This briefing covers active market intelligence, regulatory guidelines, and tactical capture recommendations for federal and defense contractors pursuing opportunities in this procurement classification.
Regulatory documents can be contracts: the wetlands mitigation bank example.
For the second time in a year, a wetlands mitigation bank “instrument” executed between a landowner and a federal agency has been held by a court to be a binding contract that could be enforced against the agency when it tried to alter the terms of the instrument to the detriment of the landowner/mitigation bank operator. These rulings demonstrate that regulatory “approval” documents issued by federal agencies can rise to the level of binding contracts where the elements of contract formation are present.
On November 21, 2014, in Pioneer Reserve, LLC v. United States, the U.S. Court of Federal Claims agreed with that Court’s December 2013 ruling in a similar case that a document setting forth the terms and conditions governing Pioneer’s operation of wetland mitigation bank constitutes a contract with the U.S. Army Corps of Engineers, the terms of which the Corps was bound to honor. The mitigation bank instrument executed by the parties provided for hundreds of mitigation credits, but the Corps later unilaterally reduced the number of credits to 16, which Pioneer claims cost it more than $12 million in lost revenues from sale of the mitigation credits. The Court’s ruling allows Pioneer to proceed with its breach of contract claim seeking to recover those damages.
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