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Negative Responsibility Determination Overturned

Client Alert | 1 min read | 12.02.10

In Bilfinger Berger AG v. U.S. (Nov. 19, 2010), the CFC found that the Army Corps of Engineers had unreasonably relied on the opinion of an Italian lawyer applying Italian law to disqualify an offeror for when the Corps had failed to describe all the relevant situation to the attorney and issued a preliminary injunction stopping all work under the contract. The case is another example of the little deference that the CFC gives GAO opinions, as the GAO had found in the Corps' favor on the same facts, and Judge Sweeney also joins those on the court who have ruled that the jurisdiction under 1491(a)(1) of the court to consider a breach of the implied-in-fact contract to consider a solicitation fairly and consistently with the solicitation is intact after the addition of bid protest jurisdiction in 1491(b)(1) and the Federal Circuit's decision in Resource Conservation Group earlier this year.

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Client Alert | 5 min read | 08.21.26

FTC Proposes Enforcement Policy Statement on Personalized Pricing: What Businesses Need to Know

On August 19, 2026, the Federal Trade Commission (FTC) announced a proposed Enforcement Policy Statement on personalized pricing — the practice of companies using consumers’ personal data to set individualized prices, discounts, coupons, or other incentives. The proposed statement, which is open for public comment for 30 days following publication in the Federal Register, marks a major step up in the FTC’s focus on data-driven pricing strategies and puts businesses across industries on notice that undisclosed or inadequately disclosed personalized pricing will not be tolerated. Importantly, while the proposed statement is not a binding legal requirement and does not create new legal obligations, it serves as an enforcement warning that the FTC is prepared to use its existing enforcement authority under Section 5 of the FTC Act (Section 5) and is also a potential harbinger of rulemaking. Businesses that engage in — or are considering — personalized pricing should carefully assess their disclosure practices and data collection procedures against the standards articulated in this statement....

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