This morning the Federal Circuit issued two precedential opinions in government contracts cases, one precedential opinion in a trade case, and one nonprecedential opinion in a Merit Systems Protection Board case. The court also issued six nonprecedential Rule 36 judgments. Here are the introductions to the opinions and the Rule 36 judgments.

Inserso Corp. v. United States (Precedential)

The United States Defense Information Systems Agency (DISA), which is part of the U.S. Department of Defense, awarded contracts to multiple firms that bid for the opportunity to sell information technology services to various federal government agencies. Inserso Corporation unsuccessfully competed to be one of the firms awarded a contract. In an action filed against the United States in the Court of Federal Claims, Inserso alleged that DISA disclosed information to certain other bidders but not Inserso, giving the rival bidders an unfair competitive advantage. The Court of Federal Claims held that DISA’s disclosure did not prejudice Inserso in the competition and on that basis entered judgment in favor of the government. Inserso Corp. v. United States, 142 Fed. Cl. 678 (2019).

We agree that judgment in favor of the government is appropriate, but on a different ground. We conclude that, because Inserso did not object to the solicitation when it was unreasonable to disregard the high likelihood of the disclosure at issue, Inserso forfeited its ability to challenge the solicitation in the Court of Federal Claims. We do not reach the prejudice portion of the court’s decision. We therefore vacate that decision and remand for the court to enter judgment consistent with this opinion.

REYNA, Circuit Judge, dissenting.

The majority decides that appellant’s claims are barred under the Blue & Gold “waiver rule.” This decision rests on shaky, legal ground and cannot stand. First, the validity of the Blue & Gold “waiver rule” is undermined by the reasoning in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 137 S. Ct. 954 (2017). Second, the undermined Blue & Gold “waiver rule” does not apply to appellant’s claims, which arise from latent errors not apparent from the solicitation. Third, the majority decides to bar appellant’s claims under the Blue & Gold “waiver rule” in the first instance. We should not engage in such overreach given that the parties did not brief, and the Claims Court did not discuss, the interplay between Blue & Gold and SCA Hygiene. I respectfully dissent.

Jinko Solar Co. v. United States (Precedential)

The antidumping duty petition culminating in this appeal was filed by SolarWorld Americas, Inc. (“SolarWorld”) concerning certain photovoltaic products imported from the People’s Republic of China (“PRC”). This case arises from a Department of Commerce (“Commerce”) antidumping duty investigation, reported at Certain Crystalline Silicon Photovoltaic Products From the People’s Republic of China, 79 Fed. Reg. 44,399 (Dep’t Commerce July 31, 2014) (“Preliminary Determination”); 79 Fed. Reg. 76,970 (Dep’t Commerce Dec. 23, 2014) (“Final Determination”). Appeal from these determinations was taken to the Court of International Trade (“CIT”), and after two remands the CIT affirmed the rulings of Commerce.

This appeal to the Federal Circuit is directed to two of the issues reviewed by the CIT: first, Commerce’s selection of Harmonized Tariff Schedule (“HTS”) Heading 7604 for valuation of the aluminum frame inputs to the photovoltaic modules; and second, Commerce’s method of offsetting the antidumping duty cash deposit rate to account for export subsidies.

We review Commerce’s rulings on the same standards as applied by the CIT, and give “great weight to the informed opinion of the CIT.” Downhole Pipe & Equip., L.P. v. United States, 776 F.3d 1369, 1374 (Fed. Cir. 2015) (alterations omitted). We now affirm the decisions on appeal.

PROST, Chief Judge, concurring in part.

I join the per curiam opinion in full but write separately because I would affirm the Board’s decision to deny Mr. Oliva damages for lost relocation incentive pay for an additional reason that the per curiam decision does not reach. The record establishes that the lost relocation incentive pay was available, but not guaranteed, to be offered to the selectee of the Associate Medical Director position for which Mr. Oliva applied but was not selected. The Board found that Mr. Oliva failed to prove by preponderant evidence that he would have received this incentive even if he had been selected for the position. J.A. 6–8. Indeed, the only documentary evidence submitted to support Mr. Oliva’s claim, merely shows that the selectee for the position was offered a different incentive, which Mr. Oliva admits would not have been applicable to him. See J.A. 7– 8; J.A. 69; see also Appellant’s Reply Br. 14. On appeal, Mr. Oliva has not identified any additional evidence demonstrating that he would have been offered the relocation incentive if he had been selected for the position. See Appellant’s Op. Br. 21. Without such evidence, for this additional reason, I would affirm the Board’s denial of damages based on lost relocation incentive pay.

Oliva v. United States (Precedential)

Steven J. Oliva appeals a decision of the Court of Federal Claims (“Claims Court”) dismissing his complaint for failure to state a plausible claim for breach of contract damages. We reverse and remand for further proceedings.

Oliva v. Department of Veterans Affairs (Nonprecedential)

Steven J. Oliva appeals a decision by the Merit Systems Protection Board (“Board”). We affirm.

Rule 36 Judgments