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2021 Procurement Review--Contract Disputes



 

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

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

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. 

Changes/Constructive Changes/Contract Interpretation/Breach/Authority

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.  

Terminations/Liquidated Damages/Government Claims

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).  

Costs / CAS

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.

Quantum 

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. 

Discovery/Procedure/Motion Practice

 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. 


Court of Federal Claims

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

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.

Changes/Breach/Contract Interpretation/Defective Specs/Authority

 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.  

Terminations

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."

Discovery, Evidence, Procedure

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.  

Court of Appeals for the Federal Circuit

Jurisdiction/Standing/Res Judicata 

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."

Changes/Breach/Contract Interpretation

 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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