2019 Procurement Review: Contract Disputes

Boards of Contract Appeals (ASBCA, CBCA, PSBCA, and GAOCAB)

Jurisdiction/Standing/Timeliness/Contract Disputes Act (CDA) Issues

In M. J. Hughes Construction, Inc., the ASBCA denied the Government's motion to dismiss an appeal for the alleged failure of the claim to state a sum certain because each of the three parts of claim did state a sum certain, which was not affected by the fact that one part of the claim might have to be reduced by an easily calculable amount as partially overlapping another part of the claim if both parts were sustained.

In immixTechnology, Inc. on behalf of Software AG Government Solutions, Inc., the CBCA denied the Government's motion to dismiss the appeal because: (i) the claim that the Government had breached the software licensing terms of a task order issued by the Interior Department under a GSA FSS contract did not involve a copyright claim and, therefore, was not preempted by the Copyright Act of 1976; and (ii) the claim involved only issues related to the task order and, therefore, had been properly decided by the DOI's contracting officer rather than the GSA's contracting officer.

In BVB Construction, Inc., the CBCA held it lacked the authority to issue the TRO and preliminary injunction requested by the contractor to prevent the Government from terminating the contract for default pending the Board's decision on the merits of an appeal based on the contractor's claim for delay damages.

In Amec Foster Wheeler Environment & Infrastructure, Inc., the CBCA denied the Government's motion to dismiss two claims as time barred because the contractor reasonably alleged it did not learn of crucial elements of its superior knowledge and negligent estimate claims until it received discovery from the Government in a prior dispute, rather than as soon as it arrived at the jobsite, as the Government had contended.

In Europe Asia Construction Logistic, the ASBCA dismissed an appeal as time barred because the contractor had failed to submit the underlying claim within six years of the date it accrued (in this case, the date the contract had been terminated for default).

In Heirs of Khair Mohammad, the ASBCA dismissed the appeal, holding that the individual purporting to represent the parties to the leases (who were the heirs of Khair Mohammad) was not a proper representative meeting the requirements of ASBCA Rule 15(a) because: (i) the fact that he had signed some of the leases as a representative of the parties did not establish he was a party to the leases; and (ii) there was no evidence (a) that the heirs constituted a corporation, partnership, or joint venture, or that individual filing the appeal was an officer or member of any such entity or (b) that he was a duly licensed attorney.

In Phoenix Hawk Construction Co., the ASBCA denied the Government's motion to dismiss an appeal as untimely filed because the Government failed to prove when the contractor received a Contracting Officer's decision that was sent by email, i.e., without satisfying the FAR 33.211(b) requirement that "[t]he contracting officer shall furnish a copy of the decision to the contractor by certified mail, return receipt requested, or by any other method that provides evidence of receipt." Similarly, in Rohulhameed Construction Co.,, the ASBCA denied the Government's motion to dismiss an appeal as untimely because the Government failed to meet its burden of proof to show when the contractor received a Contracting Officer's decision that had been sent only to the attorney who had represented the company previously but who was no longer doing so.

In Greenland Contractors I/S, the ASBCA discussed the meaning and effect of the CAFC's decision in Securiforce International America, LLC, and dismissed one appeal because, contrary to the contractor's characterization, it involved a contractor claim for monetary damages that had not first been submitted to the Contracting Officer, but retained jurisdiction over a second appeal because it involved a government claim. 

In Arab Shah Construction Co., the ASBCA denied the Government's motion to dismiss an appeal for failure to state a claim upon which relief could be granted because:  (i) the contractor's Complaint, when read in conjunction with the underlying government claim terminating the contract for default, alleged sufficient facts to establish that the contractor was claiming that interference by a maintenance contractor excused the default; and (ii) it was clear the contractor  was challenging the default even it did not request any specific form of relief.

The ASBCA dismissed an appeal by Phoenix Systems, Inc., because the contractor failed to respond to the Government's motion for summary judgment.

In Grahams Construction Inc., the ASBCA dismissed an appeal for the contractor's failure to be represented by person meeting the Board's requirements.

In CH2M-WG Idaho, LLC, the CBCA held  that Government's attempt to unilaterally withhold moneys from the contractor was invalid under the principles of res judicata and collateral estoppel because the precise issues had been fully litigated and decided in the contractor's favor in a prior CBCA decision. Subsequently, the Board denied the Government's motion for reconsideration.

In Flux Resources, LLC, the CBCA: (i) granted motions to dismiss (a) an unjust enrichment claim (because Board has no jurisdiction over such claims) and (b) a claim for lost opportunity costs first raised by the contractor in response to the Government's motion to dismiss (because it had not been presented to the Contracting Officer for a decision); but (ii) denied the Government's motion to dismiss a constructive change claim and a claim for breach of the implied duty of good faith and fair dealing for the alleged failure to state a claim upon which relief could be granted (because, contrary to the Government's contentions, the Complaint alleged sufficient facts to avoid a dismissal on this basis).

In Sotera Defense Solutions, Inc., the CBCA denied the Government's motion to dismiss the appeal, holding that, in the particular circumstances of this case, the contractor properly submitted its claim (regarding the applicability of the Service Contract Act) to the ordering agency's Contracting Officer.

In Macro-Z Technology, the ASBCA dismissed a claim for failure to comply with CDA's six-year limitations period because the claim's theory (unconscionability) was based on the same facts as a claim previously submitted (and dismissed) seven years earlier.

In Dawson-Alamo1 JV, LLC, the ASBCA denied the Government's motion to dismiss a count in the Complaint alleging mutual mistake, holding that the disputed count was based on the same operative facts as the claim previously submitted to the Contracting Officer, and the available relief would be essentially the same as that for the previously submitted constructive change claim.

In Melville Energy Systems, Inc., the ASBCA dismissed an appeal from a default termination and related claims as barred by the Election Doctrine because the contractor already had pursued is claims at Court of Federal Claims (which had issued its decision in 1995!).

In Advisory Opinion Request, Re: United States v. Savannah River Nuclear Solutions, LLC, and Flour Federal Services, Inc., which involved the interpretation of the CDA (specifically, 41 U.S.C. 7107(f)), the CBCA held (I think) that the district court had the authority to order the Board to issue an advisory opinion on an issue of contract interpretation without any additional requirement that the opinion be limited to those issues that could be the subject of a contracting officer's decision and appealable to the Board.

In Langdon Engineering & Mgt., the ASBCA held that, after the Contracting Officer had sent multiple mailings and an email of his decision to the contractor, an appeal filed within 90 days of the last such mailing the contractor received was timely.  

In WSSA Birmingham, LLC, the CBCA denied the GSA's motion to dismiss (for failure to state a claim upon which relief could be granted) an appeal involving a building lease and the contractor's allegation that it had incurred delay damages as a result of the Government's failure to convene a contractually-required workshop (which was a condition of GSA's acceptance of space under the lease) within the time required by the lease because the GSA admitted it had failed to schedule that workshop in a timely manner. 

In Moonschein Industries, LLC , the ASBCA dismissed an appeal as moot after the Government converted the challenged default termination to one for convenience (and other issues presented by the contractor on appeal had not first been presented as a claim to the Contracting Officer).

In Sungwoo E&C Co., Ltd., the ASBCA held that: (i) contracts for construction work in South Korea pursuant to a Status of Forces Agreement and signed by an Army Contracting Officer were CDA procurements over which the ASBCA has jurisdiction because they were procurements for the benefit of the United States even though funded by Korea and containing a Disputes provision differing from the standard CDA provision and not providing for an appeal to the ASBCA; (ii) the Board had jurisdiction over claims challenging CPARS findings because the Board construed both the contractor's  repeated use of the term "fraud" in the pleadings and its allegations that it had been effectively suspended and debarred, to be only allegations that the Government acted arbitrarily and capriciously or in bad faith; (iii) the Board lacked jurisdiction over the claim for punitive damages; and (iv) the Board lacked jurisdiction over a claim that the Board interpreted as alleging that, by failing to award the contractor new contracts, the Government had breached its duty to consider the contractor's bids fairly and honestly, because that allegation was essentially a bid protest.

In BES Design/Build, LLC, the CBCA held that filing the Complaint 11 days after the date ordered by the Board was not a sufficient reason to dismiss the appeal for failure to prosecute. 

In Pegasus Enterprises, LP, the CBCA found that a portion of a lessor's claim for overtime utilities costs under a building lease  was barred by the CDA's six-year limitations period because the parties' actions in trying to resolve the issue had not tolled the running of the limitations period:

Under the facts here, we find no justification for tolling the statute of limitations. Although [the lessor] diligently pursued its costs under the lease, none of the conduct complained of could be construed as an extraordinary circumstance that induced [the lessor] into delaying its claim. Promises to investigate a claim, consider a proposal, or review documents are all conventional activities undertaken in the spirit of professional contract negotiations, not instances of bad faith. There is no evidence that the contracting officer misrepresented his authority to resolve the claims, nor an indication that there were circumstances beyond [the lessor's] control that impeded its ability to file a claim. Further, the contracting officer had no reason to believe that [the lessor] was anything other than a sophisticated contractor who, in an exercise of business judgment, decided to try negotiating its claims with GSA before pursuing litigation.

Jurisdiction

In 444 Brickell Partners, LLC, the CBCA dismissed an appeal for lack of jurisdiction because: (i) although the Contracting Officer's letters to the contractor demanding payment in a sum certain were appealable decisions despite omitting language regarding the contractor's appeal rights, they were vitiated because, in agreeing to meet with the contractor to discuss the issues, indicating a willingness to reduce the debt owed, and choosing not to withhold rent to satisfy the debt, the Contracting Officer had reconsidered the decisions; and (ii) the contractor's letters to the Contracting Officer simply expressed a desire to work with the Government to resolve the issues, did not request a decision by the Contracting Officer, and, therefore, were not appealable claims.

In R&R System Solutions, LLC, the ASBCA denied the Government's motion to dismiss for lack of jurisdiction because: (i) the Government's allegations that the contract was void went to the merits of the dispute, not to the Board's jurisdiction; and (ii) the Government's notice cancelling the contract and its withdrawal of a settlement offer did not constitute a "per se" final decision as the Government contended, so that the appeal clock only began to run from the date the Contracting Officer denied the contractor's subsequently-submitted certified claim for convenience termination costs. 

In L3 Technologies, Inc., the ASBCA dismissed an appeal for lack of jurisdiction because the underlying Contracting Officer's decision demanded three distinct amounts from the contractor and, therefore, failed to contain a "sum certain."

In Maersk Line Limited, the ASBCA held it lacked jurisdiction over an appeal in which the contractor sought recovery of vessel acquisition costs instead of its claims based on conversion and modification costs originally submitted to the Contracting Officer.

In A.A.K.C.C., the ASBCA held: (i) it lacks CDA jurisdiction over Commander's Emergency Response Program (CERP) contracts; and (ii) there was no other source of jurisdiction because the contract did not provide for any right of appeal to the Board.

In Cameron Bell Corp., d/b/a Gov Solutions Group (GovSG), the ASBCA dismissed, for lack of jurisdiction, (i) the contractor's requests that the Board order the Contracting Officer to revise a CPARS rating and (ii) the contractor's claim for monetary damages (because the latter claim was not previously submitted to Contracting Officer), but the Board retained jurisdiction over the contractor's request for remand to require the Contracting Officer to follow applicable regulations and provide the contractor with a fair and accurate performance evaluation.

In Computer Integration & Programming Solutions Corp., the CBCA dismissed an appeal for lack of jurisdiction because the underlying claim exceeded $100,000 but lacked a certification.

In Avue Technologies Corp., the CBCA denied the Government's motion to dismiss for lack of jurisdiction because the contractor was not pursuing its claim as a subcontractor, but had alleged the existence of a direct contract with the Government.

In Ryan Thomas Bechard, the PSBCA dismissed an appeal for lack of jurisdiction because a birth certificate and a social security card were insufficient to establish that a contract existed.

In Man & Machine, Inc., the ASBCA dismissed an appeal for lack of jurisdiction because the parties agreed there was no express contract and the appellant failed to present evidence of an implied contract; rather, the appellant had voluntarily sent items to the Government for evaluation.

In Ford Lumber & Building Supply, Inc., a dispute involving a 1995 base realignment and closure lease, the ASBCA,  inter alia, dismissed: (i) a claim submitted in 2017 for damages occurring in the late 1990s because it was untimely under the six-year limitations period; and (ii) a claim for the reduction of the purchase price of a building as a result of land use restrictions because it did not state sum certain. Subsequently, the contractor's motion for reconsideration was denied.

In DCX-CHOL Enterprises, Inc., the ASBCA: (i) held it lacked jurisdiction over the contractor's delay and constructive change defenses to a default termination because they were not first presented to the Contracting Officer for a decision; but also (ii) denied the Government's motion for summary judgment because the contractor had raised a genuine issue of material fact as to whether the Government had waived the delivery schedule.

In Sand Point Services, LLC, the ASBCA denied two motions: (i) the Government's motion to dismiss the appeal for lack of jurisdiction because, even though the Contracting Officer had indicated in her decision on the claim that fraud may have been committed in its preparation, (a) she did not refer the matter to the agency official charged with investigating fraud for further investigation, and (b) the Board will not be required to make factual determinations concerning fraud in order to resolve the appeal; and (ii) the Government's motion for summary judgment because (a) the contractor had not admitted that non-performance was its fault but rather alleged a alleged differing site condition, and (b) there was a genuine issue of fact over whether the contractor had signed a modification that released its claim under duress (specifically, a threat to terminate the contract). 

In SBC Archway Helena, LLC, the CBCA denied the Government's motion to dismiss appeals for lack of jurisdiction, holding that,  where the original claim that the contractor had submitted to the Contracting Officer was based on the same operative facts as two subsequent submissions that the contractor had labeled as revised claims, the fact that the contractor had not appealed the Contracting Officer's decision on the second submission did not deprive Board of jurisdiction over timely appeals involving the first and third submissions.

In URS Federal Services, Inc., the ASBCA: (i) held that the Government's claim for return of direct subcontractor costs based on its contention that the contractor had failed to obtain the requisite approval to subcontract was barred by the six-year limitations period because the Government had actual knowledge that the contractor had utilized the subcontractors (and, therefore, the claim had accrued) when the contractor first submitted invoices for those costs; but also (ii) held that open factual questions precluded summary judgment on the issue of whether there was a limitations or laches problem concerning the Government's allegation that the subcontractor costs were  unallowable due to inadequate documentation. 

In Advanced Powder Solutions, Inc., (over the contractor's objection) the ASBCA dismissed an appeal as moot after the Contracting Officer withdrew the Government's claim.

In Leidos Innovations Corp., the CBCA granted the current contractor's motion to dismiss an appeal for lack of jurisdiction because the Contracting Officer's decision on a government claim had been issued to the prior contractor despite a proper and valid agreement establishing that the (cancelled) contract was among those that had already been novated to the current contractor.  

In Kamran Zaland Supplies  and Services, the ASBCA dismissed an appeal for lack of jurisdiction because of sworn testimony by the Contracting Officer that (i) he never received the claim purportedly submitted to him by the contractor, and (ii) he did not compose or send the purported email in response to the claim that the contractor offered as evidence that he had received it. Subsequently, the contractor's motion for reconsideration was denied 

In KHS Corp., the ASBCA held it lacked jurisdiction over an appeal from a default termination because the termination had not yet occurred.  

In Buck Town Contractors & Co., the ASBCA held: (i) it had jurisdiction over the contractor's contention that the Government had constructively waived a specification requirement even though that legal theory had not been presented in the original claim to the Contracting Officer because (a) the new theory was based on the same operative facts as the theories of recovery presented in the claim, and (b) in his decision on the claim, the Contracting Officer had interpreted it as alleging waiver; and (ii) there was an implied waiver of the contractual specification prohibiting the placement of parallel overlaps of geotextile material based upon (a) the imputed knowledge of the Contracting Officer, and (b) the actual knowledge of the Government's quality assurance employees. 

Changes/Constructive Changes/Contract Interpretation/Breach/Authority

In Fluor Federal Solutions, LLC, a decision involving contract interpretation, the ASBCA granted the contractor's motion for summary judgment because the agency had not satisfied one of the requirements in the Award Option Plan contract provision for changing the rating that would permit the Government to extend the contract term unilaterally at a fixed price.

In ABS Development Corp., the ASBCA held that: (i) a contract was void ab initio because it was based on the contractor's material misrepresentation that multiple contract positions would be filled by the contractor's personnel on-site in the country of performance; and (ii) the Government's assessment of liquidated damages was improper because there was no contract.

In ECC International Constructors, LLC, the ASBCA held that, because the contracting parties had not agreed in unmistakable terms that the Government would assume the risk of increased costs resulting from acts of the International Security Assistance Force  (ISAF) that affected the contractor's access to the work site on a military base in Afghanistan prior to the contractor's cutting of the base perimeter fences,  the ISAF's act of encompassing the contract work site within the base security fence and enforcing base security procedures at the work site was neither a breach of a contract warranty nor a constructive change to the contract that might have entitled the contractor to recovery.

In Nexagen Networks, Inc., an appeal involving alleged damages following a convenience termination, the ASBCA denied the contractor's claims for lost corporate value and lost business opportunities, as well as lost profits, G&A and overhead on the successor contract because all those claimed consequential damages were too remote and speculative.

In Cooper/Ports America LLC, the ASBCA: (i) granted the Government's motion for summary judgment that it did not violate the covenant of good faith and fair dealing because the contractor's claim was an invalid attempt to use alleged preaward conduct by the Government to renegotiate prices in a novated contract that clearly stated all terms, including prices, of the predecessor contract would remain unchanged; but (ii) denied the Government's motion for summary judgment as to whether it made a material misrepresentation to the contractor because genuine disputes remained concerning (a) whether the Contracting Officers stated that they would work with the contractor concerning pricing, and if so, whether the most reasonable understanding of that statement would be that the Government agreed to renegotiate the contract's prices, (b) whether the contractor relied upon the alleged misrepresentation, and (c) whether any misrepresentation concerned a material fact.

In another Cooper/Ports America LLC, decision, the ASBCA rejected numerous objections by the contractor and granted the Government's motion for summary judgment that the Contracting Officer's email to the contractor was a proper, unambiguous, and timely preliminary notice of the Government's intent to exercise a contract option and that, therefore, the subsequent option exercise was valid.

In Potomac Electric Corp., the ASBCA denied the Government's motion for summary judgment that no contract existed because the Board found there were disputed issues of material fact as to multiple issues, including whether there was mutuality of intent to contract and an offer and acceptance, specifically, (a) whether the instruments in the record documented a contract between the parties, (b) whether the exchanges and conduct of the parties supported the existence of an agreement between the Government and the contractor, and (c) whether the government official involved had the authority to bind the Government to a contract.

In JAAAT Technical Services, LLC, which involved contract interpretation, the ASBCA held that: (i) read in the context of the contract as a whole, the contract specification at issue was not for informational purposes only, as the contractor had claimed, but was a requirement; (ii) no ambiguity existed in the notes to a particular drawing; and (iii) various communications (one of which was unsigned) from government personnel other than the Contracting Officer (and not copied to Contracting Officer or brought to his attention) could not be interpreted to change the contract's requirements. Subsequently, the contractor's motion for reconsideration was denied. In General Dynamics--National Steel and Shipbuilding Co., another appeal involving contract interpretation, the ASBCA denied cross motions for summary judgment because the language of the disputed contract clause was ambiguous and, therefore, the Board would have to look to extrinsic evidence to determine the parties' intent.

In GSI & Whitesell-Green, JV, the ASBCA held that a construction contractor was entitled to extra compensation for work related to a gas line pipe whose presence and significance were conditions "beyond the limits of an inspection appropriate to the time available" for the prebid site inspection, reasoning in part as follows:

Simply finding the Pipe had a needle-in-the-haystack quality to it. While a good detective might have found it, he would also have had to deduce that, even though it was not yellow or the same color as the gas meter, the Pipe was a gas line (or some other utility) serving Building 450A. And he would have had to do so while the clock ticked on the site visit, 27 other contractors roamed around, and base personnel went about their daily duties. While such sleuthing might not have required Sherlock Holmes, [the contractor] has convinced us that it would have required perceptive powers beyond that of a reasonably prudent offeror.

In ECC International Constructors, LLC, which involved cross motions for summary judgment on various issues of contract interpretation, the ASBCA, inter alia, used the principle of noscitur a sociis ("a word is known by the company it keeps") to avoid ascribing to one word a meaning so broad as to be inconsistent with its accompanying words, in this case the terms "office" and "office space" in a contract provision. The Board also interpreted the terms "perimeter" and "enclosure" in other disputed contract clauses, both in the Government's favor.

The ASBCA sustained an appeal by KiewitPhelps, holding that the phrase "all remaining locations" in a disputed contract provision regarding wallboard finishing requirements was latently ambiguous, and, therefore, (i) the contractor had no duty to inquire concerning its meaning, and (ii) the contractor's reasonable interpretation prevailed over Government's interpretation under the rule of contra proferentem.

In WIT Assocs., Inc., the ASBCA held that a contractor was not entitled to extra compensation for performing orders allegedly exceeding a transportation services contract's order limitations because the contractor had failed to comply with the requirement of FAR 52.216-19 (the "Order Limitations" clause) to notify the Government, within three days of the Government's issuance of orders that exceeded the contract's specified limitations, that contractor declined to honor those orders.

In TranLogistics LLC, the ASBCA, inter alia, refused to enforce a contract modification that had been conditioned on the contractor's submission of supporting pricing documentation because some the purported documentation was submitted by the contractor CEO's long-time roommate/fiancé who (i) had redacted the purported subcontractors' identifying information on some of the documents and had refused to provide that information at the hearing and (ii) had incorrectly identified himself as the subcontractor on another set of supporting documents. Subsequently, the Board denied the contractor's motion for reconsideration.

In Guardian Safety & Supply LLC d/b/a Enviro Safety Products, the ASBCA held that the contractor/appellant had successfully proved all the elements required to establish that it had an implied-in-fact contract with the Government: (1) mutuality of intent to contract; (2) lack of ambiguity in the offer and acceptance; (3) consideration; and (4) actual authority on the part of the Government's representative to bind the Government to the contract.

In B.L. Harbert International, LLC, the CBCA dismissed an appeal that was based on the contractor's contention that the agency had erred in failing to approve the contractor's post-award attempts to substitute manufacturers of its choosing for those specified in the contract because the contract clearly stated the contractor could not do that.

In Vet4U LLC, the CBCA issued decisions on 23 claims by the contractor for extra costs and alleged delays to its work on an asbestos abatement contract.

In NMS Management, Inc., the ASBCA denied the Government's motion for summary judgment that a bilateral contract modification was binding, holding that the contractor's cover email transmitting the signed mod created an issue of contract interpretation because the email stated that the mod was being signed under protest and reserved the contractor's right to dispute the change.

In The Aulson Co., the CBCA held that the contractor was entitled to compensation for work directed by the Contracting Officer in addition to the scope of work clearly delineated in an answer to a site visit question that was published as an amendment to the solicitation.

In PROTEC Gmbh,  the ASBCA held that: (i) the Government's CPARS evaluation (that the contractor failed to perform  in accordance with the schedule utilizing properly trained personnel) was fair and accurate; and (ii) the Government properly refused to pay disputed invoices because the contractor, without a valid excuse, had not delivered services in accordance with the contract's requirements and had submitted the invoices late.

In Manhattan Hunt A Joint Venture, the ASBCA adopted the Government's interpretation of disputed contract language, finding that the contractor's interpretation was not within the zone of reasonableness because it was not supported by any language in the contract and could not be read harmoniously with other contract provisions.  

In PROTEC GmbH, the ASBCA held that the Government properly refused to pay invoices that the contractor had submitted late, and without a valid excuse, which prevented the Government from verifying that the contractor had properly performed the billed-for services.

In BRDC, A Joint Venture,, which involved issues of contract interpretation, the Board (i) decided one claim by giving weight to the parties' concurrent interpretation of the contract before the dispute arose; and also (ii) held that the contractor was not entitled to recover for a defect in the contract of which it should have been aware prior to bidding.

In Globe Trailer Mfg., Inc., faced with interpreting the termination-for-convenience portion of FAR 52.212-4 in a situation where the contract elsewhere specifically stated that all costs of the first article were to be included in its unit price, the ASBCA held that the contractor bore the risk that its decision to allocate its fixed costs to the entire production lot (while not prohibited by the contract) meant it would not recover those costs if, as here, the contract were terminated for convenience prior to work on the production units. The ASBCA also held it lacked jurisdiction over issues only raised in a revised termination settlement proposal that was not the subject of a decision by the Contracting Officer.

In Falmouth Scientific, Inc., the ASBCA: (i) (over a dissent)  denied the Government's first motion for summary judgment because the contractor's execution of a promissory note to repay (in installments) a government claim for overpayment of indirect costs did not moot the appeal in which the contractor was challenging that alleged overpayment; but (ii) granted the Government's second motion for summary judgment because valid, bilateral rate agreements effectively established the amount that the contractor owed the Government for the overpayment, and the Government's claims based upon those agreements were timely presented.

In DynCorp International, LLC, the ASBCA held that the contractor was entitled to reformation of a contract on the basis of mutual mistake because the contracting parties shared the mistaken belief that a large data set that formed part of the contract was accurate, when, in fact, it contained a latent error, of the existence of which the contractor had not assumed the risk.

In Nassar Group International, the ASBCA denied most of the contractor's motions in limine and most of the parties' cross motions for summary judgment, but granted the Government's motion for summary judgment on those of the contractor's claims for an equitable adjustment that the Board found were for purported delays not caused by the Government, i.e., delays allegedly caused by Afghanistan's slow tax exemption and customs processing, security and political circumstances, and government actions that allegedly pushed performance into a period of unusually, and, therefore, unexpectedly, severe weather.

In P.K. Management Group, Inc., a decision involving contract interpretation, the CBCA rejected (as implausible) the contractor's interpretation of various provisions regarding the pricing of inspections of custodial properties and declined to consider extrinsic evidence concerning the meaning of those provisions because they were not ambiguous.

In Potomac Electric Corp., despite the Government's denials, the ASBCA held that a contract existed, based partly on the fact that, although a contract specialist, who lacked the authority to bind the Government, was the individual who communicated with the contractor, "the shadow of the CO loom[ed] large over every exchange" with the contractor:

The CO stated that she did not direct the contract specialist to send the draft award to the contractor. . . . However, the record is notably silent as to the communications between the CO and the contract specialist. The Board finds it difficult to believe that there were no communications regarding [the contractor] between the contract specialist, the CO, and [another Contracting Officer]. The absence of these communication(s) suggests that if produced, they would be unfavorable to the government[:] "if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable." [citations omitted]

Subsequently, the Board denied the Government's request for reconsideration.  

In GSC Constr., Inc.,, in addition to using contract interpretation to decide various claims of constructive changes to the contract, the ASBCA held that: (i) the contractor was entitled to compensation for its work related to the redesign and rework of a truck turnaround area because the Government's only evidence the work was necessary was a single hearsay statement; (ii) although the contractor failed to prove its allegations of delay as a defense to the Government's assessment of liquidated damages, the contractor was entitled to the remission of damages for the period after the Government took beneficial occupancy of  the site; (iii) the contractor was entitled to the return of certain retained funds because the Government failed to prove the items at issue were defective;  and (iv) the contractor's claim for claim preparation costs must be denied for lack of proof.

In Fluor Federal Solutions, LLC, the ASBCA adopted the contractor's interpretation of a disputed provision because: (i) the construction permit did not require operation in accordance with Government's interpretation; (ii) the Government missed two opportunities to clarify its intended meaning in responding to bidders' questions; (iii) the Government did not object to the contractor's interpretation in two and half years of course of dealing; and (iv) the performance specification allowed the contractor to choose its specific method of meeting the contract requirements.

In Optimization Consulting, Inc., the ASBCA: (i) rejected the contractor's contention that the contract was ambiguous regarding Management Information System requirements and, therefore, did not reach the contractor's arguments for its interpretation; and (ii) held that the contractor provided no evidence of an alleged constructive change directed by someone with the authority to bind the Government.

In Sotera Defense Solutions, Inc., the CBCA found for the contractor on the issue of entitlement to a  price adjustment for Service Contract Act wage adjustments after the Contracting Officer failed to fulfill the extra obligation placed on him by a contract-specific provision (which the Board found took precedence over the normal  FAR 52.222-41 clause) to identify SCA-covered positions.

In Stobil Enterprise, the CBCA held, inter alia, that:  (i) a bilateral release of claims precluded the contractor's claim for damaged equipment; and (ii) the contractor's explanatory cover letter submitted with an executed release demonstrated that the contractor did not intend the release to cover its claims for increased wage costs under the Service Contract Act; but (iii) the claim for increased wage costs must be denied because (despite having been given several opportunities to do so) the contractor failed to submit evidence (in the form of payroll records) of the actual hours worked by the allegedly affected employees or the actual wages the contractor had paid them. Subsequently, the contractor's motion for reconsideration was denied.

In Advanced Global Resources, LLC, a decision labeled as nonprecedential, the ASBCA denied claims for delay damages during a stop work order precipitated by a GAO protest because: (i) the contractor did not seek to minimize its direct costs of a person it had hired upon receipt of the contract award who did no work during the stoppage; (ii) the contract's performance period was not extended, so the contractor was not entitled to Eichleay unabsorbed home office overhead.

In Harry L. Chupnick, the CBCA denied a claim because, prior to signing the contract, the contractor failed to inquire concerning a patent ambiguity in the contract language concerning the issue in dispute on appeal.

In AAR Airlift Group, Inc., the ASBCA denied the contractor's claim for days it alleged the Government should have, but did not, compensate the contractor for aircraft that were fully mission capable because the record also showed the contractor had a shortage of pilots available on the days in issue. 

In Harris IT Services Corp., an appeal involving contract interpretation, the CBCA granted the Government's motion for summary judgment because the contractor had failed to comply with a contract clause requirement that it identify its SCA employees to the Government so that appropriate wage determinations could be incorporated in the contract. 

In Amec Foster Wheeler Environment & Infrastructure, Inc., an appeal involving primarily claims for delay damages on a construction project, the CBCA first found there was no contemporaneous evidence supporting the contractor's claim that the Government had pressured it to terminate a subcontractor (or, as the Board puts it: "the dog that didn't bark"). Then the Board engaged in an extended analysis of the parties' competing interpretations of the critical path and their disagreements over alleged concurrent delays and liquidated damages and the evidence, or lack thereof, supporting each side's arguments, before awarding the contractor a fraction of the costs it had claimed.

In Patrick M. Murray, the PSBCA held that all the circumstances presented by the contractor were insufficient to prove that the Postal Service had discriminated against him based upon his age when it sought a price reduction during renewal negotiations. 

In Suffolk Construction Co., the CBCA  split the baby on a slew of construction contract change and delay claims. 

In Buck Town Contractors & Co., the ASBCA held: (i) it had jurisdiction over the contractor's contention that the Government had constructively waived a specification requirement even though that legal theory had not been presented in the original claim to the Contracting Officer because (a) the new theory was based on the same operative facts as the theories of recovery presented in the claim, and (b) in his decision on the claim, the Contracting Officer had interpreted it as alleging waiver; and (ii) there was an implied waiver of the contractual specification prohibiting the placement of parallel overlaps of geotextile material based upon (a) the imputed knowledge of the Contracting Officer, and (b) the actual knowledge of the Government's quality assurance employees. 

In NOAA Maryland, LLC, which involved interpreting a lease, the CBCA held that only two of four types taxes at issue were reimbursable as "real estate taxes" under the "Tax Adjustment" clause, which barred reimbursement for taxes created after the lease was executed:

The clause defines “real estate taxes” as those that are assessed against the building without benefit to the property for the purpose of funding general government services. The definition excludes, however, “without limitation, general and/or special assessments, business improvement district assessments, or any other present or future taxes or  governmental charges” that are assessed against the property or the land it sits on. This exclusionary provision means that, at the time that the lease was effectuated, no other taxes currently existing or assessed, other than real estate taxes, would be paid by GSA under the lease; nor would any future taxes created and imposed after effectuation of the lease.

Terminations/Liquidated Damages/Government Claims

In ABS Development Corp., the ASBCA held that: (i) a contract was void ab initio because it was based on the contractor's material misrepresentation that multiple contract positions would be filled by the contractor's personnel on-site in the country of performance; and (ii) the Government's assessment of liquidated damages was improper because there was no contract.

In Woolery Timber Management, Inc. a decision issued under the CBCA's small claims procedures and, therefore, nonprecedential, but, nevertheless entertaining to read, the CBCA noted that (although the following actions were not within the scope of its decision following a termination for convenience) the contractor, without notifying the Contracting Officer, had delayed contract performance in order to work on other projects that it thought would benefit the agency, while the Contracting Officer had not had the time to oversee the contract until very late in the performance period and, in fact, had neglected to issue a notice to proceed. The Board denied all the contractor's claims except a claim for a blocked access route and denied the Government's claim for excess reprocurement costs because there was no Contracting Officer's decision on that claim and because the Government had elected to terminate the contract for convenience rather than for default. Subsequently, the CBCA denied the Government's motion for reconsideration.

In Ralph B. Vance, the PSBCA held, inter alia, that: (i) the contractor should have followed the Contracting Officer's direction (pursuant to an ambiguous contract provision) to assist in sorting the mail and then filed a claim rather than refusing to do so; (ii) the Contracting Officer's subsequent order banning the contractor from access to the mail due to his recalcitrance and confrontational manner was neither a breach of the duty of good faith and fair dealing nor a constructive termination; (iii) the Government did not act in bad faith when it terminated the contract with notice because the contract expressly authorized such a termination by either party; and (iv) various errors in the Government's reports and investigations concerning the contractor's performance had no effect on, or consequences for, that performance and, therefore, were not actionable.

In Lulus Ostrich Ranch, the ASBCA: (i) gave effect to an IFB provision in a solicitation for scrap metal that stated "[t]here will be absolutely no changes, modifications, adjustments, or negotiations concerning bid price after award" [emphasis in original] and held the provision precluded the contractor's subsequent claim for a mistake in bid; and (ii) denied the contractor's appeal from its default termination because the contractor failed to pay any amount for the scrap metal it had acquired.

In HK&S Construction Holding Corp., the ASBCA upheld the default termination of a construction contract because the contractor failed to establish that the completion date was waived (especially because the DeVito rule does not normally apply to construction contracts) and failed to present any evidence that the various alleged causes of delay were on the critical path.

In 4H Constr. Corp, the ASBCA held that, after a convenience termination, (i) the contractor was entitled to recover its reasonable costs incurred in mobilizing to prepare to perform a dredging contract even before a notice to proceed (which was never issued), and (ii) an email from the Contracting Officer notifying the contractor of a protest was not a valid stop work order pursuant to FAR 52.233-3 and, therefore, was not a bar to the contractor's recovery.

In Carmazzi Global Solutions, Inc. the CBCA denied the contractor's "ill-founded" motion to dismiss the Government's termination for default for failure to state a claim upon which relief could be granted because the contractor conceded it had failed to satisfy the contract requirement to supply verbatim hearing recorders at 100% of the scheduled hearings.

In Grow Life General Trading, LLC, the ASBCA upheld a termination for failure to prosecute the work because the it was clear the contractor would not have completed the work by the extended deadline established in the Government's cure notice, and none of the circumstances asserted by the contractor (e.g., customs delays and delays with the employee badging process) constituted a valid excusable delay or a breach of the Government's implied duty of good faith and fair dealing.

In Curtis Jue, the ASBCA upheld a termination because a lease provision permitted the Government to terminate at any time with or without cause (the Government had cause in this case).

In Sang Kash Co., the ASBCA upheld a default termination because the contractor's required base access privileges were revoked by the base commander in circumstances where, since there was no guaranteed minimum contract quantity, the denial did not confer an economic gain on the Government or nullify the contractor's contract rights.

In Joyce Ann McElroy, the PSBCA upheld the default termination of a mail delivery contract after the contractor: (i) stopped performing (and then failed to provide assurances of performance) because she disagreed with the Postal Service's interpretation of the contract's line of delivery requirement; and (ii) on appeal, failed to prove that she experienced the harassment she alleged.

In CKC Systems, Inc., the ASBCA denied an appeal of a default termination because the contractor failed to deliver units within the time required by an extended delivery schedule, and its delays were caused by its own continued failures to comply with a contract requirement even after it became aware of it.

CKC Systems, Inc., also lost its appeal of another default termination because it did not perform in accordance with an extended delivery schedule without any valid excuse for its failure to procure contractually-compliant shock mounts.

In Walker Development & Trading Group, Inc., the CBCA denied the appeal of a termination for cause of a contract for "as needed" bulk laundry services because the contractor failed to perform and failed to provide adequate assurances of performance in circumstances where the Government did not (i) hinder the contractor's performance, (ii) "conspire" to get rid of it, or (iii) breach the implied duty of good faith and fair dealing. Subsequently, the Board denied the contractor's motion for reconsideration.

In Podrez Enterprise, LLC, the ASBCA denied an appeal from the termination for cause of a contract for railcar spanners because the spanners did not comply with the contract requirements, the contractor failed to  take corrective action when given the opportunity to do so, and the contractor did not produce evidence of any excuse for its failure to perform. 

In Stobil Enterprise, a nonprecedential decision under Board Rule 12.2;, the ASBCA upheld a termination for default for the unexcused failure to complete the work by the contract completion date, holding that, read as a whole, the contract required replacement of an old drum even though it was not specifically mentioned. Subsequently, the Board denied the contractor's motion for reconsideration.

In Watts Constructors, LLC, which involved motions for summary judgment on various aspects of an appeal from a default termination, the ASBCA held: (i) it had jurisdiction over an excusable delay claim submitted to the Contracting Officer after the Government had moved for summary judgment at the Board concerning the default termination appeal; (ii) even though the Government had extended the contract delivery date, it had not waived that extended date; (iii) even though the Contracting Officer may have been incorrect in her assessment of various elements in the contractor's proposed schedule for a new completion date, that was not sufficient to demonstrate that she abused her discretion in terminating the contract for default based upon the existing completion date;  (iv) the Government's motion to dismiss the counts in the Complaint alleging breach of the implied duty of good faith and fair dealing must be denied because a common law affirmative defense (such as a prior material breach) to a termination for default is not a claim that must be presented to the Contracting Officer; (v) rude conduct by the QAR toward the contractor was not sufficient to establish either a breach of the implied duty of good faith and fair dealing or that the Contracting Officer abused her discretion in terminating for default, especially in the absence of any evidence she was aware of the rude behavior; and (vi) the contractor had presented sufficient evidence of overly zealous inspections to overcome the Government's motion for summary judgment concerning that allegation.

In Carmazzi Global Solutions, Inc. the CBCA denied the contractor's motion for summary judgment in a default termination appeal and held that the termination for convenience of one contract does not (a) compel an agency to terminate for convenience other substantively similar contracts with the same contractor or (b) preclude the agency from terminating any/all of those other contracts for default.

Quantum

In M. L. Energia, Inc., the ASBCA applied FAR 52.246-7 to determine the quantum of an equitable price reduction for the contractor's failure to complete a Small Business Innovation Research contract. Subsequently, the Board denied the contractor's motion for reconsideration

In King Aerospace, Inc., a decision limited to quantum, the ASBCA held that the contractor's "measured mile" estimates "paint[ed] with too broad a brush" and failed to establish the amounts by which defects in government-furnished property increased the contractor's costs of performance, so the Board adopted the damages estimate of the Government's expert witness.

In BES Construction, LLC , the ASBCA accepted the evidence of the quantum of delay costs on a construction contract presented by the Government's expert after the contractor failed to produce any quantum evidence of its own. The Board was singularly unimpressed with the contractor's presentation. For example:

Only [the contractor] filed a post-hearing brief. That brief, signed by counsel, is devoid of any citation of the record or of legal authority, and offers "argument" so undeveloped, unsupported, and conclusory that it is not worthy of the name. We would be justified in denying the appeal on that basis alone. [footnote omitted]

Discovery/Procedure/Motion Practice

In ASFA Uluslararasi Insaat Sanayi Ve Ticaret AS, the ASBCA denied the Government's motion for summary judgment that the costs claimed by the contractor (traffic fines, penalties, and violations incurred by the Government's personnel while using the contractor's vehicles) were not  allowable because the Board concluded that a duty of care may exist even when not expressly stated in a contract, and genuine material issues of fact existed concerning how the fines and penalties occurred, the capacity in which those who incurred the fines were acting, and if the circumstances surrounding the contract's creation established an obligation by the Government to be liable for fines and penalties registered against the vehicles while in the Government's control.

In Eagle Peak Rock & Paving, Inc., the CBCA denied cross motions for summary judgment on an appeal from a default termination because "many" disputed issues of fact remained to be resolved.

In Electric Boat Corp., the ASBCA denied the Government's motion for summary judgment because material factual disputes remained as to whether a subcontractor had the means to separately track its actual costs.

In Bohner Painting LLP, over the contractor's objection, the CBCA dismissed an appeal with prejudice as moot due to a bilateral settlement agreement that included a release of claims.

In SBC Archway Helena, LLC, the CBCA denied the contractor's motion for sanctions against the agency for allegedly delaying the production of certain documents that the Board held were not nearly as crucial to the contractor's case as it claimed.  

EAJA/Prompt Payment Act

In TranLogistics LLC, the ASBCA granted the contractor's unopposed application to recover EAJA fees, including its fees for preparation of the application.

In Woolery Timber Management Inc., the CBCA denied the contractor's EAJA application, finding that the Government's litigation position had been substantially justified where the contractor had lost on most of its appeal grounds and where the single winning appeal ground had been a close call.

In Mare Solutions, Inc., the CBCA granted the contractor's request for fees under the EAJA, including fees of expert witnesses, except to the extent the claimed attorney fees exceeded the statutory rate limit.

In Relyant, LLC, the ASBCA granted most of the contractor's request for EAJA fees, rejecting the Government's contention that its position had been "substantially justified" because that requirement applies to the Government's litigation position as a whole.

In K&K Industries, Inc., although the ASBCA denied the contractor's request for enhanced attorneys fees because the agency's regulations did not provide for them, it held that the Government's position was not substantially justified and that the lack of a critical path analysis by the contractor was irrelevant when it was apparent the item in dispute had delayed the project.

n Asia Commerce Network, the ASBCA held that, after having supplemented the record with additional factual evidence, the contractor had established it was an eligible party, and the Government's litigation position had not been substantially justified.

Court of Federal Claims

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

In McLeod Group, LLC, the court held it lacked jurisdiction over claims based on a blanket purchase agreement because it is not a contract.

In Fortis Networks, Inc., the court held: (i) it lacked jurisdiction over a suit for an injunction to stop offsets to collect a debt because the suit was based on the alleged breach of a voluntary installment repayment agreement, which the plaintiff failed to show was a contract; and (ii) the suit was barred by the Election Doctrine because the plaintiff was currently challenging the debt in an appeal to the ASBCA.

In Lite Machines Corp., the court dismissed counts from an amended Complaint alleging that the Government had breached a Phase III SBIR contract by discontinuing funding, holding, inter alia, that 15 U.S.C. § 638(r)(4) (which provides that, "[t]o the greatest extent practicable, Federal agencies and Federal prime contractors shall issue Phase III awards relating to technology, including sole source awards, to the SBIR and STTR award recipients that developed the technology") could not be deemed to be incorporated in the contract by the Christian doctrine or any other means and did not create an enforceable contract right to an award. The court also rejected the contention that there was an implied-in-fact contract. Subsequently, the plaintiff's motion for reconsideration was denied.

In Kansas City Power & Light Co., the court held that: (i) the contractor's duty-to-defend claim was barred because it accrued when the contractor could request a sum certain and knew all the facts fixing the Government's purported liability, which was more than six years before the contractor submitted the claim to the Contracting Officer; (ii) the contractor's duty-to-indemnify claim was not barred by the CDA's six-year limitations period because it accrued only four years prior to submittal to the Contracting Officer; (iii) the Government's argument that the contractor had superior bargaining power in negotiating the contract with the Government was not persuasive because, even though the contractor was the only utility available to the Government, the contractor was required by law to provide uniform terms for all similarly situated customers; and (iv) the contractor's recovery in this action for defense and settlement expenses it incurred in prior litigation must be reduced by the amount it received from a third party in order to prevent a double recovery, especially  where a purported assignment of  subrogation claims was invalid under the Anti-Assignment Act because the claims had not been decided and the United States had not recognized the assignment.

In The Boeing Co., the court, inter alia: (i) dismissed an illegal extraction claim for lack of jurisdiction because the statute on which it was based (41 U.S.C. § 1503(b)) is not a money-mandating statute; and (ii) held that the contractor had waived its right to challenge a conflict it saw between the CAS statute, the CAS clause, and FAR 30.606 because it consistently entered into contracts with the Government after FAR 30.606 became effective without challenging the regulation in any type of pre-award protest or negotiation with the Government. Subsequently, the Court of Appeals for the Federal Circuit reversed both the illegal exaction and waiver aspects of the lower court's decision.

In Just in Time Staffing, the court dismissed various counts in the Complaint for failure to state a claim and jurisdictional defects, holding that the Government was  not liable for the costs the contractor incurred in negotiating a collective bargaining agreement with its own employees who were attempting to unionize.

In CB&I Areva Mox Services, LLC, the court held that, under the CDA, the contractor was not entitled to interest on the amount of an affirmative government claim that the contractor had successfully challenged in court.

In Jarurn Investors, LLC, the court: (i) dismissed (for failure to state a claim) the lessor's breach claims because the Postal Service's requirement that the current lessor remove and replace defective floor tiles that originally had been installed in connection with a prior lease was not a breach of the current lease or a breach of the covenant of good faith and fair dealing; and (ii) held it lacked jurisdiction over the lessor's claim for unjust enrichment.  

In Kudsk Construction, Inc., the court denied the Government's motion to dismiss both: (i) a claim for unabsorbed overhead for the period that performance was suspended (during a bid protest) before a notice to proceed had been issued on a construction contract because the court interpreted the CAFC's controlling precedent in Nicon, Inc. to bar only such claims that were calculated using the Eichleay formula; and (ii) a claim for the costs of reporting pursuant to the requirements of the American Recovery and Reinvestment Act of 2009 because the associated clause (FAR 52.204-11) was not incorporated into the contract, and the Government did not establish it should be incorporated by operation of law under the Christian doctrine.

In E&I Global Energy Services, Inc., and E&C Global, LLC, the court dismissed several counts from the complaint for failure to state a claim because the Government had no contractual obligation to reimburse a continuation contractor on a defaulted contract for payments it had made to the defaulted contractor's subcontractors and suppliers. Subsequently, the contractor's motions for reconsideration of three interlocutory orders were denied.

In Thomas Nussbaum, the court held that, under the CDA, the contractor's suit was untimely because it was not filed until nine years after the contractor's CDA claim had been denied or deemed denied, and the contractor did not satisfy the requirements for equitable tolling of the limitations period because (a) the contractor failed to pursue his rights during that nine-year period, and (b) a contracting officer's failure to respond to a claim does not satisfy the requirement for equitable tolling of the CDA's one-year period for filing suit in court. 

In Sandstone Assocs., Inc., the court held it lacked jurisdiction over a suit filed more than 12 months after the contractor received the Contracting Officer's decision.  

Looks Great Services, Inc.  is a case that the court described as presenting "a suitable law school exam question." With a bid of one penny, a contractor had won a contract to remove a diseased copper beech tree from a national historic site formerly occupied by Teddy Roosevelt, expecting to make a profit by reselling the wood based on its historical significance. When the Government learned of the contractor's intentions, it prohibited the contractor from proceeding and gave the job to another contractor. The contractor sued for an injunction, but the court dismissed the suit because: (i) this was not a bid protest, so injunctive relief was not available; and (ii) the contractor had not first filed a CDA claim for breach with the Contracting Officer. 

Changes/Breach/Contract Interpretation/Defective Specs/Authority

In Ultimate Concrete, LLC, on cross motions for summary judgment as to aspects of the dispute, the court: (i) denied the contractor's constructive change claim for excavating and rebuilding an embankment because the contract unambiguously required it and the contractor's contrary interpretation of the contract language at issue was unreasonable and was at odds with other sections of the contract; and (ii) granted the contractor's motion for summary judgment on its defective specifications claim because the Government knew that the survey data it provided to the contractor was inaccurate and that a number of the inaccuracies were the result of actions by the Government's own work crews, and yet the Government withheld more accurate survey data from the contractor.

In BGT Holdings, LLC, the court held that:  (i) the contractor was not entitled to an equitable adjustment for equipment it was required to purchase after the Contracting Officer allegedly removed GFE from the contract, because the Government Property clause (FAR 52.245-1) and a (special?) Changes clause required the contractor not to follow any directions unless made and signed in writing by the Contracting Officer, and the contractor failed to allege that any such written direction had been issued; (ii) these same specific contract requirements precluded the contractor's arguments concerning waiver and ratification; and (iii) the Government Property clause also specifically absolved the Government of liability for the contractor's breach of contract claim for a decrease in the GFE. 

In Agility Public Warehousing Co., K.S.C.P., in which the contractor challenged the validity of cross-contract offsets to collect a debt, the court held, inter alia, that, pursuant to the Debt Collection Act, the Government could offset amounts the Contracting Officer determined the contractor had been overpaid under a contract to which the Federal Circuit had concluded the Government was not a party (but only administered) against funds owed to the contractor on another contract to which Government was a party, even though such offset was invalid under the principles of common law offset. As a prelude to that conclusion, the court engaged in a complicated analysis of whether, and the extent to which, 28 U.S.C. 1500 limited its jurisdiction over the contractor's amended Complaint in light of a previously filed District Court action.

In 4DD Holdings, LLC and T4 Data Group, LLC, the court held that the Government had infringed on the plaintiffs' copyrighted software because the Government authorized or consented to its contractor's copying of the software in the contractor's own labs and the contractor's use of the software in excess of the purchased license. The court also held that the Government "with culpable state of mind" had destroyed relevant electronic evidence that it had a duty to preserve, which warranted sanctions for spoliation.

In North American  Landscaping, Construction, and Dredge Co., the court: (i) denied the contractor's various theories in support of its claim for delays to dredging due to barge traffic because the solicitation warned there would be periodic delays, the actual conditions did not differ from those indicated in the solicitation, and the contractor failed to fulfill its duty to inquire as to the extent of barge traffic; (ii) denied the contractor's excusable delay claim for unusually severe weather because it was submitted 100 days after the contract was completed, not within 10 days of the beginning of any alleged weather event, as required by the contract; and (iii) denied the contractor's claim for an allegedly delayed government completion survey because the contractor failed to provide the required minimum 14 days advance notice between its request for a completion survey and the proposed date for the completion of the work (and the date for the Government’s completion survey).

In Coastal Park LLC, et al., the court held that, where an IFB for the sale of a former Coast Guard housing complex contained clauses (a) disclaiming the Government's obligation to maintain the property between the sale and closing and (b) limiting the contractor's damages for failure to close to a return of earnest money, the portions of the Complaint seeking damages in excess of that amount should be dismissed in a situation where a hurricane had damaged the property between the sale and closing and the Government had canceled the contract after refusing the fourth extension of the closing date requested by the contractor and declining the contractor's request to adjust the purchase price to reflect the damages caused by the hurricane.

In Woodies Holdings, L.L.C., the court rejected the Government's attempt to establish that it was entitled to reformation of building leases on the basis of the Government's unilateral mistake of fact concerning the building's square footage for purposes of calculations under the Tax Adjustments clause because: (i) the Government bore the risk of its mistake, having repeatedly ignored information as to the building's actual size, which was readily available to it from multiple sources, absent any misrepresentation on the part of the lessor; and (ii) in view of conflicting testimony, the Government had failed to satisfy its burden of proof to establish that the lessor knew, or should have known, of the Government's mistake.

In Bruhn Newtech, Inc., the court held that the Government's distribution of certain items did not breach a restricted software provision because the items at issue were delivered under a different contract from the one that contained the disputed provision.

In Meridian Engineering Co., on remand from the Federal Circuit, the court held that: (i) releases signed by the contractor, although broadly worded, did not cover its claim for flood-event damages, which were "too attenuated" from the claims giving rise to the releases to be considered encompassed by them; and (ii) the contractor had not assumed the  risk of the flood event (monsoon season) in part because government-caused delays pushed the contractor's construction work into that season. 

In Pacific Coast Community Services, Inc., the court held that: (i) although the contract contained a latent ambiguity concerning the number of full-time equivalent employee hours that must be provided per contract year and whether replacement of employees was required for absences of less than two weeks, which must be resolved in favor of the contractor's interpretation because the Government's interpretation was not adopted until months after operation under a contrary interpretation and did not give meaning to all the contract's terms, including the vacation time required by an applicable wage determination; nevertheless, (ii) the contractor's damages claim for the extra hours it was required to work must be denied because it failed to provide any payroll records showing the actual wages it paid. 

In Rocky Mountain Helium, LLC, on remand from the CAFC (which had held that the Court of Federal Claims had jurisdiction over the dispute), the court used principles of contract interpretation to conclude that: (i) a settlement agreement required the BLM to take more than perfunctory steps to provide the contractor with data concerning the amount of helium available for recovery; and (ii) the BLM breached that agreement by failing to take adequate steps to provide certain required data. Subsequently, the court denied the Government's motion for reconsideration.

In Coffman Specialties, Inc., the court denied the Government's motion to dismiss the count in the complaint for the costs of soil disposal because neither party provided the court with sufficient information to decide an issue of contract interpretation.

In Constructora Guzman, S.A., the court denied the Government's motion to dismiss a count in the Complaint alleging that a prime contract modification permitting the Government to retain 10% of payments was created for the benefit of subcontractors and that, therefore, the plaintiff-subcontractor was a third party beneficiary. However, the court dismissed the second count in the Complaint alleging that the subcontractor had an implied-in-fact contract with the United States.

In Panther Brands, LLC, and Panther Racing, LLC, the court held, inter alia, that the plaintiff had failed to establish there was an implied-in-fact contract where none of the government officials who were allegedly involved had actual (or implied actual) authority to commit the Government to the contract, and there was no evidence that any government official with actual authority had ratified the alleged  agreement. 

Terminations

In State Corps, the court upheld a default termination because: (i) the contractor admittedly failed to complete the project by the completion date specified in the contract; (ii) the Government did not waive its right to terminate the contract for default because it clearly and repeatedly informed the contractor after the completion date had passed (including sending the contractor a cure notice and later a show cause notice) that the contractor was in default, that the Government was considering terminating for default, and that the Government intended to assess liquidated damages; (iii) the Government's refusal to pay the contractor's seventh invoice was not an excuse for the default because the payment was not due until two months after required completion date had passed; and (iv) changes in required badging procedures did not excuse the default because they were not instituted until after the contract completion date had passed.

In Alutiiq Manufacturing Contractors, LLC, the court found a default termination to be defective because the agency failed to consider several required factors in FAR 49.402-3(f)(1)-(7) prior to the termination and relied instead on the analysis of a government official who had history of hostility toward the contractor and whose own analysis of the state of contract performance was deficient.

In Brian Bowles, the court reached the very rare conclusion that a termination for default had been made in bad faith, finding that the plaintiff's refusal to perform further on the contract was justified by the multiple instances of abuse he had suffered from Postal Service employees, culminating in a false allegation that he had assaulted his Postal Service supervisor.

Discovery, Evidence, Procedure

In Duke Energy Progress, Inc. and Duke Energy Florida, Inc., the court  denied the Government's partial motion to dismiss (which was based on the Government's allegation of collateral estoppel) because the plaintiff's Complaint did not present issues of law and fact identical to those litigated in the prior related proceeding between the parties.

In CB&I AREVA MOX Services, LLC the court granted the Government's motion to admit 14 attorneys from a private law firm to a protective order in order to assist the DOJ's attorneys in the litigation, reasoning that the situation would not contravene 5 U.S.C. 3106's prohibition on the Government's use of private attorneys for the "conduct of litigation."

In DCX-CHOL Enterprises, Inc., the court remanded the case to the Contracting Officer to issue a decision on a contract claim for damages for rescission because the Contracting Officer had mistakenly concluded it would be improper to issue the decision while a bid protest concerning the same rescission was pending in court.

In 4DD Holdings, LLC and T4 Data Group, LLC, the court held that the Government had infringed on the plaintiffs' copyrighted software because the Government authorized or consented to its contractor's copying of the software in the contractor's own labs and the contractor's use of the software in excess of the purchased license. The court also held that the Government "with culpable state of mind" had destroyed relevant electronic evidence that it had a duty to preserve, which warranted sanctions for spoliation.

In Kudu Limited II, Inc., the court denied the Government's motion to suspend discovery pending its resolution of the Government's motion for judgment on the pleadings primarily because the Government had delayed both (a) its responses to discovery requests and (b) its filing of the motion to dismiss.  

Court of Appeals for the Federal Circuit

Jurisdiction/Standing/Res Judicata 

In Park Properties Assocs., L.P., Valentine Properties Assocs., L.P., the CAFC reversed the prior CoFC decision and held that, where HUD contracted with a state housing authority agency, and then, in a separate instrument (naming only the state agency and landlords as parties), the state agency contracted with the landlords, HUD was not in privity of contract with the landlords and, therefore, the CoFC lacked jurisdiction to entertain a breach of contract suit by the landlords against HUD. The CAFC rejected all the lower court's reasons for failing to follow a long line of precedent on this issue.

St. Bernard Parish Government, the CAFC affirmed the CoFC's decision that it lacked jurisdiction over a breach of contract claim based on a Cooperative Agreement with the Natural Resources Conservation Service. The court noted the suit should have been filed in District Court following the exhaustion of administrative remedies in the Department of Agriculture.

In DAI Global, LLC fka Development Alternatives, Inc., the CAFC reversed the prior CBCA decision dismissing several appeals for lack of jurisdiction due to an allegedly defective, uncorrectable CDA claim certification by the prime transmitting a properly certified CDA claim by its sub. The court held that the two documents together constituted a defective certification which is correctable according to the CDA, and the Board's decision to the contrary was based on language in a draft of the statute that had specifically been deleted from the enacted version.

In Guarantee Co. of North America USA, the CAFC affirmed the ASBCA's  prior decision that a surety lacked standing to intervene and replace the appellant in a Board appeal because the surety could not have brought the original complaint on its own since the appeal was taken before the surety entered into a settlement agreement with the Government. Subsequently, the surety's petition for rehearing en banc was denied by the court, over an extensive dissent.

Changes/Breach/Contract Interpretation

In Premier Office Complex of Parma, LLC, a case involving contract interpretation, the CAFC affirmed the prior CoFC decision granting summary judgment in favor of the Government, holding that, while one provision in a basic lease document might be ambiguous, the language of Amendment #1 to that lease agreement was not, and the amendment required Level II Security for the "Project," i.e., the entire project.

In Secretary of the Army v. Kellogg Brown & Root Services, Inc., a decision it labels as nonprecedential, the court affirmed the ASBCA's decision awarding the contractor breach of contract damages in the form of its costs for private security forces after the Government failed to fulfill its contractual obligations to provide security for the contractor's employees in the Iraq war zone. The court agreed with the Board that the Board had jurisdiction over the contractor's claim even though it had not first been submitted to the Contracting Officer because it was an affirmative defense to the Government's prior material breach of the contract in withholding the costs incurred by the contractor in hiring private security forces. The court also held that the Board properly determined that interest should began to run from the dates the contractor had submitted properly certified quantum claims to the Contracting Officer because there is no requirement that a contractor state in a claim the legal theory upon which it ultimately recovers in order to start the running of interest.

In Bechtel National, Inc., the CAFC affirmed the prior CoFC decision holding that the CAFC's precedent in Geren v. Tecom precluded reimbursement of the costs the contractor incurred in defending two sexual and racial discrimination and retaliation suits brought by former employees.

In Secretary of Defense v. Northrop Grumman Corp., the CAFC, inter alia, denied the Government's appeal from a prior ASBCA quantum decision because substantial evidence supported the ASBCA's conclusion that the Government had suffered no damages as a result of the contractor's noncompliance with the accrual methodology required by FAR 31.205-6(o). Specifically, a negative amendment to the contractor's PRB plans effectively eliminated the disputed PRB costs from its transition obligation such that those costs were never (and will never be) charged to the Government. 

Cost Principles

In Raytheon Co., the CAFC affirmed the prior ASBCA decision that salary costs for lobbying activities are expressly unallowable under FAR § 31.205-22.