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Boards of Contract Appeals (ASBCA,
CBCA, PSBCA, and GAOCAB)
Jurisdiction/Standing/Timeliness/Contract Disputes Act
(CDA) Issues
In
ECC Int'l Constructors, LLC, based
on the CAFC's
recent holding on appeal that the CDA's sum certain requirement is
not jurisdictional, the ASBCA held that the Government had forfeited its right to request
dismissal of a claim for lack of a sum certain because it waited until
after the hearing on the merits to do so.
The Board reached reached the same conclusion in a
companion case decided the same day.
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 Alexander Tyler Corp.,
the CBCA held it lacked
jurisdiction over an appeal from the denial of an agency-level bid protest.
In
MTS General Trading & Constr., the ASBCA denied the Government's motion to dismiss an appeal because, as is common practice in Iraq, the
various names for the Iraqi company performing orders under a BPA referred
to a single legal entity, and the various names for the
company's officer on the BPA, individual orders, and the claim certification referred to
the same individual, so the entity identified as the contractor in the
claim and the individual who certified the claim were both
unobjectionable.
In
Royal Hawaiian Movers, Inc., the CBCA held it lacked
jurisdiction over a claim not presented to the Contracting Officer before
the appeal was filed.
In
Aviation Training Consulting, LLC, the ASBCA denied the Government's motion to dismiss
the appeal of a claim for equitable
adjustment for lack of jurisdiction
because there was no indication in the legislative history that Congress intended to exclude
claims involving Section 3610 of the CARES Act from the operation of
the CDA.
In
Thomas Creek Lumber and Log Co., which involved a claim for breach of
a timber-sales contract related to its termination, the court first rejected
the Government's contention that the claim had not
previously been presented to the Contracting Officer because his decision,
itself, signaled his awareness of the amount and basis of the claim. The court then (i) dismissed two counts of the Complaint based on contract interpretation
because the Government clearly terminated the contract using a
provision different from the one on which the plaintiff's claim relied (i.e., due to an environmental disaster, namely a fire, rather than merely environmental considerations); (ii) dismissed another count because the plaintiff failed to cite any contract
provision that the Government had allegedly breached; but then (iii) declined to
dismiss a count alleging that the Government had failed to follow required
rate redetermination provisions because there were disputed issues of
fact that would require further development in the record.
In
Dashti Sanat Logistics and General Contracting,
the ASBCA dismissed an appeal because it could not establish
there had been an underlying
claim to the Contracting Officer (the contractor alleged it had
submitted a claim but
acknowledged the Contracting Officer had never received it).
In
Kandahar Mahali Transit & Forwarding LTD.,
the ASBCA held that: (i) it lacked jurisdiction over decisions that
the contractor failed to timely
appeal because the Contracting Officer's willingness to reconsider
certain decisions did not imply he was reconsidering all of them, and
for six decisions denying payment where the Contracting Officer offered
the contractor the opportunity to submit invoices but the contractor failed to do
so, there was no dispute for the Board to adjudicate; (ii) despite some less
than stellar word choice, the release language in a mod was a general
release of the contractor's claims; and (iii) the contractor's lack of appreciation
of the ramifications of what it was signing was not an excuse,
plus the contractor did not establish it signed the release under
duress: "[The contractor] has not identified any evidence showing that it accepted the terms of the
settlement involuntarily, that it had no alternative to acceptance, or that the
government engaged in coercive acts.
In
Heffler Contracting Group, the ASBCA denied the
Government's motion to dismiss an appeal of a default termination for lack
of jurisdiction. The Board held that the fact that the contractor had raised
the affirmative defense of
excusable delay in its Complaint without having previously submitted
a claim for a time extension to the Contracting Officer did not deprive Board
of jurisdiction over the basic appeal of the termination because it is a government
claim, and the Board could have required the Government to file the
Complaint.
In
Rock Supremacy LLC, the CBCA held that it lacked
jurisdiction over an appeal filed by a subcontractor of the prime contractor
to which the Contracting Officer's decision had been
addressed.
In
Woirhaye Logging Co., the CBCA denied the Government's motion to dismiss
an appeal allegedly sounding in tort
because alleging that the Government negligently failed to fulfill its
contractual duties is sufficient to establish the Board's jurisdiction.
In
Williams Bldg. Co. (a decision difficult to summarize because, as
the Board notes, both parties went off on tangents in their
pleadings and arguments), the CBCA denied the contractor's
motion to strike the Government's "affirmative defense" to
the contractor's T for
C claim. Specifically, the Government alleged that the contractor had
progress billed the Government for certain subcontractor
costs that it "falsely certified" it had reimbursed them
for, which was a prior material breach. The contractor
maintained this was an allegation of fraud over which the
Board lacks jurisdiction. The Board reasoned that because
the T for C turned the fixed-price construction contract
into a cost-reimbursable one, the Government's defense was not really an
affirmative defense and did not require the Board to
determine an issue of fraud since all the Board would have
to do would be to determine the quantum of costs incurred to
the date of termination.
In
Gardner Construction & Industrial Services, Inc., the CBCA denied the Government's preliminary motion to dismiss for lack of jurisdiction based on the fact that the contractor's new owner (who filed the appeal) had bought all the stock of the original contractor. The Board reasoned that the CAFC's precedent in
Engage Learning, Inc., established that all that is required for an initial determination of jurisdiction is a non-frivolous allegation of a contract with Government, which was made here, so any motion to dismiss will have to be decided on the merits.
In
Quality Trust, Inc., the CBCA dismissed allegations in
the Complaint regarding reformation of the contract for mutual mistake, partial termination of the contract, and the amount of final payment due because they were not tied to the amount in the claim previously presented to the Contracting Officer. The Board, however, denied the Government's motion to dismiss for failure to prosecute because the contractor's failure to comply with the Board's directions
could not yet be considered "egregious."
In
North Wind Constr. Services., LLC, the ASBCA denied the Government's motions to dismiss two appeals
brought before the Contracting Officer issued decisions as premature
because: (i) in one instance, the Government offered no evidence that
the time the Contracting Officer had established to issue his decision was reasonable; and
(ii) in the other case, by the time the motion to dismiss had been
filed, an unreasonable amount of time had passed without a decision.
In The Sithe Group, LLC dba
TSG Industries, the ASBCA dismissed, as
untimely, an appeal filed almost two and a half years after
the Contracting Officer's decision because: (i) the contractor offered no evidence
that the Contracting Officer had led it to believe the Contracting Officer was
reconsidering his decision; (ii) a later unilateral mod that made no demand for
payment on the contractor was not a government claim and did not vitiate
the Contracting Officer's decision; and (iii) there was no equitable tolling because
there was nothing
to show that the contractor had diligently pursued its rights or that any extraordinary circumstance
had prevented it from filing its appeal.
In
Peraton, Inc., the court denied the
Government's motion to dismiss a suit for breach of contract due to the plaintiff's failure to name
in the Complaint the specific individual with authority who bound the
Government to the alleged contract, such identification not being
necessary to survive a motion to dismiss prior to the development of
the record.
In
FedResults, Inc., the CBCA denied both: (i) the
Government's motion to dismiss an appeal on the basis that the contractor did not state
a sum certain in the notice of appeal (which it designated as its Complaint)
since the sum certain requirement applies to the claim submitted to the Contracting Officer, not
the notice of appeal; and (ii) the Government's
motion to dismiss the appeal based on the contractor's alleged failure to establish
compliance with Severin doctrine, i.e., being liable
to its sub on a pass-through claim, because the motion was based on
evidence outside the Complaint which the plaintiff had not yet had an opportunity to
address, the motion, therefore, being premature.
In
US Pan American Solutions LLC, the ASBCA found a contractor's notice of appeal from
a default termination was untimely
because: (i) there was sufficient evidence (including its President's admission)
to establish when the contractor received the decision; and
(ii) the Contracting Officer's failure to
include the standard appeal rights language in the decision was not fatal
because the circumstances showed the contractor was aware of its appeal rights,
and the contractor did not allege prejudice from the absence of the standard
language.
In
Tri Vet Contracting Co., the CBCA dismissed
an appeal for failure to state a claim because the FFP contract placed the risk of
material price increases (including those allegedly caused by the COVID
pandemic) on the contractor.
In
Woolpert, Inc., the ASBCA held it lacked jurisdiction
over an untimely appeal because the contractor had no reasonable basis to conclude
the Contracting Officer was reconsidering the decision at a meeting held between
the parties after the decision was issued: Based on our review of the record, including the video of the December 8, 2022
meeting, the Board concludes that Woolpert did not have a reasonable basis to believe
that the contracting officer was reconsidering her final decision. Rather, the record
demonstrates that Woolpert simply refused to accept “no” for an answer. . . . At the December 8, 2022 meeting, the contracting officer and another USACE
official informed Woolpert at least four times that the decision was final and that
Woolpert could appeal the decision if it disagreed. The contracting officer also made
it clear that she had agreed to the meeting only as a courtesy due to their past
relationship and to assure Woolpert that USACE had thoroughly vetted the decision.
While it is true that the contracting officer stated at the end of the meeting that she
would speak with other USACE officials, she said this only after Woolpert continued
to badger her. She never stated that she would reconsider the decision, and a Woolpert
official acknowledged that the decision was final.
Changes/Constructive Changes/Contract
Interpretation/Breach/Authority
In
Abdul Mutakaber, the CBCA
(interpreting a lease) held that the withdrawal of U.S. forces from Afghanistan did not result from
the "destruction" of the leased premises under the "Destruction of Premises"
provision, and, therefore, did not give the Government the right to immediate
termination under that provision. Therefore, the agency's abandonment of
the premises
would be considered a constructive termination for convenience under
the separate termination provision, but the termination clause did not contain any
requirement that the Government formally "return" the terminated
properties to the lessor (or protect them) following the termination. See also subsequent
decision setting
quantum.
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).
In Edgewater
Construction Services, LLC, which involved contract interpretation,
the CBCA held that: (i) a contract requirement to "REUSE EXISTING [PNEUMATIC] TUBE TRANSFER STATION
LOCATION TO EXTEND SERVICE” to new strctural additions required the pneumatic tube systems installed
in the new additions to connect to the existing Swisslog system; (ii) the tube system desired
by the contractor would not connect to the existing Swisslog system;
(iii) the agency
did not change the contract by rejecting the use of the system proposed by
the contractor and requiring the Swisslog system, which was only one that would
connect to existing system; and, therefore, (iv) the contractor was not entitled to its extra costs
of installing the Swisslog system.
In CSI Aviation,
Inc. (on remand
from the CAFC), although the CBCA
denied cross motions for summary judgment due to disputed issues of fact, it held that
the contractor's
standard commercial terms and conditions (which the CAFC had held were incorporated in
the underlying schedule contract) could not be disregarded entirely just
because some of them were inconsistent with federal statutes and
regulations when the contractor did not rely on the disputed provisions
in submitting its claims and the provisions were not contrary to any rights that
Government
must assert to defend against the claims. The Board also noted there were other issues related to the Order of Precedence clause
that had not yet been argued by the parties, and, therefore,
would not be addressed at this time by the Board.
In
Hamp's Constr. LLC, the ASBCA denied a Type I differing site condition
claim because there were no
representations in the contract documents concerning the admittedly
unexpected conditions the contractor encountered at one point in the site.
In Rita
R. Wadel Revocable Living Trust and 229 Jebavy Road, LLC dba Ludington
Industries, the CBCA: (i) denied the Government's allegation that
the assignee of a lease lacked
standing under the Anti-Assignment Act, 41 U.S.C. § 6305(a)
(2018), and the Assignment of Claims Act, 31 U.S.C. § 3727, because (a) the Contracting Officer's recognition of
the assignee in the final decisions
established an implied-in-fact novation and (b) the assignment was just a reorganization of trust assets between the same parties and, therefore,
was a transfer by operation of law, exempted from the
Anti-Assignment statues; (ii) held that the Government/lessee breached
the implied
covenant not to commit waste by contaminating the building with lampricide
during the lease term;
but (iii) held that the lessor's recovery for breach of the implied covenant not to commit waste
was limited to the diminution in the building's fair market value and
could not
extend to the costs of demolishing the damaged building and constructing
a new one.
In
Amentum Svcs., Inc., which involved claims for extra costs related
to the COVID epidemic, the ASBCA held that: (i) pursuant to FAR 52.222-43(d) and
the contractor's collective bargaining
agreement (CBA) for one contract location, which was specifically made
dependent on California law, the contractor was entitled to an adjustment to reflect its
actual increase in applicable fringe benefits in the form of COVID related sick leave
mandated by California law and the Navy's 14-day quarantine policy,
especially where the Government failed to allege prejudice from the contractor's alleged failure to provide timely notice;
(ii) the contractor was not entitled to the same
result where another CBA did not provide for the applicability of
California law; (iii) the Navy's 14 day quarantine requirement was a sovereign
act not directed only at the contractor, which made performance of each party’s
contractual obligations impossible during the particular 14-day quarantine periods at issue,
thereby establishing a defense by the Government to liability under the
"Changes" clause for any increase in costs that the contractor suffered as a result of the
quarantine policy; and (iv) COVID and the resultant, associated federal actions were not
anticipated when the contract was formed and, therefore, could not be the
basis of a claim by the contractor for mutual mistake.
In
United Facility Services Corp., the CBCA granted the Government's
motion for summary judgment that the O&M contractor breached
its contract by
failing to respond within the required time to a notice of a burst frozen water
pipe in a courthouse. The decision was based, in part, on the fact that
the contractor failed to provide any
evidence of a force majeure excuse in its response to the summary
judgment motion.
In
First Place Auto Sales, Inc., the CBCA held that the purchaser of an auto
sold at public auction failed to establish that agency
misdescribed the condition of its paint because: (i) the agency did not
make any representations concerning the paint; (ii) prior to the sale,
the agency disclaimed any warranty; (iii) the purchaser failed to take
advantage of its opportunity to inspect the vehicle prior to the
purchase; and (iv) the remedy sought by the purchaser (the cost of painting
the vehicle) was barred by the purchase agreement. The CBCA also noted
it lacked jurisdiction over a claim involving another
vehicle purchased during the pendency of the current appeal
because that claim had never been the subject of a
Contracting Officer's decision.
In
King Rox LLC, the CBCA granted the agency's motion for
summary judgment related to its rejection of non-conforming
fuel tanks because they violated
clear PO requirements that they be double-walled and UL-142 compliant,
reasoning that: (i) the
contractor's argument that it supplied a drawing before award showing
single-walled tanks was contradicted by the record (including
the contractor's own witness); (ii) the contractor's argument that it notified the
Government after award that its proposed tanks would not be
double-walled was also not supported by the record (the contractor's post-award drawings did not
specifically indicate the tanks would not be compliant and their silence on
the subject could not be construed as an affirmative disclaimer,
especially when, after accepting the PO, the contractor had
become bound by its terms; and (iii) the four
days the Government took to inspect and reject the tanks after they were delivered
was a reasonable amount of time, so the Government could not be deemed
to have accepted them.
In
BCI Constr. USA, Inc., on cross motions for summary judgment, the
ASBCA held, inter alia, that: (i) the contractor
was not
foreclosed by Blue & Gold Fleet from challenging
the reasonableness of the liquidated damages assessed in the contract because there
was
no allegation that the contractor was aware of the problem with the
rate prior to
bidding; (ii) regardless how the liquidated damages rate was derived, an
amount equal to 0.01% of the contract price per day was reasonable;
(iii) factual issues concerning the date of substantial completion precluded
summary judgment on this issue; (iv) the contractor failed to provide any
evidence that the contract's concrete mix specification was defective,
establishing only that its supplier did not manufacture the type of
concrete specified, was unwilling to make changes to its batch plant to provide the
concrete required by the contract, and ultimately was unwilling to provide the type of
concrete required by the contract specifications; (v) the contractor failed to establish
that the contract made any representations as to the contractor's excessive seepage
Type I differing site condition claim; (vi) a factual issue of whether
and to what extent the condition that eventually caused seepage was
present at the time of award precluded summary judgment on the
contractor's Type II
differing site condition claim; (vii) issues of lack of notice and superior
knowledge also depended on unresolved factual issues; and (viii) the contractor
was not entitled to additional
labor and material costs allegedly caused by the COVID epidemic that
was not
anticipated when the contract was formed.
In
Kandahar Mahali Transit & Forwarding LTD.,
the ASBCA held that: (i) it lacked jurisdiction over decisions that
the contractor failed to timely
appeal because the Contracting Officer's willingness to reconsider
certain decisions did not imply he was reconsidering all of them, and
for six decisions denying payment where the Contracting Officer offered
the contractor the opportunity to submit invoices but the contractor failed to do
so, there was no dispute for the Board to adjudicate; (ii) despite some less
than stellar word choice, the release language in a mod was a general
release of the contractor's claims; and (iii) the contractor's lack of appreciation
of the ramifications of what it was signing was not an excuse,
plus the contractor did not establish it signed the release under
duress: "[The contractor] has not identified any evidence showing that it accepted the terms of the
settlement involuntarily, that it had no alternative to acceptance, or that the
government engaged in coercive acts.
In
Patricia I Romero, Inc., dba Pacific West Builders,
the ASBCA denied the contractor's defective specification claim because
the Spearin doctrine does not apply if contractor does not comply with
the specs. However, the ASBCA denied the Government's motion for summary judgment on other matters (e.g.,
the contractor's standby costs claim) due to disputed material issues of fact.
In
Alexander CPA PLLC, the CBCA held, inter alia, that: (i)
even if the Government has fulfilled its ordering
obligation by ordering the minimum quantity in an IDIQ
contract, the Government
can still breach that contract's implied duty of good faith and
fair dealing arising out of other express obligations; and (ii) a reference to
an "applicable" VA Financial Policy in the PWS, without
more, did not "incorporate" that policy and thus did not impose a
contractual duty on the Government to follow it.
In Framaco Int'l, Inc., the CBCA denied the contractor's claims involving
(i) patent ambiguities in the solicitation concerning which
the contractor had failed failed to timely inquire and (ii) conditions at site that it should have, but did not, investigate or
bring to the Government's attention prior to bidding. The Board also noted
that the contractor's reliance on statements from a COR who
lacked the authority to change the contract was ill-advised and unavailing.
In
Independence Constr., Inc., which involved a contract whose default
had not been challenged on appeal, the CBCA held that: (i)
the contractor was not entitled to payment for
excavation work that did not meet the contract specifications, especially
where the amount the contractor sought was dwarfed by the amount the Government had to
spend on a reprocurement contractor to fix the defective work;
(ii) the contractor was not entitled to the cost of a survey that it voluntarily undertook
to perform absent direction from the Contracting Officer; and (iii) the
Board lacked
jurisdiction over a claim for the costs of a second survey because
that claim had not previously been presented to
the Contracting Officer for a decision.
In
Anderson Contracting, LLC, which involved contract interpretation,
the ASBCA rejected the contractor's claim that it had been
underpaid for compacted fill material it had provided in
order to construct a berm as a result of the Government surveying the work before the
contractor had finished clearing the site, finding that a contract provision requiring
"removal to within 6-inches of the ground surface
of all trees, brush and vegetation" meant removal above ground rather than to a
depth of six inches underground as the contractor contended.
In
Enfield Enterprises, Inc., the CBCA held that a bilateral release of "any and all claims and liability under or by
virtue of this contract or any modification," which did not include
any exceptions, barred the contractor's claim
that the Government's modifications and errors pushed its performance into
a period of adverse weather, even though the release did not mention
weather delays, because the contractor's claim was based on the Government's
alleged actions, not weather delays.
In
Didlake, Inc., the CBCA held that the local
county's increased minimum wage did not take precedence over the contract's
wage requirement established set by the incorporated DOL wage determination, so
the contractor was not entitled to a price adjustment to reflect the county's
rate.
In
Lusk Mechanical Contractors, Inc., the CBCA denied an appeal seeking
compensation under the "Suspension of Work" clause,
holding that a
stay at home order issued by the Governor of the Virgin Islands during
the COVID pandemic meant that the Contracting Officer's own suspension
of work order was not the "sole proximate cause" of the
suspension, and the seldom-invoked contract interpretation rule of "the last antecedent"
did not change the meaning of the Governor's order or the
Board's conclusion.
In
Supreme Foodservice Gmbh, which involved contract interpretation,
the ASBCA held that: (i) the Government had released its
claim because the term "Covered Conduct" in a
bilateral False Claims Act
settlement document included the funds the Government was attempting to
recoup in this appeal; and (ii) the Government's claim was not among
the exceptions listed in the settlement agreement.
In
Omran, Inc., the ASBCA granted summary judgment in favor of the
Government because the undisputed facts established that the breach damages sought by
the contractor as a result of actions by the Taliban were not foreseeable
at the original time of contracting.
In
Enfield Enterprises, Inc., the ASBCA held that the contractor had no right to
claim material escalation costs in a firm fixed-price contract without
an "Economic Price
Adjustment" clause, and the Board lacked jurisdiction over the
contractor's attempt to restyle that claim on appeal as a constructive change claim based on
a delayed notice to proceed because it was materially different from
the material escalation claim previously
presented to the Contracting Officer for a decision.
In
Red Bobtail Transportation, which involves more interesting issues
and analyses than one typically finds in an appeal under the
ASBCA's small claims (expedited) procedure, the Board held,
inter alia, that: (i) the
Government's contention that two claims were actually one was
erroneous because "they were based on different sets of invoices for different missions in different
suites, and therefore involve an examination of different operative facts";
(ii) the limitations period on the claim for improper deductions did not begin to
run before they were actually taken against the invoices being
appealed here; and (iii) the agency's "negative incentives"
taken as deductions in this FFP contract were improper
liquidated damages because they were meant to penalize the contractor
rather than to compensate the Government's for its losses.
In
HELF Investments and Los Portales Assocs., LP, the CBCA denied appeals
from the agency's refusal to reimburse two lessors for
increases in real estate taxes because
the appellants/lessors failed to comply
with lease provisions stating that increases in annual property taxes would be
reimbursed by the agency/lessee only if the lessors submitted invoices and evidence of
payment of the taxes within the times specified in the leases.
In
GSI Constr. Corp., the ASBCA denied the
Government's motion for summary judgment because the Government failed
to mention controlling precedent contradicting its position that the
contractor could not recover for a delayed notice to proceed when
there was no date set in the contract by which the notice must be
issued. The rule is that when there is no set date for the notice to proceed,
the Government
still is required to issue the notice within a reasonable time.
In
Lacy Mechanical, Inc., the ASBCA granted the Government's
motion for summary
judgment concerning a subcontractor's pass-through claim in a task
order for removal and replacement of anchor cables because:
(i) a bilateral contract modification
that included a release operated as an accord and satisfaction of
the contractor's claim for late
delivery of, or faulty, GFE, and none of the Government's actions after
the modification indicated the Government was continuing to consider
the claim; and (ii) the contractor's alternate theory of recovery
based on an alleged implied-in-fact contract must be denied
because an implied-in-fact contract cannot exist where there is an
express contract covering the same subject matter.
Terminations/Liquidated
Damages/Government Claims
In
Costs, Defective
Pricing, and Cost Accounting Standards (CAS)
In
denying the Government's motion for partial reconsideration of the ASBCA's
prior opinion in Allard Nazarian Group, Inc. dba Granite
State Manufacturing, the Board held, inter alia, that FAR 52.216-7(g), does
not give the Contracting Officer an
unfettered right to reduce the costs paid to a contractor
without conducting an audit.
Quantum
Discovery/Motions/Procedure
In In
KUNJ Constr. Corp., the ASBCA denied cross
motions for summary judgment because disputed facts existed as to,
inter alia: (i) the Government's accord and satisfaction and release defenses
based on bilateral mods in that (a) the reasons for
the modifications’ time extensions were unknown, (b) the connections between the work in
the areas addressed by the modifications and the claims are not clear, and (c) the
releases drafted and inserted by the Government did not indisputably reveal the parties’
intentions; and (ii) whether the contractor's claims were barred by the contract provisions
cited by the Government.
In
The Haskell Co., the ASBCA denied the
Government's motion for summary judgment that a bilateral release barred
the contractor's claims
because there were material disputed facts as to whether there was a meeting of the
minds between the parties that "the delays and disruptions arising out of . . . the work
as herein revised” in Mod 1 included the contractor's costs incurred due to unusually severe
weather and seasonal differences allegedly resulting from the Government's project
design changes that pushed construction into adverse weather periods.
In
MLU Services, Inc., the CBCA denied (as frivolous and without requiring a reply) the Government's motion to dismiss a portion of an appeal for failure to timely comply with the Board's order for the contractor to file a response within 15 days to the portion of the Government's answer asserting a counterclaim. The Board noted that the Government had filed its motion only four days after the missed deadline and that dismissal for failure to prosecute is a harsh sanction which should not be applied to a single failure to comply with an order from the Board.
In
Honeywell Int'l, Inc., the CBCA denied the
contractor's motion for summary judgment that a bilateral release barred
the Government's claim because the Board found there were disputed issues of fact concerning the
scope of the release, specifically whether it covered all the findings in
an audit or only one of them.
Equal Access to Justice Act
In Hughes Group LLC,
the CBCA reduced an
EAJA award to the extent the successful contractor/litigant had unduly and unreasonably protracted
the final resolution of the dispute
by rejecting settlement offers and mediation.
Court of Federal
Claims
Contract Disputes
Act (CDA) / Tucker Act / Jurisdiction / Standing
In
Oxford Federal, LLC, over
the Government's objections, the court granted
the plaintiff's motion to amend its
Complaint filed after oral arguments on the Government's motion to
dismiss the original Complaint because there was not undue delay and
the amendments would not be futile (i.e., it was possible they would
survive another motion to dismiss).
In
GoodEarth Distribution, LLC, the court: (i) denied the
Government's motion to dismiss the contractor's claim for breach of
contract due to nonpayment because the fact that the Government remitted
payment to a fraudster account did not alleviate it from its duty to pay
the contractor; (ii) held that the contractor did not allege facts that would support
its contention that the Government's actions in investigating
the possible source
of the fraud (including the plaintiff) or denying its CDA claim breached
the implied duty of good faith and fair dealing; and (iii)
held it lacked jurisdiction over
the contractor's claim for a declaratory judgment that the Government's actions amount
to de facto debarment because the declaratory judgment was not sought in a bid
protest or as "incident of and collateral to" a monetary judgment.
In
PGB Hanger, LLC, the court dismissed a suit filed
as a Fifth Amendment takings claim because it was actually a contract
dispute involving property rights allegedly taken under plaintiff's contract
with the Government: "Although [plaintiff] is the master of its own complaint, it may not create
Fifth Amendment liability by artfully pleading around its contract claims. It is represented by
attorneys, not alchemists.
In
Wolf Creek Railroad, LLC, the court dismissed the
suit because: (i) the plaintiff failed to prove that it had submitted a certified claim letter for a
decision or that such a letter had been received; and (ii) where
a BOA specifically stated that the Government was not a party to
tenant use agreements (TUA) that might be executed under it, the
plaintiff/party
to a TUA was not in privity with Government even though Government had
specifically authorized a TUA with it: A middleman is not automatically an agent. While the Army did provide direction and
authorization to [its contractor] in discrete situations, it also apparently intended to use
[its contractor] "as a buffer
between it and the claims of the subcontractors." [citation omitted]
Thus, the agreements here have not created an agency relationship between [the
contractor] and the Army,
and [plaintiff] is not in privity of contract with the Government.
In
MLB Transportation, Inc., the court: (i) denied the Government's motion for summary judgment that
the contract was void
ab initio due to the contractor's allegedly false representation
as an SDVOSB because factual issues remain concerning that allegation;
(ii) held that the contractor's claims based on allegedly faulty trip volume estimates
were
time barred because they accrued more than six years before they were
submitted, and the letter contractor relied on to avoid that result was
not sufficient to constitute a claim; (iii) held that the contract was patently ambiguous
as to whether it was a requirements contract, and, therefore, contractor, by
failing to timely inquire, lost its ability to make a claim for breach
of requirements contract; and (iv) noted that material issues of fact precluded summary
judgment on the contractor's changes claim.
In
GBA Associates Limited Partnership, although expressing sympathy
with a firm that had not been paid for providing security services to
the Afghanistan
government under an Afghan contract that utilized funds provided by
the
United States to Afghanistan and that was approved by the United
States, the court dismissed the suit because the
firm did not allege facts sufficient to prove that it had
an implied-in-fact contract with the United States to compensate it for
the shortfall in funds owed by Afghanistan. Specifically, the
firm did not
allege facts sufficient to establish that the United States had the intent to
contract with it as a guarantor.
In
Avant Assessment, LLC, the court held that
it lacked jurisdiction over claims the contractor discovered during prior ASBCA
litigation but never presented to the Contracting Officer for a decision,
which, according to the court, remains a jurisdictional requirement despite recent CAFC decisions.
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
BES Design/Build LLC, which involved contract interpretation, where
a task order was ambiguous on the question
whether the contractor was to be paid on a per person/per day basis,
the court
looked to extrinsic evidence, specifically the parties' conduct before the
dispute arose, and found the parties clearly acted as if they agreed that
was the basis of payment. The court also, inter alia, denied the contractor's claim
for unabsorbed overhead under Eichleay because the contractor did not prove it was ever on standby, much less that it was
for an indefinite duration.
In JKB Solutions and Services, LLC,
on cross motions for summary judgment concerning the
Government's alleged liability for breach
of contract for failure to order the required number of
instructional courses, the court held that: (i) the contract to provide all instructors, transportation,
supervision, and non-personal services necessary to perform instructor services
was a commercial items contract because it was on SF 1449 for commercial
items, explicitly incorporated the standard clauses for commercial
items, was for the provision of generic instructional services rather than services
unique to the Government, and resulted from market research that
determined commercial services for this work were available, especially where the contractor failed to
object to that designation prior to award; (ii) because the contract
was a
commercial item contract, the termination clause in incorporated clause FAR 52.212-4
was applicable, and the
Government could use the presence of that clause to support
its constructive termination for convenience defense; (iii) even if FAR 52.212-4 were not applicable,
the normal fixed-price convenience termination clause (FAR 52.249-2)
would be incorporated via the Christian doctrine; and (iv) material
issues of fact remain whether the Government breached the contract
and, if so, whether it acted in bad faith or abused its discretion,
which would render the constructive termination for convenience
doctrine inapplicable.
In
ASG Solutions Corp., dba American Systems Group, a case relying on contract interpretation principles, the court held that: (i) reading all provisions together, a service contract task order required the contractor to assemble a team of 20 qualified professionals at a fixed monthly rate as described in its proposal and was not an illegal personal services contract because the contractor maintained control over its team member employees even though the Government reviewed resumes and approved hires; (ii) the contractor's failure to provide the required fully staffed team was grounds for a default termination despite the contractor's argument that it had not failed to perform the actual requirements of any assignment; and (iii) the Contracting Officer considered the factors in FAR 49.402-3(f) prior to the termination.
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.
In
Fox Logistics & Constr. Co., the court held,
inter alia, that: (i) a subcontractor did not have
an implied-in-fact contract with
the Government to be paid directly when the prime encountered financial
difficulties because there was no mutuality of intent since the
Government never accepted any of the subcontractor's proposals and
specifically rejected two of them (e.g., the subcontractor's
demand that it be paid before it returned to work); and (ii) the
sub was
not a third party beneficiary because the Government's letter to the prime
requiring it to, inter alia, agree to a payment plan to
get its subs paid and to establish a special bank account
to receive payments intended for subcontractors, which the
Government had a right to view, did not establish a
mechanism for the subcontractor to receive the funds
directly.
Discovery/Procedure
In
Sikorsky Aircraft Corp., the court held that:
(i) the contractor's motion to dismiss claims the Government had not yet asserted
on the basis of suspicions raised by the Government's discovery requests
was not proper; but (ii) a protective order was appropriate to
limit the Government's discovery requests to
issues raised in the Contracting Officer's decision. Subsequently, the
court
denied the Government's motion to reconsider the
limitation on its discovery requests.
In
Highway and Safety Services, Inc., the court transferred a case to
the CBCA that was originally
untimely filed there in order to consolidate it with a related appeal
that had been timely filed.
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 United
Communities, LLC, the CAFC affirmed the prior Court of Federal
Claims decision denying the plaintiff's motion for an
enlargement of time to file a late notice of appeal to the
CAFC because there was no showing of excusable neglect by
the plaintiff, just a "garden variety" attorney
miscalculation of the time limit for the notice of appeal.
In Nauset Constr. Corp.,
the CAFC affirmed the
prior ASBCA decision that:
(i) the contractor was not prejudiced by the lack of notice of specific appeal rights in
the Contracting Officer's letter terminating the contract
for default where the letter directed the contractor to the FAR clause
that contained those appeal times; and (ii) the Government's conduct after
issuing the default termination did not vitiate it because the contractor
could not have reasonably concluded the Contracting Officer was
reconsidering the termination decision. The court did note that the
Board had made a harmless error by stating that events after
the 90-day appeal had expired can never be considered in
deciding whether the Contracting Officer has reconsidered
the decision.
In BCC-UIProjects-ZAAZTC Team JV,
the CAFC affirmed the prior ASBCA decision
dismissing an appeal for lack of jurisdiction because the person who
submitted the claims was not authorized to do so on behalf of the
contractor.
Changes/Breach
In Jemison & Partners, Inc., the CAFC affirmed the
prior ASBCA decision that the contractor was to be paid
only for actual
quantity of topsoil placed as opposed to a lump sum based upon an estimate
of how much would be required.
In
Siemens Government Technologies, Inc., a decision labeled as nonprecedential,
the CAFC affirmed the
prior ASBCA decision denying the contractor's claims because: (i)
the claimed costs were not incurred in
connection with the actual task order award (rejecting the argument
that because the Government issued a task order authorizing energy conservation work at some sites, it thereby became liable for the proposal development costs
the contractor incurred
at all sites mentioned in the underlying contract); (ii) there can be no claim for breach of
the implied
duty of good faith and fair dealing in the absence of a contract; and
(iii) there was valid no claim
based on superior knowledge where the claimed actions did not result in
a task order award.
In
MPG West, LLC, a decision labeled as nonprecedential, the CAFC generally affirmed the prior ASBCA decision, holding that in a contract for the provision of fresh fruits and vegetables to commissaries in Korea and Japan: (i) the contract gave the contractor the discretion whether to use local sources or to import produce and (if contractor chose to import) it was required to follow applicable regulations; (ii) the Government was not required to examine the possible price consequences of the new contract model used in the solicitation and did not undertake to do so; and (iii) the DCAA did not act in bad faith in the weekly pricing meetings. However, the court remanded case for further proceedings to determine whether the Government's requirement to use a specified vendor for bagged salads followed by the determination that its imported prices were too high could be a breach because there was allegedly no local sourcing available for its products.
In
International Development Solutions, LLC, the CAFC affirmed the
prior CBCA decision, holding that there was no evidence that the taxes for which contractor
sought reimbursement were actually assessed against, or
paid by, it (as opposed to entities higher up in its business
structure) or were allocable to the task orders at issue.
Terminations
In
Costs/CAS
In
Fraud/Anti-Kickback
EAJA
Supreme Court
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