Thursday, August 11, 2011
We somehow missed this one when it was fresh, but watching The Daily Show this week we learned of a lovely contracts story. The relevant segment, which will probably go up on the The Daily Show website next week, was Jon Stewart's interview with Mark Adams, author of Turn Right at Machu Picchu: Rediscovering the Lost City One Step at a Time. In the interview, Adams mentions that Hiram Bingham III, the man credited with "discovering" Machu Picchu in 1911, brought back relics from the site which he subsequently donated to Yale University.
As recounted in this article from National Public Radio, the Peruvian government permitted Bingham to take relics back to Yale for study in return for his promise to return them upon demand by Peru. When Peru asked Yale to return its artifacts, Yale at first refused, claiming that the custom at the time of Bingham's discovery was more or less "finders, keepers" and dismissing Bingham's letters acknowledging his agreement with the Peruvian government as non-binding. Peru filed suit in 2008 (here is the complaint), and at the end of last year, the two sides entered into a Memorandum of Understanding.
Under the MOU, the artifacts are to be returned to Peru by the end of 2012. In return for the return of its property, Peru has agreed to build a museum in Cuzco, the ancient Incan capital, to house them and to establish an international center at which scholars from around the world can have access to them.
Tuesday, August 9, 2011
Survivors of and heirs to those killed in the February 2007 crash of a Chinook helicopter in Afghanistan sued the defense contractors (Boeing, Honeywell, Goodrich, and AT Engine Controls), claiming that design and manufacture flaws caused the crash. The District Court dismissed the claims against AT Engine Controls, a British corporation, based on lack of personal jurisdiction. It also granted summary judgment to the U.S. based companies, finding that the federal government contractor defense preempted plaintiffs' claims.
In this opinion filed last week, the Ninth Circuit affirmed the District Court's rulings. According to the court, the government contractor defense "protects government contractors from tort liability that arises as a result of the contractor’s 'compli[ance] with the specifications of a federal government contract.'" In Boyle v. United Technologies Corp., the U.S. Supreme Court set out a three-part test for establishing the defense: “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” The Ninth Circuit provides a full analysis, especially of the first prong, and concludes that the test is satisfied in this case.
Monday, August 8, 2011
On July 13, 2011, the Court of Federal Claims released its opinion in California Industrial Facilities Resources, Inc. v. United States. California Industrial Facilities Resources (CIFR) challenged the award to Alaska Structures, Inc. (AKS) of a sole source contract to build large, tent-like structures used as living quarters for troops in Afghanistan. By the time CIFR's protest was filed, AKS had almost completed the work, and the court refused to enjoin it from completing its task. Nonetheless, the court accepted jurisdiction and ruled in CIFR's favor. The court summarized its reasoning as follows:
In brief summary, the Court finds that this case is not moot because the Government’s violation of statutory competition requirements for the war effort in Afghanistan is capable of repetition, and could again evade review. The challenged actions were too short in duration to be fully litigated prior to completion, and there is a reasonable expectation that the complaining party will be subject to the same actions in the future. Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462-63 (2007); Humane Soc’y v. Clinton, 236 F.3d 1320, 1331 (Fed. Cir. 2001); Ameron, Inc. v. U.S. Army Corps of Engineers, 787 F.2d 875, 880-81 (3d Cir. 1986). The Court has jurisdiction of this matter under 28 U.S.C. § 1491(b) (2006).
On the merits, the Court finds that the Government’s award of a sole source contract to AKS violated the competition requirements in 10 U.S.C. § 2304(e) (2006) and Federal Acquisition Regulation (FAR) 6.302-2(c)(2). Even when confronted with unusual and compelling urgency, the Government still must request offers from as many potential sources as is practicable. The Government was well aware that other sources would have been interested in competing for the contract, but the Government made no effort to contact any source other than AKS. The Government had 26 days between its awareness of the shelter system requirement (April 1, 2011) and the award of the contract to AKS (April 27, 2011), and it easily could have obtained competitive prices from other sources. The Government’s failure to do so was in violation of law.
NOVA SOUTHEASTERN UNIVERSITY, SHEPARD BROAD LAW CENTER in Fort Lauderdale-Davie, Florida seeks applications for two or more full-time tenure-track faculty positions for 2012-2013. The Law Center will consider any qualified candidates, but prefers candidates who are primarily interested in teaching Business Entities and related courses. All candidates should have a J.D. or a degree of equivalent rank, an outstanding academic background, and a clear commitment to scholarship and teaching. Rank and salary will be competitive and commensurate with qualifications and experience. NSU Law Center is committed to a diverse faculty, staff, and student body. Interested candidates should send a resume and cover letter to: firstname.lastname@example.org <mailto:email@example.com> or by U.S. mail to: Professor Debra Moss Curtis, Faculty Appointments Committee Chair, NSU Law Center, 3305 College Avenue, Fort Lauderdale-Davie, FL 33314-7721. NSU is an AA/EOE Smoke-free campus.