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2010 Procurement Review--Contract Disputes

 



 

Boards of Contract Appeals (ASBCA, CBCA, PSBCA, and GAOCAB)

Jurisdiction/Standing/Timeliness/Contract Disputes Act (CDA) Issues    

Definition of Claim

In Hanley Industries, the ASBCA decided that a letter from the Contracting Officer revoking acceptance of items under the "Inspection" clause and reserving the Government's right to quantify the amount it associated with this action at a later date was not a CDA claim and, therefore, could not be appealed by the contractor.

In G & R Service Co. , the CBCA dismissed an appeal for lack of jurisdiction because the underlying demands for "not-to-exceed" amounts did not constitute a CDA claim for a sum certain.

In The Minesen Co., the ASBCA dismissed an appeal because the agency's allegedly continuing failure to cure an alleged breach at issue in another pending appeal did not create new claim that could be appealed separately.

In J. P. Donovan Construction., the ASBCA dismissed the entire claim as lacking a sum certain because the contractor stated it would be adding an approximate amount of G&A expenses onto its subcontractor's sum certain claim.

In Northrop Grumman Systems Corp, Space Systems Division, the ASBCA held that (i) an alternative legal theory first raised in post-hearing briefs but based on the same operative facts as the theory in original claim was not a new claim; (ii) it lacked jurisdiction over an "improper exercise of option" claim because that claim was not encompassed by the claim submitted to the Contracting Officer; and (iii) a portion of an appeal involving allegations not stated in a sum certain was severable from the remainder of claim and, therefore, did not require dismissal of the entire claim. 

In Parsons Global Services, the ASBCA dismissed the appeal for lack of CDA jurisdiction because the contractor had omitted all the normal steps for determining (and invoicing the Government for) its subcontractor's indirect costs, and, therefore, Government had never been in a position to dispute any of these costs.

Submission of Claim to Contracting Officer

Todd Pacific Shipyards discusses the standards for CDA jurisdiction over "new" and revised claims not yet presented to a Contracting Officer for decision.

On reconsideration in Wimberly, Allison, Tong & Goo, the ASBCA affirmed its decision to dismiss a government claim when the Contracting Officer rescinded his decision after an appeal had been filed; the Board reasoned that the government claim was not for a sum certain and, therefore, that the Board lacked CDA jurisdiction.

Several claims by Guy W. Parker d/b/a Parker International were dismissed/denied for various reasons: res judicata on a claim related to the Contracting Officer's authority; the fact that another claim had not been submitted to the Contracting Officer for a decision; and a lack of evidence or any contractual basis for claims related to government property.

In Starwin Industries, the ASBCA decided it lacked jurisdiction over the quantum portion of an appeal from a default termination because no quantum claim had been submitted to the Contracting Officer for a decision.

In Ron Anderson Construction Co., the CBCA denied the Government's motion to dismiss the contractor's appeals for lack of subject matter jurisdiction. The Board concluded from the "totality of the circumstances" that a request for a decision by the Contracting Officer was implied in the contractor's original cost proposals.

In Walsh/Davis Joint Venture, the CBCA denied the Government's motion to reconsider the Board's earlier decision refusing to dismiss a claim for lack of jurisdiction. The Government argued that it had not been presented to the Contracting Officer for a decision. The Board concluded it was based on the same operative facts as a claim that had been.

In Nova Group, the ASBCA concluded it lacked jurisdiction to enforce unilateral modifications the Government  had issued to recoup amounts paid to the contractor because those mods were not the subject of the contractor's claims or a Contracting Officer's decision.

In Macrosystems, the CBCA dismissed an appeal for lack of CDA jurisdiction because the contractor did not file a claim following a termination for convenience.

In Shaw Environmental, Inc., the ASBCA struck allegations from the contractor's complaint that were not part of its original claim to the Contracting Officer.

Statute of Limitations

Todd Pacific Shipyards discusses the time when a claim accrues for purposes of CDA jurisdiction. In Bernard Cap Co., the ASBCA dismissed several claims as time barred.

In JRS Management, the ASBCA held that laches barred a contractor's claim even though the CDA's statute of limitations was not applicable.

In Systems Development Corp., the Board dismissed a claim as barred by the CDA's statute of limitations because it "accrued" more than six years before it was submitted to the Contracting Officer for a decision.

In Cardinal Maintenance Service, the ASBCA dismissed the portions of the contractor's claims time barred by the CDA's six-year statute of limitations.

Jurisdiction

In Versar, Inc., the ASBCA held it (i) lacked jurisdiction to decide the contractor's request that Board order specific performance (i.e., that the Government rescind a "red" performance rating) but (ii) had jurisdiction to decide whether the rating was appropriate.

In Smoke Blotter, the ASBCA held it lacked CDA jurisdiction over a contractor's protest of the issuance of a delivery order to its competitor.

In Colonna's Shipyard, the ASBCA distinguished what it cannot do (grant a request for specific performance or injunctive relief, e.g., by ordering the Government to change a contractor's performance rating) from what it can do (determine whether a particular performance rating breached a contract requirement or provision).

In Pearson E. Dubar, which the CBCA described as nonprecedential, the CBCA dismissed an appeal for lack of jurisdiction because there was no underlying contract--oral assurances by a government official who was not a Contracting Officer did not create a contract.

In Eyak Technology, the CBCA denied DHS' motion to dismiss an appeal for lack of jurisdiction. The Government had relied on the fact that the complaint requested, inter alia, specific performance and injunctive relief. The Board replied: "DHS neglects to refer to Eyak�s prayer for damages resulting from DHS�s actions. We may grant or deny Eyak�s request for an equitable adjustment to the contract resulting from DHS�s actions in this matter. While this alone provides a basis to deny DHS�s motion, we note that we are not limited to granting only the relief sought in the complaint. . . . .In reaching the decision on damages, the Board is likely to interpret the contract and determine the validity of the three contract modifications in issue. The net effect of a favorable determination for Eyak could well provide the relief that Eyak desires. The failure of Eyak to properly articulate the remedy available from the Board does not deprive us of jurisdiction over this matter."

In Rockies Express Pipeline, the CBCA held that a duly executed "Precedent Agreement" (in which the Government agreed to execute transportation contracts with the contractor if the contractor  would build a pipeline) was a contract within the meaning of the CDA. The Board also found that a Disputes clause purporting to give exclusive jurisdiction in federal district court "to the fullest extent allowed by law" must give way to the CDA's choice of forums.

The ASBCA dismissed Sygnetics' appeal for lack of CDA jurisdiction because the original certification was not signed. In Western Plains Disposal, however, the Board denied a government motion to dismiss an appeal for lack of jurisdiction because the Board found that submission of a Certification of Current Cost of Pricing Data instead of a CDA certification was a correctable error.

In Inchcape Shipping Services, the ASBCA analyzed whether the claims before it involved maritime contracts, and, therefore, admiralty jurisdiction.

In A. Montano Electrical Contractor, the ASBCA held it lacked CDA jurisdiction over a direct claim by a subcontractor for monies allegedly owed it by its prime contractor where the sub's claim was not sponsored by the prime or a surety.

In Utility Construction Co., the ASBCA held that a claim, which stated the amount being claimed, satisfied the CDA requirement for a sum certain, even though the Government complained it could not ascertain how the delay portion of the claim had been calculated.

In MAC International FZE, the ASBCA held it lacked CDA jurisdiction over claims for payment pursuant to orders under an ID/IQ contract between the contractor and Coalition Provisional Authority ("CPA"), funded with Iraqi funds, for delivery of vehicles because the CPA was not U.S. government agency subject to the CDA.

In Kellogg Brown & Root Services, the ASBCA denied a government motion to dismiss (for lack of subject matter jurisdiction under CDA) a claim for unpaid invoices on a contract unilaterally transferred by the Corps of Engineers to the Interim Iraqi Government and thereafter funded by Development Fund for Iraq funds, which are nonappropriated funds. The Board was forced to look to the Restatement of Contracts for guidance concerning assignments and delegations since neither the Anti-Assignment Act nor any other similar federal law covers a government transfer of a contract.

In Lockheed Martin Aspen Med Services, the CBCA held it had CDA jurisdiction over an appeal from a denial of a claim filed by one member of a Contractor Team Arrangement because, according to the solicitation's terms, each team member was in privity of contract with the Government. (Note--this will not be the result under most teaming agreements).

The ASBCA dismissed an appeal by Tefirom Insaat Enerji Sanayi ve Ticaret A.S. because the contractor failed to provide a CDA certification.

In Kelly-Ryan, the ASBCA denied the Government's motion to dismiss as premature (or, alternatively to stay proceedings concerning) an appeal from a deemed denial of a $36 million claim of more than 3,500 pages after the Contracting Officer had informed the contractor that a decision would require a year from the time the claim was originally submitted. The Board found that time period to be unreasonable; I'm not so sure. 

In C.E.M.E.S. S.p.A. , the ASBCA dismissed an appeal for lack of a CDA certification. 

Costs and Cost Accounting Standards (CAS)

Medtek lost its appeal at the CBCA because it failed to offer relevant evidence to prove any of its three areas of claimed costs: extra construction costs; lost profits; and attorneys fees.

In The Boeing Co., the CBCA held that the contractor was not entitled to recover its "common costs" of a defense against a False Claims Act suit, i.e., those costs attributable to both the successful and unsuccessful portions of its defense.

Changes/Constructive Changes/Contract Interpretation/Breach/Authority

In American Ordnance, the ASBCA found the Government responsible for excusable and compensable delays resulting from (i) defective specifications; (ii) withholding of superior knowledge; and (iii) breach of the implied duties of cooperation and noninterference. The Board found that (i) the Government's technical data package was seriously defective, (ii) the Government failed to communicate its superior knowledge of the problems to the contractor; (iii) the contractor did not assume the risk of these issues by, inter alia, entering a fixed-price contract; and (iv) the Government compounded the problem by its improper administration of contract performance as these issues came to light.  

In HMRTECH2, LLC, the ASBCA held that a contractor's graduation from the 8(a) program did not give the Government the right to deny the contractor a fair opportunity to continue to compete for further task orders for the duration of a multiple-award schedule contract.

In Solid State Electronics Corp., the ASBCA denied a contractor's claim for costs of expedited delivery because government employee who requested it did not have authority to change the contract.

In the Dixie Construction Co., the contractor had a requirements contract, which included the standard "Order Limitations" clause (FAR 52.216-19). That clause provided, inter alia, that the contractor was not required to accept an order in excess of $500,000 (paragraph (b)) and that the Government was not required to order part of a requirement from the contractor if the whole requirement was more than $500,000 (paragraph (c)). The Government had placed several orders in excess of $500,000 with the contractor under both the predecessor contract and the current contract (and the contractor routinely had accepted such orders). The contractor filed a breach claim when the Government ordered one such large job from another firm without giving the contractor a shot at accepting  it. The Board granted summary judgment in favor of the Government, reasoning that paragraph (c) of the "Order Limitations" clause meant the Government was free to bypass the contractor for any order exceeding $500,000. I would have thought that, read together (and in the contexts of (i) a requirements contract and (ii) the course of dealing between these parties), paragraphs (b) and (c) meant that the Government should have offered the contractor a shot at the above-$500,000 order and, then, if the contractor had refused the order, the Government would not have been bound to break the order into smaller pieces for him. 

In PGDC/Teng, Joint Venture, the ASBCA granted the Government's motion to dismiss the contractor's claim for contract reformation because there was no basis for its theories of (i) breach of a duty to disclose superior knowledge, (ii) mutual mistake, or (iii) unilateral mistake.

In Sigal Construction Corp., the CBCA granted the contractor's motion for summary judgment only as to entitlement, finding the contractor entitled to recover lost profits when, after award, Government did not provide it with all the contractually required unit-priced work but, instead, sought a better price from another contractor. The Board wrote in part: "The parties agree that by precluding Sigal from performing some of the unit price work, GSA constructively terminated for convenience a portion of the contract. One of the few limitations on the Government�s right to terminate for convenience is that the Government may not terminate simply to get a better price for performing needed work. [citation omitted] That is what GSA did here. It was a breach of the contract."

In Qatar International Trading Co., the ASBCA denied the contractor's claim for fraudulent phone charges on illegal clones of satellite phones the contractor had provided to the Government.

In DWBH Services, the ASBCA denied a claim that maintaining lawns in areas where housing was demolished during contract performance was outside the scope of the contract.

In Global Ship Systems, the CBCA dismissed an appeal because the Government fulfilled terms of a settlement agreement even though it applied amount owed to contractor to offset the contractor's debt on another contract.

In denying the Government's motion for summary judgment in ALK Services, the CBCA noted that ordering the minimum quantity in an ID/IQ contract does not automatically insulate the Government from a claim of breach of the covenant of good faith and fair dealing for failure to  consider the contractor  for additional work.

In United Healthcare Partners, the ASBCA held that, despite the fact that a solicitation was labeled as an "RFQ," repeated and clear language in the document indicated the requested quote would become part of a bilateral contract. The Board noted that the Government's contrary view would result in an unreasonable interpretation that would permit it to order a significant number of increased services for free.

In Northrop Grumman Systems Corp, Space Systems Division, the ASBCA found that no government actions or inactions (including remaining silent and nodding during the contractor's presentation and shaking hands with him afterwards) created a binding contract.

Nova Group lost its ASBCA appeals of (i) its Type I and Type II Differing Site Conditions claims due to insufficient evidence and (ii) its delay claim because it did not comply with a contract requirement to present a CPM analysis to support it.

In  Charleston Marine Containers, the CBCA granted the contractor summary relief based on its interpretation of FAR 52.247-64 ("Preference for Privately-Owned, U.S.-Flag Commercial Vessels") and DFARS 252.247-7023 ("Transportation of Supplies by Sea") because neither of those clauses nor anything else in the contract mentioned the possibility that the contractor would be required to use Priority Two (P2) service, which is what the Government had demanded of it.

In Shawview Cleaners , the ASBCA held that the contractor was not entitled to rely on alleged representations by government employees that the wage determination attached to contract was just a suggestion and not mandatory.

In Thorington Electrical and Construction Co., the ASBCA granted the Government's motion for summary judgment because an unambiguous release barred the contractor's claim.

In Tekkon Engineering Co. , the ASBCA held that (i) the contractor did not prove the  elements required to establish a prior course of dealing; (ii) the contractor was not entitled to adjustments under the EPA clause, in part because there were no established prices on which to base those adjustments; (iii) the contractor's subjective, unexpressed reading of the contract, which was never communicated to the Contracting Officer, could not form the basis for its interpretation; and (iv) because the Government was not required to place any orders during an option period (and did not do so), the contractor could not recover costs associated with that option period.

In AECOM Government Services, the ASBCA granted the Government's motion for summary judgment that the contractor was not entitled to recover F.I.C.A. taxes on offshore subsidiaries first imposed by the HEART Act six months after the award of its fixed-price contract, at least based on the contractor's theory of breach of the implied warranty of good faith and fair dealing. The Board noted that the contractor's alternative theory of mutual mistake was not involved in the summary judgment motion.

In J. A. McAmis, the ASBCA held that the contractor was entitled to recover increased haul costs and delay costs after haul routes to the site became unavailable due to a local ordinance passed after award (and rejected the Government's attempts to rely on the "Permits and Responsibilities Clause" and the sovereign acts doctrine to avoid this result); but the contractor was not entitled to recover its costs of the rejection of rock that complied with the specifications because the contractor did not establish the Government had rejected the rock.  

The CBCA denied Arun Enterprises' appeal from a GSA claim for unpaid rent and capital improvement deposits under a building lease because the contractor presented no credible evidence to support its contention that it was entitled to  adjustments to the building rental.

In Nu-Way Concrete Co., the CBCA denied a claim for extra work under constructive change and implied ratification theories because (i) the Contracting Officer did not require or ratify the extra work allegedly ordered by the inspectors and warned the contractor not to do it; and (ii) the contractor's proof of quantum conflicted with its certification of costs and was "inconsistent, incredible, and incomprehensible."

In C.E.M.E.S. S.p.A. , the ASBCA denied an appeal because (i) an authorized Contracting Officer did not change the sequence of work and (ii) although the contractor was worried about the presence of unexploded ordnance in the construction site and took extra precautions based on its fears, it did not encounter any and, therefore, could not recover for a Differing Site Condition.

In Thorington Electrical and Construction Co., the ASBCA held that, in a firm, fixed-price construction contract, absent an EPA clause, the contractor was not entitled to recover its increased costs for asphalt caused by an unusually large spike in gasoline prices. 

Inspection

The ASBCA held the Government did not unreasonably delay consideration of, or improperly reject, a subcontractor's submittals in a construction contract in Clark Construction.

In Laser Manufacturing, the ASBCA denied a claim for alleged changes in inspection and acceptance criteria.

The ASBCA denied the request for reconsideration by American Renovation and Construction Co. concerning the Board's earlier decision upholding the Government's revocation of acceptance of the contractor's work despite its claims of defective specifications.

Terminations  

The ASBCA upheld the default termination of ZIOS Corporation.

The CBCA upheld the default termination of (and subsequent government claims for liquidated damages and excess reprocurement costs against)  C-Shore International, rejecting the contractor's contention that the Government's claims were untimely and dismissing the contractor's cross complaint for lack of jurisdiction because that claim had not been submitted to the Contracting Officer for a decision.

In Yonir Technologies Inc. , the ASBCA upheld a default termination based on the contractor's failure of first article testing.

In AmerescoSolutions, the ASBCA denied the contractor's motion for summary judgment in a default termination appeal because the contractor did not establish the Government had waived the due date under the "unusual circumstances" legal standard required to establish waiver in  a construction contract default termination appeal.

In Smart Power Systems, the ASBCA granted the Government's motion for summary judgment and upheld a default termination for failure to make progress because the contractor failed to cure its performance after (or provide an adequate response to) a cure notice.

Purchase Order and Task Orders

In HMRTECH2, LLC, the ASBCA held that a contractor's graduation from the 8(a) program did not give the Government the right to deny the contractor a fair opportunity to continue to compete for further task orders for the duration of a multiple-award schedule contract.

Quantum 

In Symbion Ozdil Joint Venture, the ASBCA decided that claims for extra work on a contract that was subsequently terminated for convenience should be priced at the unit price stated in the contract specifications rather than at cost pursuant to the "Changes" clause.

In States Roofing, the ASBCA determined the quantum owed the contractor after the Court of Appeals for the Federal Circuit reversed and remanded the Board's prior decision.

SUFI Network Services, Inc., squeezed even more money out of the ASBCA after the contractor already had seen its recovery double as a result of the Board's prior decision on its request for reconsideration.

In Whiting-Turner Contracting Co., which principally involved questions of accord and satisfaction and the interpretation of releases in bilateral modifications, the ASBCA held that the contractor was not entitled to interest on claims because its contract was with a nonappropriated fund instrumentality.

In ALKAI Consultants, the ASBCA determined some of the types of costs that are recoverable under the commercial items "Termination for Convenience" clause (FAR 52.212-4).

In W. G. Yates & Sons Construction Co., the contractor had a fixed-price construction contract incorporating a Davis-Bacon Act wage determination, which required a wage rate of $10 per hour (this, and the following, figures are fictionalized for the sake of simplicity). Part of the contract price was attributable to a subcontract, which was bid on the basis of an estimated 5,000 hours of labor covered by the wage determination. After award, the Government discovered it had used the incorrect wage determination in the contract, so it retroactively incorporated a revised wage determination that called for wages of $20 per hour. The subcontractor ended up incurring 10,000 hours to complete the job. The contractor submitted a claim under the " Changes" clause on behalf of its sub for 10,000 hours (the sub's total performance hours) times the $10 difference  between the erroneous and revised wage determination hourly rates, plus associated profit and overhead. The Government argued that (i) the claim should only be for the originally estimated 5,000 hours times the $10 difference and (ii) it should not include any added overhead and profit.  The case involves questions concerning the proper measurement of an equitable adjustment under the " Changes" clause and whether the " Changes" clause was even the appropriate vehicle for recovery. The CBCA opted for the contractor's method of calculation.

In Nu-Way Concrete Co., the CBCA denied a claim for extra work under constructive change and implied ratification theories because (i) the Contracting Officer did not require or ratify the extra work allegedly ordered by the inspectors and warned the contractor not to do it; and (ii) the contractor's proof of quantum conflicted with its certification of costs and was "inconsistent, incredible, and incomprehensible."

Procedure

The CBCA was not persuaded by a contractor's contentions that its change of counsel and its counsel's illness excused its failure to file a timely request to reconsider an order dismissing an appeal for failure to prosecute

The ASBCA rejected a contractor's request for a mistrial based on its contention that the Government, inter alia, had tampered with the hearing transcript.

In Kaman Precision Products, the ASBCA refused the Government's request to stay proceedings on an appeal from a default termination (and related claims) during the pendancy of an FCA claim against the contractor in district court. The Board reasoned that the stigma associated with a default termination that did not involve the allegations in the FCA suit outweighed the Government's interest in the stay. (The Board did permit a brief stay on one issue directly related to the FCA suit).

In Thorington Electrical and Construction Co., the ASBCA denied a performance and payment bond surety's motion to intervene in an appeal because the surety was not a contractor with respect to the claims involved in the appeals.

In General Dynamics Ordnance and Tactical Systems, the ASBCA held it had the authority to (and, therefore, did) grant appellant's request for a protective order allowing it access to certain discovery materials involving trade secrets, but then stayed that decision for 60 days to allow the Government to assess its litigation options, including a possible appeal to the Federal Circuit.

The CBCA denied Springcar's motion to re-open the record and reconsider the Board's prior decision  because (i) the Board could rely on a quantum exhibit in the record to which the contractor had not objected, especially when the contractor had the opportunity to, and did not, question a hearing witness about its methodology, and (ii) and the fact that the contractor allegedly had been "surprised" by testimony at the hearing did not excuse its failure to pursue the subject at the time, especially because the person identified in the testimony had been on the Government's  discovery list.

In Bruce E. Zoeller, the ASBCA denied the contractor's motions for sanctions against the Government for failing to produce discovery documents that the Government was unable to locate.

In Kellogg Brown & Root Services, the ASBCA denied government motions to stay appeals pending resolution of a suit under the False Claims Act because (i) there was insufficient similarity between the actions; (ii) the Government did not establish there would be prejudice to its suit from proceeding with the board appeals; and (iii) the indefinite length of requested stay weighed against granting it.

Equal Access to Justice Act

In Lasmer Industries, the ASBCA held that the Government's rescission of a claim, which resulted in the Board's dismissal of the contractor's appeal, did not make the contractor a "prevailing party" entitled to and EAJA award.

        

Court of Federal Claims

Contract Disputes Act (CDA) / Tucker Act / Jurisdiction / Standing 

In U. S. Home, the court held it had jurisdiction over claims for breach of contracts for the sale of real property but lacked jurisdiction over various claims based on CERCLA because it is not a money-mandating statute.

In Paradigm Learning, the court held it had CDA jurisdiction over a claim that the Government breached a schedule contract by disclosing proprietary information included in delivered items under the contract in violation of the contract and a related nondisclosure agreement.

In Allstar Mayflower , the court held that a claim for reimbursement of PowerTrack Fees under transportation services contracts was governed by the three-year statute of limitations of the Interstate Commerce Act rather than by the six-year statute of the CDA.

In Todd Construction, the court held that, although contractors may have CDA claims against government performance evaluations that do not comply with FAR 36.201, Todd failed to allege a causal connection between the Government's alleged procedural flaws in conducting the evaluation and any injury to Todd (i.e., an error in the final evaluation rating). The court also concluded there was no abuse of discretion by the Government in its ultimate finding that plaintiff's performance was unsatisfactory.

In Gonzalez-McCaulley Investment Group, the court (over the Government's objection) has granted one plaintiff leave to amend a complaint that  failed to include the jurisdictional allegations required by the rules for both a CDA claim and a bid protest.

In Peninsula Group Capital Corp., the court found it lacked jurisdiction over a dispute because the parties had never entered into a written contract at the conclusion of negotiations.

In BLR Group of America, on reconsideration of its prior decision, the court dismissed the contractor's suit for lack of jurisdiction because the contractor's written objections to an unfavorable CPAR did not constitute a CDA claim. There was no demand for a decision by the Contracting Officer, and the Contracting Officer reasonably interpreted the submission as comments submitted pursuant to FAR � 42.1503(b). It should be noted that the case does not stand for the proposition that an objection to a CPAR evaluation can never be a CDA claim--only that the contractor's submission in this case was not sufficient to identify itself as a such a claim. Subsequently, the court denied the contractor's motion for partial reconsideration    because neither the contractor's comments disagreeing with the Government's performance assessment report nor the contractor's counsel's email to the Contracting Officer attempting to convince her to withdraw or change the Government's evaluation constituted a CDA claim. The court notes that two inquiries beyond examining the regulatory definition of a CDA claim are required: "First, . . . the court must examine the intent of the contractor as expressed in the submission. . . . Second, the court is required . . . to look beyond the [regulatory] definition of a CDA claim and take into account the particular facts of the case." 

In YRC, Inc., the court held it lacked jurisdiction over a subcontractor's claim against the Government for payments a defaulted contractor failed to make to it because there was no express or implied-in-fact contract between the plaintiff and the Government and because the federal officials who dealt with plaintiff and made arrangements to make some payments to it had no authority to contract on behalf of the Government. 

    In L.A. Ruiz Assocs., the court held it lacked jurisdiction over a contractor's counterclaim in response to an affirmative claim by the Government because there was no showing the two claims arose from the same set of operative facts, and the contractor had not submitted its counterclaim to the Contracting Officer for a decision; the court, however, did find jurisdiction over the contractor's claim for a declaratory judgment to the effect that Government's affirmative claim against the contractor was null and void.

In FloorPro, the court found a case was not barred by the Statute of Limitations because the contractor had diligently pursued its rights even though circumstances had conspired to drag things out for many years.

In System Planning Corp., the court held that the Tucker Act's six-year Statute of Limitations does not apply to claims by a contractor who has elected to proceed under the CDA.

In International Industrial Park, the court held that because a barter agreement for the relocation of  an easement in return for an undertaking to pave roads on the easement was not a contract within meaning of the CDA, the plaintiff was not required to file a claim with the Contracting Officer prior to filing suit in court.

 In Environmental Safety Consultants, the court (pursuant to Rules 12(b)(1) and 12(b)(6)) dismissed PPA, takings, and punitive damages claims, as well as (i) a claim first submitted when the firm was no longer a contractor with the United States and (ii) a claim barred by the CDA's statute of limitations.

In Malinda Baldwin, the court held that failing to submit a written demand to the Contracting Officer and to specify a sum certain are not "harmless errors" that can be overcome by reference to the plaintiff's "intent," but, rather, are fatal CDA jurisdictional flaws.

Changes/Breach/Contract Interpretation/Defective Specs/Authority

In BioFunction, the court denied the plaintiff's claim because (i) the government employee who allegedly entered a "side agreement" to a Postal Service contract lacked contracting authority and, in any event, (ii) the plaintiff did not establish that the side agreement provided for any monetary compensation.

In United Constructors, the court denied (i) a Type I Differing Site Conditions claim because the conditions were reasonably foreseeable at time of bidding and (ii) a constructive acceleration claim because contractor's own actions contributed to the delay.

In D'Andrea Brothers, LLC, the court denied the Government's summary judgment motion to dismiss a claim that it had violated its obligation of good faith and fair dealing under a CRADA by "bad-mouthing" HooAH! energy bars.

The court awarded plaintiffs approximately $9,000,000 in the Fireman's Fund case, which concerned construction at the Montgomery Point Lock and Dam Project on the White River in eastern Arkansas and various claims involving defective specifications, breach of the covenant of good faith and fair dealing, the responsibility for labor shortages and resulting increased wages, critical path analyses, delay claims, and government counterclaims.

In Parsons-UXB Joint-Venture, the court denied the Government's motion for summary judgment, which was based on the Government's argument that the Limitation of Cost or Limitation of Funds clause precluded the contractor's recovery for state general excise taxes because the contractor had reason to foresee the cost overrun when there was still funding available and when the contractor could have protected itself by stopping work.   

Costs; Cost Accounting Standards (CAS)

In the latest decisions in the Raytheon and General Electric segment closing cases, the court granted the Government's motions for partial summary judgment and held that (i) Raytheon's post retirement benefit costs are not pension costs under CAS 412 and cannot be included in segment closing adjustments under CAS 413 and (ii) General Electric's Pay-As-You-Go post-retirement benefit costs are not covered by CAS 413 and cannot be included in segment closing adjustments.

Release; Accord and Satisfaction

In IMS Engineers-Architects , the court held that a contractor knew about Government's improper contract administration and termination prior to the time it signed a release, which was, therefore, knowing, valid, and enforceable. 

In Shell Oil, the court held that neither the Anti-Deficiency Act nor settlement agreements closing out certain WWII gas production contracts in the late 1940s insulated the Government from liability for CERCLA clean-up costs. The court based its finding on the contracts' "Taxes" clause, which required the Government to reimburse the contractors for "any new or additional taxes, fees, or charges, other than income, excess profits, or corporate franchise taxes, which Seller may be required to pay by any municipal, state, or federal law in the United States or any foreign country to collect or pay by reason of the production, manufacture, sale or delivery of the [avgas]." The court concluded CERCLA clean-up costs were a "charge" within the meaning of that clause.

Quantum

The court awarded Englewood Terrace Limited Partnership contract damages for HUD's breach of a housing assistance payment (HAP) contract but rejected the contractor's claim for "lost equity damages" for failure of proof.

Equal Access to Justice Act (EAJA)/Attorneys Fees/Litigation Expenses/CDA Interest/Prompt Payment Act Interest

In The Dallas Irrigation District, the court had occasion to address many elements of EAJA awards including, inter alia, attorney fees, a request for an enhanced award, COLA, paralegal fees, legal research expenses, attorney travel expenses, deposition, hearing, and trial transcript costs.

The court held that The Marquardt Co. was not entitled to either CDA or PPA interest on the time required for Government to make payments under a global settlement agreement of various underlying contracts because the agreement was not a contract within the meaning of those statutes, because it did not provide for a definite time for payment to be made, and because it provided a different remedy if payment were not made.

In United Partition Systems, after concluding that the contractor was entitled to an EAJA award because the Government's position in the litigation was not "substantially justified," the court noted that the "precise question at hand is whether an expenditure listed as a 'cost' under 28 U.S.C. � 1920 is recoverable as an 'expense' under 28 U.S.C. � 2412(d)(1)(A), particularly in an instance where 'costs' were not awarded to the plaintiff." The court held that it is.

Procedure

In Bell BCI, the court held that, when there is no just reason for a delay, a contractor may obtain immediate recovery in the form of partial summary judgment on claims affirmed on appeal without waiting for its remaining claims to be resolved.

In Scott Timber, the court decided to allow testimony from a remote site via videoconference from a witness who was too far from Washington to travel easily to the hearing. The court also granted a motion to exclude all other persons from the room from which the witness would be testifying to avoid any possible prejudice from having representatives of one party, but not the other, present during the testimony.

In Croman Corp., the court refused to allow the Government to re-open discovery six months after it had closed, in order to explore possible fraud counterclaims the Government claimed it belatedly noticed in reviewing responses to the original discovery requests.

 

 

Court of Appeals for the Federal Circuit

Jurisdiction/Standing/Res Judicata 

The CAFC, in Resource Conservation Group, held that the Court of Federal Claims does not have jurisdiction over nonprocurement protests under 28 U.S.C. 1491(b)(1), but does have jurisdiction over claims for breach of an implied-in-fact contract under 1491(a)(1) for claims where the Administrative Dispute Resolution Act (ADRA) does not provide a remedy. Thus, according to the court, the ADRA did not repeal the Court of Federal Claims pre-existing jurisdiction over implied-in-fact contracts in nonprocurement cases. 

In M. Maropakis Carpentry, the court, over a vigorous dissent, affirmed the Court of Federal Claims and held "that a contractor seeking an adjustment of contract terms must meet the jurisdictional requirements and procedural prerequisites of the CDA, whether asserting the claim against the government as an affirmative claim or as a defense to a government action."

In a nonprecedential decision, the court reversed the Court of Federal Claims and held that Norma C. Sullivan and Donald E. Sullivan, who were injured by car driven by Postal Service contractor's employee, could not maintain an action against the Postal Service for breach of contract as third party beneficiaries for the Postal Service's failure to enforce a contract provision requiring the contractor to obtain additional insurance because that failure was not a breach of the contract (which did not require the Postal Service to enforce the provision).

Contract Interpretation/Changes/Authority/Breach

In Precision Pine & Timber, the CAFC reversed the Court of Federal Claims and held that the Forest Service did not breach either (i) an express warranty (because none existed) or (ii) the duty of good faith and fair dealing (because the Government's actions did not target the plaintiff) in suspending timber harvesting contracts in 1996 while the Forest Service engaged in consultations with the Fish & Wildlife Service regarding an endangered species (the spotted owl) that were required by another court in separate litigation.

The CAFC also reversed the Court of Federal Claims in the Agredano case and held the "as is where is" warnings at a federal vehicle auction meant the Government bore no responsibility on a theory of breach of an implied warranty when the purchasers had to spend a year in a Mexican prison after hidden marijuana was discovered in the vehicle.

In DLT Solutions , the court reversed the prior ASBCA decision and held that, following the termination of the contractor, the Government did not replace contracted-for software in violation of a delivery order's Non-Substitution clause.

In vacating the judgment of, and remanding the case to, the Court of Federal Claims, the CAFC held, in Klamath Irrigation District, that impossibility of performance is a factor to be taken into account in considering the sovereign acts doctrine.

Costs/Cost Accounting Standards

In the important ATK Thiokol decision, the court affirmed the Court of Federal Claims and held that, for purposes of determining whether costs qualify as IR&D costs, the phrase "required in the performance of a contract" in the definition of IR&D costs means the same thing as it does in the definition of B&P costs, i.e. "costs that are specifically required by the contract," not  "costs that are necessary in order to perform the contract."

The Air Force lost its appeal to the CAFC of the ASBCA's decision in the Lockheed Martin case concerning whether the F-22 contract was an "affected CAS-covered contract" within the meaning of FAR 30.602(3)(1993) concerning a change in cost accounting practices.

In Arctic Slope Native Ass'n, the court affirmed the CBCA and held that (i) the  contractor was not entitled to reimbursement for costs that exceeded available appropriations because the contract contained explicit "subject to the availability of appropriated funds" and "not to exceed" language; and (ii) the Government did not breach the contract by failing to request additional appropriations because there was no contractual requirement that it do so. The court also rejected the contractor's argument that the statutory funds were sufficient to reimburse its costs, alone. The court noted that, if it were to allow this approach, and all similarly situated contractors also used it, the result would be total reimbursements exceeding the available appropriations, which would circumvent the explicit cap included in the statute, itself.


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