In
M. J. Hughes Construction, Inc., the ASBCA denied the
Government's motion to dismiss an appeal for the alleged failure
of the claim to state a sum certain because each of the three
parts of claim did state a sum certain, which was not affected
by the fact that one part of the claim might have to be reduced
by an easily calculable amount as partially overlapping another
part of the claim if both parts were sustained.
In
immixTechnology, Inc. on behalf of Software AG Government
Solutions, Inc., the CBCA denied the Government's motion to
dismiss the appeal because: (i) the claim that the Government
had breached the software licensing terms of a task order issued
by the Interior Department under a GSA FSS contract did not
involve a copyright claim and, therefore, was not preempted by
the Copyright Act of 1976; and (ii) the claim involved only
issues related to the task order and, therefore, had been
properly decided by the DOI's contracting officer rather than
the GSA's contracting officer.
In
BVB Construction, Inc.,
the CBCA held it lacked the authority to issue the TRO and
preliminary injunction requested by the contractor to prevent
the Government from terminating the contract for default pending
the Board's decision on the merits of an appeal based on the
contractor's claim for delay damages.
In
Amec Foster Wheeler Environment & Infrastructure, Inc., the CBCA
denied the Government's motion to dismiss two claims as
time barred because the contractor reasonably alleged it
did not learn of crucial elements of its superior
knowledge and negligent estimate claims until it received
discovery from the Government in a prior dispute, rather
than as soon as it arrived at the jobsite, as the
Government had contended.
In
Europe Asia Construction Logistic, the ASBCA dismissed an
appeal as time barred because the contractor had failed to
submit the underlying claim within six years of the date it
accrued (in this case, the date the contract had been terminated
for default).
In
Heirs of Khair Mohammad, the ASBCA dismissed the appeal,
holding that the individual purporting to represent the parties
to the leases (who were the heirs of Khair Mohammad) was not a
proper representative meeting the requirements of ASBCA Rule
15(a) because: (i) the fact that he had signed some of the
leases as a representative of the parties did not establish he
was a party to the leases; and (ii) there was no evidence (a)
that the heirs constituted a corporation, partnership, or joint
venture, or that individual filing the appeal was an officer or
member of any such entity or (b) that he was a duly licensed
attorney.
In
Phoenix Hawk Construction Co., the ASBCA denied the
Government's motion to dismiss an appeal as untimely filed
because the Government failed to prove when the contractor
received a Contracting Officer's decision that was sent by
email, i.e., without satisfying the FAR
33.211(b) requirement
that "[t]he contracting officer shall furnish a copy of
the decision to the contractor by certified mail, return
receipt requested, or by any other method that provides
evidence of receipt." Similarly, in
Rohulhameed Construction Co.,, the ASBCA denied the
Government's motion to dismiss an appeal as untimely because the
Government failed to meet its burden of proof to show when the
contractor received a Contracting Officer's decision that had
been sent only to the attorney who had represented the company
previously but who was no longer doing so.
In
Greenland Contractors I/S, the ASBCA discussed the meaning
and effect of the CAFC's decision in
Securiforce International America, LLC, and dismissed one
appeal because, contrary to the contractor's characterization,
it involved a contractor claim for monetary damages that had not
first been submitted to the Contracting Officer, but retained
jurisdiction over a second appeal because it involved a
government claim.
In
Arab Shah Construction Co., the ASBCA denied the
Government's motion to dismiss an appeal for failure to state a
claim upon which relief could be granted because: (i) the
contractor's Complaint, when read in conjunction with the
underlying government claim terminating the contract for
default, alleged sufficient facts to establish that the
contractor was claiming that interference by a maintenance
contractor excused the default; and (ii) it was clear the
contractor was challenging the default even it did not
request any specific form of relief.
The ASBCA dismissed an appeal by
Phoenix Systems, Inc., because the contractor failed to
respond to the Government's motion for summary judgment.
In
Grahams Construction Inc., the ASBCA dismissed an appeal for
the contractor's failure to be represented by person meeting the
Board's requirements.
In
CH2M-WG Idaho, LLC, the CBCA held that Government's attempt to unilaterally withhold moneys from
the contractor was invalid under the principles of res judicata
and collateral estoppel because the precise issues had been
fully litigated and decided in the contractor's favor in a
prior CBCA decision. Subsequently, the Board
denied the Government's motion for reconsideration.
In
Flux Resources, LLC, the CBCA: (i) granted
motions to dismiss (a) an unjust enrichment claim (because Board
has no jurisdiction over such claims) and (b) a claim for lost
opportunity costs first raised by the contractor in response to
the Government's motion to dismiss (because it had not been
presented to the Contracting Officer for a decision); but (ii) denied
the
Government's motion to dismiss a constructive change claim and
a claim for breach of the implied duty of good faith and fair dealing
for the alleged failure to state a claim upon which relief could be
granted (because, contrary to the Government's contentions, the Complaint alleged sufficient facts to avoid
a dismissal on this basis).
In
Sotera Defense Solutions, Inc., the CBCA denied the
Government's motion to dismiss the appeal, holding that, in the
particular circumstances of this case, the contractor properly
submitted its claim (regarding the applicability of the Service
Contract Act) to the ordering agency's Contracting Officer.
In
Macro-Z Technology, the ASBCA dismissed a claim for failure to comply with CDA's six-year
limitations period because the claim's theory (unconscionability)
was based on the same facts as a claim previously submitted (and
dismissed) seven years earlier.
In
Dawson-Alamo1 JV, LLC,
the ASBCA denied the
Government's motion to dismiss a count in the Complaint alleging mutual
mistake, holding that the disputed count was based on the same operative facts as
the claim previously submitted
to the Contracting Officer, and the available relief would be essentially
the same as
that for the previously submitted constructive change claim.
In
Melville Energy Systems, Inc., the ASBCA dismissed an appeal from a default termination and related claims as barred by the Election Doctrine because the contractor already had pursued is claims at Court of Federal Claims (which had issued its decision in 1995!).
In
Advisory Opinion Request, Re: United States v. Savannah River Nuclear
Solutions, LLC, and Flour Federal Services, Inc., which involved the
interpretation of the CDA (specifically, 41 U.S.C. 7107(f)), the CBCA held (I think) that the
district court had the authority to order the Board to issue an
advisory opinion on an issue of contract interpretation without
any additional requirement that the opinion be limited to those
issues that could be the subject of a contracting officer's
decision and appealable to the Board.
In
Langdon Engineering & Mgt., the ASBCA held that, after the
Contracting Officer had sent multiple mailings and an email of
his decision to the contractor, an appeal filed within 90 days
of the last such mailing the contractor received was timely.
In
WSSA Birmingham, LLC,
the CBCA denied the GSA's motion to dismiss (for failure to
state a claim upon which relief could be granted) an appeal
involving a building lease and the contractor's allegation that
it had incurred delay damages as a result of the Government's
failure to convene a contractually-required workshop (which was
a condition of GSA's acceptance of space under the lease) within
the time required by the lease because the GSA admitted it had
failed to schedule that workshop in a timely manner.
In
Moonschein Industries, LLC , the ASBCA dismissed an appeal
as moot after the Government converted the challenged default
termination to one for convenience (and other issues presented
by the contractor on appeal had not first been presented as a
claim to the Contracting Officer).
In
Sungwoo E&C Co., Ltd., the ASBCA held that: (i) contracts for construction work in South Korea pursuant to
a Status of Forces Agreement and signed by an Army Contracting
Officer were CDA procurements over which the ASBCA has jurisdiction
because they were procurements for the benefit of the United
States even though funded by Korea and containing a Disputes
provision differing from the standard CDA provision and not
providing for an appeal to the ASBCA; (ii) the Board had jurisdiction over
claims challenging CPARS findings because the Board construed
both the
contractor's repeated use of the term "fraud" in
the pleadings
and its allegations that it had been effectively suspended and
debarred, to be only allegations that the Government acted
arbitrarily and capriciously or in bad faith; (iii) the Board lacked jurisdiction over
the claim for punitive
damages; and (iv) the Board lacked jurisdiction over a claim that
the Board
interpreted as alleging that, by failing to award the contractor new
contracts, the Government had breached its duty to consider the contractor's
bids fairly and honestly, because that allegation was essentially
a bid protest.
In
BES Design/Build, LLC, the CBCA held that filing the
Complaint 11 days after the date ordered by the Board was not a
sufficient reason to dismiss the appeal for failure to
prosecute.
In
Pegasus Enterprises, LP, the CBCA
found that a portion of a lessor's claim for overtime utilities
costs under a building lease was barred by the CDA's
six-year limitations period because the parties' actions in
trying to resolve the issue had not tolled the running of the
limitations period:
Under the facts here, we find no justification for tolling the statute of limitations. Although
[the lessor] diligently pursued its costs under the lease, none
of the conduct complained of could be construed as an extraordinary circumstance that induced
[the lessor] into delaying its claim. Promises to investigate a claim, consider a proposal, or review documents are all conventional activities undertaken in the spirit of professional contract negotiations, not instances of bad faith. There is no evidence that the contracting officer misrepresented his authority to resolve the claims, nor an indication that there were circumstances beyond
[the lessor's] control that impeded its ability to file a claim. Further, the contracting officer had no reason to believe that
[the lessor] was anything other than a sophisticated contractor who, in an exercise of business judgment, decided to try negotiating its claims with GSA before pursuing litigation.
Jurisdiction
In
444 Brickell Partners, LLC, the CBCA dismissed an appeal for
lack of jurisdiction because: (i) although the Contracting
Officer's letters to the contractor demanding payment in a sum
certain were appealable decisions despite omitting language
regarding the contractor's appeal rights, they were vitiated
because, in agreeing to meet with the contractor to discuss the
issues, indicating a willingness to reduce the debt owed, and
choosing not to withhold rent to satisfy the debt, the
Contracting Officer had reconsidered the decisions; and (ii) the
contractor's letters to the Contracting Officer simply expressed
a desire to work with the Government to resolve the issues, did
not request a decision by the Contracting Officer, and,
therefore, were not appealable claims.
In
R&R System Solutions, LLC, the ASBCA denied the Government's
motion to dismiss for lack of jurisdiction because: (i) the
Government's allegations that the contract was void went to the
merits of the dispute, not to the Board's jurisdiction; and (ii)
the Government's notice cancelling the contract and its
withdrawal of a settlement offer did not constitute a "per
se" final decision as the Government contended, so that the
appeal clock only began to run from the date the Contracting
Officer denied the contractor's subsequently-submitted certified
claim for convenience termination costs.
In
L3 Technologies, Inc., the ASBCA dismissed an appeal for
lack of jurisdiction because the underlying Contracting
Officer's decision demanded three distinct amounts from the
contractor and, therefore, failed to contain a "sum certain."
In
Maersk Line Limited, the ASBCA held it lacked jurisdiction
over an appeal in which the contractor sought recovery of vessel
acquisition costs instead of its claims based on conversion and
modification costs originally submitted to the Contracting
Officer.
In
A.A.K.C.C., the ASBCA held: (i) it lacks CDA
jurisdiction over Commander's Emergency Response Program (CERP)
contracts; and (ii) there was no other source of jurisdiction because
the contract did not provide for any right of appeal to the Board.
In
Cameron Bell Corp., d/b/a Gov Solutions Group (GovSG), the
ASBCA dismissed, for lack of jurisdiction, (i) the contractor's
requests that the Board order the Contracting Officer to revise
a CPARS rating and (ii) the contractor's claim for monetary
damages (because the latter claim was not previously submitted
to Contracting Officer), but the Board retained jurisdiction
over the contractor's request for remand to require the
Contracting Officer to follow applicable regulations and provide
the contractor with a fair and accurate performance evaluation.
In
Avue Technologies Corp., the CBCA denied the Government's
motion to dismiss for lack of jurisdiction because the
contractor was not pursuing its claim as a subcontractor, but
had alleged the existence of a direct contract with the
Government.
In
Ryan Thomas Bechard, the PSBCA dismissed an appeal for lack
of jurisdiction because a birth certificate and a social
security card were insufficient to establish that a contract
existed.
In
Man & Machine, Inc., the ASBCA dismissed an appeal for lack
of jurisdiction because the parties agreed there was no
express contract and the appellant failed to present
evidence of an implied contract; rather, the appellant had
voluntarily sent items to the Government for evaluation.
In
Ford Lumber & Building Supply, Inc., a dispute involving a
1995 base realignment and closure lease, the ASBCA,
inter alia, dismissed: (i) a claim submitted in 2017 for
damages occurring in the late 1990s because it was untimely
under the six-year limitations period; and (ii) a claim for the
reduction of the purchase price of a building as a result of
land use restrictions because it did not state sum certain. Subsequently, the contractor's motion for reconsideration was
denied.
In
DCX-CHOL Enterprises, Inc., the ASBCA: (i) held it lacked
jurisdiction over the contractor's delay and constructive change
defenses to a default termination because they were not first
presented to the Contracting Officer for a decision; but also
(ii) denied the Government's motion for summary judgment because
the contractor had raised a genuine issue of material fact as to
whether the Government had waived the delivery schedule.
In Sand Point Services, LLC, the ASBCA denied two motions: (i) the Government's motion to dismiss the appeal for lack of jurisdiction because, even though the Contracting Officer had indicated in her decision on the claim that fraud may have been committed in its preparation, (a) she did not refer the matter to the agency official charged with investigating fraud for further investigation, and (b) the Board will not be required to make factual determinations concerning fraud in order to resolve the appeal; and (ii) the Government's motion for summary judgment because (a) the contractor had not admitted that non-performance was its fault but rather alleged a alleged differing site condition, and (b) there was a genuine issue of fact over whether the contractor had signed a modification that released its claim under duress (specifically, a threat to terminate the contract).
In
SBC Archway Helena, LLC, the CBCA denied the Government's
motion to dismiss appeals for lack of jurisdiction, holding
that, where the original claim that the contractor had
submitted to the Contracting Officer was based on the same
operative facts as two subsequent submissions that the
contractor had labeled as revised claims, the fact that the
contractor had not appealed the Contracting Officer's decision
on the second submission did not deprive Board of jurisdiction
over timely appeals involving the first and third submissions.
In
URS Federal Services, Inc., the ASBCA: (i) held that the
Government's claim for return of
direct subcontractor costs based on its contention that
the contractor had failed to obtain the requisite approval to
subcontract was barred by the six-year limitations period
because the Government had actual knowledge that the contractor
had utilized the subcontractors (and, therefore, the claim had
accrued) when the contractor first submitted invoices for those
costs; but also (ii) held that open factual questions precluded
summary judgment on the issue of whether there was a limitations
or laches problem concerning the Government's allegation that
the subcontractor costs were unallowable due to inadequate
documentation.
In
Advanced Powder Solutions, Inc.,
(over the contractor's objection) the ASBCA dismissed an appeal
as moot after the Contracting Officer withdrew the Government's
claim.
In
Leidos Innovations Corp., the CBCA granted the current
contractor's motion to dismiss an appeal for lack of
jurisdiction because the Contracting Officer's decision on a
government claim had been issued to the prior contractor despite
a proper and valid agreement establishing that the (cancelled)
contract was among those that had already been novated to the
current contractor.
the ASBCA dismissed an appeal for lack
of jurisdiction because of sworn testimony by the Contracting
Officer that (i) he never received the claim purportedly
submitted to him by the contractor, and (ii) he did not compose or
send the purported email in response to the claim that the contractor
offered as evidence that he had received it. Subsequently, the
contractor's motion for reconsideration was
denied
In
KHS Corp., the ASBCA held it lacked jurisdiction over an
appeal from a default termination because the termination had
not yet occurred.
In
Buck Town Contractors & Co., the ASBCA held: (i) it had jurisdiction over
the contractor's contention
that the Government had constructively waived a specification
requirement even though that legal theory had not been presented in
the original claim to the Contracting Officer because (a) the
new theory was
based on the same operative facts as the theories of
recovery presented in the claim, and (b) in his decision on the
claim, the Contracting Officer had interpreted it as alleging
waiver; and (ii)
there was an implied waiver of the contractual specification
prohibiting the placement of parallel overlaps of geotextile
material based upon (a) the imputed knowledge of the Contracting
Officer, and (b) the actual knowledge of the Government's
quality assurance employees.
In
Fluor Federal Solutions, LLC, a decision involving contract
interpretation, the ASBCA granted the contractor's motion for
summary judgment because the agency had not satisfied one of the
requirements in the Award Option Plan contract provision for
changing the rating that would permit the Government to extend
the contract term unilaterally at a fixed price.
In
ABS Development Corp., the ASBCA held that: (i) a contract
was void ab initio because it was based on the
contractor's material misrepresentation that multiple contract
positions would be filled by the contractor's personnel on-site
in the country of performance; and (ii) the Government's
assessment of liquidated damages was improper because there was
no contract.
In
ECC International Constructors, LLC, the ASBCA held that,
because the contracting parties had not agreed in unmistakable
terms that the Government would assume the risk of increased
costs resulting from acts of the International Security
Assistance Force (ISAF) that affected the contractor's
access to the work site on a military base in Afghanistan prior
to the contractor's cutting of the base perimeter fences,
the ISAF's act of encompassing the contract work site within the
base security fence and enforcing base security procedures at
the work site was neither a breach of a contract warranty nor a
constructive change to the contract that might have entitled the
contractor to recovery.
In
Nexagen Networks, Inc., an appeal involving alleged damages
following a convenience termination, the ASBCA denied the
contractor's claims for lost corporate value and lost business
opportunities, as well as lost profits, G&A and overhead on the
successor contract because all those claimed
consequential damages were too remote and speculative.
In Cooper/Ports America LLC,
the ASBCA: (i) granted the Government's motion for summary
judgment that it did not violate the covenant of good
faith and fair dealing because the contractor's claim was
an invalid attempt to use alleged preaward conduct by the
Government to renegotiate prices in a novated contract
that clearly stated all terms, including prices, of the
predecessor contract would remain unchanged; but (ii)
denied the Government's motion for summary judgment as to
whether it made a material misrepresentation to the
contractor because genuine disputes remained concerning
(a) whether the Contracting Officers stated that they
would work with the contractor concerning pricing, and if
so, whether the most reasonable understanding of that
statement would be that the Government agreed to
renegotiate the contract's prices, (b) whether the
contractor relied upon the alleged misrepresentation, and
(c) whether any misrepresentation concerned a material
fact.
In another
Cooper/Ports America LLC, decision, the ASBCA rejected numerous
objections by the contractor and granted the Government's
motion for summary judgment that the Contracting Officer's
email to the contractor was a proper, unambiguous, and
timely preliminary notice of the Government's intent to
exercise a contract option and that, therefore, the
subsequent option exercise was valid.
In
Potomac Electric Corp., the ASBCA denied the
Government's motion for summary judgment that no contract
existed because the Board found there were disputed issues
of material fact as to multiple issues, including whether
there was mutuality of intent to contract and an offer and
acceptance, specifically, (a) whether the instruments in
the record documented a contract between the parties, (b)
whether the exchanges and conduct of the parties supported
the existence of an agreement between the Government and
the contractor, and (c) whether the government official
involved had the authority to bind the Government to a
contract.
In
JAAAT Technical Services, LLC, which involved contract
interpretation, the ASBCA held that: (i) read in the context of
the contract as a whole, the contract specification at issue was
not for informational purposes only, as the contractor had
claimed, but was a requirement; (ii) no ambiguity existed in the
notes to a particular drawing; and (iii) various communications
(one of which was unsigned) from government personnel other than
the Contracting Officer (and not copied to Contracting Officer
or brought to his attention) could not be interpreted to change
the contract's requirements. Subsequently, the contractor's motion for reconsideration was
denied.
In
General Dynamics--National Steel and Shipbuilding Co.,
another appeal involving contract interpretation, the ASBCA
denied cross motions for summary judgment because the language
of the disputed contract clause was ambiguous and, therefore,
the Board would have to look to extrinsic evidence to determine
the parties' intent.
In
GSI & Whitesell-Green, JV, the ASBCA held that a construction contractor
was entitled to extra compensation for work related to a gas
line pipe whose presence and significance were conditions
"beyond the limits of an inspection appropriate to the time
available" for the prebid site inspection, reasoning in part as
follows:
Simply finding the Pipe had a
needle-in-the-haystack quality to it. While a good detective
might have found it, he would also have had to deduce that, even
though it was not yellow or the same color as the gas meter, the
Pipe was a gas line (or some other utility) serving Building
450A. And he would have had to do so while the clock ticked on
the site visit, 27 other contractors roamed around, and base
personnel went about their daily duties. While such sleuthing
might not have required Sherlock Holmes, [the contractor] has convinced us
that it would have required perceptive powers beyond that of a
reasonably prudent offeror.
In
ECC International Constructors, LLC, which involved cross
motions for summary judgment on various issues of contract
interpretation, the ASBCA, inter alia, used the
principle of noscitur a sociis ("a word is known by the
company it keeps") to avoid ascribing to one word a meaning so
broad as to be inconsistent with its accompanying words, in this
case the terms "office" and "office space" in a contract
provision. The Board also interpreted the terms "perimeter" and
"enclosure" in other disputed contract clauses, both in the
Government's favor.
The ASBCA sustained an appeal by
KiewitPhelps, holding that the phrase "all remaining locations" in
a disputed contract provision regarding wallboard finishing
requirements was latently ambiguous, and, therefore, (i) the
contractor had no duty to inquire concerning its meaning, and
(ii) the contractor's reasonable interpretation prevailed over
Government's interpretation under the rule of contra
proferentem.
In
WIT Assocs., Inc., the ASBCA held that a contractor was not
entitled to extra compensation for performing orders allegedly
exceeding a transportation services contract's order limitations
because the contractor had failed to comply with the requirement
of FAR 52.216-19 (the "Order Limitations" clause) to notify the
Government, within three days of the Government's issuance of
orders that exceeded the contract's specified limitations, that
contractor declined to honor those orders.
In
TranLogistics LLC, the ASBCA, inter alia, refused
to enforce a contract modification that had been conditioned on
the contractor's submission of supporting pricing documentation
because some the purported documentation was submitted by the
contractor CEO's long-time roommate/fiancé who (i) had redacted
the purported subcontractors' identifying information on some of
the documents and had refused to provide that information at the
hearing and (ii) had incorrectly identified himself as the
subcontractor on another set of supporting documents.
Subsequently, the Board
denied the contractor's motion for reconsideration.
In
Guardian Safety & Supply LLC d/b/a Enviro Safety Products,
the ASBCA held that the contractor/appellant had successfully
proved all the elements required to establish that it had an
implied-in-fact contract with the Government: (1) mutuality of
intent to contract; (2) lack of ambiguity in the offer and
acceptance; (3) consideration; and (4) actual authority on the
part of the Government's representative to bind the Government
to the contract.
In
B.L. Harbert International, LLC, the CBCA dismissed an appeal
that was based on the contractor's contention
that the agency had erred in failing to approve the contractor's post-award
attempts to substitute manufacturers of its choosing for those
specified in the contract because the contract clearly stated
the contractor
could not do that.
In
Vet4U LLC, the CBCA issued decisions on 23
claims by the contractor for extra costs and alleged delays to its
work on an asbestos abatement contract.
In
NMS Management, Inc., the ASBCA denied the Government's
motion for summary judgment that a bilateral contract
modification was binding, holding that the contractor's cover
email transmitting the signed mod created an issue of contract
interpretation because the email stated that the mod was being
signed under protest and reserved the contractor's right to
dispute the change.
In
The Aulson Co., the CBCA held that the contractor was
entitled to compensation for work directed by the Contracting
Officer in addition to the scope of work clearly delineated in
an answer to a site visit question that was published as an
amendment to the solicitation.
In
PROTEC Gmbh, the ASBCA held that: (i) the Government's
CPARS evaluation (that the contractor failed to perform in
accordance with the schedule utilizing properly trained
personnel) was fair and accurate; and (ii) the Government
properly refused to pay disputed invoices because the
contractor, without a valid excuse, had not delivered services
in accordance with the contract's requirements and had submitted
the invoices late.
In
Manhattan Hunt A Joint Venture, the ASBCA adopted the
Government's interpretation of disputed contract language,
finding that the contractor's interpretation was not within the
zone of reasonableness because it was not supported by any
language in the contract and could not be read harmoniously with
other contract provisions.
In
PROTEC GmbH, the ASBCA held that the Government properly
refused to pay invoices that the contractor had submitted late,
and without a valid excuse, which prevented the Government from
verifying that the contractor had properly performed the
billed-for services.
In
BRDC, A Joint Venture,, which involved issues of contract
interpretation, the Board (i) decided one claim by giving weight
to the parties' concurrent interpretation of the contract before
the dispute arose; and also (ii) held that the contractor was
not entitled to recover for a defect in the contract of which it
should have been aware prior to bidding.
In
Globe Trailer Mfg., Inc., faced with interpreting the
termination-for-convenience portion of FAR 52.212-4 in a
situation where the contract elsewhere specifically stated that
all costs of the first article were to be included in its
unit price, the ASBCA held that the contractor bore the risk
that its decision to allocate its fixed costs to the entire
production lot (while not prohibited by the contract) meant it
would not recover those costs if, as here, the contract were
terminated for convenience prior to work on the production
units. The ASBCA also held it lacked jurisdiction over issues
only raised in a revised termination settlement proposal that
was not the subject of a decision by the Contracting Officer.
In
Falmouth Scientific, Inc., the ASBCA: (i) (over a dissent)
denied the Government's first motion for summary judgment
because the contractor's execution of a promissory note to repay
(in installments) a government claim for overpayment of indirect
costs did not moot the appeal in which the contractor was
challenging that alleged overpayment; but (ii) granted the
Government's second motion for summary judgment because valid,
bilateral rate agreements effectively established the amount
that the contractor owed the Government for the overpayment, and
the Government's claims based upon those agreements were timely
presented.
In DynCorp International, LLC, the ASBCA held that the contractor was entitled to reformation of a contract on the basis of mutual mistake because the contracting parties shared the mistaken belief that a large data set that formed part of the contract was accurate, when, in fact, it contained a latent error, of the existence of which the contractor had not assumed the risk.
In
Nassar Group International, the ASBCA denied most of the
contractor's motions in limine and most of the parties' cross
motions for summary judgment, but granted the Government's
motion for summary judgment on those of the contractor's claims
for an equitable adjustment that the Board found were for
purported delays not caused by the Government, i.e.,
delays allegedly caused by Afghanistan's slow tax exemption and
customs processing, security and political circumstances, and
government actions that allegedly pushed performance into a
period of unusually, and, therefore, unexpectedly, severe
weather.
In
P.K. Management Group, Inc., a decision involving contract
interpretation, the CBCA rejected (as implausible) the
contractor's interpretation of various provisions regarding the
pricing of inspections of custodial properties and declined to
consider extrinsic evidence concerning the meaning of those
provisions because they were not ambiguous.
In
Potomac Electric Corp., despite the Government's denials,
the ASBCA held that a contract existed, based partly on the fact
that, although a contract specialist, who lacked the authority
to bind the Government, was the individual who communicated
with the contractor, "the shadow of the CO loom[ed] large over
every exchange" with the contractor:
The CO stated that she did not direct the contract specialist to
send the draft award to the contractor. . . . However, the
record is notably silent as to the communications between the CO
and the contract specialist. The Board finds it difficult to
believe that there were no communications regarding [the
contractor]
between the contract specialist, the CO, and [another
Contracting Officer]. The
absence of these communication(s) suggests that if produced,
they would be unfavorable to the government[:] "if a party has it
peculiarly within his power to produce witnesses whose testimony
would elucidate the transaction, the fact that he does not do it
creates the presumption that the testimony, if produced, would
be unfavorable." [citations omitted]
Subsequently, the Board
denied the Government's request for reconsideration.
In
GSC Constr., Inc.,, in addition to using contract
interpretation to decide various claims of constructive changes
to the contract, the ASBCA held that: (i) the contractor was
entitled to compensation for its work related to the redesign
and rework of a truck turnaround area because the Government's
only evidence the work was necessary was a single hearsay
statement; (ii) although the contractor failed to prove its
allegations of delay as a defense to the Government's assessment
of liquidated damages, the contractor was entitled to the
remission of damages for the period after the Government took
beneficial occupancy of the site; (iii) the contractor was
entitled to the return of certain retained funds because the
Government failed to prove the items at issue were defective;
and (iv) the contractor's claim for claim preparation costs must
be denied for lack of proof.
In
Fluor Federal Solutions, LLC, the ASBCA adopted the
contractor's interpretation of a disputed provision because: (i)
the construction permit did not require operation in accordance
with Government's interpretation; (ii) the Government missed two
opportunities to clarify its intended meaning in responding to
bidders' questions; (iii) the Government did not object to the
contractor's interpretation in two and half years of course of
dealing; and (iv) the performance specification allowed the
contractor to choose its specific method of meeting the contract
requirements.
In
Optimization Consulting, Inc., the ASBCA: (i) rejected the
contractor's contention that the contract was ambiguous
regarding Management Information System requirements and,
therefore, did not reach the contractor's arguments for its
interpretation; and (ii) held that the contractor provided no
evidence of an alleged constructive change directed by someone
with the authority to bind the Government.
In Sotera Defense Solutions, Inc., the CBCA found for the contractor on the issue of entitlement to a price adjustment for Service Contract Act wage adjustments after the Contracting Officer failed to fulfill the extra obligation placed on him by a contract-specific provision (which the Board found took precedence over the normal FAR 52.222-41 clause) to identify SCA-covered positions.
In
Stobil Enterprise, the CBCA held, inter alia, that: (i) a bilateral release of claims precluded the contractor's claim for damaged equipment; and (ii) the contractor's explanatory cover letter submitted with an executed release demonstrated that the contractor did not intend the release to cover its claims for increased wage costs under the Service Contract Act; but (iii) the claim for increased wage costs must be denied because (despite having been given several opportunities to do so) the contractor failed to submit evidence (in the form of payroll records) of the actual hours worked by the allegedly affected employees or the actual wages the contractor had paid them. Subsequently, the contractor's motion for reconsideration was
denied.
In
Advanced Global Resources, LLC, a decision labeled as
nonprecedential, the ASBCA denied claims for delay damages
during a stop work order precipitated by a GAO protest because:
(i) the contractor did not seek to minimize its direct costs of
a person it had hired upon receipt of the contract award who did
no work during the stoppage; (ii) the contract's performance
period was not extended, so the contractor was not entitled to
Eichleay unabsorbed home office overhead.
In
Harry L. Chupnick, the CBCA denied
a claim because, prior to signing the contract, the contractor failed to inquire concerning a patent ambiguity in the contract language concerning the issue in dispute on appeal.
In
AAR Airlift Group, Inc., the ASBCA denied the contractor's claim for
days it alleged the Government should have, but did not,
compensate the contractor for aircraft that were fully mission
capable because the record also showed the contractor had a shortage of
pilots available on the days in issue.
In
Harris IT Services Corp., an appeal involving contract
interpretation, the CBCA granted the Government's motion for
summary judgment because the contractor had failed to comply
with a contract clause requirement that it identify its SCA
employees to the Government so that appropriate wage
determinations could be incorporated in the contract.
In
Amec Foster Wheeler Environment & Infrastructure, Inc., an
appeal involving primarily claims for delay damages on a
construction project, the CBCA first found there was no
contemporaneous evidence supporting the contractor's claim that
the Government had pressured it to terminate a subcontractor
(or, as the Board puts it: "the dog that didn't bark"). Then the
Board engaged in an extended analysis of the parties' competing
interpretations of the critical path and their disagreements
over alleged concurrent delays and liquidated damages and the
evidence, or lack thereof, supporting each side's arguments,
before awarding the contractor a fraction of the costs it had
claimed.
In
Patrick M. Murray,
the PSBCA held that all the circumstances presented by the
contractor were insufficient to prove that the Postal Service
had discriminated against him based upon his age when it sought
a price reduction during renewal negotiations.
In
Suffolk Construction Co.,
the CBCA split the baby on a slew of construction
contract change and delay claims.
In
Buck Town Contractors & Co., the ASBCA held: (i) it had jurisdiction over
the contractor's contention
that the Government had constructively waived a specification
requirement even though that legal theory had not been presented in
the original claim to the Contracting Officer because (a) the
new theory was
based on the same operative facts as the theories of
recovery presented in the claim, and (b) in his decision on the
claim, the Contracting Officer had interpreted it as alleging
waiver; and (ii)
there was an implied waiver of the contractual specification
prohibiting the placement of parallel overlaps of geotextile
material based upon (a) the imputed knowledge of the Contracting
Officer, and (b) the actual knowledge of the Government's
quality assurance employees.
In
NOAA Maryland, LLC, which involved interpreting a lease, the
CBCA held that only two of four types taxes at issue were
reimbursable as "real estate taxes" under the "Tax Adjustment"
clause, which barred reimbursement for taxes created after the
lease was executed:
The clause defines “real estate taxes” as those that are assessed against the building without benefit to the property for the purpose of funding general government services. The definition excludes, however, “without limitation, general and/or special assessments, business improvement district assessments, or any other present or future taxes or governmental charges” that are assessed against the property or the land it sits on. This exclusionary provision means that, at the time that the lease was effectuated, no other taxes currently existing or assessed, other than real estate taxes, would be paid by GSA under the lease; nor would any future taxes created and imposed after effectuation of the lease.
In
ABS Development Corp., the ASBCA held that: (i) a contract
was void ab initio because it was based on the
contractor's material misrepresentation that multiple contract
positions would be filled by the contractor's personnel on-site
in the country of performance; and (ii) the Government's
assessment of liquidated damages was improper because there was
no contract.
In Woolery
Timber Management, Inc. a decision issued under the CBCA's
small claims procedures and, therefore, nonprecedential, but,
nevertheless entertaining to read, the CBCA noted that (although
the following actions were not within the scope of its decision
following a termination for convenience) the contractor, without
notifying the Contracting Officer, had delayed contract
performance in order to work on other projects that it thought
would benefit the agency, while the Contracting Officer had not
had the time to oversee the contract until very late in the
performance period and, in fact, had neglected to issue a notice
to proceed. The Board denied all the contractor's claims except
a claim for a blocked access route and denied the Government's
claim for excess reprocurement costs because there was no
Contracting Officer's decision on that claim and because the
Government had elected to terminate the contract for convenience
rather than for default. Subsequently, the CBCA
denied the Government's motion for reconsideration.
In
Ralph B.
Vance, the PSBCA held, inter alia, that: (i) the contractor
should have followed the Contracting Officer's direction
(pursuant to an ambiguous contract provision) to assist in
sorting the mail and then filed a claim rather than refusing to
do so; (ii) the Contracting Officer's subsequent order banning
the contractor from access to the mail due to his recalcitrance
and confrontational manner was neither a breach of the duty of
good faith and fair dealing nor a constructive termination;
(iii) the Government did not act in bad faith when it terminated
the contract with notice because the contract expressly
authorized such a termination by either party; and (iv) various
errors in the Government's reports and investigations concerning
the contractor's performance had no effect on, or consequences
for, that performance and, therefore, were not actionable.
In
Lulus Ostrich Ranch, the ASBCA: (i) gave effect to an IFB
provision in a solicitation for scrap metal that stated "[t]here
will be absolutely no changes, modifications, adjustments, or
negotiations concerning bid price after award" [emphasis in
original] and held the provision precluded the contractor's
subsequent claim for a mistake in bid; and (ii) denied the
contractor's appeal from its default termination because the
contractor failed to pay any amount for the scrap metal
it had acquired.
In
HK&S Construction Holding Corp., the ASBCA upheld the
default termination of a construction contract because the
contractor failed to establish that the completion date was
waived (especially because the DeVito rule does not
normally apply to construction contracts) and failed to present
any evidence that the various alleged causes of delay were on
the critical path.
In
4H Constr. Corp, the ASBCA held that, after a convenience
termination, (i) the contractor was entitled to recover its
reasonable costs incurred in mobilizing to prepare to perform a
dredging contract even before a notice to proceed (which was
never issued), and (ii) an email from the Contracting Officer
notifying the contractor of a protest was not a valid stop work
order pursuant to FAR 52.233-3 and, therefore, was not a bar to
the contractor's recovery.
In
Carmazzi Global Solutions, Inc. the CBCA denied the contractor's "ill-founded" motion to
dismiss the Government's termination for default for failure to
state a claim upon which relief could be granted because the contractor
conceded it had failed to satisfy the contract requirement to
supply verbatim hearing recorders at 100% of the scheduled hearings.
In
Grow Life General Trading, LLC, the ASBCA upheld a
termination for failure to prosecute the work because the it was
clear the contractor would not have completed the work by the
extended deadline established in the Government's cure notice,
and none of the circumstances asserted by the contractor (e.g.,
customs delays and delays with the employee badging process)
constituted a valid excusable delay or a breach of the
Government's implied duty of good faith and fair dealing.
In
Curtis Jue, the ASBCA upheld a termination because a lease
provision permitted the Government to terminate at any time with
or without cause (the Government had cause in this case).
In
Sang Kash Co., the ASBCA upheld a default termination
because the contractor's required base access
privileges were revoked by the base commander in circumstances
where, since there was no guaranteed minimum contract quantity,
the denial did not confer an economic gain on the Government or
nullify the contractor's contract rights.
In
Joyce Ann McElroy, the PSBCA upheld the default termination
of a mail delivery contract after the contractor: (i) stopped
performing (and then failed to provide assurances of
performance) because she disagreed with the Postal Service's
interpretation of the contract's line of delivery requirement;
and (ii) on appeal, failed to prove that she experienced the
harassment she alleged.
In
CKC Systems, Inc., the ASBCA denied an appeal of a default
termination because the contractor failed to deliver units
within the time required by an extended delivery schedule, and
its delays were caused by its own continued failures to comply
with a contract requirement even after it became aware of it.
CKC Systems, Inc., also lost its appeal of another default
termination because it did not perform in accordance with an
extended delivery schedule without any valid excuse for its
failure to procure contractually-compliant shock mounts.
In
Walker Development & Trading Group, Inc., the CBCA denied
the appeal of a termination for cause of a contract for "as
needed" bulk laundry services because the contractor failed to
perform and failed to provide adequate assurances of performance
in circumstances where the Government did not (i)
hinder the contractor's performance, (ii) "conspire" to get rid
of it, or (iii) breach the implied duty of good faith and fair
dealing. Subsequently, the Board
denied the contractor's motion for reconsideration.
In
Podrez Enterprise, LLC, the ASBCA denied an
appeal from the termination for cause of a contract for railcar spanners
because the spanners did not comply with the contract requirements,
the contractor
failed to take corrective action when given the opportunity to do
so, and the contractor did not produce evidence of any excuse for its failure to
perform.
In
Stobil Enterprise, a nonprecedential
decision under Board Rule 12.2;, the ASBCA upheld a termination for default for
the unexcused failure to complete the work by the contract completion date,
holding that, read
as a whole, the contract required replacement of an old drum even though it
was not specifically mentioned. Subsequently, the Board
denied the
contractor's motion for reconsideration.
In
Watts Constructors, LLC, which involved motions for summary
judgment on various aspects of an appeal from a default
termination, the ASBCA held: (i) it had jurisdiction over an
excusable delay claim submitted to the Contracting Officer after
the Government had moved for summary judgment at the Board
concerning the default termination appeal; (ii) even though the
Government had extended the contract delivery date, it had not
waived that extended date; (iii) even though the Contracting
Officer may have been incorrect in her assessment of various
elements in the contractor's proposed schedule for a new
completion date, that was not sufficient to demonstrate that she
abused her discretion in terminating the contract for default
based upon the existing completion date; (iv) the
Government's motion to dismiss the counts in the Complaint
alleging breach of the implied duty of good faith and fair
dealing must be denied because a common law affirmative defense
(such as a prior material breach) to a termination for default
is not a claim that must be presented to the Contracting
Officer; (v) rude conduct by the QAR toward the contractor was
not sufficient to establish either a breach of the implied duty
of good faith and fair dealing or that the Contracting Officer
abused her discretion in terminating for default, especially in
the absence of any evidence she was aware of the rude behavior;
and (vi) the contractor had presented sufficient evidence of
overly zealous inspections to overcome the Government's motion
for summary judgment concerning that allegation.
In
Carmazzi Global Solutions, Inc. the CBCA denied the
contractor's motion for summary judgment in a default
termination appeal and held that the termination for convenience of one contract does not
(a) compel an agency to terminate for convenience other
substantively similar contracts with the same contractor or (b) preclude the agency from terminating
any/all of those other contracts for default.
In
M. L. Energia, Inc., the ASBCA applied FAR 52.246-7 to
determine the quantum of an equitable price reduction for
the contractor's failure to complete a Small Business
Innovation Research contract. Subsequently, the Board
denied the contractor's motion for reconsideration
In
King Aerospace, Inc., a decision limited to quantum, the ASBCA
held that the contractor's "measured mile" estimates "paint[ed]
with too broad a brush" and failed to establish the amounts by
which defects in government-furnished property increased the
contractor's costs of performance, so the Board adopted the
damages estimate of the Government's expert witness.
In
BES Construction, LLC , the ASBCA accepted the evidence of
the quantum of delay costs on a construction contract presented by
the Government's expert after the contractor failed to produce
any quantum evidence of its own. The Board was singularly
unimpressed with the contractor's presentation. For example:
Only [the contractor] filed a post-hearing brief. That brief, signed by counsel, is devoid of any citation of the record or of legal authority, and offers "argument" so undeveloped, unsupported, and conclusory that it is not worthy of the name. We would be justified in denying the appeal on that basis alone.
[footnote omitted]
In
ASFA Uluslararasi Insaat
Sanayi Ve Ticaret AS, the
ASBCA denied the Government's motion for summary judgment
that the costs claimed by the contractor (traffic fines,
penalties, and violations incurred by the Government's
personnel while using the contractor's vehicles) were not
allowable because the Board concluded that a duty of care
may exist even when not expressly stated in a contract,
and genuine material issues of fact existed concerning how
the fines and penalties occurred, the capacity in which
those who incurred the fines were acting, and if the
circumstances surrounding the contract's creation
established an obligation by the Government to be liable
for fines and penalties registered against the vehicles
while in the Government's control.
In
Eagle Peak Rock & Paving, Inc., the CBCA denied cross motions for summary judgment on
an appeal
from a default termination because "many" disputed issues of
fact remained to be resolved.
In
Electric Boat Corp., the ASBCA denied the Government's
motion for summary judgment because material factual
disputes remained as to whether a subcontractor had the
means to separately track its actual costs.
In
Bohner Painting LLP, over the contractor's objection,
the CBCA dismissed an appeal with prejudice as moot due to
a bilateral settlement agreement that included a release
of claims.
In
SBC Archway Helena, LLC, the CBCA denied the contractor's
motion for sanctions against the agency for allegedly delaying
the production of certain documents that the Board held were not nearly as crucial to the
contractor's case as it claimed.
In
TranLogistics LLC, the ASBCA granted the contractor's
unopposed application to recover EAJA fees, including its fees
for preparation of the application.
In
Woolery Timber Management Inc., the CBCA denied the
contractor's EAJA application, finding that the
Government's litigation position had been substantially
justified where the contractor had lost on most of its
appeal grounds and where the single winning appeal ground
had been a close call.
In
Mare Solutions, Inc., the CBCA granted the contractor's request for fees under
the EAJA, including fees
of expert witnesses, except to the extent the claimed attorney fees
exceeded the statutory rate limit.
In
Relyant, LLC, the ASBCA granted most of the contractor's request
for EAJA fees, rejecting the Government's contention that its
position had been "substantially justified" because that
requirement applies to the Government's litigation position as a
whole.
In
K&K Industries, Inc., although the ASBCA denied the
contractor's request for enhanced attorneys fees because
the agency's regulations did not provide for them, it held
that the Government's position was not substantially
justified and that the lack of a critical path analysis by
the contractor was irrelevant when it was apparent the
item in dispute had delayed the project.
n
Asia Commerce Network, the ASBCA held that, after
having supplemented the record with additional factual
evidence, the contractor had established it was an
eligible party, and the Government's litigation position
had not been substantially justified.
In
McLeod Group, LLC, the court held it lacked
jurisdiction over claims based on a blanket purchase agreement because
it is not a contract.
In
Fortis Networks, Inc., the court held: (i) it lacked
jurisdiction over a suit for an injunction to stop offsets
to collect a debt because the suit was based on the
alleged breach of a voluntary installment repayment
agreement, which the plaintiff failed to show was a
contract; and (ii) the suit was barred by the Election
Doctrine because the plaintiff was currently challenging
the debt in an appeal to the ASBCA.
In
Lite Machines Corp., the court dismissed
counts from an amended Complaint alleging that the Government
had breached a Phase III SBIR contract by discontinuing funding,
holding, inter alia, that 15 U.S.C. § 638(r)(4) (which
provides that, "[t]o the greatest extent practicable, Federal
agencies and Federal prime contractors shall issue Phase III
awards relating to technology, including sole source awards, to
the SBIR and STTR award recipients that developed the
technology") could not be deemed to be incorporated in the
contract by the Christian doctrine or any other means
and did not create an enforceable contract right to an award.
The court also rejected the contention that there was an
implied-in-fact contract.
In
Kansas City Power & Light Co., the court held that:
(i) the contractor's duty-to-defend claim was barred
because it accrued when the contractor could request a sum
certain and knew all the facts fixing the Government's
purported liability, which was more than six years before
the contractor submitted the claim to the Contracting
Officer; (ii) the contractor's duty-to-indemnify claim was
not barred by the CDA's six-year limitations period
because it accrued only four years prior to submittal to
the Contracting Officer; (iii) the Government's argument
that the contractor had superior bargaining power in
negotiating the contract with the Government was not
persuasive because, even though the contractor was the
only utility available to the Government, the contractor
was required by law to provide uniform terms for all
similarly situated customers; and (iv) the contractor's
recovery in this action for defense and settlement
expenses it incurred in prior litigation must be reduced
by the amount it received from a third party in order to
prevent a double recovery, especially where a
purported assignment of subrogation claims was
invalid under the Anti-Assignment Act because the claims
had not been decided and the United States had not
recognized the assignment.
In
The Boeing Co., the court, inter alia: (i)
dismissed an illegal extraction claim for lack of jurisdiction
because the statute on which it was based (41 U.S.C. § 1503(b))
is not a money-mandating statute; and (ii) held that the
contractor had waived its right to challenge a conflict it saw
between the CAS statute, the CAS clause, and FAR 30.606 because
it consistently entered into contracts with the Government after
FAR 30.606 became effective without challenging the regulation
in any type of pre-award protest or negotiation with the
Government. Subsequently, the Court of Appeals for the Federal
Circuit
reversed both the illegal exaction and waiver aspects of
the lower court's decision.
In
Just in Time Staffing, the court dismissed various
counts in the Complaint for failure to state a claim and
jurisdictional defects, holding that the Government was
not liable for the costs the contractor incurred in
negotiating a collective bargaining agreement with its own
employees who were attempting to unionize.
In
CB&I Areva Mox Services, LLC, the court held that, under the
CDA, the contractor was not entitled to interest on the amount
of an affirmative government claim that the contractor had
successfully challenged in court.
In
Jarurn Investors, LLC, the court: (i) dismissed
(for failure to state a claim) the lessor's breach claims
because the Postal Service's requirement that the current lessor remove
and replace defective floor tiles that originally had been
installed in connection with a prior lease was not a breach of
the current lease or a breach of the covenant of good faith and
fair dealing; and (ii) held it lacked jurisdiction over the
lessor's claim for unjust enrichment.
In
Kudsk Construction, Inc., the court denied
the Government's motion to dismiss both: (i) a claim for
unabsorbed overhead for the period that performance was
suspended (during a bid protest) before a notice to proceed had
been issued on a construction contract because the court
interpreted the CAFC's controlling precedent in
Nicon, Inc. to bar only such claims that were calculated
using the Eichleay formula; and (ii) a claim for the
costs of reporting pursuant to the requirements of the American
Recovery and Reinvestment Act of 2009 because the associated
clause (FAR 52.204-11) was not incorporated into the contract,
and the Government did not establish it should be incorporated
by operation of law under the Christian doctrine.
In
E&I Global Energy Services, Inc., and E&C Global,
LLC, the court dismissed several
counts from the complaint for failure to state a claim because
the Government had no contractual obligation to reimburse a
continuation contractor on a defaulted contract for payments it
had made to the defaulted contractor's subcontractors and
suppliers. Subsequently,
the contractor's motions for reconsideration of three
interlocutory orders were
denied.
In
Thomas Nussbaum, the court held that, under the CDA, the
contractor's suit was untimely because it was not filed until
nine years after the contractor's CDA claim had been denied or
deemed denied, and the contractor did not satisfy the
requirements for equitable tolling of the limitations period
because (a) the contractor failed to pursue his rights during
that nine-year period, and (b) a contracting officer's failure
to respond to a claim does not satisfy the requirement for equitable
tolling of the CDA's one-year period for filing suit in court.
In
Sandstone Assocs., Inc., the court held it
lacked jurisdiction over a suit filed more than 12 months after
the contractor received the Contracting Officer's decision.
Looks Great Services, Inc. is a case that the court described as presenting "a suitable law school
exam question." With a bid of one penny, a contractor had won a
contract to remove a diseased copper beech tree from a national
historic site formerly occupied by Teddy Roosevelt, expecting to
make a profit by reselling the wood based on its historical
significance. When the Government learned of the contractor's
intentions, it prohibited the contractor from proceeding and
gave the job to another contractor. The contractor sued for an
injunction, but the court dismissed the suit because: (i) this
was not a bid protest, so injunctive relief was not available;
and (ii) the contractor had not first filed a CDA claim for
breach with the Contracting Officer.
In
Ultimate Concrete, LLC, on cross motions for summary
judgment as to aspects of the dispute, the court: (i) denied the contractor's constructive change claim
for excavating and rebuilding an embankment because the contract
unambiguously required it and the contractor's contrary
interpretation of the contract language at issue was
unreasonable and was at odds with other sections of the
contract; and (ii) granted the contractor's motion for summary
judgment on its defective specifications claim because the
Government knew that the survey data it provided to the
contractor was inaccurate and that a number of the inaccuracies
were the result of actions by the Government's own work crews,
and yet the Government withheld more accurate survey data from
the contractor.
In
BGT Holdings, LLC, the court held that:
(i) the contractor was not entitled to an equitable adjustment
for equipment it was required to purchase after the Contracting
Officer allegedly removed GFE from the contract, because the
Government Property clause (FAR 52.245-1) and a (special?)
Changes clause required the contractor not to follow any directions unless made and signed in
writing by the Contracting Officer, and the contractor failed to
allege that any such written direction had been issued; (ii)
these same specific contract requirements precluded the
contractor's arguments concerning waiver and ratification; and
(iii) the Government Property clause also specifically absolved
the Government of liability for the contractor's breach of
contract claim for a decrease in the GFE.
In
Agility Public Warehousing Co., K.S.C.P., in which the
contractor challenged the validity of cross-contract
offsets to collect a debt, the court held, inter alia,
that, pursuant to the Debt Collection Act, the Government
could offset amounts the Contracting Officer determined
the contractor had been overpaid under a contract to which
the
Federal Circuit had concluded the Government was not a
party (but only administered) against funds owed to the
contractor on another contract to which Government was a
party, even though such offset was invalid under the
principles of common law offset. As a prelude to that
conclusion, the court engaged in a complicated analysis of
whether, and the extent to which, 28 U.S.C. 1500 limited
its jurisdiction over the contractor's amended Complaint
in light of a previously filed District Court action.
In
4DD Holdings, LLC and T4 Data Group, LLC, the court held that the Government had infringed on the
plaintiffs' copyrighted software because the Government
authorized or consented to its contractor's copying of the
software in the contractor's own labs and the contractor's use
of the software in excess of the purchased license. The court
also held that the Government "with culpable state of mind" had
destroyed relevant electronic evidence that it had a duty to
preserve, which warranted sanctions for spoliation.
In
North American Landscaping, Construction, and Dredge Co.,
the court: (i) denied the contractor's various
theories in support of its claim for delays to dredging due to
barge traffic because the solicitation warned there would be
periodic delays, the actual conditions did not differ from those
indicated in the solicitation, and the contractor failed to
fulfill its duty to inquire as to the extent of barge traffic;
(ii) denied the contractor's excusable delay claim for unusually
severe weather because it was submitted 100 days after the
contract was completed, not within 10 days of the beginning of
any alleged weather event, as required by the contract; and
(iii) denied the contractor's claim for an allegedly delayed
government completion survey because the contractor failed to
provide the required minimum 14 days advance notice between its
request for a completion survey and the proposed date for the
completion of the work (and the date for the Government’s
completion survey).
In
Coastal Park LLC, et al., the court
held that, where an IFB for the sale of a former Coast Guard
housing complex contained clauses (a) disclaiming the
Government's obligation to maintain the property between the
sale and closing and (b) limiting the contractor's damages for
failure to close to a return of earnest money, the portions of
the Complaint seeking damages in excess of that amount should be
dismissed in a situation where a hurricane had damaged the
property between the sale and closing and the Government had
canceled the contract after refusing the fourth extension of the
closing date requested by the contractor and declining the
contractor's request to adjust the purchase price to reflect the
damages caused by the hurricane.
In
Woodies Holdings, L.L.C., the court rejected the
Government's attempt to establish that it was entitled to
reformation of building leases on the basis of the
Government's unilateral mistake of fact concerning the
building's square footage for purposes of calculations
under the Tax Adjustments clause because: (i) the
Government bore the risk of its mistake, having repeatedly
ignored information as to the building's actual size,
which was readily available to it from multiple sources,
absent any misrepresentation on the part of the lessor;
and (ii) in view of conflicting testimony, the Government
had failed to satisfy its burden of proof to establish
that the lessor knew, or should have known, of the
Government's mistake.
In
Bruhn Newtech, Inc., the court held that the Government's
distribution of certain items did not breach a restricted
software provision because the items at issue were delivered
under a different contract from the one that contained the
disputed provision.
In
Meridian Engineering Co., on remand from the
Federal Circuit, the court held that: (i)
releases signed by the contractor, although broadly worded, did
not cover its claim for flood-event damages, which were "too
attenuated" from the claims giving rise to the releases to be
considered encompassed by them; and (ii) the contractor had not
assumed the risk of the flood event (monsoon season) in
part because government-caused delays pushed the contractor's
construction work into that season.
In
Pacific Coast Community Services, Inc., the court held that: (i) although the contract contained a latent ambiguity
concerning the number of full-time equivalent employee hours that
must be provided per contract year and whether replacement of
employees was required for absences of less than two weeks, which
must be resolved in favor of the contractor's interpretation because
the Government's interpretation was not adopted until months after
operation under a contrary interpretation and did not give
meaning to all the contract's terms, including the
vacation time required by an applicable wage determination;
nevertheless, (ii) the contractor's
damages claim for the extra hours it was required to work must
be denied because it failed to provide any payroll
records showing the actual wages it paid.
In
Rocky Mountain Helium, LLC, on remand from the
CAFC (which had held that the Court of Federal Claims had
jurisdiction over the dispute), the court used principles of
contract interpretation to conclude that: (i) a settlement
agreement required the BLM to take more than perfunctory steps
to provide the contractor with data concerning the amount of
helium available for recovery; and (ii) the BLM breached that
agreement by failing to take adequate steps to provide certain
required data. Subsequently, the court
denied the Government's motion for reconsideration.
In
Coffman Specialties, Inc., the court
denied the Government's motion to dismiss the count in the complaint
for the costs of soil disposal because neither party provided
the court with sufficient information to decide an issue of contract
interpretation.
In
Constructora Guzman, S.A., the court denied
the Government's motion to dismiss a count in
the Complaint alleging that a prime contract modification permitting
the Government to retain 10% of payments was created for the benefit of
subcontractors and that, therefore, the plaintiff-subcontractor
was a third party beneficiary. However, the court dismissed the
second count
in the Complaint alleging that the subcontractor had an implied-in-fact
contract with the United States.
In
Panther Brands, LLC, and Panther Racing, LLC, the court
held, inter alia, that the plaintiff had failed to
establish there was an implied-in-fact contract where none of
the government officials who were allegedly involved had actual
(or implied actual) authority to commit the Government to the
contract, and there was no evidence that any government official
with actual authority had ratified the alleged agreement.
In
State Corps, the court upheld a default termination because:
(i) the contractor admittedly failed to complete the project by
the completion date specified in the contract; (ii) the
Government did not waive its right to terminate the contract for
default because it clearly and repeatedly informed the
contractor after the completion date had passed
(including sending the contractor
a cure notice and later a show cause notice) that the
contractor was in default, that the Government was considering
terminating for default, and that the Government intended to
assess liquidated damages; (iii) the Government's refusal to pay
the contractor's seventh invoice was not an excuse for the
default because the payment was not due until two months after
required completion date had passed; and (iv) changes
in required badging procedures did not excuse the default
because they were not instituted until after the contract
completion date had passed.
In
Alutiiq Manufacturing Contractors, LLC, the court found a default termination to be defective
because the agency failed to consider several required
factors in FAR 49.402-3(f)(1)-(7) prior to the termination
and relied instead on the analysis of a government
official who had history of hostility toward the
contractor and whose own analysis of the state of contract
performance was deficient.
In
Brian Bowles, the court reached the very
rare conclusion that a termination for default had been made in
bad faith, finding that the plaintiff's refusal to perform
further on the contract was justified by the multiple instances
of abuse he had suffered from Postal Service employees,
culminating in a false allegation that he had assaulted his
Postal Service supervisor.
In
Duke Energy Progress, Inc. and Duke Energy Florida, Inc.,
the court denied the Government's partial
motion to dismiss (which was based on the Government's
allegation of collateral estoppel) because the plaintiff's
Complaint did not present issues of law and fact identical
to those litigated in the prior related proceeding between the
parties.
In
CB&I AREVA MOX Services, LLC the court granted the
Government's motion to admit 14 attorneys from a private law
firm to a protective order in order to assist the DOJ's
attorneys in the litigation, reasoning that the situation would not contravene 5
U.S.C. 3106's prohibition on the Government's use of private
attorneys for the "conduct of litigation."
In
DCX-CHOL Enterprises, Inc., the court
remanded the case to the Contracting Officer to issue a decision
on a contract claim for damages for rescission because the
Contracting Officer had mistakenly concluded it would be
improper to issue the decision while a bid protest concerning
the same rescission was pending in court.
In
4DD Holdings, LLC and T4 Data Group, LLC, the court held that the Government had infringed on the
plaintiffs' copyrighted software because the Government
authorized or consented to its contractor's copying of the
software in the contractor's own labs and the contractor's use
of the software in excess of the purchased license. The court
also held that the Government "with culpable state of mind" had
destroyed relevant electronic evidence that it had a duty to
preserve, which warranted sanctions for spoliation.
In
Kudu Limited II, Inc.,
the court denied the Government's motion to suspend discovery pending
its resolution of the Government's motion for judgment on the pleadings primarily because
the Government had delayed both (a) its responses to discovery requests and
(b) its filing of the motion to dismiss.
In
Park Properties Assocs., L.P., Valentine Properties
Assocs., L.P., the CAFC reversed the
prior CoFC decision and held that, where HUD
contracted with a state housing authority agency, and
then, in a separate instrument (naming only the state
agency and landlords as parties), the state agency
contracted with the landlords, HUD was not in privity of
contract with the landlords and, therefore, the CoFC
lacked jurisdiction to entertain a breach of contract suit
by the landlords against HUD. The CAFC rejected all the
lower court's reasons for failing to follow a long line of
precedent on this issue.
St. Bernard Parish Government, the CAFC affirmed the CoFC's decision
that it lacked jurisdiction over a breach of contract claim
based on a Cooperative Agreement with the Natural Resources
Conservation Service. The court noted the suit should have been
filed in District Court following the exhaustion of
administrative remedies in the Department of Agriculture.
In
DAI Global, LLC fka Development Alternatives, Inc., the
CAFC reversed the
prior CBCA decision dismissing several appeals for lack of jurisdiction
due to an allegedly defective, uncorrectable CDA claim certification by
the prime transmitting a properly certified CDA claim by its sub.
The court held that the two
documents together constituted a defective certification which is
correctable according to the CDA, and the Board's decision to the
contrary was based on language in a draft of the statute that had
specifically been deleted from the enacted version.
In
Guarantee Co. of North America USA, the CAFC affirmed the ASBCA's
prior decision that a surety lacked standing to intervene and replace
the appellant in a Board appeal because the surety could not have brought
the original complaint on its own since the appeal was taken before
the surety entered into a settlement agreement with the Government.
Subsequently, the surety's petition for rehearing en banc was
denied by the court, over an extensive dissent.
In
Premier Office Complex of Parma, LLC, a case involving
contract interpretation, the CAFC affirmed the
prior CoFC decision granting
summary judgment in favor of the Government, holding that,
while one provision in a basic lease document might be
ambiguous, the language of Amendment #1 to that lease
agreement was not, and the amendment required Level II
Security for the "Project," i.e., the entire
project.
In
Secretary of the Army v. Kellogg Brown & Root Services, Inc.,
a decision it labels as nonprecedential, the court affirmed the
ASBCA's decision awarding the contractor breach of contract damages in
the form of its costs for private security forces after the Government failed
to fulfill its contractual obligations to provide security for
the contractor's employees in the Iraq war zone. The court agreed
with the Board that the Board had jurisdiction over
the contractor's claim even though it had not first been submitted
to the Contracting Officer because it was an affirmative defense to
the Government's prior material breach of the contract in withholding
the costs incurred by the contractor in hiring private security forces.
The court also held that the Board
properly determined that interest should began to run from the dates
the
contractor had submitted properly certified quantum claims to the Contracting
Officer because there is no requirement that
a contractor state in a claim
the legal theory upon which it ultimately recovers in order to start
the running of interest.
In
Bechtel National, Inc., the CAFC affirmed the
prior CoFC decision holding that the CAFC's precedent in
Geren v. Tecom
precluded reimbursement
of the costs
the contractor incurred in defending
two sexual and racial discrimination
and retaliation suits brought by former employees.
In
Secretary of Defense v. Northrop Grumman Corp., the CAFC, inter alia, denied the Government's appeal from
a
prior ASBCA quantum decision because substantial evidence supported
the ASBCA's
conclusion that the Government had suffered
no damages as a result of the contractor's noncompliance with the accrual methodology
required by FAR 31.205-6(o). Specifically, a negative amendment to
the contractor's PRB plans effectively eliminated the disputed PRB costs from its transition obligation such that those costs were never
(and will never be) charged to the Government.
In
Raytheon Co., the CAFC affirmed
the
prior ASBCA decision that salary costs for lobbying activities are expressly unallowable under FAR § 31.205-22.
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