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2014 Procurement Review--Contract Disputes



 

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

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

In Hanley 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 The 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 limitations. Taj 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

In Group 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 respect
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 incomplete.

See Transamerica 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).

The reference to the Transamerica decision was a part of the certification.

In Western 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. 

In FRASSON 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 denial.

In Treasure 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 subsequent dates.

In Singleton 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 decision.

In Pros Cleaners, the ASBCA dismissed as untimely an appeal filed 400 days past the 90 day limit after receiving the Contracting Officer's decision.  

In USAC 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.

In Suh'dutsing 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.

In Zomord 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. 

In Oswald 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.

In Shawn 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 notice.

In Marilyn 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. 

In Creek Services, LLC, the ASBCA dismissed, as untimely, an appeal filed more than 90 days after the contractor received the Contracting Officer's decision.

In Kellogg 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.

In 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.

In Mansoor 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.

In VLOX, 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 Contracting Officer.

In Combat 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 developed.

 

        Jurisdiction

In Balad Alshemal Earth Co., the ASBCA dismissed an appeal for lack of jurisdiction because the contractor disavowed any connection with purported appeal notice.

In Toma 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 Government.

In Commissioning 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. 

In Omni 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 contractor).

In CB&I 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.

In Esood Al Blad Co., the ASBCA held it lacked jurisdiction over an appeal involving an uncertified claim for $500,000.

In Puget 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 jurisdiction. 

In Zara 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.

In Maersk 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 the CDA.

In Tokyo 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.

In Ensign-Bickford 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.

In POZ 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.

In Muse Business Services, LLC, the CBCA dismissed an appeal based upon an alleged breach of a BPA because a BPA is not a contract.

In Laguna 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.

In New 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.

In Patriot 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.

In Superior 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.

In EHR 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. In Lee's 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 Board denied the contractor's request for reconsideration.

In Affiliated 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.

In Integrity 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. 

In PHA-JMR, 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.

In Chloeta 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.

In CCIE & 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.

In 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.

In Binghamton Simulator Co., the ASBCA dismissed a subcontractor's attempt at a direct (unsponsored) appeal from a prime contractor's decision.

In Lulus 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. 

In New 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.

In Favor 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.

In New 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.

In Vertex 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 Atlas 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.

In Canon 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.

In Agility 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.

Changes/Constructive Changes/Contract Interpretation/Breach/Authority

In All 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.

In Safety 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."

In DayDanyon 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. 

In Gottfried Contracting, LLC, the CBCA denied an  appeal because the contractor had not inquired regarding a patent ambiguity in the contract prior to bidding.

In Carlet 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 before bidding. 

In 633 17th Street Operating Co., LLC, the CBCA interpreted a lease to determine the Government's proper share of a building's property taxes.

In CCI, 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 reasonable.

In Jane 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.

In Moshe 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.

In Thefaf 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.

In American 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.

In J.C. 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.

In JRS 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. 

In Brookwood 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.

In Classic 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 the parties.

In Iron 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.

In PBS&J 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 contractor.

In Americom 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 agreement.

The 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.

In Commissioning 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.

In Gilbane 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.

In L&L 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.

In Au' 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.

In McAllen 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 the Government.

In Tug 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. 

In Oswald 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.

In Optex Systems, Inc.,  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 the appeal. In James 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.

In Kiewit-Turner, 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. See earlier ruling that the consideration of declaratory relief was appropriate in the circumstances of this dispute.

In CI2, 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.

The ASBCA denied the contractor's constructive change claim in Mountain 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 contract.

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 release language. 

Terminations/Liquidated Damages/Government Claims  

In Bulova 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 for reconsideration.

In U.S.I.A. 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 Officer.

In ACM 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 government equipment.

In Dyno Group, Inc., the ASBCA rejected multiple arguments made by the contractor against an assessment of liquidated damages for late completion of the contract work.

In DODS, 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 notice.

In AEON 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 dealing.

In Hanley 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.

In DMW 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 nonconformity.

In Laguna 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.

In Temple 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 contractor.

In Noor 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 requirement. 

In Gerald 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 different contract.

In Capy 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.

In Jim 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 offsets.

In Butte 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.

In Amaratek, 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 service.

In Agility 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 claim.

In SWR, 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.

In Noor 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.

In T.I.F, 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.

 

Delay

In Alderman 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 duration.

Costs, Defective Pricing, and Cost Accounting Standards (CAS)

In Northrop 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.

In Teledyne 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.  

In BAE 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.

In Kellogg 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 allowable.

In SOS 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 the contract.

Quantum 

In RLB 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.

In Allison 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). 

In Qwest 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]."

In Magwood 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.

In Job 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 janitorial services.

Discovery/Procedure/Motion Practice

In Akal 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.

In Mahshid 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 Board's orders.

In Thorpe 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.

In Kiewit-Turner 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.

In Brasfield & 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.

In Lobar, 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.

In Public 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.

In Beechcraft 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.

In S&L 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.

In Tele-Consultants, 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 the appeal.

In 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 contracts.

In BAE 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 costs.

In So-Co 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.

In Jane 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.

In Environmental 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.

In Brad 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.

In Environmental 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.

In another Environmental 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 prejudice. 

In Brasfield & Gorrie, LLC, the CBCA imposed significant sanctions against the VA for repeated discovery delays and failures to comply with the Board's discovery orders.

In BAE 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

In Gerald 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. 

In Russell 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 Claims

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

In Montano 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. 

In G4S 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.

  In Palafox 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 ordered 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. 

In Kellogg 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.

In Rollock 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.

In Uniglobe 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 another claim.

In Affiliated 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.

In The Hanover 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 decision.

In its 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.

In United 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 subcontractor.

In Delaware 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.

In David 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 monetary prize.

In American 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.

In Guardian 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 filed. 

In Threshold 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.

In Guardian 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 filed. 

In TPL, 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.

In Williams, 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 certain.

In Fidelity 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 contractor.

Changes/Breach/Contract Interpretation/Defective Specs/Authority

In K-Con 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 52.242-14.

In Ensley, 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 taxes.

In Agility 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.

In Weston/Bean Joint Venture, the court denied cross motions for summary judgment because of open questions of fact concerning a Differing Site Conditions claim.

In Woodies 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.

In DMS 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 parties.

In Griffin & Griffin Exploration, LLC, the court held, inter alia, that the Government had breached a contract to convey a valid leasehold interest to the plaintiff.

In Compliance 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.

In Kenney 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.

 Terminations 

In K-CON 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. 

In Allen 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 bonds.

In Liquidating 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.

In Cardiosom, 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.

In Trust 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.

In Lake 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.

Costs; Cost Accounting Standards (CAS)

In Bay 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.

Quantum

In Bay 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.

In JMR 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 contracts.

Discovery, Evidence, Procedure

In Demodulation, 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.

EAJA

In Ulysses, 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

Jurisdiction/Standing/Res Judicata 

In Crewzers 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.

In CMS 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.

In Sikorsky Aircraft Corp., the court held the CDA's statute of limitations is not jurisdictional?!

Changes/Breach/Contract Interpretation

In Bell/Heery, 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 doing so.

In Estes Express Lines, the court held that a bill of lading was sufficient to establish privity of contract between a motor carrier and the Government.

In Metcalf 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.

In Lakeshore Engineering Services, Inc., the court affirmed the prior CoFC decision and denied the contractor's claims because its fixed-price contract placed the risk of future cost increases on the contractor.

In Shell 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.

In  SUFI 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.

Costs/CAS

In Kellogg 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.

In Raytheon 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.

In Sikorsky 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.

Fraud, False Claims, False Statements

In Veridyne 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, 2, 3.        

Supreme Court


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