Contract Law Division

Recent Decisions

• United States Supreme Court
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METCALF CONSTRUCTION COMPANY, INC., v. THE UNITED STATES AND LEND LEASE ACTUS (Intervenor), COFC No. 02-5C, September 24, 2002. Judge Gibson grants this post-award bid protest primarily on the basis that plaintiff was eliminated because of a patently ambiguous provision that the government, which had notice of such ambiguity, had a duty to clarify, but failed to do so. Opinion also discusses the "Neutral" rating for past performance.

R & W FLAMMAN Gmb H., v. THE UNITED STATES, COFC No. 02-800C, September 23, 2002. Pre-award bid protest. An interesting case. Judge Gibson finds that the release to one of the bidders, pursuant to an FOIA request, of the base and option year prices in a predecessor sealed bid procurement was improper and created the appearance of impropriety. The Army is permanently enjoined from opening bids and making an award.

TRANSFAIR INTERNATIONAL INC., v. THE UNITED STATES, COFC No. 01-608C, September 23, 2002. Judge Allegra rejects the government's argument that a prime contractor "... is strictly liable for the illegal acts of its subcontractor in performing the contract and thus irrevocably and absolutely forfeited its right to be paid under that contract." The opinion discusses the ".. dawn of the common law tradition in England...", cites Coke's Institutes of the Laws of England, and relies on Restatement (Second) of Contracts § 178 (2) & (3) When a Term Is Unenforceable on Grounds of Public Policy in denying the government's motion to dismiss.[The illegal act was the use of an airline of a country that the President identified as part of the "axis of evil."

AMERICAN MANAGEMENT SYSTEMS, INC. v. US, COFC No. 01-586, August 30, 2002. Judge Wiese rejects the governments argument that the Federal Retirement Thrift Investment Board is a non-appropriated fund instrumentality. Finding that the Board operates on appropriated funds, plaintiff's appeal of a default termination is allowed to go forward.

HI-SHEAR TECHNOLOGY CORPORATION v. US, COFC No. 98-712C, August 29, 2002. Judge Horn finds that the government breached this requirements contract by negligently preparing the estimates of contract requirements. The court awarded overhead and G&A damages, but not lost profit damages as Hi-Shear could not prove that it would have made a profit on the contract.

CORE CONCEPTS OF FLORIDA, INCORPORATED v. US, COFC No. 00-308C, August 23, 2002. Relying on Aaron v. US, COFC No 00-351C, February 21, 2002, Judge Merow holds that UNICOR is a non-appropriated fund instrumentality ("NAFI"), but not one included among those named in 28 U.S.C. 1491(a)(1). Therefore, there is no Tucker Act jurisdiction and the case is dismissed

MCRAE INDUSTRIES, INC. v. US et. al., COFC No. 01-460C, August 14, 2002. Plaintiff's failure to submit a bid and no action by government in preventing the submission of a bid were fatal to plaintiff's standing as it was not an "interested party". Court noted that the CAFC resolved any ambiguity in the term "interested party" in Am. Fed'n of Gov't Employees v. United States, 258 F.3d 1294 (Fed. Cir. 2001). Judge Merow also held that the GAO decision, below, McRae Industries, Inc., B-287609.2, July 20, 2001, was contrary to the plain language of 28 USC § 1491(b)(1). Although denying the protest, the GAO had found that "Inasmuch as the appropriate relief, if our Office were to sustain the protest, would be for the protester and other offerors to be given an opportunity to compete based on a revised RFP, we consider the protester to have a sufficiently direct economic interest in the outcome to be deemed an interested party." Judge Merow called this "circular reasoning as the standing issue, here whether or not plaintiff was an interested party, must be decided before reaching the merits.

MDB COMMUNICATIONS, INC. v. US, COFC No. 99-984C, August 14, 2002. Statute establishing the United States Mint Public Enterprise Fund: 31 U.S.C. § 5136 creates a revolving fund that operates as a continuing or permanent appropriation of public moneys, thereby subjecting contracts of the United States Mint to jurisdiction in this court.[Court's Headnote]

FRANK P. SLATTERY, JR. et. al. v, US, COFC No. 93-280C, August 14, 2002. Winstar related case. Judge Smith decides for plaintiff after first holding that the court has subject matter jurisdiction as the FDIC is not a Non-Appropriated Fund Activity as argued by the government.

IMPRESA CONSTRUZIONI GEOM. DOMENICO GARUFI V. US, COFC No. 99-400C c/w 01-708C, July 11, 2002. In what may be the final chapter in this "resonsibility" deterimination case, Judge Hewitt grants injunctive relief and enjoins the Navy from exercsising its option to extend the contract beyond February 17, 2003. The Navy is further orderd to re-solicit an award the contract as soon as practicable to permit performance to begin on February 17. 2003.

Union Pacific Railroad Corp. v. US, COFC No. 01-490C, June 28, 2002. A somewhat unusual case where Judge Miller dismisses the complaint finding that an indemnity agreement is open-ended and therefore unenforceable pursuant to the Anti-Deficiency Act. Judge Miller does, however, allow plaintiff to amend its complaint to plead reformation.

WESTCHESTER FIRE INSURANCE COMPANY v. US, COFC No. May 22, 2002. Judge Lydon denies the plantiff's motion for summary judgment and grants the government's motion for summary judgment on its counterclaim, including interest, in this surety claim case. The COFC finds that the surety is also responsible for a subcontractor's wage violations of Davis-Bacon and Contract Work Hours and Safety Standards Act. An interesting case, not the least of is Judge Lydon's finding that "It is not the GovernmentÕs responsibility ... to act as a nanny for the surety ... ."

IMPRESA CONSTRUZIONI GEOM. DOMENICO GARUFI V. US, COFC NO. 99-400C c/w 01-708C, May 3, 2002. On remand from the Federal Circuit, see CAFC case, Judge Hewitt finds; "Because the basis for the contracting officer's procurement decision was not reasonable, specifically because the responsibility determination on which the award was based violated the standards set forth in §706 of Title 5 of the United States Code, the court sustains the protest."

Glazer Construction Co., Inc. v. US, COFC No. 98-400C, May 7, 2002. Judge Horn holds that '...violations of the Davis-Bacon Act are valid grounds to uphold the defendantÕs termination for default."

CESC PLAZA LIMITED PARTNERSHIP, ET AL., v. THE UNITED STATES AND KCOR ALEXANDRIA, LCOR INTERVENOR , COFC No. 01-715C, filed 03/22/2002, Reissued April 16 2002. Somewhat unusual case where COFC grants government's motion for judgment on the administrative record in this bid protest filed months after award. Plaintiffs contended that modifications made to a contract between the General Services Administration (ÒGSAÓ) and intervenor exceeded the scope of permissible changes and that the project should have been resolicited.

LION RAISINS, INC. v. THE UNITED STATES, COFC Nos. 01-322C & 01-536C, March 20, 2002. Judge Miller rules that "Because there is no benefit in bringing a bid protest claim as an implied contract under section 1491(a)(1) [28 USC 1491(a)(1)], no logical reason would support the presumption that Congress intended for the implied-contract cause of action to survive the enactment of the ADRA." Also, the decision holds that there is no basis for lost profits damages under a bid protest action.

MCDONNELL DOUGLAS CORPORATION AND GENERAL DYNAMICS CORPORATION v. US, COFC No. 91-204C, August 31, 2001. On remand from the CAFC Judge Hodges upholds the Navy's termination for default of the A-12 program. Judge Hodges' opinion concluded with the following: "Admiral Morris, the Navy contracting officer did not want to terminate the contract between the Navy and contractors. He wanted to work out all the problems within the four corners of the contract, as he put it. He was not allowed that option. We found that Admiral Morris had no choice but to terminate the contract. He also felt that he had to terminate for default -- a grievous sanction. The Federal Circuit ruled that Admiral Morris terminated the contract for performance-related reasons, and that his actions were products of his independent discretion. That being the law of the case, we must rule for defendant. This is so because the unilateral schedule was reasonable, and if the Contracting Officer was concerned about whether the contractors would meet the schedule, that concern is a legitimate basis for terminating the contract for default." Judge Hodges' earlier decision and the CAFC's reversal and remand are also available.

LABAT-ANDERSON INC. V US, COFC No. 01-350C, July 27, 2001. The court denies plaintiff's motion for preliminary injunction and intervenor's, JHM Research and Development Inc.("JHM") motion to dismiss for lack of subject matter jurisdiction or for failure to state a claim in this post award protest of an award of a competitively issued BPA to a FSS contractor. Judge Wilson finds that the issuance of a BPA as part of the regulatory scheme of FAR 8.404(b)(4) may be reviewed under the provisions of the Tucker Act 28 USC 1491(b). Addressing JHM's argument that FASA, 41 USC 253j(d), precludes a task order protest, Judge Wilson states "While the plain language of the statutory provision clearly bars task order protests, the critical point here is that the award at issue in this case constitutes far more than the mere issuance of a task order against an already-existing GSA FSS or multiple-award contract. Because LABAT is challenging the award of a FAR Part 8 BPA and not the issuance of a task order under FAR Part 16, JHM's argument that the FASA task order protest exemption, 41 U.S.C. 253j(d), strips the Court of jurisdiction in this case is rejected."

AUTOMATED COMMUNCATION SYSTEMS, INC., d/b/a ACSI v. US, COFC No. 01-065, June 22, 2001. Court of Federal Claims has no jurisdiction to consider the validity of the Randolph-Sheppard Vending Stand Act (RSA) or the implementing DOD Directive 1125.3. Such challenges to the validity of the Act or DOD Directives are matters for the U.S. District Courts. COFC's ADRA jurisdiction is over actions challenging the government's compliance with procurement laws and regulations, not the validity of such laws and regulations.

INTER-COASTAL XPRESS, INC. v. US, COFC No. 00-441C, June 12, 2001. Contracts by DOD for the transportation of perishable goods evidenced by tender agreements and GBLs are governed by the Interstate Commerce Act(ICA) rather than the CDA. Claims filed later than three years after payment are barred by the ICA statute of limitations.

INTERNATIONAL AIR RESPONSE v. US, COFC No. 00-428C, June 01, 2001. Stay by an United States District Court does not toll the CDA time limit for filing an appeal of a contracting officers's decision with the COFC.

RUST CONSTRUCTORS INC v. US, COFC No. 00-582C, May 31,2001. Post-award bid protest, A-76 case. Government not required to do a "best value" analysis between commercial source and MEO.

EMERY WORLDWIDE AIRLINES, INC. v. US, COFC No. 01-13C, March 26, 2001. Judge Miller denies this pre-award bid protest of a $6.36 billion sole-source award by the United States Postal Service ("USPS") to Federal Express Corporation. The Court found that USPS was a "Federal agency" under the ADRA. Although finding that USPS violated its regulations which require publication before award of such contracts, Judge Miller concluded that Emery was not prejudiced by the violation

Schweiger Construction Company, Inc. v. US, COFC No. 98-769C, March 9, 2001 (Originally filed on January 5, 2001 as unpublished) Judge Bush appears to leave open the issue of whether bad faith by the government will support a breach claim by a contractor based on an erroneous estimates in an IDIQ contract where the minimum quantity has been satisfied. The opinion discusses at length the Travel Centre case which was before the CAFC when this case was argued. However, the CAFC overturned Travel Centre one day after this opinion was filed, and two months before the decision was publshed.

Cybertech Group, Inc. v. US, COFC No. 00-786C, February 14, 2001. Judge Bush denies a protest of award of a delivery order under the FSS. Case discusses the applicability of GSA's Special Ordering Procedures and also is one of the few that I have seen where plaintiff actually posted a bond.

INFORMATION SYSTEMS & NETWORKS CORPORATION v. US, COFC 98-663C, November 30, 2000. Judge Futey holds that a Sub Chapter S corporation, which held cost-reimbursement and time & material contracts, was entitled to reimbursed for state income taxes paid by its principle shareholder and which were reimbursed to the shareholder by the corporation.

AMERICAN TELEPHONE AND TELEGRAPH COMPANY and LUCENT TECHNOLOGIES, INC. V. US, COFC No. 93-483C, November 6, 2000. This long running case involving Section 8118 of the Defense Appropriations Act of 1987 and a Navy fixed price incentive contract returns for another look. On remand from the CAFC (see CAFC decision,) the COFC holds that contractor is not entitled to recover on any of its claims. In conclusion Judge Wiese states: "The several theories of recovery that plaintiffs have raised in this remand proceeding are founded on the premise (i) that the Navy was required by Section 8118, as well as by various procurement regulations and directives, to award the RDA contract on a cost-reimbursement basis, and (ii) that plaintiffs, as the intended, but thwarted, beneficiaries of these laws, may now seek their enforcement through a variety of legal remedies - reformation, implied contract recovery, recission and restitution - all directed towards a repricing of the work performed under the RDA contract.

Because we have concluded that plaintiffs have no enforceable interest in Section 8118 or in the procurement regulations and directives on which they also rely, we direct the dismissal of their amended complaint for failure to state a claim on which relief can be granted."

PERKIN-ELMER CORPORATION v.US, COFC No. 98-378C, September 26, 2000. Judge Firestone grants summary judgment for Perkin-Elmer, holding that "...as a matter of law, that the Air Force did not assert its claim against Perkin-Elmer within a reasonable time when it waited over six years between discovering the alleged latent defect and finally revoking acceptance."

MANGI ENVIRONMENTAL GROUP, INC. COFC No. 00-29, May 31, 2000, (Reissued for Publication on June 29, 2000). Post award bid protest case.Judge Tidwell issues permanent injunctive relief finding that award was made to an offeror that submitted an unacceptable proposal. Judge Tidwell found that the failure to identify the person for a key personnel position when such was required by the solicitation caused the proposal to be unacceptable and thus that the award was arbitrary and capricious and not in accordance with law. In providing the remedy to the protestor, Judge Tidwell stated: "Accordingly, the court cannot direct the award of the contract to Mangi because to do so would infringe on the agency's right to decide to make contracts. The court concludes that the Forest Service unlawfully awarded the contract to SRI. As a result, that contract is declared null, void and without legal effect. The court orders that the Forest Service either (1) amend the solicitation to inform all offerors who were within the competitive range that it relaxed the solicitation's requirements pursuant to FAR 15.206 or (2) resolicit the contract and consider only those bids that are technically compliant."

NORTHROP GRUMMAN CORP. V. US COFC NO. 97-276C, June 16, 2000. A very "meaty"case. Judge Miller's introduction: " This contract action, before the court after trial, juxtaposes the military's evolving requirements and a contractor's over-ambitious assessment of its capabilities to meet them. In the circumstances the contractor questions the military's choice of a fixed-price incentive contract and the mushrooming of labor hours expended in responding to fluid requirements. The military defends the choice of contract type, disputes the charge of illegality, and blames the contractor for spending $34 million on a $22 million contract. The court concludes that Congress precluded this type of contract during three years of its performance, but that damages shall be determined under the contract. Plaintiff is entitled to an award on some of its claims; with respect to constructive changes, which dominated trial, plaintiff has failed to establish that the Government ordered most of the constructive changes and, even if so, to prove its damages with the requisite certainty."

ROBERT F. CHRISTIAN, II v. US COFC No. 97-165C, June 5, 2000. This is not a contract case, but may well be cited in future actions challenging race based procurement issues. Chief Judge Smith held "... that the Army's affirmative action program for the 1992 FY SERB [Selective Early Retirement Board] was not narrowly tailored, and therefore violates the Due Process Clause of the Fifth Amendment. ... A racial classification tailored to remedy personal and societal discrimination and to assure racial balancing ... does not come close to the exact fit required of a constitutional remedy for institutional discrimination." Judge Smith also certified a class action for this issue.

THE LIBERTATIA ASSOCIATES, INC. v. US COFC No. 93-459C, May 23, 2000. Judge Hewitt finds "...that the government acted in bad faith in the administration of plaintiff's contract, resulting in an improper termination for default."

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1482 v. US, COFC No. 00-130C, May 10, 2000. Judge Firestone holds that "...that Congress did not intend to include federal employees and their unions within the zone of interests protected by section 2(e) of FAIR or 10 U.S.C. § 2462(b). As such, these plaintiffs cannot establish standing under the APA and therefore are not "interested parties" able to maintain this action under the ADRA."

DSD LABORATORIES, INC. v. US, No. 00-177C, April 14, 2000. Judge Horn denies plaintiff's motion for a TRO and PI. Judge Horn finds "The record does not reflect that plaintiff is likely to succeed on the merits of its complaint, given the OCI. The Federal Circuit in FMC Corporation noted that: "Absent a showing that a movant is likely to succeed on the merits, we question whether the movant can ever be entitled to a preliminary injunction unless some extraordinary injury or strong public interest is also shown." FMC Corp. v. United States, 3 F.3d at 427. The plaintiff argues that it will suffer irreparable harm through the lost opportunity to compete and potential lost profits. However, there is a strong public interest in avoiding organizational conflicts of interest. In addition, the government advises that it intends to award a contract on April 17, 2000, in support of a combat support scheduling organization, which is currently under strength. The personnel strength of the organization impacts its scheduling capability for military contingency operations. There is a strong public interest in proceeding with the year 2000 solicitation in support of contingency operations crises management."

NORTHROP GRUMMAN CORP. v. US, COFC No. 97-359C, April 7, 2000. Judge Hodges grants the government's motion for summary judgment in a case where plaintiff alleged a breach on an implied-in-fact contract and a bad faith termination for convenience. One of the few reported cases which discusses the government's rights to make a noncompetitive procurement under 10 U.S.C. 2304(c)(7). Court cites Varicon International v. Office of Personnel Management, 934 F. Supp. 440, 443-44 (D.D.C. 1996) [a 41 USC 253c)(7) case] for the proposition that "...NASA's decision to select a prime contractor by the non-competitive bidding process is non-reviewable."

PHOENIX AIR GROUP, INC. v. US, No. 98-602C, February 18, 2000.
COFC has jurisdiction under the Tucker Act to hear a challenge by a subcontractor of a contract modification when it alleges a violation of statute. Judge Horn rejects the government's argument that a lack of a contacting officer's final decision is fatal to the jurisdictional issue as the Judge notes that the plaintiff alleges a violation of 10 U.S.C. 2304, and is not before the Court on the basis of the CDA. However, the government prevails on its motion for summary judgment on the administrative record, and plaintiff's motions for summary judgment and an injunction are denied. Relying on AT&T Communications, Inc. v Wiltel, Inc, 1 F.3d 1201, 1205 (Fed. Cir. 1993), Judge Horn finds that the challenged modification was within the scope of the competitively awarded contract.

STRATOS MOBILE NETWORKS v.US, No. 99-402C, September 29, 1999.
Injunctive Relief: (i) Solicitation language specifying price evaluation criteria that is reasonably susceptible to two different, but not obviously conflicting, interpretations presents a latent ambiguity that defeats bidder's opportunity to compete on equal terms and impairs integrity of subsequent contract award. (ii) Injunctive relief is warranted where law does not provide an adequate measure of redress for bidder deprived of fair opportunity to compete, and where benefit to plaintiff of injunction is not outweighed by harms and hardships such injunction will impose on the public and the intervening party.
(jaw comment-See order for a quite detailed injunction)

THE RYAN COMPANY v. US, No. 99-113C, May 20, 1999. Post-award bid protest case. Judge Allegra finds that failure to submit descriptive literature, where such was required, made plaintiff's bid non-responsive. Furthermore, as a non-responsive bidder, plaintiff was not an interested party to challenge other aspects of the awardee's bid.

CALIFORNIA MARINE CLEANING, INC. v. US, No. 98-636C, May 14, 1999. EAJA Fee case discussing statutory fee cap, special factors and COLA adjustment. Presumably to the dismay of the Contract Law Bar, Judge Bruggink finds that "To the extent the plaintiff seeks an adjustment to the statutory cap because its counsel possess "expertise and experience in the field of government contracts and, specifically, bid protests," this argument is also unavailing." ..."Without denigrating plaintiff's counsel's extensive experience in the area of government contracts, it cannot be said that they provided any distinctive knowledge or specialized skill akin to admission to the patent bar or proficiency in foreign law. This court has declined to hold that expertise in government contracts law per se satisfies the EAJA special factor requirement, as refined in Pierce." [citations omitted]

CHAS. H. TOMPKINS COMPANY v. US, No. 99-122C, May 12, 1999 (Opinion was originally filed unpublished on March 29, 1999). Strange twist in this case where plaintiff challenged the FBI's intent to award a contract to a firm which plaintiff alleged did not meet definitive responsibility requirements of the solicitation. Both the FBI and the GAO had found that the responsibility standards were not definitive and proposed award was proper. Judge Bush disagrees, finding that the past performance standards set out definitive responsibility standards. However, as it was not the FBI's intent to establish definitive standards, Judge Bush found that "Since the record here reveals that the section 1.24 of the solicitation ("Past Performance Evaluation") has been overstated and is overly restrictive of competition to the prejudice of other potential offerors, this court finds that plaintiff is entitled to a declaration that the solicitation unduly restricts competition in violation of CICA. The specification lacks validity and a compelling reason exists to cancel the solicitation. Accordingly, the procurement is hereby cancelled."

MILLER-HOLZWARTH, INC. v. US, No. 98-576C, May 7, 1999. Judge Miller denies plaintiff's motion to keep the Court's decision imposing Rule 11 sanctions under seal. The order imposing sanctions against plaintiff and its counsel was also published. The Order stated, in part: "Intervenor's motion for sanctions is granted. Intervenor shall be entitled to recover its reasonable expenses, including reasonable attorney's fees, incurred in connection with plaintiff's claim of unfair treatment arising from [plaintiff's president] alleged conversation with [Army Contract Specialist]. Because plaintiff mounted a legitimate protest on two other, completely separate, grounds, intervenor's motion is otherwise denied insofar as it seeks all of its attorney's fees incurred in defending the bid award. The amount of expenses and fees shall be borne equally between plaintiff and plaintiff's counsel of record, or, in the alternative, by plaintiff and [counsel's] law firm, Latham & Watkins."

Hamilton Securities Advisory Services, Inc. v. US, No. 98-169C, April 27, 1999. Judge Horn denies the government's motion to dismiss for lack of jurisdiction. An interesting case discussing the effect of a District Court action on the tolling of the period for a contracting officer to issue a final decision on a contractor's claim, and a government claim for a set-off, Judge Horn holds that " Because, however, the contracting officer issued a final decision on the government's claim for setoff, and because Hamilton's affirmative claim can be considered the "mirror image" of the government's claim for setoff, the contracting officer's final decision on the government's claim for setoff served as a constructive denial of plaintiff's claim, and this court has jurisdiction to hear the claim."

BAY SHIP MANAGEMENT, INC. V. US, No. 99-184C, April 16, 1999. COFC has no jurisdiction to hear a pre-award protest where the subject acquisition will result in a maritime contract. Case transferred to District Court for consideration under The Suits in Admiralty Act. [But see, Marine Hydraulics International, an April 27, 1999 post-award bid protest decision which seems to also be a maritime contract]

ADVANCED DATA CONCEPTS, INC., v.US, No. 98-495C. April 14, 1999. Post-award bid protest case. Judge Weinstein De minimis errors do not warrant overturning contract award. Government's Motion for Summary Judgment granted. A footnote acknowledges that "The court denied DynMeridian's motion and permitted DynMeridian's participation in this action as amicus curiae. See Advanced Data Concepts, Inc. v. United States, No. 98-495C". (Fed. Cl. June 18, 1998).

GLENDALE FEDERAL BANK, FSB, v.US, No. 90-772C. April 09, 1999. In this Winstar case, Judge Smith finds that "Plaintiff is entitled to recover $908.948 million in restitution and non-overlapping reliance damages."

MEIR DUBINSKY v. US, No. 98-884C, March 31, 1999. In a 70 page opinion, Judge Bruggink overturns an Air Force Academy award, purportedly done under FAR Part 13, Simplified Acquisition Procedures, and the "test program" allowing acquisitions of commercial items up to $5,000,000. Judge Bruggink "holds that the procurement was not conducted as a simplified acquisition. As an alternative holding, assuming arguendo that it was, the Academy improperly failed to notify offerors to that effect." Case discusses FAR Part 15 violations, notice for Part 13 acquisitions and other issues. B&P costs were also granted to the pro se plaintiff. PDF Version

MODERN TECHNOLOGIES CORPORATION v. US, No. 98-309C. March 15, 1999. Judge Harkins has ordered that the material previously subject to a protective order under a bid protest case be transferred to the public area of the Courts files. The Court has also now published the original order filed on December 21, 1998. MODERN TECHNOLOGIES CORPORATION v. US, No. 98-309C. December 21, 1998

ANDERSON COLUMBIA ENVIRONMENTAL, INC. V. US, No. 98-759C, February 19, 1999. Judge Weinstein denies intervention by the awardee [Tanner Heavy Equipment Company, Inc.(Tanner)] in this bid protest case, finding that Tanner had no right to intervine under either Rule 24 of the Court, or by statute, and that Tanner was not an interested party under the Tucker Act, as amended. However, Tanner was allowed to participate as amicus curiae under the terms and conditions set forth in the opinion. [Judge Weinstein did not cite to her June 18, 1998 order in Advanced Data Concepts which seemed to pose identical issues. That apparently was an unpublished opinion.]

SON BROADCASTING, INC. v. US, No.98-115C, December 8, 1998. Judge Tidwell finds that the Court has jurisdiction over plaintiff's breach of contract claim, but grants government's motion to dismiss claims relying on detrimental reliance and violation of regulation. The Court considers the detrimental reliance claim as one of promissory estoppel and holds that the Court lacks Tucker Act jurisdiction over such claims. Furthermore the claim resting on a violation of regulation cannot support jurisdiction under the Tucker Act as the regulation has no money-mandating provisions.

WINSTAR COMMUNICATIONS, INC. v. US, No. 98-480C, September 9, 1998. Judge Merow finds that GSA's decision to award a single ID/IQ contract for telecommunications services in the New York area was " arbitrary, capricious, and not in accordance with the legal preference for multiple awards." Judgment was entered " declaring the Contracting Officer's determination and GSA's decision to award one ID/DQ contract under [the RFP] and all RFP provisions reflecting that decision, ... null and void as contrary to the requirements of FAR 16.504(c)(1) and lacking a reasonable basis"

FIREARMS TRAINING SYSTEMS INC. v. US, No. 98-476C, September 4, 1998. This appears to be the first COFC case involving FAR 15 Rewrite provisions. Judge Andewelt finds that the Navy was not obligated "under FAR 15.306(d)(3) to enter into discussions with plantiff so as to inform plaintiff of the weaknessess the Navy perceived in plaintiff's proposal and to give plaintiff an opportunity to respond to the Navy's concerns."

FN MANUFACTURING, INC. v. US, No. 98-495C, June 30, 1998. In a case concerning the date of publication via the CBDNet and the printed version of the CBD, Judge Wiese holds that he sees ".. no legislative grounding for the proposition that the Internet--clearly an electronic medium--may serve as a surrogate for printed publication.

ADVANCED DATA CONCEPTS, INC. V. US, No. 98-495C, June 18, 1998. Judge Weinstein denies intervention, except as an amicus,to awardee in a post-award bid protest case. Judge Weinstein finds that the awardee is not an interested party as it "has not objected to obtaining the award itself, or to performing the contract." Because there is no statute conferring such a right, intervention is also not available under RCFC 24(a) or (b).

RAMCOR SERVICES GROUP, INC. v. US, No. 98-152C, June 24, 1998. In an unusual factual situation, Judge Miller holds that the Court does not have jurisdiction under the "...or any alleged violation of a statute or regulation in connection with a procurement or a proposed procurement..." provision of 28 USC 1491(b)(1). The action before the Court was an EAJA claim for fees resulting from an earlier decision granting a preliminary injunction resulting from the failure of the government to justify the overriding of a stay pursuant to 31 USC 3553(c).

SIPCO SERVICES & MARINE, INC. v. US, No. 92-604C, April 17, 1988. Contract Disputes Act case. Judge Robinson overturns a NASA termination for default with a finding that there was excessive government interference in administrating the contract. COTR who was the primary source of interference, was held to have implied authority to contructively change the contract. Judge Robinson also awarded reasonable attorneys' fees and costs.

PIKES PEAK FAMILIY HOUSING, LLC, v. US, No. 98-147C, April 7, 1998. Pre-award bid protest. Scope of discovery and the administrative record. Judge Gibson allows limited discovery over strenuous objections of government and defendent-intervenor. Interesting discussion of applicability of the Procurement Integrity Act to such disclosure.

INFORMATICS CORPORATION v. US, No. 98-16C, March 18, 1998. Post award protest. Judge Miller finds that the Air Force contracting officer "...acted unreasonably in concluding that plaintiff manifested, through itself or its subcontractor, an unavoidable or unmitigable OCI." Judge Miller enjoined the AF from proceeding with the awarded contract and ordered the AF to evaluate plaintiff's BAFO to determine its eligibility.

FORE SYSTEMS FEDERAL, INC. v. US, No. 97-731C, March 4, 1998. Applicability of protective order to unit pricing information incorrectly revealed by defendant prior to award; FAR 15.507(b)(i); FAR 15.1006; FAR 15.1003; pre-award v. post award.

ALLENFIELD ASSOCIATES v. US, No. 94-1089C, March 2, 1998. Contract; leasehold; landlord/tenant; tenancy at sufferance; breach of contract; taking; choice of law;res judicata; merger/manipulation.

M.A. MORTENSON COMPANY v. US, NOS. 90-390C, 94-321C, February 23, 1998. Government Contracts; Latent Defect; Defective Specifications; Fed. R. Evid. 407.

McDONNELL DOUGLAS CORPORATION AND GENERAL DYNAMICS CORPORATION v. US, No. 91-1204C February 20, 1998. A-12 Case. Termination for Convenience Settlement Claim; Incurred Costs; FAR Part 31; FAR Part 49; Allowability; Reasonableness; Allocability. Judge Hodges awards plaintiffs "$3,877,767,376, plus statutory interest from June 26, 1991 until paid. No costs."

F. LEE BAILEY v. US, No. 96-666C, February 10, 1998. Jurisdiction; Motion to Dismiss; 21 U.S.C. § 853; Contract; Res Judicata; Collateral Estoppel.

ECDC ENVIRONMENTAL, L.C., Plaintiff, v. The UNITED STATES, Defendant. and GREAT LAKES DREDGE & DOCK CO., Intervenor. COFC No. 97-723C. January 30, 1998. Judge Futey finds that the government's rejection of Plaintiff's bid as unresponsive was unreasonable. Plaintiff had submitted an executed back side of a SF 1442, but had failed to submit the front side of the form. Plaintiff claimed that the omission was a clerical error and that it's bid was responsive. Judgment was entered in favor of plaintiff and the Army Corps of Engineers directed to proceed with award under the terms of the solictation.

R.R. DONNELLEY & SONS, CO. v. US, No. 96-784C, January 30, 1998. Judge Miller entered judgment for the government in this case, characterizing the issues as "... 1) whether the contracting officer was arbitrary and capricious in canceling an invitation for bids, thereby entitling plaintiff to bid preparation and related costs; and 2) whether, under an implied-in-fact contract theory, plaintiff may recover its pre-award survey and start-up costs incurred during what plaintiff characterizes as the post-bid proposal negotiation phase." [See related decision at R.R. DONNELLEY & SONS, v. U.S., COFC No. 96-784C, July 28, 1997.]

ALFA LAVAL SEPARATION, INC. v. US and Westfalia Separators, Inc. Intervenor-Defendant COFC No. 97-536C, January 23, 1998. Judge Miller found "a clear violation of an applicable procurement statute and regulation". However, judgment was granted for the government and intervenor as plaintiff failed to demonstrate prejudice as Judge Miller also found that the "price disparity renders it impossible for the court to find prejudice".

HOFFMAN CONSTRUCTION COMPANY OF OREGON v. US, No. 91-1384C, January 16, 1998. Building renovation contract; type I differing site conditions; duty to consult materials referenced in bidding docu ments; patent ambiguity doctrine; contract interpretation; delay and impact claims; critical path method; proof of causation and resultant injury.

WACKENHUT INTERNATIONAL, INC., and WACKENHUT DE GUATEMALA, S.A., A Joint Venture v. US, No. 97-680C, January 13, 1998. Post-award bid protest; statutory preference to United States entities in award of contracts under 22 U.S.C. § 4864; use of affidavits to explain the basis for an award of a contract.

CCL, Inc. v. US COFC No. 97-721C, December 23, 1997. Judge Bruggink finds that the Defense Information Systems Agency (DISA) violated CICA's requirement for full and open competition by a modification to a contract with BDM International which CCL alleged should have been competed. The court held that modification "exceeded the scope of the original BDM contract" and enjoined DISA "from obtaining computer equipment or computer maintenance services for the Denver MegaCenter from BDM under that contract or delivery order." The decision also includes discussion of an "interested party" and "standard of review."

California Federal Bank v.US, and others. Nos. 92-138C, 95-502C, 92-652C, 90-981C, December 22, 1997 Breach of Contract; Supervisory Goodwill; Winstar related cases. While acknowledging that " The Civil Division is led by attorneys who have both courage and honor. ..." Chief Judge Smith states "When the plaintiffs asked the court to hear oral argument on issues applicable to many cases the government opposed the idea, arguing that each case was unique and that the cases did not present common issues conducive to resolution in such a fashion. The recent hearing and briefing in these cases abundantly demonstrate that the government's assertions were and are wrong. They also demonstrate that the fear of the plaintiffs--that the government wants to relitigate the core Winstar liability issues in every case--seems quite justified. This does no credit to the United States."

W & D SHIPS DECK WORKS, INC. v. US COFC No. 97-308C, December 1, 1997. Opinion by Judge Weinstein memorializing a denial of a TRO and a sua sponte order granting judgment for the government after a May 5, 1997 hearing. Judge Weinstein adopts GAO factors and reasoning to determine if plaintiff's proposal was properly excluded from the competitive range. As an aside the decision also notes, for what appears to the first time, that 10 U.S.C. 2305(6)(4)(B) and 41 U.S.C. 253b(d)(2) permits COs to exclude proposals to promote efficient competition by narrowing the field.

REDLAND GENSTAR, INC. v. US COFC No.97-533C, November 7, 1997. Pre-bid protest. Court enjoins the use by the Corps of Engineers of an abrasion test for stone to be used in a dike. Judge Merow found that there was no rational basis for the particular test specified in the solicitation which plaintiff alleged was restrictive.

DELBERT WHEELER CONSTRUCTION, INC. v. US, COFC No. 97-586 C, October 3, 1997. Post-award protest. Court grants government's motion for judgment on the record and denies Plaintiff's motions for a PI and TRO. Court finds that Plaintiff is an "interested party" even though it would have been barred by a statute from receiving the award.

Mike Hooks, Inc. v. US, COFC No. 97-181C, September 26, 1997. Court grants government's motion for summary judgment in this pre-bid protest. After filing and subsequently withdrawing a protest at the GAO, Hooks filed this action on March 20, 1997, requesting preliminary and permanent injunctions. Government agreed to defer the due date for bids, and thus, more than six months later the decision is issued. [Opinion contains more than you may have ever wanted to know about the details of the Corps' dredging of the Mississippi.]

Analytical & Research Technology, Inc. v. US, COFC No.97-380C, published September 18, 1997.[Originally issued August 8, 1997 under a protective order.] Judge Yock denies plaintiff's motion for summary judgment and grants government's motion. This action brought after Analytical & Research Technology, Inc. ("ART") had its protest to the GAO denied. ART alleged that Army failed to conduct meaningful discussions and engaged in disparate treatment when it treated ART differently from the awardee.

Lyons Security Services, Inc. v. US, COFC No. 97-505C, September 16, 1997. Although stating that it does not rule that the "GAO may never base a decision on policy considerations," Judge Hodges found that it was an abuse of discretion for the INS contracting officer to follow the GAO's recommendation to terminate Lyon's contract in this case. According to Judge Hodges, the GAO did not find a violation of statute or regulation, but relied on policy considerations which were not supported by past GAO decisions or other precedent.

Allied Technology Group, Inc., v. U.S. , COFC No. 97-143C, September 12, 1997. Although not adopting GAO timeliness rules, Judge Horn discusses rationale behind rule and denies plaintiff's motion for summary judgment and grants government's and intervenor's motion for summary judgment. Although government prevailed, Navy did not come out of case unscathed as Judge found Navy's "pattern of behavior troubling" and its handling of another issue during the evaluation process to be arbitrary and capricious.

CC DISTIRBUTORS, INC., V. U.S., COFC NO. 97-517C, September 2, 1997. Judge Horn adopts "interested party" definition of 31 U.S.C. 3551(2) in this post award protest. Court found that plaintiff's protest was untimely and dismissed plaintiff's complaint.

Aero Corporation, S.A., v. US COFC No. 97-416C, August 18, 1997. In the opinion on the merits of this bid protest case, Judge Futey grants the government's motion for summary judgment and denies plaintiff's cross motion for summary judgment. Case discusses allegation that government "compared" proposals but finds that even if such occurred it was not prejudicial to plaintiff.

R.R. DONNELLEY & SONS, v. U.S., COFC No. 96-784C, July 28, 1997. Pre-award protest filed on December 16, 1996. Court dismisses one count of plaintiff which court finds is based on promissory estoppel and therefore barred for lack of subject matter jurisdiction. Remaining issues set for trial.

Day and Zimmermann Services v. US, COFC No. 97-90C, July 14, 1997. Judge Gibson grants plaintiffs motion to enjoin award of an Army contract, cancels the awarded contract and requires Army to hold discussions and not award contract until any ensuing BAFOs are fully evaluated. Court was "very troubled" by the Army's egregious and inexcusable conduct, resulting in its failure and/or refusal to properly and timely produce this uniquely-relevant document [not included in administrative record] as required by law, and instead choosing to secrete critical information contained therein ...

Aero Corporation, S.A., v. US , COFC No. 97-416C, July 8, 1997. Court allows limited discovery to develop administrative record in this bid protest case. Judge Futey specifically denies depositions which go to the mental processes of proposed deponents as plaintiff had failed to show bad faith on part of procurement officials.

ATA Defense Industries, Inc. v. US , COFC No. 97-382C, June 27, 1997. This appears to be the first decision under the COFC's new post-award bid protest authority where the court has permanently enjoined the government from proceeding with the subject contract. In this protest of the Army's award of a FSS contract, Judge Andewalt also discusses the definition of an "interested party".

Aero Corporation, S.A., v. US COFC No. 97-416C, June 20, 1997. Judge Futey held that willingness of government to withhold contract award until final resolution of suit precluded findings that bidder would suffer irreparable harm if injunction were not granted, that balance of harms were in its favor, or that public interest would be served through an injunction.

Cubic Applications, Inc. v. US, COFC No. 97-29C, Pub. 1/29/97. In this first decision under the Court's new bid protest authority, the Court discusses administrative record and discovery issues.

Cubic Applications, Inc. v. US, COFC No. 97-29C, Pub. 2/25/97. The Court denies Cubic's motion for summary judgment and grants the Government's motion for summary judgment, thus ending, subject to any appeal, this first case under the Court's new bid protest authority.

CINCOM SYSTEMS, INC. v. US, COFC No. 97-72C, 02/13/97. The Court denies Cincom's motion for a TRO. Judge Futey also notes, that insofar as the merits are decided, that the Court should give due deference to the GAO decision which denied Cincom's protest at the GAO.

Hydro Engineering, Inc. v. U.S., No. 96-564C., March 10, 1997. (Issued under seal on November 16, 1996.) Pre-award protest under Court's old bid protest authority. Court denied request for a TRO and evidenced serious doubt about ability of Hydro to prevail on merits. Some interesting discussion on attorney being denied admission to a protective order.

CINCOM SYSTEMS, INC. v. U.S., No. 97-72C, 04/11/97. (Issued under seal on March 31, 1997.) The Court grants the Government's and Intervenor's motions for summary judgment. Judge Futey also denied the Government's motion to dismiss, finding that plaintiff was an "interested party" and noted that although the term was not defined in 28 U.S.C. 1491 (b)(1), it is the same term used in the statute granting protest jurisdiction to the Comptroller General, 31 U.S.C. 3551(2).

GraphicData v. United States, No. 97-256C, COFC. May 9, 1997. In this post-award protest, the Court granted defendant and Intervenor's Joint Motion for Summary Judgment. (The Court had earlier denied plaintiffs request for a TRO.) Judge Miller found that the 1996 amendments to the Tucker Act did not change the standard of review to be applied to bid protests, nor did the amendment alter the scope of the Court's inquiry. Judge Miller further pointed out that since the allegations of wrongdoing by the Government Printing Office occurred after contract award, that limiting the Court's inquiry to the "administrative record' would preclude the Court from determining whether or not the agency's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

PCI/RCI, A Joint Venture v. The United States. No. 96-575C, COFC. May 14.1997. Judge Miller found that plaintiff was entitled to EAJA attorneys fees in this 1996 pre-award protest.