2. When Superior and Rainier learned that the USFS intended to override the automatic stay following the protests to GAO discussed in Paragraph 1 above, they engaged Professor Ginsburg to file suit in the Claims Court to restrain the USFS from overriding the stay. The lawsuit was denominated Superior Helicopter, LLC and Rainier Heli-Lift, Inc. V The United States of America, Case No 1:07-cv-518C.Professor Ginsburg and his counsel, Tim Sullivan and Kym Nucci of Thompson Coburn LLP, sought a temporary restraining order (“TRO”) and a preliminary and permanent injunction to restrain the USFS from proceeding with the 34 contracts until GAO would rule on the protest. In addition to the other legal papers which were filed electronically, Professor Ginsburg put on live testimony at the TRO hearing. The testimony was to the effect that the USFS already had all of the available helicopters under contract, although the contracts were “call when needed” (“CWN”) contracts rather than the “exclusive use” contracts which had been awarded for the 34 helicopters.

The Claims Court judge who heard the case, Judge Lettow, said the case for a TRO was a very close one, but the government had not yet filed the administrative record and he did not want to grant a TRO without having the administrative record to review. He also said that if he had the administrative record, and the evidence was the same as at the TRO hearing, and the proceeding before him was for a preliminary injunction, he would probably have granted the injunction to Superior and Rainier.

Judge Lettow then consolidated the preliminary and permanent injunction proceedings into a single proceeding for injunctive and declaratory relief. The hearing on the injunction/declaratory relief took an entire day, with live witnesses from both the helicopter operators and the USFS. At the conclusion of the hearing, Judge Lettow noted that the administrative record did not include a copy of one or more call-when-needed contracts, and he wanted to review CWN contracts before ruling. Thereafter, the Government supplemented the record to add several CWN contracts (including Superior’s and Rainier’s), and all the parties filed post-hearing briefs.

A short while later, Judge Lettow ruled, issuing a 26 page opinion which, among other things, set aside and dissolved the USFS override of the automatic stay and granted judgment for the plaintiffs (Superior and Rainier) on the administrative record.

Following the Court’s ruling, counsel for the USFS approached Professor Ginsburg about a settlement of the two protests. Professor Ginsburg and his clients negotiated with the USFS and then settled with the USFS, as set forth in Section 1, above.

In closing, we note that overturning an agency override of an automatic stay in the Claims Court is a very rare occurrence, even more so in this case where the agency was asserting correctly that there was high fire danger throughout the Western United States and based its override on public safety and the need to protect life and property.
The Court’s opinion was written and analyzed in a Federal Contracts Report (FCR) lead article in Volume 88, No. 10, September 18, 2007. That article can be accessed by clicking on the screen.

3. Defense Services Corp. (“DSC”) ASBCA 50918, 00-2 BCA ¶ 30,991. 

Following a decision by the Armed Services Board of Contract Appeals (“ASBCA”) which granted DSC an equitable adjustment in the contract prices for undisclosed Foreign Military Sales (“FMS”) quantities, Prof. Ginsburg was retained to file a motion for reconsideration and/or appeal to obtain further relief for the Government’s failure to disclose FMS quantities in the solicitation.  Prof. Ginsburg filed a motion for reconsideration and obtained a judgment from the ASBCA granting equitable reformation of the contract prices for undisclosed FMS quantities.  Defense Systems Company, Inc., ASBCA 50918, 01-1 BCA ¶ 31,152.

Following this favorable decision, the parties embarked on an extensive ADR with Judge Peter Ting of the ASBCA.  With Judge Ting’s assistance, the parties settled the case for $6,000,000.

4. GAO Protest No. B-289214, REEP, Inc.

On October 26, 2001, Prof. Ginsburg filed a protest on behalf of REEP, Inc. against an award of a contract by the Defense Intelligence Agency (“DIA”) to another company.  Following the filing of the protest, DIA agreed that REEP’s protest should be sustained.  On November 2, 2001, DIA notified Prof. Ginsburg and the GAO that corrective action will be taken, i.e., to re-evaluate REEP’s proposal along with the awardee’s.

5. GAO Protest No. B-290665.1, REEP, Inc.

In a landmark GAO decision, the Comptroller General ruled that the Army could not order language training from the only company listed on a GSA Federal Supply Schedule (“FSS”) where the contracting officer (“CO”) knew that other qualified companies with lower prices were listed on a different FSS schedule.  The Army had previously promised to take corrective action, but had instead continued to make sole source awards to the single source.  In its decision, the GAO awarded REEP its costs of preparing, filing and prosecuting the protest.  The case is regarded by GAO as an important precedent in that it determined that there are indeed limitations on the use of Federal Supply Schedules and clarified what those limitations are.

6. GAO Protest No. B-295663.4, S.M. Stoller

Professor Ginsburg, along with another law firm, defended against the protest of a contract in excess of $140 million  awarded for cleanup and remediation of the Portsmouth, Ohio Department of Energy site.  Professor Ginsburg brokered an agreement with the Department of Energy and arranged a meeting between the awardee (LATA Parallax Portsmouth, LLC) and the Protestor (Stoller).  After hard bargaining, an agreement was reached, Stoller joined the LATA/Parallax team and the protest was dismissed.

7. IBV Ltd.,GAO Protest No. B-296428, May 24, 2005

Professor Ginsburg filed a protest on behalf of IBV, Ltd., a small disadvantaged service disabled veteran owned business, against award of a contract for janitorial services to a higher-priced offeror, where IBV had been found to be in the competitive range.  Shortly after Professor Ginsburg filed the protest, the contracting officer withdrew the award and agreed to revise the specifications to better express the Government’s needs.  Following the agency’s corrective action, GAO dismissed the protest as moot.

8. Qui Tam Case

Professor Ginsburg was engaged by the law firm, Blank Rome, as an expert witness in a qui tam case brought under the False Claims Act in the Federal District Court for the Southern District of California.  The day before Professor Ginsburg was to leave for California for the trial, the case settled.

9. Richlin Security Service Company v. Rooney, U.S. Court of Appeals for the Federal Circuit 00-1134 Slip. Op. (Fed. Cir. July 2, 2001)

The Department of Transportation Board of Contract Appeals (“DOTBCA”) refused to complete the reformation of two contracts for guard services where Richlin and INS thought the contracts called for Guard I services, but the contracts in fact called for Guard II services. The DOTBCA had refused to complete the reformation until Richlin first paid the affected employees –  - an impossible condition, since Richlin had no funds to make such payments.  Prof. Ginsburg entered into an agreement with the Department of Labor and Richlin, which insured that the employees would be paid in full before any of the funds received from INS would be distributed.  Prof. Ginsburg appealed the decision of the DOTBCA to the Court of Appeals for the Federal Circuit (the “Federal Circuit”).  The Federal Circuit reversed the DOTBCA’s decision and remanded the case to the DOTBCA directing the DOTBCA to complete the reformation and to make payment in accordance with the procedures set forth in the DOL-Richlin-Ginsburg agreement.

10. Freedom NY, Inc., ASBCA 43965, 96-2 BCA ¶ 28,502;
Freedom NY, Inc., ASBCA 43965, 98-1 BCA ¶ 29,382;

Freedom, NY, Inc. (“Freedom”) had a contract with the Defense Logistics Agency (“DLA”) to supply meals ready to eat (“MRE”) for use by troops in the field.  From the beginning of the contract, DLA officials sabotaged Freedom’s performance by, among other things, refusing to pay progress payments in accordance with the parties’ agreement and misrepresenting to potential sources of financing and of automated manufacturing equipment, as to Freedom’s entitlement to progress payments under the contract.  The Government also interfered with Freedom’s suppliers and failed to furnish to Freedom Government-furnished food components, which directly resulted in Freedom’s being unable to complete performance of the contract.  Freedom filed a claim for additional compensation and then negotiated with the Government.  The parties agreed to settle the outstanding claims in return for promises from DLA, among other things, that Freedom would be given additional MRE contracts.  The DLA promises were in a “side letter” which was attached to the modification settling the claim.  Thereafter, DLA extorted from Freedom a signature on another modification by not releasing an approved progress payment until Freedom signed the modification.  The Government then default terminated the contract.  Thereafter, Freedom was removed from the MRE program.  Freedom filed an appeal from the default termination and from DLA’s denial of Freedom’s breach of contract claim with the Armed Services Board of Contract Appeals (“ASBCA”).  The case was litigated by other attorneys.