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CFC Finds Unreasonable Deviation from Customary Commercial Practices

Client Alert | less than 1 min read | 10.26.11

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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Client Alert | 3 min read | 07.10.26

Federal Circuit Clarifies Application of Blue & Gold: Proposal Submission Deadline, Not Award, is the Operative Time for Filing

In Utech, Inc. v. United States, No. 24-1586 (Fed. Cir. June 24, 2026), the U.S. Court of Appeals for the Federal Circuit clarified that in most cases, a pre-award protest must be filed before the proposal submission deadline to avoid the Blue & Gold waiver rule.  This decision, while nonprecedential, is in line with U.S. Government Accountability Office (GAO) precedent, which has long held that pre-award protests must be filed before the proposal submission deadline....