Frankel v. United States
2016 U.S. App. LEXIS 21449
| Fed. Cir. | 2016Background
- The FTC ran the “Robocall Challenge,” a prize competition under 15 U.S.C. § 3719 that awarded $50,000 to the top-scoring submission as judged on blocking effectiveness (50%), consumer ease (25%), and practical feasibility (25%).
- Contestants agreed to contest terms including a non-exclusive license to the FTC and a broad release/limitation of liability for the agency.
- Nearly 800 submissions were narrowed to 266 for judging; judges were given broad discretion and told they need not assign numerical scores to every entry.
- The judges focused on filter-as-a-service (FaaS) solutions as frontrunners; Frankel submitted a traceback proposal that was not selected as a frontrunner and was not scored by all judges.
- Frankel sued in the Court of Federal Claims pro se seeking rescoring (injunctive relief under 28 U.S.C. § 1491(b)) and money damages for breach of contract; the trial court dismissed the injunctive claim and granted summary judgment to the government on the breach claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contest contract is a "procurement" giving § 1491(b) bid-protest jurisdiction | Frankel: the contest formed a procurement contract, so he may seek injunctive relief under § 1491(b) | Govt: prize competitions are distinct from procurement contracts under 15 U.S.C. § 3719(p)(2)(B) | Not a procurement contract; no § 1491(b) relief available |
| Whether the contest terms created an enforceable contract between contestant and agency | Frankel: there was a binding contract when he submitted his entry | Govt: does not dispute contract formation; defenses focus on release/limitations and judge discretion | Court: a contract existed but its terms govern relief |
| Whether the judges’ process (not scoring all entries, preferring FaaS) amounted to fraud, gross mistake, or lack of good faith overcoming the liability waiver | Frankel: judges irregularly excluded non-FaaS solutions and failed to apply criteria, amounting to irregularity/gross mistake | Govt: rules granted judges discretion; no evidence of fraud, bad faith, or gross misconduct | Held: judges acted within contest rules; Frankel failed to show fraud, bad faith, or gross mistake |
| Whether the contest release/limitation of liability bars Frankel’s breach claim absent fraud or bad faith | Frankel: contest waiver should not bar relief given alleged irregularities | Govt: waiver bars claims unless plaintiff shows fraud/intentional misconduct/gross mistake | Held: waiver bars the claim because Frankel did not prove fraud or bad faith |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (standards for pleading legal conclusions)
- Prairie Cty., Mont. v. United States, 782 F.3d 685 (Fed. Cir.) (12(b)(6) review de novo)
- Suess v. United States, 535 F.3d 1348 (Fed. Cir.) (summary judgment review de novo)
- Wesleyan Co. v. Harvey, 454 F.3d 1375 (Fed. Cir.) (statutory interpretation of government contract scope)
- Heinzelman v. Sec’y of Health & Human Servs., 681 F.3d 1374 (Fed. Cir.) (statutory construction principles)
- Graham Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280 (use of noscitur a sociis canon)