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. 

In Shoreline Foundation, Inc., the ASBCA, inter alia: (i) granted the Government's motion for summary judgment denying the contractor's defective specification and misrepresentation claims because, interpreted as a whole, the contract placed the risk on the contractor of determining how future sea and weather conditions would impact the cost and difficulty of the work; but (ii) denied the Government's motion for summary judgment on the contractor's superior knowledge claim because further factual development  would be needed to determine the significance and relevance of a report concerning the site conditions that the Government did not provide to the contractor. Subsequently, the Board denied the contractor's motion for reconsideration of the decision on its misrepresentation claim.

In GEMS Environmental Management Services, the ASBCA denied several parts of cross motions for summary judgment due to open issues, but did hold that: (i) in a matter of contract interpretation, the disputed phrase "shall be provided" in one section of the contract should be given the same meaning that the parties agreed the same phrase clearly had in another section of the contract; (ii) the contractor's delay claim was precluded by the "sovereign acts" doctrine because the decision to change the system for issuing passes to allow access to a facility was aimed at all visitors to the installation, concerned a government function (installation security), and was not to the Government’s benefit as a contracting party; (iii) the contractor was not entitled to its costs of preparing a relatively minor RFP that was subsequently determined to be unnecessary by the Government; and (iv) the contractor was not entitled to Prompt Payment Act interest when the Government withheld money as retainage due to project delays. 

In BAE Systems Technology Solutions & Services, Inc.,  the ASBCA held that the agency had not breached the contract when it failed to reimburse incurred pension withdrawal liability costs pursuant to any of the following provisions relied on by the contractor: (i) FAR 52.222-43 covering SCA price adjustments, because of the CAFC's binding precedent in Call Henry; (ii) FAR 52.237-3 covering phase-outs, because the contractor did not perform any work after contract expiration; (iii) FAR 31.205-7 concerning unquantifiable contingencies, because this contract did not provide for the recovery of such costs; or (iv) FAR 52.215-15, which covers segment closing costs, because the contractor conceded there was no segment closing. 

In United Facility Services Corp., the CBCA held that the O&M contractor for a building breached its contractual obligation to "be responsible for any necessary operation and prevention of damage to equipment during on and off duty hours . . . due to inclement weather . . . or freezing temperatures" by failing to monitor pipes that froze and burst (or to reduce the possibility that they might freeze) where the effects of reasonably foreseeable freezing temperatures could have been mitigated or avoided. 

In Direct Steel, LLC, a decision under the ASBCA's Accelerated Procedure rule 12.3, the Board denied all the contractor's construction contract claims, holding, inter alia, that: (i) the contract (which stated the contractor was to be responsible for "any costs" resulting from its choice of a pre-engineered metal building) unambiguously required the contractor to bear all costs of redesign and construction of the foundation caused by the contractor's choice of the building; and (ii) metal studs installed by contractor did not meet the clear contract requirements and were not equivalent to required items, notwithstanding the contractor's (and its expert's) contrary opinion. 

The CBCA issued four decisions involving issues of contract interpretation concerning a contract with the Department of State to construct an embassy compound in Port Moresby, Papua New Guinea. In one, the CBCA held that the  contractor was entitled to its costs of complying with the Government's direction to install an X-ray machine at a rear entrance that functioned as the main shipping/receiving location and the official vehicle fleet entrance because the contract only required the contractor to install X-ray machines at building entrances that "admit the public." However, the CBCA denied the contractor's claims in three other decisions. First, the CBCA denied the contractor's claim for providing fire-retardant-treated plywood for partition walls and ceilings in areas purportedly not specified in the contract because the contract specifications (which took precedence over the drawings) unambiguously required its use in those areas. Secondly, the CBCA denied the contractor's claim for excess costs resulting from an alleged government directive for the sole-source procurement of a kitchen exhaust hood allegedly outside the scope of contract because contractor's submissions requesting substitutions were late according to the contract requirements and were deficient as well. Finally, the CBCA denied the contractor's claim for the costs of modifying and relocating residual current device enclosures because: (i) the Government's acceptance of submittals did not relieve the contractor of its responsibility to meet the contract's requirements; (ii) the contract unambiguously required the enclosures to be both (a) guarded by dead front panels or another mechanism that would protect the devices against incidental contact and (b) readily accessible; and (iii) there was a patent ambiguity concerning where the items should be located about which the contractor had failed to inquire.

In The Gilchrist Law Firm, P.A., the CBCA held it lacked jurisdiction over the premature appeal of a Contracting Officer's letter stating that it was "highly likely" that the contractor's claim for PPA interest would be denied. 

In Framaco Int'l, Inc., which involved contract interpretation, the CBCA upheld the denial of a claim for the costs of installing a lightning protection system in a contract for the construction of an embassy compound because the contractor's initial work did not comply with the contract requirements, and the Government's approval of shop drawings did not relieve the contractor of its obligation to comply with those requirements. 

In another Framaco Int'l, Inc., decision involving the same contract, the Board held that, although the contractor's interpretation of the contract requirement to provide an updated basis of design was either not within the zone of reasonableness or involved a patent ambiguity about which the contractor had failed to inquire, the amount of the Government's deduction for the contractor's alleged failure to provide this updated basis of design could not be sustained because, inter alia, it was based on the contractor's estimate for obtaining progress payments when the applicable clause stated: "The values in the Detailed Estimate will be used as a basis for determining progress payments, but will not be conclusive as to the amounts due the Contractor or as to the value of changes in the work. 

In yet another Framaco Int'l Inc. decision, the CBCA denied a claim for the costs of allegedly out-of-scope landscaping work because the requirement was clarified for bidders prior to contract award and the contractor did not object. Moreover, the contractor offered no support for its allegations of differing site conditions. In still another Framaco Int'l Inc. decision, the CBCA held that the contractor was entitled to recover on its interpretation of latently ambiguous contract drawings as to the requirements for a door frame. However, the contractor lost on five other claims: (i) the contractor proceeded with changed work regarding a glass partition in a staircase without authorization from the Contracting Officer; (ii) a separate grounding system for the PV system was required by the contract, and, even if it were not, the contractor undertook the work absent directions from the Contracting Officer; (iii) a claim that structural drawings did not include certain elements failed because the architectural drawings did, and the contractor was required to comply with both; (iv) the contractor followed its own submittals in the installation of an irrigation tank vault and was not required to do any extra work by the Government; and (vi) the contractor was not required to use GFE for a security gate, so its claims based upon having to upgrade the GFE were baseless.

In Framaco  Int'l Inc., the CBCA held that the contractor was entitled to reimbursement for the customs fees that it paid on behalf of United States for imported construction materials procured for the  embassy compound construction project in Papua New Guinea (PNG) because the United States was the only entity authorized to obtain the customs exemptions, especially after the PNG Government stopped processing the customs duties exemption documentation submitted by the contractor, and the contract and other available documentation established that the United States was responsible for those fees. 

In Targe Logistics Services Co., which involved a contract with the Army to supply aviation fuel to Afghanistan military aircraft and claims for costs incurred after the Afghan government collapsed and the Taliban took over, the ASBCA held that: (i) where the contract provided for compensation only for fuel actually delivered into designated aircraft, the Taliban's confiscation of undelivered fuel was not the responsibility of the Army because the contract clearly allocated the risk of loss to the contractor; (ii) the Army did not fail to provide security under the "Security Requirements" section of the contract, which stated the contractor was responsible for it; (iii) the local commander rather than the Army was responsible for providing access to the relevant facilities; and (iv) the United States' agreement with the Taliban to exit the country was a sovereign act, shielding the Government from liability.

In United Facility Services Corp. dba Eastco Building Services, the CBCA denied the contractor's claim for costs allegedly associated with changes to the equipment that the contractor was to maintain during performance. Specifically, the Board held that: (i) a site visit conducted by the contractor's subcontractors coupled with the requirement for the contractor to verify the equipment inventory list during the contract's phase-in period was fatal to the contractor's claim that the Government withheld superior knowledge as to accuracy of original list; (ii) the facts that the contractor was required to verify and update the original inventory list to account for changes to equipment during contract performance and that the contractor would be paid for updates undermined its claim that the Government's original list was a negligent estimate; (iii) the fact that the Government was slow to approve some contractor-proposed changes to the list did not rise to level of a breach of the implied covenant of good faith and fair dealing; (iv) because the contract explicitly required that the contractor identify any increased costs of maintenance of newly added equipment and specifically listed the conditions for the contractor to be compensated for those costs, the contractor's constructive change claim for this exact work lacked a foundation since the Government did not change the contractor's duties or the contract's terms; and (v) even if the contractor had established one or more of its theories of liability, it failed to present anything close to adequate evidence of quantum.

In Fortis Insustries, LLC, which involved the Government's motion for partial summary judgment in a dispute over government deductions taken during the performance of a contract for base services operations and maintenance services at a federal building that was finally T for C'ed, the CBCA held that: (i) the use of the term "obligations" instead of "claims" in a bilateral release associated with the T for C did not limit its scope; (ii) the release covered all the contractor's current claims regarding the deductions except for one month that the Government conceded was not covered and one other month that the contractor had indicated in correspondence accompanying the release was still at issue; and (iii) the contractor had not presented sufficient evidence that the release had been signed under duress. 

In David Boland, Inc., the ASBCA first noted it was not (and never is) bound by statements in the Contracting Officer's decision, but reviews each appeal de novo. The Board then denied the contractor's constructive acceleration claim (on work adjacent to a railroad right-of-way) that delays caused by passing trains (under the responsibility of a third party railroad) had been longer than anticipated because: (i) the solicitation clearly warned bidders of the situation with the right of way so the alleged delays were not unforeseeable; (ii) the contractor's subcontractor and its own subcontractor were largely responsible for the project delays; (iii) the contractor's own logs showed it was often performing work during the times it alleged delay caused by the passing trains;  (iv) the contractor failed to present any critical path analysis of the alleged delays; (v) during contract performance, the contractor never requested a time extension from the Government; and (vi) the Government did not explicitly or implicitly direct the contractor to accelerate the work.

In Chugach Federal Solutions, Inc., the ASBCA held that the contactor was entitled to recover its costs of a government-mandated requirement during COVID that the contractor's employees quarantine 14 days before beginning performance because the Government had not established that sovereign acts defense applied since the quarantine was among the events envisioned by a specific contract clause stating that the costs of complying with health and safety directives would be handled under the Changes clause. In other words, the "impossibility" prong of the sovereign acts defense was not met: the quarantine was not an event that made the Government's performance of its contractual obligations impossible.

In Commonwealth Home Health Care, Inc., the CBCA held that: (i) although the Government's estimate in a requirements contract was negligently prepared in multiple respects, the contractor did not establish reasonable reliance on the estimate because, as the incumbent, it had access to all the data underlying the estimate and yet did not make reasonable inquiry as to the flaws in it prior to award, thus waiving its right to pursue the negligent estimate claim; (ii) the fact that Government's actual needs fell below the negligent estimate did not invalidate the option exercises because, inter alia, the contract warned that a discrepancy between the actuals and the estimates would not be a basis for an equitable adjustment; and (iii) the contractor waived its right to object to the untimely exercise of option year 2 by performing for four months before objecting. 

In D2 Government Solutions, a Rule 11 proceeding submitted on the record without a hearing, the ASBCA denied all the contractor's breach claims for almost a complete lack of evidence. The contractor alleged that it had been denied access to a database containing key evidence, but the Board found a lack of evidence for that allegation as well.