U.S. Court of Appeals | The Contracting Education Academy

January 19, 2021 By cs

Government contractors may include restrictive markings on ‘unlimited rights’ data

The U.S. Court of Appeals for the Federal Circuit reversed an Armed Services Board of Contract Appeals (ASBCA) denial of summary judgment and held that a federal contractor may include certain restrictive markings on “unlimited rights” data supplied to the U.S. government.

Boeing entered into two contracts with the U.S. Air Force that required Boeing to deliver technical data to the Air Force with “unlimited rights” pursuant to Defense Federal Acquisition Regulation Supplement 252.227-7013 (-7013 clause).

Boeing marked each technical data deliverable submitted to the Air Force with a legend that described Boeing’s data rights pertaining to third parties. The government rejected Boeing’s technical data deliverables in view of the legend Boeing placed on the data, and Boeing requested a Contracting Officer Final Decision (COFD) regarding the propriety of its marking. The Air Force issued a COFD for each contract, confirming the rejection of technical data marked with Boeing’s legend as a nonconforming marking because it was not in the authorized format pursuant to paragraph (f) of the -7013 clause (Subsection 7013(f)).

Keep reading this article at: https://www.natlawreview.com/article/government-contractors-may-include-restrictive-markings-unlimited-rights-data

Read the Court of Appeals decision here: https://law.justia.com/cases/federal/appellate-courts/cafc/19-2147/19-2147-2020-12-21.html

December 18, 2020 By cs

Court of Appeals issues important decision on application of False Claims Act to set-aside contracts

On December 3, 2020, the United States Court of Appeals for the Second Circuit issued its decision in United States v. Strock, a ruling that will significantly strengthen the hand of the government, and of qui tam whistleblowers, in False Claims Act cases against companies awarded government set-aside contracts but do not meet the requirements of the particular set-aside.

The contracts at issue in Strock were set aside for service-disabled, veteran-owned small businesses (SDVOSBs).

Still, the Court’s reasoning also applies to other types of set-aside contracts, such as small business, women-owned small business, or HUBZone set-asides. This decision should hearten whistleblowers who have information about fraud in government contracting set-aside programs.

The Facts Of United States v. Strock

The government sued Strock Contracting, its owner Lee Strock, and one of Strock’s employees. The government alleged that Strock set up a new company called Veteran Enterprises Company (VECO) to bid on SDVOSB-reserved contracts from the Army, Air Force, and Veterans Administration. Strock, however, was not a disabled veteran. Instead, he recruited another individual, a disabled veteran named Terry Anderson.

Keep reading this article at: https://www.natlawreview.com/article/court-appeals-issues-important-decision-application-false-claims-act-to-set-aside

Read the full decision in this case at: https://www.ca2.uscourts.gov/decisions/isysquery/36dc4bcd-69b0-4890-b0e2-56e98757e39f/3/doc/19-4331_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/36dc4bcd-69b0-4890-b0e2-56e98757e39f/3/hilite/

August 31, 2020 By cs

Government reliance on waiver argument to keep price adjustment windfall fails

The U.S. Court of Appeals for the Federal Circuit has articulated limits to the government’s ability to rely on the waiver doctrine to enforce Federal Acquisition Regulation (FAR) provisions of questionable legality.

In so doing, the court has cast doubt on the government’s “heads we win, tails you lose” approach to measuring the cost impact of simultaneous changes to a contractor’s cost accounting practices.

In The Boeing Company v. United States, 2019-2148 (Aug. 10, 2020), the Federal Circuit rejected the government’s argument that Boeing’s claim — which was based on an apparent conflict between: 1) a statutory provision limiting the costs the government may recover for cost accounting practice changes to the aggregate increased cost to the government, and 2) a FAR provision under which the government’s recovery considers only the changes that increase costs to the government, and disregards changes that decrease costs to the government — was waived because Boeing did not raise the issue prior to contract award.

Background

Contractors covered by the Cost Accounting Standards (CAS) sometimes change their cost accounting practices. They are allowed to do this so long as they disclose the changes and cooperate with the government’s efforts to determine whether, and the extent to which, the changes increase costs to the government. If changes in cost accounting practices do increase the amount charged to the government, the government is entitled to a price adjustment to neutralize the increased costs.

Keep reading this article at: https://governmentcontractsnavigator.com/2020/08/18/government-reliance-on-waiver-argument-to-keep-price-adjustment-windfall-fails/

January 8, 2020 By cs

Time to end Oracle’s long legal fight against JEDI cloud contract, government says

Government attorneys are telling a federal appeals court that it should rule against Oracle in its long-running legal challenge to the Pentagon’s JEDI Cloud contract — partly because some of Oracle’s legal claims are now beside the point.

Oracle is seeking to overturn a lower court ruling that found the Defense Department was on solid legal footing when it structured the multibillion dollar cloud contract. The company claims the Court of Federal Claims made “grave” errors in its ruling, including by brushing aside what Oracle alleges were serious conflicts of interest involving DoD employees and Amazon Web Services.

But in a response the government filed with the appellate court on Dec. 26, attorneys said any alleged improprieties surrounding AWS are now moot because of the Pentagon’s surprise decision in October to pick Microsoft, not Amazon, as the winner of the JEDI contract.

“Indeed, Oracle requested that AWS be eliminated from the JEDI competition, and DoD has effectively granted this relief, albeit for different reasons, by the award to Microsoft,” DoD and Justice Department attorneys wrote in their brief to the Court of Appeals for the Federal Circuit. “Accordingly, the court could not presently grant relief that would redress the alleged errors.”

Keep reading this article at: https://federalnewsnetwork.com/defense-main/2020/01/time-to-end-oracles-long-legal-fight-against-jedi-cloud-contract-government-says/

March 17, 2015 By AMK

Commercial item provisions in Schedule contracts upheld in bid protest appeal

CGI Federal has prevailed in a bid protest fight it took to the U.S. Court of Appeals, and the court’s ruling has implications beyond a single company.

The Professional Services Council filed an amicus brief supporting CGI because the issue dealt with the need for GSA schedules to follow the same commercial item provisions as any other type of government contract.

This sequence of events that raised the issue began in February 2014 when CGI Federal and HealthDataInsights Inc. filed pre-award protests on a Center for Medicaid and Medicare contract to collect overpayment. Both companies were incumbents when CMS released the solicitation for the new contract.

CGI and HealthDataInsights argued that CMS had changed the solicitation in a way that restricts competition and violates current laws and regulations—specifically that it does not follow the commercial practices laid out in part 12 of the Federal Acquisition Regulation.

Keep reading this article at: http://washingtontechnology.com/articles/2015/03/11/appeals-court-psc-win.aspx

The U.S. Court of Appeals for the Federal Circuit reversed an Armed Services Board of Contract Appeals (ASBCA) denial of summary judgment and held that a federal contractor may include certain restrictive markings on “unlimited rights” data supplied to the U.S. government.

The Facts Of United States v. Strock

The U.S. Court of Appeals for the Federal Circuit has articulated limits to the government’s ability to rely on the waiver doctrine to enforce Federal Acquisition Regulation (FAR) provisions of questionable legality.

Background

Government attorneys are telling a federal appeals court that it should rule against Oracle in its long-running legal challenge to the Pentagon’s JEDI Cloud contract — partly because some of Oracle’s legal claims are now beside the point.

Search this Website