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http://www.wifcon.com/pdcg21_1a.htm#cofc

The Court seems to say it has jurisdiction over Federal Assistance, even "Other Transactions." Where does this end ?

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Very interesting case. The key words are as follows:

an action by an interested party objecting to [1] a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or [2] the award of a contract or [3] any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.

The COFC held that the phrase "in connection with a procurement or a proposed procurement" applied only to [3], but not [1] or [2], which is why they would have jurisdiction over the solicitation and award of nonprocurement contracts. However, this interpretation also means that they would not have jurisdiction over any alleged violation of statute or regulation in connection with a nonprocurement action other than what's covered in [1] and [2]. In other words, [3] does not apply to nonprocurement actions.

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  • 6 months later...
The COFC held that the phrase "in connection with a procurement or a proposed procurement" applied only to [3], but not [1] or [2], which is why they would have jurisdiction over the solicitation and award of nonprocurement contracts. However, this interpretation also means that they would not have jurisdiction over any alleged violation of statute or regulation in connection with a nonprocurement action other than what's covered in [1] and [2]. In other words, [3] does not apply to nonprocurement actions.

I though Ozdemir was an interesting case, but it has effectively been superseded by the Federal Circuit Court of Appeals decision, Resource Conservation Group, 597 F.3d 1238 (March 1, 2010). The Federal Circuit rejected the application of the last antecedent rule that Ozdemir applied, but instead found bid protest jurisdiction for non-procurement solicitations under the implied contract of fair dealing theory. So we still have Court of Federal Claims jurisdiction over non-procurement actions, but under 28 USC 1491(a)(1), not under 1491(b )(1). I rather like the application of the last antecedent rule and I am disappointed that the Federal Circuit didn't adopt it.

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I though Ozdemir was an interesting case, but it has effectively been superseded by the Federal Circuit Court of Appeals decision, Resource Conservation Group, 597 F.3d 1238 (March 1, 2010). The Federal Circuit rejected the application of the last antecedent rule that Ozdemir applied, but instead found bid protest jurisdiction for non-procurement solicitations under the implied contract of fair dealing theory. So we still have Court of Federal Claims jurisdiction over non-procurement actions, but under 28 USC 1491(a)(1), not under 1491(b )(1). I rather like the application of the last antecedent rule and I am disappointed that the Federal Circuit didn't adopt it.

Thanks for the update.

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