News

The Committee on Foreign Investment in the United States (“CFIUS”) is a committee chaired by the Secretary of the Treasury that reviews transactions involving acquisitions by foreign persons of U.S. businesses which may raise national security issues.  The recent decision in Ralls Corp. v. Comm. on Foreign Investment in the United States, No. 12-cv-01513 (D.C. Cir.) may require significant changes in the manner in which CFIUS conducts its reviews.

Ralls Corporation is a United States company that is owned by Chinese citizens.  In 2012, Ralls purchased various companies that held wind farm rights in Oregon.  While Ralls did not voluntarily seek CFIUS review, CFIUS initiated its own review of the transaction.  Following that review, the President issued an order denying the transaction and requiring Ralls to sell the assets in question.

Ralls filed suit in the U.S. District Court for the District of Columbia challenging the CFIUS decision and Presidential Order, but that suit was dismissed.  Ralls then appealed to the U.S. Court of Appeals for the D.C. Circuit, arguing that it had been denied constitutional due process during the CFIUS review and subsequent Presidential action. 

The D.C. Circuit overturned the lower court decision, holding that Ralls had been deprived of constitutional due process.  In reaching that decision, the Court held that Ralls possessed a state law property interest in the property it acquired, and that interest was protected by the Fifth Amendment.  The Court noted that Ralls had not received notice of an official action, nor had it had the opportunity to be heard at a meaningful time and in a meaningful manner, including the right to know the factual basis for an action and the opportunity to rebut evidence supporting the action – steps that due process ordinarily requires. 

While the Ralls decision may be appealed to the U.S. Supreme Court, for the time being that decision should alter the CFIUS review process.  Prior to Ralls, parties generally were provided with very little information regarding the review process and the justifications underlying CFIUS decisions.  In light of that ruling, parties may have a greater opportunity to understand the factual basis for any pending decision and, additionally, have the opportunity to rebut evidence supporting the adverse decision.

Moore & Lee was selected as Tier 1 for Construction Law and Construction Litigation in both the National and Washington, DC Metro Area Rankings in the 2015 Edition of the U.S. News & World Report’s Best Law Firms.

Moore & Lee, P.C. is pleased to announce the promotion of Windsor Lanzone to Of Counsel effective September 1, 2014. Ms. Lanzone joined Moore & Lee, P.C. in 2006 after earning her J.D. from Rutgers School of Law – Newark and a B.A. from New York University.  She began her career litigating construction law claims but later found a niche in the Firm’s healthcare section.  Ms. Lanzone’s practice focuses on representing long term care providers as national litigation counsel, managing a variety of claims and lawsuits in federal and state courts throughout the country.  She regularly assists clients with case evaluation, negotiation and resolution as well as risk management services pertaining to claims alleging negligence, abuse, and other matters.

Robert M. Moore and Charlie C.H. Lee were selected by their peers for inclusion in the most recent edition of The Best Lawyers in America in the fields of Construction Law and Litigation – Construction.

President Obama signed the “Fair Play and Safe Workplaces” Executive Order on July 31, 2014, targeting contractor compliance with Federal labor laws.  The Executive Order creates new obligations, both pre- and post- award, on federal contracts for goods and services, including construction, that exceed $500,000. Read More…

Moore & Lee is pleased to welcome Michael Dockins as a summer associate.  Michael, who was formerly a paralegal at Moore & Lee, has just finished his first year at the University of Texas School of Law.

The United States District Court for the Eastern District of Virginia recently determined that the filing of a mechanic’s lien does not waive a party’s right to insist on the satisfaction of contractual conditions precedent to filing suit.  In Dominion Transmission, Inc. v. Precision Pipeline, Inc., 2013 WL 5962939, a contractor and a utility company entered into an agreement for the construction of a pipeline in Pennsylvania and West Virginia. Read More…

It is well established that in a fixed-price contract, the contractor bears the risk that the actual costs of performance may exceed the contract price.  The recent decision in Agility Defense & Government Services, Inc. v. United States highlights the importance of that principle, even in cases where it appears safe to assume that a price adjustment will be granted. Read More…

In a recent opinion, the Federal Circuit limited the federal government’s ability to shift the risk of differing site conditions to a contractor.  In Metcalf Construction Co., Inc. v. United States, 742 F.3d 984 (Fed. Cir. 2014), the government rejected a design-build contractor’s claim for additional compensation arising from the discovery of differing site conditions. Read More…

The GAO’s recent Bid Protest Annual Report to Congress shows that bid protesters have succeeded most often when challenging process-related issues, rather than the reasonableness of the agency’s decision.  The annual report indicates that successful bid protests most commonly addressed: (1) failure to follow solicitation criteria; (2) unequal treatment; (3) inadequate documentation; and (4) unreasonable price and/or cost evaluations.  Read More…