Welcome to Jenner & Block’s Government Contracts Legal Round‑Up, a biweekly update on important government contracts developments. This update offers brief summaries of key developments for government contracts legal, compliance, contracting, and business executives.
Protest Cases
Oak Grove Techs., LLC v. United States, No. 23-1124C Fed. Cl. (August 7, 2023)
- Addressing an interesting issue of bid protest procedure, Court of Federal Claims Judge Solomson analyzed whether it is appropriate to impose restrictions on parties who intervene as of right under Court of Federal Claims Rule 24.
- In the latest round of a long-running protest saga, Oak Grove filed a bid protest challenging its exclusion from the competitive range, and F3EA moved to intervene. Oak Grove consented to the intervention in part, but only for the purpose of protecting confidential information and responding to Oak Grove’s claims that directly involved F3EA.
- After surveying the case law, Judge Solomson granted F3EA’s motion to intervene without restriction, explaining that “[w]hile it is true that a district court may place conditions on the terms of a permissive intervention, we do not believe that a court may impose conditions that effectively rewrite the rule[.]”
- Judge Solomson did, however, limit the total pages of briefing that the United States and Intervenor can file in support of their positions.
While intervention is often not disputed in bid protests, litigation over these procedural issues can raise novel issues, which must usually be briefed and decided very quickly. In the event of a dispute, the intervenor will typically seek to intervene as a matter of right and, alternatively, to intervene permissively. As demonstrated in Oak Grove, one practical difference between the two types of intervention is that a permissive intervenor’s participation in the proceedings may be relatively limited in some cases. Even a rightful party, however, may find itself with limited briefing space.
Client Alert
Key Questions Answered about the New US Outbound Investment Regime Targeting China (August 15, 2023)
Our team guides clients through the nuances of President Biden’s executive order that would regulate, for the first time, US outbound investments in key technologies in China that are critical to national security. The requirements would apply to investments in semiconductors and microelectronics, quantum information technologies, and artificial intelligence. By answering 12 questions, the authors clarify how the outbound investment regime will develop and function.
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