Stan Hinton

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2015 Procurement Review--Contract Disputes



 

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

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

In Kellogg Brown & Root Services, Inc., the ASBCA held that, based on its analysis of when a claim had accrued, the Government had not run afoul of the six-year time limit for asserting a CDA claim. In The Ryan Co., the ASBCA denied the Government's motion for summary judgment on whether the contractor's claims were barred by the CDA's six-year limitations period because the record was not sufficiently developed and because of disputed questions of fact concerning when the contractor had reason to know of its claims for purposes of claim accrual. In Raytheon Co., the Board reached the same conclusion concerning the contractor's contention that the Government's claim was beyond the limitations period. So, it seems clear that, after the CAFC's decision in Sikorsky,  the Board will be unlikely to decide questions concerning the six-year time limit until the facts underlying an appeal have been fully developed, at least through discovery, and, often, at the hearing.

In DynPort Vaccine Company LLC, the ASBCA held that: (i) under the particular facts of the case, a unilateral mod directing the contractor to perform corrective work at no cost was a government claim from which contractor could appeal, even absent language in the mod indicating it was a claim or notifying the contractor of its appeal rights; and (ii) the Government was required to file the complaint.

In Tokyo Co., the ASBCA directed the Contracting Officer to issue a decision (within 30 days of the Board's order), noting that the Contracting Officer could not rely on a decision previously issued before the contractor had submitted the required certification for its claim. In GSC Construction, Inc., the Board dismissed the appeal because the required certifications were not submitted until after the Contracting Officer's decision was issued and, in one case, until after the appeal was filed.

In TTF, LLC, the ASBCA noted, inter alia, that a contractor receiving multiple copies of the same final decision on different days is entitled to compute the 90-day period of appeal from date of the last copy received.

In Safe Haven Enterprises LLC, after looking past several informational deficiencies in the jurisdictional allegations in notices of appeal, the CBCA ordered further development of the record to decide the disputed factual issue of whether the Contracting Officer had agreed to reconsider his final decision and, thus, toll the 90-day time period for filing the appeal. Subsequently,  the CBCA held that the Contracting Officer's suggestion (coming more than 90 days, but less than 12 months, after issuance of the prior decisions) that he would "take a look at" them, constituted reconsideration so that the contractor's appeal clock to either the Board or the Court of Federal Claims was reset and did not start anew until either a new decision was issued or the Contracting Officer reaffirmed the prior decisions. The upshot was that an appeal to the CBCA filed 661 days after the original decision was issued was found to be timely in this case.

In GSC Construction, Inc., the ASBCA denied the contractor's motion to amend its complaint to add two new claims because they did not arise from the same operative facts as the original claim under appeal and neither of them was a proper claim that had been the subject of a valid decision by the Contracting Officer. 

In Safe Haven Enterprises LLC, after looking past several informational deficiencies in the jurisdictional allegations in notices of appeal, the CBCA ordered further development of the record to decide the disputed factual issue of whether the Contracting Officer had agreed to reconsider his final decision and, thus, toll the 90-day time period for filing the appeal.

In LYB Mechanical Timber Falling and Processing, the CBCA refused to dismiss a portion of the contractor's claim related to costs arising from a suspension of work, because a contract provision setting a time limit for filing certain types of claims did not apply to this situation.

In Smart Construction & Engineering, Co., the ASBCA dismissed (for lack of standing) an appeal filed by an individual who did not meet the requirements of Board rule 15(a).

In Kellogg Brown & Root Services, Inc., the ASBCA dismissed a contractor's motion for reconsideration of a prior decision as untimely in a complicated situation involving the contractor's former counsel's special procedures for obtaining delivery from the local Post Office by means of a courier service.

In Bell Helicopter Textron Inc. and The Boeing Co., the ASBCA held that: (i) an individual from one company had the requisite authority to sign the claim certification on behalf of both; and (ii) an appeal filed jointly in the names of the two companies would be construed as having been brought by their joint venture, which was the contracting party.

In Matcon Diamond, Inc., the ASBCA denied the Government's motion to dismiss the complaint for failure to state a claim upon which relief could be granted because the Government had not established from the pleadings alone that the claim had not been submitted until after final payment or that the Government was not aware of the basis of the claim prior to that time.

In Estes Brothers Construction, Inc., the CBCA dismissed (as untimely) an appeal transmitted to the Board by email five minutes after the 4:30 pm close of business on 90th day after the contractor's receipt of the Contracting Officer's decision.

In Global Energy U.S.-DLA Acquisitions LLC, the ASBCA dismissed an appeal after the contractor failed to identify its representative for purposes of the Board's proceedings.

In Brent Packer and Myrna Palasi, the CBCA denied a request to use the small claims procedure for bare appeals of BPA terminations because such procedures are available only for monetary claims.

In Bob L Walker, the CBCA dismissed an appeal filed with Board more than 90 days after the contractor's receipt of the Contracting Officer's decision, even though the contractor had appealed the Contracting Officer's decision to the Contracting Officer within 90 days.

        Jurisdiction

In Gatekeepers Internet Marketing, Inc., the CBCA dismissed an appeal for lack of jurisdiction because there was no underlying "claim" that sought a decision from the Contracting Officer or demanded a sum certain. Similarly, in Construction Group LLC, the CBCA held it lacked CDA jurisdiction over an appeal because there was no underlying claim or Contracting Officer's decision.

In Capitol Construction, Inc., the CBCA dismissed another appeal for lack of jurisdiction because there was no underlying contract with an executive agency of the Government.

In Axxon International, LLC, the ASBCA held it had jurisdiction over: (i) a misdirected appeal sent to agency counsel within the 90 day period; and (ii) another appeal received by the Board on the Monday following the Sunday that was 90th day from the date the contractor had received the Contracting Officer's decision.

In Anwar Alsabah Co., the ASBCA held that it lacked jurisdiction over a contractor's request that the Board direct the Contracting Officer to issue a decision because there was no evidence a properly certified claim had been submitted to the Contracting Officer.

In Americom Government Services, the CBCA denied the Government's motion to dismiss an appeal for lack of jurisdiction because open questions remained as to whether there was an implied-in-fact contract based on institutional ratification.

In Combat Support Assocs., the ASBCA vacated its prior decision (in which it had dismissed a government claim for lack of jurisdiction (as untimely)) because of the CAFC's recent holding in Sikorsky Aircraft that the CDA's six-year requirement for asserting a claim is not a statute of limitations. The Board left it to the parties to decide how they wished to proceed to litigate the alleged untimeliness of the Government's claim (e.g., by a motion for summary judgment).

In Tech Projects, LLC, the ASBCA held that an allegation (that the SBA's acceptance of a requirement for the 8(a) program created implied-in-fact contract) was sufficient to establish the Board's jurisdiction over an appeal, especially when the Contracting Officer had agreed with the point in his decision. However, the Board left the question of whether such a contract actually existed to be decided later, on the merits.

In Laitifi Shagiwall Construction Co., the ASBCA held it lacked jurisdiction over disputes involving contracts under the  Commanders' Emergency Response Program (CERP) program, which are not procurement contracts covered by the CDA.

In Suodor Al-Khair Co - SAKCO for General Trading, the ASBCA held, inter alia, that it had jurisdiction over a timely appeal from a Contracting Officer's decision because the Government had failed to support its contention that there was an earlier decision on the same subject that had been provided to the contractor.

In Corrections Corp. of America, the CBCA denied the Government's motion to dismiss an appeal for lack of jurisdiction based on the contractor's repeated refusals to provide the supporting cost information requested by Contracting Officer in support of, first, the contractor's REAs and, later, its claim. My speculation is that, if the Contracting Officer had simply refused to issue a decision absent the cost data he had requested from the contractor, the CBCA would not have required him to do so.

In Clifford B. Finkle, Jr., Inc., the PSBCA dismissed a contractor's monetary claim (which the contractor had submitted following a default termination) for failure to appeal within 90 days of the Contracting Officer's decision, holding that, even after the CAFC's ruling in Sikorsky Aircraft that the CDA's six-year period for filing claims is not a statute of limitations (and, therefore, is not jurisdictional), the CDA's 90-day period for filing appeals is a jurisdictional requirement.

In Tessada & Assocs., the ASBCA held that a notice of appeal addressed to the Contracting Officer rather than to the Board, which was deposited in a Postal Service mailbox within 90 days of receipt of the Contracting Officer's decision, was timely filed, even though delivery to the Contracting Officer was delayed somewhat by the fact that the contractor did not use the exact address listed in the Contracting Officer's signature block.

In Dekatron Corp., the CBCA held that, although emails of the Contracting Officer's decision to corporate officers had failed to be delivered, an email received by the firm's attorney was sufficient to start the appeal clock running.

In Al Rafideen Co., the ASBCA held it lacked jurisdiction over a claim unaccompanied by a signed certification.

In Equine Architectural Products, Inc., the ASBCA held it lacked jurisdiction over a purported claim that was not for a sum certain and was not certified.

In White Hand Co., LLC, the ASBCA held it lacked jurisdiction over a dispute under an I-CERP contract funded entirely by the Iraqi government for the benefit of the Iraqi people.

In Cooley Constructors, Inc., the CBCA held it had jurisdiction over a notice of appeal that had been filed directly by a subcontractor, in the name of the prime, with the prime's prior authorization and in accordance with the terms of the subcontract. Subsequently, the Board denied the Government's motion for reconsideration.

In United Veterans Construction, LLC, the CBCA dismissed an appeal for lack of jurisdiction because the contractor had filed only REAs, but not a claim, with the Contracting Officer.

In Western States Federal Contracting, LLC, on remand from the Federal Circuit, the CBCA reaffirmed its original decision that an LLC lacked the capacity to bring an action before the Board because it was not in good standing in the state where it was organized.

In ARI University Heights, LP, the CBCA held it lacked jurisdiction over the portion of an appeal related to a monetary claim based on "speculated utility costs" in the future years of a lease because a "formula that includes an unfixed variable cannot yield a sum certain."

In Big Iraqi Co., the ASBCA held it lacked jurisdiction over an appeal involving an MOA pursuant to which a firm was required to deliver and set up trailers and related equipment to be used as a temporary school for Iraqi children in the village of Al Awad, Iraq.

In Soap Creek Marina, LLC, the ASBCA held it lacked jurisdiction over the portion of contractor's claim for alleged future damages of $985,462 identified in the complaint because such damages were reasonably known to the contractor at the time it submitted its initial claim to the Contracting Officer but were not certified.

Relying on the Severin doctrine, the ASBCA held that Freedom Systems, LLC, was barred from pursuing a pass-through subcontractor claim because the subcontractor already had released the contractor from all liability.

In Subsurface Technologies, the ASBCA held it lacked jurisdiction over an appeal previously pursued at, and rejected on the merits by, the Court of Federal Claims.

In CDM Constructors, Inc., the ASBCA dismissed (for lack of jurisdiction) the parts of the Complaint requesting the Board to order the Government to terminate a contract for convenience or to issue a contract modification because these were essentially claims for injunctive relief.

In Kristin Allred, the CBCA held it lacked jurisdiction over an appeal by an individual not in privity of contract with the Government.

In Safe Haven Enterprises, LLC, a decision that includes lots of good analysis of the law governing reconsideration of contracting officer decisions, the CBCA held that the Contracting Officer's suggestion (coming more than 90 days, but less than 12 months, after issuance of the prior decisions) that he would "take a look at" them, constituted reconsideration so that the contractor's appeal clock to either the Board or the Court of Federal Claims was reset and did not start anew until either a new decision was issued or the Contracting Officer reaffirmed the prior decisions. The upshot was that an appeal to the CBCA filed 661 days after the original decision was issued was found to be timely in this case.

In DynPort Vaccine Co. LLC, the ASBCA held that the Contracting Officer could not divest the Board of its CDA jurisdiction to entertain appeals from government claims by issuing a letter characterizing his six previous unilateral contract modifications directing the contractor to perform corrective work at no cost to the Government as something other than final decisions.

In MicroTechnologies, LLC, the ASBCA granted a motion to strike the portion of a complaint asking that the Government be ordered to revise a CPAR because the Board does not have jurisdiction to grant specific performance or injunctive relief. Subsequently, the Board struck the portion of an amended Complaint requesting essentially the same thing, i.e., a remand to Contracting Officer with a requirement that he provide a revised, fair CPAR

In Bahram Malikzada Construction Co., the ASBCA dismissed an appeal as untimely because an email sent by  the contractor to the Contracting Officer within the 90-day period stating it "would start its appeal" did not express an intent to appeal to the Board (as opposed to the Court of Federal Claims).

In Hamilton Pacific Chamberlain, LLC, the CBCA rejected the Government's motion to dismiss an appeal involving a claim the Contracting Officer had summarily denied for lack of adequate documentation, and held that: (i) "adequate claim documentation is not a CDA prerequisite"; (ii) a defective certification was irrelevant because the claim was for less than $100,000; and (iii) the contractor's submission of supporting documents to the Board not previously submitted to the Contracting Officer did not constitute filing a new claim.

In Air Services, Inc., the ASBCA denied the Government's motion to dismiss an appeal for lack of CDA jurisdiction, holding that (i) a revised REA satisfied the requirements for a claim in the context of the totality of the parties' communications even though it did not include a request for a Contracting Officer's decision; and (ii) a DFARS  252.243-7002  certification included with the revised REA was a deficient, but correctable, CDA certification.

In Ahjar  Shat Alarab Albidhaa Co., the ASBCA denied the Government's motion to dismiss an appeal for lack of jurisdiction because the Government failed to present credible evidence that it had not received an emailed claim sent to the address Government had previously provided to the contractor.

In Care One EMS, LLC, an appeal from the default termination of two ambulance contracts, the CBCA granted the Government's motion to dismiss the portion of the complaint seeking monetary compensation because no monetary claims had previously been submitted to the Contracting Officer for a decision--this even though, during the course of the appeal, the Government had converted the default terminations to terminations for convenience.

In Magwood Services, Inc., the CBCA held it lacked jurisdiction over an appeal because the prior correspondence between the contractor and the Contracting Officer amounted to a discussion and disagreement over contract terms, not a CDA claim. In another Magwood Services, Inc., decision, the CBCA held it lacked jurisdiction over an appeal requesting the Board to overrule a state court's decision on a matter involving a dispute between a contractor and its subcontractor. 

In Aurora, LLC, the CBCA denied the Government's motion to dismiss an appeal from a default termination, holding that the prime had authorized the sub to file the appeal in the name of the prime.

Changes/Constructive Changes/Contract Interpretation/Breach/Authority

In Leeward Construction Corp., the CBCA held that the phrase "provided by VAMC" in the title to the asbestos abatement section of the contract specifications had been reasonably interpreted by bidders to mean that such work would be performed by the Government after the VA refused to further clarify phrase in response to  bidders' questions, especially where the VA's subsequent  interpretation of the phrase made no sense.

In C.R. Pittman Construction Co., the ASBCA, inter alia, denied a contractor's Type I differing site condition claim because the contractor had stopped work before it ever exposed (i.e., "encountered" in the language of the clause) the allegedly differing site condition.

In Tele-Consultants, Inc, the ASBCA held that a subcontractor had failed to establish an implied-in-fact contract with the Government  because the Government never indicated an intention to contract directly with the sub.

In the complex and long-running SUFI Network Services dispute, after remand from decisions by the CoFC and CAFC, the ASBCA increased the amount it originally awarded the contractor on its $131 million claim from approximately $7.5 to $111 million. Subsequently, the Board denied the Government's request for reconsideration except for points of clarification but granted the contractor's unopposed motion to increase the award pursuant to Count XVI.

In Americom Government Services, the CBCA denied the Government's motion to dismiss an appeal for lack of jurisdiction because open questions remained as to whether there was an implied-in-fact contract based on institutional ratification.

In Mykola Shchupak, the CBCA denied a claim that a vehicle purchased at an on-line auction was not the same as the one shown in a photograph because the auction materials warned bidders not to rely on the photographs, and the plaintiff declined to inspect the actual car before bidding.

In Joseph Grasser t/a Grasser Logging, which involved a timber sale contract, the CBCA held that the contractor had not established the elements required to prove "catastrophic damage" to purchased timber under the contract's "Damage by Catastrophe" clause.

In Impact Assocs., the CBCA held that the contractor was entitled to recover its out-of-pocket expenses incurred as a result of directives issued by the Government on what would otherwise have been a no-cost order that were outside the scope of the order and changed its nature (directives that required compliance with certain federal ethics and fiscal laws and regulations, along with, inter alia, the elimination of corporate sponsorships). 

In Seven Seas Shipchandlers, LLC, the ASBCA held that the Government was liable to the contractor for a contract payment because the Government (without following the proper procedures for verifying his identity) had made payment to a person who had forged a signature and who was not proven to possess apparent authority to act on behalf of the contractor. 

In AMEC Environment & Infrastructure, Inc., the ASBCA held that, pursuant to its obligations under the "Permits and Responsibilities" clause, the contractor was not entitled to any additional costs of obtaining a permit to replace one that had expired.

In Optimum Services, Inc., the ASBCA held that a dredging subcontractor was entitled to recover costs associated with a Type I differing site condition after encountering much harder than anticipated subsurface material.

In Coherent Logix, Inc., the ASBCA analyzed (i) the accrual date for a government claim for unallowable patent-related legal costs, and (ii) whether FAR  42.709-5 required the Contracting Officer to waive the penalty for unallowable costs in this situation (finding that it did not). Subsequently, the Board denied the contractor's motion for reconsideration.

In Joseph Grasser t/a Grasser Logging, the CBCA (by way of summary judgment) held that a contractor was not entitled to either a rate redetermination or monetary damages due to insect damage to some black cherry trees under a timber sales contract because, inter alia, the Forest Service had disclaimed warranties in the solicitation and the timber turned out to be worth slightly more than the estimate in the solicitation.

In Snowden, Inc., the ASBCA held that, pursuant to the "Government Property" clause (FAR 52.245-1), the contractor owed the Government the proceeds from the sale of "contractor inventory" to a third party because the Government had not abandoned the property.

In Adria Operating Corporation, d/b/a/ Ramada Inn) d/b/a/ Adria Hotel & Conference Center, an ADR decision, the ASBCA held that the contractor had not proved that the agreement on which its claim was based was either executed or ratified by a government employee with the requisite contracting authority.

In Tri-County Contractors, Inc., the ASBCA held that: (i) a bidder's disclosure of its proposed debarment to the Contracting Officer was sufficient to overcome the Government's subsequent defense of fraud in the inducement; (ii) a general release did not bar a claim where the Government had reason to know of the contractor's mistake in failing to exclude the claim from the release; and (iii) any ambiguity in the contract related to the contractor's claim was patent, and the contractor had a duty, but failed, to inquire about it prior to bidding.

In Circle, LLC, the ASBCA denied the contractor's constructive change claims because the Government's engineers, who allegedly directed the changed work, lacked the express or implied authority to modify the contract.

In VLOX, LLC, which involved an issue of contract interpretation, the ASBCA held that the contract unambiguously required that "if a contractor's truck waits more than three days to be loaded and unloaded, the contractor is owed a demurrage payment for any additional days, regardless of whether those first three days were spent waiting for loading, waiting for unloading, or a combination of the two."

In The Public Warehousing Co., a case hinging on contract interpretation, after an exhaustive review of the parties' actions and discussions before and after executing a bilateral modification, the ASBCA denied the contractor's claim for transportation costs because the modification established a cap on transportation fees.

Ruling on cross motions for summary judgment, the CBCA held in Fortis Networks, Inc. that: (i) both parties having failed to comply with a contract requirement that fuel costs be negotiated prior to issuing task orders, the Government had not breached its duty of good faith and fair dealing by refusing the contractor's subsequent request to negotiate those costs after the task orders were completed; (ii) the contractor was barred by the release language in contract modifications from seeking extra compensation for moving additional quantities of soil; (iii) the Government was entitled to summary judgment as to a third claim because, apart from bare allegations, the contractor had failed to provide any evidence of alleged delay costs due to a differing site condition.

In Kellogg Brown & Root Services, Inc., the ASBCA held that, pursuant to  FAR 52.250-1 (Indemnification Under Public Law 85-804), the contractor was entitled to indemnification from the Government for third-party claims and related litigation costs--even those attributable to the contractor's alleged misconduct.

In Certified Construction Co. of Kentucky, LLC, the ASBCA held that the Government's interpretation of subparagraph 5.1 of the General Construction specifications, which excluded all "measurement" and "payment" paragraphs of  certain incorporated specifications, was the only reasonable interpretation of the contract.

Under the heading of decisions that do not advance the ball significantly, in A-Son's Construction, Inc., on cross-motions for summary judgment on the meaning of the contract term "month," the CBCA held it could determine when the month ended, but not when it began. 

In Afghanistan Trade Transportation Co., the ASBCA held that a contractor's fraudulent conduct (bribery) predating (and on different contracts from) the current contract under dispute did not breach its obligation of good faith and fair dealing toward the Government under the current contract.

In Balfour S&P Two, A Joint Venture, after many back-and-forth "who shot John?" arguments by the parties, the ASBCA held that the contractor was responsible for the costs of repairing defects in drilled concrete foundation piers because its original construction methods failed to comply with the contract specifications in several ways.

In Amir Aghdam, the CBCA denied a claim for the costs to repair a broken automobile transmission because the warranty at the auto auction covered only misdescription, specifically excluding warranties of condition, and the vehicle was as described, there being no mention of the transmission in the description.

In Reliable Contracting Group, LLC, on remand from the Federal Circuit, the CBCA (as it had in its original decision)  denied the contractor's claim  for extra compensation for the costs of providing new backup electrical generators because, at the time the contractor originally proffered four-year-old generators to the VA,  the contractor did not dispute the VA's contention that those generators were not "new" as required by the contract. Interestingly, although the Federal Circuit's decision was based on what it saw as an incomplete record at the Board concerning what constituted a "new" generator, neither party presented any new evidence on the issue when given the opportunity on remand. Subsequently, the Board denied the contractor's motion for reconsideration.

In Honeywell International, Inc., the ASBCA held that the contractor was entitled to quantum valebant recovery for the value of conforming solar arrays it had delivered to the Government under invalidated provisions of a delivery order. The Board found it irrelevant that the Government had chosen not to (i) connect the panels to its electrical grid or (ii) formally accept them.

In Automotive Management Services FZE, a case involving contract interpretation, the ASBCA held that the contractor was entitled to reimbursement of its costs of transporting vehicle parts in Afghanistan, in part because a word in the title of one of the contract's sections could not change the plain meaning of the text of that section.

In Weatherford Group, Inc., in choosing between competing theories as to which party was responsible for certain costs under the contract, the ASBCA held that (i) the Government's interpretation of three contract provisions was preferable because it gave reasonable meaning to all the clauses without creating any conflicts between them; and (ii) the contractor had failed to present the evidence required to establish a prior course of dealing between the parties concerning the matter in dispute.

In EHR Doctors, Inc., the CBCA held that the Government's cure notice did not amount to duress that voided a subsequent modification signed by the contractor.

In Lean Construction and Engineering Co., the ASBCA denied all but $105 of claims for extra costs associated with alleged differing site conditions because the contractor failed to provide the required notice of the alleged condition and had failed to produce credible evidence of the condition.

In ServiTodo, LLC, the CBCA held that the Government was responsible for certain of the contractor's costs incurred in complying with directions from a government employee who was not authorized to change the contract, because those costs were incurred after the Contracting Officer became aware of the unauthorized direction but did nothing to stop it.  

In DNT Environmental Services, Inc., a decision involving contract interpretation, the CBCA denied the contractor's claim, holding that the contractor had been properly compensated based on the tons of contaminated materials it had actually removed and the cubic yards of backfill it had actually provided, not the number of properties it had worked on.

In International Automotriz, the ASBCA denied the contractor's claim because the Government already had compensated the contractor fully for all recoverable costs that the contractor had proven  for damage to leased vehicles.

In Chloeta Fire, LLC, the ASBCA sustained the contractor's appeal that it was entitled to the full contract price for completing a required burn on federal property because the Board drew an adverse inference from the Government's failure to provide evidence or testimony from the individual who could have rebutted the contractor's contentions that he had the authority to, and did, accept the contractor's work.

In Diversified Construction of Oklahoma, the ASBCA denied a claim for reformation of the contract price of a mowing contract because: (i) the contractor's reduction of its original bid priced during negotiations was not the result of any  misrepresentation by the Government concerning the amount of mowing that would be required because the Government's negotiator was simply using the Government's IGE; and (ii) the contractor had not established that it had reasonably relied rely on the Government's representation because the contractor's own evaluation of the cost of the job, the advice of three experienced people it had consulted, and a site visit all showed that a higher cost would be involved. 

Lockheed Martin Services, Inc. involves complicated issues of  contract interpretation but basically holds that, in a contract for the performance of the Government's retired/annuitant pay system during which the contractor voluntarily developed and implemented a new system to replace the outdated government system, the contract did not prohibit the contractor's recovery for a license fee and other costs of the Government's continued use of the new system after the Government decided to bring the work back in house. Subsequently, the Government's motion for reconsideration was denied.

      Terminations/Liquidated Damages/Government Claims

In Hearthstone, Inc., the CBCA denied an appeal from a default termination because the contractor failed to prove the required elements of the defense of commercial impracticability.

In Environmental Safety Consultants, Inc., the ASBCA held that a contractor's price-based convenience termination settlement claim failed for lack of proof because the contractor did not maintain a job cost ledger, provided gross payroll records that did not identify the job on which the employee was being paid, and provided copies of checks payable to a subcontractor and vendors that were unsupported by invoices.

In Tamba Manya Momorie, the PSBCA held that a contractor's contentions that he was the victim of racially-motivated animus and conspiracies by the Government (which he claimed excused a default on one contract and motivated the non-renewal of other contracts) were not credible. 

In I-A Construction & Fire, LLP, the CBCA (i) upheld a default termination because the contractor presented no adequate defenses or excuses; and (ii) dismissed the Government's request for excess reprocurement costs and the contractor's request for excess costs for lack of jurisdiction because neither was the subject of a prior decision by the Contracting Officer.

In MLJ Brookside, the CBCA upheld the GSA's decision to terminate a building lease for default after the lessor re-let the space without the GSA's permission following the federal tenant's vacation of the premises.

In Dellew Corp., the ASBCA held, inter alia, that FAR 52.212-4(1) (the contract terms for a commercial items contract) governs a contractor's right of recovery when a commercial items contract is terminated by the Government for convenience and that this right is not expanded by DFARS 252.232-7007 ("Limitation of Government's Obligation").

       In Donald Mich, the PSBCA upheld both (i) the Postal Services' termination of a mail delivery contract (because the contractor had permitted a heroin-addicted individual to drive the delivery vehicle), and (ii) an assessment against the contractor for unauthorized fuel purchases.

In Trojan Horse, Ltd. , the PSBCA upheld a termination of another mail delivery contract because the contractor persisted in using of single axle tractors rather than the required tandem axle tractors, even after notice of the problem from the Postal Service.

In Xerox Corp., the CBCA held that, absent any defense asserted by the Government, the contractor was entitled to the early termination charges specified in an equipment rental agreement.

In ASFA Construction Industry and Trade, Inc.), the ASBCA first found an implied-in-fact contract absent an express contract, then incorporated a Termination for Convenience clause into the implied contract by use of the Christian doctrine, and finally found that the Government had "constructively" terminated the implied contract, by virtue of its conduct.

In CP of Bozeman, Inc., the ASBCA: (i) overturned a termination for default because the contract gave the contractor the right to unilaterally end its services at a specific location on one days' notice, so, doing so, was not a breach of contract;  but (ii) denied the contractor's claim for misrepresentation because the contractor failed to inquire about, or properly make use of, data provided by Government.

In Precision Standard, Inc., the ASBCA: (i) upheld a termination for default based on the contractor's failure to deliver the First Article on time; and (ii) concluded that a provision authorizing a termination at no cost "to the Government" did not mean the termination would also be at no cost to the contractor.

In Avant Assessment, LLC, the ASBCA sustained an appeal from a default termination because a contract modification had deleted the requirement that the Government subsequently used to try to justify the termination.

In DayDanyon Corp., the ASBCA upheld a default termination because the contractor's performance during the 42 day period between the first missed delivery date and the date of termination was too insubstantial to establish the contractor's detrimental reliance on the Government's delay in terminating.

In Military Aircraft Parts, the ASBCA overturned a default termination that had been based on alleged discrepancies in a First Article because: (i) a contract specification that formed one basis of the termination was latently ambiguous, and the contractor's interpretation of it was reasonable; (ii) the Government had not conducted the logical "fit" test to determine whether another alleged discrepancy actually existed; and (iii) the contractor provided persuasive evidence that other alleged deficiencies were minor and could have been easily corrected in production.

In Hearthstone, Inc., the CBCA held that the Forest Service had failed to provide adequate evidence (e.g., the reprocurement contract) to support its claim for reprocurement costs following the contractor's default under a timber sales contract.

In Janet Rodriguez-Rivera, the PSBCA held that (beyond coincidence and speculation) the Postal Service had not presented nearly enough evidence of alleged drug trafficking or mail theft by a delivery person to justify the default termination of a mail delivery contract.

In Capy Machine Shop, the ASBCA overturned a default termination because the contractor's request for a no-cost cancellation was not sufficient to establish anticipatory repudiation, and its past practice of bidding low and then requesting no-cost terminations on other contracts was not evidence it bid this contract with no intention of performing. The Board applied the same reasoning to reach the same result regarding the same contractor's request for a no-cost cancellation of another contract in ASBCA No. 59085.

In Palco Distributing, LLC, the ASBCA upheld the cancellation of a purchase order after the seller tendered different items from those specified in the order.

In Pros Cleaners, the ASBCA awarded the contractor its reasonable and unavoidable post-termination costs of attempting to settle quantum after the convenience termination of a commercial items contract.

In  Terraseis Trading Limited, the ASBCA held that:  (i) despite the lack of a specific delivery schedule in the contract for equipment that was supposed to be transported to the site by the Government, the contractor was entitled to six of its claimed 28 days of compensable delay for the Government's delays in delivering the equipment based on a need-by date stated by the contractor at the post-award conference; but (ii) the Government's delay (and other excuses presented by the contractor) were insufficient to overcome the contractor's ultimate failure to meet the contract delivery date so that a default termination was justified.

In Nelson, Inc., the ASBCA overturned several default terminations because, inter alia, no notice to proceed was ever issued for work at two of the contract sites, and the Government had not granted the contractor time extensions to which it was entitled at other sites.

In Lawn Legends LLC, the ASBCA upheld a default termination because the contractor failed to complete various tasks by the delivery deadlines without adequate excuses.

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

In Group Health Incorporated, the CBCA held that a subcontractor was entitled to post-termination costs of maintaining sufficient staff and resources to support a long-delayed and protracted government audit.

In Watts Constructors, LLC, the ASBCA held that a construction contractor that had chosen to account for job site overhead expenses as indirect costs pursuant to FAR  31.105(d)(3) could not switch and treat them as direct costs for the duration of a government-caused delay.

In Coherent Logix, Inc., the ASBCA analyzed (i) the accrual date for a government claim for unallowable patent-related legal costs, and (ii) whether FAR  42.709-5 required the Contracting Officer to waive the penalty for unallowable costs in this situation (finding that it did not). Subsequently, the Board denied the contractor's motion for reconsideration.

In Accurate Automation Corp., the ASBCA denied the contractor's appeal from the Government's claim for unallowable costs because the costs at issue did not qualify as deferred compensation.

On cross motions for summary judgment in a case involving government claims for increased costs as a result of various accounting changes by the contractor on CAS-covered contracts, the ASBCA held in Raytheon Co., Space & Airborne Systems that: (i) prior to April 2005, in the absence of regulatory guidance, there was an established practice at DoD to permit offsets across contracts of the effects of simultaneous changes in accounting practices (a practice already recognized by the Board in its prior Boeing decision); (ii) the contractor could utilize this cross-contract offsetting procedure for contracts executed prior to the effective date (April 8, 2005) of the revised regulation (FAR 30.606) that prohibited the procedure; (iii) that revised regulation did not overstep the authority of the FAR Councils or infringe on the authority of the CAS Board; (iv) in the absence of any specific allegation by the contractor as to how it was damaged by the Contracting Officer's failure to consider any of the regulatory factors except increased costs to the Government in deciding whether the contested accounting changes were "desirable," the Contracting Officer's decision-making process was unobjectionable; and (v) the Government's attempt to recover both the increased costs resulting from the accounting changes on flexibly-priced contracts and the corresponding decreases in allocations to fixed-price contracts (allegedly to eliminate excess profits on the latter) amounted to double-counting that would result in a prohibited windfall to the Government.

In Symetrics Industries, LLC, the ASBCA denied the Government's defective pricing claim because the Government had actual knowledge of the data at issue when evaluating the contractor's price proposal.

Quantum 

In EJB Facilities Services, the ASBCA rejected the contractor's use of a total cost method to measure quantum because the contractor failed to establish both: (i) the impracticability of measuring its losses directly; and (ii) the reasonableness of its bid in light of the Government expert's allegations regarding mistakes in that bid.

In ADT Construction Group, Inc., the ASBCA discussed the requirements for collateral estoppel and held that, in this case, it precluded the contractor from re-litigating the existence of a causal nexus between the government-caused preconstruction delays and the contractor's trade subcontract cost escalation damages.

In TriRAD Technologies Inc., the ASBCA discussed at length the proper manner of calculating the amount due a contractor pursuant to each prong ("percentage of work performed" and "reasonable charges resulting from the termination") of FAR 52.212-4(1) under a commercial items contract after the original default termination had been converted to a termination for convenience.

In Alliance Roofing & Sheet Metal, Inc., the contractor won a battle but lost the war when it failed to prove the amount of alleged damages it suffered as a result of a government directive to provide warranty coverage beyond what was  required by the specifications.

In Jaynes Corp., the ASBCA determined the recoverable costs associated with the Government's improper rejection of pipe to be used in a fire sprinkler system.

In Raytheon Missile Systems Co., the ASBCA determined the quantum owed to the contractor after the Board's prior entitlement decision concerning increased jet fuel costs.

In the latest chapter of the SUFI Network Services, Inc. saga, the court held, inter alia, that the contractor was not entitled: (i) to recover overhead and profit on its attorneys' fees; or (ii) (especially so late in the proceedings and without first presenting the claim to the Contracting Officer) to change its claim for attorneys' fees from the lodestar method it had consistently used in prior proceedings  to a much larger claim based on an alleged contingent fee agreement that the contractor had not even provided to the court for review.

Discovery/Procedure/Motion Practice

In Kellogg Brown & Root Services, Inc., the ASBCA directed the Government to file the complaint on a government claim because the Contracting Officer's decision did not contain sufficient information concerning the basis for the claim to permit the contractor to draft the complaint.

In Kepa Services, Inc., the CBCA granted, in part, the contractor's motion to compel discovery but also extended the previously established discovery schedule because of the "burdensome" nature of the contractor's voluminous discovery requests. Subsequently, in another Kepa Services, Inc., decision, the CBCA held that, in the particular circumstances of this dispute, where the OIG had not issued a subpoena and the contractor had not previously submitted certified cost or pricing data, the only means for the VA's OIG to audit the contractor's records related to its claims was by means of discovery requests to its attorney under the Board's discovery rules.

In LYB Mechanical Timber Falling and Processing, the CBCA refused to dismiss a portion of the contractor's claim related to costs arising from a suspension of work, because a contract provision setting a time limit for filing certain types of claims did not apply to this situation.

In Yates-Desbuild, Joint Venture, the CBCA refused to exclude the proffered testimony of a scheduling expert concerning, inter alia, the effect of the building permit process in Mumbai on a construction schedule.

In another Yates-Desbuild, Joint Venture, decision, the CBCA addressed issues involving whether certain documents should be released from the coverage of the Board's protective order.

In Akal Security, Inc., the Board discussed the discoverability of documents related to the settlement of a separate lawsuit in light of the contractor's assertion of the attorney-client and work product privileges.

In Highland Al Hujaz Co. Ltd., the ASBCA directed the Government to file the complaint in part to clarify whether its claim was just for excess reprocurement costs or might also include amounts allegedly overpaid to the contractor.

In Environmental Chemical Corp., the ASBCA allowed the contractor to amend its Complaint concerning delay claims to add a count for Eichleay  unabsorbed overhead and certain allegations concerning breaches of the implied duty of good faith and fair dealing, because the amendments arose from the same operative facts as, and could reasonably have been inferred from, the contractor's original delay claim, but the Board refused to recognize one other allegation of a breach of the duty of good faith and fair dealing because it could not possibly have been an element of the original claim.

In Jeffrey C. Stone, Inc., d.b.a. Summit Builders, the ASBCA denied the contractor's requests for sanctions and a default judgment for the Government's repeated delays in discovery and in responding to the Board's orders because the Government's actions were not "contumacious or contemptuous to the extent that a default judgment is warranted."

 

Equal Access to Justice Act

In Amaratek, the ASBCA awarded a prevailing party appearing pro se $33.47 in EAJA expenses for FedEx and notary costs.

In Systems Integration and Management, Inc., the CBCA held that even though agency's litigation position was not substantially justified at the outset, it became so after the agency made a reasonable settlement offer, which the contractor rejected; therefore, the contractor's EAJA award was limited to activities occurring before the settlement offer was made.

In Military Aircraft Parts, the ASBCA denied the contractor's application for an EAJA recovery because the Government had voluntarily satisfied the contractor's original claim without a board decision. In another Military Aircraft Parts decision, the ASBCA denied the contractor's EAJA application because the Government's position was substantially justified in three of four areas in dispute.

In Jim Carranza Trucking Co., the PSBCA granted one-third of an EAJA claim because the contractor had prevailed on only one of three equally-weighted issues.  Subsequently, the PSBCA held that the Postal Service could offset the prior EAJA award against debts owed by the contractor to the Postal Service.

In Crockett Facilities Services, Inc., the CBCA denied an application for EAJA fees because (i) the contractor did not establish it met the size requirements, and (ii) the Government's actions in response to the contractor's claim had been substantially justified.

 

Court of Federal Claims

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

Two cases illustrate the perils of a non-attorney trying to appear before the court pro se. In John C. Brisbin, the court dismissed a suit being filed by an individual pro se because it was filed more than 12 months after the Contracting Officer's decisions on the underlying claims, even though the suit had originally been improperly filed in District Court, which had failed to transfer the case to the Court of Federal Claims as it should have done under 28 U.S.C. 1631. If the District Court had done so, the date of filing would have been considered the date when the suit was originally filed in District Court. In Dan Balbach, the court dismissed a suit involving a corporation not represented by counsel in contravention of the court's rules.

In Anchorage, A Municipal Corporation, the court  denied the Government's motion to dismiss for lack of jurisdiction because agreements between the city and the Government to expand the port of Anchorage were not cooperative agreements (as suggested by the Government) but rather were express contracts that presumed monetary damages for breach and, thus, conferred Tucker Act jurisdiction on the court.

In Total Engineering Inc., the court held, inter alia, that a contractor's allegation of defective specifications pled as a defense to a government claim for a deductive credit was not a CDA "claim" and, therefore, did not have to be submitted to the Contracting Officer for a decision before being raised at court.

In Canpro Investments Ltd., the court held it lacked jurisdiction over a lessor's suit for a preliminary injunction that would require the government/lessee to abate noise and overcrowding by reducing the number of visitors to government offices in the leased premises pending the issuance of a Contracting Officer's decision on the contractor's claim.

In Quimba Software, Inc., the court denied the contractor's motion to dismiss the Government's counterclaim, which (although it corrected an error in the original Contracting Officer's decision demanding repayment of unallowable costs and reduced the amount sought to be recovered) was based on the same operative facts and legal theory as the original decision.

In Professional Performance Development Group, Inc., the court denied the Government's motion to dismiss portions of a contractor's complaint alleging excusable delay in response to a default termination because they were defensive allegations rather than affirmative claims.

In Rudolph and Sletten, Inc., the court held that, because the CDA allows a Contracting Officer only one extension of the 60-day time limit for deciding claims in excess of $100,000, the Contracting Officer's attempt at a second extension amounted to a deemed denial of the claim, which gave the court jurisdiction over the contractor's action. Nevertheless, the court exercised its discretion and stayed the proceedings while ordering the Contracting Officer to issue a decision within 30 days. 

In Comprehensive Community Health & Psychological Services, LLC, the court held that: (i) routine invoices which were not in dispute at the time they were submitted for payment did not constitute CDA claims; and (ii) the contractor's challenge of a default termination filed more than 12 months after the termination was untimely.

In Robert Dourandish, the court held it lacked jurisdiction over claims by an individual shareholder concerning a company's contract dispute with the Government.

In Jasmine International Trading & Services Co., W.L.L., the court denied the contractor's motion to dismiss the Government's common law fraud counterclaim because the allegations in the Government's amended answer and counterclaim were sufficient to meet the "but-for" causation test for the alleged fraud.

In Mansoor International Development Services, Inc., the court held it had jurisdiction over a contractor's complaint that the methodology used by the Contracting Officer in rejecting the contractor's claim violated the implied duty of good faith and fair dealing.

In United States Enrichment Corp., the court held that the contractor's original claim (i.e., that, in failing to establish any rates, the Government had failed to pay the contractor's proposed indirect cost rates) was sufficient for the court's jurisdiction over the contractor's suit challenging the indirect costs rates subsequently established by the Government.

Declaring "SUFI's twelve-year saga is at an end," the court held in SUFI Network Services, Inc., that the Government had no right of appeal from the ASBCA's decision on remand in a case involving a nonappropriated-fund activity decided under the Wunderlich Act, rather than the CDA.

In Donald A. Woodruff and The DuckeGroup, LLC, the court held the plaintiff lacked standing because there was no privity of contract with the United States, and the court lacked jurisdiction because of the plaintiff's (i) prior election to proceed at the CBCA and (ii) failure to file suit within 12 months of the Contracting Officer's decision. 

In Sikorsky Aircraft Corp., the court held that the doctrine of "claim preclusion" barred an "alternative" government claim regarding alleged CAS noncompliance that could have been, but was not, raised in the same Contracting Officer's decision that already had been litigated.

In Demodulation, Inc., the court held that a subcontractor under a Cooperative Research and Development Agreement had no right to file a direct action against the United States for breach of contract because (i) it was not in privity of contract with the Government and (ii) none of the exceptions to that general rule applied.

In CSX Transportation, Inc., the court dismissed a suit because the original over-$100,000 claim did not contain a CDA certification.

In Estes Express Lines, the court dismissed the suit for lack of jurisdiction because none of the plaintiff's previous communications with the Government satisfied the requirements for a CDA claim, including the requirements that the submission: (i) be more than a routine request for payment; (ii) include a request for a Contracting Officer's decision; (iii) be for a sum certain; and (since the amount requested exceeded $100,000) (iv) be certified.

In Rocky Mountain Helium, LLC, the court held that: (i) a plaintiff in default of its basic obligation to pay the Government a specified sum lacked standing to complain of subsequent alleged contract breaches by the Government; and (ii) the court lacked jurisdiction over a dispute under a settlement agreement that provided for all disputes to be decided by a named CBCA judge through the use of ADR.

In M.K. Ferguson Co., a case involving a bankrupt subcontractor's claim being passed through by a bankrupt prime, the court held: (i) the prime's original certification of the subcontractor's claim ordered by the bankruptcy court was defective, but not fatally so, and was cured by the subsequent, proper CDA certification submitted by the prime after this action in the Court of Federal Claims had commenced; (ii) because the bankrupt prime was under orders from the bankruptcy court that covered its responsibilities to its subcontractor, the prime fulfilled the requirement of the Severin doctrine that it have obligations to its subcontractor permitting it to pass through the subcontractor's claim; and (iii) the case should be remanded to the DOE's Contracting Officer (who had yet to issue a decision because of the previously defective certification) because the dispute involved significant issues of DOE regulations and and contract documents, which should be addressed in the first instance by the DOE.

Changes/Breach/Contract Interpretation/Defective Specs/Authority

In Woodies Holdings LLC, the court held that the plaintiff had established that (despite the fact that it had not received the requested return receipt) it had timely and properly submitted (by certified mail) the notice required for reimbursement of real estate tax payments, especially given testimony from both parties that the Government had mishandled mailed submissions in the past.

In E&E Enterprises Global, Inc., while considering the Government's preliminary motion to dismiss portions of the Complaint concerning an ID/IQ contract that the Government had terminated for its convenience after it had ordered the minimum required quantity, the court held that the Government's duty of good faith and fair dealing applies to ID/IQ contracts.

In JEM Transport, Inc., the court held that: (i) an unsigned document to extend the contract term, which was sent to the contractor, was not an offer that could be accepted by the contractor, because the Contracting Officer neither sent it, nor ever signed it; and (ii) a letter was not a claim because it did not include a demand for a sum certain.

In G4S Technology LLC, the court affirmed the CoFC's prior decision that the Government's  actions did not establish that the plaintiff/subcontractor was an intended third party beneficiary of the prime contract.

In Northrop Grumman Computing Systems, Inc., on remand from the CAFC, the court held that the contractor was not entitled to recover any expectation damages as a result of the Government's decision not to exercise any options beyond the first year of a delivery order.

In Zafer Taahhut Insaat Ve Ticaret, A.S., the court held that, under a fixed-price contract that specifically made the contractor responsible for transportation costs, the plaintiff was not entitled to recover extra storage and transportation costs caused by the Pakistani government's decision to close the border, which restricted the contractor's access to its construction site in Afghanistan.

In Jacintoport International LLC, the court (i) denied the parties' cross motions for summary judgment after finding a contract provision concerning the scope of required fumigation services to be latently ambiguous; but (ii) granted the Government's motion for summary judgment as to a payment provision the court held to be patently ambiguous because the contractor had failed to inquire about that ambiguity prior to bidding.

In HSH Nordbank AG, the court held that (i) the mere assignment of contractual rights pursuant to the Assignment of Claims Act does not create privity of contract between the private party assignee and the Government, and the plaintiff did not act as a surety in this case; and (ii) the plaintiff was not in a position to complain of offsets by the Government in part because it failed to provide timely notice to the Contracting Officer of the assignment, as required by the statute.

In Old Veteran Construction, Inc., the court granted summary judgment in favor of the Government and denied a Type I Differing Site Conditions claim because the contractor failed to prove the conditions at the work site differed materially from those indicated in the contract documents.

In Meridian Engineering Co., the court held, inter alia, that: (i) the contractor was not entitled to the costs of protecting its workers from contamination at the construction site because the Government did not misrepresent the site conditions or agree to pay for such costs; (ii) the contractor's claim based on dewatering requirements and sewer conditions did not meet the requirements for either a Type I or Type II Differing Site Condition claim and was covered by an accord and satisfaction; (iii) an accord and satisfaction also barred the contractor's claims for flood events; (iv) the Government's punchlist was not unreasonable; and (v) the Government did not breach the contract by failing to reimburse the contractor for its costs of preparing a VECP.

In Solaria Corp., the court held that, while a commitment letter to consider a loan to the plaintiff was sufficient to constitute a (non-CDA) contract, the agreement left such wide discretion in the Government that the plaintiff's complaint was not sufficient to establish any breach by the Government after it decided against making the loan.

In Weston/Bean Joint Venture, a good primer on the principles of contract interpretation, the court rejected the contractor's various differing site condition, constructive change, and breach of implied duties claims because a channel dredging contract was not limited to the removal of "sediment," but required the contractor to dredge all material (except massive "massive, monolithic in situ rock") necessary to achieve the specified depth of 15 feet.

In DMS Imaging, Inc., building on the court's prior decision finding the Government liable for breach of a lease agreement after a fire destroyed the leased premises, the court found the plaintiff entitled to the quantum of damages specifically bargained for and stated in the lease agreement, e.g., unpaid rent amounts, charges for late payments, and attorney's fees.

Costs; Cost Accounting Standards (CAS)

In Fort Howard Senior Housing Assocs., LLC, the court upheld a default termination of an enhanced use lease due to the lessee's unexcused failure to construct a required Community Based Outpatient Clinic on the leased premises and held that: (i) the Government did not breach its duty to cooperate or any implied warranties by requiring the lessee to comply with state and local land use and construction requirements and state and local taxes, or by failing to assist the lessee in resolving issues that arose out of its obligations to comply with local zoning laws; (ii) the lessee was not entitled to reformation due to mutual mistake; and (iii) the lease was not impossible to perform.

Discovery, Evidence, Procedure

In Northrop Grumman Systems Corp., the court analyzed the standards for enforcing a "claw back" provision for the return of privileged documents inadvertently produced during discovery.

In New Orleans Regional Physician Hospital Organization, Inc., d/b/a Peoples Health Network, the court granted the  contractor's motion to compel the Government to redo searches for documents covered by the contractor's discovery requests.

In Demodulation, Inc., the court (i) analyzed the reasonableness of claimed attorney fees as a sanction for the issuance of a patently unreasonable subpoena duces tecum, and (ii) discussed the prevailing hourly billing rates in the D.C. area for attorneys (partners and associates) and paralegals. I retired too soon.

 

EAJA

In Park Properties Associates, L.P., the court denied applications for EAJA fees because the relevant case-law precedent had been unsettled, and the Government's litigation position had a reasonable basis.

Fraud 

In Horn & Assocs., the court dismissed various CDA and fraud counterclaims filed by the Government, holding that the numerous misstatements and inaccuracies in the contractor's claim were attributable to difficulties  caused by the Government during performance and the contractor's efforts to come up with an appropriate measure of damages for the Government's alleged breach of the unusual contingent-fee auditing contract, not by the contractor's fraud or any intent to deceive Government or violate the requirements of the CDA.

 

Court of Appeals for the Federal Circuit

Jurisdiction/Standing/Res Judicata 

In Yurok Tribe, the court affirmed the CBCA's dismissal of a case because no contract had yet been formed between the plaintiff and the Government.

In McHugh v. Kellogg Brown & Root Services, Inc., a decision labeled as nonprecedential, the court: (i) affirmed the portion of the ASBCA's prior decision finding that a government claim was barred by the CDA's six-year limitations period where a contractor's submission had included sufficient information to start the running of the limitations period; but (ii) reversed the Board with reference to its conclusion that a contract prohibition against using armed employees did not apply to a situation where the contractor hired private security firms with armed employees.

In Fidelity and Guaranty Insurance Underwriters, Inc., the court affirmed the CoFC's prior decision that it lacked Tucker Act jurisdiction over a suit by a general liability insurer claiming to be an equitable subrogee of a prime contractor, but without any responsibility for contract performance or obligation to the Government.

Changes/Breach/Contract Interpretation

In Jacqueline R. Sims, LLC, the court affirmed the CoFC's prior decision that: (i) although two agreements both contained flaws in language that might have rendered them unenforceable, both parties performed as if they intended to be bound; (ii) while the FAR did not require the Government to prepare past performance evaluations (PPEs) for contracts under the micro-purchase threshold, the Government had the discretion to do so; and (iii) negative PPEs based on the contractor's failure to provide significant portions of the services contemplated by the agreements did not breach the Government's obligation of good faith and fair dealing.

In K-Con Building Systems, Inc., the court affirmed prior CoFC decisions that (i) the liquidated damages provision in the contract was enforceable; (ii) the contractor had failed to provide timely notice of alleged changes in accordance with the "Changes" clause; and (iii) the court lacked jurisdiction over the contractor's claim for time extensions because it had not been first presented to the Contracting Officer for a decision.

In CCI, Inc., the court affirmed the ASBCA's prior decision that the contractor had not established the elements required to recover under a Type I differing site conditions claim.

In the latest chapter from the Sufi Network Services saga, the CAFC vacated the portions of the CoFC's previous decision that had denied the contractor's requests for overhead and profit on its claim preparation efforts in connection with its breach of contract claim.

 

Terminations

In EM Logging, the court reversed the CBCA's prior decision upholding a termination because the evidence did not establish "a pattern of activity that demonstrates flagrant disregard for the terms of this contract" as required by the contract's "Termination for Breach" clause.

In Allen Engineering Contractor, Inc., a decision labeled as nonprecedential, the court upheld the CoFC's dismissal of a complaint seeking to overturn a default termination because the plaintiff had not alleged any plausible excuses for its failure to provide valid performance and payment bonds, which constituted a material breach of contract.

Discovery, Evidence, Procedure

In JRS Management, the court held that, in denying a contractor's claims, the CBCA had erred (i) by treating the Government's motion to dismiss as a motion for summary judgment without prior notice to the contractor, and (ii) by resolving disputed factual issues against the contractor.

In Bruce E. Zoeller, a nonprecedential decision, the court affirmed the ASBCA's denial of the appellant's requests for discovery sanctions and a default judgment against the Government for alleged violations of a discovery order.

Supreme Court


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