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CFC Finds Unreasonable Deviation from Customary Commercial Practices

October 26, 2011

In U.S. Foodservice, Inc. v. U.S., the Court of Federal Claims, while finding that the Army DLA Troop Support  had demonstrated a rational basis for a number of provisions that deviated from standard commercial terms and conditions in the food service industry, nonetheless enjoined the procurement because the solicitation's Most Favored Customer clause, itself a deviation from customary commercial practices, was an "irrational and unreasonable attempt towards pursuing [DLA's] overall goals of increasing transparency and reducing fraud."  The court explained that the MFC provision was overbroad and would force offerors to submit and certify a price that would include elements that are "completely untethered from ascertainable or predictable knowledge."

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Peter Eyre
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Phone: +1.202.624.2807