Top 6 Gov't Contract Cases In 2nd Half Of 2021

Jay Carey and Kayleigh Scalzo’s commentary was featured in Law360 about several important issues the Courts addressed that affected federal contractors in 2021.

Jay commented on the Federal Circuit's decision limiting the timeline of the "Blue & Gold" rule, requiring protesters to timely file certain protest claims or effectively waive them. Jay explained the importance of not extrapolating too far from the specifics of the decision, which was narrowly decided. However, he added that it does provide some further indicia of how the circuit court may come out on other long-standing questions about how it may apply the Blue & Gold doctrine.

Jay said, "I think this decision is at least a signal that the Federal Circuit may be inclined to apply it more narrowly rather than more broadly."

Kayleigh commented on a claims court decision stating that the court can decide, at least in some circumstances, to hear protests over commercial solutions opening acquisitions, a novel type of research and development agreement. Kayleigh described the decision as "noteworthy" in how it juxtaposes an unusual, nontraditional acquisition vehicle with a standard contract award, distinguishing it from similar cases where protesters were unable to establish jurisdiction.

Kayleigh stated, "I imagine the reason for that is that, at least as the opinion described it, the nexus for jurisdiction appears to be pretty straightforward — the fact that, notwithstanding the unique way that the agency ended up with this result, the ultimate award was just a standard [indefinite delivery, indefinite quantity] contract ... In those other cases, the OTA was found to be separate and distinct from a procurement solicitation."