"Yardstick" Measures Failure to Progress in A-12 Default Termination
Client Alert | 1 min read | 05.11.07
In the latest opinion in the 16-year A-12 litigation, McDonnell Douglas Corp. v. United States, No. 91-1204C (Fed. Cl. May 3, 2007) the Court of Federal Claims, on remand from the Federal Circuit, upheld default termination of the fixed-price research and development contract based upon a failure to make progress -- even though the full contract "had no completion date at [the time of] termination." With no completion date for the full contract, the Court instead used a "yardstick" to measure the contractors' progress, holding that (1) the Court could use a series of interim deadlines for the production of prototype aircraft to define both the "performance required" and the "time remaining for performance"; and (2) at the time of termination, there was sufficient information available for the contracting officer to have concluded there was no reasonable likelihood of delivery under those deadlines (even if the contracting officer did not, in the event, make the default termination decision based upon that "available" information).
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Client Alert | 4 min read | 08.25.26
DOJ Signals Increased Antitrust Scrutiny of Algorithmic Pricing in Willow Bridge Decision
Algorithmic pricing tools commonly used by businesses to increase efficiency and profits are under increasing antitrust scrutiny. This summer, federal regulators, state attorneys general, and state legislatures grappled with competing businesses providing nonpublic, competitively sensitive data to common algorithmic platforms. The Third Circuit deepened an emerging circuit split with the Ninth Circuit on algorithmic pricing liability, reviving antitrust claims against Atlantic City casino-hotels in a decision with direct implications for any company that uses a common pricing platform. See Crowell’s recent client alert. And New Jersey enacted two landmark laws—the FAIR Act and the Fair Price Protection Act—directly regulating algorithmic rent-setting and surveillance pricing. See Crowell’s recent client alert.
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Recent Court Decision Highlights Effectiveness of “Second Bite” Protests
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