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CFC Affirms Jurisdiction over Non-Procurement Protests

The Court of Federal Claims determined it had jurisdiction over a protest of the government's refusal to consider a concept paper for research and development funding because, for protests challenging solicitations for a proposed contract or proposed award, the court's jurisdiction is not limited to procurement matters. The government solicited concept papers with the intent to provide funding for promising energy-related technologies. According to the protester, the government wrongfully refused to accept his paper for consideration. The government moved to dismiss, arguing the solicitation did not relate to procurement and therefore the court lacked jurisdiction.

"Last Antecedent"

The Tucker Act grants the CFC jurisdiction over "an action by an interested party objecting to a solicitation by a [f]ederal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement" (28 USC 1491(b)(1)). The parties disputed whether the phrase "in connection with a procurement or a proposed procurement" qualified the entire sentence or only the phrase "any alleged violation of statute or regulation." The "last antecedent" rule supported the latter construction. Whereas a prior decision of the court also reached this conclusion (53 CCF 79,143), the precedent on which the government relied for its interpretation offered only "tenuous" support. The legislative history of section 1491 also confirmed that a procurement nexus is required only for protests alleging violation of a statute or regulation. Since the protest here objected to a solicitation for a proposed contract or proposed award, there was a basis for jurisdiction. There was no merit to the government's argument financial assistance agreements such as grant and cooperative agreements were not "contracts," and even if a "proposed contract" were not at issue, the court would have jurisdiction to hear the protester's objection to a "proposed award." (Ozdemir v. U.S., FedCl, 53 CCF 79,209)




(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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