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Boards of Contract Appeals (ASBCA,
CBCA, PSBCA, and GAOCAB)
Jurisdiction/Standing/Timeliness/Contract Disputes Act
(CDA) Issues
In
Amalgamated Services, Inc., the CBCA held it lacked
jurisdiction over an appeal from the Contracting Officer's denial of an uncertified claim in excess of
$100,000.
In
OSC Solutions, Inc, the ASBCA held that, because
the appellant had made a non-frivolous allegation of an implied-in-fact contract,
the Board would not dismiss for lack of jurisdiction but would save
the issue of
whether the contract was valid for a decision on the merits.
In
Mather Enterprises, the CBCA denied the agency's motion
to dismiss an appeal for failure to state a claim for the agency's
(lessee's) alleged failure to maintain the leased
premises in good repair and condition because the agreement between parties
assigned the agency that responsibility.
In
ServFed, Inc.,
the ASBCA: (i) denied the Government's
motion to dismiss an appeal for lack of jurisdiction based on the contractor's alleged request for specific performance to correct an
inaccurate CPAR; and (ii) permitted the contractor to amend the Complaint to cure
the alleged jurisdictional defect because (a) that was fair to both parties
and
did not prejudice the Government, and (b) the amended Complaint was based on
the same operative facts as
the original Complaint.
In
Derian, Inc., the ASBCA granted the Government's
motion to dismiss an appeal based on the Contracting Officer's alleged
failure to issue a timely decision because the contractor did not
provide any evidence that a claim
had ever been submitted to the Contracting Officer.
In
BB Government Services srl, the ASBCA: (i) denied the
Government's motion to dismiss three counts of the Complaint because all
three arose from the same set of operative facts as the constructive change
claim originally presented to the Contracting Officer for a decision;
and (ii) denied the Government's
motion to dismiss two counts of the Complaint as failing to state a
claim upon which relief could be granted because if
the contractor's allegations proved to be true, they would establish that
the Government had a design specification that was defective and that
the Government failed to disclose superior knowledge.
In
Alares Constr., Inc., the CBCA denied the
Government's motion to dismiss a claim for lack of a sum certain because
the contractor did state a sum certain in the body of claim, and
claim attachments that
included slightly different amounts were submitted for the facts and
information they contained, not to establish the sum certain. The Board denied
the Government's motion for summary judgment that a
final release document signed by the contractor covered the claim on
appeal issue
because factual issues remained on that question.
In
Vectrus Systems Corp., the ASBCA: (i) rejected the
parties' joint request that the Board issue an order (a) recognizing
entitlement and (b) remanding the case to the parties for a determination of
quantum; and, instead, (ii) dismissed the appeal as moot because the Contracting Officer
had withdraw the decision that had been appealed and had issued a new decision recognizing entitlement
and inviting the contractor to submit a quantum claim.
In
John Douglas Burke, the CBCA held that: (i) a contractor that had
been fully compensated at prescribed hourly rates under purchase orders
for professional services could not have those orders invalidated (and
be paid at the hourly rates of a federal employee) where the documents
did not establish the purchase orders were, as he claimed,
proscribed contracts for personal services; (ii) since the purchase orders
were express contracts, the contractor could not recover under an implied-in-fact
contract theory; (iii) the Board lacked jurisdiction over the
contractor's claim for unjust
enrichment, and, even if there were jurisdiction, unjust enrichment does
not apply when there is a valid contract; and (iv) the Board lacked CDA jurisdiction
to grant direct relief under the Fair Labor Standards Act,
the Back Pay Act, and the Service Contract Act. Subsequently, the Board
denied the contractor's motion for reconsideration.
In
Crystal Clear Maintenance, the CBCA held that the Contracting Officer's initial decision asserting
a government "claim"
failed to state a sum certain and thus did not trigger the 90 day appeal period.
In Flatiron/Dragados/Sukut Joint Venture,
the ASBCA denied the Government's motion to dismiss for failure to state a
claim, holding that where the Contracting Officer had
suspended the work during the pendency of a bid protest, the contractor's claim for
its associated costs submitted under the "Protest After Award" clause should not be
dismissed merely because the Contracting Officer had issued a suspension
rather than a stop-work order as provided for in the clause.
In Monbo
Group, Int'l, the ASBCA dismissed a breach claim on
appeal
seeking lost gross revenue from unexercised option years two and three
because (i) it was different from the claim for lost profits for
option years one through three
previously submitted to the Contracting Officer for a decision; and (ii)
there was no
assertion of facts indicating bad faith by the Government in declining to
exercise the options.
In
David Boland, Inc.,
the ASBCA partially granted the contractor's motion for reconsideration of
the Board's
prior decision because the Board had erroneously dismissed two counts
in the Complaint that alleged delay from different causes than
those the Board correctly held the contractor had failed to argue in
response to Government's original motion for summary judgment as to
the Complaint as a whole.
In
Framaco Int'l Inc., the CBCA dismissed the contractor's request
for declaratory relief based on an alleged
breach of the contract by the Contracting Officer in denying the contractor's
claims because a declaratory judgment "would not provide
the contractor the monetary damages it clearly seeks," and
the contractor's monetary claims had been separately
filed.
The CBCA dismissed an appeal by
Knighto LLC dba Knight Solutions because it had been filed outside of
the 90-day window.
In
Fidelity & Deposit Co. of Maryland, the ASBCA denied the Government's motion to dismiss
an appeal for alleged failures to submit
sums certain because the contractor's "garden variety" delay claim was a
single claim based upon a common set of operative facts, not seven separate
claims that would each require its own statement of a sum certain. The
Board also found that even if the Government were correct
that one
part of the claim was a separate Changes claim, that claim had been
stated as a sum certain.
In
Valiant Integrated Services, LLC, the ASBCA dismissed an appeal as moot after
the Contracting Officer withdrew his decision
asserting a government claim for CAS noncompliance.
In TC Port Ybor LLC, LIT Finance III LLC,
the PSBCA denied a motion to
consolidate because the Board lacked CDA jurisdiction over an appeal based
on a claim filed by the former lessor only after the lease had been assigned
to a different entity (albeit an entity closely affiliated with the
former lessor). After the assignment, the former lessor no longer was a
contractor with the Government.
In
Honeywell International, Inc., the ASBCA denied the contractor's motion to dismiss (for failure to state a
claim) the Government's claim that, under CAS 410, it had reimbursed
the contractor for more than its fair share of the contractor's G&A costs
because, inter alia, there were factual issues yet to be resolved, and
the Government had
presented plausible arguments that the contractor's discretion with regard
to disputed costs it had transferred was not as broad as the contractor
alleged.
In Patricia I. Romero Inc. d/b/a Pacific West Builders,
the ASBCA held that: (i) it lacked jurisdiction over claims for
delay and impact costs not previously presented to the Contracting Officer
for review; (ii) other claims (faulty modifications, superior knowledge,
delays, equipment failures allegedly caused by the Government, etc.)
were barred
because the facts giving rise to them should have been known to the contractor (which
had incurred some costs related to them) more than six
years before the contractor asserted the claims; (iii) there is no requirement that all costs
be known and incurred before a claim can be submitted; and (iv) the contractor failed
to establish the elements of equitable tolling to avoid the limitations
period. The Board also held that the contractor's delay claims based on the
the alleged
unavailability of escorts into a contract facility and the Government’s direction to re-locate a compliant restroom to a different location were filed within the six year limitations period
and, therefore, would not be dismissed.
In J&J
Maintenance, Inc., d/b/a J&J Worldwide Services, the ASBCA held that: (i) it
lacked jurisdiction over a claim for monetary relief presented for first
time at Board where the original claim to the Contracting Officer specifically
disclaimed any assertion of a right to monetary relief; and (ii)
the Board had
jurisdiction over a claim for nonmonetary declaratory relief seeking
the interpretation of contract terms where the claim was not masking
a claim that could only result in monetary relief--here a
decision on the the
claim might affect performance methods the contractor would choose to
utilize under the contract going
forward.
In
Brandon Staffing Solutions LLC, the CBCA: (i)
noted that the dismissal of an appeal for failure to prosecute operates as adjudication
on the merits, unless otherwise specifically stated; and, therefore,
(ii) held that a subsequent appeal of the same matter was
barred by res judicata.
In
Acuity Engineering & Technical Services, LLC fka Michael Baker Global
Services, LLC, the CBCA held that allegations in
the Complaint that liquidated damages as assessed were punitive were
sufficient to survive a motion to dismiss for failure to state a claim.
In
UnitedHealthcare Insurance Co., the CBCA held that:
(i) it had jurisdiction over an appeal involving a contract to provide health
care services to OPM employees because the contract explicitly stated it was
governed by the CDA; and (ii) a claim for breach of the implied duty of good faith and
fair dealing would not be dismissed because it was based on essentially
the same operative facts as the claim for breach previously presented to
the Contracting
Officer for a decision. Subsequently, the Board
denied the Government's motion for reconsideration.
In Gilbert Solutions, LLC,
a decision without precedential value under Board Rule 12.2,
the ASBCA held that it lacked
jurisdiction over an appeal from a termination for cause because the contract
was
void ab initio
due to the firm's material misrepresentation in its bid that it could
timely supply the brand of trailers it had bid.
In
Goodloe Marine, Inc., the ASBCA denied the
agency's motion to dismiss an appeal for failure to comply with the
requirement in FAR
52.214-2 (the "Suspension of Work" clause) that claims be
submitted as soon as practicable after a suspension is lifted because, although
a claim submitted almost six years after a suspension was lifted
was clearly
not within the time limit of the clause, there was no evidence
of prejudice to the Government from the delay. The Board said
it was saving for another day the argument that FASA's
six-year limitations period overrides any shorter
limitations periods in a contract.
In
MECTS
Services Joint Venture, the ASBCA dismissed
(as untimely) an appeal filed by a joint venture more than 90 days after
one of the contractor's representatives (the CEO of one member of the
joint venture) received the Contracting Officer's decision by
certified mail, even though copies of the decision mailed to two other
representatives of the contractor were returned as undeliverable, and
the agency subsequently sent copies by email several weeks later,
which the contractor had appealed within 90 days of their
receipt.
The ASBCA held it lacked jurisdiction over the appeal of
LR General Solutions, LLC, because even if the contractor's termination settlement proposal could be considered
a claim, there was no signature attached to the otherwise correctable certification.
In
OSC Solutions, Inc., the ASBCA held it lacked CDA
jurisdiction over issues arising under a BPA (and unrelated to
the underlying Schedule contract) because a BPA is not a contract.
In
Primary Rate, the CBCA dismissed an appeal for lack of
jurisdiction because a letter merely asking the Contracting
Officer to reevaluate the acceptability of certain rejected items was not a claim,
even though the Contracting Officer had issued a decision
denying the request.
In
Beacon Point Assocs. LLC, noting that a quote in
response to an RFQ is not an offer that the Government may accept (instead,
the Government's order following an RFQ is an offer that the quoter
may accept), the CBCA dismissed an appeal alleging the Government
failed to comply with certain terms in the appellant's quote because those
terms were not incorporated in the order.
In
HPM Corp., the CBCA held that: (i) it had
jurisdiction over nonmonetary contract interpretation claims whose
resolution could affect performance of the contract; but (ii) the claims
in this case must be
dismissed because (a) the contract did not mandate that the parties engage
in mediation if one party requested it, and (b) absent an allegation that the
Government had employed chicanery, the fact that it had engaged in
negotiations with plaintiff satisfied the requirement for good faith
negotiations, and nothing in the contract compelled the Government to
reach an agreement
with the contractor in those negotiations.
In
F.H. Cann & Assocs., the CBCA dismissed the Government's affirmative counterclaim
for unjust enrichment
because it was contingent, alleging only what would happen if
the contractor's claim were sustained on appeal, but also held that the Government
could continue to allege
unjust enrichment as a defense to the contractor's claim.
In
OST, Inc., analyzing the Government's motion for summary judgment,
the CBCA held, inter alia, that: (i) a statement of
the amount of G&A that the contractor would invoice for if
the agency would approve its claim was sufficient as a sum certain;
(ii) the contractor was reasonable in
assuming invoices not in dispute when its original claim was submitted had
become disputed by the time of its second claim due to the Government's
failure to pay them in the interim; (iii) the contractor's breach claim
should be limited to amounts stated
in invoices that the Government had refused to pay and could not include amounts
never submitted to, or rejected by, the Government; (iv) the contractor failed to
provide the required notice under the "Limitation of Funds" clause for
a three-year period and no exceptions to that notice requirement applied in this
case; (v) for purposes of the CDA's six-year limitations period, the
contractor's claims accrued
when the contractor should reasonably have known that its subcontractor was
under billing; and (vi) the subcontract was an illegal cost-plus-percentage-of-cost
contract, limiting the contractor to quantum meruit recovery.
In
Paul Schmidt d/b/a Patco Realty, the PSBCA dismissed the
contractor's appeal as moot after the city refunded the Use and Occupancy
tax payments the contractor had made and then had attempted to obtain
reimbursement for from the Postal Service.
In
PAE Applied Technologies LLC, the ASBCA denied the Government's motion to dismiss based on
the alleged lack of
a Contracting Officer's decision, holding that the Contracting Officer's demand letter
issued to break a stalemate between the parties over the amount the contractor
should repay of payments
previously made to it for allegedly COVID-related costs adequately informed the contractor of
the nature of
the Government's claim
and contained sufficient information so that the contractor could easily
calculate the amount claimed.
In
South Texas Health System, the CBCA decided what it construed to be
the Government's motion for summary judgment, holding that: (i)
the contractor's failure
to exhaust a permissive administrative remedy (which had been added to
the contract
by a unilateral mod) before appealing did not bar the contractor's claim;
(ii) a bilateral release of claims "which were or which could have been
asserted in [prior docketed CBCA appeal]" limited the release in a way that
did not apply to the contractor's current
claims despite very broad language concerning coverage contained
elsewhere in the release; (iii) the Board would not opine whether the
release constituted an accord and
satisfaction defense, which is separate from a release argument,
because the Government did not raise it in its briefing, and, therefore,
the contractor did not
have an opportunity to respond to it during briefing; but (iv) certain
individual claim items were barred by the CDA's
limitations period
because, pursuant to FAR 33.201, they had accrued more than six years before
the claim was filed.
In
PAE Applied Technologies LLC, the ASBCA denied the Government's motion to dismiss based on
the alleged lack of
a Contracting Officer's decision, holding that the Contracting Officer's demand letter
issued to break a stalemate between the parties over the amount the contractor
should repay of payments
previously made to it for allegedly COVID-related costs adequately informed the contractor of
the nature of
the Government's claim
and contained sufficient information so that the contractor could easily
calculate the amount claimed.
In
MVP Network Consulting, LLC, the ASBCA dismissed an appeal filed more than 90 days after
the date that all the available evidence indicated the contractor had received
the Contracting Officer's decision.
In
Cobra Acquisitions, LLC, the CBCA dismissed an
appeal because the appellant failed to allege the existence of a federal
procurement contract, which is necessary to establish CDA
jurisdiction. Specifically, (i) an agreement for hurricane clean-up
between the appellant and a Puerto
Rican government agency to be funded by FEMA (whose representatives
allegedly guaranteed to the appellant that it would get paid from FEMA funds) was
not an express or implied-in-fact procurement contract between the appellant
and FEMA;
(ii) under the Stafford Act, the Puerto Rican agency did not meet the requirements to
be considered as purchasing on behalf of FEMA as its purchasing agent;
and (iii) even if the appellant were considered a third party beneficiary of
the contract
between FEMA and Puerto Rico, there is no CDA jurisdiction over third party
beneficiary claims.
In
Framaco Int'l, Inc., the CBCA denied the contractor's request for declaratory relief based on
an alleged
breach of contract because it would not provide the appropriate remedy
for breach, i.e., money damages.
In N.A.C.E. Inc.,
an appeal of a CPARS rating,
the ASBCA denied the contractor's motion to file an amended Complaint because the proposed
amendment would have amounted to an untimely appeal of a default termination.
In
Research Analysis & Maintenance, Inc., the ASBCA analyzed whether
each of various challenged allegations in the Complaint were new claims or
whether they were based on the same operative facts previously presented
to the Contracting Officer (most were). The Board also held that parts of
the claim that Government contended
should have included sums certain were just descriptions of
various acts of the Government that the contractor considered to be the
source of the amount it was claiming, but
the contractor clearly was seeking only the costs it alleged it incurred
to comply with FAR 52.215-2, which it identified in a sum certain
amount.
In
AeroKool Aviation Corp., the ASBCA denied the Government's motion to dismiss
the appeal, holding that: (i) a breach proposal that
was originally submitted in the same document as a termination
settlement proposal (TSP) ripened into a claim when the contractor
certified it and requested a Contracting Officer's decision; (ii) the breach
claim was independent of the TSP proposal because it was based on
a different theory of relief and sought different damages; and
(iii) the Government's
dilatory processing of the TSP created an
impasse, converting the TSP into a CDA claim. The Board directed the
Government to issue a decision on the TSP.
In
Optum Public Sector Solutions, Inc., the CBCA held it lacked jurisdiction over
an appeal from a Contracting Officer's letter requesting
reimbursement for certain payments because the letter did not constitute
a final
decision (no demand for payment, no sum certain, no explanation of
appeal rights, and no identification as a final decision).
In
Restoration Specialists, LLC, the ASBCA dismissed all but one of a slew of claims submitted by the contractor as barred by the six year limitations period because,
inter alia: (i) for the purposes of claim accrual
analysis, there is no such thing in the law as a single
accrual date for all claims under the rubric of a global
claim; (ii) the contractor's claims that the Government
priced individual task orders in a way that violated the
formula stated in the contract accrued no later than when
the Government first paid the contractor utilizing pricing
that the contractor considered incorrect for each order;
(iii) a claim that the Government failed to exercise
options in bad faith accrued when the contractor learned
the Government would not exercise the first option year,
and claims for the remaining option years did not survive
under the continuing claim doctrine; and (iv) claims based
on government-caused delays accrued when the contractor
became aware of the alleged government acts that resulted
in the delays. Subsequently, the Board
denied the contractor's request for reconsideration.
In
Shoreline Foundation, Inc., the ASBCA held that the contractor's contention that it experienced delays caused by another
contractor's bid protest, which was only submitted as an REA to the
Contracting Officer, could not be appealed to the Board in
connection with an appeal of the Contracting Officer's decision on the
contractor's subsequent CDA claim for weather related delays and
remission of liquidated damages.
In
Colony Constr., the ASBCA denied the
Government's motion to dismiss a pro se plaintiff's appeal or,
in the alternative,
for a more definite statement because the appellant's statement was a
"vintage" claim for a wrongful default termination:
[The contractor] claims that the Corps has wrongly terminated contract
#W912WJ-22P-0131 for ‘default’ and not ‘convenience.’ We pray that the Board will
change the designation accordingly. [The contractor] is asking for no monetary damages.
In
Crowley Government Services, Inc., the ASBCA denied the Government's
motion to dismiss the appeal for lack of jurisdiction because
the Contracting Officer's decision purporting to rescind a
disputed CPARS rating stated that the Government stood by the accuracy
of the factual substance of the CPARS:
At least at this early stage of the
litigation, we identify in this appeal the following live issues: (1) whether, given the
reservation in the rescission decision of the "factual substance" of the CPARS ratings,
that "factual substance" somehow survives the contracting officer’s rescission
decision, to the prejudice of [the appellant]; and (2) whether, if so, the "factual substance" of
the CPARS ratings is fair, accurate, and consistent with [FAR] Subpart 42.15. Consequently, we deny the motion to dismiss for
lack of jurisdiction, without prejudice.
Subsequently, the Government's motion for
reconsideration
was
denied.
In
JE Dunn Constr. Co., the ASBCA denied the
Government's request to dismiss the appeal due to the alleged failure
by the contractor to
state a sum certain for each separate item in its claim because the CAFC's
recent
decision in
ECC Int'l Constructors was that the sum certain requirement is
not jurisdictional so that challenges to it can be forfeited if raised too
late, and here, the Government did not raise the issue until after the
hearing on the merits (even though the Board had sua sponte raised the
question before the CAFC issued its
ECC Int'l Constructors decision). Subsequently, the Board
denied the Government's motion for reconsideration.
In McCarthy HITT – Next NGA West JV,
the ASBCA denied the Government's motion to dismiss the appeals on
the grounds that
Complaint failed to state any claim upon which relief could be granted.
Specifically, the Board held that: (i) the contractor sufficiently alleged
the elements required for (a) at least one
constructive change claim, i.e., that the Government required it to
perform in a manner different from the contract requirements, (b) a constructive suspension of the work, and (c)
a finding of at
least one breach of the implied duty of good faith and fair dealing; and
(ii) the Government's sovereign acts defense was not conclusively
established by the pleadings alone as an affirmative defense to the entirety of all
the claims,
as it must be for the Government's motion to dismiss to succeed.
In
Windamir Development, Inc., the ASBCA held it had jurisdiction over
the contractor's appeal from a default termination,
but not over: (i) its claim of government-caused delay not previously
presented to the Contracting Officer for a decision; (ii) its request
for a declaratory judgment that its interpretation of certain contract
specifications was correct (because in the terminated contract, this
was
no longer a live dispute); and (iii) its claims for monetary relief
because no monetary claim had previously been presented to the Contracting Officer.
In
A4 Constr. Co., the ASBCA struck the portions of the Complaint related to allegations involving separate and distinct subclaims,
each arising from materially different and unrelated operative facts,
for which the contractor failed to identify sums certain in its original
claim to the Contracting Officer.
In
GLJ, Inc., the ASBCA granted summary judgment for
the Government in dismissing an appeal pursuant to the
fulfillment of a bilateral settlement
agreement reached as a result of ADR and held that it lacked jurisdiction over an alleged verbal agreement
reached during ADR for an issue not previously presented to the Contracting
Officer for a decision and concerning a different agreement from the one
that was the subject of the appeal.
In
Parsons Government Services, Inc., the CBCA denied the agency's motion to dismiss for failure to state a claim because
the contractor adequately pled the elements to support its claims of superior
knowledge, breach of the implied duty of good faith and fair dealing, and
impracticability of performance, and the challenges raised by the agency
to those allegations would have to await development of the
record.
Changes/Constructive Changes/Contract
Interpretation/Breach/Authority
In
Betance Enterprises, Inc., the ASBCA held that, under the "Permits and Responsibilities" clause,
the contractor was responsible for the cost of repairing roofs damaged by
hailstorms after the contractor began working on the roofs but prior to project
completion and issuance of the requisite roof warranties, and prior to government
acceptance of the work.
In
Dynamic Systems Technology, Inc., the ASBCA held that under
the Service Contract Act, the contractor was responsible for
the increased
costs after it knowingly failed to utilize and price the proper labor
category in its offer, anticipating that it would submit a claim for an
equitable adjustment after award and that the claim would be granted.
In
CJW Contractors, Inc., the ASBCA held that the contractor's interpretation of
the contract's requirements (that pipe hanger support would be installed from the existing
steel W and S roof beams and that new roof beams would not be required) was reasonable, and any ambiguities in those requirements were latent. Subsequently, the Government's motion for reconsideration
was
denied.
The CBCA sustained an appeal by
Rooker Coweta LLC because the lease in question
unambiguously required that the parties calculate the
Real Estate Tax Base through the full assessment method rather than by using a negotiated
tax base.
The CBCA dismissed the appeals in
Monbo Group Int'l because, inter alia: (i) the Government
not required to exercise any contract options and, therefore, did not
breach the contract by failing to do so; and (ii) nothing prevented the Government
from changing Contracting Officers, and the new Contracting Officer had
the proper warrant.
In
Heart & Core LLC, the ASBCA held that a fixed-price
contract placed the risk of increased material/labor/shipping costs on
the contractor, and the pandemic
did not change that calculus. Subsequently, the Board
denied the contractor's motion for reconsideration.
In
SAL Logistics, the CBCA held that (contrary to the Government's
contention), the record
indicated the Contracting Officer's representative had the authority to
direct the contractor to perform the extra work in question, and,
therefore, the
contractor was entitled to the portion of its claimed costs
that it substantiated with adequate proof.
In
Team Systems Int'l, LLC, the CBCA held the contractor was not entitled to recover
a restocking fee after the Government
decreased the number of bottled waters it ordered because the contract
unambiguously required the contractor to incur costs before it could recover
such fees, and it did not require any actual restocking.
In
Vigor Works, LLC, which involved contract
interpretation, the ASBCA held that the contract clearly contemplated
that: (i) a contractual document labeled the Integrated Program Master
Schedule was intended to be maintained, and updated, by the contractor
throughout the life of the contract
to reflect the contractor's current schedule planning; (ii) no particular update
of that document was
intended to be an enforceable schedule that could be used as the basis for a constructive
change claim against the Government; and (iii) the contractor's interpretation to
the contrary fell outside the zone of reasonableness.
In
True Excellence Group, LLC, the CBCA held that there was sufficient
information in the contract to characterize it as an IDIQ
contract with a guaranteed minimum, even absent standard
IDIQ provisions. The Board also: (i) dismissed the claim
that the Government failed to order the required minimum
because it had not previously been presented to the
Contracting Officer for a decision; (ii) held that the
exercise of options under the base contract did not result
in the exercise of task order options absent specific
language to that effect; and (iii) held the Government did
not breach the duty of good faith and fair dealing by
ordering only the required minimum quantity, so the risk
that providing only that quantity did not cover the
contractor's costs was on contractor. Subsequently, the
Board
denied the contractor's motion for reconsideration.
In
SBC Archway Helena, LLC, the CBCA held that a builder/lessor was entitled to 138 days of compensable delay in
the Government's issuance of a notice to proceed (after reducing
the original claim by
the number of delay days the Board found to be attributable to
the contractor). The Board rejected the Government's
contention that the claim was an improper attempt to collect rent early.
In
Anglin Consulting Group, Inc., the CBCA held that: (i) the contractor
was not entitled to overhead and profit on work deleted by
a bilateral deductive change as a result of a change in the agency's requirements;
(ii) the Government's decision not to exercise the final two yearly options
was
unobjectionable due to a lack of proof of bad faith or arbitrary and
capricious conduct; (iii) the contractor failed to prove the required elements of
economic duress in challenging the deductive mods; and (iv) the contractor failed to
prove the elements of breach of the implied duty of good faith and fair
dealing and bad faith in challenging deductive mods and the decision not to
exercise the options.
In
Brightwood Management Partners, the CBCA found no
evidence to support the contractor's contention that the decision not to
exercise an option resulted from the Contracting Officer's unjustified animus
toward the contractor and his desire to replace it with one that the Contracting
Officer preferred. The Board also held that deciding not to exercise
an option does not breach the implied duty
of good faith and fair dealing, and delays in issuing task orders did
not breach that duty either because (a) the delays were caused by outside
funding issues and (b) the contractor was not required to perform before the
task orders were issued.
In
Rice Solutions, LLC,
the CBCA denied the contractor's claim for
on-call certified registered nursing anesthetist hours because those services were
included in the basic contract rate.
The CBCA denied all of the contractor's claims
in
Sage Acquisitions LLC because: (i) the Government had already met
the minimum order requirements under three ID/IQ
contracts when it terminated those contracts for convenience as a
result of a successful bid protest, which meant it was not liable to the contractor for
(a) termination for convenience costs, (b) equitable adjustments for
alleged negligent estimates, (c) any recovery based on the Government's alleged
superior knowledge, and (d) the diversion of work to other contractors;
(ii) the contractor did not establish the Government's actions
breached the implied duty of good faith and fair dealing or
were based on a mutual mistake of fact; (iii) the issuance of
a six-month task order
after the exercise of an option was proper since the contract required the need for
task orders to be considered annually, not that they each be a year in
length; and (iv) the Government fulfilled the terms of a (requirements) bridge contract by assigning
the contractor all of the work that the bridge contract contemplated during its
period of performance, and the contractor could not complain of the
agency's use of
other vehicles for different work, especially when the contractor knew of this
situation before entering bridge contract and did not object at that time.
Subsequently, the decision was
affirmed by the CAFC.
In
IMC Constr. Group, which involved contract
interpretation, the ASBCA sustained the contractor's appeal because:
(i) the most natural reading of the disputed task order specs
was that the
Government would acquire the item at issue from a different provider and
that the contractor was forbidden from supplying it; (ii) the Government's contrary
interpretation was less plausible; (iii) those conclusions would not change even if
the Board were to consider the extrinsic evidence offered by
the Government; and (iv) even if
the contract were ambiguous on the point, it was only latently so, and,
therefore, the contra proferentem doctrine would construe
the ambiguity against the Government as the drafter of the
disputed language. Subsequently, the Government's
motion for reconsideration was
denied except the Board permitted the Government to challenge the quantum award
since the prior appeal was only supposed to cover entitlement.
In
John Douglas Burke, the CBCA held that: (i) a contractor that had
been fully compensated at prescribed hourly rates under purchase orders
for professional services could not have those orders invalidated (and
be paid at the hourly rates of a federal employee) where the documents
did not establish the purchase orders were, as he claimed,
proscribed contracts for personal services; (ii) since the purchase orders
were express contracts, the contractor could not recover under an implied-in-fact
contract theory; (iii) the Board lacked jurisdiction over the
contractor's claim for unjust
enrichment, and, even if there were jurisdiction, unjust enrichment does
not apply when there is a valid contract; and (iv) the Board lacked CDA jurisdiction
to grant direct relief under the Fair Labor Standards Act,
the Back Pay Act, and the Service Contract Act.
In
Triple Canopy,. Inc.,
a decision involving contract interpretation on remand from the
CAFC, the ASBCA held that fees imposed as a penalty by the Afghan Government on private security
companies with more than 500 employees were after-imposed
taxes within the meaning of FAR 52.229-6 for which the contractor was
entitled to be reimbursed.
In
Frazier Investments Inc. d/b/a Optimum Construction, the ASBCA
held that a fixed-price bilateral modification for added
work, which its subcontractor had warned the contractor would not cover all
costs, operated as an accord and satisfaction of the contractor's claim for increased
costs because the contractor did not enter into it under duress (there
being no
evidence of the verbal threat alleged by the contractor), and the
modification was not
unconscionable (no evidence of overreach or bad faith by the
Government).
In
Williams Bldg. Co. (granting the Government's motion for partial
summary judgment), the CBCA held that although a convenience termination did not moot earlier-filed monetary claims,
bilateral modifications and releases barred the contractor's claims based on (a)
an alleged cardinal change stemming from changes needed to correct multiple
defects in the original specs and (b) the agency's alleged delays in responding
to the contractor's notices of changes arising from those defects. The
Board also held that the
contractor failed (was unable) to provide any evidence of damages from other alleged
delays occurring after the releases were executed, despite having been
directed to do so by Board.
In
Stephane Alrivy, the CBCA held that: (i) a vehicle sold at auction
had not been misdescribed; and (ii) the Board had no
authority to require the Government to pay for repairs to
the vehicle, which had been altered by the buyer.
In Maxway, Inc.,
the PSBCA denied the Postal Service's offset
claim against the contractor for allegedly missing trips because the Postal Service failed to
present sufficient evidence to meet its burden of proof that trips were
missed, relying on broad, general assertions instead of evidence of
investigations of particular trips.
In
JE Sinn Consulting, LLC, the ASBCA
(under Board Rule 12.2, Small Claims (Expedited) Procedure) held, inter alia, that: (i) the proximate
causes of the contractor's alleged additional costs were (a) the late delivery
of a truck, for which the contractor admits it was responsible and (b)
a severe storm
that, as a force majeure, cannot be the basis for a claim of compensable
delay; (ii) two modifications with standard release language barred
the contractor's delay claims for issues covered by those modifications;
(iii) the fixed price contract did not contain any mechanism for adjustment for
an alleged increase in material price caused by the pandemic;
and (iv) the Government did
not intentionally delay its responses to REAs and provided such responses
within a reasonable time.
In
Rockside 77 Properties LLC, the CBCA held that the GSA was
entitled to recoupment of erroneous overpayments for electricity
unambiguously made the responsibility of the lessor to the extent the recoupments
were not barred by the statute of limitations.
In Amatea/Grimberg JV,
which involved numerous
construction contract claims, the ASBCA held, inter alia,
that: (i) subsurface soil
conditions encountered by the contractor were not a differing site
condition because the boring logs in the solicitation did not constitute a
guarantee that all the soil at the site would be the same as that
encountered in the bore holes, and the contractor's own consultant warned
of the wet soil conditions the contractor subsequently complained of;
(ii) the Government did not breach the implied duty of good faith and fair dealing
by failing to permit the contractor as much after hours and weekend
work as it requested because the contract gave the Contracting Officer
discretion in this area and there were rational bases for the Contracting Officer's
determinations on this issue; (iii) the flow rate encountered at the site
was a differing site condition because it differed from the rate
identified in the solicitation, but the contractor was still required
to present adequate proof for each of various impacts it
claimed based upon that site condition; and (iv) various delay and acceleration claims
were hampered by fact that the contractor did not present testimony from
a scheduling expert (while the Government did) and did not present
significant other evidence concerning the impact of the alleged delays on
the critical path.
In Speedway Orion JV, which involved claims by the contractor that it
was delayed by periodic lack of access to the site in part caused by
the presence of other contractors, the ASBCA held that: (i) where
the contractor originally planned to complete the project only
by the contract completion date, but then completed the
project early, there was no basis
to recover delay
damages; (ii) the contractor failed to prove (e.g., with critical
path analysis) that the Government's actions caused delays to the
project; and (iii) the contractor
did not present evidence concerning any of the elements required to
establish a constructive suspension of the work.
In
RLB Contracting, Inc., the ASBCA held that, in
a contract for dredging work, the assessment of liquidated
damages was proper because the contract permitted them and the contractor conceded (a) it
failed to meet the contract completion date and (b) the period for which
the damages were assessed was accurate, while the contractor
did not prove excusable delay due to defective specifications,
differing site conditions, or breach of the implied duty of good faith
and fair dealing.
In
Chugach Federal Solutions, Inc., the ASBCA held that in
a fixed-rice IDIQ contract requiring unlimited building maintenance
service calls, where, prior to award, the parties had engaged in extensive discussions
concerning offerors' proposed staffing levels in relation to the IGE and
other offerors' proposed levels, the contractor could not recover (under
theories of superior knowledge, negligent negotiations, mutual
mistake, or constructive change) its increased staffing costs after
its proposed staffing turned out to be insufficient to timely meet the contract requirement, but,
on the other hand, the contract permitted the Government to deduct for
unperformed work (or work that could not be remedied), not for late
work.
In American Technical Services, Inc.,
a decision under Board Rule 12.2, the ASBCA: (i) dismissed
an appeal of a government claim because the Contracting
Officer had rescinded it; (ii) denied the contractor's claim for
a fixed fee because the contractor already had been paid more than the fee allowed
by the contract; and (iii) held that, although the contractor's claim for overhead and G&A
had been
adequately noticed in its submission to the Contracting Officer, survived
the Contracting
Officer's rescission of the Government's claim, and was not barred by the
six-year limitations period, it failed for a complete lack of
proof
beyond its statement in a disputed invoice.
In
GC Works, Inc., an appeal processed under the small
claims procedure and, therefore, lacking precedential value, the CBCA
held that the contractor was entitled to
some compensable delay for a changed condition when the bolt locations in
the submerged portion of a gate did not match those in contract drawings, but
not to the extent: (i) such work would still have been required if the bolts
had been in the correct locations; and (ii) the contractor was
able to continue other work during the period when the bolt issue was
being resolved or delayed the work, itself.
In
Allard Nazarian Group, Inc., dba Granite State
Manufacturing, the ASBCA held that (pursuant to FAR 16.307(g), the Government's deductions from fixed hourly rate
labor charges under an IDIQ contract due to
the contractor's alleged failure to submit auditable final
indirect cost rate proposals for certain fiscal years as required by FAR 52.216-7
(which allegedly left the Government unable to verify amounts invoiced by
the contractor for those periods of time) were impermissible because
FAR 16.307(a), authorizes such deductions only from material charges. Subsequently, the Board
denied the Government's motion for partial
reconsideration.
In
Facility Defense Consultants, Inc. dba Hanke Constructors, the CBCA held that a bilateral modification,
including release language and accompanying emails, clearly was intended
to resolve all the contractor's claims for "scope creep," which
were,
therefore, denied.
In
StructSure Projects, Inc., the ASBCA held that, although
the Government's closing of a base to a construction contractor due to COVID
was a sovereign act, the Government still had to reimburse the contractor for
temporary facilities that, pursuant to a separate CLIN in its contract,
the contractor had installed prior to the closing and which the Government
continued to use during the shutdown.
In
Sheffield Korte Joint Venture, the ASBCA held that: (i) under
the "Permits and Responsibilities" clause, the contractor not entitled
to extra compensation for costs of fulfilling permitting requirements
imposed by third party state and local governments where the contract
contained only performance specs;
(ii) the contractor presented no evidence that the Government
had misrepresented the permitting requirements; and (iii) unilateral
mods that the contractor had refused to accept did not operate as an
accord and satisfaction preventing the Government from recouping amounts
erroneously paid to the contractor under those mods.
In
Kloepfer Inc., which basically involved a poor job by the contractor
in pleading its case on appeal, the CBCA held that the contractor
had failed
to allege the elements required for either a type I or a type II differing site
condition and that the presence of rock at the site was not unusual or unexpected and was
foreseeable given specific indications in the solicitation.
In
The GEO Group, Inc., which involved contract
interpretation, the CBCA held that a contract to provide and operate prison facilities
unambiguously required use of a specified monthly ramp down price when inmates
were being transferred upon expiration of the contract, whenever that occurred, and
not, as the appellant contended, only at the end of the last possible
(5th) option year.
In
Compendium International, Inc., the CBCA held that the contractor's execution of
a release and final payment barred subsequent
claims that had not been submitted prior to that time or reserved in the
release.
In
Derian, Inc., the ASBCA held, inter alia, that: (i) the Government's partial
termination for convenience eliminated the contract's original substantial completion
date, and the Government failed to establish a new date, so the
assessment of liquidated damages based upon the original date was
improper; (ii) the contractor not entitled to recover its own labor costs
claimed for changed work because its records lacked any explanation
of the work performed and showed only the amounts paid to various individuals by
check number and amount; (iii) the QAR did not direct the contractor to perform changed work
and did not have the authority to do so; (iv) the ACO's silence when
asked about the extend of the QAR's authority could not reasonably be interpreted by
the contractor as a statement of that authority; and (v) the Government's decision to
withhold the contractor's clearance to begin work until it had held a
required preparatory meeting was reasonable and not a basis for
compensable delay claim. Subsequently, the Board
denied the Government's motion for partial
reconsideration.
In
L.S. Black-Loeffel Civil Constructors JV, the ASBCA granted
the Government's motion for summary judgment on all of
the contractor's claims because: (i) the contract's specifications regarding
a thermal break were performance rather than design specs and,
therefore, were not amenable to a defective specifications claim;
(ii) the Government responded to each of the contractor's multiple submissions of
its thermal control plan within the time required by the contract
and with a
facially reasonable basis for rejecting them and, thus, did not
compensably delay the work; (iii) delays associated with the installation of
armor plate were concurrent with delays in providing an acceptable
thermal control plan; (iv) the contractor's differing site conditions
claim should be rejected because the
documents on which it relied were not meant to represent the conditions
the
contractor should be expected to encounter, and weather is not a
differing site condition; (v) there was no basis for the contractor's repackaging
of its other
claims as one of breach of the implied duty of good faith and fair
dealing; and (vi) because the specs were performance specs, they could
not give rise to
a claim of failure to disclose superior knowledge.
In
Superior Maritime Services, Inc., the ASBCA held that: (i) the
Government was responsible for the contractor's costs incurred as a
result of the Government's actions delaying delivery of a fuel pod to
the point
for loading cargo and, when read as a harmonious whole, the contract
did not preclude
the contractor's recovery; and (ii) claimed delays were not caused by the contractor's business decision to follow instructions from an unauthorized
shipper who was not a party to the contract.
In
Derian, Inc., the ASBCA held, inter alia, that: (i) the Government's partial
termination for convenience eliminated the contract's original substantial completion
date, and the Government failed to establish a new date, so the
assessment of liquidated damages based upon the original date was
improper; (ii) the contractor not entitled to recover its own labor costs
claimed for changed work because its records lacked any explanation
of the work performed and showed only the amounts paid to various individuals by
check number and amount; (iii) the QAR did not direct the contractor to perform changed work
and did not have the authority to do so; (iv) the ACO's silence when
asked about the extend of the QAR's authority could not reasonably be interpreted by
the contractor as a statement of that authority; and (v) the Government's decision to
withhold the contractor's clearance to begin work until it had held a
required preparatory meeting was reasonable and not a basis for
compensable delay claim.
In
L.S. Black-Loeffel Civil Constructors JV, the ASBCA granted
the Government's motion for summary judgment on all of
the contractor's claims because: (i) the contract's specifications regarding
a thermal break were performance rather than design specs and,
therefore, were not amenable to a defective specifications claim;
(ii) the Government responded to each of the contractor's multiple submissions of
its thermal control plan within the time required by the contract
and with a
facially reasonable basis for rejecting them and, thus, did not
compensably delay the work; (iii) delays associated with the installation of
armor plate were concurrent with delays in providing an acceptable
thermal control plan; (iv) the contractor's differing site conditions
claim should be rejected because the
documents on which it relied were not meant to represent the conditions
the
contractor should be expected to encounter, and weather is not a
differing site condition; (v) there was no basis for the contractor's repackaging
of its other
claims as one of breach of the implied duty of good faith and fair
dealing; and (vi) because the specs were performance specs, they could
not give rise to
a claim of failure to disclose superior knowledge.
In
Superior Maritime Services, Inc., the ASBCA held that: (i) the
Government was responsible for the contractor's costs incurred as a
result of the Government's actions delaying delivery of a fuel pod to
the point
for loading cargo and, when read as a harmonious whole, the contract
did not preclude
the contractor's recovery; and (ii) claimed delays were not caused by the contractor's business decision to follow instructions from an unauthorized
shipper who was not a party to the contract.
In
CB Portable Toilet Rental and Services, which involved only
entitlement to various claimed costs associated with a
termination for convenience, the ASBCA: (i) dismissed the contractor's breach of warranty argument because
it had not previously been presented to the Contracting Officer for
a decision;
(ii) held that the termination for convenience, itself, which
was specifically allowed by the contract, did not
breach the implied duty of good faith and fair dealing; and (iii)
found that, because the Government had
changed the contract to add work, the contractor's termination for
convenience claim amount was not limited to the items of work stated in
the original contract.
In
Delfasco LLC, the ASBCA denied the contractor's claim because the contract's
EPA clause only allowed a price adjustment for the increased costs of steel,
and the gray iron out of which the contract items (bombs) were made was not
steel.
In
ECC
Int'l Constructors/Metag (JV), the ASBCA held that where
the contractor's initial work did not comply with the contract
requirements, the agency's suspension of work and requirement that the
contractor remedy the problem did not constitute a constructive
change, and none of the specs, documents, or course of dealing cited by
the contractor changed those basic facts.
In Wesley McBride, the CBCA
held that: (i) the appellant's claim for misdescription of an auto bought at a government sale
was untimely
filed according to the terms of the sale; (ii) the alleged
misdescription was neither fraudulent nor material, because
the sale documents warned the car might have defects not included in its description and encouraged potential buyers to inspect it themselves, which
the appellant failed to do; and (iii) the appellant's own breach
(failure to pick up the car) did not entitle him to relief because it
was the
GSA as the non-breaching party that could choose to continue the contract or terminate it.
In
Amentum Services, Inc., f/k/a AECOM Management Services, Inc.,
which involved interpretation issues in a firm-fixed-price contract for
launch services, the ASBCA held that: (i) the contract's minimum yearly
ordering requirement in the final year should include task orders issued near the
end of the year, but not performed until the next year,
but the fact that a task order was de-scoped in that next year reduced
its value in the year it was awarded, meaning the Government breached
the contract by ordering approximately $50,000 less that the minimum
guaranteed amount; (ii) the contractor could not disavow new task order items
added by way of bilateral modifications made without any reservation
of rights; (iii) because individual line items did not have minimum
required values, the Government's decision to stop purchasing jet fuel
from contractor did not violate any contractual provision and did not
amount to a breach of the implied duty of good faith and fair dealing; (iv)
the contractor was not entitled to recover its continuing costs during shutdowns
caused by
hurricanes, and the clause relied on by the contractor only noted the Contracting
Officer "may" consider such claims, which invoked an abuse of
discretion standard that the contractor had not met; (v) there was no ambiguity in
the task item for gaseous nitrogen support, and, even if there were, it was
patent; and (vi) the contractor did not establish its claim for a bidding error
because its own evidence on its mistake was equivocal, and it did not prove
the Government was, or should have been, aware of
the error.
In
Korte Constr. Co., the ASBCA held that the Government was
entitled to a credit for a deductive change for work ultimately not
required of a subcontractor even though the contractor established the
subcontractor did not include that work in its bid because the
subcontractor assumed the work would not be required. The Board's
reasoning is that the subcontractor knew of an ambiguity in
the solicitation but did not raised the issue, essentially
betting its interpretation would be the correct one (which
it turned out to be). Subsequently, the Board
denied the contractor's request for reconsideration.
In
Alfajer, Ltd., the ASBCA granted the
Government's motion for summary judgment because the contractor: (i) failed
to respond to several sections of the Government's motion (including its defense to the contractor's breach of contract
claim, i.e., that a base closure and evacuation undertaken for
security reasons was a sovereign act); (ii) abandoned several of its claims
(e.g., a superior knowledge claim); and (iii) failed to provide evidence of
any allegedly disputed issues of fact (or provided "evidence" that did
not support its contentions) in the case of its claim of breach of the
implied duty of good faith and fair dealing.
In
Granite Constr. Co., the ASBCA held that a 49 day
suspension period for part of the work due to extreme weather
conditions caused by Hurricane Harvey was "reasonable" under
the Suspension of
Work clause (FAR 52-242-14), especially where the contractor had admitted
as much during performance. The Board also held that compensating the contractor only for
30 days during that period also was reasonable because, as the
Contracting Officer had stated: "19 of those days were
anticipated adverse weather delay days identified in [a section] of the
contract, for which
[the contractor] accepted the risk.
In Real Line Logistics Services Co., the CBCA denied a claim for the costs
of an attempted late delivery in response to a unilateral purchase order for construction
supplies to the U.S. embassy in Kabul, Afghanistan, that was closing and being
evacuated because (i) the pro se appellant did not specify a legal
theory of recovery and did not respond properly to the Government's motion
for summary judgment, and (ii) the purchase order was a unilateral
offer to contract that expired by its terms when the appellant did not
proffer delivery by the specified date.
In
Colonial
Press Int'l, Inc., the GAO's Contract Appeals Board upheld the
contractor's appeal involving the Government's recoupment of
payments to the contractor for an alleged breach of the
warranty in the delivered items because the Government
contributed to the breach by informing the contractor that
the products met the Government's specification, when, in
fact, the Government's own testing revealed they did not.
Thus, the Government induced the contractor to provide
products concerning which the Government later complained.
The
Supreme Foodservice GmbH case involved a contract to deliver food to
bases in Afghanistan concerning which the contractor had
admitted (in federal District court) to major fraud. The
case has an extensive history at the ASBCA and the CAFC. In
this latest decision, the ASBCA held that: (i)
the contractor's fraud was not severable
from the remainder of its work on the contract (even if some of that work was not
directly tainted by the fraud) and amounted to a prior material breach
that relieved the Government of its obligation to pay any of the contractor's claims for
work performed on the contract during the original contract term; (ii) the
Government had not justified its withholding of payment on a separate
contract because, inter alia, the Government (a) over withheld on the current contract
and (b) has not established that fraud on the current contract tainted a different
contract; (iii) the contractor would not be permitted to amend its pleadings to allege
quantum meruit recovery because inter alia, to do so would decimate the
prior material breach doctrine; and (iv) the Government's prior material breach
defense did not waive or forfeit its claims that arose prior to the
time of the federal court plea (which was the time that the
Government had obtained its known right to assert the
defense).
In
Central Environmental, Inc., the ASBCA held that the Government
had breached the contract by failing to comply with a
contract requirement that it notify contractor that access
to site would be periodically unavailable or delayed due
to internal road closures during missile testing.
In Konecranes Nuclear Equipment & Services,
LLC, the ASBCA held that: (i) contrary to the Government's contention
on appeal that
the specifications were patently ambiguous, they were clear, and
the contractor's units (cranes) met them (as the Government's engineers and
Contracting Officer had conceded in internal communications before the
dispute arose); (ii) the Government's compensably delayed the project
by its refusal to take delivery of the
cranes
based on (a) a defect in the first unit that the contractor had
quickly identified
and corrected and (b) the Government's desire for a unit that
exceeded the specifications;
(iii) absent a "Suspension of Work,"
"Government Delay of Work," or "Stop Work Order" clause (which the Board would
not
impute to this commercial items contract), the Government breached its implied duty not to interfere by unreasonably inspecting the
equipment; and (iv) the contractor did not concurrently delay the work by refusing
to accept Government's terms for a modification upgrading the disputed
equipment: "We discern no impropriety by [the contractor] in
its negotiating the potential contract modification, but [sic] refusing to take a bad deal, and,
thus, we reject the Navy’s assertion of a prior material breach of the implied duty of
good faith and fair dealing.
In
Ecology Mir Group, LLC, a case involving contract interpretation,
the ASBCA held that: (i) in a fixed-price IDIQ task-order contract for tree
removal and pruning services, the agency did not misclassify services that
allegedly should have been under tree removal as tree pruning because
the definition of tree pruning in the contract covered the type of work the
contractor was required to perform; and (ii) the fact that the agency had deleted
the pruning CLIN in another task order under the same contract did not
establish a course of dealing and did not affect the Board's conclusion as to
the meaning of the contract.
In
Herman JCG Co. JV, the ASBCA held that, almost
immediately after rejecting it, the Government constructively accepted
the contractor's VECP phasing plan by executing a contract modification that
basically incorporated its features:
Here, the government made
[the contractor's] phasing plan part of the contract when
the contracting officer unilaterally modified the contract to incorporate the Final
Design. . . . This modification adopted the substance of [the contractor's] VECP—its
phasing plan and trailer reduction. . . . When the contracting officer executed
Modification No. P00002 just one day after rejecting the VECP, she did so with full
knowledge that [the contractor] considered its phasing plan to be a VECP. . . .
Through this action, the government constructively accepted [the contractor's] VECP. Thus,
we conclude that the government rejected [the contractor's] VECP, in form, but accepted it, in fact.
Terminations/Liquidated
Damages/Government Claims
In
Alan E Fricke Memorials, Inc., the CBCA overturned a termination for cause because
the contractor was not late on
deliveries at the time of the termination, and the agency failed to provide a
proper cure
notice requesting adequate assurances of future performance.
In
Hughes Group LLC,
the CBCA converted a default
termination to a T for C because the Government waived its right to terminate for
deficient work by failing to terminate for months after a cure notice
while contractor continued to work in a situation where the Government
initially refused to pay for the continued work but then did
so before issuing the default termination.
In
Angela Wilson, the PSBCA upheld a default
termination for (admitted) abusive behavior (threats and insults) directed at
the public by the carrier (who also had an unauthorized rider in her
vehicle). The Board noted alleged provocation was no excuse.
In Safaa Al-Rawaby Co.,
the ASBCA upheld the default termination
of a fixed-price contract because the contractor, despite repeated
warnings from the Government, made it clear it could not and would not make additional
deliveries without an increase in price. Subsequently, the
contractor's motion for reconsideration was
denied.
In
BES Design/Build, LLC, the CBCA held that: (i) the Government
did not waive its right to terminate a construction contract by
permitting the contractor five months beyond the original completion date before
terminating because during that time, the Contractor Officer had
communicated two new dates to the contractor and issued a cure notice and
a show cause letter to the contractor; (ii) the contractor
had offered no adequate excuses for
the delay in completing the project, specifically no proof
that (a) a damaged window was not caused by the contractor, itself,
(b) damage to structural beams was caused by a subcontractor and
were outside its scope of work; or (c) there was
a specific timeline in the contract by which the Government was required to
respond to submittals, that the time it took to do so was unreasonable,
or that the the allegedly delayed submittal responses impacted the project
schedule; (iii) the time the Government took to pay two pay progress payment requests
was not unreasonable because the Government had legitimate questions
concerning the adequacy of those requests; (v) the contractor's delay claim
was not sufficiently
related to a prior settled claim for asbestos abatement so as to be barred by
res judicata; (vi) there was a lack of evidence to support claimed overhead
costs during the alleged delay; and (vi) the Government properly paid
the surety rather than
the contractor for the accepted amount of completed work. Subsequently, In
BES Design/Build, LLC,
the CBCA
denied
the contractor's motion for reconsideration because there was no "newly discovered evidence" as
alleged by the contractor.
In Consorzio Stabile GMG S.c.ar.l.,
the ASBCA held that: (i) on appeal, the Government may justify
a default termination on a different basis from the one cited in
the original default decision;
and (ii) an appeal of the default termination of a construction contractor for failure to
make progress must be sustained because the Government waived the delivery date by
waiting for more than four months after the delivery date to issue a
show cause notice (and still longer before terminating) without once (i) mentioning that
the delivery date was
still in effect or that time was of the essence or (ii) threatening
to assess liquidated damages.
In
Trident Eng'g & Procurement, P.C., the ASBCA upheld
a default termination because (a) the contractor's
representative prematurely retrieved five vehicles that were supposed
to be leased to the Government, (b) the contractor failed to cure the default,
and (c) the Government was not responsible for the issue. The Board
also held that although it had
jurisdiction over the contractor's claim that a CPARS rating was unmerited,
there was a
rational basis for the Contracting Officer's rating. Finally, the
Board denied various cross motions for
summary judgment relating to costs associated with past-due leasing, maintenance, and traffic
violations because there still were material facts in dispute regarding all
those issues.
In
Sungjee Constr. Co. Ltd., the ASBCA upheld a default termination for failure to complete
the contract by the last
of several extensions established by bilateral mods, finding there was no excusable delay
because: (i)
the contractor failed to timely request gate passes and often failed to
provide required information with its applications for passes; (ii)
the contract
specialist who sent an email requiring a suspension of work lacked
the authority to do so, and the contractor would not have completed the work on
time in any event; and (iii) there was no evidence that changes in the
Government's
personnel delayed the contractor or prevented it from working.
In
Adventus Technologies, Inc., the CBCA held that:
(i) the contractor's execution of a release of contractor claims did not cover
government claims so the contractor was free to continue to defend against
a termination for cause; (ii) the Government acted appropriately in
applying FAR 52.212-4 to a contract for commercial janitorial services; (iii)
the failure to
provide required janitorial services for significant periods of time
constitutes default; and (iv) the contractor failed to provide evidence that its
default was excused by its inability (due to COVID) to hire a
replacement worker for the one who quit; and (v) the failure to respond to cure
notice was alternate adequate grounds for termination.
In
CB Portable Toilet Rental and Services, which involved only
entitlement to various claimed costs associated with a
termination for convenience, the ASBCA: (i) dismissed the contractor's breach of warranty argument because
it had not previously been presented to the Contracting Officer for
a decision;
(ii) held that the termination for convenience, itself, which
was specifically allowed by the contract, did not
breach the implied duty of good faith and fair dealing; and (iii)
found that, because the Government had
changed the contract to add work, the contractor's termination for
convenience claim amount was not limited to the items of work stated in
the original contract.
In
INQEM LLC v. DHS, the contractor's failure to respond to the Government's motion for summary
judgment meant: (a) the CBCA adopted Government's statement of facts as
undisputed; (b) the contractor was in default for failure to deliver
the contract items (bottled water) on time; and (c) the contractor presented no
evidence in support of its excuse that a Florida hurricane somehow delayed
the delivery of bottled water to locations in Arizona.
In
CB Portable Toilet Rental and Services, which involved only
entitlement to various claimed costs associated with a
termination for convenience, the ASBCA: (i) dismissed the contractor's breach of warranty argument because
it had not previously been presented to the Contracting Officer for
a decision;
(ii) held that the termination for convenience, itself, which
was specifically allowed by the contract, did not
breach the implied duty of good faith and fair dealing; and (iii)
found that, because the Government had
changed the contract to add work, the contractor's termination for
convenience claim amount was not limited to the items of work stated in
the original contract.
In SBA Contracting, LLC,
the ASBCA upheld a termination for cause because the contractor failed to timely
deliver 120 of 121 required trucks in a non-severable contract in a
situation where the Government had not extended the delivery
date, and the contractor's excuses for nonperformance (a
tight supply market for trucks, COVID, an alleged course of
dealing on a previous contract, and the fact that the
Government had revised the specs for this contract) were not
valid. Subsequently, the contractor's motion for
reconsideration was
denied.
In Incircle Management, Inc.,
the ASBCA upheld another termination for cause because
the contractor was aware that the SOW included in the
underlying RFQ, but not in the purchase order, nevertheless applied,
and the contractor failed to clean areas required by the SOW without
a valid excuse.
In
Flatland Realty LLC, the ASBCA held that the Government's
default termination breached a lease to provide concession services
(which did not contain a T for C clause) because the record did not support
the Government's assertion that lessee had failed to provide services for
two years, and the lessee was not required to provide a new Use and
Development Plan five years after the original five-year plan. The
Board also held that after the Government
revoked the lease, a building that the lessee failed to remove from the
property became
government property, so the lessee was not entitled to compensation
for the
building. Subsequently, the Board
denied the contractor's motion for reconsideration.
In
Ben Holtz Consulting Inc. dba California Avocados Direct, which
involved cross motions for partial summary judgment, the
CBCA held that in a contract to provide boxes of produce
at a fixed price per box, even though there were other contract
requirements related to the required deliveries, prong one of
a convenience termination settlement recovery was limited to
the price for
delivered boxes plus recovery for any partially completed boxes at the time
of termination and did not include any of those other requirements, such
as the establishment of a distribution system.
In
The Kmask Group LLC, the CBCA upheld a default termination because
the contractor failed to timely
provide PPE gloves and failed to provide adequate assurances of performance
when requested by the Government, and the COVID delays to PPE supplies
that the contractor had offered as an excuse began two years prior to
the start of the contract and, therefore, did not amount to an
unforeseen event.
In
Eagle Group Sportswear, Inc.,
the GAO's Contract Appeals Board upheld a termination
for default of a purchase order by the Forest Service for
baseballs with special printing after the contractor failed
to timely deliver conforming items despite numerous chances
to do so provided by the Government.
In
Ben Holtz Consulting Inc. dba California Avocados Direct, which
involved cross motions for partial summary judgment, the
CBCA held that in a contract to provide boxes of produce
at a fixed price per box, even though there were other contract
requirements related to the required deliveries, prong one of
a convenience termination settlement recovery was limited to
the price for
delivered boxes plus recovery for any partially completed boxes at the time
of termination and did not include any of those other requirements, such
as the establishment of a distribution system.
In Gulf Extreme Eng'g & Constr., the ASBCA upheld the default termination of
a construction contract for failure to
diligently prosecute the work after the contractor's unsatisfactory
response to a cure notice and its subsequent failure to present evidence
at the Board of any
valid excuses for its delays:
The government has amply shown that the record supports
the termination decision. Thus, the burden shifts to [the
contractor], and it has not, during the project or here,
shown that its many delays, scheduling errors, poor
management decisions, or work slowdowns and stoppage, were
beyond its control. In fact, [the contractor's] challenge
to the termination is almost entirely unsupported and
consists only of repetitive and conclusory
characterizations of select correspondence between the
parties, without citations to any substantive record
evidence.
In Angela Pugliese,
the PSBCA denied the Postal Service's claim
for excess reprocurement costs following a default termination
because the Postal Service failed to present evidence of the precise amount
spent on reprocurement:
In sum, the Postal Service did not provide sufficient evidence of its damages. To award any amount here would require us to speculate about evidence that was not produced, and we will not do that. While the Postal Service presented evidence of payments made to the replacement contractor for part of the period it seeks, it failed to explain why the payments differed each month and why none of those payments corresponded with either of the only two annual rates provided for the replacement contracts. This explanation was critical because the contracts, which were fixed price with economic price adjustment, permitted certain increased price adjustments that cannot be fairly placed on
[the defaulted contractor]. To show what it spent in reprocurement, the Postal Service needed to explain the variable payments to
[the reprocurement contractor] and show that they were for services or costs that would have applied to either contractor. The Postal Service’s failure to do so is fatal to its case.
Costs, Defective
Pricing, and Cost Accounting Standards (CAS)
In
Voxtel, Inc., which involved appeals of three categories of costs
disallowed by the Government, the ASBCA held: (i) in large part
because the Government disallowed certain costs without conducting an
audit, either before or after the appeal was filed, the Government failed to
prove that (a) challenged IR&D costs were unallowable direct costs and
(b) unpaid salary paid to the contractor's President and recorded as
ordinary gain/loss on the contractor's tax returns was unallowable profit;
but (ii) the documentation provided by the contractor
was inadequate to
establish that certain claimed rental fit-up costs were allowable.
In
Washington River Protection Solutions LLC, which involved costs
challenged by the Government under a CPFF contract, the CBCA
held that, under FAR 15.4041, the contractor had established that
the disputed costs for all
but one of thirteen "staff augmentation" (i.e., temporary) workers
were reasonable.
Quantum
Discovery/Procedure
In
CJW Contractors, Inc., the ASBCA held that the contractor's interpretation of
the contract's requirements (that pipe hanger support would be installed from the existing
steel W and S roof beams and that new roof beams would not be required) was reasonable, and any ambiguities in those requirements were latent.
In
Tantara Corp., the ASBCA held, inter alia, that: (i) the limits on
the number
of interrogatories in the Federal Rules of Civil Procedure do not apply in
ASBCA appeals; (ii) although the Board will not direct the Government to
adopt the contractor's definition of a term for purposes of responding
to interrogatories, the proper course is for the Government to object
to the disputed term and then to answer the interrogatories as best as
it can; and (iii) contention interrogatories are permissible prior to the
conclusion of discovery to the extent that they aid in narrowing the
issues.
In Beechcraft Defense Company, LLC, Beechcraft Corporation, Textron
Aviation Inc., and Textron Aviation Defense, LLC, the ASBCA denied the contractor's motion for summary judgment that
the Government's CAS claims were barred by the six-year limitations
period because there was, as yet, insufficient evidence in the record to make
the
determination when the Government first should have known of the basis of its
claim.
The CBCA denied cross motions for summary
judgment in
Management Technology, Inc. because the parties did not
produce (and apparently did not have) copies of the task order or the underlying contract.
In
RLB Contracting, Inc.,
the ASBCA held that the contractor's out of time request (by two weeks) to extend
the deadline
for responding to the Government's summary judgment motion (after
prior requests for extensions had been granted without objection from the
Government) did not constitute a failure to prosecute and did not
entitle the Government to have its motion ruled on without a response.
In
U. S. Bank National Ass'n, the ASBCA, in granting the contractor's
motion for summary judgment that the Government had
breached a contract by failing to reimburse the contractor for certain
payments it had made, took the unusual step of finding for the
contractor on a crucial, disputed factual issue because the contractor's proposed findings of fact on
that issue were properly supported with evidence while the
Government's responses to those proposed findings were not.
In
Jita Contracting, Inc., over the Government's objection, the CBCA
permitted the contractor to file
an amended answer asserting two new affirmative defenses to
a default
termination because they were
closely related to defenses already raised, and the Government did not show
that it lacked, or could not obtain, information that it would need to rebut either new defense.
Alfajer, Ltd., the ASBCA granted the
Government's motion for summary judgment because the contractor: (i) failed
to respond to several sections of the Government's motion (including its defense to the contractor's breach of contract
claim, i.e., that a base closure and evacuation undertaken for
security reasons was a sovereign act); (ii) abandoned several of its claims
(e.g., a superior knowledge claim); and (iii) failed to provide evidence of
any allegedly disputed issues of fact (or provided "evidence" that did
not support its contentions) in the case of its claim of breach of the
implied duty of good faith and fair dealing.
In
MTS General Contracting, the ASBCA denied the Government's motion for summary judgment because of
material issues of fact as to which, and how many, invoices were in dispute.
In
Radmacher Bros. Excavating Co., Inc., the ASBCA denied the Government's motion for summary judgment on
a Type
2 Differing Site Conditions claim because, even though the contractor
had presented scant evidence in response to the Government's
motion, the record was not sufficient to
decide whether stationary trains on railroad tracks for extended
periods of time were an unknown or unexpected condition that should allow recovery.
In Stellar J Corp.,
the CBCA denied cross motions for
summary judgment involving a construction contract because they both failed
to address two threshold issues of law concerning the meaning of the
contract and failed to resolve a material issue of fact that would
remain after those issues were resolved.
In
Kellogg Brown & Root Services, Inc., the ASBCA, over the
contractor's objections, permitted the Government to amend
its answer to add
the affirmative defense of material misrepresentations because: (i)
although the Government delayed for years in asserting the defense, it did not
unduly delay after the litigation on the contractor's claims
commenced, and, given that the Board is granting the contractor extra
discovery time to prepare for the defense, the delay did not prejudice
the contractor; (ii) a common law affirmative defense need not be
raised in a Contracting Officer's decision before it can be asserted
at the Board; (iii) the defense does not fall within the CDA's
prohibition on the "agency head to settle,
compromise, pay, or otherwise adjust any claim involving fraud"; and (iv)
it is too
early in the proceedings for the Board to decide whether the affirmative defense will make
the contract void
ab initio (in which case defense cannot be waived)
or merely voidable, which would allow the contractor to
raise the defense of waiver.
In
Sonabend Co., the ASBCA denied the
Government's motion for summary judgment due to material issues of
fact. Specifically, the Government claimed that broad,
unqualified release language in two
mods meant they constituted a release and accord and satisfaction of all
the contractor's claims on all task orders, but the fact that a separate mod
was signed for each one of two of the task orders suggested that the
release in either mod was not intended to cover all task orders (else
there would not have been a need for two mods).
Equal Access to Justice Act
The CBCA issued two, similar decisions concerning applications for EAJA fees.
In
GC Works, Inc., the CBCA awarded only part of the hours claimed in
an EAJA application because, although
the agency's position in the original litigation was not substantially justified, the
contractor had originally claimed
more delay hours than it was entitled to and did not own up to its
contribution to the delays. Likewise, in
SBC Archway Helena, LLC,
the CBCA reduced the appellant's EAJA claim because, although it was the prevailing
party in the underlying litigation, it had claimed substantially more than it was
ultimately found to be entitled to.
In
Michael Johnson Logging, an EAJA claim, the CBCA held that the agency's
decision to dispute the contractor's claim of breach of the implied duty of good faith and
fair dealing was justified, and, because the contractor recovered only 9.8% of its claimed
costs for a breach of contract claim, its EAJA recovery was limited to that percentage of
its claimed EAJA fees and expenses.
Court of Federal
Claims
Contract Disputes
Act (CDA) / Tucker Act / Jurisdiction / Standing
In
Groundbreaker Development Corp., the court held that: (i) it
lacked jurisdiction over portions of a count in the Complaint that
asserted monetary claims (e.g. for nonpayment of an invoice
and for termination for convenience costs) related to a default termination but
not previously presented to the Contracting Officer for a decision;
(ii) a corporation whose status previously had been terminated in
the incorporating state lacked
standing to sue; and (iii) the plaintiff's motion to amend the Complaint to
allege de facto incorporation status as of the time of
commencing suit would be granted, without deciding the merits of that allegation.
In
CanPro Investments, Ltd., which involved claims under a lease, the
court, inter alia: (i) refused to strike
the amended Complaint filed without leave of court
because there was no showing of prejudice to the defendant; (ii) held
that the contractor lacked standing to
complain of the behavior of third party visitors to an SSA office (because
these were not acts of the Government) but also found the contractor
had standing to complain of the sheer
volume of visitors because the 'normal and customary use' of the leased
premises did not contemplate a limitless number of visitors, especially
where the Government required in person attendance by some of them;
(iii) dismissed claims for economic damages because adequate claims were not
previously presented to the Contracting Officer for a decision and
because the contractor
could not use the court's discovery process to remedy deficiencies in its
original presentation to the Contracting Officer; and (iv) dismissed certain
damages claims because the contractor failed to present evidence of
causation.
In
Aries Constr. Corp., the court held it had
jurisdiction over a claim for breach of the implied duty of
good faith and fair dealing based on the Contracting
Officer's denial of the constructive change claim submitted
to him. In other words, the Contracting Officer's decision
on the original claim supplied a necessary element of the
breach claim (undermining a contractual promise by failing
to pay the contractor on its claim for extra work).
In
H&M Assocs., LLC, which involved a default termination, the court
held that it lacked jurisdiction over claims for breach of
the implied duty of good faith and fair dealing, prior material breach, the Contracting
Officer's abuse of
discretion, and commercial impossibility/impracticability to the extent they effectively requested a change in the contract—whether that be an extension of time,
a contractual modification, or an equitable adjustment--because no such claims
had been first presented to the Contracting Officer for a
decision. The court also held it lacked jurisdiction
to grant the contractor's requests for declaratory relief because this
was a contract case. However, the court did have jurisdiction
over the prior material breach and abuse of discretion issues to the
extent they did not seek money damages but were presented purely as affirmative
defenses
to the default termination and had been pled adequately to
survive the Government's motion to dismiss.
In
CanPro Investments, Ltd., which includes decisions (reissued on
reconsideration) on various motions for partial summary judgment
involving a GSA lease, the court held
that: (i) the lessor lacked standing to
complain of alleged injuries caused by individual visitors to the leased
(SSA) offices but had standing to complain of the unexpected volume of
visitors (some whose attendance was compelled by the Government) that
allegedly violated the limits in the lease; (ii) the court
lacked jurisdiction
over an appeal of a claim for economic damages because the claim originally
presented to the Contracting Officer did not have sufficient information
for the amount being claimed to be determined; (iii) certain
individual elements of
claims for damages for which the lessor could not provide evidence of
causation must be dismissed; and (iv) the lessor had adequately pled
its claim based on the Government's alleged superior
knowledge.
In
Groundbreaker Development Corp., the court held
it lacked jurisdiction over a contractor's monetary claim
arising out of a default termination because it had not previously
been presented to the Contracting Officer for a decision.
In
The Government of Greece Hellenic Air Force, where a claim had accrued when
the Government
repeatedly gave the contractor notice that an LOA on which the claim was based had
closed, there were no grounds for accrual suspension, and the court lacked
jurisdiction over a suit on the claim filed more than six years later.
In
THE CENTECH GROUP, Inc., the court denied the Government's motion to dismiss
a complaint alleging non-payment for certain items purchased
by sub with the Government's approval because the alleged damages
were
fairly traceable to the alleged breaches by the Government and were not
so
remote as to lack a causal connection.
In
ECC CENTCOM Constructors, LLC, the court held that the doctrine of claim preclusion entitled
the Government
to summary judgment as to the contractor's claims that were previously decided by the
ASBCA (and affirmed by the CAFC) as well as claims that could have presented
to the Contracting Officer and decided at the Board along with the
claims previously decided there.
In
J. Star Enterprises, Inc., the court dismissed
a suit for failure to state a claim because: (i) the
contractor had not filed its certified claim for remission of liquidated damages
until more than six years (actually, six years and a bit more than a
one month) after the contractor had accepted final payment
under the contract reduced by the liquidated damages, which
the court held was the last date that the claim could have
accrued;
and (ii) viewing the assessment of liquidated damages, itself,
as the Government's claim, the contractor also did not file
suit within one year of the date of that claim.
In
Platinum Services, Inc., the court held there
was no meeting of the minds concerning price because the plaintiff had
withdrawn its tenders before they were memorialized in government bills of
lading and, therefore, no contract was formed, and the plaintiff was limited to
a quantum
meruit recovery.
In Triumph Financial Services LLC,
the court dismissed a count in the Complaint by the assignee of
payments to Postal Service freight motor carrier transportation
services contractors alleging violation of the Anti-Assignment Act (31 U.S.C. § 3727(c) and 41 U.S.C. § 6305(b)) because the statute does not apply to
the Postal Service.
Changes/Breach/Contract Interpretation/Defective
Specs/Authority
In
Vanquish Worldwide, LLC, the court granted summary judgment
in favor of the Government, holding that the plaintiff had
come nowhere close to the high standard of proof required to
establish that the Government had acted in "bad faith" by: (i) declining to exercise
the contract's second year
option (when the Government's needs had declined, and the plaintiff had the lowest
ratings and the highest prices of the contractors performing this work);
(ii) terminating for cause 12 shipments the contractor had declared
were "lost"; and (iii) issuing a negative CPAR. The court
also held that the contractor failed to
present evidence in support of its contention that the Government had
failed to follow correct procedures in making deductions from payments
otherwise due the contractor.
In
Baldi Bros., Inc., the court, inter alia,
partially granted the Government's motion for summary
judgment because: (i) the Government's responses to
the contractor's request for information regarding
contaminated soil and its earthwork submittals did not require the contractor
to suspend the work and thus did not
cause a delay; and (ii) the plain language of the contract required the contractor to dispose of excess soil at an offsite disposal facility and to pay for any additional testing required by that facility.
In
American Ground Transportation, Inc., which involved many issues
of contract
interpretation, the court held, inter alia,
that: (i) a concession contract to operate shuttle buses on
a military base had consideration (space, advertising at cost, and
coordination with the Government) and did not grant the concession
contractor exclusivity (and was not ambiguous on this point) and, thus, was not breached by
the Government in
allowing another shuttle bus operator on the base; (ii) permitting the
contractor to continue to operate shuttle buses on base
after the contract expired did not establish an implied-in-fact option
extension of the contract because it was not on the same terms
as the expired contract and the plaintiff did not have any obligation
to the Government after the contract expired, making any further
purported contract illusory; (iii) allegations regarding alleged
violations of the Government's duty of good faith and fair dealing
would not be dismissed because the
concession contractor was induced to pay a commission for the contract on
the promise that the agency would coordinate with it so that
the contractor could
obtain the reasonably expected benefits of contracting; and (iv) the
court lacked jurisdiction over claims for interference with
prospective economic relations and negligence because those were tort claims. In
Slone Assocs., Inc., the court decided a slew of
issues concerning multiple claims by a contractor employed
to repair a concrete dock at a Navy shipyard, holding, among
many other things, that:
(i) submerged piles of timber and buried riprap did not constitute a Type 1
differing site condition (because the fact that they were not mentioned in
contract documents was not an affirmative representation that they
did not exist) or a Type 2 differing site condition (because
the plaintiff
did not prove those items differed materially from conditions ordinarily encountered and
generally recognized as inhering in work of the character provided in the contract,
in this case underwater construction tasks, including pile driving)
and, in any event, the plaintiff did not establish that damages to its
structures were caused by the submerged items; (ii) the court lacked jurisdiction over
a superior knowledge claim not previously presented to the Contracting
Officer for a decision because it was materially different from the
differing site conditions claims; (iii) the Government's change to
the sequence of work was not
shown to have caused the contractor to incur costs beyond those it
would have incurred without the change; and (iv) the Government's
failure to compensate the contractor did not breach the implied duty of good faith and fair dealing
because the Government had promised reimbursement only "if" its actions caused the contractor's extra costs,
which they did not. The court also decided
various quantum issues on other claims brought by the contractor.
In
Platinum Services, Inc., the court denied cross motions for summary judgment because neither party
was entitled to utilize rates different from those specified in
the contract.
In
Manitou Island Transit, LLC, the court: (i) dismissed
the contractor's claim of detrimental reliance
because it was essentially one for promissory estoppel under an implied-in-law contract theory over which
the court
lacks jurisdiction; and (ii) held that the contractor was entitled to summary judgment that
the National Park Service breached its contractual obligation to ensure that
the concession contractor had
access to the docks during the portion of the year that the contractor was obligated to provide ferry services,
which meant the Government was responsible for the upkeep required to maintain the
dock area in useable condition.
E & I Global Energy Services, Inc. involves a challenge to a termination for default
of a contract that the surety had agreed to take over after
the prior contractor had also been terminated for default. The case
turns in large part on the issue whether the plaintiff was
the Completion Contractor and entitled to the protections afforded
that entity. The court held that it was not even though it
was solely owned by the same individual that owned the
official Completion Contractor, which was the party to the Completion Agreement, even though the plaintiff was the entity finally awarded a contract by the Government to complete the work.
I don't pretend to be able to unravel the court's holdings
on that issue. However, the court also upheld the
termination for default because, inter alia: (i)
the contractor admitted
it did not attempt to find replacement subcontractors for the ones who
allegedly delayed its work by refusing to proceed without
pay; (ii) problems with
the subcontractors existed before the contract was entered into, and
there was no reasonable
expectation those problems would disappear after award, so the problems were
foreseeable; (iii) the contractor had waived an alleged excuse that
the contract required him to raise
within 10 days of its occurrence when the contractor had waited more than 2,000 days;
and (iv) alleged unusually severe weather was
only claimed to have cut short the site inspection, not to have delayed
progress during contract performance.
In
Reliability and Performance Technologies, LLC,
which involved the Government's motion for summary
judgment as to all three counts in a suit for nonpayment of indirect
costs in a CPFF IDIQ contract, the court held that:
(i) the contractor's failure to provide notice of
future costs was not a reason to bar its claim under the "Limitation of
Funds" clause because the contract was for "emergent" work that the
Government would identify and that the contractor could not predict,
especially when the facts could establish that the Government
breached its own obligations under the "Allowable Cost and Payment" clause;
(ii) a release that the Government claimed barred the
contractor's claim was at least ambiguous,
especially where the Government's interpretation of the release language was
inconsistent with the remainder of the document in which it appeared;
but (iii) the contractor's claim for breach of the implied duty of good faith and fair
dealing should be dismissed because it was for the same damages as the
contractor's claim that the Government had breached the
"Allowable Cost and Payment" clause, and the Government did not act in a way inconsistent
with the contract's express purpose.
Discovery/ProcedureIn
Advance Business Capital, LLC, the court held that documents inadvertently provided to the plaintiff during
discovery originally sent by a USPS in-house attorney to other
government attorneys and officials were privileged and thus subject to
the clawback provisions of the Protective Order and Stipulated Clawback Agreement
and FRE 502(d) Order entered in this case as well as Rule 26(b)(5)(B) of the Rules of
the United States Court of Federal Claims.
In
Gilead Sciences, Inc., which involved a discovery dispute,
the court held that in seeking to recover attorneys fees as damages after prior findings
of the Government's breaches of contracts, the contractor waived
the attorney-client privilege over the contents of its attorneys' billing statements and must
produce unredacted versions of those records sufficient
for a determination of the reasonableness of the fees.
Court of Appeals for
the Federal Circuit
Jurisdiction/Standing/Res
Judicata
In
Lockheed Martin Aeronautics Co., the CAFC held that the Contracting Officer's unilateral
determination of the price of an Undefinitized Contract Action is not a
government claim under the CDA that can be appealed by the contractor.
In
ECC Int'l Constructors, LLC, the CAFC, in reversing a prior ASBCA decision, held that the CDA's sum certain requirement is not a jurisdictional issue because, inter alia, that requirement was not mentioned in the statute itself. It remains a nonjurisdictional requirement, but the the Government may forfeit its right to object if it waits too long to raise the lack of a sum certain as a defense:
To summarize, it is mandatory for a party submitting a claim under the CDA seeking monetary relief to include a sum certain indicating for each distinct claim the specific amount sought as relief. A claim that does not state a sum certain has not sufficiently pleaded the elements of a claim under the CDA and may be denied by the contracting officer and dismissed on appeal to the boards or Court of Federal Claims for failure to state a claim. If a party challenges a deficient sum certain after litigation has far progressed, however, that defense may be deemed forfeited. . . . For the foregoing reasons, the requirement to state a sum certain in submitting a claim under the CDA is a mandatory, nonjurisdictional requirement subject to forfeiture.
Changes
In Nova Group/Tutor-Saliba, the CAFC affirmed the
prior CoFC decision that the contractor had failed to prove the existence of
either a Type 1 or a Type 2 differing site condition. Specifically the
court held that: (i) the CAFC reviews the CoFC's
application of the parol evidence rule de novo as a question of
law rather than as a rule of evidence; (ii) the evidence Government submitted
relating to a fully integrated agreement was not introduced to vary that
agreement, as would be prohibited by the parol evidence rule, but to
support the Government's contention that the agreement settled the issue;
and (iii) a reference to a design-build contract in a
footnote to the CoFC's decision was not the basis for that
court's
reasoning or its decision and, therefore, cannot be a basis to overturn it.
Terminations
In
Dept. of Transportation v. Eagle Peak Rock & Paving, Inc. the
CAFC reversed the
prior CBCA decision overturning a default termination because the CBCA
had focused
on whether the Contracting Officer had considered the required FAR factors in
making the default decision rather than conducting a de novo review of the propriety
of the termination, which the CAFC now orders the CBCA to do.
Costs/CAS
In
Secy. of Defense v. Raytheon Co, Raytheon Missile Systems the
CAFC reversed the
prior ASBCA decision and held that the contractor's incurred-cost submissions accounted only for unallowable costs incurred during regular
hours and ignored after-hours lobbying and, therefore, did not accurately reflect the proportion of time that
the
contractor's employees spent on after-hours unallowable lobbying activities.
Fraud/Anti-Kickback
EAJA
Supreme Court
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completeness, currency, or accuracy of the sites to which
it links. If you have comments, suggestions for new links,
or corrections, please email me.
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