PCI’s May 2 Case of the Month Club will feature two fascinating recent decisions. The bid protest case, Percipient.ai, Inc. v. United States, No. 23-28C, 2023 WL 2819637 (Fed. Cl. Mar. 31, 2023), deals with motions to dismiss filed by the Government and the intervenor in a post-award bid protest case. The plaintiff is a commercial software company that did not actually submit a proposal in the procurement process but filed suit after it concluded that the Government agency had not seriously considered incorporating its commercial software into its program. The agency and the intervenor filed motions to dismiss for lack of subject matter jurisdiction. In a detailed decision that contains some ground-breaking law, the Court of Federal Claims denied the motions and, in the process, let the parties know exactly how it felt about the agency’s actions.
Our CDA case, Dynamic Systems Technology Inc., ASBCA No. 63037, 2023 WL 1862701 (Jan. 26, 2023) involves a claim for reimbursement of over $1 million in connection with a Service Contract Act issue. The opinion was issued after cross motions for summary judgment were filed. The decision contains a detailed analysis of the numerous bases for legal entitlement argued by the appellant, all of which were denied. The case is an excellent example of the risks that a service contractor takes when pricing its proposal to win while knowing that the wage determination issued with the procurement might be incomplete, and should serve as a warning to all service contractors that the SCA regulations can be read to place significant risk on their shoulders. This program will be packed with useful information, and you don’t want to miss it.