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Marcia focuses on Government Contracts and Litigation, advising clients on contract formation, teaming and strategic alliances, contract and subcontract negotiations, performance disputes, audits, terminations, cost accounting and allowability, technical data rights and trade secrets, and fraud/false claims investigations • litigates bid protests and claims and disputes before the GAO, the Boards of Contract Appeals, the Court of Federal Claims, and various other federal and state courts • has handled numerous ADR and mediation proceedings • areas of concentration include aerospace and defense contracts, systems integration, information systems and telecommunications contracts, health care and bio-technology, homeland security contracts, environmental remediation, and research and development contracts.

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Accountant swamped with financial documents

It is not uncommon for litigants in bid protest cases to seek to supplement the administrative record with materials generated by consultants or otherwise not considered by the agency during source selection. Indeed, litigants’ ability to provide supplementation is one of the principal differences between the bid protest forums. GAO’s process is relatively accepting of supplementation; in contrast, the Court of Federal Claims is bound by the Federal Circuit’s 2009 decision in Axiom Resource Management v. US, which permits supplementation only when “the omission of extra-record evidence precludes effective judicial review.”

During the five years since Axiom was decided, a fair number of CFC cases have been decided and articles/blog posts have been written addressing the proper scope of supplementation in CFC bid protest cases. As shown by three CFC decisions issued during the last week, the court’s application of the supplementation standard still appears to lack consistency.

Continue Reading Bid Protest Record Supplementation at the CFC and Difficulties Applying the Federal Circuit’s Axiom Decision

Pursuant to a legislative mandate, the US Department of Defense (DoD) has issued an expansive rule (the Rule) aimed at protecting DoD systems of all types from “counterfeit” and “suspect” electronic parts (all references to “parts” in the following discussion are to electronic parts). The Rule, issued in final form on May 6, 2014, applies

So far this year, the U.S. Court of Appeals for the Federal Circuit has issued opinions in four cases—one per month—involving the implied duty of good faith and fair dealing. The opinions are: Bell/Heery, Metcalf Construction (about which we have previously blogged), Century Exploration, and Lakeshore Engineering. The Federal Circuit obviously

The D.C. Circuit’s recent opinion involving the False Claims Act’s “first-to file” rule is an notable victory for defendants. The holding restricts relators from filing subsequent suits on the same grounds and require them to bring all of the claims that they intend to assert forward in a timely manner. Because of the impact on relators, the issue likely will continue to be litigated and ultimately resolved by the Supreme Court. The False Claims Act’s (FCA) qui tam provisions contain a “first-to-file” bar that provides: “When a person brings an action under [the FCA], no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” On April 11, the D.C. Circuit issued its decision in United States ex rel. Shea v. Cellco Partnership dba Verizon Wireless, addressing the meaning of the term “pending action.” In particular, the court addressed the question of whether the initial action had to be pending at the time the second action is filed. The court answered the question in the negative.
Continue Reading Closely Watched D.C. Circuit Case Clarifies FCA’s “First-To-File” Rule

Capitol_30749MediumOn March 31, 2014, the Armed Services Committees of the Senate and the House of Representatives sent letters to industry associations, the ABA, and other organizations seeking suggestions for reducing the cost of defense procurement. 

A suggestion that could reduce costs for both Government and industry and improve working relationships is to undertake a review of the experience with the mandatory disclosure rule which now has been in place for more than five years. Presumably, both Government and contractors have sufficient experience to identify best practices for compliance, as well as accommodations and changes that could lessen the burden of the rule. A dialog should be possible about aspects of compliance with the rule that consume time and resources, but produce little meaningful benefit.

Continue Reading Mandatory Disclosure Rule: Suggestion for Improvement