In Res. Conservation Group, LLC v. US, No. 09-5091, the Federal Circuit dealt with plaintiff's suit against the United States for breach of an implied contract of fair and honest consideration and violation of the APA, seeking recovery of bid preparation costs and fees for the breach, arising from a solicitation of offers to lease government-owned land.
In construing 28 U.S.C. section 1491(b)(1), the new jurisdictional provision enacted by the ADRA, the court concluded that the Court of Federal Claims correctly held that plaintiff's claim does not fall within the jurisdiction under the statute as "procurement contract" is defined as "a government contract with a manufacturer of supplier of goods or machinery or services under the terms of which a sale or service is made to the government."
Thus, relief under 1491(b)(1) is unavailable outside the procurement context, as in this case where the solicitaiton of offers is for lease of government-owned land. However, the Court of Federal Claims did have jurisdiction under section 1491(a)(1) because the implied-in-fact contract jurisdiction in nonprocurement cases that existed prior to 1996 survived the enactment of the ADRA.