Agency's Preclusionary (And Erroneous) "Revolving Door" Advice Provides Pre-Award Bid Protest Standing
Client Alert | 1 min read | 05.09.08
In The CNA Corporation v. United States (April 30, 2008)
the COFC granted standing to a potential bidder arguing that it would be effectively disqualified from a procurement because a key employee, a former NIH scientist, had received an agency ethics opinion finding applicable the life-long representational ban under criminal statute 18 U.S.C. 207(a)(1), thus precluding her from being assigned to the contract. In finding for the protester, the COFC held that (1) the agency's 15-page legal opinion was wrong because it misapplied the definition of "personal and substantial participation" required to trigger the life-long representational ban, and, further, (2) even if the agency's ethics opinion had been correct as to a representational ban, the scope of prohibited "representation" under the statute was not as broad as the agency's interpretation and the protester would have been able to use the former NIH employee as its principal investigator were it awarded the contract.
Insights
Client Alert | 5 min read | 12.12.25
Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality
On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument.
Client Alert | 8 min read | 12.11.25
Director Squires Revamps the Workings of the U.S. Patent Office
Client Alert | 8 min read | 12.10.25
Creativity You Can Use: CJEU Clarifies Copyright for Applied Art
Client Alert | 4 min read | 12.10.25
Federal Court Strikes Down Interior Order Suspending Wind Energy Development
