Court of Federal Claims | The Contracting Education Academy

October 16, 2019 By cs

COFC finds no jurisdiction over SpaceX’s OTA protest

The Court of Federal Claims dismissed SpaceX’s OTA bid protest finding that the court lacks subject matter jurisdiction over this OTA protest.

In a recently released decision, the COFC held that the court did not have Tucker Act jurisdiction to resolve a bid protest challenging the award of Other Transaction Agreements (OTAs).

In this case of first impression, SpaceX challenged the Air Force’s award of three OTAs for launch services. SpaceX acknowledged that the Air Force’s prototype OTAs were not “procurement contracts” under the Tucker Act. However, SpaceX noted that, following the government’s investment in the development of launch system prototypes under the OTA, the Air Force plans to procure launch services via a competitive procurement during Phase two of the program. As a result, SpaceX argued that the OTA was awarded “in connection with” the Phase two procurement, and therefore subject to Tucker Act jurisdiction.

The court rejected this argument, finding that the OTA award was not “in connection with a procurement or proposed procurement,” as contemplated by the Tucker Act. The court noted that the OTA and procurement competitions involved separate and distinct solicitations with different acquisition strategies, different start dates, and different goals. The court also noted that the Phase two Procurement will not be limited to the companies awarded the prototype OTAs.

Keep reading this article at: www.mondaq.com/article.asp?articleid=848220

March 1, 2019 By AMK

Pentagon investigating whether Amazon employee tilted JEDI contract

The Defense Department will review whether a former employee—who now works at Amazon Web Services—improperly impacted the integrity of its $10 billion JEDI cloud contract.

The conflict of interest investigation comes approximately one month before the Pentagon was set to award the $10 billion contract—to host, analyze and process swaths of classified and sensitive military data—to one of four competing companies: AWS, Microsoft, IBM or Oracle.

In a partially redacted court filing released Friday in Oracle’s suit against the Defense Department, government lawyers explained their motion to stay—or delay—the case stemmed from “new information” regarding “possible conflicts of interest involving former DoD employee, Deap Ubhi.”

Ubhi worked in the Pentagon’s Defense Digital Service for almost two years in between jobs at Amazon Web Services.

Keep reading this article at: https://www.nextgov.com/it-modernization/2019/02/pentagon-investigating-whether-amazon-employee-tilted-jedi-contract/155118/

July 27, 2018 By AMK

Acquisition reforms survive in Defense authorization bill

Contractors hoping to protect their right to file bid protests got much of what they wanted in the conference report for the fiscal 2019 National Defense Authorization Act, which also contained several provisions to streamline the Pentagon’s acquisitions.

In reconciling the two chambers’ bills, House members accepted a Senate provision to require the Defense secretary to study the frequency and effects of bid protests related to the same contract award filed at both the Government Accountability Office and the Court of Federal Claims.

Some contractors had previously objected to a Pentagon request for curbs on protests some consider “frivolous” by giving companies a deadline for filing a second one. Instead, Defense must conduct the study within 180 days and also establish a data collection system “to better track and analyze bid protest trends in the future,” a joint explanatory statement said. For contracts of less than $100,000, the Pentagon must establish by Dec. 1 an expedited bid protest process.

Keep reading this article at: https://www.govexec.com/contracting/2018/07/acquisition-reforms-survive-defense-authorization-bill/150005

May 23, 2018 By AMK

CFC sustains protest of fifth — yes, fifth — sole-source bridge contract

Non-incumbent awardees who are defending their awards against a bid protest often view sole-source “bridge” contracts issued to the incumbent as something akin to death and taxes — an unpleasant, yet seemingly inescapable fact of life.

But a recent Court of Federal Claims (CFC) decision offers an important reminder that these types of contracts are not inviolate. They can be successfully protested themselves when the need to sole-source arises from a lack of advance planning on the part of the agency.

Global-Dynamics, LLC v. United States, No. 17-1875C, __ Fed. Cl. __, 2018 WL 2016151 (May 1, 2018) has a lengthy procedural history. The Army issued the solicitation in 2012 seeking registered nursing (RN) services for the San Antonio Military Healthcare System. Since then, the agency has made award to protester Global-Dynamics three times; disappointed offeror GiaMed (a joint venture of the incumbent MedTrust and another entity) has successfully protested three times; and the Army has awarded MedTrust five sole-source bridge contracts.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/05/a-bridge-too-far-court-of-federal-claims-sustains-protest-of-fifth-yes-fifth-sole-source-bridge-contract-awarded-to-incumbent-during-protracted-bid-protest-litigation/

May 9, 2017 By AMK

Reinforcing the implied duty of good faith and fair dealing in government contracts

The Court of Federal Claims has ruled that a contractor may continue to litigate its claim for breach of the implied duty of good faith and fair dealing against a federal agency.

Last month, in CanPro Investments Ltd. v. United States, COFC No. 16-268C (April 2017), the Court of Federal Claims (COFC or “Court”) denied the Government’s motion for reconsideration and reaffirmed its prior decision that CanPro Investments Ltd. (CanPro) may continue to litigate its claim for breach of the implied duty of good faith and fair dealing against the General Services Administration (GSA).

CanPro alleged that the Government breached the implied duty by receiving an unreasonable number of visitors at the building it leased from CanPro – and despite their being no specific contractual provision regulating the number of permitted visitors.

This decision is important because it reinforces the implied duty as a mechanism to protect a party’s reasonable expectations arising from a government contract.

In 2012, GSA leased certain office space in Boca Raton, Florida from CanPro for a local Social Security Administration (SSA) office. Although the lease included a release provision under which CanPro waived any claims arising from “the Government’s normal and customary use of the leased premises,” CanPro understood from GSA that visitors to the SSA during “peak times” would not exceed 250 per day. After the SSA’s West Palm Beach location closed, CanPro experienced an “overwhelming amount of visitors” to its Boca Raton building which, in turn, resulted in CanPro incurring significant additional expenses.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2017/05/long-live-reasonableness-reinforcing-the-implied-duty-of-good-faith-and-fair-dealing-in-government-contracts/

The Court of Federal Claims dismissed SpaceX’s OTA bid protest finding that the court lacks subject matter jurisdiction over this OTA protest.

The Defense Department will review whether a former employee—who now works at Amazon Web Services—improperly impacted the integrity of its $10 billion JEDI cloud contract.

Contractors hoping to protect their right to file bid protests got much of what they wanted in the conference report for the fiscal 2019 National Defense Authorization Act, which also contained several provisions to streamline the Pentagon’s acquisitions.

Non-incumbent awardees who are defending their awards against a bid protest often view sole-source “bridge” contracts issued to the incumbent as something akin to death and taxes — an unpleasant, yet seemingly inescapable fact of life.

The Court of Federal Claims has ruled that a contractor may continue to litigate its claim for breach of the implied duty of good faith and fair dealing against a federal agency.

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