In a recent Law360 article, I provided insight on the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overruled the long-standing deference afforded to administrative agencies’ interpretations of ambiguous statutes. Although the Loper decision does not directly address government contracts, I noted that it will almost certainly be read to resolve a circuit split under which some circuits have deferred to agencies’ interpretations of ambiguous terms in their own contracts.Continue Reading Impact of Chevron Reversal on Government Contractors
Bleak House Redux: Another Federal Circuit Win in Protracted Protest Litigation
As we previously discussed in a 2019 blog post, since 2018 Bass, Berry & Sims Government Contracts and Litigation attorneys have successfully defended B&O JV in a host of challenges to an 8(a) small business set-aside award by the Federal Law Enforcement Training Center (FLETC). On May 20, 2021, the Federal Circuit gave our client and team yet another win when it denied a request for a rehearing filed by Safeguard Base Operation, LLC, a disappointed offeror that included in the joint venture the prior incumbent.
Over the past three years, we have successfully defended B&O JV against over half a dozen challenges to the award filed by Safeguard. Our team’s undefeated record includes:
- A Small Business Administration size protest.
- Five GAO protests, the last of which resulted in a decision.
- A challenge at the Court of Federal Claims (COFC) to FLETC’s override of Competition in Contracting Act (CICA) stay of the contract award and subsequent appeal to the Federal Circuit.
- A collateral attack on the award in Georgia state court.
- A COFC bid protest that was also appealed to the Federal Circuit.
Safeguard’s primary complaint was that it had been improperly excluded from the competition for failure to include plug numbers provided by FLETC for service work request Contract Line Item Numbers (CLINs). When multiple potential offerors submitted questions about a potential ambiguity, FLETC included the plug numbers in its answers that were incorporated into the RFP in an amendment and instructed offerors to include those amounts in the applicable CLINs. Safeguard, however, did not follow this instruction. Safeguard also alleged that FLETC had breached an implied-in-fact contract to fairly and honestly consider its proposal.Continue Reading Bleak House Redux: Another Federal Circuit Win in Protracted Protest Litigation
Chevron Deference: Should a Government Agency Get to Decide its Own Contract Disputes?
For more than 30 years, courts have deferred to administrative agencies’ interpretation of ambiguous statutes, unless the interpretation is unreasonable. The doctrine is called “Chevron deference” after the decision that established it, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
Recent Case Examines Chevron Deference in Relation to Government Contract Terms
Government contractors routinely face Chevron deference issues in connection with statutes and regulations governing their performance. But should Chevron deference also apply to the terms of a government contract? In other words, should courts defer to an agency’s construction of an ambiguous term in a contract to which the agency is a party? That was the question presented to the U.S. Supreme Court in Scenic America, Inc. v. Department of Transportation, No. 16-739, 583 U.S. ___ (Oct. 16, 2017).
Continue Reading Chevron Deference: Should a Government Agency Get to Decide its Own Contract Disputes?