2016 Procurement Review: Contract Disputes

	Contents

Boards of Contract Appeals	Court of Federal Claims	Federal Circuit

Jurisdiction/CDA	CDA/Jurisdiction	CDA/Jurisdiction
Changes, Breach, Interpretation	Changes/Breach/Contract Interpretation/Defective Specs	Changes/Breach/Interpretation
Terminations	Terminations	Costs/CAS
Costs/CAS	Discovery, Evidence, Procedure	Fraud, False Claims, False Statements
Quantum	Quantum	Discovery, Evidence, Procedure
Procedure	EAJA
EAJA / Prompt Payment
Delay/Eichleay

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

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

In Jane Mobley Assocs., the CBCA held that various defenses asserted by a contractor in its complaint in response to the Government's claim to recover an alleged overpayment were not CDA claims and, therefore, were not required to be submitted to the Contracting Officer before being asserted at the Board.

In Reliable Contracting Group, LLC, the CBCA denied a contractor's claim for certain extra costs. The Federal Circuit reversed and remanded, instructing the Board to consider an additional issue. While the Board was preparing its decision on remand, the parties engaged in settlement discussions and arrived at a "handshake" settlement that would have resulted in the contractor receiving some, but not all, of its originally claimed amount. Before the parties signed the final settlement agreement or notified the Board of it, however, the Board issued its decision on remand, again denying the contractor's claim (basically saying the record was inadequate for it to consider the additional issue identified by the court). The contractor then moved the Board to vacate its decision so that the parties could implement their settlement agreement. During a conference call concerning that motion, the Government stated that it would implement the settlement if the Board vacated its decision, but the Board issued a decision refusing to do so. The Board conceded that its latest decision will likely result in another appeal to the Federal Circuit.

In Aetna Government Health Plans, the ASBCA refused to dismiss a timely appeal from a deemed denial because the Contracting Officer had failed to issue a decision within 60 days of the submission of a certified claim and had failed to specify a non-contingent date by which a decision could be expected.

In HK&S Construction Holding Corp., the ASBCA held that, in deciding whether an appeal was timely filed and absent any indication in either of the two copies of the Contracting Officer's decision sent to the contractor as to which of of them was supposed to start the appeal clock running, the contractor was entitled to use the date of the copy that it received last.

In Bushra Co., the ASBCA dismissed an appeal filed more than 90 days after the contractor's receipt of a notice of termination, even though the notice merely referred the contractor to the applicable FAR provisions rather than directly stating its appeal rights, because the contractor did not allege any prejudice from the defect in the termination notice. Subsequently, the Board denied the contractor's motion for reconsideration. However, in Access Personnel Services, Inc., the ASBCA denied the Government's motion to dismiss an appeal as untimely because the contractor showed detrimental reliance on the absence of notice of its appeal rights in the Contracting Officer's decision.

In Mansoor International Development Services, the ASBCA dismissed (as untimely) appeals filed more than 12 months after the contractor's receipt of the Contracting Officer's decisions that had failed to notify the contractor of its appeal rights because the record showed the contractor had received notice of its appeal rights by other means and was aware of them and, thus, could not show prejudice from the defects in the decisions.

In Suffolk Construction Co., the CBCA denied the Government's motion to dismiss (as untimely) an appeal filed with the Board more than 90 days after the Contracting Officer's decision on the original claim because the contractor had brought a timely action on the claim in the Court of Federal Claims, and that court, on the basis of an unopposed motion supported by good cause, had then transferred the action to the Board pursuant to 41 U.S.C. § 7107(d).

In Public Warehousing Co., K.S.C., the ASBCA: (i) held that the Government's liability for Prompt Payment Act penalties accrues, for each invoice separately, when the Government pays the invoice without paying any required Prompt Payment interest; and then (ii) denied the Government motion for summary judgment based on the contractor's alleged violation of the six-year limitations period for presenting its claim because the Government had not alleged when each invoice was paid, and, therefore, the claim accrual date could not be ascertained.

In John Lewinger, as Receiver for Corban ABQ V, LLC, the CBCA allowed an appeal to proceed to develop the factual record as to whether the Government had waived the contractor's clear violations of the Anti-Assignment statutes.

In Jonathan Noeldner, the CBCA held that, despite confusion caused by multiple transmissions of notices of appeal by different means, a notice of appeal (i) that referred to all of the claims being appealed and (ii) that was postmarked within 90 days of the Contracting Officer's decision, was timely.

In ThinkGlobal Inc., the CBCA, inter alia, dismissed: (i) a claim for the Government's alleged failure to provide required information on one contract because the claim accrued when the information was due at contract award, which was more than six years before the claim was filed; (ii) a claim for unfair competition from the Government because the contract did not give the contractor the right to operate on the disputed program; and (iii) a claim based on the Government's delays in responding to an FOIA request because the claim involved a statutory, rather than a contract, right. The Board, however, denied the Government's motion to dismiss a claim for damages solely because a no-cost contract was involved. Subsequently, the CBCA partially granted the contractor's motion for reconsideration with respect to six-year limitations issue

In Jonathan Noeldner, the CBCA dismissed an appeal because the contractor had failed to file a claim with the Contracting Officer within the time limit established by a timber sales contract.

In Military Aircraft Parts, the ASBCA dismissed an appeal as untimely, holding that the notice of appeal rights in a decision by a Contracting Officer need not inform a contractor that, if it chooses to appeal to the Court of Federal Claims, the company cannot be represented by non-attorney appearing pro se. (Here, the contractor discovered this CoFC rule only after his 90-day time limit for appealing to the Board had passed.)

In The Adamant Group for Contracting and General Trading, the ASBCA dismissed an appeal as time-barred because the contractor failed to follow-up with any inquiries on an unpaid invoice until more than nine years had passed.

In Ralph Muhammad, the CBCA dismissed appeal with prejudice as moot without the pro se contractor's consent because the parties had signed a bilateral modification giving the contractor its requested relief.

In Agbayani Construction Corp., the CBCA held that an appeal filed prior to the Contracting Officer's issuance of a decision was premature.

In Ahtna Environmental, Inc., the CBCA refused to penalize the contractor pursuant to an unusual and onerous Federal Highway Administration contract clause purportedly barring claims not specifically identified by the contractor in executing a final payment voucher prepared by the Government because (i) the contractor adequately notified the Government of its REA before the voucher was due, and (ii) the Contracting Officer continued to evaluate the REA thereafter.

In URS Federal Support Services, Inc., the ASBCA dismissed (as moot) an appeal from a Contracting Officer's decision that was subsequently withdrawn. Similarly, in BAE Systems Tactical Vehicle Systems LP, the Board dismissed (as moot) an appeal from a decision alleging a government claim for defective pricing, which the Contracting Officer had rescinded.

In SFM Constructors, Inc., the CBCA denied the Government's motion to dismiss an appeal because, although the cover letter to the contractor's claim stated the contractor was seeking "at least" a specified amount, the actual certified claim stated a sum certain.

Jurisdiction

In Shafi Nasimi Construction and Logistics Co., the ASBCA held that, absent any allegation from the contractor of prejudice or detrimental reliance, the Contracting Officer's default termination letter, which notified the contractor of its right to appeal but not the time limits for such appeals, was valid and started the 90-day appeal clock running. The Board then dismissed the appeal as untimely because the Government's communications with the contractor during the appeal period could not reasonably be considered as a reconsideration of the Contracting Officer's decision. I am a little uncomfortable with this position--isn't the contractor's failure to appeal within 90 days, itself, evidence of detrimental reliance on the Contracting Officer's failure to notify it that there was any time limit for an appeal??
In Strobe Data, Inc., the ASBCA dismissed an appeal for lack of jurisdiction because a claim for a "minimum" of, and "likely more" than, a stated amount was not for a sum certain.

In Patrick M. Murray, the PSBCA dismissed an appeal because the underlying claim did not state a sum certain, and, in one of its filings, the contractor wrote: "[r]egarding a total amount claimed, I would not know how to figure out how much damages I may be entitled to . . . ."

In Pacific Coast Community Services, Inc., the CBCA dismissed an appeal for lack of CDA jurisdiction because the underlying claim failed to state a sum certain. Subsequently, the Board denied the contractor's motion for reconsideration.

In DekaTron Corp., the CBCA denied the Government's motion to dismiss an appeal for lack of CDA jurisdiction because, contrary to Government's allegations, the contractor's original claim was for a sum certain, the amount requested had not changed on appeal, and the contractor's allegation that its claim was based on a contract with the Government was all that was required to survive a motion to dismiss (arguments concerning the Government's contention that there was no contract would not be considered until a hearing on the merits).

in Military Aircraft Parts, the ASBCA held that a termination for convenience belatedly issued after the contractor already had submitted a breach claim based on a prior (erroneously issued) cancellation, did not deprive the Board of jurisdiction over an appeal involving the alleged breach.

In Shavers-Whittle Construction, LLC, the ASBCA held it lacked jurisdiction over a direct appeal by a subcontractor, especially where the letter that the subcontractor contended was its claim did not include a sum certain and was not certified and where the subcontractor requested a form of relief (to have the prime contract voided) beyond the Board's jurisdiction.

In Global Engineering & Construction, LLC, the ASBCA held it lacked CDA jurisdiction over an appeal because: (i) the contractor's letters to the Government did not amount to a claim, especially where the amount at issue exceeded $100,000 but had not been certified; and (ii) the Government's message to the contractor did not contain sufficient indicia of finality to constitute a government claim.

In AeroVironment, Inc., the ASBCA held it lacked jurisdiction over proposed amendments to the Government's answers in an appeal because the amendments were actually new claims first raised by the Government's trial attorney that were beyond the scope of the Contracting Officer's original decision.

In Moss Card Consulting, Inc., the CBCA dismissed an appeal for lack of CDA jurisdiction because the contractor had not submitted a claim to the Contracting Officer. In Richter Developments, Ltd., the CBCA dismissed another appeal for lack of CDA jurisdiction because the contractor had failed to certify a claim that exceeded $100,000.

In Optimum Services, Inc., the CBCA held that the GAO's conclusion in a bid protest under its CICA jurisdiction that the procuring agency had acted reasonably in terminating a contract for convenience was not res judicata with regard to the Board's ability to decide a CDA claim challenging the propriety of that termination.

In Afghan Active Group (AAG), the ASBCA held that a contractor's emails to the Contracting Officer evidencing a desire to "appeal" the Contracting Officer's decision were sufficient to establish jurisdiction at the Board, even absent a direct appeal to the Board and any statement in those emails that the Board was where the contractor wanted its appeal filed because the Contracting Officer's decision had not advised the contractor of its option of filing suit at the Court of Federal Claims.

In Military Aircraft Parts, the ASBCA held that: (i) it lacked jurisdiction over the contractor's claim that a contract termination was a breach because the appeal had not been filed within 90 days of the contractor's receipt of the termination decision; (ii) because the cancellation of individual purchase orders orders issued under that contract was not a government claim, the Board did have jurisdiction over subsequent contractor claims challenging those cancellations; but (iii) those claims lacked merit because the contractor had not delivered the required first article items on time. Subsequently, the contractor's motion for reconsideration was denied

In Leviathan Corp., the ASBCA held it had jurisdiction over a contractor's appeal, which was based on a written settlement offer (made and signed by a DCMA Contracting Officer in the form of a proposed contract modification), which the contractor had accepted by signing it, despite the fact that the original contracting entity (Iraq's CPA) was not one over which the Board normally has jurisdiction.

In Military Aircraft Parts, the ASBCA held it lacked jurisdiction over a contractor's breach claims that implicitly were challenges to default terminations the contractor had not timely appealed. Subsequently, the Board denied the contractor's motion for reconsideration.

In Maersk Line, Limited, the ASBCA denied: (i) the Government's motion to dismiss for lack of jurisdiction (because the claim presented by the contractor to the Board was based on the same operative facts as the claim originally submitted to the Contracting Officer); and (ii) cross motions for summary judgment (because of disputed material facts and the advisability of hearing extrinsic evidence as to an issue of contract interpretation).

In Bluegrass Contracting Corp., the CBCA held that a notice of appeal with a Postal Service postmark within the 90-day limit was timely filed.

In Bass Transportation Services, LLC, the CBCA dismissed an appeal of the denial of a contractor's certified claim for lack of jurisdiction because, although that appeal was timely filed, the contractor had failed to timely appeal the prior default termination, the overturning of which would be a prerequisite to considering the current appeal.

In ABB Enterprise Software , Inc., the ASBCA rejected the Government's argument to interpret the phrase "related to" narrowly and held it had CDA jurisdiction over a dispute involving a license agreement accompanying software that the Government was acquiring under a contract covered by the CDA because the license agreement was "related to," i.e. connected with, the performance of the covered contract.

In Government Services Corp., the ASBCA held it had jurisdiction over a contractor's claim for "$100,000" because it was stated as a sum certain even though, in response to the Contracting Officer's query regarding how that amount was calculated, the contractor had stated it was a "good faith estimate . . . derived by a simple mathematical formula of estimating the future expense, both administrative and legal, that is expected to be required to counter the apparent bad faith libelous actions of" the Government's representatives.

In Black Tiger Co., because the appellant alleged the existence of a contract and provided some evidence of it, the ASBCA refused to dismiss an appeal based on the Government's contention that it could find no evidence of the contract in its records.

In GSC Construction, Inc., the ASBCA held that although the DOL had exclusive jurisdiction to decide whether a contractor violated a contract's labor provisions, the Board has jurisdiction to decide whether a termination based on alleged violations of those provisions was justified.

In Panjshir Kandahur Construction Co., the ASBCA dismissed an appeal for lack of jurisdiction because the contractor had previously filed only a routine invoice rather than a claim with the Contracting Officer.

In Academy Partners, Inc., dba Academy Technology, the CBCA held that the contractor's mere allegation of the existence of an implied-in-fact contract for continued performance after the base period of an order had ended was sufficient to survive the Government's motion to dismiss for lack of jurisdiction.

The ASBCA dismissed an appeal by Arab Shah Construction Co. because there was no evidence a claim in any form had been filed with the Contracting Officer.

The ASBCA dismissed another appeal because Great America Construction Co. had signed a contract mod releasing all claims in return for a settlement payment.

In Suzan Co., the ASBCA dismissed an appeal for lack of jurisdiction because, despite several orders from the Board to do so, the contractor never provided any evidence to the Board that it had certified its original claim prior to the time the Contracting Officer had issued a decision on it. An appeal by Stobil Enterprise at the CBCA suffered from the same defect and suffered the same fate. Subsequently, the Board denied the contractor's motion for reconsideration.

In RECO Rishad Engineering Construction ORG, the ASBCA dismissed an appeal because the claim certification included only the typed name of a company official and was not signed. Similarly, in ABS Development Corp., the Board dismissed an appeal because merely typing the name of an alleged claim certifier in a different font, even a cursive font, does not result in signature that can be authenticated.

In Amaratek, the ASBCA dismissed an appeal challenging the Government's in-sourcing decision because it was essentially a bid protest over which the Board lacks jurisdiction.

The ASBCA dismissed an appeal by Fahim Noori Construction Co. because the contractor's only submission to the Contracting Officer was a routine request for payment in the form of an invoice, rather than a claim. In Mustafa Kamosh Group, the CBCA dismissed an appeal for lack of jurisdiction because the contractor had not submitted a claim to the Contracting Officer.

The ASBCA dismissed an appeal by KBAJ Enterprises, LLC t/d/b/a Home Again because the essence of the appeal was a monetary dispute, and the contractor had not submitted a monetary claim in a sum certain to the Contracting Officer.

In Colonna's Shipyard, Inc., the ASBCA held that, although it lacked jurisdiction over (a) the contractor's claim that its due process rights were violated by the Government's failure to permit the contractor to review and respond to negative comments in a CPAR before it was published and (b) the contractor's request for injunctive relief or specific performance, the Board did have jurisdiction over other contract disputes involving alleged improprieties in the CPAR.

In Creative Times Dayschool, Inc., the contractor had initially submitted a document to the Contracting Officer that qualified as a CDA claim, but then down-converted it into an REA (so that the ASBCA lacked jurisdiction over a suit based on the Contracting Officer's response to the REA), and still later, reconverted it into a CDA claim, giving the Board jurisdiction over the Contracting Officer's subsequent denial of that claim. The fact that the submission was initially a claim submitted in anticipation of litigation, rather than an REA, however, precluded the contractor from recovering its professional consulting fees incurred in preparing it.

In Strawberry Hill, LLC, the CBCA dismissed an appeal because: (i) no contract existed absent the Contracting Officer's signature; and (ii) the contractor's self-styled "amended" claim presented on appeal was actually a new claim for greater than $100,000 that had not been presented to the Contracting Officer. Similarly, in Excel Link Construction Co., the ASBCA dismissed an appeal challenging a firm's designation as "Not Eligible for Installation Access" in a vendor vetting program because there was no contract between the firm and the Government and no prior claim to the Contracting Officer. In both Genuine Construction Co. and Washington Star Construction Co., the ASBCA dismissed an appeal because the contractor had not submitted a claim to the Contracting Officer. Similarly, in Sauer Inc., the ASBCA struck a claim from the Complaint because it had not been previously submitted to the Contracting Officer.

The ASBCA dismissed an appeal by KBAJ Enterprises, LLC t/d/b/a Home Again because the contractor's alleged claim letter was not sent to the Contracting Officer and did not request a decision by the Contracting Officer.

In B3 Solutions LLC, the ASBCA dismissed a direct appeal by a second-tier subcontractor to an 8(a) contractor for lack of jurisdiction because there was no privity of contract with the Government.

In CB&I Areva Mox Services, LLC, even though the contractor sought the same relief (increase in fee percentage) on appeal as it had in its original claim to the Contracting Officer, the CBCA dismissed the appeal for lack of jurisdiction because the contractor's contention on appeal that the Contracting Officer failed to negotiate the fee in good faith would require the Board to examine different operative facts than the original claim, which relied on the assertion that the Government had breached a specific contract clause.

In Angela M. Stine, the PSBCA dismissed an appeal involving a monetary claim that had not been presented to the Contracting Officer for a decision and requesting relief the Board lacked jurisdiction to provide, i.e., renewal of a contract.

Changes/Constructive Changes/Contract Interpretation/Breach/Authority

In In R.A. Glancy & Sons, Inc., the CBCA held that the contractor could recover for some extra work directed by government employees who lacked the authority to give such directions because the Contracting Officer knew or should have known what was happening, but simply stood by and let it continue

In VEER Right Management Group, Inc., the PSBCA held that a contractor's unreasonable delay in submitting its subcontractor's invoice to the Government breached the contract and left the contractor liable for payment.

In Andy Phillips, the ASBCA denied various breach claims because: (i) there was a lack of proof; (ii) the contract made the contractor responsible for the costs of the alleged issue; (iii) an isolated event did not rise to the level of a breach; (iv) an allegation of damages phrased as "[e]stimate loss of sales at 30%" did not meet the CDA requirement to state the claim as a sum certain; and (v) allegations that the Government failed to appoint a COR and invalidly extended the contract were not CDA claims because they did not include a demand for money or any other relief.

In The Life Eye Co., the ASBCA denied the claim primarily because the contractor submitted inadequate, inconsistent documentation, including some with forged signatures, to support it.

In Edinburgh International, a case involving contract interpretation, the ASBCA held that a fixed-price task order, which did not cover billeting services, did not shift the risk to (or impose an obligation on) the Government to pay for unexpected costs of billeting security personnel.

In Relyant, LLC, the ASBCA held that the interpretation that the contract allowed the parties to agree on lower prices for individual delivery orders than those stated in the price schedules of the overarching contract was the only reasonable reading of the contract documents as a whole and was consistent with the parties' actions before the dispute arose.

In Vistas Construction of Illinois, Inc., a case involving a post-Katrina construction contract to enlarge a levee, the ASBCA held, inter alia, that: (i) the contractor was not entitled to the retroactive use of a value-added base for calculating G&A when the contractor's normal approach for all other situations was a total cost input; (ii) the contractor failed to present sufficient, relevant, non-contradictory evidence to support its calculation of the profit it alleged it was owed for changed work; (iii) the Government was not obligated to pay PPA interest for alleged delays in payment on disputed amounts in excess of the original contract price; (iv) several other claims by the contractor were not adequately supported with evidence, e.g., some of its claims for its costs of responding to a DCAA audit report.

In Magwood Services, Inc., the CBCA: (i) denied a delay claim under the "Suspension of Work" clause because the Government's actions were not the "sole proximate cause" of the delay; and (ii) upheld the Contracting Officer's withholding of funds pursuant to "Inspection of Construction" clause for retesting and rework of work originally provided by the contractor.

In G2G, LLC, the CBCA held that: (i) an 8(a) contractor was not entitled to monetary damages for the Government's decision not to exercise its option to extend the term of a contract (even if the Government had failed to comply with certain procedural requirements of the 8(a) program); and (ii) the Board lacks CDA jurisdiction to compel specific performance of a contract.

In SupplyCore, Inc., the ASBCA held that the Government had not breached a duty of good faith and fair dealing toward the contractor by allegedly delaying its notice to the contractor that an option would not be exercised because the contract did not require any earlier notice from the Government.

In Jane Mobley Assocs, Inc., a decision based on principles of contract interpretation, the CBCA held that a bilateral task order modification clearly established that the modification work was to be based on labor-hour billing as opposed to the firm, fixed-price measure under the basic task order, especially in light of both: (i) the contractor's conduct in changing its accounting methods to comport with the labor-hour billing system after the mod was issued, and (ii) the contractor's failure to inquire about a patent ambiguity between the terms of the modification and an interpretative statement made by the Contracting Officer.

In ERKA Construction Co. Ltd., the ASBCA held that, even absent proof that the contractor's owners or upper management knew of the theft, the contractor was responsible for the actions of its employees who stole fuel, especially when it is likely that its project managers were aware of the situation.

In Systems Management and Research Technologies Corp., a case involving contract interpretation and the parol evidence rule, the CBCA held that a contract was an unusual hybrid calling for (i) T&M payments of hourly rates loaded only with G&A and overhead and (ii) a separate, pre-established "fixed fee" in addition to the T&M payments.

In Matheson Postal Services, Inc., the PSBCA held that: (i) a bilateral amendment (negotiated under the "Changes" clause and revising rates as a result of service reductions) precluded the contractor's subsequent claims that the reductions constituted partial contract terminations; and (ii) a single instance in which the Postal Service had handled the issue differently on another contract was not sufficient to create a "course of dealing" on which the contractor was entitled to rely.

In River Ridge Development Authority, the ASBCA found broad authority in a master lease agreement and an O&M plan for the lessee of an Army ammunition plant to offset some of its insurance costs against the annual fair market rental for the property.

In Lee's Ford Dock, Inc., the ASBCA held that: (i) the contractor had not established the elements for reformation based on either mistake or misrepresentation; and (ii) the contractor's argument that the Government had breached the agreement relied on an unreasonable interpretation of a clear provision in the agreement.

In Americom Government Services, Inc., the CBCA discussed the requirements for the Government to be found to have ratified an otherwise unauthorized contractual commitment and held that the requirements for ratification were met in this case. Subsequently, the Government's motion for reconsideration was denied.

In Rodriguez Construction LLC, a case involving competing claims by the Government and the contractor on a contract for renovation work on a retention pond, the CBCA determined (i) the extent and quantum of a deductive change and (ii) the date of substantial completion for purposes of computing the number of days of liquidated damages the Government was entitled to assess for late completion.

Over a dissent, the CBCA held in José Gustavo Zeno that a broadly worded, general release of all the contractor's claims (which closely followed a default termination and was supported by consideration) did not preclude the contractor from challenging the termination because it did not specifically waive his right to challenge a government claim.

In AutoFlex, Inc., the CBCA held that the agency had fulfilled bilateral agreement for a 12-month vehicle lease at a stated monthly price and was not obligated beyond that term or price.

In CAE USA, Inc., the CBCA rejected all the legal theories advanced by the contractor to support its contention that its IDIQ contract required the Government to permit it to retain (for the duration of the contract) government-furnished equipment relating to an aircraft program the Government had canceled after contract award.

In Asheville Jet Charter and Management, Inc., the CBCA held over for further proceedings the question of whether the departure of the contractor's key employees constituted a "strike" excusing its default under the contract's commercial items contract terms and conditions.

In Marine Metal, Inc., the CBCA held that, because both the solicitation and the contract for the sale of a ship contained clear "as is/where is" condition clauses, the contractor was precluded from recovering on a claim of an alleged misdescription of the ship's weight.

In Military Aircraft Parts, the ASBCA held that the contractor was entitled to the full contract price for a purchase order as damages for the Government's improper rejection of the First Article, which would have been acceptable but for damage to the item caused by the Government's inspection.

In Mach I AREP Carlyle Center, LLC, the ASBCA reaffirmed the principle that "by law, no lease can compel the [Government] to exercise option years that were not yet funded at the time the lease was entered" and held that the Government was not liable for the failure to exercise the remaining option years on a building lease that was terminated early in one option year due to a lack of funding brought about by a government shutdown over a budget dispute and, subsequently, was not reinstated.

In BMC Contracting, LLC, the CBCA held that clear government disclaimers in a timber sales solicitation and contract placed all the risks as to the quality and quantity of available timber on the contractor and precluded the contractor's claims for negligent estimates or alleged government misrepresentations.

In SecTek, Inc., the CBCA held that the contractor was not entitled to a Service Contract Act price adjustment for higher wages it paid its employees beginning with the first day of the first option year pursuant to a new collective bargaining agreement because those wages were not incorporated in a wage determination applicable to the contract as of that date. However, the CBCA subsequently granted the contractor's motion for reconsideration and dismissed the appeal as one involving a dispute within the exclusive jurisdiction of the Labor Department.

In ASW Assocs., the CBCA dismissed the portion of the appeal related to the contractor's contention that the agency had interfered with or hindered the contractor’s performance because the contractor failed to provide any evidence to support that assertion despite numerous requests during discovery.

In CACI International, Inc. & CACI Technologies, Inc., a decision involving contract interpretation, the ASBCA held that the hazardous pay supplement of 35% of the contractor's "basic compensation" rate applied to all hours worked by the contractor's employees, including overtime work.

In King Aerospace, Inc., the ASBCA held that (in an aircraft maintenance contract), the contractor was entitled to recover its extra costs incurred because (i) the condition of the government-furnished aircraft was inferior to that represented in the contract, and (ii) the government-furnished property listed in the contract was often not delivered in a serviceable condition or in a timely manner.

In Financial & Realty Services, LLC, the CBCA dismissed the contractor's claim and held that, in a fixed-price task order to provide an individual to perform property management services, the fact that the employee left to work for the Government does not entitle the contractor to payment for the months during which no replacement was performing the required services.

In Bullseye International SDVOB, Inc., the CBCA found no basis for the contractor's claim that it was entitled to recover merchant transaction fees incurred because the agency had allegedly used government purchase cards in amounts, and at intervals, that violated agency regulations.

In Douglas P. Fleming, LLC, the CBCA expressed its displeasure with (a) the contractor's failure to track its actual costs of allegedly extra work it knew at the time of performance would be the subject of a dispute and (b) its reliance on unpersuasive testimony that was often at odds with the sparse contemporaneous record, and held, inter alia: (i) the jury verdict method would be used to calculate a recovery where the contractor's evidence was insufficient; (ii) the contractor's claim for costs associated with responding to a cure notice must be denied because the cure notice was justified by the contractor's statements and actions threatening anticipatory repudiation; (iii) claims for excess painting costs were not justified because, under the rules of contract interpretation, the contract required the contractor to paint all of the disputed area for the contract price; (iv) a clear release in a supplemental agreement precluded a subsequent claim for the costs of administrative time incurred prior to a notice to proceed; and (v) the contractor failed to present evidence that it had performed extra touch-up painting work.

The ASBCA sustained an appeal by HCS, Inc. because the Government failed to present evidence in support of its post-contract, unilateral 50% price reduction for deleted work as a result of an earlier unilateral change order.

In Ft. McCoy Shipping & Services, the ASBCA denied claims for various categories of costs because (i) the contract made the contractor responsible for them, (ii) the contract contained no provision for their recovery, (ii) they constituted ordinary business expenses, or (iv) the contractor incurred them as a volunteer after the contract had ended.

In Bryant Commercial Postal, LLC, the PSBCA held that the Postal Service, as the lessee, was responsible for the costs of removing trash and graffiti from a building it continued to pay rent on, but had abandoned.

In Attenuation Environmental Co., the CBCA rejected all the contractor's theories of recovery for lost profits after the Government declined to exercise an option because the Government had ordered (more than) the minimum quantity under an IDIQ contract, which was all it was required to do.

In Native American Construction Services, LLC, the CBCA denied a claim for breach of contract because the contractor had not presented any evidence that would permit the CBCA to determine the amount, if any, of increased costs associated with the alleged breach. Subsequently, the Board denied the contractor's request for reconsideration because it sought relief on a basis that was inconsistent with the issue that had been originally litigated.

In E Industry, Inc., the CBCA held that the purchaser's failure to inspect the merchandise prior to bidding in an online auction did not preclude its subsequent claim for misdescription of the items in the auction.

In Sylvan B. Orr., the CBCA, inter alia: (i) dismissed the contractor's claim that it should have been offered work under a BPA because the BPA did not commit the Government to order any work; (ii) held that the contractor's signature on a general release accompanying final payment on an order barred the contractor's subsequent claim for actions that occurred prior to the execution of the release; (iii) concluded that the contractor had failed to prove it signed the release under duress; (iv) dismissed a claim based on minor procedural missteps by the Government in issuing a CPAR; and (v) held that the contractor's challenge to the specifics in a CPAR was moot because the Government, recognizing the contractor had not had an opportunity to comment on the CPAR, never utilized (or acted on) it for any purpose.

In Ensign-Bickford Aerospace & Defense Co., the ASBCA held that: (i) the Government had failed to meet its burden to prove by a preponderance of the evidence that its rejection of production lots was proper; and (ii) the characteristics of an approved First Article do not change, or make more stringent, the contract requirements for subsequent production lots.

In Creative Times Dayschool, Inc., the ASBCA held that the contractor failed to offer adequate proof for any of its contentions that: (i) the Government required paving work beyond the original contract specifications; (ii) the roofing specification was defective; (iii) the Government unreasonably delayed roofing work; and (iv) the Government changed the requirements regarding the fall prevention system or the size of the mandatory management team. However, the ASBCA held that the contractor was entitled to remission of liquidated damages for the period of time it took the parties to agree on a solution to a problem that arose during construction.

In Grunley Construction Co., on cross motions for summary judgment on numerous issues, the CBCA held, inter alia, that the Government was responsible for the contractor's (and its subcontractor's) excess costs incurred because of the Government's erroneous insistence (initially supported, but ultimately rejected, by the DOL) that the subcontractor was paying certain workers less than the rates required by the Davis-Bacon Act.

In R & G Food Services, Inc., the CBCA held that the Government had not breached a mobile food service company's contract after two fires merged into one by (i) releasing the company from further work, and (ii) consolidating service with another contractor that had been working at one of the two fires before they merged.

In Sea Shepherd Conservation Society, the CBCA denied an auction winner's claim that, because the agency had allowed another firm (which ultimately had been determined to be ineligible) to bid in an auction, the winning bidder was forced to bid higher for an item that it would have had that other bidder not been permitted to participate. The CBCA reasoned that the agency had followed all applicable auction rules.

Partially granting cross motions for summary judgment, the CBCA held in Grunley Construction Co. that: (i) the Government was liable for excess costs resulting from its requirement that the contractor classify and pay workers in a higher wage rate category than was required by the contract; and (ii) for a differing site conditions claim, clause GSAM 552.243-71 allowed the contractor to recover a maximum commission of 10%, and no overhead, on work performed by its subcontractor.

In Missouri Department of Social Services, the ASBCA held that, under FAR 52.249-2(l), the contractor was entitled to an equitable adjustment for its increased costs of performing the remaining work, which were caused by the Government's partial termination for convenience of a requirements contract.

In Tetra Tech Facilities Construction, LLC, the ASBCA held that the contractor had established that the unsuitable (saturated) subsurface soil it had encountered during construction constituted a Differing Site Condition.
The ASBCA denied an appeal by ABC Data Entry Systems, Inc. because, as a matter of law, the Government has no liability for a negligent estimate of work on an indefinite-quantity contract.

In Smart Way Transportation Services, the ASBCA rejected the contractor's various theories of recovery because the Government had satisfied its obligations by permitting the contractor to invoice for the minimum guaranteed order quantity during the base period under an ID/IQ contract. Subsequently, the contractor's motion for reconsideration was denied.

In a lengthy opinion concerning a delay and disruption claim that was larger than the basic contract price and was based primarily on alleged differing site conditions, the CBCA denied the appeal by Choctaw Transportation Co. for a host of reasons, including, inter alia: (i) the absence of support in the contract for the contractor's interpretation, (ii) the contractor's failure to timely notify the Contracting Officer of either changes or differing site conditions, (iii) the fact that the contractor should have known of the disputed conditions at the site from its pre-bid investigations, (iv) questions concerning the credibility of the contractor's testimony concerning its original plan for performing the work, and (v) deficiencies in the contractor's expert's legal analysis and his methods for calculating the quantum of delays and impacts.

In Akal Security, Inc., the CBCA denied the contractor's claim for reimbursement of its liabilities to employees under California law for providing insufficient wages and benefits because: (i) the contract obligated the contractor to comply with all laws; (ii) the Government was not required to research those laws for the contractor; and (iii) the Government did not interfere with contractor's ability to comply with California laws.

In 1201 Eye Street, N.W. Assocs., LLC, the CBCA granted the contractor's claim because: (i) the plain language of the original lease between the contractor and the GSA established the method of calculating yearly operating cost adjustments, and the lease extension executed by the parties explicitly indicated the original lease provisions would continue to govern; and (ii) the Government's interpretation was contradicted by the prior course of dealing between parties before dispute arose.

In Ricoh USA, Inc., the ASBCA denied the contractor's claim for the Government's use of fewer leased copiers than the contractor had expected because the contract was a requirements contract that clearly contemplated the number of units might be reduced without any penalty, and the executed contract did not include extraneous language concerning, e.g., termination fees, that the contractor had submitted in unsolicited parts of its proposal.

In MBD Maintenance, LLC, the PSBCA held that a release signed by the contractor after the contractor was aware of the facts giving rise to a mistake in bid claim barred that claim.

Terminations/Liquidated Damages/Government Claims

In Brent Packer and Myrna Palasi, the CBCA held: (i) it lacked jurisdiction over appeals from terminations of BPAs absent any allegation of mutuality of obligation because BPAs are not contracts; (ii) the Board had jurisdiction over appeals from terminations of individual call orders issued under the BPAs because those call orders were contracts; (iii) the termination of a commercial items contract for alleged failure to comply with contract terms requires a cure notice and an opportunity to cure; and (iv) terminations based on alleged conflicts of interest made without a prior cure notice were invalid.

In Stop & Mail Etc., Inc., the PSBCA held that, although the Postal Service had legitimate concerns with the contractor's performance, it had failed to establish how a termination upon only one day's notice was necessary to protect the Postal Service's interests, which was the standard required by the termination clause in the contract.

In Olbeter Enterprises, Inc., the PSBCA held that the Postal Service was not entitled to recoup payments it had made to a contractor under a fixed-price contract for mail delivery services between two facilities after the Postal Service closed one of the facilities but inexplicably failed to terminate the contract.

In Highland Al Hujaz Co., Ltd, the ASBCA: (i) upheld a termination for default issued immediately after the contractor anticipatorily repudiated a material, non-severable requirement of a contract by "positively, definitely, unconditionally, and unequivocally refus[ing] to continue providing temporary power without additional fuel payments by the [G]overnment"; and (ii) held that the Government's justifiable withholding of progress payments was not an excuse for the contractor's refusal to perform.

In Derrick V. Greene, the PSBCA upheld default terminations because the mail delivery contractor had refused to communicate with Postal Service employees concerning various performance issues and then, after he was denied access to the loading docks as a result of those communication issues, failed to hire substitute drivers, which resulted in a failure of performance over an extended period of time.

In Joseph Sottolano, the ASBCA upheld the termination for cause of the United States Military Academy's head baseball coach for, inter alia, having sexual relations with a female staff assistant in his office during working hours.

In Marshall's Electric, Inc., the ASBCA rejected all the contractor's excuses and upheld a default termination based on the contractor's failure to obtain the required bonding for the project.

In Third Coast Fresh Distribution, L.L.C., the ASBCA upheld a termination for cause of a contract set-aside for small businesses after the SBA determined the contractor was not small because it was not compliant with the requirements of the nonmanufacturer rule.

In Military Aircraft Parts, the ASBCA held that: (i) it lacked jurisdiction over the contractor's claim that a contract termination was a breach because the appeal had not been filed within 90 days of the contractor's receipt of the termination decision; (ii) because the cancellation of individual purchase orders orders issued under that contract was not a government claim, the Board did have jurisdiction over subsequent contractor claims challenging those cancellations; but (iii) those claims lacked merit because the contractor had not delivered the required first article items on time.

In Quality Trust Inc., the ASBCA upheld a default termination based upon the contractor's failure to obtain the required performance and payment bonds. Subsequently, the Board denied the contractor's motion for reconsideration.

In Universal Home Health and Industrial Supplies, Inc., the CBCA: (i) dismissed the contractor's original appeals from terminations for default as moot because the Government had converted them to terminations for convenience; and (ii) denied a subsequently-filed appeal that the original terminations were made in bad faith, because the Government had a reasonable basis to terminate and the contractor had not responded adequately to the Government's request for assurances. Subsequently, the Board denied the contractor's motion for reconsideration.

The ASBCA upheld a partial default termination in Lean Construction and Engineering Co. because the contractor failed to complete the construction work despite two extensions to the contract schedule and several notices from the Government detailing the problems with the work.

In Rhodes Research, the ASBCA held that, in light of the scant documentation submitted by the contractor to support its convenience termination settlement proposal, the Contracting Officer had fairly determined the percentage of completion of the contract and the amount due the contractor pursuant to FAR 52.212-4. Subsequently, the contractor's motion for reconsideration was denied.

In Precision Standard, Inc., which involves the principle of the contractor's duty to proceed pending the resolution of a dispute, the ASBCA held that a default termination was justified by the contractor's refusal to perform in accordance with the Contracting Officer's directions and to properly respond to cure notices after the Government insisted on the use of what the contractor believed was the incorrect welding standard, especially where (prior to the termination) the contractor had not alleged that the Government's action was a breach.

In Puget Sound Environmental Corp., the ASBCA held that the Government had not acted in bad faith in terminating a purchase order for convenience and declining to exercise additional options after the DOL made a preliminary determination that the contractor failed to pay wages in accordance with the Service Contract Act.

In Bryan Concrete & Excavation, Inc., the CBCA denied an appeal from a default termination because the contract obtained by the contractor's false certification that it was an eligible SDVOSB was void ab initio. Subsequently, the Board (i) held it had jurisdiction over the contractor's motion for reconsideration even though an appeal to the CAFC was pending and (ii) denied that motion.

In Avant Assessment, LLC, the ASBCA converted a default termination to one for convenience because the Government: (i) failed to present any evidence of the existence of the delivery schedule it claimed the contractor had not met; and (ii) failed to show the contractor had delivered fewer than the required number of items because the parties had agreed to reduce the number of required items to only the number the Government found acceptable.

In DCX-CHOL Enterprises, Inc., the ASBCA denied the contractor's motion for summary judgment to overturn a default termination because the contractor failed to present evidence for either of the two elements required by the so-called DeVito rule to establish that the Government had waived the contract delivery date.

In Deas Construction, Inc., the ASBCA held that: (i) interpreted as a whole, the contract required the contractor to fabricate and provide a fully functional ISO Stand and that the Government had not withheld superior knowledge that the contractor's price was too low; and (ii) after it terminated the contract for convenience because the contractor was unable to complete the work, the Government correctly determined that the contractor had performed only 10% of the work and, therefore, was limited to that percentage of the contract price.

In the consolidated appeals of Cook Mail Carriers, Inc. and Patricia J. Sasnett, the PSBCA, inter alia, upheld the termination of two contracts under the Termination with Notice clause because, even though the Contracting Officer was mistaken about why changes in mail routes were needed, he had a right to terminate on 60 days notice with or without cause, and he would still have terminated the contracts and consolidated the routes if he had known the correct facts, so he did not act in bad faith.

In William Finley, although the PSBCA held it had jurisdiction over an appeal involving a monetary claim that the Postal Service declined to renew a contract due to racial discrimination, the Board granted summary judgment in favor of the Government because there was no evidence (beyond the contractor's speculations) that the Postal Service abused its discretion or acted in bad faith or from discriminatory motives in declining to renew a contract so that mail routes could be consolidated.

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

In Rex Systems Inc., the ASBCA discussed the proper analysis of recoverable convenience termination costs under FAR 52.213-4(f) (the termination clause for simplified acquisitions for other than commercial items), which permits recovery of a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges that have resulted from the termination.

In Exelis, Inc., the ASBCA (i) dismissed the Government's CAS 404 claim because a building lease is not a tangible asset, which is the type of asset covered by CAS 404, but (ii) permitted the Government to proceed with its claim that the contractor's alleged mischaracterization of lease expenses violated FAR principles of allowable costs. Subsequently, the Board denied the Government's motion for reconsideration.

In Raytheon Co., Space & Airborne Systems, the ASBCA held that the Contracting Officer had violated FAR § 30.602 and abused her discretion by making a government claim for increased costs associated with a change in cost accounting practices without considering the materiality of the cost impacts associated with the change pursuant to the criteria in 48 C.F.R. § 9903.305.

In Alaska Aerospace Corp., the ASBCA denied the Government's claim for recoupment of pension contributions because the Government neglected to present any evidence that it reimbursed the contractor for any of those costs.

In Mission Support Alliance, LLC, the CBCA denied the contractor's claim for the costs of purchasing SAFETY Act insurance because: (i) the contractor failed to comply with the contract requirement to notify the Contracting Officer of the proposed purchase and obtain his prior consent; and (ii) the Contracting Officer's determination that the costs were neither "reasonable" (because the contractor had incurred them without seeking the required approval) nor "ordinary" (because the contract did not require them and other similarly situated contractors did not incur them) was supported in the record.

Delay/Eichleay

In KBJ, Inc., the ASBCA held that, although a release in a modification barred the contractor's subsequent claims for compensation and time due to delays occasioned by encountering asbestos, the contractor was entitled to 109 days of Eichleay overhead because the Government's suspension of work resulted in a delay to the critical path, which, in turn, resulted in the contractor's standby costs in a situation where any contractor delays were not on the critical path.

In Air Services, Inc., the ASBCA awarded a contractor its delay costs caused by the Government's "indecision and confusion" over a project requirement.

In Regency Construction, Inc., the CBCA held that a contractor could recover some of its claimed costs associated with delays in its subcontractor's access to the work site caused by the presence of another contractor because the Government had affirmatively warranted that the other contractor would have vacated the site by the date when the subcontractor was to begin work.

In Contrack International, Inc., the ASBCA held that, accepting the Government's contentions as true for purposes of the contractor's summary judgment motion, the contractor was not entitled to delay damages for a third party's (the Afghan National Army's) delay in moving vehicles off the contractor's worksite.

In a lengthy opinion concerning a delay and disruption claim that was larger than the basic contract price and was based primarily on alleged differing site conditions, the CBCA denied the appeal by Choctaw Transportation Co. for a host of reasons, including, inter alia: (i) the absence of support in the contract for the contractor's interpretation, (ii) the contractor's failure to timely notify the Contracting Officer of either changes or differing site conditions, (iii) the fact that the contractor should have known of the disputed conditions at the site from its pre-bid investigations, (iv) questions concerning the credibility of the contractor's testimony concerning its original plan for performing the work, and (v) deficiencies in the contractor's expert's legal analysis and his methods for calculating the quantum of delays and impacts.

Quantum

In BAE Systems San Francisco Ship Repair, the ASBCA held, inter alia, that: (i) neither the Government's estimate nor what similar work had cost other contractors would adequately measure what the contractor should recover for its costs of performing extra work unilaterally directed by the Government; (ii) the contractor's accounting system was adequate to capture its costs for the extra work; (iii) the contractor was obligated to suspend work on the original contract items only after it had received a written, unilateral order from the Contracting Officer directing it to perform the changed work; (iv) the contractor's hourly rate for the changed work was not limited by a contract clause establishing the rate to be utilized in "negotiating" changes because there were no such negotiations; (v) the contract did not prohibit the contractor from recovering overtime for performing the changed work; and (vi) a DCAA audit report, while accepted as evidence, was not dispositive on the issue of quantum--the responsibility for making that determination remained with the Board. In another In BAE Systems San Francisco Ship Repair decision, which involved determining the appropriate equitable adjustment for extra work in a vessel overhaul contract, the ASBCA held, inter alia, that: (i) the contractor's advances to its subcontractor to perform extra work and its agreement to pursue additional costs on behalf of that sub were sufficient to satisfy the requirements of the Severin doctrine; (ii) although the contractor's initial claim submission was based on estimates, its accounting system was adequate to substantiate the actual costs incurred for the extra work; (iii) the Contracting Officer was on notice from the contractor's submissions that the contractor would require overtime to perform the changed work and, having failed to object, was bound by that interpretation; and (iv) the Contracting Officer's "benefit of the bargain" approach for determining the amount of the equitable adjustment was inappropriate in this situation where the Board had accepted the contractor's calculation of its actual costs.

In Tucci and Sons, Inc., the CBCA addressed the proper way to calculate extra costs under the "Differing Site Conditions" clause and held that the fact that the contractor's costs of performance were less than its bid estimate was irrelevant in determining its excess costs attributable to a differing site condition.

In JDL Castle Corp., the CBCA denied the contractor's claims because the contractor had not provided evidence of damages caused by the Government's alleged delays, and because it was implicitly seeking compensation for lost (i.e., delayed commencement of) rental payments, which are not compensable costs of performance.

In PJB Jackson-American, LLC, the CBCA held that loss of expectancy damages (i.e., the gross rent of the lease had it been performed minus necessary expenses and then mitigated by what the contractor would recover through a replacement lessee) rather than damages based on the diminution in the future sale value of the leased premises.

In GSC Construction, Inc. decision, the ASBCA denied the contractor's motion for summary judgment as to quantum because the contractor's motion lacked proof.

In Optimum Services, Inc., after the parties were unable to agree on quantum, the ASBCA used the Measured Mile Method to determine the amount owed to the contractor for a differing site condition on a dredging contract.

Discovery/Procedure/Motion Practice

In Mission Support Alliance, LLC, the CBCA denied the contractor's motion to strike the Government's Answer as nonresponsive because (i) only notice pleading is required, (ii) discovery is used to flesh out the parties' positions, and (iii) the Contracting Officer's original decision disallowing certain contractor costs contained a detailed explanation of the Government's position.

n JR Services, LLC, the CBCA found the Government's one-page general denial in response to a 383-paragraph Complaint in an appeal from a default termination to be inadequate and ordered the Government to file responses to the detailed factual allegations in the Complaint.

In P.J. Dick Inc., the CBCA denied the Government's motion for partial summary judgment that two specifications were not defective (the contractor had alleged that they were) because, although the two specification requirements at issue were clear and unambiguous, material questions remained as to why the contractor had not inquired concerning a patent ambiguity before bidding and whether it was possible to comply with both specifications.

In Ralph Muhammad, the CBCA directed the Government to file the Complaint in an appeal from a default termination that did not provide the contractor with sufficient information as to the reason for the termination.

In Raytheon Co., the ASBCA denied the contractor's motion to strike certain testimony at the hearing that allegedly conflicted with a prior interrogatory answer by the Government because the fact that the answer was inadvertently incomplete did not make it a binding admission and did not merit the sanction requested by the contractor.

The ASBCA dismissed two appeals for failure to prosecute after the contractors failed to respond to orders to propose a schedule for further proceedings at the Board: Ahjar Shat Alarab Albidhaa Co. and Suodor Al-Khair Co - SAKCO for General Trading. In Tokyo Co., the ASBCA dismissed an appeal for failure to prosecute after the contractor failed to explain its contention that its lack of communication with the Board was due to its inability to access its yahoo.com email account for five months. In Elite Quality Services, LLC, the CBCA dismissed an appeal for failure to prosecute after the contractor ignored repeated orders to respond to the Government's dispositive motion.

In Kellogg Brown & Root Services, Inc., which involved the analysis of the date when a claim accrues, the ASBCA denied the contractor's motion for summary judgment alleging that the Government's nonmonetary and monetary claims were filed more than six years after the Government should have known of its claims.

In BAE Systems Tactical Vehicle Systems LP, the ASBCA denied the Government's motion to stay proceedings on an appeal from the Government's TINA claim pending resolution of the Government's FCA suit on the same dispute in District Court. Similarly, in Kellogg Brown & Root Services, Inc., the ASBCA denied the Government's motion to suspend or dismiss (for an indefinite duration) appeals from the denial of the contractor's claim for certain subcontractor costs pending an FCA suit by the Government in District Court. Subsequently, the Board denied the Government's motion for reconsideration.

In Sylvan B. Orr, the CBCA held it would not recognize a non-attorney family member of a pro se non-attorney appellant as the appellant's legal representative for purposes of pursuing an appeal.

In Crane & Co., the CBCA denied the contractor's motion to amend its complaint to add two new claims for a constructive change and ambiguity-of-specifications because those new claims: (i) had never been presented to the Contracting Officer for a decision, and (ii) had accrued more than six years prior to the date the contractor had submitted its only other claim to the Contracting Officer. Coming at the issue from the opposite direction, in Optimus Technology, Inc., the CBCA denied the Government's motion to amend its answer to include a counterclaim that (i) did not relate to the invoices at issue in the contractor's claim and appeal, and (ii) had not been communicated to the contractor in a proper Contracting Officer's decision that notified the contractor of its appeal rights.

In Public Warehousing Co., K.S.C., the ASBCA granted the Government's motion to amend its Answer to add the affirmative defenses of fraud in the inducement, first material breach, the sovereign acts doctrine, the political question doctrine, assumption of the risk, and failure to mitigate, after finding that (i) the Government did not unduly delay seeking to amend the Answer and (ii) the contractor had not been prejudiced.

In Perry Bartsch Jr. Construction Co., the CBCA denied the Government's motion for summary judgment because of ambiguities in (and unresolved factual issues concerning scope of) the release language in a bilateral modification.

In Hawk Contracting Group, LLC, the CBCA denied the contractor's request that the Board order the Contracting Officer to issue a decision earlier than the date he had previously identified for the expected decision, but, given the agency's protracted delays in addressing the claim, the Board indicated the contractor could treat any failure to meet the predicted date as a deemed denial.

Finding that the Government's delay in disclosing its affirmative defense of equitable estoppel was not done in bad faith, the ASBCA allowed the Government to amend its answer to include that defense in ABB Enterprise Software, Inc. f/k/a Ventyx.

In Public Warehousing Co., K.S.C., the ASBCA granted the Government's motion to stay an appeal pending the Government's criminal case against the contractor in the Northern District of Georgia that involved many of the same issues and factual allegations.

In 554 Bloomfield, LLC, the ASBCA denied the contractor's tardy request to reinstate an oft-delayed appeal to the Board's docket because the contractor offered no excuse for its untimely request. Subsequently, the Board denied the contractor's request for reconsideration.

Equal Access to Justice Act / Prompt Payment Act

In Comter Systems, Inc., the CBCA denied an application for an EAJA recovery because, after the agency had paid the contractor without the need for a decision by the Board, the contractor had voluntarily withdrawn its appeal.

In Avant Assessment, LLC, the ASBCA held the contractor was entitled to an EAJA recovery after obtaining a summary judgment converting a termination for cause to one for convenience in an appeal that was factually distinct from two other, still-pending, appeals that were consolidated with it for purposes of judicial economy.

In Tech Projects, LLC, the ASBCA denied the contractor's request for an EAJA recovery (after the Contracting Officer had amended his decision to concede quantum, and the Board had dismissed the original appeal) because the contractor was not a "prevailing party" that had obtained either a decision or a consent judgment from the Board. Subsequently, the Board denied the contractor's motion for reconsideration.

In Impact Assocs., Inc., the CBCA (i) reduced the contractor's EAJA claimed recovery by the amount the contractor had spent on proceedings at the ASBCA, which ultimately decided it lacked jurisdiction, before proceedings were held at the CBCA; but (ii) declined to reduce the EAJA recovery on the basis that the contractor had recovered only a portion of its claimed costs before the CBCA.

In Systems Management and Research Technologies Corp., the CBCA allowed an EAJA recovery when the agency did not dispute either the entitlement to, or the claimed quantum of, the EAJA request.

In Seven Seas Shipchandlers LLC, the ASBCA denied a Prompt Payment Act interest claim because the payment delays resulted from a dispute that had been litigated at the ASBCA and that fell under the exception in the statute for "a dispute between the head of an agency and a business concern over the amount of payment or compliance with the contract."

Court of Federal Claims

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

In Nexagen Networks, Inc.,, a case involving both contract claims and bid protest allegations, the court held that: (i) it lacked jurisdiction over a CDA claim because the plaintiff had not submitted a certified claim to the Contracting Officer until after it had commenced its action in court; (ii) under FASA, the court lacked jurisdiction over the plaintiff's complaint against agency's corrective action in cancelling the plaintiff's task order award; and (iii) the plaintiff's challenge to a termination for default was moot because the agency already had converted it to a termination for convenience.
In Nova Group/Tutor-Saliba, a Joint Venture, the court refused to dismiss a suit due to the plaintiff's alleged failure to comply with the 20-day written notice requirement regarding constructive changes in a construction contract because the contractor demonstrated that the Government had actual knowledge of the facts giving rise to the changes claims.

In Sheridan Transportation Systems, Inc., a decision labeled as nonprecedential, the CAFC held it lacked jurisdiction over an appeal from a CBCA decision concerning a dispute arising under the Transportation Act (31 U.S.C. 3726) rather than the CDA.

In Nova Group/Tutor-Saliba, a Joint Venture, the court (i) denied the contractor's unopposed motion to transfer its case to the ASBCA for consolidation with another appeal involving the same contract because the case would be time-barred there and involves wholly different facts, but (ii) granted the contractor's alternative motion to transfer the ASBCA appeal to the court.

In DekaTron Corp., the court held that, although there would be a difficult burden of proof, the contractor's allegations of bad faith and a lack of independent judgment underlying the Contracting Officer's decision not to exercise an option were sufficient to withstand the Government's motion to dismiss the suit.

In Baistar Mechanical, Inc., the court: (i) held it lacked jurisdiction over a contractor's quantum meruit claim; (ii) dismissed claims for extra work based on directions received from the Contracting Officer's technical representative (because the contract specifically stated only the Contracting Officer had the authority to order changed work), except claims for allegedly emergency work requirements, which might constitute an exception to the general rule; (iii) dismissed claims related to the Government's alleged failure to order certain work because the contract did not contain minimum order requirements or require the Government to order the disputed work; and (iv) refused to dismiss other claims based on a contract ambiguity where the contractor had alleged a course of dealing supporting its interpretation.

In Federal Contracting, Inc. d/b/a Bryan Construction, Inc., the court held that: (i) especially because they did not include a sum certain regarding alleged breaches of contract, a contractor's responses to the Government's cure notice and the Government's notice of termination did not constitute CDA claims, and the default termination, itself, was not a decision on those alleged claims; but (ii) the contractor's written request that the Contracting Officer formally withdraw an unsatisfactory performance evaluation and the Contracting Officer's subsequent denial of that request constituted a CDA claim and a decision on that claim.

in Bryndon Fisher, the court refused to dismiss a suit claiming that a software glitch in the Government's PACER system overcharges users for copies of certain HTML-formatted documents.

In Claude Mayo Construction Co., which involved a dispute over the propriety of a default termination, the court dismissed: (i) counts of the complaint alleging (a) interference with the contractor's ability to secure other contracts and (b) unjust enrichment, because they were outside the court's jurisdiction, and (ii) another count alleging breach of contract because the contractor had not first submitted a CDA claim for breach to the Contracting Officer.

In California Department of Water Resources, the court held that certain agreements for the operation and maintenance of water storage facilities in California were not contracts within the coverage of the CDA and, therefore, dismissed the plaintiff's claims for breach of contract.

In Rocky Mountain Helium LLC, which involved a non-CDA contract dispute, the CAFC: (i) affirmed the CoFC's holding that a suit challenging the 2004 termination of a helium extraction contract was untimely under the six-year limitations period of 28 U.S.C. 2501; and (ii) reversed the CoFC's holding that a subsequent Settlement Agreement between the parties was not "money-mandating" under the Tucker Act and, therefore, that the CoFC lacked jurisdiction over a claim for the breach of it. The appeals court reasoned in part as follows: "Where there is a breach of a government contract, 'as with private agreements, there is a presumption in the civil context that a damages remedy will be available upon the breach of an agreement."

The court dismissed a suit by Zafer Taahhut Insaat ve Ticaret, A.S. because the contractor had not requested a Contracting Officer's decision on its underlying REA.

In ASI Constructors, Inc., the Government whiffed on all its efforts to have the contractor's claims dismissed summarily, and the Court of Federal Claims held that: (i) it had jurisdiction over issues that were clearly described in the legal memorandum that formed part of the claim originally submitted to the Contracting Officer for decision; (ii) the contractor's differing site conditions claim involved questions of fact regarding the contract as a whole and was not subject to summary dismissal for failure to state a claim; and (ii) the contractor's claims based on superior knowledge, breach of the duty of good faith and fair dealing, and misrepresentation all were sufficient to withstand motions to dismiss.

Changes/Breach/Contract Interpretation/Defective Specs/Authority

In Ameriserv Trust and Financial Services Co., the court held that the Government had breached the express warranties in a subordination agreement.

In Northwest Title Agency, Inc., the court dismissed a breach-of-contract action based on the allegedly improper disallowance of closing fees because the contract unambiguously prohibited such fees in the situation involved in this dispute.

In Evie's Catering, Inc., the court held that an amount stated in a task order to supply meals was, unambiguously, only an estimate and not a guaranteed price.

In a decision that may herald another one with far-reaching implications, the court indicated in Tabetha Jennings that boilerplate clauses in standard Postal Service daily mail transportation services contracts likely are not supported by consideration and are unenforceable because they impose on contractors an open-ended and burdensome financial obligation in order to dispute Postal Service decisions concerning the contract.

In Pioneer Reserve, LLC, the court held that, although the plaintiff had established the Government had breached the contract, it failed to prove any damages resulting from the breach.

In Certified Construction Co. of Kentucky, LLC, the court held that two disputed contracts were requirements contracts, in part because, although standing alone, the contract note quoted below could be read as either the contractor or the Government advocated, by taking into consideration the contracts as whole, the italicized (by me) portion of the note should be read to modify all four items in the list that precedes it (as the contractor contended), rather than just the immediately preceding phrase (as the Government had contended): "[The Government reserves the right to] perform the work included in this contract with in-house personnel, Job Order contracting, troop labor, or by another contract where concrete placement, asphalt surface treatment, or pavement marking is incidental to other work.”

In Financial & Realty Services, LLC, the court held that the plaintiff's failure to provide a project manager to perform the contract services for a period of time after its original project manager resigned in mid-performance was not excused by the time required for the Government to screen the new candidate the contractor offered to fill the vacant position, and thus the Government's failure to pay for work during that time period was not a breach of contract.

In Meridian Engineering Co., the court held that, because the Government's actions, including suspending the work, were addressable under the Suspension of Work and Changes clauses, the contractor was entitled only to an equitable adjustment, not breach damages, and the court then made extensive factual findings and legal conclusions concerning various specific elements of the claimed equitable adjustment, e.g., home office overhead, interest, and tool costs.

Terminations

In Securiforce International America, LLC, the court held that, although a partial termination for convenience was improper because the Contracting Officer testified she had not exercised her own independent judgment in issuing it, the contractor had not established that the termination for convenience or any other alleged government actions or breaches excused its subsequent failures to perform or invalidated the subsequent default termination of the contract.

In Boarhog LLC, the court held that the agency's convenience termination of the plaintiff's contract (as part of corrective action in response to an agency-level bid protest by another firm) did not constitute a breach, and, even if it had, the contractor could not show any compensable damages because the termination had occurred before it had performed any work or incurred any costs. All this was especially true because, as a result of the contractor's protest against the cancellation, the agency had subsequently taken additional corrective action and awarded it a second contract that was identical to the original award.

Discovery, Evidence, Procedure

In Northrop Grumman Systems Corp., although (at least for the time being) the court denied the plaintiff's motion for sanctions for spoliation based on the Postal Service's tardy imposition of a litigation hold preserving documents for possible litigation after the contractor's submission of a comprehensive REA, the court did impose sanctions on the Postal Service (preclusion of the use of certain documents and reimbursement of a portion of the plaintiff's attorneys' fees) as a result of the Postal Service's unreasonable delays in the production of documents.

In Securiforce International America, LLC, the court denied the contractor's motions for sanctions as a result of the Government's alleged failures to provide adequate discovery responses.

In Tender Years Learning Corp., the court of denied the Gvernment's motion to dismiss (and overruled its objections) and allowed the contractor: (i) to amend its Complaint to eliminate bid protest allegations and allege only implied-in-fact contract damages; and (ii) to bifurcate the issues of entitlement and quantum.

EAJA

In its latest win in this decade-plus long case, SUFI Network Services, Inc. convinced the court that it was entitled to its attorneys fees at full law firm rates because its position was substantially justified and there were special circumstances entitling it to an upward adjustment of EAJA's statutory cap on hourly rate.

In The Meyer Group, Ltd., the court denied the contractor's EAJA application because: (i) the Government's position in the underlying litigation was substantially justified given the lack of precedent on an unusual issue and the contractor's overly aggressive interpretation of the underlying agreement; and (ii) special circumstances rendered an EAJA award unjust because the case did not involve any public policy issues or any violations by the Government of a law or regulation, but rather the consequences of unfortunate Government missteps in entering a disadvantageous contract drafted by the plaintiff.

Court of Appeals for the Federal Circuit

Jurisdiction/Standing/Res Judicata

In Guardian Angels Medical Service Dogs, Inc., the CAFC (i) reversed the CoFC's prior decision that an appeal from a default termination was untimely and (ii) held that the Contracting Officer's request for additional information from the contractor after the contractor had requested reconsideration of the Contracting Officer's prior decision terminating a contract for default meant the original decision was not final and did not become so (and, therefore did not start the appeal clock running) until the Contracting Officer subsequently informed the contractor she would not reconsider her decision after all.

In what was probably the final chapter in the SUFI Network Services, Inc., dispute, the CAFC held that the Government had no right to appeal an ASBCA decision that the contractor had accepted in a case (one of the last) governed by the Wunderlich Act, rather than the CDA.

In Kellogg Brown & Root Services, Inc., an important decision concerning the CDA's six-year limitations period for submission of a claim, the CAFC reversed the ASBCA and held that a contractor's claim sponsoring its subcontractor's termination claim did not "accrue" until it had developed sufficiently to be presented in a sum certain and, therefore, was not barred by the limitations period, even though the claim was not submitted to the Government until long after the termination, following a lengthy set of disputes between the sub and the prime and a false start in which the contractor had forwarded one iteration of the claim to the Government without certifying it.

In Sheridan Transportation Systems, Inc., a decision labeled as nonprecedential, the CAFC held it lacked jurisdiction over an appeal from a CBCA decision concerning a dispute arising under the Transportation Act (31 U.S.C. 3726) rather than the CDA.

In Pacific Gas and Electric Co., et al., the CAFC affirmed the CoFC's dismissal of a breach of contract suit because the plaintiffs did not have privity of contract with the Government and, therefore, lacked standing.

Changes/Breach/Contract Interpretation

In System Fuels, Inc., et al., the CAFC reversed the CoFC and held that the plaintiff-contractors were entitled to recover their costs of loading spent nuclear fuel into storage casks as one element of damages for the Government's partial breach of its spent nuclear fuel contracts.

In DG21, LLC, the CAFC affirmed the ASBCA's prior decision denying a contractor's claim because the contractor, in agreeing to pay the prevailing rate for fuel in a fixed-price contract, had assumed the risk of rising fuel prices, and those rising prices were not a change to the contract.

In Northrop Grumman Computing Systems, Inc., the CAFC affirmed the CoFC's decision that the contractor had failed to establish any damages as a result of the Government's alleged breach of a delivery order (i.e., allegedly failing to use its best efforts to secure funding for the option years) because, without notice to the Government, the contractor had assigned all its rights under the order to a third party in exchange for a payment that equaled the contractor's expected profit from the full term of the order, including options.

In Zafer Taahhut Insaat ve Ticaret A.S., the CAFC affirmed the prior CoFC decision and held that: (i) there was no evidence the Government had denied the contractor's request for a time extension, which was a required element of the contractor's constructive acceleration claim; and (ii) the contractor failed to establish that the Government's negotiations with Pakistan to re-open one contract route amounted to fault on the part of the Government establishing a constructive change.

Fraud

In Laguna Construction Co., the CAFC affirmed the ASBCA's prior decision, holding that the contractor's Chief Operating Officer's guilty plea for accepting kickbacks from subcontractors demonstrated a prior material breach of the "Allowable Cost and Payment" clause of the contract at issue and was a valid defense to the contractor's claim for costs disapproved by a DCAA audit.

Discovery, Evidence, Procedure

The CAFC's decision in Western States Federal Contracting, LLC (albeit nonprecedential) raises may be problematic. At the time (April 29, 2013) the contractor originally appealed to the CBCA from a deemed denial of its claim, it was not in good standing in its state of incorporation (Delaware), which is a requirement for maintaining an appeal. Although the Board gave it numerous chances to correct the problem, it did not do so until sometime after the CBCA published a decision dismissing the case on February 11, 2014. The contractor appealed to the CAFC from the CBCA's dismissal, and then (at the Government's request) the court vacated the Board's original dismissal so that the Board could consider two specific issues (one having to do with whether the company should have been permitted to proceed as an unincorporated association). As instructed, the CBCA reviewed those two issues and, once again, dismissed the contractor's case. The contractor again appealed the dismissal to the CAFC. Now, the CAFC reverses again because the company is finally in good standing with the state and the CBCA's second decision was not entitled to rely on the company's lack of good standing at the time of the original dismissal because the court previously had vacated the Board's original decision, rendering it a nullity.

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