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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.
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.
This
website links to resources on the web concerning
government contracting. It is not intended to provide
legal advice. Moreover, I do not vouch for the
completeness, currency, or accuracy of the sites to which
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