In
CSI Aviation, Inc., a decision in which the CBCA noted that both
the procedural posture of the dispute and the applicable legal standard
were "unusual" ("bizarre" might be nearer the mark), the Board
held, on cross motions for summary judgment, that a
contractor's terms and conditions had not been
incorporated by reference into a government contract because "there is at least room for doubt as to the answer to that question."
In
Ahtna Constr. & Primary Products Co., LLC, the CBCA: (i) dismissed
a Type I Differing Site Conditions claim because the contract made no representations
as to the subsurface conditions at the work site and because it was foreseeable that frozen earth and material might be encountered
there;
(ii) denied the Government's motion to dismiss a defective specifications claim,
holding that it was
not merely a recast of the differing site conditions claim; and (iii) denied
the
Government's motion to disallow an amendment to the complaint because,
contrary to the Government's contentions, it did
not include operative facts not present in the original claim to the
Contracting Officer.
In
Ahtna Constr. & Primary Products Co., LLC, the CBCA: (i) dismissed
a Type I Differing Site Conditions claim because the contract made no representations
as to the subsurface conditions at the work site and because it was foreseeable that frozen earth and material might be encountered
there;
(ii) denied the Government's motion to dismiss a defective specifications claim,
holding that it was
not merely a recast of the differing site conditions claim; and (iii) denied
the
Government's motion to disallow an amendment to the complaint because,
contrary to the Government's contentions, it did
not include operative facts not present in the original claim to the
Contracting Officer.
In
Wise Developments, LLC, the CBCA denied the Government's motion to dismiss
an appeal from a default termination
as untimely because the Government's termination letter was not a "final
decision," neither labeling itself as such nor notifying the contractor
of its appeal rights.
In
SkyQuest Aviation, LLC, the ASBCA held that: (i) a contractor's appeal from
a termination for default alleged only that
the Government had not met its burden of proof and, therefore, was not an
affirmative defense and did not require an initial claim to
the Contracting Officer;
(ii) the Board lacked jurisdiction over a non-monetary claim in excess of $100,000;
and (iii) the Board also lacked
jurisdiction over a claim for an allegedly defective CPAR absent evidence
the claim had first been presented to the Contracting Officer for
a decision.
In
Lockheed Martin Corp., the ASBCA dismissed a
claim for declaratory relief because there was no "live
dispute" between the parties.
In
Hudson General Contractor, Inc., the CBCA dismissed an appeal for lack of standing because
the contractor had
been administratively terminated as a corporation under state law and
subsequently had been permanently dissolved with no right to
reinstatement.
In
Globe Trailer Manufacturing, Inc., the ASBCA held that, while the contractor's original termination settlement proposal (TSP) was not a claim, its TSP supplement, which the contractor's counsel had submitted to the Government's counsel who had forwarded it to the Contracting Officer, was a CDA claim because the cover email noted that the contractor's attorney had
"attach[ed] the supplemental materials reflecting the sum certain sought in Globe’s constructive change claim, along with a certification of the updated amount. Globe’s constructive claim was included in its June 2017 TSP and also addressed in its most recent Position Statement provided to the government on February 4, 2020 (which I’ve attached here as well for your convenience). . . . We look forward to receiving the Contracting Officer’s Final Decision on or before July 13, 2020.
"
In Transdev Services, Inc.,
which involved a non-CDA contract, the ASBCA denied the Government's motion to dismiss
appeals for lack of a Contracting Officer's decision because the
Contracting Officer had not issued decisions on the claims within a
"reasonable" time (in this case a bit more than 4 months).
In
Mubashir Ali, the CBCA held it lacked jurisdiction over an appeal from
a default termination because the agency
had converted it to a termination for convenience.
In BAE Systems Ordnance Systems, Inc.,
the ASBCA denied the Government's motion to dismiss an appeal as untimely
because the
contractor had explicitly and consistently declined to request a
Contracting Officer's decision on its various REA submissions over a
lengthy period of back-and-forth correspondence with the Contracting
Officer so that, even considering the CAFC's holding
in the
Hejran Hejrat case, these REAs had not been converted to a claim
until the contractor explicitly submitted a claim for a decision by
the Contracting Officer.
In
GSC Construction, Inc., the ASBCA denied the
Government's motion to dismiss, holding that the Board would not be required to
make factual determinations concerning the Governments' allegation of fraud
in order to resolve the issue on appeal, which was simply one of contract
interpretation.
In
L3 Technologies, Inc., over a dissent arguing that the mootness exception should apply,
the ASBCA dismissed appeals from three Contracting Officer's final decisions as
moot because the decisions had been withdrawn and the Government
averred that they would not be reissued for any of the contract years
they had covered, which
meant neither the "voluntary cessation" exception nor the "capable of repetition yet evading review"
exception to the mootness doctrine applied.
In
Blanchard's Contracting, LLC, the ASBCA held it lacked
jurisdiction over: (i) a claim involving the contract drawings that arose from different operative facts
than those previously presented to the Contracting Officer for a
decision; and (ii) a delay claim that involved different allegations
and covered a different time period from the claim presented to the Contracting
Officer.
In
URS Federal Services, Inc., the ASBCA
(i) struck a claim for breach of implied duty of good faith and fair
dealing from the Complaint because it had not been presented to the Contracting Officer
and (ii) dismissed claims for unpaid invoices because they were not submitted
to the Contracting Officer within six years of the date they accrued.
In
GSC Construction, Inc., the ASBCA denied the
Government's motion to dismiss, holding that the Board would not be required to
make factual determinations concerning the Governments' allegation of fraud
in order to resolve the issue on appeal, which was simply one of contract
interpretation.
The ASBCA dismissed an appeal by
Northrop Grumman Corp. for lack of jurisdiction because the letter from
the Contracting
Officer on which the appeal was based was merely a response to an
earlier letter from the contractor and did not demand
anything at all from the contractor, did not identify itself as a
decision, and did not notify the contractor of its appeal rights.
In
Vanguard Business Solutions, the CBCA denied the Government's motion to dismiss for lack of
jurisdiction because the appellant alleged a breach of the
contract identified in the Contracting Officer's message to the appellant
stating "[y]ou have been awarded a contract," not, as the Government contended
at the Board, a bill of lading.
In
Nauset Constr. Corp., the ASBCA held that: (i) where
the Contracting Officer alleged that claims
involved fraud only after the contractor had appealed a deemed denial to
the Board,
the Board retained jurisdiction because a Contracting Officer cannot by
unilateral action deprive the Board of jurisdiction once it has attached;
and (ii) the contractor failed to establish that it had been prejudiced by
the Contracting
Officer's failure to include the notice of the 90-day appeal period in
a decision terminating a contract for default because the record showed
the
contractor's attorney had researched the issue extensively
at the time. Subsequently, the Board
denied the contractor's motion for reconsideration.
In
Arthur Jean Pierre, the CBCA dismissed an appeal from a default termination because it had been converted
to a termination for convenience, rendering the appeal moot.
In
Kamaludin Slyman CSC, the ASBCA held, inter alia, that:
(i) the
portions of consolidated appeals alleging a breach of the duty of good faith and fair
dealing must be dismissed because they had not previously been submitted to the
Contracting Officer for a decision; (ii) a claim that was not
certified for more than six years after it accrued must be dismissed
as outside the limitations period; (iii) the contractor could
not
cobble together statements from various portions of its claim (none of
which made one of the assertions required by the CDA) to form an implied
certification; and (iv) the Government was not required to notify contractor of
the lack
of a certification so the Government's silence could not constitute equitable
tolling of the limitations period.
In Satterfield & Pontikes Construction, Inc.,
the ASBCA denied the
Government's motion to dismiss an appeal from a default termination because
the Contracting Officer's decision withdrawing the default termination
decision was not unequivocal, and, regardless of the existence of a
settlement agreement between the parties, triable issues of fact remained
as to
whether the Government had breached its implied duty of good faith and
fair dealing.
The ASBCA dismissed an appeal by Najmaa Alshimal Co. for lack of
jurisdiction because the contractor's claim to the Contracting Officer did not
include a sum certain (indeed did not include any amount).
In
Art Property Assocs., LLC, et al., which involved many consolidated appeals,
for each appeal, the CBCA addressed the contractor's
allegations that the CDA limitations period had expired by
analyzing whether the unilateral supplemental lease agreements issued by
the GSA to the various contractors
constituted a Contracting Officer's decision on a government claim for
reimbursement of overpayment of taxes by resolving all issues of liability and of damages administratively, rendering the case ripe for judicial review.
The CBCA also
denied all the contractor's claims for other than CDA interest.
In ECC International Constructors, LLC, the ASBCA dismissed discrete,
monetary sub-claims for lack of jurisdiction because the contractor only specified one, bottom-line sum certain
for the total of its claim as a whole. Subsequently, the Board
denied the contractor's motion for reconsideration.
In Halbert Constr. Co.,
the ASBCA, inter alia: (i) denied a
motion to dismiss for failure to state a claim because reading the
Complaint together with the underlying claim to which it refers
demonstrated that the contractor had pled allegations which, if proven,
would establish a breach of contract; and (ii) denied a motion to dismiss because
the theories of recovery presented on appeal arose from the same operative
facts as those on which the original claim was based.
In
JAAAT Technical Services, LLC, the ASBCA held, inter alia,
that: (i) the contractor had failed to convert several REAs that were
clearly, and repeatedly labeled as such, into claims, especially where
the contractor, by converting another REA into a claim, had
demonstrated that it
knew how to do so; (ii) the contractor failed to certify certain submissions to
the Contracting Officer that exceeded $100,000, and, therefore, the
Board lacked jurisdiction over appeals involving those submissions;
(iii) the Contracting Officer's
unilateral mod reducing the contract price by a specific amount after
the parties were unable to agree on (and disputed) the contents of
the punch list
constituted a government claim, and the mod's failures to identify
itself as a Contracting Officer's decision and to notify the
contractor of its appeal rights, plus the Government's actions after
publishing the mod all combined to excuse the contractor's failure to
appeal it within 90 days; (iv) the Government's motion for summary
judgment on certain other claims was meritorious because the contractor
had executed a
document releasing those claims.
In
Knight's Constr., the CBCA denied the Government's motion to dismiss
an appeal from a default termination as untimely because
the agency repeatedly had provided the contractor with erroneous information
concerning where to file appeal until "finally, on the last day of the filing period (.
. . at 5:25 p.m. EST), via email, [the agency] provided [the contractor] with a link to the Board’s website
[and a statement] that the Board’s website included information on e-filing."
In Lockheed Martin Aeronautics Co.,
over a dissent, the ASBCA held that a more than 30 year old
precedent (Bell Helicopter Textron, ASBCA No. 35950, 88-2 BCA ¶ 20,656,
aff’d on mot. for recon., 88-3 BCA ¶ 21,048) remains good law, and a unilateral definitization
action by the Contracting Officer setting the price for undefinitized contract action is not a government claim and, therefore, cannot be appealed directly by a contractor, which must, instead, submit its own claim for a decision by the Contracting Officer.
In another Lockheed Martin Aeronautics Co.
case, the ASBCA held that laches
cannot be used by the Government as an affirmative defense to
shorten the CDA's six-year limitations period for filing a claim.
In
Ultra Electronic Ocean Systems, Inc., the ASBCA denied the Government's motion to dismiss
an appeal from a default
termination and held, inter alia, that: (i) the Government's letter stating that it was a
"notice of intent to terminate for default" was a Contracting
Officer's final decision even though it lacked a notice of the
contractor's appeal rights because it also stated: "effective immediately and in accordance with the default and termination subject contract clauses [],
[the contractor] is notified that the Government hereby exercises its right to terminate the contract in whole";
(ii) the contractor's statements in its appeal letter
challenged the default termination and were not required also to aver
that the
termination should be converted to one for convenience; and (iii) the
contractor's statement in the appeal letter that the Government should
file the Complaint did not in any way vitiate the appeal.
In
Northrop Grumman Mission Systems, the ASBCA denied
the contractor's motion to dismiss counts in the Government's
Complaint for expressly unallowable costs, holding that; (i)
FAR 31.204(d) does not require the Contracting Officer
first to determine whether expressly unallowable criminal legal costs
can be apportioned between the cost principles at FAR
31.205-15 and 31.205-47 before he can seek their recovery;
(ii) the Contracting
Officer's omission of the word "expressly" in one part of
his decision did not
mean that Count Two in the Complaint involved a different claim because
that count was based on the same operative facts; and (iii) Counts Three and
Four
of the Complaint were more accurately characterized as allegations
that the contractor lacked a defense to
Count One.
In
Betance Enterprises, Inc., the ASBCA dismissed (for lack of jurisdiction) appeals involving claims in
excess of $100,000 whose certification was unsigned.
In
Cherokee 8A Group, the CBCA dismissed (for
lack of jurisdiction) an appeal filed at the CBCA 720 days after receipt of
the Contracting Officer's decision because the decision (without being more
specific) stated that the contractor could appeal to "the board of
contract appeals," which was adequate notice, and the Government's failure to respond to
the contractor's inquiries as to whether it had sent its appeal
to the right location (it had not) was irrelevant.
In
Anthony and Gordon Constr. Co., the ASBCA denied the Government's motion to dismiss
an appeal for lack of jurisdiction, holding that,
although the method of calculating damages in the Complaint differed from that
presented in the claim to the Contracting Officer, both were based on the same
set of operative facts.
In
RocJoi Medical Imaging, LLC, a case involving contract
interpretation, the CBCA held that a task order document issued under ID/IQ
contract did not order services but only obligated funding against which
the contractor was to invoice when services were ordered.
In
Alares LLC, the CBCA denied the Government's motion to dismiss an appeal filed under the name of
a company that had novated the contract to another firm and allowed
the
appellant to amend its pleadings to substitute the name of the correct firm.
In
Passaran Noori Constr. Co., the ASBCA dismissed an appeal because
the underlying claim had not been filed until more than a decade
had passed since the no-cost
termination on which it was based.
In
U.S. Pan American Solutions, LLC, the ASBCA denied the Government's motion to dismiss
an appeal from a termination notice
as untimely because the original notice contained an error (referring to
the termination as one for convenience) which the Contracting Officer
later corrected in a revised notice, thereby causing confusion as to when the appeal
period should begin to run.
In
Huffman Constr., LLC, the ASBCA denied the Government's motion to dismiss portion of
the Complaint for
lack of jurisdiction, holding that the allegations in the Complaint
were based on the same
operative facts as those previously presented to the Contracting Officer.
In
BNN Logistics, reviewing multiple cross motions for partial
summary judgment, the ASBCA, inter alia, granted partial summary judgment
in favor of the Government because the contractor had failed to file
claims regarding certain disputed invoices within the CDA's 6-year
limitations period.
In
Penna Group, LLC, the ASBCA held that:
(i) the contractor's clear request for a Contracting Officer's final decision
in what the contractor labeled an REA (reaffirming that label in
response to a query from the Contracting Officer) meant the submission
was a "claim" regardless of the contractor's characterizations; (ii)
the DoD REA certification language in the "claim" was correctable and was
corrected by an affidavit that was submitted after negotiations on the
"claim" had reached an impasse; (iii) the Board lacked jurisdiction over
an appeal of
a claim that was essentially the same as an earlier claim that had
been denied but which had not been appealed; and (iv) the Contracting
Officer's decision was "final" and not, as the contractor alleged,
dependent on the outcome of either the Board appeal or a DOL investigation.
In
4K Global-ACC Joint Venture, LLC, the CBCA denied the Government's motion to dismiss appeals whose
monetary aspects had been resolved by a settlement agreement because that
agreement clearly provided they would remain on the docket until two
other, related appeals were resolved.
In
Anglin Consulting Group, Inc., the CBCA held that: (i) it lacked
jurisdiction over a claim that the Government had failed to follow its in-sourcing
policy because that claim had not previously been presented to the Contracting Officer;
and (ii) the contractor could present allegations of duress
and breach of the duty of good
faith and fair dealing in response to the Government's affirmative defense
of accord and satisfaction but must first present them to the Contracting
Officer if it also wished to pursue them as affirmative claims.
In
Siemens Government Technologies, Inc., the ASBCA denied the Government's motion to dismiss
the appeal for lack of jurisdiction
because the appellant had made a non-frivolous allegation of the
existence of a contract with
the Government and the Government's contention that no such
contract existed would be decided as part of the merits of
the appeal.
In Hallym Furniture Industrial
Co., Ltd., the ASBCA dismissed an appeal for
lack of jurisdiction because it was based on claims that a blanket purchase agreement
(BPA) should be reinstated or that the appellant should
recover various costs arising from cancellation of the BPA,
but blanket purchase agreements are not
contracts.
In BAE Systems Land & Armaments L.P.,
the ASBCA held that the affirmative defense of laches is not available in CDA cases because
of the legislatively enacted six-year limitations period.
In
D-STAR Eng'g Corp., the ASBCA granted the
Government's motion to dismiss a portion of an appeal seeking a "penalty" at
6 per cent per annum against the Government under the Debt Collection
Act because that Act provides only for penalties assessed against contractors,
and the contractor's request was for punitive damages over which the Board
lacks jurisdiction.
In
Tactical Network Corp., the ASBCA granted the
Government's motion to strike the appellant's requests that the Board
order the Contracting Officer not to take further actions and to
accept the contractor's deliverables because both requested specific
performance or injunctive relief, which the Board lacks jurisdiction to
grant.
In
Joseph-Allen Davis, the CBCA held it lacked
jurisdiction over a dispute where the appellant did not allege the existence of
a contract with the Government, had not filed a claim with the Contracting Officer, and
was not appealing from a Contracting Officer's decision.
In ACC
Constr. Co., the ASBCA: (i) refused to
strike allegations from an amended complaint that were mere refinements
of statements in the original complaint following discovery, even though the contractor
did not seek leave to amend; but (ii) struck a new material factual allegation
in the amended complaint that had never been presented to the Contracting Officer.
In
NUES Inc., the CBCA held, inter alia, that: (i) increasing the amount
claimed in the appeal over the amount of the original claim did not divest
the Board
of jurisdiction because the revised amount did not involve a new claim
but rather was based on the same operative facts as the
original claim; and (ii) because the originally claimed amount was
less than $100,000, it need not be certified even though the revised amount
exceeded $100,000.
In
Globe Trailer Mfg., Inc., the ASBCA granted the Government's motion to dismiss
the contractor's constructive change claims because: (i) valid claims based on
a sum certain were not brought within the six-year limitations period, which was not extended by the fact that the parties were also attempting to negotiate a termination settlement proposal;
(ii) there was no equitable tolling of the limitations period because no extraordinary circumstance
had prevented the contractor from filing timely claims; and
(iii) the Board disagreed with the CoFC's statement in
Lodge Construction, Inc. that filing
a defective pleading within the limitations period is
sufficient for equitable tolling.
In
ECC International Constructors, LLC, the ASBCA dismissed portions
of the appeal because they were based on materially
different, unrelated sets of operative facts and, therefore,
constituted separate claims that had not previously been
presented to the Contracting Officer with sums certain.
In
AECOM Technical Services, Inc., the ASBCA denied the Government's motion to dismiss for lack of jurisdiction
because the appellant had made a non-frivolous allegation of the existence of
a contract with the Government, and the Board has jurisdiction over a
claim for tortious breach of contract as opposed to a claim for an
independent tort.
In
StructSure Products, Inc., the ASBCA denied the
Government's motion to dismiss because the company's chief executive
officer notified Board after the appeal was filed that (i) the company's
project manager had the authority to file the notice of appeal on
behalf of the company, and (ii) the subcontractor's attorney was properly
representing the contractor before the Board pursuant to a waiver of
conflict-of-interest agreement in the subcontract in a situation where
the prime was sponsoring
the sub's claim.
In
Kellogg Brown & Root Services, Inc., the ASBCA denied the Government's motion to dismiss because:
(i) by timely appealing
the Contracting Officer's decision denying the contractor's claim, the
contractor effectively also appealed any affirmative government claims
that were allegedly embedded in that decision; (ii) the Contracting Officer's
decision did not contain valid claims for recoupment of provisional
payments or liquidated damages because there was no sum certain, just
a reservation of a right to collect on these issues in the future; and
(iii) in the totality of the circumstances of
this case, the
Government's demand letters constituted claims even though the demand
letters were not
identified as Contracting Officer's decisions, and the contractor had timely
appealed them. In sum, the Board concluded that the contractor had "timely appealed every document that could be construed as a contracting officer’s final decision on these government claims."
In
OWL, Inc., the CBCA dismissed a claim for
the reduced amount of services ordered due to the pandemic because, although the
parties intended to have established an indefinite quantity contract, it
was illusory (lacking a guaranteed minimum). In another
OWL, Inc. decision published the same day, the CBCA dismissed
another claim for
a reduced amount of services ordered under a requirements contract due to
the pandemic because the pandemic had effectively reduced the Government's
requirements, i.e., the Government had not ordered less than
its requirements.
In Left Hand Design Corp.,
the ASBCA denied the Government's
motion to dismiss an appeal for lack of jurisdiction, holding that the
notice quoted below, filed by
an administrative assistant at the pro se contractor: (i) expressed a present intent to appeal; (ii)
was sufficient to identify which two Contracting Officer's decisions
the contractor
intended to appeal; (iii) expressed dissatisfaction with the decisions; and (iv)
was submitted by a person who was authorized to file the appeal on behalf of the
contractor:
[Appellant] requests an extension to
the deadline of 17 April 2020 regarding Contracting
Officer’s Final Decision and Demand for Payment of
Debt. An appeal is intended regarding this final decision
made by our Contracting Officer, Ms. Andrea Arapkiles. List of Contracts: N00014-10-C-0306
[and] FA8651-08-C-0155.
In
Central Diversified Contracting, LLC, the ASBCA held that, although
the contractor failed to present sufficient evidence to prove
its alleged delay damages or administrative hours, the Contracting Officer's interpretation of
a modification as
"all-inclusive" was overly broad and inconsistent with the language of
the modification and conflicted with his own prior actions concerning
the situation. Subsequently, the Board
denied the contractor's motion for reconsideration.
In
Harry Pepper & Assocs., Inc., the ASBCA dismissed the count
in the contractor's complaint alleging cardinal
change because the disputed work was not "fundamentally beyond what
the parties contracted for.
In
Brantley Construction Services, LLC, the ASBCA held that: (i) the contractor could
not recover extra costs associated with an allegedly
defective design specification because it did not rely on that
specification in preparing its bid; and (ii) similarly, the contractor also failed to prove
it relied on other issues in preparing its bid that it later claimed
gave rise to constructive changes.
In
General Dynamics--National Steel and Shipbuilding Co., the ASBCA
held that, contrary to the Government's contentions, neither
the contract
nor the contractor's bid contained any indication that the contractor was
responsible for performing the work that it now claims was extra work.
In
1425-1429 Snyder Realty, LLC, a decision involving contract
interpretation, the CBCA denied the Government's motion for summary judgment because
genuine fact issues were yet to be resolved concerning,
inter alia, the parties' intentions in signing
a supplemental lease amendment and the meaning of that amendment.
In
Carothers Construction, Inc., the ASBCA sustained the appeal
because the Government had improperly refused to even consider
the contractor's persuasive
evidence submitted pursuant to FAR 52.236-5 (Material and Workmanship)
that the 2" deck material it proposed was equivalent to the
proprietary 2 1/2" decking specified in the contract.
In
Dawson & Douglas Inc., the CBCA held that the Contracting Officer
(i) had
a rational basis for rejecting the contractor's
proposed changes to the contractually-specified logging methods and (ii) did not
breach the implied duty of good faith and fair dealing in refusing to
extend the period of performance and assessing damages
against the contractor.
In
Allied Meridian Funding LLC, the CBCA denied an appeal by the assignee of contract payments because
the Government had
not received notice of the assignment when it made the disputed payments to
the contractor.
In
ECC International LLC (a case involving contract interpretation
of an issue the ASBCA described as one of first impression
at the Board) although the Government's failure to provide certain
personnel required of it by the contract was a change, it was not a
compensable
change because the responsibilities the contract assigned to those
personnel did not affect the contractor's work or its costs of
performance, and the contractor had failed to inquire concerning its
differing interpretation of the contract provision and did not prove it
had relied on
that interpretation in preparing its proposal.
In
David Boland, Inc., the ASBCA:
(i) denied a Type I differing site condition claim because the contractor
failed to establish that the contract indicated the claimed condition existed;
(ii) denied a Type II differing site condition claim because
the contractor
failed to show that the actual physical conditions encountered at the site differed from the known and usual conditions
there; and (ii) denied a constructive change claim because
the contractor failed to show
that the Government directed changed performance.
In
1125 15th Street, LLC, the CBCA held, inter alia,
that the lessor
was entitled to holdover rent for the period during which the Government had
left security personnel in the leased premises even after the
Government's employees had vacated the
premises.
In
Microtechnologies, LLC dba Microtech, the CBCA held that the contractor failed to prove
any of the elements of its claim, including its allegations
that: (i) it had supplied software maintenance to
the Government under an option exercise that was terminated for convenience
after only 12 hours of having been erroneously issued, or (ii) it
was entitled to any costs of the maintenance.
In
Glen/Mar Construction, Inc.,
the CBCA held the contractor's delay claim was barred by the terms of
a bilateral release.
In
S & DF Properties, LLC, the CBCA held, inter alia, that
extrinsic evidence could not be used to vary an unambiguous
provision in a lease
interpretation regarding the appropriate year to use as a tax
base.
Subsequently, the Board
denied the contractor's motion for reconsideration.
In
John Shaw LLC d/b/a Shaw Building Maintenance, the ASBCA held that
the contractor had failed (i) to establish that the Government's
payment practices breached the implied duty of good faith and fair dealing
or (ii) to show how the contractor's various claimed items of damages were
connected with, or resulted from, the alleged breach.
Strategic Alliance Management JV, LLC is one of several appeals
denied by the CBCA as a result of decisions involving
contract interpretation of the same issue by both the
CBCA in Purdy Enterprise, LLC and the
CAFC
in
P. K. Management Group, Inc., holding that the contractors were not entitled to payment for
routine inspections of custodial properties under field management
contracts.
The CBCA denied claims by
Meridian Global Consulting, LLC, which sought recovery when the agency
ordered fewer hours than estimated
in a labor hour contract, finding that: (i) the estimates were not guarantees;
and (ii) there was no evidence that
the method for preparing the estimates was faulty or that the
estimates were unreasonable
or that the Government had superior knowledge concerning their inaccuracy.
In
Valor Healthcare, Inc., the CBCA granted the Government's motion for
summary judgment and denied an appeal of a claim based on
alleged
superior knowledge or negligent estimates because the contract was
an indefinite quantity contract, not a requirements
contract.
In
Intellicheck, Inc., the ASBCA held that the Government's actions
under a task order with the prime contractor (which was
teaming with a subcontractor) did not establish an implied-in-fact contract
between the Government
and the subcontractor.
In
Hamilton Pacific Chamberlain, utilizing small claims procedures,
the CBCA adopted the contractor's interpretation of a disputed detail in construction
contract drawings because the VA failed to present any persuasive
evidence in support of its contrary interpretation.
In
Standbuy Distributors, Inc., the ASBCA held that the Government had waited too long before revoking acceptance of the contractor's
laser range finders.
In
Michael Johnson Logging, which involved a timber sales contract, the
CBCA,
inter alia: (i) denied the contractor's claim that
the Government had breached the implied duty of good faith and fair dealing
in its administration of the contract regarding skid trails because the
claim was (a) inconsistent with the plain requirements of the contract, (b) unsupported by evidence beyond vague assertions, and (c) often
contradicted by actions occurring during performance; (ii) denied the claim that
the Government had mismanaged the contract regarding landing sizes because it
was
unsupported, and often contradicted, by the evidence; (iii) held that partial suspensions of
the contract work were justified by the contractor's failures to understand and
follow the contract requirements; but also (iv) held that the Government
had breached the contract by grossly
overcharging the contractor for extension deposits to such an extent that
its operating capital had been "eviscerated," entitling it to lost profits.
n AICI-Archirodon JV,
on cross motions for summary judgment, the ASBCA (i) held
for the Government on the issue of entitlement because the contractor failed to comply with the contract by
using a foreign-flag vessel without authorization, but (ii) held that the record
was not sufficiently
developed to determine quantum.
In
Odyssey International, Inc., the ASBCA granted the Government's
motion for summary judgment because the contractor had released
its claims in
a bilateral modification, and the contractor's employee's characterization of
the mod as a "trick, trap, or typo" after the Government had denied
the contractor's REA did not create a material factual dispute.
In
13151 W. Alameda Parkway, LLC, the CBCA held that the lessor had failed to submit
its invoice for increased real estate taxes
within the time period required by a lease provision, and the Government
had not
waived that requirement.
In
Mission1st Group, Inc., the ASBCA held that:
(i) an option to extend services pursuant to FAR 52.217-8 is not limited to
use only after other options have been exercised but may be exercised
at the conclusion of the base period; (ii) the contract requirement that
the Government
exercise the option to extend services "within 90 days before expiration
of the contract" did not mean “prior to or on the 90th day before the contract expired”
as the contractor contended, so that the option exercised 4 days before the contract
expired was a valid exercise; and (iii) even if the option exercise had been
improper, the contractor had waived its right to object by signing subsequent
bilateral modifications.
In
MLB Transportation, Inc., the CBCA dismissed an appeal involving a
claim for certain costs after the Government ordered fewer
services than expected because, although the contract
was intended to be an indefinite quantity contract, it lacked a guaranteed minimum
quantity and, therefore, was
illusory, meaning the "contractor" could only recover for services actually
performed.
In
Gulf Pacific Contracting, LLC, over a dissent, the ASBCA held that FAR 52.222-30 ("Construction Wage Rate Requirements--Price Adjustment
(None or Separately Specified Method)"), which was incorporated by
reference in the contract, is unambiguous and enforceable and precludes the contractor
from obtaining wage rate adjustments for increased wage determinations
made after contract award.
In
3 Crescent Drive Owner I, LLC, et al., the CBCA dismissed
an appeal asking that the
Government/tenant be compelled to vacate leased space because: (i) at
the date of the underlying claim, the appellants were not contractors;
and (ii) a novation and lease amendment (a) waived any prior claims and
(b) resurrected the lease, such that the Government was not a holdover
tenant.
In Munck Asfalt, A/S,
which involved contract
interpretation, the ASBCA denied a constructive change claim for encasing conduit
in concrete, in part because the contract used the terms "duct" and "conduit"
interchangeably.
In Skanska USA Building, Inc.,
the ASBCA granted the Government's motion for summary
judgment denying a
constructive acceleration claim because the contractor had not timely or
sufficiently requested a time extension and, therefore, the Government
had not improperly
denied any such request.
In
Sauer, Inc., the ASBCA held, inter alia, that: (i) where
the contract
stated that only the Contracting Officer had the authority to make changes,
the Government's mechanical engineer for the project did not have
the authority to
approve variations from task order requirements; (ii) there was no evidence that
the Contracting Officer had waived the contract requirements, and observations by
other government personnel on site could not establish waiver;
(iii) the contractor's use of PVC rather than cast iron pipe did not
substantially comply with the specifications and, therefore, the Government's
direction to the contractor to replace PVC with cast iron pipe was not
economically wasteful; and (iv) the contractor was not entitled to extended overhead
for the time it chose to wait hoping the Government would change its
position on the requirement to used soldered rather than press-on fittings.
In
Heroes Hire LLC, which involved, inter alia, an allegedly
improper assignment of claims as a defense to a default
termination, the CBCA held that: (i) it lacked
jurisdiction to grant the "emergency relief" of immediately voiding payments
under the assignment of claims and directing where payment should go;
and (ii) FAR 32.805(e)(3) requires the assignee to sign the release
of the assignment.
In
WECC, Inc., a decision involving delay and other claims in which
the ASBCA split the baby, the Board held, inter alia,
that: (i) the
contractor was entitled to delay damages for the delays it was able to
prove were caused by the Government,
but the Government was entitled to liquidated damages for additional delays that it did
not cause; (ii) the parties' actions following settlement agreement
mods, despite
the release language therein, indicated that the mods were not intended to
cover the claims for extended field office overhead involved in the
appeal; (iii) the contractor was not entitled to recover home office overhead using
the Eichleay
formula because it did not prove that "much, if not all, of the work on the contract" was effectively suspended;
and (iv) most of contractor's other, miscellaneous claim
elements were denied, mainly for lack of proof.
In
H2L1-CSC, JV, which involved contact
interpretation, the ASBCA held that: (i) a TO's Specifications unambiguously required
the removal and replacement
of gutters and downspouts on two roofs that were required to be replaced, even
though the Scope of Work was silent on subject; and (ii) none of the evidence
offered by the contractor established that the contract was ambiguous
on this point or that the Government ever agreed with the contractor's
contrary interpretation.
In
Lavender Co., the ASBCA denied an appeal involving a claim for
extra costs in a contract for laundry rental services of red shop rags
(which required the contractor to supply clean rags to various
government buildings and to pick up dirty rags, launder them, and
resupply them) because (i) the contractor's performance had been continuously subpar
in both cleaning the rags and delivering them on time and in the
required quantities and (ii) the record lacked evidence necessary to
quantify the alleged damages.
In
Harry Pepper and Assocs., Inc., the ASBCA, inter alia, denied
the contractor's claims for extra work and
delays related to defective welding because the contract's
requirements were unambiguous, the contractor failed to present
evidence that the Contracting Officer had ordered or authorized any
change to those requirements, and the contract placed on the
contractor the responsibility for inspecting its own work and for
providing conforming work, regardless of any government
inspections.
In
Vanguard Business Solutions, the CBCA denied the appeal because the evidence did not establish
that the Contracting Officer had
unambiguously accepted a firm's offer to provide charter aircraft services
and, thus, no contract had been formed.
In
Wu & Assocs., Inc., which involved contract
interpretation, the CBCA held that the Government's representation that skids could be used to
move heavy equipment across a raised floor was an unambiguous design
specification that was incorrect so that contractor was entitled to its
extra costs of fortifying the floor.
In
BES Constr., LLC,
the ASBCA: (i) denied a claim for a change to stucco color because
the contractor had requested it; (ii) denied a claim for a delayed notice to proceed because it resulted from a bid protest after which
the parties had entered into a "no cost" modification extending the start date;
(iii) denied a delay claim based on unusually severe weather because the weather was specifically cited in a "no cost" modification extending the contract dates;
and (iv) denied another delay claim because the delay was not mentioned in
the report of the contractor's delay expert and was supported only by affidavits of two individuals who professed no expertise in delay issues.
In
GCC Technologies, LLC, which involved contract interpretation,
the CBCA held that, when read as a whole, the contract
unambiguously provided that the contractor was to be
paid only for hours in which its employees were actually working on assigned
tasks, not for the time when they were simply on site waiting for
assignments.
In
Phoenix Management, Inc., another decision involving contract
interpretation, the CBCA held that the contract unambiguously required
the contractor to maintain
the custodial staffing levels it had stated it would provide in its proposal,
and the Government was entitled to take deductions from the contractor's payment
when it failed to maintain those staffing levels even absent a showing
that performance had been inadequate.
In
Weber Trucking LLC, the PSBCA held: (i) the Board lacked
jurisdiction over a claim whose amount the contractor had increased at the Board because the
increase was based on information readily available to the contractor at the
time it filed its original claim with the Contracting Officer; and (ii)
the Postal Service was
liable under theories of defective specifications and superior knowledge
(principal opinion) or longstanding agreements with the contractor
(concurring opinion) for the costs of route times and mail volumes experienced by
the contractor that exceeded those indicated in the contract.
The Board went to some length to describe the very poor
contract administration by the Contracting Officer that
resulted in the dispute.
In
Johnson Investors Limited Partnership, rejecting a plethora of
contract interpretation arguments by the contractor, the
PSBCA held that a lease agreement unambiguously placed responsibility for
the costs of
connecting the leased building to the city's sewer system (as required by a new city
ordinance) on the lessor because it was a capital improvement expense rather
than a routine maintenance expense. The Board also held that the city's
assessments for a reserve capacity charge and a processing fee
were reimbursable costs under the "Tax Rider, Reimbursement of Paid Taxes"
clause.
In
The Regal Press, Inc.,
the GAO's Contract Appeals Board partially sustained an
appeal of the GPO's denial of a claim for the
contractor's costs of reproducing letters as directed by the
White House and DHS:
In summary, we find that the government constructively changed the Print Order after
the contracting officer verbally approved the prior-to-production samples, and the
government then compelled Regal to reproduce the Presidential Letters conforming to
the revised text specifications under threat of a termination for default (and, thus, Regal
did not volunteer to perform the rework). On this record, we find that Regal is entitled to
recover its reasonable costs incurred as a result of the government’s constructive
change.
In
Hollymatic Corp., the ASBCA upheld a
termination for cause because, during bidding, the
contractor made material misrepresentations concerning the
acceptability of its offered product, the misrepresentations induced the
Government to enter into the contract, and the Government was justified in relying on the misrepresentations,
which rendered the contract void ab initio.
In
Prime Tech Construction LLC , the CBCA dismissed one appeal from an alleged
deemed denial of a claim as premature and
denied an appeal of a termination for default because the contractor failed to
provide evidence for its alleged excuses for failure to timely deliver. Subsequently, the Board
denied the contractor's motion for reconsideration.
In Sauer Inc.,
on cross motions for summary judgment involving a
construction project, the ASBCA held that: (i) a challenge to
the Government's
assessment of liquidated damages involves a government claim;
(ii) the Government has the burden of proving the date of substantial completion,
beyond which the assessment of liquidated damages is inappropriate;
(iii) Phases
I and II of this three-phase project were completed before the project's completion
date; (iv) "[a]ccordingly, completion of Phase III appears to be the only allegedly long pole left in what was by November 17, 2013, a considerably
. . . smaller tent"; (v) the Government failed to establish that
all three phases were functionally equivalent in importance;
(vi) there was insufficient undisputed evidence in the summary judgment motions to determine
the date at
which Phase III was substantially completed; but (vii) the Government cannot recover
the full daily liquidated damages rate stated in the
contract after the dates Phases I and II were
substantially completed. Subsequently, the Board
denied the Government's motion for reconsideration.
In
Odyssey International, Inc., having already held in
an earlier decision that the contractor was in default
due to its inability to obtain the required bonds, the ASBCA
held that: (i) there was no excuse for contractor's default
due to judicial admissions that the actions of two of its
officers caused its inability to obtain the required bonding; (ii) the Government
was
entitled to recover excess reprocurement costs equal to the difference
between the price of the defaulted contract and that of the
reprocurement contract; and (iii) the contractor's failure to perform justified
an "unsatisfactory" CPARS rating.
In
Powertronic Systems Florida, Inc., the ASBCA denied the contractor's appeal from
a default termination because none of
the plethora of excuses it advanced for its failure to make progress toward first article testing
had merit. Specifically, among several other excuses: (i) the contractor did not establish
that late delivery of GFE
prevented FA testing; (ii) a worldwide shortage of one type of material
was no
excuse where the contractor failed to establish it tried to locate
alternate sources; and (iii) the contractor's performance of other rated orders
was no excuse
where the contractor failed to establish it was prudent to take on the contract
work in the first place and where the contractor failed to follow established
procedures for handling conflicts between rated orders. Subsequently,
the Board
denied the contractor's motion for reconsideration.
In
CBRE Heery, Inc., the ASBCA denied the
contractor's claim for remission of liquidated damages, holding that
the contractor
had failed to establish that: (i) the Government had constructively changed the
contract by compelling the contractor to perform work not required by the
contract, (ii) enlarged the contractor's time of performance, or
(iii) breached the implied duty of good faith and fair dealing.
In Kostas Greek Food--Zorbas,
the ASBCA denied an
appeal from the default termination of a concessions contract because
the contractor failed to obtain
the necessary permits and equipment to allow it to begin performance within
the required time.
In
Masters Transportation, Inc., the CBCA upheld the partial default termination of
a delivery order contract for wheelchair vans, rejecting
both: (i) the contractor's claim
that the specification for the vans' wheelchair ramp was impossible of performance because
the contractor did not show that "it [had] explored and exhausted
alternatives before declaring the specifications defective and performance impossible";
and (ii) the contractor's unreasonable interpretation of the unambiguous ramp specification.
In
Nues Inc., the CBCA awarded the contractor a small portion of
its claimed costs in its settlement proposal following a
termination for convenience, but disallowed costs that: (i) were
unsupported; (ii) attempted to shift responsibility to the Government
for pandemic-related issues; (iii) were for work never performed or
previously paid for, or (iv) were based on a a claim that the Government
had breached the implied
duty of good faith and fair dealing (which it had not).
In
Raytheon Co. and Raytheon Missile Systems, the ASBCA held,
inter alia, that: (i) the Government had failed to meet its burden of
proof that certain costs of the contractor's Government Relations
department were unallowable lobbying costs and that challenged costs
of the contractor's Corporate Development Office were unallowable;
(ii) the contractor's outside patent legal costs were allowable and allocable;
(iii) the
contractor's policy regarding airfare travel costs was reasonable;
and (iv) recruitment reminder items costs were unallowable but not expressly
so. Subsequently, the Government's motion for
reconsideration was
denied.
In
Ology Bioservices, Inc., the ASBCA held that the Government was not entitled to assess
a penalty for expressly unallowable
executive compensation costs because OFPP had delayed publishing the relevant
fiscal year's cap for those costs and could not argue that
the preceding year's cap should be extended to cover the year in which the
publishing of the cap was delayed.
In
Metal Trades, Inc., the ASBCA held that the agency
had (a) improperly required cost data and used cost (rather than price)
analysis on a sole-source, small, fixed-price contract for purposes of
pricing a unilateral ratification and (b) used a mistaken figure for
profit.
In
SRM Group, Inc., the CBCA held that the contractor
had not proved its extra costs associated with alleged changes,
especially where it failed to explain multiple differences in both
methodologies and amounts in five expert reports it had submitted to
support its claims. Subsequently, the contractor's motion for reconsideration
was
denied.
In
URS Federal Support Services, Inc.,
which was limited to the issue of quantum, the ASBCA reduced
the contractor's claim because it had failed to
provide cost data and negotiate the change amount as required by the
prior Board decision partially in its favor on the question of entitlement.
In
Carmazzi Global Solutions, Inc., the CBCA denied the contractor's request to vacate
the Board's
decisions upholding terminations for default because the contractor's allegation
that its failure to respond to the Government's prior motions for summary
judgment was due to justifiable mistake, inadvertence, and/or excusable neglect
was ill-founded, the contractor's trustee in bankruptcy having directed
that course of action due to the low likelihood of success on the
merits.
In
Network Global Logistics, LLC, the ASBCA dismissed an appeal for failure to prosecute after
the
Government stated in a joint status report that "appellant’s counsel had authorized
[government counsel] to inform the Board that appellant
'has not
responded to [government] counsel’s repeated attempts to make contact,' and ‘seems not to be interested in taking action on this matter.’" In Eijad Shaher Construction Material Co.,
the ASBCA dismissed an appeal for failure to
prosecute after the contractor repeatedly failed to comply with, or reply
to, the Board's orders (a) to compel discovery and (b) to show cause
why the appeal should not be dismissed.
In
1425-1429 Snyder Realty, LLC, a decision involving contract
interpretation, the CBCA denied the Government's motion for summary judgment because
genuine fact issues were yet to be resolved concerning,
inter alia, the parties' intentions in signing
a supplemental lease amendment and the meaning of that amendment.
In
Sand Point Services, LLC, the ASBCA, inter alia, quashed
a discovery subpoena duces tecum directed to the contractor's surety
because it sought information obtainable from the contractor that
the Government had not exhausted its efforts to obtain directly.
In
Langdon Eng'g & Mgt., the ASBCA denied the
Government's motion for summary judgment because the
pro se contractor's
submissions were (barely) sufficient to establish a material issue of
fact concerning whether the government property it received complied with
the OEM drawings and, thus, whether the property was capable of being
refurbished by the contractor, as required by the contract.
In
Sage Acquisitions LLC, the CBCA denied the
contractor's unopposed request to redact monetary amounts from the Board's decision
because the parties had previously filed various pleadings containing
those figures without redactions or any indication of need for them.
In Sungjee Construction Co., Ltd., the ASBCA denied the contractor's motion for sanctions for spoliation of
evidence because the documents were destroyed in accordance with
an established document retention policy when litigation was not
reasonably foreseeable, without any culpable state of mind on the part
of the Government, and the contractor failed to prove they would have
been favorable to the contractor's position.
In
Interaction Research Institute, Inc., the ASBCA denied the Government's motion for summary judgment
(which alleged there was no
implied-in-fact contract) and held that the Government's inability to locate
a standard
form document ordering the training in dispute (which would have been
evidence tending to establish the implied
actual authority to form an implied-in-fact contract) did not
conclusively establish that the document did not exist especially where
the course of
dealing between the parties indicated that government officials with such authority
were involved in the situation.
In
Assist Consultants Inc., the ASBCA denied cross motions for summary judgment
concerning the propriety of a termination
for default. Although the Board rejected all of the contractor's
numerous arguments
challenging the Government's determination that the contractor had failed to
comply with the contract's bonding requirements, factual issues remained
concerning the contractor's contention that the Government had committed
a prior
material breach by failing to disclose superior knowledge. Subsequently, the Board
denied the Government's motion for reconsideration.
In
Shneez Veritas, LLC, the ASBCA denied the
contractor's motion for partial summary judgment because there were unresolved issues of fact concerning the scope of a release.
The ASBCA dismissed an appeal by
Central Machining Specialties because the appellant was not represented by
a person meeting
the requirements of Board Rule 15(a).
In
Corinthian-WBCM, a Joint Venture, the ASBCA granted the
Government's motion to compel the production of documents relied on by
the contractor in preparing its bid because the documents were relevant to
issues raised in the contractor's Differing Site Conditions and Changes
claims.
In
Quality Trust, Inc., the ASBCA denied the
Government's motion for summary judgment regarding the propriety of a default
termination because the statement of facts in the Government's motion
suggested, but did not discuss, facts that might bear on the question of impossibility of
performance.
In
Thomas J. Davis, Inc., the ASBCA denied the
contractor's motion to dismiss (as time barred) the Government's claim for
the contractor's allegedly defective design because there was a triable
issue of fact as to when the Government's claim accrued, i.e., when it
knew or should have known that the contractor's plans were defective.
In
Grand Strategy, LLC, the CBCA: (i) denied the
Government's motion for summary judgment that two requirements contracts
had expired after their base term because the record contained evidence
and admissions that created material factual disputes
concerning that issue, including the fact that the Government
had continued to place orders
in years after the base term; and (ii) refused to dismiss an allegation in
the Complaint that
the Government had violated the Veterans Benefits, Healthcare, and Information Technology Act of 2006 because that allegation was just evidence
for a claim presented to the Contracting Officer, not a new claim.
In
TIYA Support Services, the ASBCA granted the Government's motion to stay proceedings for six
months in four appeals due to parallel criminal investigations
involving similar facts, issues, and witnesses as those involved in
the board proceedings.
In
Active Constr., Inc., the CBCA held that, because it lacked
jurisdiction over a claim based on the alleged breach of the implied duty of good faith and fair dealing
that had not previously been presented to the Contracting Officer,
the Government could not be required to produce documents
related to that claim. The Board noted that the fact that the contractor had mentioned another
of the implied duties in its original claim was not sufficient to
cover all implied duties.
In
J.R. Filanc Constr. Co., which involved multiple discovery
disputes, the ASBCA held, inter alia, that: (i) the Government
could not not wait until the conclusion of discovery to
respond to the contractor's contention interrogatories; (ii) the Government must
provide more information than simply page numbers from the Contracting
Officer's decisions in response to the contention interrogatories;
and (iii) the Government was not required to revise its responses to requests for
admission that were in the passive voice and included multiple
statements in a single request and, therefore, were unclear.
In
Blue Rock Structures, Inc., the ASBCA denied the Government's motion for summary judgment because
there was a material
disputed fact (involving an ambiguous letter) over whether additional steel was
needed because of a differing site condition.
In
International Development Solutions, LLC, the CBCA denied cross motions for summary judgment because,
even after extensive discovery, "[s]o many of the parties’ proposed facts are genuinely disputed, unsupported, or
irrelevant to summary judgment."
In
Lockheed Martin Aeronautics Co., the ASBCA granted the contractor's request to require
the Government to provide
additional responses to interrogatories, holding that: (i) the Government could
not refuse to answer an
interrogatory simply on the basis that Government did not agree with the
theory of recovery that the interrogatory was meant to explore;
and (ii) the Government's boilerplate objections that interrogatories were "unduly
burdensome" were not sufficient to establish that the burden of
responding to the interrogatories was disproportionate.
In 4K Global-ACC Joint Venture, LLC,
which involved an appeal from a default termination, the
CBCA denied the Government's motion to strike the contractor's affirmative defense
that there was no completion date against which to judge the contractor's
alleged failure to make progress because the motion to strike was
untimely and unsupported by sufficient references to the record.
In
Zach Fuentes, LLC, the CBCA denied the contractor's demand for
payment (which the Board treated as a motion
for summary judgment) for delivery of KN95 masks because
of significant remaining disputes over how many masks were delivered, how many of
those were nonconforming, and whether the Government accepted the masks or
merely accepted delivery.
In Johnson Lasky Kindelin Architects, Inc..
for the benefit of IMEG Corp., f/k/a KJWW Engineering, the court followed the precedent of its own
earlier decision involving the same plaintiff and held it lacked jurisdiction over
a suit on a contracting officer’s decision finding that two, unrelated contractors
were jointly liable for the same injury and sum certain arising from alleged breaches of their respective, independent contracts,
in part, because the situation, if allowed to proceed, might allow the Government to seek
a double
recovery.
In
Bowman Construction Co., the court, examining a
former contractor's claims brought long after its default
termination, held that: (i) the contractor's claim for wrongful termination
was time-barred
because it was not filed until five years after the default termination,
which the contractor had failed to appeal; (ii) the court lacked jurisdiction over
the contractor's claim to recover the amount its surety had paid to
the Government as a
result of the termination because the Government had never asserted a claim
for excess reprocurement costs and the contractor, therefore, was not
appealing any Contracting Officer's decision on that subject (and the
contractor had confessed judgment on the surety's payment in
state court); (iii) the contractor's claims for
lost profits resulting from the termination and for home office overhead
must be dismissed because they had not previously been presented to
the Contracting Officer for a decision; (iv) the contractor's claim for unpaid invoices survived
the
Government's motion to dismiss because that claim involved issues that
occurred prior to
the unchallenged default termination; and (v) other claim elements
required further development of the record before they could
be addressed by the court.
In
6601 Dorchester Investment Group, LLC, the court dismissed the Complaint for failure to state a claim
because the plaintiff failed to allege any specific facts to establish
that it had a valid and enforceable contract with the Government.
In
Silver State Land LLC, which was a suit based on the Government's breach of
an express contract to sell land to the plaintiff by failing to convey
the land, the court held that the plaintiff's
acceptance of the refund check
for the purchase price and the
liquidation of the escrow account did not constitute the "election" of
the restitution remedy over expectation damages.
In
Sergent's Mechanical Systems, Inc. d/b/a/ Sergent Constr., the court held that it lacked jurisdiction to
issue injunctive relief in a contract dispute involving only CDA claims
challenging a default termination. Subsequently, the
plaintiff's motion for reconsideration was
denied.
In
7800 Ricchi LLC, the court held that
a letter of intent to enter into a lease amendment signed by both parties did not constitute an enforceable lease
agreement because it was to be followed by the actual lease, which the Government
had forwarded to the plaintiff, but never signed.
In
Westdale Northwest Center, LP, which involved contract interpretation,
the court held that the tax adjustment provision in
a lease
agreement, although unambiguous, included an
erroneous figure for the tax base, and, therefore, the lease agreement was
a product of mutual mistake, for which contract reformation was the
appropriate remedy.
In
United Communities, LLC, which involved a contract under which
the plaintiff was to charge service
members no more for housing than their Base Housing Allowance (BHA),
the court dismissed all of the plaintiff's theories of recovery after
the DoD reduced
the BHA because (i) the contract specifically disclaimed any
duty of the Government to compensate the contractor, and (ii) the contract did not
limit the method the Government could utilize to calculate the BHA.
In
United Communities, LLC, which involved a contract under which
the plaintiff was to charge service
members no more for housing than their Base Housing Allowance (BHA),
the court dismissed all of the plaintiff's theories of recovery
that were based on the DoD's reduction of the BHA amount because (i) the contract specifically disclaimed any
duty of the Government to compensate the contractor, and (ii) the contract did not
limit the method the Government could utilize to calculate the BHA.
In
Baldi Bros, Inc., a case involving contract interpretation, the
court held that the contract unambiguously required
the construction
contractor to dispose of soil in an approved disposal facility and
clearly stated that the Government's site was not such a facility.
In
Bannum, Inc. v. United States, the court
rejected all the
elements of the contractor's claim, which, in turn were based on its
termination settlement proposal submitted after the Government
terminated its contract for convenience following
corrective action in response to a prior protest. The court held,
inter
alia, that: (i) the Government did not "authorize" incurrence of bid
and proposal costs under the second element of FAR 31.205-32 because
the contractor failed
to supply required information during the corrective action and,
therefore, was found ineligible for award; (ii) bid protest costs are not
recoverable as part of a convenience termination settlement; (iii) the contractor failed to
provide adequate evidence that it actually had incurred its claimed initial and
preparatory costs for performing the terminated contract; and (iv) the
contractor's allegations of bad faith by
agency officials in support of the contractor's claim for lost profits
were unsupported
by evidence: "The undisputed facts fill in the gaps and expose the plaintiff’s story for what it is: mere speculation of animus unsupported by the record before the Court."
In
Owens & Minor Distribution, Inc., a case involving objections to
the scope of the agency's
proposed corrective action and the agency's decision to move its requirements
to another agency, the court denied the Government's motion to remand
the proceedings because
the Government already had made a judicial admission of liability and
the need for finality in the dispute far outweighed any competing
interests advanced by the Government.
In
Kudu Limited II, Inc., a dispute in which the plaintiff was asking
that a lease be terminated, the court partially granted
the Government's motion to file an amended answer asserting
affirmative defenses because the
plaintiff could not establish it had been prejudiced by an 8-month delay,
which was not, therefore, "undue delay." The court held that
the affirmative defense of failure to mitigate
damages was futile because the plaintiff was not seeking monetary damages, but
the affirmative defense of
equitable estoppel was not
and would be permitted.
In Triple Canopy, Inc.,
the CAFC reversed the
prior BCA decision that had dismissed the contractor's claims as time-barred because
the Board
erred in determining the date that the claims accrued. Specifically, under FAR 52.229-6
("Taxes—Foreign Fixed-Price"),
the contractor was required to appeal an assessment before taking further
steps, so its claims did not accrue when the assessment was initially made.
In
Billie O. Stone dba Stobil Enterprise, a decision it labeled
as nonprecedential, the CAFC held it lacked jurisdiction over an appeal from an
ASBCA decision because the contractor failed to
raise any non-frivolous allegations to support its contention that the
Board's decision was fraudulent.
In Thomas Nussbaum,
a decision labeled as nonprecedential, the CAFC affirmed
the
prior COFC decision that a suit brought at the CoFC nine years after
the Contracting
Officer's decision on a claim was time-barred.
In
7800 Ricchi LLC, a decision labeled nonprecedential, the
CAFC affirmed the
prior CoFC decision that the duty of good faith and fair dealing did
not attach to a "Renewal Options" provision because the
provision expired before
the conduct the plaintiff complained of took place and was not the basis for the
parties' discussions concerning a short term lease extension.
In Tolliver Group, Inc,
the CAFC vacated the
prior CoFC decision, holding the lower court lacked
jurisdiction because the claim for breach of the implied warranty
of performance presented by the contractor at the CoFC was materially
different from the allowable cost claim it had presented to the
Contracting Officer for his decision.
In
Creative Management Services, LLC dba MC-2,
the CAFC affirmed the
prior CoFC decision
dismissing a suit as time-bared because it was not brought within 12 months of
the Contracting Officer's decision on a government claim.
The issue on appeal was whether the Government's claim
stated a sum certain and, therefore, was valid. The court
held that it was, reasoning as follows:
That GSA’s . . .
communications do not demand an exact monetary sum is of no significance. The law does not require that a CDA claim identify a precise monetary amount to state a
"sum certain." See Modeer, 183 F. App’x at 977 (affirming trial court’s decision that a contractor’s claim for rent for a holdover period stating a pro rata annual rent presented a
"sum certain," even though the total number of months of holdover rent was not yet known when the claim was filed). Like the total rent due in Modeer, the amount of money in the Reserve Fund account
[here] was readily ascertainable to the party against whom the claim was made. Because MC-2 controlled the bank account containing the Reserve Fund, GSA’s demand for all money in that account made it such that MC-2 knew or could easily ascertain the precise amount of the Government’s claim.
Given that MC-2 had readily available all of the information
necessary to determine the amount of the Government’s claim, GSA’s use of qualifying terms like
"approximately" to refer to the Reserve Fund balance does not undermine the conclusion that GSA’s
. . . communications state a "sum certain." Contrary to MC-2’s assertions, there is no rule that
"[q]ualifying terms like 'nearly' or 'approximately,' . . . cannot be a sum certain."
In P.K. Management Group, Inc.,
a case involving basic contract interpretation, CAFC affirmed
the
prior CBCA decision because the contract's plain meaning comported with
the Board's analysis.
In
Future Forest, LLC, the CAFC
affirmed the
prior CBCA decision, holding that the Government did not
(indeed, could not) breach the implied duty of good faith and fair dealing
simply by failing to order more than the minimum guaranteed quantity in
an ID/IQ
contract.
In
NOAA Maryland, LLC, which turned solely on
the interpretation of a lease provision, the CAFC reversed the
prior CBCA decision and held that, reading two
successive sentences of the lease provision together, the second sentence did
not exclude a tax from being a reimbursable "real estate tax"
(as defined in the first sentence) whenever
it was a "future tax," i.e., a tax imposed after the lease (or its
extension) was entered into.
In Pacific Coast
Community Services, Inc., a decision labeled as nonprecedential,
the CAFC affirmed
the
prior CoFC decision,
holding that the
contractor was required, but failed, to prove damages as a result of
the Government's constructive change.
In another Pacific Coast
Community Services, Inc. decision, also labeled as nonprecedential,
the CAFC affirmed the
prior CoFC decision, holding that the contract was for productive hours of
work delivered to the Government, which meant that the Government could
deduct for hours not delivered.
In
Catherine Kurkjian, a decision labeled as nonprecedential,
the CAFC affirmed the
prior ASBCA decision, holding that there were no errors in Board's conclusions that: (i)
the Government did not terminate the base year of the contract because it
had been
substantially completed and the Government had offered to pay the contractor
the balance owing; (ii) the Government was not required to give
the contractor a cure notice because it had not terminated the contract; (iii)
the
Government did not breach the contract or act in bad faith by
declining to exercise its option years; and (iv) the contractor
was not entitled to
lost profits for the unexercised options.
In
Coastal Park LLC, Meyer Landau, a decision it labeled as nonprecedential,
the CAFC affirmed the
prior CoFC decision that the contractor was not entitled to the return of
its deposit after it defaulted on an agreement to purchase
certain real property from
the Government.
In Starwalker
PR LLC, a decision it labeled as nonprecedential, the
CAFC affirmed the
concurring opinion in the
prior ASBCA decision denying the contractor's claim because the contract unambiguously required the backhaul
(return trip) movement of
trucks to be directed by the Government on a Logistics Movement Request
or a Transportation Movement Request in order to be compensable.
In
Billie O. Stone dba Stobil Enterprise, also labeled as nonprecedential,
the CAFC affirmed the CBCA's grant of summary
judgment in favor of the Government because the contractor had failed to present evidence of the
actual increase of applicable wages and fringe benefits that
it had made to comply
with the applicable DOL Labor wage determination, as required by FAR 52.222-43.
In
JKB Solutions and Services, LLC, the CAFC reversed the
prior CoFC decision and held that, even though FAR 52.212-4 ("Termination for
Convenience") was incorporated by reference in the contract, it was
inapplicable because it is not applicable to service contracts and,
therefore, could not be used as a basis for the Government's position that
it had constructively terminated the contract for convenience.
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