In the first two parts of this series, we discussed the regulations involved in contracting with the government and the Contract Disputes Act (“CDA”) and the agencies and courts involved in resolving disputes under the CDA. The third part of our series goes back to the earlier Tucker Act and how it applies.
What happened to the Tucker Act? Largely nothing. The Tucker Act was amended in 1996 and provides the COFC with “jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). Further, the Tucker Act still provides that the COFC has “jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a federal agency for bids or proposals for a proposed contract or a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b). Therefore, if a claim is founded on the Constitution or a statute only, instead of a government contract, the Tucker Act would apply. For example, a surety can invoke the jurisdiction of COFC to decide certain claims, including equitable subrogation claims, against the government. Again, there are many hurdles to clear in asserting claim under the Tucker Act so be cognizant of the need to timely raise these claims.