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

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Presentation on theme: "January 11, 2006 LOST PROFITS: Are They Recoverable? When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract Presented to The NCMA –"— Presentation transcript:

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 – Cape Canaveral Chapter Presented By Gary Marcus, Esq. 66 North Village Avenue Rockville Centre, NY 11590 (T) 516-764-2800 (F) 516-764-2827

2 The NCMA Cape Canaveral Chapter Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract January 11, 2006

3 The NCMA Cape Canaveral Chapter Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract January 11, 2006 Introduction  “Rethinking Lost Profits”

4 The NCMA Cape Canaveral Chapter Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract January 11, 2006  Protesting A Contract Award Prime Contract Sub-Contract

5 The NCMA Cape Canaveral Chapter Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract January 11, 2006  Protesting Award Of A Prime Contract – Venues Agency GAO US Court of Federal Claims

6 The NCMA Cape Canaveral Chapter Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract January 11, 2006  Protesting Award Of A Prime Contract – Denial of Relief Lack of Standing Lack of Subject Matter Jurisdiction  Antitrust  Patent Infringement  Contractor Responsibility Override of Stay – Urgent and Compelling Need Lack of Jurisdiction Over Agency  FAA  Postal Authority

7 The NCMA Cape Canaveral Chapter Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract January 11, 2006  Protesting Award Of A Prime Contract – Relief Sought Stay of Award or Contract Performance Cancellation of Award and Award to Protestor Recovery of Bid Costs Recovery of Protest Costs Recovery of Attorney’s Fees Recovery of Lost Profits?? Cancellation of Award and Re-Bid

8 The NCMA Cape Canaveral Chapter Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract January 11, 2006  Protesting Award Of A Sub-Contract Breach of A Teaming Agreement Breach of Implied Contract

9 The NCMA Cape Canaveral Chapter Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract January 11, 2006  Protesting Award Of A Sub-Contract – Remedies Damages – Bid Costs Injunctive Relief Lost Profits

10 The NCMA Cape Canaveral Chapter Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract January 11, 2006  Lost Profits Winstar Cases Energy Capital Case

11 The NCMA Cape Canaveral Chapter Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract January 11, 2006  Lost Profits – Elements Foreseeability Reasonable Certainty Proximate Cause

12 The NCMA Cape Canaveral Chapter Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract January 11, 2006 Summary  Adequacy of Remedies Under Current Law  Balance of the Equities  In Terrorem Effect

13 The NCMA Cape Canaveral Chapter Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract January 11, 2006  Questions & Answers

14 The NCMA Cape Canaveral Chapter Lost Profits: When A Contractor/Sub-Contractor Is Not Awarded the Contract/Sub-Contract January 11, 2006 66 North Village Avenue Rockville Centre, NY 11590 (T) 516-764-2800 (F) 516-764-2827 www.goldbergconnolly.com

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