Boards of Contract Appeals (ASBCA,
CBCA, PSBCA, and GAOCAB)
Disputes Act (CDA) Issues
Standard, the ASBCA dismissed a claim for lack of CDA
jurisdiction because it was for "at least" a
specified amount, did not list the amounts requested for each
separate category of recovery sought, and, therefore, was not
for a "sum certain."
Contractors, the CBCA dismissed for lack of jurisdiction a
contractor's appeal (filed more than 90 days after a default
termination) based on a unilateral contract modification
(which was not labeled as a Contracting Officer's decision)
that notified the contractor the Government might
reprocure and charge the contractor's account. The Board noted
that the Fulford doctrine did not apply to these facts.
the ASBCA held that a delivery order issued by DESC pursuant
to a DOE contract was a separate DoD contract over which the
ASBCA had CDA jurisdiction on appeal.
Dream Group, the ASBCA refused to dismiss an appeal,
finding that an authorized individual had signed the CDA
certification, which was correctable even though
Services, the ASBCA dismissed an appeal from a default
termination for lack of jurisdiction because the dissolved
corporation lacked the capacity to accept the purchase order
that was later terminated.
Satotravel, the CBCA held that the Government not required
to certify its CDA claim against a contractor.
Public Warehousing Co.
barely dodged the bullet when the ASBCA denied the
Government's motion to dismiss the contractor's original
appeal based on a theory of unjust enrichment (over which
the Board had no jurisdiction) and granted the
contractor's motion to amend its complaint to rely,
instead, on theories of breach and constructive changes
because both the original and revised complaints involved
the same operative underlying facts and same requested
Group, the ASBCA held it lacked jurisdiction over an
appeal from a termination for convenience because that
termination, standing alone, is not a government claim.
CBCA dismissed an appeal by Red
Gold, Inc. for lack of CDA jurisdiction because its
original letters to the Contracting Officer did not (i)
state a sum certain, (ii) request a decision, or (iii)
contain a CDA certification.
Aerospace & Technologies Corp., the ASBCA held
that a claim containing the following language adequately
claimed a sum certain within the meaning of the CDA:
claim is for the sum certain amount of$72,730.29 relating
to fiscal year . . . 2003 costs that the government has
failed to reimburse, plus future costs to be incurred using
the FY 2003 indirect rates at issue and interest under the
Energy & Construction, the CBCA held that a party
that assumed a contract by novation was the proper party
to pursue the appeal.
Armoring, the CBCA dismissed a bid protest for
lack of CDA jurisdiction.
Enterprises, the ASBCA dismissed an appeal for lack of
jurisdiction because the contractor had not submitted
a claim to the Contracting Officer requesting a
decision on disputed invoices that the Government had
refused to pay.
Development, Inc., the CBCA applied the CDA's statute
of limitations to a government claim and held that the
agency could recoup overpayments for operating costs it
made to a contractor under a lease only for a period of
six years prior to date the agency provided the contractor
with a "claim" for such overpayments. The CDA
has been in effect now for more than 30 years, and we
still see language like the following in case after case
because of the statute's most glaring omission:
"Because the statute lacks a definition of 'claim,'
one looks to language of implementing regulations, the
contract, and facts."
Dale Westergard, the CBCA denied the Government's
motion to dismiss an appeal to the Board as untimely
because the Government could not prove when the contractor
received a Contracting Officer's decision sent to it by
Taahut Insaat ve Ticaret A.S., the ASBCA denied a
government motion to dismiss an appeal and held that the
contractor's submission met the requirements for a CDA
claim: it was certified; it requested a Contracting
Officer's decision; and it was for a sum certain.
Carranza Trucking Co. , the PSBCA held it lacked
jurisdiction to stay enforcement of a government claim.
Mullens, the ASBCA held that, concerning a non-CDA
concession contract, the Board lacked jurisdiction over an
appeal from a no-fault termination absent an underlying
Operative Group, the ASBCA dismissed an appeal based on a
progress payment request in excess of $100,000 for lack of CDA
jurisdiction because the request did not include the CDA
certification and the progress payment certification it did
include was not an adequate substitute.
ASBCA dismissed the appeal of Broadway
Consolidated Companies because the company was in Chapter
7 bankruptcy and lacked standing to pursue the appeal.
Gutter & Sheet Metal Co., the CBCA held it lacked
jurisdiction over an appeal from a claim denial that was not
issued by the Contracting Officer.
Automation & Training Consultants, the ASBCA held, in
part, that it lacked jurisdiction over a theory of recovery
first presented to the Board as part of the contractor's
motion for reconsideration of a prior decision and never
presented to the Contracting Officer.
Electronics Corp., the ASBCA held it lacked jurisdiction
over an appeal because the original claim should have been
submitted to the Contracting Officer for the GSA schedule
contract rather than to the CO of the agency placing a
delivery order under the schedule contract.
Richardson, the same Board reached the same conclusion
because no claim at all had been claim submitted to the
General Trading & Contracting, the ASBCA held that,
although it lacked jurisdiction over a claim for extraordinary
contractual relief under FAR Part 50, it had jurisdiction over
the alternative claim theory of breach of an implied-in-fact
Inc., the CBCA held that, pursuant to the "Payments
Under Time and Materials Labor Hours Contract" clause,
the contractor was entitled to reimbursement only for the
amounts it actually paid subcontracted employees as opposed to
the direct labor rates it billed for its own employees.
Technology Solutions International, the contractor in a
services contract signed a bilateral modification (absent any
duress) pursuant to which it paid the Government rent to
occupy a space for many months and then claimed
(unsuccessfully, of course) that the modification was a
cardinal change or evidenced a differing site condition.
To Z Wholesale, the CBCA denied a claim for based on a
violin (which the buyer did not inspect) and its case
purchased at an "As Is" auction that conformed to
their description in the auction catalogue, even though the
violin in the case did not turn out to be the valuable item
the name on the case indicated
it would be.
Automation & Training Consultants, the ASBCA granted
the Government's motion for summary judgment denying the
contractor's claim for reformation on the basis of unilateral
mistake, in part because the contractor failed to inquire
about a DOL wage determination it now alleges was missing from
the solicitation, which the Board said would have been a
patent error creating a duty to inquire.
Government Services decision, the ASBCA held 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 a fixed-price contract award on the basis of the
contractor's theory reformation based on mutual mistake. Last
year, the Board had rejected the
same claim but made on a theory of breach of the implied
warranty of good faith and fair dealing.
Enterprises-GMT Mechanical, the CBCA held that the VA changed
a construction contract by directing the contractor to attach
insulation to the roof in a manner different from that stated
in the specifications.
Advanced Composites, the ASBCA granted the Government's
motion for a summary judgment denying contractor's claim for
extra work under the Changes clause because the contract's
performance specification required the contractor to provide
the navigation system at issue in the appeal.
won its CBCA appeal related to constructive changes required by
the project architect. Subsequently,
the CBCA denied
the GSA's request for reconsideration. In a subsequent
decision involving the same contractor,
the CBCA denied the Government's motion for summary
judgment because the contractor presented evidence that
the parties did not intend a seemingly unambiguous general
release to cover the subcontractor claim at issue in the
Geotech Service , the CBCA held the Government breached
the implied covenant of good faith and fair dealing by
refusing to allow the contractor to use a method of
performance permitted by the specifications.
Dynamics Ordnance and Tactical Systems , the ASBCA
denied the Government's motion for summary judgment in
part because the record was not yet sufficiently developed
to determine whether the appeal involved a requirements
contract or a BOA.
Industries, the CBCA granted a portion of the
Government's motion for summary judgment and held that the
Government's breach of one contract did not entitle the
contractor to lost profits on other contracts it might
have received if it had not lost bonding capacity due to
the breach. The Board denied the Government's motion as to
other matters, and, in doing so, addressed issues of
contract interpretation, course of dealing, and the
Government's attempt to enforce a requirement it
previously had waived.
Technologies, the ASBCA interpreted FAR 52.216-8
("Fixed Fee") to allow the Government to
withhold the stated reserve amount on each, individual
task order, rather than just once on contract as a whole.
Fawzi Gomme, Co-Owner, d/b/a Areebel Engineering &
Logistics, the ASBCA dismissed a claim over the
contractor's objections because it was clearly covered by
a settlement agreement between the parties.
Boeing Co. (which involves claims by the contractor
for indemnification for the costs of (i) the
investigation and remediation of ground water pollution
and (ii) toxic tort litigation), the ASBCA denied the
contractor's motion for summary judgment with regard to
the Government's affirmative defense that the individual
authorizing use of an indemnification clause in one of the
subject contracts lacked authority to do so; but granted
the contractor's motion with regard to the Government's
affirmative defense that the contractor had misrepresented
whether it had obtained certain required insurance.
Construction Services, the ASBCA granted the
Government's motion for summary judgment because the
appellant failed to establish that (i) it had a contract
with the Government, (ii) the individual who allegedly
committed the Government to a verbal agreement had the
authority to do so, or (iii) the Contracting Officer
ratified the alleged agreement.
Construction Co., the ASBCA held the contractor was
entitled to compensation for work it was required to
perform in a larger area than was indicated in the
contract's specifications and drawings.
III, LLC, the ASBCA held that the contractor was not
entitled to reimbursement for health and welfare benefit
cost increases in (i) the base year of the contract
(because it modified its CBA to effectuate such increases
after the beginning of the base year and the applicable
contract clause did not provide for base year adjustments)
or (ii) in the option years (because the option year mods
constituted an accord and satisfaction and did not provide
for such increases).
Technology, the CBCA held the Contracting Officer
lacked the authority to impose the reporting requirements
of the American Recovery and Reinvestment Act of 2009 on a
contractor midway through its contract by unilaterally
inserting FAR 52.204-11 in the contract.
Man Properties, the PSBCA held that the Government, by
holding over, did not constructively exercise a lease
renewal option, which required written notice of its
Top Construction , the PSBCA held that (i) the
contractor could recover its consultant costs incurred up
to, but not after, the Government's approval of substitute
equipment associated with a change; and (ii) attorney fees
incurred in trying to convince Contracting Officer of the
amount claimed by contractor for the change were not
J. Miller & Assocs., the Board denied a
contractor's claim that the Government had breached its
requirements contract by diverting work to other entities.
a forum denies a motion for summary judgment because there are
disputed facts that require further development in the record.
Systems, however, the ASBCA denied the Government's motion
after the Board found there were no disputed facts and held
that (i) the contract contained a latent ambiguity concerning
whether R&R travel expenses were reimbursable and (ii) the
contractor's interpretation that they were reimbursable was
Automotive Group, the CBCA held a contractor's
unilateral, unfounded error in judgment not communicated
to the Government prior to award was not sufficient to
entitle it to relief from the terms of a vehicle lease.
International, the same board held that the Government
did not breach a contract by failing to exercise an
Global Solutions , the CBCA summarily dismissed most of
contractor's claims for increased labor rates resulting from
increases in DOL wage determinations because the contractor
and the agency had agreed on the rates to be paid to the
contractor after the revised wage determinations were issued.
LLC, the ASBCA denied a claim because, in advancing
theories of misrepresentation and superior knowledge, the
contractor did not establish that (i) it was misled by, or
relied on, a misstatement in the solicitation that there
was no historical information available, or (ii) it did
not have independent knowledge of that historical
Contracting, Inc., the CBCA held the contractor had
failed to establish any of the elements required to
justify reformation of its contract based on a mistake in
Industries, the ASBCA dismissed an appeal over the
contractor's objections since the Government's issuance of a
no-cost termination "because of the impossible
specification" provided all the relief originally
requested by the contractor.
the ASBCA granted the contractor's motion for summary judgment
that the Government failed to pay for contractually compliant
training materials and improperly terminated the contract for
cause due to a failure to comply with a cure notice that
imposed extra-contractual requirements.
International Corp., the ASBCA upheld a termination for
cause due to late delivery of nonconforming supplies. In New
Era Contract Sales, the ASBCA held that the Government
properly terminated fixed-price delivery orders for default
after the contractor refused to perform because subcontract
prices had increased by an amount the contractor considered
& Ben, Inc. the ASBCA upheld a default termination of a
contractor who did not deliver trucks to Iraq because, after
award, it requested an End-User Certificate, which the
Government refused to issue because the contract did not
require it to do so. The Board found, inter alia, (i)
that the contractor did not prove such certificates were
required by Japan (where the trucks were manufactured) and
(ii) that the contractor had not checked this issue prior to
Construction, the ASBCA held that, under a
construction contract task order modification, which
established two separate completion dates, the Government
could properly assess liquidated damages for the portion
of work covered by one of the two dates, which already had
passed when the modification was signed.
the ASBCA upheld a default termination despite the
contractor's contention that the specified part could not
perform properly, because the reprocurement contractor
installed the same part without incident.
Construction Services, the same board upheld the
propriety of another default termination before a cure
period had expired because the contractor had no
reasonable prospects of finishing the job by the
conclusion of the cure period.
Commercial and Construction Co. Ltd. , the ASBCA
upheld a default termination because of defects in road
construction work despite the contractor's contention that
the Government did not inspect the work promptly.
Research, Inc., the ASBCA upheld a default termination
because the contractor inexcusably failed to deliver the
final 15 items under the contract, and its problems were
due to actions of its subcontractor, not those of the
upholding a termination for cause in Ryll
International, the CBCA wrote in part as follows:
conclude that [the] CO . . . had a reasonable,
contract-related basis to support termination for cause.
Ryll failed to complete the contract despite the CO’s
best efforts to mediate negotiations between appellant and
its subcontractors. It is notable that in Ryll’s . . .
letter . . . requesting a termination for convenience with
costs, the contractor wrote that its "financial
difficulties have been caused by the apparent collusion of
certain companies and are not the fault of the
two cases, the Government was denied recovery of excess
reprocurement costs after a valid default termination
simply because it neglected to present any evidence on the
subject of the similarity of the reprocurement contract to
the terminated contract. In Odessa
R. Brown, for example, the PSBCA wrote: "Respondent
did not submit into the record a copy of the replacement
contract or any other evidence which could establish the
type, frequency or timing of the service required by the
replacement contract." Similarly, in
T. Smart, the PSBCA noted that the Government failed
to present any evidence that the reprocurement contract
was for the same, or similar, services.
W. Holcombe, the PSBCA held that a default termination
was justified by a contractor's failure to disclose on a
pre-award form negative employment history of prior bad
acts, even though the Government did not discover this
omission until after it had terminated the contract on
Safety Consultants, the ASBCA converted a default
termination to a termination for convenience because (i)
the Government "dallied" for 11 months after the
contract completion date before terminating, demonstrating
that time was not the essence, and (ii) the Government,
therefore, should have established a new completion date
Integrators, Inc., the GAO's Contract Appeals Board denied the contractor's appeal from a
default termination by the Government Printing Office because
the contractor failed to complete a preproduction test within
the allotted time, despite being given two chances to do
Davis Group, the ASBCA denied the contractor's claim
for an extension of the performance period because the
contractor's own delays were primarily responsible for the
delay in the Government's approval of the
Costs and Cost
Accounting Standards (CAS)
Boeing Co. v. DOE, the CBCA granted the contractor's
motion for summary judgment that it was entitled to the costs
of defense of qui tam suit (in which it was ultimately
found not liable) from the time the suit was originally filed
until the Government intervened as plaintiff.
International, the ASBCA held that the costs of
maintaining a standby Letter of Credit (LOC) under several
contracts over two fiscal years in order to
guarantee the contractor's ability to repay the entire amount of its
long-term debt in two years were allowable costs for the following
FAR 31.205-20 is inapplicable to disallow the LOC costs because
SRI treated the full amount of its long-term . . .[b]ond debt as
a part of its "[c]urrent
liabilities" not as its "long-term
liabilities," and the government has failed to show
this treatment is inappropriate. Second, paying an annual fee
(the LOC costs) for a one-year
bank LOC for the purpose of collateralizing or guaranteeing
its ability to repay the
full amount of its long-term . . . [b]ond debt in the short-term
(one year) qualifies as
administrative costs for short-term borrowing for working
capital allowable under FAR
31.205-27(a)(3). Third, the LOC costs in dispute are not fixed
and upfront costs and are
therefore different in kind from the typical costs of
on the Government's motion for reconsideration,
the Board held that the amount due the contractor should
be determined by the procedures set forth in the
"Allowable Cost and Payment" clause rather than
being predetermined by the Board as suggested by its prior
Co., the ASBCA granted summary judgment in favor of the contractor because
the aggregate effect on all affected contracts of a voluntary change in cost
accounting practices related to the actuarial value of pension plans did
not result in increased costs to Government.
Wings, Inc., the ASBCA held that the Government was not
liable for the contractor's vehicle storage costs incurred
after the Government returned the leased vehicles to the
contractor at the end of the lease.
Services, the ASBCA held that, under both the
"Service Contract Act--Price Adjustment" and
"Incentive Price Revision--Firm Target" clauses of
its contract, a contractor was entitled to a price adjustment
for the cost of
severance benefits paid to unionized employees pursuant to
collective bargaining agreements following expiration of
Pacific Shipyards Corp., the ASBCA denied the contractor's
claim that it should be allowed to re-classify certain
indirect costs as direct costs because it had treated the
costs as indirect costs for an extended period of time and
they benefited more than one contract.
Assocs., the ASBCA discussed (a) the allowability of (i)
life insurance costs for the contractor's President and (ii)
the cost of a Jeep transferred to an employee and treated as
fringe-benefit compensation to that individual and (b) the
applicability of the penalty for expressly unallowable costs
pursuant to FAR 42.709. On reconsideration,
the ASBCA modified its original decision.
Guidance & Navigation Corp., the ASBCA allowed
reformation of several contracts because identifiable
intangible asset write-up amortization costs had been
mistakenly omitted from the calculation of contractor's
G&A rates and FCCOM factors.
Dynamics Corp., the ASBCA held that the contractor's use
of intra-year pension fund returns in the contractor's forward
pricing estimates of pension costs violated CAS 412.
International, the ASBCA held that the contractor
satisfied the requirements for reimbursement of Arizona
transaction privilege taxes plus penalties and interest
pursuant to FAR 31.205-41.
III, LLC, the ASBCA held that the contractor was not
entitled to reimbursement for health and welfare benefit cost
increases in (i) the base year of the contract (because it
modified its CBA to effectuate such increases after the
beginning of the base year) or (ii) in the option years
(because the option year mods constituted an accord and
satisfaction and did not provide for such increases).
Systems, Inc., the ASBCA denied a contractor's appeal
from a government claim for repayment of unallowable costs
because (i) costs now claimed as deferred IR&D costs
had not been specifically identified and authorized in the
contract; (ii) the bonus paid to the contractor's
owner/CEO was an unallowable distribution of profits; and
(iii) numerous local meals allegedly conducted to
discuss recruiting were unallowable under several claimed
costs principles, chiefly because the contractor had not
presented sufficient documentation to establish their
Development, the CBCA recognized the Government's right to
offset amounts due it under one lease against amounts it owed
under a second lease with the same contractor.
Marine, Inc., the ASBCA determined the quantum due the
Navy as a result of debt concessions made by creditors
after confirmation of a Chapter 11 reorganization plan of
a company in bankruptcy. The case was on remand after the
original board decision was reversed by a district court
whose decision was then upheld by the Ninth Circuit.
G. Yates and Sons Construction Co., the CBCA denied
the Government's motions to submit new evidence and to
reconsider the Board's prior
decision concerning the proper measure of
an equitable adjustment after the retroactive correction of
erroneous Davis Bacon Act wage determination originally included in a
Co. (on remand from the Federal Circuit), the ASBCA
held that interest on the interest due the Government for
CAS 413 noncompliance continues to accrue until the date
the interest is paid rather than only to the date the
principal is repaid (as the contractor had argued).
Joint Venture, the ASBCA denied the Government's
motion to compel production of documents based upon the
Government's contention that the contractor had engaged in
a blanket waiver of the attorney-client privilege.
& Ben, Inc., the ASBCA held that a motion for
reconsideration sent by email and received after Board's
business hours but before midnight on the last day for
filing was timely.
G. Yates and Sons Construction Co., the CBCA denied
the Government's motions to submit new evidence and to
reconsider the Board's prior
decision concerning the proper measure of
an equitable adjustment after the retroactive correction of
erroneous Davis Bacon Act wage determination originally included in a
Government Services, the CBCA denied the Government
motion to dismiss the appeal because the contractor's
affidavit raised a factual question concerning the
Government's contention that there was no contract between
the appellant and the Government.
Constructors , the ASBCA denied a government motion
for summary judgment because there were issues of fact
regarding contract interpretation requiring further
development in the record.
Missile Systems, the ASBCA denied the contracting
agency's motion for summary judgment because of material
disputed facts over whether that agency's relationship
with another government agency resulted in the increases
in fuel prices for which contractor is seeking recovery
under theories of constructive change and breach of the
duty of non-interference with contractual performance.
Equal Access to Justice Act
Options, the ASBCA held that, even though the contractor
won its appeal on the merits, it could not recover its
attorney fees under the EAJA because the Government's position
had been substantially justified, in that: "the
appeal involved [the Board's] determination of close factual
questions[;] the pre-hearing documentary record established a prima
facie case supporting the government’s deductions[;] and
the government’s position was supported by legal precedent
involving the same agency on closely analogous, albeit
distinguishable, facts." In States
Roofing, the Board reduced contractor's EAJA claim for, inter
alia, the "disproportionate amount" of
fees incurred after the contractor's rejection of the
Government's lump sum settlement offer.
Industries, the ASBCA denied an EAJA application
because, after having initially denied a government motion
to dismiss appeals as mooted by a proposed bilateral
modification that did not contain all the language desired
by the plaintiff, the Government inserted the desired
language, and the Board then had dismissed the appeal as
moot without ever issuing a decision on the merits. The
lesson is that, even when a board decision causes the
Government to take action favoring the appellant, that is
not enough to trigger an EAJA award unless the board
decision is on the merits.
L. Fox and Todd Fox, the PSBCA dismissed an
untimely-filed application for attorneys fees under the
Court of Federal
Act (CDA) / Tucker Act / Jurisdiction / Standing
Safety Consultants, Inc., the court dismissed an appeal for lack of jurisdiction because
contractor failed to file valid CDA claim with Contracting
Officer within CDA's six-year statute of limitations, and,
in doing so, the court explained the difference between
the CDA's and the Tucker Act's six-year statutes of
Assocs. Limited Partnership, the court
dismissed a claim for breach of contract as time-barred under
28 U.S.C. 2501 because it "first accrued" more than
six years before the plaintiff brought suit. Judge Allegra
made this mundane holding memorable by the language he chose
to express it:
is safe to say that some things in life ought not be feigned.
"Do not feign affection," a famous poem admonishes.
Nor should an official invoke "feigned necessities,"
characterized by Cromwell as "the greatest cozenage that
men can put upon the Providence of God, and make pretence to
break known rules by." And when it comes to contracts,
one probably should add to this list – not feigning a demand
for performance. Doing so when performance is not truly
desired, and when there is no genuine intent to pursue damages
upon nonfeasance, is a pretense that, over time, can serve to
render important rights unenforceable – as this case,
unfortunately for plaintiff, so well illustrates. [footnotes
omitted; the "famous poem" is Max Ehrmann's Desiderata]
the court held that a subcontractor had
standing (as the intended third-party beneficiary of a
contract modification) to bring a suit for damages against the
Government after the Government breached the mod by failing to
issue checks jointly to the prime and the sub.
Investment Co., the court relied on the claim
preclusion doctrine to dismiss claims that could (and
should) have been litigated during earlier CBCA appeal.
(I'm not convinced. The claims were mentioned in the
decision in the earlier CBCA appeal, but were not
submitted to the Contracting Officer for a decision prior
to that earlier appeal, so I would say that they could not
have been part of the earlier CBCA appeal and, therefore,
should not be barred in the current litigation).
Research Systems, the court dismissed a contractor's
appeal for lack of CDA jurisdiction because (i) one
underlying claim had not been submitted to the Contracting
Officer within six years from the date it accrued;
(ii) another had not been appealed to the court within 12
months of receiving a Contracting Officer's decision; and
(iii) an undated letter to the Inspector General did not
constitute a claim.
Grumman Computing Systems, the court held it lacked
jurisdiction over a dispute involving a claim that did not
notify the Contracting Officer that it had been assigned
and, therefore, did not meet the requirement that it contain
a clear and unequivocal statement that gave the
Contracting Officer adequate notice of the basis of the
Co. of the West, the court dismissed for lack of
jurisdiction an action brought by a surety as the alleged
equitable subrogee and assignee of a contractor's claim
because the surety did not prove the Government had waived
the protections of the Assignment of Claims Act.
Ammunition, the court refused to summarily dismiss the
plaintiff's claim for the Government's breach of
non-disclosure agreements (NDAs) because questions remain
whether either the "waiver" or "operation
of law" exceptions to the Anti-Assignment Act apply
to the assignment of the NDAs.
the Government's motion for summary judgment in Lublin
Corp., t/a Century 21, Advantage Gold, the court held that government officials need not have
explicit authority to enter into contracts generally in order
to be found to have implied actual authority to enter into a
Investment Group, the court held that correspondence
between the Government and the plaintiff concerning the
plaintiff's quotation, which the Government ultimately
decided not to pursue because of suspected plagiarism, was
insufficient to establish a procurement contract
based on offer and acceptance.
Construction Co., the court denied multiple claims by
a construction contractor for, inter alia,
constructive changes, breach of the duty of good faith and
fair dealing, and differing site conditions, but awarded
the contractor more than a year in excusable delays due to
(i) the Government's delayed notice to proceed and (ii)
the Government's failure to promptly investigate soil
conditions as required by the "Differing Site
Products Co., the court held the Government breached
its implied duties to cooperate with the contractor and
not to hinder its performance by awarding (and later
suspending) a timber sales contract without revealing to
the contractor that the Government's interpretation of the
law as permitting it to forego environmental surveys was
unlikely to prevail in a pending district court suit.
Planning Corp., the court denied a contractor's claim
because the option clause containing the language on which the
claim was based was never exercised.
G. Horn, the court held that even though a Bureau of
Prisons "contract" for dental hygienist services
contained boilerplate language identifying it as a
requirements contract (and both parties read it to be such
a contract), its other provisions clearly established it
was neither a requirements contract nor an indefinite
quantity contract, and, therefore, the contractor had no
recourse when the Government decided to use in-house
services shortly after performance period began:
is unfortunate that the Government has continued to use
this standard form document that appears to the non-legal
reader as a binding contract, but is in fact not. It is
clear that this document misled [the plaintiff] into
believing she had an agreement with the Government when,
in reality, the agreement was unenforceable. More to the
point, even the Government officials with whom she dealt
did not seem to understand the document’s lack of
enforceability. This point is particularly troublesome to
the Court. While there are certainly instances where a
contract contains a latent defect rendering it
unenforceable, this is not the case here. As early as
1929, the Supreme Court put the Government on notice that
this type of contractual language created an unenforceable
instrument. See Willard,
Sutherland & Co., 262
U.S. at 493. In 1984, the Court in Ralph
Constr. Inc. similarly
declared an indefinite quantities contract unenforceable
that contained seemingly identical FAR language. See
Ralph Const. Inc., 4 Cl.
Ct. at 731-32. Yet, more than a quarter of a century
later, these FAR provisions are still
unenforceable and unsuspecting contractors are being
denied the opportunity to pursue what may be meritorious
of America, the court (i) denied the contractor's claims
that a default termination (for failure to make progress) was
made in bad faith and that the Government breached its duty of
cooperation and its duty not to hinder performance and (ii)
granted the Government's counterclaim for excess
Cascade Co., the court held that a
contractor whose protested contract was terminated for
convenience and replaced by another contract for essentially
the same work was not entitled to a
termination-for-convenience claim recovery.
Inc., the court upheld a default termination premised on
the contractor's provision of ammunition manufactured by a
Communist China munitions company in violation of DFARS
252.225-7007 despite the contractor's claim of estoppel
against the Government based on the Contracting Officer's
knowing acceptance of the nonconforming supplies because the
court held that not even the Contracting Officer had the
authority to accept supplies that violated the clause, the
point being that there are limits even to a PCO's authority.
Inc., is complicated,
but is worth reading as an instruction concerning how
difficult it is to prove bad faith (and breach) on the part of
the Government, which this contractor for armed guard services
failed to do even though (i) the Government improperly
terminated it for default without giving it a fair chance to begin
performance after giving it only one day to cure its
failure to provide a significantly increased number of armed
guards (of the need for which the Government notified it
immediately after award); (ii) an IG report found many faults
with the Government's treatment of the contractor and
administration of its contract; (iii) the court, itself, found
the contracting officer's behavior toward the contractor to be
overbearing a times; and (iv) after the Government determined
the default termination was improper, it dallied about
releasing funds that it had improperly offset against another
contract to cover excess reprocurement costs because the
contractor allegedly was not submitting invoices in a format
that was to the Government's.
Construction, Inc., the court held a termination for
default was improper because the Government's defective design
caused excusable delays well beyond the contract's stated
Cost Accounting Standards (CAS)
CAS 413 segment-closing decision, the court held that the Government
was entitled to an equitable adjustment to the extent that
the application of revised CAS 413 to segment closings
resulted in the Government owing more under revised CAS 413
for pension costs attributable to pension costs arising
under original CAS 413 contracts.
The court also reaffirmed prior decisions that (i) the
FAR's Limitation of Funds and Limitation of Cost clauses
do not limit CAS 413 segment-closing adjustments because
such adjustments of previously determined pension
costs do not increase contract-specific costs; and (ii)
recovery for segment closing adjustments is not dependent
on the contractor having fully funded them in accordance
with CAS 412 and the FAR's pension cost regulations
because segment closings are not pension costs.
denying two government motions in limine in Sikorsky
Aircraft Corp., the court included an
extensive interpretation and analysis of the coverage and and
interplay of subsections 50(d) and (e) of CAS 418.
Redland Co., the court held, inter
alia, that a contractor was not entitled to Eichleay
or unabsorbed overhead damages during a suspension of work
that was ordered before initial performance began, especially
when the contractor offered no proof that it remained on
standby during the suspension.
Timber Co., the court determined the
damages, including lost profits, due the contractor for the
Government's breach of timber sales contracts.
Building Systems, Inc., the court discussed how courts evaluate the enforceability of
liquidated damages provisions.
Group General Enterprises Co. W.L.L., the court
held, inter alia, that the Army's regulations at 32
C.F.R. §§ 516.51(a) and 516.52,
which purport to be an absolute bar against former Army
employees providing expert testimony adverse to the United
States, are invalid.
Group General Enterprises decision, which involves
attorney-client privilege and work product issues, the
court held that (in part because the Government did
not comply with an agreement to make such witnesses
available for deposition prior to trial) the
contractor could call as a witness a civilian attorney who
helped the Contracting Officer investigate the facts
underlying terminations for default and who gathered and
provided factual information used in the termination
Technical Services , the court granted an unopposed
motion to stay proceedings pending a related criminal
Inc., the court granted a surety's motion to intervene
in a dispute over an assessment of excess reprocurement
costs by the Postal Service against its contractor because
of the surety's potential liability on the performance
Corp., the court (i) granted the
plaintiff's motion in limine to preclude the testimony
of an SBA official (who had been hired after the facts
involved in the dispute at bar) concerning the generally
detrimental effect of fraud on the SBA's 8(a) program and (ii)
held that, regardless whether it was considered expert
testimony or lay opinion testimony, the SBA official's proffered
testimony did not satisfy the standards for admissibility.
LLC, the court held that the plaintiff had forfeited
its claim pursuant to the Forfeiture of Fraudulent Claims
Act, 28 U.S.C. § 2514, and that the Government was
entitled to penalties and damages (for its costs of
investigating the plaintiff's actions) under the False
Claims Act, 31 U.S.C. § 3729(a)(1), because the plaintiff
had engaged in a scheme to defraud the Government by
over-billing for preventative maintenance inspections of
trailers in the wake of Hurricane Katrina.
Industrial Park, Inc., the court held on reconsideration that the plaintiff was entitled to
recover attorneys fees regardless of the applicability of
the EAJA because the contract at issue specifically
provided for such recovery.
Court of Appeals for
the Federal Circuit
et al. v. United States, over a strong,
four-judge dissent, the CAFC held that Tucker Act
jurisdiction exists over claims for breach of contract by
the FDIC and, more generally, that "(1)
when a government agency is asserted to have breached an
express or implied contract that it entered on behalf of
the United States, there is Tucker Act jurisdiction of the
cause unless such jurisdiction was explicitly withheld or
withdrawn by statute, and (2) the jurisdictional
foundation of the Tucker Act is not limited by the
appropriation status of the agency’s funds or the source
of funds by which any judgment may be paid."
Mutual Casualty Co., the court held that: (i) a Miller Act surety's
claims against the Government seeking to recover allegedly
improper progress payments made to a contractor before the
Government received notice of the contractor's default are
not claims for equitable subrogation cognizable under the
Tucker Act; (ii) there is no Tucker Act jurisdiction over
claims for impairment of suretyship apart from the theory
of equitable subrogation; and (iii) the requirements of
the CDA apply to a surety’s claim
against the United States arising from a takeover
agreement which the government and surety have entered
into for the completion of a bonded contract following the
principal obligor’s default.
Construction, L.P., the court affirmed the CoFC's decision that,
although the court had CDA jurisdiction to consider the
contractor's claim that the Government gave it an unfair
performance evaluation, the complaint failed to state a
claim under Rule 12(b)(6) because the contractor did not
allege that all its delays were excusable and, thus, there
was no basis for concluding the Government's evaluation
was arbitrary or capricious.
L.L.C., the court reversed the CoFC and held that
court had Tucker Act jurisdiction over a contractor's
breach of contract claim following termination in
accordance with the 2008 amendment to the Medicare
Improvements for Patients and Providers Act.
Development Corp., the court affirmed the ASBCA's
dismissal for lack of jurisdiction because the contractor
failed to appeal a termination settlement cost claim to
the Board within 90 days of receiving the Contracting
Officer's decision and failed to submit equitable
adjustment claims within the CDA's six-year statute of
Learning, Inc., the CAFC reversed the CBCA's summary
dismissal of an appeal for lack of subject matter jurisdiction
because, after the contractor initially pled that its appeal
involved a contract covered by
the CDA, the CBCA made summary conclusions
about the credibility of evidence as to the existence of a
contract. The CAFC held the Board should have treated the
situation as a motion to dismiss for failure to state a
claim (where the factual allegations in the complaint must
be accepted as true) as opposed to a motion to dismiss for
lack of subject matter jurisdiction (where only the
uncontroverted factual allegations are accepted for
purposes of the motion).
Dynamics C4 Systems, the
reversed the ASBCA's
prior decision (partially because the Board applied
the wrong test for equitable estoppel) and held that the
fact that the contractor on an ID/IQ contract accepted
some emailed delivery orders, when the contract required
them to be mailed, estopped the contractor from claiming
an equitable adjustment when the Government directed it to
proceed after it refused to perform subsequent, similarly
defective delivery orders. The correct test for equitable
estoppel is the Federal Circuit's own test from the
Aukerman case, which requires a showing of "(1)
misleading conduct, which may include not only statements
and actions but silence and inaction, leading another to
reasonably infer that rights will not be asserted against
it; (2) reliance upon this conduct; and (3) due to this
reliance, material prejudice if the delayed assertion of
such rights is permitted."
Irrigation District, the court held that impossibility of performance is
a factor to be taken into account in considering the sovereign
a Court of Federal Claims decision that that
the Assignment of Claims Act does not prohibit the
assignment of existing contract claims in a spent nuclear
fuel case because the Nuclear Waste Policy Act, 42 U.S.C.
10222, allows such assignments.
Dynamics Corp. v. United States, the Supreme Court
vacated the prior opinion by the Court of Appeals for the
Federal Circuit and held that in a contract concerning
which the state secrets doctrine made it impossible to
prima facie valid affirmative defense to the Government’s
allegations of contractual breach, the proper remedy is to
leave the parties where they were on the day they filed
website links to resources on the web concerning
government contracting. It is not intended to provide
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or corrections, please email me.