Sunday, October 17, 2021

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Public Contracting Institute: Case of the Month 2021

October 5, 2021 @ 2:00 pm – 3:00 pm

PCI’s October 5 edition of the Case of the Month Club will continue to look at cases decided on motions before the U.S. Court of Federal Claims and the Civilian Board of Contract Appeals. Join our expert panelists as they discuss two CDA cases and a bid protest that you will not soon forget.

The first CBCA case is Pernix Serka Joint Venture v. Department of State, CBCA No. 5683, 20-1 BCA ¶ 37589, in which the CBCA dealt with issues of contract delays caused by an Ebola epidemic in Sierra Leone. This is a particularly important decision because there are undoubtedly contractors that have faced similar problems because of Covid 19—they will need to see how important the question “What does the contract say?” will be in determining their likelihood of success on Covid-related claims.

Speaking of Covid 19, the second CBCA decision, MLB Transportation, Inc. v. Department of Veterans Affairs, CBCA No. 7019, 2021 WL 4130790, involved a contractor’s attempt to recoup costs it failed to recover as a result of the decline in business caused by the pandemic. The Government moved to dismiss the contractor’s claim for failure to state a claim—an argument based primarily on the fact that the contract was illusory and therefore unenforceable. The case is a reminder that both parties to a government contract need to ensure that the contract contains the appropriate FAR clauses.

The bid protest decision, Oak Grove Technologies, LLC v. United States, 2021 WL 3627111, contains a long and blistering analysis of the Army’s actions on a major procurement. The court concluded that the Army’s actions undermined the integrity of the procurement process and asked why it should not impose Rule 11 sanctions on the Government for its actions during the litigation. The case is a shocking example of what can happen when senior officials do not properly oversee an aggressive government employee.

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