Common use of District Courts Clause in Contracts

District Courts. Though the Proposed Regulations purport to streamline the bid protest process and enhance the ability of the parties to the protest to access protest documents, there are a number of unanswered questions with regard to some aspects to the rules, e.g., Under current rules, in order for a protester to obtain the automatic stay of award and/or performance, the protester must file a timely protest early enough so that GAO has at least one day in which to give notice of the protest to the contracting agency. The proposed regulations provide that filing a protest under the EPDS will also electronically cause notice to be provided to the contracting agency. If enacted, this will have the practical effect of allowing a protester to file a protest seeking an automatic stay of award/performance a day later than most are currently filled. The proposed regulation also clarifies the time for filing a protest where there is no solicitation closing date or when no further submissions in response to the solicitation are anticipated. The Proposed Amendments stipulate that, in this situation, a party must file a bid protest within ten (10) days of when the alleged impropriety was known or should have been known. We are, of course, anxious to see what the final regulations will look like, and will notify you what they provide in a future e-blast and/or edition of Legal Briefs. Pre-Violation Notice Insufficient To Meet 60-Day Notice Requirement Under the ESA A recent case was dismissed when a party gave the United States Fish and Wildlife Service (FWS) 60-days’ notice that it was filing suit over a violation that had not yet occurred. When a party files a listing petition for an endangered species, FWS is required to make an initial listing determination within 90 days. If it makes a positive initial determination, FWS must make a final determination within 12 months of the date the petition was filed. Under the Endangered Species Act’s (ESA) notice requirement, a party must give FWS 60-days’ notice before filing suit. In this case, a party filed a listing petition. Over a year later, with no initial or final determination having been issued by FWS, the petitioner gave 60-days’ notice of its intention to file suit against FWS for failing to issue initial and final determinations on its listing petition. Pursuant to the ESA, more than 60 days later, the petitioner filed suit against FWS. During this 60-day waiting period, FWS began issuing initial determinations. The complaint, however, only addressed FWS’s failure to issue final determinations. The question presented to the Court was when a party needs to give notice and can bring suit against FWS for failing to make a final determination on a petition that was pending for over a year. The Court held that the party’s notice was insufficient to warn FWS of a suit over failure to issue final determinations because, at the time the petitioner gave notice, initial determinations had not been issued. Because a positive initial determination is the trigger for FWS’s issuance of a final determination, the Court found that the notice was for a potential future violation. The petitioner should have waited until after initial determinations were issued to provide 60-days’ notice of filing suit. As such, the Court held that the suit was barred. Legal Briefs is published periodically by Xxxxx, Xxxxxx & Xxxxxxx LLP to update developments of interest to those who enter into contracts with the federal government. It is not intended to provide legal advice. Such advice may be given only when related to specific facts. Those desiring further information may contact any of the members of the timber industry practice group in Washington, D.C. at 202-452-2140 or via email: Xxxx X. Xxxxxxx: xxxxxxxxx@xxxxxxxxxxx.xxx Xxxxxxx X. Xxxxxx: xxxxxxxx@xxxxxxxxxxx.xxx

District Courts. Though the Proposed Regulations purport to streamline the bid protest process and enhance the ability of the parties to the protest to access protest documents, there are a number of unanswered questions with regard to some aspects to the rules, e.g., Under current rules, in order for a protester to obtain the automatic stay of award and/or performance, the protester must file a timely protest early enough so that GAO XXX has at least one day in which to give notice of the protest to the contracting agency. The proposed regulations provide that filing a protest under the EPDS will also electronically cause notice to be provided to the contracting agency. If enacted, this will have the practical effect of allowing a protester to file a protest seeking an automatic stay of award/performance a day later than most are currently filled. The proposed regulation also clarifies the time for filing a protest where there is no solicitation closing date or when no further submissions in response to the solicitation are anticipated. The Proposed Amendments stipulate that, in this situation, a party must file a bid protest within ten (10) days of when the alleged impropriety was known or should have been known. We are, of course, anxious to see what the final regulations will look like, and will notify you what they provide in a future e-blast and/or edition of Legal Briefs. Pre-Violation Notice Insufficient To Meet 60-Day Notice Requirement Under the ESA A recent case was dismissed when a party gave the United States Fish and Wildlife Service (FWS) 60-days’ notice that it was filing suit over a violation that had not yet occurred. When a party files a listing petition for an endangered species, FWS is required to make an initial listing determination within 90 days. If it makes a positive initial determination, FWS must make a final determination within 12 months of the date the petition was filed. Under the Endangered Species Act’s (ESA) notice requirement, a party must give FWS 60-days’ notice before filing suit. In this case, a party filed a listing petition. Over a year later, with no initial or final determination having been issued by FWS, the petitioner gave 60-days’ notice of its intention to file suit against FWS for failing to issue initial and final determinations on its listing petition. Pursuant to the ESA, more than 60 days later, the petitioner filed suit against FWS. During this 60-day waiting period, FWS began issuing initial determinations. The complaint, however, only addressed FWS’s failure to issue final determinations. The question presented to the Court was when a party needs to give notice and can bring suit against FWS for failing to make a final determination on a petition that was pending for over a year. The Court held that the party’s notice was insufficient to warn FWS of a suit over failure to issue final determinations because, at the time the petitioner gave notice, initial determinations had not been issued. Because a positive initial determination is the trigger for FWS’s issuance of a final determination, the Court found that the notice was for a potential future violation. The petitioner should have waited until after initial determinations were issued to provide 60-days’ notice of filing suit. As such, the Court held that the suit was barred. Legal Briefs is published periodically by Xxxxx, Xxxxxx & Xxxxxxx LLP to update developments of interest to those who enter into contracts with the federal government. It is not intended to provide legal advice. Such advice may be given only when related to specific facts. Those desiring further information may contact any of the members of the timber industry practice group in Washington, D.C. at 202-452-2140 or via email: Xxxx X. Xxxxxxx: xxxxxxxxx@xxxxxxxxxxx.xxx Xxxxxxx X. Xxxxxx: xxxxxxxx@xxxxxxxxxxx.xxx