Rarely does a pro se plaintiff defeat a motion to dismiss at the CFC. However, the CFC recently denied the Government’s motion to dismiss a pro se plaintiff’s breach of contract claim based on the Federal Trade Commission’s (FTC) alleged failure to comply with the rules it established in a contest seeking a solution to the problem of robocalls. The court’s opinion in Frankel v. United States provides a good refresher on basic tenets of contract law: offer and acceptance.
In 2012, the FTC launched its “Robocall Challenge,” in which members of the public could submit “creative innovative solutions that would block illegal robocalls on landlines and mobile phones.” The FTC published 18 pages of detailed rules governing the contest and offered a $50,000 prize.
Mr. Frankel submitted a proposal but did not win. The FTC selected two proposals and awarded each winner $25,000. Mr. Frankel was disappointed and decided to investigate whether the FTC followed its contest rules. He concluded that the Commission had not, and he filed a complaint at the CFC, challenging the decision under the court’s bid protest jurisdiction and alleging a breach of contract. Mr. Frankel seeks damages and an injunction that would require the FTC to rescore the contest. As it does in most pro se cases at the court, DOJ moved to dismiss.
The CFC (Allegra, J.) agreed with the Government that the FTC’s contest was not a procurement action and was not subject to the court’s bid protest jurisdiction. However, the CFC held that it had jurisdiction over the breach of contract claim. The court cited the Restatement (Second) of Contracts for the familiar proposition that “[a]n ‘offer’ is ‘the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.’” In a contest—an offer for a unilateral contract—the participant accepts the offer by competing, and performing the act required to win the contest is the consideration. Thus, the plaintiff has a binding contract with the FTC. The CFC concluded that if the FTC did not follow the contest rules, it breached the contract, and the plaintiff may be entitled to monetary compensation.
Frankel provides a useful refresher in basic contract law and encourages practitioners to think broadly and creatively in terms of what can qualify as a contract.