In
RDG Breton, LLC, the CBCA denied the
Government's preliminary jurisdictional motion to dismiss the portion of
a delay claim for "carried
interest" because the delay claim is a CDA claim over which the Board
has jurisdiction even though, after the record is developed, the Board
may ultimately decide the particular interest issue may be covered by the
"no interest" rule, which is an invocation of sovereign immunity
to bar the
payment of interest for a period prior to a Contracting Officer's
decision on a CDA claim.
In ECC Int'l Constructors, LLC, the ASBCA held that it lacked
jurisdiction over the Government's claim for liquidated damages because no
Contracting Officer's decision had assessed them, and, therefore, the
contractor's counterclaim for the same damages should also
be dismissed (without prejudice) as moot. Subsequently,
however, in considering the Government's
motion for reconsideration, the Board held that the
Government actually had withheld liquidated damages, that
both parties had claimed the right to those sums, and that
the Board would proceed to address those competing claims in a
separate, yet-to-be-published, decision.
In Avue Technologies, Corp.,
the CBCA held that it lacked CDA jurisdiction over a claim by
a software licensor based upon
an alleged violation of its license that was incorporated by a reseller
into the reseller's contract with the Government because the license is
not a procurement contract under the CDA, the procurement contract being
the one between the reseller and the Government.
In
AECOM Technical Services,
Inc., the ASBCA denied the Government's preliminary motions to
dismiss two counts in the contractor's Complaint for failure to state claims
upon which relief could be granted because:
(i) the contractor made a non-frivolous allegation of a contract with
the Government; and (ii) the contractor alleged facts that plausibly suggested the
Government owed
it money for having kept contractor's work product without paying for it.
In
White Balad Co., after raising the issue sua sponte due to the Government's
initial question whether there was a contract, the ASBCA
held it had
jurisdiction over the appeal because: (i) the contractor provided a
copy of the contract that the Government then conceded
existed; (ii) the contractor submitted a claim for less
than $100,000 to the Contracting Officer; (iii) the Government had failed to act
on it within a reasonable time; and, therefore, (iv) the contractor
had properly
appealed from a deemed denial.
In
ECC Int'l, LLC, the ASBCA: (i) denied the Government's motion to dismiss
the contractor's breach of the warranty of specifications and breach of the implied
duty of good faith and fair dealing claims as failing to state separate sums
certain when they were presented to the Contracting Officer because
(a) the contactor intended them as two theories of recovery for
essentially the same claim and both were based on the same operative
facts, and (b) it was to be expected that, following discovery, the
contractor would add new factual allegations obtained from discovery
without constituting new claims; (ii) the contractor's original claim adequately alerted
the Contracting Officer to the facts concerning the superior knowledge
allegations first presented as an alternative theory of recovery,
rather than as new claim, on appeal; but (iii) the contractor's
original claim had not alerted the Contracting Officer to
the elements of recovery concerning a claim of
commercial impracticability presented for the first time on appeal.
In SupplyCore, Inc.,
which involved a commercial
items contract with fixed-prices for items identified to be supplied
by a specific subcontractor, a disagreement between the prime and the sub
concerning
pricing did not excuse the prime's failure to deliver on time;.
The Board lacked
jurisdiction over a count alleging excusable delay because a claim for
a time extension was never submitted to the Contracting Officer.
However, the Board had
jurisdiction over a claim for the Government's alleged breach of the implied
duty of good faith and fair dealing raised solely as a defense to
the Government's default termination claim. The contractor failed to prove
that it was
misled by the Contracting Officer's email into thinking the Government was
waiving requirements previously the subject of a cure notice when
the email clearly identified the requirements to which it referred.
The contractor
failed to show why it should have been terminated for convenience
rather than for cause after it failed to deliver.
In
Kentucky Business Enterprise, the ASBCA dismissed (as untimely)
an appeal mistakenly filed with the CBCA (with a copy
to the Contracting Officer) on the 90th day after receipt of the
Contracting Officer's decision and filed with the ASBCA on
the 91st day.
In
AECOM Technical Services,
Inc., the ASBCA denied the Government's preliminary motions to
dismiss two counts in the contractor's Complaint for failure to state claims
upon which relief could be granted because:
(i) the contractor made a non-frivolous allegation of a contract with
the Government; and (ii) the contractor alleged facts that plausibly suggested the
Government owed
it money for having kept contractor's work product without paying for it.
In
Herren Assocs., Inc., the ASBCA held that the contractor's claims
were barred by the six-year limitations period because
neither claim was submitted within that time, and neither the
"Allowable Cost and Payment" clause nor any other contract clause had
the effect of tolling the normal limitations period.
In
HPM Corp., the CBCA denied the contractor's
alternative motions to dismiss or for a more definite statement because
the Government's Complaint was sufficient to notify the contractor of
the nature of the Government's claim that repayment was required for work
the contractor did
not complete, especially where the record was clear that the contractor
did not perform the work in issue, and the contractor would have ample
opportunity to flesh out other issues (e.g., the
method the Government used to compute quantum) during
discovery.
In
Wilwood Eng'g Inc., the ASBCA held that: (i) in
a claim for wrongful rejection of previously accepted products,
the contractor need not
allege the reason the Government used for deciding to revoke
acceptance; (ii) the Board had jurisdiction over the counts in the Complaint alleging
breach of the implied duty of good faith and fair dealing and the implied duty
to cooperate with contractor and not to hinder its performance because
those counts arose from
the same operative facts as those in original claim; and (iii)
the count in the Complaint alleging the
Government had breached it implied duties by failing to engage in ADR
must be dismissed
because it had not previously been the subject of a claim.
In
[Redacted], the ASBCA dismissed an appeal for lack of jurisdiction
because there was no evidence of any claim apart from one
that already had been the subject of a
Board decision in 2017.
In
AAI Corp, d/b/a Textron Systems, Unmanned Systems, the ASBCA: (i) denied
the contractor's motion for summary
judgment that the Government's TINA claim relating to a subcontractor's
price was barred by the CDA limitations period because the cost data supplied
to the Government during negotiations was not sufficient to alert
the Government to the fact that the contractor had locked in a subcontractor price
lower than price used during negotiations; (ii) denied the contractor's motion
for summary judgment on the merits of the same issue because the
undisclosed firm price reasonably could have affected the
negotiations; (iii) granted the contractor's motion for summary judgment that
the Government's shelter costs claim was time barred because
the Government had
all the information necessary to make the claim (namely the proposal
itself) more than 10 years before the claim was asserted; and (iv)
denied the contractor's motion for summary judgment regarding
the limitations period applicable to a labor costs
issue because that issue would have been much more difficult than the
shelter costs issue for the Government to have discovered from the documents
available to it.
In
Eagle Peak Rock & Paving, Inc., the CBCA dismissed an appeal filed one day late for lack of jurisdiction because,
although the contractor's offices allegedly were not open, its receptionist (who
was allegedly not authorized to do so), had signed for a FedEx delivery of
the Contracting Officer's decision.
In
Zach Fuentes, LLC, over
the Government's objection, the CBCA granted the contractor's new attorneys'
request to
file an amended complaint adding a count for breach of the implied duty
of good faith and fair dealing several months after the Government had answered
the original complaint and after discovery had been conducted because
the amended complaint (a) would not unduly prejudice the Government,
(b) was based on the same
operative facts as the original claim, (c) would not unduly delay the proceedings,
and (d) would not be futile. However, the Board held it lacked jurisdiction over
the paragraph in
the amended complaint alleging bad faith by the Government.
In
Lockheed Martin Aeronautics Co., responding to cross motions for
summary judgment as to timeliness, the ASBCA held, inter
alia, that claims for allegedly excessive over and above work for certain
aircraft pursuant to Manufacturing Deficiency Reports ("MDRs")
were timely
because, under the continuing claim doctrine, the claims did not
have a single accrual date but, instead, had a series of separate accrual dates
corresponding to each of the underlying MDRs that the contractor was ultimately
required to address.
In
Sungwoo E&C Co, Ltd., the ASBCA: (i) denied the Government's motion to dismiss
a claim for an allegedly improper
CPAR evaluation due to a defective certification because no certification was
required for that nonmonetary claim; (ii) held that the attorney who submitted
the certification for another claim was authorized to do so as evidenced by
a power of attorney from the contractor's President that the
attorney submitted along with the certification; and (iii)
concluded that there was no
evidence that a foreign law concerning the contractor's receivership cited by
the Government
impeded the contractor's ability to certify the claim.
In BCC-UIProjects-ZAAZTC Team JV,
the ASBCA held, inter alia, that it lacked jurisdiction over
the appeal of a joint venture's claim originally submitted to the Contracting Officer by
an individual that, according to the JV agreement, did not have the authority to do so.
In Zahra Rose Construction & Logistics Services Co., the ASBCA dismissed an appeal filed well after 90 days from the
date of the Contracting Officer's decision because the circumstances indicated
that the contractor (i) was not prejudiced by either the decision's failure to notify it of its appeal rights or the email address to which
the decision was sent and (ii) was not prevented from appealing by the Taliban's takeover of Afghanistan (because the contractor had communicated with the Board several times on other matters during the period when its appeal would have been timely).
Subsequently, the Board
denied the contractor's motion for reconsideration.
In Bagram Eagle Construction and Logistic Co.,
the ASBCA dismissed an appeal for lack of jurisdiction because
the contractor had not alleged the existence of a contract
with the United States. The only allegation was of a contract with another company.
In
DLT Solutions, LLC, the ASBCA held that, although the contractor
had
properly submitted its claims to the Ordering Activity Contracting Officer
rather than GSA schedule Contracting Officer, those of its
claims on appeal not previously submitted to any Contracting Officer
(i.e., for superior knowledge and fraudulent inducement) must
be dismissed, as must its estoppel claim because a portion of that claim sought specific
performance or injunctive relief, which the Board lacks jurisdiction to grant, and the remainder of the claim did not assert an
independent basis for entitlement to relief.
In
Fidelity and Deposit Co. of Maryland, the ASBCA dismissed a
surety's appeal for lack of jurisdiction because the surety was not in
privity with the Government on the date the claim accrued. The Board
reached the same result as a result of similar reasoning in
a subsequent appeal involving the
same surety.
In
Siemens Government Technologies, Inc., the ASBCA held that: (i) it lacked jurisdiction over
a claim that the Government had
breached duty of good faith and fair dealing by failing to
fairly consider appellant's proposal under the implied-in-fact contract created when
the appellant
submitted that proposal because that implied-in-fact contract is not
covered by the CDA; (ii) a preaward breach of good faith and fair dealing
cannot establish jurisdiction for a claim involving subsequent task orders;
and (iii) the solicitation and contract documents were clear that the Government would not be liable to
compensate the appellant for costs incurred on projects that did not result in a task order.
In
ATS Trans LLC dba Around the Sound/TransPro, the CBCA denied the Government's motion to dismiss
an appeal for lack of
jurisdiction, holding that a corporate merger had established an entity that, by
"operation
of law," was exempt from the strictures of the Anti-Assignment Act and was,
therefore, entitled to perform the contract, to make a claim, and to appeal
the denial of the claim to the Board.
In
Scot Cardillo dba Engineers Tooling Support, over the
contractor's objections, the ASBCA dismissed an appeal as moot because
the Contracting Officer
had "unequivocally" withdrawn his decision and the Government's claim
on which it was based, explicitly acknowledging that the contractor had returned
the GFP that had been the subject of the claim.
In
Raj K. Patel, the CBCA held it lacked CDA jurisdiction over contracts with
the Executive Office of the President and over various tort and
constitutional claims.
In
Integhearty Wheelchair Van Services, LLC, the CBCA: (i) dismissed
a claim for lost profits because
the contract was neither
a requirements contract nor an IDIQ contract with a guaranteed minimum
so the contractor was entitled to payment only for work it actually
performed; (ii) held it lacked jurisdiction over a claim of de facto debarment because it
involved only subcontracts the contractor claimed it was not awarded rather
than the contract at issue; but (iii) declined to dismiss a claim that the COR had acted in bad faith (e.g., retaliating against
the contractor after it fired a friend of the COR’s), which
allegedly
increased the costs of the original contract work.
In
4K Global-ACC Joint Venture, LLC, the CBCA: (i) granted the agency's
motion to dismiss an appeal because a letter from the
Contracting Officer to the contractor stating that it was
a CDA claim against the contractor, and including the
specific amounts claimed, but omitting any statement of
appeal rights and inviting the contractor to submit its
position on the claim before a final decision was issued,
was not, itself, an appealable final decision; and (ii)
rejected the contractor's request that the Board direct
the Contracting Office to issue decisions on the
Government's claims by a date certain because the CDA
authorizes such directions only on contractor claims.
In
Brightwood Management Partners, the CBCA held it
had jurisdiction because "the allegations contained within
[the contractor's] certified claim provide the Government with sufficient notice of the basis of
[the contractor's] breach of the implied duty of good faith and fair dealing claim.
In
U.S. Army Tactical Supply, the CBCA dismissed an appeal because it involved
the same claim for payment as a previous
appeal that the contractor had requested be dismissed and that had been
dismissed with prejudice.
In
Mission Support Alliance, LLC, the CBCA: (i) denied the contractor's motion that
the agency's claims were barred by the six-year
limitations period because the grounds for those claims were not
reasonably knowable to the agency until shortly before it filed them;
and (ii) denied the contractor's appeal on the merits
because the contractor had failed to provide adequate documentation to
establish the reasonableness of claimed subcontractor costs. Subsequently, the Board
denied the contractor's motion for reconsideration.
In
Afghan Premier Logistics,
the ASBCA held that claims for unpaid amounts accrued when the
contractor knew or should have
known of the reductions in pay on which the claims were based (i.e., the date the
contractor received
the returned invoices indicating these reductions) but were not filed within six
years thereafter. Subsequently, the contractor's motion
for reconsideration was
denied.
In
Gulf Tech Constr. LLC, the CBCA denied the
contractor's motion to stay the appeal and instead dismissed it for lack of
jurisdiction because it was based only on an unsigned, uncertified REA
that did not explicitly or implicitly request a decision by the
Contracting Officer and that was submitted only for purposes of
initiating negotiations.
In
DeNapoli-Warren, LLC, the ASBCA dismissed appeals because no underlying claims had been presented to
the Contracting Officer. The Board rejected the appellant's
suggestion that its complaint could constitute the claim.
In
Bear Mountain Cutters, Inc., the CBCA denied the Government's motion to dismiss (for lack of jurisdiction)
a claim
for damages to the contractor's equipment due to allegedly negligent orders from
contracting officials because the claim was based on a contract clause
that allocated risks between the parties, setting forth
performance obligations as a result of a contractual undertaking, and,
therefore, was not a claim arising solely in tort.
In
Trinity Source Logistics LLC, the ASBCA dismissed an appeal because
the appellant failed to establish that it had
been assigned any money due under the contract (including the
appellant's claim)
by the identically named contractor with which the Government had
originally contracted.
In
GC Columbia, LLC, the CBCA dismissed an appeal
because the contractor failed to comply with lease provisions requiring
it to submit evidence of tax adjustment payments within a stated amount
of time.
In
Contrack Watts-Uejo Kogyo JV, the ASBCA dismissed the appeals by
joint venture because the individual submitting the
claim, authorizing the appeals, and retaining counsel, lacked authority to do so for the
joint venture.
In
Ace Electronics Defense Systems, the ASBCA dismissed an appeal for failure to state a claim because
the fixed-price
contract did not provide any mechanism for raising the price after the
contractor's vendor
prices allegedly increased due to COVID.
In
The Heirs of Bahawouddin, Son of Neyaz Mohammad,
the CBCA denied the Government's motion to dismiss for lack of jurisdiction
because: (i) the claim properly was brought by parties in privity with
the Government; (ii) the individual certifying the claim had the authority to
do so; and (iii) the assertion in the claim that the Government owed the payment of rent at
"$10,000 per
month from March 1, 2017, until paid" satisfied the CDA requirement for a sum
certain.
In
Relyant Global LLC, the ASBCA dismissed a count alleging unjust enrichment on an implied-in-fact
contract theory because there was an express contract.
In
Nassar Group International N.G.I. S.A.L.
(OffShore) R.C., doing business as NGI
Afghanistan for Contracting, in addition to denying the Government’s motion to dismiss these appeals on the grounds that
the original named appellant was not the real party in interest and granting the
contractor's cross-motion to amend the caption, the
ASBCA held that: (i) the contractor's constructive suspension claim
should be denied because (a)
the issuance of Customs Clearance Requests (CCRs) for tax exempt status was
a sovereign act and (b) the contractor failed to prove either that the
time required for issuance of the CCRs was unreasonable or
that its delays were
attributable to the time required to obtain the CCRs; (ii) the Board
lacked jurisdiction over the contractor's
claim that the Government
delayed the project by mandating site-access for government personnel
because that claim had not previously been presented to the Contracting Officer
and, in any event, the claim had been waived by the contractor's failure to present any
evidence in support of it; and (iii) the Government failed (for lack of evidence) to establish its claim that
the contractor had
failed to install insulated grounding conductors separate from the electrical system
neutral conductor in all feeder and branch circuit raceways.
In
Selevive Group,
LLC, the ASBCA held that a submission seeking
compensation based on unforeseen circumstances following
months of disagreement was a claim, but then the Board
dismissed both
(i) allegations of an implied-in-law contract based on promissory estoppel for lack of
jurisdiction and (ii) the portion of the appeal related to an alleged lack of access to
the
site because it had not been presented to the Contracting Officer in the
claim.
In
MINACT, Inc., the CBCA dismissed an appeal filed 92
days after receipt of the Contracting Officer's decision as untimely.
In
U. S. Army Tactical Supply, the CBCA dismissed an appeal as an improper attempt to relitigate
a case
already decided by the CBCA in a previous appeal.
In
Fluor Intercontinental, Inc., the ASBCA denied the Government's motion to dismiss
a claim for certain subcontractor
convenience termination settlement costs because, even though FAR Part
49 and Part 31 cost principles applied, the prime had plausibly alleged
that the applicable
termination settlement cost principle regarding "settling and paying"
subcontractor termination claims governed, as opposed to the direct
application of a FAR Part 31 cost principle to the subcontractor's
claimed costs:
Fluor counters, however, that it is not relying on the depreciation cost principle
(which Blanchard merely used to estimate its costs) but the termination cost principle –
FAR 31.205-42 – and the Contract’s Termination for Convenience contract clause
(FAR 52.249-2) that permits recovery of costs from subcontractor settlements (app. resp.
at 15-16; app. reply at 3-6). The termination cost principle states, "Subcontractor claims,
including the allocable portion of the claims common to the contract and to other work of
the contractor, are generally allowable." FAR 31.205-42(h). The Contract’s long-form
termination for convenience clause permits Fluor to recover "[t]he cost of settling and
paying termination settlement proposals under terminated subcontracts that are properly
chargeable to the terminated portion of the contract . . . ." FAR 52.249-2(g)(2)(ii).
"A
prime seeking to recover the costs of settling with a sub under the ‘settled and paid’
clause . . . need not strictly prove the allowability, reasonableness, and allocability of all
of the sub’s costs." Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d 1221,
1252 (10th Cir. 1999). The FAR also states that the termination contracting officer must
evaluate whether the settlement "was arrived at in good faith, is reasonable in amount,
and is allocable to the terminated portion of the contract . . . ." FAR 49.108-3(c). Thus, allowability of a contractor’s costs in settling a subcontractor’s claim depends on
"the
reasonableness and prudence of the settlement, including the competence and good faith
with which the negotiations were conducted[,] and the adequacy of the information upon
which the settlement was based." Gen. Dynamics Land Sys., Inc., ASBCA No. 52283,
02-1 BCA ¶ 31,659 at 156,411.
The Board left open the question whether the
claimed costs were reasonable.
In
Griz One Firefighting, LLC, the CBCA held that: (i) evidence of
multiple causative factors leading to a vehicle accident
was insufficient to conclude that the Government's actions
caused the damage to the contractor's equipment; (ii) a
BPA that did not include a minimum quantity and did not
require the appellant to accept an order was not a binding
contract; (iii) although an order under the BPA that was
accepted by the appellant became a binding contract, the
Government did not breach it because the Government
conducted an appropriate investigation of a vehicle
accident and took appropriate measures to address and
remedy improper actions by the contractor toward
government personnel; (iv) the Government did not breach
the implied duty of good faith and fair dealing by
suspending performance during the course of the accident
investigation; and (v) the contractor failed to establish
the Government had wrongfully demobilized the contractor's
crews. I
In Ieyada M. Ahrir,
a decision involving lease interpretation, the CBCA
denied the lessor's claim for damages to the leased property because the lease only
required the lessee to restore the property to the original condition
for damages
were caused by the lessee, not for damages outside of its control (in this
case, civil unrest that led to the lessee vacating the property.
In OWL, Inc., the CBCA dismissed an appeal
alleging lost revenue as a result of the Government's reduction in the
services it ordered during the pandemic because the Government had fulfilled
its only obligation by ordering the minimum guaranteed quantity under an
ID/IQ contract.
In 1425-1429 Snyder Realty, LLC,
the CBCA held that: (i) interpreting a lease amendment in
the context of
the lease as a whole, the amendment provided the VA with unlimited access
to the basement, which was available under other lease provisions, and thus there was consideration for
the $5,000 per month the VA agreed to pay for that access; (ii) the
parties' multi-year course of dealing in compliance with that amendment evidenced
a meeting of the minds concerning its meaning; and (iii) the Government
was liable
for continued rental payments after it unilaterally rescinded the amendment
based upon the mistaken position that unlimited access was already provided
by other lease provisions.
In
Cooper/Ports America LLC, the ASBCA denied a
claim for reformation based upon an alleged government misrepresentation
because: (i) the Government's statement that it would "work with" the
contractor on prices was not a promise to revise them; (ii) there was
no misstatement of fact because the Government never stated that it
could revise underbid prices on a fixed-price contract; and (iii)
the contractor failed to show that the parties' intention was to agree to
revise the prices.
In
JAAAT Technical Services, LLC, the ASBCA held, inter alia,
that:
(i) requiring the contractor to obtain a second permit after the first one was
revoked was not a constructive change because the contract unambiguously
required the contractor to obtain and maintain all required permits;
(ii) the Government did not breach the implied duty of good
faith and fair dealing by not writing to the
permitting authority to challenge the permit revocation, especially
where the contractor did not ask the Government to do so and even
participated in the decision not to do so; (iii) the delays in the permitting
process were the fault of the contractor's subcontractor, which failed
to have a design professional with the required certification;
and (iv) the contractor was not entitled to the costs of preparing what it labeled as an
REA because the letter was actually a claim.
In
ECC Int'l, LLC, the ASBCA denied both a Type I differing site condition claim
(because the solicitation
included clear indications that the condition might be present) and a
Type II differing site condition claim (because the conditions actually
encountered did not differ from conditions generally encountered in
the area), but then held that the Government's acceptance of a proposal that contained
the contractor's clear interpretation of solicitation ambiguity created by
the Government (in part by its responses to bidders' questions) bound
the Government to the contractor's interpretation that the
contract did not cover soil mitigation, such that subsequently requiring it was a compensable
change.
In
International Development Solutions, LLC, the CBCA denied the
contractor's claims for taxes paid to
the Afghanistan government because there was no evidence those taxes were paid by the
contractor as opposed to its holding companies and no evidence
tying those taxes to the contract at issue.
In
CI-Pond Solutions JV, LLC, which involved a
fixed-price construction contract under which the contractor was to
design and then build a Hazardous Devices School Fuselage Training Facility
using a government-supplied fuselage, (i) the contractor's claims for differing
site conditions were denied by the CBCA because, inter alia, bidders were
provided very little information concerning conditions at the site, and
part of the design work required of the contractor was to conduct a
topographic survey during the design phase to determine those
conditions; and (ii) the contractor was entitled to its extra costs associated with
outfitting a larger government-supplied fuselage than originally specified.
In
Purple Heart Heroes LLC, which involved contract
interpretation, the CBCA held that nothing in an unambiguous lease required
the Government to pay
an unexplained amount listed in a lease exhibit that was not referenced
in the lease itself.
In
Cooper/Ports America LLC, the ASBCA denied a
claim for reformation based upon an alleged government misrepresentation
because: (i) the Government's statement that it would "work with" the
contractor on prices was not a promise to revise them; (ii) there was
no misstatement of fact because the Government never stated that it
could revise underbid prices on a fixed-price contract; and (iii)
the contractor failed to show that the parties' intention was to agree to
revise the prices.
In
Aegis Defense Services, LLC, d/b/a GardaWorld Federal Services, which involved contract interpretation, the ASBCA held that, read
as a whole, the disputed task orders plainly required a minimum number of security
guards and, therefore, the count in the contractor's Complaint alleging a latent
ambiguity must be denied. The Board also held, however, that the issue
of whether the contractor had
provided the minimum required staffing levels involved disputed questions of
fact which could not be resolved by the Government's motion for summary
judgment.
In
Williams Bldg. Co., the CBCA denied the contractor's motion for summary judgment because,
in the Board's view, the Government's
agreement in a bilateral modification to seek settlement funding to cover
the contractor's breach claims did not concede the Government's liability.
Following is the language in the mod. You decide. "Additional funding to settle the
Breach of Contract claims will be requested when additional funds are
available."
In
APTIM Federal Services, LLC, the ASBCA held that the closure of
a military base
due to the COVID pandemic was a sovereign act that precluded recovery of
the contractor's claimed costs for its lack of access to the
base. Similarly, in
JE Dunn Constr. Co., the ASBCA held that the requirement that all
personnel (not just the contractor's) coming from further
than 350 miles from the site quarantine for 14 days (due to
COVID restrictions) before entering the site was a sovereign
act precluding recovery.
In
ASCT Group, Inc., the ASBCA held that there was no
implied-in-fact contract between a subcontractor and the Government to
purchase the subcontractor's materials following the termination of
the prime contract
because the Contracting Officer's invitation to the sub to submit an expression of interest in selling
the materials did not amount to a binding offer to purchase them, and
nothing in the conditional statements in subsequent correspondence between
parties constituted the Government's commitment to purchase the materials.
In
Badland Truck Sales, Inc., the CBCA denied a
claim to reduce the price of a wheeled loader bought at the GSA's online auction
website due to defects unknown to the buyer at the time of the sale
because: (i) the
buyer's claim for misdescription was not submitted within 15 days as
required by the auction (and the pandemic was no excuse for that failure);
(ii) the item was sold "as is"; (iii) the buyer admittedly
had failed to inspect it prior to purchase despite being
advised by the auction terms to do so;
and (iv) whether government personnel were aware of the defects prior to
the sale (as alleged by the buyer) was irrelevant because the
published terms and conditions of the sale included the condition that
"gross omissions regarding the functionality of items,
failures to cite major missing parts and/or restrictions with regards to usage may occur"
in the auctioned items' descriptions.
In CiyaSoft Corp.,
the ASBCA denied the contractor's motion for summary
judgment as to the meaning of the term "single-user" software
license because there were material issues of fact to be
decided, but held that the contractor had no duty (a) to foresee
that the Government might breach such a license or (b) to take action to mitigate any damages
that might result from that breach before performance of the contract had even begun.
In
Aspen Consulting, LLC, after an
earlier Board decision (denying an appeal that the Government had
misdirected two payments owed to the contractor) was
reversed by the CAFC, the current decision reaches the same result
by holding that the Government has
established the affirmative defense of payment by showing the misdirected
funds, were, nevertheless, paid to the benefit of the contractor.
In
Ahtna Constr. & Primary Products Co. LLC, which is a follow-on to an
earlier decision in the same appeal in which the
CBCA had dismissed a differing site conditions claim, the
Board now holds after a hearing that the contractor should
have expected to encounter, and should have planned for,
frozen soil in Alaska but failed to do so and could not,
therefore, claim that the 1,000 foot work zone area
limitation in the contract was a defective specification
that limited the amount of frozen soil the contractor
could thaw and dry out.
In
French Constr. LLC, the CBCA, inter alia, denied a
construction contractor's delay
claims because the contractor's expert did not
identify the delayed item (or the duration of delay attributable to that
item) on the critical path, but instead simply subtracted the planned
duration of the job from the actual duration and identified the
difference as the period of delay.
In
Focused Management, Inc., the CBCA denied claims for allegedly inaccurate CPAR
ratings because: (i) the contractor failed to identify any factual dispute
or legal error bearing on whether a marginal rating for quality was arbitrary, capricious, or otherwise mistaken;
(ii) the contractor argued only in conclusory fashion and did not cite
record evidence raising genuine disputes of fact about the events to which it referred or the
inaccuracies it alleged in challenging a marginal rating in schedule; (iii) two short paragraphs citing no evidence
were inadequate to prove the contractor's allegation that a marginal rating in
management failed
to account for the COVID-19 pandemic; and (iv) the contractor did not deserve
more than a satisfactory rating in cost
control because the savings the contractor alleged it had achieved
were largely due its inadequate staffing.
In
Caring Hands Health Equipment & Supplies, LLC, the CBCA granted
the Government's motion for summary judgment that one group
of contracts were, by their plain language, IDIQ contracts, which the
Government had fulfilled by ordering the minimum quantities, and another
group of contracts were illusory because they did not contain any language
identifying them as either requirements contracts or IDIQ contracts or
requiring the Government to order any specific quantity, and thus the
Government was obligated only to pay for quantities it actually had
ordered.
In
Fluor Federal Solutions, Inc., the ASBCA held that the Government did not have
the right to extend performance pursuant to FAR
52.217-8 ("Option to Extend Services") after the contractor had performed
the final option year under protest, successfully arguing that the option
year exercise had been ineffective.
In
Pacific Dredge & Constr. LLC, the ASBCA held that FAR 52.222-30 unambiguously notified offerors that
the Contracting
Officer would make no
adjustment (i.e., the “NONE” method) in the contract price to cover any increases or
decreases in wages and benefits due to a DOL wage determination applicable at the
exercise of an option that extended the term of the contract so offerors were to
propose separate prices for option periods based on their own estimates of
increases in wage rates, and the "Changes" clause cannot be
read as providing an independent basis for adjusting wage
rates in this situation.
In
Dawson Technical, LLC, the ASBCA refused to
find an accord and satisfaction based upon an email exchange that nowhere
included a signed bilateral contract modification.
In
ACC Constr. Co., the ASBCA denied all of the
contractor's numerous theories of recovery (superior knowledge,
constructive change, breach of the duty of good faith and
fair dealing, and differing site condition) in its claim for
the costs of complying with Virginia's stormwater
permitting requirements because the "Permits and Responsibilities" clause
and other contract provisions placed responsibility on the contractor for obtaining and complying with
those permits.
In
Finmarc Management, Inc., the CBCA held that the current lessor could not recover for
the cost of removing tenant
improvements on the basis of a prior lease to which it was not a party, and
its current
lease did not contain a provision requiring the GSA to pay for such removals.
In
Trade West Constr., Inc., which involved to a large extent a
battle of the experts as to the correct
interpretation of contract terms, the ASBCA held that the stone proposed by
the contractor
(i) was not "angular" in
shape as that term was generally used in the industry, (ii) was not of
"varying sizes and shapes," and (iii) did not meet the contract's mass and
interlock requirements. The Board also held that the contractor's use of
the stone in other
districts on other projects did not establish it was appropriate in
this case.
In
WSP USA Solutions, Inc., a decision involving contract
interpretation, the ASBCA denied the appeal because the contract clearly required orders
to be paid for at the rates in effect at the time the orders were
issued even if the work was performed in a later contract period.
In
Phylway Construction, LLC, the ASBCA held that: (i) since
the fixed-price contract expressly allocated the risk of high river levels to
the contractor, it could not recover under theories of commercial
impracticability or constructive suspension of work; and (ii) in any
event, the contractor had
released those claims in bilateral mods that extended the time of performance.
In Nassar Group International N.G.I. S.A.L.
(OffShore) R.C., doing business as NGI
Afghanistan for Contracting, in addition to denying the Government’s motion to dismiss these appeals on the grounds that
the original named appellant was not the real party in interest and granting the
contractor's cross-motion to amend the caption, the
ASBCA held that: (i) the contractor's constructive suspension claim
should be denied because (a)
the issuance of Customs Clearance Requests (CCRs) for tax exempt status was
a sovereign act and (b) the contractor failed to prove either that the
time required for issuance of the CCRs was unreasonable or
that its delays were
attributable to the time required to obtain the CCRs; (ii) the Board
lacked jurisdiction over the contractor's
claim that the Government
delayed the project by mandating site-access for government personnel
because that claim had not previously been presented to the Contracting Officer
and, in any event, the claim had been waived by the contractor's failure to present any
evidence in support of it; and (iii) the Government failed (for lack of evidence) to establish its claim that
the contractor had
failed to install insulated grounding conductors separate from the electrical system
neutral conductor in all feeder and branch circuit raceways.
In
CES Mall, LLC, et al., the CBCA granted the consolidated
appellants' motions for summary judgment because a Transportation Tax and
a Sanitary District Tax were
reimbursable real estate taxes under the Tax
Adjustment clause in the leases involved in the dispute.
In David Boland, Inc., the ASBCA denied the contractor's
constructive change claim for providing
telecommunications systems to temporary swing space trailers because
the applicable TOs unambiguously required it.
In
Jemison & Partners, Inc.,
the ASBCA denied the contractor's appeal because the contract
unambiguously provided that the contractor would be paid only for the actual
quantities of topsoil placed, and not a set lump sum payment as
the contractor contended.
In
FlightSafety International, Inc., the ASBCA held that, despite some arguably contradictory language in paragraph (b) of
the "Validation of Restrictive Markings on Technical Data" clause (DFARS 252.227-7037), the
fact that a commercial item was developed at private expense does not
end the inquiry as to whether a contractor's restrictive proprietary
markings on commercial technical data are valid.
In Grand Strategy, LLC,
the CBCA held that the contract's "Order
Limitations" clause unambiguously relieved the Government of any obligation to order towels
from the contractor when the size of order exceeded the maximum order limit in
the clause.
The ASBCA sustained an appeal by
KiewitPhelps because: (i) the agency's master
specification was a design specification; (ii) the specification was
defective because following it resulted in mold growth; (iii) the defective
specification was not patent; (iv) nothing in the contractor's conduct
caused the mold; and (v) the Government constructively changed the contract by
mandating a change in a product in response to the mold problem. The
Board also, held, however, that agency did not breach its duty of good
faith and fair dealing in responding to the mold issue.
The
ASBCA denied an appeal by Wright Brothers, the Building Co.
mainly because: (i) the appellant failed to establish that delays allegedly
attributable to the Government affected the critical path; (ii) mere delay without
a change to the essential nature of the construction project did not constitute
a cardinal change; and (iii) assertions of delay without proof of
an affect on the critical path did
not amount to a constructive change.
In ORSA Technologies, LLC,
the CBCA upheld a termination for cause because after the
contractor was unable to deliver the originally-required
gloves and agency had agreed to the delivery of substitute
gloves, the contractor failed to deliver those gloves
either.
In another
ORSA Technologies, LLC, case, the CBCA upheld a
termination for default for failure to deliver any of the contract items
by the due date because the unavailability of the items due to the
pandemic was foreseeable to the contractor before award, and the
contractor had bid to deliver items that were "on hand" when, in fact,
it did not have any items on hand but would have to try to procure them
after award.
In Meld, LLC,
the CBCA denied the the GSA's motion for partial summary judgment upholding
the termination
of a lease because the record was insufficient to conclude whether the lease
was continuing at the time the agency purported to terminate it.
In
Central Co.,
the ASBCA upheld a default
termination because the contractor had not completed any work by the date it was
supposed to be finished, and its vague references to problems related
to COVID were not sufficient excuses because they did not establish
causation, i.e., that COVID had impeded its work sufficiently
to cause the default.
In
CTA I LLC, following
the termination for convenience of a fixed-price construction contract,
the CBCA
determined entitlement to various normal pre-termination costs and
also various claims of equitable adjustment for changes and delays, which, to
the extent they were proven, increased the contract's price, i.e.,
the normal cap on convenience termination costs.
In
Zahra Rose Constr., the ASBCA held that in a convenience
termination after two weeks of two-month contract, the contractor: (i) could
recover the full lease cost of trucks for which it had prepaid for the full
term despite the Government's allegation that the trucks were
nonconforming because the deficiencies were never communicated to the
contractor nor used as a basis for rejecting the trucks or terminating
the contract for default; but (ii) could not also recover additional
amounts under a percentage-of-completion theory because, inter alia,
the contractor's incurred costs were almost entirely redundant of any
percentage-of-completion argument the contractor could make.
In Angela Pugliese,
the PSBCA denied an appeal from
the termination of a mail route for default because the
termination was based upon the same facts that led to
the contractor's criminal conviction for obstructing the mail (by failing to
deliver it), and, therefore, the criminal conviction served as res judicata.
In
Metro Machine dba General Dynamics NASSCO-Norfolk, which involved
a dispute over the propriety of an assessment of liquidated
damages for late completion, the ASBCA: (i) rejected the Government's accord and satisfaction defense because the Government was the only party that
had signed the mod in question; (ii) held that the
completion date established by the same mod was, nevertheless,
reasonable especially where the contractor had failed to timely object to
the terms of the mod;
and (iii) found the contractor
responsible for its subcontractor's delays, because the contract did not shift
the responsibility for those delays to the Government.
In
Heroes Hire LLC, the CBCA: (i) denied a challenge to a default termination because
the contractor had no justifiable basis for refusing to continue
work under its contract unless the agency agreed to ignore the payment assignment in which the
lender held a security interest; and (ii) held it lacked jurisdiction over the contractor's monetary
claims because they had not been submitted to the Contracting Officer for
a decision or
appealed to the Board from a deemed denial.
In
Doubleshot, Inc., the ASBCA granted the contractor's motion for
summary judgment to the extent it involved a government
claim based on missing time cards because the Board's
exhaustive review of the various applicable retention
regulations and the dates established by them under the
facts of this case showed that the Government's audit which
gave rise to the claim was not held until after the
contractor's duty to retain the time cards had expired.
In
SupplyCore, Inc., which involved a commercial
items contract with fixed-prices for, inter alia, items identified to be supplied
by a specific subcontractor, the ASBCA held that: (i) a disagreement between
the prime and the sub on
pricing did not excuse the prime's failure to deliver on time; (ii)
the Board lacked
jurisdiction over a count in the Complaint alleging excusable delay because
a claim for
a time extension had not been submitted to the Contracting Officer;
(iii) similarly, a claim for defective
specifications should be dismissed without prejudice because it
had not been previously presented to
the Contracting Officer; (iv) the Board had
jurisdiction over a claim for the Government's alleged breach of the implied
duty of good faith and fair dealing raised solely as a defense to
Government's default termination claim, but the Board deferred ruling on
its merits
until the record was more fully developed; (v) the contractor failed to prove it was
misled by the Contracting Officer's email into thinking the Government was
waiving the contractor's obligations with respect to requirements previously the subject of a cure notice when
the email clearly identified the requirements to which it
did refer; and (vi) the contractor
failed to show why it should have been terminated for convenience
rather than for cause after it failed to deliver.
In
Heartland Energy Partners LLC, the ASBCA held that where the contract specialist (without authority)
had ordered the contractor to
stop work on certain CLINs and the contractor had complied even though
the Contracting Officer did not ratify the specialist's directive
(but instead tried to negotiate a de-scoped effort), the actions of
the Government amounted to a constructive termination for
convenience of the affected CLINs, which converted the fixed price CLINs into cost reimbursable
CLINs for work performed prior to the termination.
In
Gerald E. Paulus, Jr.,
the CBCA sustained a termination for cause of a personal services
contract based on the agency's findings of legitimate bases for a co-worker's
allegations of harassment and held that the contractor was on notice of the
grounds for termination even though not all of them were
spelled out in the termination decision. Subsequently,
the Board
denied the contractor's motion for reconsideration.
In
Goodloe Marine, Inc., the ASBCA granted the Government's motion
for summary judgment upholding a termination for default,
holding that: (i) the contractor did not meet the contract's
requirement for a specified amount of dredging per month and was not
excused by unusually severe weather because its dredging machine's
constant breakdowns were the cause, and the contractor also failed to
prove that the weather was unusually severe; (ii) the Contracting Officer
complied with the FAR requirements in considering the factors for, and making,
the termination
decision; and (iii) there was no breach of the implied duty of good faith and fair dealing
or bad faith by the Government:
Goodloe suggests it is the victim of the
contracting officer’s bad faith because it was terminated and replaced by a contractor
whose services could not be obtained until after Goodloe might have finished the job
had it been retained. The undisputed facts belie that contention. Goodloe represented
to the government that it would use a dredge that it knew was unavailable to perform
its contractual obligations, then failed to perform as required without an excuse,
blaming its deficiencies upon unusual weather without evidence. Against this
backdrop, Goodloe’s suggestion that it was an abuse of discretion not to allow it to
dredge to completion anyway, after the contract completion date expired, and at a rate
of its own choosing below the contract’s 360,000 cubic yard per month mandate, is
unfounded.
In
Cellular Materials Int'l, Inc., the ASBCA held that the Government
had properly disallowed claimed costs for demand notes long held,
but never presented for payment, by company's largest stockholder for
consultant work since they were forecasted costs rather than incurred
costs because the company's obligation to pay will not attach until he
presents the notes for payment.
In
Strategic Technology Institute, Inc., even though the evidence
showed that the contractor had timely prepared incurred cost
proposals (ICPs) for its first two contract years, the contractor failed to prove that it had
timely submitted those ICPs to the Government, and,
therefore, the ASBCA held that the Government's claims for unallowable costs for those
years (which the DCAA had discovered only after seeing references to those earlier ICPs
in an ICP for a subsequent year) were not time-barred. The Board then
held that the Government had proved its claim.
In
Active Constr., Inc., which involved a delay
claim on a construction contract, the CBCA held that the contractor, who
had consistently allocated field office costs as indirect costs throughout contract performance,
was now precluded as a matter
of law from recovering extended field office overhead as a direct cost.
Similarly, in In
Pave-Tech Inc. , the ASBCA held that the contractor was not
entitled to recover claimed field office overhead costs using a per diem rate method
because that method deviated from its prior usage of a percentage
cost basis in contravention of the Board's prior holding in M.A. Mortenson Co., ASBCA No. 40750
et al., 98-1 BCA ¶ 29,658 at 146,946.
In
Mission Support Alliance, LLC, the CBCA: (i) denied the contractor's motion that
the agency's claims were barred by the six-year
limitations period because the grounds for those claims were not
reasonably knowable to the agency until shortly before it filed them;
and (ii) denied the contractor's appeal on the merits
because the contractor had failed to provide adequate documentation to
establish the reasonableness of claimed subcontractor costs. Subsequently, the Board
denied the contractor's motion for reconsideration.
In
Wu & Assocs., the CBCA held that: (i) it lacked jurisdiction over
the part of the appeal seeking the return of a retainer fee because it was not first presented
to the Contracting Officer for a decision; (ii) the contractor was entitled to
its incurred
costs of engineering analyses it had ordered to address defective
specifications; (iii) the contractor was not entitled to the recovery of
the costs of its site
supervisor because it did not produce the supporting time sheet until 16
months after discovery had closed; (iv) the contractor could not recover
its President's or site
manager's costs allegedly associated with dealing with defective specs
because those types of costs are generally included in overhead, were not separately
tracked by the contractor even after it was aware of a potential claim, and
were not supported by any documentation.
In CTA I, LLC, the CBCA held that interest on equitable
adjustment claims is not extinguished by a convenience termination.
In
Lockheed Martin Aeronautics Co., which involved multiple motions for summary judgment on various
preliminary matters that did not reach the merits of the contractor's claim
for extra work and costs, the ASBCA held that the
measured mile approach to calculating damages is not disfavored and
does not require a preliminary showing of an inability to provide direct proof.
The ASBCA also denied
various government motions challenging jurisdiction and allegedly
defective elements of the claim and granted the contractor's motions for summary
judgment that, properly interpreted, no contract modifications
released or barred its claim.
In
Team Systems Int'l LLC, a decision involving contract
interpretation, the CBCA denied cross motions for summary judgment
because, reading the contract as a whole, after Government had reduced
the
quantities, there must be proof, inter alia, as to
whether, and to what extent, the contractor actually incurred restocking fees.
In Active
Constr., Inc., the CBCA denied the
contractor's motion to compel mediation; ADR may be had at the Board
only by mutual agreement of the parties.
In
United Facility Services Corp. dba Eastco Building Services, the
CBCA dismissed for an appeal for failure to prosecute because
the small business contractor failed to respond to the Government's second set of
interrogatories and to the Board's orders regarding those
interrogatories despite numerous
time extensions, the effects of the pandemic
being insufficient to excuse the extent of the delays. Subsequently, the Board
denied the contractor's motion for reconsideration.
Similarly, in Brandon Staffing Solutions LLC,
the CBCA dismissed an appeal for failure to prosecute
because the contractor "repeatedly
failed to respond to the Board’s orders in spite of having been afforded ample opportunity
to do so." Also, in
Ray's Electric and General Contracting, Inc., the CBCA dismissed an
appeal for failure to prosecute after the contractor
failed to respond to multiple Board orders.
Moreover, the ASBCA dismissed a pro se appeal by
Sundance Constr., LLC,
for failure to prosecute after the appellant ignored two orders by the
Board giving it a chance to explain its failures to proceed with the
appeal. In Najmaa Alshimal Co.,
the ASBCA dismissed an appeal after the appellant stated it would not respond to
further board orders and wished to withdraw. In
Clean4you, the ASBCA dismissed an appeal for failure
to prosecute after the appellant failed to respond to multiple board
orders.
In
Active Constr., Inc., which involved a discovery dispute, the CBCA granted
the majority of the contractor's requests for
documents the agency had withheld under the deliberative process privilege because most of
disputed documents: (i) were not "pre"decisional; (ii) had no
relationship to any decision the agency was contemplating; or (iii)
related solely to contract administration under the disputed contract,
specifically to responding to contractor's request for the change now
under appeal.
In
Pranam Global Tech, Inc., after
two law firms had withdrawn their appearances on behalf of the
contractor and the contractor's owner had not
responded to several orders from the Board, the ASBCA dismissed the
appeal for failure
to enter a notice of appearance by a representative meeting the requirements
of Board Rule 15(a).
Similarly, in
Al Sajara Al Muthmerah Co., the ASBCA dismissed an
appeal by the contractor's "manager" for failure to enter a notice of
appearance by a representative meeting the requirements of Rule 15(a).
In
Sauer, Inc., after an
earlier decision
limiting the Government's ability to recover liquidated
damages, which the ASBCA had
affirmed on reconsideration, the Board (i) denied the
contractor's motion for leave to file the affirmative defense that the
Government’s
liquidated damages rate was unreasonable and/or unenforceable to
the extent that it challenged the specific government rate set forth in the task order, as the
Board lacked jurisdiction to consider a challenge to the amount of the daily rate itself, or
the manner in which that rate was set, but (ii) granted the motion to the extent that it challenged
as unenforceable, the Government’s failure to apportion the liquidated damages rate based
upon the contractor's completion of Phases I and II of the project. The Board also granted
the contractor's motion for leave to file the affirmative defenses
(a) that liquidated damages should be
apportioned if not remitted entirely, and (b) that the Government had failed to state a claim
upon which relief could be granted.
In Vectrus Systems Corp.,
the ASBCA denied
cross-motions for summary judgment because material issues of fact
remained concerning the interpretation of an ambiguity in the contract.
In Cascade Designs, Inc.,
the ASBCA denied the parties' motions for summary judgment because: (i)
the interpretation of
a disputed contract term remained a material issue of fact
that would
require the introduction of extrinsic evidence; and (ii) the propriety of
a default termination based upon alleged
deficiencies identified in the cure notice raised material issues of fact, which
would require the Board to make factual findings regarding the sufficiency of
contractor's
response to the cure notice.
In Forney
Enterprises, Inc., the ASBCA denied the
Government's motion to dismiss for failure to prosecute because
the contractor had responded to the Board's Show Cause order
by enumerating a list of circumstances that established its failure was not due to bad
faith or contumaciousness.
In
Construction Services Group, Inc., the CBCA denied the contractor's petition to require
the Government to provide a decision
on a claim by a date certain because the claim already had been deemed denied.
The ASBCA denied a motion for summary
judgment by pro se litigant
GLJ, Inc. because the record was inadequate
to sustain a finding that actions by the Government caused a reduction in
contractor's crop
production.
In
D&J Machinery, Inc., the ASBCA denied the contractor's
motion for summary judgment because the contract was ambiguous as to
whether the specifications at issue were design specs or performance
specs.
In
Tanik Constr. Co., the ASBCA denied the
Government's motion for summary judgment because the contractor's three
affidavits created an issue as to whether the contractor was told by
the Government that it could still present its claim after signing
a release.
In
Safaa Al-Rawaby Co., the ASBCA exercised the Board's discretion to
reinstate an appeal originally dismissed due to the
appellant's repeated failures to comply with the Board's
orders to show that the contractor was represented by a
person meeting the requirements of Board Rule 15(a). The
Board noted that the Government did not oppose
reinstatement, and the email the Board was treating a motion
for reinstatement was received only three days after the
original notice of dismissal and was signed by a person who
subsequently established that he complied with Rule 15(a).
In
ANHAM FZCO, the ASBCA directed the
Contracting Officer to issue a decision by a date certain in 2022 because
the Contracting Officer's proposed date in spring 2023 was unreasonable in
the circumstances and could not be justified by the
Contracting Officer's upcoming extended leave or
staffing issues and workload.
In
4K Global-ACC Joint Venture, LLC, the CBCA permitted the
Government to withdraw three previous responses to requests for
admissions long after they had been submitted because the withdrawal met
the requirements of a two-pronged test: (i) it would promote the presentation of the merits
of the action; and (ii) it would not prejudice the contractor in the
presentation of its case
In
Quality Trust, Inc., the ASBCA, inter alia, denied the
pro se
contractor's motion for a default judgment against the Government because,
contrary to the contractor's contentions, Government had properly
responded to the Board's order requiring status reports concerning
settlement discussions.
In
Alares Constr., Inc., the CBCA denied: (i) a motion to file a claim
addendum actually raising a new claim not previously the
subject of a Contracting Officer's decision; (ii) a motion
to compel discovery related to this new claim; and (iii) a
motion to stay proceedings pending issuance of a
Contracting Officer's decision on the new claim.
In
Team Systems International LLC, the CBCA granted the Government's motion to
exclude three expert reports submitted by the contractor because they
were extrinsic evidence
essentially arguing with an earlier decision by the Board in the same
appeal, which could have been offered before that decision and, in any
event, which would not have changed it.
In Rita R. Wadel Revocable Living Trust and
229 Jebavy Road, LLC dba Ludington Industries Building, the CBCA denied the Government's motion to compel production of
documents despite claims of privilege because:
(i) a trustee had a reasonable expectation of privacy for email messages sent by
the trustee's counsel to the trustee's work email
address, preserving the attorney-client privilege; (ii) the trust beneficiaries
were the holders of the attorney-client
privilege and could maintain that privilege for messages sent by the trustee
to them; and (iii) the trust could assert the protection of the work product doctrine
for both messages sent to the trustee's work email address and messages sent
to the trust beneficiaries.
In
Herron Assocs., Inc., the ASBCA denied the
Government's motion to dismiss the Complaint for failure to give
the Government adequate notice of the basis of the claim because the contractor
had included sufficient information in the Complaint:
It has identified a cost reimbursement contract between it and the
government. It has alleged that the government directed its subcontractor to provide
performance which the government said it would fund under that contract. It alleges that,
given the additional work, it has not been paid all of the costs of its performance and
therefore seeks that additional amount.
In
Prime Tech Constr. LLC, the CBCA denied an EAJA
application because the applicant was not a prevailing party, had not
been
represented by an attorney, and had not presented expert testimony.
In
Alderman Bldg. Co., the ASBCA reduced the contractor's EAJA
claim by the amount of attorneys' fees incurred after ADR was canceled
because the contractor's final recovery ($34,795) was only $795 more than
the settlement offer made by the Government before ADR was canceled.
In
Iqrar Ahmed and Partner Contracting
Company Ltd., however, the Board granted the full amount of the EAJA
application because the Government did not contest it.
Standbuy Distributors, Inc., is a two-page ASBCA
opinion awarding EAJA fees with almost no explanation of any
of the elements of an EAJA award other than a brief
discussion of why the Government's litigation position had
not been substantially justified.
In
1425-1429 Snyder Realty LLC, the CBCA granted an unopposed application for EAJA fees because it satisfied all
the requirements of the statute.
In
DDS Holdings, Inc., the court granted the
Government's motion to dismiss a suit for lack of jurisdiction because
the plaintiff had "demonstrated neither outright privity of contract with the
[G]overnment nor a valid assignment of any claims that would constitute the necessary
privity." Moreover, the six months that passed after the Government's objection
to jurisdiction was sufficient
time to permit the real party interest "to ratify, join, or be substituted
in the action" pursuant to RCFC 17(a), which had not occurred.
In
Avant Assessment, LLC, the court held that:
(i) under the doctrine of claim preclusion, claims that
should have been, but were not, included in the convenience termination
proposal originally submitted to the Contracting Officer, leading to a
prior decision by the ASBCA that it lacked jurisdiction over them,
must be dismissed; but (ii) the Government's
motion to dismiss claims based upon UCC 2-606 must be denied because
the plaintiff could
not have known of those claims at the time it presented its
termination settlement proposal to the Contracting Officer.
In
Monterey Consultants, Inc., the court denied the Government's motion to dismiss
(as untimely) a suit based on a CE unit
price claim and a constructive change claim because the claims before
the court largely involved different operative facts
and sought different remedies than the prior claims upon which the Government's
motion to dismiss was based, even though the two sets of claims involved some
similarities.
In
Textron Aviation Defense LLC, the court held that a claim related to CAS 413 submitted more than six years
after it accrued (i.e., when contractor's predecessor in
interest knew or should have known all information necessary to file
claim) was untimely because: (i) CAS 413 does not contain a mandatory
pre-claim procedure that would extend the accrual date; and (ii) the contractor's
CAS submission was not a routine request for payment and could have
been submitted as a CDA claim at the time the claim accrued.
In
Sikorsky Aircraft Corp., the court denied the Government's motion to dismiss a count in
the contractor's Complaint because the Government's
argument that the underlying Contracting Officer's decision did not cover B&P costs
conflicted with the language of the decision, which mentioned such costs 23
times and claimed they were owed even though it did not specify an
amount. The court also denied the Government's motion to dismiss other
counts in the Complaint because the record was not yet
sufficient to decide, inter alia, the
extent, if any, to which the Government is
precluded from alleging a CAS noncompliance by entering into
contracts with a contractor based on disclosed accounting
practices that the Government only finds noncompliant years
later as a result of delayed DCAA audits.
In
Constructora Guzman, S.A., the court held that a subcontractor failed to establish it was
a third party beneficiary of
a government contract because there was no evidence that by
retaining a percentage of money owed to the prime (in lieu
of payment and performance bonds), the Government intended to
confer a direct benefit on the subcontractor or assumed responsibility to
pay the subcontractor.
In
The Boeing Co., on remand from the CAFC after it
reversed the Court of Federal Claims'
prior decision dismissing the plaintiff's complaint, the
lower court held that: (i) a claim that the plaintiff characterized
as a breach of contract claim was
actually a claim that FAR 30.606 violates the CAS statute (and,
therefore, was illegally
promulgated), which is a challenge to the validity of a regulation
that must
be brought in district court under the APA; and (ii) although
the CAFC held that the lower court had jurisdiction over the
plaintiff's illegal exaction claim because no
money-mandating statute was the required for it, the court,
nevertheless, lacks "authority" to
consider it because challenges to the CAS statute must be brought pursuant
to the CDA.
In
Square One Armoring Services Co., the court held, inter alia, that: (i) pursuant to 28 U.S.C. § 2415(f), the
Government's counterclaim to recover funds disbursed by mistake to
the plaintiff was not barred by the six year limitations period because
the counterclaim sought to recover improperly
disbursed funds (i.e., Government's undisputed overpayment of funds to
the plaintiff) and arose from
the identical transactional facts as those supporting the plaintiff’s own claims;
and (ii) the undisputed facts established that the Government mistakenly paid
the plaintiff at the "new"
contract price for armored
truck services provided under the "old" contract without authorization from a
government official with actual or apparent authority.
In another Square One Armoring Services Co.,
decision, the court held that, for purposes of the six-year limitations period,
a claim based on a constructive change order accrues when the Government instructs
the contractor to perform work outside the scope of the contract, not when
the contractor knows the sum certain it will seek from agency
for that extra work.
In
The Boeing Co., on remand from the CAFC after it
reversed the Court of Federal Claims'
prior decision dismissing the plaintiff's complaint, the
lower court held that: (i) a claim that the plaintiff characterized
as a breach of contract claim was
actually a claim that FAR 30.606 violates the CAS statute (and,
therefore, was illegally
promulgated), which is a challenge to the validity of a regulation
that must
be brought in district court under the APA; and (ii) although
the CAFC held that the lower court had jurisdiction over the
plaintiff's illegal exaction claim because no
money-mandating statute was the required for it, the court,
nevertheless, lacks "authority" to
consider it because challenges to the CAS statute must be brought pursuant
to the CDA.
In
State of Ohio, the court held, inter alia,
that: (i) for
purpose of the six-year limitations period, the accrual suspension rule does
not apply to claims of which the contractor would have been aware had it
exercised a contractual right; (ii) the court lacked jurisdiction over
a claim for
declaratory relief; (iii) the Government breached
the contract by billing the contractor for costs not within
the proper definition
of "joint use operation and maintenance costs" as established by
a previous decision in the case; and (iv) the Government breached
the implied covenant of
good faith and fair dealing by failing to maintain usable records of
its charges and by employing arbitrary billing practices.
In
OXY USA Inc. and CITGO Petroleum Corp., the court analyzed the requirements and application of the Anti-Assignment
Act (31 U.S.C. § 3727 and
41 U.S.C. § 15) in deciding the Government's motion to dismiss portions of
the claim.
In
The CENTECH Group, Inc., the court dismissed
two claims for lack of jurisdiction because they involved
different grounds (and sought different categories of
relief) from the claims previously presented to the Contracting Officer for
a
decision.
In
E&I Global Energy Services, Inc., the court
held that: (i) the contractor did not provide convincing evidence that it
had completed the work on the CLINs at issue, so the Government's failure to pay for
those items was not a breach; and (ii) the contractor was not entitled to
compensation for an alleged change based on information incorporated in a solicitation amendment
which the contractor had a responsibility to read before signing the
contract and which it
represented that it had read.
In
Sunrez Corp., the court: (i) granted the Government's motion to dismiss a claim that the Government had breached
the terms of an SBIR contract by failing to submit the contract items (six pallets) for
certification because neither the contract (when read as a whole) nor
the governing SBIR statute required the Government to do so; (ii) held
that the plaintiff had failed to show any contract provision that obligated the Government to
perform any of three other express "duties" the plaintiff claimed the
Government had failed to perform; and (iii) denied the Government's motion
to dismiss the claim that the failure to submit the pallets for certification
violated the implied duty of good faith and fair dealing because there
remained a
"plethora" of disputed material facts .
In
Phillips & Jordan, Inc., after fussing at the plaintiff for
its substandard briefing, the court held that: (i) the plaintiff
had failed to prove
the existence of a differing site condition because (a) the contract did not
represent soil conditions in way the plaintiff claimed, and (b) the plaintiff
failed to prove it relied on its interpretation in bidding; (ii) the plaintiff
had not proven entitlement to more compensation than was already
provided in a mod for another differing site condition; (iii) the plaintiff
could not rely on a modified total cost theory of damages because it did
not prove either (a) that its bid was reasonable or (b) that the
plaintiff was not, itself,
responsible for the added costs.
In
Anchorage, A Municipal Corp., the court
first summarily struck the Government's arguments concerning the
validity of the disputed agreements raised for the first time in
post-hearing briefs (never a good idea), and in contravention of court's specific orders
(even more unwise), after
a seven-years-long litigation. The court then held that: (i) the clear language of the
original Memorandum of Understanding ("MOU") between
Anchorage and the Government concerning construction of the Port of
Anchorage expansion project required the Government
"to provide a complete
item of construction or to provide design construction and project management services, free of
defects"; (ii) a subsequent Memorandum of Agreement (MOA) "confirm[ed]
[the Government's] obligation to oversee, design, and construct the Project";
(iii) the Government had breached the MOU by (a) contracting with a party that
did not
produce a project free of defects and then (b) failing to enforce the
Government's
available remedies against its contractor; and (iv) the
Government had breached the MOA by settling its
contractor's claims without notice to plaintiff. Subsequently, in a
decision limited to quantum, the court held that the
plaintiff had proved (to the dollar) all of its claimed damages in the total
amount of $367,446,809, consisting of (i) impairment damages
representing the reduced value of the defective property as
a result of the Government's construction defects, and (ii)
future damages equal to the projected cost to remove a
defective structure
attributable to the Government and to stabilize the
area.
In
Marine Industrial Constr., LLC, which is notable for its thorough
explanations of the requirements relating to claims of
excusable delay and differing site conditions (including the
evidence required to support allegations related to tardy
notice of such claims, waiver or constructive notice of the
claims, and superior knowledge), the court
held, among many other things, that: (i) the Government waived plaintiff's failure to comply with
the contract's notice
provisions for certain of its delay and differing site conditions
claims by failed to raise notice as a defense when denying those
claims; (ii) the contractor provided insufficient evidence to support its delay
claim for unusually severe weather; (iii) the contractor was not
entitled to recover on its differing site conditions
claim for dredging clay because the contract did not affirmatively
represent that the contractor would not encounter clay in its dredging
operations (and, in fact, documents readily available to the
contractor noted 7% clay might be encountered), and the presence of clay would be reasonably foreseeable to
the
contractor; (iv) neither party was entitled to summary judgment on the
differing site condition claim based on excessive debris because neither
party addressed the applicable standard, i.e., how a "reasonable and
prudent" contractor would have proceeded in this situation; (v) the Government
withheld superior knowledge concerning the minimum pipe size required
to complete
the project, and the contractor was misled as a result; (vi)
the Government did not
withhold superior knowledge concerning log traffic; but (vii) the Government
did
withhold superior knowledge concerning sunken debris.
In
Nova Group/Tutor-Saliba, A Joint Venture, the court: (i) denied differing site conditions
claims because (a) the contract documents did not misrepresent subsurface
soil conditions and disclosed that there might be subsurface
obstructions, (b) readily available information alerted contractors
that certain subsurface conditions might be present, and (c) the contract
required contractors to conduct investigations to precisely
characterize those conditions; (ii) held that plaintiff's alternate defective
specifications claim was just a recasting of its unsuccessful differing
site conditions claims; and (iii) held that the Government constructively changed
the contract by
requiring the plaintiff to re-analyze and justify a design that the Government
already had approved, which delayed critical path work involved acceleration because the Government
still required the work to be
completed on the original schedule.
In
T.H.R. Enterprises, Inc., the court held that a general release in
a bilateral settlement agreement of "any and all claims, demands, liabilities, actions, causes of
action, damages, expenses, and obligations whatsoever" was broad enough to cover
all claims arising prior to the execution of the agreement, not just
two claims obliquely referred to in the agreement with the prefatory language "including
but not limited to. . . ."
In
Raytheon Co., which involved contract interpretation, the court held that: (i) the contractor's vendor lists were
not "technical data" under DFARS
252.227-7013(a)(15) for many reasons, including the fact
that they consisted of generic
descriptors of parts the contractor had purchased, coupled with numerical identifiers, along with the
identity, address, and DUNS number of the supplier or manufacturer that sold the parts,
but did not include descriptions of (a) the physical, functional, or performance
requirements of the parts or (b) their design, manufacture, or assembly; and,
therefore, (ii) the Contracting Officer's decision directing the contractor to
remove certain proprietary markings from the vendor lists based
on the erroneous assumption that they were comprised of technical data was improper.
In
Northrop Grumman Systems Corp., the court finally decided a slew of claims and counterclaims involving allegations of,
inter alia, delay, disruption, and nonconforming supplies in a suit filed a decade ago, summarizing its conclusions as follows:
Ultimately, both parties suffered the foreseeable consequences of
overconfidently entering into an enormous production contract before a
single successful pre-production machine had been tested. That
overconfidence coupled with subsequent mismanagement by the contracts
and accounting administration teams on both sides had a ripple effect that led
to ten years of litigation, which ends, in this court at least, without a clear
win for either party.
Basically, the Government had withheld the contract balance
solely to offset its claims for delays caused by the late delivery of admittedly conforming supplies. The court, however, held that the Government was responsible for that late delivery so it should pay the contract balance. Neither party recovered much on its additional claims against the other.
In
Seneca Sawmill Co., the court held that, although the contract provision originally relied on by
the Government to
partially terminate a timber sales contract was inapposite because it
only applied when a court order required the termination, other
contract provisions permitted partial termination if continuation of the contract would cause certain environmental injuries or
other adverse effects, and the contractor was not entitled to further
recovery under the applicable clause because it had not proved "the rates paid for
comparable timber on the same national forest" during the six-month period that preceded the
partial termination were higher than the then-current contract rates.
In
State of Ohio, the court held, inter alia,
that: (i) for
purpose of the six-year limitations period, the accrual suspension rule does
not apply to claims of which the contractor would have been aware had it
exercised a contractual right; (ii) the court lacked jurisdiction over
a claim for
declaratory relief; (iii) the Government breached
the contract by billing the contractor for costs not within
the proper definition
of "joint use operation and maintenance costs" as established by
a previous decision in the case; and (iv) the Government breached
the implied covenant of
good faith and fair dealing by failing to maintain usable records of
its charges and by employing arbitrary billing practices.
Previously, in
Capitol Indemnity Corp., the court held, inter alia, that a surety's equitable subrogation rights
had not been triggered as to most
progress payments made by the Government because the surety had not asserted its rights
at the time those payments were made, and
the contractor was still working with the Government to resolve its problems with contract
performance--so the Government did not have the required knowledge of the default under the
bonds. Now, in the
latest decision
in the case, the court has held that: (i) the
plaintiff did not
take the steps necessary to trigger its right to equitable subrogation on
the contractor's ninth progress payment request; and (ii) the surety cannot recover
under the theory of equitable subrogation for its costs of replacing
a defective gym floor installed by the contractor (leaving
open the question whether there might be a CDA claim somehow
available). In a
separate opinion, the court sanctioned the plaintiff's
counsel for continuing to allege factually inaccurate
statements in its filings.
, the CAFC affirmed the
prior ASBCA decision and held that the Government had not waived its defense
(the contractor's prior material breach) which barred the contractor's claims
against Government. Without a valid underlying contractor claim,
the contractor could not recover CDA interest on the Government's alleged
over-withholding.
In
Lodge Constr., Inc., which involved government claims for fraud,
the court held, inter alia, that: (i) the contractor's claim
was fraudulently based on operating and
standby rates for a type of dump truck listed in a USACE Manual when the dump
trucks the contractor actually used were worth far less; (ii) the inefficiency ratio used by
the contractor in calculating its claim
was fraudulent because it was not reasonable or accurate and because it
captured days that were not part of the contractor's claim;
and (iii) the contractor's failure to utilize information in a contract
modification while calculating its inefficiency ratio was not
fraudulent because its interpretation of the mod was within the zone
of reasonableness. Subsequently, the court (i) has various motions
for, inter alia, (a) reconsideration of parts of its original
decision (e.g., the untimeliness of one of the Government's
counterclaims in fraud) and (b) the resolution of other
formerly open issues such as the possibility of additional
discovery and the status of the contractor's wrongful
termination claim, and (ii)
held that all issues had been resolved or were and that the case
was at an end.
In
American Medical Equipment, Inc., the court upheld a termination for default
because: (i) the contractor failed to
deliver any of the contract products (nitrile gloves) by the non-extendable,
contractually-required date (which had been repeatedly emphasized, and
to which the contractor had repeatedly committed itself, prior to
award); (ii) the contractor notified the Government prior to the required
delivery date that the contractor would not meet it (which constituted
anticipatory repudiation); and (iii) the contractor's default was not
excused by the COVID outbreak in China allegedly delaying the
manufacture of the gloves and their shipment to the United States
since (a) the solicitation
had called for the supply of "on-hand (or already in existence)" gloves
and (b) the contractor's offer had stated the gloves would be delivered by
Federal Express, not by shipment in vessels. The court cited to the
CBCA's decision in
ORSA Technologies, LLC, which had reached essentially
the same conclusions in essentially the same situation.
Similarly, In
Servant Health, LLC, et al., the court, inter alia, upheld
the terminations for default
of suppliers who had promised to provide specific PPE (that they
represented they had on hand) within a set number of days,
when, in fact, they did not have the PPE in hand and did not
meet the delivery schedule.
In
27-35 Jackson Ave., LLC, the court: (i) upheld the Government's termination of
a lease as untenantable (after
a water leak interrupted operations and exposed important documents to
water damage) because the lease included an express agreement by the parties indicating that the untenantability would be
"determined by the Government"; (ii) held that the lease did not require the Government
to utilize or memorialize an objective standard for determining whether
the premises were tenantable following the damage; and (iii)
noted that the Government's determination
did not breach the implied duty of good faith and fair dealing.
In
ACLR, LLC, the court granted the
Government's motion for summary judgment on the limited issue whether,
for purposes of calculating the amount of
a termination for convenience recovery, plaintiff's system was
a "standard record keeping system" as required in FAR
52.212-4(l), which the court defined as "a
regularly used, carefully thought-out method that involves a set of organizing and orderly
procedures.
" The court held that, based on the evidence of its system
presented by the plaintiff, that system did not satisfy the
definition.
In
BES Design/Build, LLC, the court granted the Government's motion to transfer
the case for consolidation with
pending appeals at the CBCA because, inter alia: (i) both actions involved the same
contract and shared some similar issues; (ii) the plaintiff appealed first
to the CBCA; (iii) there were overlaps in the witnesses who would
testify and the subjects of their testimony; and (iv) the transfer would
avoid duplication of effort.
In
United Communities, LLC,
the court of denied the plaintiff's motion for
an extension of time to file an appeal of the court's
earlier decision to the CAFC because the late appeal was due solely to
a mistake by the appellant's attorney, which did not amount to either
excusable neglect or good cause under Federal Rule of Appellate
Procedure 4(a)(5)(A).
In
Advanced Powder Solutions, Inc., the court (a) denied the plaintiff's motion to compel discovery after
the plaintiff's counsel conceded it believed the Government's
representation that it had already provided all responsive documents
in its possession and (b)
refused to sanction the Government for spoliation because: (i) the
request for sanctions was made within a brief and not as a separate motion as
required by the rules; (ii) the plaintiff did not cite to any
requirement for the Government to retain the records during
litigation; (iii) the plaintiff failed to prove the records were
destroyed with a culpable state of mind; (iv) the records were
originally prepared by the plaintiff, itself, and it had not retained them
either; and (v) the plaintiff failed to establish the missing records
would have proved its case.
In
Spectre Corp., the court decided cross motions to exclude various proffers of layperson and
expert testimony, discussing at length the standards that apply to
the admissibility of each.
In
David Boland, Inc., the court denied cross-motions for summary judgment as to costs of replacing
allegedly defective work because of multiple factual disputes as to whether
the criteria for economic waste were met.
In
Zafer Constr.Co., the Court of Appeals for
the Federal Circuit (CAFC) reversed the
prior Court of Federal
Claims decision (which had dismissed a suit on the basis
that the underlying document did not request a Contracting
Officer's final decision and, therefore, was not a claim). The CAFC
reasoned that it was sufficient that the
document "implicitly" requested a final decision.
In
Carmazzi Global Solutions, Inc., the CAFC held it lacked jurisdiction over an untimely appeal filed
with the court more than 120 days after the appellant received a copy of
the CBCA's decision--its attorneys' unfamiliarity with the
court's rule being no excuse.
In
Aspen Consulting, LLC, the CAFC reversed the
prior ASBCA decision
and held that the Government had breached the contract by making
payments to an account other than the one listed in the CCR database,
which was the account required by the "Payments" clause (FAR 52.232-33).
The court
remanded the case to the ASBCA to decide the Government's affirmative
defense of payment, i.e., whether the contractor had benefitted from
the funds paid to the wrong account.
In
Lebolo-Watts Constructors 01 JV, LLC, a decision labeled as nonprecedential,
the CAFC
affirmed the
prior ASBCA decision denying the contractor's claims
because: (i) the contract was patently ambiguous as to
whether the contractor was to furnish circuit breakers (even though the
breakers
were low cost items, they were important to the project), and the contractor
had
failed to inquire concerning the ambiguity prior to bidding; and (ii)
the subcontractors' pass-through delay
claims (a) were based on delays associated with circuit breakers,
which were attributable to the contractor, not the Government, (b)
were concurrent with contractor-caused delays, and/or (c) had
been waived in a bilateral
modification.
In
CSI Aviation, Inc., the
CAFC reversed the
prior CBCA decision and held that, contrary to the
Board's conclusion, the contract expressly incorporated the contractor's
standard terms and conditions by reference. The court then remanded
the case to the Board for further proceedings consistent
with the court's decision.
In
U.S. Aeroteam, Inc., a decision labeled as nonprecedential, the
CAFC affirmed the prior CoFC decision denying
the contractor's claims, holding that: (i) there was
no constructive change or cardinal change because the Government had not
ordered extra work but had merely approved an idea the contractor had initiated and
proposed; (ii) the lower court's erroneous suggestion that the contractor must
show a constructive change order authorized a change in the contract price
was harmless error because there was no order at all; and (iii) there
was no commercial
impracticability where the contractor's supplier had merely raised the price of
its parts, leading the
contractor to choose a different route rather than to pay that increased
price.
In
GSC Constr., Inc., a decision labeled as nonprecedential, the
CAFC affirmed the
prior ASBCA decision upholding a termination for default because:
(i) the Government did not breach the contract by requiring the contractor to
remove and replace soil since the contract clearly required it to do so;
(ii) the contractor was not entitled to a time extension due to the Government's
review of drawings under a more stringent edition of a governing
specification than the one the contractor had mistakenly used because
the Government had advised the contractor of the correct
edition to use; and (iii) the Government had not forfeited
its right to enforce the project's
completion date because it had specifically and repeatedly reserved its
right to do so, and the contractor had missed the extended
date by which Government had given it a chance to finish the work.
In Microtechnologies LLC dba MicroTech,
a decision labeled as nonprecedential, the CAFC affirmed the
prior
CBCA decision that the contractor was
not entitled to the price of a software maintenance contract for the option year following
a T
for C because it had purchased a three year maintenance contract at
the beginning of the base
year without any requirement to do so and with no assurance any options would
be exercised, so the cost of the maintenance agreement did not "result" from the
termination.
In E&I Global Energy Services, Inc., the CAFC reversed the
prior CoFC determination dismissing a contractor's claim for an improper default
termination and held that the contractor should be allowed to try to develop
its case that the failure
of the sureties to pay subcontractors necessitated the contractor's efforts to do so,
which excusably delayed the work. The CAFC, however, affirmed all the
CoFC's other holdings,
including that the contractor had not shown that the Government had breached
either its implied duty of good faith
and fair dealing or its obligation to disclose superior knowledge
because the contractor had not shown that it was misled as to status
of payments to subcontractors.
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corrections, please