Boards of Contract Appeals (ASBCA,
CBCA, PSBCA, and GAOCAB)
Disputes Act (CDA) Issues
Industries, Inc., the ASBCA held that, for purposes of the
CDA's statute of limitations, the claim did not accrue until
the Government advised the contractor of the Government's
interpretation of the disputed contract requirement. In
R. R. Gregory Corp., however, the ASBCA held that a claim for
remission of liquidated damages filed more than six years
after they were withheld was barred by the CDA's statute of
Al Rajaa Co. also ran afoul of the CDA's six-year statute
of limitations. In Certified
Construction Co. of Kentucky, LLC, the ASBCA dismissed the portion of the
contractor's claim that had accrued more than six years before
it was submitted to the Contracting Officer. In Environmental
Safety Consultants, Inc., the ASBCA held that the CDA's
statute of limitations had long since run on the portion of a
termination settlement proposal that covered a price
adjustment claim (for alleged increased costs) that had
accrued more than 14 years before the claim had been submitted
to the Contracting Officer.
Subsequently, the Board denied
motions for reconsideration of various points by both the Government
and the contractor.
Health Incorporated on Behalf of Douglas Consulting &
Computer Services, Inc., the CBCA held that (i) a
certification made by the prime contractor sponsoring its
subcontractor's termination for convenience claim was CDA
compliant; and (ii) no subcontract provision immunized the
prime from liability to the sub, and, therefore, the claim was
not barred by the Severin doctrine. Following is the
certification the Board approved (substituting generic descriptions
for the actual names of the prime and the sub):
I certify that this claim is made in good faith by
[the prime contractor]; that the supporting data
are accurate and complete to the best of [the prime
contractor's] knowledge and belief; that the
amount requested accurately reflects the contract adjustment for which
[the prime contractor]
believes the Federal Government is liable; and that I am duly authorized to
certify the claim on
behalf of [the prime contractor].
This claim is being filed on behalf of
[the prime's] subcontractor, [name of sub], and inasmuch as
[the subcontractor] does not have privity with the Government,
[the prime contractor] is acting as
a conduit on [the subcontractor's] behalf in this matter.
[The prime contractor] does not have access
to [the subcontractor's] books and records and, therefore, cannot make any statement with
to the amount of [the subcontractor's] claim. However,
[the prime contractor] has no reason to
believe that [the subcontractor's] cost figures and supporting data are inaccurate or
Ins[urance] Corp. v. United States, 973 F.2d 1572, 1575
(Fed. Cir. 1992)
(holding that substantially similar language complies with the
certification requirements of the
Contract Disputes Act, 41 U.S.C. § 7103(b), formerly codified at 41
U.S.C § 605(c)(1).
reference to the Transamerica decision was a part of
States Federal Contracting, LLC, the CBCA dismissed an
appeal for lack of standing because the appellant failed to
prove it was an LLC in good standing in the state in which it
was organized as a business entity.
LODOVICO, S.r.l., the ASBCA denied the Government's
motion to dismiss (as untimely) an appeal filed more than 90
days after the date by which a prior board decision had
ordered the Contracting Officer to issue his decision, in a
situation where the Government allegedly had emailed that
decision to what it believed was a representative of the
contractor on the due date, followed by mailing a copy to the
contractor's official address. The Board noted the contractor
had done all that was required, which was to appeal within 90
days of the date it received the mailed decision. Part of the
Board's reasoning was based on the fact that there is no
statutory 90 day time limit for appealing from a deemed
Valley Forest Products, the CBCA dismissed an appeal as
untimely because it was filed more than 90 days after the
earliest date the contractor received the Contracting
Officer's decision on its claim, even though the contractor
had also received confirming copies of the decision on
Enterprises, the ASBCA dismissed an appeal filed more than
90 days after the contractor had sent the Government an email
acknowledging its receipt of the Contracting Officer's
decision. In Government
Services Corp., the CBCA dismissed (as untimely) an appeal
filed 91 days after receipt of the Contracting Officer's
Cleaners, the ASBCA dismissed
as untimely an appeal filed 400 days past the 90 day limit
after receiving the Contracting Officer's
Aerospace Group, Inc. dba USAC Aerospace Group: Aerostructures,
the ASBCA analyzed the timeliness of several appeals emailed
to the Contracting Officer rather than to the Board based upon
whether those emails were sent within the 90-day period.
Technologies, LLC, the ASBCA denied the Government's
motion to dismiss an appeal as premature because the
Contracting Officer's letter near the end of original 60-day
deadline for issuing a decision stating it would be "at
least" another 60 days before a decision was issued was
not sufficiently definite to comply with 41 U.S.C. 7103(f)(2)(B),
and the contractor was, therefore, authorized to appeal at any
time from that point forward.
Co., the ASBCA (i) denied the Government's motion to
dismiss an appeal as untimely because the contractor could
reasonably have concluded the Contracting Officer was
reconsidering his decision; and (ii) denied the Government's
motion to dismiss the claim as time-barred because it
was filed more than two months before the six- year CDA
statute of limitations would have expired.
Ferro, the PSBCA denied the Postal Service's motion to
dismiss the appeal because it involved the same operative
facts and amount sought as the claim previously presented to
the Contracting Officer for a decision.
G. Logan, the PSBCA dismissed an appeal based on a
convenience termination claim because the contract contained
only a clause allowing termination without cost upon proper
Laney, the PSBCA dismissed part of a contractor's claim
because it was barred by the CDA's statute of limitations but
found the Postal Service liable for payment of the last month
before the contract was terminated, even though the contract
had been suspended, because the contract did not specifically
provide for cessation of payments during a suspension.
Services, LLC, the ASBCA dismissed, as untimely, an appeal
filed more than 90 days after the contractor received the
Contracting Officer's decision.
Brown & Root Services, Inc., the ASBCA dismissed
an appeal due to the CDA's six-year statute of limitations
because the claim had originally been withdrawn
voluntarily before the Contracting Officer had issued a
decision, and there was no basis for equitable tolling.
ASFA International Construction Industry
and Trade, Inc., the ASBCA held, inter alia, that
one government claim for liquidated damages was time-barred by
the CDA's statute of limitations.
International Development Services, the ASBCA held
that a termination letter notifying the contractor it had
the "right to appeal under the disputes clause,"
but not including the required language about the time
limits and possible forums for appeal, did not start
appeal clock running.
LLC, the ASBCA held that a contractor's
"initial" requests for payment were,
nevertheless, CDA claims because they were labeled as
such, were for sums certain, demanded payments as a right
with supporting statements of fact and legal narratives,
were certified, and included requests for decisions by the
Support Assocs., the ASBCA denied a contractor's
motion to dismiss government claims as time barred by the
CDA's statute of limitations, but reserved the right to
examine the issue further once the record was more fully
Alshemal Earth Co., the ASBCA dismissed an appeal for
lack of jurisdiction because the contractor disavowed any
connection with purported appeal notice.
West Management Corp., the CBCA dismissed an appeal for
lack of jurisdiction because the appellant (the managing agent
of the contractor) had no contractual relationship with the
Solutions Global, LLC, the ASBCA dismissed a contractor's
request for the Board to direct the Contracting Officer to
issue a decision because the underlying claim did not state a sum
certain that was being claimed.
Pinnacle, L.L.C., the CBCA dismissed an appeal for lack of
CDA jurisdiction because a cooperative agreement between the
Federal Government and a local Parish did not give rise to a
procurement contract whereby the Federal Government received a
direct benefit from the work of the appellant (the Parish's
Federal Services LLC, the CBCA denied the Government's motion to
dismiss, holding that the complaint alleged claims sufficiently similar
to those originally presented to the Contracting Officer to establish
the Board's jurisdiction.
Al Blad Co., the ASBCA held it lacked jurisdiction over an
appeal involving an uncertified claim for $500,000.
Sound Environmental Corp., the ASBCA held (i) it lacked
jurisdiction over a claim for contract adjustment based on
alleged misclassification of DOL wage rates because the DOL
had not yet ruled on the proper classification, which was
within the DOL's sole jurisdiction; and (ii) it had
jurisdiction over another claim for adjustment based on
allegations in the original claim that the Government had
breached a delivery order by terminating it for convenience on
the false pretext that it no longer needed the services but
then had continued to order the services from another
firm. The complaint the contractor subsequently filed at the
Board did not allege that the termination was in bad faith,
but the Board noted that it was the language of the original
claim that determined whether or not it had
Co., the ASBCA dismissed an appeal for lack of
jurisdiction because the emails to the Contracting Officer
that the contractor alleged constituted its claim did not
specify a sum certain.
Line Limited, Inc., the ASBCA rejected the Government's
contention that the dispute was covered by the GSA's dispute
resolution procedures under The Transportation Act of 1940 and
held that the Board had CDA jurisdiction over a dispute
involving GSA claims for overcharges under a FAR-based
transportation services contract covered by CDA. The Board
also held that the contractor's submission to the Contracting
Officer (which was based on the assertion that the overcharge notices
issued by the GSA were not consistent with the provisions of the CDA,
the FAR, or the contract) was a claim within the meaning of
Co., the ASBCA held it lacked jurisdiction over an appeal
involving a $920,602 claim that (i) included a certification without a
physical signature and (ii) bore only the company's stamp and the typed written name of
its general manager, because the defects in the certification
could not be cured on appeal.
Aerospace & Defense Co., the ASBCA held that, although
an appeal was premature when originally filed, the Board had
jurisdiction because the Contracting Officer still had not
issued a decision on the underlying claim as of date of the
Board's decision on the Government's motion to dismiss for
lack of jurisdiction and more than a reasonable amount of time
had passed without that decision.
Engineering and Environmental Consulting, the ASBCA held
that, although it lacked jurisdiction over an appeal involving
a termination settlement proposal that was still being
negotiated at the time of the appeal, it did have jurisdiction
over a subsequent appeal of the same matter because the
Contracting Officer had issued a "settlement by
determination" letter after the original appeal had
been filed, which indicated an impasse had been reached in the
negotiations and which was an appealable event.
Business Services, LLC, the CBCA dismissed an appeal based
upon an alleged breach of a BPA because a BPA is not a
Construction Co., the ASBCA dismissed the Government's
monetary claim against the contractor because it was
time-barred by CDA's six-year statute of limitations.
Iraq Ahd Co., the ASBCA dismissed an appeal for lack of
jurisdiction because an MOA contingent on the availability of
funds that never became available was not a contract.
Pride Jewelry LLC, the ASBCA held it had jurisdiction to
decide a dispute under an AAFES agreement because the
agreement's Disputes clause specifically granted it such
authority, even though the agreement erroneously referred to
the CDA. However, on the merits, the Board denied the
contractor's breach claim because the agreement did not
require the Government to advertise the contractor's products.
Maritime Services, Inc., the ASBCA denied the Navy's
motion to dismiss for lack of jurisdiction and held that (i) a
non-FAR based transportation contract was governed by the CDA,
and (ii) the Transportation Officer who administered the
contract met the CDA definition of a Contracting Officer.
Doctors, Inc., the CBCA (i) dismissed one count of the
complaint that involved a claim that had not been presented to
the Contracting Officer for a decision; but (ii) denied
the Government's motion for summary relief as to a second
claim that involved allegations that the contractor had signed
a modification only under improper duress from the Government.
Ford Dock, Inc., the ASBCA dismissed an appeal with regard
to a claim of superior knowledge not previously presented to
the Contracting Officer for a decision; subsequently, the
the contractor's request for reconsideration.
Western, Inc., the CBCA held that a contractor's Project
Manager did not have the requisite authority to submit a
notice of appeal on behalf of the corporation.
Management Services, Inc., the ASBCA dismissed several
related appeals because (i) release language in a settlement
operated as an accord and satisfaction, and (ii) the Board
lacked jurisdiction over the contractor's complaints
concerning the payment of settlement proceeds to the IRS as
part of its enforcement of federal tax liabilities.
JV, the ASBCA dismissed an appeal because the underlying
claim was not for a sum certain, but rather for "at
least" a stated amount, and because of a lack of evidence
that the individual submitting and certifying the claim had
the requisite authority to do so.
Fire, LLC, the CBCA held it lacked jurisdiction over an
appeal based on an allegation of the existence of an implied
contract because that theory had not previously been presented
to the Contracting Officer for a decision.
& Co., the ASBCA held that a contractor had converted
a routine request for payment into a CDA claim by its repeated queries seeking payment after the
Government's continued failure to pay its original invoice.
Bizhan Niazi Logistic Services
Company, the ASBCA dismissed an appeal for lack of
jurisdiction because no prior CDA claim had been submitted to
the Contracting Officer for a decision. In Macro-Z
Technology, the ASBCA (on its own motion) dismissed a
pre-award claim only quantified during proceedings at Board
because it had not previously been presented to the
Contracting Officer as a sum certain.
Simulator Co., the ASBCA dismissed a subcontractor's
attempt at a direct (unsponsored) appeal from a prime
Ostrich Ranch, the ASBCA held it lacked jurisdiction over
a contractor's requests for injunctive relief to stay default
terminations and collection actions by the Government.
Iraq Ahd Co., the ASBCA held it lacked CDA
jurisdiction over appeals from (i) an uncertified claim
and (ii) another claim submitted more than six years after
all events that gave rise to Government's alleged
liability had occurred.
Co., there were several good reasons for dismissing the
appeal for lack of jurisdiction, but the ASBCA settled on the
fact that there had been no underlying claim submitted to the
Contracting Officer. Subsequently,
the Board denied
the contractor's request for reconsideration.
Iraq Ahd Co., the ASBCA held that (i) it lacked
jurisdiction over a claim raised for first time on appeal; and
(ii) a bilateral modification operated as an accord and
satisfaction because an allegation that the Contracting
Officer had threatened a convenience termination to induce
contractor to sign it did not satisfy the elements required to
establish that the modification was signed under duress.
Construction & Engineering, the ASBCA held that the
contractor's submission of a fraudulent master electrician
certification in order to obtain a contract rendered it void ab
initio, even though the contractor blamed the problem on a
subcontractor. Similarly, in
International Trading Corp., the ASBCA held that
bribery of the Government's program manager in connection
with obtaining a contract rendered it void ab initio.
Solutions America, Inc., the ASBCA held it lacked
jurisdiction over a dispute arising out of an Army delivery
order that involved issues related to an underlying GSA
schedule contract because there had not been a decision by a
GSA Contracting Officer.
Logistics Services Company KSC, the ASBCA held it
lacked jurisdiction over appeals involving the
definitization of task orders under an ID/IQ contract
issued to the appellant by the Coalition Provisional
Authority of Iraq.
Star Technical Services, Inc., the ASBCA held that, as a
matter of contract interpretation, a contract clause covering
the responsibility for damage to the specific item in dispute
controlled over another clause covering responsibilities for
damage in general.
Training Systems, Inc., the ASBCA held that (i) the
contract placed the risk of increased shipping costs on the
contractor; (ii) application of the Christian doctrine to
incorporate FAR 52.245-2 (Government Property) was
inappropriate in a contract for commercial items; (iii) there
was, however, an implied warranty that government-supplied
equipment would be fit for its intended use; and (iv) the
contractor was entitled to only 10 days of compensable delay
because its evidence of the duration of delays caused by the
breach of that implied warranty was "spotty."
Corp., the ASBCA (i) rejected the contractor's contention
that the Government had breached the contract by failing to
order some supplies within a time that would have permitted
delivery within 2 years of award and (ii) held that, where the FAR 52.216-18
"Ordering" clause defined the period for ordering supplies as
the "DATE OF CONTRACT AWARD . . . THROUGH: TWO (2)
YEARS," and the FAR 52.216-22(d) "Indefinite
Quantity" clause provided that "the Contractor shall
not be required to make any deliveries under this contract after Two
Years," the clauses, having different purposes, were not
in conflict, and, even if they had been, they would have
created a patent ambiguity about which the contractor should
have inquired prior to bidding.
Contracting, LLC, the CBCA denied an appeal because
the contractor had not inquired regarding a patent ambiguity
in the contract prior to bidding.
B. Merrell, the CBCA denied an appeal by a disgruntled
purchaser of a vehicle at auction because she had chosen not
to take advantage of the opportunity to inspect the vehicle
17th Street Operating Co., LLC, the CBCA interpreted a
lease to determine the Government's proper share of a
building's property taxes.
Inc., the ASBCA denied a Type I differing site conditions
claim because (i) any absolute reliance on the limited and
qualified indications concerning site conditions in the
contract would have been unreasonable; (ii) the contractor did
not prove it relied on those indications; and (iii) even if it
did so, its interpretation of those indications was not
Kim & Co., the CBCA denied a lessor's claims for
unpaid rent and damages to property because the leased
building was untenantable due to problems not attributable to
the Government as the lessee.
Safdie and Assocs., the CBCA discussed in detail the
standards for considering (i) the unique issues involved in
contractor claims for extra work under a design contract and
various specific claimed cost elements, including extra work
by salaried employees and appropriate overhead rates; and (ii)
the Government's counterclaim for alleged delays in providing
an adequate design.
Al-Rafidain Contracting Co., the ASBCA denied the
contractor's claim that the contract required the Government
to order more work because the Government had satisfied the
minimum order requirements the IDIQ contract.
General Trading & Contracting, WLL, the ASBCA granted
the Government's motion for summary judgment because there was
no evidence of implied-in-fact cost-reimbursable
contracts for the provision of laundry services.
Lee, which involved a timber sales contract, the CBCA held
that the contractor did not own timber that had not yet been
measured, removed, and paid for, and, thus, the agency was
within its rights to stop the contractor from cutting timber
that had been mistakenly marked for cutting.
Management, the CBCA denied various claims by the
contractor because the agency had fulfilled its obligations
under the contract, while the contractor had not, and, as
explicitly stated in the contract, the agency's notice of its
intent to exercise the option did not commit it to exercise
that option. Subsequently, the CBCA denied
the contractor's motion for reconsideration.
Research Center, LLC, the CBCA granted the contractor's
request for payment under the Tax Adjustment clause because
the contractor's evidence established it was more
probable than not that the contractor had timely mailed the
information in accordance with the requirements of the
contract, even though the Government established a prima
facie case that it had not received the information.
Site Solutions, Inc., the ASBCA held that the Government's
was the only reasonable interpretation of the MIX DESIGN
paragraph in a construction contract's specs. In a subsequent Classic
Site Solutions, Inc.
decision, the ASBCA held that the Government
was not bound by a summary level, preaward project schedule in
a bidder's proposal when clear solicitation requirements
established a different time for the event in dispute between
Bow Technologies, LLC, the ASBCA held that the monetary
amount of the Contracting Officer's warrant was sufficient to
give him authority to execute the contract and the options at
issue in the appeal.
Constructors, Inc., the ASBCA (i) denied a Type I
Differing Site Conditions claim in part because the
contractor did not provide evidence of its precontract
reliance on the indications of the site condition in the
solicitation or that the conditions at the site were
different, at that time, from those indicated in the
solicitation; and (ii) denied a changes claim because the
contract unambiguously required deep footings under
balconies and exterior walkways, and the Government was
within its rights to require strict compliance with these
specifications, so denying the contractor's requests to
deviate was not a breach of the duty to cooperate with the
Government Services, Inc., the CBCA held that,
although there was no express or implied contract between
a firm and the agency, additional fact finding would be
needed to determine whether there had been
"institutional ratification" of the alleged
ASBCA denied an appeal by Al
Bahar Co. because the contractor presented no
credible evidence that it had performed, or that the
Government had accepted, the work at issue in the appeal.
Solutions Global, LLC, the ASBCA dismissed an appeal
of a breach of contract claim because the contract was an
IQ contract, and the Government had fulfilled its
obligations by ordering the minimum required quantity.
Building Co., the ASBCA held that the Government had
properly rejected a contractor's submittal of its proposed
subcontractor's elevator system because the subcontractor did
not comply with the contract requirement that it be regularly engaged in the manufacture of pre-engineered
elevator systems. Subsequently, the Board denied
the contractor's motion for reconsideration.
Excavating & Land Clearing, LLC, the CBCA held that a
timber sales contract did not allow an award of damages for
lost income for the time period during which contract
performance was suspended.
Authum Ki Inc., the CBCA held that the release language in
contract modifications did not apply to (and, therefore, did
not bar) the contractor's Differing Site Conditions claims.
Hospitals, LP dba South Texas Health System, although the
CBCA found that many of the issues were not ripe for summary
judgment, it held that the contract was unambiguous in not
limiting the contractor to the reimbursement rate alleged by
Hill Construction, Inc., the ASBCA held that (i) the
implied covenant of good faith and fair dealing did not
require the Government to help the contractor perform work
that the contract specifically stated was the contractor's
sole responsibility; and (ii) the contractor's claim of the
Government's superior knowledge failed because the contractor
had the opportunity to gain that knowledge on its own before
bidding the job.
Ferro, the PSBCA denied the contractor's claims for
additional costs because they were covered by bilateral
modifications that were neither unconscionable nor entered
into under duress.
a decision involving contract interpretation, the ASBCA held
that, by its own
terms, a bilateral modification was neither a release nor an
accord and satisfaction of the contractor's claims involved in
G. Davis Construction Corp., another case involving contract
interpretation, the ASBCA denied the contractor's claims
(brought on behalf of a sub) for allegedly extra insulation
because, in one instance, the contract unambiguously required
such insulation and, in another, the contractor's
interpretation on appeal was at odds with the one it had
employed during contract performance, which was consistent
with the Government's interpretation.
A Joint Venture, the CBCA issued a declaratory
judgment that (i) a contract modification required the
Government to provide a design to the contractor that
could be built for a specified amount; (ii) the Government
breached the contract by failing to provide such a design;
(iii) therefore, the contractor (which has been proceeding
with performance under protest) is entitled to stop work.
ruling that the consideration of declaratory relief
was appropriate in the circumstances of this dispute.
Inc., the ASBCA denied certain claims by the
contractor, but held that the Government's failure to
award the required quantities and to provide "award
terms" in accordance with the contract's requirements
breached the contract. Subsequently, except for minor
clarifications, the ASBCA denied the Government's
motion for reconsideration.
ASBCA denied the contractor's constructive change claim in
Chief Management Services, Inc., holding that the
Government's statements to the contractor did not compel
it to expend hours in excess of the total specified by the
In Justman Freight
Lines, Inc., over a dissent, the PSBCA held that a bilateral
modification eliminating one major delivery route and
repricing the remaining contract was a deductive change rather
than a partial termination and operated as an accord and
satisfaction, barring the contractor's future claims for,
e.g., purchased equipment allegedly rendered useless by the
change, even though the modification did not include any
Technologies Ordnance Systems LLC, the ASBCA held that, in a supply contract for the delivery of
three, severable types of guns, the Government properly
terminated a portion of the contract for failure to deliver
one type of gun, properly terminated the portion attributable
to a second type of gun for failure to make progress and
failure to provide adequate assurances of performance, but
improperly terminated the third type because the contractor
was not yet in default as of the date of the termination and
had not anticipatorily repudiated its obligations.
Subsequently, the Board denied the contractor's motion
Underwater Equipment Sales Corp., the CBCA (i) upheld a
termination for cause after the Government's tests showed
leaking dry suits, but (ii) dismissed the Government's claim
for excess reprocurement costs as premature because it was not
yet the subject of a written decision by the Contracting
Construction and Marine Group, Inc., the CBCA overturned a
default termination and awarded the contractor termination for
convenience costs because (i) the contractor's interpretation
of a disputed contract requirement was the only reasonable
interpretation; (ii) the Government's position that the
contractor had failed to make progress did not take into
account excusable delays due to the unexpected amount of rust
encountered by the contractor; (iii) a government message to
the contractor did not amount to a request for adequate
assurances of performance; and (iv) the Government failed to
produce any evidence that contractor had actually damaged
Group, Inc., the ASBCA rejected multiple arguments made by
the contractor against an assessment of liquidated damages for
late completion of the contract work.
Inc., the ASBCA denied an appeal of a default termination
for failure to make progress because there was no reasonable
likelihood the contractor could provide the First Article by
the contract's delivery date, and the contractor failed to
provide adequate assurances in response to Government's cure
Group, LLC, the ASBCA upheld a default termination and an
assessment for unliquidated performance-based payments because
the contractor was in default, and it failed to prove its
default was excused by such things as the Government's alleged
superior knowledge or its alleged lack of good faith and fair
Industries, Inc., the ASBCA upheld a termination for
default after a response to a cure notice, which mainly
regurgitated excuses and explanations the Government already
had found to be inadequate.
Marine Group, the CBCA held that a termination for cause
was improper because it was based on a nonconforming item that
the Government already had accepted with knowledge of its
Construction Co., the ASBCA held that, without regard to
the number of instances involved, a contractor's solicitation
and receipt of kickbacks from its subcontractors constituted
criminal fraud and a material breach which extinguished the
Government's obligation to make further contract payments.
Contract Station LC, the PSBCA denied the contractor's
claims for damages as a result of a termination after the
Government entered into CBA with a postal workers' union,
which called for the closure of the Temple station, among
others, because, inter alia, the terminated contract
included a clause allowing either party to terminate for any
reason upon 60 days' notice, and there was no showing the
Government's termination decision was intended to injure the
International Corp., the GAO's Contract Appeals Board
upheld the Contracting Officer's decision to impose a price
discount on the contractor because it had delivered items that
were noncompliant with a clear, material contract
R. Rouillard, d/b/a International Gear Technologies,
the ASBCA granted the Government's motion for summary
judgment denying an appeal from a default termination
because (i) the alleged illness of the contractor's
President's father did not excuse the default; and (ii)
the contractor had failed to provide proof for four of the
five required showings for its allegation that it had made
a mistake in bid. ASBCA
No. 58458 is essentially the same decision on a
Machine Shop, Inc., the ASBCA denied the Government's
motion for summary judgment concerning the propriety of a
default termination because the evidence produced by the
Government did establish the required elements for a
showing of anticipatory repudiation. ASBCA
No. 59133 is essentially the same holding.
Carranza Trucking Co., the PSBCA held that the Postal
Service properly terminated contracts for default after
the contractor refused to continue performance to protest
the Postal Service's efforts to collect costs of excess
fuel through partial offsets against monthly contract
payments, because the contracts specifically permitted
Timberlands, LLC, the CBCA held that the agency had
properly canceled a contract executed by someone who
lacked authority to act on behalf of the contractor, as
void ab initio.
after Government exercised an option for 12 months of service
and then terminated the contract part way through the first
month, the contractor was entitled to payment for first full
month's service because that was one "unit" of
Defense & Government Services, Inc., the ASBCA denied
the Government's motion to dismiss the contractor's claim
because a convenience termination issued after the original
claim had been submitted did not moot all elements of that
Inc., the ASBCA denied the bulk of a convenience
termination claim (based on a contract termination that
had issued shortly after award) due mainly to a lack of
proof and to the principle that, even in government
commercial items contracts, the terminated contractor is
not entitled to unearned profit.
International Corp., the GAO's Contract Appeals Board
held that the Government properly imposed a price discount
on the contractor when its samples failed to comply with
material contract requirements.
LLC, the ASBCA held that the contractor had failed to
prove it was forced to sign a bilateral modification
(detailing the amount owed to the contractor after a
termination for convenience) under duress.
Building Co., the ASBCA denied most aspects of the
parties' motions for summary judgment, but held the
contractor had established one of three required elements
for recovery of Eichleay damages, i.e., that
there had been a government-caused delay of uncertain
Pricing, and Cost
Accounting Standards (CAS)
Grumman Corp., the ASBCA upheld the Government's
disallowance of post-retirement benefit costs under FAR
31-205.6(o) because the costs were not accrued using GAAP/FAS
106 and were not timely funded. Subsequently, the Board denied
the contractor's motion for reconsideration.
Brown Engineering, Inc., the ASBCA
denied the Government's motion for summary judgment that,
because a cost-plus-fixed fee contract had only been funded to
approximately half of its ceiling cost, the contractor could
not possibly be entitled to its full fixed fee.
Systems San Francisco Ship Repair, the ASBCA denied a
contractor's motion for summary judgment, holding that a DCAA
audit report approving of disputed costs was not dispositive
of the issue because it was the Contracting Officer's job to
decide the contractor's claim.
Brown & Root Services, Inc., the ASBCA dismissed one
government claim as untimely under the CDA's statute of
limitations and held for the contractor on other government
claims because the contractor's costs of hiring private
security companies to provide protection not adequately
afforded by the Government in Iraq were reasonable and
International, the CBCA held that the contractor was not permitted to apply a mark-up rate for
G&A expenses in its billings for exception travel ordered under
Contracting, Inc., the ASBCA used the jury verdict method,
rather than a total cost approach, to determine the quantum of
excess costs resulting from the requirement that a contractor
move an excavation pit from the location it had anticipated in
bidding the job.
Transmission, Inc., the ASBCA held that the CAS statute
requires the contractor to pay compound interest on
increased costs paid by the Government as a result of the
contractor's change in its cost accounting practices. (The
decision is labeled nonprecedential, but it does state
what the law is).
Communications Co., LLC, the CBCA held that (i) the
Government owed CDA interest from the date a claim was submitted
to the Contracting Officer even though the Government did not
dispute the claimed amount; and (ii) the Government owed PPA
interest from the date of a novation agreement, which stated
that "[t]he Government shall, as soon after the date of this
Agreement as reasonably possible, make all payments and reimbursements under the contract
to [the contractor]."
Services, Inc., the ASBCA, inter alia, rejected
the contractor's claim for G&A costs in a convenience
termination settlement proposal because the contractor had
not allocated those costs across final cost objectives.
Options, Inc., the
ASBCA calculated the appropriate equitable adjustment for increased labor costs
associated with the storage of additional goods under a contract to provide inventory management, shelf stocking, and
Security, Inc., the CBCA denied the Government's motion to
summarily dismiss an appeal for failure to state claims based
on mutual mistake and breach of the duties to cooperate with
the contractor and not to hinder its performance.
Nadiry, the CBCA dismissed an appeal for failure to
prosecute after the appellant failed to respond to several
orders from the Board. In Al Barih for General Contracting Ltd.,
the Board dismissed longstanding appeals for failure to
prosecute, holding that financial hardship and difficulty
locating an attorney were not adequate excuses. In Vet-Tech,
LLC, the CBCA dismissed an appeal for failure to prosecute
after repeated failures by the contractor to respond to the
Seeop Corp., the ASBCA denied the contractor's motion for
the sanction of a default judgment against the Government due
to the Government's failure to file a timely answer.
A Joint Venture, the CBCA discussed the standards
governing the public disclosure of (i) videotapes (and
transcripts) of discovery depositions and (ii) procedural
motions filed by the parties.
& Gorrie, LLC, the CBCA denied a contractor's
motion for partial summary judgment because it was
essentially a complaint about the Government's delays in
auditing subcontractor claims, which was not a sufficient
reason to grant those claims when there were still genuine
issues of fact regarding them.
Inc., the ASBCA temporarily stayed proceedings on an
appeal from a deemed denial of a claim in order to allow the
Contracting Officer time to issue a decision as a means to
facilitate potential settlement of the claim.
Warehousing Co., K.S.C., the ASBCA granted the
Government's motion to dismiss an appeal without prejudice
pursuant to Rule 30 due to a pending criminal case in district
court with overlapping issues.
Defense Co., the ASBCA granted the contractor's
request to require Government to file the complaint where
the Government had alleged that the contractor was
noncompliant with CAS 402.
Enterprise, Inc., the ASBCA granted the contractor's
requests to dismiss appeals without prejudice because (i)
the parties agreed that no impasse had occurred in
negotiations over a convenience termination settlement
proposal before the Contracting Officer had issued his
decision; and (ii) the contractor had not certified
another claim in excess of $100,000.
Inc., the ASBCA denied a contractor's motion to dismiss an
appeal without prejudice under Rule 30 so that it could seek
relief from Congress because it lacked the resources to pursue
Leidos, Inc., f/k/a Science Applications
International Corporation, the ASBCA granted the
Government's motion to substitute a contract number for one
that had been incorrectly identified in the Government's claim
for alleged misallocation of costs in various CAS-covered
Systems San Francisco Ship Repair, the ASBCA held that the
contractor was not entitled to a summary judgment as to the
allowability of disputed costs simply because a DCAA audit had
not taken any exception to the claimed
Piedmont, J.V., LLC, the ASBCA held that the date
established by the Contracting Officer for issuing a decision
on a complex claim was reasonable and, therefore, denied the
contractor's request for an order directing the Contracting
Officer to issue the decision sooner.
Mobley Assocs., Inc., the CBCA ruled on various claims of
attorney-client privilege by the Government concerning emails
and attached documents. Subsequently, the Board vacated
the ruling to permit the Government to submit a log of
allegedly privileged documents.
Safety Consultants, Inc., the ASBCA denied the contractor's
motion for the presiding judge and panel to recuse themselves,
holding that unhappiness with the Board's rulings was not a
sufficient basis to seek recusal.
West & Assocs., Inc., the CBCA denied the Government's
motion to dismiss an appeal from a deemed denial because the
Government did not establish why it needed additional time to
issue a Contracting Officer's decision.
Safety Consultants, Inc., the ASBCA imposed sanctions
(limiting the evidence the contractor would be able to present
at the hearing) as the remedy for the contractor's failure to
comply with the Board's discovery order.
Safety Consultants decision, after the Court of Appeals
for the Federal Circuit had ruled in its favor on a government
set-off claim, the contractor urged the CBCA to dismiss a
prior appeal without prejudice in case the Government
might attempt to make another setoff claim against it.
The Board, nevertheless, dismissed the appeal with
& Gorrie, LLC, the CBCA imposed significant sanctions
against the VA for repeated discovery delays and failures to
comply with the Board's discovery orders.
Systems Land & Armaments, Inc., the ASBCA directed the
Government to file the complaint on its defective pricing
claim even though the appeal was from the Government's denial
of the contractor's claim, which was a response to the
Government's allegation of defective pricing that had
been made without a Contracting Officer's decision.
Equal Access to Justice Act
R. Rouillard III dba International Gear Technologies, the
ASBCA held that (i) the contractor was not entitled to
attorney fees for the time period before an individual was
retained as its attorney, but was assisting the contractor
only as a contract specialist; (ii) the jury verdict method
should be used to determine the portion of the contractor's
legal fees that were recoverable on a partially successful
appeal; and (iii) the EAJA award should not be reduced for
mistakes made (or incorrect conclusions drawn) by the
contractor's attorney in his legal research.
Sand & Gravel Co., the CBCA granted an EAJA
application after a successful appeal, but reduced the
attorney's $250 hourly rate to the $125 statutory limit.
Court of Federal
Act (CDA) / Tucker Act / Jurisdiction / Standing
Electrical Contractor the court dismissed a subcontractor's direct claim against the
Government for lack of jurisdiction because it was neither
sponsored nor passed through by the prime contractor.
Technology LLC, the court held that the
plaintiff, a subcontractor/vendor, had failed to establish it
was an intended third party beneficiary of a loan and security
agreement between the Government and a company that was to
construct a wireless broadband network in various rural areas.
Street Assocs., L.P., the Contracting Officer originally issued a final decision
to withhold more than $800,000 from payments otherwise due the
contractor. The contractor appealed to the CBCA. The
Government moved to dismiss for lack of jurisdiction because
the contractor had not filed its own certified claim. The CBCA
further briefing on that issue, but before the matter was fully
briefed, the parties jointly moved to dismiss the appeal so
that the contractor could file a certified claim, which it
did. The Government issued a decision denying that claim; and
the contractor then brought suit on both decisions in the
Court of Federal Claims. The Government then reversed itself,
admitted the first Contracting Officer's decision involved a
government claim, and moved the court to dismiss that part of
the suit because the contractor had already made a binding
election to proceed before the CBCA. The court agreed.
However, that left the suit on the second Contracting
Officer's decision before the court, which asked for
further briefing on the question whether the contractor's
election also applies to all or part of the suit on the second
Contracting Officer's decision.
Brown & Root Services, Inc., the court held
that the contractor's indemnification requests submitted to
the Contracting Officer involved monetary claims over which
the court lacked CDA jurisdiction because they were neither
stated in a sum certain nor certified.
Co., the court (i) held that the portion of a contract
involving the sale of business scrap inventory was governed by
the CDA, even though other portions of the contract were
covered by Relocation Act; and (ii) rejected the Government's
contention that the contractor failed to submit claims to
Contracting Officer because the Government did not identify
who that was, and the individuals to whom contractor had
submitted claims had made several payments on them.
General Trading & Contracting Co., W.L.L., the court
held that, while one document sufficed as a final decision on
one of the contractor's claims, a contract modification that
did not (i) indicate it was a final decision, (ii) include a
demand for payment, or (iii) inform contractor of its appeal
rights was not sufficient to start the appeal clock running on
Construction Group, Inc., the court dismissed a claim because, as originally presented to the
Contracting Officer, it covered a matter for which the
contractor had assumed the risk in its fixed-price contract
and, as articulated before the court, it was based on a
different set of operative facts than any claim that had been
submitted to the Contracting Officer, and, thus, was not ripe
for review by the court.
Insurance Co., et al., a dispute over the propriety of a
default termination, the court held it
lacked jurisdiction over the portion of the suit involving the
contractor's claim for convenience termination costs because
it had not been submitted to the Contracting Officer for a
latest decision in the Palafox
Street Assocs., L.P. case, the court held that a certified claim resubmitted by a contractor at
the Government's urging was not a request for
reconsideration of the contractor's original claim. The court
requested additional briefing on an election-of-forum issue.
States Enrichment Corp., the court held
it lacked jurisdiction over the portions of the plaintiff's
breach-of-contract claims that related to its work as a
Cornerstone Builders, Inc., the court (i) held
that an agency's
failure to appoint a successor Contracting Officer upon the original
Contracting Officer's death did not eliminate the CDA's requirement to
submit a claim to the Contracting Officer prior to bringing suit; and
(ii) dismissed the suit because the claim described in the complaint
differed from the claim previously
submitted by the contractor.
Frankel, the court held it had
jurisdiction over a claim that the Government had breached a
contract to provide the winner of a competition with a
Government Properties and Houma SSA, LLC, the court dismissed a suit challenging a default
termination because the contract had been improperly assigned
in violation of 41 U.S.C. 6305.
Angels Medical Service Dogs, Inc., the court dismissed
(as untimely) a suit challenging a default termination
issued more than 12 months before the suit was
Technologies, Inc., the court held that, although
there was no express contract or contract implied in law
between NASA and the subcontractor/plaintiff, and the
subcontractor was not a third-party beneficiary, the
subcontractor had pled sufficient facts for the court to
assume jurisdiction over its implied-in-fact contract
theory. In New
Hampshire Flight Procurement, LLC, however, the court
dismissed another subcontractor's complaint because there
was no express or implied-in-fact contract between NASA
and the subcontractor, and the subcontractor was not
a third-party beneficiary.
Angels Medical Service Dogs, Inc., the court dismissed
(as untimely) a suit challenging a default termination
issued more than 12 months before the suit was
Inc., the court held that the contractor
was liable for the Government's costs of disposing of
ammunition because the contractor had breached its contractual
obligation to do so. The court also held that the
contractor's failure to file an affirmative breach claim
with the Contracting Officer precluded it from alleging the
Government's antecedent breach as defense to the Government's
own claim for breach. The court cites, inter alia, M Maropakis Carpentry, Inc. v. United
States, 609 F.3d 1323 (Fed. Cir. 2010) as precedent for this
latter holding, but I am unpersuaded. To me, the better
analysis of Maropakis comes from the ASBCA's decision
of September 2 in ASFA International Construction Industry
and Trade, Inc. , where the Board held that the contractor
was not required to submit a claim for waiver before asserting
it as a defense to a government claim for liquidated damages:
Maropakis requires contractors to submit CDA claims to the
CO as a prerequisite to their "seeking an adjustment of contract terms," regardless of
whether the claim is asserted "as an affirmative claim or as a defense to a government
action." Maropakis, 609 F .3d at 1331; see also ERKA Construction Co., ASBCA
No. 57618, 12-2 BCA if 35,129 at 172,474 (limiting Maropakis' claim mandate to
defenses seeking contract modifications). Liquidated damages are simply the damages
the parties fix to be paid in case of a breach, saving the time and expense of litigation.
DJ Manufacturing Corp. v. United States, 86 F.3d 1130, 1133 (Fed. Cir. 1996).
ASFA's defense that the government waived both the completion dates and its right to
collect liquidated damages does not seek an adjustment or modification of the contract
terms; it simply maintains the government waived rights already granted by the
contract. Nothing in Maropakis requires the submittal of a CDA claim before such a
defense can be advanced.
the court held that (i) a contract pursuant to which the
plaintiff purchased an airplane from the Government was
covered by the CDA; and (ii) the court lacked
jurisdiction over the plaintiff's claim because it had not
previously been presented to the Contracting Officer in a sum
and Guaranty Insurance Underwriters, et al., the
court held that a general liability insurer was not an
equitable subrogee who could sue on behalf of a government
Building Systems, Inc., the court dismissed the plaintiff's constructive change claims because
it had failed to provide written notice to the
Government of the alleged changes as required by FAR
Inc., the court held that (i) the lessor was responsible
for unrepaired roof leaks in a building leased to the Postal
Service, and (ii) the Postal Service was entitled to replace
the roof and set off its costs against rent otherwise due the
lessor and against payments otherwise due for real estate
Defense & Government Services, Inc., the court denied the
contractor's express and constructive changes claims because
they were precluded by a bilateral modification that required
the contractor to perform work beyond the original completion
date at no additional cost as consideration for extending the
delivery schedule to avoid a default termination.
Joint Venture, the court denied cross motions
for summary judgment because of open questions of fact
concerning a Differing Site Conditions claim.
Holdings, LLC, the court used a detailed analysis of the history
of the parties' dealings with one another to interpret whether
they had reached an agreement on the application of a
"Tax Adjustment" clause.
Imaging, Inc. the court held that the Government was liable for damages
to leased equipment under the "Risk of Loss" clause
in an unsigned lease agreement that was attached to, and
incorporated in, the basic contract, which was signed by both
& Griffin Exploration, LLC, the court held, inter
alia, that the Government had breached a contract to
convey a valid leasehold interest to the plaintiff.
Solutions Occupational Trainers, Inc., the court held that
a cooperative agreement, which provided it must be signed by
both parties to be effective and which was not signed by the
Government, was not a binding agreement.
Orthopedic, LLC, the court granted the Government's
motion for summary judgment on the contractor's claims for
alleged breaches of a settlement agreement because the
Government had complied with all the express requirements
of the settlement agreement.
Building Systems, Inc., the court held
that the Coast Guard's default termination of an order under
an FSS contract was invalid because the agency had not first
complied with the requirement to submit the contractor's
allegations of excusable delay to the GSA for its review.
Engineering Contractor, Inc., the court dismissed a contractor's challenge to a default termination
because none of its theories of recovery (mostly accusations
that the Government had not properly investigated the bonds)
excused its failure to submit valid performance and payment
Trustee Ester Du Val of KI Liquidation, Inc., the court (i) upheld a default termination where the
contractor abandoned the job to cut its financial losses; (ii)
denied the contractor's claim for extra geotechnical work
because the fixed-price contract required that work; (iii)
awarded the contractor extra costs for construction of the
secure part of an embassy; and (iv) granted the Government's
counterclaim in fraud under the FCA because the contractor's
payment certification contained a statement it knew was false.
L.L.C., the court held that the Government's
termination of a contract was a breach because the contract did not
allocate to the contractor the risk of a termination required
by a change in a governing statute.
Title Co., the court upheld default
terminations based on a contractor's failure to comply with
the contracts' timing requirements for real estate closings
but denied the Government's claim for excess reprocurement
costs because the set of ID/IQ contracts awarded to replace
the defaulted contracts were dissimilar to those contracts.
Charles XXV, LLC, the court held that,
because the plaintiff had not provided the GSA with the
required notice within 10 days of the start of alleged delays,
they were unexcused and formed a valid basis for a subsequent
default termination, especially where the plaintiff had not
established bad faith on the part of the Government.
Cost Accounting Standards (CAS)
County, Florida, the court determined the
quantum of late payment fees and Prompt Payment Act and
CDA interest due on increased rates for water and sewer
service charged to the Government by a Florida county.
County, Florida, the court determined
the quantum of late payment fees and Prompt Payment Act and
CDA interest due on increased rates for water and sewer
service charged to the Government by a Florida county.
Construction Corp., the court discussed
the standards for determining entitlement to, and the
calculation of, field office overhead and home office overhead
(using Eichleay) in delay damages claims under construction
Inc., the court vacated two prior rulings on
substantive motions to enable the parties to make a fresh
start after the previous judge disqualified herself based
on a prior acquaintance and professional relationship with
a potential fact witness in the case.
Inc., the court awarded the plaintiff
its EAJA attorneys' fees (including a COLA) and costs because
the Government's positions, including its contentions that the
contractor had submitted false claims or made
misrepresentations, were not substantially justified.
Court of Appeals for
the Federal Circuit
Fire Crew Transport, Inc. , the CAFC affirmed the
prior CoFC decisions that a BPA is not a binding contract
that gives rise to Tucker Act jurisdiction.
Contract Management Services, et al., the court reversed a prior CoFC
decision because (i) HUD's Performance-Based Annual Contribution
Contracts are procurement contracts rather than cooperative
agreements, and (ii) the agency acknowledged it did not follow
procurement regulations in the conduct of the solicitation.
Aircraft Corp., the court held the CDA's statute of limitations is
A Joint Venture, the CAFC (over a lengthy dissent) affirmed the Court of Federal
Claims' prior decision dismissing a suit because a
contract's "Permits and Responsibilities" clause
placed the total responsibility on the contractor to comply
with all requirements for obtaining a state environmental
permit and did not require the Government to assist it in
Express Lines, the court held that a bill of lading was sufficient to establish
privity of contract between a motor carrier and the
Construction Co., the CAFC vacated a prior CoFC
decision because the lower court had misused a legal
standard in rejecting a claim. Specifically, the appeals
court held that proving a breach of the implied duty of
good faith and fair dealing does not always require the
plaintiff to establish that the Government's actions were
"specifically targeted" to reappropriate a
benefit guaranteed by the contract to the plaintiff.
Engineering Services, Inc., the court affirmed the
decision and denied the contractor's claims because
its fixed-price contract placed the risk of future cost
increases on the contractor.
Oil Co., the court reversed the prior decision
by the CoFC and held that the plaintiffs' avgas contracts
required the Government to indemnify the contractors for their
CERCLA clean-up costs.
Network Services case, the CAFC reversed the CoFC, in part,
and remanded several issues of alleged lost revenues to the
ASBCA for reconsideration and further findings.
Brown & Root Services, Inc., the court affirmed
the CoFC's determination that the costs in a
subcontractor's change order proposal were not reasonable
(and, therefore, were not allowable when claimed by the
contractor under its cost-reimbursable contract) as a
result of the contractor's gross negligence in approving
the proposed costs.
Co., the court affirmed the prior CoFC
decision and held that (i) segment closing adjustments
are not pension costs subject to the timely funding
requirement of FAR 31-205.6(j); (ii) the Government bears
the burden of proof that a contractor's accounting
practices do not comply with the CAS; and (iii) the court
lacked jurisdiction over the Government's claim for a
downward equitable adjustment because there was no
Contracting Officer's decision concerning that claim.
Aircraft Corp., the court affirmed the CoFC's prior
decision that the contractor's allocation of costs to
government versus commercial contracts using a direct
labor base did not violate CAS 418.
False Claims, False Statements
Corp., the long-running case involving forfeiture under
the Special Plea in Fraud Statute, the CAFC reversed the CoFC's partial quantum meruit award to
the contractor but affirmed the lower court's award of penalties to the
Government under the False Claims Act and the CDA. See
prior CoFC decisions: 1,
website links to resources on the web concerning
government contracting. It is not intended to provide
legal advice. Moreover, I do not vouch for the
completeness, currency, or accuracy of the sites to which
it links. If you have comments, suggestions for new links,
or corrections, please email me.