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Breach Claim Not Barred by FASA's Prohibition of Bid Protests

The Court of Federal Claims asserted Contract Disputes Act jurisdiction over a claim alleging breach of a fair opportunity to compete clause in a multiple-award indefinite-delivery, indefinite-quantity contract because the claim was a breach of contract claim, not a protest of a task order. The contractor sought damages for lost profits, alleging the award of a task order to a competitor breached the fair opportunity provisions of its IDIQ contract and constructively terminated the contract. In its motion to dismiss for lack of jurisdiction, the government argued the breach of contract claim was a "thinly disguised protest" of a task order. The Federal Acquisition Streamlining Act of 1994 generally prohibits protests of the issuance or proposed issuance of a task order, with exceptions not invoked by the contractor (41 USC 253j(d)). The CFC framed the issue as "whether the [CFC] can adjudicate a claim alleging a failure of a statutory, regulatory and contractual obligation, to provide a fair opportunity to compete and be considered for task orders under a contract, in light of [FASA's prohibition of task order protests]." Whether the prohibition applied depended on whether the claim qualified as a breach of contract claim.

Nature of the Claim

The CFC concluded the claim was in the nature of a breach of contract claim and concerned a matter of contract administration. The contractor sought payment of a sum certain of money, a necessary characteristic of a claim, and "not a classic bid protest remedy." In addition, the jurisdictional prerequisites of the CDA and Tucker Act were satisfied. The contractor had submitted a written, certified claim to the contracting officer, whose final decision denied the claim and informed the contractor of its right to file a claim in the CFC. FASA did not limit the court's jurisdiction because it addressed only the protest of task orders, not the breach of master IDIQ contracts. Although the CFC found FASA did not "provide a clear answer to the issues raised," and there was no "direct precedent," the CFC found support in the Armed Services Board of Contract Appeals' recognition of CDA jurisdiction over two appeals asserting breaches of IDIQ contracts (02-2 BCA 31,940, 06-2 BCA 33,374). Finding the contractor's breach claims overlapped with allegations of abuse of discretion and bad faith and allegations concerning fair, equitable, and impartial treatment, the CFC declined to dismiss the related counts even though they were not based on specific contract clauses. (Digital Technologies, Inc. v. U.S., FedCl, 54 CCF 79,233)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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