January 11, 2006 LOST PROFITS: Are They Recoverable? When A Contractor/Sub-Contractor Is Not Awarded...

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January 11, 2006 LOST PROFITS: LOST PROFITS: Are They Are They Recoverable? Recoverable? When A Contractor/Sub-Contractor Is When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub- Not Awarded the Contract/Sub- Contract Contract Presented to The NCMA – Cape Canaveral The NCMA – Cape Canaveral Chapter Chapter Presented By Gary Marcus, Esq. Gary Marcus, Esq. 66 North Village Avenue Rockville Centre, NY 11590 (T) 516-764-2800 (F) 516-764-2827

Transcript of January 11, 2006 LOST PROFITS: Are They Recoverable? When A Contractor/Sub-Contractor Is Not Awarded...

Page 1: January 11, 2006 LOST PROFITS: Are They Recoverable? When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract Presented to The NCMA –

January 11, 2006

LOST PROFITS: LOST PROFITS: Are They Are They Recoverable?Recoverable?

When A Contractor/Sub-Contractor Is Not When A Contractor/Sub-Contractor Is Not

Awarded the Contract/Sub-ContractAwarded the Contract/Sub-Contract

Presented to

The NCMA – Cape CanaveralThe NCMA – Cape Canaveral

ChapterChapter

Presented By

Gary Marcus, Esq.Gary Marcus, Esq.

66 North Village Avenue

Rockville Centre, NY 11590

(T) 516-764-2800

(F) 516-764-2827

Page 2: January 11, 2006 LOST PROFITS: Are They Recoverable? When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract Presented to The NCMA –

January 11, 2006The NCMA Cape Canaveral Chapter

Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract

Page 3: January 11, 2006 LOST PROFITS: Are They Recoverable? When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract Presented to The NCMA –

January 11, 2006The NCMA Cape Canaveral Chapter

Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract

IntroductionIntroduction

“Rethinking Lost Profits”

Page 4: January 11, 2006 LOST PROFITS: Are They Recoverable? When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract Presented to The NCMA –

January 11, 2006The NCMA Cape Canaveral Chapter

Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract

Protesting A Contract AwardPrime ContractSub-Contract

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January 11, 2006The NCMA Cape Canaveral Chapter

Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract

Protesting Award Of A Prime Contract – VenuesAgencyGAOUS Court of Federal Claims

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January 11, 2006The NCMA Cape Canaveral Chapter

Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract

Protesting Award Of A Prime Contract – Denial of ReliefLack of StandingLack of Subject Matter Jurisdiction

AntitrustPatent InfringementContractor Responsibility

Override of Stay – Urgent and Compelling NeedLack of Jurisdiction Over Agency

FAAPostal Authority

Page 7: January 11, 2006 LOST PROFITS: Are They Recoverable? When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract Presented to The NCMA –

January 11, 2006The NCMA Cape Canaveral Chapter

Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract

Protesting Award Of A Prime Contract – Relief SoughtStay of Award or Contract PerformanceCancellation of Award and Award to Protestor

Recovery of Bid CostsRecovery of Protest CostsRecovery of Attorney’s FeesRecovery of Lost Profits??

Cancellation of Award and Re-Bid

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January 11, 2006The NCMA Cape Canaveral Chapter

Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract

Protesting Award Of A Sub-ContractBreach of A Teaming AgreementBreach of Implied Contract

Page 9: January 11, 2006 LOST PROFITS: Are They Recoverable? When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract Presented to The NCMA –

January 11, 2006The NCMA Cape Canaveral Chapter

Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract

Protesting Award Of A Sub-Contract – RemediesDamages – Bid CostsInjunctive ReliefLost Profits

Page 10: January 11, 2006 LOST PROFITS: Are They Recoverable? When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract Presented to The NCMA –

January 11, 2006The NCMA Cape Canaveral Chapter

Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract

Lost ProfitsWinstar CasesEnergy Capital Case

Page 11: January 11, 2006 LOST PROFITS: Are They Recoverable? When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract Presented to The NCMA –

January 11, 2006The NCMA Cape Canaveral Chapter

Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract

Lost Profits – Elements

Foreseeability

Reasonable Certainty

Proximate Cause

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January 11, 2006The NCMA Cape Canaveral Chapter

Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract

SummarySummary

Adequacy of Remedies Under Current Law

Balance of the Equities

In Terrorem Effect

Page 13: January 11, 2006 LOST PROFITS: Are They Recoverable? When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract Presented to The NCMA –

January 11, 2006The NCMA Cape Canaveral Chapter

Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract

Questions & Answers

Page 14: January 11, 2006 LOST PROFITS: Are They Recoverable? When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract Presented to The NCMA –

January 11, 2006The NCMA Cape Canaveral Chapter

Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract

66 North Village Avenue

Rockville Centre, NY 11590

(T) 516-764-2800

(F) 516-764-2827

www.goldbergconnolly.com


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