DOTBCA Upholds BOP's Refusal to Award Anticipatory Profits in a Termination for Convenience Case
The Department of Transportation Board of Contract Appeals (DOTBCA), which hears appeals for the Federal Prison Industries (UNICOR), recently dismissed a claim for anticipatory profits. The claim was filed after the DOTBCA found that the Bureau of Prisons (BOP) had breached, at common law, a contract with a supplier under bankruptcy protection.
In 1993, UNICOR awarded Carter Industries a contract to supply the government with material which inmates used to fabricate trousers for the Department of Defense. During performance of the contract, Carter began operating as a "debtor in possession" pursuant to a Chapter 11 bankruptcy proceeding. However, UNICOR refused to accept goods from Carter unless the contractor first accepted or rejected the contract in Bankruptcy Court. When Carter refused, UNICOR terminated the contract for default. In the initial appeal challenging the termination, the DOTBCA dismissed the case as untimely, but allowed Carter to proceed on a common law breach of contract claim. The DOTBCA eventually found that UNICOR breached the contract, holding that UNICOR's refusal to accept the goods amounted to anticipatory breach.
Correction Contractors Cannot Rely on E-Mail Answers to Questions Regarding Solicitations
A recent protest before the General Accounting Office (GAO) demonstrates that federal contractors relying upon government generated e-mail responses to questions regarding pre-award solicitations do so at their peril. While the case did not specifically deal with a corrections contractor, the implications apply to all contractors doing business with the federal government, including the Department of Justice.
The protest was brought by Diamond Aircraft Industries who bid on a commercial item acquisition to supply the United States Air Force with aircraft equipment. The solicitation provided for selection of the lowest-cost, technically acceptable bid. As for the standards of technical acceptability, the Air Force stated that it would evaluate the aircraft equipment on a pass/fail basis for its ability to meet minimum requirements. Additionally, award was to be made without discussions.
New Legislation Would Ease Procurement Rules For Anti-Terrorism Goods And Services
Recently, two joint bills were introduced in the U.S. Congress which would make it easier for agencies, like the Department of Justice (DOJ), to purchase goods and services to fight terrorism. The "Federal Emergency Procurement Flexibility Act" (S. 1780, H.R. 3426) would provide "increased flexibility Government wide for the procurement of property and services to facilitate the defense against terrorism, and for other purposes."
Bush Budget for FY 2003 Allocates $30.2 Billion to Department of Justice
President Bush recently submitted to Congress the Administration's Fiscal Year 2003 Budget. Within that budget were several items of interest to correction contractors. The budget included $30.2 billion for the Department of Justice (DOJ), with federal law enforcement programs receiving a 13 percent increase over the FY 2002 Department of Justice Appropriations Act.
In the wake of the attacks on New York and Washington, D.C., the President's budget notes that protecting the county from future terrorist attacks is the first and overriding priority of the DOJ. Accordingly, the budget request includes $2 billion in new program funding to ensure that law enforcement has sufficient resources not only to prevent terrorism, but to bring terrorists to justice.
Supreme Court Decision May Limit ADA Application
On January 8, 2002, the United States Supreme Court issued a unanimous decision in Toyota Motor Mfg. Ky., Inc. v. Williams which may substantially limit the application of the Americans with Disabilities Act (ADA). The Corrections Contractor has received an inquiry as to how the U.S. Supreme Court's recent ruling will affect correction employers.
To summarize, at issue in the Toyota case were the major life activities of working and performing manual tasks. The plaintiff, who suffered from carpal tunnel syndrome, argued that she was limited in performing her work at Toyota because her condition affected her ability to perform the tasks associated with her assembly line job. The Federal Court of Appeals for the Sixth Circuit (which governs Michigan, Ohio, Kentucky and Tennessee) ruled that the plaintiff was "disabled" because her condition precluded her from performing a class of jobs. In reaching this decision, the Court of Appeals limited its analysis to the job-related manual tasks that plaintiff was unable to perform as a result of her condition.
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