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Ervin & Associates v. United States
United States Court of Federal Claims
59 Fed. Cl. 267 (2004)
Ervin & Associates, Inc. (Ervin) (plaintiff) contracted with the United States Department of Housing and Urban Development (HUD) (defendant) to conduct reviews of audited financial statements that were required to be submitted annually to HUD by the owners of HUD-insured loans. Ervin’s role included analyzing the financial statements’ compliance with HUD regulations and developing processes to electronically collect the statements and automate that analysis. Ervin’s contract referred to a standard Rights In Data-General clause (rights clause) that was prescribed by the Federal Acquisition Regulation (FAR) and afforded the federal government virtually unlimited rights in technical data and computer software first produced under a government contract. Ervin’s contract did not include specific language incorporating the rights clause, although other provisions of FAR were explicitly incorporated. Pursuant to FAR, a contractor could negotiate to include certain limitations on the government’s rights and identify data and software that would be restricted under the contract. However, despite being an experienced government contractor, Ervin did not do so when it negotiated the HUD contract. A dispute arose after HUD disclosed data and computer programs that Ervin had created while performing the contract, and which Ervin viewed as proprietary, to Ervin’s competitors. Ervin filed claims with the Office of the Chief Procurement Officer, which the contracting officer denied, and appealed to the United States Court of Federal Claims. Ervin and HUD filed cross-motions for summary judgment.
Rule of Law
Holding and Reasoning (Braden, J.)
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