Monday, March 1, 2021

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Contractor Wins Pyrrhic Victory: Proves Constructive Change but Blows It on Damages; Pacific Coast...

Contractor’s motion for summary judgment on its constructive change claim is granted in part and denied in part. The court found a constructive change because the government forced the contractor to provide more employee hours than required by the contract. Having established a constructive change, however, the contractor offered the legal equivalent of the dry […]
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Contractor that Paid Employee to Essentially Stare at the Wall Unable to Convince ASBCA...

Claim for labor and overhead costs incurred while waiting for resolution of a bid protest is denied. The contractor sought to recover the salary...

Contractor Plausibly Demonstrated U.S. Improperly Transferred Its Property to Iraqi Government Ownership; COFC No....

The government’s motion to dismiss a Fifth Amendment takings claim is denied, where the plaintiff established that it possessed substantial connections with the United States by performing its subcontract in Iraq, submitting to extensive U.S. control of its operations and personnel, and adhering to U.S.  laws and regulations. The court also held the plaintiff plausibly […]
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Government’s Control of a “Holding Account” May Have Turned Subcontractor into a Third Party...

Government’s motion to dismiss subcontractor’s claims for lack of jurisdiction is stayed pending further discovery. The government alleged the COFC lacked jurisdiction because the government was not in privity with the subcontractor. But the prime contractor and government had created a holding account to pay subcontractors. As a result of this account, it was conceivable […]
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Conversion of Termination for Default into Termination for Convenience Terminates ASBCA’s Jurisdiction; Appeal of...

Government’s motion to dismiss for lack of jurisdiction is granted. The contractor appealed a termination for default, requesting that it be converted into a termination for convenience. While the appeal was pending, the parties effectively settled; the agency agreed to convert the termination. Because the conversion resolved the only question on appeal—i.e., conversion of the […]
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Inaccurate Information in Copyright Registration—Even Though Unintentional—Negates Contractor’s Infringement Claim; Bruhn NewTech, Inc. v....

The COFC entered judgment for the government on contractor’s claims for breach of contract and copyright infringement. The contractor alleged the government had breached...

Failure to Understand Licensing Terms Torpedoes Copyright Infringement Suit Against the Navy; Bitmanagement Software...

The COFC found that the Navy did not infringe on a software company’s copyright. The company alleged the Navy had only purchased 38 licenses for a program but copied the program to hundreds of thousands of computers. The COFC ruled, however, that the company had consented to a “floating license” arrangement that authorized multiple copies […]
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Inadvertent Misrepresentation on Availability of Key Personnel Results in Rescission of Award; NetCentrics Corporation...

Protest challenging the rescission of an award due to a misrepresentation concerning the availability of key personnel is denied. After it submitted its initial proposal, one of the protester’s proposed personnel left for another job. The protester did not inform the contracting officer about the departure. Moreover, the protester was unable to prove that the […]
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Government’s Accord and Satisfaction Defense Fails; Meridian Engineering Company v. United States, COFC No....

On remand from the Federal Circuit, contractor’s claim for damages arising from a flood-ravaged worksite is granted. The government contended the flood claim was barred by an accord and satisfaction that arose from the release language in two contract modifications. But those modifications covered other matters, not flood damages. Moreover, the accord and satisfaction defense […]
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COFC Erred in Calculating a “Tax Gross-Up” Awarded to Contractor; Sonoma Apartment Associates v....

Government’s appeal of a COFC judgment awarding contractor a “tax gross-up”—i.e., an offset for taxes due on a damages award—is granted. COFC had awarded the tax gross-up based on calculations from the contractor’s expert. But that expert premised his calculations on an assumption that the contractor’s partners’ income would remain unchanged for 20 years. The […]
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