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Jurisdiction Found Over 85-804 Indemnification Clause Breach Claims

Client Alert | 1 min read | 05.01.06

In an important case of first impression, the Armed Services Board of Contract Appeals in The Boeing Co. (Apr. 12, 2006, http://www.crowell.com/pdf/expertise/govtcontracts/ASBCA_decision.pdf), has held that it has jurisdiction under the Contract Disputes Act to consider claims for the costs of investigation and remediation of ground water pollution and toxic tort litigation under indemnification clauses authorized pursuant to the “residual powers” authority of Public Law 85-804 and 10 U.S.C. § 2354. The Board concluded that Public Law 85-804, 10 U.S.C. § 2354, and statutory and contractual provisions allegedly providing for secretarial and/or congressional approval did not divest the Board of its CDA jurisdiction because, inter alia , acceptance of such arguments would render the indemnification clauses, which were included in prime contracts awarded to Boeing and subcontracts awarded to Lockheed Martin Corporation in the 1960s and 1970s, “illusory.”

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Client Alert | 3 min read | 07.23.26

Protester Beware: Recent GAO Decision Suggests Traditional “Reasonable Possibility” Prejudice Standard May Be Evolving

It is well established that “[c]ompetitive prejudice is an essential element of every viable protest.” Yet, for decades, the U.S. Government Accountability Office (GAO) has tempered this requirement with two critical corollaries: protesters need only demonstrate a “reasonable possibility” that they were prejudiced by an agency’s actions, and GAO “will resolve doubts regarding prejudice in favor of the protester.” These principles have been consistent features of GAO’s bid protest jurisprudence for more than 30 years. See, e.g., United Int’l Eng'g, Inc., B-245448, Jan. 29, 1992, 71 CPD ¶ 177....