Month: May 2012

COFC Bid Protect Authority: DOD proposal to make force protestor forum choice

The DOD is requesting Congress to amend COFC bid protest jurisdiction to adopt the same timelines as are applicable to a GAO bid protest. The result is that protestors would then have to choose forums initially. There are certainly pros and cons to this approach, but it is regardless an important develop those with potential interests should follow, and as deemed appropriate enter into the political fray.

The DOD proposal can be found by Clicking Here.


Mechanic’s Lien / Payment Bond Reforms Pending in NC

Since many Virginia contractors also perform work in North Carolina, I thought those that do might be interested in pending reforms to NC’s mechanic’s lien and payment bond statute that were filed today in the state’s General Assembly. Some of these changes are very substantial. A link to the NC General

Assembly web page with the proposed legislative changes follows: S864, Mechanics Liens/Payment Bond Reforms.

COFC held to have exclusive jurisdiction for trade secret misappropriation claim

In a recent, odd decision, the U.S. Court of Appeals for the Fifth Circuit recently ruled that the Court of Federal Claims had exclusive jurisdiction over claims that the Navy had misappropriated trade secrets of a contractor. The decision is United States Marine Inc. v. United States, 5th Cir., No. 11-30177, 5/11/12. While issued as a nonprecedential decision, the holding is of note because of its potential applicability to other claims.

The claimant contractor claimed that the Navy misappropriated its trade secrets by providing them to other prospective contractors, and was awarded $1.5M by the district court. The Fifth Circuit reversed though, holding that the disclosure was in the form of a contractual breach, and so jurisdiction lay exclusively with the COFC. This is despite the fact that one of the claimant contractors did not have a contract with the Navy, and as the dissent therefore noted likely had no ability to assert claim against the Navy for breach of contract.

How this decision may get expanded will be interesting to see, but it clearly creates a bit of a quagmire for prospective plaintiffs seeking recovery for government misappropriation.

Maintaining and Producing Evidence: It really is that important

Most construction projects involve thousands of documents; not only in hard copy, but also as electronically stored information.

Once a case is in litigation, or even anticipated to go that route, it is incumbent upon parties to maintain claim related documentation. But what happens if the information is not maintained? Many things could result. At the least, it is likely that the court will construe the inability to produce the document as being a document that, if produced, would be detrimental to the party that cannot produce it. But a more recent case in Fairfax went even further, and through the defendant’s defensive case out entirely.

Originally the defendant claimed the evidence had been destroyed as part of an office renovation, but it was later determined that this was not true. Once this came before the court, the presiding judge concluded there had been “spoliation” of the evidence, and as a penalty to the defendant precluded the defendant’s entire liability defense case. While intentional spoliation is uncommon, this case illustrates the increasing duties courts are placing on parties to maintain evidence so it can later be produced in discovery, and is a cautionary tale for all.

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