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18-0330
IN THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
DRONE CRUISE ENTERPRISE, INC., Appellant.
v.
Heather Wilson, SECRETARY OF THE AIR FORCE, Appellee.
APPEAL FROM THE UNITED STATES COURT OF FEDERAL CLAIMS IN NO. 18-1184C, JUDGE RANDOLPH
BRIEF FOR THE APPELLANT
CORY CHIPMAN
Trial Attorney
DANIEL RAMISH
Trial Attorney
Attorneys for Appellant
March 18, 2018
Table of Contents
Statement of Related Cases...217
Jurisdiction....................................17
Statement of the Issues..............217
Statement of the Case...............218
I. Nature of the Case...................218
II. Course of Proceedings and Disposition Below....................................220
Summary of the Argument........220
Argument.....................22
I. Standard of Review..222
II. The Court of Federal Claims Properly Applied the Fulford Doctrine to Exercise Jurisdiction to Review the Termination Decision...................22
III. The Court of Federal Claims Erred in Upholding the Default Termination Despite Fatal Substantive and Procedural Deficiencies......224
A. The Termination Decision Was Improper As a Matter of Law Because It Lacked a Proper Basis in Contract Performance..........225
B. Termination Was Improper As a Matter of Law Because the Government Failed to Exercise Discretion in Accordance with Applicable Regulations........227
1. The CO Did Not Consider the Relevant Factors Prescribed in the FAR.........227
2. The CO Did Not Exercise Independent Judgment..................229
3. The CO Did Not Weigh Alternative Actions............................230
4. The CO Did Not Give DCE the Required Opportunity to Cure.......................231
IV. The Court Below Properly Rejected the Government's Claim for the Excess Costs of Reprocurement Because the Government Failed to Mitigate Damages, but Erred in Finding That the Reprocurement Contract Was Sufficiently Similar to the Original Contract...............233
A. The Government Failed to Mitigate Damages by Unreasonably Delaying the Reprocurement......................233
B. The Government Failed to Mitigate Damages by Refusing to Consider DCE's Reprocurement Proposal.....................................235
C. The Reprocurement Contract Was Not Sufficiently Similar to the Original Contract.............236
1. The Reprocurement Contract's Two-Year Pilot's License Requirement Was Material and Substantially Increased Contract Price.............238
2. The Reprocurement Contract's Eight-Hour Maximum ShiftRequirement Was Material and Substantially Increased Contract Price..............239
3. Providing Retention Bonuses Substantially Increased the Performance Costs of the Reprocurement Contract.................239
Conclusion....................240
TABLE OF AUTHORITIES
Cases
Armour of America v. United States, 96 Fed. Cl. 726 (2010) 228
Astro-Space Labs., Inc. v. United States, 470 F.2d 1003 (Ct. Cl. 1972) 234
Atkins N.A., Inc. v. United States, 106 Fed. Cl. 491 (2012) 229
Bass Enters....