In Wise Developments, LLC, the CBCA overturned the agency's default termination of a building lease based on an alleged (sporadic) odor bothering the tenants that the lessor had undertaken extraordinary steps to identify but that could never be detected by third parties, much less traced to any source in the building, itself, beyond, possibly, space heaters used by the agency's employees in violation of their lease because the allegedly offensive odor did not satisfy the condition in the default clause cited by the agency to justify the default, i.e., that the lessor had failed to maintain, repair, operate or service the premises as and when specified in the lease or had failed to perform any other requirement of the lease as and when required (especially when the lease did not have any requirements concerning offensive odors). The Board also found that the situation did not constitute a common law constructive eviction because the intermittent alleged odors did not rise to the level of "living or operating conditions . . . so egregious as to constitute substantial interference with the tenant’s beneficial use and enjoyment of the leased premises."

In Eagle Peak Rock & Paving, Inc., on remand from the CAFC, which had reversed the CBCA's prior decision (overturning a default termination) on the basis that the Board had focused on the reasoning in the Contracting Officer's termination decision rather than considering the issues de novo, the CBCA again holds the termination for failure to make progress was improper because the schedules presented by the contractor complied with the contract's requirements and showed it could have completed the work on time considering that two construction seasons remained, and, in the circumstances, the contractor had made adequate progress during the first construction season. 

In Crystal Clear Maintenance, a Rule 19 proceeding solely on the written record, the CBCA denied the Government's half-baked claim for flood damage in a building after a storm (which allegedly resulted from the contractor's work on its building maintenance contract) because: (i)  the proceeding was not bifurcated into quantum and entitlement, and the  Government failed to present any evidence of quantum[!]; (ii) the Government did not establish that the contractor's actions caused the flooding event; (iii) the Government's allegation that the contractor was required to have personnel in the building during the weather event that resulted in the flooding conflicted with the clear language in the contract; and (iv) the Government's allegation that the contractor should have notified that Government that it had moved a sensor failed because the Government did not even prove the contractor actually had moved it.

In JITA Contracting, Inc., the CBCA denied cross-motions for summary judgment concerning the propriety of a default termination. The Board held that the contractor did not establish that the Government had waived its right to terminate by waiting approximately two months after the required completion date because the contractor had not presented any undisputed facts showing that  it "could . . . reasonably have believed that time was not of the essence or that its previous periods of delay had been excused." The Board denied two of the three grounds the Government contended supported its decision to terminate because they were not alleged in the Government's Complaint or any any time before reply briefing in the the Government's motion for summary judgment (this was an issue of lack of adequate notice to the contractor, and these items could still be litigated at a hearing on the merits). The Board denied the remaining portion of the Government's motion alleging that the default was justified by the contractor's failure to complete the project on time because the motion did not include any undisputed facts establishing that the contractor did not have any excusable delays. Finally, the Board granted the portion of the Government's motion alleging that "disincentive deductions" could be taken by the Government for the contractor's delays beyond the completion date because, although the contract language was not "ideally drafted," no other interpretation of the contract's language made sense. 

In Pinewood Inc. fka PNI Incorporation, a Rule 11 proceeding concerning a fixed price contract for repair of a contingency fuel delivery system at an air base in Korea, the ASBCA upheld a default termination for failure to make progress because the contractor had completed less than 4% of the work with more than half the time allotted for the job having passed, and the contractor failed to present evidence that any of its claimed excusable delays affected the critical path. The Board did note that the contractor was entitled to payment for demolition work it had performed prior to the termination. 

In U.S. Aeroteam, Inc., the ASBCA upheld the default termination for failure to make progress of a contract to furnish trailers used to transport aircraft engines because the contractor demanded payment for its disputed claims as a condition of continuing work, violating its duty to proceed pursuant to the "Disputes" clause. 

In Langdon Eng'g and Management, the ASBCA upheld the default termination of a firm, fixed-price contract to refurbish and deliver eight bow thruster nozzles used to propel a type of hovercraft because the contractor failed to deliver any of the contract items despite being granted two significant time extensions to do so and failed to prove its failure to deliver was excusable, relying instead on an unreasonable interpretation of clear specifications and failing to prove its allegations that the bow thruster nozzles (a) differed materially from the OEM drawings, (b) contained manufacturing defects, and (c) could not be refurbished. The contractor also failed to prove its contentions that: (i) the fixed-price contract was commercially impracticable to  perform (because an alleged cost overrun alone was not sufficient for such a finding); (ii) the Government had withheld superior knowledge (because the solicitation documents clearly stated the bow thruster nozzles had reached the end of their useful lives, and the contractor failed to prove that there was any knowledge that the Government possessed but failed to share with the contractor); and (iii) the Government breached the implied duty of good faith and fair dealing in managing the contract or terminating it. The Board also held that the contractor was not entitled to recover money for allegedly out-of-scope repairs because the Contracting Officer did not authorize any such repairs.

In GSC Constr., Inc., a Rule 11 proceeding concerning a contract to design and renovate an Army barracks, the ASBCA held that: (i) the contractor's floor leveling claim was part of a prior request for equitable adjustment that the contractor had released in a bilateral settlement agreement;  and (ii) the Government had established by a preponderance of the evidence that the "most probable cause" of one of two flooding events for which the contractor claimed compensation was the contractor's defective "cross threading"; but (iii) the Government had failed to establish that a second flooding event was due to defective  materials or workmanship in the contractor's Roto-Rrooter. 

In Pontchartrain Partners, LLC, which involved, as a preliminary matter, the interpretation of the scope of a release in a contract for repairs to the Corpus Christi Ship Channel, the ASBCA granted the Government partial summary judgment on the contractor's commercial impracticability claim. Both parties asked the Board to determine the issue of commercial impracticability based solely on the percentage of the contractor's cost overrun. The Board held that the Government's methodology for calculating that percentage (comparing the total alleged cost of contract performance to the total adjusted contract price) was the correct one, and the resulting percentage (37%) was not enough, standing alone, to establish commercial impracticability. 

In Gideon Contracting, LLC, which involved a task order to repair a dam, the ASBCA held that the order contemplated that suspensions of work would be required to allow the release of water when lake elevations exceeded a certain level, and, therefore, under the "Suspension of Work" clause, the contractor could recover only for the portions of the suspension periods where the Government inexplicably continued releasing water after the lake had reached the required level and, in another case, where the Government (again inexplicably) did not permit the contractor to return to work for five days after the required level had been reached. The Board also held that the Government waived its claim for liquidated damages for late completion of the work by waiting more than a year to assert that claim as a punitive response to the contractor's claim. 

In Al Muamroon Trading, which involved a contract to provide heavy material handling equipment to Saudi Arabia, the ASBCA held that: (i) it lacked jurisdiction over the contractor's claim alleging a bad faith T for C because that claim had not previously been submitted to the Contracting Officer for a decision; (ii) the contractor was not entitled to any T for C settlement costs associated with dump trucks that had been rejected as nonconforming and never corrected; and (iii) the contractor was not entitled to any recovery for costs allegedly associated with other equipment because the contractor had not delivered any of it, and the contractor's recordkeeping system was inadequate to establish it had  incurred reasonable charges leasing that undelivered equipment that it reasonably could not avoid (the pro se contractor did not even provide a copy of the purported lease to the Board). 

In All Phase Services, Inc., the CBCA granted the Government's partial motion for summary judgment because the Government established a prima facie case that the contractor was in default for failure to make progress. Specifically, after waiving the original completion date, the Contracting Officer had set a new completion date in a cure notice, and  the contractor's subsequent submission of a schedule based on that date did not establish duress or coercion on the contractor to agree to it. Moreover, the Contracting Officer had rejected an alternate schedule suggested in messages between the contractor and the COR (who lacked the authority to change the schedule), and an inadvertent reference to that alternate schedule in an attachment to one of the Contracting Officer's communications with the contractor did not constitute ratification.  

Costs, Defective Pricing, and Cost Accounting Standards (CAS)

In Parsons Government Services, Inc., the ASBCA  held that the proper interpretation of FAR § 31.205-36(b)(2) concerning the allowability of rental costs incurred by a contractor following the sale and leaseback of a depreciable asset (in this case a building) involves resort to FAR § 31.205-16(d) which caps the recognized gain at the difference between the acquisition cost of the asset and the undepreciated balance at the time of the sale and leaseback "to ensure that the recovery of costs [is] limited to those that would be allowable had the contractor retained title (i.e., the costs of ownership) and neither the government nor the contractor would be worse off because of a sale and leaseback than they would have been had title been retained." 

In D-STAR Eng'g, Corp., which involved a T for C of a CPFF R&D contract to build a fuel-to-power generation system for an unmanned vehicle, the ASBCA held that the DCMA: (i) had provided specific support for its finding that certain contractor-incurred costs after a partial stop work order were not reasonable, and the contractor had failed to rebut that evidence with anything more than generalizations; (ii) had correctly found that certain material costs included in the contractor's engineering overhead pool were unallowable because the contractor had been compensated for them as direct costs on a  prior contract; (iii) had established that the contractor had improperly included certain long-range planning costs in its G&A expenses to calculate its G&A rate for one calendar year because the costs were (a) unsupported or (b) included burden on top of G&A expenses; (iv) had properly documented its reasons for determining that some of the contractor's proposed termination settlement expenses were unreasonable, and the contractor had failed to provide evidence in opposition; and (v) had properly determined that the contractor's claim for various settlement expenses should be reduced by the amount already credited by the Government in its debt demand claim and by the costs of preparing the contractor's certified CDA claim. The Board also held that there was no evidence to support the contractor's claim of a verbal contract for clean-up work. Finally, the Board that the Government had improperly calculated the fee due to the contractor on the terminated contract by misinterpreting the phrase "the percentage of completion of work contemplated under the contract" in FAR § 52.249-6(h)(4)(i). Subsequently, the Board denied the contractor's motion for reconsideration.

In Caduceus Healthcare, Inc., an expedited small claims procedure on the record without a hearing, the CBCA held that the contractor could not recover for costs exceeding the ceiling price of a T&M contract because under FAR 52.232-7 it failed to notify the Contracting Officer that it was at risk of exceeding the ceiling price and failed to provide the Contracting Officer with a revised estimate of the total price to the Government for performing the contract. 

Quantum 

In AICI-Archirodon JV, the ASBCA held that the proper measure of the downward price adjustment for shipping by means other than the required U.S. flag vessel was the difference between (i) the quote the contractor had obtained for the only U.S. flag ship available and (ii) the price the contractor paid for an alternate shipping method. The Board rejected the contractor's assertion that the calculation should be based on the "reasonable" cost of a U.S. flag vessel. 

In HD, Inc., the ASBCA determined the appropriate method for calculating price adjustments for increased wages in covered labor positions in the option years of a contract subject to the Service Contract Act (SCA), which included the predecessor contractor's collective bargaining agreement (CBA). Specifically, the ASBCA held that the price adjustment for option year one was the difference between the rates in the revised CBA covering that option year and the the base year's CBA rates (based on the predecessor contractor's CBA), and for option year two, it was the difference between the CBA for option year two and the CBA for option year one. The Board specifically rejected the contractor's interpretation that the adjustment should be the difference between the appropriate CBA and the prices the contractor had originally proposed for the option years, which were based on the SCA wage rate determination for the locality, which also had been included in the solicitation (but only for the purpose of determining wage rates for positions not covered by the CBA) because the contractor's interpretation would lead to inconsistent and illogical results, would undermine the purpose of the SCA, and conflicted with (a) other provisions of the solicitation, (b) the Price Adjustment clause (FAR § 52.222-43(b)), and (c) the Government's responses to bidders' questions during the solicitation process.  

Discovery/Motions/Procedure

In Sauer Constr., Inc., the ASBCA denied the Government's motion for summary judgment that a release unambiguously barred the contractor's rust remediation claims because the language of the release could be interpreted to be limited to a specific change rather than to all claims, including the claim in dispute.

 In Government Training LLC, the ASBCA dismissed an appeal for failure to prosecute after the appellant essentially ghosted both the Board and the Government by failing to respond to numerous communications and orders from them. Similarly, In Patrick Considine, on its own motion, the CBCA dismissed an appeal for failure to prosecute after the appellant ghosted the Board by ignoring four of its orders after the Board had issued a scheduling order based on the agreement of the parties.

In The Minesen Co., the ASBCA dismissed an appeal with prejudice for failure to prosecute because the appellant failed to respond to several orders from the Board after its counsel was permitted to withdraw.  The ASBCA dismissed two more cases for failure to prosecute after the contractor in each one (a) failed to make a required filing and then (b) failed to respond to multiple Board orders requiring it to do so. Specifically, American Tattoo Society LLC failed to file its Complaint, and CKY, Inc. failed to file a required report on remand from the Federal Circuit concerning its EAJA award, which the Government had appealed.

In Delta T Jr, LLC, the CBCA denied the Government's motion for summary judgment upholding the default termination of an FFP contract to expand a cemetery because issues of fact remained as to the cause of the failure of a retaining wall and whether the contractor was obligated to follow the Contracting Officer's directions to remedy the situation or whether the "Warranty of Construction" clause limited the contractor’s obligations.

In Venergy Group, LLC, which involved the Government's motion to compel the production of certain documents, the CBCA held, inter alia, that: (i) the appellant's offer to make its accounting system available for inspection by the Government was sufficient to satisfy the Government's request for financial and project cost documents from that system, and the contractor was not required to conduct further a search within that system to find and produce specific documents; and (ii) the Government failed to explain how its broad request for audit reports for several years preceding the years at issue in the appeal would provide relevant data concerning the home office overhead costs at issue in the appeal. 

In  HECO Pacific Mfg., Inc., which involved a claim that Government-caused delays stretched performance into a time period when COVID restrictions were imposed on, and further delayed, the contractor's work, the ASBCA denied the Government's motion for summary judgment because: (i) a bilateral modification did not settle or release any claims for costs associated with the COVID requirements that were imposed after the modification and that were unrelated to its revisions to the work; (ii) the foreseeable impact of a government delay that started before COVID but lasted until after the effects of the emergency were known is not strictly limited to what might have been anticipated on the delay’s first day; and (iii) there was not enough evidence in the summary judgment motion to conclude the Government was shielded by the  sovereign acts doctrine in this instance:

The government fails to provide anything to establish that the requirements constituted genuinely public and general acts of the government or were imposed for a broader governmental objective. We have no indication that the requirements were imposed upon anyone other than HECO, or if they were only for HECO how and why they served a broader governmental objective instead of simply increasing its costs. Given that the requirements are not inconsistent with others generally imposed during COVID, it might be reasonable to infer they serve sovereign objectives. But, as the summary judgment movant, the government is not entitled to any inferences in its favor.

Equal Access to Justice Act

In Adapt Consulting, LLC, the CBCA held that: (i) the agency's actions in terminating a contract for default and in denying almost all of the appellant's monetary claims were not substantially justified; (ii) there were no defects in the attorney billing records provided by the appellant; and (iii) absent any specific objections presented by the Government, the Board on its own would determine that the appellant's success on the default termination and most of its claims merited an EAJA award of 75% of its attorneys' total billings.

The ASBCA denied an EAJA application by Michael M.. Tsontos, S.A. because the Government's litigation position had a reasonable basis in law and fact, so that it was substantially justified. 

Court of Federal Claims

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

In The Kennedy Collective, a case that involved contract interpretation, the court dismissed the contract suit, holding that a blanket purchase agreement (BPA) awarded by NOAA to the plaintiff for PPE during COVID was not a binding contract or a requirements contract or an indefinite quantity contract because it was not based on mutuality of either consideration or obligation, so the Government was not liable on the plaintiff's claim for its inventory and disposal costs of PPE that the plaintiff acquired in anticipation of receiving orders that did not materialize, even though the BPA contained some irregularities when compared to a normal BPA, e.g., referring to itself as a contract in several places.

In BES Design/Build, LLC, which involved claims for delay damages, the court denied the Government's motion for summary judgment  concerning two constructive change claims because there were disputed issues of fact as to (a) whether the contract required the contractor to provide designs for the replacement of all plumbing and electric panels or only those that could not be reused and (b) causation, i.e., which party was responsible for the fact that the contractor's design submissions were late. The court dismissed (for lack of jurisdiction) the contractor's claim for the replacement of steam heating with a gas-powered boiler because the claim had not been previously submitted to the Contracting Officer for a decision: "The words 'steam' and 'heating' never appear in the claim. . . .  In fact, they do not even appear in [the plaintiff's] complaint."

In Textron Aviation Defense LLC, the court affirmed the prior CoFC decision granting summary judgment to the Government and dismissing the contractor's Complaint because the underlying claim was not submitted within the six-year limitations period. Specifically, the court held that: (i) the contractor failed to present evidence that it did not have enough information to know or have reason to know the claim's "sum certain" at the time the court concluded the limitations period began to run; (ii) the CoFC correctly concluded the contractor's request for payment under CAS 413 was not "routine" because the alleged amount owed had no connection to the expected or scheduled progression of contract performance, but rather arose from an unanticipated bankruptcy and associated segment closings; (iii) the contractor's predecessor-in-interest sustained damage (which started the limitations period running) when the terminations and curtailment of the pension plans triggered its ability to request CAS 413-50(c)(12) pension-cost adjustments, and not at the much later date when the Government denied its CAS 413 payment request.

In Taino Constr. Group, LLC, which involved claims under a contract to demolish buildings that was terminated for default, the court held that: (i) it lacked jurisdiction over a claim for breach of the implied duty of good faith and fair dealing because the original claim to the Contracting Officer did not provide any information beyond a request for payment, which does not suffice as the "clear and unequivocal statement" of the claim required by the CDA; and (ii) the contractor could not recover for work not accepted by the Government on the defaulted contract.

In Siemens Government Technologies, Inc., a suit for the recovery of the plaintiff's bid preparation costs in its unsuccessful bid for a task order award, which contained counts alleging both a CDA claim and claims under the court's bid protest jurisdiction, the court denied the Government's motion to dismiss the various counts. Specifically, the court held that: (i) FASA did not bar the plaintiff's claims because the plaintiff sought only to recoup the money it spent in its failed bid and did not challenge the issuance or proposed issuance of the task order; and (ii) the plaintiff adequately pled a count for breach of contract by alleging that the contract at issue gave the Contracting Officer the discretion to reimburse bid preparation costs and that he had abused that discretion in failing to do so in circumstances where the Contracting Officer had allegedly failed to perform several actions that  would have facilitated an award to plaintiff. 

In AAECON General Contracting, LLC, an unpublished decision, the court held it lacked jurisdiction over a complaint in intervention filed by the surety in a default termination case because there was no showing the surety had a claim for money damages against the Government, and there was no equitable subrogation because the surety did not establish that it had either entered into a takeover agreement with the Government or financed the completion of the defaulted contract. 

In BroadReach Healthcare Pty Ltd., the court held it lacked jurisdiction due to mootness over a claim concerning the Government's alleged wrongful use of a funding mechanism (in this case a cooperative agreement) because during the pendency of the suit, the Government had canceled the cooperative agreement and there was no possibility of it being reinstated, such that the "voluntary-cessation exception" to the mootness doctrine did not apply. In The Suddath Cos., et al., the court denied two of the consolidated plaintiffs' requests that a protest mooted by the termination of the protested contract "be resolved through an expanded published opinion," rather than "by a short-form docket entry." 

Changes/Breach/Contract Interpretation/Defective Specs/Authority

In THE CENTECH GROUP, Inc., the court held that: (i) the Government had breached a task order for the contractor's acquisition and installation of a communications infrastructure in a building on Vandenberg Air Force Base by failing to pay for materials necessary for that installation that had been ordered on the basis of Government's approval of the bill of materials, even though the Government subsequently  paused the project after which the contractor switched subcontractors and ordered different materials; (ii) the contractor's failure to invoice precisely correctly for the parts was not a "material" breach that would absolve the Government from having to pay for them; and (iii) the Government could not avoid payment by noting that the items had never been delivered because it was the Government that had prevented delivery by pausing the project.

In Sunrez Corp., interpreting, in detail, a Small Business Innovative Research contract with the Air Force to design, develop, and build next-generation air-cargo pallets, the court granted the Government's motion for summary judgment concerning the plaintiff's claim for breach of the implied duty of good faith and fair dealing because, read as a whole, the contract required the plaintiff to initiate a draft technical data package at the beginning of Phase II, develop that package during Phase II, and deliver it before beginning Phase III with enough detail to accurately depict the final product and to allow competitive re-procurement in Phase III, and the plaintiff could not identify any specific promise in the contract that the Government had breached in the various actions that the plaintiff alleged constituted the breach.

In TPMC-EnergySolutions Environmental Services 2008, LLC, which involved the interpretation of an ID/IQ contract with an 8(A) mentor-protégé JV for remediation services at nuclear waste site, the court held in a lengthy opinion, inter alia, that: (i) under the doctrine of contra proferentem, the plaintiff's interpretation of a task order as firm fixed price (rather than fixed unit price) was reasonable and would be adopted; (ii) disputed release language in one task order would not be interpreted as a waiver of the plaintiff's claim for a Type I Differing Site Condition under FAR 52.236-2 because that language differed from the waiver language in other task orders and modifications that did constitute a general release; (iii) a reasonable contractor reading the contract documents as a whole would interpret the statement  that the "top five feet of overburden associated with each burial pit is considered uncontaminated soil" as making an affirmative representation as to the site condition, which turned out to be inaccurate; (iv) the contract documents indicated to a reasonable contractor that certain contaminants would be found underground in packaging and containers, and finding them dispersed in, and not easily separated from, the soil was an unforeseeable differing site condition; (v) the agency breached the contract by failing to disclose its superior knowledge as to both these issues; (vi) the agency breached the implied duty of good faith and fair dealing by (a) improperly conditioning approval of an aspect of the contractor's work plan on its agreement to rates advocated by Government in a separate billing dispute, (b) insisting that the contractor accept language in a mod waiving its right to an equitable adjustment, when the basic contract clearly gave it such a right, and (c) threating the contractor with fines for breaching a supposed 90-day storage limit that the agency failed to disclose actually had been waived by the EPA; and (vii) the agency's actions rendered the task order mod void and unenforceable due to economic duress. 

In B.L. Harbert Int'l, LLC, which involved a contract to replace a taxiway at an Air Force base, the court granted the Government's motion for judgment on the pleadings based on general releases in two bilateral modifications. The first release stated the modification "constitutes compensation in full on behalf of the Contractor and its Subcontractors and Suppliers for all costs and markups directly or indirectly attributable for the change ordered, for all delays related thereto, for all extended overhead costs, and for performance of the change within the time frame stated." The second release covered all claims except any for a time extension that might occur in the future, and there was no such time extension.  

In SLSCO, Ltd., the court was faced with the plaintiff's challenges to CPARS involving a contract to build a section of Southern border wall, which was terminated for convenience, and held that: (i) the plaintiff lacked standing concerning its allegations as to procedural defects in the CPARS because, under the binding precedent of the CAFC's decision in Todd Construction (in which that plaintiff had alleged several of the same errors as the current plaintiff did), the plaintiff failed to show that it was "prejudiced by a significant error"; (ii) dismissed the plaintiff's breach of contract claim the because the CPARS regulation (FAR 42.15) was not incorporated in the contract and, therefore, the Government had no contractual duty to the plaintiff to provide a CPAR; and (iii) dismissed the plaintiff's substantive challenges to the "Marginal" performance ratings it received because it failed to allege facts that would establish those ratings were inconsistent with the definition of a Marginal rating in the regulations or facts that would establish such ratings were inaccurate or were arbitrary and capricious. Concerning these latter holdings, the court spent considerable time analyzing what its standard of review should be when reviewing de novo a Contracting Officer's decision under the CDA concerning the propriety of the underlying CPARS, which are reviewed under an abuse of discretion standard. 

In Platinum Services, Inc., which involved a contract to transport shipments of household goods for military service members, the court denied the plaintiff's claim that the Government had breached an alleged contract to pay plaintiff's rates for accessorial services (i.e., additional moving services beyond standard long-distance transportation) because there had been no meeting of the minds concerning the price for such services, but the court allowed the plaintiff to recover in quantum meruit for the accessorial services it had actually performed because the parties had intended to contract for those services. 

In GBA Associates Limited Partnership, which involved a dispute regarding the responsibility for paying tax assessments under a building lease, the court held  that the GSA/lessee (a) had properly reestablished the real estate tax base as the amount billed the first year that the tax bill took into account a full assessment of the property coincident with full occupancy and, therefore, (b) had not breached the lease.

In DaVinci Aircraft, Inc., the court, inter alia,  dismissed a count in the Complaint for breach of contract because negotiations between the plaintiff and the Government for the Government to purchase antennas that the plaintiff previously had acquired at a surplus property sale had never resulted in a contract, but had broken down after the plaintiff demanded an exorbitant price for the antennas, leading the Government to seize them. 

Terminations

In Intelligent Investments, Inc., which involved the Government's motion for partial summary judgment as to aspects of the contractor's T for C settlement proposal related to a contract for debris hauling and cleanup, the court held that: (i) the Government's argument that FAR 49.206-2 required the contractor to use inventory based accounting rather than a total cost basis must be denied because that provision was not incorporated into the contract and, in any event, does not mandate the use of that accounting method as a matter of law; (ii) the contractor was not entitled to settlement costs attributable to a  subcontractor that had already signed a release of its claims to those costs; (iii) a genuine issue of fact remained as to whether claimed consulting fees for a separate company that prepared the contractor's T for C claim were unallowable as being contingent on the contractor's recovery from the Government; (iv) the fees charged by the consulting company to collect past due amounts and to investigate possible fraud by an individual were not reasonably necessary to the preparation or presentation of the settlement claim pursuant to FAR 31.205-42(g)(1)(i); and finally (v) the Government's motion as to other disputed costs was granted because the plaintiff provided no response to the Government's motion other than the incorrect assertion that only the DCAA could determine the allowability of those costs. 

Discovery/Procedure

In BES Design/Build, LLC, which involved claims for delay damages, the court denied the Government's motion for summary judgment  concerning two constructive change claims because there were disputed issues of fact as to (a) whether the contract required the contractor to provide designs for the replacement of all plumbing and electric panels or only those that could not be reused and (b) causation, i.e., which party was responsible for the fact that the contractor's design submissions were late. The court dismissed (for lack of jurisdiction) the contractor's claim for the replacement of steam heating with a gas-powered boiler because the claim had not been previously submitted to the Contracting Officer for a decision: "The words 'steam' and 'heating' never appear in the claim. . . .  In fact, they do not even appear in [the plaintiff's] complaint."

In AETC II Privatized Housing, LLC et al., the court (noting it was addressing discovery issues that have not yet been consistently decided by the courts) held that, under CoFC Rule 36, requests for admission concerning the meaning of the contractual documents at issue do not involve pure questions of law (and, therefore are appropriate) so long as they connect the facts and circumstances of the case to those documents. The same holds true for requests for admission concerning the application of a federal statute to the facts of the case. Finally, the court held that the fact that a request for admission may relate to the "ultimate issue" of the case is not a valid ground for refusing to respond.

In Martin Bros. Constr., which involves CDA claims for breach of contract, the court denied the Government's motion for an extension of time to file its Answer (even with the plaintiff's consent)  because the court already had granted the Government four extensions totaling 242 days and had warned it would not grant another extension. The Government's failure to adequately staff the case due to the demands of separate tariff-related cases was not an adequate excuse, especially where Congress had allocated the appropriate personnel funds: "The government here has not established that the increase in [its counsel's] workload and the time-sensitive demands of other litigation are the result of anything more than the Department of Justice’s failure to respond to a predictable increase in case volume and a decision to reduce or not replace departing staff."

In Broadway Gold, LLC, the court denied the Government's motion to dismiss a count in the Complaint seeking a declaratory judgment because such a judgment would provide an early resolution of the issue whether the Government could exercise an option in a lease to purchase a property in light of the Government's alleged breach, and monetary damages would be insufficient to address the harm the plaintiff alleged. The court also denied the Government's motion to dismiss counts in the Complaint plausibly alleging a breach of contract because that alleged wrongdoing should be weighed in determining whether the Government's affirmative defenses of equitable conversion or merger bar the plaintiff’s claims. 

EAJA

I  

 

   

Court of Appeals for the Federal Circuit

Jurisdiction/Standing/Res Judicata 

In Tiffany Buford, the CAFCl held it lacked jurisdiction over an appeal from a CBCA decision on a civilian employee federal travel claim under 31 U.S.C. § 3702(a)(3) for reimbursement of relocation expenses. 

In Hawaiian Dredging Constr. Co., a decision labeled as nonprecedential, the CAFC held that the Court of Federal Claims should not have granted the Government's preliminary Rule 12(b)(6) motion to dismiss (for failure to state a claim) most of the contractor's claims alleging that various Government actions or inactions delayed and/or increased plaintiff's costs on a fixed-price construction contract because, accepting the allegations in the Complaint as true, as the lower court should have, there were open issues that could only be resolved by further proceedings, e.g., whether the time the Government took to obtain rights of way and approval of utility agreements was reasonable when the contract was silent on the issue.  

In Keyes Helium Co., LLC, a decision labeled as nonprecedential, the CAFC held, inter alia,  that the CoFC had  erred in granting the Government's motion to dismiss the plaintiff's breach of contract claim in a contract for the storage of helium because the plaintiff had plausibly alleged, but lower court's analysis had failed to consider, that there was a contractual obligation that the Government had breached.  

In Chizoma Onyems, the CAFC held it lacked jurisdiction over a  suit challenging  a prior ASBCA decision because it was filed in his own name by the non-attorney owner of the sole proprietorship involved in the ASBCA case, which meant that, pursuant to the CDA, he was not the "contractor" that was the litigant before the Board and also had not retained counsel to appear before the court as required by the court's rules. 

Changes/Interpretation/Breach 

In WSP USA Solutions, Inc., a decision labeled as nonprecedential, the CAFC remanded the case for further proceedings because the ASBCA had erred in concluding both that: (i) the contract at issue was an IDIQ rather than a requirements contract; and (ii) the contract unambiguously required that task orders should be priced at the time they were issued rather than at the time of performance.  

In Balfour Beatty Constr., LLC, a decision labeled as nonprecedential, the CAFC vacated and remanded (in part) the prior CBCA decision because a contract drawing indicating that the contractor should “match existing building foundations” (which were 18 inches thick) was sufficiently definite to constitute a design specification, creating an implied warranty, and the CBCA erred in construing it as a performance specification.

In FlightSafety International Inc., the CAFC affirmed the prior ASBCA decision, holding that, pursuant to 10 U.S.C. § 2320 and DFARS § 252.227-7013, the contractor's restrictive markings on commercial data necessary for operation, maintenance, installation, or training ("OMIT" data) and developed exclusively at private expense were improper because the markings would have restricted the Government's rights to use that particular type of data on future procurements.

In Sheffield Korte Joint Venture, a decision labeled as nonprecedential, the CAFC affirmed the  prior ASBCA decision, holding that a specification for a stormwater management system was a performance spec, so the Spearin implied warranty of a design specification was not applicable.

In Lessors of Abchakan Village, Logar Province, Afghanistan, which concerned an agency's alleged failure to pay property owners for use of property in Afghanistan, the CAFC vacated the prior ASBCA decision (granting the agency a summary judgment) because the lessor had raised material issues of fact concerning ownership of the property, and the Board had improperly ignored evidence supporting the lessor's position and had erroneously concluded that the act of state doctrine applied in this case.

In Amatea/Grimberg JV, a decision labeled as nonprecedential, the CAFC affirmed the prior ASBCA decision denying plaintiff's claims on a contract to design and build a laboratory because a contractor is not entitled to a presumption of excusable delay when a Contracting Officer issues a time extension and there was substantial evidence supporting the Board's determination that the contractor did not establish excusable delay when it failed to present any expert testimony  to rebut the Government's expert's critical path analysis. The court also found there were rational bases for Contracting Officer's exercise of the discretion allowed by contract to deny the contractor's requests to work outside of normal hours. 

In Williams Bldg. Co., a decision labeled as nonprecedential, the CAFC affirmed the prior CBCA decision, holding that: (i) a bilateral modification covered only the contractor's two breach of contract claims and did not concede liability for the contractor's separate cardinal change claim; and (ii) the Board did not err in granting the Government's motion for summary judgment on a claim involving cost elements first provided by the contractor in opposition to that motion and not previously identified by the contractor in response to an earlier Board decision granting the Government's request that the contractor provide a more definite statement of its alleged costs during the discovery schedule set by the Board. 

Terminations 

I

Costs/CAS

In

Fraud/Anti-Kickback

 

EAJA

 

 

      

Supreme Court

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