Tigerswan, Inc. v. United States
110 Fed. Cl. 336
| Fed. Cl. | 2013Background
- TigerSwan won the 6001 security contract in Iraq, which the DOD later terminated for convenience.
- DOD then awarded the 6005 contract to TigerSwan and proceeded with a series of sole-source actions benefiting Aegis.
- Aegis initially received bridge contracts and a final sole-source award after GAO protests and related delays.
- TigerSwan alleged bad-faith manipulation and improper steering of work to Aegis, seeking damages and bid/preparation costs.
- The government moved to dismiss, arguing the termination-for-convenience claims require bad-faith intent and that bid protest claims cannot recover under §1491(b).
- Judgment on the pleadings was granted in part and denied in part, with the court allowing a breach-of-contract claim to proceed while dismissing the bid protest claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether improper termination for convenience can breach contract | TigerSwan alleges abuse of discretion and bad faith in terminations. | Bad faith intent is required to sustain a breach for improper termination. | Plaintiff states a plausible breach based on abuse of discretion/improper motive. |
| Whether bid protest claims under §1491(b) are viable here | TigerSwan seeks bid/proposal costs tied to the canceled procurements and sole-source Aegis award. | Bid protest relief cannot be based on contracts already awarded and terminated; costs are unavailable. | Dismissed; §1491(b) bid protest claims not recoverable in this context. |
| Whether improper termination claims belong under §1491(a) or §1491(b) | Implied duty of good faith/fair dealing supports a breach from termination; separate from bid protests. | Termination issues are controlled under §1491(a) for contract disputes, not §1491(b). | Independently actionable under §1491(a) for improper termination or abuse of discretion. |
| Whether TigerSwan can recover bid/preparation costs for the Aegis sole-source award | Costs arose from the challenged procurements and protest activity. | There were no bid/preparation costs incurred for the sole-source award to Aegis; no relief available. | Claim fails; no recoverable bid/proposal costs. |
Key Cases Cited
- Krygoski Construction Co. v. United States, 94 F.3d 1537 (Fed. Cir. 1996) (improper termination for convenience can breach the contract)
- T & M Distribs., Inc. v. United States, 185 F.3d 1279 (Fed. Cir. 1999) (bad faith or abuse of discretion breach standards)
- Caldwell & Santmyer, Inc. v. Glickman, 55 F.3d 1578 (Fed. Cir. 1995) (contracting officer discretion and improper actions may give rise to breach)
- Centex Corp. v. United States, 395 F.3d 1283 (Fed. Cir. 2005) (implied duty of good faith and fair dealing governs contract performance)
- Scott Timber Co. v. United States, 692 F.3d 1365 (Fed. Cir. 2012) (legitimate contract rights do not violate the duty of good faith)
- In re Bill of Lading Transmission and Processing Sys. Patent Lit., 681 F.3d 1323 (Fed. Cir. 2012) (pleading standards with plausibility review)