two avenues of potential relief.  They could file a post-award bid protest either:  (1) at the Government Accountability Office ("GAO") within 10 days of when they learned of the protest grounds (or, where competitive proposals were involved, within 10 days of the … Continue Reading

Administration of Organizational Conflict of Interest Mitigation Plans — Are Special Masters on the Horizon?

The Court of Federal Claims’ most recent decision in Axiom Resource Management v. United States, 2008 WL 541675 (Feb. 26, 2008) ("Axiom II"), suggests that extended judicial oversight of contract administration functions may be a viable bid protest remedy, particularly in the context of organizational conflicts of interest (OCIs).  The case also highlights the importance … Continue Reading

Axiom Resource Management v. United States: Judicial Scrutiny of Organizational Conflicts of Interest Intensifies

The Court of Federal Claims’ recent decision in Axiom Resource Management v. United States, 2007 WL 2840414 (Sept. 28, 2007), illustrates the trend toward more robust judicial review of organizational conflict of interest (OCI) allegations. The case also highlights several issues contractors should consider in drafting successful OCI mitigation plans.… Continue Reading

Praecomm, Inc. v. United States: Managing Expectations in the Context of A “Long-Term” Procurement

The United States Court of Federal Claims recently decided a case that addresses a contractor’s remedy in the event of a government breach of contract and provides a useful reminder regarding managing expectations in the negotiation of contract prices with the government. Praecomm, Inc. v. United States, 78 Fed. Cl. 5 (Aug. 9, 2007).… Continue Reading

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