Case of the Month

Case of the Month Series 2024

Please join our Case of the Month Club, a program in which our expert instructors will take a deep dive into recent decisions involving issues that affect all of us on a regular basis.  This class, meant for contracting professionals, will focus on different cases, going beyond the mere holding into the history, tactics, and significance of the case as a whole.  Whether the cases are bid protests or contract claims, our instructors, all of whom are experienced professionals, will discuss the facts of the cases at hand, the reasons why the cases are important, the strategies that were used, and the lessons that can be learned from them. To maximize your experience, we will send you copies of the cases in advance so that you are primed for the discussion when our program begins.   Sound interesting?  We hope so, and we look forward to having you with us for the start of the series.

Because the Case of the Month Club will look at recent cases based on their importance to Government Contracting, we will set the class’s Topic several weeks prior to the program.  This will help keep the program fresh.

Case of the Month 2024
Second Tuesday of the Month, 12:00-1:00pm ET

• January 9 Ben Holtz Consulting, Inc. dba California Avocados Direct v. Dept. of Agriculture, CBCA No. 7637 (Nov. 17, 2023); and, 4DD Holdings, LLC and T4 Data Group, LLC v. The United States, — Fed.Cl. —-, 2023 WL 8290926 (August 22, 2023)
  
  PCI’s Case of the Month Club will kick off the New Year with the discussion of two important recent Contract Disputes Act decisions. In the first case, Ben Holtz Consulting, Inc. dba California Avocados Direct v. Dept. of Agriculture, CBCA No. 7637 (Nov. 17, 2023), the Civilian Board of Contract Appeals sheds further light on the confusing question of how termination costs are to be calculated under a contract for commercial products.   In the second decision, 4DD Holdings, LLC and T4 Data Group, LLC v. The United States, — Fed.Cl. —-, 2023 WL 8290926 (August 22, 2023), the Court of Federal Claims deals with the calculation of damages flowing from the Government’s infringement of a contractor’s software copyright, a calculation heavily influenced by its finding that the Government tried to hide its infringement by destroying evidence and misrepresenting its actions.   In a world where the Government’s acquisition of commercial products continues to increase each year, and where it has exhibited a voracious appetite for commercial software, these decisions provide important guidance to Government agencies and contractors alike.  Join us on January 9 for PCI’s Case of the Month Club!
• February 13
  Our February 13 Case of the Month Club session will focus on two timely, recent decisions, the first a bid protest, the second a CDA case.  In L3Harris Technologies, Inc., B-422006 et al., Dec. 20, 2023, 2023 CPD ¶ 290, the protester left no stone unturned as it challenged a NASA decision to award a nearly $1 billion contract. Its protest grounds included an improper evaluation, a faulty cost-realism analysis, and the existence of an unmitigable conflict of interest.  In a detailed decision, the GAO denied all of the protest grounds, showing great deference to the agency and its thorough and impressive agency report.   This decision is an excellent example of how an agency should conduct a procurement, even if that procurement has some unexpected twists and turns.   In Strategic Technologies Institute, Inc. v. Secretary of Defense, — F.4th —, 2024 WL 253316 (Fed. Cir. Jan. 24, 2024), the U.S. Court of Appeals for the Federal Circuit addressed a question that should be of great interest to anyone dealing with a cost-reimbursement contract:  When does a claim accrue?  In this case, the contractor had failed to submit its required indirect rate cost proposals after the first two completed years (2008 and 2009) of its Navy contract.  In 2014, when the Government realized it had never seen the proposals for 2008 and 2009, it requested the contractor to submit the proposals, which the contractor did.  In 2018, the Government demanded reimbursement of more than $1 million, including interest and penalties.  The contractor argued that the Government’s request was barred by the six-year statute of limitations, contending that the statute began to run at the time the contractor had missed its filing dates.  The court’s response to that argument is short and instructive, and serves as a reminder that contractors dealing with the U.S. Government must turn square corners.  Please join us on Feb. 13 to hear our experts discuss these two interesting cases!
• March 12

  PCI’s March 12 Case of the Month Club program will feature one bid protest and one CDA case.  The bid protest, Deloitte Consulting, LLP, B-422094, 422094.2, Jan. 18, 2024, 2024 WL 402292, involves an RFQ issued pursuant to FAR Part 8 for a project worth more than $200 million. The protester alleged several violations in the procurement process, but was only sustained on one (which is all you need), the allegation that when the awardee had dropped a key subcontractor from its team to avoid a conflict of interest, the agency did not reevaluate its proposal to assess the impact that the elimination of the subcontractor would have on the proposal. It is difficult to prove that an agency performed an inadequate evaluation of an awardee’s proposal, as is made clear with respect to the protester’s other alleged grounds.  The GAO’s decision is a good case study, however, on just what it takes to win such a protest and, from the Government’s perspective, what will and will not be helpful in defending the agency’s position.    The CDA case, Amentum Services, Inc., ASBCA Nos. 63250, Feb. 6, 2024, 2024 WL 773339, is yet another in a line of cases involving a contractor seeking relief from extra costs incurred as a result of the Covid pandemic.  In a creative approach to the problem, the contractor sought its relief under two paths available under its service contract, several labor-related statutes such as the Service Contract Act and the Fair labor Standards Act, and, in the alternative, the constructive change doctrine.  Were they successful?  Yes and no.   Join our experts Tracye Howard and Brian Walsh as they dissect these two recent decisions—a very valuable program for anyone involved in Government contracting.

• April 9
  PCI’s Case of the Month Club program for April will feature two CDA cases. The first case, MLB Transportation, Inc. v. United States, 2024 WL 1281078 (Fed. Cl. Mar. 25, 2024), involves the always-thorny issue of what a contractor should do when the Government’s estimates are significantly higher than actual needs under an IDIQ contract.  In this case, however, the contractor encounters serious headwinds at the U.S. Court of Federal Claims because of two pesky issues, the statute of limitations and the obligations imposed on a contractor by a patent ambiguity in the contract.  In the second case, JKB Solutions and Services, LLC. V. United States, 2024 WL 1131445 (Fed. Cl. Mar. 15, 2024), is a decision on remand following a Federal Circuit decision that we discussed in January 2022.  This time, the court spends a considerable amount of time attempting to decide whether the contract in question is a commercial item contract, ultimately concluding that it is.  It then focuses on the question of whether a constructive termination for convenience is appropriately used to resolve an alleged breach of contract. Despite the fact that the court concludes that summary judgment is not appropriate on all the issues, the reader is left to wonder whether the small-business contractor now rues the day it ever filed suit.  Join our expert instructors Tracye Howard and Brian Walsh as they discuss these two fascinating cases.   
• May 14
• June 11
• September 10
• October 8
• November 12
• December 10