In
Sparton DeLeon Springs, LLC, the ASBCA held that the
Contracting Officer's decision demanding reimbursement of
direct costs was a government claim and was time-barred
because it was issued more than six years after the Government
knew or should have known of the claim. Subsequently, the
Board
denied the Government's motion for reconsideration. In
Thorington Electrical and Construction Co., the ASBCA held
that a claim submitted more than six years after it accrued was
time-barred, and there was no provision in the CDA to cure this
problem by allowing the claim to "relate back" to an earlier
claim concerning which the Contracting Officer already had
issued a decision and which already had been disposed of on
appeal.
In
Ahtna Environmental, Inc., the CBCA used its discretion to
stay an appeal to permit the Contracting Officer to issue a
decision on the merits of the contractor's claim after a
prior Board decision had rejected the basis for the
Contracting Officer's original decision, which had addressed
only the issue of whether a release barred the claim.
In
H.C. Beck, Ltd., the CBCA denied the Government's
motion to dismiss the appeal for failure to state a claim
and held that the contractor's references to the
"Differing Site Conditions" and "Request for Equitable
Adjustments" clauses were sufficient to proceed with an
appeal involving a claim for removing significantly more
asbestos-containing materials than the contract originally
contemplated.
In
Shippers Stevedoring Co., the ASBCA dismissed an
appeal because neither the appellant nor its
representative responded to numerous board communications
inquiring whether the representative met the requirements
of Board rule 15(a).
In
USAC Aerospace Group dba USAC Aerospace Group Ordnance Division,
the ASBCA dismissed an appeal because the alleged corporate
appellant failed to provide evidence of (i) its legal capacity
to bring its appeal or (ii) the authority of its alleged
representative under Board Rule 15
In
DCX-CHOL Enterprises, Inc., the ASBCA dismissed an appeal as moot
because the Contracting Officer had rescinded the underlying demand for payment
that was being appealed.
In
TKC International LLC, the ASBCA dismissed the appeal
because the individual filing the appeal failed to present any
evidence that he was currently an "officer" of the company
entitled to represent it in accordance with Board Rule 15.
In
Parsons Government Services, Inc., a dispute stemming from
the contractor's contention that the Government had violated
statutory requirements for the source of contract funding
(thereby allegedly rendering the contract void ab initio,
entitling the contractor to recover in quantum meruit),
the ASBCA dismissed the appeal for failure to state a claim upon
which relief could be granted because the statutes at issue
provided no private cause of action.
In
Andrews Contracting Services, LLC, the ASBCA dismissed an
appeal for lack of jurisdiction because the contractor's Request
for Equitable Adjustment did not request a Contracting
Officer's decision and, therefore, was not a CDA claim.
In
ABS Development Corp., the ASBCA denied the Government's
motion to dismiss consolidated appeals as having originally been
filed prematurely because, despite a subsequent stay by the
Board to permit the Contracting Officer to issue a decision, he
failed to do so within a reasonable time or within the time the
Government had indicated a decision would be issued.
In
Hanboo Construction Co., Ltd. , the ASBCA dismissed an appeal after the company
advised the Board that it knew nothing about the original appeal
letter and that the individual who had signed it no longer worked for
the company.
In
K2 Solutions, Inc., the ASBCA: (i) dismissed the
contractor's claims that an alleged option exercise improperly
reduced the contract's scope of work (because the Board found
that the attempted option exercise was ineffective because it
differed from the terms of the contract); but (ii) declined to
dismiss the contractor's claim that the Government had breached
its duty of good faith and fair dealing with regard to the
modification that was not effective as an option exercise
because that modification could plausibly be viewed as a new
offer that the contractor accepted by beginning performance.
In
BES Design/Build, LLC, the CBCA denied the
contractor's request for the immediate release of the
funds found due to it in the Contracting Officer's
decision because, once appealed by the contractor, that
decision is not binding, and the Board reviews the dispute
de novo.
In
Ikhana, LLC, the ASBCA denied the surety's and Government's
motions to dismiss the contractor's affirmative claims and its
appeal of a default termination, holding that a contractor's
right to a CDA appeal cannot be waived even if the contractor
assigned its claims to a surety.
Jurisdiction
In
Kirk Ringgold, to
reach the merits, the Board found that a lessor had
submitted a CDA claim when, after the Contracting Officer
had disputed the contractor's right to holdover rent, the
contractor's wife "emailed the contracting officer a
final invoice with the note, 'An add’l 15 days rent,
$6,000, is owed through 10/09/15 when USFS contractors
were gone and rock removed. Please process this invoice
for prompt payment of this agreed on amount for . . .
helibase use.'"
In
BES Design/Build LLC, the CBCA dismissed (for lack of
jurisdiction and as premature) an appeal filed before the date
the Contracting Officer had timely set for issuance of a
decision on the contractor's claim.
In
EnergX, LLC, the CBCA dismissed an appeal (from an agency's
decision to reject a VECP) for lack of jurisdiction because
there was no certified claim underlying the original appeal,
even though the prior judge had granted the parties extensions
of time to allow the Contracting Officer to issue a decision on
a certified claim.
In
Carter Safety Consultants, Inc., the ASBCA held it lacked
jurisdiction over an appeal filed more than 90 days after
receipt of the Contracting Officer's decision, noting that a
possible attempt to file the appeal within 90 days at the wrong
forum (in this case, the GAO) was unavailing.
In
Anaconda Construction Co., the ASBCA dismissed another appeal for failure to file within 90 days of receipt
of the Contracting Officer's decision.
In
Military Aircraft Parts, the ASBCA held that the
contractor's failure to appeal a default termination decision
within 90 days was not excused by the fact that the contract did
not include a "Default" clause. In
another
Military Aircraft Parts decision, the Board: (i) rejected the
contractor's argument that the CAFC's holding in
Sikorsky Aircraft (i.e., that the six-year limit for
submitting claims is not a jurisdictional statute of
limitations) should be extended to apply to the CDA's 90-day
limit for appealing Contracting Officer's decisions; and (ii)
held that, absent evidence of when the contractor had received a
government email transmitting another Contracting Officer's
decision, there was no basis to dismiss an appeal from that
decision as untimely.
In
Agility Services Logistics Co., on remand from the CAFC,
which had ordered the Board to determine the identity of
the real party in interest in the appeal, the ASBCA held
that such a determination was irrelevant to its original
decision that it lacked jurisdiction over contracts with
the Coalition Provisional Authority of Iraq, regardless of
the identity of the real party in interest, and that, in
any event, the parties had not provided the Board with the
information necessary to determine the real party in
interest, and the Board lacked the expertise to answer
question under Iraqi law on its own.
In
CompuCraft, Inc., the CBCA held: (i) it lacked jurisdiction
over the portion of the contractor's appeal requesting the Board
to order the Government to change a performance evaluation; and
(ii) the Board's review was not limited by any findings of fact
in the Contracting Officer's underlying decision.
In
Public Warehousing Co., K.S.C., the ASBCA held it
lacked jurisdiction to certify its prior decisions
(staying an appeal the during pendency of a related
district court fraud case and allowing the Government to
amend its answer to assert affirmative defenses) for
interlocutory review by the CAFC.
In
Foxy Construction, LLC, the CBCA held it lacked jurisdiction
over an appeal because, for various reasons (lack of
certification, no request for Contracting Officer's decision),
none of the contractor's three letters to the Contracting
Officer satisfied the requirements for a CDA claim.
In
Rover Construction Co., the ASBCA denied the Government's
motion to dismiss an appeal for lack of jurisdiction because,
viewed as a whole, numerous emails between the contractor and
the Government sufficed to convert a routine invoice into a
claim.
In
[Redacted], ASBCA No. 60597 (Mar. 3, 2017), the ASBCA held
that, despite several questionable government actions that might
otherwise have converted a settlement proposal into a disputed
claim, there was no jurisdiction because the proposal exceeded
$100,000, but was uncertified.
The CBCA dismissed an appeal by Consultis of San Antonio, Inc.,
for lack of jurisdiction because the issue on appeal (which
involved the interpretation of the terms of the underlying GSA
Schedule contract) should have been decided by the GSA Schedule
contract Contracting Officer rather than by the VA's task order
Contracting Officer.
In
[Redacted], ASBCA No. 60841 (Apr. 3, 2017), the ASBCA
dismissed another appeal because the underlying claim was in
excess of $100,000 and, therefore, required a signed
certification, but included only a typed signature block without
an actual signature.
In
Islands Mechanical Contractor, Inc., the ASBCA
dismissed an appeal for lack of jurisdiction because a
significant portion of the contractor's "claim" was
actually just a proposal for additional work, and,
therefore, did not satisfy the CDA requirement that it
demand a sum certain as a matter of right.
In
Savannah River Nuclear Solutions, LLC, the CBCA denied the
contractor's "petition" requesting the Board either to direct
the Contracting Officer to issue a decision within 30 days or to
treat his failure to have issued a decision prior to the
submission of the petition as a deemed denial. The Board found
that the contractor's various submissions (claim, petition, and
briefs) were inconsistent and confused the procedural
requirements applicable to claims for less than $100,000 with
those for claims in excess of $100,000. More than 35 years after
the deceptively simple appearing CDA became law, litigants still
are getting bogged down in its procedural quagmires.
In a
related
Savannah River Nuclear Solutions, LLC, decision issued the
same day as the one above, the CBCA dismissed an appeal for lack
of jurisdiction because the Contracting Officer lacked authority
to issue a decision on a claim where the matter had been
referred to the DOJ due to suspected fraud, and, therefore, his
failure to issue a decision could not be treated as a deemed
denial.
In
[Redacted], ASBCA Nos. 60814, 60864 (June 1, 2017), the ASBCA
dismissed an appeal for lack of jurisdiction because the
contractor had failed to submit a signed certification to the
Contracting Officer on a claim in excess of $100,000 prior to
filing its appeal.
In
Melwood Horticultural Training Center, Inc., the ASBCA
dismissed an appeal for lack of jurisdiction because the
contractor's claim as a whole did not state a sum certain,
although portions of it did include definite sums.
In
M.I.T. International Commercial Lending, LLC, the CBCA
held that it lacked jurisdiction over an appeal involving
buyer's alleged default in an auction of real property and
that, in any event, the appeal should also be dismissed
for failure to prosecute after the appellant failed to
respond to any one of numerous communications from the
Board, which had been sent to it by a variety of alternate
methods.
In
Crooked River Logistics, LLC, the PSBCA dismissed
appeals for lack of jurisdiction because: (i) the
contractor had failed to file claims with the Contracting
Officer; and (ii) the contractor complained of the Postal
Service's decision to award two contracts to another firm.
In
YRT Enterprises LLC dba Tompkins Investigative Services, the
CBCA dismissed an appeal for lack of jurisdiction because: (i)
the Contracting Officer's letter asking that the contractor's
security credentials be returned to the Government on the last
day of the contract was not a termination decision that could be
appealed; and (ii) the Board had no authority over claims for
injunctive relief, punitive damages, or the allegedly improper
withdrawal of security clearances.
In
Safeco Insurance Co. of America, the ASBCA dismissed an
appeal for lack of jurisdiction because: (i) the Board lacks CDA
jurisdiction over equitable subrogation claims; and (ii) the
appellant failed to present non-frivolous allegations of the
required elements for an implied-in-fact contract.
In
Benjamin Medina, the ASBCA held: (i) it lacked jurisdiction
over the lessor's quantum meruit claim because it had not
been previously presented to the Contracting Officer; (ii) the
lease's restoration clause (a) clearly stated the Government
would not be responsible for the costs of repainting if it
occupied the premises for more than three years and (b) was not
in conflict with the indemnification clause; and (iii) other
property conditions at lease termination were due to
non-compensable normal wear and tear.
In
KEO & Assocs., the CBCA held it lacked jurisdiction
over an appeal--not even to entertain the contractor's
request to dismiss the appeal without prejudice (after the
Contracting Officer withdrew a decision on an
REA)--because there was no underlying certified claim
requesting a Contracting Officer's decision.
In
Hellenic Air Force, the ASBCA dismissed an appeal because
the Board lacked jurisdiction to provide the requested relief,
i.e., ordering the Government to re-open or reinstate an FMS
agreement (due to allegedly defective sale items), which the
Board interpreted as a request for injunctive relief.
In
Eagle Mechanical, Inc., the CBCA held it lacked jurisdiction
over a direct appeal by a subcontractor that was not sponsored
by the prime.
In
E.C. London & Assocs., the ASBCA held it lacked
jurisdiction over the contractor's request for Prompt
Payment Act interest on the portions of its claim that
were allowed because the contractor had not first
submitted a Prompt Payment Act interest claim to the
Contracting Officer.
In
Elizabeth Construction Co., the ASBCA dismissed an appeal
for lack of jurisdiction because the appellant did not allege
the existence of any contract between it and United States.
In
Lulus Ostrich Ranch, the ASBCA held: (i) it lacked
jurisdiction over a bid-protest type claim that the
Government allegedly violated procurement rules by
awarding contracts to other contractors; however, (ii) it
had jurisdiction over a claim that the Government had
extended appellant's contract only as a pretext to permit
its subcontractor time to become eligible to perform the
contract in appellant's stead.
In
Triumph Donnelly Studios LLC, the PSBCA held it lacked
jurisdiction to hear a claim for damages for the Postal
Service's failure to deliver an item of Priority Mail.
The ASBCA dismissed an appeal for lack of jurisdiction in
NileCo General Contracting LLC, because the contractor
included only a typewritten signature block on the original
claim, but no actual signature (not even a digital or electronic
one).
In
Elham Ahmadi Construction Co., the ASBCA held it lacked
jurisdiction over an untimely appeal submitted by a foreign firm
appearing pro se more than six years after the default
termination on which it was based. The ASBCA also dismissed (as untimely)
an appeal by
North Arizona Construction Co., which was not filed until
almost four years after the contractor's receipt of the
Contracting Officer's decision denying the claim (a decision
that had clearly notified the contractor of its appeal rights
and options).
In
L-3 Communications Integrated Systems, L.P., the ASBCA
denied the contractor's motion to dismiss for lack of
jurisdiction because the Board found that the Contracting
Officer's written decisions asserting the Government's claims
against the contractor demanded a sum certain and provided the
contractor with sufficient notice of the basis and the amount of
the claims.
In
Magwood Services, Inc., the CBCA dismissed an appeal for
lack of jurisdiction because the contractor's letter requesting
the Contracting Officer to reconsider a default termination (the
termination being the subject of a separate appeal to the Board)
could not reasonably be construed as a CDA claim for money
damages due to outstanding invoices, which was the issue in the
dismissed appeal.
In
Hanks, Hanks & Assocs., LLC, the CBCA dismissed an appeal
for lack of jurisdiction because the original submission to the
Contracting Officer was not certified, which: (i) rendered the
subsequent Contracting Officer's decision a nullity, and (ii)
could not be cured by a certification submitted after the
Contracting Officer's "decision."
The ASBCA
dismissed an appeal by
UTi, United States, LLC because there is no CDA jurisdiction
over bill of lading acquisitions governed by the
ICA/Transportation Act.
The CBCA also dismissed
an appeal by
Pros Cleaners for lack of jurisdiction because the
contractor had not requested a decision from the Contracting
Officer until after filing the appeal. In another
Pro Cleaners decision, the CBCA dismissed the appeal for lack of
jurisdiction because (i) the claim was uncertified and
(ii) the contractor had filed the appeal less than 60 days
after the Contracting Officer had received the claim.
In
SBC Archway Helena, LLC, the CBCA held it lacked
jurisdiction over an appeal filed before the Contracting
Officer was required to have issued a decision on the
underlying claim (and before he had issued a decision).
In
Astro Systems, Inc., the ASBCA held that the contract
did not require the Government to pay the lessor profit on
the cost to repair damage to leased vehicles caused by
government personnel.
The ASBCA dismissed two government claims out of hand in
Lockheed Martin Integrated Systems, Inc., reasoning that:
(i) the Government's attempt to disallow certain subcontract
costs was based only on vague, conclusory assist audit reports
on subcontractors and did not establish any logical liability on
the part of the prime; and (ii) the Government's claim that the
prime contractor breached some duty to the Government by failing
to monitor its subcontractors adequately to avoid billing the
Government for certain subcontractor costs questioned in various
assist audits did not even allege several of the elements
required to establish a breach.
In
Kirk Ringgold, the CBCA held that, under a lease, the
Government was liable for holdover rent for the period the
agency took to restore the property after vacating it. To
reach the merits, the Board found that the lessor had
submitted a CDA claim when, after the Contracting Officer
had disputed the contractor's right to holdover rent, the
contractor's wife "emailed the contracting officer a
final invoice with the note, 'An add’l 15 days rent,
$6,000, is owed through 10/09/15 when USFS contractors
were gone and rock removed. Please process this invoice
for prompt payment of this agreed on amount for . . .
helibase use.'"
In
A.T.I TACOSE S.C.a.R.L., the ASBCA granted the Government's
motion for summary judgment and held that: (i) the contractor's
reliance on a single drawing that did not depict speakers in
sleeping rooms was unreasonable because the specifications
clearly stated that requirement and took precedence over the
drawings pursuant to the Order of Precedence clause; and (ii)
the firm, fixed-price design-build contract required the
contractor to comply with European and Italian building code
requirements and, therefore, the contractor was not entitled to
extra compensation for complying with elements of those
requirements it discovered only after award.
In
Military Aircraft Parts, the ASBCA granted the Government's
motion for summary judgment because a bilateral modification was
clear and unambiguous and constituted a release and an accord
and satisfaction of the contractor's claims.
In an interesting case about the limits of the implied duty of
good faith and fair dealing, the CBCA held, in
TranBen, Ltd., that, where the Government had ordered the
minimum required quantity in an IDIQ contract to supply travel
vouchers and where the contractor alleged the Government had
misled the IRS into approving the use of debit cards as a
substitute for vouchers by inaccurately apprising the IRS that
vouchers were not readily available, which in turn, allegedly
breached the duty of good faith and fair dealing and resulted in
fewer orders for vouchers under the contract, the contractor had
failed to state a claim upon which relief could be granted in
the form of monetary damages because the alleged breach by the
Government was not sufficiently related to its duty to the
contractor under this particular contract to be
actionable.
In
South Bay Boiler Repair, Inc., the ASBCA held that the plain
language of a ship repair contract satisfied the requirements of
10 U.S.C. 7311 to notify the contractor of "the types and
amounts of hazardous wastes that are required to be removed by
the contractor from the vessel, or that are expected to be
generated, during the performance of work under the contract" so
that the contractor was not entitled to extra compensation for
removing what it claimed were unanticipated quantities of
hazardous materials.
In
K-Con, Inc., the ASBCA denied the contractor's claim for the
Government's delays in issuing notices to proceed, holding that,
in contracts for the construction of public buildings, the
bonding requirements of FAR 52.228-15 are mandatory and
represent a significant component of public procurement policy
and, therefore, are deemed to be incorporated in those contracts
by operation of law under the Christian doctrine, even
when mistakenly omitted from the contract documents.
Subsequently, the contractor's motion for reconsideration
was
denied.
In
1441 L Assocs., LLC, the CBCA held that the
plain language of the extension agreement in a lease resolved the
question of the quantum of the cumulative operating costs to be paid by the agency.
In
ServiTodo, LLC, the CBCA held that the clear
release language of a bilateral settlement agreement barred the current
claim.
In
Supply & Service Team GmbH, the ASBCA held that the (perhaps
broader-than-necessary) waiver language in a valid bilateral
modification, which was supported by consideration, precluded
the Government from subsequently challenging the costs of a
Technical Order previously paid to the contractor.
In
ASW Assocs.,
a case involving contract interpretation, the CBCA held that,
because the contract lacked a guaranteed minimum quantity or any
clause requiring the Government to order all its requirements
from the contractor, the contract was neither an ID/IQ nor a
requirements contract, and, thus, the contractor was entitled to
be paid only for the actual work it performed.
In
CB&I
AREVA
MOX
Services,
LLC, the CBCA held that the clear language of a bilateral
contract modification precluded the contractor's claim for an
increase in its fee percentage based on an option that was never
exercised.
Subsequently, the Board
denied the contractor's request for reconsideration.
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.
In
Dream Management, Inc., a decision under the small claims
procedure that the CBCA, therefore, labeled as nonprecedential,
the Board held that: (i) the plain language of a task order
under an FSS contract established it was a time-and-materials,
rather than an IDIQ, order; (ii) a significant government error
in estimating the quantity of work involved was not a breach
because there is no basis for a negligent estimate claim in a
T&M contract; (iii) a bilateral modification purporting to end
the order was not a valid method of terminating it and,
therefore, the cancellation should be treated as a termination
for convenience; and (iv) as part of its T for C claim, the
contractor was entitled to some of the subcontract costs it
incurred as a result of the agency's erroneous estimate for the
work. It's a shame the decision is nonprecedential because these
were all significant legal issues that were addressed.
In SecTek, Inc.,
the CBCA held that the Government was not liable for the
successor contractor's underestimation of the costs for
vacation time of the predecessor contractor's employees
the successor had retained in a contract covered by the
Service Contract Act because the Government was not
required to furnish the successor with a seniority list
(which would have helped it estimate such costs) until
after award, and the successor did not effectively object
to the terms of the solicitation (or reserve its rights)
regarding this issue in submitting its offer.
The ASBCA shut out
MULE Engineering, Inc. on all of its construction contract
claims, finding, inter alia, that: (i) the
contractor's inability to perform certain contract work with its
own personnel and its delays in employing a subcontractor for
that effort constituted concurrent delays that barred one of its
claims under the "Suspension of Work" clause; (ii) the
Army's alleged delays were not the cause of the allegedly
higher-than-anticipated cost of the contractor's subcontract
with its metal building and concrete subcontractor; (iii) the
contract required installation of a disputed building column,
and the Board was not bound by Contracting Officer's decision
granting the contractor certain of its claimed costs for
installing the column; (iv) the contractor not entitled to its
costs of replacing a unit it ordered with a duct on the
wrong side because the contract drawings contained a patent
ambiguity about which the contractor had failed to inquire prior
to bidding; (v) any government-caused delay in delivery of a
dehumidifier was not on the critical path and, therefore, did
not entitle the contractor to extra compensation; and (vi) the
Board not bound by part of the Contracting Officer's decision
erroneously granting part of the contractor's claim for
allegedly excess curb pours, because the contract contained a
patent ambiguity on this issue about which the contractor,
again, had failed to inquire.
In
Jonathan Noeldner, the CBCA denied the contractor's claim on
a timber sales contract because the Government did not require
the contractor to cut smaller diameter trees than he was
contractually responsible for harvesting, and statements by the
Government's sale administrator erroneously interpreting the
contract were irrelevant.
In
T. K. Hughes Auto Sales, Inc., the CBCA denied the
contractor's claims for rust on the undercarriages of two
automobiles bought at a government auction because the
vehicles were not misdescribed, there was no warranty against
such rust, and the buyer had an opportunity to inspect the
vehicles prior to bidding.
In
Turner Construction Co., an unusual, non-CDA case decided by
the CBCA under the construction contract's Disputes clause, the
Board summarized its holding as follows:
The Board’s role in this matter is to find a reasonable price
for the construction services that Turner provided in the
renovation of the American History Museum.
We are tasked with this assignment because,
despite Smithsonian’s promises both in the original contract and
during contract performance, Smithsonian never negotiated a firm
fixed price for much of the work Turner performed. Smithsonian
has a renovated museum, and the Board is deciding herein what
additional sums are owed to Turner for that building. The
difficulty in this case was principally of Smithsonian’s own
making. If Smithsonian had agreed to a firm fixed price for the
construction, Turner would have been bound to that price,
subject to adjustment for changes and other increases. Having
failed to execute the bargain prior to the provision of services,
Smithsonian cannot reap the benefits of a bargain it wishes it
had struck.
The Board finds that Turner and its subcontractors incurred
costs to address problems for which Smithsonian is
responsible—hazardous waste abatement, mechanical, electrical
and plumbing (MEP) interferences, and continuing design changes.
On this record, Turner may recover based upon a quantum
meruit theory. Turner’s subcontractors used more
conventional methods to attempt to prove their disruption claims
arising from these same issues, and some succeeded. However,
none of Turner’s subcontractors proved their claims for extended
overhead flowing from contract delays.
Regarding Smithsonian’s claim for overpayment based upon its
audit of Turner’s project costs, the Board finds that
Smithsonian has not met its burden. While the audit exposed
areas that merited further investigation, Smithsonian did not
undertake those necessary steps. Instead, it simply demanded
repayment and has failed to establish a proper basis for that
demand.
In
Swinerton Builders Northwest, a decision that includes 230
pages of factual findings alone in a complex construction
contract dispute, the ASBCA held, inter alia, that: (i)
although there were many disagreements and inopportune comments
by both sides during the project, neither side's positions rose
to the level of a bad faith desire to harm the other;
(ii) the contractor's proposal did not clearly apprise
the Government that it included an alternative or deviation from the
solicitation's HVAC/mechanical requirements, and the contractor
failed to prove the Government approved any such deviation or
otherwise waived the contract
requirements in this area at the time of award; (iii) the Government's later approval of
an alternative design was only done to avoid further delays to
the project caused by the contractor's stubborn insistence on
the use
of an alternative design and was not a basis for a constructive change or delay claim by
contractor (the Government not being required "to exercise the
patience of Job"); (iv) the contractor released certain aspects of
a Differing
Site Conditions claim in a bilateral modification, but was entitled
to 14 days of compensable delay damages; and (v) although the Government
breached the contract by denying access to the worksite to a
Project Manager, the contractor failed to prove damages from the breach.
In
IAP Worldwide Services, Inc., the ASBCA held that the
Government had constructively (and compensably) accelerated the
contractor's task order performance requirements by failing to
timely grant the contractor's requests for time extensions due
to Pakistan's closure of a border on the contractor's route, but
the border closing was not a breach of a warranty of
availability because the Government had not made, agreed
to, or, by its conduct, created any such warranty.
In
Zafer Construction Co., the ASBCA held that a contractor
that had failed to take advantage of prebid opportunities (i) to
inspect the site, (ii) to review detailed drawings, and (iii) to
ask questions, could not establish the elements for recovery of
unanticipated costs under any of its theories of of unilateral
mistake, unconscionability, or differing site
conditions.
In
JHCH Properties #2, LLP, the PSBCA held that the contractor
was liable for certain back charges (but not others) after it
failed to comply with the Postal Service's requests to repair
premises leased by the contractor to the Postal Service, forcing
the Postal Service to have the repairs performed by a third
party.
In
Kellogg Brown & Root Services,
Inc., a case that
included appeals
on remand from the Court of Appeals for the Federal
Circuit, the ASBCA decided several motions to dismiss and
held, in the main, that the Government's prior material
breach of a contract (i.e., the Government's
failure to provide the contractor and its subcontractors
with the contractually promised level of force protection)
excused the contractor's subsequent noncompliance with the
contract's prohibition against the use of private security
companies (PSCs), the reasonable costs of which the
contractor was, therefore, entitled to recover.
In
L.C. Gaskins Construction Co., the ASBCA: (i) rejected
the Government's affirmative defense of fraud in the
inducement based on language in the contractor's proposal
because the solicitation's specifications were ambiguous
and problems caused by miscommunications between the
contractor and one of its subcontractors did not rise to
the level of an affirmative misrepresentation; and (ii)
analyzed the contractor's claim that the discovery of
hazardous material in spent blast debris resulting from
the removal of existing paint constituted a Type I
Differing Site Condition. Subsequently, the ASBCA
granted the Government's motion for reconsideration as
to a reduction of delay days on one issue to account for
concurrent delay, but otherwise denied the motion.
In
Presentation Products, Inc. dba Spinitar, the ASBCA held
that a contract clause (FAR 52.212-4) stating that the contract
price included all applicable federal, state, and local taxes
precluded the contractor's claim for reimbursement of Hawaii's
state excise tax even though the contractor's bid had stated it
did not include that tax.
The ASBCA sustained an appeal by
Hallmark-Phoenix 3, LLC because: (i) the Government
had failed to reimburse the contractor for the increased
wages and fringe benefits it was required to pay as a
result of DOL wage determinations applicable during an
extension period of the contract; and (ii) the
Government's affirmative defenses to the contractor's
claim were untimely raised.
In
BAE Systems Southeast Shipyards Mayport LLC, a case
involving contract interpretation and plenty of basic
mathematical reasoning, the ASBCA held that: (i) a contract's
formula for calculating the small business utilization
percentage was unambiguous; (ii) the Government's answer to a
question formally published in an amendment to the solicitation
was incorporated into the final contract as a matter of law;
(iii) that answer and the contract's small business utilization
formula must be read together; and (iv) the contractor's
proposed method of calculating small business utilization was
unreasonable because it would result in a utilization figure of
more than 200% in one case.
In
Innoventor, Inc., the ASBCA issued a summary judgment in favor of
the Government on the contractor's constructive change claim
because there was no evidence that any authorized individual
required the contractor to perform work not required by the
contract's terms.
In
Commerce Plaza Office Partners, LLC, the CBCA held that,
even absent a restoration clause in the lease, the Government,
as the tenant of leased space in an office building, was liable
for damage to the property that exceeded reasonable wear and
tear.
In
Sonoran Technology and Professional Services, LLC, a dispute
involving contract interpretation, the ASBCA held that, under
the principle of expressio unius est exclusio alterius
(i.e., where one or more objects in a class are
specifically named, objects of that class that are not named are
excluded), FAR 52.222-43 (the Service Contract Act Price
Adjustment clause) does not entitle a contractor to an equitable
adjustment for an increase in a state's gross receipts tax. The
Board also held that the Changes clause did not authorize such
an adjustment in this situation either.
In
Benjamin Medina, the ASBCA held: (i) it lacked jurisdiction
over the lessor's quantum meruit claim because it had not
been previously presented to the Contracting Officer; (ii) the
lease's restoration clause (a) clearly stated the Government
would not be responsible for the costs of repainting if it
occupied the premises for more than three years and (b) was not
in conflict with the indemnification clause; and (iii) other
property conditions at lease termination were due to
non-compensable normal wear and tear.
In
Godwin Anagu, the CBCA denied a misdescription claim
regarding a vehicle purchased at auction because the warranty of
description when a vehicle is sold "as is" is satisfied when the
advertisement provides an accurate year, make, model, and VIN
number.
In
Coast to Coast Computer Products, the CBCA denied
various claims related to the agency's blanket purchase
agreement (BPA) mainly because the claims were based upon
a misapprehension of the nature of a BPA, i.e.,
upon various alleged obligations on the part of the
Government that a BPA simply does not establish.
In
Engineering Solutions & Products, LLC, the ASBCA denied a
claim based on an alleged implied-in-fact agreement and held
that the contractor had made a business decision to risk leasing
warehouse facilities for an extended period in the hopes it
could sublease to the Government for seven years, but without
any binding commitment from the Contracting Officer (or anyone
else with actual or implied authority) to stay that long, and,
therefore, could not recover (even under a quantum meruit
theory) when the Government vacated the premises after only five
years. However, in
Honeywell International, Inc., the ASBCA determined the
amount the contractor could recover under quantum valebant
or quantum meruit remedies for the fair market value of
the goods and services it had delivered to the Government
pursuant to an invalid contract.
In
E.C. London & Assocs., the ASBCA: (i) denied the
contractor's claim for cleaning windows added by changes
because (a) the evidence presented by the Government
established the added windows were offset by others taken
offline, such that the contractor was paid for the square
footage indicated in the task orders at issue, and (b) the
record contained no explanation of the methodology used to
come up with contrary square footage measurements once
made by one government employee (and no way to replicate
those figures); and (ii) held it lacked jurisdiction over
the contractor's request for Prompt Payment Act interest
on other portions of its claim that were allowed because
the contractor had not first submitted a Prompt Payment
Act interest claim to the Contracting Officer.
In
Industrial Maintenance Services, Inc., a decision
involving contract interpretation issues and limited to
the issue of entitlement, the CBCA held, inter alia,
that the contractor was entitled to certain costs
associated with the effect of a change on unchanged work
because the bilateral modification implementing the change
did not include an agreement as to the time and cost
impacts of the added and altered work and, therefore, did
not preclude recovery for those impacts, as the Government
had contended.
In
Central Texas Express Metalwork LLC d/b/a Express
Contracting, in dismissing the contractor's appeal,
the ASBCA held that the contractor could not avoid the
final release of claims that it and the Government had
signed (thereby making the release a binding contract)
by refusing to accept the final payment called for in the
release.
In
Arab Shah Construction Co., the ASBCA denied a claim
because it: (i) was precluded by a contract modification,
(ii) was not submitted until after final payment had been
made, and (iii) was "supported" by two pieces of
"evidence" the Board determined were likely forgeries by
the contractor.
In
Access Personnel Services, Inc., a decision limited to
entitlement, the ASBCA rejected both the Government's and
the contractor's interpretations of FAR 52.232-7 (Payments
Under Time-and-Materials and Labor-Hour Contracts)
and held that the "Payments" clause required that the
contractor be reimbursed for its "costs of subcontracts"
rather than for (i) the hourly rates billed to it by its
subcontractor (as the Government contended) or (ii) the
hours billed to it by its subcontractor at the same hourly
rates stated in the contract's Schedule for the prime's
work (as the contractor contended).
In
CH2M♦WG Idaho, LLC, the CBCA held, inter alia, that
neither the "Changes" clause nor the "Incentive Fee"
clause in a cost reimbursable contract gave the Government
the right to unilaterally change the contract to adjust
payments between target and non-target work as a means of
correcting a G&A allocation issue.
In
Avalon Plaza LLC, a decision involving the rules of contract
interpretation, the CBCA held that a lease agreement,
interpreted as a whole, did not entitle the lessor/appellant to
extra compensation for air conditioning a data communications
room to maintain a specific temperature range.
In
Sylvan B. Orr, the CBCA held that a general release
executed by the contractor precluded its subsequent claim
for disposal of non-hazardous solid waste and, even if the
claim had not been covered by the release, the
contractor's actions in attempting to find a location for
disposal of the waste were unreasonable and failed to
mitigate any damages it might otherwise have suffered.
In
Sterling Design, Inc., the ASBCA held that any delays by the
Contracting Officer in responding to the contractor's questions
about the meanings of the CLIN requirements did not entitle the
contractor to delay damages because those questions were
addressed by the PWS, which the contractor admittedly did not
read.
In
Family Entertainment Services, Inc., the ASBCA held that:
(i) under the normal rules of contract interpretation, "day"
meant "calendar day" rather than "work day" as advocated by the
contractor; and (ii) the inspections conducted by the
Government were authorized by the contact, and the deductions
taken by Government for substandard work were reasonable
In
Aegis Defense Services, LLC, f/k/a Aegis Defence Services, Ltd.,
which involved interpreting a contract to effectuate the
parties' intentions, the ASBCA held that, by giving certain
vehicles to the Government of Iraq at the conclusion of a
contract, the Government had breached its contractual obligation
to the contractor to negotiate the sale of those vehicles to the
contractor if the Government had no further use for them.
In
[Redacted], ASBCA No. 61065, the ASBCA held that the
contractor's execution of a final release and its acceptance of
final payment to close out a contract barred its subsequent
claim for extra work that was not listed as an exception in the
release.
In
VSE Corp. v. DOJ, a decision involving a claim for the costs
of allegedly extended storage of seized items, the CBCA held,
inter alia,that: (i) it lacked jurisdiction over the
portion of the contractor's claim related to a prior contract
with a different agency because no claim had been submitted to
that agency's Contracting Officer; (ii) the concept of "nonmutual
defensive collateral estoppel" barred the contractor's arguments
based on findings of fact in a prior district court litigation
between the contractor and its subcontractor (to which the DOJ
as the contracting agency was not a party) even though
the contractor and the sub had settled that dispute after the
district court decision but before an appeal of that decision);
(iii) rejected the contractor's effort to apply collateral
estoppel against the DOJ related to the prior district court
decision because the DOJ had not been a party to that
litigation; and (iv) held that the contract did not establish a
limit on the amount of time the contractor was required to store
seized property.
In
Burnham Assocs., the ASBCA: (i) sustained the contractor's
appeal with regard to the payable quantity of dredging material,
holding that the Government had misrepresented the levels of
payable materials in its solicitation estimate because that
estimate was based on an outdated survey even though the
Government had performed all but an hour's worth of the work
that would have been required to create an estimate based upon
the latest survey; but (ii) denied the contractor's claim
for alleged delays caused by shipping traffic at the worksite
because the contractor did not produce evidence that the traffic
level was higher than the historical norm.
In
Bank of America, National Association, the CBCA: (i)
discussed the meaning of a settlement agreement in detail
(including the contractor's attempts to distinguish HUD from
Ginnie Mae in analyzing the scope of the document) before
ultimately determining that the release signed by the contractor
barred its subsequent claim for breach; and (ii) held that the
Board lacked jurisdiction over the contractor's claim for unjust
enrichment.
In
American West Construction, LLC, the ASBCA held that
the Government, by its actions, had waived its right to
impose a deductive change on the contractor for failure to
comply with a clear (albeit superfluous) contract
requirement to construct temporary bridges.
In
Michael Johnson Logging, although the CBCA held that the
contractor had presented sufficient evidence of its
contention that the Government had violated its implied
duty of good faith and fair dealing to survive the
Government's motion to dismiss, the Board did dismiss the
contractor's claim for
"business devastation," holding that (similar to
claims for consequential damages), it was too remote and
speculative because there was no proof that
the Government's actions on the current contract affected
the contractor's profits on other work.
In
Truckla Services, Inc., the ASBCA upheld a default
termination because: (i) the contractor had completed only 13%
of the work within the contractual performance period, and the
Contracting Officer's conclusion that the contractor's plan to
complete the work was not reasonably certain nor finalized was
supported by the evidence and not an abuse of discretion; and
(ii) the BP oil spill, while complicating the contractor's
efforts to find barges, did not excuse its failure to perform
because the contractor had located two subcontractors capable of
performing the work.
In
Paradise Pillow, Inc., the CBCA held that a contractor who
had fully performed the required work under a bilateral contract
modification, which required it to retrieve blankets it had
previously delivered to Government, was entitled to the
compensation stated in that modification after the Board found
the Government's subsequent attempt to terminate the contract
for cause was invalid and should be converted to a T for C.
In
Industrial Consultants, Inc. dba W. Fortune
& Co., the ASBCA upheld a
default termination because the contractor's failure to
perform was due to its disagreement with the Government's
project design rather than any excusable causes.
In
Pyrotechnic Specialties, Inc., the ASBCA upheld a default
termination (and denied related claims), holding, inter alia,
that: (i) discussions concerning extending the contract schedule
did not result in an agreement to do so; (ii) the contractor
failed to present sufficient evidence that production defects
were caused by the Government's allegedly defective
specification rather than by the contractor's own production
problems; (iii) the Government was not required to approve the
contractor's requests for deviations; (iv) even if the
Government had tightened the test acceptance requirements in one
area, the contractor's failures on another test would still have
justified the rejection of its units; (v) a government email
suggesting a default termination but not addressed to the
Contracting Officer and not directing Contracting Officer to
terminate was not evidence the Contracting Officer had failed to
exercise independent judgment in terminating the contract; and
(vi) there was no evidence of a bad faith termination.
Subsequently, the Board denied the contractor's motion for
reconsideration.
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.
In
[Redacted], ASBCA Nos. 60300, 600302 (Mar. 29, 2017), the
ASBCA upheld default terminations after the contractor lost
access to its work areas due to a vendor vetting process, which
determined that it was a Force Protection Threat to United
States and Coalition forces at Kandahar Airfield.
In
Military Aircraft Parts, the ASBCA upheld the cancellation
of a purchase order because the contractor failed to deliver
conforming items in a timely manner.
In
Dream Management, Inc., a decision under the small claims
procedure that the CBCA, therefore, labeled as nonprecedential,
the Board held that: (i) the plain language of a task order
under an FSS contract established it was a time-and-materials,
rather than an IDIQ, order; (ii) a significant government error
in estimating the quantity of work involved was not a breach
because there is no basis for a negligent estimate claim in a
T&M contract; (iii) a bilateral modification purporting to end
the order was not a valid method of terminating it and,
therefore, the cancellation should be treated as a termination
for convenience; and (iv) as part of its T for C claim, the
contractor was entitled to some of the subcontract costs it
incurred as a result of the agency's erroneous estimate for the
work. It's a shame the decision is nonprecedential because these
were all significant legal issues that were addressed.
In
First Division Design, LLC, the ASBCA held that, after a
convenience termination, the contractor was entitled to recover
the portion of the contract price that the Government had
withheld because the Government did not dispute the contractor's
contention on appeal that it had completed the work; however, in
this situation, the contractor was not entitled to recover home
office overhead because it was not a cost "resulting from" the
termination under FAR 52.212-4(l).
In
JHCH Properties #2, LLP, the PSBCA held that the
contractor was liable for certain back charges (but not
others) after it failed to comply with the Postal
Service's requests to repair premises leased by the
contractor to the Postal Service, forcing the Postal
Service to have the repairs performed by a third party.
In
Esther Wurzberger and
Char's Hallmark Cards & Gifts, Inc., the PSBCA denied
wrongful termination claims by two contractors whose contract
postal units had been terminated by the Postal Service as a
result of a collective bargaining agreement with the postal
workers' union. Each contract contained a Termination clause
that permitted termination without cause by either party upon a
specified number of days' advance notice, so the PSBCA rejected
all the contractors' theories of recovery, including bad faith
and breach of the implied duty of good faith and fair dealing.
In
SYMVIONICS, Inc., the ASBCA upheld a default termination
because the contractor anticipatorily repudiated the contract by
notifying the Government that the contractor could not perform
unless certain delivery order requirements were modified,
especially where the contractor was aware of the Government's
interpretation of those requirements prior to award and failed
to object.
In
Affiliated Western, Inc., the CBCA upheld the default
termination of a contractor that fell behind the contract
schedule and failed to respond adequately to cure notices,
especially where the contractor failed to provide any critical
path analysis to support its contention that it had experienced
excusable delays on the project.
Subsequently, the contractor's motion for reconsideration
was
denied.
In
Asheville Jet Charter and Management, Inc., the CBCA
held that the resignations of three of the contractor's
key, at-will employees did not constitute a strike and
were not caused by the Government and, therefore, did not
excuse the contractor's failure to perform.
In
Thunderstruck Signs, the ASBCA denied an appeal from a
termination for cause because, after the Government
repeatedly had extended the delivery date, the final due
date established by the Government (which the contractor
failed to meet through no fault of the Government) was
reasonable in the circumstances.
In
American Boys Construction Co., the ASBCA held that, where a
stop work order was issued nine days after award (and was
followed by a termination for convenience): (i) the contractor's
decision to purchase materials prior to both a notice to
proceed and material approval was unreasonable and, therefore,
noncompensable; and (ii) the contractor's claim for standby
labor costs had to be denied because the contractor failed to
present any evidence to support it.
In
Yates-Desbuild Joint Venture, the CBCA used critical path
analysis to apportion responsibility for lengthy delays between
the Government and the contractor under a contract for the
construction of a Department of State compound in Mumbai, India.
In
Rashed Elham Trading Co., the ASBCA upheld the
termination for cause of a contract to transport cargo and
fuel in support of contingency operations in Afghanistan
because: (i) the contractor's letter to the Government
stating that the contractor was "cancelling" contract as
of a specific date amounted to anticipatory repudiation;
(ii) the contractor's lack of response to the Government's
cure notice constituted a failure to provide adequate
assurances of performance; and (iii) the contractor failed
to establish any factors excusing its failure to perform.
In
J.R. Mannes Government Services Corp., the CBCA dismissed an
appeal seeking damages for what the contractor alleged was an
improper convenience termination because the contractor failed
to produce any evidence that the termination was in any manner
objectionable (in fact, given the evidence summarized by the
Board, the contractor seems fortunate to have escaped without a
default).
In
Avant Assessment, LLC, which involved consolidated appeals
under three contracts, the ASBCA: (i) overturned the default
termination of one contract because the Government waived the
original delivery dates by adopting a new schedule and failed to
prove that the contractor had not met the new schedule (this
part of the decision makes more sense if one also reads the
Board's earlier decision in the related case of
ASBCA No. 58866); and (ii) held that the contractor had
failed to provide specific proof of its claims that the
Government had improperly rejected test items.
In
Atlas Sahil Construction Co., a decision involving the
proper amount of recovery following a convenience termination,
the ASBCA, inter alia, rejected the contractor's
arguments that: (i) the Christian doctrine should be used
to read the basic version of FAR 52.249.2 into the contract
(because the contract included Alternate I to that clause and
there was no regulation requiring the basic version to be used);
(ii) CLIN pricing should be used to determine the contractor's
recovery (because costs, not prices, are the basis for T for C
claims); and (iii) the jury verdict method should be utilized to
determine quantum (because there was little or no evidence to
support the contractor's contention that records of certain
costs were unavailable to it).
The ASBCA
sustained a default termination for failure to make progress on
a construction contract because the contractor,
MOQA-AQYOL JV, LTD.: (i) did not provide a credible analysis of
government delays that would have excused its default; (ii)
failed to overcome the release language in bilateral
modifications that resolved three significant delays; and (iii)
did not account for its own considerable delays, basically
having assumed the risk of completing a complex project it was
ill-equipped to undertake.
Subsequently, the contractor's motion for reconsideration
was
denied.
In
Black Bear Construction Co., the ASBCA granted the
Government's motion for summary judgment and denied the appeal
of a contractor that had not filed its termination settlement
proposal (or requested an extension) within one year of its
termination for convenience, as required by FAR 52.249-2(e).
In
Technology Systems, Inc., over a dissent, the ASBCA held,
inter alia,that: (i) the doctrine of retroactive
disallowance of costs (under which the Government is estopped
from challenging the same type of costs it has allowed in the
past) requires a showing of affirmative misconduct by the
Government (which was not present in this case); (ii) DCAA's
failure to object to costs in past audits, without more, is not
sufficient to prevent the Government from questioning those same
types of costs in subsequent audits under either a
retroactive-disallowance or course- of-dealing theory; and (iii)
FAR 31.205-33 (covering professional and consultant service
costs) does not establish a blanket requirement for the
generation and provision of "work product" in order to recover
such costs. The Board also ruled on several other specific types
of costs in dispute between the parties.
In
A-T Solutions, Inc., the ASBCA rejected the Government's
attempt to disallow certain charges for items that had been part
of interdivisional transfers, (i) holding that such transfers
were "at price" and, thus, the contractor was entitled to
charge the Government at price under FAR 31.205-26(e), and (ii)
rejecting the DCAA's attempt to establish a requirement that
such transfers must have "economic substance."
In
Exelis Inc., the ASBCA held that: (i) the contractor's
executive compensation costs were unallowable under FAR
31.205-6(i) because they were based on securities price changes
and dividend payments rather than on the employee's individual
performance; and (ii) the Contracting Officer was
justified in imposing a penalty on the disallowed costs because
they were expressly unallowable.
In
Raytheon Co., the ASBCA held, inter alia, that: (i)
the burden on the Government to prove that challenged costs are
expressly unallowable and subject to a penalty is to show that
it would be unreasonable under all the circumstances for a
person in the contractor's position to conclude that the costs
were allowable; (ii) the burden on the contractor to prove that
the Contracting Officer's decision not to waive the penalty for
expressly unallowable costs is to show that the decision
constitutes an arbitrary and capricious abuse of discretion;
(iii) neither the contractor's aircraft fractional lease costs
nor its Challenger 604 aircraft lease costs are expressly
unallowable costs under a FAR cost principle or executive agency
FAR supplement and, therefore, are not subject to a
penalty on expressly unallowable costs; (iv) the salary expenses
of employees who engage in activities that generate unallowable
lobbying costs are expressly unallowable costs, and the
contractor did not meet its burden to prove that the Contracting
Officer abused his discretion in declining to waive the penalty
for such costs; and (v) the costs of the design and build of its
M&A application, which was a proposed database intended to be
used both for general planning and specific M&A purposes when
ultimately configured, but which was terminated before it was
completed and was never used in connection with any M&A target,
were allowable economic and market planning costs and, thus,
were not expressly unallowable and were not subject to penalty.
In
2Connect W.L.L., the ASBCA held that a 15-year irrevocable
right-of-use lease for a segment of a telecommunications circuit
that the contractor had procured in preparation to perform an
order was an allowable cancellation cost under the definition of
"actual nonrecoverable cost" in DFARS 252.239.7007 (i.e.,
that the contractor could not otherwise have recovered the cost
in its normal business operations) after the Government
cancelled the order (as a result of a successful protest) prior
to the time the contractor began performing actual services
under the order.
In
Luna Innovations, Inc., although the ASBCA upheld the
Contracting Officer's decision that employee stock option
costs included in a publically-traded contractor's
indirect cost proposal using the Black-Scholes model were
unallowable pursuant to FAR 31.205-6(i), the Board held
that given the complexities and uncertainties of the case
and the fact that the issue was one of first impression,
the costs were not "expressly unallowable" and, therefore,
were not subject to a penalty.
In
Pro-Built
Construction Firm, the ASBCA determined the recoverable
portions of direct labor, subcontract costs, DBA insurance, G&A, and profit
claimed by the contractor as a result of a termination for
convenience prior to the notice to proceed on a contract for the
construction of a police station.
In
Astro Systems, Inc., the ASBCA held that the contractor not
entitled to recover profit on the cost of repairing
damages to a vehicle it had leased to the Government.
In
Campus Management Corp., the ASBCA: (i) denied several
of the contractor's claimed termination for convenience costs
because they were not supported by evidence in the form of
contractor's standard business records; and (ii) held that the
contractor was entitled to CDA interest beginning from the time
it submitted its CDA claim for invoices that Government had
unreasonably delayed in paying (in addition to Prompt Payment
Act interest accruing prior to the date of the claim).
In
Northrop Grumman Corp., a decision limited to quantum
calculations, the ASBCA sustained the contractor's appeal
of the Government's "disallowance" of more than $250 million of
the contractor's post-retirement benefit costs because the
contractor had underfunded those benefits using a method
not sanctioned by FAR 31.205-6(o) and, thus, did not incur
the costs or charge the Government for them so that the
Government did not suffer any damages. Subsequently, the Board
denied the Government's motion for reconsideration.
In
Honeywell International, Inc., the ASBCA determined the
amount the contractor could recover under quantum valebant
or quantum meruit remedies for the fair market value of
the goods and services it had delivered to the Government
pursuant to an invalid contract.
The CBCA denied consolidated appeals by
Bob L. Walkerarising out of timber sales contracts
primarily because the contractor failed to present any
significant evidence to support its various allegations of
damages.
In
Niking Corp., noting that such motions are not favored, the
ASBCA denied the contractor's motions to strike (as
insufficiently vague) the Government's affirmative defenses or
require more definite statements, holding that the Board's rules
require only notice pleading and that there was already a
detailed record in the claim and the Contracting Officer's
decision, which established the Government's positions on the
claims.
In
Quality Control International, the CBCA granted the contractor's request to amend
its complaint to add
a constructive change theory of recovery to its original claim for
relief under the Price Adjustment clause because both theories arose
from same operative facts, even though the constructive change
theory added overhead and profit as elements of claimed damages not
previously submitted to the Contracting Officer for decision.
In
Eastco Building Services, the CBCA refused to dismiss an appeal brought under
a "dba" name because both the agency
and relevant documents recognized that the assumed name entity and
the real
entity were one and the same.
In
Public Warehousing Co. K.S.C., the ASBCA granted the
Government's motion to amend its answer to include additional
affirmative defenses, except laches, and stayed the appeal for
one year to permit parallel criminal proceedings in district
court to proceed.
In another
In
Public Warehousing Co., K.S.C., decision, the ASBCA denied the
contractor's motion: (i) to lift the Board's
earlier order imposing a one-year stay of an appeal
involving the contractor's affirmative claims; and (ii) to
certify that earlier order for interlocutory appeal to the CAFC.
In
Brittishan Enterprises
Corp., the CBCA dismissed an appeal for failure to prosecute
because, after the original corporate representative died, the
contractor's counsel was unable to locate any corporate
representative who was willing to prosecute the appeal.
In Suffolk Construction Co.,
the CBCA issued a public reprimand to the contractor's attorney
because, without the agency's consent, he removed the agency's
contract drawings from its counsel table in a courtroom during a
break in hearing proceedings, had them scanned by a third party
vendor before returning them, and gave contradictory
explanations/justifications for his actions.
The CBCA dismissed an appeal by
JDM, LLC
for failure to prosecute because, after the company's original
counsel withdrew from the representation in favor of its
President, the President failed to respond to the next several
orders and communications from the Board. However, in
Government Services Corp., the ASBCA denied the Government's
motion to dismiss for failure to prosecute because the
contractor had not "repeatedly" missed filing deadlines, and
there was no showing of prejudice to the Government from the
deadline the contractor had missed.
In
CTA I, LLC, the CBCA denied the contractor's petition to
require the Contracting Officer to issue a decision by specified
date that was only 17 days from the date of the filing of the
petition because the contractor did not identify any
circumstances that would require such a rushed decision.
Subsequently, the CBCA held in another
CTA I, LLC decision that, under the CDA, if a Contracting Officer,
within 60 days of receiving a claim, provides the contractor
with a definite date within which a decision will be issued and
then misses that date, the contractor's only options are to wait
for the decision or to treat the missed date as a deemed denial
and appeal--according to the Board, the contractor cannot, at
that point, petition the Board to direct the Contracting Officer
to issue a decision by a specific date.
Often in government contract disputes, we are faced with
the question whether a government official had the
authority to bind the Government, but in
Horton Construction Co., the ASBCA denied the
Government's motion for summary judgment based on a final
payment and release document allegedly signed by the
contractor because the contractor raised a genuine
issue of material fact by maintaining that the individual
that signed the documents on behalf of the contractor
lacked the authority to do so.
In
Fluor Federal Solutions, LLC, the ASBCA directed the
Contracting Officer to issue a decision on the claim that
had been submitted more than two years earlier, following
which, the Government, through the DCAA, had done nothing
except continue to request more information than was
required to constitute a cognizable claim.
In
ABS Development Corp., the ASBCA granted the
Government's requests to amend its answers to include
contentions that (i) the contract was obtained, and
tainted, by fraud, and hence was void ab initio,
and (ii) the Government was not responsible for the
sovereign acts of a foreign government.
In
Kirk Ringgold, the CBCA
allowed more than $30,000 in legal fees under the EAJA
after the Board sustained the contractor's prior appeal
involving a claimed amount of $6000.
In
Optimum Services, Inc., which involved the contractor's
application for reimbursement under the EAJA, the ASBCA held,
inter alia, it lacked authority: (i) to award attorneys'
fees in excess of the statutory cap of $125 per hour absent an
agency regulation authorizing such enhancement or (ii) to award
expert fees at hourly rates higher than the Government paid its
own experts.
In
E.C. London & Assocs., the ASBCA held it lacked
jurisdiction over the contractor's request for Prompt
Payment Act interest on the portions of its claim that
were allowed because the contractor had not first
submitted a Prompt Payment Act interest claim to the
Contracting Officer.
In
Dream Management, Inc., the CBCA denied the
contractor's application for EAJA fees, finding the
Government's litigation position had been substantially
justified, in part because the contractor had rejected a
settlement offer from the Government that was higher than
the amount finally found due by the Board.
In
Cook Mail Carriers, Inc., the PSBCA reduced the sum claimed
in an EAJA application by a significant amount in order to
reflect the contractor's limited success on its original claims.
In
CanPro Investments, Ltd., the Court of Federal Claims:
(i) dismissed (for lack of jurisdiction) the counts of the
complaint based on allegations of superior knowledge,
impossibility of performance, and entitlement to rescission of
the lease because they were not first presented to the
Contracting Officer; (ii) dismissed other parts of the complaint
because the plaintiff failed to allege plausible grounds for its
claims of mutual mistake, misrepresentation and concealment,
impracticability of performance, and frustration of purpose; and
(iii) held that the plaintiff had sufficiently pled a plausible
breach-of-contract claim based on the implied duty of good faith
and fair dealing for conduct occurring after execution of the
disputed lease. Subsequently, the court
denied the Government's motion for reconsideration of
the portion of the decision allowing the claim for breach
to proceed.
In
Seneca Sawmill Co., the court denied the Government's motion
to dismiss a suit for failure to state a claim because the
contractor's allegation (i.e., that the Government
improperly reduced the acreage to be harvested under a timber
sales contract in violation of the contract's termination
provision and as a result of the Government's mishandling of
issues concerning the protection of northern spotted owls in the
area) was sufficient to state a claim for breach of contract.
In
Kansas City Power & Light Co., the court
denied the plaintiff/contractor's motion to strike the
Government's affirmative defense of "offset" because that
affirmative defense is not a CDA "claim" that requires a
Contracting Officer's decision prior to being raised in court.
In
L-3 Communications Integrated Systems L.P., the court
dismissed a suit for lack of jurisdiction because the
contractor had never submitted a certified claim to the
Contracting Officer prior to filing suit.
In
Claude Mayo Construction Co., the court
denied the Government's motion to dismiss a breach-of-contract
count of the contractor's amended Complaint because the pleading
clearly alleged a contractual obligation (to pay the contractor)
that the Government refused to meet.
In
Michael Roth & Assocs., Architects & Planners, Inc., the
court dismissed the suit because: (i)
the contractor failed to present a claim to Contracting Officer
based the legal theory that it ultimately advanced at court,
i.e., that the agency allegedly failed to comply with
obligations imposed upon it by the contract's "Design Within
Funding Limitations" clause (FAR 52.236-22); and (ii) nothing in
the contract required the Government to increase the
contractor's fee to 6% of the final construction cost estimate
once that estimate had been adjusted upward.
In
The Hanover Insurance Co., the court held
that a surety's letter to the Government adequately notified it
of the contractor's default of a bond agreement, triggering the
surety's right of equitable subrogation.
In
Vanquish Worldwide, LLC, the court held that the
contractor's messages to the Government concerning a
disputed performance evaluation did not constitute a CDA
claim because they did not request a decision from the
Contracting Officer and contemplated further dialogue.
In
Scott Goodsell, the court held, inter alia,
that a letter from the agency/lessee informing the lessor that,
effective on a stated date, the lessee would vacate the leased
premises and terminate the lease and that the lessee would not
pay rent beyond that date constituted a government claim under
the CDA, upon which the lessor could maintain an action in the
court.
In
Philip Emiabata d/b/a Philema Brothers, the court held that, apart from the portion of the suit challenging
a default termination by the Postal Service, the plaintiff's
various contract claims for damages must be dismissed because
they were not first presented to the Contracting Officer for a
decision.
In
RQ Squared, LLC, after permitting limited discovery, the
court granted the Government's renewed motion
for summary judgment and dismissed the plaintiff's suit for
breach of an alleged implied-in-fact contract (under which the
Postal Service was allegedly to protect plaintiff's proprietary
information from disclosure and use) because, inter alia:
(i) the court could not discern from the plaintiff's pleadings
and submissions exactly what proprietary information the Postal
Service allegedly misappropriated; (ii) the Postal Service was
using the disputed technology before the plaintiff disclosed it
to the Postal Service; and (iii) UPS developed certain disputed
technology independently without unauthorized disclosure from
the Postal Service.
In
First Crystal Park Associates Limited Partnership, the court held that: (i) where a lease option
contemplated renewal of the entire leased space, the
Government's alleged attempt to renew only a portion of the
space was not an effective option exercise; (ii) the Government
official who allegedly reached an oral agreement with the
plaintiff to exercise an option for only a portion of the space
lacked the authority to modify the lease or create a new
one; and (iii) an alleged verbal agreement concerning the
partial option exercise was not binding because it was not
reduced to writing as the parties apparently had contemplated it
would be.
In
Tidewater Contractors, Inc., the court
issued a summary judgment dismissing the contractor's breach of
contract claim because: (i) although an FHWA Manual established trade practice applicable to
certain of the disputed issues, it could not be used to vary the contract's terms;
and (ii) none of the contractor's multiple assertions of alleged
improprieties in various aspects of the Government's selection
and testing of the contractor's concrete density core samples
established that it was improper for the Government to reject
them.
In
Senate Builders and Construction Managers, Inc., the court denied the construction contractor's claim for
recovery of its costs of importing backfill material because all
the contractor's theories of recovery relied on an unreasonable
interpretation of the Government's answer to a pre-bid question,
which was included in an amendment to the solicitation prior to
bidding.
In
Idaho Stage LLC, the court held that the plain meaning of a
contract as a whole favored the contractor's interpretation, and,
even if the contract were ambiguous, that ambiguity was latent
and, therefore, should be construed against the Government as the
drafter.
In
Horn & Assocs., the court held that, viewing the work
on a contract for the performance of recovery audits as a
whole, the Government severely impeded and failed to
cooperate with the contractor in its work, which prevented
the contractor from completing the totality of the
contract requirements and constituted a breach by the
Government of its duty of good faith and fair dealing.
In
Gazpromneft-Aero Kyrgystan LLC, the court denied the
contractor's claim for reimbursement of back taxes assessed by
the Kyrgyz Republic because the contractor failed to give timely
notice of the assessment pursuant to the requirement of FAR
52.229-6(j), which prejudiced the DoD's ability to address the
issue.
In its
lengthy and detailed decision on the construction contract
disputes in
RDA Construction Corp., the court held that: (i) the
contractor's superior knowledge argument failed because, even
though the Government did not provide relevant information to
the contractor concerning a wharf's severe load restrictions,
the visible condition of the wharf at the time of prebid
inspections should have prompted the contractor to seek
additional information; (ii) the contractor was not entitled to
recover for a Type 1 differing site condition because the
solicitation did not affirmatively indicate that the wharf's
condition would be different from what it turned out to be;
(iii) the contractor was not entitled to recover for alleged
misrepresentation of the wharf's load bearing capacity because
there was no such affirmative misrepresentation in the
solicitation; (iv) the contractor's cardinal change theory
failed because the evidence showed that, before beginning work,
the contractor knew of the condition of which it ultimately
complained; (v) the Government did not violate its implied duty
of good faith and fair dealing in any of the numerous situations
complained of by the contractor; (vi) the termination for
default was justified and, therefore, the Government was
entitled to assess liquidated damages; (vii) the Government's
counterclaim under the CDA’s anti-fraud provision, 41 U.S.C. §
7103(c)(2), failed because the contractor's claim was not
baseless, indefensibly inflated, or premised on an affirmative
misrepresentation of fact; and (viii) the Government's other
counterclaims based on various fraud statutes failed for similar
reasons. Subsequently, the CAFC
affirmed the decison.
In
InterImage, Inc., the court held that,
where both the basic CPFF contract and the delivery orders
issued under it contained limitations of funding provisions, the
limitations provision in each delivery order governed how much
the contractor was entitled to recover of both costs and fees in
its final invoice at contract closeout, even though the total
costs (and claimed fees) that the contractor had incurred had
not exceeded the overall funding limit in the base contract.
In
DNC Parks & Resorts at Yosemite, Inc., which involved
contract interpretation, the court held that the contract
at issue unambiguously precluded the Government from
asserting prior material breach as an affirmative defense
to the plaintiff's claims for certain termination costs.
Magnus Pacific Corp. prevailed on the majority of its
claims for extra work on a fixed-price contract for levee
restoration work, in large part because the Government's
design for the project contained flaws, and the
solicitation documents misled bidders, for example, as to
the amount of fill that would have to be imported for use
on the project.
In
Stromness MPO, LLC, which involved numerous issues of
contract interpretation, the court found that
both parties had made mistakes in the administration of leases
between them and held, inter alia, that although the
Postal Service had not breached the lease agreements by
constructing a demising wall that prevented access to certain
areas in the leased premises by those in other areas of the
premises not leased to the Postal Service, the Postal Service
was liable for having constructing the wall in the wrong
location and for certain holdover costs.
In
Baldi Bros., Inc., the court held that, under
FAR 14.407-4(b)(2)(ii), the contractor was not entitled to recover on
its claim to modify a contract to correct an alleged mistake in
bid because the corrected bid would exceed the next lowest
acceptable bid that the Government had received in the
competition.
In
James M. Fogg Farms, Inc., et al., the court held that a contract which incorporated certain
federal regulations, but not the provision in the underlying
statute upon which plaintiff was relying in its breach claim,
did not create a contractual obligation that could be breached.
In
Omran Holding Group, Inc., the court denied the
plaintiff's claim that the Government had used the wrong
exchange rate to pay the contractor because that exchange
rate was more favorable to the contractor than the correct
rate and a third rate proposed by the contractor was not
the correct rate, either.
In
MW Builders, Inc. f/n/a MW Builders of Texas, Inc., the
court held, inter alia, that: (i) the
construction contract at issue included a latent ambiguity
concerning which of the contracting parties was required to sign
a line extension agreement with a utility; (ii) extrinsic
evidence demonstrated that the parties did not intend for the
contractor to sign it but instead intended to follow industry
practice, which is to have the end user (in this case the
Government) sign it; (iii) the Government's prolonged efforts to
convince the contractor to sign the agreement and the Government's
delays in signing the agreement, itself, breached its duty of
good faith and fair dealing to the contractor and unreasonably
and compensably delayed the construction project; (iv) a
subcontractor had waived its pass-through claims by signing
general release waivers each time it received a progress payment
from the prime; and (v) there was insufficient evidence to
conclude that by using certain estimated rather than actual
costs in its delay claim (which ultimately resulted in the claim
amount being overstated) the contractor had acted with the
specific intent to defraud the Government in contravention of
the anti-fraud provision of CDA or the Special Plea in
Fraud Statute (28 U.S.C. 2514) or the False Claims Act.
In
Zebel, LLC, rejecting all the plaintiff's arguments to the
contrary, the court held that, pursuant to the
clear terms of an IFB auction for the purchase of real estate,
the plaintiff forfeited its bid registration deposit when
it failed to provide additional money for the purchase
after the Government accepted its bid.
In
Brian X. Scott, although the court
rejected the agency's argument that the FAR precludes federal
employees from submitting unsolicited proposals, the court
dismissed the plaintiff's claims because: (i) it found that the
Government had reviewed the employee's unsolicited proposal
under FAR 15.606 and had properly rejected it because it
addressed a previously-published agency requirement; and (ii)
the plaintiff's allegations that the agency improperly disclosed
or misused data marked as restrictive in the unsolicited
proposal were speculative and implausible.
In
Assessment and Training Solutions Consulting Corp., the
ASBCA held that the Government was responsible for damage to a
leased vessel, even absent evidence clearly showing that the
damages were the result of the Government's negligence, because
the Board applied the common law of bailment, which provides
that when the Government rents property from a contractor, a
bailment for the mutual benefit of the parties is created, which
imposes upon the Government the duty to protect the property by
exercising ordinary care and establishes that, when the
Government receives the property in good condition and returns
it in a damaged condition, there is a presumption that the cause
of the damage to the property was the Government's failure to
exercise ordinary care or its negligence. Subsequently, the
Government's motion for reconsideration was
denied.
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.
In its latest decision in
K-Con
Building Systems, Inc., which is interesting in part because the
court previously held that the default termination underlying
these disputes was invalid, the court: (i)
denied the contractor's motion to amend its Complaint to include
an appeal of a deemed denial of a claim for convenience
termination costs because that claim, having been submitted to
the Contracting Officer more than six years after it accrued,
was untimely, and (ii) held that (a) the contractor had
abandoned certain claims and had not established excusable delay
because the Government's review of its drawings complied with
the contractual requirements; (b) the contractor had failed to
establish that any government-caused delays affected the
critical path of performance; and (c) the Government had
established its entitlement to liquidated damages in part
because the contractor had failed to establish any affirmative
defenses to the assessment of those damages.
In its
lengthy and detailed decision on the construction contract
disputes in
RDA Construction Corp., the court held that: (i) the
contractor's superior knowledge argument failed because, even
though the Government did not provide relevant information to
the contractor concerning a wharf's severe load restrictions,
the visible condition of the wharf at the time of prebid
inspections should have prompted the contractor to seek
additional information; (ii) the contractor was not entitled to
recover for a Type 1 differing site condition because the
solicitation did not affirmatively indicate that the wharf's
condition would be different from what it turned out to be;
(iii) the contractor was not entitled to recover for alleged
misrepresentation of the wharf's load bearing capacity because
there was no such affirmative misrepresentation in the
solicitation; (iv) the contractor's cardinal change theory
failed because the evidence showed that, before beginning work,
the contractor knew of the condition of which it ultimately
complained; (v) the Government did not violate its implied duty
of good faith and fair dealing in any of the numerous situations
complained of by the contractor; (vi) the termination for
default was justified and, therefore, the Government was
entitled to assess liquidated damages; (vii) the Government's
counterclaim under the CDA’s anti-fraud provision, 41 U.S.C. §
7103(c)(2), failed because the contractor's claim was not
baseless, indefensibly inflated, or premised on an affirmative
misrepresentation of fact; and (viii) the Government's other
counterclaims based on various fraud statutes failed for similar
reasons.
In
Quimba Software, Inc., the court held that the contractor's deferred compensation
costs were allowable under an exception to 26 C.F.R. §
1.404(b)-1T because the deferral was "unintended, unavoidable,
and unanticipated."
In
Agility Defense & Government Services, Inc., on
remand from
the CAFC, which had
reversed the CoFC's prior decision in
favor of the Government, the court determined that the contractor had proved, and
was
entitled to recover, its actual costs resulting from extra work
attributable to the Government's negligent estimate of the work under
a requirements contract.
The court published three decisions involving claims by
Oasis International Waters, Inc., two of which were
preliminary decisions issued in the past, but not
previously published. In the
first decision, the court denied the Government's
counterclaims involving the Special Plea in Fraud, False
Claims Act, and the anti-fraud provisions of the CDA
concerning alleged double-billing in the contractor's
claims because the mere fact that the contractor's
interpretation of the contract differed from the
Government's did not amount to a fraudulent intent to
deceive and, given the credibility of the witness who
actually signed the claim certification, the fact that
other company officials disagreed with his position was
not sufficient to establish fraud or that the claim was
submitted in an inflated amount merely as a negotiating
tactic. In the
second decision, the court held that, although the
Government's interpretation of the contract ultimately
proved correct and the contractor's allegations that it
signed two relevant modifications under duress were
ultimately shown to be unsupported, the Government had not
established that the contractor intended to defraud the
Government by submitting its certified claim, especially
when the individual who signed the certification
provided credible testimony that he did not intend to
commit fraud and believed in his interpretation of the
contract. Finally, in
the third decision, the court denied the plaintiff's
claims for allegedly unsuitable site conditions and delays
because the contract did not place responsibility for site
conditions or site preparation on the Government.
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
denied the Government'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.
In
MWH Global, Inc., the court denied the Government's
motion to take more depositions than provided for in RCFC
30(a)(2)(A)(1) because the Government's motion offered no
explanation as to why additional depositions should be
allowed under the standards in the discovery rule.
In
The Hanover Insurance Co., et al., the court
permitted the Government to amend its answers to include
affirmative defenses and counterclaims in fraud as a
result of the plaintiffs' amendments to their complaints,
well into discovery, to remove certain claims.
In
XPO Logistics Worldwide Government Services, LLC,
the court denied the contractor's motion to stay an
earlier decision denying its protest pending appeal to
the CAFC because, inter alia, the contractor did not establish its
appeal was likely to succeed or that it would suffer
irreparable harm absent a stay.
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.
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.
In
Lee's Ford Dock, Inc., the CAFC held that: (i) a lease allowing a contractor to operate
a marina on the leased premises was a contract "for the disposal
of personal property" under 41 U.S.C. § 7102(a)(4) and,
therefore, was covered by the CDA; (ii) there was no CDA
jurisdiction over the contractor's reformation claim, which was
based upon allegations of the Government's misrepresentation,
because it was different from the claim presented to the
Contracting Officer, which was based on mutual mistake; and
(iii) the Board's rejection of the contractor's breach claim
(which was based on changes in the water levels of the lake
surrounding the marina) was appropriate because the contract
clearly gave the Government the right to manipulate the lake's
water level "in any manner whatsoever."
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.
In
Agility Defense & Government Services, Inc.,
the CAFC reversed the CoFC
and held that, contrary to the lower court's findings, the
evidence supported the contractor's contentions that: (i) the
Government had provided inadequate or negligent estimates of the
anticipated workload, and (ii) the contractor had detrimentally
relied on the faulty estimates.
In
Northwest Title Agency, Inc., the CAFC affirmed the CoFC's prior decision that the
contracts at issue unambiguously precluded the contractor (who
was providing closing services) from charging closing fees to
homebuyers and, therefore, extrinsic evidence of trade practice
could not be used to vary the plain meaning of the contract.
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.
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.
In
Agility Public Warehousing Co. KSCP, FKA Public Warehousing Co.
K.S.C., the CAFC
affirmed the part of the
ASBCA's prior decision concluding that the Government had
not breached the express terms of a contract, but remanded
the case to the ASBCA to consider two claims that the
Board had simply stated, without explanation, that it need
not consider: "We need not decide whether the government
constructively changed contract performance or whether it
breached its implied duty of cooperation. At its core,
whether the government breached the contract comes down to
contract interpretation."
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
it links. If you have comments, suggestions for links,
or corrections, please
email me.