July 16, 2020 Public Contract Law Journal

The Sovereign Acts Defense & Agency Deference: The 2019 Dentons "Gilbert A. Cuneo" Government Contracts Moot Court Competition

by Chris Hebdon & Stephanie Villata

Stephanie Villalta is an Attorney-Adviser at the U.S. Department of Energy, Office of the General Counsel for Procurement and Financial Assistance. The views expressed in this Brief are solely those of the author and do not necessarily reflect the opinions of the Department of Energy.

United States Court of Appeals for the Federal Circuit

THE UNITED STATES OF AMERICA,
Appellant
v.
ACB CONSTRUCTION, INC.,
Appellee

APPEAL FROM THE UNITED STATES COURT OF FEDERAL CLAIMS IN NO.18-2994C, SENIOR JUDGE CHAMBERLAIN HALLER

BRIEF FOR THE PLAINTIFF-APPELLEE

Stephanie Villata
Christopher Hebdon
2000 H. Street NW
Washington, D.C. 20052

Attorneys for Plaintiff-Appellee
ACB Construction, Inc.

March 17, 2019

Statement of Jurisdiction

The U.S. Court of Federal Claims had original jurisdiction over the instant dispute pursuant to 41 U.S.C. § 7104(b)(1) (2018) and 28 U.S.C. § 1491(a)(1) (2018) because this is a challenge to a federal agency’s final adverse decision on an express contract to procure services. This Court has jurisdiction over the instant dispute under 28 U.S.C. § 1295(a)(3) because this is an appeal from the U.S. Court of Federal Claims’ final decision. The Appellee filed a timely notice of appeal after the U.S. Court of Federal Claims rendered a final decision on the instant dispute. See Fed. R. App. P. 4(a)(1)(B)(i).

Statement of the Issues

I. Sovereign Acts Doctrine

Whether the agency’s change to the base access policy can be deemed a sovereign act when the contract’s four corners clearly contemplated convict labor use, the agency itself initiated the alleged sovereign act, and the base commander herself characterized the change as “large.”

II. Administrative Procedure Act

Whether the agency’s reinterpretation of the base access policy was arbitrary, capricious, and contrary to a constitutional right where the policy stated the agency would perform a “wants and warrants” check, but without notice, the agency reinterpreted the policy and began performing background checks, thus prohibiting contractor personnel without wants or warrants from accessing the base.

Statement of the Case

On March 2, 2007, the U.S. Air Force (the “Agency”) issued an Invitation for Bids (“IFB”) to construct seven dormitories on Francis E. Warren Air Force Base (“F.E. Warren AFB” or “base”) near Cheyenne, Wyoming. R. at 1–2. The seven dormitories were to serve as “unaccompanied housing” for the Ninetieth Missile Wing. R. at 1.

In response to the IFB, ACB Construction, Inc. (“ACB”), a construction contractor with years of experience working on F.E. Warren AFB, began preparing a comprehensive bid. R. at 2. ACB solicited subcontractor bids for framing and drywall installation in the seven dormitories. R. at 2. ACB selected Sac-O-Suds Construction, Inc. (“SOS”), a subcontractor ACB had worked with in the past, and which had more than twenty years of experience on F.E. Warren AFB. R. at 2, 11. ACB submitted its bid, including SOS’s bid, to the Agency on July 1, 2007. R. at 2. On September 1, 2007, the Agency awarded to ACB contract W2700-07-C-0019 (the “contract”). R. at. 2.

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