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PCI’s March 7 Case of the Month Club program will feature a Contract Disputes Act decision by the Civilian Board of Contract Appeals and a bid protest at the U.S. Court of Federal Claims.   In the CBCA decision, Alan E. Fricke Memorials, Inc.  v. Dept. of Veterans Affairs, CBCA 7352 and 7353, 2023 WL 333761 (Jan. 12, 2023), the board overturned two terminations for cause on the grounds that the Government had not met its burden of proof.  This decision is a good example of how the actions of the parties and their adherence to the formalities of the government contracting regulations can sometimes play a major role in the outcome of a decision, in this case overcoming the documents in the record detailing the contractor’s poor performance.

The bid protest decision, The Logistics Company, Inc. v. United States, 163 Fed. Cl. 542 (2022), involves an incumbent contractor’s challenge to the award of a large logistics-management contract to a competitor on the grounds that (1) the competitor had failed to disclose certain litigation in its history and (2) the C.O.’s determination that that competitor was a responsible prospective contractor was arbitrary, capricious and unreasonable.  The case revolves around disclosure requirements in FAR 52.209-5, “Certification Regarding Responsibility Matters,” and the court’s discussion on this topic is well worth reviewing.  It also serves as a reminder that, for incumbent contractors, protracted protest litigation can be profitable.  Join our experts Tracye Howard and Brian Walsh as they parse these two interesting decisions at our March session.