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GAO Rejects Navy’s Blind-Eye Approach to Awardee’s Whitewash of Adverse Performance Information

Client Alert | 1 min read | 12.20.19

In a recent decision, Qi Tech, LLC, GAO sustained (again) a post-award protest challenging the Navy’s technical evaluation and award decision in a “long and contentious” procurement for administrative and clerical support services for the Naval Surface Warfare Center Dahlgren Division. Under the most important factor, the solicitation required the Navy to evaluate offerors’ plans and historical metrics for recruitment and retention of Service Contract Act (SCA) covered personnel. In its earlier evaluation, the agency had assigned a significant weakness for the awardee’s “high turnover rate” of 32% on the incumbent contract, but the agency’s final evaluation removed the significant weakness because the awardee’s final proposal revision “removed all verbiage” related to the incumbent turnover rate and substituted a 17% “average” turnover rate across multiple contracts. GAO found the agency’s evaluation unreasonable where it ignored the known, undisputed, and unchanged historical performance data simply because the awardee removed the language from its proposal.

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Client Alert | 2 min read | 11.14.25

Defining Claim Terms by Implication: Lexicography Lessons from Aortic Innovations LLC v. Edwards Lifesciences Corporation

Claim construction is a key stage of most patent litigations, where the court must decide the meaning of any disputed terms in the patent claims.  Generally, claim terms are given their plain and ordinary meaning except under two circumstances: (1) when the patentee acts as its own lexicographer and sets out a definition for the term; and (2) when the patentee disavows the full scope of the term either in the specification or during prosecution.  Thorner v. Sony Comput. Ent. Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012).  The Federal Circuit’s recent decision in Aortic Innovations LLC v. Edwards Lifesciences Corp. highlights that patentees can act as their own lexicographers through consistent, interchangeable usage of terms across the specification, effectively defining terms by implication....

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